PVL3703-delict Q A 2013

1
CHAPTER 1 : INTRO
DEFINITIONS:
Delict:
A delict is an act of a person, which in a wrongful & culpable way causes harm to another.
QUESTIONS:
NAME THE 3 MOST NB DELICTUAL ACTIONS & INDICATE IN EACH INSTANCE FOR WHAT TYPE OF
DAMAGE EACH ACTION IS AVAILABLE & WHAT FORM OF FAULT IS REQUIRED TO INSTITUTE EACH
ACTION. (6) / (9)
1.Patrimonial damage (damnum inuria datum):

Damage for the wrongful & culpable (negl / int) causing of patrimonial damages ($) are claimed.
= Actio legis aquiliae.
2.Injury to personality:
Satisfaction for the wrongful & intentional injury to personality.
= Actio inuriarum.
3.Action for pain & suffering:

Compensation for injury to personality as a result of the wrongful & negl / int impairmnt of a bodily or
physical-mental integrity is claimed
DELICT & © ARE SIMILAR IN SO FAR AS BOTH OF THEM CONSTITUTE WRONGFUL CONDUCT IN
PRIVATE LAW. EXPLAIN WHAT THE DIFF’S ARE BTWN THEM (4)
DELICT BREACH OF ©
1. Excludes non-fulfilment of a duty to perform 1. Breach = Non-fulfilment of a contractual
(Real /R) obligation to perform (Personal /R)
2. Primary remedy = Damages 2. Primary remedy = Performance of the ©
STATE THE DIFF’S BTWN DELICT & CRIME (4)
DELICT CRIME
1. Protects private interests (Private law) 1. Protects public interests (Public law)
2. The aggrieved party institutes th action 2. The state prosecutes
3. Objective : Claim damages as compensation 3. Objectives : Punish the criminal
4. Cant have attempted delict 4. Can have attempted crime
O/N 03 = Q1B
WRITE NOTES ON THE “INDIRECT” APPLICATION OF THE BILL OF RIGHTS IN THE LAW OF DELICT (5)
Indirect Application :
Is all private law rules, principles & those regulating the law of Delict are subject to Chapter 2 of the
Cn (Nl: Fundamental Rights like, Right to religion, life, dignity, etc). Indirect application is about
delictual issues, eg: Infringement of 1 of your fundamental Rights. One first uses indirect application
before one uses direct application.
2
LIST 10 FUNDAMENTAL RIGHTS ENTRENCHED IN CHAPTER 2 OF THE CONSTITUTION WHICH ARE

RELEVANT TO THE LAW OF DELICT (5)
1. Religion
2. Speech
3. Life
4. Privacy
5. Property
6. Security
7. Education
8. Adequate housing
9. Good name
10. Dignity
3
CHAPTER 2 : CONDUCT
DEFINITIONS:
Conduct :
Is a voluntary human act or omission.
Voluntary Conduct :
The act must have been performed voluntary – X must have been able to control his bodily
movements.
QUESTIONS :
WRITE NOTES ON CONDUCT / ACT AS AN ELEMNT OF DELICT. INCL A BRIEF DISCUSSION ON THE
MOST NB DEFENCE EXCL THIS ELEMNT. (10)
Conduct:
1. Human : where an animal is used as an instrument a human act is still present. A jurustic person
can act through its agents (CO) & be held delictually liable for its actions.
2. Voluntary Conduct: The act must have been performed voluntarily – the wrongdoer must have
had control over his muscular movements.
The Defence of Automatism:

The voluntary conduct on the part of the defendant is a req for delictual liability.
The defendant could argue that the conduct complained of doesn’t satisfy the req of voluntariness.
This is where some1 acted mechanically (incapable of controlling his bodily movements):
1. Sleep (Dhlamini)
2. Unconscious
3. Fainting fit
4. Absolute compulsion (X grabs Ys hand & stabs P using Ys hand)
5. Serious intoxication
6. Black out
7. Epileptic fit (Victor)
If these are present a person is incapable of controlling his bodily movements = purely mechanical
action & that person raises the defence of Automatism – which must be proved on a balance of
probabilities by the defendant (onus on the defence). This defence wont succeed if the defendant
intentionally created the situation in which he acts voluntarily iot harm another (actio libera in causa).
Defendant may not successfully rely on this defence if he was negl in his automatic conduct. This
where the reasonable person would have foreseen the possibility of causing harm while in a state of
automatism.
Iro sane automatism (not MI) onus is on plaintiff to prove defendant acted voluntary & therefore nor
mechanically. Sane-A doesn’t mean there’s no voluntary act whatsoever by the defendant which
caused damage, but only that conduct in Q wasn’t vol.
O/N 97 = Q2A
MRS M DEEP IN THOUGHT WALKS ON SIDE WALK. TOO LATE SHE NOTICES THE PRESENCE OF A
HUGE HOLE IN MIDDLE OF SIDEWALK. SHE FALLS INTO HOLE & FRACTURES A HIP. IT TRANSPIRES
THAT THE HOLE WS DUG BY MUNICIPAL WORKERS TO IMPLEMNT A NEW SEWERAGE SYSTEM.
MRS M WANTS TO RECOVER DAMAGES FROM MUNICIPALITY. ONLY PRECAUTIONARY MEASURE
TAKEN BY THE MUNICIPALITY TO PROTECT THE PUBLIC WS TO CORDON OFF THE HOLE WITH A
SINGLE WHITE & RED RIBBON. ANSWR Q’s :
4
1.THE REPRESENTATIVE OF THE MUNICIPALITY AVERS THAT THE MUNICIPALITY DIDN’T ACT FOR
THE PURPOSE OF LAW, SINCE NO MUNICIPAL OFFICER WILLED MRS M’s INJURIES. BRIEFLY DISCUSS
THE MERIT OF THIS STATEMNT. (2)
Conduct can be in the form of a commission or omission. Liability for an omission is in general more
restricted than liability for a positive act (commission). The law is hesitant to find that there was a
legal duty on some1 to act positively & so to prevent damage to another. But this must be
distinguished from the case where a person fails to take precautions against the occurrence of
damage & his failure isn’t part of a positive act.
The municipality had a legal duty ito the legal convictions of the community to prevent this accident
from happening.
J/F 98 = Q1B
X FORGETS TO WARN Y THAT A CABLE IS CARRYING AN ELECTRIC CURRENT. Y TOUCHES CABLE &
SUSTAINS SERIOUS BURNS. AGAINST Y’s ACTIONS FOR DAMAGES, X RAISES A DEFENCE THAT HE
DIDN’T WILL OR DESIRE TO HARM Y & THAT HE THEREFORE DIDN’T ACT. DISCUS MERITS OF
DEFENCE. (2)
Conduct can be in the form of a commission or omission. Liability for an omission is in general more
restricted than liability for a positive act (commission). The law is hesitant to find that there was a
legal duty on some1 to act positively & so to prevent damage to another. But this must be
distinguished from the case where a person fails to take precautions against the occurrence of
damage & his failure isn’t part of a positive act.
Relevant case law: S v Russel has the similar facts & was found Guilty. So should X in these facts.
J/F 98 = Q1C // O/N 98 = Q1B // O/N 99 = Q1B

X IS BEING TREATED FOR EPLEPSY. HE FORGOT TO TAKE HIS MEDISYNE & DRIVES A CAR. WHILST
DRIVING X SUFFERS A EPILEPTIC FIT & CAUSES AN ACCIDENT, CAUSING DAMAGE TO Ys CAR. CAN X
SUSTAIN DELICTUAL LIABILITY DISCUSS BRIEFLY (4)
The Defence of Automatism :

automatism.
X will sustain delictual liability for the damage caused to Y.
O/N 01 = Q2A // O/N 02 = Q2A

JOHN & MARY GO TO A PARTY. JOHN CONSUMES A WHOLE BOTTLE OF RM. MARY NOTICES THAT
JOHN DRINKS TO MUCH, BUT STILL ACCEPTS A RIDE HOME WITH HIM. ON WAY TO MATY’S HOUSE,
JOHN LOSES CONTROL OVER THE CAR & COLLIDES AT HIGH SPEED WITH A TREE. MARY = BACK
INJURIES FOR WHICH SHE IS HOSPITALISED FOR A PERIOD OF 2 WEEKS. MARY WISHES TO RECOVER
HER MEDICAL EXPENSESS FROM JOHN.
1.JOHN AVERS THAT HE DIDN’T ACT VOL FOR THE PURPOSE OF DELICTUAL LIABILITY. ID HIS
DEFENCE & BRIEFLY DISCUSS THE MERITS THEREOF. (4)

5
Defendant may not successfully rely on this defence if he ws negl in his automatic conduct. This
automatism.
Thus, John will be delictually liable for Mary’s damages.
O/N 03 = Q2
X INVOLVED IN ACCIDENT WHILE DRIVING. X REGAINS CONSCIOUSNESS, HE HAS NO RECOLLECTION
OF HOW ACCIDENT TOOK PLACE. X HOSPITILISED & DURING TREATMNT FOR HEAD INJURIES
DOCTORS DETERMINE THAT HE SUFFERED AN EPILEPTIC FIT AT TIME OF ACCIDENT. CAR OF Y,
OTHER PERSON INVOLVED IN ACCIDENT IS BADLY DAMAGED. DISCUSS (10)
CAN IT BE SAID THAT IT WAS AN ACT ON PART OF X THAT DAMAGED Ys CAR?
Conduct:
1. Human: where an animal is used as an instrument a human act is still present. A jurustic person
The Defence of Automatism:

The vol conduct on the part of the defendant is a req for delictual liability.
This is where some1 acted mechanically (incapable of controlling his bodily movements):
1. Sleep (Dhlamini)
2. Unconscious
3. Fainting fit
6. Black out
probabilities by the defendant (onus on the defence).
Its not an act on the part of X cus he was acting out in a mechanical fashion, & wasn’t capable of
controlling his bodily movements.
WOULD IT MAKE A DIFF TO YOUR ANSW IF X HAD BEEN RECEIVING TREATMNT 4 EPILEPSY B4
ACCIDENT, BUT HE FAILED TO TAKE HIS MEDS B4 ACCIDENT TOOK PLACE?
Yes it would make a big difference, because…
This defence wont succeed if the defendant intentionally created the situation in which he acts
voluntarily iot harm another (actio libera in causa).
automatism.
6
Thus X will be delictually liable for the damage of Y.
M/J 06 = Q1.1
DEFINE CONDUCT (2)
Conduct:
M/J 06 = Q3.1
PETER & SUE GO TO PARTY. AT PARTY PETER DRINKS WHOLE BOTTLE OF RUM. SUE NOTICE HE
DRINKS TO MUCH BUT STILL ACCEPTS A RIDE HOME FROM HIM. SUE FORGETS TO BUCCLE UP. ON
WAY HOME PETER LOOSES CONTROL & HITS TREE. SUE = NECK & BACK INJURIES. SHE WANTS TO
RECOVER MEDICAL EXPENCES FROM PETER. PETER RAISES NR OF DEFENCES.
AUTOMATISM – WILL HE SUCCEED IN THIS DEFENCE – REFER TO CASE LAW & LEGISLATION : (10)
Conduct:
2. Voluntary Conduct : The act must have been performed voluntarily – the wrongdoer must have
The vol conduct on the part of the defendant is a req for delictual liability.
This is where some1 acted mechanically (incapable of controlling his bodily movements) :
1. Sleep (Dhlamini)
2. Unconscious
3. Fainting fit
6. Black out
probabilities by the defendant (onus on the defence). This defence wont succeed if the defendant
intentionally created the situation in which he acts voluntarily iot harm another (actio libera in causa).
automatism.
Iro sane automatism (not MI) onus is on plaintiff to prove defendant acted vol & therefore nor
mechanically. Sane-A doesn’t mean there’s no vol act whatsoever by the defendant which caused
damage, but only that conduct in Q wasn’t vol.
7
Peter wont succeed in this defence, cus he cant raise it due to the fact that he acted vol. He acted vol
in the fact that he knew that he was going to drive a car after the party, but drank anyway.
8
CHAPTER 3(1) : WRONGFULNESS
DEFINITIONS :
Conduct :
Voluntary haman act or omisson.
Nasciturus Fiction :
An unborn child is regarded as having been born whenever it’s in the child’s interests.
 J/F 97 = Q2
 O/N 97 = Q2B
 J/F 98 = Q2A, 2B
 O/N 98 = Q2
 O/N 99 =Q 2
 M/J 00 = Q2
 O/N 01 = Q3(A-G)
 M/J 02 = Q2
 O/N 02 = Q3(A-G)
 O/N 03 = Q3, 4A
 M/J 06 = Q1.2, 2.1
 O/N 06 = Q2.1, 3
QUESTIONS :
J/F 97 = Q2 // M/J 00 = Q2 // M/J 02 = Q2

WRITE NOTES ON THE GENERAL CRITERION OF WRONGFULNESS, AS WELL AS 2 NB DOCTRINES,
WHICH MAY BE CONSIDERED TO BE PRACTICAL APPLICATION THEREOF (10)
More precise methods of determining wrongfulness:

1. Infringement of a subjective /R
2. Non-compliance with a legal duty to act
1.Infringemnt of subjective /Rs :

TOMMIE MEYER CASE : Crts accepted the doctrine of subjective /Rs = wrongfulness consists of the
infringement of a subj /R. They said there was a duel r’shp.
1. Subject-object r’shp : Provides the holder of the /R with the power to use, enjoy & alienate the
object of his /R. The limits of his /Rs are determined by law.
2. Subject-subj r’shp : The holder of the /R can enforce his powers over a legal objects against all
other LS
5 Classes of /Rs :
1. Real /Rs : things, O’shp
2. Personality /Rs : good name
3. Personal /Rs : paymnt
4. Immaterial prop /Rs : intellect, copy right
5. Personal immaterial prop /Rs : earning capacity
2.Non-compliance with a legal duty to act :

Liability for an omission :
1. Prior conduct
2. Control of a dangerous object
3. Rule of law
4. Special r’shp between the parties
5. Particular office
9
6. Contractual undertaking for the safety of a 3rd party

7. Creating an impression that the interests of a 3 rd party would be protected.
O/N 97 = Q2B // O/N 03 = Q3 (similar to this Q)

1.WAS THE CONDUCT ON THE PART OF THE MUNICIPALITY WRONGFUL? DISCUSS WITH REFERENCE
TO RELEVANT CASE LAW (8)
Conduct :
Voluntary human act or omission.

