Man’s best friends, the canine kind, offer unparalleled companionship and have been known to improve the overall health and wellbeing of their owners. South Africa is ill-ridden with violence and high crime rates therefore, there is a large subset group of dog owners who want aggressive dogs and encourage vicious behaviors in their dogs.
Evidently some breeds are more vicious than others with pit bulls, gull dongs, german shepherds, rottweilers, bulldogs, huskies and doberman pinschers making it to the top of the list of dangerous dogs.
The major responsibilities of owning an animal are to keep the animal healthy and alive and to ensure that the animal does not cause harm to others. Dog owners must therefore be aware of the legal consequences attached to the ownership of their animals. Similarly, other persons must be aware of how and when to assert their rights in the event that they are harmed by a dog.
Depending on the circumstances, ownership of a vicious dog may attract criminal and/or delictual liability. It is important to note that while different consequences may flow in criminal law as compared to the law of delict, the test for unlawfulness is identical in both criminal law and delict.
Criminal law
Criminal liability ensues when it can be proven beyond a reasonable doubt that an accused person with capacity intentionally or negligently (mens rea/fault) committed unlawful voluntary conduct (actus reus).Unlawful conduct predominantly takes the form of committing an act that is prohibited by law (commission/positive conduct). However, inaction is a form of action, therefore, unlawful conduct can be in the form of a failure to act (omission). Mens rea refers to the accused’s intention or negligence in the commission or omission of the crime.
In order to prove that the accused internationally committed the crime, it must be proven that at the time of the commission of the crime, the accused must have known that his conduct was unlawful and punishable under law but nevertheless proceeded to commit the crime.
The majority of pit bull attacks occur negligently as opposed to the owner of the dog intentionally setting the pit bull upon a third party. The test for negligence which was outlined by the court in the case of Kruger v Coetzee is whether a reasonable person would have foreseen the reasonable possibility of harm and would have taken reasonable steps to prevent it happening, and whether the accused person failed to take such steps. In the event of a dog attack, the test would be whether a reasonable owner of a dangerous dog would have foreseen the possibility of their dog attacking a third party and would have taken steps to prevent the harm, and whether the owner of the pit bull failed to take such necessary steps.
Acts/commissions are prima facie regarded as unlawful while omissions are prima facie regarded as lawful because there is no general duty on any person to protect another person from harm. The general rule is that a person will not be held criminally liable for failing to protect or rescue another person. However, there are exceptions to this general rule and in certain circumstances, a failure to act (omission) can be criminalized when there is a legal duty to act.
The test for whether a legal duty to act exists which is informed by the values in the Constitution was outlined in the case of Minister van Poliesie v Ewels and entails that a legal duty to act exists when the legal convictions of the community direct that such duty to act exists and the omission thereof is regarded as unlawful. There are established circumstances in our law when a legal duty to act exists. A legal duty to act may arise where a protective relationship exists, in terms of statute, contract, common law duties or court order, by virtue of public office or quasi office, due to prior conduct where an individual has created a potentially dangerous situation and when one is in control of a potentially dangerous thing or animal (like a pit bull).
Law of delict
In ancient Roman law, the owner of a four-footed animal was held liable for damages caused by his animal. It was accepted that although the animal was the cause of the damage, it lacked the capacity to commit a legal wrong, therefore, legal action was taken against the owner. The actio de pauperie for harm caused by domestic animals is still applicable in South African Law.
The following requirements must be satisfied in order for a pauperie action to succeed:
- the defendant must have been the owner of the domestic animal at the time the harm was inflicted;
- the animal in question must be a domestic animal; and
- the animal must have acted contra naturam sui generis when inflicting the harm (contrary to the general nature of domesticated animals).
Liability and responsibility of the dog owner
In Johannes v Williams, the court held that where a person has assumed control over a potentially dangerous animal which may cause harm unless precautions are taken, he is under a legal duty to act in protection of third parties. Pit bull owners do not acquire pit bulls for their cuteness but for their added security and protection advantages. They are aware of the viciousness of their dogs. In S v Bernardus the court held that it is the general possibility of resultant injury which must reasonably be foreseeable and not the specific manner and nature thereof.
An owner’s failure or negligence to act in the prevention of their pit bull or dangerous dog attacking third parties is unlawful and should attract criminal liability and/or delictual damages.
In In S v Fernandez, the accused, an owner of a baboon, failed to properly repair the cage where the baboon was held. The baboon escaped and killed a baby. The court held that the accused who was in control of the baboon had failed in his legal duty to control the baboon and convicted the accused of culpable homicide. Similarly in R v Eustace the accused was convicted of culpable homicide on the basis that he had failed in his duty to control his vicious dog.
