PVL3703 Study Guide 2016 PDF

# 2016 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria PVL3703/1/2017–2019 70505691 3B2 iii Contents Study unit Page 1 Scope of study and study material 1 PART I: INTRODUCTION TO THE LAW OF DELICT 7 2 General Introduction 8 PART II: GENERAL PRINCIPLES OF THE LAW OF DELICT 15 3 Conduct 16 4 Wrongfulness Introduction; act and consequence 20 5 The legal convictions of the community (boni mores) as basic test for wrongfulness 23 6 Wrongfulness as infringement of a right; wrongfulness as breach of a legal duty 27 7 Liability for an omission 31 8 Breach of a statutory duty; wrongfulness as the reasonableness of holding a defendant liable 35 9 Grounds of justification; private defence 38 10 Necessity 42 11 Provocation 46 12 Consent 49 13 Statutory authority; official capacity; execution of an official command; power to discipline 52 14 Abuse of right; nuisance 55 15 Fault General; accountability; intent 58 16 Negligence 62 17 Foreseeability and preventability of damage 66 18 Negligence judged in the light of the surrounding circumstances; negligence and duty of care; proof of negligence; wrongfulness and negligence 68 19 Contributory fault 72 20 Voluntary assumption of risk and contributory fault (contributory intent) 76 21 Causation General; factual causation 79 iv 22 Legal causation: general; the flexible approach; adequate causation; direct consequences 82 23 Reasonable foreseeability; novus actus interveniens; so-called egg-skull cases (talem qualem rule) 86 24 Damage Patrimonial loss and non-patrimonial loss 89 25 Delictual remedies 92 26 Joint wrongdoers 95 PART III: FORMS OF DELICT 97 27 Forms of damnum iniuria datum Psychological lesions (emotional shock) 98 28 Injury or death of another person; pure economic loss; negligent misrepresentation; interference with a contractual relationship; unlawful competition; manufacturer’s liability 101 29 Forms of iniuria Right to physical integrity; the right to fama or good name; rights relating to dignitas 103 30 Forms of liability without fault Damage caused by animals; Vicarious liability; Consumer Protection Act 68 of 2008 108 1 1 unit study Scope of study and study material NB: Study your first tutorial letter and this study unit carefully before you tackle the next study units. 1.1 Scope of study: introductory remarks 1.1.1 Designation of the field of study The area of the law we are studying in this module is given various names, the most common of which are ‘‘ddelict’’ and ‘‘tthe law of delict’’. In South African law, delict and the law of delict are translated in Afrikaans as delik and deliktereg or die reg aangaande die onregmatige daad respectively. In German law, a delict is called unerlaubte Handlung (wrongful deed), while de´lit (delict, from the Latin delictum) is used in French law. In English and American law, the term for delict is ‘‘ttort’’, and the law of delict is the law of tort (or the law of torts). 1.1.2 The concepts ‘‘delict’’ and ‘‘law of delict’’: general meaning In general, a delict (wrongful conduct, delik or tort) is the act of a person which in a wrongful (ie legally reprehensible) and culpable (ie legally blameworthy) way causes loss (damage) to another (cf study unit 2 below). The law of delict determines under which circumstances a person can be held liable for the damage or loss he/she has caused another. 1.1.3 Basic premise: the person prejudiced must bear the damage himself/herself Obviously, not all cases where damage has been caused give rise to delictual liability. In fact, as a point of departure, the law expects me to personally bear the damage I suffer: if I drive my car carelessly and smash the headlamp against the garage door, or if I clumsily drop and break my watch, or if lightning strikes my horse dead, I cannot, in principle, hold anybody else responsible for this (except where, for example, I am insured against the resulting damage, in which case the insurer must take up the burden of damage in terms of the contract of insurance). 2 1.1.4 However, a wrongdoer is responsible for damage that he has caused another The consequence of damage caused by way of a delict is that the prejudiced person does not have to bear the loss. The wrongdoer (the person who caused the damage) is held liable by the law to compensate the prejudiced person for the damage. In this module we will study the legal rules that determine under which circumstances a person can legally be held liable for the damage or loss he/she has caused to someone else. 1.1.5 As a point of departure we will study the general requirements for delictual liability The forms that a delict can assume are legion: interference with another’s property, body, freedom, good name, honour, privacy, feelings, earning capacity and trade secrets are all examples of various ways in which a delict can occur. In a module on the law of delict, it would be possible to study each type of delict (or group of related delicts) separately – an approach largely adopted by the English and American law of torts. However, Unisa (like most South African universities) follows a different approach – we accept that all delicts must fulfil specific general requirements, and that a study of these general requirements should be the basis for the study of the law of delict. (These general requirements for [or elements of] a delict are – as is apparent from the above-mentioned definition of a delict – the act, wrongfulness, fault, causation and damage.) A thorough knowledge of the general requirements for a delict will enable you to deal with specific delicts. Consequently, this module on delict consists primarily of a study of the general requirements for delictual liability (study units 2 to 27), while the rest of the module is devoted to the study of specific forms of delict (study units 28 to 30) and cases of delictual liability without fault (study units 31 and 32). 1.1.6 Concluding remarks Having read through the introductory remarks in paragraph 1, you should have a general impression of the meaning of a delict, of the nature of the law of delict and of the approach that this module on delict will take. Naturally, these aspects are examined more fully in the study units that follow. The following paragraph (par 2) deals with the study material to be used in the module. 1.2 Study material The study material for this module consists of the following: & tutorial letters (see par 1.2.1 below) & this study guide (see par 1.2.2 below) & one prescribed textbook: Neethling & Potgieter Neethling-Potgieter-Visser Law of Delict (2015) (see par 1.2.3 below) & supplementary judgments (see par 1.2.4 below) The study material is dealt with in detail below. 3 1.2.1 Tutorial letters The tutorial letters that you will receive during the course of the year form part of the study material and must be studied. The first tutorial letter contains the information you need to orientate yourself and get started on your studies. In it, you will find, among other things, more information on the prescribed study material, the list of judgments you must study, your assignments and how to contact your lecturers and various administrative departments at the University. It is essential that you study this tutorial letter carefully before you read any other study material. In the course of the year you will receive further tutorial letters. Some tutorial letters contain feedback on assignments. Others deal with new judgments, changes in the legal position, references to the study manual or prescribed books, information on the examination as well as other important information. You must read all tutorial letters carefully. 1.2.2 This study guide 1.2.2.1 The guide is not a textbook This study guide serves as a guide to the study of your prescribed textbook (Neethling & Potgieter, Neethling-Potgieter-Visser Law of Delict (2015) [see par 1.2.3 below]), the judgments and other material to which you will be referred in the study units. The study guide serves as the ‘‘lecturer’’ guiding you step by step through the prescribed material. Use the study guide as a point of departure when studying the textbook and other prescribed material. 1.2.2.2 Contents of the study guide For your convenience, the study guide divides the study material into 30 study units. Each study unit takes you through a section of the prescribed textbook. Certain learning outcomes are set at the beginning of each study unit. These outcomes inform you of the knowledge you must acquire and the skills you must master while studying each study unit. The learning outcomes indicate an expected end result: they specify what you must be able to do on completion of a given study unit. The sections of the prescribed book that you must study to achieve the learning outcomes, as well as the sections that you need only read are indicated in each study unit. For examination purposes you only need to know those sections which you had to study. However, do not neglect those sections that you had to read – although you will not be required to answer examination questions on these sections, reading them will promote your understanding of the sections on which you will be examined. Each study unit contains a commentary, taking you step by step through the prescribed study material. Sometimes you are only referred to the relevant study material, while at other times a study unit may contain supplementary explanations and/or information. At the end of each study unit there are a number of self-assessment exercises, mainly in the form of questions, on the content of the study unit. The aim of the self-assessment exercises is twofold. They may be used to test your understanding and knowledge of the relevant study material. Furthermore, by doing the exercises, you may acquire the knowledge and skills required in terms of the learning outcomes. Therefore, we strongly recommend that you do the self-assessment exercises. Note that answers to the questions may sometimes overlap. 