 The area of law that is studied in this module is most commonly referred to as “delict” or

“the law of delict.”

 In South African law, the terms “delict” and “law of delict” are translated into Afrikaans
as delik, deliktereg, or die reg aangaande die onregmatige daad.
 In German law, the equivalent concept is called unerlaubte Handlung, which means
wrongful deed.
 In French law, the term used is délit, which originates from the Latin word delictum.
 In English and American law, the term “delict” is referred to as a “tort”, and the law of
delict is known as the law of tort or the law of torts.

1.1.2 The Concepts “Delict” and “Law of Delict”: General Meaning

 A delict is defined as the act of a person that, in a wrongful and culpable manner,
causes damage or loss to another person.
 The wrongfulness of the act means that it is legally reprehensible, while culpability
refers to the legal blameworthiness of the conduct.
 The law of delict provides the rules that determine the circumstances under which a
person can be held liable for the damage or loss they have caused to another.

1.1.3 Basic Premise: The Person Prejudiced Must Bear the Damage
 Not all cases where damage has been caused give rise to delictual liability.
 As a point of departure, the law assumes that the person who has suffered the damage
must personally bear the loss.
 For example, if a person drives carelessly and breaks a headlamp by hitting the
garage door, or if they drop and break their own watch, they must bear the damage
themselves.
 Similarly, if a horse is struck dead by lightning, the owner generally cannot hold anyone
else responsible for the loss.
 An exception arises where the person is insured against such damage. In such a case,
the insurer will bear the loss in terms of the contract of insurance.

1.1.4 A Wrongdoer Is Responsible for Damage Caused to Another

 If a person suffers damage as a result of another person's delict, the law does not
expect the injured person to bear the loss.
 The wrongdoer, who caused the damage, is legally required to compensate the injured
person.
 This module will examine the legal rules that determine when a person is legally liable
to compensate another for damage or loss.

1.1.5 General Requirements for Delictual Liability

 A delict can take many forms, including interference with property, body, freedom,
reputation, dignity, privacy, emotions, earning capacity, and trade secrets.
 While some legal systems, such as English and American law, study each delict
separately, the approach taken by Unisa and most South African universities is
different.
 Unisa begins by examining the general requirements that must be satisfied for
delictual liability to arise.

PART I Introduction to the law of delict

UNIT 2: General introduction
1.3 Important Additional Introductory Remarks

1.3.1 The Five Elements of a Delict

 A delict is defined as the act of a person that, in a wrongful and culpable way, causes
harm to another.
 The five elements that must be present to establish delictual liability are:
1. An act,
2. Wrongfulness,
3. Fault,
4. Causation, and
5. Harm (also referred to as damage).

1.3.2 First Element: An Act

 The first requirement is that there must have been some act or conduct by the person
(the wrongdoer or defendant) against whom the prejudiced party (plaintiff) wishes to
litigate.
 It is logically impossible for someone to be delictually harmed unless there has been
some deed or action by another.
 This is why the term “wrongful act” (onregmatige daad) is used in this context.

1.3.3 Second Element: Wrongfulness

 The second and central requirement of a delict is wrongfulness.
 This means that the conduct must be legally reprehensible, unlawful, or
unreasonable.
 An act is wrongful when it violates the boni mores – the community’s sense of justice.
 Wrongfulness exists if a person’s subjective rights are infringed or where a legal duty
to prevent harm is breached.

1.3.4 Third Element: Fault

 The third element is fault, meaning the wrongdoer must be legally blameworthy.
 Fault can take the form of:
I. Intention (dolus) – where the person acts knowingly and wilfully, or
II. Negligence (culpa) – where the person fails to exercise the standard of care
required by law.
 Both intention and negligence are recognised forms of fault in South African law.

1.3.4 Fourth Element: Causation

 The fourth element is causation, meaning there must be a causal connection between
the defendant’s act and the plaintiff’s damage.
 The conduct must have been the factual and legal cause of the harm suffered.
 For example, if X throws a stone at a bird and Y breaks his arm from slipping in
shock, causation may be established if the conduct frightened Y.

 The law distinguishes between two types of causation:

I. Factual causation, and
II. Legal causation (also known as remoteness).

1.3.6 Fifth Element: Harm (Damage)

 The final requirement is that the plaintiff must have suffered damage.
 Harm may take two forms:
1. Patrimonial loss (damnum iniuria datum) – which refers to financial or
economic damage, or
2. Injury to personality (iniuria) – which involves infringements on reputation,
dignity, privacy, and other personality interests.

1.3.7 All Five Elements Must Be Present

 As a general rule, all five elements must be present to succeed in a delictual claim.
 A plaintiff must prove each of the five elements unless the defendant admits some of
them.
 If the defendant proves that even one element is absent, then no delictual liability
arises.

1.3.8 Exceptions: Liability without Fault

 In certain exceptional cases, a person can be held liable without fault – this is referred
to as strict liability or liability without fault (skuldlose aanspreeklikheid or strikte
aanspreeklikheid).
 For example, in Minister of Justice v Hofmeyr 1993 (3) SA 131 (A), strict liability
was applied in cases involving wrongful deprivation of liberty.

1.3.9 The Interdict as a Preventative Remedy

 A court may issue an interdict (court order) to prevent future or ongoing harm, even
without proving fault, causation, or damage.
 To succeed with an interdict, the applicant must prove:
a. An act has been or will be committed, and
b. That the act is wrongful.

1.4 Delictual Remedies and Actions

1.4.1 General Delictual Actions

 A person who has already suffered harm due to a delict can institute a claim for
compensation.
 The three main classical delictual actions in South African law are:
1. Actio legis Aquiliae – for patrimonial loss, requires intention or negligence.
2. Actio iniuriarum – for injury to personality, generally requires intention.
3. Action for pain and suffering – for bodily injury, requires intention or negligence.
 All five delictual elements must generally be proven to succeed with any of these three
actions.

1.4.2 Non-Fault-Based Remedies

 Apart from the three classical actions, the law allows claims for compensation without
fault.
 Interdicts are also a remedy, but they are not used to recover damages already
suffered; they are used to prevent future harm.

1.5 The Role of Delict in the Legal System

1.5.1 Purpose of Private Law

 The function of private law is to regulate the relationships between individuals in a
community.
 Since individuals often have conflicting interests, the law must identify, delimit, and
harmonise these interests.
 The law of delict identifies which interests are legally protected and when their
infringement creates a legal remedy.

1.5.2 Principle: Damage Rests Where It Falls

 The default rule is that each person bears the damage they suffer (res perit domino).
 For example, if a person damages their own property or if a natural disaster causes
loss, they bear the damage.
 However, this rule is not absolute – in some cases, legal rules transfer the burden of
damage to the person who caused it.

1.5.3 Delict Creates Obligations

 When a person wrongfully causes damage, the law imposes an obligation on them to
compensate the injured party.
 This creates a legal obligation (obligatio) and a corresponding right for the injured
party to claim compensation.
 Therefore, the law of delict is part of the broader law of obligations.

1.6 Generalising Approach to Delictual Liability

1.6.1 General vs. Casuistic Approach

 South African law follows a generalising approach, meaning that general principles
apply across all types of delict.
 This approach differs from the casuistic approach of English law, which consists of
separate torts, each with its own rules.
 The generalising approach makes it easier to adapt the law to new types of harm and
emerging interests.

1.6.2 Recognition of Modern Interests

 South African courts have recognised modern interests like privacy and corporate
goodwill under delict.
 In Perlman v Zoutendyk 1934 CPD 151 at 155, the court affirmed the general
principle that all unjustified damage (injuria) is actionable, whether caused
intentionally or negligently.
 The general approach aligns with that of modern continental legal systems.

1.6.3 Statutory Protection of Interests

 In some cases, general delictual principles have been replaced by statutory
protections.

 For example:
 The Patents Act 57 of 1978 protects inventors.
 The Copyright Act 98 of 1978 protects authors.

1.7 Classification of Delicts

1.7.1 Types of Delictual Harm

 Delicts are generally classified as:

a. Patrimonial damage (damnum iniuria datum), and
b. Personality injury (iniuria).
 The actio legis Aquiliae is the remedy for patrimonial damage caused intentionally or
negligently.
 The actio iniuriarum is the remedy for intentional injury to personality.

1.7.2 Examples of Specific Delicts

 Over time, specific delicts have developed, including:

o Assault
o Defamation
o Invasion of privacy
o Wrongful deprivation of liberty
o Negligent misrepresentation
o Emotional shock
o Dependants' actions for death of a breadwinner

1.8 Distinction from Related Legal Concepts

1.8.1 Delict vs. Breach of Contract and Crime

 A delict is distinct from:

o A breach of contract, which involves the failure to fulfil a contractual obligation.
o A crime, which is a public wrong punishable by the state.
 Although the same conduct may sometimes give rise to both criminal and delictual
liability (e.g., assault), each is governed by different principles and procedures.

2. Delict and Breach of Contract

2.1 Similarities and distinctions

 A breach of contract and a delict are both forms of wrongful conduct in private law but
are fundamentally different.
 Both normally involve a wrongful and culpable act that causes damage to another.
 Breach of contract, however, is primarily about the non-fulfilment of a contractual
obligation.
 In contrast, a delict is based on the infringement of any legally recognised interest,
excluding mere contractual non-performance.
 The Appellate Division in Administrator, Natal v Edouard 1990 (3) SA 581 (A) 597
held that fault is not a requirement for contractual damages, although this was
criticised as too broad by Hutchison and Pretorius.
 Repudiation and positive malperformance are exceptions where strict liability may
apply.
 Enforcement and fulfilment are primary remedies in contract law; damages are
secondary.
 In delict, damages or satisfaction is the primary remedy.
 Breach of contract is dealt with under the law of contract, not the law of delict.
 The same conduct may result in both contractual (ex contractu) and delictual (ex
delicto) liability.
3. Delict and Crime
3.1 Differences in legal domains

 Delicts and crimes are both wrongful and culpable acts but fall under private law and
public law, respectively.
 Delictual remedies are compensatory, while criminal sanctions are penal in nature.
 One act can incur both delictual and criminal liability, but they are not interchangeable.
 Not all delicts are crimes, and not all crimes are delicts.

4. Historical Development of Delictual Liability

4.2 Actio Legis Aquiliae

4.2.1 Roman law origins

 Roman law gave rise to liability for patrimonial damage under the lex Aquilia (287 BC).
 The lex Aquilia focused on physical damage to property or bodily harm, specifically
the killing or wounding of slaves or four-footed animals, and
burning/breaking/destroying property.
 The remedy was the actio legis Aquiliae available to the owner of the damaged
property.
 The term damnum iniuria datum means loss wrongfully caused and underpins
Aquilian liability.
 Over time, the action's scope extended via actiones utiles and actions in factum to
cover broader forms of damage.
 Eventually, it included any patrimonial damage resulting from a wrongful act (id quod
interest).
 Real rights holders and even a colonus partiarius could claim.
 Personal injury claims were introduced: a father for injury to his child, and a free man
(liber homo) for personal injury.
 Still, a perceptible, physical infringement remained essential in Justinian’s time.

4.2.2 Roman-Dutch law

 Roman-Dutch law removed the strict requirement of physical impairment of property.
 It allowed claims for patrimonial damage from injury to personality (iniuria).
 Holders of personal rights, such as borrowers, lessees, or service hirers, gained
protection.
 Dependants of a free person who died and employers or parents of injured persons
could claim damages.
 However, no universal principle was established that any wrongful and culpable act
causing patrimonial damage triggered Aquilian liability.

4.2.3 South African case law

 In Cape of Good Hope Bank v Fischer, De Villiers CJ held that Aquilian liability had
extended beyond damage to corporeal property.
 In Perlman v Zoutendyk, Watermeyer J said all unjustifiable (injuria) damage is
actionable, whether caused by intent (dolus) or negligence (culpa).
 Modern SA law allows claims for pure economic loss (Coronation Brick (Pty) Ltd v
Strachan Construction Co (Pty) Ltd).
 The Appellate Division confirmed Aquilian liability for negligent misrepresentation
and unlawful competition.
 However, Union Government v Ocean Accident and Guarantee Corporation Ltd
limited extension to cases involving negligent interference with contractual
relationships.
 In Union Government (Minister of Railways and Harbours) v Warneke, Innes JA
supported adapting Aquilian liability to modern conditions.
 Courts, however, follow a cautious approach (Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd) and only extend the action based on positive policy
considerations.

4.3 Actio Iniuriarum

4.3.1 Roman law origins
 Iniuria protected personality interests: corpus (body), fama (good name), and
dignitas (dignity).
 Initially, fixed fines were imposed under the Twelve Tables (e.g., os fractum,
membrum ruptum).
 Praetorian reforms led to judicial discretion in penalties (taxatio).
 Protection extended to non-physical interests: dignity, privacy, chastity, and feelings.
 Intent (dolus or animus iniuriandi) was required.
 Contumelia signified contempt for personality, not necessarily insult.

4.3.2 Roman-Dutch law

 Iniuria remained largely unchanged but introduced libertas (freedom) as an additional
personality interest.
 Dignitas remained a collective concept rather than a defined interest.
 Intent was clearly required in Roman-Dutch law (dolus malus).
 Amende profitable allowed for satisfaction, while amende honorable allowed for
recantation or apology.

4.3.3 South African case law

 South African courts still rely on Voet’s definition of iniuria.
 In R v Umfaan, Innes CJ stated that iniuria includes wrongful and intentional violations of
corpus, fama, or dignitas.
 Confusion exists about the meaning of dignitas, with some courts wrongly limiting it to
dignity.
 In O’Keeffe v Argus Printing and Publishing Co Ltd, dignitas was interpreted broadly
to include all personality interests other than corpus and fama.
 Dignitas is now recognised as a collective term and the basis for further development
of personality protection.

4.4 Action for Pain and Suffering

4.4.1 Roman and Roman-Dutch law
 Roman law did not allow for compensation for negligently caused bodily injury.
 Roman-Dutch law, influenced by Germanic law, allowed claims for pain, suffering, and
disfigurement.
 This action was separate from the actio legis Aquiliae, which only dealt with
patrimonial damage.

4.4.2 South African law

 South African law adopted and developed the action, recognising physical-mental
integrity as a protected interest.
 English law helped extend the action to include:
o Psychological or mental injury
o Emotional shock
o Loss of amenities of life
 o Loss of life expectancy
 Courts caution against over-classifying harm but accept the full spectrum of physical-
mental harm as compensable.

5. The Law of Delict, the Constitution and Fundamental

Rights
5.1 The supremacy of the Constitution and its relationship with the
law of delict

 The Constitution of South Africa is the supreme law of the country, and any law or
conduct inconsistent with it is invalid (Section 2 of the Constitution).
 Chapter 2, the Bill of Rights, entrenches fundamental rights and applies to all law,
including the law of delict.
 The Bill of Rights binds the state (vertically) and also binds natural and juristic
persons (horizontally).
 Juristic persons also enjoy certain fundamental rights (see footnote 129).

5.2 Limitation of rights and the limitation clause

 Fundamental rights are not absolute; they may be limited by a law of general
application.
 Such limitation must be reasonable and justifiable in an open and democratic
society based on human dignity, equality, and freedom (Section 36(1) of the
Constitution).
 Courts must consider factors like:
o The nature of the right
o The importance of the limitation’s purpose
o The extent of the limitation
o The relationship between the limitation and its purpose
o Less restrictive means of achieving the purpose

5.3 Interpretation and development of the law in light of the Bill of

Rights

 When interpreting the Bill of Rights, courts must promote the values of an open and
democratic society.
 Courts must consider international law and may consider foreign law (Sections
39(1)(b) and (c)).
 Courts must promote the spirit, purport, and objects of the Bill of Rights when
interpreting legislation or developing common or customary law (Section 39(2)).
 In Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC), the Constitutional Court held that courts have a
general duty to develop the common law when it deviates from the spirit, purport, and
objects of the Bill.

5.4 Relationship between common law and the Constitution

 Many fundamental rights relevant to delict were already recognised by the common law
before the constitutional era.
 Unless clearly shown otherwise, common law principles are presumed to be in line with
the Bill of Rights.
 In regard to unlawful competition, Langa CJ remarked that the Bill “merely
emphasises the principles already at play in the common law.”

5.5 Direct and Indirect Application of the Constitution in Delict

a) Direct Application
 Vertical Application:
 Direct vertical application means the state must respect and not infringe fundamental
rights, except when the infringement is justified under the limitation clause.

 Horizontal Application:
 Direct horizontal application requires courts to give effect to fundamental rights by
applying or developing the common law if no legislation gives effect to the right.
 Development of the common law to limit rights is permitted only if reasonable and
justifiable under the limitation clause.

 Relevant fundamental rights in delict:

o Right to property (Section 25)
o Right to life (Section 11)
o Right to freedom and security of the person, including bodily and
psychological integrity (Section 12)
o Right to privacy (Section 14)
o Right to human dignity (Section 10)
o Right to equality (Section 9)
o Right to freedom of expression (Section 16)
o Right to freedom of religion, belief and opinion (Section 15)
o Right to assembly, demonstration, picket and petition (Section 17)
o Right to freedom of association (Section 18)
o Right to freedom of trade, occupation and profession (Section 22)

 Balancing conflicting rights:

 Some rights may conflict (e.g. privacy vs. freedom of expression, or freedom of
trade vs. right to protest).
 In such cases, the courts must perform a careful balancing or weighing-up of the
rights.

 Status of rights and remedies:

 The Bill of Rights enhances the protection of fundamental rights and raises their
status.
 All conduct, including state action, legislation, court decisions, and private conduct,
may be tested against the Bill of Rights.
 Any limitation must comply with Section 36 (limitation clause).

 boni mores and the Constitution:

 The boni mores (legal convictions of the community) standard in delict law can serve as
prima facie evidence of whether a limitation of a right is reasonable and justifiable.

 Access to court:
 When there is an infringement or threat to a fundamental right, the person may
approach a competent court for appropriate relief (Section 38 of the Constitution).
  "Constitutional delict":
 There is a possibility of developing a “constitutional delict” – where the infringement of
a right per se constitutes a delict.
 A clear distinction must be made between a constitutional wrong and a delict.
 Delictual remedies aim to compensate, whereas constitutional remedies are aimed
at affirming, enforcing, and protecting rights, and preventing future violations.
 A delict is not always a constitutional wrong, and vice versa.
 The term “constitutional delict” or “constitutional tort” is best avoided for
conceptual clarity.

 Group or class actions:

 In terms of Section 38 of the Constitution, group or class actions may include
delictual claims, not just those based on the Bill of Rights.

b) Indirect Application
 Indirect application means that all private law rules, including delictual rules, must
be interpreted in light of the values of Chapter 2.
 This promotes the spirit, purport, and objects of the Bill of Rights.
 Indirect application often leads to the same result as direct application.

 Open-ended principles influenced by the Bill of Rights:

Delictual principles such as:
o boni mores (used to determine wrongfulness)
o The reasonable foreseeability test for legal causation
o The reasonable person test for negligence— are especially susceptible to
constitutional values like fairness, justice, and reasonableness.

 Courts can apply constitutional values as policy considerations when developing

these delictual tests.
 Case law already reflects this integration of constitutional values in delictual reasoning.

PART II General principles of the law of

delict
UNIT 3: Conduct
1. General Principles of Conduct in Delict
 Conduct is a general requirement for delictual liability.
 One person (the doer) must cause damage or harm to another through an act or
omission.
 Conduct constitutes the damage-causing event in a delict.

2. Nature and Characteristics of Conduct

 Conduct is defined as a voluntary human act or omission.
 Only a human act qualifies as conduct (excluding animals unless used by a human).
 Juristic persons (e.g., companies) can be held liable if their directors or employees
act within the scope of their duties to benefit the juristic person.
 Voluntariness means the act is controlled by the will of the person.
 Voluntariness does not require intention or desire (e.g., forgetting to warn about
danger may still be voluntary).
 Involuntariness occurs when the person is physically or mentally unable to control
their action (e.g., epileptic fits, unconsciousness).
 A person’s conduct need not be rational or reasonable to be voluntary.
 Acts by an infans or mentally ill person may still be voluntary but not result in liability due
to lack of accountability or fault.

 Conduct may take the form of:

o Positive acts (commissio), or
o Omissions (omissio).

3. The Defence of Automatism

 Automatism is the defence that the conduct was involuntary, i.e., the defendant acted
mechanically.
 Conditions accepted to cause automatism include:
o Absolute compulsion (vis absoluta)
o Sleep, fainting, epileptic fits, serious intoxication, blackouts, reflexes, mental
illness, hypnosis, heart attacks, etc.

 Vis absoluta vs vis compulsiva:

o Vis absoluta (e.g., physical compulsion by another) excludes conduct.
o Vis compulsiva (e.g., threat to life) involves conduct but may excuse liability due to
necessity or lack of fault.
o Case: S v Goliath 1972 3 SA 1 (A) supports this distinction.

 Actio libera in causa: A person cannot rely on automatism if they intentionally caused
their involuntary state to harm another.
 Automatism will also not succeed where the defendant was negligent about entering
the automatic state. Examples include:
o Driving while foreseeing epileptic fits.
o Sleepwalking while failing to take precautions.
o Sleeping next to a newborn and causing suffocation.
 In cases of sane automatism, the onus is on the plaintiff to prove the conduct was
voluntary.
 In automatism due to mental illness, the onus may shift to the defendant to prove
absence of conduct.

4. Voluntariness and Prior Conduct

 Van der Merwe and Olivier’s view: Automatism doesn’t exclude conduct but may
exclude wrongfulness or fault.
 Example: X sleeps with a knife and injures Y during a dream. The stabbing is not
voluntary, but buying and placing the knife was a prior voluntary act.
 However, the accepted view is that only the voluntary act closest to the harm
matters.
 Prior voluntary acts (like placing the knife) are not relevant unless they were negligent.
 If X knew or should have foreseen the possibility of harm while asleep, automatism
cannot be used as a defence.
4.5 In that case, liability is based on culpable prior conduct.

4. Commission (commissio) and omission (omissio)

 Conduct in delict may take the form of either a commission (positive act) or an
omission (failure to act).
 While the difference between commission and omission should not be
overemphasised, it remains important for certain legal purposes, especially when
determining wrongfulness and liability.
 Liability for omissions is more restricted than liability for commissions.
o This is due to policy considerations: the law is generally reluctant to impose a legal
duty to act positively to prevent harm to others.
 Van der Walt and Midgley explain that it is often difficult to distinguish between a
commission and an omission, especially where there is a continuous course of
conduct, such as in:
o Driving a vehicle, where adjustments and responses to new situations are constantly
required.
 In some circumstances, the same conduct may simultaneously be both a
commission and an omission, depending on its purpose and context.
 Many so-called omissions are actually legally deficient positive conduct.
o A failure to take certain precautions may not be a true omission, but rather an
indication that the positive conduct was performed negligently.
o This is linked to the concept of culpa in faciendo – negligence in performing an act.

 Example: A driver failing to stop at a stop street and colliding with another car is
an example of negligent positive conduct.
 Though it can be linguistically described as an omission (“the driver failed to
stop”), this does not change its legal character as a commission.
 The failure to take reasonable steps to avoid harm, when a person already has control
over a dangerous object (e.g., fire), is more accurately classified as a negligent
commission than as an omission.
 Example: If X controls a fire and fails to prevent it from causing damage, this is a
case of culpa in faciendo, not a mere omission.
 However, true omissions occur where there is no prior positive conduct or control,
and there is a failure to act at all to prevent harm.

 Examples of true omissions:

o The owner of land failing to control a fire that started without their involvement.
o A policeman neglecting to protect a person being assaulted by a third party.
o Police failing to disarm a dangerous person known to have firearms, who then
causes harm.
o Police failing to prevent a dangerous criminal from escaping, who then rapes a
woman.
o Police failing to provide medical treatment to a detained injured person, who
then sustains brain damage.
o Police and prosecutor failing to oppose bail for a dangerous criminal, who is
released and later seriously assaults a woman.
o A champion swimmer seeing a child drowning and taking no action at all.
 These examples are all cases of omissio – failures to take any positive action to
prevent harm.
 Whether such omissions are wrongful depends on whether there was a legal duty to
act positively.
o This involves a separate inquiry into wrongfulness.

 Key legal principles:

 Negligence is defined as a failure to take reasonable precautions.
 An omission is not always the opposite of commission; sometimes the failure is
embedded within the negligent performance of an act.
 Linguistic framing (e.g., saying “he failed to act”) is not decisive in determining the
legal nature of the conduct.

UNIT 4: Wrongfulness: introduction, act and consequence

1. Introduction
 An act that causes harm is not enough to establish delictual liability —
wrongfulness must also be present.
 Without wrongfulness, a defendant cannot be held liable in delict.
 Wrongfulness occurs when a legally protected interest is infringed in a legally
reprehensible way.
 The determination of wrongfulness is objective and ex post facto (diagnostically),
meaning:
o All relevant facts and actual consequences are considered after the event.
 The process of establishing wrongfulness involves a dual enquiry:
o First, determining whether a legally recognised interest has been infringed.
o Second, determining whether the infringement occurred in a legally
reprehensible way, using legal norms.
 A harmful consequence alone is not enough — there must be a violation of a legal
norm.
 The central question is whether the factual infringement occurred in a legally
unacceptable way, which lies at the heart of the wrongfulness enquiry.
 Whether an interest deserves protection, and whether its infringement is unacceptable, is
assessed according to the legal convictions of the community — the boni mores
criterion.

2. Act and Consequence

 An act is only delictually wrongful if it results in the infringement of a legally
protected interest.
 Determining this usually requires factual analysis of evidence, such as:
o Whether the plaintiff’s car was damaged,
o Whether dignity, goodwill, or earning capacity was harmed,
o Or whether a contractual delivery claim was prejudiced.

 An act, without a harmful consequence, is never wrongful in delict.

 Example: If X drives at 120 km/h in Johannesburg traffic and no harm occurs, the
act is not wrongful because there is no infringement of an interest.
 In delict, the wrongfulness of an act is always tied to its consequence — without a
harmful consequence, wrongfulness cannot exist.
 An act and its consequence are always separated in time and space, sometimes
slightly, sometimes significantly:
 Example 1: If X slaps Y, the consequence (injury or insult) follows immediately.
 Example 2: If X plants a limpet mine, the explosion and damage might follow hours
later.
 In both examples above, wrongfulness depends on the harmful consequence, not on
the act alone.
 This separation of act and consequence helps explain cases such as Pinchin v Santam
Insurance Co Ltd 1963 (2) SA 254 (W):
o A pregnant woman was in a car accident caused by the defendant’s negligence.
o Her child was born with brain damage.
o The issue was whether the child could claim, given that at the time of the
accident, it had no legal personality.
 The court relied on the nasciturus fiction, which holds that an unborn child is deemed
born if it benefits them, to find that the child had a potential claim.
 However, Hiemstra J found the claim failed due to lack of proof of causation between
the accident and the brain damage.
 Joubert criticised the court’s reliance on the nasciturus fiction and argued:
 Because act and consequence are separate, the child did not need legal personality
at the time of the act.
 The child became a legal subject at birth, and that is when the harmful
consequence occurred.
 Thus, wrongfulness can be assessed only once the consequence arises, making
the fiction unnecessary.
 The case shows that wrongfulness must be assessed when the consequence
materialises, even if the act occurred earlier.
 This reasoning was supported in Road Accident Fund v Mtati 2005 (6) SA 215 (SCA):
o The Supreme Court of Appeal followed Joubert’s approach.
 Farlam JA stated that the nasciturus fiction is inadequate in some cases (e.g., when
a mother contracts syphilis before pregnancy, and the child is later born infected).
 The court emphasised that wrongfulness and damage are distinct elements of delict,
and must not be merged.
 It was also noted that recognising a child’s claim for antenatal injuries will not open
the floodgates of litigation, because:
 The claim only arises if the child is born alive.

