All in the love of a pet! Many linguistic authors have described a pet to include “favourite, preference, darling, idol, jewel, apple of one's eye, matinee, or, in French, enfante gâte.”
Having been frustrated or failed by human friends, whether male or female, humans all over the world from time immemorial had experimented with the animal world to find a real mate or friend. These animal friends stretch from domestic to wild animals, felines, bovines, canines, serpents, birds, fish and others, the list is endless. Some of the pests are fiery and dangerous to accommodate in a residential environment, but all has been done in the name of pet love.
These pets, to some of the humans, evolved into both great and false friends, and, as the saying goes “false friends are like migratory birds, they fly away in the cold weather.”
But, to the appellant in this case, he had managed to show a true character of a friend.
It may seem superfluous to say anything more since good friends are among life's greatest blessings and the lack or loss of them the saddest of deprivations, anything which reminds them of the value of a good friend does not come amiss.
The appellant bought a canine pet when it was young and cared for it for a considerable period which ran into years. During that period, a great alliance developed. As usual, friendship is a hard, strong, slow growing beautiful thing. The soul in which friendship grows is the social set up in which one lives.
Friends are made through the heart not the eye.
The appellant was not the only one who won the heart of the dog, but, his sons and the whole family became a total symbiosis to the dog - that is, from the photographs which were produced in the court a quo, filed of record.
The photographic images depict a real charming togetherness.
The Hebrew Scriptures accurately captures that “A faithful friend is a sure shelter. Whoever finds one has found a rare treasure. A faithful friend is something beyond price, there is no measuring his worth.”
If the dog could have been asked, during its life time, it could have equally vividly described how glorious its life was in the company of the appellant's family.
Friendship begins with a long standing invitation. It says to the other you get on well with; let us tear down the barriers between us, let us pledge ourselves not to fight one another, but rather to comfort, challenge and support.
One has to use a mirror to see one's face. You use a friend to see your soul. Thus, friendship is a union of one mind with another.
Men become like those they associate with.
Experience globally shows, that, pet lovers from the western world go to the extent of sharing their beds and relaxing rooms with their pets, and the majority in the orient dismiss their dogs to the outside when they retire, and, in most instances, the pet or dog has to find a warm place for the night; and, for the merry makers, they “patrol” the environment exposing themselves to the local authority shenanigans, who, in the spirit of controlling infested dogs, end up shooting residents pest - as what happened in this case.
On 15 March 2018, the appellant issued summons against the local authority, and its employees, claiming:
“(a) Payment of the sum of $2,800 being special damages;
(b) Payment of the sum of $200 being general damages;
(c) Interest a tempore morae from the date of judgment to date of payment; and
(d) Costs of suit.”
According to the synopsis of the appellant's particulars of claim filed in the Magistrate's Court, the first respondent is the local authority, the second respondent is the Town Secretary, and the third respondent is the Chief Security Officer.
On 16 July 2017, and at 21:25 hours, the respondent's employees wrongfully and unlawfully shot and killed the appellant's dog at the appellant's House No.1187 Mabvazuva Suburb, Rusape.
As a result of the respondent's wrongful and unlawful conduct, the appellant suffered damages, detailed as follows:
(a) Special damages for money spent on the dog: purchase money as a puppy, its upkeep, castration, dipping chemicals and treatments the dog received for the continuous 9 years the appellant had the dog all totalling to $2,500; the dog's market value of $300. Total $2,800.
(b) General damages for trauma, pain and suffering which includes: sentimental value, loss of companionship, love and affection: $1,000.
Emotional distress, that is to say, seeing the dog die, the time it is going to heal the wound left in the appellant's heart and mind caused by the sight of a loved pet dying after being heartlessly butchered, which dog the appellant had not anticipated would die in that manner. As he was in the process of getting ready to feed it with a meal, it died, having never tasted: $1,000.
In the respondents plea filed on their behalf, they contended, that, they were working with the Zimbabwe Republic Police and other interested persons.
On the day in question, Sunday was a working day, stray and feral dogs spread diseases and attack people - even on Sundays. The dogs, in general, including the appellant's, were shot after all necessary legal steps have been taken, and were shot by a police detail.
Hence, the respondents conduct was lawful and guarded by the police.
The appellant did not suffer any damages at all, or, even if the appellant suffered any damages, he did not suffer damages shown on the pleadings.
The respondents denied that any of the dogs shot belonged to the appellant. The appellant was put to strict proof.
The matter proceeded to trial, and, after the court a quo heard all the parties, proceeded to dismiss the appellant's claim.
The appellant noted an appeal against the learned magistrate's judgment on 9 January 2019.
The grounds of appeal cover 10 paragraphs. They are not specific, and they cover both fact and law stretching from statutes and by-laws.
I will try to decipher from this thicket what the appellant sought to frame as grounds of appeal.
(1) The learned magistrate was biased against the appellant who was a self-actor, and, in so doing, she erred.
(2) The learned magistrate erred by making a finding based on a document which was not produced.
(3) The learned magistrate erred in refusing to go for an inspection in loco.
