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Why dog owners should know about the actio de pauperi remedy

South Africa has many homeowners that have dogs as their domestic animals and as a dog owner, you have the responsibility to ensure that you keep your pet under proper supervision and care.  There is a duty of care that the owner must exercise to ensure that their dog does not harm others. 

A delictual claim brought under the actio de pauperi, can hold the owner of a dog liable for damage caused by their dog even without any fault on the
owner’s part.

Actio de pauperi

The actio de pauperi remedy indicates that “the owner of a dog that attacked another person who was lawfully at the place where he was
injured, and who did not provoke the attack or by his/her negligence contributed to his/her injury, is liable, as owner, for the existing damages.”

Therefore, strict liability is imposed on the owner of the animal.

For a victim to succeed with the actio de pauperie remedy the following requirements must be met:

  • The defendant must be the owner of the dog at the time the harm is inflicted. It is not sufficient that he/she has control over the animal; he/she must be the owner in terms of the property law definition of ownership.
  • The animal must be a domestic animal.
  • The dog must have acted contra naturam sui generis. This means that the animal must have acted differently from what can be expected of a reasonable animal of that kind.
  • The plaintiff/victim had to be present lawfully at the place where the harm was inflicted

The defendant can raise the following defences against the actio de pauperie remedy:

  • Vis maior or an act of God;
  • Culpable or provocative conduct on the part of the victim;
  • Culpable or provocative conduct on the part of a third party;
  • Provocation by another animal;
  • The victim who was attacked was not on the property lawfully;
  • In the case of Lever v Purdy 1993 (3) SA 17 (A), the court set out two instances where the culpable conduct of a third party could constitute defences:
    • Where a third party through a positive act (e.g. provocation) caused the dog to inflict an injury upon the victim; or
    • Where the third party was in control of the animal but failed to prevent the animal from harming the victim.

Ownership of a dog

A dog is regarded as personal property which means that the dog is, legally speaking, a “possession”, an item, owned by one person – just like a
television or a car.


Ownership of a dog can be proved in the following ways:

  • The name on the breeder registration papers, adoption papers, kennel club;
  • The name on vet records, pet insurance documents, or the microchip registration forms;
  • Bank records proving that the owner paid for the dog; and
  • Screengrabs or copies of communication between the owner and the person who sold the dog discussing the sale and/or handing over of the dog.

Van Meyeren v Cloete (636/2019) [2020] ZASCA 100 (11 September 2020)

In the abovementioned case, which was heard by the Supreme Court of Appeal, Mr Gerhard Cloete was on his way to the shop, pulling the trolley in which he collects refuse. As he walked past the Van Meyeren house, he heard three dogs behind him who subsequently attacked him from behind. The three dogs belonged to the appellant, Mr Van Meyeren. Mr Cloete’s left arm had to be amputated due to the injuries he had suffered from the attack. Damages in terms of the actio de pauperie remedy were claimed. Mr Cloete’s presence in the place where he was attacked was lawful and he had done nothing to provoke the dogs.

Nobody was at home at the time of the incident. The incident was rather shocking as they had never attacked anyone before and they even slept in the house. The garden was fenced and sealed off from the street by a padlocked gate. It is, however, uncertain whether the gate was padlocked on the day of the incident. Mr and Mrs Van Meyeren testified that the gate was locked with two padlocks at all times. It was alleged that the gate had been opened by a possible intruder. The Defendant denied that his dogs were responsible for the attack and if they had been, it was because an intruder had broken open the gates to the garden where the dogs were kept. He denied liability and negligence. Eventually, the Defendant agreed that the dogs were his and that they had acted contra naturam sui generis.

The court had to decide whether the fact that the gate had allegedly been opened and left open by an intruder could constitute an exception to liability in terms of the actio de pauperie remedy.

The Defendant relied on the second of the two defences which was set out in Lever v Purdy 1993 (3) SA 17 (A). The defendant stated that the negligence on the part of the alleged intruder who left the gates open but was not in control of the animals would be sufficient to bring the so-called “wider” exception as a complete defence against the actio de pauperie.

The court held that the alleged intruder did not have a responsibility to Mr van Meyerenin in relation to his dogs. The alleged intruder did nothing in relation to the dogs. He/she interfered with the locks on the gate allowing the dogs to go into the street and attack Mr Cloete. The responsibility for the dogs did not pass from Mr van Meyeren to the alleged intruder. It still resided squarely with him as the owner of the dogs. Mr Van Meyeren’s appeal was dismissed.

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As dog owners we love our dogs and we consider them to be part of our family, therefore, it is crucial for their safety to ensure that we understand the responsibility that comes with owning a dog.

Please note that the information provided in this blog post is general in nature and should not be construed as legal advice. For specific legal guidance, we encourage you to reach out to our team of experienced attorneys.

 

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