When harm has been caused by an animal belonging to or under the control of someone, the owner or possessor may be held delictually liable under the following actions:

• Aquilian action;
• Pauperien action;
• Quasi pauperien action;
• Edict concerning wild animals (Edictum de feris);
• Harm caused by grazing animals (Actio de pastu); and
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Aquilian action

If the owner or controller of an animal has intentionally used his animal to cause harm (e.g. he sets his ferocious dog on a person) or has negligently allowed his animal to cause harm (e.g. he negligently fails to control his ferocious dog and it bites someone on a public street), D will be liable for patrimonial loss caused in this way.

This action applies to all types of animals (i.e. domesticated and wild) and the usual basis of the action is a negligent omission properly to control an animal when it was reasonably foreseeable that such failure to control that particular animal would result in harm to P or his property.

In Wallman v Leathes 1969 (2) RLR 80 (G) dogs chased a motor cyclist and the cyclist was knocked off his cycle and sustained serious injuries. He was awarded damages based on the negligence of the owner of the dogs.

In Portwood v Svamvur 1970 (1) RLR 225 (A); 1970 (4) SA 9 (RA) a dog was caught in a fence. P tried to rescue the animal and was bitten. The court awarded damages against the owner of the dog under the Aquilian action. It found that the dog was a savage dog and the owner ought to have foreseen that it might bite an innocent person.The court held that the fact of the dog getting caught in the fence could not here be regarded as a novus actus interveniens breaking the chain of causation: it was an immaterial event in the chain of causation, i.e. simply one of an infinite variety of situations which might cause a dog with a savage nature to bite an innocent person. The plaintiff's action in trying to release the dog could not be regarded as wholly unreasonable in the circumstances, that the defendant had not proved that the plaintiff had been guilty of contributory negligence. (The court did not decide on the alterative claim by the plaintiff under the pauperien action.)

In Bristow v Lycett 1971 (2) RLR 206 (A) at a game park an elderly woman was knocked down and injured by a baby elephant which was seeking sweets. An employee had been negligent in assuring the woman that it was safe to alight from her vehicle. He was also negligent in leaving the baby elephant unattended and going to rest under a tree. The owners of the game park were liable to pay damages to the injured woman.

In Rocky Lodge Ltd v Livie 1977 (1) RLR 218 (A) P drove into a cow that had strayed onto the road. D had taken precautions to prevent this from happening such as fencing his property and stationing an employee along the fence. It had not been proven that D had been negligent.

In Wynne v Jones GS-202-79 a bull had attacked some persons. The question was whether there had been negligence on the part of the owner of the bull.

Pauperien action (domesticated animals)

The action

This action lies only against the person who was the owner of the animal at the time the injury was inflicted. It does not lie against a possessor or controller who is not the owner.

For this action to succeed, P must prove:

• D was the owner of the animal when the harm was inflicted;
• The animal that inflicted the harm was a domestic animal;
• P was lawfully present at the location where the harm was inflicted;
• The animal acted contrary to the nature of its species.

The major advantage of this action is that it is astrict liability action in the sense that it does not require that the owner of the animal was at fault. P does not have to prove that the owner intentionally or negligently caused the harm. All that has to be proved is that the animal was a domesticated animal that had acted contrary to the nature of its species (contra naturam sui generis). By this is meant that it must be established that the animal acted contrary to the species of domesticated animals generally (rather than contrary to the nature of that particular animal or class of animals). Domesticated animals are assumed to be under the control of man and therefore it is contrary to the nature of their species of domesticated animals for such animals to inflict harm upon man. If, without any provocation, a dog bites a person or an ox gores a person or a horse kicks a person, it is assumed that it is acting from some inner wildness or viciousness and contra naturam sui generis. On the other hand, it is in accordance with the nature of the species for cattle to graze grass or a horse which has been caused pain to kick out.

The justification for making the owner of the animal strictly liable for harm caused by the animal seems to be that by keeping the animal the owner creates the risk that the animal may cause harm and it is appropriate that the owner compensates the injured person when his or her animal causes such harm.

Defences

Under this action, liability is not absolute. Apart from the defence that the animal in question was not acting contrary to the nature of its species, the following defences can be raised:

• the harm resulted from a vis major or casus fortuitus, e.g. a horse has kicked another horse and the second horse has kicked out in pain causing injuries to a person;
• the injured party was to blame for his own injuries, e.g. P provoked the animal into attacking him;
• a third party was to blame for P’s injuries, e.g. a third party provoked the animal into attacking P;
• the injured party was unlawfully present at the place where he sustained the injury, e.g. P was a trespasser.

In Odendaal v Inn on the Ruparara 2006 (1) ZLR 1 (H) P was severely injured when a horse she had hired from the hotel to go riding bolted and P was injured when she hit her head on a tree as the horse was bolting. The horse, which was a docile, well-behavedanimal, had bolted after being frightened, possibly by a wild animal or the scent of a wild animal. There was no liability as the animal was not acting from inward excitement or vice but on the basis of an external stimulus. It was therefore not acting contrary to the nature of its species. An action based on negligence was also not viable as there had been no fault on the part of the owner of the animal. (The court also found that the defence of voluntary assumption of risk was available as guests who wanted to ride were warned that they rode at their own risk and they agreed to assume the risk.)

In Joyce v Venter 1979 RLR 478 (GD) a fierce watchdog trained to attack intruders had bitten P. The pauperien action did not apply to injury caused by a dog which had been trained to behave fiercely as a guard dog. The pauperien action had as its premise that domestic animals have been under the influence of mankind for a long time and therefore a minimum standard of good behaviour is expected of them. This cannot apply to a dog that has been trained to behave fiercely. P was aware that the dog was fierce. He had been warned to stay in the car but had got out of the car believing that the dog had been locked up. The question arose as to whether there was liability of the owner of the dog based on the Aquilian action.