(4) The learned magistrate erred in justifying the killing of the dog; the respondents should have been found liable of the wrongful shooting of the dog.
(5) The learned magistrate erred in dismissing the appellant's claim for damages.
These five grounds, I conclude, may form the pith of the appellant's appeal.
In future, litigants are encouraged to seek the advice of legal advisory centres, like the Legal Aid Clinic, to prepare grounds of appeal so as to crisply outline issues for determination by the court.
The appellant went on to write a long essay and labelling such as heads of argument.
Throughout all the pleadings and what he termed the pleadings and what his story is consistent. The local authority killed an innocent dog which was at its owner's stead. The respondents ought not to have resorted to killing the dog but should have captured it....,.
WHETHER THE COURT A QUO ERRED IN JUSTIFYING THE KILLING OF THE DOG
From the appellant's papers filed of record, the appellant contends, that, the respondents unlawfully killed his dog and the first respondent's agents/employees admitted, in a letter written to the appellant, that they had killed the subject dog.
The manner the appellant insists with the civil claim for damages for the loss of the dog, as well as for general damages premised on the loss, shows that his dog is the one which was killed during the operation executed by the respondents and the police.
Generally, local authorities, through by-laws, have set conditions that owners of pets should meet.
The cur should be licensed through payment of $10 to the local authority and this is applicable to the first respondent. When the licensing fees are paid, the owner of the dog is issued with a collar which should be tied to the dog's neck. The collars is inscribed with the name of the owner. The owner is further required to provide a chain to the dog for purposes of regulating its movement or to facilitate control of the dog when the owner is moving on public roads or thoroughfares.
As a further precautionary safety device, the owner of the dog should put a security fence around his or her residence and a safety gate to avoid the willy-nilly movement of an unsecured dog for the safety of the dog itself and members of the public at large.
The dog should be confined between the hours of 2100 hours and 0600 hours.
When a dog is not licensed, collared, or secured, the respondent contends, that, such a dog qualifies to be stray.
It is not controverted, that, on 16 July 2017, the appellant's alleged dog “Spooky” did not have a collar around its neck, nor a chain, and, of course, was not under control by the appellant.
Besides the emphatic insistence by the appellant, that the dog belongs to him, he could not provide any credible evidence to prove ownership of that dog.
The letter from the first respondent, admitting that the dog belonged to the appellant, was not enough to gauge whether the appellant abided by the requirements demanded by the first respondent to keep a dog at his premises.
The issue of ownership, in my view, is a peripheral one: the crucial question/decision to be made is whether, at the time the dog was shot by the respondents, was a stray?
The appellant admitted, that, there is no perimeter fence at his house, nor a wall - the dog freely moved in and out of the premises.
At the time the dog was allegedly shot, the appellant was virtually not in control of the dog. He proactively reacted after hearing the gunshot outside his house, only to see the dog lying dead.
The respondents, throughout the proceedings, vehemently insisted, that, the law permits them to eradicate stray dogs. The Regulations allow them to destroy pets which are vicious, diseased, and harmful to human beings….,.
Tarisai Leonard Manzonzo testified, that, before the operation, the first respondent flights an advert in the Sunday Mail tabloid or drive around suburbs using hailers advising the public to keep dogs and cats secured, warn them that if found on the roads, stray pets would be captured or eliminated.
Before 16 July 2017, they had done that, and, consequently, any subsequent killing of stray dogs was lawful.
The use of firearm for any operation exposes great risk to the general public, whether the operation is done by the police, the military, or the municipal police - it is inherently dangerous.
It is necessary that members of the public be given adequate instructions, warning, and information.
It is not adequate for local authorities to flight adverts in the Sunday Mail newspaper; not all town dwellers can afford to purchase a tabloid, moreso a Sunday Mail.
It is instructive, that, before carrying out an operation of eliminating stray pets, in addition to the adverts, the local authority should ensure, through councillors of each affected ward, dissemination of information for the pending operation; hold meetings with the affected area, dropping flyers, where possible, and place posters on strategic positions so as to minimise danger to the licenced pets as well as public - failing which responsibility for tragedies during such operations may well rest on the shoulders of local authorities.
It is desirable, I think, that, the facts of this case be brought to the attention of local authorities so that they may consider steps can be taken to improve the dissemination of warning information to those tasked to execute the operation, so that blame should be moved from individuals to local authorities.
I am satisfied, in this case, that, the respondents did not prove that they extensively exhausted the dissemination of the information before carrying out the operation.
It is apparent that many residents of Rusape were unaware of the operation and were taken by surprise, moreso when they heard gunshots in residential set-ups.
A gunshot upsets lame-hearted people and causes panic; it would be handled comfortably if people are pre-warned.
Had the appellant met all other requirements to prove his matter, chances were that he had laid a fundamental basis for his claim - but he had a mountain to climb.
The real issue before the court is not whether the operation of the respondents was unlawful or lawful, but whether the respondents were negligent.
It is only causative negligence that gives rise to liability.
The conclusion I reach, at this stage, is that the appellant's dog was unlicensed, uncollared, un-identified and was in the open when it was shot.
