Mostert v Jones (61617/2016) [2019] ZAGPPHC 63 (8 March 2019)

Mostert v Jones (61617/2016) [2019] ZAGPPHC 63 (8 March 2019)

The court found that the defendant kept a dangerous Boerboel dog and was aware of its aggressive nature and inability to control it once it attacked. The defendant accepted a duty to protect tenants and others lawfully present on his property from harm by the dog, and his practice of caging the dog when his wife went to church with the tenants was specifically to protect them. On the night in question, the defendant had no communication with his wife and could not be certain whether she had gone to church with the plaintiff, as she had done previously without specific requests. A reasonable person in the defendant's position would have checked whether his wife was at home before releasing...

Citation
[2019] ZAGPPHC 63
Parties
Plaintiff: Susanna Elizabeth Johanna Mostert; Defendant: George Arthur Jones
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 March 2019
Case Number
61617/2016
Procedural Posture
Civil Trial / Merits Only; Quantum Separated
Outcome
Plaintiff's action succeeds; defendant found negligent and liable for damages.
Judges
Barnes
Legal Topics
Negligence, Liability for Animal Attacks, Duty of Care, Occupier Liability
Delict Negligence Liability for Animal Attacks Duty of Care Occupier Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Susanna Elizabeth Johanna Mostert

Plaintiff

George Arthur Jones

Defendant

Procedural Posture

Civil Trial / Merits Only; Quantum Separated

Legal Issues

  1. 1 Whether the defendant was negligent in failing to prevent the attack by his dog on the plaintiff.
  2. 2 Whether the plaintiff voluntarily assumed the risk of injury or acted negligently herself.
  3. 3 Whether the defendant is liable for damages arising from the attack.

Ratio Decidendi

The court found that the defendant kept a dangerous Boerboel dog and was aware of its aggressive nature and inability to control it once it attacked. The defendant accepted a duty to protect tenants and others lawfully present on his property from harm by the dog, and his practice of caging the dog when his wife went to church with the tenants was specifically to protect them. On the night in question, the defendant had no communication with his wife and could not be certain whether she had gone to church with the plaintiff, as she had done previously without specific requests. A reasonable person in the defendant's position would have checked whether his wife was at home before releasing...

Court Disposition

Plaintiff's action succeeds; defendant found negligent and liable for damages.

Orders

  • The action succeeds with costs.
  • The attack on the plaintiff by the Boerboel dog owned by the defendant was caused by the negligence of the defendant.