- Daniel Cebo Bottoman was bitten on the mouth by King, a guard dog owned by his neighbour Nizaam Rossie.
- Video footage captured Bottoman putting his head into the Rossies’ property just before the attack happened.
- The High Court found that he ignored repeated warnings to stay away from the dogs and had taken on the risk himself.
A split-second decision to peer over a neighbour’s wall cost a Cape Town man his damages claim. The High Court in the Western Cape found that he was responsible for the dog attack that followed.
Daniel Cebo Bottoman was bitten on the mouth by King, a dog owned by Nizaam Rossie, while standing at the boundary between their neighbouring homes in Thornton on the Day of Reconciliation in 2018.
He later took legal action against Nizaam Rossie and his wife, Shiyaam Rossie, saying that King had acted out of character for a domesticated dog and that the couple had not properly contained the animal behind their boundary wall.
The Rossies denied any liability, saying Bottoman brought the incident on himself by putting his head into their property despite being warned several times to leave the dogs alone. They also told the court that Bottoman often approached the dogs while drinking and playing loud music, behaviour they said always agitated the animals.
The footage that settled the facts
The most convincing evidence was a silent video recording of the attack. Nizaam Rossie testified that he was not home when the incident happened because his family had taken him out for breakfast for his birthday. He only learned what happened when the footage was shown in court.
The video showed Bottoman standing in his own yard before leaning his head over the boundary wall into the Rossies’ property. Moments later, King jumped up and bit him on the mouth.
Shiyaam Rossie told the court that King was both a family pet and a watchdog. She described him as usually calm but said he became agitated whenever Bottoman came near the perimeter wall. She said Nizaam had warned Bottoman several times to stop interacting with the dogs because it got them worked up.
Bottoman never gave evidence
A crucial turning point in the trial came when Bottoman chose not to testify. Although he attended the trial and heard the Rossies’ account of what happened, he chose not to challenge their version under oath. Acting Judge TJ Mgengwana said that decision allowed the court to draw an adverse inference and accept the Rossies’ evidence because it was not disputed.
Bottoman’s legal team argued that the Rossies could not rely on provocation because they had never specifically used the word in their evidence. Judge Mgengwana rejected that, saying it was not about the legal term but about the actions that caused the dog to react.
“Plaintiff’s conduct when he decided to stick his head into his neighbour’s yard for no apparent reason is exactly what Judge Fortuin refers to as ‘some other extrinsic conduct’,” Judge Mgengwana said.
The court found that Bottoman’s head was inside the Rossies’ property when King bit him, and that his actions directly caused the attack.
A high level of recklessness
Judge Mgengwana ruled that the bite would never have happened if Bottoman had not leaned into the neighbouring yard.
“It cannot be in dispute that the incident would not have happened if the Plaintiff had not decided to poke his head into the Defendant’s yard,” the judge said.
The court found that Bottoman knew King was a guard dog, knew the dogs got agitated and barked whenever he came near the boundary, and ignored repeated warnings from Nizaam Rossie to stay away.
Even if Bottoman had been trying to build a relationship with the dogs, Judge Mgengwana said he should have realised that they were not responding to him in a friendly way. “His failure to do so showed a high level of recklessness on his part,” Judge Mgengwana said.
The judge also ruled that Bottoman had willingly taken the risk of being bitten by putting his head into the Rossies’ property, even though he knew how the dogs reacted to him.
Claim dismissed
The court found that Nizaam and Shiyaam Rossie had successfully proven several defences to Bottoman’s claim under the actio de pauperie. Bottoman’s alternative negligence claim also failed because he could not prove that either Nizaam or Shiyaam Rossie had acted negligently.
The High Court dismissed Bottoman’s claim in full and ordered him to pay the Rossies’ legal costs, including their counsel’s fees on Scale B.
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