In principle, it qualified to be a stray and open to elimination by the respondents for the purposes of protecting the public at large from dog bites or harmful diseases.
The shooting of the dog was lawful in the circumstances.
WHETHER THE MAGISTRATE ERRED IN DISMISSING APPELLANT'S CLAIM FOR DAMAGES
As already outlined herein above, this is the gravamen of the appeal.
The appellant, seeking to rely on negligence, sued the respondents for both general and special damages which arose from the killing of the dog “Spooky”.
Indeed, the claim was spooky because it was unsuccessful and the appellant appealed to this court.
There are various breeds of dogs, stretching from Afgan hound, Ariedale terrier, Alsatian, barbet, basset beagle, sleath, boxer, greyhound, bulldog; more than fifty species to include Chihuahua and German shepherd.
The appellant was unable to describe what type his was.
These classes of dogs fetch various amounts on the open market, whether one is acquiring or disposing of them. Without the precise name, one cannot properly put value to it and this was a challenge which the appellant met during the proceedings.
The value of $300 was not supported by evidence from a dog dealer or a veterinary doctor - it was put price.
A litigant is required to look for an expert in the canine field to properly place monetary value on a specie of a dog. Where such evidence is lacking, it will be taken that the plaintiff had failed to prove that element.
The cost of acquiring the dog and maintaining it for a period of nine (9) years, in my view, was irrelevant.
No one, including the appellant, knew as when the dog was going to die.
The appellant had a duty to look after the dog anyway; what was vital was the replacement value, which he placed at $300.
He ought to have supported that value by evidence - and he failed to discharge that onus.
The issue of special and general damages is closely linked to the issue of negligence.
In the matter of Maketo and Another v Wood & Others 1994 (1) ZLR 102 (H)…, it was held that:
“Third defendant was liable on the grounds that there was sufficient relationship of proximity, that, in the reasonable contemplation of the third defendant, carelessness on its own part or on the part of its agents might be likely to cause damages to the plaintiffs….,.”
In the matter of Van Buuren v Minister of Transport 2000 (1) ZLR 292 (H) CHATIKOBO J pointed out the following:
“The passage shows, in my opinion, that, the most weighty consideration from which legal duty may be implied in a permissive power is that the object of the power is to effectuate either a private or a public right - a right requiring that the power conferred shall be exercised and therefore capable of enforcement.
Negligence is the failure to take proper care, and, proper care is the care, which, according to law, would be taken by a prudent and reasonable man.
The question whether in any given situation, a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be decided upon the consideration of all the circumstances. The law does not set up impossible standards, and it does not make extravagant demands.
Moreover, a person is entitled to assume that others will take reasonable care of themselves and will keep the eyes open.”…,.
In the matter of Musadzukwa v Minister of Home Affairs and Another 2000 (1) ZLR 405 the court held that:
“In order to determine the wrongfulness and reasonableness of any given conduct, the court is enjoined to make a value judgment based, among other things, contemporary bori mores, in the sense of the convictions of the community as to what is fair, just and equitable.”
MALABA JA…, in United Bottlers (Private) Limited v Shambawamedza 2002 (1) ZLR 341 (S) reiterated the following:
“The next question to be decided by the Learned Judge was one of fault. It was whether the defendant's employee negligently caused the damage suffered by the plaintiff. It has been said that negligence is a question of fact and the onus of proving it is on the party alleging it. A person is negligent if he did not act as a reasonable man would have acted in the particular circumstances. He will be held liable for the actual consequences of his negligence which are reasonably foreseeable.”
In Cape Town Municipality v Paine 1923 AD 207…, INNES CJ said:
“It has repeatedly been laid down in this Court, that, accountability for un-intentioned injury depends on culpa - the failure to observe that degree of care which a reasonable man would have observed.
I use the term reasonable man to denote the diligens paterfamilias of Roman Law - the average prudent person.
Every man has a right not to be injured in his person or property by the negligence of another - and that involves a duty on each to exercise due and reasonable care.
The question whether, in any given situation, a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly is one to be decided in each case upon a consideration of all circumstances.
Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established and it only remains to ascertain whether it has been discharged.”
See also Lomagundi Sheetmetal & Engineering (Pvt) Ltd v Basson 1973 (1) ZLR 356 (A)…,.
The first respondent has a legal duty towards its constituency against any damage that can arise during the operation for eliminating stray pets.
Where a party proves negligence against the local authority, where such actual consequences of the local authority's negligence are reasonably foreseeable, the local authority will be held liable.
However, in casu, the appellant failed to prove that the dog was lawfully kept at his place; was licenced; and secured. He failed to prove that the dog was his. He failed to prove negligence on the part of the respondents.
Once I ruled that the killing of the dog was lawful, there is no basis to look at the aspect of damages.
Damages arise from the unlawfulness of the killing and the duty of care on the part of the respondents.
The appellant failed to pass that hurdle and hence the appeal was dismissed in its entirety. The appellant has to pay the respondents wasted costs.
In the result, the appeal be and is hereby dismissed with costs.
