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Law of Delict Mayjune Exam

law of delict (University of South Africa)

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Wendy Veronica Sodaba

35606940
Law of Delict (PVL3703)

Question 1
Conduct is defined as a voluntary human act or omission. <Voluntary= means that the
person must be able to control his/her muscular movements by means of his/her will.
Body movements need not be willed to be voluntary, nor do they need to be rational
or explicable. The defence of automatism excludes voluntariness, and this means
that the relevant movements were mechanical and the person could not control them
by his/her will. Factors that can induce a state of automatism include blackout and
epileptic fit. According to the Molefe v Mahaeng, the defendant does not bear the
onus to prove that he was in a state of so-called sane automatism. The onus is on
the plaintiff to prove that the defendant acted voluntarily. If we apply these principles
to the facts supplied in the question, we can conclude that John did in fact act
voluntarily when the damage to the car was caused. A person cannot rely on
automatism if he/she intentionally placed himself/herself in a mechanical state; this is
known as the actio libera in causa. Furthermore, a person cannot rely on automatism
if he/she negligently placed him/herself in a mechanical state. John is aware of his
rare disease that causes blackouts, however, he fails to take medicine which
eliminates his the possibility of blackouts. It can be concluded, therefore, that John
was probably negligent, or could even have had intention in the form of dolus
eventualis. He will not be able to rely on automatism in this case.

Question 2
Wrongfulness is the infringement of a legally protected interest in a legally
reprehensible way/in violation of a legal norm. This question deals with the
wrongfulness of an omission. The basic question to determine whether an omission
is wrongful is whether a legal duty to act was present and was breached. This is
determined with reference to the legal convictions of the community, or the boni
mores. Two examples of the practical application of the boni mores yardstick (the
test for determination of wrongfulness which is an investigation into the legal
convictions of the community) are to be found in the view that wrongfulness amounts
to the infringement of subjective rights, or the non-compliance with a legal duty to
act. Factors which may serve as indications that a legal duty rested on the
defendant include: prior conduct (omissio per commissionem); control of a
dangerous object; rules of law; a special relationship between the parties; particular
office; contractual undertaking for the safety of a third party; and creating of an
impression that the interests of a third person will be protected. In the so-called
municipality cases, prior conduct was considered to be a prerequisite for the
wrongfulness of an omission. A person acts prima facie wrongfully when he creates
a new source of danger by means of positive conduct (commission) and
subsequently fails to eliminate that danger (omission). The view that <prior conduct=

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is an indispensable requirement for liability for omissions prevailed in our law for a
long time. However in 1957 the <prior conduct= requirement was rejected in a
minority decision in favour of the preferred view that <prior conduct= was but one of
several considerations which might indicate the existence of a legal duty. This more
flexible approach was later accepted by the Appellate Division, and eventually
expressed in Minister van Polisie v Ewels. In this judgment, the generally accepted
view that wrongfulness is in principle determined by the legal convictions of the
community has now been applied to omissions. The view that <prior conduct= is but
one of several considerations which might indicate the existence of a legal duty, is
the current legal position. The unlawful omission was also witnessed in a case of
Carmichele, where South African criminal, delict and constitutional law found that the
state could be held liable for damages arising out of the unlawful omission of its
servants. In this case, a person who was charged with rape was released and
subsequently assaulted the plaintiff.
We can therefore conclude that, management of the mall created new source of
danger in the installation of leaking sanitising dispensers; they were in control of the
dangerous object; and they had knowledge of possible harm. Accordingly, legal duty
on management and their conduct was wrongful. Wrongfulness may also be seen as
reasonableness of holding defendant liable as seen in the cases of Telematrix;
Crown Chickens; and Le Roux v Dey. This approach is criticised by Neethling and
Potgieter, but may be reconciled with the traditional approaches to wrongfulness.
Therefore, the management of the mall is liable to Ms. C and their conduct remains
wrongful.
Question 3
(a) Fault is a subjective element of delict as it is concerned with the extent of a
person’s attitude or their disposition. There are two forms of fault, intention and
negligence. These forms refer to the legal blameworthiness or reprehensible state of
mind or the conduct of someone who acted negligently. Conduct is negligent if and
only if a reasonable person in the position of the person who performed it would
have foreseen the reasonable possibility of it causing harm to another and for that
reason would not have performed it (Kruger v Coetzee). There was negligence by
Steadywheels through the actions of David, the employee when he did not fasten the
front wheel properly. On the other hand, there is negligence on the side of Mike who
did not wear his helmet when he was driving his rented mountain bike. Steadywheels
are probably relying on the contributory fault against Mike
(b) Steadywheels can rely on contributory negligence. From the given facts, we can
conclude that the defendant has been negligent, but the plaintiff appears to have
been negligent too. Thus we must consider whether contributory negligence was
present. Contributory negligence is negligence on the part of the plaintiff, and it is a
defence that the defendant can raise. The Apportionment of Damages Act is
applicable. This Act provides that a contributorily negligent plaintiff’s damages be
apportioned. The court will determine the degree of deviation from the reasonable
person standard shown by the conduct of both the defendant and plaintiff, express
the deviations as percentages, and use these percentages as a basis for the
apportionment. According to the Smit and Nomeka cases, the percentages of

