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Discussion in 'Breed Specific Legislation' started by Nutz, Sep 3, 2018.

  1. Nutz

    Nutz Hot Topics Subscriber

    Right, so here is a copy past of a response I got to the question of legal sineage from our local forum.

    I absolutely trust the source...................



    EMAIL: chris@sadtc.co.za

    Dear Chris,

    1. I refer to your email of last week with regard to the possible risks and legal implications of affixing “BEWARE OF THE DOG” and similar signs to gates, with particular reference to whether or not this may increase the risk of litigation.

    2. I understand the point to be that because one puts up a sign warning people of a dog by implication you should know that your dog may bite someone and you must then take extraordinary steps to limit the risk to harm.

    3. There may well be some merit in this argument. However, I believe that the counter argument is more persuasive.

    4. Without boring you with too much arcane legal detail there are essentially two ways in which a victim of a dog bite may recover damages from the owner or handler. The first is what is known as the actio de pauperie. This is an old Roman action which is aimed specifically at the recovery of damage caused by an animal from that animal’s owner. Liability in terms of this action is strict. There need not be any negligence on the part of the animal’s owner.

    5. All that needs to be shown is the following:-

    5.1. that the animal was owned by the person sued;

    5.2. that the animal was domesticated;

    5.3. that the animal was acting contrary to the nature of its class;

    5.4. that the conduct of the animal caused damage.

    6. The only element that I believe we need to concern ourselves with, in this context is 5.3: whether or not the animal acted contrary to its nature. It has been held in the past that animals defending themselves act in accordance with their nature and not contrary to it. This argument can be extended to a dog protecting its territory from a trespasser. On the note of trespass, as I understand it, it is a defence to a claim based on this action that the person bitten was not on the property with lawful purpose and that he had no legal right to be there. This would seem to exclude the right of a trespasser or burglar from launching such a claim.

    7. The other type of action, which is typically claimed in the alternative to the action set out above, is also an old Roman action called actio legis Aquiliae. This is an action aimed at the general recovery of damages. In order to succeed in this action the person instituting the action must prove negligence on the part of the person in control of the animal in question, which may or may not be the owner thereof.

    8. In order to succeed it must be shown that there must be some duty of care owed by the owner or handler to the person injured. An owner would certainly owe such a duty of care to a person lawfully on their premises, such as an invited guest. There is also a duty of care towards a trespasser although it has a more limited nature. The extent of the duty is dependent upon the circumstances. I am of the view that this duty would be discharged by fencing and gating one’s property and affixing an appropriate sign. One need only take reasonable steps to eliminate or reduce the possibility of harm. On the note of duty of care, an owner or handler of a dog which is in the habit of or has the propensity to bite people may be required in law to take more precautions than an owner or handler of a dog which does not have such propensity.

    9. There are a number of defences to both of the aforementioned actions including provocation by the person bitten, contributory negligence of the person bitten, for instance inadvertently standing on a dog’s tail or interfering with it whilst eating, or the implied indemnity afforded by the legal defence of volenti non fit injuria. The essence of the latter defence is, if a person in the knowledge of a particular risk accepts that risk and persists with his conduct in the face of the risk, he cannot then claim damages from a third party if he is injured.

    10. I believe that placing signs such as “BEWARE OF THE DOG”, “NO TRESPASSING” and “ENTRY AT OWN RISK”, particularly where there are dogs which have a propensity towards biting, on one’s gate in a conspicuous place is prudent.

    11. The Supreme Court of Appeal affirmed that one need not divide dogs up into specific breeds but treats them as a single class of animal. It would seem that, sensibly, the Supreme Court of Appeal does not regard some breeds as more inherently dangerous than others and it takes each individual dog as it finds it. It is my view that dogs which have been specifically trained for security work such as man work or patrol dogs should have such warning signs affixed to their premises. What one must appreciate is that the Judge or Magistrate hearing a particular case may have no experience with animals at all and may believe, contrary to the truth, that such a trained dog is more likely to bite someone than an untrained dog, whereas I believe the opposite is more likely to be true.

    12. I am not of the view, and I do not agree with the argument, that by virtue of you affixing a sign to your gate warning persons of the presence of dogs implies that your dogs have the propensity towards biting people and thus you would be held to a higher standard.

    13. In the circumstances I believe it is probably prudent to put up signs, regardless of the nature of the individual dog and its training as you would then be able to use a great deal more legal defences than if there was no sign.

    14. From the statutory perspective, the Animal Matters Amendment Act of 1993 makes it a criminal offence to, through negligence, permit an animal to cause injury to a person. The test in the prosecution for such a crime would be fundamentally the same as those in a civil action as set out above, although the State’s burden of proof would be higher. On this note I performed a very brief and cursory survey of local municipalities’ dog by-laws. It is interesting to note that each city in the Ekurhuleni Metro seems to have its own by-laws but they are, for the most part, almost the same. Johannesburg, Alberton, Brakpan and Kempton Park all require that when dogs are in public that they be on leashes. I believe that if a dog is permitted to be off a leash in public and someone is injured as a result of a bite then that may well meet the necessary negligence test for both the criminal charge and a civil damages action. (As an aside, this is one of my pet hates!)

