Law Of Delict Study Guide Questions And Answers 2013 PDF

  Law  of  Delict   Study  Guide  Questions  and  Answers   2013   Q&A   All  the  self-­‐assessment  questions,  answered         Study  unit  1  (no  questions)   Study  Unit  2  –  Introduction  to  the...

  Law  of  Delict   Study  Guide  Questions  and  Answers   2013   Q&A   All  the  self-­‐assessment  questions,  answered         Study  unit  1  (no  questions)   Study  Unit  2  –  Introduction  to  the  law  of  delict     Define a delict A delict is the act of a person that in a wrongful and culpable way causes harm to another. List the five elements of a delict Act Wrongfulness Fault Causation Harm Name the three actions that are described as the pillars of our law of delict Actio legis Aquiliae Actio iniuriarum Action for pain and suffering Indicate which types of compensation can be recovered with the above actions Actio legis Aquiliae: Damages for the wrongful and culpable (intentional or negligent) causing of patrimonial damage (damnum iniuria datum). Actio iniuriarum: Satisfaction (solatium or sentimental damages) for the wrongful and intentional injury to personality. Action for pain and suffering: Compensation for injury to personality as a result of the wrongful and negligent (or intentional) impairment of bodily or physical-mental integrity. Indicate which other group of delictual actions is available in our law Liability without fault 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 Interdict. A court order to prevent the causing or continued causing of damage. Can be issued by the court in absence of proof of the elements of fault, causation, or damage. Q&A  by  @yash0505   2     Write brief notes on the differences and/or similarities between a delict and a breach of contract Similarities: As with a delict, a breach of contract is normally an act by one person (contracting party) which in a wrongful and culpable way causes damage to another (contracting party). Differences: Breach of contract is only constituted by the non-fulfilment by a contractual party of a contractual personal claim or an obligation to perform. A delict is constituted by the infringement of any legally recognised interest of another party, excluding the non-fulfilment of a duty to perform by a contractual party. The primary remedy for breach of contract is directed at the enforcement, fulfillment, or execution of the contract (with a claim for damages playing a secondary part). Delictual remedies are primarily directed at damages (or satisfaction), and not at fulfillment. Write brief notes on the differences and/or similarities between a delict and a crime Similarities: The law takes cognisance of wrongful and culpable acts in the sphere of public law, and criminal law in particular. Delicts pertain to wrongful and culpable acts too. Differences: Crimes are a part of public law, whereas delicts are a part of private law. Public law is directed at upholding the public interest, whereas private law is directed at the protection of individual interests. Delictual remedies are compensatory character, whereas criminal sanctions are of a penal nature. The same act may found delictual as well as criminal liability. Crimes and delicts do not always overlap. A delict is not necessarily a crime, and vice versa. Name the fundamental rights relevant to the law of delict that are entrenched in Chapter 2 of the Constitution The right to property, the right to life, the right to freedom and security of the person, the right to privacy, the right to human dignity, the right to equality, the right to freedom of expression, etc. Explain in a short essay how Chapter 2 of the Constitution may influence the law of delict directly Direct vertical application means that the state must respect the fundamental rights and may not infringe them, except insofar as such infringement is reasonable and justifiable according to the limitation clause. Direct horizontal application entails that the courts must give effect to an applicable fundamental right by applying, and where necessary, developing the common law insofar as legislation does not give effect to that right, except Q&A  by  @yash0505   3     where it is reasonable and justifiable to develop the common law to limit the right in accordance with the limitation clause. Explain in a short essay how Chapter 2 of the Constitution may influence the law of delict indirectly The term ‘the indirect operation of the Bill of Rights’ means that all private law rules, principles, or norms – including those regulating the law of delict – are subjected to, and must therefore be given content in the light of the basic values of Chapter 2. Therefore policy factors such as reasonableness, fairness, and justice may play an important part. Q&A  by  @yash0505   4     Study  unit  3  –  The  act     Define conduct A voluntary human act or omission Name the three characteristics of an act Only an act of a human being. If the human action is performed voluntarily. Conduct may be in the form of a positive act (commission) or an omission. Can an animal act for the purposes of the law of delict? No. X encourages his dog to bite Y. Does X act? Yes. Where a human uses an animal as an instrument in the commission of a delict, a human act is still present. Can a juristic person (like a company) act? Explain briefly Yes, if it acts through its organs (humans). What does the concept of voluntary conduct mean? If the action is susceptible to control by the will of the person involved, it is voluntary. Voluntariness implies that the person in question has sufficient mental ability to control his muscular movements. Voluntariness does not mean that the person must have willed or desired his conduct (eg forgetting to warn vs being unconscious and not being able to warn). Voluntariness also does not mean that a person’s conduct should be rational or explicable. X forgets to warn others that an electric current has been switched on. As a result of his omission, somebody is electrocuted. Does X act voluntarily? Explain briefly Yes he does act voluntarily. Voluntariness does not mean the conduct must be willed or desired. It means that the person’s actions must be susceptible to control by his will, and that the person in question has sufficient mental ability to control his muscular movements. X is in principle able to control his muscular movements. Can an infans or mentally retarded person act voluntarily? Q&A  by  @yash0505   5     Yes, although the doer may escape delictual liability because of lack of accountability or because fault is absent. Name the conditions that can result in a person’s being unable to act voluntarily Absolute compulsion, sleep, unconsciousness, a fainting fit, an epileptic fit, serious intoxication, a blackout, reflex movements, strong emotional pressure, mental disease, hypnosis, a heart attack, and certain other conditions. With reference to examples, distinguish between absolute compulsion, and relative compulsion (vis compulsiva) In cases of absolute compulsion, the defendant will not have been able to offer resistance (X pushes knife into Y’s hand, takes hold of the hand holding the knife and forces it into Z’s chest). In cases of relative compulsion, the defendant will have been able to decide whether to offer resistance or not (X points pistol at Y and orders him to damage Z’s vehicle, and X does so, having made the choice). Write a short note on the concept of actio libera in causa, giving an example If the defendant intentionally created the situation in which he acts involuntarily in order to harm another, the defence of automatism will not succeed. This is known as an actio libera in causa. The defendant will be held liable for his culpable conduct in creating the state of automatism, which resulted in damage to the plaintiff. 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 Conduct is defined as a voluntary human act or omission. “Voluntary” means that the person must be able to control his/her muscular movements by means of his/her will. Body movements need not be willed to be voluntary, nor do they need to be rational or explicable. The defence of automatism excludes voluntariness, and this means that the relevant movements were mechanical and the person could not control them by his/her will. Factors that can induce a state of automatism include blackout and epileptic fit. According the Molefe v Mahaeng, the defendant does not bear the onus to prove that he was in a state Q&A  by  @yash0505   6     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 in fact 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 him/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. A reliance on automatism would fail in that case. On whom does the burden of proof for automatism rest? In respect of “sane” automatism, the onus is on the plaintiff to prove that the defendant has acted voluntarily, and, therefore, not mechanically (Molefe v Mahaeng). However, if the defendant raises the defense of automatism resulting from mental illness as a defence, such a defendant will probably bear the onus to prove absence of conduct. “The difference between a commission and omission is not of importance for the purposes of the law of delict.” Do you agree with this statement? Discuss briefly Conduct may be in the form of an omission or commission. Although the difference between the two concepts should not be overemphasised, one distinction of importance is that liability for omission is in general more restricted than liability for a commission. For policy considerations, the law is hesitant to find that there was a legal duty on someone to act positively and so to prevent damage to another. Q&A  by  @yash0505   7     Study  unit  4  –  Wrongfulness:  introduction,  link  with  act  and   consequence     Describe the two steps involved in an inquiry into wrongfulness Firstly, it must be ascertained whether the defendant’s act was in fact the cause of a harmful result to another person. Secondly, it must be ascertained whether the causing of harm took place in an unreasonable or legally reprehensible way. 