4 We also give feedback on the self-assessment exercises. Sometimes we provide you with a fairly comprehensive answer to a given self-assessment question. More frequently, however, we only refer you to the relevant paragraph in the prescribed textbook or other source where the answer may be found, together with guidelines on how you should have approached the exercise. If, in spite of this feedback, you are still uncertain about what is expected in a given self-assessment question, you should not hesitate to contact us. Study units vary in length and in degree of difficulty. Some study units demand more time, research and understanding than others. However, we have tried to divide the material in such a way that you can tackle your study of the law of delict systematically. See that you complete each study unit properly before you begin the next one. 1.2.3 The prescribed textbook 1.2.3.1 The title of the prescribed book The prescribed textbook is Neethling J & Potgieter JM. Neethling-Potgieter-Visser. Law of delict 7th edition 2015. Durban: LexisNexis Butterworths. You must purchase this book yourself. It is available from recommended booksellers or the publishers. 1.2.3.2 Content of the prescribed textbook: an overview Turn to the table of contents in your textbook. You will notice that Law of Delict consists of the following three parts (divided into 11 chapters): The introduction to the law of delict (part I) deals with the nature and place of delict in the legal system, the difference between delict and breach of contract and between delict and crime, as well as the historical development of delictual liability. Finally, the relationship between the law of delict and the bill of fundamental human rights in the Constitution is discussed. In part II (ch 2 to 8), the general principles of the law of delict (or general requirements for delictual liability), namely the act, wrongfulness, fault, causation and damage (ch 2 to 6), as well as delictual remedies (ch 7) and joint wrongdoers (ch 8), are discussed. In part III, specific forms of delict (chs 9 and 10) and forms of liability without fault (ch 11) are discussed. Specific forms of patrimonial damage/loss (damnum iniuria datum) (ch 9) are discussed first, namely injury or death of another person, psychological lesions, pure economic loss, negligent misrepresentation, interference with a contractual relationship, unlawful competition and product liability. The forms of personality infringement (iniuria) (ch 10) follow, namely infringement of the body (eg assault and seduction), physical liberty (wrongful and malicious deprivation of liberty), good name (defamation, malicious prosecution, attachment of property), dignity, privacy, identity and feelings (breach of promise, adultery, abduction, enticement, harbouring). Finally, there are the forms of liability without fault (ch 11), namely liability for damage caused by animals (including the actio de pauperie and the actio de pastu), vicarious liability and cases of statutory liability without fault. 5 1.2.3.3 Only certain parts of the textbook need to be studied You are not expected to study the entire textbook for this module, which is an introductory outline to the law of delict. In each study unit we indicate precisely which parts of the textbook (text and footnotes) and which judgments you must study, and which parts you must only read. Note that if a paragraph contains sub-paragraphs, a reference to the paragraph usually includes the sub-paragraphs. For example, if paragraph 4.3 is subdivided into paragraphs 4.3.1, 4.3.2 and 4.3.3 and the study guide indicates that you must study paragraph 4.3, it means that you must study paragraphs 4.3.1, 4.3.2 and 4.3.3 too. You are not expected to study all the footnotes, but those you must study are indicated in each study unit. 1.2.3.4 Marking your prescribed book We suggest that you page through your textbook right now and carefully mark those parts of the text and footnotes that must be studied, as well as those that you need only read. Use the references in the study units in this study guide as a guideline for marking your book. At least two objectives are achieved by paging through and marking your textbook: first, you ensure that you do not omit any essential parts or waste time by studying parts that are not necessary for examination purposes. Secondly, you become familiar with your textbook and you gain a brief overview of the material you are going to study. 1.2.4 Case law In this module, there is no list of prescribed cases that you must study in addition to your textbook and other study material. However, the case law that is discussed in the main text of your textbook and the prescribed footnotes forms part of your study material. You must know the names of those cases, be able to give a succinct account of the principles that were formulated or applied in those cases and to cite the cases appropriately as authority. If the facts of the cases are discussed in the textbook, you must also be able to supply a brief summary of those facts. We may furthermore require you to read a delict case (in its original, reported form) and answer questions on that case in an assignment, to demonstrate that you can perform basic legal research in respect of delictual questions. You can find such cases in conventional law libraries, or online at the website of the Southern African Legal Information Institute (SAFLII) at www.saflii.org. PART I Introduction to the law of delict 8 2 unit study General introduction PREFACE Before you begin studying this study unit, you must have done the following: & read the first tutorial letter & studied study unit 1 thoroughly & marked your prescribed book carefully as suggested in paragraph 1.2.3.4 of study unit 1 LEARNING OUTCOMES After studying this study unit, you should be able to – define a delict – list the five elements of a delict – name the most important delictual remedies available, and briefly indicate the differences between them – write brief notes on the differences and/or similarities between a delict and a breach of contract – write brief notes on the differences and/or similarities between a delict and a crime – explain, in four or five sentences, how Chapter 2 of the Constitution may influence the law of delict STUDY Prescribed book & chapter 1 paragraphs 1, 2, 3, 4.1 and 5 & footnotes 12, 14 and 24 READ Prescribed book & chapter 1, paragraphs 4.2, 4.3 and 4.4 9 COMMENTARY This study unit is based on chapter 1 of your prescribed textbook and provides a general introduction to the law of delict. (To begin with, reread study unit 1, par 1.) In paragraph 1 the general nature of the concept of a delict and the place delict occupies in the law are discussed. The difference between a delict and a breach of contract is discussed in paragraph 2, and the difference between a delict and a crime in paragraph 3. Paragraph 4.1 introduces the three most important delictual actions. It is important to know the names of the actions and their fields of application. Be sure to read the remainder of paragraph 4 attentively and to make certain that you understand its contents. The historical development of our law of delict is briefly explained here. If you know the historical development of the law of delict, you will understand the present legal position better. In paragraph 5 the influence of the Constitution of the Republic of South Africa, 1996 is discussed. Important additional introductory remarks A delict is defined in paragraph 1 as the act of a person which, in a wrongful and culpable way, causes harm to another. From this description we can establish all the elements of a delict that must be present to hold someone liable for delict: the act, wrongfulness, fault, causation and harm. These elements are discussed in detail in the following study units (specifically, study units 3 to 24). Nevertheless, we wish to provide a provisional overview of these elements here, which will summarise our introduction to the subject. Refer to figure 21 as you study the following explanation. First, there must have been some act or conduct on the part of the person (the wrongdoer or defendant) against whom the prejudiced party (the plaintiff) wishes to litigate. It is logically inconceivable that somebody can be delictually injured unless there has been some act, conduct or deed by another. Hence the term ‘‘wrongful act’’ (onregmatige daad). Secondly – and this may be regarded as the essence of a delict – the act must have been wrongful. This means that the wrongdoer must have acted in a legally reprehensible, unlawful or unreasonable way. An act will be wrongful if the wrongdoer has acted in conflict with the community’s conception of what is right (the boni mores). An act is in conflict with the community’s norms when, among other things, the subjective right of the prejudiced party has been violated, or a legal duty to prevent the injury has been breached. Thirdly, there must have been fault on the part of the wrongdoer. This means that he/she must be legally blameworthy for having acted wrongfully. The law blames the person if he/ she willed the damage in the knowledge that he/she was acting wrongfully (ie if he acted intentionally), or if he did not conform to the standard of care required by the law and thus caused the damage through his/her negligence. Thus our law knows two forms of fault: intention and negligence. Fourthly, there must have been a causal connection between the act of the defendant and damage suffered by the plaintiff. This means that the act must have caused the damage or loss. After all, a person who is prejudiced cannot challenge the action of another if the latter’s conduct had nothing to do with the prejudice suffered. If I kill a bird with a stone, X cannot complain to me that at the very same moment he slipped on his verandah and broke his arm – unless my throwing the stone at the bird gave him a fright, in which case my 10 Handeling/Conduct Studie-eenhede 4–14 / Study units 4–14 Studie-eenhede 16–18 / Studie-eenhede 15–20 / Study units 15–20 Study units 16–18 Studie-eenhede 22–23 / Studie-eenhede 21–23 / Study units 21–23 Study units 22–23 Studie-eenheid 24 / Study unit 24 Studie-eenheid 24 / Study unit 24 Studie-eenheid 24 / Study unit 24 FIGURE 2.1 11 conduct would have been the cause of his fall. Two forms of causation are distinguished: factual and legal. The difference between the two forms will become clear to you when you read study units 21 to 23. Fifthly, the plaintiff must have suffered damage. Damage can take on one of two forms: patrimonial loss (damnum iniuria datum), that is a reduction of financial power, or injury to personality (iniuria), that is an infringement of an aspect of personality such as a good name. As a general rule, all five elements must be present before a defendant may be delictually liable. In principle, a plaintiff must therefore prove all five elements if he/she wishes to obtain judgment in his/her favour in a case dealing with an alleged delict. (Sometimes only some of the delictual elements are disputed by the defendant; in such a case the plaintiff obviously need not prove all the elements, since the defendant, in effect, admits that some of them are present.) If the defendant can show that one or more of the five delictual elements are not present, he/she cannot be held delictually liable. This principle is extremely important for a proper understanding of the law of delict and you must always bear it in mind. There are, however, some exceptions to this rule. In certain exceptional cases a wrongdoer can be delictually liable for the wrongful causation of damage, even if he/she had no fault. Here we are dealing with so-called liability without fault or strict liability (skuldlose aanspreeklikheid or strikte aanspreeklikheid). Cases of liability without fault are discussed in chapter 11 of your prescribed book (study unit 30 of the guide). Furthermore, an interdict – a court order to prevent the causing or continued causing of damage – can be issued by the court in the absence of proof of the elements of fault, causation or damage. The interdict is dealt with in study unit 25. FIGURE 2.2 Now refer to figure 2.2. Various remedies may be available to a person who is prejudiced or threatened by the delict (or wrongful deed) of another. If the person has already suffered harm, he/she may institute an action to be compensated for the damage. The three most important delictual actions in our law are the actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering. As a general rule, the presence of all five delictual elements is a prerequisite for a successful reliance on any of these three actions. However, the actions differ from each other in respect of the form of damage for which they are instituted and the form of fault that must be proved. The actio legis Aquiliae is instituted for patrimonial loss, and intention or negligence must be proved. The actio iniuriarum is instituted for personality infringements, and intention must be proved in the majority of 12 cases. The action for pain and suffering is instituted only for certain types of personality infringements in the form of bodily injuries, and intention or negligence must be proved. Apart from these three actions – which we can call the classical delictual actions – our law also provides for actions with which damage may be recovered, but for which the element of fault is not a requirement (as noted above, see also study unit 30). The last delictual remedy of which you must take note, is the interdict (study unit 25). Unlike the delictual actions, this remedy is not instituted to recover loss already suffered. As noted above, the interdict is applied for in order to prevent harm. To apply successfully for an interdict, an applicant must prove two delictual elements, namely that an act has already been committed or will be committed, and that it is – or will be – wrongful. SELF-ASSESSMENT (See study unit 1 par 1.2.2.2 on the aim of the following questions.) (1) Define a delict. (2) Name the elements of a delict (ie the general requirements for delictual liability). (3) (a) Name the three actions that are described as the pillars of our law of delict. (b) Indicate precisely which types of compensation can be recovered with each of the actions cited in (a). (c) Indicate what form of fault is required for each of the actions cited in (a). (d) Indicate which other group of delictual actions is available in our law. (e) Name another remedy – not an action – that may be employed in delictual cases, and explain how its function differs from that of the delictual actions. (4) What is the similarity between delict and breach of contract? (5) What are the reasons for distinguishing between a delict and breach of contract? (6) What appears to be the similarity between a delict and a crime? (7) Name the differences between a delict and a crime. (8) Name the fundamental rights relevant to the law of delict that are entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996. (9) Explain in a short essay how Chapter 2 of the Constitution may influence the law of delict directly. (10) Explain in a short essay how Chapter 2 of the Constitution may influence the law of delict indirectly. FEEDBACK Unless otherwise indicated, references to paragraphs and footnotes in the feedback refer to your prescribed textbook. (1) See paragraph 1. (2) See paragraph 1. (3) (a) See paragraph 1. 13 (b) See paragraph 1. (c) See paragraph 1. (‘‘Culpably’’ includes the concepts of negligence and intention.) (d) See figure 2.2 and the additional introductory remarks made in this study unit. In study unit 30 you will study specific actions in this group. (e) See figure 2.2 and the additional introductory remarks made in this study unit. In study unit 25 you will become better acquainted with this remedy. (4) See paragraph 2. (5) See paragraph 2. (6) See paragraph 3. (7) See paragraph 3. (8) See paragraph 5. (9) See paragraph 5(a). (10) See paragraph 5(b). CONCLUSION You have now learnt about the law of delict. Did you achieve all the learning outcomes set in this study unit? Among the things you should have noted are the different elements of a delict (or, rather, the general requirements for delictual liability), namely the act, wrongfulness, fault, causation and damage. These general requirements are dealt with in study units 3 to 26. The first, discussed in study unit 3, is the act. 14 15 PART II General principles of the law of delict 16 3 unit study Conduct PREFACE The following 22 study units (study units 3 to 24) deal with the different elements of a delict, namely the act, wrongfulness, fault, causation and damage. In this study unit we will consider the act or conduct. Conduct FIGURE 3.1 17 LEARNING OUTCOMES After studying this study unit, you should be able to – define an act/conduct – list the characteristics of conduct and apply them to practical factual examples – explain the requirements of the defence of automatism and apply them to practical factual examples – briefly explain the difference between a commissio and an omissio STUDY Prescribed book & chapter 2, paragraphs 1, 2, 3 and 4 & footnote 21 COMMENTARY This study unit is based on chapter 2 of your prescribed book. In this chapter the first element of a delict, namely the conduct or act, is considered. (It is quite obvious that a defendant cannot be held liable for a plaintiff’s damage if the defendant has not acted at all.) The general nature and characteristics of conduct are discussed first (pars 1 and 2). Note especially the definition of an act and the different characteristics of an act. The defence of automatism is next (par 3). By raising this defence, a defendant attempts to show that, according to the law, he/she did not act. Here you can read all the footnotes attentively. Although you need not study all the footnotes, the interesting cases to which you are referred in the footnotes will enable you to understand this defence better. In paragraph 4 the two types of conduct are distinguished: a commission (positive conduct, or commissio) and an omission (or omissio). (Liability on the grounds of an omission is discussed in more detail in study unit 8 [ch 3, par 5.2 of the prescribed book].) SELF-ASSESSMENT (See study unit 1, par 1.2.2.2 on the aim of the following questions.) (1) Define the concept ‘‘act’’ or ‘‘conduct’’. (2) Name (but do not discuss) the three characteristics of an act. (3) Can an animal act for the purposes of the law of delict? (4) X encourages his dog to bite Y. Does X act? (5) Can a juristic person (like a company) act? Explain briefly. 18 (6) What does the concept of voluntary conduct mean? (7) X forgets to warn others that an electric current has been switched on. As a result of his neglect (omission), somebody is electrocuted. Does X act voluntarily? Explain briefly. (8) Can an infans or mentally retarded person act voluntarily? (9) Name the conditions that can result in a person’s being unable to act voluntarily. (10) With reference to examples, distinguish between absolute compulsion and relative compulsion (vis compulsiva). (11) Write a short note on the concept of actio libera in causa, giving an example. (12) X is involved in an accident while driving his car. When he regains consciousness, he has no recollection of how the accident took place. He is hospitalised and during treatment for head injuries, the doctors determine that he suffered an epileptic fit at the time of the accident. The car of Y, the other person involved in the accident, is badly damaged. Can it be said that it was an act on the part of X that damaged Y’s car? Will it make a difference to your answer if X had been receiving treatment for epilepsy before the accident, but had failed to take his medicine for several days before the accident took place? Discuss. (13) On whom does the burden of proof for automatism rest? (14) According to Van der Merwe and Olivier, automatism does not really exclude the element of conduct in a delict, but rather wrongfulness or fault. Do you agree? Briefly explain with reference to an example. (15) ‘‘The difference between a commissio and an omissio is not of importance for the purposes of the law of delict.’’ Do you agree with this statement? Explain briefly. FEEDBACK (1) See paragraph 2. (2) See paragraph 2. Note that the definition of an act (question 2) must include all these characteristics. (3) See paragraph 2. (4) See paragraph 2. Although the attack by the dog is not an act, X’s incitement of the dog is an act. (5) See paragraph 2. (6) See paragraph 2. Have you differentiated willed conduct from voluntary conduct in your answer? Is willed conduct always voluntary? Is voluntary conduct always willed? (7) See paragraph 2. Note that you must only indicate whether X acted voluntarily or not. The question is not concerned with the other delictual elements (refer to study unit 2 again), and if you have found that X has acted voluntarily, this does not necessarily mean that he will be delictually liable. (8) See paragraph 2. (9) See paragraph 3. (10) See paragraph 3, footnote 21. (11) See paragraph 3. Is there a link between this question and the next one? (12) See paragraphs 2 and 3. Conduct is defined as a voluntary human act or omission. 19 ‘‘Voluntary’’ means the bodily movements must be susceptible to control of the will, that is, the person must be able to control his/her muscular movements by means of his/her will. Body movements need not be willed to be voluntary, nor do they need to be rational or explicable. The defence of automatism excludes voluntariness, and this means that the relevant movements were mechanical and the person could not control them by his/her will. Factors that can induce a state of automatism include blackout and epileptic fit. According to Molefe v Mahaeng 1999 (1) SA 562 (SCA), the defendant does not bear the onus to prove that he was in a state of so-called sane automatism. The onus is on the plaintiff to prove that the defendant acted voluntarily. If we apply these principles to the facts supplied in the question, we can conclude that X did not act voluntarily when the damage to the car was caused. However, the situation will indeed change if X had been receiving medical treatment for diagnosed epilepsy, but failed to take his medication on that particular occasion. A person cannot rely on automatism if he/she intentionally placed himself/herself in a mechanical state; this is known as the actio libera in causa. Furthermore, a person cannot rely on automatism if he/she negligently placed himself/herself in a mechanical state. In the adapted facts, X was probably negligent, or could even have had intention in the form of dolus eventualis (you will study intention and negligence in study units 15 and 16–18). A reliance on automatism would fail in such a scenario. (13) See paragraph 3. (14) See paragraph 3. (15) See paragraph 4. CONCLUSION You have now dealt with the first element of a delict, namely the act. Did you achieve all the learning outcomes? 20 4 unit study Wrongfulness: introduction, act and consequence PREFACE In the previous study unit you studied the first element of a delict, namely conduct. You will remember that the other elements of a delict are wrongfulness, fault, causation and damage. The second element of delictual liability, namely wrongfulness, will now be discussed. This study unit is the first of eleven study units on wrongfulness. Conduct Wrongfulness / Unlawfulness FIGURE 4.1 21 LEARNING OUTCOMES After studying this study unit, you should be able to – describe the two steps involved in an inquiry into wrongfulness – explain the relationship between wrongfulness and a harmful result, and apply this knowledge to factual examples STUDY Prescribed book & chapter 3, paragraphs 1 and 2 COMMENTARY In this study unit you will come across the concept of ‘‘wrongfulness’’ and the fact that an act can usually be wrongful only if it has some consequence. Although this is a short study unit, it is essential that you know exactly what the concept of ‘‘wrongfulness’’ means before you proceed to the next study units. A good understanding of wrongfulness is a cornerstone of the study of the law of delict. In criminal law, the concept of unlawfulness is used for wrongfulness. In Afrikaans wrongfulness is known as onregmatigheid (or, in criminal law, as wederregtelikheid). What follows is a supplementary explanation to enable you to understand paragraph 1: As is evident from paragraph 1, a wrongful act is legally reprehensible or unreasonable conduct. Someone is delictually liable only if he/she has caused harm in a wrongful way, that is in a reprehensible or unreasonable manner. Where damage results from a lawful or reasonable act, no delict has been committed and the perpetrator is absolved. Example: if, in an emergency, X causes Y some damage by breaking Y’s bedroom window to rescue a child from the burning house, X is acting reasonably and he is not liable for the damage to Y’s window. (Necessity is dealt with later in par 6.3 of ch 3 of your prescribed book.) You will note in paragraph 1 that the determination of wrongfulness entails a dual investigation. Plainly put: it is first ascertained whether the perpetrator’s act was, in fact, the cause of a harmful result to another person. (With reference to the example of the burning house above, the answer to the given question is in the affirmative, that is, X had broken Y’s window and, in so doing, had caused damage to Y.) Secondly, and this is the essence of wrongfulness, it must be ascertained whether the causing of harm took place in an unreasonable or legally reprehensible way. Legal norms are applied to answer this question (the test for wrongfulness is elaborated on in the following study unit). With reference to our example of the burning house, you will learn that, although X caused damage to Y, X’s act was not legally reprehensible because X had acted in necessity; his conduct was reasonable because he had infringed a less valuable interest (the window) in order to save a more valuable interest (the child’s life). Note that there is one important exception (which is not sufficiently borne out in the text of your prescribed textbook) to the principle that wrongfulness can only be ascertained after a 22 harmful consequence has been caused. For the purposes of an interdict, wrongfulness can also be determined with reference to a harmful consequence which has not yet been caused, but which the applicant is attempting to prevent by applying for an interdict (compare study unit 2 above). SELF-ASSESSMENT (See study unit 1, par 1.2.2.2 on the aim of the following questions.) (1) ‘‘The determination of wrongfulness in principle comprises a dual investigation.’’ Briefly explain the meaning of this statement. (2) X races down Pretoria’s main street during peak hour at 200 km/h without causing anybody any damage. Can X’s conduct be described as delictually wrongful? Discuss briefly. (3) X plants a bomb in a busy shop. Before the bomb can explode and cause damage, it is discovered and rendered harmless. Was X’s act delictually wrongful? Explain briefly. (4) Is there an exception to the principle that wrongfulness can only be ascertained after a harmful consequence has been caused? Explain. FEEDBACK (1) See paragraph 1. (2) See paragraph 2, and the feedback on question 3. (3) See paragraph 2. Questions 2 and 3 are different examples illustrating the same truth, namely that wrongfulness can usually be present only if a harmful result has been caused. (4) See the comments made above in this study unit. CONCLUSION In this study unit you began looking at the element of wrongfulness. You noted the two steps in the inquiry into wrongfulness and you studied the link between wrongfulness and a harmful consequence. Did you achieve all the learning outcomes? 23 5 unit study The legal convictions of the community (boni mores) as basic test for wrongfulness PREFACE This is the second study unit on the element of delict termed ‘‘wrongfulness’’. In the previous study unit you studied the meaning of wrongfulness, as well as the fact that, in principle, wrongfulness requires a dual investigation: first, whether a harmful result actually arose, and secondly, whether the causing of damage occurred in a legally reprehensible way. Following this, the first step of the above-mentioned dual investigation was discussed. It was established that in the law of delict an act can usually only be described as wrongful if the act caused a harmful result. We also investigated the meaning of the fact that the act and consequence are always separated in time and space. In this study unit we begin to deal with the second aspect in establishing wrongfulness, namely the requirement that the loss must have been caused in a legally reprehensible way. LEARNING OUTCOMES After studying this study unit, you should be able to – explain what is meant by the legal convictions of the community (boni mores) – name and explain three characteristics of the boni mores as a test for wrongfulness – write brief notes on the role of subjective factors in the determination of wrongfulness – discuss, with reference to examples, the ways in which the boni mores can be applied in practice 24 STUDY Prescribed book & chapter 3 paragraph 3.1–3.4 & footnotes 58, 83 COMMENTARY In this study unit the nature and purpose of the basic test for wrongfulness – the legal convictions of the community (boni mores) – are discussed. In paragraph 3.1 you will learn, among other things, that, in principle, the boni mores test entails a weighing of the defendant’s interests against those of the prejudiced party. You will also learn which factors can influence this balancing of interests and the usefulness of this criterion. Take special note of the role played by the values underlying a bill of rights in the balancing of interests. In paragraph 3.2 it is emphasised that the boni mores test is a criterion of the law of delict; it does not, for example, entail social or religious reprehensibility of behaviour. In paragraph 3.3 it is shown that the basic test for wrongfulness is an objective criterion. The role of the adjudicator is discussed, as well as the fact that subjective factors (like the defendant’s mental disposition) do not normally influence the question of wrongfulness. It is also shown that, in exceptional cases, certain subjective factors (like the defendant’s malice or improper motive or his/her knowledge that the prejudiced party would suffer damage) can play a role in the determination of wrongfulness. (Malice must not be confused with intent: study fn 58.) In paragraph 3.4 the practical application of the boni mores criterion is discussed. It is shown why, in practice, it is seldom necessary to work directly with the general boni mores test when determining wrongfulness. The application of the boni mores test as ‘‘supplementary’’ criterion is also discussed. SELF-ASSESSMENT (See study unit 1, par 1.2.2.2 on the aim of the following questions.) (1) Briefly describe the general or basic test for wrongfulness. (2) Cite the factors that can play a role in the process of balancing interests to determine wrongfulness. (3) ‘‘The boni mores criterion is a criterion of the law of delict.’’ What is meant by this statement? Explain briefly. (4) When applying the boni mores criterion, can a judicial official rely on his/her own personal opinion of right and wrong exclusively? Explain briefly. (5) Write a short note on the role of subjective factors in determining wrongfulness. 25 (6) ‘‘Owing to the fact that wrongfulness is established by a criterion of objective reasonableness, the defendant’s motive plays absolutely no role in the determination of wrongfulness.’’ Is this statement correct? Discuss briefly. (7) Is it correct to say that the defendant’s intent can sometimes determine the wrongfulness of his/her conduct? Discuss briefly. (8) Assume the defendant knew that his/her conduct would harm the plaintiff. Can this subjective knowledge play a role in determining the wrongfulness of his/her behaviour? Discuss briefly with reference to an example. (9) Is it necessary to apply the general boni mores test in every case where wrongfulness must be determined? Explain briefly. (10) What is the connection between the boni mores test and the viewpoint that wrongfulness lies in the infringement of a subjective right or non-compliance with a legal duty? (11) Briefly explain the role that the ‘‘reasonable person’’ plays in the application of the boni mores test. (12) Describe, with reference to examples, the cases where the boni mores test is applied as a supplementary criterion to determine wrongfulness. FEEDBACK (1) See paragraph 3. (2) See paragraph 3.1. (3) See paragraph 3.2. (4) See paragraph 3.3. (5) See paragraph 3.3. (6) See paragraph 3.3. Note that the answer to this question overlaps with part of the answer to question 5. (7) See paragraph 3.3, footnote 58. Have you distinguished clearly between intention and motive in your answer? (8) See paragraph 3.3. Note that the answer to this question overlaps with part of the answer to question 5. (9) See paragraph 3.4. (10) See paragraph 3.4. Infringement of a subjective right and breach of a legal duty as a test of wrongfulness may be regarded as two practical applications of the general boni mores criterion. (11) See paragraph 3.4, footnote 83. You must note that the reasonable person test is usually employed as the test for negligence (study units 16 and further). Use of the ‘‘reasonable person’’ test in connection with wrongfulness takes place only in certain types of situations, and must not be confused with its more usual use (ie as a test for negligence). (12) See paragraph 3.4. 26 CONCLUSION In this study unit you studied the boni mores as a basic test for wrongfulness. Did you achieve all the learning outcomes? 27 6 unit study Wrongfulness as infringement of a right; wrongfulness as breach of a legal duty PREFACE In the previous study unit it was shown that the general test for wrongfulness lies in the legal convictions of the community (boni mores), and that as a result of this test, an act is wrongful if, among other things, it infringes a subjective right of another person or breaches a legal duty. These aspects are discussed in this study unit. LEARNING OUTCOMES After studying this study unit, you should be able to – explain the concept ‘‘subjective right’’ – describe how it is ascertained whether a subjective right has been infringed, and apply this knowledge to practical examples – explain the relationship between legal duties and wrongfulness – explain the relationship between the boni mores and the breach of a legal duty STUDY Prescribed book & chapter 3 paragraph 4.1–4.5 & footnotes 96, 101 and 103 & paragraph 5.1 & footnote 120 28 COMMENTARY The infringement of a subjective right as criterion for wrongfulness is dealt with in this study unit. This criterion does not concern a completely separate test for wrongfulness, but rather a particular application of the general criterion for wrongfulness (the boni mores test), namely that according to the legal convictions of the community (boni mores), an act is wrongful when, among other things, it infringes the subjective right of another. In paragraph 4.1 the doctrine of subjective rights is discussed. Note especially the nature and content of the dual relationship that characterises every subjective right. In paragraph 4.2 the nature of a subjective right is dealt with. Note the various classes or categories of subjective rights. In paragraph 4.3 possible further developments in respect of the doctrine of subjective rights are discussed, and paragraph 4.4 deals with the origins of subjective rights. In paragraph 4.5 the requirements for the infringement of a subjective right are discussed. Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T): You must know that the doctrine of subjective rights was recognised in the judgment. In addition, breach of a legal duty as a criterion for wrongfulness is dealt with. Make sure that you understand, in particular, that the general test for reasonableness, the boni mores test, is an over-arching test, and that the viewpoints that wrongfulness lies in the infringement of a subjective right or the breach of a legal duty constitute practical applications of the boni mores criterion. SELF-ASSESSMENT (See study unit 1, par 1.2.2.2 on the aim of the following questions.) (1) Is infringement of a subjective right the only test for wrongfulness? (2) Briefly distinguish between a legal subject and a legal object with reference to examples. (3) Briefly describe, with reference to examples, the dual relationship that characterises every subjective right. (4) What is the content of the subject-object relationship in the case of a subjective right? (5) What is the content of the subject-subject relationship in the case of a subjective right? (6) ‘‘For every right to which a person is entitled, somebody else has a corresponding legal duty.’’ Briefly discuss the meaning of this statement with reference to an example. (7) On what basis are subjective rights divided into categories and named? (8) Name the different classes into which subjective rights are divided and indicate, with reference to examples, the objects of each category of subjective right. (9) Has the development of the doctrine of subjective rights reached its conclusion? Discuss briefly. 29 (10) How do subjective rights originate? Briefly discuss with reference to an example. (11) What requirements must the object of an individual interest fulfil before it can also be a legal object in terms of the doctrine of subjective rights? (12) Briefly discuss the nature of the dual investigation that is necessary to establish whether a subjective right has been infringed. (13) Briefly describe, with reference to examples, when the subject-object relationship has, in fact, been infringed. (14) What requirement must be fulfilled before factual infringement of the subject-object relationship can amount to violation of a subjective right? Discuss briefly. (15) Give two instances where the boni mores test finds practical application in existing rules of law and legal doctrines. (16) What is the connection between the general test for wrongfulness (the boni mores test) and the views that wrongfulness lies either in the infringement of a subjective right or in the failure to fulfil a legal duty? (17) What is the correlative of the statement that a holder of a right has a right to his/her legal objects? FEEDBACK (1) See paragraph 3.4. (2) See paragraph 4.1. (3) See paragraph 4.1. (4) See paragraph 4.1. (5) See paragraph 4.1. Note that questions 3, 4 and 5 may easily be combined to form a longer question. (6) See paragraph 4.1 and footnote 94. (7) See paragraph 4.2. (8) See paragraph 4.2. (9) See paragraph 4.3. (10) See paragraph 4.4 (11) See paragraph 4.4. (12) See paragraph 4.5. (13) See paragraph 4.5. Note that the answer to this question overlaps with part of the answer to question 12. (14) See paragraph 4.5. Note that the answer to this question overlaps with part of the answer to question 12. (15) See paragraph 3.4. (16) See paragraph 3.4. Infrigement of a subjective right and breach of a legal duty as tests of wrongfulness may be regarded as two practical applications of the general boni mores criterion. (17) See paragraphs 4.1 and 5.1. 30 CONCLUSION In this study unit you studied the infringement of subjective rights and breach of a legal duty as tests for wrongfulness. Did you achieve all the learning outcomes? 