Damages for dog bites

Can I sue my neighbour for damages if his dogs attack me outside his property?

The matter was heard in Du Preez v Kingsley [2015] JOL 33595 (FB)

Facts: Whilst cycling on a suburban road, the plaintiff encountered two dogs which exited their property and one of them bit him. The dogs had managed to get out of their owner’s property because the gate had been left partially open. The plaintiff received medical attention from a doctor living next door to the property where the dogs lived. As a result of his injury, the plaintiff sued the defendant for damages.

The defendant could not dispute the version of the plaintiff and the doctor. He contended that he had secured the gate, but could not dispute that the dogs had gotten out of the property. As he was not home at the time of the incident, he could not deny that the dogs went out of the premises.

Held that where a person has assumed control over potentially dangerous animal which may cause harm unless preventative measures are taken, he is under a legal duty to act in protection of third parties.

At common law, the defendant ordinarily would be required to take steps to protect others against harm flowing from the conduct of the dog.  The defendant should have ensured that his dogs did not escape onto the street. Whatever means he alleged he had taken, if any, were clearly inadequate and insufficient.

The plaintiff had discharged the onus of proof on both action de pauperie and actio legis aquiliae. The grounds of negligence were that the defendant had not properly controlled the dogs and taken reasonable measures or sufficient precautions at all relevant times so that they did not escape and cause harm to others.

The defendant was therefore liable for plaintiffs proven damages arising out of the incident.

The Employment Services Act now law

The Employment Services Act, No 4 of 2004 (ESA) became law on 9 August 2015. The only section not yet in force is s13 which deals with the registration of private employment agencies.

In short, the ESA:

·        Repeals the Employment Services provisions contained in the Skills Development Act, No 97 of 1998 (SDA).

·        Is designed to establish productivity within South Africa, decrease levels of unemployment, and provide for the training of unskilled workers.

·        Provides for the creation of a Public Employment Service, which will be established and managed by the State, to provide state assistance to unemployed job seekers. The Public Employment Service will:

o   Register job seekers and employers (placement opportunities) and try to match them.

o   Provide training for unskilled job seekers and give the unemployed access to career information. Employers in certain industries may be required to register vacancies and specific categories of work with the Public Employment Service. Employers may also be required to interview individuals recommended by the Public Employment Service and pay license fees to assist in funding the Public Employment Service.

Time will tell…

Overhanging Trees

I am often consulted by disgruntled clients who complain that the branches of neighbour's trees hang into their properties.  Generally, the basis for such complaint is that the leaves from such branches clog up their swimming pools or block out the natural sunlight.

You are perfectly entitled to insist that the overhanging branches be sawn off by your neighbour.  If he refuses to do so, you could obtain a Court Order compelling him to do so or, alternatively, may, yourself, lop off the branches where they encroach onto your property.  If your neighbour refuses to co-operate, you would also be entitled to recover from him all reasonable expenses incurred in removing the branches.

In similar fashion, if roots from your neighbour's tree encroach onto your property, you may request your neighbour to remove such roots (or may remove them yourself).  If such roots have caused damaged to your property, you are entitled to claim compensation.

Although you are entitled to have overhanging branches removed, you have no cause of action if leaves from your neighbour's tree clog up the weir in your swimming pool or block your gutters. This is so, because our Courts have held that through the simple expedient of removing the leaves from the surface of the swimming pool or cleaning out the gutters, damage could be avoided.

As a general rule, there is, unfortunately, nothing you can do to prevent your neighbour from growing large trees on his property if such trees obstruct your view or block out sunlight.

Obviously, for the sake of peace and in the interests of loving your neighbour, any possible dispute should, in the first instance, be resolved with your neighbour over a cup of tea.

Suretyship agreement – Defence of mistake

In Voltex (Proprietary) Limited v Super Team Electrical (Proprietary) Limited t/a Electric World and others [2015] JOL 33416 (KZD), the court had to determine if the Respondent’s defence was valid.

In a written credit application to the applicant, the Respondent bound himself as surety and co-principal debtor in solidum with Super Team. Although admitting having signed the credit agreement, the surety argued that he was not bound by a suretyship document, because he signed it by mistake and without any intention to incur contractual liability. He further averred that he did not read the document when he signed it.

The court found that the respondent’s mistake in this case was a unilateral one. Having regard to the nature of the agreement signed by the respondent and the clear wording thereof, there could be no doubt that the respondent knew what he was signing. The document was clearly recognisable as a suretyship undertaking. By affixing his signature to the document, the respondent had effectively assented to the terms contained therein unless he could show that he was fraudulently deceived by the applicant into signing it. No such fraud was established. The Court held that the legal maxim “caveat subscriptor” found application herein and the respondent was bound to the terms contained in the agreement.

On that basis, the court described the defences raised by the Respondent as fictitious, far-fetched and untenable, and granted judgment in the applicant’s favour.

Can a defendant ask a plaintiff company to put up security?

Until the arrival of the Companies Act 71 of 2008 (the Act) a defendant could request an incorporated company as plaintiff in litigation, to put up security for costs (provided that there was reason to believe that the plaintiff company was unable to pay the defendant's costs, if successful).

The Act does not provide for that any longer, so when can a Defendant call for security for costs?

The Supreme Court of Appeal ("SCA") answered that question in Boost Sports Africa (Pty) Ltd v The South Africa Breweries (Pty) Ltd [2015] ZASCA 93.

It held that corporate plaintiffs must be treated the same as natural plaintiffs, and the defendant can only call for security for costs it can show that an action is vexatious or reckless. This is a difficult onus to discharge. Our courts have attempted to define vexatious litigation:

In the words of Holmes JA in African Farms & Townships v C.T. Municipality 1963 (2) SA 555 (A) at 565D-E, "an action is vexatious and an abuse of the process of Court … if it is obviously unsustainable". In Golden International Navigation SA v Zeba Maritime 2008 (3) SA 10 (C) para 18, Griesel J posited that an action is vexatious and frivolous, "where on the face of the pleadings it is shown that the action cannot be maintained".

Thus it is possible to call for security, no longer as a right, but if the Plaintiff’s action is vexatious or reckless.