GENERAL RULE : A person doesn’t act wrongfully for the purpose of law of delict where he fails to act
positively to prevent harm to another. There’s no absolute duty to prevent loss.
Liability follows only if an omission was in fact wrong – where a legal duty rested on the defendant to
act positively to prevent harm from occurring & he failed to comply with that duty.
Prior conduct :
A person acts prima facie wrongfully where he creates a new source of danger bmo a commission &
then fails to eliminate that danger, with the result that harm is caused to another person. Prior
conduct isn’t a prerequisite for the existence of a legal duty – but at 1 stage this was the only category
where liability was imposed on a failure to act.
Municipality cases :
1. HALLIWELL : (cobblestones or road surface) Result of this case is that you need PC to be liable for
an omission.
2. SILVA’S : (failed to rescue boat that drifted away) Result of this case is that the Majority agreed
on PC & the Minority didn’t agree on PC.
3. REGAL : (slate waste) Result of this case is that you don’t need PC to be liable. Rejection of PC was
ltd to interdicts.
4. MINISTER OF FORESTRY : (failure to control a fire) Result of this case is that you don’t need PC.
5. EWELS : (policeman failed to prevent assault) Result in this case is that you don’t need PC & this
was confirmed in VAN DER MERWE BURGER.
Due to these cases the municipality acted wrongfully due to the fact that they didn’t act positively
(omission) & is delictually liable for Mrs M’s damages.
J/F 98 = Q2A
WRITE BRIEF NOTES ON THE ROLE OF SUBJECTIVE /Rs IN THE DETERMINATION OF WRONGFULNESS
(5)

10
Infringemnt of subjective /Rs :
TOMMIE MEYER CASE : Crts accepted the doctrine of subjective /Rs = wrongfulness consists of the
infringement of a subj /R. They said there was a duel r’shp.
1. Subject-object r’shp : Provides the holder of the /R with the power to use, enjoy & alienate the
object of his /R. The limits of his /Rs are determined by law.
2. Subject-subj r’shp : The holder of the /R can enforce his powers over a legal objects against all
other LS
Classes of /Rs :
1. Real /Rs : things, O’shp
2. Personality /Rs : good name
3. Personal /Rs : payment
4. Immaterial prop /Rs : intellect, copy right
5. Personal immaterial prop /Rs : earning capacity
Infringement of a subj /R requirement :

A duel investigation is necessary to determine whether a /R has been infringed.
1. Determine whether holder of /R was disturbed in use & enjoyment of his /R.
2. Whether infringement complained of took place in a legally unreasonable manner.
J/F 98 = Q2B
DISCUSS THE ROLE OF SUBJECTIVE FACTORS IN THE DETERMINATION OF WRONGFULNESS (4)
In exceptional circumstances subjective factors do play a role in determining wrongfulness – a

defendant who plants deciduous trees on the boundary of his prop for the sole purpose of injuring his
neighbour = wrongful
Fact that defendant actually knew or subjectively foresaw that the plaintiff would suffer damage as a
result of his conduct, is taken into consideration in determining wrongfulness in cases of pure
economic loss or omissions.
O/N 98 = Q2
IS PRIOR CONDUCT A REQ FOR LIABILITY FOR AN OMISSION IN THE MUNICIPALITY CASES? DISCUSS
REFER TO CASE LAW.
Conduct :
Voluntary human act or omission.

Prior conduct :
11
an omission.
ltd to interdicts.
ANSW :
Yes PC is a req for liability for an omission only if it’s reasonable.
O/N 99 =Q 2 (SAME)
WHEN WILL AN OMISSION BE WRONGFULL DISCUSS WITH REF TO CASE LAW. (10)
M/J 06 = Q2.1 (SAME)

DISCUSS THE SO-CALLED OMMISSIO PER COMMISSIUNUM RULE WITH REF TO DEVELOPMENTS IN
CASE LAW? (10)

Prior conduct :
an omission.
ltd to interdicts.
O/N 01 = Q3(A-G) // O/N 02 = Q3(A-G)

TRUE OR FALSE :
12
A.THE BASIC TEST FOR WRONGFULNESS IS OBJECTIVE TEST (1)

True.
B.THE BASIC TEST FOR WRONGFULNESS IS THE REASONOBLE PERSON CRITERION (1)
False cus that’s negligence.
C.SUBJECTIVE FACTORS CAN NEVER PLAY A ROLE IN THE DETERMINATION OF WRONGFULNESS (1)
False they can.
D.STATE 2 DOCTRINES, WHICH MAY BE CONSIDERED PRACTICAL APPLICATION OF THE BASIC TEST
FOR WRONGFULNESS (2)
1. Infringement of subjective /Rs
E.WHICH AD DECISION IS THE BEST AUTHORITY ON THE WRONGFULNESS OF AN OMISSION? (1)

The Halliwell Case
F.ACC TO POSITIVE LAW ‘PRIOR CONDUCT’ IS AN INDISPENSABLE REQ FOR LIABILITY FOR
OMISSIONS (1)
True.
G.WHAT ROLE DOES CONTROL OF A DANGEROUS OBJ PLAY IN THE DETERMINATION OF

WRONGFULNESS? DISCUSS BRIEFLY (3)
Control over a dangerous obj can be factor in determining whether a legal duty rested on a person to
prevent some1 being injured by a particular situation.
2 Relevant Qs :
1. Whether there was actual control? Whether control was present can be adduced from the fact
that the defence had actually taken control over a dangerous situation, from the facts that the
defendant was the owner of dangerous obj or from statutory prov’s plaintiff control the
defendant.
2. In light of control, whether a legal duty rested on defendant to take steps to prevent damage
resulting from his omission to exercise proper control? Fact that defendant had been in control
of a dangerous obj isn’t necessarily enough to establish a duty to take precautionary measures
but may be a factor.
M/J 06 = Q1.2
NAME THE GENERAL WRONGFULNESS CRITERION & THE 2 DOCTRINES THAT MAY BE REGARDED AS
CONCRETE APPLICATION THEREOF (3)
The general test is the BONI MORES TEST.

And the 2 doctrines are:
O/N 06 = Q2.1
X IS THE PROUD OWNER OF A HORSE. Y POISONS HORSE & IT DIES. HOW DO YOU ESTABLISH
WHETHER Y’s CONDUCT WS WRONGFUL? EXPLAIN WITH REFERENCE TO THE GENERAL CRITERION
USED, A PRACTICAL METHOD THEREOF & 2 STAGES IN WHICH THE ENQUIRY WILL PROCEED. (5)
General test used is the BONI MORES TEST (Legal convictions of the community.

13
2 Stages in which enquiry will proceed:

1. Prior conduct
2. Control of a dangerous obj
O/N 06 = Q3
HOW IS WRONGFULNESS OF AN OMISSION DETERMINED IN OUR LAW? ALSO STATE 7 FACTORS
THAT CAN INDICATE THE EXISTANCE OF A LEGAL DUTY TO ACT POSITIVELY (10)

Liability for an omission:

1. Prior conduct
2. Control of a dangerous object
3. Rule of law
4. Special r’shp between the parties
5. Particular office
6. Contractual undertaking for the safety of a 3rd party
7. Creating an impression that the interests of a 3 rd party would be protected.
14
CHAPTER 3(2) : WRONGFULNESS : GOJs
DEFINITION :
Private Defence :
PD is present when the defendant directs his actions against another’s actual (or immediately
threatning) wrongful act, to protect his own legally recognised interests or the interests of another.
 J/F 97 = Q3A
 J/F 98 = Q3A
 M/J 00 = Q3A
 O/N 01 = Q4
 M/J 02 = Q3A
 O/N 02 = Q4
 O/N 03 = Q8A
 O/N 06 = Q4.1
QUESTIONS :
J/F 97 = Q3A // M/J 00 = Q3A // M/J 02 = Q3A

X & Y ARE SWORN ENEMIES. 1 DAY THEY UNEXPECTEDLY BUMP INTO EACH OTHER. X WHIPS OUT
A WATER PISTOL, DIRECTS IT AT Y & SAYS, ‘DIE YOU SCUM’. Y FIRMLY UNDER THE IMPRESSION
THAT HIS LIFE IS IN DANGER PRODUCES HIS REAL GUN & WOUNDS X IN THE FOREARM WITH A
QUICK SHOT. X WISHES TO RECOVER FROM Y THE MEDICAL EXPENSES FOR TREATMNT OF HIS
WOUND. IS THERE ANY GOJ AVAILABLE TO Y. DISCUSS BRIEFLY (5)
Yes PD is available to Y.
Private Defence :
threatening) wrongful act, to protect his own legally recognised interests or the interests of another.
X’s actions comply with the req’s of the attack, nl:

1. Attack must consist of a human act
2. Attack must be wrongful
3. Attack must have already commenced or be imminently threatening, but not yet completed.
Y’s actions comply with all the req’s of the defence, nl :

1. Defence must be directed at the attacker
2. Defence must be necessary to protect threatened /R
3. Defence cant be more harmful than necessary to avert the attack
J/F 98 = Q3A
R A ROBBER IS FLEEING THE POLICE. AS POLICE DOG STARTS TO BREATH DOWN HIS NECK, HE RUNS
INTO A ZOO & SEEKS REFUGE IN LARGE ENCLOSURE WITH A WIDE TRENCH AROUND IT. IT TURNS
OUT HE’S IN THE GORILLA CAGE, & HE’S NOT TO HAPPY WITH R. GORILLA CHARGES R, WHO FIRED
2 SHOTS WITH HIS PISTOL CAUSES THE GORILLA TO COLLAPSE, SERIOUSLY INJURED.
GORILLA HOSPITALISED IN PRIVATE CLINIC IN CITY WHERE IT’S TREATD FOR ITS WOUNDS. ZOO
AUTHORITIES WANT TO RECOVER FROM R EXPENCES IRO THIS MEDICAL TREATMNT.
ADVISE R WHETHER HE CAN SUCCESFULLY RAISE FOLLOWING GOJ & SUBSTANCIATE YOUR ANSW.
PRIVATE DEFENCE (1)
No R cant rely on PD cus on of the req’s for the attack is that it must consist of a human act.
O/N 01 = Q4 // O/N 02 = Q4
15
CAN A DEFENDANT RELY ON PD IF SHE HAS KILLED ANOTHER IOT PROTECT HER PROP? DISCUSS
WITH REF TO CASE LAW (5)
S v Van Wyk :
B4 this case it was held that killing another in protecting your prop can never be justified on basis of
PD.
In Van Wyk crt had to decide :

1. Whether you can rely on doctrine of defence when 1 has killed or injured another iot protect
your prop?
2. Whether ground of defence were exceeded in this case? – Look at whether steps taken by him
were only way of warding off the attack.
Van Wyk set up shot gun in his shop to protect his prop against thieves, who had been a problem in
past. A shot from gun killed burglar & VW prosecuted for murder.
Q: cud he succeed with PD?

Judges decided that setting up of gun was indeed only reasonable possibility if he wanted to protect
his prop. VW couldn’t be expected to sleep in his shop every night & burglar proofing, night
watchmen & watchdogs had proved ineffective. Police couldn’t guard shop & alarm system would
have been useless. VW hadn’t set up gun in way as to demonstrate any motive to kill. He also put
notice warning of danger on door of shop.
VW didn’t exceed bounds of justification – there must be no less harmful method of keeping prop &
where possible 1 should issue a warning shot.
This case isn’t general authority for killing in defence of prop – whether 1 is entitled to kill in defence
of prop will depend on facts of each case.
O/N 03 = Q8A // O/N 06 = Q4.1

DEFINE PRIVATE DEFENCE (2)
Private Defence :
threatening) wrongful act, to protect his own legally recognised interests or the interests of another.
16
CHAPTER 3(3) : WRONGFULNESS : GROUND OF JUSTIFICATIONS
DEFINITIONS :
Necessity :
A state of necessity exist when the defendant is placed in a position by superior force (vis major) that
he is able to protect his interests or those of some1 else, only by reasonably violating the interests of
an innocent 3rd party.
Provocation :
Provocation is present when a defendant is provoked or incited by words or actions to cause harm to
the plaintiff.
Consent :
Where a person is legally capable of expressing his will gives consent to injury or harm, the causing of
such harm will be lawful.
Volenti non fit inuria :

The defendant isn’t liable where the injured person has consented to injury – he who consents cant
be injured.
Statutory Authority :
A person doesn’t act wrongfully if he performs an act (which would otherwise have been wrongful)
while exercising a statutory authority.
Official Capacity :
Certain public officials (law enforcement & judicial officers) are authorised by law to perform certain
acts. Should they cause damage in the process, their conduct will be justified (lawful) & they wont be
liable.
 J/F 97 = Q3B,
 O/N 97 = Q3A, 3B,
 J/F 98 = Q3B, 4A,
 O/N 98 = Q3A, 3B,
 O/N 01 = Q2B,
 M/J 02 = Q3B, 10B,
 O/N 02 = Q2B,
 M/J 06 = Q2.2, 3.2,
 O/N 06 = Q4.2, 4.3, 5.1, 5.2,
QUESTIONS :
J/F 97 = Q3B
STATE THE CHARACTERISTICS (NOT REQ’S) OF CONSENT AS A GOJ (5)
1. Consent to injury is an unilateral act

2. Consent is a legal act, which restricts the injured persons /Rs, consent must be apparent of evi.
3. Consent must be given either expressly (words) or tacitly (conduct)
4. Consent must be given b4 the prejudicial conduct
5. As a rule the prejudiced person himself must consent – only in exceptional circumstances can
consent be given on behalf of that person.
O/N 97 = Q3A, M/J 02 = Q3B, // O/N 06 = Q5.1,

STATE 6 REQ’S FOR VALID CONSENT (6)
1. Consent must be given freely & voluntarily

17
2. Person giving consent must be capable of volition – must be intellectually mature enough to
appreciate the implications of his acts & mustn’t be MI or under the influence of the drugs.
3. Consenting person must have full knowledge of the extent of the prejudice.
4. Consenting party must realise or appreciate fully the nature & extent of the harm
5. Consenting party must subjectively consent to the prejudicial act.
6. Consent mustn’t be contra boni mores.
O/N 97 = Q3B
DISCUSS THE IMPORTANCE OF THE DECISION IN “CASTELL V DE GREEF” IRO CONSENT AS A GOJ (4)
Castell v De Greef :
Req :
Consenting party must have full knowledge of the extent of the prejudice.
In medical procedures a medical practitioner has a duty to inform a patient of any material risks
connected to the treatment.
Q : Extent of the doctor’s duty should be established :
In casu crt used reasonable doctor test : look at what the reasonable doctor would have told the
patient in the circumstances.
On appeal reasonable patient test was preferred : the doc’s duty to inform is to be established with
ref to the needs & expectations of the particular patient.
For a patients consent to be a GOJ that excludes wrongfulness – the doc is obliged to warn the patient
of any material risk :
A risk will be material if :
1. A reasonable person in the patients position, if warned of risk, would have attached significance
to it.
2. The doc is or should reasonably be aware that the particular patient if warned would attach
significance to it.
J/F 98 = Q3B,
R A ROBBER IS FLEEING THE POLICE. AS POLICE DOG STARTS TO BREATH DOWN HIS NECK, HE RUNS
INTO A ZOO & SEEKS REFUGE IN LARGE ENCLOSURE WITH A WIDE TRENCH AROUND IT. IT TURNS
OUT HE’S IN THE GORILLA CAGE, & HE’S NOT TO HAPPY WITH R. GORILLA CHARGES R, WHO FIRED
2 SHOTS WITH HIS PISTOL CAUSES THE GORILLA TO COLLAPSE, SERIOUSLY INJURED.
GORILLA HOSPITALISED IN PRIVATE CLINIC IN CITY WHERE IT’S TREATD FOR ITS WOUNDS. ZOO
AUTHORITIES WANT TO RECOVER FROM R EXPENCES IRO THIS MEDICAL TREATMNT.
ADVISE R WHETHER HE CAN SUCCESFULLY RAISE FOLLOWING GOJ & SUBSTANCIATE YOUR ANSW.
NECESSITY (4)
Necessity :
1 of the factors in determining necessity is present nl, the act of necessity must be the only
reasonable possible means of escaping from the danger. It wasn’t possible, in the facts, for R to flee.
Thus R can rely on necessity as a GOJ.

