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- This raises the question as to whether someone can be held legally liable for damage that has already occurred, and whether legal measures exist that can be enforced preventively to avoid damage by wild animals.
- Under South African case law, a person who causes damage, and who is held liable for it because he/she was negligent, must have reasonably foreseen in the circumstances that the act or omission could have caused damage or loss, taken reasonable steps to prevent the damage or loss, and then failed to take the reasonable steps.
- A distinction is made between game and domestic animals and apart from the delictual liability based on negligence, a special claim can be lodged if the damage incurred is because of game.
- Where game occurs naturally, there will usually be no liability for damage caused by such animals.
- Ownership of animals attracts responsibilities and there is a real likelihood to expand and more narrowly define such responsibilities with the liability for damage to others it may attract.
The number of game ranches in South Africa have grown exponentially over the past 20 to 25 years, with many farms now bordering game reserves and protected areas. This change in farming activities and land use has resulted in wild animals escaping from these protected areas or reserves, into areas where they can cause damage for others.
This raises the question as to whether someone can be held legally liable for damage that has already occurred, and whether legal measures exist that can be enforced preventively to avoid damage by wild animals.
Liability under South African law arises when someone, among others, intentionally or negligently does or does not do something, which then leads to damage for others. Intentional conduct typically comes into play if the intention is to cause damage or create harmful consequences. Negligence, on the other hand, is more complicated.
Read more about predators and problem animals on South African livestock farms.
Delictual liability and negligence
Under South African case law, a person who causes damage, and who is held liable for it because he/she was negligent, must have reasonably foreseen in the circumstances that the act or omission could have caused damage or loss, taken reasonable steps to prevent the damage or loss, and then failed to take the reasonable steps. A failure to observe this standard may result in what is known as delictual liability.
The onus rests on the injured party, in addition to other requirements for delictual liability, to convince the court that the damage or loss caused by the act or omission, and measured against the standard, amounts to negligence and that brings delictual liability into play. In the case of game, negligent conduct by the owner of these animals may in certain circumstances result in liability, but again the onus rests on the injured party to prove negligence.
In addition to delictual liability on the basis described, there are other forms of legal liability that pertain to the actions of animals, and which led to damage or loss for which the owner can be held liable, but without the need to prove negligence.
The remedies come from Roman-Dutch law and generally apply in instances where domestic animals such as dogs bite someone, or where herbivorous or plant-eating animals escape and damage the cultivated grazing or crops of neighbouring owners.
Game and domestic animals
A distinction is made between game and domestic animals and apart from the delictual liability based on negligence, a special claim can be lodged if the damage incurred is because of game. This legal basis for a claim is known as Actio de Feris, which arose to prevent wild or dangerous animals from being released or kept in public places or places where the public has access.
The circumstances that gave rise to this type of claim, however, differ significantly from the circumstances under which game, for commercial reasons and within the boundaries of designated areas, are kept today.
For this reason, a legal distinction is made between damage caused by game occurring naturally in an environment and that roam freely from one property to the next, and game not found in an environment and which are moved to and kept in such an environment by the owner. The case law refers to game that is introduced to a certain area.
Where game occurs naturally, there will usually be no liability for damage caused by such animals. However, if animals are not found naturally in a particular area or environment and are introduced into such an area or an environment by the owner, the escape of such animals and subsequent damage to the property of others may attract faultless liability that is based on the Actio de Feris.
It is also envisaged that the common law may even be developed further to cater for more current circumstances which will place a more onerous duty on the owners of wild animals to exercise control over their whereabouts and to prevent such animals from causing harm to others.
Possible defences
The only defences to a lawful claim caused by wild animals introduced to an area and that do not occur naturally can be the following:
- Contributory negligence of the person who suffered the damage or someone who knowingly entered the property.
- Where someone else (a third party) caused the action of the animal that caused the damage.
- Where the animal would follow its instinct in a natural environment (the area to which it is restricted).
It is possible for the number of claims to continue increasing in the future because of the keeping of game. Cases exist of wild animals escaping because of poor maintenance of game fences and for which the owners can be held liable for damage to crops on neighbouring properties.
It will be interesting to see to what extent our courts will apply the Actio de Feris to hold the owner of wild animals accountable for reasons already stated. For the owners of wild animals or game it should be wise to err on the safe side of caution. Ownership of animals attracts responsibilities and there is a real likelihood to expand and more narrowly define such responsibilities with the liability for damage to others it may attract. – Hans-Jurie Moolman, Moolman & Pienaar Incorporated
For more information, contact Hans-Jurie Moolman at 033 032 0241 or hj@mmlaw.co.za.
