Makhubela v Deyzel (94956/15) [2017] ZAGPPHC 130 (28 March 2017)

Makhubela v Deyzel (94956/15) [2017] ZAGPPHC 130 (28 March 2017)

The court found that all the essential elements for liability under actio de pauperie were common cause: the defendant owned the dogs, they were domesticated, they acted contrary to their nature, and the plaintiff suffered damages. The defendant's defence of provocation by burglars was based on inference rather than direct evidence. There was no evidence as to the dogs' state at the time of the burglary or whether they remained provoked until the attack. The defendant failed to call key witnesses who could have corroborated her version. The court held that the defendant did not discharge the onus of proving provocation and that liability under actio de pauperie was established on a...

Citation
[2017] ZAGPPHC 130
Parties
Plaintiff: Joyce Makhubela; Defendant: S Deyzel
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 March 2017
Case Number
94956/15
Procedural Posture
Civil Action / Merits Separated From Quantum; Judgment on Liability
Outcome
Defendant found liable for damages under actio de pauperie.
Judges
N Nkosi
Legal Topics
Actio De Pauperie, Actio Legis Aquiliae, Liability for Domesticated Animals, Provocation Defence, Onus of Proof
Delict Actio De Pauperie Actio Legis Aquiliae Liability for Domesticated Animals Provocation Defence Onus of Proof

Case Brief

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Parties

Joyce Makhubela

Plaintiff

S Deyzel

Defendant

Procedural Posture

Civil Action / Merits Separated From Quantum; Judgment on Liability

Legal Issues

  1. 1 Whether the defendant is liable for damages caused by her domesticated dogs biting the plaintiff and her minor child.
  2. 2 Whether the defendant discharged the onus of proving the defence of provocation by third parties (burglars).
  3. 3 Whether liability attaches under actio de pauperie or actio legis aquiliae.

Ratio Decidendi

The court found that all the essential elements for liability under actio de pauperie were common cause: the defendant owned the dogs, they were domesticated, they acted contrary to their nature, and the plaintiff suffered damages. The defendant's defence of provocation by burglars was based on inference rather than direct evidence. There was no evidence as to the dogs' state at the time of the burglary or whether they remained provoked until the attack. The defendant failed to call key witnesses who could have corroborated her version. The court held that the defendant did not discharge the onus of proving provocation and that liability under actio de pauperie was established on a...

Court Disposition

Defendant found liable for damages under actio de pauperie.

Orders

  • The defendant is liable to pay 100% of the proven or agreed amount of damages in respect of the plaintiff's claim in her personal capacity and in her representative capacity on behalf of her minor child.
  • The defendant is liable to pay the plaintiff's costs.