J/F 98 = Q4A
N REQUESTS R TO INSERT A GOLD RING IN HER NAVEL. A COUPLE OF DAYS AFTERWARDS HER
NAVEL STARTS TO FESTER. N CONSULTS A DOC WHO REMOVES THERING & TREATS THE WOUND. N
WANTS TO RECOVER HER MEDICAL EXPENSES FROM R. NAME THE GOJ WHICH R CAN RAISE, &
WHETHER RELIANCE ON THIS GROUND WILL BE SUCCESSFUL. (?)
18
R can raise the GOJ namely, consent.
Consent :
Requirements :
R relying on consent will succeed if he took all the necessary steps to tell N what the consequences of
this action could or would be.
O/N 98 = Q3A,
X, Y & Z ARE DRIFTING AROUND IN A BOAT ON THE OCEAEN W/O FOOD & WATER. TO STAY ALIVE X
& Y SLIT Z’s THROAT & EAT HIM. DID X & Y ACT OUT OF NECECCITY? CASE LAW (8)
Necessity :
Guidelines to determine Necessity :

1. An actual state of necessity must exist
2. Possible state of necessity must be determined objectively
3. State of necessity must be present or imminent
4. Defendant need not only protect his own interests but can protect the interest of another
5. Not only life or physical integrity but other interests like prop may be protected out of necessity
6. Person cant rely on necessity where he’s legally compelled to endure the danger.
7. Interest which is sacrificed mustn’t be more valuable than the interest protected.
8. The act of necessity must be only reasonable possible means of escaping from the danger.
9. Whether necessity can justify homicide :
R v Dudly :
Same set of facts apply in this case as those in the Q.
Crt rejected plea of necessity cus necessity can never justify killing an innocent person.
S v Goliath :
AD held that homicide may be justified in a state of necessity.
Here A killed B cus C threatened to kill A if he doesn’t.
Van Der Merwe :
Said that homicide may be justified by necessity. A single life can be sacrificed iot save more lives.
So…
Yes X & Y acted out of Necessity & will be succeed in this GOJ.
O/N 98 = Q3B
ASSUME SAME FACTS AS IN ABOVE Q. A DAY AFTER X & Y HAVE KILLED Z, THEY ARE PICKED UP BY
A RESCUE BOAT. LATER ACC TO MEDICAL EVI IT APPEARED THAT X & Y WOULD HAVE SURVIVED
SEVERAL DAYS EVEN IF THEY HADNT KILLED Z. DID X & Y ACT OUT OF NECESSITY. (2)
19
No they didn’t, cus the test for necessity is objective which means that we look at the actual facts of
the situation & not of what X & Y thought it was. X & Y had putative necessity & this isn’t a GOJ.
O/N 01 = Q2B // O/N 02 = Q2B // M/J 06 = Q3.2

JOHN & MARY GO TO A PARTY. JOHN CONSUMES A WHOLE BOTTLE OF RM. MARY NOTICES THAT
JOHN DRINKS TO MUCH, BUT STILL ACCEPTS A RIDE HOME WITH HIM. ON WAY TO MATY’S HOUSE,
JOHN LOSES CONTROL OVER THE CAR & COLLIDES AT HIGH SPEED WITH A TREE. MARY = BACK
INJURIES FOR WHICH SHE IS HOSPITALISED FOR A PERIOD OF 2 WEEKS. MARY WISHES TO RECOVER
HER MEDICAL EXPENSESS FROM JOHN.
ASSUME THAT THE CRT FINDS THAT JOHN HAS ACTED. JOHN NOW AVERS THAT MARY HAS
CONSENTED TO THE RISK OF INJURY. DISCUSS THE MERITS OF THIS CASE. (6)
Consent :
Consent to risk of injury :

The injured party consent to the risk of harm caused by the defendant’s conduct – the injured party
wont be able to guilty person delictually liable cus he has consented to the risk of such harm.
This usually applies to sport or stuff of such sort.
Requirements :
Here, Mary tacitly consented (conduct), cus by climbing into a car with a drunk person she tacitly
consented to any consequences flowing from this action. A RP wouldn’t have climbed into a car with a
drunk person. So, John may rely on consent as a GOJ.
M/J 02 = Q10B
NAME 5 FACTORS TO BE CONSIDERED IN DETERMINING WHETHER PUNISHMNT IS MODERATE &
REASONABLE. (5)
Power of discipline :
Acc to case law, following factors must be considered in determining whether punishment was
moderate & reasonable :
1. Nature & seriousness of the transgression
2. Degree of punishment or force inflicted
3. Physical & metal condition of the person punished
4. Gender & age of the child
5. Physical disposition of child
6. Means of correction &
7. Purpose & motive of person inflicting the punishment.
M/J 06 = Q2.2,
WRITE BRIEF NOTES ON PROVOCATION AS A DEFENCE (5)
Provocation :
20
Provocation is present when a defendant is provoked or incited by words or actions to cause harm to
the plaintiff.
Provocation in case of physical assault :

GEN RULE :
Provocation isn’t a complete defence where provocative word precede a physical attack – this is so
even where the words were gravely insulting & defamatory.
BUT : where provocation take form of physical assault, provocation can serve as a GOJ for counter-
assault of a physical nature.
Provocation will be a complete defence against an action based on assault if 2 req’s are met :
1. The provocative conduct must be of such a nature that the reaction to it bmo a physical assault is
reasonable = excusable – look at this objectively, would RP in the position of defendant have
acted the way the defendant did.
2. The conduct of the provoked defendant must be an immediate & reasonable retaliation against
the body of the plaintiff – so act of revenge mustn’t be out of proportion. Here the interests of
the provoked person is compared to those of the person who was doing the provoking.
O/N 06 = Q4.2,
DEFINE NECESSITY (3)
Necessity :
O/N 06 = Q4.3,
X OFFER TO TAKE Y’s WELL TRAINED DOG FOR A WALK, X SEES HIS SWON ENEMY Z. HE INSTRUCTS
DOG TO ATTACK Z. Z DRAWN HIS PISTOL & KILLS DOG. Y WANTS TO RECOVER VALUE OF DOG FROM
Z IN A DELICTUAL ACTION. EXPLAIN WHETHER Z HAS A GOJ (5)
Z can rely on necessity as a GOJ cus he was protecting his own interest nl, his life.
Necessity :

1. An actual state of necessity must exist
2. Possible state of necessity must be determined objectively
3. State of necessity must be present or imminent
4. Defendant need not only protect his own interests but can protect the interest of another
5. Not only life or physical integrity but other interests like prop may be protected out of necessity
6. Person can’t rely on necessity where he’s legally compelled to endure the danger.
7. Interest which is sacrificed mustn’t be more valuable than the interest protected.
8. The act of necessity must be only reasonable possible means of escaping from the danger.
9. Whether necessity can justify homicide: R v Dudly = no, S v Goliath = yes, Van der Merwe = yes.
O/N 06 = Q5.2
NAME THE REQ’S FOR PROVOCATION AS A GOJ (4)
Provocation will be a complete defence against an action based on assault if 2 req’s are met :
21
1. The provocative conduct must be of such a nature that the reaction to it bmo a physical assault is
reasonable = excusable – look at this objectively, would RP in the position of defendant have
acted the way the defendant did.
2. The conduct of the provoked defendant must be an immediate & reasonable retaliation against
the body of the plaintiff – so act of revenge mustn’t be out of proportion. Here the interests of
the provoked person is compared to those of the person who was doing the provoking.
22
CHAPTER 4(1) : FAULT
DEFINITIONS :
Intention :
A person acts intentionally if his will is directed at a result, which he causes while conscious of the
wrongfulness of his conduct.
Direct Intention : (dolus directus)

Where the wrongdoer desires a particular consequence of his conduct.
Indirect Intention : (dolus indirectus)

Where the wrongdoer directly intends 1 consequence but at the same time has knowledge that
another consequence will unavoidably follow. The causing of the 2 nd consequence is accompanied by
indirect intention.
Dolus Eventualis :
The wrongdoer while not desiring a particular result, forsees the possibility that he may cause the
result & reconsiles himself to this fact.
 O/N 97 = Q1B, 1C,

 J/F 98 = Q4B, 4C,
 O/N 99 = Q7A, 7B,
 O/N 01 = Q2C, 2D,
 O/N 02 = Q2C, 2D,
 O/N 03 = Q8B,
 M/J 06 = Q1.3, 1.4,
 O/N 06 = Q6.2, 7.1,
QUESTIONS :
O/N 97 = Q1B, // J/F 98 = Q4B,

NAME THE 2 ELEMNTS OF INTENTION (2)
1. Direction of will
2. Knowledge (consciousness) of wrongfulness.
O/N 97 = Q1C // O/N 06 = Q6.2,

NAME THE 3 FORMS OF INTENT & BRIEFLY EXPLAIN WHAT IS MEANT BY EACH OF THEM (6)
Direct Intention : (dolus directus)

Where the wrongdoer desires a particular consequence of his conduct.
Indirect Intention : (dolus indirectus)

Where the wrongdoer directly intends 1 consequence but at the same time has knowledge that
another consequence will unavoidably follow. The causing of the 2 nd consequence is accompanied by
indirect intention.
Dolus Eventualis :
The wrongdoer while not desiring a particular result, foresees the possibility that he may cause the
result & reconciles himself to this fact.
J/F 98 = Q4C
DIFFERERENTIATE BTWN IMPROPER MOTIVE (MALICE) & INTENT (3)
Motive is the reason for some1’s conduct & mustn’t mused be confused with intent.
23
Intent denotes a willed act which the wrongdoer knows is wrongful, Motive refers to the reason why
the person acts in a particular way – his desires or will.
So a person may, despite the fact that in his opinion he has a good motive, still act with intent.
But intent may be absent in a case where a person who has a bad motive but who believes his
conduct is lawful.
O/N 99 = Q7A, M/J 06 = Q1.3, (Def of accountability)

WHEN IS A PERSON ACCOUNTABLE (2)
Test for accountability :

A person is acc if he has the necessary mental ability to distinguish between right & wrong & that he
can act in accordance with such an appreciation.
O/N 99 = Q7B
WHEN DOES AN ACCOUNTABLE PERSON ACT WITH INTENT (2)
O/N 01 = Q2C, 2D // O/N 02 = Q2C, 2D

JOHN & MARY GO TO A PARTY. JOHN CONSUMES A WHOLE BOTTLE OF RUM. MARY NOTICES
THAT JOHN DRINKS TO MUCH, BUT STILL ACCEPTS A RIDE HOME WITH HIM. ON WAY TO MARY’S
HOUSE, JOHN LOSES CONTROL OVER THE CAR & COLLIDES AT HIGH SPEED WITH A TREE. MARY =
BACK INJURIES FOR WHICH SHE IS HOSPITALISED FOR A PERIOD OF 2 WEEKS. MARY WISHES TO
RECOVER HER MEDICAL EXPENSESS FROM JOHN.
(2C)ASUME THAT THE DEFENCE OF CONSENT TO THE RISK OF INJURY IS REJECTED BY THE CRT. JOHN
NOW AVERS THAT HE ISNT ACCOUNTABLE. DISCUSS THE MERITS OF HIS DEFENCE. (3)
Test for accountability :

A person is acc if he has the necessary mental ability to distinguish between right & wrong & that he
can act in accordance with such an appreciation.
Intoxication falls under the category of persons who lack the necessary accountability. Here, persons
who under the influence of intoxicating liquor or drugs MAY lack culpability. BUT the mere
consumption of liquor or the use of drugs may in a given situation be a NEGLIGENT act for which the
defendant MAY be held responsible.
Here, John is accountable cus he knew b4 he drove that he was going to drink.
ASSUME THAT JOHN WAS INDEED ACCOUNTABLE DID HE ACT INTENTIONALLY? (3)
Intention :
2 Elements of intention :
1. Direction of will
2. Knowledge (consciousness) of wrongfulness.
John didn’t act intentionally, cus he didn’t foresee the crash happening nor did he direct his will
towards that. He acted negligently.
O/N 03 = Q8B // M/J 06 = Q1.4 // O/N 06 = Q6.2,

DEFINE INTENTION (2)
24
Intention :
25
CHAPTER 4(2) : FAULT CONTINUED
DEFINITIONS :
Fault :
Refers to a blameworthy attitude of some1 who acted wrongfully.
Negligence :
Some1 is blamed for conduct which is careless, cus by giving insufficient attention to his actions, he
failed to adhere to the standard of care, legally required of him.
RP :
The RP is a fictitious person – not exceptionally gifted, careful but not some1 who recklessly takes
chances.
 J/F 97 = Q4(A&B), 5,
 O/N 97 = Q2C, 4(A-D),
 J/F 98 = Q3C, 5(A&B), 6(A-D),
 O/N 98 = Q4(A&B),
 O/N 99 = Q3, 4,
 M/J 00 = Q4(A&B), 5,
 O/N 01 = Q2(E-G),
 M/J 02 = Q4(A&B), 5,
 O/N 02 = Q2(E-G),
 O/N 03 = Q4(A&B), 5(A&B), 6,
 M/J 06 = Q1.5, 2.3, 3(3&4),
 O/N 06 = Q6.1, 7(1&2),
QUESTIONS :
J/F 97 = Q4(A&B), // M/J 00 = Q4(A&B), // M/J 02 = Q4(A&B),

X DRIVES HIS CAR LATE AT NIGHT. SUDDENLY A WELL-BUILT MAN APPEARS IN FRONT OF HIM &
STRIKES OUT AT THE CAR WITH A PANGA. X GETS A FRIGHT & SWERVES, HE COLLIDES WITH Y’s
PARKED CAR. IN AN ACTION FOR DAMAGES BY Y, X AVERS THAT IN VIEW OF THE CIRCUMSTANCES
OF THE CASE, HE DIDN’T ACT NEGL.
(A)DESCRIBE THE TEST FOR NEGL & MENTION THE MOST WELL KNOWN CASE IN WHICH THE TEST
WS FORMULATED (4)
The test for Negl was created in Kruger v Coetzee :

