THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 636/2019

In the matter between:

CHRISTIAAN JACOBUS VAN MEYEREN
APPELLANT
and
GERALD CLOETE

RESPONDENT

Neutral citation: Van Meyeren v Cloete (636/2019) [2020] ZASCA 100
(11 September 2020)
Coram:
CACHALIA,
WALLIS
and
MOCUMIE
JJA
and
LEDWABA and WEINER AJJA

Heard:
2 September 2020
Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 11 September 2020.

Summary: Actio de pauperie – defences – whether to be extended to
include negligence of a third party not in control of animal – no extension
justified.

ORDER

On appeal from: Eastern Cape Division of the High Court, Port
Elizabeth (Lowe J, sitting as court of first instance):
The appeal is dismissed with costs, such costs to include the costs
consequent upon the employment of two counsel.

JUDGMENT

Wallis JA (Cachalia and Mocumie JJA and Ledwaba and Weiner
AJJA concurring)

[1] At about 3.00 pm on Saturday, 18 February 2017, the respondent,
Mr Cloete, an itinerant gardener and refuse collector, was on his way to
the shops pulling the trolley in which he collects refuse down
Rowan Street in Rowallan Park, Port Elizabeth, after completing a job.
For no reason, and without any warning, he was attacked by three dogs
owned by the appellant, Mr van Meyeren. The dogs were cross-breeds,
with a significant component of pit bull terrier. They savaged Mr Cloete
to such an extent that neighbours who came to the scene thought he was
dead. He survived, but his left arm was amputated as a result of his
injuries. The present action is to recover damages from Mr van Meyeren.

[2] Mr Cloete’s claim was pleaded under the actio de pauperie and, in
the alternative, in negligence. The parties agreed to separate the issue of
liability from quantum and the trial was heard before Lowe J in the
Eastern Cape Division of the High Court, Port Elizabeth. He upheld

Mr Cloete’s claim and granted a declaratory order and costs. Leave to
appeal was refused but granted on application to this court.

The facts
[3] These can be taken largely from the judge's summary. Mr Cloete
was in Rowan Street minding his own business. As he passed
Mr van Meyeren’s home he heard the sound of the dogs behind him and
was then attacked and pulled to the ground. He had done nothing
whatsoever to cause or provoke the attack and was lawfully present at the
place where it occurred. He was unable to ward off the dogs, but a passer-
by, Mr van Schalkwyk, fought the dogs off him and chased them away,
while help was sent for. Ultimately the dogs also attacked Mr van
Schalkwyk. They were finally chased away by the police firing shots at
them.

[4] The three dogs rejoiced in the names Mischka, Zeus and Coco.
Mischka was the mother of the other two, but all three were fully grown.
Mr van Meyeren described them as housedogs that had the run of his
home and garden and at night slept on his son’s bed. The garden could be
accessed from the street through the front door of the house, a gate
adjacent to the garages and, potentially at least, another gate adjacent and
at right angles to the front door. It was through the latter gate that the
dogs gained access to Rowan Street before the attack. Photographs taken
after the attack show the one half of the gate open.

[5] Mr van Meyeren had been away from home in Sunday’s River
since the previous Wednesday and Mrs van Meyeren had gone to a family
party. Their son and his girlfriend, Ms Meyer, were there on Saturday

morning, but were out at the time, Ms Meyer having been the last to leave
shortly before two in the afternoon to attend the same party as
Mrs van Meyeren.

[6] Mr and Mrs van Meyeren testified that the gate through which the
dogs escaped was customarily kept closed and locked with two padlocks.
Mrs van Meyeren said that, if her husband needed to open it, he would
simply lift it off its hinges. Be that as it may, the photographs taken on
the day of the incident showed that the one half of the gate (the left hand
side when viewed from inside the property) was open, while the right
hand half appeared to be shut and closed by a bolt located on the pillar of
the central frame and fastened into a socket in the ground. None of these
photographs showed any padlocks or other fastenings for the gates.

[7] A close-up photograph, said by Mr van Meyeren to have been
taken on the following Monday, showed the lower half of a gate with a
bolt held in place by two heavily rusted padlocks. The shackle of one of
these was bent inwards so that it could not close and the other one
apparently did not lock, although the reason for this was not explained. It
could be shut, but could simply be pulled open. Both locks were open in
the photograph. The gate was constructed from unpainted circular tubular
steel, with a single bolt on the left hand side when looking outwards from
the inside of the property. The bolt had a long elliptical shackle at the top
that fitted over an eye attached to the central gate post on the right hand
side of the gate. Like the padlocks, both the shackle and the eye were
heavily rusted. The padlocks were hooked through the eye. The indication
was that the bolt fitted into a socket in the ground. A tubular steel bar
crossed the gate about half way up roughly level with the bolt. The one

vertical bar shown in the lower section of the gate was covered with
chicken wire, but neither it nor the chicken wire extended above the cross
bar.

