Dog victim’s case falls into ‘legal limbo’
Despite precedent-setting court ruling, law remains unclear on whether owners are liable for their pets' actions
For six months Kayleigh Penniken endured occupational and physical therapy to regain the use of her left hand. The deep scars on her arms, shoulders, side and scalp are a solemn reminder of a traumatic attack that landed her in hospital for weeks and kept her from continuing her second year of dental school.
In February 2018, the then-20-year-old student was walking her dog, Tiago, through Wilropark in Roodepoort. While passing the entrance to a neighbour’s home, the gate suddenly opened and two Dobermanns and two Boerboel crosses began circling her. As her own dog fled, the four animals attacked Penniken, repeatedly biting and scratching her small frame.
Nearby neighbours heard her screams and were able to fend off the dogs, but not before Penniken’s arm was fractured and her body riddled with deep, bleeding wounds.
Almost a year later, Penniken has made an almost full physical recovery, but she and her family are anxious that the criminal case they’ve opened against the owner of the dogs has all but vanished.
Whether the owner of an animal involved in an attack is criminally liable for the pet’s actions has been sporadically debated in courts across the country, with limited case law emerging on the issue.
In November 2018, the Port Elizabeth High Court, in a similar case, ruled in favour of the victim, Gerhard Cloete, who was attacked by dogs that had escaped from the yard of a home he’d been passing.
The court acknowledged that the attack was vicious, resulting in Cloete’s left arm being amputated from the shoulder. Even though the dog’s owner, Christiaan van Meyeren, had a walled, fenced-off yard – and even though he claimed the dogs had initially been padlocked inside his property – the fact that he was the owner of the dogs ultimately meant he was liable for what they had done, according to the court.
Cloete had instituted a claim of R2.3m in damages on the basis of the owner’s negligence, and the court agreed, ruling in his favour and adding that Van Meyeren also pay legal costs.
Immediately after Penniken was attacked, her father opened a criminal case against the dogs’ owner, James Burdett.
After months of appearances at the Roodepoort Magistrate’s Court, the case against Burdett was provisionally withdrawn in October, allegedly owing to issues surrounding eyewitness evidence. The state still has the prerogative to institute proceedings against Burdett in the future.
“It feels like there’s nothing we can do,” Penniken said.
The National Prosecuting Authority confirmed the case has been withdrawn. Spokesperson Phindi Mjonondwane-Louw said the state needed more information to prove Burdett’s negligence, and the docket has yet to be brought back to the court.
For Penniken, who has cystic fibrosis – an incurable condition that affects the lungs and digestive system – the recovery was difficult.
She still suffers from a haematoma she sustained during the attack, which may require surgery to resolve. Because of the damage to her arm, and the inability to use her left hand for months, she was forced to postpone her second year of dental school, which she believes could cost her a year of income in the future.
Weeks of trauma counselling after the incident have helped her ability to trust animals, but she is still hyper-aware around dogs. It is because of these damages, physical, mental and financial, that the family has also instituted a civil damages claim against Burdett, although this has also stalled in recent months.
Speaking to Times Select, Burdett said he is stuck in a “legal limbo”, not knowing whether he will have to defend the case. He said that on the day of the incident he only heard the ruckus when the attack had already come to an end. Even though he acknowledges that Penniken was traumatised by the event, he believes her dog, a pitbull, may have provoked his animals and that they were more interested in attacking the dog.
He said he tried to apologise, but was told by the Penniken family to not contact them until the criminal and civil matters had been resolved.
Acknowledging the apology, the family remains dissatisfied, with both Penniken and her mother, Connie, still concerned about the safety surrounding Burdett’s home.
“What if they (the dogs) kill someone, would he be responsible then?” said Penniken.
“He can’t get off scot-free; that’s why we opened a criminal and civil case,” said her mother.
Burdett’s lawyer, advocate Paul Leisher, declined to speak to Times Select.