The RP in the position of the Df :
1. Would foresee the reasonable possibility of his conduct injuring another & causing him
patrimonial loss.
2. Would take reasonable steps to guard against such occurrence
And the Df failed to take such steps.
(B)DISCUSS THE DEFENCE RAISED BY X & THE REQ’S FOR A SUCCESSFUL RELIANCE THEREON (6)
Here the defense of X is that of the Doctrine Of Sudden Emergency & is a GOJ for Negl.
When a person has to take a decision in a situation of Sudden Emergency & there is insufficient
opportunity to consider all the consequences of his actions – this factor MUST be taken into account
in deciding whether he is Negl… Called Doctrine of Sudden Emergency.
3 Req must be met in this Doctrine for a Df’s action not to amount to negl :
1. The wrongdoer must have faced a situation of imminent peril. (=not negl)
26
2. The wrongdoer mustn’t have caused the situation through his negl – where a RP would in
any event have prevented the emergency situation – wrongdoer’s conduct wont be excused.
(Brown v Hunt).
3. The wrongdoer mustn’t have acted in a grossly unreasonable manner – established whether
a RP in the same circumstances would have made the same error in judgment as the
wrongdoer.
Here, X’s conduct didn’t amount to negl, cus the RP would have taken the same steps as X.
J/F 97 = Q5 // O/N 99 = Q4 // M/J 00 = Q5 // M/J 02 = Q5 // M/J 06 = Q3(4)

X IS A PASSENGER IN Y’s CAR. DUE TO Y’s NEGL DRIVING, THEY ARE INVOLVED IN A COLLISION. X HAD
NOT FASTENED HER SEATBELT. SHE IS HOSPITALIZED & HER MEDICAL EXPENCES AMNT TO R10 000. IF
SHE WORE A SEATBELT, HER INJURIES WOULD HAVE AMNTED TO R6000. X WISHES TO RECOVER HER
DAMAGES FROM Y. WHICH DEFENCE IS AVAILABLE TO Y? CASE LAW (10)
Contributory Fault :
Common Law :
Gen Rule : Fault on part of Pl precluded him from claiming damages from /df, who was also to blame
for causing the damages.
Doctrine Of Contributory Negl was created in Davies v Mann :

Pl haltered donkey in road – Df driving wagon collided with donkey = negl on both sides.
Ito ALL OR NOTHING RULE which was inforce at that time, Pl would have been unable to claim
damages from Df. BUT : crt adopted new approach, since Df has LAST OPPORTUNITY to avoid
collision, Pl negl ignored.
Crt accepted if negl of 2 people contributed to causing of particular result & 1 or both suffered
damages NEITHER could claim unless negl of 1 was DECISIVE CAUSE (who head last opportunity) of
accident = negl of other party ignored & he could claim full damages.
Common Law position changed by Apportionment of Damages Act.
Apportionment of Damages Act (1956) :

Fault incl both negl & int.
Df who negl caused Pl harm couldn’t ask for reduction in damages cus of Contributory Fault.
Distinction between 4 situations :

1. Df negl, Pl int = no claim.
2. Df int, Pl int = no claim.
3. Df int, Pl negl = full claim.
4. Df negl, Pl negl = Apportion the damages (Jones Case).
Criteria for Apportionment of damages :

patrimonial loss.
Sec 1 applies only to damages caused partly by fault of Pl & partly of Df.
RP test applies, here we are dealing with a deviation from the standard of care, which applies, to all
people in community.
Crt doesn’t take into account that Df’s conduct has contributed to harm to a greater extent than Pl’s
conduct. Crt is satisfied that negl of both parties are causally connected to damage, Q of causation is
27
solved. Method of determining, who should bear which portion of damage, involves a comparison of
the respective gedrees of negl.
B4 Jones Case :
AD accepted that once Pl’s degree of negl had been established its unnecessary to establish Df’s.
Eg : PL = 40%, Df = automatically 60%.
But in Jones Case :

AD said if Pl ws 30% negl it doesn’t automatically means Df was 70% liable. To establish degree of
negl, carefulness of conduct of each party must be measured separately against standards of RP.
If Df raises defense of contributory negl on part of Pl, he has the onus to prove on a balance of
probabilities.
Fault irt damage or the damage-causing event :

Q : Does Sec 1 apply where Pl wasn’t negl with regards to DCE but where his negl increased the
damages?
1. King Case : No Helmet, didn’t constitute contributory negl. Didn’t cause DCE = full damages.
2. Victoria Case : No seatbelt = contributory negl. It increased damages = no claim.
3. Uijs Case : No seatbelt cus refused to wear = contributory negl. Increased damages = no
claim.
So here both X & Y was negl. X didn’t wear seatbelt & thus increased damages. Y can rely on
contributory negl. Thus X can only claim R6000 for damages.
O/N 97 = Q2C,
MRS. M DEEP IN THOUGHT WALKS ON SIDE WALK. TOO LATE SHE NOTICES PRESENCE OF A HUGE
HOLE IN MIDDLE OF SIDEWALK. SHE FALLS INTO HOLE & FRACTURES HER HIP. IT TRANSPIRES THAT
HOLE WAS DUG BY MUNICIPAL WORKERS TO IMPLEMNT A NEW SEWERAGE SYSTEM. MRS M
WANTS TO RECOVER DAMAGES FROM MUNICIPALITY. ONLY PRECAUTIONARY MEASURE TAKEN BY
MUNICIPALITY TO PROTECT PUBLIC WS TO CORDON OFF HOLE WITH SINGLE RED & WHITE RIBBON.
(2C)WAS CONDUCT ON PART OF MUNICIPALITY NEGL? FIRST STATE GENERAL TEST FOR NEGL AS
RECOGNISED IN CASE LAW & THE APPLY THIS TEST TO THE FACTS OF THIS CASE (7)
patrimonial loss.
Test for negl rests on 2 pillars :

1. Reasonable foreseeability
2. Reasonable preventability of damages.
1.Reasonable Foreseeability :
2 Views to this test :

1. Abstract (Absolute) Approach : If harm to others were in GENERAL reasonably foreseeable
it’s sufficient. Its not a req for negl that extent of damages or a particular consequence that
actually occurred should have been reasonably foreseeable – it’s enough if damages in
GENERAL was reasonably foreseeable. Mrupe : X liable when hit another car carrying
expensive china.
28
2. Concrete (Relative) Approach : this based on premise that a person’s conduct can only be
negl iro a SPECIFIC CONSEQUENCE/S – it’s a prerequisite for negl that the occurrence of a
particular consequence must be reasonably foreseeable. UNISA Prefers This Approach.
2.Preventability :
Req’s for Preventability :

1. Nature & extent of the risk inherent in the wrongdoers conduct : Fact that nature & extent
isn’t serious or harm foreseen is slight, may have the result that the RP despite fact that
harm was reasonably foreseeable, wouldn’t have taken steps to prevent it. Wasserman :
Bees in police station. Policeman tried to locate them, stung in lip & died. RP wouldn’t have
taken steps to prevent harm from occurring – death wasn’t reasonably foreseeable.
2. Seriousness of the damage, if risk materializes & damage follows : Where wrongdoer’s
conduct creates the possibility of grave & extensive damage occurring, he should take
reasonable steps to prevent such damage, even though there’s only a slight possibility that
damage will actually materialize. Basson : Df E’ed by Pl to erect a roof on top of a silo –
during welding, sparks ignited bales of stover stacked against the silo. RP would have taken
steps to prevent damage from occurring cus the damage which could result was extensive.
3. The relative importance & objective of the wrongdoers conduct : It may be that the interest
served by conduct is of such a nature that it’s more NB than the risk of harm, which it
involves = RP wouldn’t have taken steps to prevent the harm. Eg : ambulance driver exceeds
speed limit in a urben area while taking a seriously ill patient to the hospital.
4. Cost & Difficulty of taking precautionary measures : When risk of harm can be eliminated or
reduced w/o substantial problems, prejudice or costs, it may be excepted that the RP would
take precautionary measures. But where cost & difficulty in taking precautionary measures is
greater than risk the RP wouldn’t take steps to reduce risk. Gordon v Da Mata : Pl slipped on
cabbage leaf which was on floor of Df’s grocery store. Leaf fell to ground while Df’s assistant
was slashing off cabbage leaves. RP would have taken steps to prevent leaves from falling to
ground by collecting them – this would be simple & inexpensive. City of Salisbury v King : Pl
slipped on a pice of vegetable on floor of a large market while the sale of veggies was in
progress. Mere presence of veg matter on floor didn’t in itself indicate negl conduct. Would
be unreasonable, expensive & unrealistic to expect immediate removal of veg matter as it fell
to floor.
Here the municipality was negl. Here the 4th req of preventability would apply. It wouldn’t have been
expensive nor difficult to put up a sign indicting that there was a manhole in the sidewalk.
O/N 97 = Q4(A-D) // J/F 98 = Q6(A-D)

IMAGINE ONE CLAIMANT & ONE DEFENDANT IN A SET OF FACTS. ASSUME THAT THE Df’s CONDUCT
COMPLIES WITH ALL THE ELEMNTS OF A DELICT & THAT THE CLAIMANTS CONDUCT WITH REGARD
TO HIS DAMAGES IS ALSO BLAMEWORTHY (HE ALSO HAS FAULT). BRIEFLY DISCUSS IN EACH 1 OF
THE FOLLOWING SITUATIONS THE EFFECT OF CONTRIBUTORY FAULT ON AN ACTION FOR DAMAGES
INSTITUTED BY THE CLAIMANT AGAINST THE Df.
(A)WHERE BOTH THE CLAIMANT & Df ARE BOTH NEGL (4)
If the Pl & the Df acted negl you must apportion their damages.
Jones Case : The AD said if the Pl is 30% negl it doesn’t automatically mean the Df is 70% liable.
To establish the degrees of negl, the carefulness of the conduct of each party must be measured
separately against the standards of the RP.
(B)WHERE THE Pl’s FORM OF FAULT IS CONTRIBUTORY NEGL & THE Df ACTED INTENTIONALLY (1)
Here the Pl will be able to claim full damages.

29
(C)WHERE THE Pl FORM OF FAULT IS CONTRIBUTORY INT & THE Df ACTED NEGL (4)
Where the Pl intentionally contributed towards his own loss, while the Df was merely negl – the Pl
forfeited his claim.
Victoria Case : the Pl didn’t wear a seatbelt & increased her damages = No claim.
(D)WHERE BOTH THE Pl & Df ACTED INTENTIONALLY (1)
Where the Pl acted with int & the Df acted with int, there will be no claim awarded.
J/F 98 = Q3C,
R A ROBBER IS FLEEING POLICE. POLICE DOG STARTS TO BREATH DOWN HIS NECK, HE RUNS INTO A
ZOO & SEEKS REUGE IN A LARGE INCLOSURE WITH A WIDE TRENCH AROUND IT. ENCLOSURE
HOUSES A LARGE GORILLA, WHO ISNT HAPPY WITH R’s INTRUSION ON ITS TERRITORY. GORILLA
CHARGES AT R, WHO FIRED 2 SHOTS WITH HIS PISTOL CAUSES GORILLA TO COLLAPS, SERIOUSLY
INJURED.
GORILLA HOSPITILISED IN A PRIVATE CLINIC IN CITY WHERE IT IS TREATED FOR ITS WOUNDS. ZOO
AUTHORITIES WANTS TO RECOVER FROM R IRO THIS MEDICAL TREATMNT.
(3C)ASSUME FOR PURPOSE FOR REST OF YOUR ANSW THAT R’s CONDUCT WAS WRONGFUL.
ADVISE R WHETHER HE CAN AVOID LIABILITY BY RELYING ON THE DOCTRINE OF SUDDEN
EMERGENCY (5)
Doctrine of Sudden Emergency :

3 Req must be met in this Doctrine for a Df’s action not to amount to negl :
any event have prevented the emergency situation – wrongdoer’s conduct won’t be excused.
(Brown v Hunt).
wrongdoer.
Here R’s conduct was negl. He created the situation through his own negl & thus according to the
req’s of this Doctrine he his actions wont be excused.
J/F 98 = Q5(A&B), M/J 06 = Q1.5,

(5A)WRITE DOWN THE TEST FOR NEGL AS FORMULATED IN ‘KRUGER v COETZEE’ (3)

patrimonial loss.
(5B) MUST THE TEST FOR NEGL BE ADAPTED WHEN APPLIED TO A CHILD WRONGDOER? DISCUSS
CRITICALLY THE DEVELOPMNT OF OUR CASE LAW IN THIS REGARD. (7)
Before 1965 :
30
There was a tendency for the crts to take into account the youthfulness of the wrongdoer in
determining his negl = test for negl bmo the conduct expected from the Reasonable Child of the
wrongdoers age & intellectual development
In 1965 :
Jones v Santam :
AD adopted a new approach to determine negl w.r.t. children. Crt implied that criteria for
determining negl is always objective in the sense that in all situations the test of the RP is applied.
Acc to this approach in determining if a child acted with negl :

1. See whether the child concerned met the standard of care required of a RP.
2. Ask whether the child was accountable for his actions.
Criticism on this approach :

1. Seem that earlier test of the reasonable child was more acceptable.
2. its clear that the crt in Jones placed the cart b4 the horse by 1 st looking into fault & then into
accountability.
Roxa v Mtshayi :
AD accepted this criticism by 1st testing accountability & then for negl.
O/N 98 = Q4(A&B)
(4A)…X & Y ARE INVOLVED IN A CAR ACCIDENT, THEY ARE BOTH DRIVING THEIR OWN CARS. THE
ACCIDENT OCCURRED ON A STRAIGHT STRETCH OF ROAD WITH 2 LANES. THE ACCIDENT WS A HEAD
ON COLLISION. X HAD BEEN TRAVELING IN AN EASTERLY DIRECTION & Y IN A WESTERLY DIRECTION.
BUT AT THE MOMENT OF IMPACT BOTH VECHICLES ARE IN THE LANE MOVING IN THE WESTERLY
DIRECTION. WAS X NEGLIGENT? (5)
Negl judged in the light of the surrounding circumstances :

It must be self-evident that the negl of conduct may only be evaluated in light of all the relevant
circumstances of a particular case.
In the facts there were no witnesses to the collision thus the Presumption = res ipsa loquitor –
creates a presumption of negl :
Its contended that this Doctrine creates a presumption of negl, but the current position is that there’s
no shift of the onus of proof in such a case. The Df may still submit evi to show that what happened
was not due to any negl on his part.
Here X is negl cus of this Doctrine cus his car is in the wrong lane.
(4B)ASSUME SAME FACTS AS ABOVE. WOULD IT MAKE ANY DIFF TO YOUR ANSW IF X HAD SWERVED
TO THE WRONG SIDE OF THE ROAD CUS A WELL BUILT MAN HAD SUDDENLY APPEARED ON THE
SIDEWALK & STRUCK AT X’s CAR WITH A PANGA (5)
Yes it would make a diff to my answ cus…
Here the defense of X is that of the Doctrine Of Sudden Emergency & is a GOJ for Negl.
31
3 Req must be met in this Doctrine for a Df’s action not to amnt to negl :
(Brown v Hunt).
wrongdoer.
Here, X’s conduct didn’t amnt to negl, cus the RP would have taken the same steps as X.
O/N 99 = Q3, // M/J 06 = Q2.3,

WRITE NOTES ON WAY IN WHICH CRTS HAVE DETERMINED NEGL OF A CHILD B4 & AFTER 1965? (10)
Before 1965 :
In 1965 :
Jones v Santam :
AD adopted a new approach to determine negl wrt children. Crt implied that criteria for determining
negl is always objective in the sense that in all situations the test of the RP is applied.


