In the recent judgment of Van der Westhuizen v Burger 2018 (2) SA 87 (SCA), the Supreme Court of Appeal had to consider whether provocation of a wild animal could be lawfully raised as a defence to the actio de ferris in order to escape liability of a victim’s claim.

In this matter, the claimant, visited the appellant, owner of the farm and the wild animal, on his farm, where he was chased by one of the owner’s ostriches. In his attempted escape from the said ostrich, the claimant tripped over a piece of wood, tore his Achilles tendon and as a result suffered damages which he claimed against the owner. The claimant based his cause of action on the actio de ferris based on ownership of the wild animal and as such strict liability is imposed on the owner of such animal for the consequence of the animal’s behaviour and as such the claimant was absolved from proving negligence on behalf of the owner.

The owner in the court a quo argued that the claimant teased and provoked the ostrich by grabbing it at the neck and throwing it with a stone and that the claimant injured himself in an attempt to escape from the ostrich. The court a quo dismissed the defence of provocation stating that “...only if the provocation was the immediate catalyst for the resulting injury, would it qualify as a defence. In my opinion, there was no immediate provocation...”. It also held that causation had been proved as the “...injury would not have occurred had it not been for the claimant escaping the ostrich’s attack in the first place...”. The claimant denied provoking the ostrich and argued that he was fearful of it.

On appeal, the Supreme Court of Appeal had to decide on the following three questions:

-    Whether provocation should be recognised as a defence to the actio de ferris?;
-    Whether the claimant had provoked the ostrich into chasing him?; and
-    Whether the pursuit of the ostrich was the cause of the claimant’s injury?

Based on the evidence led by the owner (appellant), it indicated that the claimant (respondent) was not afraid of the ostrich due to previous encounters and interactions with the said animal. The Court held that provocation is indeed a lawful defence and that the claimant had provoked the animal by throwing a stone at it and that the pursuit was not the cause of action. The claimant’s flight had been interrupted by him falling to the ground and after his fall he was at the mercy of the ostrich, which did not attack him. When he stood up to run into the house, he stepped awkwardly and injured his tendon.

The appeal was thus granted with costs, setting aside the order of the court a quo.