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negligence attributed to the defendant and plaintiff respectively will always add up to
100%. According to Jones, both percentages must be assessed independently,
which could mean that, eg, a defendant may be 80% negligent while the plaintiff is
30% negligent. According to Neethling and Potgieter, the approach in Jones is to be
preferred. According to King v Pearl Insurance Co Ltd, a defence of contributory
negligence could not succeed where the plaintiff omitted to wear a crash helmet
while driving a scooter, but had not been negligent in respect of causing the
accident. However, in Bowkers Park Komga Cooperative Ltd v SAR and H, the court
held that contributory negligence did not refer to negligence in respect of the
damage-causing event, such as a motorcar accident, but to negligence in respect of
the damage itself, and this was confirmed by the Appellate Division in Union National
South British Insurance Co Ltd v Vitoria and General Accident
Versekeringsmaatskappy SA Bpk v Uijs. Therefore, failure to wear a helmet would
constitute contributory negligence if it contributed to the plaintiff’s damage. Applying
these principles to the facts, we can conclude that Y was contributorily negligent and
that her damages will be apportioned.
(c) Vicarious liability may be described as the strict liability of one person for the
delict of another. This liability applies where there is a particular relationship between
two persons. David and Steadywheels are in the employer-employee relationship. In
an employer-employee relationship, an employee must be acting within the scope of
his employment when he commits the delict and the employee is fully liable for the
delict. Fault is not required on the part of the employer, and therefore this is a form of
strict liability. This rationale has been seen as controversial. The best known
explanation on this relationship is that the employer’s liability is founded on his own
fault. According to the interest or profit theory, the employer must also bear the
burden of the employee’s services as a corollary to the benefits. The employer is
liable therefore, because he/she is usually in a better financial position than the
employee. Therefore, Mike can institute can institute a claim against Steadywheels
through strict liability.

Question 4
(a) Factual causal link: The generally accepted test for factual causation is the
conditio sine qua non test, or <but for test=. This entails mentally eliminating, or
thinking away, the conduct. If the damage then also disappears, a factual causal link
is present between the conduct and the damage. This test is subject to much
criticism. Among others, it is said to be based on circular logic and is, at best, a way
to express the existence of a causal nexus that has been determined in another way.
Neethling and Potgieter argue that evidence and human experience are sufficient to
determine whether one fact flowed from another fact, and that a so called test of
factual causation is superfluous. However, the courts consistently state that the
conditio sine qua non is the test of factual causation. If we apply the test to the facts,
we must conclude that if Tom had not bumped William, he would not have broken his
leg, and therefore a factual causal link is present between Tom’s conduct and

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William’s damage. And because William is using crutches and slip, Tom will also be
a factual causal link for Tom’s broken arm
(b) Legal causal link: The question of legal causation arises when determining
which harmful consequences caused by the wrongdoer’s wrongful, culpable act he
should be liable for. In other words, the consequences that should be imputed to
him. The present approach of the courts to legal causation has been set out fairly
extensively by the Appellate Division in a criminal case, S v Mokgethi, and was
thereafter confirmed in several cases dealing with private law. In S v Mokgethi, Van
Heerden JA held that there is no single and general criterion for legal causation that
is applicable in all instances. A flexible approach is accordingly suggested: The basic
question is whether there is a close enough relationship between the wrongdoer’s
conduct and its consequence for such consequence to be imputed to wrongdoer in
view of policy considerations based on reasonableness, fairness, and justice.
(However, the existing criteria for legal causation – such as direct consequences and
reasonable foreseeability – may play a subsidiary role in determining legal causation
within the framework of this elastic approach. Therefore, it is concluded that there
was no legal causation between Joe’s conduct and Charles’s broken arm.

Question 5
Necessity is when a defendant is placed in such a position by superior force that he
is able to protect his legally recognised interests only by reasonably violating the
interest of an innocent person. In Crown Chickens case, necessity was seen as
aground of justification which cancels wrongfulness. In the above scenario, Ben was
protecting himself when he hit Jenna’s dog with a bat which was about to bite him.
Connie, who is the wrongdoer is not the owner of the dog therefore, Ben cannot
private defense. Ben cannot institute private defense as his conduct violated Jenna’s
interest who is an innocent party. Therefore, Ben will have to rely on necessity.

Question 6
Carol can claim successfully from Jane using the actio de pauperie, if Jane meets
the following requirements:
(a) Jane must be the owner of the animal when the damage is inflicted
(b) The animal must be the domestic animal
(c) The animal must act contra naturam sui generis when inflicting the damage
(d) The prejudices person or his property must be lawfully present at the location
where the damage is inflicted
From the analysis of the given fact, we can conclude that Jane meets the three
requirements and Carol can succeed in her claim of actio de pauperie.

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Question 7
7.1 Privilege or privileged occasion
7.2 Truth and public interest
7.3 Political privilege

Question 8
8.1 Wrongful deprivation of liberty
8.2 Wrongful attachment of property

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