accountability.
Roxa v Mtshayi :
O/N 01 = Q2(E-G) // O/N 02 = Q2(E-G)

JOHN & MARY GO TO A PARTY. IN COURSE OF EVENING JOHN CONSUMES WHOLE BOTTLE OF RUM.
MARY NOTICES THAT JOHN DRINKS TOO MUCH, BUT STILL ACCEPTS AN OFFER FROM HIM TO DRIVE
HER HOME. ON WAY TO MARY’S HOUSE, JOHN LOSES CONTROL OVER CAR & COLLIDES AT HIGH
SPEED WITH TREE. MARY SUSTAINS INJURIES FOR WHICH SHE IS HOSPITALISED FOR A PERIOD OF 2
WEEKS. MARY WISHES TO RECOVER HER MEDICAL EXPENSES FROM JOHN.
(2E)ASSUME THAT JOHN DIDN’T ACT INTENTIONALLY. DID HE ACT NEGL? DISCUSS BRIEFLY WITH
REF TO CASE LAW. (4)

patrimonial loss.
32
Acc to this test John acted negl.
(2F)ASSUME THAT JOHN DID ACT NEGL. JOHN AVERS THAT MARY HAD CONTRIBUTORY INTENT IRO
HER DAMAGES. DISCUSS THE MERITS OF THIS ASSERTION & INDICATE WHAT THE EFFECT OF
SUCCESSFUL RELIANCE THEREON WOULD BE (8)
M/J 06 = Q3(3)
Voluntary assumption of risk & contributory fault (intent) :

Irt contributory fault, voluntary assumption of risk is a ground that cancels fault BUT isn’t a GOJ.
Assumption of risk implies that req’s of the GOJ are absent.
When Pl or injured party are well aware of the risk of danger but willfully exposes himself to it, he acts
intentionally & blame in the form of contributory intention attaches to him.
His conduct must also be consciously unreasonable = not directed to achieving a lawful goal.
Where Pl acted with contributory int, the fault of the Df is eliminated.
Although Df is also at fault, he isn’t liable towards the Pl cus of the fact that the Pl himself acted
intentionally.
Lambert v Hefer :
Pl sat in sidecar of bike knowing that Df is drunk & unable to control bike, had an accident & Pl injured
& Df killed. Pl claimed damages from Df’s estate.
Contributory int applies cus Pl was aware of danger & possibility of injury BUT decided to expose
himself to risk, thus the remedy wasn’t available to her.
Netherlands Insurance CO v Van Der Vyver :

O suspected of cheating by his wife. She hired PI (V) to spy on O. V followed O to spot in veld, O had a
woman with him in car. V approached car & O started to drive off. V jumped on bonnet of car to make
O stop but O accelerated & swerved from side to side finally dislodging V. V injured & claimed
compensation from O’s car insurer.
Crt held :
O was 50% negl & V 50% negl. So V only got half of his damages.
On appeal :
Held that O acted with int & crt rejected the defense that V had consented to risk of injury = this
failed.
Thus Mary had contributory intent cus she was aware that John was drunk & was aware of the danger
or possibility thereof to drive with John.
(2G)..ASSUME THAT JOHNS DEFENCE OF CONTRIBUTORY INT FAILS. JOHN NOW AVERS THAT SINCE
MARY HADNT FASTENED HER SEATBELT SHE WS CONTRIBUTORY NEGL IRO HER INJURIES. DISCUSS
MERITS OF DEFENCE WITH REF TO ‘KING V PEARL INSURANCE CO’ & OTHE RELEVANT CASES &
INDICATE WHAT EFFECT OF SUCCESSFUL RELIANCE THEREON WOULD BE. (7)

Q : Does Sec 1 apply where Pl wasn’t negl wrt DCE but where his negl increased the damages?
King Case :
Ruled on fact that the Pl’s failure to wear a helmet while driving a scooter, which was involved in a
collision with a car – didn’t constitute contributory negl.
Judge based his decision on argument that only negl wrt the DCE as opposed with negl irt the
damage, is taken into consideration for the purpose of the Act.
This approach was criticized in :
Victoria Case :
Said that failure to wear a seatbelt does constitute contributory negl.
33
Crt was of opinion that contributory negl of a Pl who deliberately fails to wear his seatbelt will be
greater than a Pl who bona fide forgot. (Increased damages = no claim).
Uijs Case :
Passenger failed to put on seatbelt after requested to by driver. (Increased damages = no claim).
Here Mary didn’t wear a seatbelt thus she increased her damages. Ito King she would be able to claim
full damages BUT acc to Victoria & Uijs she wont be able to claim the extra costs due to her
contributory negl to her own damages.
O/N 03 = Q4(A&B),
X STOPS AT PETROL STATION TO HAVE TANK OF HIS CAR FILLED UP. WHILE WAITING FOR PUMP
ATTENDANT HA SEES ANOTHER PERSON DRIVE OFF, THROWING A CIGARETTE BUTT OUT OF
WINDOW.. AN EXPLOSION TAKES PLACE & NEXT MOMNT THERE IS A FIRE ON THE DRIVEWAY CLOSE
TO 1 OF THE PETROL PUMPS. X REALISES THAT CIGARETTE BUTT HAS IGNITED SOME PETROL THAT
HAS SPILT THERE.
HAVING A QUICK LOOK AROUND X SEES A HOSEPIPE USUALLY USED TO WASH CARS. HE OPENS TAP
WIDELY & SPRAYS WATER ON FIRE.
BUT WATER DOESN’T EXTINGUISH THE FIRE. RATHER BURNING PETROL START TO FLOAT ON TOP
OF WATER & IS DRIVEN BY FORCE OF WATER STREAM FROM THE HOSEPIPE UNDER A CAR
BELONGING TO Y ANOTHER CUSTOMER AT THE FILLING STATION.
Y’s CAR CATCHES FIRE & BY TIME PUMP ASSISTANT HAVE MANAGED TO EXTINGUISH FIRE WITH
FOAM FIRE EXTINGUISHERS CAR IS BADLY DAMAGED.
ANSW FOLLOWING Q’s :
(A)WAS X’s CONDUCT WRONGFUL? DISCUSS WITH REF TO TEST FOR WRONGFULLNESS & A
POSSIBLE DEFENCE X MAY RAISE (10)
Test for wrongfulness :

To determine wrongfulness = DUAL INVESTIGATION :
1. Was there an infringement of a legally protected interest – the act must have harmful
consequences.
2. If the interest has been prejudiced, legal norm are used to determine if it occurred in a
legally reprehensible manner (unreasonable manner) – Boni Mores Test.
Here X’s conduct was wrongful cus (1) it infringed Y’s real /R to his prop. & the act occurred in a
unreasonable manner.
Here X may raise the defense of Necessity as a GOJ & may succeed in this defense.
Necessity :
A state of necessity exists when the Df is placed in a position by superior force (vis major) that he is
able to protect his interests or those of some1 else, only by reasonably violating the interests of an
innocent 3rd party.

1. An actual state of necessity must exist.
2. The possible existence of a state of necessity must be determined objectively.
3. The state of necessity must be present or imminent.
4. The Df need not only protect his own interests, but can protect the interests of another.
5. Not only life or physical integrity but other interests like prop may be protected out of
necessity.
6. A person cant rely on necessity where he’s legally compelled to endure danger
7. The interests which is sacrificed must be more valuable than the interest which is protected.
34
8. The act of necessity must be the only reasonable possible means of escaping from the
danger.
9. Whether necessity can justify homicide: R v Dudley = No! S v Goliath = Yes! Van Der Merwe
= Yes!!
(B)ASSUME THAT X DID ACT WRONGFULLY. WAS X NEGL? DISCUSS WITH REF TO TEST FOR NEGL & A
POSSIBLE DEFENCE THAT X MIGHT WANT TO RAISE (10)

patrimonial loss.
Here X was negl cus he complies with the above test.
X may raise the defense of Doctrine of Sudden Emergency.
Doctrine of Sudden Emergency:

3 Req must be met in this Doctrine for a Df’s action not to amnt to negl :
(Brown v Hunt – Petrol attendant spilled petrol & it caught fire. PA tried to put out fire with
water, this drove the flame to Pl’s car, which was completely destroyed.).
wrongdoer.
Here, X’s conduct didn’t amnt to negl, cus the RP would have taken the same steps as X.
O/N 03 = Q5(A&B), // O/N 06 = Q7(1&2)
(A)WHEN IS A CHILD ACCOUNTABLE? DISCUSS (4)
Test for accountability:

A person is accountable if he has the necessary mental ability to distinguish between right & wrong &
that he can act in accordance with such an appreciation.
A child’s accountability falls under persons who lacks the necessary accountability:
Youth:
1. 0 – 7 = always lack accountability – there’s a irrebuttable presumption that he isn’t
accountable.
2. 7 – 14 = there’s a rebuttable presumption that he lacks accountability – he’s assumed
unaccountable until the contrary is proven.
3. 14 – UP = accountable on a balance of probabilities.
Thus a child will be accountable if he’s over the age of 14.

35
(B)HOW IS THE NEGL OF A CHILD WRONGDOER ESTABLISHED? DISCUSS (6)
Before 1965 :
In 1965 :
Jones v Santam :
AD adopted a new approach to determine negl wrt children. Crt implied that criteria for determining
negl is always objective in the sense that in all situations the test of the RP is applied.


accountability.
Roxa v Mtshayi :
O/N 03 = Q6
X GIVES Y A LIFT IN HER CAR. WHILE DRIVING X TALKS ON CELL PHONE, TO SEVERAL ADMIRERS &
ALSO TOUCHES UP HER MAKE UP. SHE COLLIDES WITH A TREE. Y DIDN’T WEAR SEATBELT IS INJURED.
Y HOSTIPILISED & INCURS HOSPITAL COSTS OF R10000. IF Y WORE SEATBELT IT WOULD HAVE BEEN
R6000. Y INSTITUTES ACTION AGAINST X FOR R10000. X APPROACHES YOU FOR LEGAL ADVISE.
ADVISE X TO RELEVANT CASE LAW & LEGISLATION (10)
Contributory Fault :
Common Law :
Gen Rule : Fault on part of Pl precluded him from claiming damages from /df, who was also to blame
for causing the damages.
Doctrine Of Contributory Negl was created in Davies v Mann :
Pl haltered donkey in road – Df driving wagon collided with donkey = negl on both sides.
Ito ALL OR NOTHING RULE which was inforce at that time, Pl would have been unable to claim
damages from Df. BUT: crt adopted new approach, since Df has LAST OPPORTUNITY to avoid collision,
Pl negl ignored.
Crt accepted if negl of 2 people contributed to causing of particular result & 1 or both suffered
damages NEITHER could claim unless negl of 1 was DECISIVE CAUSE (who head last opportunity) of
accident = negl of other party ignored & he could claim full damages.
Common Law position changed by Apportionment of Damages Act.
Apportionment of Damages Act (1956) :

Fault incl both negl & int.
Df who negl caused Pl harm couldn’t ask for reduction in damages cus of Contributory Fault.
Distinction between 4 situations :

1. Df negl, Pl int = no claim.
2. Df int, Pl int = no claim.
3. Df int, Pl negl = full claim.
4. Df negl, Pl negl = Apportion the damages (Jones Case).
36
Criteria for Apportionment of damages :

patrimonial loss.
Sec 1 applies only to damages caused partly by fault of Pl & partly of Df.
RP test applies, here we are dealing with a deviation from the standard of care, which applies, to all
people in community.
Crt doesn’t take into account that Df’s conduct has contributed to harm to a greater extent than Pl’s
conduct. Crt is satisfied that negl of both parties are causally connected to damage, Q of causation is
solved. Method of determining, who should bear which portion of damage, involves a comparison of
the respective gedrees of negl.
B4 Jones Case :
AD accepted that once Pl’s degree of negl had been established it’s unnecessary to establish Df’s.
Eg : PL = 40%, Df = automatically 60%.
But in Jones Case:

AD said if Pl was 30% negl it doesn’t automatically means Df was 70% liable. To establish degree of
negl, carefulness of conduct of each party must be measured separately against standards of RP.
If Df raises defense of contributory negl on part of Pl, he has the onus to prove on a balance of
probabilities.

Q : Does Sec 1 apply where Pl wasn’t negl wrt DCE but where his negl increased the damages?
1. King Case : No Helmet, didn’t constitute contributory negl. Didn’t cause DCE = full damages.
2. Victoria Case : No seatbelt = contributory negl. It increased damages = no claim.
3. Uijs Case : No seatbelt cus refused to wear = contributory negl. Increased damages = no
claim.
So here both X & Y was negl. X didn’t wear seatbelt & thus increased damages. Y can rely on
contributory negl. Thus X can only claim R6000 for damages.
O/N 06 = Q6.1,
DEFINE NEGL (3)
Fault :
Refers to a blameworthy attitude of some1 who acted wrongfully.
Negligence :
Some1 is blamed for conduct, which is careless, cus by giving insufficient attention to his actions, he
failed to adhere to the standard of care, legally required of him.
37
CHAPTER 5 : CAUSATION
DEFINITIONS :
Causation :
The causing of damage through conduct = a causal nexus between the conduct & the damage is
required for delict.
Factual Causation :
There is no Q of delictual liability if it is proved that the conduct of the Df caused the damage of the
person suffering the harm.
Condition sine qua none Theory :

Also known as the BUT FOR test = acc to this an act is the cause of a result if the act cant be thought
away w/o the result disappearing as well.
Legal Causation :
No legal system hold a wrongdoer liable w/o some limit for the endless chain of harmful
consequences, which his act may have caused – means to limit the wrongdoer’s liability.
Adequate Causation :
Its adequate if acc to human experience in the normal course of events the act has the tendency to
bring about that type of consequence.
Direct consequences :
Acc to this theory an actor is liable for all the direct consequences of his negl conduct – liability isn’t
ltd to foreseeable consequences.
Novus Actus Interveniens :

New intervening act.
It’s an independent event, which after the wrongdoer’s act has been concluded, either caused or
contributed to the consequences concerned.
 J/F 97 = Q6,
 O/N 97 = Q2D,
 J/F 98 = Q7,
 O/N 98 = Q5,
 O/N 99 = Q5,
 M/J 00 = Q6,
 O/N 01 = Q5,
 M/J 02 = Q6,
 O/N 02 = Q5,
 O/N 03 = Q7A, 7B,
 M/J 06 = Q4,
 O/N 06 = Q8A, 8B,
QUESTIONS :
J/F 97 = Q6 // J/F 98 = Q7 // M/J 00 = Q6 // O/N 01 = Q5 // M/J 02 = Q6 // O/N 02 = Q5 // M/J 06 = Q4

DISTINGUISH BTWN THE 2 FORMS OF CAUSTION. ALSO DISCUSS BRIEFLY WITH REF TO THE LATEST
DECISIONS OF THE AD, THE TESTS THAT MUST BE EMPLYED TO ESTABLISH WHETHER THE 2 FORMS OF
CAUSATION ARE PRESENT IN A GIVEN SET OF FACTS. (10)
Causation :
38
The causing of damage through conduct = a causal nexus between the conduct & the damage is
required for delict.
1..FACTUAL CAUSATION:

