18 July 2002
The recent number of attacks by vicious dogs against innocent people countrywide have received attention both in the Government and in the media and it would appear legitimately so, that questions are being raised regarding the control of these dogs
The accountability of owners of dogs for any damage caused by their dogs is regulated in terms of the common law. The actio de pauperie (action based on damage caused by animals) provides an injured person with a delictual remedy against an owner of an animal for damages caused by such animal. The action is based on the faultless liability of the owner and very few defences are recognised to exclude liability. They are vis maior, culpable conduct on the part of the injured person or a third party and provocation by another animal. Damages may be recovered from an owner for any damage to property or personal injuries.
The owner of a dog may, apart from attracting civil liability as pointed out, also be held criminally liable in terms of the common or statutory law. Criminal liability will be established where a dog has been used as an instrument to commit an offence. An example is where a dog has been incited to attack someone else which may result in a conviction for assault or even assault with intent to do grievous bodily harm. A successful conviction under such circumstances will depend on whether or not the accused person acted intentionally. Negligence on the part of the accused person will, with the exception of culpable homicide, exclude criminal liability in terms of the common law.
The Animal Matters Amendment Act, 1993 (Act 42 of 1993)("the Act"), among others, provides that a court may make certain directions in respect of injuries caused by animals. Section 1(1) of the Act provides that any person as a result of whose negligence an animal causes injury to another person, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years. A court convicting a person of contravening section 1(1) of the Act may, in addition to such conviction, make an order regarding the removal, custody, disposal or destruction of the relevant animal and the recovery of any costs incurred in connection therewith. The convicted person may in terms of section 1(2) of the Act be declared unfit, for a specified period, to own a certain kind of animal or an animal of a specific breed or to have it under his or her control or in his or her custody. The orders relating to the removal or destruction of an animal, the costs incurred in connection therewith and the declaration of a person to be unfit to posses the relevant animal, may also be made in terms of section 1(3) of the Act in respect of a person who
(i) causes the death of another person as a result of his or her negligence and who is found guilty of an offence with regard to such negligence; or
(ii) causes the death of or injury or damage to another person as a result of his or her deliberate action and is found guilty of an offence with regard to such action.
The licencing of dogs was, prior to 1994, regulated in terms of provincial Ordinances in the then four Provinces. Licensing of dogs currently forms part of the exclusive functional area of the provincial legislatures as provided for in terms of Part B of Schedule 5 to the Constitution. It would appear from enquiries made by the Department that provincial framework legislation relating to licensing of dogs is still in force.
As far as municipal structures are concerned it may be mentioned that some municipalities still enforce by-laws dealing with certain aspects of dog ownership, for example the liability for taxes, the impounding of dogs, and criminal liability for certain activities associated with the ownership of or control over dogs. However, there are also examples of some municipalities which do not enforce legislative measures anymore (the reason for this would appear to be due to financial and practical constraints.).
Indeed Government is mindful of people's rights to protect themselves and their properties against the criminal element. However extra precautionary measures must be taken to ensure that these dogs do not become a danger to innocent people in the streets. The Ministry is furthermore appealing to the Provincial governments to begging to work hand in hand with the their respective local governments in addressing this issue in a more serious light. If indeed they have to pass by-laws to control the movement and the ownership of these vicious dogs, then they should do so. As a country we cannot continue to allow vicious dogs to terrorise and even kill human beings with impunity. The owners must be held directly responsible for their actions.
Issued by: Ministry for Justice and Constitutional Debelopment