The ‘actio de ferris’ rule originated during the time of the Roman Republic when wild or dangerous animals were brought into a public place where it was prohibited to do so.
The motive of this action was based on ownership and liability and was imposed on the owner of the animal for the consequences of the animal’s behaviour.
The victim therefore does not have to allege or prove negligence on the part of the owner.
In a recent matter before our Courts in the matter of Van der Westhuizen vs Burger 2018 (2) SA 87 (SCA) the matter was raised before the Supreme Court of Appeal where the provocation of a wild animal could be raised as a defence to this very old action that dates back to the Roman Law.
In this matter Mr Van der Westhuizen was the owner of an ostrich. The Respondent, Mr Burger, first sued out of the Gauteng Division of the High Court after the ostrich apparently attacked and chased him. Burger alleged that when trying to attempt to escape from the ostrich, he tripped over a piece of wood and tore his Achilles tendon. He then claimed damages from Van der Westhuizen to the amount of R6 750 000.00.
It was not in dispute that the incident indeed occurred on Mr Van der Westhuizen’s farm. Mr Burger alleged that Mr Van der Westhuizen introduced certain wild ostriches, which do not naturally occur onto his farm or alternatively that the Appellant had tamed and domesticated an ostrich who roamed close to the dwelling on the farm and which in attacking the Plaintiff acted contrary to animals of its class.
Mr Van der Westhuizen in turn raised the defence that Mr Burger provoked and harassed the ostrich on numerous occasions prior to this alleged incident. He further denied that Mr Burger, in attempting to escape, ran towards the dwelling on the farm and tripped over a piece of wood.
The court a quo (where the matter was first heard) dismissed the defence of provocation on the basis that the provocation was not the immediate catalyst of the resulting injury. The court a quo were of the opinion that there was no immediate provocation of the ostrich and the injury would not have occurred had it not been for Burger’s attempt to escape the ostrich from attacking him in the first place.
The court a quo therefore found that Mr Van der Westhuizen was liable to pay for such damages as Burger was able to prove in due cause, together with the cost of the action.
The matter was taken onto appeal by Mr Van der Westhuizen.
On appeal, the Court paid attention to the testimony of the witnesses of the Appellant who described how Mr Burger had teased a certain male ostrich on the farm of Mr Van der Westhuizen.
On numerous occasions Mr Burger would entice the ostrich to approach him with mielie pips in his hand. While the ostrich was busy eating out of his hand, Burger would grab the animal by the neck and push its head down. The ostrich would become aggravated and would flap its wings and stagger backwards after being released. The Supreme Court of Appeal was satisfied on a balance of probabilities that in this case the particular ostrich was the same one that had chased Mr Burger.
The Court did state that the evidence could not be used to infer that the ostrich held a grievance against Mr Burger, as that would constitute the impermissible attribution of human emotions to the ostrich.
The reality was however, that Mr Burger was not fearful of the ostrich. In his own evidence when he had approached the animal the night before the incident, he confidently dealt with it.
A certain Mr Kotze testified that he had seen how Mr Burger was walking towards the farmhouse while the ostrich was feeding at a trough. When Burger saw the ostrich, he threw something at it and the ostrich then chased him. Kotze maintained that Burger had run towards the front door of the farm house and fell. When Burger stood up, he saw the ostrich was still looking at him and quickly ran into the house. At no time did the ostrich kick Mr Burger or peck at him.
Based on this evidence the Court held that Mr Van der Westhuizen has discharged the onus of proving that Mr Burger’s conduct, by throwing a stone at the ostrich, had provoked its behaviour in chasing after him.
However the Court noted that in Case Law, provocation was not listed as a specific defence to strict liability arising from the attack of a wild animal.
It was rather recognised as a defense to the actio de pauperie, which is an action for damages caused by domestic animals and not a wild one.
Various court cases was considered in this matter including Bristow v Lycett 1971 (4) SA 223 (RA) as well as Klem v Boshoff 1931 CPD 188 and also Hanger v Regal & another 2015 (3) SA 115 (FB).
Based on its conclusions the Court therefore held that it is unnecessary to examine the issue of causation giving that Mr Van der Westhuizen could not be liable for the injuries sustained by Mr Burger in circumstances where the latter had provoked the chase.
In the above matter Van der Westhuizen’s appeal was upheld with costs.
This article can also be read on De Rebus.