Van Meyeren v Cloete

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cachalia JA, Wallis JA, Mocumie JA, Ledwaba AJA and Weiner AJA
• Judgment Date: 11 September 2020
• Court: Supreme Court of Appeal
• Hearing Date: 11 September 2020
• Citation: 2021 (1) SA 59 (SCA)
• Counsel: DJ Coetzee for the appellant. HJ van der Linde SC (with N Barnard) for the respondent.
• Docket Number: 636/2019 [2020] ZASCA 100

Wallis JA (Cachalia JA, Mocumie JA, Ledwaba AJA and Weiner AJA concurring):

[1] At about 15h00 on Saturday, 18 February 2017, the respondent, Mr Cloete, an itinerant gardener and refuse collector, was on his way to the shops pulling the trolley in which he collects refuse down Rowan Street in Rowallan Park, Port Elizabeth, after completing a job. For no reason, and without any warning, he was attacked by three dogs owned by the appellant, Mr Van Meyeren. The dogs were cross-breeds, with a significant component of pit bull terrier. They savaged Mr Cloete to such an extent that neighbours who came to the scene thought he was dead. He survived, but his left arm was amputated as a result of his injuries. The present action is to recover damages from Mr Van Meyeren.

[2] Mr Cloete's claim was pleaded under the actio de pauperie and, in the alternative, in negligence. The parties agreed to separate the issue of liability from quantum and the trial was heard before Lowe J in the Eastern Cape Division of the High Court, Port Elizabeth. He upheld Mr Cloete's claim and granted a declaratory order and costs. Leave to appeal was refused but granted on application to this court.

The facts

[3] These can be taken largely from the judge's summary. Mr Cloete was in Rowan Street minding his own business. As he passed Mr Van Meyeren's home he heard the sound of the dogs behind him and was then attacked and pulled to the ground. He had done nothing whatsoever to cause or provoke the attack and was lawfully present at the place where it occurred. He was unable to ward off the dogs, but a passer-by, Mr Van Schalkwyk, fought the dogs off him and chased them away, while help was sent for. Ultimately the dogs also attacked Mr Van Schalkwyk. They were finally chased away by the police firing shots at them.

[4] The three dogs rejoiced in the names Mischka, Zeus and Coco. Mischka was the mother of the other two, but all three were fully grown. Mr Van Meyeren described them as house dogs that had the run of his home and garden and at night slept on his son's bed. The garden could be accessed from the street through the front door of the house, a gate adjacent to the garages and, potentially at least, another gate adjacent and at right angles to the front door. It was through the latter gate that the dogs gained access to Rowan Street before the attack. Photographs taken after the attack show the one half of the gate open.

[5] Mr Van Meyeren had been away from home in Sundays River since the previous Wednesday and Mrs Van Meyeren had gone to a family

Wallis JA (Cachalia JA, Mocumie JA, Ledwaba AJA and Weiner AJA concurring)

party. Their son and his girlfriend, Ms Meyer, were there on Saturday morning, but were out at the time, Ms Meyer having been the last to leave shortly before two in the afternoon to attend the same party as Mrs van Meyeren.

[6] Mr and Mrs Van Meyeren testified that the gate through which the dogs escaped was customarily kept closed and locked with two padlocks. Mrs van Meyeren said that, if her husband needed to open it, he would simply lift it off its hinges. Be that as it may, the photographs taken on the day of the incident showed that the one half of the gate (the left-hand side when viewed from inside the property) was open, while the right-hand half appeared to be shut and closed by a bolt located on the pillar of the central frame and fastened into a socket in the ground. None of these photographs showed any padlocks or other fastenings for the gates.

[7] A close-up photograph, said by Mr Van Meyeren to have been taken on the following Monday, showed the lower half of a gate with a bolt held in place by two heavily rusted padlocks. The shackle of one of these was bent inwards so that it could not close and the other one apparently did not lock, although the reason for this was not explained. It could be shut but could simply be pulled open. Both locks were open in the photograph. The gate was constructed of unpainted circular tubular steel, with a single bolt on the left-hand side when looking outwards from the inside of the property. The bolt had a long elliptical shackle at the top that fitted over an eye attached to the central gatepost on the right-hand side of the gate. Like the padlocks, both the shackle and the eye were heavily rusted. The padlocks were hooked through the eye. The indication was that the bolt fitted into a socket in the ground. A tubular steel bar crossed the gate about halfway up, roughly level with the bolt. The one vertical bar shown in the lower section of the gate was covered with chicken wire, but neither it nor the chicken wire extended above the cross-bar.

