Van der Westhuizen v Burger

The respondent, Mr Burger, was injured on the appellant Mr Van der Westhuizen’s farm after being chased by an ostrich owned by the appellant. In attempting to flee, the respondent fell and later injured his Achilles tendon, claiming damages of R6.75 million. He sued under the actio de feris, relying on strict liability of the owner of a wild animal. Evidence showed that on several prior occasions the respondent had teased and provoked the ostrich, including feeding it, grabbing it by the neck, and on the day in question throwing a stone at it. The High Court separated merits from quantum, rejected the defence of provocation, and held the appellant liable. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order dismissing the respondent’s claim with costs.

The case confirms that provocation by a plaintiff is a valid defence to strict liability claims arising from damage caused by wild animals under South African law. It clarifies that intentional conduct by a victim that provokes an animal can exclude liability, aligning the actio de feris with principles applicable to the actio de pauperie, and provides authoritative guidance from the Supreme Court of Appeal on animal liability.