Escaped lions and tigers have been roaming the streets of South Africa preying on domestic and wild animals and resulting in life threatening attacks on humans unfortunate to meet such an encounter. This follows the escape of two tigers on 18 January 2023 and 30 January 2023 and a lion on 22 February 2023. Escaped wild animals is not an uncommon headline in South Africa. In 2019 fourteen lions escaped from the Kruger National Park, in 2020 seven lions escaped from another safari park and in 2022 six lions, four elephants, two rhino and a pack of wild dogs escaped from a zoo in KwaZulu Natal.
In this article, we will briefly highlight the possible claims owners of animals may be exposed to if their animal causes harm.
The two claims that we will deal with are known as the actio de pauperie (applicable only to domesticated animals) and the edictum de feris (applicable only to wild animals). These remedies have their origins in Roman law. The actio de pauperie has been confirmed to form part of our law in O’Callaghan NO v Chaplin 1927 AD 310 whereas the edictum de feris is yet to be definitively found to be part of our law, this is despite it being referred to or alluded to in a number of judgments. The edictum de feris is applied in Holland and therefore most likely forms part of our law.
The actio de pauperie is available to a person (“Plaintiff”) who can allege and prove the following:
- The ownership of the animal vested in the defendant at the time harm was caused.
- The animal was a domesticated animal.
- The animal acted contrary to the nature of domesticated animals generally in causing the harm to the Plaintiff.
- The conduct of the animal caused the Plaintiff’s harm (i.e. injury or death of an animal or person or breakage or destruction of property).
- The damages suffered by the plaintiff (i.e. pain and suffering, medical expenses, loss (i.e. damage to property)).
It is important to note that the liability of the domesticated animal is independent of any fault on the owner’s part.
The edictum de feris (assuming it does from part of our law) is available to a Plaintiff who can allege and prove the following:
- The defendant kept a wild animal in captivity.
- The wild animal so kept, did not naturally occur on the premises where the defendant kept the wild animal.
- The wild animal escaped captivity.
- The wild animal caused harm to the Plaintiff.
- The damages suffered by the Plaintiff.
Further, a general delictual claim may also be available to a person who has suffered harm as an alternative to a claim in terms of the actio de pauperie and the edictum de feris. Such delictual claims fall outside the scope of this article. Lastly, a person, in addition to civil liability, may also be held criminally liable for any injury or death caused to another person by their animal because of their negligence. This too falls outside the scope of this article.
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By Jason Dorning