This blog was co-authored by: Bwanika Lwanga, Candidate Attorney
In this January 2021 judgment the high court in Minister of Justice and Correctional Services v Kitcher and Another (874/2019)  ZANCHC 12 considered the question of whether the minister could be held liable for harm from an animal attack on premises within their control. Mr Kitcher was attacked and injured by dogs that belonged to Mr Sebogo, which he kept at the employee accommodation of the of the Douglas Correctional Centre. Kitcher sued for damages of R1 799 832.77 against Mr Sebogo and the Minister of Justice and Correctional Services.
The court traversed the element of wrongfulness in light of public and legal policy considerations which require that the conduct, where there is fault, is actionable. The court referred to Le Roux v Dey [Le Roux v Dey  ZACC 4 which held that the criterion of wrongfulness is dependent on a judicial determination of whether (assuming all the other elements of delictual liability are present) it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct. The reasonableness of imposing liability on a defendant depend on considerations of public and legal policy in accordance with constitutional norms.
The court reasoned that there is a duty imposed on the State and all organs of state not to perform any act that infringes the rights entrenched in the Bill of Rights. In this instance, this duty is compounded by the existent employment relationship between the Minister and the employees on the premises where the incident occurred. The court relied on the reasoning as per Minister of Safety and Security v Carmichele wherein the court held that a special relationship is not essential for wrongfulness. However, if there is a connecting factor between the plaintiff and the defendant, and the defendant is the State, it is more likely that the accountability imposed by the constitution will be enforced. The court held that the burden of eliminating the risk of harm did not outweigh the magnitude of the risk.
The minister had the required authority over the owner of the animals, who had failed to heed previous warnings from the minister to keep the dogs in his gated property or to dispose of them. In failing to instruct that the dogs be removed from the premises, the conduct of the minister was held to be unreasonable and negligent as such steps would not have involved much extra cost. Moreover, the minister and functionaries appreciated the risk that the dogs could attack and injure the residents or visitors to the complex as they had on other occasions attacked other residents and generally caused a disturbance in the neighbourhood. Therefore, the defendant should not only have foreseen the harm but acted to avert it.
Accordingly, it was held that the legal convictions of the community impose a legal duty on the Minister to prevent the tenants at the Correctional Centre from being harmed by the dogs and this failure attracted delictual liability.