31 7 unit study Liability for an omission PREFACE The previous study unit was an introduction to the approach that wrongfulness lies not only in the infringement of someone’s subjective right, but also in the unreasonable conduct of the wrongdoer, whose conduct amounted to a failure to fulfil a legal duty to prevent prejudice. This study unit continues with an examination of wrongfulness; in it you will learn how the wrongfulness of an omission (which you learnt about in study unit 3) is determined. Please note that this study unit contains a lot of detail. LEARNING OUTCOMES After studying this study unit, you should be able to – explain the principles for determining whether an omission is wrongful or not, and then apply them to a set of facts – explain the factors that may be taken into account during the determination of the wrongfulness of an omission and apply this knowledge to factual situations STUDY Prescribed book & chapter 3 paragraph 5.2–5.2.10, 5.3 and 6 & footnotes 160, 161, 162, 163 and 214 32 READ Prescribed book & chapter 2 paragraph 4 COMMENTARY You should refresh your memory of the difference between a commission and an omission before you consider the material in paragraphs 5.2 and 5.3. Therefore, carefully reread chapter 2, paragraph 4 (‘‘Commission (commissio) and omission (omissio)’’). As far as paragraph 5.2 is concerned, you should always bear in mind the basic principle that only in exceptional cases is the wrongdoer liable for causing of damage by an omission. The following subsections of paragraph 5.2 are thus devoted to the factors that indicate that a legal duty rested on the wrongdoer to act positively, which he/she neglected (failed) to do: prior positive conduct (par 5.2.1); control of a dangerous object (par 5.2.2); knowledge and foresight of possible harm (par 5.2.3); rules of law (par 5.2.4); a special relationship between the parties (par 5.2.5); assumption of a particular office (par 5.2.6); a contractual undertaking in respect of the safety of a third party (par 5.2.7); and the creation of an impression that another will be protected (par 5.2.8). Paragraph 5.2.9 deals with the interplay between the aforementioned factors and paragraph 5.2.10 highlights the role of the general wrongfulness criterion in this context. SELF-ASSESSMENT (See study unit 1, par 1.2.2.2 on the aim of the following questions.) (1) Briefly discuss the juridical importance of the difference between a ‘‘commission’’ and an ‘‘omission’’. (2) ‘‘As point of departure it is accepted that there is no general legal duty on a person to prevent the suffering of a loss by another’’ (Minister van Polisie v Ewels 1975 (3) SA 590 (A) 596). Briefly discuss this statement. (3) Mention eight factors that can indicate that a legal duty existed to prevent prejudice in the case of an omission. (4) With reference to case law, briefly sketch the historical development of a so-called prior conduct requirement for liability for an omission. Indicate what role prior conduct plays in the determination of liability for an omission according to the current legal position. (5) In a certain town, the pavements are in a poor condition due to erosion. Several holes and furrows have developed in the pavements. The municipality fails to repair the pavements, despite requests to this effect by several of the residents. One day Duduzile, an aged resident, inadvertently steps into a hole in a pavement, falls and suffers serious injuries for which she is hospitalised for a month. Duduzile wishes to recover damages from the municipality in a delictual action. Discuss only whether the conduct of the municipality was wrongful. Refer in your answer to relevant case law. 33 (6) Briefly discuss the role that the following case played in the so-called omissio per commissionem rule: Minister van Polisie v Ewels 1975 (3) SA 590 (A). (7) According to our present legal position, is ‘‘prior conduct’’ still a requirement for liability for an omission in the ‘‘municipality cases’’? Briefly discuss with reference to case law. (8) ‘‘The approach to liability for an omission in the Ewels case can result in legal uncertainty.’’ Do you agree with this statement? Discuss briefly. (9) Briefly discuss the role that control over a dangerous object plays in the determination of delictual liability on the ground of an omission. (10) There is dry grass on P’s farm. P fails to cut the grass. A fire breaks out in the grass and spreads to his neighbour, Q’s farm, where it causes some damage. Can P be held liable for Q’s damage? Briefly discuss with reference to liability for an omission. (11) May knowledge and foresight of possible harm be an indication that a person had a legal duty to prevent another from incurring loss? Discuss briefly. (12) In certain instances rules of law place an obligation upon a person to perform certain acts. With reference to examples and case law, discuss the role that such rules of law can play in the determination of liability for damage that has resulted from a failure to perform the prescribed acts. (13) May a special relationship between parties be an indication that the one had a legal duty towards the other to prevent damage? Briefly discuss with reference to examples. (14) May a specific office held by a person be an indication that he/she has a legal duty to prevent another from incurring loss? Discuss briefly. (15) Discuss, with reference to an example, the role that a contractual undertaking for the safety of a third party can play in the determination of a legal duty to prevent loss. (16) Discuss briefly the role that a creation of an impression that the interests of a third party will be protected can play in the determination of a legal duty to prevent loss. (17) Is the existence of a legal duty always based on the presence of a single factor? (18) X, a champion swimmer, is walking along the riverside when he sees a child drowning. He fails to rescue the child from the water. Owing to his failure to act, the child suffers serious brain damage and becomes a quadriplegic. Did a legal duty rest on X to save the child? Discuss with reference to case law. FEEDBACK (1) See chapter 2, paragraph 4. (2) See chapter 3, paragraph 5.2. (3) See paragraphs 5.2.1 to 5.2.8. (4) See paragraph 5.2.1. Note that this question deals with the so-called omissio per commissionem rule. (5) See paragraph 5.2. Pay special attention to paragraph 5.2.1. This question deals with the wrongfulness of an omission. The basic question to determine whether an omission is wrongful is whether a legal duty to act was present and was breached. This is determined with reference to the legal convictions of the community, or the boni mores. Factors such as prior conduct (omissio per commissionem); control of a dangerous object; rules of law; a special relationship between the parties; particular office; contractual undertaking for the safety of a third party; and creation of an 34 impression that the interests of a third person will be protected may serve as indications that a legal duty rested on the defendant. In the so-called municipality cases, prior conduct was considered to be a prerequisite for the wrongfulness of an omission. Prior conduct refers to positive conduct that created a new source of danger, preceding a subsequent omission to protect others from being harmed by this new source of danger. The classic case in this respect is Halliwell v Johannesburg Municipal Council 1912 AD 659. The view that prior conduct was a prerequisite for wrongfulness of an omission was eroded in Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A); Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A); and Minister of Forestry v Quathlamba 1973 (3) SA 69 (A). In Minister van Polisie v Ewels 1975 (3) SA 590 (A), the court finally held that the existence of a legal duty is determined by the boni mores, and whereas the presence of prior conduct is a strong indication of the presence of wrongfulness, it is not a prerequisite thereof. Subsequent judgments, such as Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA), confirmed that the principles formulated in Ewels were applicable to municipality cases. An interplay of different factors may also indicate the presence of a legal duty. In Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC), the Constitutional Court made it clear that the boni mores must now be informed by the values underpinning the Bill of Rights in the Constitution. If these principles are applied to the given facts, we can probably conclude that the omission of the municipality was indeed wrongful. (6) Note that this question partially overlaps with the two previous questions. This case represents the most important turning point in the history of the so-called prior conduct requirement for liability for an omission. (7) See paragraph 5.2.1. Note that the trendsetting decision on liability for omissions – Minister van Polisie v Ewels 1975 (3) SA 590 (A) – was not a municipality case, but that a later decision in Van der Merwe Burger v Munisipaliteit van Warrenton 1987 (1) SA 899 (NC) was a municipality case. (8) See paragraph 5.2.1. (9) See paragraph 5.2.2. Take note of the two steps involved. (10) See paragraph 5.2.2. This question requires a practical application of the principles you should have discussed in the answer to question 8. (11) See paragraph 5.2.3. (12) See paragraph 5.2.4. (13) See paragraph 5.2.5. (14) See paragraph 5.2.6. (15) See paragraph 5.2.7. (16) See paragraph 5.2.8. (17) See paragraph 5.2.9. (18) See paragraph 5.2.10. Did you refer to the boni mores, the weighing of interests and the basic principles concerning liability for an omission, as spelled out in the Ewels case? CONCLUSION In this study unit you studied the determination of wrongfulness in the case of an omission. Did you achieve all the learning outcomes? 