UNIT 5: The legal convictions of the community (boni

mores) as basic test for wrongfulness
3. The Legal Convictions of the Community (boni mores) as the Basic
Test for Wrongfulness

 The general criterion used to determine whether conduct is unlawful (wrongful) in

delict is the legal convictions of the community, also known as the boni mores.
 This criterion reflects the community's evolving sense of justice, fairness, and
reasonableness.
 It is an open-ended, objective test that has developed into the universal test for
wrongfulness, applying not only to omissions, but to all forms of wrongful conduct.

 Case: Lee v Minister for Correctional Services 2013 (2) SA 144 (CC):

o The Constitutional Court held that prison authorities had a constitutional

obligation to take reasonable steps to prevent the spread of TB in prisons.
o Their failure to implement a reasonable system to prevent TB infection
amounted to an unreasonable infringement of the inmate’s rights.
o The Court applied the boni mores test, concluding that the omission was
wrongful based on constitutional values of dignity, life, and bodily integrity.

 Case: Minister van Polisie v Ewels 1975 (3) SA 590 (A):

o A police officer stood by and failed to intervene while another officer assaulted a
civilian in a police station.
o The court held that omissions may be wrongful when the circumstances
demand a positive duty to act.
 o It stated that South African law had developed to the point where an omission is
wrongful when the legal convictions of the community require that the
omission should be considered wrongful and the harm compensated.
o This marked the formal adoption of the boni mores test as the general test for
wrongfulness.

3.1The Balancing of Interests

 The application of the boni mores criterion involves an ex post facto balancing of
interests.

 The court must weigh:

o The interests promoted by the defendant’s conduct;

o The interests infringed of the plaintiff;
o The social consequences of imposing liability in similar situations.

 This is done objectively and contextually, taking all relevant circumstances into
account.

 Factors considered in this balancing process include:

o Nature and extent of the harm suffered by the plaintiff.

o Whether the harm was subjectively foreseen or reasonably foreseeable.
o The social value or utility of the defendant’s conduct to themselves or
society.
o The costs and effort required to prevent the harm.
o The probability of success of preventative measures.
o The nature of the relationship between the parties (e.g. parent/child,
doctor/patient, state/citizen).
o Whether the costs of prevention would be proportional to the harm
suffered.
o The motive of the defendant, including whether it was malicious.
o Economic considerations and the risk of limitless liability.
o The legal position in foreign jurisdictions.
o Moral and ethical considerations.
o Broader public policy concerns, including alignment with the Constitution
and the Bill of Rights.

3.2A Delictual Criterion

 In the law of delict, the boni mores test is used not to determine what is morally or
religiously right or wrong, but what is legally wrongful.
 The community’s legal convictions develop over time, and acts that were previously only
morally condemned may, with time, become delictually wrongful.
 The test remains confined to whether the conduct was legally permissible in the
context of protecting individual interests.

3.3 An Objective Criterion

The Role of the Judge

 The test is objective, not based on a judge’s personal opinions.
 The judge must determine the legal convictions of the community by interpreting:

o Relevant legal policy;

o Statutory and common-law rules;
o Past court decisions
o All other relevant information and evidence.

 Case: Schultz v Butt 1986 (3) SA 667 (A):

 Involved a yacht builder copying another's unique design.
 The Court held that the copying was wrongful because it was done maliciously and
in bad faith.
 The decision was based on the boni mores and a broader policy against unlawful
competition.

 Subjective factors such as the defendant’s mental state, intentions, or beliefs are
normally irrelevant when determining wrongfulness.
 The test remains objective, even when the defendant honestly believed their conduct
was justified.

Example: If a person violently resists a lawful arrest because they mistakenly

believe it to be unlawful, their conduct is still wrongful, despite their subjective
belief.

 Exceptions: Improper Motive (Malice)

 In certain cases, improper motive or malice may be relevant in determining

wrongfulness.

 Improper motive is different from intent:

o Intent is a technical legal requirement (e.g., directed will + knowledge of

wrongfulness).
o Improper motive refers to a reprehensible purpose, which may render conduct
unreasonable and therefore wrongful.

 Case: Minister of Finance v Gore 2007 (1) SA 111 (SCA):

 A claim was brought for negligently approving a tender.
 The Court emphasised that public policy may exclude wrongfulness, even if there is a
legal duty.

 Case: Country Cloud Trading CC v MEC for Infrastructure Development 2015 (1)
SA 1 (CC):
 A contract was unlawfully cancelled, causing pure economic loss.
 The Court found that no wrongfulness existed because imposing liability would go
against public policy and risk indeterminate liability.

 Case: Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC):
 Security guards allowed robbers into the plaintiff’s home.
  The Court held that the guards had a legal duty of care, and their failure to act
reasonably was wrongful under the boni mores and constitutional rights to privacy
and security.

3.3 Practical Application of the Boni Mores Criterion

 Although boni mores is the basic test, courts rarely use it directly.
 In most cases, prima facie wrongfulness is assumed when there is a factual
infringement of legally protected interests (e.g., physical harm, property damage)
.
 Conduct is prima facie wrongful when it:
o Physically harms a person (e.g. assault);
o Damages property;
o Restrains bodily movement;
o Defames a person;
o Violates privacy or dignity.

 Case: Media 24 Ltd v SA Taxi Securitisation 2011 (5) SA 329 (SCA):

 The court applied the boni mores test to balance freedom of speech and
reputation.
 Held that certain publications were not wrongful, based on public interest and truth.

 Infringements not Prima Facie Wrongful:

o Omissions;
o Pure economic loss;
o Non-physical personality infringements (e.g. some forms of defamation);
o Indirect goodwill damage.

 A factual infringement is not finally wrongful if there is a ground of justification, such

as:

o Self-defence;
o Necessity;
o Consent.

1. Case: Telematrix (Pty) Ltd v ASA 2006 (1) SA 461 (SCA):

o ASA prohibited publication of advertisements, causing financial loss.

o Harms JA held that, despite negligence, public policy and the boni mores
excluded wrongfulness.
o This case illustrates how public interest considerations can override apparent
wrongdoing.

2. Case: S v Goliath 1972 (3) SA 1 (A):

o X, under threat to his life, helped Y kill Z.

o The court had to assess whether the necessity defence applied.
o By applying boni mores, it was found that ordinary people would not expect
someone to die rather than save their own life, thus X’s act was not wrongful.
 3. Case: SA Associated Newspapers Ltd v Yutar 1969 (2) SA 442 (A):

o Defamation case.
o Court asked whether the reasonable person would view the words as injurious to
reputation.
o The reasonable person test was used to express the legal convictions of the
community.

UNIT 6: Wrongfulness as infringement of a right;

wrongfulness as breach of a legal duty
4.1 The doctrine of subjective rights

 In Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T),
the court accepted the doctrine of subjective rights as a method to determine
wrongfulness.
 The fundamental premise of this doctrine is that wrongfulness consists of the
infringement of a subjective right.
 All legal subjects are considered to be holders of subjective rights, meaning they have
enforceable claims against other persons.
 A subjective right is characterised by two relationships:
o The subject-object relationship, where the legal subject has a right to a legal
object (e.g., a person has a right to their car).
o The subject-subject relationship, where all other legal subjects have a duty not
to infringe this right.
 The subject-object relationship gives the holder powers such as use, enjoyment, and
alienation of the legal object, regulated by legal norms.
 The subject-subject relationship creates a correlative duty on others to respect this
right. For example, if I own a car, others have a duty not to steal or damage it.
 Thus, every right has a corresponding duty: the existence of a right inherently
means that others must not infringe it.
 In Clarke v Hurst 1992 4 SA 630 (D), the court supported the view that infringement
of a subjective right can determine wrongfulness.
 However, wrongfulness is not limited to infringement of a subjective right. As
indicated in Universiteit van Pretoria v Tommie Meyer Films, other criteria such as
breach of duties or norms may also be used to establish wrongfulness, especially in
complex cases like pure economic loss or misrepresentation.
 As noted by Van der Merwe and Olivier, even in such cases, wrongfulness could still
be viewed as the infringement of a subjective right, albeit one that has not been
terminologically identified.

4.2 The nature of a subjective right

 The nature of a subjective right is determined largely by the nature of its legal object.
 Rights are categorised into five classes based on the nature of the legal object
involved:
o Real rights – rights to tangible objects (e.g., a farm, car, pen, or compressed air in a
cylinder).
o Personality rights – rights to aspects of human personality (e.g., good name,
physical integrity, honour, privacy, identity).
o Personal rights – rights to acts or performances claimable from another person
(e.g., delivery of goods, payment of a debt, or services rendered).
 o Immaterial property rights – rights to intangible products of the human intellect
expressed in a tangible form (e.g., a poem, invention, or artwork).
o Personal immaterial property rights – intangible products linked to one’s
personality (e.g., earning capacity and creditworthiness).
 The recognition of personal immaterial property rights as a fifth category was
proposed by Neethling and accepted in Wolmarans v ABSA Bank Ltd 2005 6 SA 551
(C) 557.
 Traditionally, only the first four categories were recognised, as seen in Universiteit van
Pretoria v Tommie Meyer Films and academic commentary such as Joubert
Grondslae and Van der Merwe and Olivier.
 These rights are sometimes also described as absolute (enforceable against all) or
relative (enforceable against specific persons).
 Real rights, personality rights, and immaterial property rights are generally
considered absolute rights, while personal rights are typically relative.

4.3 Further Development of the Doctrine of Subjective Rights

 The doctrine of subjective rights is not static; it may be further developed and
evolved by the courts.
 The number of subjective rights is not closed or fixed, as shown by the recent
recognition of new personality rights such as the right to privacy and the right to
identity.
 New immaterial property rights have also been recognised, such as:
o Goodwill
o Trade secrets
 Additionally, the courts have acknowledged a new category of rights, namely personal
immaterial property rights, which include intangible aspects like creditworthiness and
earning capacity.
 These were discussed in Wolmarans v ABSA Bank Ltd 2005 6 SA 551 (C).

4.4 Origin of Subjective Rights

 Subjective rights originate when the law recognises individual interests as worthy
of legal protection.
 For example, the modern legal system now protects privacy, whereas in the past it was
not recognised.
 However, before a personal interest can be transformed into a legally protected
subjective right, two conditions must be met:
o The interest must be valuable or relatively scarce to the holder.
o The interest must have a degree of independence, meaning it must be possible
to use, enjoy, or dispose of it.
 Once these two conditions are fulfilled, the interest is legally recognised as an object of
a subjective right, which creates:
o A subject-object relationship (between the right holder and the legal object), and
o A subject-subject relationship (between the right holder and other legal subjects,
who are now legally obliged not to interfere).

4.5 Infringement of a Subjective Right: Requirements

 The fundamental principle is that the infringement of a subjective right is wrongful.
 To determine whether a right has been infringed, a dual inquiry is required:

(a) First requirement: Violation of the subject-object relationship

o This requirement is usually satisfied when the defendant interferes with the
plaintiff’s powers of use, enjoyment, or disposal of the legal object.
  Most commonly, this occurs through direct actions:

 Crashing into the plaintiff’s car (violation of property).

 Slapping the plaintiff’s face (violation of physical integrity).
 Using humiliating language (violation of dignity).
 Peeping at someone in the bathroom (violation of privacy).

 Indirect violations can also occur, for example:

 Hiding the plaintiff’s car keys, making it impossible for them to use the car.
 Damaging an electrical cable that powers the plaintiff’s factory, halting production.
 Evidence is required to establish whether the subject-object relationship has been
violated.

(b) Second requirement: Violation must be legally reprehensible

 Actual interference alone does not equal wrongfulness.
 The conduct must also be legally impermissible, meaning it must have violated a legal
norm.
 The norm or standard for determining whether a violation is wrongful is the general
reasonableness criterion, which is grounded in the legal convictions of the
community (boni mores).
 The boni mores test involves weighing interests based on the surrounding
circumstances.
 However, courts usually do not need to apply this test directly.
o In most cases, proof of an actual infringement already indicates wrongfulness.
o It is then up to the defendant to raise a ground of justification such as:
 Necessity
 Consent
 If the defendant’s justification succeeds, the conduct will not be deemed wrongful.

5 Wrongfulness as Breach of a Legal Duty

5.1 General

 Wrongfulness can also be determined through breach of a legal duty, not only
through infringement of a subjective right.
 The doctrine of subjective rights is merely one method to determine whether conduct
is wrongful in terms of the boni mores (legal convictions of the community).
 There are cases—especially misrepresentation—where no clearly defined subjective
right exists, making the breach-of-legal-duty approach more appropriate.
 Even if a subjective right is present, in some cases it is preferable to ask whether a
legal duty was breached, rather than whether a right was infringed.

 This approach is particularly used in:

o Omissions: When the defendant fails to act where action was expected.
o Pure economic loss: Where no physical harm occurs but financial damage is
sustained.
o Exception: In unlawful competition, the right to goodwill may still be treated
under subjective rights.

 The test becomes whether, according to the boni mores (reasonableness criterion), the
defendant had a legal duty to act positively to prevent harm.
 In Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as
amicus curiae) 2003 (1) SA 389 (SCA):
o Vivier ADP stated: An omission is wrongful if the defendant had a legal duty
to act positively to prevent harm.
o The test is reasonableness: Would a reasonable person in the defendant’s
position have taken positive measures?
 This approach is used because harm caused by omission or pure economic loss is
not prima facie wrongful, but rather prima facie lawful.
 The boni mores do not impose a general duty to:
o Prevent loss to others through positive conduct.
o Prevent all forms of pure economic loss.
 Imposing such duties would place an unreasonable burden on individuals.
 Therefore, courts must evaluate in each case whether a specific legal duty exists to:
o Act positively, or
o Avoid causing pure economic loss.
 If such a legal duty is found, its breach (in absence of a justification) is:
o Unreasonable
o Contra bonos mores
o Wrongful
 The breach-of-duty test is not a new test for wrongfulness. In fact:
o In many cases, a legal duty is just the converse of a subjective right.
o Thus, the boni mores standard is still used to assess wrongfulness,
regardless of the method applied.
 Courts sometimes mistakenly describe this duty as a “legal duty not to act
negligently”, creating confusion:
o This implies a negligence test, which differs from the wrongfulness inquiry.
o It wrongly shifts focus to whether the defendant’s conduct was
unreasonable, rather than whether the duty existed.
 This confusion blurs the line between wrongfulness and negligence, which are
separate elements of delictual liability:
o Wrongfulness asks: Did a duty exist?
o Negligence asks: Did the defendant fail to act as a reasonable person would
have?
 The duty-of-care approach from English law, which combines both elements, was
explicitly rejected by the Supreme Court of Appeal.
 Despite this, it is unfortunate that the SCA continues to use phrases like “a legal duty
not to act negligently,” which undermines the correct South African approach.
 The rest of this section will deal only with:
o Liability for omissions, and
o Breach of statutory duties.
 Liability for pure economic loss and misrepresentation will be addressed separately
later in the material.

UNIT 7: Liability for an omission

5.2 Liability for an Omission

 General rule: A person is not delictually liable for a mere omission, i.e., failure to act
positively to prevent harm to another.
 Thus, omissions are prima facie lawful, not wrongful, except in exceptional cases
where a pre-existing duty to act exists.
 Example: failure to provide safety equipment in a factory or protect a vulnerable
person from foreseeable harm.
 These exceptional omissions are treated like positive conduct and are prima facie
wrongful.
 Liability for an omission arises only if the omission is wrongful, which occurs when:
o A legal duty to act positively existed in the specific context, and
o The defendant failed to comply with that duty.
 Whether such a legal duty exists is determined with reference to the legal convictions
of the community and broader legal policy.
 The test is objective and considers all relevant circumstances of the particular case.
 There is no closed list (numerus clausus) of factors indicating a legal duty, but certain
indicators have emerged through time.
 Under the constitutional era, these factors must be applied in light of the spirit,
purport and objects of the Bill of Rights (as required by section 39(2) of the
Constitution).

5.2.1 Prior Conduct (The Omissio per Commissionem Rule)

 A person acts prima facie wrongfully when:

o They create a new source of danger through positive conduct (commissio),
and
o Subsequently fail to eliminate that danger (omissio), leading to harm.
o This is called the omissio per commissionem rule.
 Prior positive conduct creating a risk of harm is a strong indication that a legal duty
to prevent harm exists.
 Historically, the requirement of prior conduct was strictly enforced.
o Introduced by the Appellate Division in Halliwell v Johannesburg Municipal
Council 1912 AD 659.
o Applied for decades, particularly in municipality cases, but often produced
unsatisfactory results.
 A shift began in Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A):
 Steyn JA (minority judgment) rejected the view that prior conduct is essential.
 He proposed that prior conduct is only one factor among many.
 The defendant had sent out a fishing boat whose engine failed, resulting in the loss
of the boat and death of the plaintiff’s husband.
 Although the majority still applied the “prior conduct” view, they found the defendant
had created a dangerous situation and owed a duty to take rescue steps.

 This flexible view was later accepted in:

 Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A):
 The applicant applied for an interdict to prevent slate being washed
downstream from the respondent’s land.
 The court ruled that prior conduct is not an indispensable requirement for
liability.
 Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A):
 The court held that a mere omission (stricto sensu) is not actionable unless a
legal duty to act exists.
 The court concluded that even without prior conduct, a landowner may have a
duty to control a fire that started on their land.

 The authoritative formulation of the current law was given in:

 Minister van Polisie v Ewels 1975 (3) SA 590 (A):
 Per Rumpff CJ: Prior conduct or control of a dangerous object may
contribute to a finding of wrongfulness, but is not essential.
  An omission is wrongful if, in the circumstances, it violates the legal
convictions of the community, and the resulting harm ought to be
compensated.
 Emphasised that moral indignation alone is not sufficient; what matters is legal
reprehensibility.
 This judgment confirmed that omissions can be wrongful when the boni mores
demand that a person should have acted positively.
 Prior conduct is simply one of several indicators, not the sole requirement.
 In cases where prior conduct is present, a legal duty to act is often obvious.
o The general reasonableness test may not even be needed.
o Still, there may be exceptional cases where, despite prior conduct, no legal
duty arises.

 This approach was affirmed in Cape Town Municipality v Bakkerud 2000 (3) SA 1049
(SCA):
 The Supreme Court of Appeal confirmed that:
 Even in the absence of prior conduct or statutory duty, a municipality may
have a legal duty to:
o Repair roads or pavements, or
o Warn the public of dangers.
 The determination of such a duty is context-specific and must be decided case-by-
case (ad hoc).

5.2.2 ontrol of a dangerous object

 Control over a dangerous or potentially dangerous object, situation, or person
may create a legal duty to prevent harm.
 Two questions are key:
o Did the defendant have actual control?
o Did that control create a legal duty to act positively to prevent harm?

 Control may be inferred where:

o The defendant took control of the situation (e.g., a fire).
o The defendant was owner or occupier of land with potential hazards (e.g., long
grass, dangerous staircases, swimming pools).
o A shop owner controls the shop (e.g., slippery floors – Langley Fox Building
Partnership).
o Teachers have control over children (e.g., sleeping arrangements on bunk beds).
o A railway company controls train compartments (passengers are locked in while
in motion).
o Statutes place control on the defendant (e.g., police controlling prisoners).
 Control alone is not enough to establish a legal duty but may strongly indicate one,
depending on case-specific facts.
 Courts have held that:
o Occupiers have a legal duty to prevent injury to any person on the property, even
trespassers.
o Legal duties exist for:
 Owners/occupiers to control fires.
 Possessors of firearms or dangerous animals.
 Police controlling dangerous prisoners.
 Teachers controlling dangerous learners.
o However, owners of pools or ponds are not always liable for injuries to children
who are under their parents' supervision.
 If a legal duty exists, and the omission leads to injury, the conduct is prima facie
wrongful.
 To avoid liability, the defendant must prove:
o A ground of justification, or
o That reasonable steps were taken (i.e., no negligence).
 Distinction between prior conduct and control is not always necessary; either can
imply a legal duty.

5.2.3 Knowledge and foresight of possible harm

 Knowledge or foresight that an omission might cause harm is an indicator of
unreasonableness and wrongfulness.
 If someone knows about a dangerous situation, they may have a duty to exercise
control and take steps to prevent loss.
 Examples from case law:
o A municipality knew a stormwater pipe could overflow and cause damage
(referenced but not named).
o A malfunctioning traffic light was known to the municipality but not repaired.
o The municipality was aware of stolen valve covers, yet failed to replace them,
resulting in injury.
o The police knew of a “taxi war” threatening passengers’ lives.
 In Langley Fox Building Partnership (Pty) Ltd v De Valence, the majority held the
mandator (A) liable for not preventing a danger created by a subcontractor (B). A
reasonable person in A’s position would have acted.
 Minority judgment by Botha JA:
o Emphasised knowledge of danger as key.
o Held that if A did not know of the danger, no legal duty existed.
o Supported approach: First determine wrongfulness (existence of legal duty),
then consider negligence.

5.2.4 Rulesof law

 Common law or statutory law can impose positive obligations on individuals.
 Example: Common law requires lower landowners to provide lateral support.
 Example: Statutory law obliges landowners lighting fires to follow rules.
 Failure to fulfil these duties = prima facie wrongful conduct.

 Statutory provisions may:

o Create a delictual claim directly.
o Support a common law legal duty.
 Courts interpret statutes flexibly, considering:
o The purpose and objectives of the statute.
o The injustice to be avoided.
o Whether compensation is fair and reasonable.

 Wrongfulness arises not from statutory breach alone, but from the fact that reasonable
compensation is justified.
 Reference to boni mores and legal policy remains key.
 Especially relevant when determining state or municipal liability.
 Example: Where an ordinance requires road maintenance, failure by the council
leading to damage suggests wrongfulness.

Carmichele v Minister of Safety and Security (2001 (4) SA 938 (CC)):

 Plaintiff was assaulted by an accused released on bail.
 The CC held that courts must apply s 39(2) of the Constitution, promoting the
spirit, purport, and objects of the Bill of Rights when developing the common
law.
  The state had a legal duty to protect citizens from violent crime.
 The court criticised previous courts for using pre-constitutional tests.
 Ultimately, the court found both public and private law duties on the state,
based on:
o Section 39(2)
o International law obligations
o Public accountability
 The second Carmichele decision in the SCA (2004 3 SA 305) affirmed the state’s
liability.

5.2.5 A special relationship between the parties

 A special relationship between the parties may indicate a legal duty to prevent harm.
 Examples of such relationships include:
o Contractual relationships
o Policeman and citizen
o Officer/warden and prisoner
o Employer and employee
o Parent and child
o Doctor and patient
o Municipality and public member
o Public carrier and passenger
 Special relationship is not essential, but can support a legal duty.
 However, the relationship alone is not always sufficient to create a duty –
circumstances must justify it.
 Example: Dynamite factory owner owes a duty to employees because of inherent
risk.
 Courts must consider all surrounding circumstances in terms of the boni mores.
 Regarding the doctor-patient relationship, courts have addressed:
o Wrongful conception – damages for failed sterilisation or abortion.
o Wrongful birth – failure to inform of a child’s disability.
o Wrongful life (suggested term: wrongful suffering) – claim by a disabled child
born alive.

In H v Fetal Assessment Centre (2015):

 The Constitutional Court recognised that such an action may exist for patrimonial
damages, if all delictual requirements are met.
 Key question: Did the doctor have a legal duty to detect and disclose the disability?
 Court did not decide on non-patrimonial claims (e.g., pain and suffering), but:
o It is submitted that such claims should be allowed as they relate to personality
rights and physical integrity.
o No need for bodily injury to claim for pain and suffering if disability severely
impacts life.
o Section 28(2) of the Constitution: A child’s best interests are paramount.
o The common law should be developed to recognise such claims.

5.2.6 A particular office

 Holding a particular office can create a legal duty on a person to act in a specific
manner towards the public or specific persons.
 In Macadamia Finance Ltd v De Wet 2003 (4) SA 488 (T), the defendants (liquidators)
failed to insure the plaintiff company’s assets.
 The court held that their office imposed a legal duty, and breach of that duty was
wrongful, making them liable for the plaintiff’s loss.
5.2.7 Contractual undertaking for the safety of a third party
 If A contracts with B to protect C, then A has a legal duty towards C.
 Failure to protect C, resulting in harm, renders A’s conduct prima facie wrongful.
 Example: A lifesaver contracted to safeguard swimmers must act positively to
rescue them.
 In Chartaprops 16 (Pty) Ltd v Silberman 2009 (1) SA 265 (SCA), cleaning contractors
were held to owe a legal duty to shoppers, despite exclusion clauses.
 In Viv’s Tippers v Pha Phama Security, the court wrongly held that the security firm
had no legal duty to protect third parties from truck theft due to exclusion clauses and
fears of limitless liability.
 In Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (1) SA 44 (N), the
court emphasized that public policy and community justice could justify liability
despite contract exclusions.

5.2.8 Creation of the impression that the interests of a third party will be protected
 A legal duty can arise where a party creates the impression that they will protect
another’s interests, and the latter relies on that impression.
 In Compass Motors, a security firm was held to have owed a duty to the plaintiff
because they created a reasonable expectation of protection, although the firm
avoided liability due to lack of negligence.
 The case illustrates that reliance by the third party and control by the defendant are
significant factors.
 However, the court warned that simply owning a business does not automatically
create such an impression, unless actual measures are visible and relied upon.

5.2.9 Danger of limitless liability

 Courts are cautious not to impose duties that may result in limitless or indeterminate
liability.
 In South African Hang and Paragliding Association v Bewick 2015 (5) SA 170
(SCA), the potential for widespread harm from paragliding led the court to deny
liability based on policy concerns.
 In contrast, in Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009
(2) SA 150 (SCA), the court held that liability is more readily imposed for single losses
affecting identifiable plaintiffs.

5.2.10 Vulnerability to risk of damage

 If the plaintiff is vulnerable and unable to protect themselves against the harm caused
by an omission, this may indicate a legal duty.
 However, where the plaintiff can reasonably protect themselves and fails to do so, no
duty may be found.
 This is a policy-based consideration, focusing on the balance of responsibility
between the parties.

5.2.11 Interplay of factors

 A legal duty often arises from a combination of factors rather than a single one.
 In Minister van Polisie v Ewels 1975 (3) SA 590 (A), the duty arose from the statutory
obligation to prevent crime, the policeman’s office, and the relationship with the
plaintiff.
 Courts must evaluate all relevant circumstances, including constitutional values, to
determine whether the omission is wrongful.
 Omission can be wrongful particularly where constitutional and common law factors
interact.

 Examples of such duties include:

o The right to bodily and psychological integrity (section 12 of the Constitution).
 o The state’s duty to protect rights in terms of section 7(2) of the Constitution.
o The duty of SAPS to prevent crime and protect the public.
o Transnet’s duty to ensure safety for commuters.
o International law obligations to protect women and children.
o The prosecuting authority's duty to act in the public interest.
o The state’s duty to provide medical care for prisoners.
o The norm of public accountability.
o The duty to develop the common law in accordance with section 39(2) of the
Constitution.

In Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), the
Constitutional Court emphasized that constitutional imperatives must inform the
development of common law wrongfulness standards.
 The final SCA judgment in Minister of Safety and Security v Carmichele 2004
(3) SA 305 (SCA) confirmed the state’s legal duty, grounded in public and
private law, to protect individuals.

