On 18 February 2017, Mr Cloete, an itinerant gardener and refuse collector, was walking down Rowan Street in Rowallan Park, Port Elizabeth, pulling his trolley after completing a job. Without warning or provocation, he was viciously attacked by three cross-breed pit bull terrier dogs owned by Mr van Meyeren. Neighbours thought Mr Cloete was dead, and his left arm was ultimately amputated due to his injuries. At the time of the attack, Mr van Meyeren was away from home since the previous Wednesday, and his wife had gone to a party. Their son and his girlfriend had been at the property that morning but left before the incident. The dogs escaped through a gate that Mr van Meyeren claimed was locked with two padlocks. Evidence at trial suggested the padlocks were rusted, one had a bent shackle that could not close, and the other did not lock properly. Mr van Meyeren speculated that an unknown intruder must have damaged the padlocks, enabling the dogs to escape. However, no intruder was seen by any witness, including a neighbour who had visited the property shortly before the attack and found the gate closed.
The appeal was dismissed with costs, including costs consequent upon the employment of two counsel. The high court's declaratory order holding Mr van Meyeren liable under the actio de pauperie was upheld.
The ratio decidendi is that the defence recognized in Lever v Purdy, whereby an owner of an animal may escape actio de pauperie liability where a third party having custody or control of the animal negligently failed to prevent harm, does not extend to cases where a third party not in custody or control of the animal is negligent. For the defence to apply, there must be a direct link between the third party's conduct and the behavior of the animal that caused the harm. Where the third party's conduct merely creates an opportunity for the animal to escape (such as leaving a gate open), but the third party has no responsibility for or control over the animal, the owner remains strictly liable. The owner of a domesticated animal bears strict liability under the actio de pauperie for harm caused by the animal acting contra naturam sui generis to an innocent victim, unless the victim was not lawfully present, the victim or third party provoked the animal, or a third party in custody or control of the animal was negligent.
The court made several obiter observations: (1) The court expressed hesitation about whether a homeowner should be entirely free from liability where a watchdog savages an intruder to the extent that occurred in this case, suggesting that deterrence or restraint is one thing but killing or seriously injuring an intruder is another, noting that only in extreme circumstances is it permissible to shoot and kill an intruder in self-defence. (2) The court noted that the application of defences where children are involved (such as a child entering a neighboring garden to retrieve a ball, or where one child teases a dog and it bites another child) may create problems that should be left for consideration when such cases arise. (3) The court observed that the anthropomorphic concepts underlying pauperien liability date back to primitive times but that development of principles should be sought in modern principles and circumstances rather than obscure references to ambiguous historical authorities. (4) The court commented on the practical reality that owners can typically obtain insurance coverage for dog bite incidents as part of household insurance policies, while injured parties' claims against house-sitters or dog-walkers may be worthless due to their limited financial resources.
This case is significant because it definitively limits the defence of third-party negligence in actio de pauperie cases to situations where the third party had custody or control of the animal. It confirms the continued vitality of strict liability under the actio de pauperie in South African law and refuses to extend defences that would undermine this strict liability regime. The judgment emphasizes that the principle of strict liability for harm caused by domesticated animals serves important policy objectives in protecting innocent victims and allocating responsibility to those who choose to keep animals. The case is particularly important in the modern context of urban living where large numbers of dogs are kept and pose potential dangers to the public. The judgment also demonstrates the proper approach to development of the common law under section 39(2) of the Constitution, considering constitutional values of bodily integrity, dignity and life.
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