Cole v Pieterse N.O (11599/12) [2013] ZAGPJHC 394 (7 October 2013)

Cole v Pieterse N.O (11599/12) [2013] ZAGPJHC 394 (7 October 2013)

The court found that the plaintiff was aware her unannounced entry would provoke the dogs, as they always barked and rushed at visitors. The plaintiff was not expressly prohibited from entering, but her conduct in entering without knocking was considered rude and unacceptable. The evidence did not establish that Saartjie acted contra naturam sui generis; rather, her behaviour was consistent with her breed and territorial instincts. The defendant discharged the onus of showing that the plaintiff voluntarily accepted the risk and that the dog was provoked. The plaintiff failed to prove, on a balance of probabilities, that the dog’s conduct was legally unacceptable or that more than one dog...

Citation
[2013] ZAGPJHC 394
Parties
Plaintiff: Wanda Marie Cole; Defendant: Wilhelminah Jacoba Pieterse N.O
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 October 2013
Case Number
11599/12
Procedural Posture
Civil Trial / Merits Only; Quantum Separated by Agreement
Outcome
Plaintiff’s action dismissed with costs.
Judges
Reyneke
Legal Topics
Actio De Pauperie, Liability for Domesticated Animals, Provocation, Lawful Presence, Contra Naturam Sui Generis
Delict Actio De Pauperie Liability for Domesticated Animals Provocation Lawful Presence Contra Naturam Sui Generis

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 10 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Wanda Marie Cole

Plaintiff

Wilhelminah Jacoba Pieterse N.O

Defendant

Procedural Posture

Civil Trial / Merits Only; Quantum Separated by Agreement

Legal Issues

  1. 1 Whether the plaintiff had a right to be on the premises at the time of the incident.
  2. 2 Whether the plaintiff voluntarily accepted the risk of injury by entering unannounced.
  3. 3 Whether the dog was provoked prior to the attack.

Ratio Decidendi

The court found that the plaintiff was aware her unannounced entry would provoke the dogs, as they always barked and rushed at visitors. The plaintiff was not expressly prohibited from entering, but her conduct in entering without knocking was considered rude and unacceptable. The evidence did not establish that Saartjie acted contra naturam sui generis; rather, her behaviour was consistent with her breed and territorial instincts. The defendant discharged the onus of showing that the plaintiff voluntarily accepted the risk and that the dog was provoked. The plaintiff failed to prove, on a balance of probabilities, that the dog’s conduct was legally unacceptable or that more than one dog...

Court Disposition

Plaintiff’s action dismissed with costs.

Orders

  • The plaintiff’s claim is dismissed.
  • The plaintiff is ordered to pay the costs of the action.