Dear students,
Please use this week to revise what we have done so far, and read ahead (start from where we stopped last time, page 9 of the outline).
regards
Mr MC
Thursday, 31 March 2016
DELICT NOTES
Dear Delict students,
Attached please receive your notes for Delict.
A delict is the act of a person which in a
wrongful and culpable manner causes harm to another
To be ‘a delict’, a conduct must carry 5
elements, namely, an act (conduct), wrongfulness, fault
(culpability), harm
(loss or damages), and causation.
If any one element were missing, there is no
delict – hence, no liability (except in certain exceptions as in strict
liability)
HOW
DOES DELICT DIFFER FROM:-
a crime?
Though there are apparent similarities between
delict and crime, the two concepts differ fundamentally.
As similarities, a wrongdoer’s conduct may at
times be both delictual
and criminal in nature,
However delicts are not necessarily
crimes, nor crimes necessarily delicts
Delicts fall under Private
Law, whereas crimes fall under Public Law
Private law aims at protecting
individual (private) interest while public law is directed at preserving public interests
Their remedies differ in that:-
HOW DOES DELICT DIFFER FROM:-
breach of contract?
Both concepts are forms of wrongful conduct in
private law
The primary difference is that breach of
contract is only based on non-fulfillment of a contractual obligation,
A delict arises from infringing a legally
recognised interest of another
The primary remedy for breach of contract is
enforcement of fulfillment (or performance), or execution of the contract (damages
claim is only secondary).
On the other hand, delict is primarily directed
at recovering damages (ie. compensation) or satisfaction and NOT on
non-fulfillment.
However, there are instances where the two
phenomena may overlap.
Lillicrap, Wassenaar & Partners
v Pilkington Bros SA 1985 (1) SA 475 (A) 496, 499
The Aquilian Action is available for patrimonial
loss caused wrongfully and culpably.
It does not matter whether the loss results
from physical injury to the corporeal property or person of the plaintiff or was
purely economic. This would include negligence misrepresentation and unlawful
competition.
Actio iniuriarum deals with liability for personality injury
to one’s good name, dignity, feelings of chastity and privacy. Thus iniuria is
defined as ‘the wrongful intentional infringement of or contempt for a person’s
corpus, fama or dignitas.’ (Neethling:13) Thus actio iniuriarum deals with
satisfaction for injured personality.
The nature and
Characteristics of conduct.
Where one acted mechanically at a time of
committing a delict, his conduct will be voluntary. Thus he may raise a defence
of automatism.
The defendant should not have intentionally
created the situation which makes him to be unable to control his bodily
movements. He must also not be negligent with regard to his automatism.
Absolute compulsion, sleep, unconsciousness, a
fainting fit, an epileptic fit, serious intoxication, a blackout, reflex
movements, strong emotional pressure, mental disease, a heart attack, etc.
The act complained of must be wrongful.
Wrongfulness is a question of facts – that is,
all relevant facts must be interrogated and every possible interpretation of
alleged facts has to be considered ex
post facto. Firstly, an act or conduct must result into harm, as there is
no delict without harm.
An act and its consequences (harm) do not have
to occur at the same time, but may always be separated by time and space (Pinchin
v Santam Insurance Co Ltd 1963 (2) SA 254 (W))
However, harm on its own is not sufficient to
amount into a delict
Instead, harm must have been caused in a
manner that is legally reprehensible (that is, there must be a violation of
a legal norm) or unreasonable
Therefore the test for wrongfulness is
two-fold:
How
do you determine what is wrongful?
Every legal subject is a holder of
subjective rights
Subjective rights include real rights;
personality rights; immaterial property rights; personal immaterial property
rights
A legal subject has a relationship with
the object over which he exercises power (subject-object relationship) and
A holder of subjective rights has a
relationship with other legal subjects (subject-subject relationship)
A holder can use his legal object as he
pleased only within the boundaries and rules stipulated by law, and
Each subjective right is enforceable against
other legal subjects, who has a duty to refrain from infringing upon the
relationship between the holder of a right and his legal object
Wrongfulness is determined according to the
general criterion of reasonableness. A
conduct is wrongful or unlawful if it is unreasonable, in other words when, in
the light of all the circumstances, the defendant is expected to behave in a
manner which will not harm the plaintiff (Carmichele v Minister of Safety & Security, supra)
For example, in Moses v Minister of Safety and
Security 2000 3 SA 106 (C) (at 114H - H/I and 115A - B/C.), the
deceased, in a state of inebriation, had been placed in a cell which had been
set aside for the detention of persons arrested for drunkenness and also
disorderly conduct.
[9] … it is reasonable to expect of the defendant to have taken positive measures to prevent the harm. The Court determines whether it is reasonable to have expected of the defendant to have done so by making a value judgment based, inter alia, upon its perception of the legal convictions of the community and on considerations of policy. The question [of wrongfulness] in a particular case is thus a conclusion of law depending on a consideration of all the circumstances of the case and on the interplay of the many factors which have to be considered. …
Ultimatey, what the law regards as wrongful is
essentially a policy consideration depending on the prevailing boni mores of the society at the
time. The conduct becomes wrongful when it is contrary to the
law and prevailing norms or when it is legally unreasonable.
Thus, infringement of rights in the bill of rights incurs delictual
liability if two requirements are met:
[11] There cannot be an impairment of dignitas without unlawfulness and the question whether this requirement is satisfied or not is an objective one answered by having regard to the prevailing norms of society. Delange v Costa 1989 (2) SA 857 (A) at 862B - G. G I agree with the submission made on behalf of the defendants that the statements, viewed according to the rule in Delange , against the backdrop of the Constitution, are not capable of an interpretation which satisfies any of the requirements reflected in para [10] above. It follows that the articles do not violate the plaintiff's dignitas.
There is no general liability for failure
to act to prevent harm or economic loss occurring to another (i.e. omission).
Omission incurs liability only if it was
wrongful. Omission becomes wrongful when there has been a legal duty on the
defendant to act positively to prevent harm to the plaintiff (Wrongfulness as a
Breach of a Legal Duty) - Minister
van Polisie v Ewels 1975 2 SA 590 (A).
Thus, it becomes appropriate and
necessary to consider whether a legal duty to act positively to prevent harm
has been breached. In other words, failure to discharge a legal duty he only
incurs delictual liability.
This Inquiry (breach of a legal duty) is
not a new test, but is in a way a combination of the two tests. In this case it
may be inappropriate to use either the doctrine of boni mores test or the subjective rights’ infringement test to
determine wrongfulness.
Generally, Wrongfulness, in the case of
omission, is determined by the legal convictions of the community
Held, that, viewed objectively, society would take account of the fact that the functions of the police in terms of the Police Act relate to criminal matters and were not designed for the purpose of assisting civil litigants and that therefore society would baulk at the idea of holding D policemen personally liable for damages arising from what was a relatively insignificant dereliction of duty. (At 321H/I-I and 321J-322A.)
Held, accordingly, that the police had not owed the respondent a legal duty to record the information in question (At 321H.)
Further, that a failure to have protected the deceased against assaults by his co-detainees would have been considered wrongful with reference to the prevailing legal convictions of the community at the time.
Another factor which may determine
wrongfulness is control of a (potentially) dangerous animal or object.
Thus
failure to exercise proper control will be prima facie wrongful
Two requisites must be satisfied, namely:-
actual control may be inferred from the
fact that one had assumed control over a potentially dangerous situation
it may also be deduced from
On the other hand, control per se (on its
own) is not a sufficient enough ground to impose liability (to prove
wrongfulness)
But the decisive factor lies on the facts
and circumstances of each case; and
A legal duty to prevent harm may be
inferred from the existence of a special relationship between the parties,
examples: a contractual relationship, a policeman and a citizen, a prison
warder and a prisoner, and employer and an employee.
In these circumstances a legal duty to
prevent harm will be determined against the boni mores of the community, with
special attention to the special relationship that existed between the parties
The act used in defence must have been
the only reasonable means to protect the threatened interest (Ntamo v Min of Safety & Security 2001 1 SA 830 TkHC 836).
Before resorting to private defence, the defender must have
been left with no other option or alternative affording him the best protection.
Thus, where other legal remedies could be
used to protect a threatened interest, the defender must use them.
One must not use more force than is
necessary to avert the threat. In other words, the act
of defence must not be out of proportion with the
attack (this does not however means that the means used to defend oneself must
be equal to the means used by the attacker). Should the defender uses more
force than is necessary, his act will amount to wrongful conduct.
To determine whether the force used was
proportional to the threat or not, an objective test is used (i.e. the court must
put itself in the position of the defendant at the time of the attack).
Where one can only protect his own
interest by reasonably violating the interest(s) of another, he can raise a
defence of necessity.
Necessity can be defined as “lawful
conduct directed against the innocent person for the purpose of protecting an
interest of the actor or a third party against a dangerous situation”
The fundamental difference between a
private defence and necessity is that, in private defence the victim is the
attacker, whereas in necessity the victim is an innocent third party
The following are some of the guidelines
that are helpful in determining the existence of necessity:
The state of necessity must not be
expected sometime in the future. It must be shown that a state of necessity
exists, regardless of the cause. The state of necessity may have been caused by
human action, or animal, or the forces of nature.