    15. In short, I believe that one would have a far easier time in court defending a case if you put up a sign than not.

    16. I trust you find the abovementioned to be useful. If you wish I will refine it and give reference to the appropriate authority and you may consider then publishing it in the newsletter. At present the above is nothing more than an off the cuff opinion and I would be grateful if you did not publish it until I have had an opportunity to refine it and quote the appropriate authorities.



    So why am I posting this ? Well we had another intrusion into our property last Tuesday... Seems it was a house breaking that was spotted, and the perp landed going through some properties mine being one of them...

    And Grumble is comming along just fine..... Give her another 12 or so months, and she should be just about prime to remove someone's "Christmas tree decorations" and earn a big, fat, juicy prime piece of rump steak...

    Now, Here is some additional advice I got from an ex policeman, as well

    1 Sineage has to be visable from all directions that entry can be gained, even if that is over your neighbour's wall. It has to be in one official language and an African language. Sinage must specify what you mean by "Property" else they claim "confusion"

    2 Take photo's of the sineage in case you have to go to court.

    3. If you make a written statement, take a photo of the statement before leaving the police station

    4. If you have CCTV footage, make a copy, hand the COPY to the police & keep the original... Tell them you have the original for submission in court.

    5. Sineage that refers to trained to... will land you in trouble....

    Seems that the law enforcement are into scamming you by having docket's and evidence disapearing, and when the trespasser then sues you and there is a successful claim against you, both the police and the legal-aid prosecution get a kick-back from the pay-out...

    The first thing they get you with is as there is no sign the trespasser did not knoww the dogs....

    He was just getting his ball... (If from a neighbour's property) so how was he to know the dogs will............. (Signs visable to all points of entry)

    Any humerous sign will land you in trouble.... He thought the sign was funny not to be taken seriously...............

    Right, so given all of the above, I'm having this sign translated into Zulu


    This property is protected by dogs whose natural instinct is to protect and defend their territory from intruders.

    This property (Erf 1076) is defined as their territory

    Do not enter this property without the owner’s express permission

    Failure to comply with this notification may lead to injury

    Size is A4 Landscape......... Readable from what? 10M The Zulu bit going to be a wee bit smaller than the English..............But still readable from about 5 Meters....:evilgrin:.... Got to give Grumble SOMETHING to look forward too:evilgrin::evilgrin:

    Right, so what you fellas think ?
    • Like Like x 4
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  2. JanS

    JanS DCF Owner Administrative Staff Moderator Hot Topics Subscriber

    It's very interesting that the laws regarding sinage varies so much from state to state and country to country. In this state you are most likely going to be deemed liable if you have a sign up and someone gets bitten, even if they are trespassing. They say that by putting the signs up it means you are aware that your dog could bite someone so you should keep it better contained. I say BS to that when it's your property and they are intruding where they're not supposed to be.

    We do have signs up indicating that we have Doberman's on the property but I removed any part that says "caution" or "beware".
    Here is one sign I changed a bit.
    Beware Doberman sign.JPG

    Doberman sign by door.jpg
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  3. Oh Little Oji

    Oh Little Oji Formerly Tad Hot Topics Subscriber $ Forum Donor $

    Ah, I've wrestled with this question for years. Sounds like you're going to make a good decision based on the opinion of your lawyer friend.

    Currently, I know my wife would not let me put up any signage; but I think that in years past I had decided upon something that did not specify "beware" or allude to any danger, rather it just would say something like "Note: Dogs on premises." Perhaps it could show the profile of a Dobe, as Jan's do, or a German Shepherd or Pit Bull. It would seem a pretty thin argument in court that, by using such an image, you were saying that you knew your dog(s) would bite. This, despite that the image would depict (if a Doberman) a dog with cropped or ears for sure. One may wish to argue with me over cropping v. non-cropping, but come on! Which image would you want on a beware of dog sign? An uncropped Dobe or a cropped Dobe?
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  4. Tropicalbri's

    Tropicalbri's $ Premium Subscriber $ Hot Topics Subscriber $ Forum Donor $

    My work crew had a sense of humor in choosing this signage for me. 047952D4-6892-46CA-A63B-B83564FAB99B.jpeg
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  5. Tropicalbri's

    Tropicalbri's $ Premium Subscriber $ Hot Topics Subscriber $ Forum Donor $

    Our county laws do state that signage must be placed every 25’ of fenced property warning that a dog is on the premises and could pose a hazard to trespassers.
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  6. Nutz

    Nutz Hot Topics Subscriber

    There's the thing... You open yourself if you allude to Bite / trained / dangerous and so on.

    However if you state whose natural instint is is to defend & protect their territory then you have not done anything to exacerbate a situation where harm is caused

    Further, due to the way the sign is worded, it sends a very clear and sobering message....
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  7. Oh Little Oji

    Oh Little Oji Formerly Tad Hot Topics Subscriber $ Forum Donor $

    Yes. I suppose even a ferret has a natural instinct to defend & protect its territory.
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