Kohl v Grobbelaar (4962/2017) [2018] ZAECGHC 38 (22 May 2018)

Kohl v Grobbelaar (4962/2017) [2018] ZAECGHC 38 (22 May 2018)

The court found that Reece, being under 10 years old, was doli et culpae incapax and could not be held culpable for trespass or provocation. The defendant failed to prove that Reece's conduct constituted provocation sufficient to exclude liability under actio de pauperie, as merely sitting on the boundary wall did not amount to substantial negligence or imprudence. The dog acted contra naturam by attacking a child who had not provoked it. Regarding lawful presence, the court held that Reece's position on the wall did not render him unlawfully present, especially given his incapacity and the lack of evidence of trespass or absence of consent from the third party. Even if Reece was...

Citation
[2018] ZAECGHC 38
Parties
Plaintiff: Phildentia Kohl; Defendant: Charl Grobbelaar
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
22 May 2018
Case Number
4962/2017
Procedural Posture
Civil Trial / Merits Separated From Quantum; Trial on Liability Only
Outcome
Plaintiff's claim on the merits succeeds; defendant is liable for injuries caused by the dog under actio de pauperie. Quantum stands over for later determination.
Judges
M.J. Lowe
Legal Topics
Actio De Pauperie, Strict Liability for Domestic Animals, Doli Incapax, Provocation Defence, Lawful Presence, Child Trespass
Delict Actio De Pauperie Strict Liability for Domestic Animals Doli Incapax Provocation Defence Lawful Presence Child Trespass

Case Brief

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Parties

Phildentia Kohl

Plaintiff

Charl Grobbelaar

Defendant

Procedural Posture

Civil Trial / Merits Separated From Quantum; Trial on Liability Only

Legal Issues

  1. 1 Whether the minor child Reece was doli et culpae incapax at the time of the dog attack.
  2. 2 Whether the defendant, as owner of the dog, is strictly liable under the actio de pauperie for injuries caused to the plaintiff's son.
  3. 3 Whether the child's conduct constituted provocation excluding liability under actio de pauperie.

Ratio Decidendi

The court found that Reece, being under 10 years old, was doli et culpae incapax and could not be held culpable for trespass or provocation. The defendant failed to prove that Reece's conduct constituted provocation sufficient to exclude liability under actio de pauperie, as merely sitting on the boundary wall did not amount to substantial negligence or imprudence. The dog acted contra naturam by attacking a child who had not provoked it. Regarding lawful presence, the court held that Reece's position on the wall did not render him unlawfully present, especially given his incapacity and the lack of evidence of trespass or absence of consent from the third party. Even if Reece was...

Court Disposition

Plaintiff's claim on the merits succeeds; defendant is liable for injuries caused by the dog under actio de pauperie. Quantum stands over for later determination.

Orders

  • It is declared that the minor Reece was doli et culpae incapax at the time of the dog attack.
  • Defendant is liable as owner of the dog for the injury caused to Reece.