5.2.12 he general wrongfulness criterion

 If an omission does not fall into a defined category, the court resorts to the boni
mores test – the legal convictions of the community.
 Example: A champion swimmer ignores a drowning child, who becomes
quadriplegic.
 Though there is no formal relationship or prior conduct, the omission may still be
wrongful based on a balancing of interests: the swimmer’s inconvenience vs
the child’s severe harm.
 If rescuing would put the swimmer in danger (e.g., crocodiles), the legal duty
may not exist – the law does not require a person to risk their own life.
 Ultimately, the courts will rarely deviate from the principle that an omission is not prima
facie wrongful, unless the circumstances strongly justify it.

UNIT 8: Breach of a statutory duty; wrongfulness as the

reasonableness of imposing liability.
5.3 reach of a statutory duty

 Conduct that breaches a statutory duty is prima facie wrongful.

This means that the mere non-compliance with a statutory duty suggests
wrongfulness, although the final determination requires further analysis.
 Patz v Greene and Co: A successfully interdicted B who traded unlawfully near a
mining compound, based on the statutory prohibition against trading on claim
land, thereby protecting A's goodwill.
 However, violation of a statutory norm does not automatically mean the conduct is
wrongful.
 It must still amount to legally reprehensible conduct against the plaintiff’s interests.
 Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality:
Failure to issue certificates under section 82 of the Town Planning and
Townships Ordinance was not wrongful due to legal and public policy
considerations.
 Odinfin (Pty) Ltd v Reynecke: Non-compliance with section 3 of PAJA
(Promotion of Administrative Justice Act) was not delictually wrongful.
 Chowan v Associated Motor Holdings: Employer breached section 3 of the
Protected Disclosures Act, resulting in successful Aquilian and iniuria claims
after dismissing a whistleblower.
  Per McKerron, to succeed in a claim based on breach of statutory duty, the plaintiff
must prove:

1. The statutory provision provides a private law remedy.

2. The plaintiff is one of the persons for whose benefit the duty was imposed.
3. The nature and manner of harm is what the statute contemplates.
4. The defendant breached the statutory duty.
5. There is a causal link between the breach and the harm.

6. Wrongfulness as the reasonableness of imposing liability

 Traditionally, wrongfulness is defined as the infringement of a subjective right or
breach of a legal duty.
In Telematrix (Pty) Ltd v ASA, Harms JA introduced a new test: Conduct is wrongful
if public policy demands that the plaintiff be compensated for the loss caused by the
negligent act or omission.
Crown Chickens v Rieck: Nugent JA formulated the question as whether it is
reasonable to impose liability on the defendant.

 Criticisms of the new test:

A. Misinterpretation of Ewels case:
 Fagan and Harms JA misquoted Minister van Polisie v Ewels.
Correct reading: The court must first decide if the omission is wrongful based on
boni mores, then decide whether liability follows.

B. Wrongfulness does not stand alone in delict:

 All five delictual elements (conduct, causation, wrongfulness, fault, and
damage) must be present.
 Reasonableness of imposing liability is not the test for wrongfulness, but rather the
result of proving a delict has occurred.

C. Interdicts:
 The new test cannot apply to interdicts, which prevent future harm and do not
require fault, unlike the Aquilian action.
 Courts still use boni mores or reasonableness criterion for interdicts.

D. Vague and underdeveloped:

 The new test lacks concrete application guidelines.
 Courts still rely on established tests: infringement of a right or breach of legal
duty.
Crown Chickens and 📘 MSC v Tebe Trading applied traditional legal duty approach,
despite referencing the new test.

E. Wrong assumption about reasonableness and conduct:

 Courts often consider the reasonableness of conduct (e.g., necessity, private
defence) when determining wrongfulness.
Crown Chickens: Assessed whether a reasonable person in the actor’s position would
have acted the same.
 Thus, Brand JA’s claim that reasonableness of conduct is irrelevant is flawed.
 The new test is influenced by English tort law’s “duty of care” doctrine, especially
in Fagan’s work.
 This is problematic as South African courts have repeatedly rejected the tort-
based “duty of care” approach.
Telematrix, 📘 Stewart v Botha: Courts refused to extend Aquilian liability due to policy
reasons, not because wrongfulness was absent.
 7. Reconciliation of the traditional boni mores test and the new test of
reasonableness of imposing liability
 Country Cloud Trading v MEC, Dept of Infrastructure Development:
Brand JA rejected the boni mores, legal convictions of the community, and even
the legal duty concept, seeing them as confusing.
 Yet, courts and scholars continue to rely on these traditional concepts.
Brand JA’s proposal to replace them with the new “reasonableness of imposing
liability” test was not well received.
 SA Hang and Paragliding Association v Bewick: Brand JA accepted that
wrongfulness still depends on whether a legal duty exists, based on policy and
constitutional values.
 This reconciles the new and traditional tests.

 Loureiro v Imvula Quality Protection:

 Van der Westhuizen J stated that wrongfulness depends on whether legal and
constitutional policy deems the conduct acceptable.

 H v Fetal Assessment Centre and Oppelt v Department of Health:

 Wrongfulness is assessed using boni mores, legal duty, and
reasonableness of imposing liability together.

 Masstores v Pick n Pay:

 Froneman J confirmed that the boni mores test includes policy
considerations and that the reasonableness of imposing liability must be
evaluated using boni mores.

 Therefore, reconciliation is possible because both tests are rooted in public and
legal policy and aim to protect the plaintiff if justified.

 The proper method is:

1. Use the boni mores to weigh conflicting interests and relevant policy factors.
2. Decide if the conduct is wrongful.
3. If so, and the other delictual elements are present, it will be reasonable to impose
liability.

 Courts are returning to the traditional test.

📘 Most recent cases rely on boni mores without mentioning the new test.
📘 Brand JA’s proposal to abandon the legal duty concept has not been widely
accepted.
 Final position: While the new test may add a different perspective, it causes
confusion, lacks practical application, and need not replace the traditional boni
mores and legal duty criteria.

UNIT 9: Grounds of justification; Private defence

8 Grounds of justification

8.1 Introduction
 Grounds of justification are exceptional circumstances that render otherwise
wrongful conduct lawful.
 Although there may be a violation of an interest, it is not unreasonable or contra
bonos mores, meaning no norm is violated.
 A ground of justification removes the wrongfulness of the defendant’s conduct.
 These grounds are practical expressions of boni mores (legal convictions of the
community) and reflect reasonableness in common factual scenarios.
 They serve as tools to balance the interests of different legal subjects.
 The central question remains whether the violation of interest was reasonable under
the circumstances, and thus lawful.
 Grounds of justification are not closed (no numerus clausus), meaning new grounds
can develop as society changes.
 In essence, they show that the defendant was exercising a legal right or power, and
the plaintiff’s rights do not extend far enough to prevent this.
 The burden of proof lies on the defendant to establish that a ground of justification
existed.

 The traditional grounds of justification include:

o Private defence
o Necessity
o Provocation
o Consent
o Statutory authority
o Public authority and official command
o Power to discipline

8.2 Private Defence

8.2.1 General
 Private defence (noodweer) occurs when the defendant acts against another’s
wrongful attack to protect his own or someone else’s legally recognised
interests.
 Example: A hits B to stop B from stabbing him. If B sues for damages, A can raise
private defence, showing he acted reasonably and lawfully, and will not be liable.
Mugwena v Minister of Safety and Security: The test is whether a reasonable person
would have believed there was a real risk of harm.
 Fagan criticises this ex ante test (based on perceived danger), arguing it blurs the
lines between wrongfulness and negligence.

8.2.2 Requirements for the attack

A. The attack must be a human act:
 It can be a commission (act) or an omission (failure to act).
 Example: A prisoner assaults a guard who unlawfully keeps him detained—this can
qualify as defence against an omission.
 Animal attacks are not considered human acts; necessity would apply instead.
 However, if a person uses an animal as an instrument of attack, defence is
directed at the person, and private defence applies.

B. The attack must be wrongful:

 The attack must violate or threaten a legally protected interest without justification.
 The law allows protection of interests such as:
o Life
o Bodily integrity
o Honour
o Property or possessions
 No defence is allowed against a lawful attack (e.g., legal arrest, consented attack, or
attack in necessity).
 Duels between consenting parties do not qualify as defence, as both are acting
unlawfully.
 The test is objective: There must be actual wrongful conduct, not merely a
subjective belief of danger.
 Putative defence (imagined defence) is not a valid ground.
 If the defender genuinely but wrongly believes he is defending himself, he acts
wrongfully but may escape liability if there is no fault (no intent or negligence).

C. The attack must have started or be imminent (not ceased):

 Defence may be used against threatened or ongoing attacks, but not against future
or past attacks.
 It is not always clear when an attack ends; once it does, defence becomes revenge,
which is unjustified.

 Two points that are not requirements:

1. Fault on the part of the aggressor is not required:
 One may defend against someone who acts wrongfully but without fault (e.g., a child
or mentally ill person).

2. The attack does not need to be directed at the defender:

 A person may defend others, even strangers.
 However, defence is not allowed if the third party validly consented to the attack
(unless the consent is invalid or against public policy).

8.2.3 Requirements for the defence

 The act of defence must target the source of the wrongful threat.
 If the interest can be protected by less harmful means, the act of defence is
wrongful.
 Example: Setting a trap gun may be justified only when all other options fail
 Case law holds that a person should flee if safe to do so, but not if:
o Flight causes greater danger (e.g., being shot in the back), or
o It results in undue humiliation or dereliction of duty (e.g., a police officer
abandoning an arrest).
 No rigid rule applies; the matter depends on the circumstances of each case.
 The act must be reasonable; it must not be grossly disproportionate to the threat.
 The reasonableness is assessed objectively, considering:
o The urgency and severity of the attack.
o The weapons used, the persistence of the attacker, and what the defender
had at their disposal.
Steyn CJ: If the attacker chooses to act unlawfully, the defender should not be blamed
for causing greater harm unless there is extreme imbalance.

I. Disproportionate examples:
S v Van Wyk: Killing to defend property may be justified if personal danger exists.
R v Schultz: Killing to protect a small item (e.g., butter) is unreasonable and not
justified.
 The courts recognise that absolute proportionality is not required, but extreme
imbalance makes the defence unlawful.

II. Additional factors influencing reasonableness:

 Different types of interests may be involved (e.g., dignity vs property).
 One may defend a lesser interest by violating a more valuable one, but
reasonableness must still be assessed.
 Example: One may protect chastity by killing a rapist, or protect property by
assaulting or even killing a persistent thief, if no other means are available.
 The type of weapon and means used in defence need not match the attack.
 What matters is what the defender had access to, and whether they used the most
appropriate and restrained method under the circumstances.

UNIT 10: Necessity

8.3 Necessity

8.3.1 General
 A state of necessity (noodtoestand) exists when the defendant is forced by superior
force (vis maior) to protect legally recognised interests (his own or another’s) by
reasonably violating the rights of an innocent third party.
 Example: If A breaks B’s window to rescue C from a burning house, A’s conduct is
lawful. The necessity justifies A’s conduct and simultaneously limits B’s right to his
property.
 Necessity functions as a justification ground: it excludes wrongfulness by granting
the defendant legal authority to act where, under normal conditions, the conduct would
have been wrongful.

In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118
(SCA):
 Nugent JA stated that it is unclear whether necessity excludes wrongfulness
or excludes fault (negligence).
 He noted that the same objective test was wrongly applied to both
wrongfulness and negligence, thus blurring the distinction between these
two delictual elements.
 The issue was not resolved in that case.

 Necessity is distinct from private defence:

o In private defence, the conduct is aimed at a wrongful attacker.
o In necessity, the conduct affects an innocent party.
 Example: When a person fends off an animal, it is necessity, not self-defence,
because an animal cannot act wrongfully.

8.3.2 Requirements for Necessity

I. The state of necessity must exist or be imminent.
 The danger must be present or impending, not something past or merely anticipated.
 The origin of the danger is irrelevant – it may come from humans, animals, or natural
forces.
 The existence of the state of necessity is judged objectively.
 The key test is whether a real danger existed based on the facts (ex post facto), not
whether the defendant believed it existed.
 Putative necessity does not qualify as necessity.
In S v Pretorius 1975 (2) SA 85 (SWA):
o The accused sped to hospital believing his child had overdosed.
o Although he acted in good faith, objectively, there was no real danger – thus,
no state of necessity existed.
o However, because he acted like a reasonable person, he lacked both intent
and negligence, and therefore was not convicted.
 Crown Chickens (Pty) Ltd also affirmed that putative necessity is not a defence if
objectively no threat existed.
 Fear or terror does not establish necessity – it may affect accountability
(toerekeningsvatbaarheid) or fault, but not wrongfulness.

II. A legally protected interest must have been endangered.

 The defendant may act to protect his own or another’s interest.
 The injured party and the protected party may be the same person.
 Protected interests include:
o Life
o Physical integrity
o Property
 Violated interests in a state of necessity may include:
o Honour
o Privacy
o Identity
o Freedom
o Emotions and feelings

III. The act must have been necessary to protect the threatened interest.
 There must have been no other reasonable way to avert the danger.
 Example: If escape is possible, the defendant must flee instead of causing harm.

IV. The means used must be reasonable and not excessive.

 There must be proportionality between the interest protected and the interest
sacrificed.
 In contrast to private defence, necessity requires the protected interest to be more
or equally valuable.
 This commensurability principle is central to necessity.
 Each case must be evaluated individually, as no fixed rule exists.

S v Goliath 1972 (3) SA 1 (A):

 A assisted B in killing C under compulsion, fearing for his life.
 The court held that necessity may justify homicide in exceptional
circumstances.
 Rumpff JA stated that expecting a person to sacrifice his life rather than kill
another demands heroism, not reasonableness.
 The majority accepted that compulsion (as necessity) may justify the killing of
an innocent person, depending on circumstances.

In Maimela v Makhado Municipality 2011 (6) SA 533 (SCA):

 The defendant shot an innocent bystander during a violent strike.
 The court referred to Goliath, holding that homicide may be justified by
necessity if it is objectively reasonable, especially where no greater harm
could be prevented.
In Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA), a similar
ruling was made.
In R v Dudley and Stephens (1884) 14 QBD 273 (UK), the court held that
necessity can never justify murder, even if it saves others.
 South African law, by contrast, is more flexible, evaluating the proportionality and
reasonableness of the killing.

 Other considerations regarding necessity:

A. Can the defendant invoke necessity if he created the danger?
  There are two views:
o One view holds that if the defendant created the situation, he cannot plead
necessity.
o The dominant view is that he may, depending on the facts and
reasonableness.

B. No reliance on necessity where the law compels the person to endure the danger.
 Example: A landowner may not divert flood water to damage another’s land even if
his own is at risk.
 However, in another example, a landowner may drive locusts from his land onto a
neighbour’s land to protect his crops.

8.3.3 Necessity and Impossibility: Both involve emergencies but differ in legal
treatment.

1. Impossibility and conduct:

 If a person cannot act due to absolute physical impossibility, there is no conduct,
and no delictual liability.
 Examples:
o A is locked in by someone else and cannot go to work.
o B uses A’s hand to break a vase – A has no control.
 In both, there is no voluntary act, so wrongfulness is irrelevant.

2. Impossibility and wrongfulness:

 If the act is not absolutely impossible, but the defendant’s conduct is still reasonable,
wrongfulness may be excluded.
Regal v African Superslate (Pty) Ltd:
 A farmer did not build a wall (costing R10 000) to prevent slate from washing down
and slightly damaging his neighbour’s land.
 The court held that under these circumstances, it was not wrongful to refrain from
acting.
 This is a case of “legal impossibility” – a reasonable person would not have been
expected to act.

3. Impossibility and fault:

 If a person is unable to control his behaviour (e.g., mental illness), fault may be
excluded due to lack of accountability.
 This relates to the fault element, not conduct or wrongfulness.

Stoffberg v Elliott 1923 CPD 148: A doctor who performs emergency treatment
without consent acts lawfully based on necessity.
R v Mahomed 1938 AD 30 and S v Bailey 1982 (3) SA 772 (A) also support the
idea that necessity can exclude either wrongfulness or fault, depending on the
circumstances.
 Van der Merwe and Olivier note that a negotiorum gestor (a person acting without
permission for another’s benefit) may act lawfully and claim expenses, even if damage
results.

UNIT 11: Provocation

8.4 Provocation

8.1 General
 Provocation occurs when the defendant is incited or provoked by the words or
actions of the plaintiff to harm the plaintiff.
 South African courts recognise provocation as a complete defence in claims for
injury to personality.
 This means the plaintiff may lose the right to compensation if he provoked the
conduct.
 There is no agreement on the legal basis of provocation:
o It may be seen as:
 A ground of justification (excludes wrongfulness),
 A ground excluding fault, or
 A factor reducing or cancelling the plaintiff’s damages.
 The preferred view is that provocation is a ground of justification, assessed
objectively, using the test of boni mores (legal convictions of the community).

 Examples:
 X insults Y, Y insults X back.
 X assaults Y, Y responds by assaulting X.
 In such cases, Y may rely on provocation as a defence.

 Cases and authors supporting provocation as a justification ground:

 Wapnick v Durban City Garage 1984 (2) SA 414 (D) at 419–420
 Bester v Calitz 1982 (3) SA 864 (O) at 877–881
 Dzvairo v Mudoti 1973 (3) SA 287 (RA) at 288
 Mordt v Smith 1968 (4) SA 750 (RA) at 751
 Neethling 1989 SALJ 694
 Neethling, Potgieter and Roos Neethling on Personality Rights 155
 Van Aswegen 1982 De Jure 370–371

 Cases and authors opposing provocation as a full justification:

 Winterbach v Masters 1989 (1) SA 922 (E) at 925
 Wessels v Pretorius 1974 (3) SA 299 (NC) at 301
 Powell v Jonker 1959 (4) SA 443 (T) at 444–445
 Boberg Delict 828–829; 834–837
 Van der Merwe and Olivier 98 fn 7
 Even those who oppose provocation as a justification acknowledge that it may:
o Exclude fault (mental capacity)
o Or reduce/eliminate damages recoverable by the plaintiff.

 Provocation differs from private defence:

o In private defence, the conduct prevents or stops an ongoing attack.
o In provocation, the conduct happens after the provocation has ended, making it
an act of revenge, not defence.
 Provocation may be raised as a defence in cases involving violations of personality
rights, such as:
o Honour
o Reputation
o Physical integrity

8.4.2 Provocation in the Case of Physical Assault

 As a general rule, mere words do not justify physical assault, even if the words are
gravely insulting or defamatory, e.g. against one’s spouse.

 In R v Van Vuuren 1961 (3) SA 305 (E):

  The defendant was prosecuted for assault after grabbing someone who insulted his
wife.
 The court accepted that it was private defence because the conduct aimed to
prevent further verbal abuse.
 If the insults had ended, it would have been revenge, not defence — and the
defendant could not rely on private defence.

 Courts do not generally accept verbal provocation as a justification for physical assault:
 Bennett v Minister of Police 1980 (3) SA 24 (C) at 31–32
 Blou v Rose Innes 1914 TPD 102
 Keyzer v Marais (1910) 20 CTR 839

 In contrast:
 Saget v Bataillou (1868) 1 Buch 32: Assault after being called a liar was
excused.
 Parker v Scott (1894) 14 NLR 218: Verbal provocation may be a complete
defence in certain circumstances.

 The preferred modern view is:

 Verbal provocation should not normally justify physical assault,
 But the boni mores test remains the standard — some cases may justify the
response.
Example: A frail woman slaps a man who rudely insulted her — her reaction may be
seen as reasonable and justified due to the disparity in strength and the nature
of the insult.
 If the provocation is physical, a counter-assault may be justified, provided two
requirements are met:
1. The provocation must be serious enough that a reasonable person would consider
physical retaliation “excusable”.
2. The retaliation must be immediate and proportionate to the provocation.
 The retaliation must be:
o Directly following the provocation
o Not out of proportion in degree or nature
o Judged using an objective standard
 If the retaliatory assault is disproportionate:
o Provocation fails as a complete defence,
o But may reduce the damages owed by the defendant.
 A defendant cannot claim satisfaction (compensation) for personality infringements
suffered due to provocation if he retaliated wrongfully.
 Boberg’s view that provocation is not a justification is countered by others, who assert
that it involves a balancing of interests:
o The violation in response must match the nature and value of the initial
provocation.
 See: Neethling 1985 THRHR 252; 1989 SALJ 694; Van Aswegen 1982 De Jure
370–371.

8.4.3 Provocation in Cases of Defamation and Insult

 Provocation can also be a defence to defamation or insult, particularly if the
defamatory words were used during a heated argument (rixa).
 The same objective test used in physical assault cases applies mutatis mutandis.
 Two requirements must be met:
1. The provocation must be such that a reasonable person would have also
reacted with defamation or insult.
2. The reaction must:
 o Immediately follow the provocation, and
o Be proportionate to the provocation.
 Compensatio refers to mutual defamation or insult between two people, where each
offence cancels the other.
 If the defamation or insult is not disproportionate, the two acts may neutralise each
other — no party may claim damages.

UNIT 12: Consent

8.5 Consent
8.5.1 General
 Consent operates as a ground of justification. If validly given, it renders
otherwise wrongful conduct lawful by removing wrongfulness.
 When someone consents to harm, they effectively waive their legal right to protection
against that harm. The defendant, acting within the scope of this consent, is not
delictually liable.
 The principle is captured in the Roman-Dutch maxim: volenti non fit iniuria – “to a
willing person, no injury is done.”
 There are two types of consent:
1. Consent to specific injury: The injured person consents to a known act causing
harm.
 Examples:
o A consents to a surgical operation.
o A rugby prop-forward consents to physical contact in a scrum.
o A customer consents to a haircut.

2. Consent to the risk of injury: The person consents to the possibility of harm
resulting from an activity.
 Examples:
o A boxer accepts the risk of brain trauma.
o A squash player accepts the risk of being accidentally hit with a racket.
o A patient accepts the side effects of a medical procedure.
 Few cases have accepted consent to the risk of harm as a successful defence, possibly
due to the strict requirements applied by the courts.

 Terminology confusion:
o Volenti non fit iniuria refers to both consent to injury and consent to risk.
o The term “voluntary assumption of risk” is used for:
 Consent (justification – excludes wrongfulness).
 Contributory intent (excludes fault, not wrongfulness).
 Important to distinguish between:
o Consent (justifies the conduct).
o Contributory intent (cancels fault).
o Contributory negligence (only reduces damages – not a defence).
 Boberg Delict and others stress: the actual facts must be examined, rather than relying
on labels or clichés like “consent”.

8.5.2 Characteristics of Consent as a Ground of Justification

A. Consent is a unilateral legal act.
 It does not require an agreement or formal contract.
 It can be revoked unilaterally at any time before the act is committed.
 If the act continues after revocation, the conduct becomes wrongful.
B. Consent must be manifest or evident.
 Courts require that consent is clear and apparent — hidden or assumed consent is not
enough.

C. Consent may be:

 Express – given in words (oral or written).
 Tacit – inferred from conduct.
 Examples: Nodding or stepping forward may indicate consent to a haircut or medical
procedure.
 However: Mere submission (acquiescence) or awareness of risk is not the same
as consent. A person who remains silent in a high-pressure situation may not be
giving true consent.

D. Consent must be given before the act.

 “Approval” after the fact does not constitute legal consent.
 Instead, it may be seen as a waiver of the right to sue (a pactum de non petendo).

E. Normally, only the injured person may give valid consent.

 Exceptions exist: e.g., parental consent for minors, or consent by legal guardians.
 The existence of consent is always a question of fact.
 If the defendant mistakenly believes there was consent, they act wrongfully, but may
escape liability due to lack of fault.
R v K 1958 (3) SA 420 (A): Mistaken belief in consent may negate fault.
 If the defendant wrongly believes there was no consent, but there was, they are not
liable.
Snyman Criminal Law 126

8.5. Requirements for Valid Consent

 The law applies strict requirements for valid consent to ensure that rights are not
waived casually or under pressure.
A. Free and voluntary:
 Consent must be genuinely voluntary.
 Coerced, intimidated, or manipulated “consent” is invalid.

B. Capacity for volition:

 The person must be mentally competent, lucid, and aware of what they are consenting
to.
 Does not require legal majority, but they must understand the implications.
 Must not be:
o Intoxicated
o Under heavy medication
o Mentally ill
C. Full knowledge of the risk or harm:
 The person must know the nature and extent of the harm or risk.
 Especially important in cases of medical treatment and sport.

D. Realisation and appreciation:

 Mere knowledge of the risk is insufficient.
 The person must fully appreciate and understand the implications of the harm.
 Innes CJ’s formulation: “It must be clearly shown that the risk was known, that it
was realised, and that it was voluntarily undertaken.”

E. Subjective intent:
 The person must genuinely intend to consent to the act.
 No consent exists if a person merely goes along without actual willingness.

F. Not contra bonos mores:

 Consent must not violate public morals or the legal convictions of the community.
 Examples where consent is contra bonos mores:
 Agreeing to be severely beaten for pleasure.
 Participating in illegal fighting.
 Examples where it is not contra bonos mores:
 Lawful sport (e.g., rugby, boxing).
 Medical treatment.
 Minor physical contact (e.g., rough play among friends).

Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T):

 Patient given radium treatment without proper warning of risks.
 Held: No informed consent if the patient is unaware of material risks.

Castell v De Greef 1994 (4) SA 408 (C): Introduced the reasonable patient test for
medical consent.

Ackermann J held: Doctors must warn of any material risks:

 If a reasonable patient would want to know the risk.
 Or if the doctor knows or should know the patient would care.

Beukes v Smith 2020 (4) SA 51 (SCA) and Batohi v Roux [2019] 1 All SA 390
(KZD):
 Raise ongoing constitutional concerns about protecting patient autonomy.
Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A):
 Plaintiff was in a racing car that overturned.
 Court held: Consent to normal racing risks does not include gross negligence.

Burger v Administrateur, Kaap 1990 (1) SA 483 (C):

 Plaintiff gave consent to Dr R, but was operated on by Dr L.
 Held: Consent was exceeded; wrongful conduct occurred.

Roux v Hattingh 2012 (6) SA 428 (SCA):

 Rugby player injured through malicious, illegal play.
 Court set out guidelines for consent in sport:
o Conduct within the rules = not wrongful.
o Conduct outside the rules = not automatically wrongful.
o Deliberate, dangerous conduct = definitely wrongful.

Boshoff v Boshoff 1987 (2) SA 694 (O):

 Plaintiff injured in squash game.
 Held: Risk accepted as part of the game = valid consent.
 UNIT 13: Statutory authority, official capacity,
execution of an official command; power to discipline
8.6 Statutory Authority
8.6.1 General Principle
 A person does not act wrongfully if they cause harm while exercising statutory
authority.
 This means that harmful conduct authorised by statute is considered reasonable
and lawful, and the act is thus justified.
 When a statute authorises such conduct, it limits the rights of the person suffering the
harm.

8.6.2 Two Key Principles

1. The statute must authorise the infringement of the specific interest involved. In
other words, it must restrict the right relied upon by the injured party.
2. The conduct must not exceed the limits of the authority conferred by the statute.

8.6.3 Authorisation of the Infringement (Legislative Intention)

 Whether the statute authorises the infringement depends on the intention of the
legislature.
 The intention is determined through the principles of statutory interpretation.

 Guidelines used by the courts to determine legislative intention:

I. If the statute is directory, the infringement is authorised, and the injured party cannot
claim compensation unless the statute provides for it.
II. If the statute is permissive but does not provide for damages, there is a
presumption that infringement is not authorised.
III. The presumption in (ii) falls away if the power is given to a public body acting in the
public interest.
IV. If the act is localised and specific (e.g. building a dam in a specific place), there is a
presumption that the infringement is authorised.
V. If the authorisation is general and permissive, and not necessarily linked to
infringing private interests, the courts infer that the legislature did not intend to
allow such infringements.

