Nosey neighbour loses dog bite case

The Western Cape High Court has dismissed a nosey neighbour’s claim for damages after finding that his own reckless behaviour was to blame for a 2018 dog attack.

Daniel Cebo Bottoman had taken his neighbours, Nizaam Rossie and co-defendant, Shiyaam, to court after their family dog named King bit him on the upper lip on the Day of Reconciliation in 2018.

The judgment, handed down on Wednesday, dismissed Bottoman’s claim after it turned out that he put his head over the boundary wall and into his neighbours’ yard when he got bitten.

Bottoman argued that King, the dog, had acted against the normal nature of a domesticated dog. He also claimed, in the alternative, that the Rossies had been negligent by failing to keep King inside their property and by not making their boundary wall higher.

But the Rossies told a very different story.

They said Bottoman had entered their space without permission by sticking his head over the wall while looking into their property.

They also said he had been warned several times not to interfere with their dogs.

The court heard that Bottoman had a habit of approaching the dogs, sometimes while drinking alcohol and playing loud music. His neighbours said this agitated the animals.

Rossie told the court that he had repeatedly asked Bottoman to leave the dogs alone because they would become agitated and bark loudly.

Rossie told the court he was not at home when King bit Bottoman. He said it was his birthday and he had been taken out for breakfast by his family.

He explained that the incident was captured on video.

The footage, which had no sound, showed Bottoman standing in his own yard with his head protruding into the Rossies’ property.

King could then be seen jumping upwards and making contact with Bottoman’s face.

The dog bit him on the mouth, the court heard.

Acting judge Thobile Mgengwana found the video supported the Rossies’ version of events.

More importantly, Bottoman chose not to testify in court, despite being present and hearing the evidence against him.

The judge said this allowed the court to draw an adverse inference against him.

The court found that Bottoman’s decision to poke his head into the neighbours’ yard was the event that led to the bite.

The judge said his conduct did not necessarily have to be labelled “provocation” or “trespassing” for it to provide a defence to the dog owners.

What mattered was that his actions invited a reaction from King.

The court also found that the incident was caused solely by Bottoman’s negligence.

“It cannot be in dispute that the incident would not have taken place if the plaintiff had not decided to poke his head into the defendant’s yard. The incident would have also not taken place if the plaintiff had heeded first defendant’s warning that he should refrain from seeking to concern himself with the wellbeing of the dogs, as the dogs are none of his concern,” said the judge.

He further said even if the complainant was trying to establish a close relationship with the dogs, he should have recognised that his overtures were not being reciprocated.

The judge said the bite would not have happened had Bottoman kept his head out of the neighbours’ yard or followed the warnings to leave the dogs alone.

The court found that Bottoman had therefore voluntarily accepted the risk of being bitten.

In the end, the court sided with King and his owners.

Sowetan