Harm by Animals, ed 1 2012, by JF UYS, was the FIRST book to cover the whole of this confusing branch of the South African common law.
Now edition 2, 2017, is available, with amendments and additions.
The book deals with DAMAGES CLAIMS for harm by animals, whether or not caused by the fault of the animal's owner or controller.
If a dog mauls a child, or a lion devours a trespasser, or bees cause havoc, the story makes headlines. Only 152 South African High Court judgments on harm by animals could be found, including a few unreported cases.
But insurance companies and their lawyers know that those cases are merely the ears of the hippo, and that there are many more such cases – most of which are settled out of court.
One of the reasons for avoiding the courts may be that lawyers are uncertain about the law. Chief Justice JAJ (Jaap) de VILLIERS said in 1930: “Our South African decisions had not been harmonious, which is not to be wondered at seeing that hardly two commentators agree on the interpretation to be placed upon the law.”
The first cases on harm by animals were decided in the Cape of Good Hope during the 1870’s, and the judges had to rely on a single sentence from the first Roman law codification of 450 BC; on some opinions collected in 533 AD by the Roman Emperor Justinian; and on a few lawyers’ comments on the law of Holland applicable at the Cape during the period 1652 to 1806.
There were no cases or legislation in our common law which Cape judges could use as references, and every judge built on what previous judges had said.
In due course a reasonably complete body of law on harm by animals was developed through the cases. But it is understandable that ad hoc rulings made by judges from time to time would leave some gaps, inconsistencies and controversies in the law.
Therefore, this book is an attempt by Dr Uys to offer some clarity to students and practitioners on a complicated and confusing branch of our law.
The Table of Contents gives an idea of the scope of the work:
RESTATEMENT OF THE LAW
Chapter 1 ROMAN Law Sources
Chapter 2 ROMAN-DUTCH Law Sources
Chapter 3 SOUTH AFRICAN Law Sources
Chapter 4 FAULT
Chapter 5 PAUPERIE
Chapter 6 DEPASTURING
Chapter 7 CRIMINAL HARM
Chapter 8 PLEADINGS
Index 1 CASES
Index 2 LEGISLATION
Index 3 LITERATURE
Index 4 SUBJECTS
The book therefore begins with 3 Chapters on the Sources of the Law on Harm by Animals: The Roman law in Chapter 1; the Roman-Dutch law of 1652-1806 in Chapter 2; and the South African law in Chapter 3. The latter is subdivided into 3 Parts: LITERATURE, LEGISLATION and CASES.
CASES are the most important sources of the law on harm by animals. The 134 General Harm cases and the 18 Special Harm (Depasturing) cases are summarised with comments. Colour illustrations of the mischievous animals are added to enlighten the subject.
There was even some humour – ex post facto, of course – in some of the less serious cases. For example:
* The customer who trod on a dog sleeping on the floor of the bar – and then foolishly bent down to pat it;
* The tramcar mules which were so shocked by a passing lady’s dress that they pulled the tram off its rails;
* The young elephant with a sweet tooth which accidentally bumped a visitor to a game park while trying to steal her sweets;
* The tough lady who pulled an angry wildebeest off her husband; * The ox in an Indian shop which thought it was a bull in a China shop;
* The tame meercat which proved that it was no kitty;
* The pedestrian who was, in the words of the judge, ‘literally between the horns of a dilemma’ when he had to walk between two bulls grazing on either side of the road; and
* The dog which visited the neighbour’s chickens while its owner, the world-famous Professor Raymond Dart, was pre-occupied with his recently found fossil, the Taungs australopithecus.
* But the most significant case of all was about a doggie which, excited at the prospect of being taken out for a walk, gave a visiting toddler a quick bite in the leg. The incident ended up with 4 judges of appeal giving very learned judgments, comprising 68 pages of the 1927 law reports. That case brought more clarity on the law of harm by animals, but not the end of uncertainty.
Following the above chapters on the Sources of the law, four main legal topics are discussed, namely Fault, Pauperie, Depasturing and Criminal Harm (Chapters 4 to 7).
Some remaining anomalies, controversies and problems are pointed out and solutions are suggested, including the following:
1. The problems with the introduction of the English doctrines of trespass and scienter;
2. The idea that the victim’s own fault cancelled the owner’s fault;
3. The resistance by lawyers to the concept of strict liability (liability without fault);
4. The closing down of almost all the pounds in the country;
5. The anachronistic terminology used in this branch of the law, such as the use of antiquated Latin names for modern concepts. The phrases actio de pauperie and actio de pastu pecorum, for example, are out of date because the ‘actio’ procedures went down with the Roman Empire, and Latin as a language has been in disuse for centuries. Modern names are suggested when dealing with those topics; and
6. The contra naturam requirement concerning an animal’s errant behaviour, is reinterpreted: it is proposed that this “requirement” has to do with whether the involved humans thought that the act was unnatural and that the animal’s psychology is irrelevant.
A concluding Chapter on Pleadings sets out the procedures to be followed when claims concerning harm by animals are instituted.
Finally, four Indexes list Cases, Legislation, Literature and Subjects.
Harm by Animals starts off with a RESTATEMENT OF THE LAW ON HARM BY ANIMALS. Some surprisingly simple rules for solving problems in the law of harm by animals were distilled from the cases. These rules are based mainly on the decided cases, and that is why the title and subtitle of the book is “Harm by Animals – The South African Law through the Cases”.
The RESTATEMENT is written like a Statute, which the author submits as containing the true legal rules which were (or should have been) applied in past decisions. It is placed at the beginning of the work, so that it can be seen which RESTATEMENT rules are (or are not) supported by the cases. It was formulated by considering the history, literature, legislation and all the South African cases concerning harm by animals.
The subject does not lend itself to a deductive process because general rules of Roman and Roman Dutch-Law on the subject are non-existent. Even the Corpus Juris Civilis of Justinian was not a ‘codification’ in the modern sense but was a classified compilation in 533 AD of Roman lawyers' opinions and examples. The Roman ‘rules’ were sometimes primitive, vague, contradictory, anachronistic and confusing. Trying to solve cases with the available Roman and Roman-Dutch sources therefore often leads to contorted reasoning.
The author formulated the RESTATEMENT to reduce the reliance on the ancient writings; to be a basis for measuring each case; and to be considered and recognised as the standard rules on the law of harm by animals in South Africa.
The RESTATEMENT provides:
1. DEFINITIONS ‘Damages’ means compensation for harm.
‘Depasturing’ means harm caused by the unlawful grazing of an animal.
‘Fault’ is a blameworthy act or omission which causes harm to another.
‘Harm’ means the result of conduct which causes injury or death of an animal or a human, or breakage or destruction or consumption of a thing.
‘Owner’ includes a person who controls an animal.
‘Pauperie’ is an unexpected harmful act by an animal.
‘Unexpected act’ means conduct by an animal which the involved persons could not reasonably expect.
‘Victim’ is a person harmed by an act of another’s animal.
2. FAULT LIABILITY. A person by whose fault an animal causes harm is liable for damages.
3. OWNER LIABILITY. The owner of an animal which causes harm by a pauperie or depasturing is liable for damages, even if the owner was not at fault.
4. JOINT LIABILITY
(1) If persons jointly by their fault cause an animal to do harm, everyone is liable for all the un-apportioned harm.
(2) If animals of different owners cause harm together, each owner is liable for all the un-apportioned harm.
(3) A victim may claim all or any part of the un-apportioned harm from any one or more jointly liable persons or owners.
5. CRIMINAL LIABILITY. A person by whose fault an animal causes harm, commits an offence and may be fined, imprisoned or declared unfit to own an animal, and the court may order that the animal be removed or destroyed.
(1) A defence available to the owner of an animal which caused harm is that the victim or a third party caused or contributed to the harm.
(2) A court may reduce the amount of damages claimed in proportion to the contribution of the victim or a third party to the harm.
7. CLAIMS. A person who claims damages for harm caused by an animal must allege and prove − (1) The identity and conduct of the animal whichcaused the harm; (2) The harm; (3) The damages; (4) The causation between the harm and the damages; (5) The identity of the owner (if owner liability is relied on); and (6) The identity and fault of the person who caused the animal to do harm (if fault liability is relied on).
Some special terms are used in the book:
‘Damages’ (plural) means compensation for harm.
‘Depasturing’ means the unlawful harmful grazing of another’s land; and ‘depasturing claim’ is used instead of the anachronistic actio de pastu pecoris.
‘Fault’ is used instead of negligence or culpa, except in quotations. ‘Fault’ is also the word used in the South
African Apportionment of Damages Act 34 of 1956, which is often discussed in this work.
‘Harm’ is used instead of injury or damage (singular).
‘Pauperie’ (pronounced páw-puh-ree or poh-páy-ree-ay) means an unexpected and unforeseeable act by an animal which causes harm. The expression pauperie claim is used (instead of the anachronistic actio de pauperie); so too: pauperie law; and to commit a pauperie.
