The actio de pauperie in South African law

For centuries, jurists were at pains to provide a rational explanation for the principle of noxality. One argument, for instance, that was frequently advanced, proceeded from the fact that it is the owner who derives the benefit from having the animal among his assets; it is only reasonable, under these circumstances, that he must also carry all the burdens associated with this piece of property.^[5814] But why was he then liable only for the consequences of the animal's conduct contra naturam and not also for the damages caused secundum naturam? Others, therefore, rather emphasized the principle of "alterum non laedere": every person had to be responsible for all the damage that either he, or one of the assets under his control, inflicted upon others.^[5815] But this, too, was a somewhat awkward explanation.

All this, at least to us, sounds rather unconvincing and it is surprising that the principle of noxality survived, in Germany, until the eve of codification.^[5819] In actual practice, however, things often looked quite different. Saxonian law, for instance, did not recognize the option of a noxal surrender,^[5820] and in other parts of Europe, too, the question was debated whether it had not been rendered obsolete. This view was, indeed, adopted by a whole variety of Frisian and Flemish authors,^[5821] but not in Holland:.. maneft] in reliquis apud nos intacta romani juris definitio [...], etiam quantum ad ipsam noxae dandi licentiam, et subsequentem inde liberationem", as Voet specifically stressed.^[5822] The South African courts, though (in theory) applying "romeins-hollandse reg'V^[5823] have not perpetuated this tradition. As a means of escaping "just liability for damage done by one's animals acting contra naturam", noxae deditio is regarded "as the remnant of an archaic practice wholly at variance with and unsuited to the notions of justice prevailing in modern times. Its observance was not in keeping with the legal philosophy of the past century and of our own day. The surrender of a harmful, and it may be worthless, animal is no compensation to an injured person".^[5824] With noxae deditio, the doctrine of noxa caput sequitur, with all its consequences, was also bound to go.^{[5825] [5826] The only person liable is the original owner, "and he [is] liable for compensation pure and simple.}

(b) Range of animals

A second point on which there has been some development is the range of animals covered by the pauperian remedy. It has always been generally agreed that the actio directa was applicable in the case of quadrupedes, while an actio utilis had to be granted if a two-footed animal had caused the damage;¹⁴¹ but this distinction was not of practical significance. A large number of writers, however, understood Paulus D. 9, 1, 4 ("Haec actio utilis competit et si... aliud animal pauperiem fecit") as referring also to wild animals (no matter whether two- of four-footed). "Quando autem Dominus illas bestias habet in domo et custodia sua quodammodo domesticorum animalium, aequum est, ut teneatur perindc ac aliorum nomine", it was argued:¹⁴² if a person preferred to keep a crocodile rather than a lap dog, this could hardly be regarded as a good reason to relax his liability.¹⁴³ In modern South African practice the question has not yet been settled conclu­sively. On the one hand there arc judicial dicta in favour of the view that the damage must have been caused by a domestic animal;^[5827] yet, on the other hand, the action has been granted where bees or meerkats have displayed their innate viciousness.^[5828]

(c) Contra ins naturale

This brings us to a third important aspect. The question of whether or not liability under the actio de pauperie extends to wild animals is obviously closely related to the way in which the "contra naturam" test is taken to operate; for if one requires that an animal must have acted in "breach of the good behaviour that is its second nature"¹⁴¹¹ in order to make its owner liable, one can hardly apply the actio de pauperie to animals still persisting in a state of natural ferocity. This is why Struve, amongst others, argued:

^H Cf.. for example, Cluck, vol. 10. pp. 292 sq.

^IL Lauterbach. Collegium theoretico-practictim, Lib.

^M3 But cf. Gluck, vol. 10. pp. 271 sq.: a person who docs not take specific care when encountering a wild animal can only blame himself if he is attacked. A person approaching a domestic animal, on the other hand, can normally expect not to be attacked by it.

