Van der Westhuizen v Burger

The respondent, Mr Willem Burger, was a guest on the appellant's, Mr Gerhard van der Westhuizen's, farm. The appellant owned ostriches on his farm, including a male ostrich that roamed near the dwelling and was familiar with people. Evidence established that on numerous occasions the respondent had teased this ostrich by feeding it from his hand, grabbing it by the neck, and pushing its head down, causing it to perform comical dance steps. The appellant had asked the respondent to stop teasing the ostrich because it made the ostrich angry. On the day of the incident, while assisting with loading blue wildebeest, the respondent saw the ostrich feeding at a trough between the bakkie and the house. The respondent walked toward the house and threw a stone at the ostrich. The ostrich then chased him. While running toward the house, the respondent fell once (without being attacked by the ostrich), got up, continued running, and stepped on a wooden paling, tearing his Achilles tendon. The ostrich did not attack or harm him physically at any point. The respondent claimed damages of R6,750,000 based on the actio de feris.

• Whether the actio de feris applied to establish strict liability of the owner of a wild animal for damages caused by that animal
• Whether provocation is a defence to the actio de feris
• Whether the respondent's conduct in throwing a stone at the ostrich constituted provocation
• Whether causation was established between the ostrich's chase and the respondent's injury

The appeal was upheld with costs. The order of the court a quo was set aside and replaced with an order dismissing the claim with costs.

Provocation by the injured party is a defence to a claim based on the actio de feris. There is no basis in principle or logic to recognise contributory negligence as a defence while excluding intentional provocative conduct by the victim. Where a victim intentionally provokes an animal (such as by throwing a stone at it), causing the animal to chase the victim, the owner of the animal cannot be held liable for injuries the victim sustains while attempting to escape from the animal. The defence of provocation applies even if it is not expressly listed in earlier case law, as it follows from the fundamental principle that no person can recover damages for an injury for which they have themselves to thank.

Ponnan JA made extensive observations about the uncertain status of the actio de feris/edictum de feris in modern South African law. He noted that the edict originated as a Roman police regulation prohibiting keeping wild or dangerous animals in public places, that there has been little judicial recognition of it in South African law, and that it may be unsuited to modern conditions and possibly obsolete through desuetude. He suggested that the remedy could potentially be replaced by the Aquilian action supplemented by the actio de pauperie, though he acknowledged academic disagreement on this point. Ponnan JA also suggested that comprehensive modern legislation might be appropriate to replace the historical rules which are sometimes difficult to apply, following the example of England. He emphasized the court's duty to ensure the law adapts to changing conditions and may need to discard outworn doctrines. However, he noted it was unnecessary to resolve the question of obsolescence for purposes of the case. Swain JA noted for completeness that even on the issue of causation, the appellant could not be liable as after the respondent fell, the ostrich did not display aggressive behaviour and the injury was not caused by the pursuit itself.

This case clarifies that provocation is a recognised defence to the actio de feris (the action for liability arising from wild or dangerous animals brought onto public places or places accessible to the public). It establishes that where a victim's intentional conduct provokes an animal's attack, the owner cannot be held liable for resulting injuries. The case also addresses issues of causation in animal liability cases, holding that an owner is not liable for injuries sustained in attempting to escape from an animal where the victim provoked the chase and the animal did not actually attack or display aggressive behaviour causing the injury. The judgment contains extensive obiter dicta by Ponnan JA regarding the uncertain status of the edictum de feris in modern South African law and whether it may have fallen into desuetude, suggesting potential legislative reform in this area of law.