The possible existence of the state of
necessity must be objectively determined. One considers whether the state of
necessity actually existed, and not whether the defendant believed it existed.
This is done by looking at the actual circumstances that prevailed at the time,
and the actual consequences that resulted. The fact that the defendant might
have been fearful is not that importance.
It is still debatable whether one can
successfully raise necessity where, where he himself has caused the situation.
One view is that one cannot rely on necessity which he himself created. S v Bradbury 1967 1 SA 387 A 393,404
Another view is that one should not be
deprived of defence of necessity merely because he is the cause of the situation
of necessity
The protected interests need not only be
those of the defendant. One may act on necessity to protect the interests of
others.
However, protected interests need not
only be life.
In order to use the defence of necessity,
the defendant must be left with no other reasonable means, but to infringe on
another
This relate to the intensive of the force
used in defending your legally protected interests.
Provocation exists when one (defendant)
is provoked or incited by words or actions to cause harm to another (plaintiff).
Our courts recognise provocation as a complete defence.
The distinction between provocation and
private defence is that private defence seeks to avert the attack that is
imminent or that is being carried on, whereas provocation is a retaliatory
reaction to an attack that has already terminated
Generally, where the response to verbal
assault (insult) was physical assault, provocation is not a complete defence.
However, where provocation was in the form of a physical assault, a counter-assault
of a physical nature may give rise to a complete justification on the grounds
of provocation.
Whether one acted in response to
provocation is assessed objectively. The court weighs the conduct of the
plaintiff against the reaction of the defendant. The following requirements
must be complied with for reliance on provocation:
The provocative conduct must be such that
a reaction to it by means of physical assault is Reasonable, and
accordingly Excusable.
Using an objective test, it must be
established whether a reasonable person in a similar position as the defendant
would have been provoked
The defendant’s conduct must be an
immediate and reasonable retaliation against the body of the plaintiff
The response must be immediate; and must
be a reasonable response to the provocation. In other words, objectively
viewed, there must be proportion, both in the nature, and degree of assault (Mordt v Smith 1968 (4) SA 750 (RA))
To successfully raise provocation in
cases of defamatory or insulting allegations two requisites must be satisfied:
This means that the insult must be an
immediate reaction following directly from the provocation, and must not be out
of proportion to the provocative conduct
When one who is capable in law of
expressing his will may waive his rights by consenting to an act of the
defendant. In that case the causing of harm to his interests will not be unlawful.
One may consent to an injury, or to the
risk of an injury. The law maxim that is used to define this defence is volenti non fit iniuria (he who
consents cannot be injured).
Whether one consents to a specific form
of injury or to a risk of harm that might be caused by the actor’s conduct, the
same maxim applies.
This implies that there need not be an
agreement between the injured party and the defendant (actor).
It can also be withdrawn unilaterally.
As such it must be clear or apparent or
manifest (R v Taylor 1927 CPD 16, at
20).
Consent may either be expressly, or
tacitly; that is, one may consent in words or by conduct. Usually this may be
by way of incitement, encouragement, and invitation to injure oneself (but that
is not always the case).
On the other hand, mere submission or
knowledge of an injury does not amount to consent.
Generally, a prejudiced person must himself
consent, not someone else on his behalf.
However, there are exceptional
circumstances whereby others may consent on behalf of others.
For consent to operate as a defence the following requirements must, inter alia , be satisfied: H
One is negligent when he pays
insufficient attention to his actions thereby failing to adhere to the standard
of care legally expected of him.
According to van der Walt and Midgley, a
conduct is negligent “if a reasonable person in the
same position as the defendant would have foreseen the possibility of harm and would have taken
steps to avoid the harm, and the defendant did
not take those steps”.
Therefore, our law uses a the objective standard of the reasonable person (bonus paterfamilias)
In terms of this, one is negligent if a
reasonable person in his position would have acted differently to avoid harm.
In order for a reasonable person to act,
the unlawful causing of damage must be foreseeable and preventable (See also Mkhatswa v Min of Defence 2000 (1) SA 1004 SCA
1111-1112)
There are two differing views regarding
the nature of foreseeability test, namely an abstract/absolute
approach, and a concrete approach.
In terms of this approach the general nature of harm to others (BUT not the specific harm), must be reasonably
foreseeable.
The key question is whether the
wrongdoer’s conduct in general created an unreasonable risk of harm to others.
This approach enjoys support amongst
academics and courts.
according to this approach, the general
nature of a particular harm must be foreseeable, in other words,
the wrongdoer must have foreseen (or
failed to foresee) not just the possibility of any harm in general, but a
particular harm
however, he need not foresee (or failed
to foresee) the precise nature and extent of the consequence.
it is sufficient if the particular
consequence was reasonably foreseeable.
the reason why this approach is preferred
is the fact that liability for negligence does not only lie on the
foreseeability of the consequence,
thus whether a reasonable person takes
steps to prevent the harm occurring depends on the general nature of a
particular consequence that he reasonably foresees, the manner it is caused,
and the possibility that it might occur (See: Mukheiber v
Raath 1999 (3) SA 1065 SCA 1077)
The second part of the test for the
negligence is whether a reasonable person would have taken steps to prevent the
occurrence of harm.
Whether a reasonable person takes steps
or not to prevent harm depends on a number of factors. Van der Walt and Midgley
identify four factors, namely:
If the nature and extent of the risk were
not serious, a reasonable person would not take precautionary measures to
prevent it.
Where damage would be grave and serious,
when the risk did materialize a reasonable person would take steps to prevent
the risk even though it may not be serious.
What are the interests that were served
or promoted by the wrongdoer?
we compare them to the risk inherent to
his conduct
if the purpose served is more important
than the risk, then a reasonable person would not prevent the harm.
In 1965 the AD in Jones v Santam Bpk 1965 2 SA
542 A asserted that in determining whether the child was
negligent or not, an objective [Not Subjective]
test is always used.
Once, negligence on the part of a child
has been established, the second part of the enquiry is applied - i.e. whether
the child was culpae capax.
Contributory fault serves to limit the
extent of he defendant’s liability where the plaintiff himself contributed to
the loss that he suffered
This area of delict is regulated by the
Apportionment of Damages Act 34 of 1956 (as amended by Apportionment of Damages
Amendment Act 58 of 1971)
Under the Roman-Dutch Law, the general
rule was that the plaintiff could not claim damages from the defendant, where
he himself has been negligent
in other words, where both parties were
at fault, neither of them could claim damages, unless one of them was more
to blame than the other
The English law followed the same
approach for some time.
However, in 1842, the English law adopted
a new approach, according to which liability fell on the one who had the last
opportunity to avoid the loss-causing accident
in 1945 the English legislature replaced
this rule with the principle of proportional division of damages according to
the degree of fault on each party
The South African law adopted the English
law position
Section 1(1)(a) of the Act provides that
no party may be prevented from suing simply because he partly contributed to
his loss through his fault
in terms of this subsection, damages
should be apportioned according to each party’s contribution to the damages
the common law position that one cannot raise
a defence of contributory negligence where he intentionally caused loss to
another remains unchanged
Where the plaintiff intentionally causes his
own loss whilst the defendant is negligent, he forfeits his claim
On the other hand, the legal position is not
clear where there is intention on both parties
A standard test is used for contributory negligence to apportion damages
to assign the
percentage of each party’s contribution to the damage, two positions (A or B) are followed in the South African law
In terms of
this approach, if the plaintiff’s conduct contributed 40 percent, it does not
automatically follow that the defendant contributed 60 percent to the damage
It might be
possible that the defendant contributed 80 percent
Attached please receive your notes for Delict.
LAW OF DELICT – LAWS2DL
2016
1. Introduction to Law
The fundamental principle in law is the res perit domino (every person must bear the damage he
suffers).
However, there are certain instances where the law recognises the
shift in the responsibility to bear the damage, from one individual to another.
The law of delict regulates the circumstances in which a person is
obliged to bear the damage he has caused to another – i.e. circumstances where
the person prejudiced has a right to claim compensation from the wrongdoer who
has an obligation to compensate him for the damage he has caused him.
WHAT IS A DELICT?
A delict is the act of a person which in a
wrongful and culpable manner causes harm to another
To be ‘a delict’, a conduct must carry 5
elements, namely, an act (conduct), wrongfulness, fault
(culpability), harm
(loss or damages), and causation.
If any one element were missing, there is no
delict – hence, no liability (except in certain exceptions as in strict
liability)
A DELICT AND A CRIME
HOW
DOES DELICT DIFFER FROM:-
a crime?
Though there are apparent similarities between
delict and crime, the two concepts differ fundamentally.
As similarities, a wrongdoer’s conduct may at
times be both delictual
and criminal in nature,
However delicts are not necessarily
crimes, nor crimes necessarily delicts
Differences
Delicts fall under Private
Law, whereas crimes fall under Public Law
Private law aims at protecting
individual (private) interest while public law is directed at preserving public interests
Their remedies differ in that:-
o
Whereas, criminal sanctions are intended to
punish the wrongdoer for transgressing against the public interest,
o
delictual remedies are compensatory in nature,
A
DELICT AND BREACH OF CONTRACT
HOW DOES DELICT DIFFER FROM:-
breach of contract?