[8] Mr van Meyeren’s photograph was difficult to reconcile with the
photographs on the day of the incident. None of the features appearing
from his photograph were visible on the photographs taken on the
Saturday, although counsel said he could see them on his copy of the
photographs. Even the bolt holding the one half of the gate closed in the
Saturday photograph appeared to be in the reverse position to that in
Mr van Meyeren’s photograph. A more careful exploration of the factual
position in regard to the gates and padlocks should have been undertaken
at the trial in order to resolve these issues.

[9] There are other difficulties with the suggestion that the padlocks
shown in Mr van Meyeren’s photographs were in position, locked and
holding the gates closed when he and his wife left the property on the
Wednesday and Friday respectively before this incident. The shackle of
the one padlock was so bent that it could not fit into the locking hole of
the padlock. It is difficult to conceive of how any interference with it
could have left it in that situation. Mr van Meyeren was asked how this
could have happened and said he did not know. The extent of the
corrosion and rust on the shackle suggested that it had been in that
condition for some time. As to the other padlock there was no explanation
for it not remaining locked when closed. It too was extensively rusted and
corroded and did not appear to have been closed for some time. But, if it
could close, there was no explanation for it not remaining closed.

[10] All this bore upon the acceptability of Mr van Meyeren’s
explanation of how the dogs came to escape from the property through
gates that were securely locked. The explanation was entirely a matter of
speculation. Its only evidential base was the claim by him and his wife
that the gate was locked with these two padlocks when they left the
property, although they did not say that they had checked the two
padlocks. Based on their having been closed and locked, Mr van Meyeren
said that an unknown intruder must have attempted to gain access to the
property via the gates and in doing so damaged the two padlocks in the
manner shown. In turn this enabled the dogs to escape, either because the
gate was left open or because it enabled the dogs to open it.

[11]  How a potential intruder could have done this through the chicken
wire and without attracting the attention of the dogs, which were not
afraid to be aggressive as subsequent events were to prove, is a mystery.
Ms Meyer said in her evidence that she saw the dogs there as she left the
house. Why would they not have confronted an intruder? Why would the
intruder force open these gates which did not lead into the house, instead
of the front door? Ms Meyer said that the front door was ‘broken open’
when she arrived home, but in the photographs the front door is shown
closed and apparently undamaged. Having forced open the gates, why did
the intruder not carry on inside instead of disappearing? Had the intruder
taken fright because of the dogs, one would have expected either that the
dogs would have attacked the intruder, or that someone would have seen
them fleeing the scene. Mr Cloete said that he did not see anyone else
walking in the street. Nor did he hear anything unusual. Other than an
endeavour to suggest that he was intoxicated at the time this was not
challenged. If the gates were opened as a result of some endeavour by an

unidentified person to intrude it was remarkable that this occurred
without the dogs being alerted and without anyone seeing the intruder.

[12] The intruder explanation also posed difficulties with the time line
of events. Ms Meyer left the property at about 2.00 pm and the incident
occurred at about 3.00 pm. During the intervening period a neighbour,
Mr Visser, from 39 Rowan Street, went to borrow a tool from
Mr van Meyeren at 28 Rowan Street and observed that the gates were
closed. He knocked on the front door, but received no response. There
was no suggestion that as he crossed the road from his own house a
possible intruder was seen by him leaving the vicinity. When he
discovered that Mr van Meyeren was not home he went back down the
road to his own home and spoke to his father. He then came out again and
went to the home of another witness Mrs van der Merwe who lived at
41 Rowan Street. There he obtained the tool that he was seeking and
returned home. As he started work on his car he heard a commotion in the
street and went to investigate. He found Mr Cloete lying injured in the
road. Other neighbours had come out to see what caused the commotion.
The three dogs were further down the road. At most a few minutes had
passed since he was in the road. However, there was no suggestion that
anyone who might have been the supposed intruder was about and when
he had gone to the Van Meyeren home the gate was still shut. No
neighbour came forward to say they had seen some other person in the
street. How then did an intruder manage to open the gate, or least break
both padlocks, within what was at most a few minutes and then vanish? If

there was an intruder he appears to have been as elusive as the Scarlet
Pimpernel.1

[12] Notwithstanding these difficulties and the fact that neither
Mr van Meyeren nor his wife were impressive witnesses, the judge said
that he was unable on the probabilities to reject the evidence that the
gates had been locked and that they must have been broken open by an
intruder. In doing so he was particularly influenced by his view that,
given crime statistics in urban areas, gates accessing a road are usually
kept locked. This was not something of which he could properly take
judicial notice. Nor was his view supported by the fact that three large
and potentially dangerous dogs were being kept from the road by the very
same gates. The fact that there were large and potentially dangerous dogs
roaming the garden could equally well conduce to a lack of concern to
lock the gates in the belief that the dogs would protect against intruders.

