It has been in the news of late, dog attacks. What must the State prove to secure a conviction?
In February 2014 two of our clients were charged with contravening the animal By-Law. Count 1 and 2 was contravention of Section 6(b) in that the accused wrongfully and unlawfully urged a dog to attack, worry or frighten a person or animal or through their negligence, failed to prevent any dog from attacking, worrying or frightening any person or animal to wit: negligently fail to prevent three female pit bulls and three male pit bulls from attacking and biting the complainant; and secondly attacking and killing the complainant’s two dogs. The third count related to Contravening Section 6(h)(ii) in that the accused wrongfully and unlawfully permitted a dog to be owned or kept by them, which is in the assessment of the authorised official is ferocious, vicious or dangerous without being humanely muzzled and held on a leash and under control.
The charges stemmed from an incident that took place in Tokai forest. It was alleged that our client’s six pit bulls attacked the complainants and their two dogs, killing their dogs. The state led five witnesses, three of whom were present during the alleged attack. The state had proved that the complainants sustained injuries as a result of the attack and that their dogs were mauled and killed. It was our client’s case that the complainant’s dogs attacked one of the pit bull’s first which resulted in two of the pit bulls retaliating. The accused submitted that they could not have foreseen the conduct of their dogs. This submission was based on the way they reared and took care of the dogs. The accused submitted that it was not in their dog’s nature to attack.
The South African courts have held that the history of the dogs play an important role in determining whether to hold the owner liable. The court in Green v Naidoo 2006 ZAGPHC 56(30 May 2006) stated that “past behaviour” of the dogs needed to be examined. The court held as follows: “On the one hand, courts have described animals “to the knowledge of defendant… were of a fierce and vicious nature and had a tendency to attack the defendant who was in possession of a dog which, to his knowledge, was in the habit of biting innocent people” and was the “owner of a savage dog with a propensity to bite innocent persons”, an animal “known to be vicious”, “ a fierce dog”. The owners of such animals ought to have foreseen that the animal might bite or maul or kick innocent persons wherever the animal found them.”
In Robertson v Boyce 1912 AD 367, it was stated that:
“if it had been proved that the dog had this mischievous propensity and that the owner knew of it I think that there would have been a duty on his part to keep an animal of that nature under proper control (per Solomon J)
“ it was sufficient to establish that the dog was in the habit of doing the particular vicious act which resulted in the injury. From that the liability of the owner follows. If the dog was in the habit of acting thus, the owner may fairly be said to be negligent in not taking more care to prevent a repetition of the act which might cause damage.. A reasonably prudent man would have foreseen that damage might result and should have taken precautionary measures...” (per De Villiers J CJ ) (my emphasis added)
On the other hand, the courts have described animals with “no history of it chasing... or other conduct which might require a diligens paterfamilias to guard against possible injury to others”, “a well mannered and obedient dog”, where aggressive behaviour was “unprecedented”. In such cases the owners of such animal’s with no previous history of aggression or apparent predisposition to such behavior, could not have foreseen, as a reasonable possibility that the animal might cause harm to other persons.
“In all the cases dealing with Aquilian liability for the actions of dogs, or other animals, our courts have had regard to the history of the animal’s interaction with humans, other animals and the world in deciding whether or not the owner of the animal ought to have foreseen the reasonable possibility of harm.”
Both the accused presented evidence, including photographs and video footage which showed the history of the dogs, how they were socialised around children, adults and other dogs. The accused submitted that they had walked their six pit bulls unleashed for almost five years in Tokai forest without any incidences of aggression towards other dogs and people. Evidence was presented to corroborate their submissions. The state’s main argument was based on the fact that there were six pit bulls and pit bulls were inherently dangerous, but the court rejected the argument as no evidence was presented to support the submissions by the state.
The court acquitted both accused on all charges based on the credibility of the state witnesses and most importantly the fact that the accused had shown, through the history and interaction with their dogs, that they could not have reasonably foreseen the attack that occurred. The accused were acquitted on the third count as the state could not prove that the pit bulls were assessed by an authorised official.
Despite the accused being been acquitted the City of Cape Town acted prematurely and euthanised four of the pit bulls prior to the trial finalisation and judgement in the trail proceedings.