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 No. An act on its own, without having a consequence of the infringement of a legally recognised interest in a legally reprehensible or unreasonable manner, can never be held to be delictually wrongful. 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 No. Act had no harmful result. (As above) X fires a missile from Pretoria to Perth, Australia. Can X’s conduct be regarded as delictually wrongful before the missile has found its target and caused damage? Explain briefly No. The act had no harmful result, and therefore wrongfulness cannot be present. In Pinchin v Santam Insurance, suppose it could have been proved that the unborn baby’s brain damage was, in fact, caused by the motorcar accident. Would it then have been necessary to use the nasciturus fiction to show that the child had an action on the ground of delict? Explain briefly No. An act and its consequence are always separated by time and space. It is not necessary that the act be classified as lawful or unlawful immediately after its completion. Only when the harmful consequence takes place may the defendant’s act, long since committed, be classified as wrongful. Is there an exception to the principle that wrongfulness can only be ascertained after a harmful consequence has been caused? Explain Q&A  by  @yash0505   8     Yes. 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 trying to prevent by applying for an interdict. Study  unit  5  –  Wrongfulness:  the  legal  convictions  of  the   community  (boni  mores)  as  basic  test  for  wrongfulness     Briefly describe the general or basic test for wrongfulness The boni mores test is an objective test based on the criterion of reasonableness. The basic question is whether, according to the legal convictions of the community and in light of all the circumstances of the case, the defendant infringed the interests of the plaintiff in a reasonable or in an unreasonable manner. Cite the factors that can play a role in the process of balancing interests to determine wrongfulness The nature and extent of the harm; subjectively foreseen harm reasonable foreseeability of harm; the possible value to the defendant or to society of the harmful conduct; the costs and effort of steps which could have been taken to prevent loss; the degree of probability of the success of preventative measures; the nature of the relationship between the parties; the motive of the defendant; economic considerations; etc. “The boni mores criterion is a criterion of the law of delict.” What is meant by this statement? Explain briefly In applying the boni mores criterion, we are concerned with whether the community regards the act as delictually wrongful, not socially, morally, ethically, or religiously right or wrong. Also, the boni mores test is not determined by the question of whether a particular act should be considered wrongful for the purposes of public interest, because delict is concerned with individual interests. When applying the boni mores criterion, can a judicial official rely on his/her own personal opinion of right and wrong exclusively? Explain briefly No. In his role as interpreter of the legal convictions of the community, a judge nevertheless does not elevate his personal viewpoint regarding right and wrong to the sole measure of wrongfulness. A judge who does that, impermissibly makes the law whilst his main task is to apply the law. Write a short note on the role of subjective factors in determining wrongfulness Q&A  by  @yash0505   9     Subjective factors, such as the defendant’s mental disposition, knowledge, and motive, normally do not play a role in determining wrongfulness. “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 In the area of so-called neighbour law, a defendant’s improper motive (“malice”) may play a role in deciding whether he acted wrongfully. Eg defendant who plants deciduous trees along the boundary of his property for the sole purpose of injuring his neighbour by causing leaves to fall onto his nearby threshing-floor, will render his apparently reasonable conduct wrongful. Is it correct to say that the defendant’s intent can sometimes determine the wrongfulness of his conduct? Discuss briefly It is incorrect to suggest that a defendant’s intent sometimes determines the wrongfulness of his conduct. Consciousness of wrongfulness is an element of the technical-legal concept of intent. Improper motive and intent have different meanings. Intent may be present even in the absence of improper motive (eg euthanasia). Assume the defendant knew that his conduct would harm the plaintiff. Can this subjective knowledge play a role in determining wrongfulness of his behaviour? Discuss briefly with reference to an example This subjective knowledge is taken into consideration in cases of, eg, the causing of so-called pure economic loss and omissions. Is it necessary to apply the general boni mores test in every case where wrongfulness must be determined? Explain briefly It is seldom necessary to make direct use of this general and comparatively vague test to determine wrongfulness. In general, if a factual infringement has taken place, this can already be an indication of, or pointer to, the wrongfulness of the conduct: in other words, it can constitute prima facie wrongfulness, or create a presumption of wrongfulness. 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? Q&A  by  @yash0505   1   0   Infringement of a subjective right and breach of a legal duty as a test for wrongfulness may be regarded as two practical applications of the general boni mores test. Briefly explain the role that the “reasonable person” plays in the application of the boni mores test Whether the defendant acted in violation of the legal convictions of the community in the particular circumstances, is determined by asking whether the reasonable person (of normal intelligence and development) would have regarded the relevant infringement of interests as legally reprehensible in the circumstances. The reasonable person therefore embodies or represents the legal convictions of the community. Describe, with reference to examples, the cases where the boni mores test is applied as a supplementary criterion to determine wrongfulness Two main ways the general boni mores or reasonableness criterion is applied as a supplementary test for wrongfulness. Firstly, in novel cases where there is no clear legal norm or ground of justification involved. Secondly, for the purposes of refinement, especially in assessing wrongfulness in borderline cases Q&A  by  @yash0505   1   1   Study  unit  6  –  Wrongfulness:  wrongfulness  as  infringement  of   a  subjective  right     Is infringement of a subjective right the only test for wrongfulness? No. It is one example of the practical application of the boni mores test. Another example would be non-compliance with a legal duty to act. Briefly distinguish between a legal subject and a legal object with reference to examples All people are legal subjects and holders of subjective rights. The holder of a subjective right has a right to something (the legal object). For example, a legal subject has a right to his car (legal object). Briefly describe, with reference to examples, the dual relationship that characterises every subjective right The holder of a subjective right has a right to something, enforceable against other people. Firstly there is a relationship between the legal subject and the legal object, and secondly there is a relationship between the legal subject and all other legal subjects. The legal subject has a right to his car (legal object) – the subject-object relationship – enforceable against other persons – the subject- subject relationship. What is the content of the subject-object relationship in the case of a subjective right? The holding of the right confers powers or enjoyment, use, and disposal in respect of the legal object. What is the content of the subject-subject relationship in the case of a subjective right? The holder of the subjective right can uphold his powers over a legal object against all other legal subjects, and a duty rests on all other legal subjects not to infringe the relationship between the holder of the right and the object of his right. “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 Every right has a correlative duty. If I have a right to something, other persons have a duty not to infringe my right. As owner, I have a right to my car, and all other people simultaneously have a legal duty to honour my right by eg not damaging or stealing my car. Q&A  by  @yash0505   1   2   On what basis are subjective rights divided into categories and named? Rights are categorised and named with reference to the different types of legal objects to which the rights relate. Name the different classes into which subjective rights are divided and indicate, with reference to examples, the objects of each category of subjective right Real rights o Tangible objects such as a farm, pen, car, compressed air in a cylinder Personality rights o Aspects of personality such as good name, physical integrity, honour, privacy, and identity Personal rights o Acts and performances such as delivery by the seller, payment by a debtor, rendering of services by an employee Immaterial property rights o Intangible products of the human mind which are expressed in one or other outwardly perceptible form, such as invention, a poem, or a work of art Personal immaterial property rights o Intangible products of the human mind which are connected with personality, such as earning capacity and creditworthiness) Has the development of the doctrine of subjective rights reached its conclusion? Discuss briefly Nothing prevents further development or evolution of this doctrine. The recent acknowledgement of new personality rights to privacy and