35 8 unit study Breach of a statutory duty; wrongfulness as the reasonableness of holding a defendant liable PREFACE You are still busy with a study of wrongfulness, the second of the five general requirements for delictual liability. The previous study unit dealt with the wrongfulness of omissions. This study unit deals, first, with wrongfulness in instances of a breach of a statutory duty. Second, you will be introduced to a view that wrongfulness consists in the reasonableness of holding a defendant liable. LEARNING OUTCOMES After studying this study unit, you should be able to – write brief notes on the determination of the delictual wrongfulness of non-compliance with a statutory duty – give a brief explanation of the view that wrongfulness consists in the reasonableness of holding a defendant liable and its relationship with other views on the nature of wrongfulness – succinctly state five points of criticism against the view that wrongfulness consists in the reasonableness of holding a defendant liable STUDY Prescribed book & chapter 3 paragraph 5.3 and 6 36 COMMENTARY Paragraph 5.3 deals with cases where non-compliance with or breach of a statutory duty points to delictual liability. Paragraph 6 deals with the view that wrongfulness revolves around the question of whether it is reasonable to hold a defendant liable. This view has become prominent in the more recent case law. In some cases this view on the nature of wrongfulness appears to be presented as a replacement of the view that wrongfulness consists in the infringement of a right or the breach of a legal duty. In other cases it appears to be treated more as an alternative or complementary way to describe wrongfulness without necessarily detracting from previous formulations of wrongfulness criteria. The following statement in Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) 410 is representative of an approach that reconciles the different views on the nature of wrongfulness: ‘‘The wrongfulness enquiry focuses on the conduct and goes to whether the policy and legal convictions of the community, constitutionally understood, regard it as acceptable. It is based on the duty not to cause harm – indeed to respect rights – and questions the reasonableness of imposing liability.’’ This dictum reconciles the approaches that wrongfulness consists in the infringement of a right, the breach of a duty, and the reasonableness of holding a defendant liable. The judgement also gives due recognition to the legal convictions of the community (boni mores), as influenced by the Constitution, as the basic criterion of wrongfulness. Furthermore, the language used by the court implies that wrongfulness deals with the reasonableness of the defendant’s conduct as well as the reasonableness of holding the defendant liable. (Some other cases explicitly say that wrongfulness does not deal with the reasonableness of the defendant’s conduct and this is obviously hard to reconcile with the approach to wrongfulness that you have encountered in study unit 4 and further.) The authors of your prescribed book are highly critical of the view that wrongfulness consists in the reasonableness of holding a defendant liable and they present five reasons why it should be rejected. Make sure that you understand these points of criticism and can give a brief summary of them. SELF-ASSESSMENT (See study unit 1, par 1.2.2.2 on the aim of the following questions.) (1) What must the plaintiff prove, according to McKerron, in order to establish that a breach of statutory duty by the defendant was wrongful? (2) Briefly describe the approach that wrongfulness consists in the reasonableness of holding a defendant liable. (3) What is the relationship between the abovementioned approach to the determination of wrongfulness and the approaches that wrongfulness consists in the infringement of a subjective right or the breach of a legal duty? (4) Give an example from case law of a reconciliatory approach between the various approaches to wrongfulness. (5) Briefly state five points of criticism that have been raised againt the view that wrongfulness consists in the reasonableness of holding a defendant liable. 37 FEEDBACK (1) See paragraph 5.3. (2) See paragraph 6. (3) In some cases this view on the nature of wrongfulness appears to be presented as a replacement of the approaches that wrongfulness consists in the infringement of a right or the breach of a legal duty. An example is Le Roux v Dey 2011 (3) SA 274 (CC). In other cases it appears to be treated more as an alternative or complementary way to describe wrongfulness without necessarily detracting from previous formulations of wrongfulness criteria. For instance, in Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) 410 the Constitutional Court reconciled the different views on the nature of wrongfulness. Some cases, such as Le Roux v Dey 2011 (3) SA 274 (CC) 315, explicitly state that wrongfulness does not deal with the reasonableness of the defendant’s conduct. Such a statement is hard to reconcile with the approach that wrongfulness consists in the infringement of a right or breach of a duty. (4) In Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) 410 the Constitutional Court stated: ‘‘The wrongfulness enquiry focuses on the conduct and goes to whether the policy and legal convictions of the community, constitutionally understood, regard it as acceptable. It is based on the duty not to cause harm – indeed to respect rights – and questions the reasonableness of imposing liability.’’ This dictum reconciles the approaches that wrongfulness consists in the infringement of a right, the breach of a duty, and the reasonableness of holding a defendant liable. The judgement also gives due recognition to the legal convictions of the community (boni mores), as influenced by the Constitution, as the basic criterion of wrongfulness. Furthermore, the language used by the court implies that wrongfulness deals with the reasonableness of the defendant’s conduct as well as the reasonableness of holding the defendant liable. (5) See paragraph 6. CONCLUSION In this study unit you studied the relationship between non-compliance with a statutory duty and delictual wrongfulness. You also engaged with the approach that wrongfulness consists of the reasonableness of holding a defendant liable. Did you achieve all the learning outcomes? 38 9 unit study Grounds of justification; Private defence PREFACE This study unit is still concerned with the element of delict known as wrongfulness. You have already dealt with the basic test for wrongfulness (boni mores test) (ch 3 par 3), as well as the approaches that wrongfulness can be found in the infringement of a subjective right (par 4); and in the breach of a legal duty (par 5). You have also engaged with the view that wrongfulness consists in the reasonableness of holding a defendant liable. In the following five study units the different grounds of justification are considered, starting with defence in this study unit. LEARNING OUTCOMES After studying this study unit, you should be able to – briefly describe the concept of a ground of justification with reference to an example – briefly indicate the connection between grounds of justification and the boni mores (legal convictions of the community) – describe private defence with reference to an example – name the requirements for private defence and apply them to a given set of facts STUDY Prescribed book & chapter 3, paragraphs 7.1 and 7.2.1–7.2.3 & footnotes 370 and 435 39 READ Prescribed book & all the other footnotes COMMENTARY This study unit is the first of five study units which deal with the so-called grounds of justification (regverdigingsgronde). It is essential that you understand exactly what a ground of justification is before you go any further. First study paragraph 7.1 which serves as a general introduction to grounds of justification. In paragraph 7.2 the first ground of justification – defence – is examined. Although you need to study only two footnotes (370 and 435) in respect of defence, you must read all the other footnotes carefully because they contain examples and court cases that will enable you to understand the subject better. In paragraph 7.2.2(b) you will learn that private defence, as a ground excluding wrongfulness, is established objectively, and that the defendant’s subjective views on whether he or she was acting in defence are not taken into account here. (Such subjective views are relevant when the court determines whether the defendant had fault, ie intention or negligence, which you will study from study unit 15 and further.) This is the better view and we fully support it. However, you need to be aware that several cases decided in the Supreme Court of Appeal and provincial courts have not followed this approach, but have allowed the subjective views of the defendant to be considered here. See paragraph 7.2.1 and cases cited there. In footnote 435, pay special attention to the discussion of Ex parte die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A); as well as the remarks in S v Makwanyane 1995 (3) SA 391 (CC), as summarised towards the end of footnote 435, on the possible impact of the Constitution on the judgement in the Van Wyk case. SELF-ASSESSMENT (See study unit 1, par 1.2.2.2 on the aim of the following questions.) (1) What is a ground of justification? Briefly discuss with reference to an example. (2) What is the connection between grounds of justification and the general test for wrongfulness (the boni mores, or legal convictions of the community)? (3) Define ‘‘defence’’ with reference to an example. (4) Can ‘‘self-defence’’ be used as a synonym for ‘‘defence’’? Discuss briefly. (5) Matimba’s vicious dog attacks Tsakani. Tsakani shoots the dog in order to defend himself against the dog’s attack. Can it be said that Tsakani acted in defence? Would your answer have been different if it appeared that Matimba had incited his dog to attack Tsakani? Discuss briefly. (6) X, a plain-clothes policeman, arrests Y in the execution of a legitimate warrant of 40 arrest. Y believes that X is not a policeman and resists arrest. Is Y acting in defence? Discuss briefly. (7) A directs his pistol at B and threatens to shoot him. B grabs A’s arm to prevent A from shooting him. To loosen his arm from B’s grip, A jabs B in the ribcase with his elbow and cracks one of B’s ribs. B institutes a claim against A for the medical treatment of the injury to his rib. A alleges that he acted in defence because he wanted to escape B’s grasp. Will A succeed with his appeal on defence? Discuss