In Da Silva v Otto 1986 (3) SA 538 (T) a dog had run out of some premises and had attacked P’s dog. P had whipped the dog in order to protect his own dog. The dog had then attacked him and bitten him. P was entitled to recover damages.

See also Wallman v Leathes 1969 (2) RLR 80 (G.)

In Purdy v Lever 1991 (3) SA 431 (T) D1 was out of the country. D2 was left in occupation of D’s residence and had control over D1’s dog whilst D1 was away. D2 asked P to come to the house to adjust the TV and video. He told P about the dog but promised to lock up the dog before P arrived. P came at the agreed time. The dog had not been locked up and when P approached the gate he was attacked by the dog and was severely injured. P sued DI as owner of the animal under the pauperien action and D2 under the Aquilian action for negligent failure to control the animal. P reached a settlement with D2 but proceeded with his pauperien action against D1. The court decided that the negligence of the D2 did not provide a defence to D1. However, it might have been possible for D1 to argue that D2 was a concurrent wrongdoer and that D1 could claim a contribution from D2 based upon his contributory negligence in the causing of the damage to P.

See also O’Callaghan NO v Chaplin 1927 AD 310; SA Railways and Harbours v Edwards 1930 AD 3.

Quasi-pauperien action (wild animals)

This action can be brought when a wild animal kept in captivity causes harm. It can be brought only against the owner of the animal at the time the harm was inflicted.

Unlike the Pauperien action, this action can be brought when the animal was actingin accordance with the nature of its species because a wild animal cannot be acting contrary to the species of wild animals if it inflicts harm on man. This action will apply even if the wild animal has been reduced to a state of semi-domesticity and even if the animal was not acting with ferocious intent.

The defences which can be raised to this action, being as it is, a sub-species of the Pauperien action, are the same as those maintainable to a Pauperien action except that it is no defence that the animal was acting in accordance with the nature of its species.

The following are defences to this delict: Vis major or casus fortuitus, or P or the third party was to blame for the incident or P was unlawfully at place).

Edict concerning wild animals (Edictum de feris)

This is a Roman law action still recognised in the modern law that makes any person who keeps a wild animal in the vicinity of a public place strictly liable if the animal causes injury.

It would seem that the defences that can be raised to a Pauperien action are also maintainable in respect of this action.

Harm caused by grazing animals (Actio de Pastu)

This is a strict liability action which can be brought when damage is caused by D’s animals (usually cattle, sheep or goats) straying onto Ps land and causing damage by grazing. The damage for which compensation can be sought under this action includes not only damage to pasture-land caused by grazing the grass, but also damage caused by the trampling by the animals of standing crops and other plants and shrubs.

In the case of Bwanya v Matanda 2000 (1) 546 (H)the court held that the actio de pastu remains part of our law and has not fallen into disuse. If one person’s animals stray onto another person’s land and cause damage by grazing or trampling crops, the actio de pastu is available to the owner of land against the owner of the animals for the damage caused by them.

In Monteiro v Brown HH-291-83 D’s cattle had broken through a fence surrounding a stack of maize and had caused damage to the maize. The claim in this case could have been based on the actio de pastu.

See also Stegman Bros Ltd v Nassan Ranch (Pvt) Ltd GS-32-79; Potgieter v Smit 1982 (2) SA 690 (D).

The defences that can be raised to this action are dealt with in the Bwanyacase. Where there was fault on the part of the injured party there would be a complete or partial defence, as where the injured party had failed to maintain a fence or had let the animals in. It is also a defence that the straying was brought about by a deliberate act on the part of a third party as, for instance, where the third party deliberately cuts the fence thereby allowing the animals to stray onto someone else’s land. Vis major would be a defence only in limited circumstances, as where the animal is directly motivated by the vis major and did not act of its own volition. Vis major would not be a defence where, for instance, lightning struck a fence knocking it down and the animal discovered the gap in the fence and, of its own volition, moved onto the adjoining property and caused harm. In such a case, the owner of the animal would remain liable. See van Zyl v van Biljon 1987 (2) SA 372 (O).

The legislative machinery dealing with the impounding (pending the payment of compensation for damage) of straying animals is contained in s 9 of the Animal Health Act [Chapter 19:01].

Nuisance

Under the common law, an action can be brought against another who allows his animals to cause a nuisance. If patrimonial loss has been caused then damages can be claimed; if no patrimonial loss has resulted then the remedy for a continuing nuisance, such as barking dogs causing disturbances, is that of an interdict.

In addition to the common law, there are a variety of regulatory offences in terms of which penalties can be imposed for causing a nuisance by, for instance, allowing dogs to bark continuously thereby causing a nuisance.

Cattle and other animals on rural roads

A problem that has come up repeatedly in the cases is that which arises when cattle or other livestock wander on the roads and persons driving on the roads are in collision with them. The duties of the driver to guard against hitting these animals and the duties of the owners of the livestock or persons in control of them (such as herders) are set out in the cases listed below.

See White Line Trucks v Cilliers A-175-72; E B Ranchers v Bus Service A-18-76; Rocky Lodge (Pvt) Ltd v Livie 1977 (1) RLR 218 (A); Ure v Jordan GS-144-78; Beattie v United Refineries (Pvt) Ltd A-130-80; Viriri v Wellesley Estates 1982 (1) ZLR 200 (S);1982 (4) SA 308 (ZS); P Hall & Co (Pvt) Ltd v Kennedy HB-79-84; Pachirera v Whartley HH-32-89.

Table showing different actions that can be brought in respect of harm caused by animals: