BARKING UP THE WRONG TREE ‒ THE ACTIO DE PAUPERIE REVISITED Van Meyeren v Cloete (636/2019) [2020] ZASCA 100 (11 September 2020)

André Mukheibir

doi:10.17159/obiter.v42i3.12911

Abstract

It is trite that the South African law of delict follows a generalising approach. This entails that liability will only ensue when all the elements of delict are present. South African law does not recognise individual “delicts”. The generalising approach followed in South African law is qualified in that there are three main delictual actions, namely the actio legis Aquiliae for patrimonial loss; the actio inuriarum for loss arising from intentional infringements of personality rights; and the Germanic action for pain and suffering, in terms of which a plaintiff can claim compensation for negligent infringements of the physical-mental integrity. This approach is further qualified in that numerous actions dating back to Roman law still exist in our law today. Included in this mix are the actions for harm caused by animals, such as the actio de pauperie, the actio de pastu, and the actio de feris, each with its own requirements. There have been questions as to whether these actions, in particular the actio de pauperie, still form part of South African law. In Loriza Brahman v Dippenaar (2002 (2) SA 477 (SCA) 487) the defendant claimed that the actio was no longer part of the South African law. The Supreme Court of Appeal (SCA) per Olivier JA held that the actio de pauperie had been part of South African law for more than 24 centuries and not fallen into disuse. Olivier JA held that the fact that the action is based on strict liability (one of the arguments raised against it) is no reason to ban it from South African law as strict liability was increasing and in suitable instances fulfils a useful function.The SCA, again, recently confirmed the continued existence of the action in South African law in the case of Van Meyeren v Cloete ((636/2019) [2020] ZASCA 100 (11 September 2020) 40). In this case, the SCA had to decide whether to extend the defences against liability in terms of the actio de pauperie to the negligence of a third party that was not in control of the animal. The defendant held that the court should develop the common law in this regard. Considering both case law and the requirements for the development of the common law, the SCA held that such an extension could not be justified.

Highlights

It is trite that the South African law of delict follows a generalising approach (Loubser and Midgley The Law of Delict in South Africa (2017) 19–20; Neethling and Potgieter Law of Delict (2020) 4–5)
The generalising approach followed in South African law is qualified in that there are three main delictual actions, namely the actio legis Aquiliae for patrimonial loss; the actio inuriarum for loss arising from intentional infringements of personality rights; and the Germanic action for pain and suffering, in terms of which a plaintiff can claim compensation for negligent infringements of the physical-mental integrity (Loubser and Midgley The Law of Delict in South Africa 19; Neethling and Potgieter Law of Delict 5)
The Supreme Court of Appeal (SCA) dealt with three issues, namely: (a) The treatment of the factual evidence in the court a quo; (b) Whether the actio de pauperie was still part of South African law and if so; (c) Whether the third-party defence should be extended to a situation where the harm would not have occurred, but for the negligent conduct of the third party in circumstances where the third party had no control over the animal

Summary

Introduction

It is trite that the South African law of delict follows a generalising approach (Loubser and Midgley The Law of Delict in South Africa (2017) 19–20; Neethling and Potgieter Law of Delict (2020) 4–5). The SCA, again, recently confirmed the continued existence of the action in South African law in the case of Van Meyeren v Cloete ((636/2019) [2020] ZASCA 100 (11 September 2020) 40) In this case, the SCA had to decide whether to extend the defences against liability in terms of the actio de pauperie to the negligence of a third party that was not in control of the animal. Wallis JA (par 23) referred to Lever v Purdy (supra), citing the two instances identified in that case where the conduct of a third would constitute a defence against the actio de pauperie, namely (a) striking or provoking the animal in some way; and (b) where the third party was in control of the animal and failed to prevent the animal from causing harm to the victim. When someone chooses to have an animal and someone is harmed by the animal while being innocent of fault, the interests of justice require that the owner should be held liable for the harm that ensued (par 42)

Discussion

Conclusion