[13] The approach to this unsatisfactory and speculative evidence was
incorrect. It overlooked the fact that the onus of proof rested on
Mr van Meyeren. There is no obligation on a court to accept an
improbable explanation of events merely because no other positive
explanation is proffered, or the alternative seems to the judge even less
probable.2 There were at least two possibilities. The one was that the

1 Baroness Orczy The Scarlet Pimpernel Chapter 12.
2 Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712 (HL). In that case a ship sank in
calm waters and fair weather. At the trial two alternative explanations were proffered for this, namely,
that it had struck a submarine object, or that its plates ruptured due to prolonged structural wear and
tear. The judge regarded the former as inherently improbable and the latter as virtually impossible and
found for the plaintiff. On appeal the House of Lords pointed out that there is no obligation on a court
faced with two improbable versions to select the least improbable. It is always open to it to hold that
the onus of proof has not been discharged. It rejected the notion that the court must follow Sherlock
Holmes’ dictum from The Sign of Four by Sir Arthur Conan Doyle that ‘when you have eliminated the
impossible, whatever remains, however improbable, must be the truth.’ The issue is not which of

gates were insufficiently secured to keep the dogs inside the Van
Meyeren property. The other was the Van Meyerens’ explanation that
there must have been an intruder. The fact that the judge did not feel able
to reject their evidence did not mean that he was obliged to accept it. The
issue was whether on a balance of probabilities theirs was the only
explanation for the dogs escaping. Unless that conclusion could be
reached Mr van Meyeren did not discharge the onus of proof and the
defence should have failed.

[14] Mr van der Linde SC, who appeared in this court for Mr Cloete,
but not at the trial, said he was arguing the appeal on the basis of the
judge's factual findings. It is accordingly necessary, notwithstanding my
qualms about the premise of the hypothetical intruder, to determine
whether the judge was correct that these did not constitute a defence to
the pauperien action.

The actio de pauperie
[15]  I trust legal historians will forgive me for not commencing the
discussion by going back to the roots of the actio de pauperie in the Law
of the Twelve Tables and the relevant passages in the Digest of Justinian.
I refrain from doing so not simply because this has become overworked
terrain,3 but because the task was undertaken by this court in
O’Callaghan NO v Chaplin,4 where Innes CJ (with whom De Villiers JA

several possibilities is the least unlikely, but whether any one of them is on a balance of probabilities
the correct one. Datec Electonics Holdings Ltd and Others v United Parcel Services Ltd [2007] UKHL
23; [2007] 2 Lloyd's Rep 114 (HL) paras 48 and 50.
3 Loriza Brahman and Another v Dippenaar 2002 (2) SA 477 (SCA) (Loriza Brahman) para 12.
4 O’Callaghan NO v Chaplin 1927 AD 310.

concurred) in his customary lucid fashion, summarised the law as
follows:5
‘By our law, therefore, the owner of a dog, that attacks a person who was lawfully at
the place where he was injured, and who neither provoked the attack nor by his
negligence contributed to his own injury, is liable, as owner, to make good the
resulting damage. The same principle applies to injuries inflicted by a dog on another
animal, and to injuries inflicted by any animals falling within the operation of the
pauperien law. It is confined of course to cases where liability is based upon
ownership alone. Actions may be founded under appropriate circumstances on culpa,
and they will be governed by the ordinary rules regulating Aquilian procedure. The
conclusion is satisfactory for two reasons especially. In the first place it provides a
remedy in cases where otherwise persons injured would be remediless. Instances must
occur where a dog, a bull or other domesticated animal inflicts damage under
circumstances which make it impossible to bring home negligence to the owner. Yet
of two such persons it is right that the owner, and not the innocent sufferer, should
bear the loss. And in the second place the adoption of culpa as the sole basis of
liability would inevitably lead us towards the scienter test . . . which it is common
cause is not the test which our law applies in cases of this kind.’

[16] The reference to the scienter test was a reference to the doctrine of
the English common law that strict liability follows the owner of an
animal if the owner was aware of the animal’s proclivity to engage in the
conduct that caused the harm. Thus if an owner was aware of their dog’s
tendency to bite people, the owner would be liable if the dog bit someone.
In the result it is sometimes referred to as 'the one free bite' rule. If the
owner was aware that the dog has a tendency to chase cyclists and the
dog chases a cyclist causing them to fall off their bicycle and injure

5  O’Callaghan NO v Chaplin at 329-330.

themselves, the owner will be liable.6 In South Africa there is no such
requirement and strict liability is imposed on the owner of the animal.

[17] In a clear statement of the policy justification for the continued
existence of the pauperien action, notwithstanding that the original
provision of the Roman Law that an owner could discharge their liability
under the action by surrendering the offending animal to the injured
party7 had fallen into desuetude, Kotzé JA (with whom Stratford AJA
concurred) arrived at the same conclusion as the Chief Justice, and said:8
‘It is satisfactory to find that the actio de pauperie still forms part of our law . . . I
think the conclusion is a sound one and just, for if a man chooses to keep an animal,
and injury or damage is caused by it to an innocent person, he must make adequate
compensation. The owner of the animal and not the person injured must bear the loss.’

[18] Three years later De Villiers JA, giving the judgment in SAR & H v
Edwards9 said:
‘The action lies against the owner in respect of harm (pauperies) done by
domesticated animals . . . if the animal does damage from inward excitement or, as it
is also called, from vice, it is said to act contra naturam sui generis; its behaviour is
not considered such as is usual with a well-behaved animal of the kind.’
The endeavour in Loriza Brahman to persuade this court to abolish the
pauperien action failed.

