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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

Case No.: 2794/2013

Date Heard: 21 October 2014

Date delivered: 4 November 2014

In the matter between:

ELSIE MARLENE JOHANNES                                                                                       Plaintiff

and

RAYNO WILLIAMS                                                                                             First Defendant

FELICITY WILLIAMS                                                                                    Second Defendant

JAMES RICHARD WILLIAMS                                                                          Third Defendant

JUDGMENT

EKSTEEN J:

[1] Early in the morning on 29 March 2012 the plaintiff, a middle aged woman, set off to walk from her home at [......], Rosedale, Uitenhage to a nearby shop.  She was unexpectedly and ferociously attacked from behind by a pitbull terrier and she sustained very serious bodily injuries as a result thereof.   The plaintiff has instituted action against the first defendant who is owner of the dog and the second defendant, his mother, who is a joint owner and occupier of the property in which the defendants reside.

[2] By agreement between the parties the issues relating to the extent of the injuries sustained by the plaintiff and the quantification of her damages were separated from the question of liability.  This judgment deals only with the alleged liability of the defendants.  At the commencement of the trial the first defendant acknowledged his liability to the plaintiff for such damages as the plaintiff may in due course prove that she has suffered as a result of the event.  The second defendant, however, continued to deny liability. 

[3] It is common cause on the evidence that the plaintiff was attacked by a pitbull bitch (herein referred to as “the dog”) which was owned by the first defendant.  The first defendant resided with his mother, the second defendant, in a property situated diagonally across the road from the home of the plaintiff.  The second defendant is the joint owner, together with the estate of her late husband, of the property. 

[4] The plaintiff testified that both she and the second defendant had resided in their respective properties for some 25 years or more.  The home of the second defendant, she testified, was fenced in and there were always dogs in the yard.  She did not however see the dog in the yard as it was kept behind the house out of sight.  In the front yard the property is fenced and there is a low gate which is always kept closed.

[5] She had seen the dog prior to the day of the incident as the first defendant often walked with the dog and always kept it on a leash when doing so.  On the morning of the attack she was on route to a shop and walking down McNaughton Drive when she felt the dog jump on her and he continuously bit her until the first defendant arrived and took the dog off her.  She did not see the first defendant prior to the attack and she does not know where he came from.  McNaughton Street, is normally a busy street but at that hour of the morning it was quite and the only person she saw nearby was one Daniel Lynx, whom she saw standing on the corner, a short distance away.  After the incident, however, a number of people appeared and as she sat on the pavement waiting for an ambulance she noted the second defendant sitting some distance away.  Second defendant did not speak to her that morning but, sometime later, after the plaintiff had undergone the first of a series of operations, the second defendant visited her and apologised for the fact that the first defendant’s dog had attacked her.

[6] Daniel Lynx testified that he had worked nightshift and was on route to his home when he witnessed the events.  He states that the plaintiff had approached from behind him and had passed him where he was standing.  The dog then also approached from behind him, passed him, and attacked the plaintiff.  He says that there was more than one dog although only the pitbull bitch attacked the plaintiff.  The dogs approached from the general direction of the second defendant’s property and they were not on any leash or under the control of anyone.   

[7] Upon viewing the attack Lynx says that he approached the dog and started beating the dog with a bag as it was biting the plaintiff’s leg.  At this stage a taxi arrived and people alighting from the taxi came to his assistance to attempt to take the dog off the plaintiff, but to no avail.  The dog left his grip on her leg and grabbed her arm and continued to bite her.  Shortly thereafter the first defendant arrived and took the dog off the plaintiff.  He noted that the first defendant’s brother, Clinton, was also present.  He has known the first defendant and his brother for some years and was aware that they owned a pitbull terrier which he says the first defendant used for fighting.

[8] The second defendant testified that she has been resident in the same home for 32 years.  The first defendant is her youngest son and resides with her together with his young son.  Her husband, who is cited as the third defendant, died prior to the incident.  The executors of the deceased estate have not been joined in the proceedings and the plaintiff seeks no relief against the third defendant.  The second defendant says she was unemployed at the time and sold sweets and some other minor items from her home in order to generate an income.  In addition her daughter provided some money to help her.  Primarily, the first defendant worked at sea (it is not clear in what capacity) and supported her.

[9] The second defendant states that she and her husband had always kept dogs as watch dogs and her dogs are kept in the front garden.  They are domesticated dogs and do not pose any danger to anyone.  She recognises that the vehicle gate situated in the front fence facing onto the street is low and that dogs could comfortably jump over the gate if they so wished.

[10] The dog in issue, she states, was acquired some two weeks prior to the incident by the first defendant.  She was not there when the dog arrived and it was brought to the home by the first defendant’s brother.  The first defendant had another male pitbull terrier prior to this one which he kept in the back yard.  When the dog was acquired some two weeks prior to the incident, the male pitbull, she says, was removed from the property. 