Criticism of the Conditio sine qua none Theory :

1. Conditio is based on a clumsy, indirect process of thought that results in circular logic.
2. Condition fails in cases of so-called Cumulative Causation (This occurs when more than 1 act
actually causes a consequence) – where both X & Y shoot Z, eliminate X & death still exist &
visa versa.
3. Conditio test isn’t a test of causation cus it’s merely an ex post facto way of expressing a
predetermined nexus.
Conditio sine qua none & Omissions :

General view: condition test may be applied when 1 wishes to determine whether an omission caused
a certain consequence.
S v Van As: Police neglected to search for children who had fled into the night & later died of
exposure.
Q = Whether their death ws caused by the omission to search for them.
Crt attempted to test the causal connection btwn the omission & the death by asking, whether
reasonable search would have prevented the death. (Add something instead of eliminating).
Acc to Van Rensburg:

Condition sine qua none test doesn’t offer a solution in cases of causation by an omission. Condition
requires you to eliminate something in the mind & not to add something to the facts.
Condition test isn’t accepted for omissions.
Determination of a Factual (causal) nexus :

Van Rensburg:
A causal nexus exists where 1 fact arises out of another – this must be established acc to human
experience in general.
Its enough for the purposes of FC if Df’s conduct has in any way contributed to the damage sustained
by the Pl.
2..LEGAL CAUSATION:
1. Q of LC arises when determining which harmful consequence actually caused by wrongdoer’s

wrongful, culpable act should be held liable for.
2. In most cases of delict the harm for which the wrongdoer is to be held liable falls w/I the
limits of his liability, so that it’s unnecessary to examine LC.
3. Normally LC is only a problem where a whole chain of remote consequences result from the
wrongdoers conduct & where it’s alleged that he should be held liable for all the
consequences.
4. Limit of liability should be determined iro every delictual claim & the fact that this
determination in most cases need not be made expressly shouldn’t lead 1 to believe that LC
is relevant only in exceptional cases.
39
Alston v Marine Trade Insurance: Pl suffered brain injuries from car accident due to negl of driver
insured by Df. As result from brain injuries Pl suffered from manic depression for which he was
treated – acc to medical knowledge at time, there was no danger thought of by taking the meds. Pl
ate cheese after taking meds & had a stroke. Appeared that after taking meds eating cheese can lead
to death.
Mafesa: Pl broke his leg in car accident cus of negl of driver who ws insured by Df. He ws discharged
from hospital & slipped on his crutches & broke leg again. His medical expenses increased.
Q : What criteria should be used to determine LC?
1.Flexibility approach to LC :
S v Mokgethi : held there is no single criteria for legal causation.
Basic Q for flexible approach was whether there was a close enough r’shp between wrongdoer’s
conduct & its consequences, for such consequences to be imputed to wrongdoer in view of policy
considerations based on reasonableness, justice & fairness.
FACTS :
Bank teller shot in back by robber. Now paraplegic in wheelchair. Went back to work few months
later. Doctor told him to shift his bum. He failed to do this & died of pressure sores on his bum,
6months after the shooting. AD held that wounding of deceased couldn’t be regarded as the LC of
death.
This approach was confirmed in Bentley, Smith v Abrahams & Collett.
2.Adequate Causation :
3.Direct consequences :
Theory of Fault (for LC) :

Wrongdoer is liable only for those consequences iro which he had fault.
Liability must be ltd to consequences willed by a person while aware of their wrongfulness & the
wrongful consequences that he should have foreseen & prevented.
Ito this Theory :

1. Int in the form of DE is present.
2. FC is present
3. Applying the Fault Theory – X foresaw the possibility would lead to death & reconciled
himself to it, while knowing it Ws wrongful.
4. Therefore – cus he has int, he is liable & there is no need to look into LC.
5. Majority of jurist argue that it’s unreasonable in the circumstances to hold X liable for Y’s
death.
Brown v Hoffman : Df punched Pl in face few times at political meeting. Pl suffered severe head
injuries.
Pl claimed for :
1. Infringed dignity
2. Injuries to head, face & brain
3. Medical expenses
4. Pain & Suffering
5. Lost of amenities of life
Hoffman relied on theory of fault to try & limit extent of his liability :
40
Argued on behalf on Df that liability was ltd to extent of Df’s intention. Df hadn’t intended causing
serious injuries it was argued that he couldn’t be held liable for damages falling outside his int & comp
for general damages like pain & suffering couldn’t be claimed.
Negl as criteria for LC :

Cant serve as test for determining imputability of damage. Test for negl is whether RP in position of
wrongdoer would have foreseen & prevented situation.
Reasonable foreseeability :
Liable for hospital $.
3..NOVUS ACTUS INTERVENIENS :

Where NAI extinguished causal nexus between conduct of wrongdoer’s act & the consequences, with
result that wrongdoer’s act can no longer be considered FC of consequences = actor goes free.
More difficult to determine when new act influenced the result to such an extent that result should
no longer be imputed to actor, although conduct remains FC of result. = Flexible Approach to LC.
Novus is to limit liability of wrongdoer & plays a NB role in LC. In each case will have to be determined
w/I framework of the relevant imputability test whether novus has had the effect of severing the legal
nexus with result that consequences shouldn’t be imputed to actor.
Novus might be brought about by conduct of Pl himself, by culpable conduct of 3 rd party or by vis
major.
An event will qualify as a novus only if event wasn’t reasonably foreseeable.
Mokgeti : Q was whether victims own conduct had broken causal nexus between accuser’s wrongful
act & the result in Q.
Crt suggested a criterion, which may be useful to determine LC in view of this victim’s own
conduct :
1. Victim fails to seek medical attention & that is cause of death.
2. Wound wasn’t life threatening
3. Where failure to seek medical attention in unreasonable.
O/N 97 = Q2D
MRS. M DEEP IN THOUGHT WALKS ON SIDE WALK. TOO LATE SHE NOTICES PRESENCE OF A HUGE
HOLE IN MIDDLE OF SIDEWALK. SHE FALLS INTO HOLE & FRACTURES HER HIP. IT TRANSPIRES THAT
HOLE WAS DUG BY MUNICIPAL WORKERS TO IMPLEMNT A NEW SEWERAGE SYSTEM. MRS M
WANTS TO RECOVER DAMAGES FROM MUNICIPALITY. ONLY PRECAUTIONARY MEASURE TAKEN BY
MUNICIPALITY TO PROTECT PUBLIC WS TO CORDON OFF HOLE WITH SINGLE RED & WHITE RIBBON.
(2D)ASSUME MRS M’S HOSPITAL COSTS AMNT TO R10000. THIS ISNT END OF HER MISERY. AFTER
DISCHARGED SHE SLIPS WHILE WALKING ON HER CRUTCHES. FALLS & BREAKS HER ARM. MEDICAL
COSTS FOR BROKEN ARM AMNTS TO R2000. M ALSO WISHES TO CLAIM THIS FUTHER AMNT FROM
THE MUNICIPALITY. BUT MUNICIPALITY DENIES THAT IT CAUSED HER 2 ND HEAD OF DAMAGES OF
R2000. DISCUSS WITH REF TO CASE LAW (10).
41


Van Rensburg :
by the Pl.
SO HERE… THE MUNICIPALITY WS THE FC OF MRS M’s DAMAGES CUS ‘BUT FOR’ THEM DIGGING THE
HOLE IN THE SIDEWALK SHE WOULDN’T HAVE FALLEN INTO IT & FRACTURED HER HIP.
2..LEGAL CAUSATION :
Alston v Marine Trade Insurance : Pl suffered brain injuries from car accident due to negl of driver
to death.
Mafesa : Pl broke his leg in car accident cus of negl of driver who was insured by Df. He ws discharged
from hospital & slipped on his crutches & broke leg again. His medical expences increased.
Basic Q for flexible approach ws whether there was a close enough r’shp between wrongdoer’s
FACTS :
death.


42
Novus is to limit liability of wrongdoer & plays an NB role in LC. In each case will have to be
determined w/I framework of the relevant imputability test whether novus has had the effect of
severing the legal nexus with result that consequences shouldn’t be imputed to actor.
major.
Mokgeti : Q ws whether victims own conduct had broken causal nexus between accuser’s wrongful
act & the result in Q.
conduct :
SO HERE… THE MUNICIPALITY IS THE LC OF MRS M’s DAMAGES & IS LIABLE FOR R10000 FOR HER HIP
INJURY.
BUT… THE R2000 FOR THE BROKEN ARM CONSTITUTES A NAI. CUS THIS ACCIDENT WASN’T
REASONABLY FORESEEABLE. THUS THE MUNICIPALITY ISNT LIABLE TO MRS M FOR THE R2000. ONLY
FOR THE R10000.
O/N 98 = Q5
DISCUSS IN DETAIL DECISION IN ‘S v MOKGETHI’ IRO FC & LC. DON’T DISCUSS FACTS. (10)
FACTS :
death.


Van Rensburg :
43
by the Pl.
HERE THE ROBBER IS THE FC OF MOKGETHI’s BACK INJURY, CUS ‘BUT FOR’ HIM SHOOTING
MOKGETHI, MOKGETHI WOULD HAVE BEEN IN A WHEEL CHAIR NOR HAD TO SHIFT HIS BUM TO
PREVENT GETTING PRESSURE SORES.
Alston v Marine Trade Insurance : Pl suffered brain injuries from car accident due to negl of driver
to death.
Mafesa : Pl broke his leg in car accident cus of negl of driver who was insured by Df. He ws discharged
from hospital & slipped on his crutches & broke leg again. His medical expences increased.
Basic Q for flexible approach ws whether there was a close enough r’shp between wrongdoer’s



Novus is to limit liability of wrongdoer & plays an NB role in LC. In each case will have to be
determined w/I framework of the relevant imputability test whether novus has had the effect of
severing the legal nexus with result that consequences shouldn’t be imputed to actor.
major.
44
Mokgeti : Q ws whether victims own conduct had broken causal nexus btwn accused’s wrongful act &
the result in Q.
conduct :
SO HERE… THE ROBBER WAS THE LC FOR MOKGETHI HAVING TO BE IN A WHEELCHAIR.
BUT… THE ROBBER ISNT THE LC FOR MOKGETHI’s DEATH CUS BTWN THE SHOOTING & THE DYING A
‘NEW INTERVENING ACT’ OCCURRED NL, MOKGETHI DIDN’T SHIFT HIS POSITION & DIED OF PRESSURE
SORES ON HIS BUM. THIS CONSTITUTES A NAI.
O/N 99 = Q5
DISCUSS IN DETAIL DECISION IN ‘INTERNATIONAL SHIPPING v BENTLY’ IRO FC & LC. DON’T DISCUSS
FACTS. (10)
FACTS :
Bentley auditor for D.CO. IS.CO is a financing CO. D.CO asked for finance from IS.CO & gave them
financial statements but it contained serious misrep’s. IS.CO decided to give D.CO finance. D.CO
suffered serious financial loss & was liquidated. They owed IS.CO 1mill, IS.CO recovered R60000 &
sued Bentley for the outstanding R40000 alleging that he caused this loss through his culpable misrep.


Van Rensburg :
by the Pl.
 Here IS.CO said ito Causation that they acted on the info contained in the financial reports &
the CO wouldn’t have continued to provide finance had they been aware of the true state of
affairs.
 FC = It was accepted that when demonstrating that the wrongful act is a condition sine qua
none of the loss doesn’t necessarily result in legal liability.
45
Basic Q for flexible approach was whether there was a close enough r’shp between wrongdoer’s

 In considering whether IS.CO established LC there are a number of factors which tend to
separate cause & affect. Theses are :
1. Time factor
2. Decision to provide the support program
3. Indebtedness allowed to escalate
4. Changed r’shps between the parties.
5. Bentley’s deception & misrep’s
6. Non-Reliance on 1978 financial s’mnts
7. Foreseeability of the support program
 Cus of these factors the ultimate loss suffered by IS.CO was too remote for LC
 Approach taken to causation is the same as that in Mokgethi in that it is flexible based on
public policy considerations, etc.
O/N 03 = Q7A, // O/N 06 = Q8A,

“X’s CONDUCT IS A CONDITION W/O WHICH Y’s DAMAGE WOULD NEVER HAVE ARISEN” DISCUSS THIS
STATEMNT (4)
This is a…
This falls under FC.
O/N 03 = Q7B // O/N 06 = Q8B

WHAT IS THE CRITERION TO DETERMINE LC? (6)
Basic Q for flexible approach was whether there ws a close enough r’shp between wrongdoer’s
46
FACTS :
death.

**FINISHED**
47
CHAPTER 6: DAMAGE
DEFINITIONS :
Damages :
Damage is the diminution (reduction), as a result of a damage-causing event, in the utility or quality of
a patrimonial or personality interest in satisfying the legally recognised needs of the person involved.
Patrimonial Loss :
It’s the diminution (reducing) in the utility of a patrimonial interest in satisfying the legally recognised
needs of the person entitled to such interest. It can also be seen as the loss or reduction in the value
of a positive asset in someone’s patrimony.
Non-Patrimonial Damages :
It’s the diminution (reduction) as a result of a damage-causing event, in the quality of the highly
personal interest of a person in satisfying his legally recognised needs but which doesn’t effect his
patrimony = physical-mental integrity, liberty, reputation, dignity, privacy, feelings, etc.
Sum Formula Approach :

This is a comparative test: ito this approach damage exists in the negative difference between the Pl’s
actual patrimonial position as it exists after the damage-causing event & the hypothetical patrimonial
position that would have existed had the damage-causing event not occurred = current position
compared to a hypothetical position.
Concrete Approach :
The diff between the patrimonial position of the Pl b4 the unlawful act & the actual position after.
Prospective Patrimonial Damage :

Its damage in the form of patrimonial loss which will, with a degree of possibility, materialise after the
date of assessment of damages resulting from an earlier damage causing event.
The Once & For All Rule :

In claims for compensation & satisfaction arising out of a delict the Pl must claim damages for all the
damages already sustained or expected in the future in so far as its based on a single cause of action.
 J/F 97 = Q7(A-C),
 O/N 97 = Q2E,
 J/F 98 = Q8(A&B),
 O/N 98 = Q6(A&B),
 O/N 99 = Q6(A&B),
 M/J 00 = Q7(A-C),
 O/N 01 = Q6(A-C),
 M/J 02 = Q7(A-C),
 O/N 02 = Q6(A-C),
 O/N 03 = Q8(C-E),
 M/J 06 = Q1.6, 1.7, 1.8,
 O/N 06 = Q6.3,
QUESTIONS :
J/F 97 = Q7(A-C), // J/F 98 = Q8(A&B) // M/J 00 = Q7(A-C) // M/J 02 = Q7(A-C) // O/N 02 = Q6A // O/N
03 = Q8(C-E) // O/N 06 = Q6.3
(A)DEFINE DAMAGES (3)
Damages :
48
Damage is the diminution (reduction), as a result of a damage-causing event, in the utility or quality of
a patrimonial or personality interest in satisfying the legally recognised needs of the person involved.
(B)WHAT IS THE CONTENT OF THE COMPARITIVE METHOD (SUM FORMULA APPROACH) WHICH IS
USED TO COMPUTE THE AMNT OF PATRIMONIAL DAMAGE? (2)
Sum Formula Approach :

This is a comparative test: ito this approach damage exists in the negative difference between the Pl’s
actual patrimonial position as it exists after the damage-causing event & the hypothetical patrimonial
position that would have existed had the damage-causing event not occurred = current position
compared to a hypothetical position.
(c)DESCRIBE THE ONCE & FOR ALL RULE (2)

O/N 97 = Q2E
ASSUME THAT MRS. M IS INFORMED BY HER DOC THAT DUE TO HER HIP INJURY, A POSSIBILITY
EXISTS OF HER HAVING TO UNDERGO A FUTHER OPP SOME TIME IN THE FUTURE. AT WHAT STAGE
MUST MRS M CLAIM THE COMPENSATION FROM THE MUNICIPALITY FOR SUCH FUTHER OPP? (3)

Mrs M must claim the compensation now cus she won’t be able to claim it later.
There is a prescription for the claim of damages nl 3yrs.
O/N 98 = Q6(A&B) // O/N 99 = Q6(A&B)

IT’S BEEN SUGGESTED THAT OUR LAW SHOULD ADOPT A CONCRETE APPROACH TO DAMAGES,
EXCEPT IN CASES OF PROSPECTIVE LOSS, LIABILITY FOR MISREP & LOSS OF PROFIT.ANSW
FOLLOWING Q’S :
(A)WHAT IS THE CONCRETE APPROACH TO DAMAGES? (1)
Concrete Approach :
The diff between the patrimonial position of the Pl b4 the unlawful act & the actual position after.
(B)WHAT APPROACH TO DAMAGES SHOULD BE ACCEPTED IN THE CASE OF PROSPECTIVE LOSS,

LIABILITY FOR A MISREP & LOSS OF PROFIT? GIVE NAME OF THIS APPROACH & EXPLAIN (2)

The following approach should be used.