6 Gallant v Slootweg 2014 BCSC 1579. For a full treatment of the doctrine see the working paper of the
Law Reform Commission, Ireland on Civil Liability for Animals, chapter 2, available at
https://publications.lawreform.ie/Portal/External/en-GB/RecordView/Index/30539.
The
rule
was
sufficiently problematic that various statutes were passed in Ireland, England and Scotland in the
1800's to impose liability apart from the common law. See Le Roux and others v Fick [1879] 9 Buch 29
(Le Roux v Fick) at 34-35.
7 This was called noxal surrender.
8 O’Callaghan NO v Chaplin at 365-366.
9 South African Railways and Harbours v Edwards 1930 AD 3 at 9-10.

[19] An element of anthropomorphism underlies the pauperien action. It
attributes to domesticated animals the self-constraints that are generally
associated with human beings and attaches strict liability to the owner on
the basis of the animal having acted from internal vice. As De Villiers JA
said:
‘Dating back as this form of remedy does to the most primitive times, the idea
underlying the actio de pauperie, an idea which is still at the root of the action was to
render the owner liable only in cases where so to speak the fault lay with the animal.
In other words for the owner to be liable, there must be something equivalent to culpa
in the conduct of the animal.’
This anthropomorphism is reflected in the concept of the animal acting
contra naturam sui generis. That is well described as follows:10
‘The contra naturam concept seems, in fact, to have come to connote ferocious
conduct contrary to the gentle behaviour normally expected of domestic animals. This
imports an objective standard suited to humans. It is far more refined than behaviour
literally natural to that species of animal. It is what Voet, 9.1.4, means when he
speaks of animalia mansueta feritatem assumunt.’
If the conduct of the animal that caused the harm was due to its being
frightened, or in pain, or provoked and it acted as any animal would in the
circumstances, then it has not acted contra naturam and the owner is not
liable.11 The onus of establishing this rests on the owner of the animal. 12

10 P M A Hunt 'Bad Dogs' (1962) 79 SALJ 326 at 328 quoted in Solomon and Another NNO v De Waal
1972 (1) SA 575 (A) at 582A-C.
11 In Loriza Brahman para 19 Olivier JA expressed this as follows:
‘As die skadestigtende optrede egter veroorsaak is omdat die dier skrikgemaak is, of leed of pyn
aangedoen is of geprovokeer is, dan is die optrede nie contra naturam nie, maar juis ooreenkomstig die
aard van 'n dier omdat alle diere so sal optree; en is daar geen aanspreeklikheid nie.’
‘If the harm-causing occurrence was truly caused because the animal was frightened, or is suffering or
in pain, or was provoked, then the occurrence was not contra naturam, but accords with the way in
which all animals would behave and there is no liability.’(My translation.)
See by way of example Cowell v Friedman & Co 5 HCG 22.
12 Da Silva v Coetzee 1970 (3) SA 603 (T) at 604A-B approved in Loriza Brahman para 20.

[20] In O'Callaghan NO v Chaplin two circumstances were identified in
which the owner would not be liable. The first was where the injured
party was in a place where they were not entitled to be. The obvious
example would be that of a housebreaker bitten by a watch dog. Another
would be where the animal was chained to restrain it and the injured party
ventured within reach. However, in general, if the harm occurred in a
public place, such as a public street, the owner would be liable.13 The
second exception was the relatively obvious one where the injured party
or a third party provoked the attack by goading or provoking the animal.
The application of these defences where children are involved may create
problems, for example, where a child enters a neighbouring garden to
retrieve a lost ball, or where one child teases a dog and the dog bites
another child. I would also be hesitant to say that the homeowner was free
from liability because the intruder was in the wrong place, if a watchdog
savaged the intruder in the way these three dogs savaged Mr Cloete.
However, these problems do not arise in this case and can be left for
consideration when such a case arises.
The exception to pauperien liability in Lever v Purdy
[21] That brief outline of the pauperien action in South African law
brings me to the decision of this court in Lever v Purdy,14 a dog bite case,
where a third exception was recognised to the strict liability of the owner
of a domestic animal. It is best to start with its facts. Mr Lever was the
owner of a dog that bit Mr Purdy. At the time of the incident Mr Lever
was overseas and Mr Cohen was living in his home and looking after Mr
Lever's admittedly vicious dog. At Mr Cohen’s request Mr Purdy came to
the house to adjust a television set. He was told about the dog and asked

13 Le Roux v Fick; Solomon and Another NNO v De Waal ibid at 582C-F.
14 Lever v Purdy 1993 (3) SA 17 (A).

Mr Cohen to lock it away before his arrival. Mr Cohen did not do so.
When Mr Purdy reached the house at between 6:30 pm and 7:00 pm he
walked up the path, put his hand on the gate and shouted for Mr Cohen.
At this point the dog suddenly appeared and bit him, pulling him through
the gate. When Mr Cohen emerged, he took control of the dog. After Mr
Lever’s return Mr Purdy sued him for damages.