Both concepts are forms of wrongful conduct in
private law
The primary difference is that breach of
contract is only based on non-fulfillment of a contractual obligation,
and
A delict arises from infringing a legally
recognised interest of another
The primary remedy for breach of contract is
enforcement of fulfillment (or performance), or execution of the contract (damages
claim is only secondary).
On the other hand, delict is primarily directed
at recovering damages (ie. compensation) or satisfaction and NOT on
non-fulfillment.
However, there are instances where the two
phenomena may overlap.
Examples:-
(i)
a patient is injured as a result of a doctor’s
negligence;
(ii)
a lessee damages a leased property of which he
is under a duty contractually to return to the lessor, undamaged.
In both these instances, action can be both a breach of contract and
delict.
Lillicrap, Wassenaar & Partners
v Pilkington Bros SA 1985 (1) SA 475 (A) 496, 499
A firm of consulting and structural engineers (LW & P) undertook
to perform professional services for the PB SA, to investigate the suitability
of the soil in connection with the planning and construction of a glass plant. LWP
& P agreed to the examination, the design and supervision of construction
of the plant. After such services had been performed in part, the parties
agreed that the agreement was to be assigned to a third party, the assignment
having the consequence that LW & P's status changed from being a contractor
to a subcontractor vis-à-vis the PB SA.
When works were completed it was found that the functioning
of the vital areas of the works were impaired as a result of the movements
in the soil in the area. Subsequently PB SA sued LW & P in delict
to recover damages for the substantial loss it had sustained repairing the
faults in the works.
PB SA alleged that: (1)
LW & P had owed it a duty of care to carry out properly and with
professional skill and care the various tasks which it purported to perform,
both before and after the assignment of the contract; and (2) that, in breach of the said
duty of care, LW & P failed to carry out these tasks properly and with the
necessary professional skill and care, thereby causing PB SA damages.
It was common cause that the respondent's case was based on delict
and, more particularly, the (extended) actio legis Aquiliae.
In the Court a quo, LW & P unsuccessfully excepted to PB SA's particulars of claim as, inter
alia, not disclosing that LW & P's conduct was wrongful for the
purposes of Aquilian liability, particularly in view of the contract between
the parties and the subsequent assignment thereof.
It was held by the majority (per
Grosskopf
AJA) that in principle, a concurrence of
actions might exist. Nevertheless he held that policy considerations
precluded the allowing a delict claim under the circumstances. Namely, there
were adequate and satisfactory remedies in contract and the parties had
reasonably intended that their reciprocal rights and obligations would be
regulated by the contractual arrangements and that they would not be circumvented
by the application of the law of delict.
However, Smuts AJA (dissenting minority) held that an
action for negligent breach of contract is not a barrier to delictual
liability. Contrary to the majority, Smuts
concluded that, “in fact, policy considerations pointed to a delictual
liability and that such exist, both in pre- and post-assignment periods.”
What is the Distinction between:-
Aquilian
action and actio iniuriarum?
The Aquilian Action is available for patrimonial
loss caused wrongfully and culpably.
It does not matter whether the loss results
from physical injury to the corporeal property or person of the plaintiff or was
purely economic. This would include negligence misrepresentation and unlawful
competition.
In Union
Government (Minister of R & H) v Warneke 1911 AD 657 it was held that there was no reason why courts would not adapt the
doctrine and reasoning of the law to the conditions of modern life, as long as
doing so does not do any violence to its principles.
Actio iniuriarum deals with liability for personality injury
to one’s good name, dignity, feelings of chastity and privacy. Thus iniuria is
defined as ‘the wrongful intentional infringement of or contempt for a person’s
corpus, fama or dignitas.’ (Neethling:13) Thus actio iniuriarum deals with
satisfaction for injured personality.
2. The Law
of delict, the Constitution and fundamental (human) rights
Infringement of the fundamental rights
enshrined in the Bill of rights entitles one to “appropriate relief” as opposed
to delictual damages. While those may include the awarding of damages, such a
claim is not limited to damages. This was made clear in Fose v Minister of Safety and Security 2001 (4) SA 938 (CC).
F had sued the Minister of Safety and
Security for damages arising out of a series of assaults perpetuated by members of the police while acting
within the scope and course of their employment. In addition to traditional
common law damages, F claimed “constitutional damages’ for exactly the same
incidents. The court held that such a remedy is available, where it is
necessary to protect and enforce the rights enshrined in the Bill of rights. It
will all depend on the circumstances of the case. It held that there was no
place for constitutional damages over and above an award for delictual damages.
(Pars 67 & 75)
The constitutional remedy is aimed at affirming constitutional values:
i.e. enforce, protect and vindicate guaranteed rights and the values which
underpin them, and to prevent future violations of the bill of rights (pars 19; 61; 82; 83; 96 & 98)
On the other hand, delictual damages aim to compensate
2
CONDITIONS
OF LIABILITY UNDER THE AQUILIAN ACTION PRINCIPLES OF DELICTUAL LIABILITY
In
order for a person to be liable for a delict causing pecuniary loss under the
lex aquilia, the injured person (plaintiff) must prove the following:
1.
that the aggrieved party has suffered
patrimonial loss (i.e. actual loss capable of
monetary/pecuniary assessment);
2.
that the wrongdoer committed some act (or
omission);
3.
that the act complained of was wrongful;
4.
that responsibility for the loss is imputable
to the fault of the defendant/wrongdoer i.e.
presence of dolus or culpa;
5.
the wrongdoer’s act must have caused the loss
suffered by the plaintiff and the resulting harm must not be too remote;
a. Conduct
The nature and
Characteristics of conduct.
1
Conduct may be in the form of commission or
omission
Conduct may be a positive act or in a form of omission.
A positive act may be in word
(statement) or in deed (physical conduct).
Omission is where one fails to act positively to prevent harm to
another. It is in a sense not an act.
However omission takes two forms. It takes a form of purely failure to
act positively to prevent harm (i.e. to take precautionary steps to prevent
harm). For instance: a police officer does nothing to protect a person being
assaulted by other police officers.
Minister van Polisie v Ewels [1975] 2 SA 590 (A).
It may merely be a case of negligently causing harm to another rather
than failure to act. For instance: a farmer fails to cut grass in his farm,
which grass caches fire and spills over to a neighboring farm where it causes
considerable damage.
2
Second, conduct refers to an act of a
human being.
o
To make a delict, an act must have been
committed by a human being as opposed to an animal.
o
However a human being may use an animal or
inanimate object as an instrument to inflict harm to another. In such a case
the act will be regarded as a human conduct for the purpose of delictual
liability.
o
In the case of a juristic person, its conduct
is any act performed through natural humans who act as its organs.
3
Third, the act must be voluntary.
o
Only a voluntary act constitutes conduct
What is a voluntary act?
o
This does not mean that the offender
must have desired or willed his wrongful conduct. Neither should the act be rational.
o
It merely means that an act must be subject
to control by the will of the actor.
o
In turn, this implies that there should exist
capacity to direct one’s muscular and bodily movements on the actor, at the
time of the alleged wrongful conduct.
o
Instances of incapacity include reflexive
bodily movements during a state of unconsciousness, such as sleep-walking,
amnesia, epileptic fits, black out, extreme intoxication, extreme emotional
state, etc.
o
The necessary mental capacity could be
precluded by a hypnotic state, drug abuse, insanity, etc.
o
However, where one causes his own mental
incapacity to control his conduct with the intention to cause harm to
another, he may still be held liable based on prior voluntary conduct (actio
libera in causa).
o
It must be shown that such preceding voluntary
conduct was committed with necessary fault – i.e. intention.
THE DEFENCE OF AUTOMATISM
Where one acted mechanically at a time of
committing a delict, his conduct will be voluntary. Thus he may raise a defence
of automatism.
The defendant should not have intentionally
created the situation which makes him to be unable to control his bodily
movements. He must also not be negligent with regard to his automatism.
The instances giving rise to a defence of automatism
Absolute compulsion, sleep, unconsciousness, a
fainting fit, an epileptic fit, serious intoxication, a blackout, reflex
movements, strong emotional pressure, mental disease, a heart attack, etc.
Wessels v
Hall and Pickles (Coastal) (Pty) Ltd 1985 (4) SA 153 C
In this case, while driving a vehicle, the defendant suffered a
hypoglycaemic attack resulting in a diabetic coma. He then lost control of the
vehicle and caused a collision. He tried unsuccessfully to rely on the defence
of automatism to escape liability.
According to evidence, the defendant had been aware of his diabetic
condition and the possibility of sudden attacks; he knew that needed to take
precautionary measures.
Thus he was held liable delictually as he had been negligent in
causing his incapacity (since he had failed to take the necessary precautions).
The question was whether a reasonable person in his position would
have foreseen the possibility of causing harm to another and whether he would
have taken precautions against it.
b. WRONGFULNESS/UNLAWFULNESS
The act complained of must be wrongful.
What is wrongfulness?