briefly. (8) Can a person act in defence in circumstances where the person has the alternative of protecting his/her interest by fleeing? Discuss briefly. (9) A, a policeman, enters B’s premises without a valid warrant of arrest. B grabs A, pulls him into the house and punches him a few times. Is B acting in defence? Discuss briefly. (10) Does the requirement of commensurateness of interests apply in the case of defence? Discuss. (11) In the case of defence, can a person protect his/her property by killing the attacker? Discuss with reference to the majority decision by the appeal court in Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488 (A). FEEDBACK (1) See paragraph 7.1. (2) See paragraph 7.1. (3) See paragraph 7.2.1 (4) See paragraph 7.2.1 footnote 370. (5) See paragraph 7.2.2 (a). (6) See paragraph 7.2.2 (b). One may not act in defence against a lawful attack. Because the attack has to be wrongful, the test is objective. An objective test is based only on the true facts established ex post facto, and does not take cognisance of the defendant’s subjective view of the occurence. Therefore, when Y believes that he is in danger or that the attack is wrongful, but in reality it is not, his defensive action does not constitute private defence and Y, therefore, acts wrongfully. Our courts have not consistently followed this approach and have on occasions allowed the subjective belief of the defendant to co-determine the presence of private defence. However, such subjective beliefs should preferaby be taken into account in the inquiry into the presence or absence of fault (intention or negligence). (7) See paragraph 7.2.2 (b). In the given example A will not succeed in his claim that he acted in defence. The ‘‘attack’’ by B against which A defended himself was not wrongful, but lawful because B himself acted in defence against A’s initial wrongful attack. (8) See paragraph 7.2.3 (b). (9) See paragraph 7.2.3 (c) (10) See paragraph 7.2.3 (c). (11) See paragraph 7.2.3 (c) and footnote 435. Have you indicated that this judgement may need to be revisited in view of constitutional imperatives? 41 CONCLUSION In this study unit you were introduced to the concept of a ground of justification and you studied defence as a ground of justification. Did you achieve all the learning outcomes? 42 10 unit study Necessity PREFACE We are still dealing with the element of delict known as wrongfulness, and, in particular, the grounds of justification. In the previous study unit we dealt with defence. This study unit covers necessity. LEARNING OUTCOMES After studying this study unit, you should be able to – define necessity – differentiate between defence and necessity – state, and apply to factual situations, the guidelines for a successful reliance on necessity – discuss the importance of S v Goliath 1972 (3) SA 1 (A) for the law regarding necessity STUDY Prescribed book & chapter 3, paragraphs 7.3.1 and 7.3.2 & footnotes 455, 461, 477, 480, 481 and 483 READ Prescribed book & chapter 3, paragraph 7.3.3 43 COMMENTARY Necessity (like defence, which you studied in the previous study unit) is a ground of justification. First read paragraph 7.1 of your prescribed book again and make sure you understand the concept of ground of justification. You must differentiate carefully between defence and necessity: see paragraph 7.3.1. The most important distinction is the following: an act in defence causes harm to an attacker, whereas an act in necessity causes harm to an innocent third party. This is perhaps not stated clearly enough in the prescribed textbook. Note once again that, as in the case of private defence, the textbook sets out the theoretically correct position that necessity must really, objectively, be present, but case law often deviates from this (see eg the discussion of the Pretorius case in fn 455). Furthermore, there is even some controversy as to whether necessity is a ground of justification (ie a defence excluding wrongfulness) or rather a defence excluding fault. See the discussion of the Crown Chickens case in paragraph 7.3.1 in this regard. Pay special attention to S v Goliath 1972 (3) SA 1 (A); and Maimela v Makhado Municipality 2011 (6) SA 533 (SCA), as discussed in footnote 483. Reflect on the possible contribution of the Maimela case to the question whether the Goliath case is still relevant in our current constitutional dispensation. SELF-ASSESSMENT (See study unit 1, par 1.2.2.2 on the aim of the following questions.) (1) Define necessity. (2) X offers to take Y’s dog for a walk. X notices his sworn enemy, Z, approaching him and incites Y’s dog to attack and bite Z. Z draws his pistol and shoots Y’s dog dead on the spot. Y institutes the actio legis Aquiliae against Z. Will Z be able to raise private defence or necessity as a defence? Give a reason for your answer with reference to the basic difference between defence and necessity. (3) Name, seriatim (point by point), the different guidelines that can be considered to establish whether there was a state of necessity. (4) Can a person base his/her defence on necessity where he/she was personally responsible for the state of necessity? Discuss briefly. (5) A’s three-year-old child swallows a handful of pills. A believes the child’s life is in danger and rushes to the hospital at great speed. On the way, he bumps B’s car. Afterwards it appears that the pills did no damage to the child. B institutes the actio legis Aquiliae because of the damage to his car. A’s defence is that he was acting in a state of necessity. Will A succeed with this defence? Discuss briefly. (6) Fhumulani, Gumani and Rudzani are stranded on a small, uninhabited island. There is fresh water on the island, but nothing to eat. Rudzani is already very weak. To stay alive, Fhumulani and Gumani kill Rudzani and eat him. Did Fhumulani and Gumani act wrongfully? Would it make a difference to your answer if Fhumulani and Gumani were picked up by a rescue boat one day later and, according to the evidence of a doctor on board the rescue boat, they were healthy enough to have survived several days without food, thus making the killing of Rudzani unnecessary? Discuss with reference to case law. (7) Can a defendant rely on necessity where he/she was legally compelled to endure the danger? Briefly discuss with reference to an example. 44 (8) Is it a prerequisite that a defendant, who can escape from danger by fleeing, should flee rather than prejudice another’s interests? (9) X, brandishing a hunting knife, tells Y that if Y does not help him kill Z, X will kill Y. Y hits X over the head with a blunt object. X suffers a severe concussion. What ground of justification may Y raise if X institutes a delictual action against Y? Substantiate your answer. FEEDBACK (1) See paragraph 7.3.1. (2) See paragraph 7.3.1. Refer back to the discussion of private defence in your prescribed textbook and read paragraph 7.2.2 (a). Keep in mind that X unlawfully attacked Z, but that Z harmed Y, the owner of the dog, instead of X. Refer again to the commentary in this study unit. (3) See paragraph 7.3.2. (4) See paragraph 7.3.2 (a). Note that there are two points of view. (5) See paragraph 7.3.2 (b). The possible existence of a state of necessity must be determined objectively. It must, therefore, be determined whether, seen objectively, the danger (state of necessity) actually existed, or whether it was only subjectively present in A’s mind. If the latter situation is the case, then A did not act in a state of necessity and his actions were therefore wrongful (unless another ground of justification exists). Fear on the part of A may either have a bearing on his accountability or on the aspect of fault, but not on the wrongfulness of his conduct. This does not, however, mean that he will necessarily be held liable for the damage, since all the elements of a delict (and especially fault) must be present to incur liability. See footnote 455. (6) See paragraph 7.3. The question arising in the given set of facts is whether taking an innocent life in order to save another life/other lives may be justified in necessity. The definition of necessity is as follows: A person acts in necessity if he/she is placed in such a position by a superior force (vis maior) that he/she can only protect his/her interests or those of another person by harming an innocent third person. A principle applicable here provides that the interests must be commensurate; in other words, the interest that is sacrificed must not be more valuable than the interest that is protected. The question of whether an innocent life may be sacrificed to save another life is related to this principle. English case law (R v Dudley and Stephens (1884) 14 QBD 273) originally answered this question in the negative, and this position was followed in our law. However, S v Goliath 1972 (3) SA 1 (A), by implication, answered this question in the affirmative. The facts were that X told Y that if Y did not help X to kill Z, X would kill Y. Y thereupon helped X to kill Z and relied on necessity during the court proceedings. The court said that most people value their own life more highly than that of another person and that necessity could justify homicide. However, this would depend on the facts and had to be approached with the greatest of circumspection. The minority judgment held that fault could have been excluded, but not wrongfulness. If a similar case comes before the courts again, the courts may have to consider whether the boni mores, as interpreted in Goliath, are fully compatible with the values underpinning the Bill of Rights in the Constitution, as now required in view of Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC). In the judgement in Maimela v Makhado Municipality 2011 (6) SA 533 (SCA), a reliance on necessity succeeded in circumstances where an innocent person was killed. The outcome of this judgement suggests that the principles stated in Goliath are still

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