to identity bears testament to this. Even new categories of rights may be recognised, such as personal immaterial property rights, which were identified and described relatively recently. How do subjective rights originate? Briefly discuss with reference to an example Subjective rights arise when the law recognises existing individual interests as being worthy of protection. What requirements must the object of an individual interest fulfill before it can also be a legal object in terms of the doctrine of subjective rights? Q&A  by  @yash0505   1   3   Two conditions must be met. Firstly, it must be of value – that is relatively scarce – to the holder of the right; Secondly, it must have such a measure of independence that it is possible to dispose of it and enjoy it. Briefly discuss the nature of the dual investigation that is necessary to establish whether a subjective right has been infringed To determine whether a right has been infringed: Firstly one must determine whether the relationship between the holder of the right and the subject of the right has been infringed. Secondly, whether the infringement complained of took place in a legally reprehensible way. Briefly describe, with reference to examples, when the subject- object relationship has, in fact, been infringed Such a violation occurs mostly by means of an action impacting directly on the legal object itself: the defendant, eg, crashes into the plaintiff’s car, or infringes the plaintiff’s physical integrity by slapping his face, or injures the plaintiff’s dignity by addressing humiliating words to him, or violates the plaintiff’s right to privacy by peeping at him in his bathroom. What requirement must be fulfilled before factual infringement of the subject-object relationship can amount to violation of a subjective right? Discuss briefly The actual interference must take place in a legally impermissible manner. The norm or standard used to determine whether an actual violation of the subject- object relationship is legally impermissible or not remains the general reasonableness criterion, which is established with reference to the legal convictions of the community, ie the boni mores. Q&A  by  @yash0505   1   4   Study  unit  7  –  Wrongfulness:  wrongfulness  as  a  breach  of  a   legal  duty     Give two instances where the boni mores test finds practical application in existing rules of law and legal doctrines Two examples of the practical application of the boni mores yardstick (the test for determination of wrongfulness which is an investigation into the legal convictions of the community) are to be found in the view that wrongfulness amounts to the infringement of subjective rights, or the non-compliance with a legal duty to act. What is the connection between the general test for wrongfulness (the boni mores test) and the views that wrongfulness lies in either the infringement of a subjective right or in the failure to fulfill a legal duty? Infringement of a subjective right and breach of a legal duty as a test for wrongfulness may be regarded as two practical applications of the general boni mores criterion. What is the correlative of the statement that a holder of a right has a right to his legal objects? Other persons have a duty not to infringe that right. Write short notes on the concepts of “legal duty” and “duty of care” and indicate which of the two concepts is preferable when translating the concept regsplig It is preferable to use the term “legal duty” in English instead of “duty of care”. The term “duty of care” may lead to confusion, as it is traditionally employed to denote more than one meaning. Sometimes it relates to wrongfulness: to the existence of a legal duty to take steps to prevent loss; on the other occasions it relates to negligence: to the duty to take reasonable care by foreseeing and preventing loss. This sometimes results in a failure to distinguish between two fundamentally different elements of delict: wrongfulness, and fault. Q&A  by  @yash0505   1   5   Study  unit  8  –  Wrongfulness:  liability  owing  to  an  omission;   breach  of  a  statutory  duty     Briefly discuss the juridical importance of the difference between a “commission” and an “omission” Liability for an omission is in general more restricted than liability for a positive act (a commission). For policy considerations, the law is hesitant to find that there was a legal duty on someone to act positively and so prevent damage to another. “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). Briefly discuss this statement As a general rule, a person does not act wrongfully for the purposes of the law of delict if he omits to prevent harm to another person. Liability only follows if the omission was in fact wrongful, and this will be the case only if a legal duty rested on the defendant to act positively to prevent harm from occurring and he failed to comply with that duty. The question of whether such a duty existed is answered with reference to the criterion of the legal convictions of the community and legal policy. Mention 7 factors that can indicate that a legal duty existed to prevent prejudice in the case of an omission Prior conduct (the omissio per commissionem rule) Control of a dangerous object Rules of law A special relationship between the parties A particular office Contractual undertaking for the safety of a third party Creation of the impression that the interests of a third party will be protected 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 A person acts prima facie wrongfully when he creates a new source of danger by means of positive conduct (commission) and subsequently fails to eliminate that danger (omission). The view that “prior conduct” is an indispensable requirement for liability for omissions prevailed in our law for a long time. However in 1957 the “prior conduct” requirement was rejected in a minority decision in favour of the preferred view that “prior conduct” was but one of Q&A  by  @yash0505   1   6   several considerations which might indicate the existence of a legal duty. This more flexible approach was later accepted by the Appellate Division, and eventually expressed in Minister van Polisie v Ewels. In this judgment, the generally accepted view that wrongfulness is in principle determined by the legal convictions of the community has now been applied to omissions. The view that “prior conduct” is but one of several considerations which might indicate the existence of a legal duty, is the current legal position. 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 requires to this effect by several of the residents. One day Mrs M, an aged resident, inadvertently steps into a hole in a pavement, falls, and suffers serious injuries for which she is hospitalised for a month. Mrs M 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 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 which may serve as indications that a legal duty rested on the defendant include: prior conduct (omissio per commissionem); control of a dangerous object; rules of law; a special relationship between the parties; particular office; contractual undertaking for the safety of a third party; and creating of an impression that the interests of a third person will be protected. In the so-called municipality cases, prior conduct was considered to be a prerequisite for the wrongfulness of an omission. Prior conduct refers to positive conduct that created a new source of danger, preceding subsequent omission to protect others from being harmed by this new source of danger. In Minister van Polisie v Ewels, 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. Interplay of different factors may also indicate the presence of a legal duty. If these principles are applied to the given facts, we can probably conclude that the omission of the municipality was indeed wrongful. Briefly discuss the role that the following case played in the so- called omissio per commissionem rule: Minister van Polisie v Ewels See previous answer. This case represents the most important turning point in the history of the so-called prior conduct requirement for liability for an omission. According to our present legal position, is “prior conduct” still a requirement for liability for an omission in the “municipality cases” Q&A  by  @yash0505   1   7   Any doubt about the applicability of the decision in the Ewels case (that prior conduct is not indispensable for the existence of a legal duty) to the “municipality cases”, was removed by the Supreme Court of Appeal in Cape Town Municipality v Bakkerud. The court held that the legal convictions of the community could even in the absence of “prior conduct” (or a statutory duty) place a legal duty on a municipality to, for instance, repair roads or sidewalks or to warn against danger. Whether this is the case, depends on the circumstances and must be determined ad hoc. “The approach to liability for an omission in the Ewels case can result in legal uncertainty.” Do you agree with this statement? Discuss briefly According to Amicus Curiae, the approach laid down in the Ewels case gives too much discretion to the courts and may result in legal uncertainty. However there is no doubt that the approach favoured in the Ewels case is correct, if one looks at subsequent decisions in the courts. Briefly discuss the role that control over a dangerous object plays in the determination of delictual liability on the ground of an omission Control over a dangerous or potentially dangerous object can be a factor in determining whether a legal duty rested on the person in control, to prevent someone from being injured by the particular situation. Two questions are relevant: Firstly, whether there was actual control and; Secondly, whether, in light of inter alia such control, a legal duty rested on the defendant to take steps to prevent damage resulting from his or her omission to exercise proper control. 