Wrongfulness is a question of facts – that is,
all relevant facts must be interrogated and every possible interpretation of
alleged facts has to be considered ex
post facto. Firstly, an act or conduct must result into harm, as there is
no delict without harm.
An act and its consequences (harm) do not have
to occur at the same time, but may always be separated by time and space (Pinchin
v Santam Insurance Co Ltd 1963 (2) SA 254 (W))
However, harm on its own is not sufficient to
amount into a delict
Instead, harm must have been caused in a
manner that is legally reprehensible (that is, there must be a violation of
a legal norm) or unreasonable
Therefore the test for wrongfulness is
two-fold:- has
one’s act resulted in any harm? (i.e., has there been an infringement of a
legally recognised individual interest?)
|
if yes
|
- was harm caused in a legally
reprehensible manner?
How
do you determine what is wrongful?
THE TEST FOR WRONGFULNESS
1) Legal
Convictions of the Community (boni mores test)
To determine whether or not the infringement of the plaintiff’s
interests is unlawful an objective boni mores test is used
It is an ex post facto
balancing of the interests promoted by the defendant’s act against the
interests that he infringed
The test is based on the reasonableness or unreasonableness of the
defendant’s conduct based on all the circumstances of the case
All the relevant circumstances and all pertinent factors must be
considered carefully when deciding whether the infringement of the plaintiff’s
interests was reasonable or not
Factors that are considered include the following: -
Ø
The relationship between the parties involved
and the social imposition or denying of liability in a particular situation;
Ø
The extent and nature of harm; Foreseeable or
foreseen loss;
Ø
The costs and effort of steps that could have
been taken to prevent loss;
Ø
The degree of probability of success of
preventative measures;
Ø
The motive of the defendant and knowledge on
his part that his conduct would have caused harm;
Ø
Economic considerations;
Ø
Values underlying the Constitution;
Ø
The legal position in other countries;
Ø
The ethical and moral issues; AND/OR
Ø
any other considerations of public interest or
public policy
2) Wrongfulness as an Infringement of Subjective Rights
Every legal subject is a holder of
subjective rights
Subjective rights include real rights;
personality rights; immaterial property rights; personal immaterial property
rights
A legal subject has a relationship with
the object over which he exercises power (subject-object relationship) and
A holder of subjective rights has a
relationship with other legal subjects (subject-subject relationship)
A holder can use his legal object as he
pleased only within the boundaries and rules stipulated by law, and
Each subjective right is enforceable against
other legal subjects, who has a duty to refrain from infringing upon the
relationship between the holder of a right and his legal object
NB: The fundamental facet of this
doctrine is that wrongfulness consists of the
infringement of a subjective right(s) in violation of a legal norm
How does one determine
infringement of a subjective Right?
Requirements for the Infringement of a Subjective
Right
A
two-pronged investigation is necessary whether the infringement is wrongful or
not:-
First, one considers whether the subject-object
relationship has in fact been disturbed, that is, has the
holder’s use and enjoyment of his right been disturbed? (that is, is there a
violation of a legal norm)
There can
either be a direct violation (through a direct action that impacts on a
holder’s powers to use and dispose of his legal object), or
An indirect
infringement, e.g. cutting water supply that one’s business comes to a
standstill thereby causing him economic loss.
Coronation
Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 D
Clarke
v Hurst
1992 4 SA 630 D 651
Second, (if the
answer to the first question is positive), the next question is: was the
violation of a legal norm caused in a legally impermissible manner?
Criterion for determining wrongfulness:
Wrongfulness is determined according to the
general criterion of reasonableness. A
conduct is wrongful or unlawful if it is unreasonable, in other words when, in
the light of all the circumstances, the defendant is expected to behave in a
manner which will not harm the plaintiff (Carmichele v Minister of Safety & Security, supra)
For example, in Moses v Minister of Safety and
Security 2000 3 SA 106 (C) (at 114H - H/I and 115A - B/C.), the
deceased, in a state of inebriation, had been placed in a cell which had been
set aside for the detention of persons arrested for drunkenness and also
disorderly conduct.
The court held that it was obvious that if such persons were detained
in a confined space such as a police cell the possibility of physical conflict
was a real risk. In view of the above and the nature of the relationship
between the defendant and persons being detained, the defendant's servants had
a legal duty to have taken reasonable steps to protect the deceased against
assaults by any of the other persons detained in the cell with him.
In Van
Eeden v Minister of Safety & Security 2003 1 SA 389 (SCA),
2002 4 All SA 346 (SCA) par [9] - [12], the
court held per VIVIER ADP that:
[9] … it is reasonable to expect of the defendant to have taken positive measures to prevent the harm. The Court determines whether it is reasonable to have expected of the defendant to have done so by making a value judgment based, inter alia, upon its perception of the legal convictions of the community and on considerations of policy. The question [of wrongfulness] in a particular case is thus a conclusion of law depending on a consideration of all the circumstances of the case and on the interplay of the many factors which have to be considered. …
[10] In
applying the concept of the legal convictions of the community the Court is not
concerned with what the community regards as socially, morally, ethically or
religiously right or wrong, but whether or not the community regards a
particular act or form of conduct as delictually wrongful. The legal
convictions of the community must further be seen as the legal convictions of the legal
policy makers of the community, such as the Legislature and Judges. See Schultz
v Butt 1986 (3) SA 667 (A) at
679D - E and Premier Hangers CC v Polyoak (Pty) Ltd 1997 (1) SA 416 (A) at
422E - F.
Ultimatey, what the law regards as wrongful is
essentially a policy consideration depending on the prevailing boni mores of the society at the
time. The conduct becomes wrongful when it is contrary to the
law and prevailing norms or when it is legally unreasonable.
4.1 The
bill of Rights
Infringements of rights entrenched in Bill of Rights do not per se entitle a person to sue in
delict, or result in successful delictual claims.
Generally, infringement of the bill of rights entitles one to a remedy
aimed at affirming constitutional values: that is, to enforce, protect and
vindicate guaranteed rights and the values which underpin them, and to prevent
future violations of the bill of rights (pars 19; 61; 82; 83; 96 & 98)
To found a claim for compensation the fundamental right must (a) be
recognised as a subjective right, or create a legal duty in delict, and (b) the
infringement of that right or breach of that duty must violate a societal norm.
For example:
In June/July 1987 Jooste and the defendant had carnal
intercourse as G a result of which the plaintiff was conceived and born. They
were never married. There is no allegation that they ever cohabited. The
plaintiff is in the factual and legal custody and control of Jooste.
Since plaintiff's birth the defendant has refused and/or neglected to admit that the plaintiff is his natural son; to communicate with H him; to render him love, cherishment or recognition; to show any interest in him; and to take any steps which would naturally be expected of a father with respect to his son. As a result of this refusal or neglect the plaintiff has suffered damage in the form of iniuria emotional distress and loss of amenities of life. The plaintiff therefore instituted a delictual action for damages of R450 000, alleging that:
Since plaintiff's birth the defendant has refused and/or neglected to admit that the plaintiff is his natural son; to communicate with H him; to render him love, cherishment or recognition; to show any interest in him; and to take any steps which would naturally be expected of a father with respect to his son. As a result of this refusal or neglect the plaintiff has suffered damage in the form of iniuria emotional distress and loss of amenities of life. The plaintiff therefore instituted a delictual action for damages of R450 000, alleging that:
(1) the defendant [wa]s under a legal duty to render the
plaintiff attention, love, cherishment, and interest; alternatively
(2) in terms of the Constitution of the Republic of South
Africa Act 108 of 1996 (the Constitution) the defendant is obliged to render
the plaintiff such love, cherishment, attention and interest as can normally be
expected of a father towards his natural son; among others, The argument on
behalf of the plaintiff is simple, and at first blush attractive because of its
simplicity: In terms of s 28(1) (b) of the Constitution the plaintiff is
entitled to 'parental care'.
The court held that children have a legitimate interest in
general physical, intellectual and emotional care within the confines of the
capabilities of their care givers. Yet it is significant that the Constitution
does not state that parents are obliged to love and cherish their children or
give them their attention and interest.
However it concluded that there rests no legal duty on the
defendant to afford the plaintiff his love, attention and affection. The claim
is bad in law as a matter of policy.
Thus, infringement of rights in the bill of rights incurs delictual
liability if two requirements are met:
(a) a right is recognised as a subjective right, or a legal duty in
delict was created; and
(b) the infringement of that right or breach of that duty violated a
societal norm.
However the Constitution
forms the backdrop of any inquiry into the wrongfulness of any conduct. That
is, the bill of rights serves as an integral part of factors used to determine society’s
norms.
Thus in Carmichele,
the court quoting with approval Hefer JA in Minister of
Law and Order v Kadir, held that, in determining a legal duty to act, a
weighing and the striking of a balance between the interests of parties and the
conflicting interests of the community, involves a proportionality exercise
with liability depending upon the interplay of various factors.
Proportionality is consistent with the Bill of
Rights, but that exercise must now be carried out in accordance with the
“spirit, purport and objects of the Bill of Rights” and the relevant
factors must be weighed in the context of a constitutional state founded on
dignity, equality and freedom and in which government has positive duties to
promote and uphold such values.
