Mahlase v Wakefield (A 159/2008) [2011] ZAGPPHC 166 (15 September 2011)

Mahlase v Wakefield (A 159/2008) [2011] ZAGPPHC 166 (15 September 2011)

The court found that the respondent was negligent in failing to ensure that the gate separating the dogs from the street was properly secured. The evidence showed that the lock was not used properly and could be easily displaced, allowing the dogs access to the street. The respondent had a duty to ensure that when she opened the driveway gate, the dogs would not run out and pose a threat to the public. Her failure to take reasonable steps to prevent the dogs from escaping amounted to negligence, making her liable for the injuries sustained by the appellant. The respondent's argument that the dog was not her property was rejected, as she referred to the dogs as her own during testimony....

Citation
[2011] ZAGPPHC 166
Parties
Appellant: S M Mahlase; Respondent: S Wakefield
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 September 2011
Case Number
A 159/2008
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld; magistrate's order set aside; appellant's claim succeeds with costs.
Judges
M H E Ismail, T J Kruger
Legal Topics
Negligence, Liability for Animal Attacks, Duty of Care, Owner Liability
Delict Negligence Liability for Animal Attacks Duty of Care Owner Liability

Case Brief

Summary, issues, holding and outcome

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Parties

S M Mahlase

Appellant

S Wakefield

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the respondent was negligent in failing to ensure the gate was properly secured, resulting in her dog attacking the appellant.
  2. 2 Whether the respondent can escape liability by claiming the dog was left in the care of a domestic helper and was not her property.
  3. 3 Whether the magistrate's court erred in dismissing the appellant's claim for damages arising from the dog attack.

Ratio Decidendi

The court found that the respondent was negligent in failing to ensure that the gate separating the dogs from the street was properly secured. The evidence showed that the lock was not used properly and could be easily displaced, allowing the dogs access to the street. The respondent had a duty to ensure that when she opened the driveway gate, the dogs would not run out and pose a threat to the public. Her failure to take reasonable steps to prevent the dogs from escaping amounted to negligence, making her liable for the injuries sustained by the appellant. The respondent's argument that the dog was not her property was rejected, as she referred to the dogs as her own during testimony....

Court Disposition

Appeal upheld; magistrate's order set aside; appellant's claim succeeds with costs.

Orders

  • The appeal succeeds.
  • The order made by the magistrate is set aside and replaced with an order that the appellant's action succeeds with costs.