Don’t tease the ostrich: Considering the actio de ferris and the defence of provocation in modern South Africa

April 1st, 2018
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Van der Westhuizen v Burger 2018 (2) SA 87 (SCA)

By Morgan Riley

In the recent judgment of Van der Westhuizen v Burger 2018 (2) SA 87 (SCA), the Supreme Court of Appeal (SCA) was seized with the question of whether provocation of a wild animal could be raised as a defence to a rather antiquated (but still existing) cause of action – the actio de ferris.

The actio de ferris arose in times of yore (in Republican Rome, to be exact), when bringing a wild or dangerous animal into a public place – or a place to which members of the public have access – was prohibited. The cause of action was based on ownership, and strict liability was imposed on the owner of the animal for the consequences of the animal’s behavior. The victim was thus absolved from alleging and proving negligence on the part of the owner, which was presumed.

The appellant before the court, Van der Westhuizen, was the owner of the offending ostrich. The respondent, Burger, had sued out of the Gauteng Division of the High Court in Pretoria after the ostrich had apparently attacked and chased him. Burger alleged that in an attempt to escape from his winged assailant, he had tripped over a piece of wood and tore his Achilles tendon. He, therefore, claimed damages in the sum of
R 6 750 000.

It was common cause that the incident occurred on Van der Westhuizen’s farm. Burger alleged that Van der Westhuizen had ‘introduced certain wild ostriches which do not naturally occur’ onto the farm, alternatively, that the appellant had ‘tamed and domesticated an ostrich who roamed close to the dwelling on the farm, which in attacking the plaintiff … acted contrary to animals of its class’.

In turn, Van der Westhuizen raised the defence of provocation, contending that Burger had ‘provoked and harassed the ostrich/ostriches on numerous occasions prior to the alleged incident’. He also denied that Burger had, in attempting to escape from the ostrich, run towards the dwelling on the farm and tripped over a piece of wood.

The court a quo dismissed the defence of provocation on the basis that the provocation was not the immediate catalyst of the resulting injury. In the opinion of the court a quo, there was no immediate provocation of the ostrich and the injury would not have occurred had not been for Burger’s attempt to escape the ostrich’s attack in the first place. The court a quo, therefore, found that Van der Westhuizen was liable to pay such damages as Burger was able to prove in due course, together with the costs of the action.

On appeal, the court paid particular attention to the testimony of the appellant’s witnesses in the hearing a quo, who described how Burger had teased a certain male ostrich on Van der Westhuizen’s farm. 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 then flap its wings and perform comical ‘dance steps’.  The ostrich would stagger backwards after being released, which apparently amused Burger and his audience. Burger denied all of this and maintained that he was afraid of ostriches. However, the SCA was satisfied on a balance of probabilities that that particular ostrich was the same one that had chased him.

The court took the view that the inherent improbability of Burger’s version of the incident was revealed when one considered the evidence of how he teased the ostrich on numerous occasions. Obviously, said the court, that evidence could not be used to infer that the ostrich harboured a grievance against Burger, as that would ‘constitute the impermissible attribution of human emotions to the ostrich’. However, the significance of the evidence lay in how it revealed Burger’s attitude toward the ostrich. The reality was that Burger was not fearful of the ostrich. On Burger’s own evidence, when the animal had approached him the night before the incident (in a far more aggressive manner), he confidently dealt with it, repulsing any threatened attack.

One Mr Kotze had testified that he had seen Burger 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 farmhouse and fallen. When Burger stood up he looked around, saw the ostrich looking at him and quickly ran into the house. The ostrich did not peck or kick Burger and did not appear to realise that he had been injured.

Based on the evidence before it, the court held the Van der Westhuizen had discharged the onus of proving that Burger’s conduct in throwing a stone at the ostrich had provoked its behavior in chasing 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. Rather, it was recognised as a defence to the actio de pauperie (that is, an action for damages caused by a domestic animal, rather than a wild one).

In dealing with this issue, the court considered the decision of Bristow v Lycett 1971 (4) SA 223 (RA) in which it was held that the defences to a claim for damage caused by a wild animal included situations where ‘the plaintiff’s contributory negligence contributed to his injury’. Although provocation of the wild animal was not expressly included as a defence, the court found that there was ‘no basis in principle or logic to recognise as a defence the case where the negligent conduct of the victim contributed to his or her injury, but not where the victim’s intentional conduct provoked the attack’. The defence had been recognised in other matters (for example, Klem v Boshoff 1931 CPD 188 and Hanger v Regal and Another 2015 (3) SA 115 (FB)).

Based on this conclusion, the court considered it unnecessary to examine the issue of causation, given that Van der Westhuizen could not be liable for an injury sustained by Burger in circumstances where the latter had provoked the chase. However, for the sake of completeness, the court pointed out that after Burger had fallen and was at the mercy of the ostrich, it did not attack him. The ostrich simply stood looking at him while he was lying on the ground, as well as when he stood up to run into the house. The ostrich did not display any aggressive behaviour towards Burger after he had fallen and his injury was therefore not caused by the pursuit. Thus, the court disagreed with the conclusion of the court a quo that ‘… it was one continuous event; the fall did not interrupt the flight, and the resulting injury would not have occurred had it not been for the plaintiff escaping the ostrich’s attack in the first place’.

In the end, Van der Westhuizen’s appeal was upheld with costs.

If nothing else, the case puts an authentically South African spin on the old adage of: ‘Don’t poke the bear’. The full judgment is well worth reading, not only for its bizarre set of facts, but also for the concurring judgment of Ponnan JA, which contains a fascinating treatise of the history of the actio de pauperie and actio de ferris.

Morgan Riley BA LLB (Wits) is an attorney at Knowles Husain Lindsay Inc in Cape Town.

This article was first published in De Rebus in 2018 (April) DR 38.

 

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