Causation

Causation
Causation refers to the enquiry as to whether the defendants conduct or omission

caused the harm or damage and causation must be established in all result of crime.
In addition, to find a defendant delict ally liable, there has to be a causal connection
between harm that the plaintiff suffered and the defendants conduct. The
defendants conduct must have caused the plainti ffs harm or loss. The defendant
must be both the factual and legal cause of harm.
(1) In order to find that x’s act had caused a certain condition (such as y’s death), x’s
act must first be a factual cause and secondly a legal cause of Y’s death.
(2) In order to determine whether x’s act is a factual cause of y’s death, the conditio
sine qua non formula is applied x’s act is a factual cause of the death if x’s act
cannot be thought away without y’s death disappearing at the same time.
(3) Many factors or events may qualify as factual causes of a prohibited condition. In
order to eliminate factual causes which are irrelevant, the criterion of legal causation
is applied.
(4) x’s act is the legal cause of y’s death if a court is of the opinion that policy
considerations require that x’s act be regarded as the cause of y’s death. By “policy
considerations” is meant considerations which ensure that it is reasonable and fair to
regard x’s act as the cause of y’s death.
(5) In order to find that it would be reasonable and fair to regard x’s act as the cause
of y’s death, a court may invoke the aid of one or more specific theories of legal
causation. Among these theories are the proximate cause y’s criterion, the theory of
adequate causation and the novus actus interveniens criterion.
Crimes may be divided into two groups which are materially and formally defined
crimes. Materially defined crimes it is not a conduct which is prohibited but any
conduct which causes a specific condition, crimes like murder, culpable homicide,
arson and abortion. Formally defined crimes as a certain type of conduct are
prohibited irrespective of the result of such conduct, crimes like possession drugs,
perjury and driving negligently.
Causation involves two distinct enquires, factual causation and legal causation.
Factual causation the court is concerned with whether accused act or omission
caused the unlawful consequences. An act without which the prohibited situation
would not have materialised must be able to say but for the act, the prohibited
condition would not have happened. An act is a conditio sine qua non for a situation
if the act cannot be thought away without the situation's disappearing at the same
time. Cases: Makali 1950, Mokoena 1979, Minister v Polisie v Skosana 1977
Legal causation it serves to narrow the scope of liability created by factual causation
to establish who or what is the sufficiently closer cause of the unlawful
consequences. legal causation is determined by reference to considerations of
justice and fairness, taking account of, as factors only, the former tests of legal
causation. Four primary tests of legal causation prior to Mokgethi may be discerned,
the novus actus interventiens test the individualisation tests, the foreseeability test,
and the test of adequate causation. I will discuss each turn
Criticism of the conditio sine qua non, although courts use the conditio sine qua non
test to determine factual causation, the test is not perfect. There are three main
points of critique.
First point was the process of reasoning determining a hypothetical result by
eliminating or substituting conduct is clumsy and circuitous. The conditio sine qua
non test has been criticised for requiring courts to determine factual causation in an
indirect way. Judges must consider how the sequence of events might have unfolded
if the behavior had not occurred. Judges are only required to remove the wrongful
act while leaving all other events and conditions unchanged in this process. This
results in a convoluted process that provides no results.
Second point the test provides no answer where there are multiple causes. Multiple
causation occurs when two independent activities create the same negative event at
the same time. if A and B, acting independently of one another, set fire to c’s house,
destroying all c has in the process, both activities resulted in c’s's loss. The conditio
sine qua non test, on the other hand, is unsuccessful in determining the cause of c’s
losses.
Third point thee conditio sine qua non is not a true test for determining factual
causation because it is merely a way of expressing a causal link that has already
been determined. This is an argument against using the conditio sine qua non test to
determine causality. The argument is that it is an ex post facto after the event
manner of presenting a planned causal link. The conditio sine qua non theory is
simply a way of expressing a prior conclusion, based on knowledge and experience,
that factual causation exists in terms of the classic 'but-for' formula. Because the
factual cause of the harm has already been recognised by human experience and
knowledge, the theory cannot be used to determine factual causation.

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Causation

Causation refers to the enquiry as to whether the defendants conduct or omission

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