[22] The question was whether Mr Lever could escape liability on the
grounds of Mr Cohen’s negligence, even though he had not provoked the
dog to attack Mr Purdy.15 The court said that he could. In this case
Mr van Meyeren contended that the defence recognised in Lever v Purdy
should be extended to exempt the owner from liability for harm caused by
the animal where the harm would not have occurred but for the negligent
conduct of a third party, irrespective of whether the third party had the
custody or control of the animal. That requires in the first instance an
analysis of what was decided in Lever v Purdy. There were two
judgments, one by Joubert ACJ and another by Kumleben JA, both
reaching the same conclusion. I will analyse each in turn.
[23] Joubert ACJ, in the majority judgment, considered the Roman Law
of pauperien liability as contained in Justinian's Digest. Referring to
various texts in D 9.1 he dealt with those instances in which the culpable
conduct of a third party caused a domesticated animal to act contrary to
the nature of its class in injuring the victim, with the result that the
animal's owner was exempted from pauperien liability. These he divided
into two categories. The first category consisted of cases where the
culpable conduct of an outsider by way of some positive act, such as,

15 Lever v Purdy at 20H-I.

provoking, striking, wounding, scaring or annoying the animal, caused
the animal to inflict the injury upon the victim.16 The second category
related to those instances where  a third party, in charge or control of the
animal, by negligent conduct failed to prevent the animal from causing
harm to the victim.17 The difference between these two categories was
this. In the first category the positive act of the third party caused the
animal to injure the victim. In the second the third party's negligent
failure to prevent the animal from injuring the victim created the
opportunity for the animal to injure the victim, without causing it to do
so. In both cases the conduct of the third party attracted liability under the
Aquilian action and exonerated the owner from pauperien liability. After
a survey of the Roman-Dutch writers, Joubert ACJ concluded that their
law was the same as that set out in the Digest. As Mr Cohen's conduct fell
in the second category, Mr Lever was not liable to compensate Mr Purdy
for his injuries.

[24]  Kumleben JA adopted a different approach. He agreed that in the
first category of cases, where the third party incited or provoked the
animal to behave contra naturam sui generis by striking, wounding,
scaring or annoying it, the conduct of the third party caused the harm and
pauperien liability was excluded. He identified what he described as a
'wider exception'18 whether fault on the part of a third party causatively
contributing to the injury caused by the animal would also constitute a
defence. He illustrated this with the example of a visitor leaving a gate
open thereby enabling a vicious dog to escape and attack some innocent

16 Lever v Purdy at 21F-H.
17 Lever v Purdy at 21H-24B.
18 Lever v Purdy at 26F-I.

passer-by, suggesting that there was some authority in support of such a
defence.19 However, he added that this question did not need to be
decided as the only question in the case was whether the negligence of a
person to whom the owner had entrusted the custody and control of an
animal relieved the owner of pauperien liability.

[25] Neither judgment cited any clear authority in favour of the
existence of the exception. The closest to it was D 9.1.1.5 (a text by
Ulpian), which in Watson's translation reads:
‘Take the case of a dog which, while being taken out on a lead by someone, breaks
loose on account of its wildness and does some harm to someone else: If it could have
been better restrained by someone else or if it should never have been taken to that
particular place, this action will not lie and the person who had the dog on the lead
will be liable.’20
Joubert ACJ's judgment in Lever v Purdy was based solely on his reading
of these texts. In his view they showed that a person having the custody
or control of an animal, who through negligence failed to control it
resulting in it injuring the victim, was liable under the Aquilian action
and this constituted a defence exonerating the owner from pauperien
liability.21

19 Van Leeuwen Censura Forensis 1.5.13.1; Le Roux and Others v Fick op cit fn 15, Lawsa Vol 1, para
378.
20 Joubert ACJ also relied on Johannes Voet Commentarius ad Pandectas (Gane's translation) 9.1.6,
which is almost verbatim the same, namely:
‘Then again, if a dog, when he was being led by someone, escaped through his own rough temper and
did damage to somebody, or killed another person's sheep, hens or geese, and if he could have been
more firmly held in by another or ought not to have been led over such a spot, this action
on pauperies falls away but there is room for a beneficial Aquilian action against the leader.’
(Emphasis by Joubert ACJ). No regard appears to have been had to this in the case of Carelse v City of
Cape Town (Eksteen and another as third parties) [2019] 2 All SA 125 (WCC), where the owner of the
dog was held liable, even though the dog had been in the care of his son at the time.
21 Lever v Purdy at 25I-26A.

[26] Kumleben JA relied on the same authority as recognising the
exception. He accepted that a feature of pauperien strict liability was that
the owner was the source of risk to the injured party. However, the main
considerations influencing his conclusion that the exception existed
appear from the following passage:22
‘It must also be borne in mind that liability without fault runs counter to fundamental
legal precept, though in certain instances considerations of social policy no doubt
justify its existence. Where the owner of an animal has taken care to entrust it to
another as its custodian, the former has  ex hypothesi no means of exercising control
over it. Competing interests are plainly at stake. Should the owner in such a case be
held liable in the absence of any fault on his part or should the injured person be
restricted to an action against the negligent custodian? Dictates of fairness and justice,
to my mind, favour the owner and warrant the recognition of the exception in issue.’

