Mankind’s best friends offer unparalleled companionship and have been known to improve the overall health and well-being of their owners. But a large subset of dog owners want dogs to protect people in crime-ridden South Africa.
The main responsibility of owning an animal is to keep it healthy and alive and to ensure that it does not cause harm to others. Dog owners should be aware of the legal consequences associated with pet ownership. Likewise, people should know how and when to assert their rights if they are injured by a dog.
Depending on the circumstances, ownership of vicious dogs can attract criminal and/or delictual liability. Although different consequences may exist in criminal law compared to delict law, the test for breaking the law is identical in both criminal and delict law.
criminal law
Criminal liability begins when it can be proven beyond a reasonable doubt that the accused person in capacity intentionally or unintentionally committed an illegal voluntary act. Illegal actions are more in the form of actions prohibited by law, but inaction is a form of action, so illegal actions can be in the form of actions that are not performed (omission). Mens rea refers to the intention or negligence of the accused in the commission or omission of the crime.
To prove that the accused committed a crime internationally, it must be shown that at the time of committing the crime, the accused must have known that his actions were illegal and punishable by law, but nevertheless committed the crime.
Test for negligence, which is limited by the court in the case of Kruger v Coetzee, is whether a reasonable person could have foreseen a reasonable possibility of harm and would have taken reasonable steps to prevent it from happening, and whether the accused failed to take those steps. In the event of a dog attack, the test is whether the owner of the dangerous dog could have foreseen the possibility of the dog attacking a third party and would have taken steps to prevent harm, and whether the owner of the dog failed. to take the necessary steps.
Acts or commissions are prima facie considered illegal, while omissions are prima facie considered legal because there is no public duty to protect others from harm. The general rule is that a person will not be held criminally liable for failing to protect or save another person. However, there are exceptions to this general rule and in certain circumstances, failure to act (omission) can be criminalized when there is a legal obligation to act.
The test for whether there is a legal obligation to act, informed by the values in the Constitution, is described in cases Minister of Police v Ewels and it entails that the legal duty to act exists when the legal belief of the immediate public that such a duty to act exists and omitting it is considered illegal.
There are well-established situations in our law when there is a legal obligation to act. The legal obligation to act may arise when there is a protective relationship, in terms of a statute, contract, common law duty or court order, by virtue of a public office or quasi-office, due to previous actions where an individual has created a potentially dangerous situation and when someone controlling a potentially dangerous thing or animal.
Criminal law
In ancient Roman law, owners of four-legged animals were liable for damages caused by their animals. It is accepted that the animal is the cause of the damage, but does not have the capacity to commit a legal wrong, so legal action is taken against the owner. Actio de pauperie for harm caused by domestic animals still applies in South African Law.
The following requirements must be met for the action of the poor to be successful:
- The defendant must be the owner of the domestic animal at the time the harm was done;
- The animal in question must be a domestic animal; and
- The animal must act contra natural sui generis when it causes harm (contrary to the common nature of domesticated animals)
Responsibilities and responsibilities of dog owners
At Johannes v. WilliamsThe court held that when a person has control over a potentially dangerous animal that could cause harm unless precautions are taken, he has a legal duty to protect third parties.
People know the ferocity of dogs. At St. Bernard the court held that it is a general possibility of the result of the injury which must be reasonably foreseeable and not a specific method and such nature.
Failure or negligence of the owner to prevent the dog from attacking a third party is illegal and should attract criminal liability and/or delictual damages.
At S v. Fernandez, the accused, the owner of a baboon, failed to repair the cage in which the baboon was kept. The baboon escapes and kills the baby. The court held that the defendant who controlled the baboon had failed in his legal duty to control the baboon and convicted the defendant of manslaughter. The same is true 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 the obligation to protect others from harm will undoubtedly amount to enforcing pure morality while violating individual freedom of action. Legally, we are not our brother’s keepers and as a general rule, we should not be responsible for other people’s problems. But the owner of a vicious dog is the keeper of the dog and must be responsible and accountable for the dog’s actions.
When can an injured third party pursue legal action against the owner of a dangerous dog?
Depending on the severity of the attack, dog attack victims can experience infection, scarring, nerve and muscle damage, tetanus, rabies, broken bones, loss of limbs, post-traumatic stress, loss of function, and some even death. But it is important to remember the principle of de minimis non curat lex (the law does not deal with trivial matters). Injured third parties must assess the intensity of their injuries and the effect of the attack on their well-being before taking legal action or making a criminal case with the police.
What is the dog owner’s legal defense?
The owner of a dog that has harmed a third party can avoid criminal liability by raising personal defense (self-defense). When the owner of a vicious dog has a legal duty to control it, they can be justified in setting it against thieves in place. The owner of the dog will be responsible but not responsible for the dog’s actions.
Owners of dogs that have harmed third parties may also avoid delictual liability in the following circumstances:
- Where the injured party is in a place where he is not entitled;
- If the victim or a third party or another animal causes the attack by teasing or harassing the animal; and
- If a third party controls the animal and is unable to prevent the animal from harming the victim.
How can the law reduce and eliminate attacks from dangerous dogs?
Public opinion calls for a ban on pit bulls. South Africa does not have a specific dangerous pets law which could act as a deterrent and force owners of dangerous dogs to be very careful with their dogs.
In particular, the Johannesburg Metropolitan Municipality’s Dogs and Cats Act of 2006 prohibits wild, dangerous or ferocious dogs and dogs that habitually chase vehicles or people from being brought into public places. The law further prohibits dog owners from setting their dogs against other people or animals. Violation of these laws will result in fines or imprisonment.
The ownership and domestication of pit bulls is prohibited in countries such as the Netherlands, France, Germany, Puerto Rico, Italy, Denmark, Venezuela, Ecuador, Spain, England and Switzerland. Breed-specific laws in the country are already in effect.
In England, pit bull terriers and Japanese tosas are classified as dogs bred for fighting under the terms of the Dangerous Dogs Act 1991 as amended by the Anti-social Behavior, Crime and Policing Act 2014. The law prohibits breeding, selling, gifting. and abandoned the dog. The law also requires these types of dogs to be leashed and leashed when in public places.
The Dangerous Dogs Act also imposes criminal liability on the owner of a dangerous dog if the dog injures another person. The maximum sentence given is 14 years if the person dies as a result of the injury, five years in other cases where the person is injured and three years in any case where the assistance dog is involved.
South Africa needs special dangerous pets legislation that restricts dogs that are a danger to the public and makes provisions to ensure that dogs are kept under control and sanctions for violating the legislative provisions. Before getting there, owners of dangerous animals should take extra care to protect third parties from harm.
Lilleonah Chivenge is an aspiring lawyer, writer and community lawyer educator.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.