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Court holds owner liable for dog’s behaviour

Publish date: 09 July 2018
Issue Number: 781
Diary: IBA Legalbrief Africa
Category: South Africa

The Eastern Cape High Court has ruled that owner of a Bullmastiff crossbreed was liable for the damages suffered by a boy (5) who lived next door and was bitten by the dog while he sat on a wall, says a report in The Mercury. Charl Grobbelaar said he had told the child not to sit on the brick wall bordering the premises if he was not there to control his dog. But in July 2016 Reece Kohl once again climbed on the 1.45m high wall. Grobbelaar was asleep when his dog bit the child, as he had just returned from a night shift as a security guard. The boy's mother instituted damages against Grobbelaar. In his judgment, Judge MJ Lowe said: ‘On the facts before me a well-behaved dog – the reasonable dog – would not have attacked a child simply due to the child having climbed and sat on top of the boundary wall.’ Regarding the lawful presence of the child on the wall, the judge said the child could not be held accountable for the fact that he was not supposed to be there. As he was only five at the time (now seven ) he was doli incapax and could thus not be held accountable for his actions. In terms of the Child Justice Act, a child of nine years or younger is presumed to be doli incapax and therefore, the judge said, not accountable for trespass. The judge said he also had to consider whether the dog, in biting the child, acted contrary to the nature of a well-behaved dog, and not whether the dog acted contrary to the nature of its breed. ‘I thus adopt the objective or reasonable animal approach. The question is what in the circumstances would one expect from a well-behaved – the reasonable – dog?’

Full report in The Mercury (subscription needed)