A wider exception?
[27] Apart from the passing reference to the 'wider exception' at the
outset of Kumleben JA's judgment, nothing in Lever v Purdy provides
any support for the wider exception for which Mr van Meyeren
contended. Counsel referred us to various passages in Joubert ACJ's
judgment, but they all fell to be considered in the specific context,
reiterated several times, that he was concerned with a third party in
charge or control of the animal.23 They cannot be taken as shedding any
light on the present situation.

[28] The case of Le Roux v Fick hardly takes the matter further. The
owner of a dog was proceeding in a cart along a public road and his dog
was walking along the road with him. Some ostriches were grazing on a

22 Lever v Purdy at 29G-I.
23 See Lever v Purdy at 20H-I, 21F-I, 23H-J; 24B-C and E-F; 25D-G.

commonage beside the road and the dog, together with another one that
had attached itself to the party, chased the birds, causing one to fall into a
sluit and injure itself so badly that it died. After a full consideration of the
authorities Smith J said: 24
‘… an action de pauperie lay in all cases of damage caused by animals when the
damage was not brought about through the fault of the party using the animal or of
some third party’ (My emphasis.)
Those few words provide but slender support for the proposition that fault
on the part of a third party in circumstances such as the present case
exonerates the owner from liability.

[29] The passage from Van Leeuwen is likewise of little help. It reads:25
‘I said aut culpa hominis (or negligence on the part of a human being) because if there
is negligence on the part of the owner or of anyone else, this action lapses and a suit is
brought under the Lex Aquilia, for example if a mule does damage because of the
unevenness of the road, or the negligence of the muleteer, or because it was too
heavily loaded or was provoked by someone, or if the animal acted in some way on
account of human inexperience or negligence or when aroused by pain.’ (My
emphasis.)
The example of the muleteer is clearly not an example of the mule acting
contra naturam sui generis. Nor is the example of the animal being
aroused by pain.26 Provocation by the victim or a third party has always
been recognised as providing a defence. The reference to the animal
acting in a way caused by human inexperience or negligence is too vague
and general to be helpful.

24 Le Roux v Fick at 37.
25 Simon van Leeuwen, Censura Forensis 1.5.13.3 (translated by Margaret Hewett, 1991). There is no
corresponding passage in the discussion of pauperien liability in his Commentaries on Roman-Dutch
Law.
26 See Cowell v Friedman & Co, op cit, fn 13.

[30] The current edition of Lawsa is inconsistent on the subject. When
dealing generally with the defences available to the owner of an animal
sued under the action de pauperie it says that culpable conduct on the
part of a third party avoids liability. However, in the section dealing with
fault on the part of a third party it goes no further than Lever v Purdy,
without suggesting that the exception in that case should be extended.27 In
the first edition cited by Kumleben J the author gave two examples of
negligent conduct by a third party exonerating the owner from liability.
The one was where the third party provoked or injured the animal and the
other where a person having control of the animal was negligent. Neither
supported an exception from liability extending any further than that
recognised in Lever v Purdy.

[31] At best it seems to me that these rather cryptic references in and to
the old writers on the Roman-Dutch law provide no clear authority in
favour of extending an owner's exemption from liability for harm caused
by their animal to instances where a third party's negligence is involved
without the third party having the custody or control of the animal. Voet28
mentions one example that appears to be inconsistent with the extension.
He said that where A is persuaded by B's fraud to approach a horse that B
knows is apt to kick, and A is kicked even though B did not provoke the
horse, A's action is correctly brought against the owner on pauperies,
although B may also be sued. But overall any development of the
principles governing pauperien liability and the defences available to an
owner is best sought in modern principles and circumstances, rather than

27 LAWSA Vol 1 (3 ed, 2013) per C G van der Merwe and M A Rabie, paras 407 and 410. The first of
these paragraphs was cited in the heads of argument, but not the second.
28 Voet 9.1.5, Gane's translation, Vol 2, pp 539-540.

obscure references to ambiguous authorities drawn from a different era in
a very different society.

[32] Mr van Meyeren wished us to develop the common law by
extending the exception to liability under the pauperien action recognised
by this court in Lever v Purdy. This is a power vested in the high court,
this court and the Constitutional Court by s 173 of the Constitution. It is
to be exercised in accordance with the interests of justice. When
exercising the power, we are enjoined by s 39(2) of the Constitution to
promote the spirit, purport and objects of the Bill of Rights. Before
adopting any development it is incumbent on a court to (a) determine
exactly what the common law position is; (b) then consider the
underlying reasons for it; and (c) enquire whether the rule offends the
spirit, purport and object of the Bill of Rights and thus requires
development.  Furthermore, it must (d) consider precisely how the
common law could be amended; and (e) take into account the wider
consequences of the proposed change on that area of law.29

[33] The underlying reason for the existence of the actio de pauperie is
that as between the owner of an animal and the innocent victim of harm
caused by the animal, it is appropriate for the owner to bear the
responsibility for that harm. Dekker, in a note to the passage from Van
Leeuwen's Commentaries dealing with the actio de pauperie, said:30
‘… there is no absurdity in obliging him to make compensation whose animal has
caused the damage, or who has excited and goaded it on to the damage of another …’.