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 Liability for an omission follows only if the omission was in fact wrongful, and this will be the case only if a legal duty rested on P to act positively (by cutting his grass) to prevent harm from occurring, and P failed to comply with that duty. One of the factors that can indicate that a legal duty existed to prevent prejudice in the case of an omission is control of a dangerous object. Firstly, there must be actual control, and secondly, in light of such control there must be a legal duty on the defendant to take steps to prevent damage resulting from his omission to exercise proper control. P owns the potentially dangerous object of property with grass that could spread fire, so he has control over it. P can probably be held liable for Q’s damage because it will probably be considered Q&A  by  @yash0505   1   8   that proper exercise of control of this object would be necessary with reference to the legal convictions of the community. 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 determination of liability for damage that has resulted from a failure to perform the prescribed acts In certain instances, the law (either common law or statute) places an obligation upon a person to perform certain acts. As an example, common law obliges the owner of lower land to provide laterl support for his neighbour’s land, and owners of neighbouring land in local communities who light controlled fires on their property are obliged to obey certain statutory precepts. If the neighbour suffers damage as a result of their failure to perform this duty, their conduct is prima facie wrongful. The conduct (omission) will be wrongful, not due to the non-compliance with the statutory legal duty per se, but rather because it is reasonable in the circumstances to compensate the plaintiff for the infringement of his right. Reasonableness is determined with reference to the legal convictions of the community and legal policy. 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 Yes. The existence of a contractual relationship may indicate such a legal duty. Other examples are the relationship between a policeman and a citizen, an officer of the law and a prisoner, an employer and an employee, parent and child, doctor and patient. 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 Yes. Sometimes the person’s occupation or the office he holds places a legal duty upon him to conduct himself in a particular manner in relation to the public or certain people. 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 Where A enters into a contract with B in which A undertakes to take steps to ensure the safety of C, A is placed under a legal duty towards C. If A then fails to take those steps and C suffers damage as a consequence, the legal duty is violated and A acts wrongfully in relation to C. This explains why an appointed life-saver has a legal duty to rescue swimmers at a swimming pool or a beach. Q&A  by  @yash0505   1   9   Is the existence of a legal duty always based on the presence of a single factor? No. The existence of a legal duty may often be ascribed to a single factor, but in other cases several factors play a part. 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 In the final analysis of whether a legal duty existed, we are dealing with the determination of the reasonableness of the defendant’s failure to act in view of all the circumstances of the case. It is not imperative that the omission in question falls into one of the crystallised categories. This well-known example of the champion swimmer may serve as an example. In determining whether a duty rested on the swimmer to rescue the child, the swimmer’s conduct cannot be classified under any of the stereotyped categories that indicate a legal duty. Consequently, recourse must be had to the general test for wrongfulness. By means of the boni mores test, a balancing process must take place between, on the one hand, the interests of the swimmer (eg, inconvenience and damage to his clothes) and, on the other hand, the interests of the child (serious violation of his physical integrity) and the child’s parent or guardian (great financial cost brought about by the child’s handicap). Public interest also plays a part here. In view of all these circumstances, it must be decided whether the swimmer’s omission, in the words of the Ewels case, evokes not merely moral indignation but should also be regarded as wrongful according to the legal convictions of the community and that he should subsequently render compensation for the damage suffered. In this example, it will probably be decided that a legal duty rested on the swimmer to take steps to rescue the child. However, the scales may favour the defendant-swimmer if, eg, it should appear that there were crocodiles in the vicinity and that he would place his own life in danger were he to rescue the child; the law no longer requires that a person regard another’s life as more important than his own. What must the plaintiff prove, according to McKerron, in order to establish that a breach of statutory duty by the defendant was wrongful? In order to establish wrongfulness, the plaintiff must prove the following: a) That the relevant statutory measure provided the plaintiff with a private law remedy; b) That the plaintiff is a person for whose benefit and protection the statutory duty was imposed; Q&A  by  @yash0505   2   0    c) That the nature of the harm and the manner in which it occurred are such as contemplated by the enactment; d) That the defendant in fact transgressed the statutory provision; and e) That there was a causal nexus between the transgression of the statutory provision and the harm. Q&A  by  @yash0505   2   1   Study  unit  9  –  Wrongfulness:  grounds  of  justification  –   defence     What is a ground of justification? Briefly discuss with reference to an example Grounds of justification are special circumstances in which conduct that appears to be wrongful (because an actual violation of interests is present) is rendered lawful (since there is no violation of a norm). What is the connection between grounds of justification and the general test for wrongfulness (the boni mores, or legal conviction of the community)? In reality, grounds of justification are nothing more than practical expressions of the boni mores or reasonableness criterion with reference to typical factual circumstances that occur regularly in practice. Define “defence” with reference to an example Private defence, or defence, is present when the defendant directs his actions against another person’s actual or imminently threatening wrongful act in order to protect his own legally recognised interests or such interests of someone else. For example, A acts in defence if he hits B over the head to prevent B from stabbing A with a knife. Can self-defence be used as a synonym for defence? Discuss briefly No. Self-defence is a form of defence. However, the term self-defence is too narrow to be used as a synonym for defence, because an act in defence may also be executed in defence of someone else and of property. X’s vicious dog attacks Y. Y shoots the dog in order to defend himself against the dog’s attack. Can it be said that Y acted in defence? Would your answer have been different if it appeared that X had incited his dog to attack Y? Discuss briefly No, because the attack must consist of a human attack, it means that aggression by an animal does not qualify as an attack. Because an animal cannot act for the purposes of delict, defensive action against attack by an animal does not constitute defence. In such a case, necessity may be an appropriate ground of justification. One may indeed act in defence against a person who uses his animal merely as an instrument of attack, such as someone who incites his dog to attack another. In such an instance, the act of defence is in reality directed against human conduct (attack). Q&A  by  @yash0505   2   2   X, a plain-clothes policeman, arrests Y in the execution of a legitimate warrant of arrest. Y believes that X is not a policeman and resists arrest. Is Y acting in defence? Discuss briefly Because the attack has to be wrongful, the test here is objective. An objective test deals with the facts as they appear ex post facto and not with the defending person’s subjective impression of the events. If the defending person subjectively 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 he acts wrongfully. Someone who acts wrongfully because he incorrectly believes that he is acting in private defence can still escape liability if he did not have fault (intent or negligence). 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 ribcage 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 A will not succeed. The attack must be wrongful. In the given example, 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. Can a person act in defence in circumstances where the person has the alternative of protecting his interest by fleeing? Discuss briefly If the interest may be protected in some other, less detrimental way, the act of defence is wrongful. Case law seems to be of the opinion that a person must flee, unless such flight exposes him to danger, such as a shot in the back, or if such flight would result in a policeman abandoning his duty to arrest a criminal. Perhaps the requirement that there must be danger connected to flight is too narrow. It should also not be expected of him to flee where flight will cause an infringement of the interests of the attacked person, such as an impairment of dignity resulting from the humiliation caused by flight. 