Here are some extracts from the Book Notice on Harm by Animals ed 1 2012, by Prof Helen Scott, University of Cape Town, published in the South African Law Journal 2017 Vol 134:
"… Following preliminary chapters on the Roman and Roman-Dutch sources, which serve to demonstrate clearly the historical origins of the contemporary rules, most of Harm by Animals is dedicated to short case summaries (at 46 to 289), arranged in chronological order from 1876 to 2011, followed by a detailed discussion of individual cases under the headings ‘fault’, ‘pauperie’, ‘depasturing’, ‘criminal harm’ and ‘pleadings’ (at 291 to 391). Even this latter section of the book remains very close to the cases, guiding the reader through the case law by means of detailed sub-headings.
As such, and as its subtitle suggests, Harm by Animals falls somewhere between a casebook and a monograph. This makes it particularly suitable for use in practice, and this practical focus is further emphasised by a short section on pleading at 382 to 391.
A further useful feature is the extensive bibliography of secondary material with which the work concludes.
That said, the section on the ‘Restatement of the Law on Harm by Animals’ (at 5) with which the book begins will be of interest not only to practitioners but also to scholars of the South African law of delict. The stated aims of this Restatement — which is, once again, distilled from the cases — are to ‘reduce reliance on the ancient writings’ and to act as a guideline for reasoning (whether judicial or otherwise), imposing some order on the tangle of case law which has grown up around the ancient Roman texts.
It is here that we find the bold analysis which this area of law requires. Regarding the actio de pauperie in particular, the author’s proposal that liability turn on an ‘unexpected (harmful) act’ by the animal in question (where ‘unexpected’ means conduct by an animal which the persons concerned could not reasonably have expected), rather than on whether the animal could be said to have acted ‘contra naturam sui generis’, seems a sound one.
In fact, the standard ‘contra naturam’ test rests on a misreading of the ancient Roman authorities. In its original context (D 188.8.131.52), the phrase ‘contra naturam’ meant simply that the animal had acted contrary to its nature as a domestic animal.
Whereas wild animals were presumed to be unpredictable and dangerous, it was assumed that domestic animals would not cause injury unless provoked or mishandled, whether by the plaintiff (in which case liability was simply extinguished) or by a third party (in which case fault-based liability against that third party might arise).
The proposed test of ‘unexpected’ conduct helps to cut through the sophistry surrounding the ‘contra naturam’ test in contemporary South African law, forestalling the possibility of any inquiry into the ‘reasonable dog’ (cf in Green v Naidoo & another 2007 (6) SA 372 (W) paras 17–18), and sets the claim on a much sounder footing: liability depends on whether the injury could reasonably have been foreseen and therefore avoided by the victim, or whether it represented instead the materialisation of the risk of ‘instinctive, unpredictable behaviour’…
Strict liability in respect of such residual risks can then be justified according to a general risk principle, founded in the need to distribute fairly the burden of risks generated by benign activities, a principle which governs also apparently distinct bodies of rules such as the law pertaining to the vicarious liability of employers for delicts committed by their employees,,,
Indeed, the actio de pastu can be rationalised in a similar way. … [I]n farming communities animals frequently do break through fences and cause appreciable harm to neighbours’ crops… This is a typical risk associated with the ownership of grazing animals, presumably a feature of most agrarian societies, and thus the remedy remains an appropriate part of modern South African law.
This reviewer encountered a few minor errors: …the Latin noun ‘pauperies’ is rendered (in English) ‘pauperie’ (technically an ablative rather than nominative form).
Also surprising are the author’s claims that the actio de pauperie arises from control as well as ownership of the animal in question – the general understanding (as in eg O’Callaghan v Chaplin 1927 AD 310) is that it arises from ownership only, and that control of the animal in question would give rise at best to a fault-based Aquilian action – and that the action applies to all animals, rather than merely domestic ones. These points are certainly arguable, on the basis of principle if not authority, but one would expect a fuller justification for propositions which run directly counter to the settled understanding of the cases …
Some readers may also be surprised by the author’s relatively informal style, as well as by the presence of in-text illustrations and humorous subheadings to cases (eg ‘Lions are bad neighbours’; ‘Dog rejects apology’), although the effect of these devices – as the author intended – is really just to enliven further material already fascinating by virtue of the insight into South African social history which it affords.
Overall, Harm by Animals is both entertaining and thoughtprovoking: it offers a comprehensive survey of the sources of the modern law while at the same time affording insight into its most difficult conceptual questions.