S v SMITH 1997 (1) ZLR 274 (S)

Flynote

Criminal law — statutory offences — Miscellaneous Offences Act [Chapter 9:15] — s 3(2) — allowing unmuzzled ferocious dogs to be at large — meaning of "at large" — distinction between "allowing" and "permitting" a thing to be done — whether knowledge of dogs' ferociousness is essential

A woman who was crossing through the appellant's farm was attacked and severely injured by the appellant's dogs. The dogs normally lived in the yard at the appellant's house, but had been known to roam around the farm. They had previously shown no tendency to act ferociously. The appellant was convicted in the magistrates court of allowing unmuzzled ferocious dogs to be at large, in contravention of s 3(2) of the Miscellaneous Offences Act [Chapter 9:15]. The main issues on appeal were whether the dogs were "at large"; if so, whether the appellant had allowed them to be at large; and if he had, whether it was necessary for him to know that they were ferocious.

Held, that although a dog roaming freely within enclosed private premises is not at large, these dogs were wandering freely on a farm which would be a large area and not likely to be fenced in such a way as to prevent them crossing the boundaries. Consequently, they were "at large".

Held, further, that for the appellant to have allowed the dogs to be at large, he must have had knowledge that they were at large. He must have consented to and sanctioned their being at large. The concept of "allowing" is different from "permitting". One may "permit" an act without meaning to sanction it, but one cannot "allow" an act unless one means to sanction it. Failure to prevent an act may result in one being regarded as having permitted it, but more than mere failure to prevent it is necessary before one can be regarded as having allowed it.

Held, further, that even if the appellant could be held to have allowed the dogs to be at large, it must also be proven that the appellant was aware that they were ferocious. The very fact that they were ferocious would help establish that awareness, but if there was a doubt about the appellant's awareness, the State would not have proved its case. The evidence led was that the dogs' behaviour was out of character and thus the appellant was able to rebut the prima facie presumption that would have been raised.