Sokhulu v New Africa Publications Ltd 2001 4 SA 1357
(W), 2002 1 All SA 205 (W) par [11]
The plaintiff claimed damages against the defendants based on the
publication of a headline and an article in the Sowetan Sunday World.
[10] The right to an unimpaired dignity is protected by the actio
iniuriarum. Such can be invoked when a person is subjected to offensive and
degrading treatment or is exposed to ill-will, ridicule, disesteem or contempt.
Minister of Police v E Mbilini 1983 (3) SA 705 (A) at 715G - 716A. In Brenner v Botha 1956 (3) SA 257 (T) Boshoff AJ (as he then was) said at 261 in fin - 262:
'In cases of verbal injury, otherwise
than in cases of defamation, the words complained of must impair the
plaintiff's dignity and must be insulting in the sense that they must amount to
F degrading, humiliating or ignominious treatment.'
[11] There cannot be an impairment of dignitas without unlawfulness and the question whether this requirement is satisfied or not is an objective one answered by having regard to the prevailing norms of society. Delange v Costa 1989 (2) SA 857 (A) at 862B - G. G I agree with the submission made on behalf of the defendants that the statements, viewed according to the rule in Delange , against the backdrop of the Constitution, are not capable of an interpretation which satisfies any of the requirements reflected in para [10] above. It follows that the articles do not violate the plaintiff's dignitas.
4.2 LIABILITY
FOR OMISSION
There is no general liability for failure
to act to prevent harm or economic loss occurring to another (i.e. omission).
Omission incurs liability only if it was
wrongful. Omission becomes wrongful when there has been a legal duty on the
defendant to act positively to prevent harm to the plaintiff (Wrongfulness as a
Breach of a Legal Duty) - Minister
van Polisie v Ewels 1975 2 SA 590 (A).
Thus, it becomes appropriate and
necessary to consider whether a legal duty to act positively to prevent harm
has been breached. In other words, failure to discharge a legal duty he only
incurs delictual liability.
This Inquiry (breach of a legal duty) is
not a new test, but is in a way a combination of the two tests. In this case it
may be inappropriate to use either the doctrine of boni mores test or the subjective rights’ infringement test to
determine wrongfulness.
Generally, Wrongfulness, in the case of
omission, is determined by the legal convictions of the community
Minister of Law and Order v Kadir 1995 (1) SA 303 (A)
The
respondent, whilst driving his motor vehicle, had swerved to avoid an
inadequately secured bundle of clothing which had fallen off the back of the
motor vehicle in front of him. The respondent's car left the road as a result of which he was seriously injured. Shortly after the
collision two police constables arrived on the scene and, whilst they were
still J present, the driver of the vehicle
from which the bundle had fallen returned to the scene to
retrieve it. The constables failed to take down the particulars of the
offending driver and his vehicle despite having been informed by a witness to the collision of the circumstances under which it
had occurred. The respondent thereupon instituted an action for damages against
the appellant, contending that there had been a duty on the
constables to take down the necessary information relating to the identity of
the said driver and that they should have foreseen that a B failure to investigate the collision properly
would cause respondent, who was incapacitated at the time, to suffer damages.
Held, that, viewed objectively, society would take account of the fact that the functions of the police in terms of the Police Act relate to criminal matters and were not designed for the purpose of assisting civil litigants and that therefore society would baulk at the idea of holding D policemen personally liable for damages arising from what was a relatively insignificant dereliction of duty. (At 321H/I-I and 321J-322A.)
Held, accordingly, that the police had not owed the respondent a legal duty to record the information in question (At 321H.)
The existence of
such a legal duty is a question of facts. A legal duty is established using an
objective test. In other words, an inquiry is whether, in particular
circumstances, the community reasonably expect one to act or not legally
speaking (not morally or ethically)
See: Van Eeden v Minister
of Safety & Security 2003 1 SA 389
(SCA), [par 9 & 10]
How does one to establish the existence of a legal duty?
Some common
law indicators for the existence of a legal duty
I) Prior
conduct by the defendant
Where one creates
danger by means of a positive act, he has a legal duty to act to prevent the
danger to the third parties. Failure to prevent danger incurs liability. However,
prior conduct is not a pre-requisite for the existence of a legal duty. It is
but one of the factor that might prove the existence of a legal duty to act. For
years the courts held the view that prior conduct was a pre-requisite for the
existence of a legal duty – Halliwell v Jhb Municipal Council 1912 AD 659
It was only in
1957 that the view was changed. In Silva’s
Fishing Corporation (Pty) Ltd v Maweza 1957 2 SA 256 A 264-5, Steyn JA (in the
minority decision) held that prior conduct is BUT ONE of several factors which
might indicate the existence of a legal duty.
Minister of Forestry v Quathlamba (Pty) Ltd 1973 930 SA 69 A 82
Moses v Minister of Safety and Security 2000 3 SA 106 (C)
The
deceased, the plaintiff's husband, had been detained in police cells overnight
subsequent to his becoming intoxicated and violent. While he was in a cell he
was assaulted by other inmates and later died from the injuries he had
sustained. The plaintiff claimed damages from the defendant for loss of
support, alleging that the defendant's G servants
had been negligent in that they had failed to protect the deceased from being
assaulted whilst he was in custody; they had placed him in a cell with
'gangsters' who they knew or ought to have foreseen would assault him; they had
failed to exercise reasonable care to prevent the deceased from being assaulted
when there was a legal duty on them to do so; and they failed to take
reasonable or adequate steps to prevent the assault when by exercising
reasonable care they could have done so. The deceased's assailants had been
placed in the cell at 22:05 and the next cell inspection had taken place at
22:30.
The court held that
the deceased, in his state of inebriation, had been placed
in a cell which had been set aside for the detention of
persons arrested for drunkenness and also disorderly conduct. It was obvious that if such persons were detained in a confined
space such as a police cell the possibility of physical
conflict was a real risk. In view of the above and
the nature of the relationship between the defendant and
persons being detained, the defendant's servants had a legal duty to have taken
reasonable steps to protect the deceased against assaults by any of the other persons detained in the cell with him. (At
114H - H/I and 115A - B/C.)
Further, that a failure to have protected the deceased against assaults by his co-detainees would have been considered wrongful with reference to the prevailing legal convictions of the community at the time.
However,
evidence showed no negligence on the police part.
II)
Control of a dangerous object
Another factor which may determine
wrongfulness is control of a (potentially) dangerous animal or object.
Thus
failure to exercise proper control will be prima facie wrongful
Two requisites must be satisfied, namely:-
(1)
actual control of an animal or object,
actual control may be inferred from the
fact that one had assumed control over a potentially dangerous situation
it may also be deduced from
o
the fact that one was owner of a
potentially dangerous object, or
o
statutory provisions placing control on
the defendant, e.g. Ordinances placing the control of certain roads to local
authorities
On the other hand, control per se (on its
own) is not a sufficient enough ground to impose liability (to prove
wrongfulness)
But the decisive factor lies on the facts
and circumstances of each case; and
(2)
whether in all probability (in the
light of the control), a legal duty rested on the defendant to prevent harm
which might result from failure to exercise proper control
Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 A 82
Meter NO v Geo Parkes & Son (Pty) Ltd
[2006] SCA 161 (RSA)
III) A special relationship between the parties
A legal duty to prevent harm may be
inferred from the existence of a special relationship between the parties,
examples: a contractual relationship, a policeman and a citizen, a prison
warder and a prisoner, and employer and an employee.
In these circumstances a legal duty to
prevent harm will be determined against the boni mores of the community, with
special attention to the special relationship that existed between the parties
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC);
Minister of Safety & Security v Van
Duivenboden 2002 6 SA 431 (SCA)
IV)
Holding particular office
Where a
person holds a particular office that imposes a legal duty to protect the
interests of specific persons or the public, a breach of that duty may incur
liability. Examples: where one is a trustee, where one is an executor or a
liquidator (Macadamia Finance Ltd v De Wet 1991 (4) SA 273 T 279).
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)
Minister of Safety & Security v Van
Duivenboden 2002 6 SA 431 (SCA)
V) Rules of Law
Where the rules of law or
statutes impose a duty on one, failure to meet that statutory duty is prima
facie proof of wrongfulness on the part of the defendant. However, breach of a
statutory duty is a factor among a matrix of factors that must be considered in
determining the existence of a legal duty. Carmichele v Minister of Safety and
Security 2001 (4) SA 938; Minister of Safety & Security v Van Duivenboden
2002 6 SA 431 (SCA)
VI) Contractual undertaking
for the safety of a third party
If one
person undertakes to ensure the safety of third parties (or their property), he
violates a legal duty if he fails to honor that undertaking, where such failure
to act results to harm to a third party. While the duty may be based on his
prior conduct, it may also be inferred from “contractual assumption of
responsibility for the safety of a third party”
SAR & H v Estate Saunders 1931 AD 276 (Some authors argue that liability should be based on ‘assumption of
control of a (potentially) dangerous situation’ rather than contractual
undertaking).
