Mc Naught & Co

Wrongfulness and Legal Duty

A recent judgment was passed in the Supreme Court of Appeal, the facts to the case itself are indeed interesting, especially for pet owners.


The claimant in the matter, arranged with her friends for a weekend of leisure at the Harmony Park Resort, a day camp (the Day Camp) situated at Strand in the Western Cape. The Day Camp was a public facility under the control of the defendant, the City of Cape Town.


As such it is a public facility under the Municipality, constituted in terms of the Local Government: Municipal Structures Act 117 of 1998.


At the entrance of the facility there were two prominent signs at the entrance indicating that cycling and dogs were not allowed within the resort, there was also access control and security personnel searching the vehicles. On her way to one of the tidal pools located within the Day Camp, she saw people scattering., suddenly a dog was attacking and biting her. She attempted to fight off the dog.


It appears the dog entered the premises where there was an unfenced area, with its handler. The dog was on a leash prior to breaking loose. The handler testified that he knew he was not permitted to take a dog into the Day Camp. There is a prominent sign at the main entrance that made that clear. He had seen people with dogs at the Day Camp on a number of prior occasions, but mostly, though not exclusively, on weekdays


In concluding the case it was held that the Municipality and Owner were liable and were to contribute 50 % of the damages.


The matter went on appeal by the Municipality, and more than one interesting argument was put forward as to why they should not be liable save only the owner.



 As a starting point, it is essential to note there are five elements that must be present before a person can be set to be delictually liable.

The basic elements of delict are.

  1. conduct,
  2. wrongfulness;
  3. fault;

4. causation and;

  1. damage.


In assessing the following case the following points of law were looked at wrongfulness.


In examining same , wrongfulness functions to determine whether the infliction of culpably caused harm demands the imposition of liability or conversely, whether the “social, economic and other costs are just too high to justify the use of the law of delict for the resolution of the particular issue”. Wrongfulness typically acts as a brake on liability, particularly in areas of the law of delict where it is undesirable or overly burdensome to impose liability.


In the following case it was submitted that the City’s liability in relation to wrongful conduct on the part of third parties called for clarity and a pronouncement by the court, and that this met the requirement of a compelling reason for the appeal to be heard in terms of s 17(1)(a)(ii) of the Superior Courts Act. At the end of last year the court confirmed a decision, also by the Western Cape Division of the High Court, holding a Municipality liable for the consequences that followed on the act of a rapist who made his way into a residential resort controlled by it. Of course, the court was astute to consider each case on its own merits.


It was concluded The City’s was negligent, as it failed to take adequate steps which would have prevented the attack on the claimant by the dog – an omission.

It was also pointed out that in the case of a positive act that causes physical harm, it is presumed to be unlawful. However, in the case of a negligent omission it is only unlawful if in the circumstances the law regards it as sufficient to give rise to a legal duty to avoid negligently causing harm, which was in this instance.


The owner on the basis of the actio de pauperie was partially liable as a joint wrongdoer  with the Municipality, and the handler was not held liable.

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