[11] The property is fenced along its perimeter.  Facing the property from the street the left hand boundary and the rear boundary of the property has a solid brick wall.  The front facing onto the street and the right hand boundary is fenced off.  From where the house is situated there is a large sturdy fence leading from the rear of the house to the brick wall on the left hand boundary.  Up against the house there is a large wooden door in the fence which is always kept closed.  On the right hand side of the house there is a sturdy fence extending from the house to the right hand boundary fence.  There is a steel gate situated in this fence which is similarly kept closed at all times.  In the rear garden is a flatlet where the first defendant resides.  There the first defendant has created a cage in which the dog was always locked up.  The dog was chained to a pillar inside the cage. 

[12] The second defendant states that she disapproved of the dog being kept on her premises as she regarded it as dangerous.  She had repeatedly admonished the first defendant to remove the dog and the previous pitbull from the property and she refused to have anything to do with the dog.  She states that she would not have touched the dog and that she would be unable to control it. 

[13] When the dog was brought to her premises first defendant was working at sea.  The first defendant’s brother, Calvin, had brought the dog to her premises and he cared for the dog when the first defendant was at sea. The first defendant had returned from the sea approximately a day or two prior to the incident.

[14] On the morning of the incident the second defendant states that she was asleep and was awoken by the first defendant who had come into the house.  He greeted her and later she heard him on the front veranda.  He advised that he was proceeding to one “Val” who lived two houses away.  It was shortly thereafter that she received a phone call advising her of the attack on the plaintiff. 

[15] Under cross-examination she acknowledged that the vehicle gate in the front fence facing the street did sometimes stand open and that the dogs could easily jump over the gate even when it is closed. She insisted however that the dogs kept in the front yard did pose no danger to anyone.  She says that the previous evening she had been out to the flatlet in the rear section where the first defendant stays and at that stage the gate and the door in the fence were closed.  I pause to mention that the evidence does not suggest how the dog might have escaped from the rear of the property to the street.  There was no cross-examination directed at the condition of the fences and whether there may have been some failure in the fence.  There is nothing to suggest that either the gate or the wooden door had been left open and there is no explanation as to how the dog was released from the chain or how it got out of its cage.

[16] As it emerges from the evidence which I have set out earlier it is not in dispute that the first defendant was the owner of the dog and in control of the dog.  It is well-established that where a person has assumed control over a potentially dangerous animal which may cause harm unless precautions are taken he is under a legal duty to act in protection of third parties.  (See for example S v Fernadez 1966 (2) SA 259 (A);  and Deysel v Karsten [1993] ZASCA 117; 1994 (1) SA 447 (AD) at 454I.)  This, no doubt, accounts for the first defendant’s capitulation on the morning of the trial.

[17] The issue now under consideration is the liability of second defendant.  It is common cause that she is not the owner of the dog nor did she assume control over the dog.  At common law she would therefore not ordinarily be required to take steps to protect others against harm flowing from the conduct of the dog.

[18] Mr le Roux, on behalf of the plaintiff, argues, however, that because the second defendant is the owner of the property she could not permit the first defendant to do as he pleases and as she had permitted her son to bring the dog onto the property she was obliged herself to take steps to ensure that the dog did not escape to the street.  He relies on Enslin v Nhlapo [2008] ZASCA 75 for this contention. 

[19] Enslin’s case concerned an owner of a farm who had hired grazing to one Mkwanazi for, inter alia, a Brahman bull.  The bull escaped from the camp where it was grazing, passed through two gates which had been left open and wandered onto the road at night where a collision occurred and the plaintiff was injured.  On the facts of the case it was held that Enslin had assumed a measure of control over the bull in that his agreement with Mkwanazi was to the effect that he, as owner of the farm, could decide where the bull was entitled to graze at any particular time.  He reserved the right to control the movement of the animal from place to place as grazing dictated.  The Supreme Court of Appeal accordingly held that, on his own version, he exercised a measure of control over the bull.  In the present matter there is no evidence that the second defendant assumed any control over the dog.  The decision in Enslin’s matter is therefore distinguishable from the present facts and I do not think that it is authority for the argument advanced. 

[20] In Enslin’s matter, however, the Supreme Court of Appeal stated, after having found that the defendant  exercised a measure of control over the bull:

“But it may well be unnecessary to go that far, for he clearly exercised control over the grazing camp in which the bull had been allowed to roam freely unsupervised.  (See Jamneck v Wagner 1993 (2) SA 55 (C).)”