49

O/N 01 = Q6(A-C) // O/N 02 = Q6(B&C) // M/J 06 = Q1.7, 1.8

(A)DEFINE PROSPECTIVE DAMAGES (3)

(B)DESCRIBE THE ONCE & FOR ALL RULE (3)

(C)EXPLAIN THE PL’s DUTY TO MITIGATE HIS LOSS (4)
The Pl cant recover damages for a loss which is the factual result of the Df’s conduct, but which could
have been prevented if the Pl had taken reasonable steps.
A failure to ensure that damages don’t accumulate can be seen as a failure by the Pl to take
reasonable steps to limit the initial loss or an omission to prevent further damages.
Iow, the Pl must try to keep the damages low during the waiting period.
M/J 06 = Q1.6,
NAME THE 2 FORMS OF DAMAGES & GIVE AN EQ OF EACH (2)
1. Patrimonial Damages, eg: the loss of income.

2. Non-Patrimonial Damages, eg: infringement of dignity.
50
CHAPTER 7 : DELICTUAL REMEDIES
 J/F 97 = Q7D,
 M/J 00 = Q7D,
 O/N 01 = Q1B,
 M/J 02 = Q7D,
 O/N 02 = Q1B,
 O/N 06 = Q1.3,
QUESTIONS :
J/F 97 = Q7D, // M/J 00 = Q7D // M/J 02 = Q7D // O/N 06 = Q1.3
STATE THE 3 REQ’S FOR GRANTING OF AN INTERDICT (3)
1. There must be an act by the respondent

2. The act must be wrongful
3. No other remedy must be available.
O/N 01 = Q1B // O/N 02 = Q1B

WHICH REMEDY WILL A PERSON INSTITUTE TO AVERT AN IMPENDING WRONGFUL ACT? (1)
An Interdict.
51
CHAPTER 8 : JOINT WRONGDOERS
DEFINITIONS:
Joint Wrongdoers:
Are persons who are jointly & severely liable in delict for the same damages.
 M/J 06 = Q1.9,
QUESTIONS :
DEFINE JOINT WRONGDOERS (2)
Joint Wrongdoers:
Are persons who are jointly & severely liable in delict for the same damages.
52
CHAPTER 9 : SPECIFIC FORMS OF PATRIMONIAL LOSS
DEFINITIONS:
Psychological lesions (emotional shock) :

This is described as any recognisable harmful infringement of the brain & nervous system of a person.
 J/F 97 = Q8, 9(A-D),

 O/N 97 = Q7,
 J/F 98 Q9A,
 O/N 99 = Q7C,
 M/J 00 = Q8A, 8B(1-4),
 O/N 01 = Q7A, 7B,
 M/J 02 = Q8A, 8B(1-4),
 O/N 02 = Q7A, 7B,
 O/N 03 = Q9A,
 O/N 06 = Q9.1,
QUESTIONS :
J/F 97 = Q8, // J/F 98 Q9A // O/N 99 = Q7C // M/J 00 = Q8A, // O/N 01 = Q7A, // M/J 02 = Q8A, // O/N
02 = Q7A,
EXPLAIN THE CONCEPT PURE ECONOMIC LOSS WITH REF TO CASE LAW (5)
Pure Economic Loss :

The Aquilian action is available to claim damages for pure economic loss.
1. Pure economic loss may compromise patrimonial loss that doesn’t result from damage to prop or
impairment to personality. Greenfield Engineering Works : Where X suffered financial loss cus a
cheque that was sent to him by B was stolen & as a result of the fact that the cheque hadn’t been
crossed, the thief was able to open a bank account, withdraw the money & disappear with it.
2. Pure economic loss may also refer to financial loss that does flow from the damage to prop or
impairment to personality, but which doesn’t involve the Pl’s prop or person. Coronation Brick : X
negl damaged cables that provided electricity to B’s factory & B suffered loss of production.
3. Pure economic loss incl patrimonial loss that’s the result of damage to prop or injury to
personality but where the Df didn’t cause the loss or injury. Kadir v Minister of law & order : As a
result of the negl of X, B’s car left the road & he ws injured. 2 constables who arrived on the
scene to take any particulars concerning the identity of X & as a result of the omission B couldn’t
claim from the MMF for his damage & suffered pure economic loss.
J/F 97 = Q9(A-D) // M/J 00 = Q8B(1-4) // M/J 02 = Q8B(1-4)

2 BROTHERS WALK ACROSS THE STREET. A CAR SKIPS THE RED ROBOT & INSTANTLY KILLS 1 OF
THEM. AS A RESULT OF WITNISSING HIS BROTHER’S DEATH THE SURVIVING BROTHER SUFFERS
SEVERE PSYCOLOGICAL DISTURBANCES & HAS TO GO FOR TREATMNT TO A THERAPIST.
(A)WHICH 2 ASPECTS MUST THE SURVIVING BROTHER PROVE IOT CLAIM FOR THE PSYCOLOGICAL
DISTURBANCES SUFFERED BY HIM? (2)
1. Wrongfulness &
2. Int or Negl.
(B)NAME THE CASE WHICH PROVIDES AUTHORITY FOR YOUR ANSW ABOVE (1)
53
Bester v Comercial Union.
(C)WITH WHICH REMEDY CAN THE SURVIVING BROTHER CLAIM FOR THE INJURIES SUFFERED? (1)
Actio Legis Aquiliae.
(D)WHICH FORM OF FAULT IS REQUIRED FOR THE REMEDY IN C ABOVE (1)
Negligence.
MUST THE SURVING BROTHER PROVE THAT HE SUFFERED PHYSICAL INJURIES IOT CLAIM FOR
PSYCOLOGICAL DISTURBANCES SUFFERED BY HIM (2)
No, the req of physical harm – infringement to the /R to physical integrity, which is wrongful was
rejected in Bester. Acc to Bester the brain & nervous system are as much a part of the physical body
as an arm & leg. As result a physical injury isn’t absolutely necessary to found liability.
O/N 97 = Q7 // O/N 06 = Q9.1

WRITE NOTES ON THE WAY IN WHICH BESTER v COMMERCIAL UNION INFLUENCED DELICTUAL
LIABILITY FOR CAUSING EMOTIONAL SHOCK. (6)
Bester v Commercial Union :

The AD said that the impairment of personality & patrimonial loss resulting from psychiatric injury or
emotional shock caused wrongfully & intentional or negligently, founds the action for the pain &
suffering & the actio legis aquiliae.
Before Bester :
Prior to Bester the SA law of delict lacked clear principles in this field. This resulted in 2 restrictions on
liability for emotional shock :
1. The shock must have originated from a physical injury – Wrongfulness.
2. The aggrieved party himself must have been in personal danger of being physically injured – Negl
or Legal Causation.
These were rejected in Bester Case.
After Bester :
The following factors play a role in this regard :
1. The fact that the psychological lesion resulted from physical injury.
2. The fact that the Pl was in personal danger of being physically injured.
3. The fact that the Pl was informed of the death or injury of a close relative (jokingly).
4. The fact that the Pl personally witnessed the death or injury of a close relative.
Once the crt has found that serious emotional shock was reasonably foreseeable, the wrongdoer is
then liable for any detrimental physical or mental consequences – regardless of whether they were
foreseeable as well (talem qualem rule applies – you take your victim as you find him).
O/N 01 = Q7B // O/N 02 = Q7B
STATE 4 FACTORS THAT PLAY A ROLE IN DETERMINING WHETHER EMOTIONAL SCHOCK WS

REASONABLY FORSEEABLE BY THE Df (4)
The following factors play a role in this regard :

54
1. The fact that the psychological lesion resulted from physical injury.
2. The fact that the Pl was in personal danger of being physically injured.
3. The fact that the Pl was informed of the death or injury of a close relative (jokingly).
4. The fact that the Pl personally witnessed the death or injury of a close relative.
O/N 03 = Q9A
NAME 4 SPECIFIC FORMS OF DAMNUM INIURIA DATUM (2)
1. Injury or death of another.

2. Negl misrep.
3. Interference with a contractual r’shp.
4. Unlawful compensation.
5. Manufacturers liability.
55
CHAPTER 10: SPECIFIC FORMS OF PERSONALITY INFRINGMNT (IURIA)
DEFINITIONS :
Defamation :
It’s the intentional infringement of another persons /R to his good name.
Defamation is the wrongful, intentional publication of words or behaviour concerning another person,
which has the effect of injuring his status, good name or reputation.
Insult :
You are infringing the /R to feelings or dignity.
 J/F 97 = Q11(A&B), 12(A&B),

 O/N 97 = Q6(A&B),
 J/F 98 = Q10(A&B),
 O/N 98 = Q7A(A-C), 8A(1&2), 8B, 8C,
 O/N 99 = Q7D, 8,
 M/J 00 = Q9B(1&2), 9C(1&2),
 O/N 01 = Q8A,
 M/J 02 = Q9B(1&2), 9C(1&2),
 O/N 02 = Q8A,
 O/N 03 = Q9B,
 O/N 06 = Q9.2(A&B),
QUESTIONS :
J/F 97 = Q11(A&B), // M/J 00 = Q9B(1&2), // M/J 02 = Q9B(1&2),
DOES THE PUBLICATION OF DEFAMATORY WORDS ACC TO THE CRTS, TAKE PLACE IN THE
FOLOWING CIRCUMSTANCES :
(A)2 JAPANESE TOURIST IN SA QUARREL & IN FRONT OF A GROUP OF SOUTH AFRICANS THE 1 CALLS
THE OTHER A LIAR & A THIEF IN THEIR MOTHER TONGUE (1)
No, cus Crt’s don’t consider the disclosure of defamatory words or behaviour to an outsider who’s
unaware of the defamatory character or meaning thereof in relation to the Pl as publication.
(B)MR X TELLS HIS WIFE THAT Z WHO WORKS IN HIS OFFICE WITH HIM, STOLE SOME $ (1)
No, cus the communication of defamatory words concerning a 3 rd party by 1 spouse to another
doesn’t constitute publication.
J/F 97 = Q12(A&B) // M/J 00 = Q9C(1&2) // M/J 02 = Q9C(1&2)
ANSW FOLLOWING Q’s ON PRIVELAGE AS A GOJ FOR DEFAMATION :
(A)WHEN DOES PRIVELEGE EXIST? (2)
This exists when some1 has a /R, duty or interest to make specific defamatory assertions & the people
to whom the assertions are publicised have a corresponding /R, duty or interest to learn of the
assertions.
56
(B)DISTINGUISH BTWN RELATIVE & ABSOLUTE PRIVELEGE & GIVE AN EG OF EACH (3)
Relative Privilege :
Df enjoys conditional protection, this protection falls away as soon as the Pl proves the Df exceeds the
bounds of privilege.
Absolute Privilege :
Df is protected absolutely, in the sense that liability for defamation is excluded. Eg : Parliament.
O/N 97 = Q6(A&B)
ID THE GOJ THAT A Df IN A DEFAMATION CASE MAY USE IN EACH OF THE FOLLOWING SITUATIONS
& SUBSTANTIATE YOUR ANSW :
(A)T IS FOUND GUILTY IF A TERRIBLE CRIME. DURING THE JUDGEMNT THE MC CALLS HIM A
SCUMBAG & A LOWLIFE. T WANT TO SUE THE MC FOR DEFAMATION (2)
Here the MC can use the GOJ known as Fair comment.

4 Req’s :
1. Defamation must amnt to comment.
2. Comment must be fair.
3. Facts on which the comment is based must be true.
4. These facts must be in public’s interest.
(B)G & F ARE MBRS OF THE TOWN COUNCIL & BOTH OF THEM WANT TO BECOME MAYOR. DURING A PUBLIC MEETING
ARRANGED BY G TO ADRESS THE PEOPLE, F REVEALS THAT G WS EXPELLED FROM UNIVERSITY YRS AGO CUS HE WS FOUND
GUILTY OF DISHONESTY DURING AN EXAMINATION. G WANTS TO SUE F FOR DEFAMATION (2)
Here F can use the GOJ known as Truth & Public Interest.
The prima facie wrongfulness of the Df’s conduct will be cancelled if he proves that the remarks were
true & in the public’s interest. Df only has to prove that the remarks are substantially true.
J/F 98 = Q10(A&B) // O/N 01 = Q8A- Qb - O/N 02 = Q8A - O/N 03 = Q9B
X, Y’s FATHER FINDS OUT THAT Y’s FIANCE V, WS IN JAIL B4 HE MET HER. X TELLS HIS DAUGHTER
THIS. V ACCUSES X OF DEFAMING HIM.
(A)WHICH PERSONALITY INTEREST OF V WS INFRINGED (1)
His /R to his good name.
(B)WRITE BRIEF NOTES ON THE DETERMINING OF WRONGFULNESS IN A DEFAMATION CASE (4)
Wrongfulness wrt the defamation lies in the infringement of a persons /R to his good name. When
determining wrongfulness the Q whether the good name of the person involved has in fact been
infringed is irrelevant.
The only relevant Q is in the opinion of the RP with normal intelligence & development; the
reputation of the person concerned has been injured.
Following principles apply iro this test :

57
1. The RP is a fictional, normal, well balanced /R thinking person.