8.6.4 Limits of Authorised Conduct

 To assess whether the conduct falls within the authorised boundaries:
I. It must not have been possible to exercise the power without infringing the
plaintiff’s interests (onus is on the defendant).
II. The conduct must have been reasonable — the defendant must show that no other
reasonable alternatives were available (onus on the plaintiff).

8.6.5 Application of Reasonableness – Arrests and Bodily Harm

A. Arrest of a Suspect
 Arrest may be made with or without a warrant.
 To be lawful, the arrest must meet two formal requirements:
1. The arrestee must be touched or physically confined, unless they submit
voluntarily.
2. The arrestor must inform the arrestee of the reasons for arrest. If acting on a
warrant, a copy must be given on request.
The arrested person must be:
o Taken to a police station promptly, and
o Brought before a court within 48 hours.
For a warrant arrest, the warrant must:
 o Be issued in terms of the relevant legislation,
o Be legally valid in form and content, and
o Be issued by an authorised official (usually a magistrate).
 A magistrate acts in discretion when issuing a warrant. This bona fide discretion is
not subject to objective review by courts.
 A warrant is valid even if no reasonable suspicion existed, as long as it was issued in
good faith.

B. Arrest Without a Warrant (Section 40 of the Criminal Procedure Act 51 of 1977)

 Section 40(1)(a)–(b) allows arrest without a warrant where:
o A person commits or attempts to commit an offence in a peace officer’s
presence.
o A person is reasonably suspected of committing a First Schedule offence.
 The arrestor must act with discretion, and the arrest’s purpose must be to bring the
person before court.
 Traditional View: Even if milder means like summons exist, arrest is still lawful if
statutory requirements are met.

Louw v Minister of Safety and Security 2006 (2) SACR 178 (T):
 Deviated from the traditional view.
 Emphasised constitutional rights and held that arrest should be a last resort.

Charles v Minister of Safety and Security 2007 (3) SA 283 (W): Rejected Louw,
upheld traditional approach.

Minister of Safety and Security v Van Niekerk 2008 (1) SACR 56 (CC):
 Did not resolve the Louw–Charles conflict.
 Stated arrests should be regulated by internal police orders (e.g., Standing
Order (G) 341).

Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA):

 Rejected Louw.
 Held that compliance with section 40(1)(b) is sufficient for a lawful arrest.
 However, circumstances of each case (e.g. seriousness of offence) must be
considered.
 Rule of thumb: The more serious the crime, the easier it is to justify an arrest.

C. Use of Force During Arrest

 If the suspect resists or flees, the arrestor may use reasonable and proportional
force to:
o Overcome resistance
o Prevent escape
 Deadly force (force likely to cause death or serious harm) is only justified if:
I. The arrestor believes, on reasonable grounds, that the force is
immediately necessary.
II. The goal is to protect a person from imminent or future death or grievous
bodily harm.
III. The suspect poses a substantial risk of causing such harm.
IV. The offence is serious, violent, and in progress.
 This closely aligns with the requirements for private defence, with some allowance for
future harm prevention.

8.6.6 Exercise of Discretion by State Officials

 When a state official exercises statutory discretion, certain requirements apply:
 o The discretion must be exercised bona fide and honestly.
o Courts will not interfere with such a decision even if it is incorrect or unfair.
o Bill of Rights adds that discretion must not be arbitrary, but must be:

8.6.7 Objectively rational

 Rationally related to the statutory purpose.

 If a power is used for a purpose not intended by the legislature, the official’s conduct is
unlawful.
 Examples of unlawful exercise:
o Using statutory powers for an ulterior or improper motive.
o Acting mala fide under the cover of public duty.

8.7 Official Capacity

8.7.1 Public Officials Acting in Terms of Their Duties
 Certain public officials, such as police officers and judicial officers, are authorised by
law to perform specific duties.
 If they cause harm while performing these duties, their conduct may be justified and
lawful, and they will not be held delictually liable.

8.2 Immunity of the Judiciary

 Judges and magistrates are given special protection to ensure judicial independence.
 The aim is to prevent the fear of lawsuits from interfering with their ability to make fearless
decisions.

May v Udwin 1981 (1) SA 1 (A):

 A magistrate cannot be sued unless acting with malice or an ulterior motive.
 Words must have been published maliciously, with intent to harm and not
relevant to the case.
Moeketsi v Minister van Justisie 1988 (4) SA 707 (T): Judicial officers are only
liable for mala fide or fraudulent conduct.

Claassen v Minister of Justice and Constitutional Development 2010 (6) SA 399

(WCC): Reinforces that judicial immunity applies unless malice is proven.
8.7.2 Vicarious Liability and Malicious Conduct
 Where a judicial officer acts negligently, they are immune; therefore, no vicarious
liability arises.
 However, if the officer acts maliciously, the state may be held vicariously liable, as
the wrongful conduct is closely connected to their employment.

8.7.3 Protection Against Unjust Administrative Action

 The state is not liable for pure economic loss caused by honest but irregular
administrative acts (e.g., tender adjudication).
 But if such acts are done dishonestly or fraudulently, they may be wrongful, and the state
could be held liable.

8.8 Execution of an Official Command

8.8.1 General Principle

 Conduct that infringes a person's rights may still be lawful if it is done while
executing a lawful official command.
  For example, if a constable shoots a fleeing murderer on orders from a superior, it
is not wrongful, provided the command is lawful.
 This is not a separate ground of justification but rather a subcategory of "official
capacity" because the officer acts under legal authority, such as the legal duty of
police officers to arrest criminals.

8.8.2 Defence of Obedience to a Wrongful Command

 When an official executes a wrongful or unlawful command, the question arises:

Can this be a defence against wrongfulness?
 In S v Banda 1989 (2) SA 459 (B), Friedman J provided the requirements for
obedience to a wrongful command to be a valid defence:

A. The command must have come from a person with lawful authority over the
subordinate.
B. There must have been a duty on the subordinate to obey the command.
C. The subordinate must have inflicted no more harm than necessary to carry out
the order.

8.8.3 The Problem with Blind Obedience

 The second requirement—that there must be a duty to obey the command—is

controversial.
 South African courts have rejected the notion of blind obedience.
 There is no absolute duty on a subordinate to obey a command if it is unlawful.

8.8.4 Two Approaches to Wrongful Orders

 There are two conflicting approaches in legal literature and case law:

1. Strict approach: Any execution of a wrongful command is unlawful,

regardless of the subordinate’s position.
2. Moderate approach: Only manifestly or palpably unlawful commands are
wrongful when obeyed.

 The moderate approach is preferred in South African law.

8.8.5 Reasonable Person Criterion

 Whether a command is manifestly unlawful is assessed using the reasonable

person test.
 The court asks whether a reasonable person in the accused’s position would have
recognised the order as obviously illegal.
 This reflects the objective standard of fault applied in cases of necessity.

8.8.6 Ground of Justification: Necessity

 Where the order is clearly unlawful, it does not qualify as an "official command".
 In such cases, the defence is actually necessity, based on compulsion due to fear
of disobeying a superior.

 Therefore, the principles of necessity apply, including:

 o The harm avoided must outweigh the harm caused.
o The action must have been reasonable in the circumstances.

8.9 Power to Discipline

8.9.1 Common Law Power of Chastisement

 At common law, certain persons—such as parents, teachers, and housemasters—

have the authority to discipline children under their care.
 This power was justified on the basis of educational and corrective objectives.
 It applied to all forms of punishment, including corporal punishment (e.g., spanking or
physical reprimands).

8.9.2 Delegation and Original Authority

 A person with authority to chastise may delegate this authority to another.

 For instance, a parent may implicitly delegate the power to a school.
 However, teachers have original authority to chastise and do not rely on delegation by
parents.
 There is a presumption that chastisement was reasonable and without malice.

To rebut this, the plaintiff must prove that:

o The person had no authority to discipline; or

o The punishment was excessive or unreasonable.

8.9.3 Lawful Boundaries of Disciplinary Power

 Disciplinary conduct must fall within the bounds of moderate and reasonable
punishment.
 This is determined by an objective test, considering the reasonableness of the
conduct.
The following factors affect reasonableness:
o The nature of the child’s misbehaviour.
o The type and extent of punishment inflicted.
o The motive of the punisher (educational or malicious).
o The child’s characteristics (age, gender, physical and mental condition).
 If the discipline exceeds reasonable limits, the conduct becomes unlawful, and the
person can be held delictually liable.

8.9.4 Legislative Change: Schools Act

 Section 10 of the South African Schools Act 84 of 1996 prohibits corporal
punishment in all public and independent schools.
 This means teachers, principals, and hostel staff may no longer use any form of
physical punishment as a disciplinary tool.
 Such acts would now be regarded as unlawful assaults.

8.9.5 Judicial Development: YG v S 2018 (1) SACR 64 (GJ):

 A father was convicted of assault after spanking his son.

 He raised the defence of moderate and reasonable chastisement.
  Keightley J ruled that the common law defence conflicts with the Constitution,
especially:

o Section 10 (right to dignity),

o Section 12(1)(c) (right to be free from violence),
o Section 28(2) (best interests of the child are paramount).

 The court used section 39(2) of the Constitution to develop the common law and
declared the defence inapplicable going forward.

8.9.6 Constitutional Court Confirmation: Freedom of Religion SA v Minister of Justice

 In Freedom of Religion South Africa v Minister of Justice and Constitutional

Development 2020 (1) SA 1 (CC):
 The Constitutional Court confirmed the abolition of the common law defence of
reasonable chastisement.

Mogoeng CJ held that:

 Even moderate physical punishment constitutes violence under section 12(1)(c).

 It infringes dignity (section 10), and is not in the best interests of the child
(section 28(2)).

 There are less restrictive methods of discipline that respect children’s rights.

8.9.7 Application in Delict

 These constitutional rulings are also applicable in the law of delict.

 Corporal punishment by parents or caregivers is now wrongful and can attract
delictual liability.
 However, non-violent and constructive discipline may still be permitted if
consistent with constitutional values.
 Some common law principles (e.g., acting with good motives, assessing
reasonableness) may still be relevant in evaluating non-physical discipline.

UNIT 14: Abuse of right; nuisance

9.1 Abuse of Right Nuisance and Neighbour Law

9.1.1 General Concept

 The doctrine of abuse of right is based on the idea that exercising a legal right or
power in certain ways or under specific circumstances may render the exercise
wrongful.
 This occurs when the actor uses a right in a legally impermissible manner, thereby
abusing the right.
 The doctrine is not foreign to South African common law. It has roots in Roman,
Roman-Dutch, and Dutch law.
 Although South African courts have not expressly confirmed the doctrine as part
of the law, they are not opposed to it and have accepted the underlying principles.
 Courts have recognised conduct as wrongful even when it was performed under
the guise of exercising a right.

9.1.2 Wrongfulness as the Core Inquiry

 The central question in abuse of right cases is whether the defendant’s conduct
was wrongful.
 In neighbour disputes, the issue is whether the defendant exceeded the powers of
ownership and thereby acted wrongfully toward the neighbour.
 This question is answered using an objective standard, guided by reasonableness
and fairness.

9.1.3 Reasonableness Test

 Reasonableness is a relative concept, involving a balancing of interests:

o The benefit derived by the defendant from exercising the right

o The harm or prejudice suffered by the plaintiff

 The greater the imbalance between the slight benefit and serious harm, the more
likely the conduct is unreasonable and wrongful.

9.1.4 Application Beyond Property

 Although the doctrine is mostly applied in neighbour disputes involving property
rights, it is not limited to this context.
 It also applies to the abuse of statutory rights.

9.1.5 Neighbour Law and Property Ownership

 As a general rule, a property owner may use their land as they wish, provided they stay
within legal limits.
 However, these rights are not absolute—they must be balanced against the interests
of neighbouring landowners.
 The ultimate question remains one of wrongfulness—whether the defendant’s use of
property was reasonable or unreasonable.

9.1.6 Importance of Motive and Malice

 A defendant’s mental disposition is relevant in assessing reasonableness.
 Malice (animus vicino nocendi) is a strong indication of unreasonableness.
 If someone acts solely to harm a neighbour, without benefiting themselves, the
conduct is generally wrongful.
 Such conduct shows no reasonable advancement of interest and thus abuse of right.

9.1.7 Key Principle

 If the benefit to the defendant is minor, but the harm to the neighbour is serious,
the conduct is unreasonable and therefore wrongful, even if there was no intention
to harm.
 Conversely, if the defendant is advancing legitimate interests, the conduct may be
lawful even if it causes harm intentionally.
 Therefore, improper motive alone is not enough to make conduct wrongful if the
underlying action is reasonable.
 9.2 Nuisance and Neighbour Law

9.2.1 Nuisance in South African Law

 The term “nuisance” is often used for neighbour disputes involving repeated
unreasonable conduct, such as excessive noise or smoke.
 However, this term comes from English law and does not form a separate part of
South African delict law.
 According to East London Western Districts Farmers’ Association v Minister of
Education and Development Aid 1989 (2) SA 63 (A) at 88:

o While there are similarities between English nuisance and South African
neighbour law, they are not identical.
o South African law prefers to assess such conduct under ordinary delictual
principles, particularly wrongfulness.

 The courts still use the term nuisance, e.g., in Flax v Murphy 1991 (4) SA 58 (W), but
he focus remains on whether the conduct was wrongful.

9.2.2 Abuse of Right vs Nuisance – Case Law Examples

Gien v Gien 1979 (2) SA 1113 (T):

 The defendant installed a noise-making machine to scare off pests and protect
vegetables on his property.
 The noise was continuous and severe, disturbing neighbours’ sleep, and affecting their
health and farming.
 The benefit of protecting a small vegetable patch was minimal, but the harm caused
was significant.
 The court found that the conduct exceeded the bounds of ownership, was
unreasonable, and therefore wrongful.
 Spoelstra AJ noted the potential infringement of the neighbours’ right to physical
integrity, e.g., due to excessive fatigue and emotional distress.

Rand Waterraad v Bothma 1997 (3) SA 120 (O): Reaffirmed that serious interference
with neighbours' property rights, even without malicious intent, can be wrongful if
disproportionate to the benefit gained.

Kirsch v Pincus 1927 TPD 199:

 planted willow trees along the boundary solely to harm K, whose drying malt was
affected by the falling leaves.
 The court held this to be an abuse of right, despite the conduct occurring on P’s own
land.
 The judge looked to Ulpian, Voet, and Schorer to affirm that an act solely intended to
harm another is wrongful.
 This case illustrates how intent to harm (animus vicino nocendi) turns an otherwise
lawful act into an abuse of right.

9.3 Nuisance
9.2.1 General Concept
 The concept of nuisance (“oorlas” or “hinder”) in the law of delict must be interpreted
in line with the principles of wrongfulness, reasonableness, and fairness discussed
under abuse of right.
 In South African law, conduct classified as nuisance usually involves the unreasonable
use of property by one neighbour, resulting in harm or inconvenience to another
neighbour.
 It does not constitute a separate legal doctrine distinct from delict but is analysed
using the general requirements for delictual liability, particularly wrongfulness.

9.2.2 Core Principles

 Nuisance generally consists of repeated interferences with the plaintiff’s property
rights.
 The test for wrongfulness in nuisance cases involves an objective balancing of the
parties’ interests, taking all relevant facts and circumstances into account.
 The courts assess whether the defendant’s conduct exceeded what is reasonable
given the impact on the plaintiff’s property and the benefit derived by the defendant.

9.2.3 Examples of Nuisance

 Examples of nuisance-related conduct that may be considered wrongful and
unreasonable include:
o Repulsive odours drifting from the defendant’s property onto the plaintiff’s land.
o Smoke and gases spreading from the defendant’s premises onto the plaintiff’s
property.
o Water seepage from the defendant’s land onto the plaintiff’s.
o Leaves falling from the defendant’s trees onto the plaintiff’s property.
o Slate and debris being washed downstream onto the plaintiff’s land.
o Disturbing noise (such as machinery, alarms, or repetitive sounds).
o Blinding lights being directed onto a neighbouring home.
o Destabilising a shared wall by piling soil against it.
o Failure to provide lateral support to adjacent land, which may cause
structural issues.
o Excessive numbers of golf balls landing on neighbouring property, causing
danger or damage
o Overhanging branches and foliage from trees on the defendant’s property
that invade the plaintiff’s land.
o Erecting an electrified fence on top of a communal garden wall, posing danger
to residents.
o Blue wildebeest transmitting disease to cattle on neighbouring farmland.
o Occupants of informal structures or neighbouring dwellings generating
ongoing interference with the plaintiff’s use or enjoyment of property (e.g.,
through noise, odour, or conduct).

UNIT 15: Fault: general; accountability; intent

1. General
 Fault (culpa in a wide sense) is accepted as a general requirement for delictual
liability in South African law.
 There are divergent views on the nature of fault, but in practice, two main forms are
recognised:
1 Intention (dolus)
 2 Negligence (culpa in the narrow sense)
 These forms of fault refer to the legal blameworthiness or reprehensible state of
mind or conduct of someone who has acted wrongfully.
 Fault is a subjective element of a delict as it relates to the person’s mental state, but
the test for negligence is objective.
 A controversial issue is whether wrongfulness or negligence should be determined
first:
o One view is that fault only exists if there is wrongfulness, as it would be illogical
to blame someone whose act is not wrongful (based on cases like First National
Bank of South Africa Ltd v Duvenhage).
o Another view supports addressing negligence first, because in the absence of
negligence, wrongfulness does not arise.
 Courts now follow a pragmatic approach: either wrongfulness or negligence can be
considered first, depending on the circumstances.
 The presence of either intention or negligence is sufficient for fault.
 For:
o The actio legis Aquiliae and action for pain and suffering, intention or
negligence suffices.
o The actio iniuriarum (for personality infringements), only intention suffices –
negligence is not enough.
 Accountability (toerekeningsvatbaarheid) must be established before considering
fault. The person must be mentally capable of acting with intent or negligence.

2 Accountability
 A person is accountable (culpae capax) if:
o They can distinguish between right and wrong, and
o They can act in accordance with that understanding.
 Accountability must exist at the time of the act.
 If a person lacks accountability, fault cannot be imputed to them.

2.1 Factors that affect accountability:

1. Youth
 A child under 7 years old (infans) is presumed to be culpae incapax (not
accountable) – this presumption is irrebuttable.
 A child between 7 and 14 (impubes) is presumed not accountable, but this
presumption is rebuttable – if proven otherwise, the child may be liable.
 A child 14 years and older is considered accountable as an adult.

2. Mental disease or illness

 A person suffering from mental illness who:
o Cannot distinguish right from wrong, or
o Cannot act accordingly,
 Is culpae incapax and not delictually liable.

3. Intoxication
 A person under the influence of alcohol or drugs may be culpae incapax.
 However, if the decision to consume was made while accountable, and the
intoxication leads to harm, fault may still exist.
  Example: A driver drinks before driving and later causes an accident while
intoxicated — liability may be found due to negligence in choosing to drink while still
accountable.

4. Provocation
 Severe anger due to provocation may make a person lose accountability, thus
negating intent.
 But provocation is often treated as a ground of justification, not as a bar to
accountability.

3 Intent (dolus / animus iniuriandi)

 An accountable person acts with intent when their will is directed at a result, and
they are conscious of the wrongfulness of the act.
 Two elements of intent:
1. Direction of the will
2. Consciousness (knowledge) of wrongfulness

3.1 Direction of the Will

 This involves the wrongdoer intending or foreseeing the result of their actions.
 Three forms of intent:

A. Direct intent (dolus directus / oogmerkopset)

 Present when the wrongdoer desires the consequence of their conduct.
 Example: X shoots and kills Y to steal money — the death is desired, so intent is
direct.

B. Indirect intent (dolus indirectus / opset by sekerheidsbewussyn)

 Present when the wrongdoer intends one outcome, but knows that another
consequence will inevitably occur.
 Example: X shoots Y through a window. X didn’t intend to break the window but
knew it would break. Breaking the window is indirect intent.

C. Dolus eventualis (opset by moontlikheidsbewussyn)

 Present when the wrongdoer:
o Foresees the possibility of a harmful result, and
o Reconciles himself to it, proceeding regardless.
 It must be shown that the wrongdoer subjectively foresaw the harm (not merely that a
reasonable person would have).
 Example: X shoots at Y while Z is nearby. X foresees that Z might be hit, but shoots
anyway. If Z is hit, intent is present.
 If X later decides (even unreasonably) that Z won’t be harmed, and acts on this
belief, dolus eventualis is excluded — but conscious negligence (luxuria)
may still be found.
 The difference between dolus eventualis and negligence lies in subjective vs.
objective foresight.

3.1.1 Definite vs Indefinite Intent

 Definite intent (dolus determinatus): The result is directed at a specific
person/object.
 Indefinite intent (dolus indeterminatus): The result is aimed at an unspecified
person/object.
 Example: Planting a time bomb in a busy shop – the wrongdoer does not know who
will be harmed but intends someone to be harmed.

3.2 Consciousness (Knowledge) of Wrongfulness

 Knowledge of wrongfulness means the wrongdoer must realise or foresee that their
conduct is contrary to law or infringes another’s rights.
 If a person acts under a mistake about the law or facts, intent is excluded.
 Example: X takes Y’s car, thinking Y consented. X lacks knowledge of wrongfulness
— thus no intent.
 Different courts have taken different views:
o Some say any mistake excludes intent, whether reasonable or not.
o Others require the mistake to be reasonable.
 It is now generally accepted that any mistake of fact or law excludes intent.
 This rule is important in actio iniuriarum claims (e.g., defamation) where intent is
essential.
 In actio legis Aquiliae, negligence suffices, so such mistakes are less relevant.

3.3 Motive and Mistake in the Causal Chain

a) Motive
 Motive refers to the reason behind the conduct.
 Motive is not the same as intent:
o A person may act with intent despite a good motive (e.g., killing to end
suffering).
o A person may lack intent despite a bad motive if they believe their act is lawful.
 Motive can be used as evidence of direct intent or knowledge of wrongfulness:
o A bad motive (malice/mala fides) supports intent.
o A good motive (bona fides) supports lack of intent.

b) Mistake in Causal Chain

 The issue is whether intent is present when the result happens in a way different from
what was foreseen.
 If the deviation is material, intent is absent.
 If the deviation is minor, intent remains.

S v Goosen 1989 4 SA 1013 (A):

 X foresaw that Y might shoot, but Y accidentally discharged the weapon while
jumping.
 Court found that the actual causal chain was materially different, so X lacked
intent and was convicted of culpable homicide.

S v Masilela 1968 2 SA 558 (A):

 Accused strangled and hit a man, then burned the house, believing him dead.
 Post-mortem revealed death by poisonous fumes.
 Court found intent present, as they willed his death, even if the cause was not
as foreseen.
 UNIT 16: Negligence
4.1 Definition and nature
 Negligence refers to blameworthy carelessness, thoughtlessness or imprudence,
where a person fails to adhere to the legal standard of care due to insufficient attention
to their conduct.
 The test for negligence is objective and based on the conduct of the reasonable
person (formerly bonus paterfamilias).
 A defendant is negligent if the reasonable person in their position would have
foreseen the possibility of harm and taken reasonable steps to prevent it, but the
defendant failed to do so.
 The authoritative formulation of the negligence test is in Kruger v Coetzee 1966 (2)
SA 428 (A):
a) A diligens paterfamilias in the position of the defendant:
I. would foresee the reasonable possibility of harm; and
II. would take reasonable steps to guard against it.
b) The defendant failed to take such steps.
 The test is flexible and must be applied to the specific facts of each case.
 In Jones NO v Santam Bpk 1965 (2) SA 542 (A), negligence is defined as conduct
falling short of that of the diligens paterfamilias, a standard that is objective and
varies depending on the circumstances.

4.2 Can negligence and intention overlap?

 Traditionally, negligence and intention were seen as mutually exclusive, meaning both
cannot exist in respect of the same consequence.
 However, in S v Ngubane 1985 (3) SA 677 (A), the Appellate Division held that intention
and negligence can coexist.
 The court ruled that one who intentionally kills can still be found negligent (and convicted
of culpable homicide) under certain circumstances.
 According to Boberg, where dolus is present, culpa is also present, because intentional
conduct violates the standard of care expected from the reasonable person.

4.3 Ordinary and gross negligence

 For Aquilian liability, ordinary or gross negligence makes no difference.
 However, gross negligence is relevant in:
o Statutory provisions that require it,
o Certain contractual exclusionary clauses, and
o Delicts such as malicious prosecution.
In MV Stella Tingas Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas
2003 (2) SA 473 (SCA):
 Gross negligence involves conduct that departs extremely from the reasonable
standard.
 It includes conscious risk-taking with complete obtuseness, or total failure to
take care.

4.4 Negligence and an omission

 Negligence is a form of fault, whereas an omission is a form of conduct.
 An omission may be intentional or negligent.
 A positive act can also be negligent, proving that negligence is not limited to
omissions.

4.5 The reasonable person: characteristics

4.5.1 General
 The reasonable person is a legal fiction, not a real person, used to create an
objective norm for conduct.
 This person is not exceptionally careful or reckless but lies between extremes.
 As per Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A), the court
places itself in the position of the diligens paterfamilias and decides what is
reasonable.
 The reasonable person test is not static and must adapt to:
o New dangers (e.g. crime),
o Improved knowledge, education and technology.
 The reasonable person has minimum knowledge and mental capacity to:
o Understand the danger of activities like handling arms, explosives, poison,
electricity, vehicles, etc.
 The test does not excuse stupidity, illiteracy, inattentiveness, or mental instability.
 Physical handicaps may be considered (e.g., reasonable blind person), but all
persons are still held to an objective standard.

4.5.2 Children
 Children under 7 years are presumed culpae incapax (not capable of fault).
 Before Jones NO v Santam Bpk, courts used the reasonable child standard based on
the child’s age and development.

In Jones NO v Santam Bpk 1965 (2) SA 542 (A), the court applied the reasonable
person standard for children:
o Step 1: Apply the objective standard (reasonable person).
o Step 2: Assess accountability (culpae capax) based on maturity, intellect,
experience, insight.
In Roxa v Mtshayi 1975 (3) SA 761 (A), the court reversed the order of inquiry:
o First determine if the child is culpae capax.
o Then determine if the conduct was negligent.

 In Weber v Santam Versekeringsmaatskappy Bpk, the court confirmed the Jones

approach but emphasized assessing if the child could meet the adult standard in that
specific context.

 Practical consequence:
o Under the traditional approach, a child’s youthfulness reduced the
percentage of contributory negligence (e.g., under the Apportionment of
Damages Act 34 of 1956).
o Under the new approach, negligence is measured by the same standard
for children and adults, which may be less favourable to the child in
contributory negligence cases.

4.5.3 Experts
 When the allegedly negligent conduct requires expertise, the test becomes that of the
reasonable expert (e.g., reasonable doctor, attorney, engineer).
 The expert is judged by: General level of skill and diligence in their
profession, not the highest standard.
 In Van Wyk v Lewis 1924 AD 438, it was recognised that different expertise is expected
from:
o A general practitioner vs a specialist.
In Durr v ABSA Bank Ltd 1997 (3) SA 448 (SCA):
o The reasonable broker standard applied.
 o The court rejected the idea that the standard could be set by typical but
poorly skilled professionals.
o It emphasised that the court decides what is reasonable.
 The Latin maxim imperitia culpae adnumeratur means that lack of skill may amount
to negligence.
 However, ignorance alone is not negligence.
 A person is negligent if they undertake an expert task knowing they lack the skill or
reasonably should have known.
 Example: X, who cannot fly a plane, does so and causes an accident—not because
of incompetence, but because he should not have flown.
 Exception: If a layperson (like X) flies a plane in an emergency, such as to save
lives, they are held to the standard of a reasonable layperson, not expert.