29 Mighty Solutions (Pty) Ltd t/a Orlando Service Station v Engen Petroleum Ltd and Another [2015]
ZACC 34; 2016 (1) SA 621 (CC) para 38.
30 Van Leeuwen's Commentaries on Roman-Dutch Law 3.39.5 and 3.39.6 in the edition revised and
edited by Decker (Kotzé's translation, 1923) Vol 2, pp 319-320 fn (c).

This rationale is almost precisely the same as that of Innes CJ and
Kotzé JA in O'Callaghan NO v Chaplin, namely that, in general,
ownership of an animal should carry with it strict liability for any harm
done by the animal. In other countries, hampered by the English common
law scienter rule, that position has been enshrined in statute for nearly
two centuries.

[34] Counsel for Mr van Meyeren said that he did not rely on any
specific provision of the Bill of Rights. He did not suggest that the
existing more limited exceptions offended the spirit, purport and objects
of the Bill of Rights. In that he was correct because the only relevant
provisions of the Bill of Rights point in the opposite direction. They are
the right to bodily integrity in s 12(2), the right to dignity in s 10 and, as
the facts of this case demonstrate, the right to life in s 11. These are the
rights that the actio exists to protect and it is right that we prefer to
develop the actio in ways that afford protection to them.

[35] Counsel submitted that given the level of crime in South Africa
people are entitled to protect their persons and homes against criminals.31
That is a proposition that would be uncontroversial even were the crime
level lower. He went on to submit that not all the population can afford to
live in gated and secure estates, or to install state of the art alarm systems.
They may be compelled to rely on their dogs to guard their homes against
criminals. Thus far the submission cannot be faulted, subject to the
reservation mentioned earlier as to the degree of harm that a dog may do
to an intruder. Deterrence or restraint of an intruder is one thing. Killing

31 Dorland and Another v Smits 2002 (5) SA 374 (C) at 384.

or seriously injuring them is another. Only in extreme circumstances is it
permissible to shoot and kill an intruder in self-defence. Why then should
it be permissible to keep a dog that, irrespective of the level of threat,
may kill or maim them? Innes CJ spoke only of a trespasser being bitten
by a watchdog.32 However, that question does not need to be answered in
this case.

[36] The problem arises at the next stage of the argument. These dogs
did not harm an intruder in their owner's home or premises, within
whatever limits may be permissible in law. They escaped from the
premises and attacked an innocent passer-by. However extensive may be
the right to keep dogs for protection in the home, it is irrelevant to cases
where the dog causes harm outside the home. Mr van Meyeren does not
dispute that the requirements of pauperien liability were satisfied. He
sought to escape liability on the basis that what occurred here was not his
fault. But absence of fault has never been a basis for avoiding pauperien
liability. It proceeds on the basis of strict liability arising from ownership
of the animal that caused the harm. Absence of fault is a ground for
resisting Aquilian liability, not a claim under the actio.

[37]  Where the actions of the victim or third parties are held to
exonerate the owner of an animal from pauperien liability, it is because
those actions directly caused the incident in which the victim was harmed
in circumstances where the owner could not prevent that harm from
occurring. That is why provocation of the animal by the victim or a third
party exonerates the owner. It is also why in Lever v Purdy the negligent

32 O’Callaghan NO v Chaplin at 329.

failure by a third party to control an animal in their custody and under
their control exonerated the owner. The result in that case would have
been no different if Mr Lever had placed the dog in kennels for the
duration of his absence. These causes are not extrinsic to the conduct that
caused the harm. They are directly linked to it. An extrinsic cause such as
leaving a gate open and allowing animals to escape from the owner's
property has nothing to do with the behaviour of those animals once they
have escaped. If they are naturally vicious or dangerous, as appears to
have been the case with the dogs in this case, that merely creates a wider
opportunity for that characteristic to manifest itself in harming innocent
persons.

[38] The assumed intruder in this case had no responsibility to
Mr van Meyeren in relation to his dogs. They did nothing in relation to
the dogs. They interfered with the locks on the gate thereby enabling the
dogs to go into the street and attack Mr Cloete. But responsibility for the
dogs had not passed from Mr van Meyeren to the intruder in the way in
which it had passed from Mr Lever to Mr Cohen. It still resided squarely
with him as the owner of the dogs. It was contended on his behalf that he
should not be held liable, because he took appropriate steps to ensure that
the dogs could not escape from the premises.

[39] I repeat that stripped of everything else Mr van Meyeren's
argument is nothing more than a claim that Mr Cloete's injuries were not
his fault. Counsel recognised this, as he first sought to persuade us that
control of the animal by the person whose negligence allowed them to
escape, was not a requisite for the extended exception to operate. In my
view that cannot be accepted as it is destructive of the need for there to be

a direct link between the third party's conduct and the behaviour of the
animal that caused the harm in order for the owner to be exonerated from
liability. While the third party's conduct might be causally linked to the
harm, it stands at one remove from it, in that it may be a necessary
condition for the harm to occur, but the harm would not necessarily occur
as a result thereof. For example, if the owner came home and rounded the
dogs up before they could do any harm it would be avoided. That is not
the case in the instances where a third party's conduct exonerates the
owner from liability.