A blanket imposition of an obligation to protect another person from harm would undoubtedly amount to enforcing pure morality while violating individual freedom to action. Legally ‘we are not our brothers’ keepers’ and should not as a general rule be held liable for other people’s problems. However, pit bull owners are the custodians of their dogs and should be responsible and liable for the actions of their dogs.
When can an in injured third party proceed with legal action against the owner of a dangerous dog?
Depending on the severity of the attack, victims of dog attacks may develop infections, scarring, nerve and muscle damage, tetanus, rabies, broken bones, loss of limbs, PTSD, loss of function, and some even die. However, it is important to bear in mind the de minimis non curat lex principle (the law is not concerned with trivialities). The injured third party must assess the intensity of the injuries and the impact of the attack on their wellbeing before instituting legal action or laying a criminal case with the police.
What legal defenses does the owner of the dog have?
The owner of a dog which has inflicted harm on a third party may avoid criminal liability by raising the defense of private defense (self-defense). While the owner of a vicious pit bull has a legal duty to control their pit bull, they may be justified in setting it upon a thief on their premises. The owner of the pit bull would be responsible but not liable for the conduct of their dog.
The owner of the dog which has inflicted harm on a third party may also avoid delictual liability in actio de pauperie in the following circumstances:
- Where the injured party was in a place where they were not entitled to be;
- Where the victim or a third party or another animal provoked the attack by goading or provoking the animal; and
- Where a third party was in control of the animal and failed to prevent the animal from harming the victim.
How can the law reduce and eliminate attacks by dangerous dogs?
Public opinion has clamored for the banning of pit bulls. Unfortunately, South Africa does not have dangerous pets-specific legislation which could act as a deterrence and compel owners of dangerous dogs to exercise extreme caution with their dogs.
Notably, the City of Johannesburg Metropolitan Municipality’s Dogs and Cats By-law of 2006 prohibits wild, dangerous or ferocious dogs and dogs which are in the habit of chasing vehicles or people from being brought into a public place. The by-laws further prohibit dog owners from setting off their dogs onto other people or other animals. Contravening these by-laws attracts a fine or a prison sentence.
The ownership and domestication of pit bulls is prohibited in countries such as the Netherlands, France, Germany Puerto Rico, Italy, Denmark, Venezuela, Ecuador, Spain, the United Kingdom and Switzerland. Breed-specific legislation in these countries has been extremely effective.
In the United Kingdom, pit bull terriers and Japanese tosas are classified as dogs bred for fighting in terms of the Dangerous Dogs Act 1991 as amended by the Anti-social Behaviour, Crime and Policing Act 2014. The Act prohibits the breeding, selling, gifting and abandonment of such dogs. The Act also requires these types of dogs to be muzzled and on a leash when in a public place.
The Dangerous Dogs Act also imposes criminal liability on the owner of a dangerous dog if the dog injures another person. The prescribed maximum sentences are 14 years if a person dies as a result of being injured, 5 years in any other case where a person is injured and 3 years in any case where an assistance dog is injured (whether or not it dies).
South Africa needs legislation dangerous pets-specific legislation which imposes restrictions on dogs which present a serious danger to the public and makes provision for ensuring that dogs are kept under proper control and the sanctions for contravening those legislative provisions. Before we can get there, owners of dangerous animals ought to take greater care in protecting third parties from harm…because good society demands it.
This article was published in the Mail and Guardian on the 12th of January 2023 with the tittle Dangerous dogs and the law: What owners or victims of a canine attack need to know
Sources: Kruger v Coetzee 1966 (2) SA 428 (A); Minister van Poliesie v Ewels (1975 (3) SA 590 A; R v Mbombela 1933 AD 269; S v Ngubane 1985 (3) SA 677 (A); Carmichele v Minister of Safety and Security and Another 2001 (1) SA 489 (SCA); Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC); Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA); S v Fernandez 1966 (2) SA 259 (AD); R v Eustace 1948 (3) SA 590 (AD); S v Bernardus 1965 (3) SA 287; Johannes v Williams and Others (2794/2013) [2014] ZAECPEHC 72 (4 November 2014); O’Callaqhan NO v Chaplin 1927 AD 310; Lever v Purdy 1993 (3) SA 17 (AD); Van Meyeren v Cloete 2021 (1) SA 59 (SCA); Kohl v Grobbelaar (4962/2017) [2018] ZAECGHC 38 (22 May 2018); Loriza Brahman v Dippenaar (2002 (2) SA 477 (SCA) 487); Dangerous Dogs Act 1991; Robertson v Boyce 1912 AD 367; Green v Naidoo and Another (14171/04 , 04/14171) [2006] ZAGPHC 56 (30 May 2006); City of Johannesburg Metropolitan Municipality By-laws relating to Dogs and Cats, 2006
MUSINGS OF CHIEF JUSTICE CHIVENGE 
Leave a Reply