UNIT 17: Foreseeability and preventability of damage

4.6 Negligence: foreseeability and preventability of damage

4.6.1 General test
 The test for negligence involves two elements:
o Reasonable foreseeability of damage.
o Reasonable preventability of damage.
 This dual test originates from Kruger v Coetzee 1966 (2) SA 428 (A).

A. Foreseeability
[Link] Abstract (or absolute) approach
 This approach considers general foreseeability of harm.
 The question is whether damage in general was foreseeable, not the specific
consequence.
 Liability for a specific consequence is determined by legal causation, not
foreseeability.
 This view is not widely supported in SA courts or by legal academics.

[Link] Concrete (or relative) approach

 This is the preferred and accepted view in South African law.
 A person’s conduct is only negligent if the specific consequence was reasonably
foreseeable.
 The general nature of the consequence must be foreseeable, not the exact extent or
manner of the harm.
 This view allows a more accurate assessment of what a reasonable person would
have done.
 Legal causation still plays a role, especially in cases involving remote consequences.

[Link] Application of foreseeability test

 No fixed rules apply; it depends on case-specific circumstances.
 As a general guideline, the greater the probability of harm, the easier it is to
foresee.
Bolton v Stone 1951 AC 850: The risk of a cricket ball hitting someone was too
remote – no negligence.
Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 (3) SA 531 (E): Harm was too
remote, despite being serious.
Stratton v Spoornet 1994 (1) SA 803 (T): Harm to child on electric pylon was not
foreseeable.
Grootboom v Graaff-Reinet Municipality 2001 (3) SA 373 (E): Shock from
transformer was foreseeable.
 Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA): Foreseeable that
children might climb pylons.
Kruger v Carlton Paper of SA (Pty) Ltd 2002 (2) SA 335 (SCA): Danger was
foreseeable in general, but not to the reckless electrician.
De Maayer v Serebro; Serebro v Road Accident Fund 2005 (5) SA 588 (SCA):
Sudden turns may not be foreseeable.\Johannesburg Consolidated Investment
Co Ltd v Langleigh Construction (Pty) Ltd 1991 (1) SA 576 (A): Presence of a
scrambler motorcycle was not foreseeable.
Prince v Minister of Law and Order 1987 (4) SA 231 (E): Police could not foresee
a person sleeping on back seat.
Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (E): Slipping on a wet floor
was foreseeable.
Van As v Road Accident Fund 2012 (1) SA (SCA): Driver swerving unexpectedly
not foreseeable.
Gora v Kings College 2019 (4) SA 162 (ECG): Assault by pupil not foreseeable.

B. Prevenability
4.6.2 Importance of preventability
 This element asks whether the reasonable person would have taken reasonable
steps to prevent foreseeable harm.
 The materialisation of foreseeable harm does not automatically mean negligence if
steps were taken.

4.6.3 Four key factors in determining preventability (case law-based):

(i) Degree or extent of the risk

 If the risk is slight, the reasonable person may not take steps.
 Example: Bolton v Stone – low risk, no steps expected.

(ii) Gravity of possible consequences

 If possible harm is serious, even small risks must be guarded against.
 Example: Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson 1973 (4)
SA 523 (RA) – damage was extensive, precautions expected.
 Example: Ngubane v South African Transport Services 1991 (1) SA 756 (A) –
risk of death from train was so high, precautions were required.

(iii) Utility of the actor’s conduct

 The benefit of the act may outweigh the need for precautions.
 If the conduct serves a significant social function, fewer precautions may be
required.

(iv) Burden of eliminating the risk

 Consideration of costs, effort, and difficulty of precautions.
 If precautions are easy and low-cost, they should be taken.
 If costs are high and effectiveness low, the reasonable person may not be
expected to act.

Gordon v Da Mata 1969 (3) SA 285 (A): Easy to prevent harm from cabbage
leaves – negligence found.
City of Salisbury v King 1970 (2) SA 528 (RA): Unrealistic to expect instant
cleaning of market floor.
Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W): Reasonable
system to manage hazards expected.
Botes v Van Deventer 1966 (3) SA 182 (A): Costly or ineffective horse fencing –
no negligence.
 Kruger v Coetzee 1966 (2) SA 428 (A): Lack of evidence about precautions – no
finding of negligence.

 Supporting maxim:
 imperitia culpae adnumeratur – lack of skill may amount to negligence if the person
undertakes a task knowing they lack the skill.

Wagon Mound case (Overseas Tankship v The Miller Steamship Co 1967 (1)
AC 617): Although the chance of oil igniting was small, the potential damage
was great and easy to prevent – therefore negligence found.

 The failure to wear seatbelts is contributory negligence even if the chance of an

accident is low – see:
o Union National South British Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A)
o Vorster v AA Mutual Insurance Association Ltd 1982 (1) SA 145 (T)
o CA v GS [2016] 4 All SA 386 (WCC) para 67

UNIT 18: Negligence judged in the light of the

surrounding circumstances; negligence and duty of
care; proof of negligence; wrongfulness and negligence

4.7 Negligence judged in the light of the surrounding circumstances

 Negligence must be assessed in light of all relevant surrounding circumstances.

o General principle: All relevant facts of a case must be considered to decide
whether conduct was negligent.
o In Cape Town Municipality v Butters 1991 2 SA 223 (C), the court emphasised
that what is reasonably foreseeable and what steps ought to be taken depend
on the circumstances of each case.
o No fixed rules can apply; other cases may offer limited guidance.

(a) Inherently dangerous objects or situations

 Greater care is required when handling inherently dangerous things, such as:
o Loaded firearms, dynamite, pressure cookers, wet shop floors, etc.
 Failure to exercise extra care in such cases may constitute negligence.

(b) Dealing with people with disabilities or incapacities

 Higher standard of care is expected when dealing with:
o Children, deaf-mutes, the blind, intoxicated persons, etc.
 A person aware or reasonably expected to be aware of such individuals must act
with exceptional care.
In Keown v Ned-Equity Versekeringsmaatskappy Bpk 1984 1 SA 656 (A) and
other cases:
o Courts considered whether the defendant ought to have foreseen the
presence and behaviour of children.
o Boberg: A reasonable person would adjust precautions depending on
visibility, apparent age, proximity to road, and liveliness of the child.

(c) Doctrine of sudden emergency

 The law recognises that people in emergency situations cannot be held to the
same standard as those acting under normal conditions.
  Three requirements must be satisfied to excuse conduct under this doctrine:
1. Existence of imminent peril, e.g.:
o S v Claasen 1962 3 SA 308 (O): Motorist attacked with a panga.
o Stones thrown at a vehicle, damaging visibility.

2. The peril must not have been caused by the wrongdoer's own
negligence, e.g.:
o Brown v Hunt 1953 2 SA 540 (A): Sudden fire caused by prior spillage
of petrol – not excused.
o Ntsala v Mutual & Federal Insurance Co Ltd 1996 2 SA 184 (T): One
cannot rely on sudden emergency if they created the situation.

3. Conduct must not be grossly unreasonable, e.g.:

o The reasonable person may make mistakes, but not act foolishly or
lose composure.
o See S v Malik 1987 2 SA 813 (A) and Ntsala (above).

(d) Reliance on others acting reasonably

 General rule: One may assume that others will act like reasonable people.
 E.g. Motorists may expect others to obey traffic rules.
 But if negligence by others is reasonably foreseeable, one may be required to take
extra care.
Road Accident Fund v Landman 2003 1 SA 610 (C): The court found 40%
negligence where the driver should have driven slowly due to the presence of a
child.
Wessels v Pretorius [2008] 1 All SA 131 (SCA): A father was negligent for
letting his unlicensed 16-year-old son drive with others, foreseeing poor judgment
due to immaturity.

(e) Cusoms, usages, and community practices

 A person may defend against allegations of negligence by showing they acted in
accordance with common industry practice.
 E.g. Construction or medical practices.
 However, this is not conclusive proof of lack of negligence.
o The ultimate test remains: Would the reasonable person have acted that
way?
 A defendant cannot escape liability simply because a practice is widespread if that
practice itself is unreasonable.

(f) Statutoryprovisions
 Sometimes, a specific statute may define or affect the required standard of care.
 Important distinction:
o Infringement of a statute is not automatically negligent.
o A statute may provide evidence of negligence, but the reasonable person
test still applies.
Simon’s Town Municipality v Dews 1993 1 SA 191 (A): Adherence to statute is
only a factor, not conclusive.
Driving within speed limits (e.g., 95 km/h in a 100 km/h zone) may still be
negligent if road conditions warrant slower driving.
Trencor Services (Edms) Bpk v Loots & Loots 2001 1 SA 324 (NC): Driving on
the shoulder was not per se negligent.
Charewa v Road Accident Fund 2018 6 SA 551 (GJ): Courts considered
international approaches on duties of motorists toward cyclists.
 4.7 Negligence and “Duty of Care”
 Negligence is usually determined by applying the test of the reasonable person.
 Sometimes, South African courts incorrectly apply the English law “duty of care”
doctrine instead.
 The “duty of care” test includes two stages:
1. Duty issue: Did the defendant owe the plaintiff a duty of care?
2. Negligence issue: Was that duty breached?
 In English law, foreseeability originally determined the duty issue.
 Currently, the duty issue is a policy-based value judgment, where foreseeability
plays no role.
 The negligence issue asks whether a reasonable person would have prevented the
harm.
 Duty of care is specific: It is not a general duty, but one owed only to certain
foreseeable plaintiffs.
 The duty of care approach is foreign to Roman-Dutch law, the basis of South African
law of delict.
 The correct term in SA law is "legal duty", relevant for wrongfulness—not negligence.
In McIntosh v Premier, KwaZulu-Natal 2008 (6) SA 1 (SCA), Scott JA clarified
that:
o The word “duty” in Kruger v Coetzee 1966 (2) SA 428 (A) should not be confused
with the legal duty used to assess wrongfulness.
o In English law, the term “duty of care” overlaps with both wrongfulness and
negligence, leading to confusion.
 In Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA
138 (SCA), Brand JA confirmed that this overlap exists.
 South African courts should rather rely on the reasonable person test than the duty
of care doctrine.
 However, some Supreme Court of Appeal judgments have blurred the distinction by
incorrectly using the “duty of care” as part of wrongfulness.
 This obscures the difference between fault (negligence) and wrongfulness and
causes legal uncertainty.

4.8 Poof of Negligence

 The onus of proof lies with the plaintiff, who must prove negligence on a balance of
probabilities.
 If a statutory presumption of negligence exists, the defendant bears the onus to
rebut it.
 The maxim res ipsa loquitur (the facts speak for themselves) may apply when:
o The event is of such a nature that it usually implies negligence (e.g., car
swerving into the wrong lane or an object falling from a building).
o There are no known facts beyond the occurrence itself.

 Res ipsa loquitur does not shift the onus of proof:

o It does not create a presumption or even a prima facie case.
o It is merely an argument based on probability when the plaintiff has limited
evidence.

 The maxim may be used where crucial facts are within the defendant’s knowledge,
allowing an inference of negligence.
 Res ipsa loquitur is rarely applicable in medical negligence cases.
 If parties agree on facts and no evidence is led, the maxim does not apply.

IV.11 istinction Between Wrongfulness and Negligence

 Both wrongfulness and negligence use an objective reasonableness standard, but
they are conceptually distinct.

(a) Reasonableness Criteria Differ:

 Wrongfulness: Determined by weighing conflicting interests using the boni mores
(legal convictions of the community).
 Negligence: Determined by whether a reasonable person would have foreseen and
prevented the harm.

(b) Different Legal Functions:

 Wrongfulness: Tests whether the conduct was legally reprehensible → focuses on the
act itself.
 Negligence: Tests whether the defendant was personally blameworthy → focuses on
the actor.

(c) Different Timing of Assessment:

 Wrongfulness: Diagnosed retrospectively (ex post facto) using actual facts and
consequences.
 Negligence: Judged prospectively (ex ante) by placing the reasonable person in the
position of the defendant at the time of the act, using the facts he knew or should
have known.

(d) Order of Inquiry:

 Traditionally, wrongfulness is determined before negligence.
 Courts now follow a pragmatic approach: either element may be addressed first,
depending on the case.

(e) Must Not Be Confused or Combined:

Roux v Hattingh 2012 (6) SA 428 (SCA):
o Wrongfulness provides a control mechanism to exclude liability even when other
Aquilian elements are present.
o Telescoping the tests would eliminate the function of wrongfulness as a control
device.

S v Goliath 1972 (3) SA 1 (A):

 Facts: A, under compulsion by B, helps kill C.
 If B’s threat was real, necessity (ground of justification) excludes
wrongfulness.
 If B’s threat wasn’t real (e.g., fake weapon), no necessity → conduct is wrongful.
 But if A believed the threat was real, court applies putative necessity to assess
negligence.
o Reasonable person is placed in A’s position with A’s actual and expected
knowledge.
o If reasonable person would have acted the same, no negligence.
o If not, A is negligent.
 Conclusion: A person can act wrongfully but not negligently, and escape
liability because their blameworthiness is absent.

Minister of Forestry v Quathlamba (Pty) Ltd 2000 (2) SA 211 (SCA)

 Facts: A fire started on X’s land (without fault). X tried to extinguish it, but it
spread to Y’s land and caused damage.
Held:
o Legal duty existed → X’s omission was wrongful (he didn’t fully prevent
harm).
 o However, X acted as a reasonable person would have in the situation.
o Therefore, no negligence → no liability.
 Principle: Even where conduct is wrongful, absence of negligence may
exclude liability.

UNIT 19: Contributory fault

5 Contributory Fault

5.1 Introduction

 Fault refers to the conduct of the defendant, while contributory fault refers to the
conduct of the plaintiff.
 Contributory fault affects the extent of the defendant’s liability and is crucial in
legal practice.
 It is governed by the Apportionment of Damages Act 34 of 1956.
 To understand this Act, it is important to know the common law position prior to
its enactment.

5.2 The Common Law Position

 In Roman-Dutch law, if both plaintiff and defendant were at fault, neither could claim
damages unless one was more at fault.
 South African courts initially followed English law, particularly the case of Davies v
Mann (1842).
 In that case, despite both parties being negligent, the court found the defendant had the
last opportunity to avoid the accident and held him fully liable.
o The "all-or-nothing" rule meant the plaintiff got nothing if partially at fault.
o The last opportunity rule tried to fix this but became untenable in practice, leading
to legislative reform.
 A deceased’s contributory negligence was not a defence unless it was the decisive
cause of death (i.e. last opportunity to avoid the accident).
 This position changed with the Apportionment of Damages Amendment Act 58 of
1971.
 A replacement Bill for the 1956 Act has been prepared, but it has not yet been
enacted.

5.3 The Apportionment of Damages Act 34 of 195

5.3.1 Section 1(1)(a) and (b)

 Section 1(1)(a):
o If damage is caused partly by the plaintiff's fault and partly by the
defendant’s, the claim is not defeated.
o The court reduces damages in a just and equitable manner, based on the
degree of fault.
 Section 1(1)(b):
o Damage is considered to have been caused by a person’s fault, even if
another had the chance to avoid it and negligently failed.

 Effect:
 o Abolishes the "all-or-nothing" rule.
o Allows the apportionment of damages based on relative degrees of fault.
o This led to litigation, but the principles are now mostly settled.
V.3.2 Meaning of “Fault”
 Fault includes both intent and negligence.
 A defendant who acted intentionally cannot raise contributory negligence as a
defence.
 Two scenarios of contributory intent:
o Plaintiff intentionally contributed to their own harm; defendant only negligent →
Plaintiff forfeits the claim.
o Both plaintiff and defendant acted intentionally → unclear if contributory intent
applies under the Act.
 The Act likely does not allow for contributory intent.
 But in Greater Johannesburg Metropolitan Council v ABSA Bank Ltd,
contributory intent was accepted where both parties acted with intent.

V.3.3 Meaning of “Apportionment of Damages”

 "Apportionment of damages" does not mean literal division.
 It means the plaintiff’s damages are reduced due to their own fault.

V.3.4 Criteria for Apportionment of Damages

 Based on the reasonable person test for negligence.
 Apportionment only applies when liability is fault-based, i.e., the Act does not
apply to strict liability cases.
 In South British Insurance Co Ltd v Smit and Jones v Santam Bpk, the following
principles were clarified:
o The plaintiff’s and defendant’s negligence must be causally linked to the harm.
o The usual causation test applies, not the last opportunity rule.
o Courts do not assess degrees of causation, only whether each party’s
conduct contributed.
 The court compares each party’s deviation from the reasonable person standard,
expressed as percentages.

 In Jones NO v Santam Bpk:

o The court rejected the view that plaintiff’s fault automatically determines the
defendant’s fault.
o Each party’s negligence must be measured independently.
 Example:
 Plaintiff’s conduct = 70% deviation
 Defendant’s conduct = 80% deviation
 Ratio = 7:8 → Plaintiff is 46.7% at fault, Defendant 53.3%
 Plaintiff receives 53.3% of damages.

In AA Mutual Insurance Association Ltd v Nomeka:

o The court followed the old approach (plaintiff’s % subtracted from 100 to get
defendant’s %).
o Nomeka did not consider Jones, so some say it was decided per incuriam.
o Despite that, many later cases followed Nomeka.
o Both Jones and Nomeka seem to be part of current law.
 There is a need for clarity from the Supreme Court of Appeal, and Jones is the
o
preferred approach.
 Some argue Nomeka and Jones can be reconciled:
 Courts may be mentally comparing both parties’ negligence without explicitly explaining
as in Jones.

In General Accident v Uijs:

The plaintiff’s fault is just one factor.
o
Courts should also consider fairness and equity in apportioning damages.
o
Thus, other relevant factors may affect how damages are reduced.
o
 Important point: Courts cannot reduce a minor’s claim based on the parent’s
contributory fault when brought on behalf of the child.
 Negligence of a third party:
o Generally not a defence unless the third party is the plaintiff’s servant and acted
within employment scope.

V.3.5 Onus of Proof

 The defendant bears the onus to prove contributory negligence on a balance of
probabilities.
 This is usually pleaded alternatively to a full denial of negligence.
 However, courts may consider contributory negligence even if not pleaded, per the
Appellate Division.

V.3.6 Concept of Contributory “Negligence”

 Technically, “contributory negligence” is incorrect, as negligence must also be
wrongful, and a person cannot act wrongfully towards themselves.
 It is a theoretical tool used to limit liability through analogy to negligence.
 There is no true wrongfulness, so not negligence in the strict sense.

V.3.7 Fault in respect of “damage” or “damage-causing event”

 A key issue is whether section 1(1)(a) applies where the plaintiff was not negligent in
causing the event, but was negligent in increasing the damage (e.g. by not wearing a
seatbelt or helmet).

In King v Pearl Insurance Co Ltd:

 Colman J held that failure to wear a helmet was not contributory negligence, since the
plaintiff’s fault related to damage, not the event.

In Bowkers Park Komga Co-op Ltd v SAR and H:

 Addleson J criticised the approach in King, arguing that section 1(1)(a) clearly refers to
fault in relation to damage, not merely the event.

In Union National South British Insurance Co Ltd v Vitoria:

 The Appellate Division accepted that not wearing a seatbelt constitutes contributory
negligence.
 However, the degree of negligence differs based on the plaintiff’s intent:
o Deliberate failure to wear a seatbelt is more blameworthy than forgetting to wear one.
o The contributory fault is only relevant insofar as it increased the damage.
 Example: If Y causes an accident and X’s total damage is R10,000, but X’s failure to
wear a seatbelt caused R4,000 extra damage, then:
 o Y is liable for R6,000, and
o The R4,000 is apportioned based on section 1(1)(a).

V.3.8 The Provisions and Meaning of Section 1(3)

 Section 1(3) provides: “For the purpose of this section ‘fault’ includes any act or
omission which would, but for the provision of this section, have given rise to the defence
of contributory negligence.”
 The wording is obscure and misleading.
o A literal reading suggests the abolition of contributory negligence, which is
incorrect.
o The legislature likely confused contributory negligence with the last opportunity
rule, which was abolished.
 The phrase “but for the provision of this section” is meaningless.
 The Act also incorrectly defines fault as merely an act or omission.
o Fault is actually the legal blameworthiness for wrongful conduct.
o Therefore, fault includes more than just conduct—it requires consideration of other
relevant factors

V.3.9 The Dependant’s Action

 Initially, the Act did not address the impact of a breadwinner’s contributory negligence
on claims by dependants.
 Until 1971, the common law and the last opportunity rule still applied.
 This position changed with the 1971 Amendment to the Apportionment of Damages
Act, which now regulates such claims.

5.3.10 Joint Wrongdoers

 The issue here is how to apportion damages when the plaintiff is contributorily negligent
and there are joint wrongdoers.
 Two approaches exist:
In Santam Insurance Co Ltd v Vorster:
 The court held that each joint wrongdoer’s negligence must be assessed separately
for apportionment.
In Harrington NO v Transnet Ltd:
 The court took a “unity approach”, treating the combined fault of the joint wrongdoers
as a single entity for comparison with the plaintiff’s fault.
 This was acceptable because the wrongdoers acted as a unified whole.
 However, the Vorster approach may yield fairer results, especially when joint wrongdoers
did not act as one.
 Therefore, the unity approach should not be applied in all cases.

V.3.10 reach of Contract

 A debated issue is whether the Apportionment of Damages Act applies to breach of
contract cases.
In Thoroughbred Breeders’ Association of SA v Price Waterhouse:
 The Supreme Court of Appeal held that the Act does not apply to breach of
contract.
 The plaintiff sued his auditor for failing to detect theft during audits.
 The auditor claimed the plaintiff was negligent in managing the financial
director, and thus damages should be reduced.
 Nienaber JA reasoned:
o When the Act was enacted, contributory negligence and the last
opportunity rule were unknown in contract law.
 o Therefore, the Act was intended only to reform delictual law, not contract
law.
o The wording of the Act does not suit contractual claims.
 Nonetheless, there is a strong case for legislative intervention to cover scenarios
where both parties’ negligence contributes to harm in a contractual context.

V.3.11 legal Causation

 Contributory negligence must be distinguished from legal causation.
 Not all negligent acts of a plaintiff related to the damage are relevant under section 1(1)
(a).

In Gibson v Berkowitz:

 Claassen J made an important distinction:

o Only plaintiff’s negligence before the damage-causing event is relevant
for apportionment under the Act.
o Post-event negligence (e.g. worsening injuries after the incident) is relevant
to legal causation, not contributory negligence.
 This distinction is:
o Theoretically correct and
o Practically useful, as it helps courts clarify liability boundaries.

UNIT 20: Voluntary assumption of risk and contributory

fault (contributory intent
8.6 Consent

8.5.1 General
 Consent is recognised as a ground of justification in delict.
o If a person who is legally capable gives valid consent to harm or injury, then the
act is considered lawful.
o The injured party waives their right to be protected, permitting the defendant to
violate their interest, which makes the conduct not wrongful.
o Therefore, the actor cannot be held delictually liable for damage that results from
such consensual harm.
 This principle is expressed by the Latin maxim volenti non fit iniuria:
o Translation: “To a willing person no injury is done.”
o It means that if a person voluntarily consents to injury or risk thereof, they
cannot claim to be wronged.
o This principle was known in both Roman and Roman-Dutch law.

 There are two forms of consent:

 Both forms serve as justification grounds, and the same principles apply to both.

1. Consent to injury:
 The plaintiff consents to the specific harm caused by the defendant.
 Examples:
o A consents to B removing his appendix.
o C consents to D using his pen.
o A rugby player consents to being scrummed against.
o E consents to F cutting his hair.
 2. Consent to the risk of injury:
 The plaintiff consents to the risk that harm may occur due to the defendant’s conduct.
 Examples:
o A consents to the risk of a side-effect from B's surgery.
o A rugby player consents to the risk of being injured during tackles.
o A boxer consents to the risk of being paralysed from a blow.
o A squash player consents to the risk of being hit by a racket.
 If such risk materialises, the plaintiff cannot hold the defendant liable, as they
consented to the risk.
 Reported cases where this defence succeeded are few, indicating limited judicial use of
consent to risk as a defence.

 The term volenti non fit iniuria (or simply volenti) covers both types of consent: to
injury and to risk.
 The phrase “voluntary assumption of risk” may refer to:
o Consent to risk of injury (a ground of justification), or
o Contributory intent (a ground excluding fault or culpability).
 It is essential to distinguish between:
1. Consent (a justification defence that excludes wrongfulness)
2. Contributory intent (a defence that excludes fault)
3. Contributory negligence (which reduces the plaintiff’s claim, but is not a
full defence)

 Effect and Implications of Each Defence

 Consent and contributory intent both constitute complete defences, leading to no
delictual liability.
o Consent excludes wrongfulness.
o Contributory intent cancels the defendant’s negligence.
 Contributory negligence:
o Is not a complete defence.
o Leads only to a reduction of the plaintiff’s damages based on their degree
of negligence.
o Governed by section 1(1)(a) of the Apportionment of Damages Act.
 Because the practical outcomes differ, these concepts must not be confused.
 Legal practitioners and students must look beyond labels like volenti non fit iniuria,
“voluntary assumption of risk” or “consent,” and analyse the facts to determine:
o Whether there was justification due to consent;
o Whether there was no fault due to contributory intent;
o Or whether the plaintiff acted negligently and should bear part of the loss under
section 1(1)(a).
 According to 5.3.2, intentional harm by a defendant precludes the defence of
contributory negligence.
However, in Greater Johannesburg Transitional Metropolitan Council v ABSA
Bank Ltd t/a Volkskas Bank:
 The court recognised that contributory intent may be a valid defence where
both parties acted intentionally.
 This shows that voluntary assumption of risk via contributory intent can
completely exclude liability even outside negligence.

5.4 Voluntary Assumption of Risk and Contributory Fault (Intent)

5.4.1 Introduction
 The concept of voluntary assumption of risk can function in two distinct ways:
 o As a ground of justification (linked to volenti non fit iniuria), where consent
to harm or risk excludes wrongfulness.
o As a form of contributory fault (specifically contributory intent), which cancels
fault and not wrongfulness. This arises when justification is absent.
 If a plaintiff is aware of the risk and wilfully exposes themselves to it, they act with
contributory intent.
o This implies that the plaintiff directs their will toward the result — i.e.,
acceptance of harm.
o To constitute intent, the plaintiff’s actions must also be consciously
unreasonable (i.e., not aimed at a lawful purpose).
 Example: If a person endangers themselves to save a baby, their action is not
consciously unreasonable, and no contributory intent exists.
 When contributory intent is present, it nullifies the defendant’s fault, even if the
defendant was negligent.
o The plaintiff’s intent (at least dolus eventualis) functions as a complete
defence for the defendant.
 Although contributory intent is not recognised under the Apportionment of
Damages Act 34 of 1956, it is a common law defence that operates independently of
the Act.
5.4.2 Relevant Cases
Lampert v Hefer 1955 (2) SA 507 (A)
 The plaintiff willingly rode in the sidecar of a motorcycle driven by an intoxicated
defendant.
 An accident occurred and the plaintiff was injured.
 Consent as justification was rejected because consent to serious injury is contra
bonos mores.
 The court found that the plaintiff knew of the danger and willingly accepted the
risk, thus acted with contributory intent.
 Fagan JA noted the confusion between contributory negligence and
contributory intent:
o If a person knows the risk and freely accepts it, this is not negligence, but
intent.
o If a person should have known but did not, that is contributory negligence.
 Schreiner JA correctly distinguished between voluntary assumption of risk (intent)
and contributory negligence.
 Ogilvie-Thompson CJ in Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A)
778 also acknowledged that the criteria for volenti and contributory negligence
are radically different, although they may sometimes overlap.