Occasionally, the question was discussed whether the actio de pauperie utilis could also be granted if a lunatic had caused the damage. After all, the furiosus could, arguably, be regarded as an "animal... quod sensu caret" (UIp. D, 9, 1, 1, 3); and in D. 9, 2, 5, 2 LÜpian himself makes a comparative reference to the case of "si quadrupes damnum dederit" when discussing the situation of "si furiosus damnum dederit". For further discussion, see Stryk, Ustts modernuspatidectamm. Lib. IX, Tit. I, §§ 1 sq.; Gliick, vol. 10, pp. 294 sqq.

^l' O'Callaqhan v. Chaplin 1927 AD 310 at 337 and 370: South African Railways & Harbours v. Edwards 1930 AD 3 at 9 sq.

^I4J Coosen v. Reeders 1926 TPD 436 at 439 (where bees arc classified as "animals of vicious propensities"); Kli'm v. Boshoff \93l CPD 188. Cf. also Beany v. Donelly (1876) 6 Buch 51 at 52 fconcerning monkeys).

uip (j_owep _v. Friedman & Co. (1888) 5 HCG 12 at 44.

"Ad feras autem, licet in custodia rctincantur, non rcctc applicatur utilis actio de pauperie: quia et verbs et mens atquc ratio legis, quod sc. animal contra indolem suam et consuctudinem noccat, cessat."^{[5829] 144 * [5830] [5831]}

Interpretation of the "contra naturam" requirement, unfortunately, turned out to be a highly volatile affair. Even by the time of Justinian it was no longer used in the sense in which it had once been devised. The conduct of animals as well as human beings was thought by the Byzantines to be governed by certain rules of natural law.

(d) Contra naturam sui generis

The glossators further obscured the issue by introducing an amend­ment, which became almost universally accepted. Accursius, in his glossa "Contra naturam" ad Inst. IV, 9, provides the following definition:

"id est, consuctudinem generis illius animalis: licet sit sua consuetudo ut calcitrct...

[n]am maior pars cquorum non pessundat: et maior pars bo[v]ura cornu non petit: quia equi, ct boves dicuntur mansueti."

The "contra naturam" test had thus been turned into a "contra naturam sui generis" test.¹⁵" It was obviously intended to accommodate cases such as the ones discussed in Servius/Ulp. D. 9, 1, 1, 4 and thus to make it clear that, even if the individual animal was in the habit of acting rather viciously, the damage could still be taken to have been inflicted "contra naturam" if the class of animal to which it happened to belong, was not supposed to behave in such a way. In other words, horses in general act contra naturam if they kick, and hence the owner of a horse that has caused damage by kicking, is liable, even if this specific horse is notorious for kicking. But the choice of phrase ("contra naturam sui generis") was rather unfortunate in that it conveyed the idea that certain forms of behaviour are characteristic of specific classes of animals—the implication being that the owner would be liable only if (to pursue the example) his horse had behaved in a way contrary to the nature of the class of horses. This inference, however, was very rarely, if ever, drawn;^[5832] for it would largely have eroded the substance of the actio de pauperie.

(e) The "reasonable cow" test

Modern South African courts, as is apparent from this example, still apply the "contra naturam (sui generis)" test in order to determine whether the owner of an animal that has caused damage, is liable or not.^[5838] But the case law that has emerged over the years clearly reveals its chameleonic nature. Occasionally, the courts have adopted what one could call a subjective approach: the animal must have been moved by its innate wildness, viriousness or perverseness to inflict the injury.^{1 8} An over-friendly, large dog that hugs a visitor can thus, for instance, not be taken to conduct himself contra naturam sui generis. Other decisions proceed from a more objective perspective. There the view has been adopted that, in order to be contra naturam sui generis, the action of the animal in question must have been in conflict with what may be expected of a well-behaved animal of its kind.^[5839] What this boils down to, effectively, is thejudicial creation of the "reasonable cow" or the "reasonable duck" as a criterion to determine the owner's liability. The absurdity inherent in this form of anthropomorphism hardly needs to be elaborated upon.^[5840]

8.