Cloete v Van Meyeren (731/2017) [2018] ZAECPEHC 72; [2019] 1 All SA 662 (ECP); 2019 (2) SA 490 (ECP) (27 November 2018)

Cloete v Van Meyeren (731/2017) [2018] ZAECPEHC 72; [2019] 1 All SA 662 (ECP); 2019 (2) SA 490 (ECP) (27 November 2018)

The court found that the defendant's dogs attacked the plaintiff, who was lawfully present and had not provoked the animals. The defendant's defence relied on the argument that an intruder negligently left the gates open, allowing the dogs to escape. The court analysed the Roman and Roman-Dutch law principles underlying pauperian liability and its exceptions. It held that the established exceptions require either a third party in control of the animal who negligently fails to prevent harm, or a third party who by a positive act provokes the animal. The court rejected the defendant's argument for a wider exception based on the mere negligence of a third party not in control of the dogs,...

Citation
[2018] ZAECPEHC 72
Parties
Plaintiff: Gerhard Cloete; Defendant: Christiaan Jacobus Van Meyeren
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
27 November 2018
Case Number
731/2017
Procedural Posture
Civil Trial / Merits Separated From Quantum; Judgment on Liability
Outcome
Plaintiff’s claim on the merits succeeds; defendant held strictly liable under actio de pauperie.
Judges
M.J. Lowe
Legal Topics
Actio De Pauperie, Strict Liability, Exceptions to Strict Liability, Negligence, Dog Attack, Risk Liability
Delict Land and Property Actio De Pauperie Strict Liability Exceptions to Strict Liability Negligence Dog Attack Risk Liability

Case Brief

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Parties

Gerhard Cloete

Plaintiff

Christiaan Jacobus Van Meyeren

Defendant

Procedural Posture

Civil Trial / Merits Separated From Quantum; Judgment on Liability

Legal Issues

  1. 1 Whether the defendant is strictly liable under the actio de pauperie for injuries caused by his dogs attacking the plaintiff.
  2. 2 Whether the defence that an intruder negligently left the gate open constitutes an exception to pauperian liability.
  3. 3 Whether the plaintiff can establish liability in delict on the basis of negligence if the pauperian defence succeeds.

Ratio Decidendi

The court found that the defendant's dogs attacked the plaintiff, who was lawfully present and had not provoked the animals. The defendant's defence relied on the argument that an intruder negligently left the gates open, allowing the dogs to escape. The court analysed the Roman and Roman-Dutch law principles underlying pauperian liability and its exceptions. It held that the established exceptions require either a third party in control of the animal who negligently fails to prevent harm, or a third party who by a positive act provokes the animal. The court rejected the defendant's argument for a wider exception based on the mere negligence of a third party not in control of the dogs,...

Court Disposition

Plaintiff’s claim on the merits succeeds; defendant held strictly liable under actio de pauperie.

Orders

  • Judgment is granted in favour of the plaintiff against the defendant, who is held liable for damages arising from the dog attack on 18 February 2017.
  • The defendant shall pay the plaintiff’s costs of suit on the party and party scale, except that costs for the first half day of trial (12 November 2018) shall be on the attorney and client scale.