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 The act of defence must not be more harmful than is necessary to ward off the attack. The value of the interests may differ. One may infringe a more valuable interest to protect one of a lesser value. However, there an extreme imbalance is unacceptable. The interests need not be similar in character, however, extreme Q&A  by  @yash0505   2   3   imbalance is unacceptable. Also, the defence must be necessary to protect the right, and if the interest may be protected in some other, less detrimental way, the act of defence is wrongful. In this case I believe B’s act of defence is wrongful. Does the requirement of commensurateness of interests apply in the case of defence? Discuss No. The value of the interests may differ, and the interests need not be similar in character. However, if an extreme imbalance of interests is the case, the defensive act is unlawful. In the case of defence, can a person protect his 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 Yes. All the judges in the case agreed that one may in principle rely on the doctrine of defence when one has killed or injured another in order to protect one’s property. The next question to be answered in the case was whether the bounds of defence were exceeded. The cardinal question to be answered in order to determine whether someone exceeded the bounds of defence, is whether the steps actually taken by him constituted the only reasonable method of warding off the attack. In this case, the majority found that Van Wyk had not exceeded the bounds of defence because all other methods of defence were not practical. They held that the setting up of the gun was the only reasonable possibility if Van Wyk wished to protect his property. Q&A  by  @yash0505   2   4   Study  unit  10  –  Wrongfulness:  grounds  of  justification  –   necessity     Define necessity A state of necessity exists when the defendant is placed in such a position by superior force (vis maior) that he is able to protect his interests (or those of someone else) only by reasonably violating the interests of an innocent third party. 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 Z will be able to raise necessity as a defence against Y. Necessity must be clearly distinguished from private defence. The distinction is that when acting in defence the actor’s conduct is directed at an attack by the wrongdoer. When acting out of necessity, his conduct violates the interests of an innocent party. The fact that X incited the dog means that the act was actually a human act by X using the dog as an instrument, however, the dog is a legal object of Y’s, and therefore by killing the dog Z violated Y’s (an innocent party) subjective right to his dog. Name, point by point, the different guidelines that can be considered to establish whether there was a state of necessity The question at issue is whether a state of necessity really exists, not whether it has been caused by human action, animals, or forces of nature. The possible existence of a state of necessity must be determined objectively. The state of necessity must be present or imminent. The defendant need not only protect his interests, but may also protect the interests of others. Not only life or physical integrity, but also other interests, such as property may be protected out of necessity. A person may not rely on necessity where he is legally compelled to endure the danger. In general, the interest that is sacrificed may not be more valuable than the interest that is protected. Homicide may be justified by necessity (S v Goliath) The act of necessity must be the only reasonably possible means of escaping the danger Q&A  by  @yash0505   2   5   Can a person base his defence on necessity where he was personally responsible for the state of necessity? Discuss briefly There is authority for both the view that a state of necessity created by the defendant excludes a plea of necessity, and for the view that a person may rely on necessity even though he has created the state of necessity. The latter view appears to enjoy most support. Proponents of the view argue that the conduct creating the emergency and the defensive act should be kept apart. If the conduct creating the emergency constitutes a crime or causes damage, the defendant should be held liable for it; nevertheless, such conduct should not preclude him from acting out of necessity in order to escape from the emergency. A’s three-year-old child swallows a handful of pills. 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 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 must be present to incur liability. When is negotiorum gestio present? Discuss with reference to an example It is present where a person attends to the interests of another without the latter’s permission: eg it would be lawful to break down one’s neighbour’s door in his absence in order to switch off the water when the pipes in his roof have burst and the house has been flooded. X, Y, and Z are stranded on a small, uninhabited island. There is fresh water on the island, but nothing to eat. Z is already very weak. To stay alive, X and Y kill Z and eat him. Did X and Y act wrongfully? Would it make a difference to your answer if X and Y 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 Z unnecessary? Discuss with reference to case law. Q&A  by  @yash0505   2   6   The question arising in the given 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 is placed in such a position by a superior force that he can only protect his interests or those of another person by harming an innocent third person. A principle applicable here provides that the interests must be commensurate (unlike defence); 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 originally answered this question in the negative, and this position was followed in our law. However, S v Goliath, by implication, answered this question in the affirmative. The facts were that if 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. The minority judgment held that fault could have been excluded, but not wrongfulness. Applying these principles, the defendants may rely on necessity and a strong argument could be made that they did not act wrongfully on the strength of the Goliath case. The answer would be different if it transpired that they would have been rescued in time. The state of necessity must really objectively be present. The defendants’ conduct would therefore have been wrongful. However, their misguided impression that they were acting in necessity (known as putative necessity) may exclude fault on their part. Can a defendant rely on necessity where he was legally compelled to endure the danger? Briefly discuss with reference to an example No. The fact that the law compels him to endure the state of necessity means that he lacks the power to avoid it. In this connection, eg, a landowner may not alter the natural flow of water on his land so that it causes damage to others, even where his own interests are threatened by flood waters. Is it a prerequisite that a defendant, who can escape from danger by fleeing, should flee, rather than prejudice another’s interests? The act of necessity must be the only reasonably possible means of escaping the danger. If the defendant can escape from the emergency by fleeing, he must do so. 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 Q&A  by  @yash0505   2   7   The facts are of such a nature that we must consider two grounds of justification, namely private defence and necessity. Private defence is present when the defendant directs his actions against another persone’s actual or imminently threatening wrongful act in order to protect his own legitimate interests of such interests of someone else. Private defence will be present if thre following requirements are met: (1) the defence must be directed against the aggressor; (2) the defence must be necessary to protect the threatened right and this implies that there must be no reasonable alternative to the act of the defence; and (3) the act of defence must not be more harmful than is necessary to ward off the attack. Requirement (3) implies that there must be a measure of proportionality between the attack and the defending act, although absolute proportionality is not required; the value of the protected interest and the sacrificed interest may differ; the interests need not be similar in character; and the means of defence employed by the defender need not be similar to those of the attacker. Necessity, on the other hand, exists when the defendant is placed in such a position by a superior force that he is able to protect his interests or those of someone else only by reasonably violating the interests of an innocent third party. The most important difference between private defence and necessity is the fact that private defence is directed at an attack by a wrongdoer, whereas when acting out of necessity, the interests of an innocent third party are prejudiced. In other words, if the plaintiff was an attacker, private defence may be applicable, whereas if the plaintiff was an innocent person, necessity may be applicable. From the above it is clear that private defence is the appropriate ground of justification in our set of facts. Y harmed the interests of X, and X was certainly no innocent third person. On the contrary, X had directed wrongful attacks or imminently threatening attacks on both Z and Y. If, on the other hand, Y had assisted X to harm Z, and Z somehow survived and instituted a delictual claim against Y, it would have been appropriate to consider whether necessity was applicable (compare the facts of S v Goliath). Q&A  by  @yash0505   2   8   Study  unit  11  –  Wrongfulness:  grounds  of  justification  –   provocation     Explain the meaning of the concept of provocation with reference to examples Provocation is present when a defendant is provoked or incited by words or actions to cause harm to the plaintiff. Example: X insults Y and Y returns the insult. Alternatively X assaults Y, whereupon Y assaults X. Should X now institute a claim against Y, Y relies on provocation: he claims that X provoked (enticed) him and that for this reason X’s claim should fail. Is provocation a ground of justification or a ground of exclusion for fault? Briefly discuss with reference to case law In our