Van der Westhuizen v Burger (204/2017) [2017] ZASCA 178; 2018 (2) SA 87 (SCA) (1 December 2017)

Van der Westhuizen v Burger (204/2017) [2017] ZASCA 178; 2018 (2) SA 87 (SCA) (1 December 2017)

The Supreme Court of Appeal found that the respondent had repeatedly teased and provoked the ostrich prior to the incident and, immediately before being chased, threw a stone at the animal. This conduct constituted provocation, which is a recognised defence to strict liability under actio de ferris. The evidence established that the respondent's own actions directly led to the ostrich chasing him, and the injury was sustained while he attempted to escape. Furthermore, the ostrich did not display aggressive behaviour after the respondent fell, and the injury was not caused by an attack but by the respondent's own movement. The court held that the appellant discharged the onus of proving...

Citation
[2017] ZASCA 178
Parties
Appellant: G S Van der Westhuizen; Respondent: W J Burger
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2017
Case Number
204/2017
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld; respondent's claim dismissed with costs.
Judges
Ponnan, Majiedt, Swain, Mokgohloa, Mbatha
Legal Topics
Actio De Ferris, Provocation Defence, Strict Liability, Causation, Contributory Negligence
Delict Actio De Ferris Provocation Defence Strict Liability Causation Contributory Negligence

Case Brief

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Parties

G S Van der Westhuizen

Appellant

W J Burger

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the owner of a wild animal is strictly liable for injuries caused to a visitor on his property.
  2. 2 Whether provocation by the injured party constitutes a defence to strict liability under actio de ferris.
  3. 3 Whether the respondent's conduct was the cause of his own injury.

Ratio Decidendi

The Supreme Court of Appeal found that the respondent had repeatedly teased and provoked the ostrich prior to the incident and, immediately before being chased, threw a stone at the animal. This conduct constituted provocation, which is a recognised defence to strict liability under actio de ferris. The evidence established that the respondent's own actions directly led to the ostrich chasing him, and the injury was sustained while he attempted to escape. Furthermore, the ostrich did not display aggressive behaviour after the respondent fell, and the injury was not caused by an attack but by the respondent's own movement. The court held that the appellant discharged the onus of proving...

Court Disposition

Appeal upheld; respondent's claim dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced with: 'The claim is dismissed with costs.'