Netherlands Insurance Co of SA Ltd v Van der Vyver 1993 (4) SA 228 (A)
 V, a detective, jumped onto O's car bonnet while O was driving away with a woman.
 O intentionally drove dangerously to dislodge V, who was injured.
 Court a quo found both O and V 50% negligent.
 On appeal:
o O’s actions were found to be intentional, not merely negligent.
o The defence of consent (as justification) failed because V did not know O
would drive off, and thus did not consent.
o The defence of contributory intent was also rejected, as there was no
authority cited for it.
 o However, even if V had consented, consent to serious bodily harm would be
contra bonos mores and invalid.

Maartens v Pope 1992 (4) SA 883 (N)

 The plaintiff was a plumber who entered the defendant’s premises despite warnings
about a dangerous dog and was bitten.
 The court accepted voluntary assumption of risk and found plaintiff consented to
the danger.
 However, since the risk was of serious injury, the consent should have been invalid
as contra bonos mores.
 The case suggests that the plaintiff’s conduct was contributory intent and not mere
negligence.

Malherbe v Eskom 2002 (4) SA 737 (W)

 The plaintiff, an engineer, worked on electrical equipment knowing of a removed
circuit breaker.
 A short circuit injured him.
 Van Rooyen AJ held that where the plaintiff knowingly accepts a negligently
created risk, the defendant’s negligence is extinguished by the plaintiff’s voluntary
assumption of risk.
 This created a fairness-based rule where contributory intent cancels the
defendant’s fault.

Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a

Volkskas Bank 1997 (2) SA 191 (W)
 T (City employee) committed fraud, assisted by W (bank employee).
 The Council sued the bank for vicarious liability.
 The court found that both T and W acted with intent, and applied section 1(1)(a) of
the Apportionment of Damages Act.
 The court reduced damages by 50%, recognising that “fault” in the Act includes
dolus.
 This was one of the first cases to accept contributory intent as a partial defence in
intentional delict.

5.4.3 Rescue Cases

 Rescue cases show the fine line between contributory intent and reasonable self-
endangerment.
 Example:
o X sets a house on fire. Y enters the house to save a jacket and gets injured.
 Y’s actions are consciously unreasonable and amount to contributory
intent. X is not liable.
o If Y enters the house to save a baby, the conduct is consciously reasonable,
aiming at a lawful goal, and X may be liable.
o If Y is a fireman acting in the course of duty, X is liable, because he should
have foreseen rescue would follow.
 Ahmed explains that moral and social pressures to rescue someone can negate
voluntary assumption of risk.
o But, if the danger is extreme and the interest protected is minor, then the rescue
becomes unreasonable, and contributory intent or negligence may arise.
 UNIT 21: Causation: general; factual causation
1 General

 Delictual liability requires the causing of damage through conduct, meaning there
must be a causal nexus between the defendant’s conduct and the plaintiff’s
damage.
 A person cannot be held liable if no damage has been caused.
 The existence of a causal nexus is a factual question, and must be determined based
on available evidence and relevant probabilities.
 This question of causation may, in suitable cases, be dealt with early during the trial.
 A causal nexus either exists or does not, theorising cannot change this basic reality.
 Despite this, jurists have debated causation extensively, leading to various
causation theories:
o Conditio sine qua non theory (also known as the “but-for” test)
o Adequacy theory
o Direct consequences theory
o Foreseeability theory
o Flexible approach
 Not all these theories apply at the same level:
o Most theorists start with the conditio sine qua non theory to determine if a
factual causal nexus exists.
o If such a factual link exists, we say factual causation is present.
 A factual causal chain can extend indefinitely, because a single act can cause endless
consequences, and each harm may result from multiple factors.
 Delictual liability focuses on the voluntary conduct of the defendant as the damage-
causing event.
 Policy and fairness require that the law does not impose unlimited liability based
only on factual causation.
 The next question is therefore: for which of the harmful consequences flowing from
the conduct should the defendant be held liable?
 All theories other than the conditio sine qua non theory attempt to address this by
defining legal causation.
 Legal causation focuses on whether the harm is legally attributable to the defendant,
based on fairness and policy.
 The distinction between factual causation and legal causation is crucial and must
be kept in mind.

2 Factual Causation
2.1 General
 There can be no delictual liability if it is not proven that the defendant’s conduct
caused the plaintiff’s damage.
 Whether a particular act qualifies as a cause depends on the facts and the probabilities
of the case.
 The main question is: What test should be used to determine whether a causal
nexus exists?
 In practice, this determination is usually unproblematic, and courts often succeed in
deciding whether the conduct caused the harm.
 The courts typically use common-sense reasoning, asking whether one fact follows
from another.
 While various tests have been proposed, the one most favoured by writers and the
courts is the conditio sine qua non theory.
 This theory has been supported by the Constitutional Court, the Supreme Court of
Appeal, and other courts.
 However, the courts have also held that conditio sine qua non is not the only test,
and may not always be used explicitly.
 The courts apply it because it is simple and understandable, but they may not always
define how they interpret or apply the theory.
 It is not essential to use the mental elimination method (i.e., hypothetically removing
the act) to determine factual causation correctly.
 Still, because the conditio sine qua non approach is so commonly used in judgments,
it must be critically examined.

2.2 Conditio sine qua non and Causation by Positive Conduct

 The conditio sine qua non theory is also called the “but-for” test.
 Van der Merwe and Olivier describe it as follows:
o An act is the cause of a result if the result would not have occurred but for the
act.
o In other words, the act is a necessary condition for the result.
 To apply this theory, one must mentally eliminate the act (X) and determine whether
the consequence (Y) would still have occurred.
o If Y disappears, then X caused Y.
o If Y remains, then X did not cause Y.
 Van Oosten argues that this theory is both a factual and legal test, because the law
adopts it, and applies it differently than other disciplines like medical science.
 However, the majority view is that the conditio sine qua non theory is a factual test
only.

In International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) :

o The court reaffirmed the conditio sine qua non as the method for assessing
factual causation.
o The court stated that this test involves a hypothetical inquiry:
 What would have happened but for the defendant’s wrongful conduct?
 If the harm would still have happened, then no causation exists.
 If the harm would not have happened, then the defendant’s act is a
cause, and legal liability may arise.
 This test is applied especially in cases of positive conduct (commissio), where the
defendant’s action is seen as the trigger for a harmful result.
 In such cases, the wrongful conduct is mentally removed, and the outcome is
evaluated hypothetically to assess causal link.

2.3 Logical criticism of the conditio sine qua non theory

 Although courts still frequently refer to the conditio sine qua non theory, its
underlying principles have been subjected to strong logical criticism, even if courts
have not fully rejected it.

(a) The theory leads to circular logic and indirect reasoning

 The method involves mentally eliminating the conduct (X) to see whether the
consequence (Y) would still have occurred.
 This requires retaining all other conditions (Z) while removing X, and testing
whether Z could have caused Y.
  If Z is also tested using the same method, we return to X — creating a logical
circle.
 This process prevents direct evaluation of X’s causal effect, and forces an
indirect and clumsy analysis.
 Although other contributing factors (Z) may be relevant, they should not be the
only focus in determining causation.

(b) The theory fails in cases of cumulative causation

 Cumulative causation arises when more than one act simultaneously causes a result.
 Example: X and Y each independently fire a fatal shot at Z’s head at the same
time.
o Eliminating X’s act does not prevent Z’s death.
o Eliminating Y’s act also does not prevent Z’s death.
o Therefore, according to the theory, neither X nor Y caused the death, which is
an absurd conclusion.
 De Wet and Swanepoel acknowledge that the theory offers no clear solution to such
cases.
 A better approach is to apply common sense, as shown in Portwood v Swamvur:
o If evidence shows that two bullets to the head cause immediate death, it is
reasonable to conclude that both shots caused Z’s death.
 This common-sense method provides a realistic and logical answer, without
hypothetical eliminations.

(c) The theory is not a true test of causation

 The conditio sine qua non test merely reformulates a conclusion already made.
 The process assumes that removing an act mentally can establish causation, but this
only works after causation has already been determined through evidence.
 Example: X drinks beer given by Y and dies. To determine if Y poisoned X:
o Eliminating the giving of beer does not help, unless we already know the
cause of death (e.g., poison or heart attack).
o Only after establishing cause can we say: “but for the beer, X would not have
died.”
 Therefore, the test is merely a convenient way of expressing a pre-existing
conclusion.
 It is not a practical test, but rather a post hoc formulation of findings based on
evidence.
 European jurists reject the theory as a true test and see it only as a way to verify
factual conclusions.
 The courts’ frequent reference to conditio sine qua non does not prove its value as a
valid or consistently applied method.
 Van der Walt and Midgley explain that the test is merely an expression of an a priori
conclusion based on experience and evidence.

2.4 Conditio sine qua non and causation by an omission

 The general view is that the conditio sine qua non test can be applied to omissions,
although the process differs from that for positive conduct.
 In cases of positive conduct, the act is mentally removed to test if the harm would still
have occurred.
 In cases of omission, the court must insert a hypothetical positive act in place of the
omission to test whether the loss would still have happened.
 This test involves asking: If the defendant had acted lawfully, would the loss have
occurred?
 Example: In S v Van As, policemen failed to search for missing children, who died of
exposure.
o The court asked whether a reasonable search would have prevented the
deaths.
o This substitution of positive conduct for omission was viewed as an
application of conditio sine qua non.

 A key debate is whether the inserted hypothetical conduct should be based on:
 An objective standard (what a reasonable person would have done), or
 A subjective standard (what the defendant would have done).
o The Constitutional Court supports an objective test, while Harms JA argued for
using both objective and subjective approaches.
o There is a risk that inserting reasonable conduct may confuse the elements of
factual causation and negligence.
o First, one must establish whether anything could have been done to prevent the
result (causation), then assess whether a reasonable person would have acted
(negligence).
o The use of the conditio sine qua non test in omission cases is not theoretically
sound, because it involves inserting rather than removing conduct.
o This substitution is not a true application of the conditio sine qua non test, which
requires mental elimination, not addition.
o However, it is a realistic and practical approach that better captures how people
understand cause and effect in daily life.

2.5 The flexible application of conditio sine qua non

 In Lee v Minister of Correctional Services 2013 (2) SA 144 (CC), the Constitutional
Court held that the but-for test should not be applied inflexibly.
 A strict application can result in injustice, especially where the result is based purely on
logic and not common sense.
 The Court recognised that our law has a long tradition of flexibility in causation,
acknowledging that strict logic must sometimes yield to practical experience.

 In Minister of Finance v Gore 2007 (1) SA 111 (SCA), the flexible approach
was described:
o It is not about mathematical precision or percentages (e.g., a 51% chance
of avoiding harm).
o The focus is: What is more likely?
o The process is persuasive, not formulaic.
 Cumulative causation provides a clear example where common sense prevails over
strict logic, as in the man-on-the-street approach.
 The flexible approach is supported because it ensures that common sense, not strict
logic or statistics, governs the assessment.
 However, even the flexible but-for test may deny liability in cases where the
defendant likely did not cause the harm, even though this may be unjust.
 In such cases, justice may be achieved through the element of legal causation.
 Legal causation considers whether there is a sufficiently close relationship between
the defendant’s negligent conduct and the plaintiff’s harm, using policy
considerations such as:
 1. Fairness
2. Reasonableness
3. Justice
 In determining this, the defendant’s negligent exposure of the victim to a risk of harm
is a key consideration.

2.6 The determination of a factual (causal) nexus

 Since the conditio sine qua non test has been discredited due to its logical flaws
and criticisms from comparative legal systems, the question arises: what method
should be used to determine factual causation?
 Factual causation refers to a specific connection between at least two facts or sets
of facts.
 This occurs where one fact arises from another, meaning fact X causes fact Y by
being the reason for its existence, its form, or its timing.
o Given the complex and dynamic nature of real-life events, it is neither
possible nor necessary to create a universal test for factual causation.
 Each case must be assessed individually based on its own facts and evidence.
o In each case, it must be clearly demonstrated (based on proven facts) how the
conduct of the defendant (X) caused the harmful result (Y).
o Therefore, a test for factual causation is fact-specific, and there are probably
as many tests as there are factual situations involving causal links.
o An overview of South African case law confirms that the courts do not use a
fixed test, but rather rely on the facts, evidence, and probabilities of each case.
o It is incorrect to suggest that factual causation involves normative or policy
considerations.

2.7 Factual causation either exists or does not exist.

 Legal rules or theorising cannot change the factual reality of whether one fact
caused another.
o Policy issues and normative evaluation are relevant only in legal causation,
where courts assess whether a consequence is too remote to justify liability.
o The fact that the courts encounter relatively few problems in determining factual
causation demonstrates that there is no need for a general, all-purpose test.
 Courts base their decisions on evidence and probabilities, rather than on the formal
application of conditio sine qua non, although the terminology is sometimes used
symbolically.
o The determination of factual causation depends on knowledge, experience,
and reliable evidence.
 This knowledge can be:
o Simple (e.g. a match can ignite petrol)
o Expert (e.g. certain medication interacting with food can trigger a stroke)
 Without prior knowledge that a particular action can cause a particular result, it is
impossible to determine causation in any given case.
 As there is no general “magic formula”, causation must be assessed based on
whether one fact naturally flows from another.
 The judge uses general human experience and reasoning to decide whether one fact
originated from another.
 Courts determine causation as they do any other question of fact: through evidence,
reason, and experience.
 A causal link must exist between actual (real) events.
 There can be no factual causation based on hypothetical or imagined scenarios.
o The law differs from medical science in how it treats causation.
 Example: If X stabs Y, and Y dies in hospital due to negligent conduct by a
nurse:
o Medical science may conclude that the fractured skull was the cause of death.
o The law would regard both the stabbing and the nurse's negligence as
factual causes of death.
 This example shows that the causes of an outcome or the consequences of a cause
can be practically endless.
 Therefore, South African law limits liability not by factual causation, but by applying
legal causation to prevent endless liability.
o In omission cases, determining factual causation involves asking whether the
wrongdoer could have acted positively to prevent the harmful result.
 Example scenarios include:
o Would the state's opposition to a bail application have prevented an assault
by a released criminal?
o Would a search by police have saved the lives of missing children?
 Only if the defendant could realistically have changed the course of
events through positive action does the court then move to questions of
wrongfulness and negligence.
 In conclusion, a defendant’s conduct need only contribute in some way
to the harm suffered by the plaintiff.
 It is not necessary for the defendant’s conduct to be:
o The sole cause
o The main cause, or
o A direct cause
 Any contribution by the defendant that played a role in bringing about the harm may
satisfy the requirement of factual causation.

2.6 The determination of a factual (causal) nexus

 Since the conditio sine qua non test has been discredited due to its logical flaws
and criticisms from comparative legal systems, the question arises: what method
should be used to determine factual causation?
 Factual causation refers to a specific connection between at least two facts or sets
of facts.
o This occurs where one fact arises from another, meaning fact X causes fact Y
by being the reason for its existence, its form, or its timing.
 Given the complex and dynamic nature of real-life events, it is neither possible nor
necessary to create a universal test for factual causation.
o Each case must be assessed individually based on its own facts and evidence.
 In each case, it must be clearly demonstrated (based on proven facts) how the
conduct of the defendant (X) caused the harmful result (Y).
 Therefore, a test for factual causation is fact-specific, and there are probably as
many tests as there are factual situations involving causal links.
 An overview of South African case law confirms that the courts do not use a fixed
test, but rather rely on the facts, evidence, and probabilities of each case.
 It is incorrect to suggest that factual causation involves normative or policy
considerations.
o Factual causation either exists or does not exist.
 o Legal rules or theorising cannot change the factual reality of whether one fact
caused another.
 Policy issues and normative evaluation are relevant only in legal causation, where
courts assess whether a consequence is too remote to justify liability.
 The fact that the courts encounter relatively few problems in determining factual
causation demonstrates that there is no need for a general, all-purpose test.
o Courts base their decisions on evidence and probabilities, rather than on
the formal application of conditio sine qua non, although the terminology is
sometimes used symbolically.
 The determination of factual causation depends on knowledge, experience, and
reliable evidence.
 This knowledge can be:
 Simple (e.g. a match can ignite petrol)
 Expert (e.g. certain medication interacting with food can trigger a stroke)
 Without prior knowledge that a particular action can cause a particular result, it is
impossible to determine causation in any given case.
 As there is no general “magic formula”, causation must be assessed based on
whether one fact naturally flows from another.
 The judge uses general human experience and reasoning to decide whether one fact
originated from another.
 Courts determine causation as they do any other question of fact: through evidence,
reason, and experience.
 A causal link must exist between actual (real) events.
o There can be no factual causation based on hypothetical or imagined
scenarios.
 The law differs from medical science in how it treats causation.
 Example: If X stabs Y, and Y dies in hospital due to negligent conduct by a
nurse:
 Medical science may conclude that the fractured skull was the cause of
death.
 The law would regard both the stabbing and the nurse's negligence as
factual causes of death.
 This example shows that the causes of an outcome or the consequences
of a cause can be practically endless.
 Therefore, South African law limits liability not by factual causation, but by
applying legal causation to prevent endless liability.
 In omission cases, determining factual causation involves asking whether the
wrongdoer could have acted positively to prevent the harmful result.
 Example scenarios include:
o Would the state's opposition to a bail application have prevented an
assault by a released criminal?
o Would a search by police have saved the lives of missing children?
 Only if the defendant could realistically have changed the course of events through
positive action does the court then move to questions of wrongfulness and negligence.
 In conclusion, a defendant’s conduct need only contribute in some way to the harm
suffered by the plaintiff.
 It is not necessary for the defendant’s conduct to be:
o The sole cause
o The main cause, or
o A direct cause
 Any contribution by the defendant that played a role in bringing about the harm may
satisfy the requirement of factual causation.

UNIT 22: Legal causation: general; the flexible approach; adequate

causation; direct consequences
3 Legal causation

3.1 General

 Legal causation is concerned with limiting liability for harm caused by a wrongful and
culpable act.
o It determines which harmful consequences should be imputed to the
wrongdoer.
 No legal system imposes liability for every consequence of a wrongful act.
o There must be limits to liability, often referred to as "remoteness of damage" or
the "imputability of harm."
 In most delictual cases, the harm is clearly linked to the conduct, and the court does
not need to examine legal causation expressly.
 However, when remote or successive consequences arise (also called "ulterior
harm"), the question of legal causation becomes important.
 Legal causation must in principle be considered in every delictual claim, even if not
addressed expressly.
 Legal causation is not the only mechanism for limiting liability.
o Other elements of a delict such as wrongfulness and fault also restrict liability.
 For instance, a person who causes damage but acts lawfully or without
fault will not be held liable.
 Legal causation becomes a distinct requirement only when a wrongdoer has acted
wrongfully and with fault, and further consequences arise.
 The key question is what test should be used to determine legal causation.
 Previously, courts were hesitant to adopt a single test and maintained a neutral stance.

 The main theories for determining legal causation include:

o The flexible approach

o Adequate causation
o The direct consequences test
o The reasonable foreseeability test
o The fault theory
 Historically, courts leaned toward the reasonable foreseeability test.
 Recently, the Appellate Division endorsed the flexible approach, which does not
rely on a single universal test.

3.2 The flexible approach

 The flexible approach was outlined in S v Mokgethi 1990 (1) SA 32 (A) and confirmed
in civil cases.
 In S v Mokgethi, the deceased was shot and later died due to secondary medical
complications.
o The court held that the initial shooting was not the legal cause of death.
 Van Heerden JA stated that there is no single criterion for legal causation.
 o The guiding question is whether the consequence is closely enough connected
to the act to justify imputation, based on policy considerations like fairness,
reasonableness, and justice.
 Existing criteria (e.g., reasonable foreseeability, direct consequences) may still be
used as subsidiary aids.
 Van Heerden JA emphasised that policy considerations must prevent liability from
exceeding the limits of justice and fairness.
 Courts should not rigidly apply one theory, but instead apply the theory that best fits
the circumstances.
 This approach prioritises justice and policy over legal formalism.
 Tests like reasonable foreseeability or direct consequences are thus not dominant,
but assist in resolving whether harm should be legally imputed.
 In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150
(SCA), the court undermined the flexible approach, stating that it should not be
treated as an independent test.
 In contrast, in Cape Empowerment Trust Ltd v Fisher Hoffman Sithole, the court
recognised that even when harm is foreseeable and a direct consequence, a court
may still deny liability if it would be unjust, thereby confirming the flexibility of this
approach.
 The flexible approach accommodates various legal fields, including delict, criminal
law, and insurance law.

3.3 Adequate causation

 Under this theory, a consequence is imputable if it is “adequately connected” to the

conduct.
 The connection is adequate if, in the ordinary course of human experience, such a
consequence would normally follow the act.
 The test involves questions such as:
o Was the damage reasonably to be expected?
o Did it fall within the field of protection of the infringed legal norm?
o Was the consequence juridically relevant to the cause?
 Adequate causation and reasonable foreseeability often yield the same results, as
both focus on expected consequences.
 A key advantage of adequate causation is that it is more easily distinguishable from
negligence, which also uses the reasonable foreseeability standard.
 Jansen JA in S v Daniëls and academic Snyman support this theory.
 The theory has been criticised, but it has support among some scholars and is
applied in criminal law decisions.

3.4 Direct consequences

 Stemming from English law, this theory holds that a wrongdoer is liable for all direct
consequences of their conduct, regardless of foreseeability.
 A consequence can be direct even if it doesn’t follow immediately in time or space.
 The exact course of events need not be foreseeable, only that the harm was a direct
result of the conduct.
 Because this can lead to extensive liability, English law limited the theory to:
o Direct physical consequences, and
o Excluded liability where a novus actus interveniens (new intervening act)
breaks the chain.
 The “foreseeable plaintiff” doctrine further limits liability:
o A defendant is not liable to a person not reasonably foreseeable as being at risk,
even if harm flowed directly.
 The Privy Council rejected the theory in Overseas Tankship (UK) Ltd v Morts Dock
and Engineering Co Ltd (Wagon Mound No 1) [1961], preferring the reasonable
foreseeability test.
 In South African law, the Supreme Court of Appeal has accepted the direct
consequences test in some cases, but:
o It is now treated as a subsidiary criterion under the flexible approach.
 The test has faced strong criticism for being too mechanical, but is now seen as
useful if applied flexibly.

 Tuck v Commissioner for Inland Revenue 1988 (3) SA 819 (A):

o Corbett JA drew the distinction between factual causation and legal causation.
 Factual: Based on conditio sine qua non.
 Legal: Whether the link is close enough for liability to follow.

 Minister of Police v Skosana 1977 (1) SA 31 (A), Fourway Haulage SA (Pty) Ltd
v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA), S v Mokgethi 1990 (1)
SA 32 (A), International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A),
Neethling v Oosthuizen 2009 (5) SA 376 (WCC):

o All reinforce the policy-driven nature of legal causation.

 Alston v Marine and Trade Insurance Co Ltd 1964 (4) SA 112 (W):

o Plaintiff had a stroke due to cheese-drug interaction after a brain injury.

o Court questioned whether the stroke was legally imputable.

 Mafesa v Parity Versekeringsmaatskappy Bpk 1968 (2) SA 603 (O):

o Plaintiff broke leg again due to fall while recovering.

o Court examined whether second injury was imputable.

 Van der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE):

o Court found legal causation present in shooting of a bystander during a prisoner’s

escape.

UNIT 23: Reasonable foreseeability; novus actus

interveniens; so-called egg-skull cases (talem qualem
rule)
3.6 Reasonable foreseeability
 Reasonable foreseeability has been used in several decisions as a criterion for legal
causation, but under the prevailing flexible approach, it plays only a subsidiary role,
similar to other traditional causation tests.
 This means that reasonable foreseeability is not the sole or decisive test for liability.
 Even if the harm was exceptional and not reasonably foreseeable, liability may still be
imputed on the basis of legal policy.
 Case law is unclear on the content of the foreseeability criterion. Courts typically do not
define the test but only decide whether a result was foreseeable or not.
 According to Van der Walt and Midgley, not all consequences must be foreseen—
only the general kind or nature of harm must be reasonably foreseeable.
 The exact manner or extent of the harm need not be foreseen. However, the risk must
be real, not one that a reasonable person would dismiss as far-fetched.

 Van Rensburg proposes the following general test: Was the consequence, and the
causal progression between the act and the consequence, foreseeable at the time of the
act with such a degree of probability that, in light of the circumstances, the consequence
can reasonably be imputed to the wrongdoer?

 Van Rensburg’s rule: a wrongdoer is normally liable for all consequences of a

culpable act, except those that were highly improbable.
 The reasonable foreseeability and preventability test used in negligence (fault)
cannot be directly applied as a test for imputability of harm in legal causation.
 There is a fundamental difference between fault and legal causation—fault relates to
the actor’s conduct, whereas legal causation relates to the attribution of harm.
 Once wrongfulness and fault are proven, imputability is often presumed—but the
principle remains distinct.
 Reasonable foreseeability is also used as a subsidiary criterion in cases involving
intentional conduct and liability without fault.

3.7 Novus actus interveniens

 A novus actus interveniens is a new, independent event that occurs after the
wrongdoer’s act and either causes or contributes to the consequence.
 If the novus actus extinguishes the factual causation, the defendant escapes
liability.
 If the wrongdoer’s act remains a factual cause, but the intervening act breaks the
legal link, liability may still be excluded under legal causation.
 The key question under the flexible approach is whether, based on policy,
reasonableness, fairness and justice, the consequence should still be imputed to the
defendant despite the intervening event.
 Under the direct consequences test, the novus actus may break the required
directness.
 Under the foreseeability test, the novus actus may render the consequence no longer
reasonably foreseeable.
 A novus actus can be caused by:
o The plaintiff’s own culpable conduct
o The culpable conduct of a third party
o Natural forces such as wind or rain
 An intervening cause must not have been reasonably foreseeable at the time of the
wrongful act to qualify as a novus actus interveniens.
 If the event was reasonably foreseeable, it cannot qualify as a novus actus and does
not interrupt legal causation.
 In Road Accident Fund v Russell 2001 (2) SA 34 (SCA):
 The deceased committed suicide after suffering brain damage and
depression due to an accident.
 The court held that his suicide did not break the causal chain, as his
mental impairment affected his decision-making capacity.
 In Gibson v Berkowitz 1996 (4) SA 1029 (W):
 Claassen J distinguished:
o Pre-delictual negligence (plaintiff’s own fault before the act) =
contributory negligence
o Post-delictual negligence (after the event) = may affect legal
causation/remoteness
  In S v Mokgethi 1990 (1) SA 32 (A):
 The victim died from pressure sores due to failure to follow medical advice
after being shot.
 The court suggested that a victim's omission may break causation where:
o The immediate cause of death is the victim's own omission.
o The initial injury was not life-threatening.
o The omission was objectively unreasonable.
 In this case, legal causation was not established despite factual causation.

 Mafesa v Parity Versekeringsmaatskappy Bpk 1968 (2) SA 603 (O) – slipping

and a second fracture.

 Alston v Marine and Trade Insurance Co Ltd 1964 (4) SA 112 (W) – eating
cheese with parstellin causing a stroke.