VII) Creation of impression
that the interests of a third party will be protected
Where one
party creates an impression that the interests of a third party will be
protected, he has a legal duty to prevent prejudice to a third party who acts
on that impression. Compass Motors
Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 W
The
creation of impression will be considered together with other factors, such as
policy considerations, and boni mores
In the
above case the court considered the fact that the defendants were in control of
the premises; that they had made a contractual undertaking to ensure safety of
the interests of the third parties; and the fact that the defendant’s
occupation was one of ensuring security.
VIII)
Silence (Self-study)
Silence – the failure to say something – will be actionable only if it
conceals something which should have been revealed.
McCann v Goodall Group Operations (Pty) Ltd
1995 2 SA 718 (C)
Bowley v Steels (Pty) Ltd v Dalian
Engineering (Pty) Ltd 1996 2 SA 393 (T) 401
GROUNDS
OF JUSTIFICATION
Where one
is alleged to have wrongfully infringed the interest of another, he can raise a
special circumstance which renders his conduct lawful. Grounds of justification
get into the heart of wrongfulness. A conduct may be prima facie wrongful
for an obvious violation of a protected legal interest, BUT not unreasonable or
contra
bonos mores. They indicate
circumstances in which society condones a prima facie wrongful
conduct. As such they are in fact further expressions of society’s legal
convictions. – Mahele v Min of Safety & Security 1999 (1) SA 528 (SCA) 534
The
defendant bears the onus to prove the existence of a ground of justification. –
Mabaso
v Felix 1981 (3) SA 865 (A) 874
1 PRIVATE DEFENCE
Requirements
for the attack
a)
The attack must consist of human act
The
attack must be an act by a human – not an act by an animal. The act may be both
a commission and omission, although in most cases the attack consists of a
commission.
b) The attack must be
wrongful
When an attack
is threatening or violating one’s legally recognised interest (s), he is
entitled to act in defence of his interest. Legally recognised interests
include life, bodily integrity, honor and property or possession. R
v Ndara 1955 4 SA 182 A 184
c) The attack must already have commenced or imminently threatening,
but not yet ceased
The
defence must not be directed against the attack which is sometime in the future.
At the same time one need not wait until the attack has commenced, but can act
where the threat is imminent. However the attack must not have ceased.
R v Patel 1959 (3) SA 121 A
Hope v R 1917 NPD 145 at 146
S v Van Wyk 1967 (1) SA 488 (A)
S v Mogohlwane 1982 (2) SA 587 T
On the
other hand, there does not need to be fault on the part of the attacker, and the attack need not necessarily be
directed against the defender
R v K 1956 (3) SA 353 A
Ntanjana v Vorster & Min of Justice 1950 (4) SA 398 C
NB: To be successful the defendant
must not have consented to the attack, and that No one may consent to what is
unlawful.
Requirements for the defence
a) The defence must be directed against the person of the aggressor
One
must direct his defensive act against the attacker and not
any other person.
b) The defence must be
necessary to protect the threatened right
The act used in defence must have been
the only reasonable means to protect the threatened interest (Ntamo v Min of Safety & Security 2001 1 SA 830 TkHC 836).
Before resorting to private defence, the defender must have
been left with no other option or alternative affording him the best protection.
Thus, where other legal remedies could be
used to protect a threatened interest, the defender must use them.
Bakharia v Mia 1918 TPD 56 at 58
Thabethe v Min of Police 1981 3 SA
569 D 573
c) The act of defence must not be more
harmful than is necessary to ward off the attack
One must not use more force than is
necessary to avert the threat. In other words, the act
of defence must not be out of proportion with the
attack (this does not however means that the means used to defend oneself must
be equal to the means used by the attacker). Should the defender uses more
force than is necessary, his act will amount to wrongful conduct.
To determine whether the force used was
proportional to the threat or not, an objective test is used (i.e. the court must
put itself in the position of the defendant at the time of the attack).
(Ntsomi v Min of Law
& Order 1990 (1) SA 512 C 527-530; S v Motleleni
1976 (1) SA 403 A 406)
In
re S v Van Wyk 1967 (1) SA 488 A
2
NECESSITY
Where one can only protect his own
interest by reasonably violating the interest(s) of another, he can raise a
defence of necessity.
Necessity can be defined as “lawful
conduct directed against the innocent person for the purpose of protecting an
interest of the actor or a third party against a dangerous situation”
S
v Adams, S v Werner 1981 (1) SA 187 (A) 220
The fundamental difference between a
private defence and necessity is that, in private defence the victim is the
attacker, whereas in necessity the victim is an innocent third party
Q: How does one determine necessity?
The following are some of the guidelines
that are helpful in determining the existence of necessity:
i) The
state of necessity must be present, or imminent
The state of necessity must not be
expected sometime in the future. It must be shown that a state of necessity
exists, regardless of the cause. The state of necessity may have been caused by
human action, or animal, or the forces of nature.
The possible existence of the state of
necessity must be objectively determined. One considers whether the state of
necessity actually existed, and not whether the defendant believed it existed.
This is done by looking at the actual circumstances that prevailed at the time,
and the actual consequences that resulted. The fact that the defendant might
have been fearful is not that importance.
It is still debatable whether one can
successfully raise necessity where, where he himself has caused the situation.
One view is that one cannot rely on necessity which he himself created. S v Bradbury 1967 1 SA 387 A 393,404
Another view is that one should not be
deprived of defence of necessity merely because he is the cause of the situation
of necessity
R
v Mahomed 1938 AD 30
Moreover,
one may not rely on necessity where he is legally compelled to endure the
danger
Dickens v Lake (1906) 23 SC 201 at 204
Hugo v Page 1944 CPD 119
ii) The
interest harmed must not be more valuable than the interest protected
The protected interests need not only be
those of the defendant. One may act on necessity to protect the interests of
others.
However, protected interests need not
only be life.
Can necessity justify homicide?
S v Goliath 1972 (3) SA 1 (A)
R v Mtetwa 1921 TPD 227 at 230-232
iii) The
act of necessity must be the only reasonable possible means of escaping the
danger
In order to use the defence of necessity,
the defendant must be left with no other reasonable means, but to infringe on
another
iv) The defendant must not cause more
harm than it is necessary.
This relate to the intensive of the force
used in defending your legally protected interests.
NB: Different
authors in this field lists a number of guidelines or requisites for necessity.
However, I feel that the above is the best logical arrangement of requisites.
3 PROVOCATION
Provocation exists when one (defendant)
is provoked or incited by words or actions to cause harm to another (plaintiff).
Our courts recognise provocation as a complete defence.
The distinction between provocation and
private defence is that private defence seeks to avert the attack that is
imminent or that is being carried on, whereas provocation is a retaliatory
reaction to an attack that has already terminated
(a) Provocation and physical
assault
Generally, where the response to verbal
assault (insult) was physical assault, provocation is not a complete defence.
However, where provocation was in the form of a physical assault, a counter-assault
of a physical nature may give rise to a complete justification on the grounds
of provocation.
Whether one acted in response to
provocation is assessed objectively. The court weighs the conduct of the
plaintiff against the reaction of the defendant. The following requirements
must be complied with for reliance on provocation:
i)
that there was sufficient provocation to
warrant retaliatory action
The provocative conduct must be such that
a reaction to it by means of physical assault is Reasonable, and
accordingly Excusable.
Using an objective test, it must be
established whether a reasonable person in a similar position as the defendant
would have been provoked
Bester
v Calitz 1982 (3) SA 864 (O) 878-881
Bennett
v Min of Police 1980 (3) SA 24 (C) 3
Wapnick v Durban
City Garage 1984 (2) SA 414 D
ii)
that the retaliation occurred without
pre-meditation and in great and sudden anger (Jassat
v Paruk 1983 4 SA 728 (N)
734)
iii)
that the retaliation followed immediately upon
the provocation
The defendant’s conduct must be an
immediate and reasonable retaliation against the body of the plaintiff
The response must be immediate; and must
be a reasonable response to the provocation. In other words, objectively
viewed, there must be proportion, both in the nature, and degree of assault (Mordt v Smith 1968 (4) SA 750 (RA))
iv)
that the retaliation was moderate, reasonable
and commensurate in nature and degree with the provocation.
(b) Provocation in defamation &
insult
To successfully raise provocation in
cases of defamatory or insulting allegations two requisites must be satisfied:
i) Provocation must be of such a nature that a reasonable person in a
similar position as the defendant would also have reacted by defaming or
insulting the plaintiff; and
ii) A retaliatory defamation or insult must stay within the limits
This means that the insult must be an
immediate reaction following directly from the provocation, and must not be out
of proportion to the provocative conduct
4 CONSENT (VOLENTI NON FIT
INIURIA)
When one who is capable in law of
expressing his will may waive his rights by consenting to an act of the
defendant. In that case the causing of harm to his interests will not be unlawful.
One may consent to an injury, or to the
risk of an injury. The law maxim that is used to define this defence is volenti non fit iniuria (he who
consents cannot be injured).
Whether one consents to a specific form
of injury or to a risk of harm that might be caused by the actor’s conduct, the
same maxim applies.
The nature of consent
Consent
to injury is a unilateral act.
This implies that there need not be an
agreement between the injured party and the defendant (actor).
It can also be withdrawn unilaterally.