2. Verbal is in most cases not defamatory cus it normally doesn’t injure a persons good name.
3. Words are prima facie of acc to the ordinary meaning defamatory or not.
(C)NAME THE GOJ THAT X COULD RELY ON (1)
Here the X can use the GOJ known as Fair comment.

4 Req’s :
O/N 98 = Q7A(A-C),
(A)BRIEFLY DISCUSS THE GROUNDS EXCLUDING FAULT IN THE CASE OF DEFAMATION WITH REF TO
CASE LAW. (3)
National Media v Bogoshi : The crt introduced negl as the basis of liability of the press for
defamation.
Grounds excluding Fault:

1. Mistake: persons are unaware of the wrongfulness of his defamatory publication cus he bona fide
believes that his conduct is lawful.
2. Jest: if the Df proved that he published the defamatory words in jest, he should be able to rebut
the presumption of animus (int).
(B)WHAT IS THE GENERAL CRITERION WHICH IS USED TO DETERMINE WHETHER A NEGL MISTATEMNT IS WRONGFUL? (1)
The only relevant Q is in the opinion of the RP with normal intelligence & development, the
reputation of the person concerned has been injured.
(C)OUR CASE LAW RECOGNISES CERTAIN FACTUAL SITUATIONS WHERE THE NEGL SUPPLYING OF INCORRECT INFO WILL IN
PRINCIPLE BE WRONGFUL. NAME ANY 4 OF THESE SITUATIONS (4)
1.
2.
3.
4.
O/N 98 = Q8A(1&2),
ID THE GOJ THAT MAY BE AVAILABLE TO A Df IN A DEFAMATION CASE IN EACH OF FOLLOWING
Q’S :
(A)X, Y’s FATHER FINDS OUT THAT Y’s FIANCE V, WS IN JAIL B4 HE MET HER. X TELLS HIS DAUGHTER
THIS. V ACCUSES X OF DEFAMING HIM. (1)
Here the X can use the GOJ known as Fair comment.

58
4 Req’s :
(B)G & F ARE MBRS OF THE TOWN COUNCIL & BOTH OF THEM WANT TO BECOME MAYOR. DURING A PUBLIC MEETING
ARRANGED BY G TO ADRESS THE PEOPLE, F REVEALS THAT G WS EXPELLED FROM UNIVERSITY YRS AGO CUS HE WS FOUND
GUILTY OF DISHONESTY DURING AN EXAMINATION. G WANTS TO SUE F FOR DEFAMATION (1)
Here F can use the GOJ known as Truth & Public Interest.
The prima facie wrongfulness of the Df’s conduct will be cancelled if he proves that the remarks were
true & in the public’s interest. Df only has to prove that the remarks are substantially true.
O/N 98 = Q8B,
ID THE TYPES OF PERSONALITY INFRINGEMNT THAT B MIGHT HAVE SUFFERED IN EACH OF THE FOLLOWING SITUATIONS (3)
1.A CALLS B A LIAR WHEN THEY ARE ALONE.
/R to dignity & feelings.
2.A, B’S DOC TELLS A FRIEND THAT B HAS AIDS
/R to privacy & good name.
3.A IS A 2ND HANDCAR DEALER. HE PLACES AN ADVERT IN THE NEWSPAPER WITH THE FOTO OF A
CAR HE WANTS TO SELL. B A WELL KNOWN SOCCER PLAYER WHO HAPPENED TO BE AT THE DEALER
TO LOOK AT THE CARS WHEN THE WAS TAKEN ALSO APPEARS IN THE PHOTO.
/R to privacy.
O/N 98 = Q8C
WRITE SHORT NOTES WITH REF TO CASE LAW ON THE LIABILITY OF THE PRESS FOR DEFAMATION.
(5)
- - - -(SAME ANSW)- - - -
WHAT IS THE NB OF NATIONAL MEDIA V BOGSHI FOR THE LAW OF DEFAMATION? (10)
Animus inurandi: (int)

This is accepted as a req for defamation – negl is therefore insufficient to hold the wrongdoer liable.
National Media v Bogoshi: The crt introduced negl as the basis of liability of the press for defamation.
Grounds excluding Fault:

1. Mistake: persons is unaware of the wrongfulness of his defamatory publication cus he bona fide
believes that his conduct is lawful.
59
2. Jest: if the Df proved that he published the defamatory words in jest, he should be able to rebut
the presumption of animus (int).
O/N 99 = Q7D,
IN WHICH 2 WAYS CAN PRIVACY BE INFRINGED (2)
1. When you reveal something private of the person to a 3 rd party.

2. When you are a peeping tom.
O/N 06 = Q9.2(A&B)
WHICH PERSONALITY INTERESTS ARE INJURED BY THE FOLOWING DELICT RESPECTIVELY :
(A)DEFAMATION (1)
/R of good name.
(B)INSULT (1)
/R to feelings or dignity.
60
CHAPTER 11: FORMS OF LIABILITY W/O FAULT
DEFINITIONS :
Actio de pauperie :
The prejudiced person may claim damages from the owner of a domestic animal, which has caused
damage. Fault on the part of the owner isn’t a req for liability.
Actio de pasto :
Damages are claimed from the owner of an animal, which caused loss, by eating plants. Strict liability
on the part of the owner.
Vicarious liability :
Strict liability of 1 person for the delict of another. The former is indirectly vicariously liable for the
damage caused by the latter.
 J/F 97 = Q13(A-C),
 O/N 97 = Q5(A-C),
 J/F 98 = Q10D,
 O/N 98 = Q6C(1-3),
 O/N 99 = Q6C(1-3),
 M/J 01 = Q10(A&B),
 O/N 01 = Q8(B&C),
 M/J 02 = Q9A(1-3), 10A(1&2),
 O/N 02 = Q8(B&C),
 O/N 03 = Q9C,
 M/J 06 = Q5.1, 5.2,
 O/N 06 = Q9.3, 9.4, 9.5,
QUESTIONS :
J/F 97 = Q13(A-C) // M/J 01 = Q10(A&B) // O/N 01 = Q8(B&C) // M/J 02 = Q10A(1&2) // O/N 02 =

Q8(B&C) // O/N 03 = Q9C
OUR LAW RECOGNIZES LIABILITY W/O FAULT IN SEVERAL INSTANCES
(A)NAME THE COMMON LAW ACTION WITH WHICH A PREJUDICED PERSON CAN CLAIM DAMAGES
FROM THE OWNER OF A DOMESTIC ANIMAL WHICH CAUSED DAMAGE (1)
Actio de pauperie.
(B)LIABILITY W/O FAULT IS ALSO RECOGNISED IN THE CASES OF 2 FORMS OF INIURIA (2)
1.
2.
(C)IN CERTAIN INSTANCES 1 PERSON WHO IS IN A PARTICULAR R’SHP WITH ANOTHER IS HELD
STRICTLY LIABLE FOR A DELICT COMMITTED BY ANOTHER PERSON – NAME THIS TYPE OF LIABILITY
(1)
Vicarious Liability.
O/N 97 = Q5(A-C) // J/F 98 = Q10D - Qa

61
(A)NAME THE 4 REQ’S FOR SUCCESS WITH THE ACTIO DE PAUPERIE (4)
1. The Df must be the owner of the animal when the damage is inflicted.
2. The animal must be a domestic animal.
3. The animal must act contrary to its own nature when inflicting damage – as a rule an animal
doesn’t act contrary to its own nature if its reacting to external stimuli – defences: vis major,
culpable conduct on part of the prejudiced person & provocation.
4. The prejudiced person or his prop must be lawfully present at the location when the damage is
inflicted.
(B)NAME 4 DEFENCES THAT CAN BE RAISED AGAINST THE ACTIO DE PAUPERIE (4)
1. Vis major
2. Culpable conduct on part of prejudiced person.
3. Provocation.
4.
(C)NAME 2 RELATIONSHIPS TO WHICH VICARIOUS LIABILITY APPLIES (3)
O/N 06 = Q9.5
1. E’er – E’ee
2. Motorcar owner – Motorcar driver
O/N 98 = Q6C(1-3) // O/N 99 = Q6C(1-3)

B PLANS TO VISIT HER FRIEND C, WHO IS LOOKING AFTER A’S HOUSE. C TELLS B THAT THERE IS A
VICIOUS DOG ON THE PREMISES BUT PROMISES TO LOCK IT UP B4 B ARRIVES. B ARRIVES AT THE
APPOINTED TIME. AS SHE ENTERS THE PREMISES THE DOG APPEARS FROM BEHIND THE HOUSE &
BITES HER LEG. ANSW :
1.WHAT ACTION IS AVAILABLE TO B IOT RECOVER DAMAGES (1)
Actio de pauperie.
2.AGAINST WHO DOES SHE INSTITUTE THE ACTION MENTIONED AVOVE? (1 )
Against the owner A.
3.SUBSTANTIATE UR ANSW ABOVE WITH REF TO CASE LAW (4)
Actio de pauperie :
The prejudiced person may claim damages from the owner of a domestic animal which has caused
Requirement’s:
inflicted.
62
Lever v Purdey.
M/J 02 = Q9A(1-3),
X IS AN E’ee IN Y’S SERVICES. X COMMITS A DELICT IN THE COURSE

& SCOPE OF HIS e’MNT :
1.WHAT TYPE OF LIABILITY CAN BE SUSTAINED BY Y (1)
Vicarious liability.
2.WHAT FORM OF FAULT IS REQUIRED ON THE PART OF Y (1)
No fault is required on the part of Y.
3.NAME 1 OTHER R’SHP IN WHICH THIS TYPE OF LIABILITY IS RELEVANT (1)
Motorcar owner – Motorcar driver.
M/J 06 = Q5.1,
A’S COW WONDERS ONTO B’S PROP. SHE DEVOURS & TRAMPLES B’S VEGETABLE GARDEN. ON
SEEING C WHO HAPPENED TO ARRIVE ON THE PROP TO VISIT THE COW CHARGES & GORGES C, C
SUFFERS SERIOUS INJURIES. ANSW :
(A)NAME THE REQUIREMNTS THAT B MUST PROVE IF HE WANT TO HOLD A STRICTLY LIABLE FOR
THE DAMAGE TO HIS VEG GARDEN (3)
O/N 06 = Q9.3,
Actio de pastu :
Damages are claimed from the owner of an animal, which caused loss, by eating plants. Strict liability
on the part of the owner.
Req’s :
1. The Df must be the owner of the animal when the damage is caused.
2. Animal must cause damage by eating plants
3. The animal must be of its own volition when causing the damage.
(B)NAME THE REQ THAT C MUST PROVE IF HE WANTS TO HOLD A STRICTLY LIABLE FOR THE
INJURIES HE SUSTANED? (4)
Actio de pauperie :
The prejudiced person may claim damages from the owner of a domestic animal which has caused
Requirement’s:
63
inflicted.
M/J 06 = Q5.2,
NAME THE REQ’S FOR VICARIOUS LIABILITY OF AN E’er (3)
1. There must be an E’er – E’ee r’shp at the time the delict ws committed.
2. The E’ee must commit a delict
3. The E’ee must act w/I the scope of his E’mnt when the delict is committed.
O/N 06 = Q9.4,
WHAT IS MEANT BY VICARIOUS LIABILITY (1)
Vicarious liability :
Strict liability, of 1 person for the delict of another. The former is indirectly vicariously liable for the
damage caused by the latter.

PVL3703-delict Q A 2013

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

PVL3703-delict Q A 2013

Uploaded by

Copyright:

Available Formats

1

1.Patrimonial damage (damnum inuria datum):

3.Action for pain & suffering:

STATE THE DIFF’S BTWN DELICT & CRIME (4)

LIST 10 FUNDAMENTAL RIGHTS ENTRENCHED IN CHAPTER 2 OF THE CONSTITUTION WHICH ARE

The Defence of Automatism:

J/F 98 = Q1C // O/N 98 = Q1B // O/N 99 = Q1B

The Defence of Automatism :

X will sustain delictual liability for the damage caused to Y.

O/N 01 = Q2A // O/N 02 = Q2A

The Defence of Automatism :

Thus, John will be delictually liable for Mary’s damages.

CAN IT BE SAID THAT IT WAS AN ACT ON PART OF X THAT DAMAGED Ys CAR?

The Defence of Automatism:

ACCIDENT, BUT HE FAILED TO TAKE HIS MEDS B4 ACCIDENT TOOK PLACE?

Yes it would make a big difference, because…

Thus X will be delictually liable for the damage of Y.

CHAPTER 3(1) : WRONGFULNESS

J/F 97 = Q2 // M/J 00 = Q2 // M/J 02 = Q2

More precise methods of determining wrongfulness:

1.Infringemnt of subjective /Rs :

2.Non-compliance with a legal duty to act :

6. Contractual undertaking for the safety of a 3rd party

O/N 97 = Q2B // O/N 03 = Q3 (similar to this Q)

Liability for an omission :

More precise methods of determining wrongfulness:

Infringemnt of subjective /Rs :

Infringement of a subj /R requirement :

In exceptional circumstances subjective factors do play a role in determining wrongfulness – a

Liability for an omission :

M/J 06 = Q2.1 (SAME)

Liability for an omission :

O/N 01 = Q3(A-G) // O/N 02 = Q3(A-G)

A.THE BASIC TEST FOR WRONGFULNESS IS OBJECTIVE TEST (1)

E.WHICH AD DECISION IS THE BEST AUTHORITY ON THE WRONGFULNESS OF AN OMISSION? (1)

G.WHAT ROLE DOES CONTROL OF A DANGEROUS OBJ PLAY IN THE DETERMINATION OF

The general test is the BONI MORES TEST.

More precise methods of determining wrongfulness:

2 Stages in which enquiry will proceed:

Liability for an omission :

Liability for an omission:

CHAPTER 3(2) : WRONGFULNESS : GOJs

J/F 97 = Q3A // M/J 00 = Q3A // M/J 02 = Q3A

X’s actions comply with the req’s of the attack, nl:

Y’s actions comply with all the req’s of the defence, nl :

In Van Wyk crt had to decide :

Q: cud he succeed with PD?

O/N 03 = Q8A // O/N 06 = Q4.1

CHAPTER 3(3) : WRONGFULNESS : GROUND OF JUSTIFICATIONS

Volenti non fit inuria :

1. Consent to injury is an unilateral act

O/N 97 = Q3A, M/J 02 = Q3B, // O/N 06 = Q5.1,

1. Consent must be given freely & voluntarily

Thus R can rely on necessity as a GOJ.

R can raise the GOJ namely, consent.

Guidelines to determine Necessity :

O/N 01 = Q2B // O/N 02 = Q2B // M/J 06 = Q3.2

Consent to risk of injury :

Provocation in case of physical assault :

Guidelines to determine Necessity :

CHAPTER 4(1) : FAULT

Direct Intention : (dolus directus)