3.8 So-called egg-skull cases (talem qualem rule)

 Egg-skull cases arise when a plaintiff suffers more serious harm due to a pre-existing
physical, psychological or financial condition.
 According to the talem qualem rule, the defendant must take the victim as they find
them, even if the injury is more severe due to the weakness.
 Van Rensburg maintains that reasonable foreseeability can still justify liability in egg-
skull cases, but the degree of foreseeability may differ due to the specific
vulnerability of the victim.
 The risk is often related to an infringement of a highly protected interest like bodily
integrity, and the serious result arises from a coincidental latent weakness.
 Van der Walt and Midgley connect the rule to the direct consequences test, stating
that once negligence is proven, liability includes unforeseeable harm from latent
conditions.
 Van der Merwe and Olivier, who favour fault as the basis of liability, reject the talem
qualem rule. They argue:
o Foreseeability is crucial
 A reasonable person cannot foresee the unforeseeable
 Therefore, loss should lie with the plaintiff if the harm was unforeseeable
 The flexible criterion for legal causation allows the most acceptable approach, as
expressed by Botha JA in Smit v Abrahams 1992 (3) SA 158 (C):
o The plaintiff’s egg-skull condition is one of many relevant factors to consider
when assessing whether the harm should be imputed to the defendant.
o The dominant elastic criterion is based on policy, fairness, and justice, rather
than strict application of direct consequences or foreseeability.

 Examples of egg-skull cases:

Wilson v Birt (Pty) Ltd 1963 (2) SA 508 (D) – latent brain vulnerability worsened by a
blow.
Potgieter v Rondalia Assurance Corporation of SA Ltd 1970 (1) SA 705 (N) – heart
condition.
Boswell v Minister of Police 1978 (3) SA 268 (E) – high blood pressure.
Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) – hypertension.
Gibson v Berkowitz 1996 (4) SA 1029 (W) – emotional/psychological vulnerability.
Prinsloo v Road Accident Fund 2015 (6) SA 91 (WCC) – confirmed talem qualem
rule.
Dulieu v White and Sons 1901 (2) KB 669 – English case origin of the rule.
S v Bernardus 1965 (3) SA 287 (A) – confirms that even mild acts causing severe
harm due to thin skull attract liability.
 The rule also applies to financial weakness as in Smit v Abrahams, and South African
law includes cases on psychological fragility.

UNIT 24: Damage: patrimonial loss and non-patrimonial

loss
1 Introduction
 A delict is defined as a wrongful and culpable act that results in a harmful
consequence.
 The element of damage is fundamental to a delictual action for damages.
 The general compensatory function of the law of delict means that some form of loss
or damage must exist for compensation to be granted.
 This chapter deals with basic principles for assessing damage, and for quantifying
compensation (damages or satisfaction).

2 The compensatory function of the law of delict

 The law of delict serves a compensatory function, which manifests in two specific
forms:
(a) Compensation for damage (damages or "skadevergoeding")
o Damages are the monetary equivalent of the damage suffered.
o The objective is to eliminate the harm as completely as possible—past and
future, patrimonial and (where applicable) non-patrimonial.
o Money serves as the substitute for the value of the loss.
b. Satisfaction ("genoegdoening")
o Applied when money cannot truly compensate for the loss, usually in cases of
injury to personality.
o Satisfaction involves retribution for the wrong, and aims to restore a sense
of justice to the plaintiff and/or society.
o Usually achieved by ordering the defendant to pay a monetary amount
proportionate to the wrong suffered.

3 The concept of damage

3.1 The definition of damage

 Damage (damnum) is an ancient legal concept.
 Though not absolutely clearly defined, damage is generally accepted to be:The
detrimental impact upon any patrimonial or personality interest deemed worthy of
protection by the law.

3.2 Extent of the concept of damage

3.2.1 General
 The term "damage" does not refer to just any harm. Some forms of harm (like
inconvenience or disappointment) are excluded from compensation.
 The concept of damage includes more than just compensable harm—as satisfaction
may be awarded for certain types of harm.
 Only harm to legally recognised patrimonial or non-patrimonial interests qualifies
as damage.
 Examples of non-compensable harm under the Aquilian action:
o Inconvenience, disappointment, fear, or frustration.
o A husband’s claim for the loss of comfort or society of a deceased wife.
o Frustration of an expectation to inherit something.
 It is argued that these may still be “damage” in a broader sense, but compensation is
denied for policy reasons.
 Reinecke rightly argues that income from unlawful activities does not constitute
damage, even though this view has been criticised.
 Only a reduction in the utility of interests due to an uncertain event qualifies as
damage.
 Harm from natural processes (e.g., wear and tear, natural illness, death) is not
regarded as damage.
 Prospective loss (expectation of future reduction or failure to gain value) does fall
under the concept of damage.

3.2.2 Damage includes patrimonial (pecuniary) and non-patrimonial (non-pecuniary)

loss
 Damage is a broad concept consisting of:
o Patrimonial loss (measurable in monetary terms)
o Non-patrimonial loss (injury to personality)
 These two types are mutually exclusive components of damage.
 Some authors (e.g. Van der Walt, Reinecke, Boberg, Van der Merwe and Olivier)
define damage only as patrimonial loss, based on the assumption that patrimonial and
personality interests have no common denominator.
 Others (e.g. McKerron, Pauw, Pont) adopt a wider definition that includes non-
patrimonial loss.

 There are three strong arguments for accepting a broad concept of damage:
(a) Common denominator: reduction in utility
o Both types of damage involve diminution in the utility of an interest deemed
worthy of legal protection.
o Monetary measurability is not essential—non-patrimonial damage can exist
even if not quantifiable in money.
o While the forms of compensation differ, the nature of harm does not require
uniform measurability.
o A realistic approach includes all harm relevant to delictual liability, even if
treatment in law differs.

b. Legal practice adopts a wide definition

o Courts interpret “damage” and “loss” in legislation to include both patrimonial
and non-patrimonial harm.
o A narrow interpretation would lead to unjust outcomes.

c. The development of the action for pain and suffering

o This action allows compensation for injury to personality resulting from
physical injury.
o It developed alongside the Aquilian action, not just under the actio
iniuriarum.
o Even though this compensation is imperfect, it still acknowledges the
compensability of non-patrimonial harm.
o Once injury to personality can be compensated, all iniuria should be seen as
non-patrimonial damage.
o Thus, natural commensurability in money is not required.
o The key distinction is between damage and compensable damage.
 The correct approach is to first accept a wide concept of damage, and then
determine which forms are compensable and which require satisfaction instead of
monetary compensation.
4 Patrimonial (pecuniary) loss

IV.1 Definition of patrimonial loss

 Patrimonial loss is defined as the detrimental impact on any patrimonial interest
that the law considers worthy of protection.
 Patrimonial loss includes:
o The loss or reduction in value of a positive asset in a person’s estate.
o The creation or increase of a negative element (e.g., a patrimonial debt).

IV.2 A person’s patrimony (estate)

 Since patrimonial loss is defined in terms of patrimony, a proper understanding of
“patrimony” is essential.
 There is no universally accepted definition of patrimony.
 According to the juridical concept of patrimony, it includes:
o All patrimonial rights (subjective rights with monetary value).
o Expectations to acquire such rights.
o Legally enforceable obligations or expectations with monetary value.
 Alternatively, patrimony may be viewed as a factual and economic concept: everything
a person possesses with monetary value.
 In Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657,
patrimony was defined as a universitas of rights and duties, aligning with the juridical
approach.
 For the assessment of patrimonial damage, the juridical doctrine of patrimony is
preferred.

 Reinecke identifies two key components of patrimony

(a) Positive elements of patrimony
 These include:
o Real rights, immaterial property rights, and personal rights (e.g., the
right to a contractual performance).
o Expectations of patrimonial benefits, provided these are legally accepted
and protectable (i.e., realistic chances of acquiring patrimonial rights in the
future).
 The monetary value is determined by:
o The market value of the object.
o Any limitations on the rights.

b. Negative elements of patrimony

 A typical example is a monetary debt.
 Patrimony is reduced by:
o The creation, acceleration, or increase of a liability.
 Even if the debtor has no assets, the existence of a debt constitutes damage.
 Expectation of future debt (e.g., medical bills due to a delict) also forms part of
patrimony.
 The value or utility of these elements is always expressed in money, using the
correct value criterion at the appropriate time.

4.5 The assessment of patrimonial damage

 There are different views on how to assess patrimonial damage, but it is accepted that a
comparative method is necessary.

4.5.1 The sum-formula approach

  The sum-formula doctrine is defined as follows: Damage consists in the
negative difference between the person’s actual current patrimonial position
(after the delict) and the hypothetical patrimonial position that would have
existed if the delict had not occurred.
 This method entails a comparison between an actual patrimonial sum and a
hypothetical one.
 The Supreme Court of Appeal recognises this test.
 The use of a hypothetical patrimonial position is crucial to account for:
o Prospective damage
o Loss of profit
o Other forms of potential future damage
 The sum formula is sometimes criticised, especially regarding its assumptions and the
speculative nature of hypothetical calculations.

4.5.2 A concrete concept of damage

 South African courts do not always apply the sum formula in its classic form.
 The Appellate Division has used an alternative test:
o The difference between the patrimonial position before and after the
wrongful act.
 This version focuses on actual values instead of hypothetical alternatives.
 This aligns with the view of Van der Walt, who suggests:
o The comparison should be between what was (before the delict) and what
is (after the delict).
o The comparison should not involve a hypothetical situation.
 This concrete concept of damage reflects actual legal practice and is more practical
in typical cases.
 However, in certain scenarios, the sum-formula remains necessary:
o Prospective loss
o Misrepresentation
o Loss of profit
 It is suggested that the concrete method be adopted in most cases, except for those
requiring a hypothetical comparison.

4.5.3 Time for the assessment of damage

 A key practical issue is identifying the correct time to assess damage.
 According to current authority, the date of the delict’s commission is generally the
decisive moment for assessment.
 This includes future loss as well.
 The date of delict is the point at which all the elements of a delict are present.
 As for damage:
o It is not necessary that the full extent of damage has occurred.
o If a series of harmful consequences follow from the delict, the date when the
first damage manifests is used.
 Events occurring between the commission of the delict and the trial date may still be
considered in calculating the full extent of damage.

4.6 Prospetive patrimonial damage (lucrum cessans)

4.6.1 General
 Prospective damage is significant in legal practice but creates theoretical and
practical difficulties.
 Practical problems arise from the speculative nature of quantifying future events due
to the lack of empirical evidence.
 Theoretical issues include defining prospective loss and whether it refers only to
future events or also the frustration of current expectations.
 The "once and for all" rule is key: a plaintiff has only one chance to claim damages for
both present and future loss from a single cause of action.

4.6.2 Definition and nature of prospective loss

 Practically, prospective damage is patrimonial or non-patrimonial loss that is likely to
materialise in the future due to a past delict.
 Theoretically, it is defined as:
o The frustration of an expectation of gaining a patrimonial asset, or
o The creation of an expectation to incur a future debt.
 There are three theories on the nature of prospective loss:
1. It is damage not yet suffered at the time of assessment.
2. It is the frustration of an expectation (e.g., benefit lost or debt created).
3. It has both a prospective and a current dimension—the harm may show in
the future, but its basis lies in present impairment of rights.
4.6.3 Forms of prospective loss
 Recognised forms include:
a. Future expenses resulting from a delict.
b. Loss of future income.
c. Loss of business or professional profits.
d. Loss of prospective support (e.g., from a breadwinner).
e. Loss of a chance to gain a benefit.
4.6.4 Requirements for claiming prospective loss
 A claim cannot be based only on prospective loss; some actual damage must
already exist.
 Damages are granted for both current and future loss only if a valid cause of action
exists.
 Criticism exists of this principle, but it is established that:
 If X is exposed to radiation due to Y’s negligence, and there is only a 30% chance
of future illness, X cannot claim until the illness manifests and damage occurs.

4.7 The “once and for all” rule

4.7.1 Formulation and implications
 A plaintiff must claim all damages (past and future) from a single cause of action in
delict, including cases of strict liability.
 Key implications:
(a) Prescription starts when a cause of action accrues, i.e., all delictual elements
are present, including some form of damage.
 Plaintiff must claim within three years for all present and future loss.
(b) A plaintiff cannot later sue again for additional damages based on the same
cause of action.

4.7.2 Exceptions to the rule

a. In nuisance cases, the plaintiff may sue each time new damage occurs from a
continued nuisance.
b. In subsidence cases (e.g., damage from excavation), each incident creates a new
cause of action.
c. In continuing wrongs, a series of claims may be brought as damage arises.
d. Under the Road Accident Fund Act 56 of 1996, the Fund undertakes to pay future
medical expenses as they arise—thus creating exceptions to the rule.

4.7.3 Causes of action

 Two approaches:
 o Single cause theory: Every unlawful act gives rise to one cause of action,
regardless of how many types of damage result.
o Facta probanda theory: A cause of action arises only when all elements of
delict are present (including damage).
 This theory is preferred by most modern courts and authors.
 A cause of action accrues when the first damage appears, even if all the harm has not
yet occurred.
 To test whether different claims fall under one cause of action:
o Use single cause theory: one unlawful act = one cause.
o Use facta probanda approach: compare factual elements; if there's no
significant difference, then the claims are under one cause of action.
4.7.4 Examples
 Assault causing pain, humiliation, and medical expenses = one cause of action.
 Collision between a bicycle and pedestrian, causing injury and bicycle damage = one
cause of action.
 Motor vehicle accident:
o Damage to the car: claim from the wrongdoer.
o Injury-related loss: claim from Road Accident Fund = two separate causes.
 Parent and child injured in crash = one cause for their combined medical expenses.
 Car accident causes death of husband, injury to wife, and car damage = three
causes: car damage, wife’s injuries, wife’s dependency claim.
 Poisoning cattle over several months = one cause of action from date of first death
(July 1980). If action started in Nov 1983, it is prescribed.
 New medical complications after claim finalised = no further claim is allowed.
 Unlawful detention and separate assaults = separate causes of action.

4.8 The collateral source rule and compensating advantages (res

inter alios acta)
4.8.1 General
 A damage-causing event may also bring benefits to the plaintiff (e.g., donations or
insurance)
 The key question: Should benefits reduce damages owed by the wrongdoer?
 Two options:
1. Wrongdoer pays full damage regardless of any benefits received.
2. Benefits are deducted, meaning someone else's donation or payment reduces
the wrongdoer’s liability.

4.8.2 Summary of positive law

 Some benefits are treated as res inter alios acta (collateral and irrelevant to the
wrongdoer) and are not deducted from damages.
 Benefits that are not deducted:
a. Insurance payouts (indemnity and life).
b. Medical fund or sick leave payments at the employer's discretion.
c. Repairs covered by a hire-purchase contract.
d. Insurance or pension money paid to dependants of a deceased breadwinner.
e. Payments from medical schemes (insurance-like).
f. Discretionary pension payments.
g. Donations or benevolent gifts (ex gratia).
h. Income tax savings on lost income.
i. Military pensions under Act 84 of 1976.
j. Profitable contracts resulting from the delict.
k. Widow’s earning capacity.
l. Widow’s remarriage, unless it fully restores her financial position.
m. Adoption of a child claiming loss of support.
 n. Child-support and foster grants under the Social Assistance Act 13 of 2004.
o. Solatium (money paid for emotional suffering).

 Benefits that are deducted:

a. Medical benefits or sick leave owed contractually or by statute.
b. Contractual or statutory pensions (including disability pensions).
c. Payments from the Compensation Commissioner.
d. Free provincial medical care.
e. Marriage prospects of a widow (if financial restoration occurs).
f. Income tax savings from lost income.
g. Payments from defendant’s insurer or the wrongdoer himself.
h. Savings on living expenses due to injury.
i. Accelerated inheritance from deceased’s estate.
j. Foreign welfare received because of the delict.
4.9 Mitigation of Loss
 It is a general principle of the law of delict that a plaintiff cannot recover damages for
loss that could reasonably have been avoided, even if it resulted factually from the
defendant's wrongful conduct.– This relates to the duty to mitigate.
 The principle involves two types of omissions:
o A failure to limit the initial loss, or
o A failure to prevent further or accumulating loss.
 The following basic principles apply:
(a) The plaintiff is required to take all reasonable steps to limit damage caused
by the defendant’s delict.
– This duty begins as soon as the plaintiff suffers loss and becomes aware (or
ought to be aware) of the need to mitigate it.
– If the plaintiff does not take such steps, they may not recover damages that
could have been avoided.
– The standard of reasonableness is low, because the defendant is already
blameworthy.
(b) A plaintiff who takes reasonable steps to limit the damage may also recover
damages for any loss caused by those mitigation steps.
(c) If the plaintiff’s mitigation efforts reduce their damages, then the defendant is
liable only for the reduced amount, even if the plaintiff acted beyond what was
required.
(d) The onus is on the defendant to prove that the plaintiff failed to mitigate their
loss.
– Once such failure is proved, the plaintiff must prove what their loss would have
been if reasonable steps had been taken.

5 Non-patrimonial (Non-pecuniary) Damage or Injury to

Personality
5.1 Definition of Non-patrimonial Loss
 Non-patrimonial loss is the detrimental impact or factual disturbance of personality
interests that are protected by law but do not affect a person’s patrimony (estate).
 This form of damage is concerned with non-economic harm, unlike patrimonial loss
which relates to monetary value.
5.2 Interests of Personality
 Just as patrimonial damage is measured by a reduction in patrimonial value, non-
patrimonial damage is assessed through harm to personality interests.
 The rights of personality serve as an indication of these protected interests, and
therefore also of non-patrimonial loss.
 The following interests of personality are protected:
o Physical and mental integrity
o Liberty
o Reputation
o Dignity
o Privacy
o Identity
o Feelings
 UNIT 25: Delictual remedies
1 General

1.1 Transmissibility of Actions

 The South African law of delict is based on three key actions:

o The actio legis Aquiliae

o The actio iniuriarum
o The action for pain and suffering
 The actio legis Aquiliae is both actively and passively heritable, and the claim is also
freely cedable.
– The stage of litis contestatio (closing of pleadings) does not affect its transmissibility.
 The actio iniuriarum and the action for pain and suffering are traditionally not
transmissible (i.e., not heritable or cedable) before litis contestatio.
– These claims lapse if the plaintiff or defendant dies before litis contestatio.
– They are also not cedable, at least not before litis contestatio.
 In Nkala v Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC
as Amici Curiae) 2016 (5) SA 240 (GJ), Mojapelo DJP and Vally J held that the
common law should be developed to allow transmissibility of actions for general (non-
patrimonial) damages:

1. A plaintiff who dies before litis contestatio may still have their action continued for
the benefit of their estate.
2. The defendant remains liable for general damages even if the plaintiff dies.
3. The plaintiff’s estate will benefit from the claim.
4. If the defendant dies before litis contestatio, the defendant’s estate remains
liable for general damages.

 In a minority judgment, Windell J argued that this rule should only apply to class
actions and not general pain and suffering cases.

1.2 Additional Delictual Actions from Roman-Dutch Law

 These actions are based on liability without fault:

o Actio de pauperie, actio de pastu, actio de feris – damage caused by

animals
o Actio de effusis vel deiectis, actio positi vel suspensi – damage caused by
falling or thrown objects from buildings
o Condictio furtiva – damage caused by loss of a stolen item
o Actions for damage caused by innkeepers, stable-keepers, and owners of
neighbouring property, such as:

 Actio aquae pluviae arcendae

 Interdictum quod vi aut clam

 Other Roman-Dutch delictual remedies include:

o Actio doli (fraud)

o Actio quod metus causa (fear)
o Actio ad exhibendum
 The continued recognition of these actions is questionable, as most cases of wrongful
and culpable conduct can be subsumed under the Aquilian action.
 The amende honorable (a Roman-Dutch apology and compensation remedy) has been
resurrected in South African law.
 Group or class actions in terms of section 38 of the Constitution are also recognised
as delictual remedies.

3 The Interdict
 The interdict is a preventative remedy, not aimed at compensation but at stopping or
preventing wrongful conduct.
 There are two forms of interdicts:
o Prohibitory interdict: Stops the wrongdoer from committing or continuing a
wrongful act.
o Mandatory interdict: Requires the wrongdoer to perform positive action to stop
continuing wrongfulness.
 Since the purpose is prevention and not punishment, fault is not a requirement for
granting an interdict.
 The courts require three elements for granting an interdict:
1. There must be an act by the respondent.
– This may already have commenced or be threatening.
– It may be a commission (commissio) or omission (omissio).
2. The act must be wrongful, which in this context means that it must threaten or
infringe a “clear right” (liquide regt) of the applicant.
– A “clear right” usually refers to a recognised subjective right.
– Wrongfulness may also lie in the breach of a legal duty, even if no
subjective right is proven.
3. There must be no other ordinary remedy available that would stop the
(continuing) wrongful conduct.
 Interdicts may be:
o Final: Permanently prohibit the wrongful act.
o Interim (pendente lite): Temporarily prohibit it until the conclusion of trial
proceedings.

4 Concurrence of Remedies

3.1 Introduction

 A single act can give rise to multiple remedies, either:

o Different remedies (where separate claims arise from one act), or

o Alternative remedies (where one must choose between a delictual or
contractual remedy).

 Remedies may be similar (e.g., multiple delictual actions) or dissimilar (e.g., a

delictual and a contractual action).

3.6 Exclusion Clauses

 Parties in a contract may limit both contractual and delictual liability by including
an exclusion clause.
 The effect of the clause depends on its interpretation.
– This in turn determines what remedies the injured party will have.

5 Prescription of Remedies
 According to the Prescription Act 68 of 1969, a delictual debt prescribes three years
after it arises.
 Prescription begins when:
o All the elements of a delict are present.
o The creditor is aware, or should reasonably be aware, of:
 The identity of the wrongdoer, and
 The facts giving rise to the claim.
 If the creditor could have acquired such knowledge by exercising reasonable care,
they are deemed to have such knowledge.
 Prescription may be suspended or interrupted, according to the rules in the Act.

UNIT 26: Joint wrongdoers

1 General

 Damage may be caused by more than one wrongdoer. These persons are referred to as
joint wrongdoers.

 At common law, a distinction was made between:

o Joint wrongdoers: persons who consciously co-operated in committing a delict.

o Concurrent wrongdoers: persons whose independent wrongful conduct
contributed causally to the same harmful result.
 This distinction led to different rules of liability, but it was abolished by the
Apportionment of Damages Act 34 of 1956.
 Under the Act, joint wrongdoers are defined as persons who are jointly or severally
liable in delict for the same damage.
 A person can only be sued as a joint wrongdoer if they are delictually liable to the
plaintiff.
 The Act applies to both negligent and intentional conduct by joint wrongdoers.
 Joint wrongdoers are liable in solidum for the full damage.
– The plaintiff may sue any one of them for the entire amount.
 Joint wrongdoers may be sued in the same action, and the court may:
o Order joint or several liability,
o Provide that payment by one wrongdoer absolves the others from liability to the
plaintiff.
 If all joint wrongdoers are before the court, the court may:
o Apportion damages based on their respective degrees of fault,
o Give judgment against each for their proportionate share.
 If a defendant notifies another joint wrongdoer before litis contestatio, and pays full
damages, that defendant may claim contribution (recourse) from the other wrongdoer.
 The recourse amount is based on relative degrees of fault.
 If the plaintiff recovers only part of the damages from one wrongdoer, they may sue the
others for the balance.
 If a joint wrongdoer pays more than their share, they may exercise a right of recourse
against the other wrongdoers.

2 Special Cases

2.1 Prejudice suffered by a spouse due to the conduct of the other spouse and a third
party

2.1.1 Marriage in Community of Property

 Before 1971, spouses married in community of property:

o Could not commit a delict against each other,
o Could not sue one another ex delicto,
o Were therefore not regarded as joint wrongdoers.
 The rationale was that both spouses shared a joint estate, so compensation would be
meaningless (taking from one pocket to fill the other).

 As a result:

o The innocent spouse could recover full damages from the third party.
o The third party could not claim recourse against the guilty spouse.
o The third party also could not reduce liability under section 1(1)(a) of the
Apportionment of Damages Act because:
 The plaintiff had no fault, and
 The fault of the guilty spouse could not be imputed to the innocent spouse.
 The Apportionment of Damages Amendment Act 58 of 1971 changed this:
o A spouse in community of property may now be considered a joint wrongdoer
with a third party.
o The innocent spouse may still claim full patrimonial or non-patrimonial damages
from the third party.
o The third party now has a right of recourse against the guilty spouse via the
joint estate.
 However, the innocent spouse still may not sue the guilty spouse, due to the
existence of the joint estate.
 The Matrimonial Property Act 88 of 1984 further clarified:
o Non-patrimonial damages awarded to a spouse are separate property and do
not form part of the joint estate.
o A third party cannot recover from this compensation when exercising recourse.
o Patrimonial damages, however, do fall into the joint estate and are subject to
recourse claims.
 In Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus
curiae) 2006 (4) SA 230 (CC):
o It was held that the innocent spouse can now sue the guilty spouse for both
patrimonial and non-patrimonial loss.
o This is because such compensation is separate property, and the objection
regarding the joint estate no longer applies.
 If a spouse married in community of property is delictually liable, then:
o Compensation and costs must first be recovered from their separate estate.
o If the joint estate is used, there must be an adjustment in favour of the innocent
spouse upon dissolution of the estate.
2.1.2 Marriage Out of Community of Property

 Since each spouse has their own estate, they may sue one another ex delicto.
 One spouse may be considered a joint wrongdoer with a third party against the other
spouse.
 The Apportionment of Damages Amendment Act 58 of 1971 and the Matrimonial
Property Act 88 of 1984 do not alter this position.

2.2 Prejudice Due to Death or Injury of another Person

2.2.1 Prejudice as a Result of Death

 This covers cases where a dependant suffers loss of support due to both the
deceased and a third party’s conduct.
 Before the 1971 amendment, the common law last opportunity rule applied:
o If the deceased breadwinner had the last opportunity to avoid death, the
dependants had no claim against the third party.
o If the third party had the last opportunity, the claim was fully satisfied.
 The 1971 amendment to the Apportionment of Damages Act:
o Abolished the last opportunity rule,
o Deemed the third party and the deceased estate as joint wrongdoers.
 The dependant may claim full damages from either party,
o The one who pays may exercise a right of recourse against the other.
 The Act allows the court to:
o Subtract any benefit derived by the plaintiff from the deceased estate under
testate or intestate succession from the loss of support.
 If the third party pays in full, they may claim recourse from the estate.
 However, the Act also provides that:
o The prejudiced party may not be deprived of any inheritance benefit if such
deduction is made.

2.2.2 Prejudice as a Result of Injury

 Example: A breadwinner’s duty of support increases due to injury to a dependant,

and both the dependant and a third party contributed to the injury.
 Before 1971, courts ruled that a child could not be a joint wrongdoer with a third party
against the father.
 The Apportionment of Damages Act now considers both the child and the third
party as joint wrongdoers.
 The breadwinner may sue either wrongdoer, and the one who pays may claim
recourse.
 In practice, the breadwinner will usually sue the third party, not the child.
 Another example: A master suffers harm due to injury to a domestic servant.
– If both the servant and a third party contributed to the injury, they are joint
wrongdoers.
 Problematic case: A dependant suffers loss of support due to injury to the
breadwinner, caused by both the breadwinner and a third party.
 In De Vaal v Messing 1938 TPD 34, the court held:
o The dependant had no claim, as the breadwinner could still sue for future loss
of income.
 However, this is not valid in all cases.
– If the breadwinner is 80% at fault, he may only recover 20%, which may be
insufficient to support the dependant.
 The current wording of the Apportionment of Damages Act covers this situation:
o The dependant now has a claim,
o The breadwinner and the third party are deemed joint wrongdoers.