Consent
is a legal act that restricts the injured person’s rights.
As such it must be clear or apparent or
manifest (R v Taylor 1927 CPD 16, at
20).
Consent may either be expressly, or
tacitly; that is, one may consent in words or by conduct. Usually this may be
by way of incitement, encouragement, and invitation to injure oneself (but that
is not always the case).
On the other hand, mere submission or
knowledge of an injury does not amount to consent.
R v M
1953 4 SA 393 A
Generally, a prejudiced person must himself
consent, not someone else on his behalf.
However, there are exceptional
circumstances whereby others may consent on behalf of others.
Consent must be given, not after, but before the prejudicial
act.
And there is no ex post facto ratification.
Requirements for valid consent
i) The person consenting
must have full knowledge of the harm or risk involved in the defendant’s
conduct and the nature and the extent thereof
This
requires that one be informed of the risks involved, its nature and its full extent.
Castell v De Greef 1994 4 SA 408 C 425
The operation was performed
by the defendant, who is a plastic surgeon. It was not a success and the
plaintiff sues for damages. The circumstances in which the operation came to be
performed are E briefly as follows. The plaintiff's mother, and probably also
her grandmother, died of breast cancer. In 1982 the plaintiff underwent surgery
for the removal of lumps in the breast. In 1989 further lumps were diagnosed.
In view of the plaintiff's family history, her gynaecologist recommended a
mastectomy as a prophylaxis and referred her for this purpose to the defendant
who saw her on 14 June 1989. … The operation was initially a success in the
sense that upon completion all seemed well. On the morning of Wednesday, 9
August 1989, ie some 36 hours after the operation, the defendant observed a
discoloration of the left nipple and first became concerned about the blood
supply. He expressed this concern to the plaintiff. When the
plaintiff's dressings were changed at home on 14 August 1989, both she and a
friend, a Mrs Pickering, who assisted her, noticed a discharge from the area
immediately below and bordering on the right G areola and also from the left
areolar complex.
They also detected an
offensive smell.
The following day there was
no improvement. On Wednesday, 16 August 1989, the plaintiff went to see the
defendant at his rooms in Paarl as previously arranged. He assured her that the
discharge was to be expected and was a consequence of the necrosis.
As Van Oosten (op cit at 14-5) points out:
G 'South African law generally classifies volenti non fit
injuria , irrespective of whether it takes the narrower form of consent to
a specific harm or the wider form of assumption of the risk of harm, as a
ground of justification (regverdigingsgrond) that excludes the
unlawfulness or wrongfulness element of a crime or delict.'
For consent to operate as a defence the following requirements must, inter alia , be satisfied: H
(a) the consenting party 'must have had knowledge and been aware
of the nature and extent of the harm or risk';
(b) the consenting party 'must have appreciated and understood the
nature and extent of the harm or risk';
(c) he consenting party 'must have consented to the harm or
assumed the risk'; I
(d) the consent 'must be comprehensive, that is extend to the
entire transaction, inclusive of its consequences'.
Santam Insurance
Co. Ltd v Vorster 1973 4 SA 764 A 781
The Plaintiff was seriously injured in an accident while
being a passenger in one of the two cars involved in a dicing contest. The
plaintiff then claimed damages against the insurer of the other vehicle. The
first defendant (insurer) raised the defence of voluntary assumption of risk.
The court held that this defence is subjective in nature in
that the plaintiff must have consented to prejudice; that consent is inferred
from proven facts. Ultimately the court decided that the plaintiff had
consented to the normal risk associated with dicing contest rather than to
negligence on the part of the second defendant. As such, consent was absent as
the harmful conduct fell outside the limits of consent.
C v
Minister of Correctional Services 1996 (4) SA 292 (T) 300
An
obvious example is consent to surgery. In recent years the concept that consent
must be 'informed consent' has found favour with our Courts: see Castell v De Greef 1994 (4) SA 408 (C ) at 420I-421D and
425C-426G. In regard to surgery, informed consent
postulates full knowledge of the risks involved and, after
being made aware thereof by H the surgeon, the
patient is then entitled to exercise his 'fundamental right to
self-determination' (at 420I).
ii) The
consenting party must fully appreciate the nature and extent of harm
This
requires more than knowing the risk but that the one consenting comprehends and
understands the nature and extent of the risk.
iii) The
consenting person must subjectively consent to the prejudicial act
The party
consenting must consent to the harm or must assume the risk. In other words he
must have known the risk, appreciated it, and elected to encounter it.
See Lampert v Hefer 1955 (2) SA 507 A 509
L boarded a side-car driven by H who was visibly
intoxicated. As a result thereof, H caused an accident in which he died, and
caused injuries to L. L then sued the executor of H’s estate for damages. The
court accepted the defence of consent on the ground that when L entered the
side-car, he knew that H was highly intoxicated, yet L continued with a fatal
journey
iv) The consent must be permitted by legal order
The
consent must not be contra bonos mores, that is, it must not be against
public policy.
See S v Collet 1978 (3)
SA 206 RA
v) The person giving consent must be capable of volition
One must
be able to distinguish between right and wrong, and be able to act in
accordance with such knowledge, and the implications of his consent. However, he
does not have to have full legal capacity (minor may as well consent).
vi) Consent must be given freely or voluntarily
Where the
prejudiced party was forced to consent the harm, there is no valid consent (R v McCoy 1953 2 SA 4 (SR)).
C FAULT
1 Introduction
Fault
inquires into the blameworthiness of the wrongdoer’s state of mind at the time
a delict was committed. This is assessed subjectively, taking into account
factors such as his state of mind (intent) and any insufficient degree of care
exercised (negligence) at the relevant time of the wrongful conduct. Thus fault
manifests itself in two ways, namely, in the form of intention (dolus), or in
the form of negligence (culpa). For purposes of the actio legis Aquiliae, and
action for pain and suffering, either intention or negligence is
sufficient
Intention is present where the defendant has acted
with a reprehensible state of mind or mental disposition. Negligence is present
where one has acted with insufficient care to the prejudice of another.
However
any inquiry into fault should be preceded by an inquiry into the defendant’s
accountability.
2 INTENTION
The wrongdoer may direct his will to a result which is his principal
object, or he may direct it at a result, which he foresees might follow from
his conduct. There are three forms of intent, namely dolus directus, dolus
indirectus, and dolus eventualis.
a) Dolus directus
Direct intent is present where one actually desires a particular
consequence of his conduct
b) Dolus indirectus
This is present where one directly desires one consequence of his
conduct but at the same time he has knowledge that another consequence will
unavoidably result. For purposes of law, one is said to have intention with
regard to the second consequence.
c) Dolus
eventualis
This form of intention is present where one brings about the
consequence which he did not intend, but foresaw the possibility of its
occurrence while he intended to achieve a different consequence. While the
wrongdoer foresees the possibility of the unintended consequence, he reconciles
himself to the possibility of that second consequence. The question is not
whether the unintended consequence was reasonably foreseeable, but is whether
the wrongdoer actually foresaw the possibility of the consequence (subjective
foresight). In such a case the wrongdoer will be said to have intentionally
cause the second consequence even though he did not desire it.
Knowledge of Wrongfulness
In addition to directing his will at a particular result, the wrongdoer
must realize that his conduct is wrongful or at least foresee the possibility
of infringing upon someone’s right. Should he not realize wrongfulness of his
conduct, or where he believed to the existence of a ground of justification, he
will only be liable for negligence.
3 NEGLIGENCE
One is negligent when he pays
insufficient attention to his actions thereby failing to adhere to the standard
of care legally expected of him.
How do we determine if one has acted negligently or not?
In Kruger v Coetzee 1966 2 SA 428 (A) 430, it was held that:
“[f]or the purposes of liability culpa arises if -
(a) a diligens paterfamilias in the position of the defendant -
(i)would foresee
the reasonable possibility
of his conduct injuring another in his person or
property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
In the
case of Mukheiber v Raath 1999 3 SA 1065 SCA 1077 it was held that, for purposes of
liability, negligence arises if:
‘(a) a diligens paterfamilias in the position of the defendant
–
(i) would have foreseen harm of a general kind that actually occurred;
(ii) would have foreseen the general kind of causal sequence by which that
harm occurred;
(iii) would take reasonable steps to guard against it; and
(b) the
defendant failed to take those steps.
According to van der Walt and Midgley, a
conduct is negligent “if a reasonable person in the
same position as the defendant would have foreseen the possibility of harm and would have taken
steps to avoid the harm, and the defendant did
not take those steps”.
Therefore, our law uses a the objective standard of the reasonable person (bonus paterfamilias)
In terms of this, one is negligent if a
reasonable person in his position would have acted differently to avoid harm.
In order for a reasonable person to act,
the unlawful causing of damage must be foreseeable and preventable (See also Mkhatswa v Min of Defence 2000 (1) SA 1004 SCA
1111-1112)
3.1 Foreseeability of
Damage
What must
be foreseeable? Is it the general nature of harm or the specific damage?
There are two differing views regarding
the nature of foreseeability test, namely an abstract/absolute
approach, and a concrete approach.
Abstract
Approach
In terms of this approach the general nature of harm to others (BUT not the specific harm), must be reasonably
foreseeable.