opinion, provocation is a ground of justification, which renders the defendant’s conduct lawful. The defence of provocation is assessed by objectively weighing the provocative conduct against the reaction to it, using the criterion of reasonableness (boni mores). This is clearly the same criterion that is used for determining wrongfulness, therefore the assumption that provocation excludes wrongfulness and not fault. Another opinion is that provocation may affect the defendant’s mental capacity so as to exclude fault, and also that the plaintiff’s claim for damages may be diminished or even extinguished as a result of the provocative conduct. Explain, with reference to an example, the difference between provocation and private defence The main difference is that conduct resulting from provocation is basically an act of revenge that takes place after the termination of the provocation, whereas an act of defence takes place in defence of a wrongful act that has not yet been terminated. A swears at B, C’s friend. C starts swearing back at A. Can C’s conduct fulfill the requirements for provocation? Discuss briefly Yes. It is irrelevant that the provocative words were not aimed directly at C; he need only prove that those words motivated him to retaliate against them. Assume that the facts are the same as in the previous question, but that in this case B slaps A’s cheek. Can B’s conduct fulfill the requirements for provocation? Discuss briefly As a general rule, provocation is not a complete defence where provocative words preceded a physical attack. Such provocation may nevertheless have the Q&A  by  @yash0505   2   9   effect of mitigating damages. However, in the given facts, B will most probably not succeed in proving provocation. Without any warning, X slaps Y hard on the face. When Y tries to hit back at X, the latter runs away. When Y encounters X an hour later, Y is still so angry and therefore strikes X’s cheek. X feels deeply injured and institutes the actio iniuriarum against Y on the ground of physical assault. Can Y succeed with provocation as a ground of justification? Discuss briefly. Y’s defence of provocation will fail because his counter-attack did not follow immediately on X’s attack. Write a short note on the meaning of the concept compensatio This principle means that where two persons have defamed or insulted each other in such a manner that the one instance of defamation or insult is not out of proportion to the other, the two iniurariae cancel or neutralise each other. Q&A  by  @yash0505   3   0   Study  unit  12  –  Wrongfulness:  grounds  of  justification  –   consent     Briefly explain the meaning of the following concepts (using examples where possible). Also explain the similarities and differences between them, as well as their effect on the possible liability of the defendant: a) consent to injury; b) consent to the risk of injury; c) volenti non fit iniuria; d) voluntary assumption of risk; e) contributory intent; f) contributory negligence a) Consent to injury The injured party consents to specific harm: A, eg, consents to B’s removing his appendix; C consents to D’s using his pen; E consents to his barber, F, cutting his hair. b) Consent to the risk of injury The injured party consents to the risk of harm caused by the defendant’s conduct: A consents to the risk that the operation, performed by B on him, may have a side-effect; a participant in sport consents to the risks involved in such a sport: a rugby player accepts the risk that he may be injured in a tackle; a boxer that a blow may paralyse him; etc. Should the risk contained in the operation or the sports injuries in fact ensue, the injured person will not be able to hold the defendant delictually liable, because he has consented to the risk of such harm. c) Volenti non fit iniuria The principle that a defendant is not liable where the injured person has consented to injury or the risk thereof. This maxim is used as a common concept to describe both forms of consent (consent to injury and consent to risk of injury). d) Voluntary assumption of risk Sometimes used to imply consent to the risk of injury (a ground of justification) and sometimes to refer to contributory intent (a ground excluding fault or culpability). Voluntary assumption of risk in both its forms (consent to the risk of injury, and contributory intent) constitutes a complete defence excluding delictual liability. e) Contributory intent A ground excluding fault or culpability. It constitutes a complete defence excluding delictual liability. A distinction must be made between contributory intent and: f) Contributory negligence This is not a ground of justification, nor is it a complete defence excluding delictual liability. The claim of the plaintiff who is guilty of contributory negligence may be reduced by the court in accordance with the degree of his contributory negligence. List the characteristics of consent as a ground of justification Q&A  by  @yash0505   3   1    Consent to injury is a unilateral act. Therefore the consent need not necessarily be made known to the defendant. Consent is a legal act that restricts the injured person’s rights. To qualify as a legal act, the consent must be apparent, or manifest, in other words it must be brought to light. Consent will not be held to exist if it is not evident. Consent may be given either expressly (eg by words), or tacitly (eg by conduct). Consent must be given before the prejudicial conduct; “approval” given after the act is not consent, but may amount to an undertaking not to institute an action against the defendant (a pactum de non petendo). As a rule, the prejudiced person himself must consent; only in exceptional circumstances may consent to prejudice be given on behalf of someone else. List the requirements for legally valid consent Consent must be given freely or voluntarily. The person giving the consent must be capable of volition – intellectually mature enough to appreciate the implications of his acts and must not be mentally ill or under the influence of drugs that could hamper the functioning of his brain. Does not mean he must have full legal capacity to act. The consenting person must have full knowledge of the extent of the (possible) prejudice – especially where consent to the risk of harm is concerned. The consenting person must realise or appreciate fully what the nature and extent of the harm will be. The person must in fact subjectively consent to the prejudicial act. The consent must be permitted by the legal order; in other words, the consent must not be contra bonos mores. X’s secretary, Y, commits an offence. X gives her a choice: either Y agrees to a hiding, or she will be fired. Y chooses the former option and X gives her the hiding. Y institutes the actio iniuriarum against X. Will X succeed with a defence based on consent? Briefly discuss No, X will not succeed. Consent must be given freely or voluntarily. Should the person be forced in some way to “consent” to the prejudice, valid consent is absent. Also, consent to bodily injury is, in principle, contra bonos mores. Anna would like to have her earlobes pierced so that she can wear fashionable earrings. Andrew, her boyfriend, who is a third-year law student, offers to do this for her. She is only too happy to accept this offer. The procedure goes quite well, but a few days later the wounds have turned septic and medical treatment is necessary. Anna ends the relationship and institutes a delictual action for Q&A  by  @yash0505   3   2   infringement of personality interests and to recover medical costs against Andrew. Andrew wishes to raise consent as a ground of justification. What are the merits of his defence? Substantiate your answer This question deals with consent as a ground of justification, that is, a defence that eliminates the element of wrongfulness. Two types of consent are known, namely consent to injury and consent to the risk of injury, but the applicable principles are largely the same. From the facts it is clear that Anna accepted Andrew’s offer to have her ears pierced; therefore, at face value, it appears that Anna may have consented to the risk of injury. However, to determine whether this is really so, we need to consider the requirements of consent: (a) consent must be given freely and voluntarily; (b) the person giving consent must be capable of volition; (c) the person must have full knowledge of the nature and extent of the prejudice; (d) the person must realise or appreciate fully what the harm entails, in other words, she must understand it; (e) the person must in fact subjectively give the consent; and (f) the consent (not the harm consented to, but the consent itself) must not be contra bonos mores. Consent to bodily injury is usually contra bonos mores. Exceptions are recognised in two instances. Firstly, in the course of medical treatment, a person may consent to bodily injury without the consent being contra bonos mores. Castell v De Greef constitutes authority for this form of consent. Organised sport is the second class of exception where consent to (the risk of) bodily injury is not contra bonos mores. Boshoff v Boshoff is an example of this. Furthermore, if the bodily injury is of a minor nature, consent to such injury may also be allowed. If we apply these principles to the facts, we may argue that the harm caused was bodily injury, that it was not trivial in nature or very minor in nature, because septic wounds can be serious, and that the consent was therefore contra bonos mores and thus invalid. On the basis of this argument, Andrew’s conduct was wrongful and, if all the other delictual requirements are also present, Anna would be successful with her claim. On the other hand, if Anna was unaware of the possible complications of ear piercing, it could be argued that she did not have full knowledge of the nature and extent of the harm or the risk thereof; on this account, it is possible to conclude that she did not consent. Hence