Man’s best friends offer unparalleled companionship and are known to improve the overall health and well-being of their owners. But a large subset of dog owners want dogs to protect them in crime-ridden South Africa.
The main responsibilities of owning an animal are to keep it healthy and alive and to make sure it does not cause harm to others. Therefore, dog owners should be aware of the legal consequences associated with owning their animals. Similarly, people need to be aware of how and when to assert their rights in case they are attacked by a dog.
Depending on the circumstances, ownership of a vicious dog can lead to criminal and/or criminal liability. Although different consequences may flow in criminal law compared to crime law, the test of illegality is identical in criminal law and crime.
Criminal law
Criminal liability ensues when it is proven beyond a reasonable doubt that a capable defendant intentionally or negligently engaged in voluntary unlawful conduct. Unlawful conduct predominantly takes the form of committing an act that is prohibited by law, but inaction is a form of action, so unlawful conduct can take the form of a lack of action (omission). Mens rea refers to the intention or negligence of the accused in the commission or omission of the crime.
To prove that the defendant committed the crime internationally, it must be shown that at the time the crime was committed, the defendant should have known that his conduct was unlawful and punishable under the law, but nevertheless proceeded to commit the crime.
The negligence test, which was outlined by the court in the case of Kruger vs. Coetzee, is whether a reasonable person would have foreseen the reasonable possibility of harm and would have taken reasonable steps to prevent it from occurring, and whether the accused person failed to take such steps. In the case of a dog attack, the test would be whether a reasonable owner of a dangerous dog would have anticipated the possibility of his dog attacking a third party and would have taken steps to prevent the harm, and whether the dog owner failed . to take the necessary measures.
Acts or commissions are considered prima facie illegal, while omissions are considered prima facie lawful because no person has a general duty to protect another person from harm. The general rule is that a person will not be criminally liable for failing to protect or rescue another person. But, there are exceptions to this general rule and in certain circumstances, the omission (omission) can be criminalized when there is a legal duty to act.
The test of whether there is a legal duty to act, which is informed by the values of the Constitution, was outlined in the case of Minister van Poliesie v. Ewels and it assumes that there is a legal duty to act when the legal convictions of the community order that such a duty to act exists and its omission is considered unlawful.
There are circumstances established in our law in which there is a legal duty to act. A legal duty to act may arise when 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 in which an individual has created a potentially dangerous situation and when one is in control of a potentially dangerous thing or animal.
crime law
In ancient Roman law, the owner of a four-legged animal was liable for damage 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, so legal proceedings were taken against the owner. The actio de pauperie for damage caused by domestic animals remains applicable under South African law.
The following requirements must be met for a pauperie action to succeed:
- The defendant must have been the owner of the pet at the time the damage is inflicted;
- The animal in question must be a domestic animal; Y
- The animal must have acted contra naturam sui generis in inflicting the damage (contrary to the general nature of domestic animals)
Responsibility and Liability of the Dog Owner
In Johannes vs. Williamsthe court held that where a person has assumed control of a potentially dangerous animal that can cause harm unless precautions are taken, they have a legal duty to act on behalf of third parties.
People are aware of the wickedness of their dogs. In S against Bernardus the tribunal held that it is the general possibility of resulting damage that must be reasonably foreseeable and not the specific form and nature of the damage.
The omission or negligence of an owner to prevent his dog from attacking others is illegal and should give rise to criminal liability and/or criminal damages.
In in S v Fernandez, the defendant, owner of a baboon, failed to adequately repair the cage where the baboon was kept. The baboon escaped and killed a baby. The court held that the defendant in control of the baboon had failed in his legal duty to control the baboon and convicted him of manslaughter. Similarly in R vs. Eustace the defendant was convicted of manslaughter on the basis that he had failed in his duty to control his vicious dog.
The general imposition of an obligation to protect another person from harm would surely amount to imposing pure morality while violating individual freedom of action. Legally we are not our sibling’s keeper and, as a general rule, we should not be held responsible for other people’s problems. But vicious dog owners are the custodians of their dogs and must be held accountable for their dogs’ actions.
When can an injured third party proceed legally against the owner of a dangerous dog?
Depending on the severity of the attack, victims of dog attacks can develop infections, scarring, nerve and muscle damage, tetanus, rabies, broken bones, loss of limbs, post-traumatic stress, loss of function, and some even die. But it is important to keep in mind the principle of de minimis non curat lex (the law does not care about trivia). The injured third party must assess the intensity of the injuries and the effect of the attack on her well-being before taking legal action or filing a criminal case with the police.
What legal defenses does the dog owner have?
The owner of a dog that has inflicted damage on a third party can evade criminal responsibility by invoking the defense of private defense (legitimate defense). While the owner of a ferocious dog has a legal duty to control his dog, he may be justified in imposing it on a thief on his premises. The dog’s owner would be responsible but not responsible for the conduct of his dog.
The owner of the dog that has caused damage to a third party can also avoid tort liability in actio de pauperie in the following circumstances:
- When the injured party is in a place where he should not be;
- When the victim or a third party or another animal provokes the attack by goading or provoking the animal; Y
- When a third party was in control of the animal and was unable to prevent the animal from harming the victim.
How can the law reduce and eliminate attacks by dangerous dogs?
Public opinion has clamored for a ban on pit bulls. South Africa does not have specific dangerous pet legislation that could act as a deterrent and force dangerous dog owners to exercise extreme caution around their dogs.
In particular, the Johannesburg City Metropolitan Municipality Cat and Dog Ordinance 2006 prohibits feral, dangerous or ferocious dogs and dogs in the habit of chasing vehicles or people from being brought into a public place. The statutes further prohibit dog owners from throwing their dogs on people or other animals. Violation of these statutes carries a fine or imprisonment.
The possession 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 effective.
In the UK, Pit Bull Terriers and Japanese Tosas are classified as dogs bred for fighting under the Dangerous Dogs Act 1991 as amended by the Anti-Social Conduct, Crime and Policing Act 2014. The Act prohibits breeding, selling, giving away and abandonment of such dogs. The Law also requires that these types of dogs wear a muzzle and leash when in a public place.
The Dangerous Dog Act also imposes criminal liability on the owner of a dangerous dog if the dog injures another person. The maximum sentences prescribed are 14 years if a person dies as a result of an injury, five years in any other case where a person is injured, and three years in any case where an assistance dog is injured.
South Africa needs specific legislation on dangerous pets that places restrictions on dogs that pose a danger to the public and sets out provisions to ensure that dogs are kept under control and penalties for contravening such legislation. Before we can get there, owners of dangerous animals must take more care to protect third parties from harm.
Lilleonah Chivenge is a Candidate Lawyer, Author and Community Advocate educator.
The opinions expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.