The key question is whether the
wrongdoer’s conduct in general created an unreasonable risk of harm to others.
See: Herschel v Mrupe
1954 3 SA 464 A 474; Groenewald v Groenewald 1998 2 SA 1106 SCA 1112;
NB: Not a popular view even among the courts.
Concrete
Approach
This approach enjoys support amongst
academics and courts.
according to this approach, the general
nature of a particular harm must be foreseeable, in other words,
the wrongdoer must have foreseen (or
failed to foresee) not just the possibility of any harm in general, but a
particular harm
however, he need not foresee (or failed
to foresee) the precise nature and extent of the consequence.
it is sufficient if the particular
consequence was reasonably foreseeable.
the reason why this approach is preferred
is the fact that liability for negligence does not only lie on the
foreseeability of the consequence,
thus whether a reasonable person takes
steps to prevent the harm occurring depends on the general nature of a
particular consequence that he reasonably foresees, the manner it is caused,
and the possibility that it might occur (See: Mukheiber v
Raath 1999 (3) SA 1065 SCA 1077)
3.2 Preventability of Damage
The second part of the test for the
negligence is whether a reasonable person would have taken steps to prevent the
occurrence of harm.
Whether a reasonable person takes steps
or not to prevent harm depends on a number of factors. Van der Walt and Midgley
identify four factors, namely:
i) The
Nature and Extent of the risk inherent in the wrongdoer’s conduct
If the nature and extent of the risk were
not serious, a reasonable person would not take precautionary measures to
prevent it.
See:
Herschel v Mrupe 1954 3 SA 464 A
477
ii) The seriousness of damage
Where damage would be grave and serious,
when the risk did materialize a reasonable person would take steps to prevent
the risk even though it may not be serious.
(Ngubane v
SATS 1991 (1) SA 756 (A) 777)
iii) The
Relative Importance and Object of the Wrongdoer’s Conduct.
What are the interests that were served
or promoted by the wrongdoer?
we compare them to the risk inherent to
his conduct
if the purpose served is more important
than the risk, then a reasonable person would not prevent the harm.
Compare: S v Mkwanazi 1967 2 SA 593 N.
iv) The Costs
and Difficulty of Taking Precautionary Measures
- A
reasonable person would only take steps to prevent the risk of harm where that
can be done without substantial problems, prejudice or cost
- where
the costs are greater than the risk involved.
For an example, in Gordon v Da Mata 1969 3 SA 285 A, the AD held that a reasonable person would have
taken steps to prevent leaves from falling onto the floor where the plaintiff
slipped on a cabbage leaf.
See also: Mkwanazi
v Van der Walt 1995 4 SA 589 A, & the cases referred to in (ii) above
READ THE CIRCUMSTANCES UNDER WHICH NEGLIGENCE IS JUDGED
(Neethling 145-147)
4. CHILDREN (impubes)
How does
one apply the reasonable person test in the case of children?
Should
the fact that the wrongdoer is a child play any role when applying the test?
In 1965 the AD in Jones v Santam Bpk 1965 2 SA
542 A asserted that in determining whether the child was
negligent or not, an objective [Not Subjective]
test is always used.
Once, negligence on the part of a child
has been established, the second part of the enquiry is applied - i.e. whether
the child was culpae capax.
- This
is determined by taking into account all the subjective qualities of the child,
e.g. sufficient maturity of the child to measure up to the objective standard
of the reasonable person, background, where he grew up, whether he has been
exposed to a similar situation before, etc
NB: The
new approach is that there is no distinction between a child and an adult when
ascertaining negligence.
- However,
the traditional approach applied a reasonable child test (before 1965)
Read : Jones v Santam Bpk 1965 2 SA 542 A 551,552
Compare: S v T 1986 (2) SA 2 (O)
- The
approach in Jones case was
put in question in that the AD first ascertained negligence, then
accountability
- Roxa v
Mtshayi 1975 3 SA 761 A 765 – 766.
- However,
in Weber v Santam Versekeringsmaaskappy Bpk 1983 1 SA 381 A, the AD reaffirmed the approach in Jones
case.
- it
held that Jones case did not depart materially from common law.
5. EXPERTS
How should the test be applied where the
wrongdoer possesses expertise in regard to his allegedly negligent conduct?
- Regarding
experts, the test used is the test of a reasonable expert.
- it
is the slight modification of a reasonable person test.
- the
difference is that a reasonable measure of expertise is now required of a
reasonable person.
- the
conduct of an expert is measured against what is reasonably expected of a
reasonable person in the same profession.
- i.e.
look at the skills and diligence possessed and exercised at the time by the
members of the branch of the profession to which the practitioner belongs.
- the
principle /maxim used in cases where a skill is required for certain activities
is Imperitia Culpae Adnumeratur – literally- lack of skill is
deemed negligence.
- it
means it is negligence to undertake and activity requiring expert knowledge
without possessing the necessary expert knowledge.
- i.t.o
this principle, one is negligent for undertaking the activity knowing that
(where he should have known that) he did not have the necessary expert
knowledge.
See: Van Wyk
v Lewis 1924 AD 438
Durr v ABSA Bank Ltd 1997 3 SA 448
SCA
NB : IT IS UPON THE COURT TO DETERMINE
WHAT IS REASONABLE UNDER WHAT CIRCUMSTANCES.
6. CONTRIBUTORY
FAULT
Contributory fault serves to limit the
extent of he defendant’s liability where the plaintiff himself contributed to
the loss that he suffered
This area of delict is regulated by the
Apportionment of Damages Act 34 of 1956 (as amended by Apportionment of Damages
Amendment Act 58 of 1971)
The Common Law
Position
Under the Roman-Dutch Law, the general
rule was that the plaintiff could not claim damages from the defendant, where
he himself has been negligent
in other words, where both parties were
at fault, neither of them could claim damages, unless one of them was more
to blame than the other
The English law followed the same
approach for some time.
However, in 1842, the English law adopted
a new approach, according to which liability fell on the one who had the last
opportunity to avoid the loss-causing accident
Davies v Mann (1842)10 M&W 546
in 1945 the English legislature replaced
this rule with the principle of proportional division of damages according to
the degree of fault on each party
The South African law adopted the English
law position
The Apportionment of Damages Act
Section 1(1)(a) of the Act provides that
no party may be prevented from suing simply because he partly contributed to
his loss through his fault
in terms of this subsection, damages
should be apportioned according to each party’s contribution to the damages
Subsection 1(1)(b) amends the common law rule
in Davies v Mann (who has the last opportunity to avoid the consequences
the common law position that one cannot raise
a defence of contributory negligence where he intentionally caused loss to
another remains unchanged
See: Wapnick v Durban City Garage 1984 2 SA 414 D 418
Where the plaintiff intentionally causes his
own loss whilst the defendant is negligent, he forfeits his claim
Columbus Joint
Venture v ABSA Bank Ltd 2000 2 SA 491 W 512-513
On the other hand, the legal position is not
clear where there is intention on both parties
Greater
Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas
Bank 1997 2 SA 591W 606
The Criteria for the “apportionment of damages”
Q: How does one apportion the damages where
both parties were negligent?
A standard test is used for contributory negligence to apportion damages
to assign the
percentage of each party’s contribution to the damage, two positions (A or B) are followed in the South African law
Procedure for
apportionment
A Position 1
(followed prior to 1965)
– South British Insurance Co Ltd v Smit 1962 3 SA 826
A 835; AA Mutual
Insurance Association Ltd v Nomeka 1976 3 SA 45 A
1.
The extent to
which each party deviated from the standard of care expected of a reasonable
man is expressed in a percentage form, and
2.
the two
percentages are then compared to assign responsibility to each part in
connection with the damage concerned
3 A.1 First
establish the percentage of the plaintiff’s negligence, and
4 A.2 Then
establish the defendant’s percentage by MINUSING A.1 FROM A 100
THUS the
defendant’s deviation is the difference (that is, 100 minus the plaintiff’s
contribution)
5
A.3 The plaintiff’s claim is Defendant’s
deviation
|
OR
|
B Position 2
(post 1965)
Introduced
in 1965 by Jones v Santam Bpk 1965 2
SA 542 A
1.
The extent to
which each party deviated from the standard of care expected of a reasonable
man is expressed in a percentage form, and the two percentages are then
compared to assign responsibility to each part in connection with the damage
concerned
In terms of
this approach, if the plaintiff’s conduct contributed 40 percent, it does not
automatically follow that the defendant contributed 60 percent to the damage
It might be
possible that the defendant contributed 80 percent
2.
Then the two degrees must be compared to
determined separately the contribution of each party in relation to the damages,
For example: (plaintiff’s):
(defendant’s)
i.e. [P:D (P+D)
= 40:80 [40:80
(120)]
3.
Then split the
two for each party’s liability
That is:-
Plaintiff contribution = 40 divide 120 multiply by 100
40 / 120 x 100 = 33,3
Defendant contribution = 80 divide by 120 multiply by 100
80 / 120 x 100= 66,7
4.
B.4 the plaintiff’s claim will be the
defendant’s liability
That
is:- 66,7 percent of the total
damage claim
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