Grobbelaar v P.K (4962/2017) [2018] ZAECGHC 73 (21 August 2018)

Grobbelaar v P.K (4962/2017) [2018] ZAECGHC 73 (21 August 2018)

The court found that the dog acted contra naturam in attacking the minor child, satisfying the requirements for liability under actio de pauperie. The child, being doli et culpae incapax, could not be held at fault or as a trespasser, and his presence on the boundary wall did not constitute unlawful presence. The court rejected the applicant's arguments regarding provocation and unlawful presence, finding no reasonable prospect that another court would reach a different conclusion on the agreed facts. The application for leave to appeal was dismissed with costs.

Citation
[2018] ZAECGHC 73
Parties
Applicant: Charl Grobbelaar; Respondent: P K
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
21 August 2018
Case Number
4962/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment on Merits
Outcome
Application for leave to appeal dismissed with costs.
Judges
M.J. Lowe
Legal Topics
Actio De Pauperie, Doli Incapax, Provocation by Victim, Lawful Presence, Trespass by Minor
Delict Actio De Pauperie Doli Incapax Provocation by Victim Lawful Presence Trespass by Minor

Case Brief

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Parties

Charl Grobbelaar

Applicant

P K

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment on Merits

Legal Issues

  1. 1 Whether the minor child R was doli et culpae incapax at the time of the dog attack.
  2. 2 Whether the defendant, as owner of the dog, is liable under actio de pauperie for injuries caused to the plaintiff's son.
  3. 3 Whether the child's presence on the boundary wall constituted provocation or unlawful presence, affecting liability.

Ratio Decidendi

The court found that the dog acted contra naturam in attacking the minor child, satisfying the requirements for liability under actio de pauperie. The child, being doli et culpae incapax, could not be held at fault or as a trespasser, and his presence on the boundary wall did not constitute unlawful presence. The court rejected the applicant's arguments regarding provocation and unlawful presence, finding no reasonable prospect that another court would reach a different conclusion on the agreed facts. The application for leave to appeal was dismissed with costs.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the costs of the application.