Andrew’s conduct is wrongful and Anna’s claim may succeed. Briefly discuss the importance of the decisions in Boshoff v Boshoff and Castell v De Greef for consent as a ground of justification In Boshoff v Boshoff, the plaintiff was struck on the head by his opponent’s racket during a squash game, resulting in an injury to his eye. The court rejected the plaintiff’s claim for damages on the ground that he had consented to the risk of injury and that the consent was not contra bonos mores. In Castell v De Greef, the test in the court a quo for the extent of the doctor’s duty to inform the patient of any material risks connected to the treatment was established as the reasonable doctor test. In an appeal, the reasonable patient Q&A  by  @yash0505   3   3   test was preferred: the doctor’s duty to inform is to be established with reference to the needs and expectations of the particular patient rather than the insights of the medical profession (as with the reasonable doctor test). The Boshoff and the Castell case are both authorities for the exception to the general principle that consent to bodily injury is contra bonos mores. Briefly discuss the pactum de non petendo with reference to an example A pactum de non petendo is a contractual undertaking not to institute an action against the actor, ie, not to hold the actor liable. In these cases, there is no doubt that the actor committed a delict, but the prejudiced person undertakes not to hold the actor liable. Wrongfulness is thus not excluded in such cases; only the resultant action is. Q&A  by  @yash0505   3   4   Study  unit  13  –  Wrongfulness:  grounds  of  justification  –   statutory  authority,  official  capacity,  official  command,  and   power  to  discipline     Discuss the guidelines applied by the court to determine whether legislature intended to authorise an infringement of interests i. If the statute is directory, it is clear that an infringement of private interests is authorised. The injured person is consequently not entitled to compensation unless the statute specifically provides for it. ii. If the statute is not directory but permissive, and if the statute makes no provision for the payment of damages, there is a presumption that the infringement is not authorised. (If provision is made for compensation, it is generally accepted that the injured party is entitled to that compensation only.) iii. The presumption referred to in (ii) falls away if the authority is entrusted to a public body acting in the public interest. iv. If the authorised act is circumscribed and localised (eg, building a dam in a certain place or constructing a railway line between to specific points), there is a presumption that the infringement is authorised. v. If the authorisation is permissive and general, not localised, and does not necessarily entail an infringement of private interests, the only possible inference is that the legislature did not intend that private interests should be infringed. Discuss the considerations to be borne in mind when determining whether the act authorised by the legislator has exceeded the bounds of authority To determine whether the permitted act fell within the boundaries of the authorisation, the following are taken into account: i. It must not have been possible for the defendant to exercise the powers without infringing the interests of the plaintiff. (The onus is on the defendant) ii. The defendant’s conduct must have been reasonable; in other words, it must not have been possible to prevent or limit the damage by other reasonably feasible measures or methods. Briefly discuss official capacity as a ground of justification Certain public officials, such as law enforcement officers and judicial officers, are obliged by law to perform certain acts. Should they cause damage in the process, their conduct will be justified and consequently they will not be liable. Should such an official exceed his authority, he acts unreasonably and therefore wrongfully and may be held liable. Q&A  by  @yash0505   3   5   X, an officer in the defence force, orders Y, a private under his command, to shoot Z and kill him (X believes that Z is on the point of throwing a hand grenade at some innocent bystanders). Y shoots and wounds Z. Afterwards it appears that X made a mistake and that Z merely wanted to blow his nose. Z institutes a claim against Y. Y raises official command as ground of justification. Can Y succeed with this defence? Discuss briefly A soldier must obey all lawful orders and, in doing so, must do no more harm than is necessary to execute the particular order. Where, however, orders are obviously beyond the scope of the authority of the officer issuing them, and are so manifestly and palpably illegal that a reasonable man in the circumstances of the soldier would know them to be manifestly and palpably illegal, he is justified in refusing to obey such orders. If the soldier, however, obeys such a manifestly and palpably illegal order, then he will not succeed in the defence of official command. In the given example, X’s command was, objectively viewed, illegal (wrongful). The fact that X suspected (subjectively) that Z intended to kill the bystanders does not render the command lawful: putative defence is not a defence. Therefore Y acted by executing a wrongful command. The next question is, therefore, whether the command by X was manifestly and palpably illegal. This is not clear from the given facts, but if that were the case, then Y would not succeed with his defence. Briefly discuss the factors that must be taken into consideration when determining whether chastisement was moderate and reasonable According to case law, the following factors must be considered when determining whether the punishment was moderate and reasonable: a) The nature and seriousness of the transgression; b) The degree of punishment or force inflicted; c) The physical and mental condition of the person punished; d) The gender and age of the child; e) The physical disposition of the child; f) The means of correction, and g) The purpose and motive of the person inflicting the punishment. Can a teacher rely on power to discipline after having meted out corporal punishment to a pupil? No. The South African Schools Act prohibits corporal punishment in all schools. This form of punishment may therefore not be meted out by school principals, teachers, and persons in charge of school hostels. Q&A  by  @yash0505   3   6   Study  unit  14  –  Wrongfulness:  abuse  of  rights;  nuisance     What notion underlies the so-called doctrine of abuse of rights? Explain briefly The notion that the exercise of a right or a power may take place in a manner or in circumstances which render such exercise wrongful; in other words, that the actor may exercise his rights in a legally impermissible manner and thus “abuse” them. Is the following statement correct: “A property owner can do exactly as he pleases on his property”? Briefly discuss with reference to case law No. In Gien v Gien it was expressed that the absolute power of an owner is limited by the restrictions imposed thereupon by the law. These restrictions can either flow from the norms of the law or they may consist of restrictions imposed by the rights of other persons. What role does malice (animus vicino nocendi) play in the doctrine of the abuse of rights? Discuss, referring to common law and case law In considering the reasonableness of the wrongdoer’s conduct, his mental disposition plays an important role (Gien and Regal cases). The presence of malice on his part may be a strong indication of the unreasonableness of his conduct. Although the reasonable utilisation of a person’s property cannot be termed unreasonable merely because of an intention to prejudice another, in many instances it is extremely difficult to determine to what extent a wrongdoer promoted his own reasonable interests. In such a case, the wrongdoer’s own, subjective view of the reasonableness of his conduct may be an important aid: if he did not consider his conduct to be a reasonable way of advancing his interests (and this will necessarily be the case where his exclusive aim is to injure the prejudiced person), he can hardly complain if his conduct is considered unreasonable. For this reason, conduct with the exclusive aim of harming a neighbour (animus vicino nocendi) (eg the conduct of a person who builds a chimney with the exclusive purpose of obstructing his/her neighbour’s view) is, as a general rule, wrongful. In other words, an improper motive renders an act, which would have been lawful but for such motive, wrongful if it prejudices a neighbour without benefiting the actor in any way (Gien case). Where the wrongdoer harms his neighbour in advancing his own reasonable interests, he does not act wrongfully, even if he has the improper motive to harm his neighbour in the process. Improper motive in itself is therefore insufficient to convert lawful conduct into a wrongful act. However, where the wrongdoer acts unreasonably (eg where the benefit that he derives from his conduct is exceptionally slight, Q&A  by  @yash0505   3   7   but, on the other hand, the nature of his conduct is very far-reaching and the harm caused to his neighbour relatively serious), he exceeds the bounds of reasonableness and acts wrongfully, despite the fact that he had no intention to harm his neighbour. Any use to which an actor puts his property, in which he fails to advance his reasonable interests, is thus wrongful, whatever his motive may be. Briefly give the main principles (or primary guidelines) that can be used to determine whether there was an abuse of rights in a particular case a) As a general rule, the owner of immovable property may use his property as he sees fit, as long as he acts within the bounds placed by the law on his powers of ownership. b) Given that an owner is not completely free to utilise his property as he wishes, his interests in exercising his right of ownership must be