[21] Whilst the Supreme Court of Appeal made no positive finding in this regard it is necessary to consider Jamneck’s case.  In Jamneck’s case the Full Bench in the Cape adopted a somewhat different approach to the facts of that case.  Jamneck’s case concerned horses which had escaped onto the main road during the night and had caused a collision.  Jamneck hired a piece of land on which he conducted a brickworks and he permitted horses to graze on the property.  One of the horses, the horse which was responsible for the collision, did not belong to him.    It was held, on the balance of probabilities that the horses had escaped from the brickfields onto the main road through a hole in the fence.  The Full Bench of the Cape High Court held that a landowner or tenant who allowed horses to graze on his land ought to foresee that if these horses escaped onto the road they would pose a danger to traffic and therefore the relevant question in issue was not whether the appellant had exercised control over the horse but whether he had exercised control over the wire fence separating his leased premises from the road.  They held that where the person exercising control over a fence was not the same as the person exercising control over the animals the duty to maintain the fence rested in the first place with the former.  The defendant accordingly had a duty to maintain the fence and whereas the horses had escaped through a hole in the fence it was incumbent on the defendant to show that he had taken reasonable steps to maintain the fence. 

[22] Mr le Roux argues, on this basis, that the second defendant ought to have maintained the fence separating the area behind the house from the rest of the property and she ought to have ensured the wooden door in the fence to the left of the house and the gate to the right of the house remained closed which would prevent persons entering through them at night.  She failed, he argues, to take a simple precaution such as locking the door and gate.  The difficulty with this argument is that there is no indication of how the dog escaped from the enclosure behind the house into the street.  There is no suggestion of any hole in the fence nor of the door or gate having been left open and we simply do not know how the animal came to be released from his chain and from its enclosure and how it escaped from the fenced off area behind the house.  In the circumstances, accepting for purposes of this argument that second defendant did have a duty to take reasonable steps to maintain the fence and to ensure that the gates remained closed there is no evidence which suggests that she failed to do so, and if she did, that the dog escaped as a consequence of such failure.

[23] The question remains how the dog may have escaped.  A number of possibilities present themselves:

(a)       It is possible, if not probable, that the first defendant  or Clinton released the dog from its chain and allowed it out of its cage earlier that morning.  This would, however, still not explain how the dog got into the street. 

(b)       First defendant may have opened the wooden door or the gate in the fence leading to the front garden.  This does not appear to me to be improbable.  He is resident on the property and was likely to utilise the door in the fence separating the front garden from the rear portion in order to access his bedroom.  Even if a padlock was placed on the door he would probably have had to have a key to the door as he was resident there.  If he left the door open it would have been negligence on the part of first defendant.

(c)        The first defendant may inadvertently have left the back door and the front door to the house open when he entered the house and departed to “Val”.  If this occurred, and it appears reasonably possible, the dog may have passed through the house and into the street in pursuit of its master.  This too would have been first defendant’s negligence. 

(d)       The first defendant’s brother, Calvin, who does not live on the premises was present on the scene of the attack as testified to by Lynx.  The second defendant testified that Calvin had brought the dog onto the property some two weeks earlier and that he cared for the dog when the first defendant was at sea.  The first defendant had returned from the sea a day or two prior to the incident.  Calvin may have proceeded to the rear of the property through the door or gate in order to attend upon the dog or to visit the first defendant and inadvertently left the gate or door open.  This would have been Clinton’s negligence.

[24] It is only the negligence of the second defendant which is in issue for present purposes – as distinguished from the negligence of the first defendant or of Calvin.  On a consideration of all the foregoing features I do not think that negligence on the part of second defendant has been established.  (Compare Deysel v Karsten supra at 457D-H.)

[25] In summary the plaintiff’s claim against the second defendant must fail firstly because it has not been established that the second defendant, who was not the owner of the dog, assumed any control over the animal.  Accordingly, I do not think that she owed the plaintiff any duty.  Secondly, assuming that she did owe the plaintiff a duty I do not think, for the reasons set out earlier,  that the negligence of the second defendant has been established. 

[26] In the result, I make the following order:

1.         The first defendant is liable to the plaintiff for such damages as the plaintiff may establish that she has suffered as a result of the attack upon her by a pitbull terrier on 29 March 2012.

2.         The first defendant is ordered to pay the plaintiff’s costs of suit.

3.         The first defendant is ordered to pay interest on the plaintiff’s taxed costs calculated at the legal rate of interest from a date fourteen (14) days after allocatur to the date of payment.

4.         The plaintiff is ordered to pay the second defendant’s costs of suit.

5.         The plaintiff is ordered to pay interest on the second defendant’s taxed costs calculated at the legal rate from a date fourteen (14) days after allocatur to the date of payment.

J W EKSTEEN

JUDGE OF THE HIGH COURT

Appearances:

For Plaintiff:               Adv H le Roux instructed by Heine Ungerer Attorney, Port Elizabeth

For Defendant:          Mr V Naidu instructed by Justice Centre, Port Elizabeth

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