UNIT 27: Forms of damnum iniuria datum: psychological

lesions (emotional shock)
3 Psychological lesions (emotional shock)

 A psychological lesion (also referred to as psychiatric injury or psychological

disturbance) is defined as a recognisable harmful infringement of the brain and
nervous system.
 Psychiatric evidence is generally required to prove the existence of a psychological
lesion.

 Psychological injury may be caused by:

o Nervous shock
o Fright
o Other forms of mental suffering
 Although most South African cases involve emotional shock, other psychological
injuries not caused by emotional shock may also be actionable.
 In Barnard v Santam Bpk 1999 1 SA 202 (SCA), Van Heerden DCJ remarked that the
term "nervous shock" is:
o Obsolete
o Lacking any specific psychiatric meaning
o Potentially misleading
o The relevant inquiry should be whether the plaintiff suffered a recognisable
psychological lesion.
 Emotional sorrow, sadness, or grief—such as that caused by the death of a child—is
not actionable unless it results in a detectable psychiatric injury.
 In Road Accident Fund v Sauls 2002 (2) SA 55 (SCA), Olivier JA confirmed that the
plaintiff must prove a detectable psychiatric injury, not merely nervous shock or
trauma.
 In Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA
769 (A):
o The court established that impairment of personality and patrimonial loss
caused by psychiatric injury or emotional shock—if caused wrongfully and
negligently or intentionally—can ground claims for pain and suffering and an
actio legis Aquiliae.
o Before Bester, South African law lacked clear principles in this area, and courts
relied on English law.

Artificial restrictions derived from English law:

1. The psychological disturbance had to originate from a physical injury or cause

physical harm.
– This relates to wrongfulness.
2. The aggrieved party must have been in personal danger of being physically injured.
– This relates to negligence or legal causation.
(a) Wrongfulness

 The requirement that emotional shock be linked to physical injury was meant to signify
an infringement of the right to physical integrity.
 In Bester, the court rejected the artificial distinction between physical and
psychological harm.
 Botha JA held that the brain and nervous system are part of the physical body, and
thus:
o A physical injury is not required to establish liability.
 Therefore, psychological harm is sufficient to constitute a wrongful infringement of
personality rights.
 However, not all emotional shocks are actionable.
– Trivial emotional shock of brief duration or with no material impact is not
actionable.
– This applies the maxim: de minimis non curat lex.
 For liability to arise, the psychological harm must be reasonably serious.

(b) Negligence and legal causation

 The requirement of personal danger was also rejected in Bester.

 It was replaced by the test of reasonable foreseeability of psychological harm.
 Two approaches arise depending on the sequence of consequences:
1. If psychological injury is the only or first harm, then:
 The issue is negligence.
 Foreseeability and preventability of the harm must be considered.
2. If psychological injury is a subsequent or more remote harm, and negligence
is already established for another act:
 The issue becomes legal causation, not negligence.
 In Barnard, both the court a quo and the Supreme Court of Appeal treated
foreseeability of the psychological lesion as a question of negligence, not legal
causation.
 This approach is criticised because:

o It does not make sense to assess preventability when negligence is already

established.
o It wrongly equates negligence with foreseeability, reducing negligence to a
single-factor test.
 The proper view is that foreseeability of remote consequences relates to legal
causation, not negligence.

Application of the foreseeability test

 Regardless of whether the test is applied to negligence or legal causation, the court
must assess, in each case, whether the psychiatric injury was reasonably
foreseeable.

 Relevant factors include:

1. Whether the psychological lesion was caused by or connected with a physical

injury.
2. Whether the plaintiff was in personal danger of being injured.
3. Whether the plaintiff was informed of the death or injury of a close relative.
 4. Whether the plaintiff personally witnessed the death or injury of someone with
whom they had a close relationship.

Thin skull rule (talem qualem rule)

 If serious emotional shock was reasonably foreseeable, then:

o The wrongdoer is liable for all resulting mental or physical harm, even if
those consequences were not foreseeable.

 According to this rule, the wrongdoer must take the victim as they find them.
 A defendant cannot escape liability by proving that the plaintiff had a particular
vulnerability to psychological harm.

Emotional shock: definition and examples

 Emotional shock is a sudden painful emotion or fright, triggered by awareness or

observation of a disturbing event, causing emotions such as fear, anxiety, or grief.

 Examples of emotional shock and relevant cases:

 Fear for own safety:

o Hauman v Malmesbury Divisional Council 1916 CPD 216
o Creydt-Ridgeway v Hoppert 1930 TPD 664
 Fear for safety of another:
o Bester v Commercial Union (brother)
o Sueltz v Bolttler 1914 EDL 176 (spouse)
o Els E & J v Bruce 1922 EDL 295 (spouse)
o Hambrook v Stokes Bros 1925 1 KB 141 (children)
 Fear for safety of property:
o Masiba v Constantia Insurance Co Ltd 1982 4 SA 333 (C) (breadwinner died of
stroke upon witnessing car accident involving his vehicle)
 Witnessing a gruesome accident:
o Masiba
o Mulder v South British Insurance Co Ltd 1957 2 SA 444 (W) (plaintiff saw son’s
head crushed)
o Lutzkie v SAR & H 1974 4 SA 396 (W) (plaintiff saw passenger die in bus
accident)
 Learning of death of a relative:
o Waring and Gillow Ltd v Sherborne 1904 TS 340 (spouse)
o Layton v Wilcox and Higginson 1944 SR 48 (child)
o Barnard v Santam Bpk (child)
 Experiencing disturbing events:
o Els v Bruce (threats and insults)
o Boswell v Minister of Police 1978 3 SA 268 (E) (defendant falsely claimed to
have killed plaintiff’s cousin)
o Fourie v Naranjo 2008 1 SA 192 (C) (plaintiff attacked by dog)
o N v T 1994 1 SA 862 (C) (defendant raped plaintiff’s 8-year-old daughter)
o Minister of Justice v X 2015 1 SA 25 (SCA) (rape of 5-year-old daughter)
o Majiet v Santam Ltd [1997] 4 All SA 555 (C) (mother found son’s dead body)
o Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W)
(babies were swapped at birth)
 o Mbhele v MEC for Health, Gauteng 2016 ZASCA 166 (forced to identify stillborn
baby)
o Komape v Minister of Basic Education 2018 ZALMPPHC 1 (claim rejected)
o Western Cape Dept of Social Development v Barley 2019 3 SA 235 (SCA)
(psychiatric injury claimed without evidence)

UNIT 28: Injury or death of another person; pure

economic loss; negligent misrepresentation;
interference with a contractual relationship; unlawful
competition; manufacturer’s liability
4 Pure Economic Loss

 The Aquilian action may be used to claim damages for pure economic loss.
(Neethling & Potgieter)
 Pure economic loss refers to patrimonial loss that:
o Does not result from damage to property or impairment of personality, or
o Does result from such damage, but not involving the plaintiff’s own
property or person, or where the defendant did not cause such damage or
injury.
 In order to establish liability for pure economic loss, all general delictual requirements
must be met.
 For pure economic loss, the key element requiring special attention is wrongfulness.

4.1 Wrongfulness and Pure Economic Loss

 In South African law, wrongfulness may lie in:

o The infringement of a subjective right, or
o The breach of a legal duty (also known as norm or duty violation).
 Unlawful competition and interference with contractual relations are examples of
infringements of subjective rights where pure economic loss is involved.
– These often involve the right to goodwill or to personal rights.
 However, courts generally base wrongfulness for pure economic loss on a breach of
legal duty, not on subjective rights.
 It is important to remember that causing pure economic loss is not prima facie
wrongful.
– There is no general duty in law to prevent another’s pure economic loss.
 Therefore, courts must evaluate in each case whether a legal duty to avoid pure
economic loss existed.
 The test for this is the boni mores or reasonableness criterion:
o Courts must make a value judgment based on all relevant facts and policy
considerations.
 This policy-based judgment is used to control the scope of delictual liability and forms
the core of the "duty of care" concept.

4.2 Factors Relevant to Determining Legal Duty for Pure Economic Loss

The courts consider the following (non-exhaustive) list of factors when applying the
boni mores test to determine the existence of a legal duty:

(i) Knowledge
 If the defendant knew or foresaw that their negligent conduct would cause damage
to the plaintiff, it strongly indicates a legal duty

(ii) Reasonable foreseeability

 The greater the foreseeability of harm, the greater the possibility of a legal duty
existing.
– This follows the general negligence principle.

(iii) Practical measures

 The existence of practical steps that the defendant could have taken to prevent the
loss is relevant.

 Courts consider:

o The success probability of such steps.

o The costs vs benefit ratio.
o The ease with which these steps could have been implemented.

(iv) Professional knowledge and competence

 If the defendant exercises a profession or calling and possesses specialised skill or

knowledge, they are expected to avoid causing financial loss to others.
– This is especially relevant in professional services.

(v) Extent of risk

 Courts consider the degree of risk of the plaintiff suffering economic loss.
o Higher risk indicates a need for protection and supports the imposition of a
legal duty.

(vi) Extent of loss / Indeterminate liability

 If the situation may result in indeterminate or overwhelming liability or lead to a

multiplicity of claims, courts are less likely to impose a legal duty.
 Such liability could be socially disruptive, and in these cases, courts prefer to limit
liability.

(vii) Statutory provision

 If a statute expressly or implicitly requires the defendant to prevent economic loss,

this may support the existence of a legal duty.
 Whether such a duty exists depends on the intention of the legislature, interpreted
according to normal principles.

(viii) Plaintiff’s vulnerability to risk

 If the plaintiff could have protected themselves (e.g., through insurance or
contractual terms), courts are less likely to impose a duty.
 If the plaintiff is unable to protect themselves, courts are more likely to recognise a
duty.

(ix) Miscellaneous policy factors

 Courts may also consider:

o The burden placed on others in the defendant’s position.

o Whether the defendant would face an unfair restriction in their activities.
o Rules from other branches of law that may apply.
o Public-policy reasons in favour of or against imposing liability.
o The risk of a serious gap (lacuna) in the law if a legal duty is not recognised.

4.3 Disappointed Beneficiary Actions

 In BOE Bank Ltd v Ries 2002 (2) SA 39 (C), the court recognised that a
disappointed beneficiary may, in principle, have a delictual claim.
 To succeed, the beneficiary must satisfy all ordinary delictual requirements,
especially wrongfulness.

 A legal duty to avoid economic loss to a beneficiary may arise where:

1. There is a valid professional contract between the defendant and

testator, placing a duty on the defendant to exercise proper care to ensure a
testamentary benefit accrues.
2. There is a delictual legal duty on the defendant not to act wrongfully (e.g.,
by misrepresentation) in a way that deprives the beneficiary of that benefit.

UNIT 29: Forms of iniuria: Rights relating to physical

integrity; the right to fama or good name; rights
relating to dignitas
3.2.1 Definition

 Defamation is the intentional infringement of another person’s right to their good

name.
 It is the wrongful, intentional publication of words or conduct concerning another that
injures their reputation, status, or good name.

 The elements of defamation include:

1. Act: publication of words or behaviour.

2. Injury to personality: the defamatory effect.
3. Wrongfulness: infringement of the personality right.
4. Intent: animus iniuriandi.
 Truth is not a defence unless paired with public interest; even true defamatory
statements can be actionable.

3.2.2 Elements
[Link] Publication

 Publication is required because reputation is based on the opinion of others.

 Publication occurs when the defamatory content is made known to at least one third
party other than the plaintiff.

 Exceptions to publication:

oCommunication to a person unaware of the defamatory meaning is not

publication.
o In Whittington v Bowles, communication between spouses was not
considered publication.
 The defendant is responsible for publication if:
o He foresaw or reasonably should have foreseen that a third party would
become aware of the statement.
 Responsibility for publication extends to:
o Those who repeat, confirm, or draw attention to the defamatory material.

[Link] Defamatory effect: Wrongfulness

 Wrongfulness is the infringement of the right to good name.

 To be wrongful, the publication must:
o Impair reputation.
o Be objectively unreasonable or contra bonos mores.
 In Le Roux v Dey, a two-stage inquiry was established:

1. Determine the ordinary meaning of the statement (objective test using the
reasonable reader).
2. Decide if that meaning is defamatory (would the reasonable person think the
reputation was harmed?).
 The reasonable person test is key and reflects the boni mores of society.

o (a) The reasonable person is balanced, not hypersensitive.

o (b) They reflect constitutional values.
o (c) They represent society in general, not a specific group.
o (d) Interpretation must consider context.
o (e) Verbal abuse is usually not defamatory.
o (f) Words can have primary or secondary (innuendo) meanings; innuendo
must be pleaded and proven.
o (g) If words have multiple meanings, the court chooses the non-defamatory one
if both are equally plausible.
o (h) Public figures must be more tolerant of criticism.
 The plaintiff must prove:
o That the statement refers to them (using the reasonable person test).
o That their good name was impaired.

[Link] Grounds of Justification

 Once prima facie wrongfulness is proven, the onus shifts to the defendant to rebut it
by proving a ground of justification.
 There is no numerus clausus of justification grounds.

[Link].1 Privilege
 Qualified privilege requires a reciprocal duty or interest between speaker and hearer.
 The defendant must show:
o The assertions were relevant to the duty or interest.
 Even then, protection is provisional:
o Plaintiff may rebut by proving malice.
 Whittington v Bowles reaffirms communication between spouses is not publication.
 Courts do not recognise a general privilege between newspapers and the public.

Categories of privilege:

(a) Judicial or quasi-judicial proceedings:

 Applies to all participants.

 The statement must be relevant to the issue.
 Still rebuttable if unsupported by reasonable grounds or motivated by malice.

(b) Privileged reports:

 Refers to publications about court, parliament or public body proceedings.

 Must be a fair and substantially accurate report.
 Plaintiff can rebut with malice.

[Link].2 Truth and Public Interest

 If the defendant proves the statement is true and in the public interest, it
negates wrongfulness.
 Only substantial truth is required (not literal).
 Public interest is judged by boni mores, including:
o Time, manner, and occasion of the publication.
o Old offences or profit-driven character attacks may not qualify.
 Malice does not invalidate this defence.

[Link].3 Media Privilege (Reasonable Publication of Untruth)

 Allows reasonable publication of false defamatory material by the media.

 Factors to consider:
o Public interest, not mere curiosity.
o Whether the plaintiff is a public figure.
o Nature, tone, and extent of allegations.
o Source reliability and verification steps taken.
o Opportunity given to the subject to respond.
o Urgency, distribution reach, and malicious motive.
 Based on boni mores and reasonableness.

[Link].4 Political Privilege

 Similar to media privilege, but applies to political discourse.

 Requires:
o Reasonable belief in the truth of the statement.
o The same reasonableness criteria as media privilege apply.

[Link].5 Fair Comment

  Applies when defamatory content is fair comment on true facts in the public
interest.
 Four requirements:
(a) Must be comment, not fact.
(b) Must be fair, based on boni mores, and be a bona fide opinion.
(c) Based on substantially true facts.
(d) Facts must be in the public interest.
 Malice can negate the defence even if criteria are met.

[Link].6 Private Defence, Provocation, and Consent

 These traditional delict defences can also apply to defamation where relevant.

[Link].7 Reasonable Suspicion of Shoplifting

 In Pieterse v Clicks Group Ltd, a new justification was accepted:

Reasonable suspicion of shoplifting.
 The accusation is prima facie wrongful if defamatory or insulting.
 The presumption of wrongfulness can be rebutted if:
o There was a reasonable suspicion.
o The defendant’s conduct was proportional and reasonable in the
circumstances.
 This reflects a balancing of rights:
o Property rights of the store vs. reputation, dignity, freedom, and privacy of
the accused.

[Link] Fault

[Link].1 Animus iniuriandi

 Initially, South African courts, influenced by English law, wrongly undermined

animus iniuriandi (intent to defame) as a requirement in defamation cases.
 This changed from the 1960s with decisions like:
o Maisel v Van Naeren
o The trilogy of Appellate Division cases.
 Today, with few exceptions, animus iniuriandi is an essential requirement for
defamation.
 Negligence alone is usually insufficient for liability in defamation.
 Animus iniuriandi means a mental disposition to:
o Will the harmful consequences, and
o Know that the consequence is wrongful.
 If either element (will direction or knowledge of wrongfulness) is absent, there is no
intent to defame.
 The plaintiff must plead the existence of animus iniuriandi, but does not have to
prove it.
 If:
o The statement is defamatory, and
o It refers to the plaintiff,
then:
o There is a presumption of wrongfulness, and
o A presumption of intent (animus iniuriandi).
 The defendant bears the burden of rebutting this presumption by proving the
absence of:
 o Will direction, or
o Consciousness of wrongfulness.
 Grounds excluding intent include:
o Mistake
o Jest

[Link].2 Grounds excluding intent

(a) Mistake

 If the defendant bona fide believes their conduct is lawful, they lack
consciousness of wrongfulness, and thus intent is absent.
 This mistake rebuts the presumption of animus iniuriandi.
 The test is subjective (based on the actual belief of the defendant).
 Therefore, requiring absence of negligence or reasonableness is incorrect.
 If the mistake was unreasonable, liability may still arise under negligence.

(b) Jest

 If the defendant intended to joke, and not to harm the plaintiff’s reputation, then no
intent exists.
 However, courts use an objective test:
o Would a reasonable bystander think it was a joke?
 If yes → No liability
 If no → Liability, even if the defendant lacked intent to defame.

[Link].3 Negligence

 Although intent is generally required for defamation, negligence has been accepted
in specific cases:
1. Distributors/sellers of printed defamatory material (e.g. newspapers,
magazines).
2. Some courts accepted non-intentional but negligent mistakes by the press
as a basis for liability.
3. In National Media Ltd v Bogoshi, it was held that:
 Negligence is sufficient for defamation by the mass media.
4. Some judgments suggest negligence should apply to all defamation, not
just mass media cases.

4 Rights relating to dignitas

4.1 The right to dignity

 The right to dignity is recognised as an independent personality right within dignitas.

 Dignity includes a person’s subjective sense of self-worth or self-respect.
 An insult infringes dignity.
 Infringement can occur in many ways (e.g., insulting words, contemptuous behaviour).
 No publication to third parties is required—it is enough if the insult is directed to the
plaintiff.
 To be wrongful, the act must:
o Infringe the plaintiff’s subjective feelings of dignity, and
o Be contra bonos mores (against the legal norms).
 The standard for wrongfulness is:
 o The reaction of a reasonable person of ordinary intelligence and sensitivity.
 If the plaintiff felt insulted, and a reasonable person would also have, then:
o A presumption of wrongfulness arises.
 The defendant must then justify the conduct.
 If no justification is proven:
o A presumption of animus iniuriandi arises.
 If this presumption is not rebutted, then iniuria is established.

IV.3 The right to privacy

 The right to privacy is also an independent personality right under dignitas.

 Privacy means seclusion from the public, and the individual decides the extent of
this privacy.
 Invasion of privacy involves unauthorised acquaintance with the person or their
personal affairs.

Two forms of invasion:

1. Intrusion – outsider gets to know personal info (e.g., spying, reading private papers).
2. Disclosure – outsider reveals private info to third parties (e.g., media publishing
secrets).

 Recording private facts may also be a wrongful infringement.

 The test for wrongfulness is:
o The boni mores/reasonableness standard.
 If a justification is shown, wrongfulness is excluded.

Examples of wrongful intrusion:

 Entering a private home

 Secretly watching someone
 Reading private letters
 Eavesdropping
 Surveillance
 Taking blood samples without consent
 Searching someone
 Improper police questioning

Examples of wrongful disclosure:

 Revealing facts obtained through intrusion

 Revealing facts in breach of a confidential relationship
 Publishing private facts in the media or social media
 If wrongfulness is proved, a presumption of animus iniuriandi arises.
 If the defendant cannot rebut this presumption, the actio iniuriarum is available.

4.3 The right to identity

 The right to identity was recognised in Grütter v Lombard.

 Identity refers to a person’s unique traits that distinguish them from others.
 Includes life history, name, appearance, handwriting, voice, etc.
 Identity is infringed when such traits are used in a way that misrepresents the
person's true image.
Two forms of wrongful infringement:

1. False light tort – publicly presenting someone in a false way.

2. Appropriation tort – using someone's identity for commercial gain (e.g.,
advertising).

 These torts (from American law) guide South African development of the law of identity
infringement.
 Courts sometimes treat these under privacy, not identity.
 Boni mores remains the test for wrongfulness.
 If there is a justification, wrongfulness is excluded.
 Animus iniuriandi is treated the same way as for dignity and privacy violations..

UNIT 30: Forms of liability without fault: Damage

caused by animals; vicarious liability; Consumer
Protection Act 68 of 2008
2. South African Law

There are strong indications that strict liability is increasingly recognised in South African
law, although the fault principle still dominates the law of delict. Strict liability is
acknowledged through common law, case law, and legislation.

2.1.1 Damage Caused by Animals

[Link] Actio de pauperie

 The actio de pauperie allows a person to claim damages from the owner of a domestic
animal that causes damage.
 This action stems from Roman law (Twelve Tables) and is based on strict liability,
meaning fault is not a requirement.
 The Appellate Division in O’Callaghan v Chaplin confirmed the continued existence of
this action in South African law.

Requirements for liability:

a. The defendant must be the owner of the animal at the time of the damage. Mere control
is insufficient.
b. The animal must be domestic. This includes stock, horses, mules, bees, and meerkats,
but excludes other wild animals.
c. The animal must act contra naturam sui generis – that is, contrary to what is expected
of a well-behaved animal of its kind. The act must be spontaneous, arising from “inward
excitement or vice”.
d. The person or property injured must be lawfully present where the damage occurred.
Courts differ on whether this means having a lawful purpose or a legal right, with the
latter being the preferred test.

Defences:

 Vis maior, provocative or culpable conduct by the injured person or a third party, and
provocation by another animal.
 Volenti non fit iniuria may also be raised.
Relief available:

 Both patrimonial damages and satisfaction may be claimed.

 Liability must still pass the legal causation test.

[Link] Actio de pastu

 This action also stems from the Twelve Tables and applies where an animal causes
damage by eating plants.
 It also imposes strict liability on the animal’s owner.

 Requirements:
(a) The defendant must be the owner of the animal.
(b) The damage must be caused by the animal eating plants.
(c) The damage must be caused voluntarily by the animal.

Defences:

 Vis maior and fault of the injured person apply.

 However, fault of an outsider does not exclude liability.

[Link] Actio de feris

 Based on an edict of the aediles curules, this action prohibits bringing wild or
dangerous animals into public places.
 Anyone who violates this edict and whose animal causes damage is strictly liable, even
if not the owner.
 Recognised in Van der Westhuizen v Burger by the Supreme Court of Appeal.

Defence:

 Provocation of the animal.

[Link] Conclusion

 The three separate actions are unnecessarily complex.

 Abolishing the contra naturam requirement would allow the actio de pauperie to apply
more broadly, including to wild animals and plant damage.
 The current test personifies animals using a “reasonable animal” standard, which is
artificial and legally uncertain.
 Van der Merwe and Van der Walt propose that strict liability should be grounded in the
risk principle.
 According to the risk principle, liability should be based on control or possession (not
ownership), as the animal creates an increased risk to the community.
 Ponnan JA in support of Miller's view calls for a modern statute to replace the
outdated rules on animal liability.

2.1.7 Vicarious Liability

[Link] Introduction

 Vicarious liability is a form of strict liability where one person is held liable for the
delict of another based on a particular relationship.
 Key relationships include:
o Employer–employee
o Principal–agent
o Motor-car owner–driver
o State–public school

[Link] Employer–Employee

 An employer is strictly liable if an employee commits a delict within the scope of

employment.
 This was not part of Roman-Dutch law but was adopted from English law.

 Theories explaining the basis of liability:

o Culpa in eligendo (employer’s own fault).

o Interest/profit theory.
o Identification theory.
o Solvency theory.
o Risk/danger theory is most widely accepted (Scott) – the employer creates a
risk through the work assigned.

Requirements:
(a) There must be an employer-employee relationship.

 Must be based on a contract of service (locatio conductio operarum), not a

contract of mandate (locatio conductio operis).
 The dominant impression test (from Smit v Workmen’s Compensation
Commissioner) and multi-faceted test (from Midway Two Engineering) determine
the nature of the relationship.

(b) The employee must commit a delict.

 The employer can raise any defence available to the employee.

 They are treated as joint wrongdoers.

(c) The employee must act within the scope of employment.

 The Rabie test uses a combination of subjective (employee’s intention) and

objective (connection to the employer’s business) standards.
 Even forbidden acts can fall within the scope if closely linked to the employee’s
work.
 Courts consider risk creation as a factor – confirmed in Stallion Security v Van
Staden.

Notable Cases:

Minister of Police v Rabie

Grobler v Naspers Bpk (sexual harassment and risk creation).
K v Minister of Safety and Security – employer held liable for intentional
wrongdoing (rape by police officer).

[Link] Principal–Agent
 A principal is vicariously liable for a delict committed by an agent acting within the
scope of authority.
 The risk theory also supports this liability.

 Three requirements:

1. A principal-agent relationship at the time of the delict.

2. The agent commits a delict.
3. The agent acts within the scope of authority.

 Typical delicts include misrepresentation.

[Link] Motor-Car Owner – Driver

 A car owner is vicariously liable if the driver is not an employee but:

o (a) Was requested or supervised by the owner.
o (b) Drove in the owner’s interest.
o (c) The owner retained a right of control.
 This is also supported by the risk theory.

2.2 Legislation

2.2.1 Consumer Protection Act 68 of 2008

 Section 61 introduces strict product liability for manufacturers, distributors, and

retailers.
 Harm from unsafe or defective goods leads to liability, even without negligence.
 Liability is joint and several if multiple parties are responsible.
 Courts may:
o Assess harm.
o Determine damages.
o Apportion liability.

Defences:

 Compliance with public regulation.

 Defect arose after supply.
 Unreasonable to expect distributor/retailer to have discovered the defect.
 Prescription: claims expire after three years from discovery or occurrence.

2.2.2 National Nuclear Regulator Act 47 of 1999

 The holder of a nuclear installation licence is strictly liable for nuclear damage
during their period of responsibility.
 No fault can be raised as a defence.
 Available defences:
o Unauthorised presence of the plaintiff.
o Intent of the plaintiff.

2.2.3 Civil Aviation Act 13 of 2009

 Confirms strict liability for damage caused by aircraft.

 The owner may raise fault of the injured person as a defence.
2.2.4 Post and Telecommunication-Related Matters Act 44 of 1958

 Creates strict liability for injury or destruction of telecom lines or cabinets.

 If the act is negligent, the wrongdoer is also criminally liable.
 The telecom company may waive liability.

2.2.5 Genetically Modified Organisms Act 15 of 1997

 Section 17(2) imposes strict liability on users of GMOs for damage caused.
 If the organism was in the possession of an inspector, liability arises only if the user
foresaw or should have foreseen the damage and failed to prevent it.

2.2.6 Protection of Personal Information Act 4 of 2013 (POPIA)

 Section 99(1) provides for strict liability of the responsible party for interference with
personal information.
 Intent or negligence is not required.
 The Regulator may act on behalf of the data subject.
 Defences include:
o Vis maior
o Plaintiff’s consent or fault
o Unreasonable impracticability
o Section 37 exemption
 Compensation may include patrimonial, non-patrimonial, and aggravated damages,
subject to court discretion.