[8] Mr Van Meyeren's photograph was difficult to reconcile with the photographs on the day of the incident. None of the features appearing on his photograph were visible on the photographs taken on the Saturday, although counsel said he could see them on his copy of the photographs. Even the bolt holding the one half of the gate closed in the Saturday photograph appeared to be in the reverse position to that in Mr Van Meyeren's photograph. A more careful exploration of the factual position in regard to the gates and padlocks should have been undertaken at the trial in order to resolve these issues.

[9] There are other difficulties with the suggestion that the padlocks shown in Mr Van Meyeren's photographs were in position, locked and holding the gates closed when he and his wife left the property on the Wednesday and Friday, respectively, before this incident. The shackle of the one padlock was so bent that it could not fit into the locking hole of the padlock. It is difficult to conceive of how any interference with it could have left it in that situation. Mr Van Meyeren was asked how this could have happened and said he did not know. The extent of the

Wallis JA (Cachalia JA, Mocumie JA, Ledwaba AJA and Weiner AJA concurring)

corrosion and rust on the shackle suggested that it had been in that condition for some time. As to the other padlock, there was no explanation for it not remaining locked when closed. It too was extensively rusted and corroded and did not appear to have been closed for some time. But, if it could close, there was no explanation for it not remaining closed.

[10] All this bore upon the acceptability of Mr Van Meyeren's explanation of how the dogs came to escape from the property through gates that were securely locked. The explanation was entirely a matter of speculation. Its only evidential base was the claim by him and his wife that the gate was locked with these two padlocks when they left the property, although they did not say that they had checked the two padlocks. Based on their having been closed and locked, Mr Van Meyeren said that an unknown intruder must have attempted to gain access to the property via the gates and in doing so damaged the two padlocks in the manner shown. In turn this enabled the dogs to escape, either because the gate was left open or because it enabled the dogs to open it.

[11] How a potential intruder could have done this through the chicken wire and without attracting the attention of the dogs, which were not afraid to be aggressive as subsequent events were to prove, is a mystery. Ms Meyer said in her evidence that she saw the dogs there as she left the house. Why would they not have confronted an intruder? Why would the intruder force open these gates which did not lead into the house, instead of the front door? Ms Meyer said that the front door was 'broken open' when she arrived home, but in the photographs the front door is shown closed and apparently undamaged. Having forced open the gates, why did the intruder not carry on inside instead of disappearing? Had the intruder taken fright because of the dogs, one would have expected either that the dogs would have attacked the intruder, or that someone would have seen them fleeing the scene. Mr Cloete said that he did not see anyone else walking in the street. Nor did he hear anything unusual. Other than an endeavour to suggest that he was intoxicated at the time this was not challenged. If the gates were opened as a result of some endeavour by an unidentified person to intrude it was remarkable that this occurred without the dogs being alerted and without anyone seeing the intruder.

[12] The intruder explanation also posed difficulties with the time line of events. Ms Meyer left the property at about 14h00 and the incident occurred at about 15h00. During the intervening period a neighbour, Mr Visser, from 39 Rowan Street, went to borrow a tool from Mr Van Meyeren at 28 Rowan Street and observed that the gates were closed. He knocked on the front door, but received no response. There was no suggestion that as he crossed the road from his own house a possible intruder was seen by him leaving the vicinity. When he discovered that Mr Van Meyeren was not home he went back down the road to his own home and spoke to his father. He then came out again and went to the home of another witness, Mrs Van der Merwe, who lived at 41 Rowan Street. There he obtained the tool that he was seeking and returned home. As he started work on his car he heard a commotion in the street

Wallis JA (Cachalia JA, Mocumie JA, Ledwaba AJA and Weiner AJA concurring)

and went to investigate. He found Mr Cloete lying injured in the road. Other neighbours had come out to see what caused the commotion. The three dogs were further down the road. At most a few minutes had passed since he was in the road. However, there was no suggestion that anyone who might have been the supposed intruder was about and when he had gone to the Van Meyeren home the gate was still shut. No neighbour came forward to say they had seen some other person in the street. How then did an intruder manage to open the gate, or at least break both padlocks, within what was at most a few minutes and then vanish? If there was an...