[40] Kumleben JA laid store on the principle of our law of delict that
liability goes hand in hand with fault. However, the principle is by no
means universal in its application. In the field of vicarious liability the
nature of the relationship between the wrongdoer and the party sought to
be held liable is what determines liability. The fault of the wrongdoer for
all practical purposes is treated as if it were the fault of the party being
held liable. Under some statutes, especially those dealing with
environmental matters, civil liability is imposed irrespective of fault.33
There are criminal statutes that impose strict liability. For nearly two
hundred years in South Africa owners of animals have been held strictly
liable for harm done by domesticated animals. This court has rejected the
argument that this should be abolished because it was not based on fault.
It would in my view be inappropriate to undermine the principle of strict
liability for harm caused by domesticated animals by extending the
exception in Lever v Purdy.

33 See for example s 28 of the National Environmental Management Act 107 of 1998; Section 9 of the
Marine Pollution (Control and Civil Liability) Act 6 of 1981.

[41] Kumleben JA also took the view that in considering the competing
interests of the owner who had not been at fault and the injured party who
had a claim based on negligence against the custodian of the dog,
considerations of fairness and justice favoured the owner. I am
unconvinced that this was a correct balancing of interests if one takes the
interests of justice into account in accordance with the constitutional
values already mentioned. In Lever v Purdy the injured plaintiff's claim
based on negligence was worthless as it was settled without any amount
being paid to Mr Purdy. Many people go on holiday and leave their
homes in the care of house sitters. Those may be friends, the children of
friends, students, retirees or young people seeking to supplement their
income. Their financial ability to meet a claim for damages arising from
the family dog biting a passer-by will probably be limited. The same is
true of the dog walkers postulated by counsel, although if they are
negligent the owner may be vicariously liable. By contrast the dog's
owner is likely to be able to obtain insurance cover against the risk of the
animal biting someone as part of a conventional household insurance
policy.

[42] Many people in South Africa choose to own animals for
companionship and protection. That is their choice, but responsibilities
follow in its wake. Whatever anthropomorphic concepts underpin
pauperien liability, the reality is that animals can cause harm to people
and property in various ways. When they do so and the victim of their
actions is innocent of fault for the harm they have caused, the interests of
justice require that as between the owner and the injured party it is the
owner who should be held liable for that harm. In taking that view I find
myself in the company of the majority of this court in O'Callaghan NO v

Chaplin. Nothing has occurred in over ninety years since that case was
decided to change the view of the interests of justice taken in that case.
The endeavours to suggest that they have changed in more modern times
is misplaced. If anything with the growth of urban living, the vastly
increased number of pet animals, especially dogs, in our towns and cities
and the opportunities for harm that they pose, that view of where the
interests of justice lie has been strengthened. People are entitled to walk
our streets without having to fear being attacked by dogs and, where such
attacks occur, they should in most circumstances be able to look to the
owner of the dog for recompense.

Result
[43] In the result the appeal is dismissed with costs, such costs to
include those consequent upon the employment of two counsel.

_________________
M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
D J Coetzee
Instructed by:
BDP Attorneys, Tyger Valley;
Honey Attorneys, Bloemfontein

For respondent:
H J van der Linde SC (with him N Barnard)
Instructed by:
Lessing, Heyns, Keyter & Van der Bank Inc,
Uitenhage
Van Wyk & Preller Inc, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal
DATE
11 September 2020
STATUS
Immediate
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

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

The SCA today dismissed an appeal by Mr van Meyeren against a finding by
the Eastern Cape Division of the High Court, Port Elizabeth that he was liable
to compensate Mr Cloete for injuries suffered by him when set upon by
Mr van Meyeren's three dogs in the street outside Mr van Meyeren's house in
Port Elizabeth. Mr Cloete, an itinerant gardener and refuse collector, was on
his way to the shops pulling his trolley, when he was attacked without any
warning or reason by the dogs. His injuries were serious and resulted in the
loss of his left arm.
Mr van Meyeren and his family were not home at the time of the attack. The
basis for the defence to the claim was that the dogs had been locked inside the
property, but an intruder must have endeavoured to gain access through a
locked gate, broken both padlocks fastening it and either left the gate open or
in a state where the dogs could open it. The case was argued on the basis that
this was in fact what had occurred.
Mr Cloete's claim was based upon the legal principle dating back to the Roman
Law that the owner of a domesticated animal is ordinarily held strictly liable for

harm caused by that animal. The injured party does not have to prove
negligence on their part. There are three recognised defences to such a claim,
namely that the injured party was in a place where they had no right to be; that
the animal was provoked either by the injured party or a third party; and that
custody and control of the animal has passed to a third party who negligently
failed to prevent the animal from causing the harm. Mr van Meyeren's argument
that these defences should be extended to include any situation where the harm
was caused by negligence on the part of any third party was rejected by the
court. It held that constitutional norms did not justify such an extension. Where
harm is caused by a domesticated animal, it is in principle appropriate that
responsibility for that harm rests with the owner of the animal and not the injured
party.