weighed against the interests of his neighbour. c) The basic question is still one of wrongfulness; it concerns the reasonable or unreasonable utilisation by the defendant of his property. d) Where the benefit which the actor derives from his conduct is exceptionally slight but, by contrast, the nature of his conduct is very drastic and the harm caused to his neighbour is relatively serious, he exceeds the bounds of reasonableness and acts wrongfully. Such an unreasonable act is wrongful despite the fact that the actor did not intend to harm his neighbour; any use of property which fails to advance reasonable interests is thus wrongful, whatever the motive of the actor may be. e) Where the actor harms his neighbour in the process of advancing his own reasonable interests, he does not act wrongfully even if he intends (or has the improper motive of) harming his neighbour in the process. Improper motive is in itself insufficient to convert lawful conduct into a wrongful act. X and Y are neighbours. Because X does not like Y, X builds a large shed on his property in order to spoil Y’s beautiful view. It appears that X did indeed need a shed, but that he could easily have built it elsewhere. Did X act wrongfully? Briefly discuss with reference to case law To establish whether X’s conduct was wrongful towards Y, it must be determined whether X exceeded his capacity as owner (whether he “abused” his right). This question must be answered in terms of what is reasonable and fair. This question must be answered in terms of what is reasonable and fair. The following guidelines may play a role in considering the reasonableness of X’s conduct: Q&A  by  @yash0505   3   8    a) X acts lawfully if it is found that he harmed Y in the process of furthering his own reasonable interests, even if he had the motive of harming his neighbour, Y, in the process. Therefore, improper motive in itself is insufficient to convert lawful conduct into a wrongful act. b) If, on the other hand, it is found that X acted unreasonably (eg because the benefit that X would derive from building the shed on the particular spot would be exceptionally slight, while the nature of his conduct and the harm caused to Y would be relatively serious), he exceeds the bounds of reasonableness and acts wrongfully (even if he had no motive to harm Y). Any use to which a owner puts his property, in which he fails to advance his reasonable interests, is wrongful, whatever his motive may be. c) If it is not possible to determine whether X’s conduct was reasonable or unreasonable, X’s own subjective view (in so far as it can be ascertained) of the reasonableness of his conduct may be an important aid: if he himself does not consider his conduct to be a reasonable way of advancing his interests (and this will necessarily be the case where his exclusive aim is to injure Y), he can hardly complain if his conduct is considered unreasonable. X’s conduct was probably lawful: the prejudice suffered by Y as a result of the building of the shed was probably, proportionally, not unreasonably greater than the benefit derived by X from building the shed on that particular spot. In addition, it was not X’s exclusive aim to harm Y. Consequently, X did indeed further a reasonable interest of his own and thus acted lawfully. Give a few examples of nuisance that have occurred in practice Examples of nuisance include repulsive odours; smoke and gases drifting over the plaintiff’s property from the defendant’s land; water seeping onto the plaintiff’s property; leaves from the defendant’s trees falling onto the plaintiff’s premises; slate being washed down-river onto the plaintiff’s land; a disturbing noise; a blinding light being directed onto a neighbouring property; de-stabilising a common wall by piling soil against it; an excessive number of golf balls landing on a neighbouring property; overhanging branches and foliage; an electrified fence on top of a communal garden wall; blue wildebeest transmitting disease to cattle on neighbouring ground; and occupants of structures on neighbouring land allegedly causing a nuisance. Q&A  by  @yash0505   3   9   Study  unit  15  –  Fault:  general;  accountability;  intent     Name the two forms of fault Intention (dolus) Negligence (culpa in the narrow sense) X, Y’s archenemy, corners Y unexpectedly with the intention of shooting him with his shotgun. However, Y is much quicker than X and draws his own firearm. Before wounding X in the chest, Y relishes the opportunity that X has afforded him to take a shot at him (X). Can we assert that Y’s conduct is accompanied by fault (intent) in this case? A person can be legally blameworthy – that is, to be at fault – only for wrongful conduct. As Y’s conduct can be regarded as an act of self-defence (a ground of justification) he was protecting his own life against an immediate wrongful attack, and his conduct was lawful. Y’s reprehensible state of mind is therefore irrelevant, because wrongfulness is absent. Complete the following table by indicating which form of fault can/should be present when instituting each action: Actions Intent Negligence Actio legis Aquiliae Need not be present, but Must be present for if it is then it will suffice liability unless intent is for liability* present Actio iniuriarum Generally required for Generally insufficient for liability** liability** Action for pain and Need not be present, but Must be present for suffering if it is then it will suffice liability unless intent is for liability present * The assumption is that it is easier to prove negligence (objective test) than it is to prove intent (subjective test). Therefore, when instituting a claim based on the actio legis Aquiliae, a person will usually not try to prove the more difficult form of fault, namely intent, but rather negligence.   ** We say “generally” because there are exceptions where the actio iniuriarum can be instituted without having to prove intent. See, for instance, the liability of the press for defamation – this will be studied later. When is a person accountable? A person is accountable (culpae capax) if he has the necessary mental ability to distinguish between right and wrong and if he can also act in accordance with such appreciation. Q&A  by  @yash0505   4   0   Discuss the possible effect of the following factors on accountability: (a) youth; (b) mental disease or illness; (c) intoxication; and (d) provocation a) Youth Child who has not completed 7th year is always lacking capacity. Child over seven but under 14 – rebuttable presumption lacking capacity. b) Mental disease or illness Where, because of a mental disease or illness, a person cannot at a given moment distinguish between right and wrong, or where he is able to make such a distinction but cannot act in accordance with his appreciation of the distinction, he is culpae incapax. c) Intoxication Intoxicated persons may also be culpae incapax. However, the mere consumption of liquor or use of drugs may in a given situation be a negligent act for which the defendant may be held responsible. d) Provocation Where a person under provocation loses his temper and becomes passionately angry, he may be said to lack accountability and will thus not be blamed for his (“intentional”) conduct. However, as already stated, provocation in our law is often regarded as a ground of justification. Define intent with reference to its two elements An accountable person acts intentionally if his will is directed at a result, which he causes while conscious of the wrongfulness of his conduct. The two elements are: direction of the will, and consciousness (knowledge) of wrongfulness. Name and briefly describe the three forms of intent with reference to examples 1. Direct intent (dolus directus) This form of intent is present where the wrongdoer actually desires a particular consequence of his conduct. Eg X decides to shoot and kill Y in order to take Y’s money. The execution of this plan is accompanied by direct intent because it is X’s desire or plan that Y should die. 2. Indirect intent (dolus indirectus) This form of intent is present where a wrongdoer directly intends one consequence of his conduct but at the same time has knowledge that another consequence will unavoidably or inevitably occur. The causing of the second consequence is accompanied by indirect intent. Eg X desires to shoot and kill Y who is standing behind a closed window. The bullet aimed at Y first shatters a windowpane and then fatally wounds Y. In respect of Y’s death, it is clear that X had direct intent; but the same Q&A  by  @yash0505   4   1    cannot be said about the destruction of the windowpane – X definitely did not desire to break the window. Nevertheless, X realised that it was an inevitable or necessary consequence of his shooting Y and therefore in relation to the breaking of the window, indirect intent is present. 3. Dolus eventualis This form of intent is present where the wrongdoer, while not desiring a particular result, foresees the possibility that he may cause the result and reconciles himself to this fact; ie, he nevertheless performs the act which brings about the consequence in question. The wrongdoer must have actually subjectively foreseen the possibility. Eg X wants to kill his enemy Y. Z is standing next to to Y when X takes aim. X actually foresees the possibility that his shot may miss Y and hits Z. The conclusion is that X shot Z intentionally, even though he did not desire this consequence or foresee it as a necessary consequence of his conduct. Note, however, that although a distinction is made between the different forms of intent, it is irrelevant which one is present in a particular case. As a rule, no specific consequences are attached to a given form of intent. The fact that the law distinguishes between different forms of intent is important in understanding how wide the concept of intention is in the law. A breaks the windscreen of B’s car in order to steal his car radio. Because it was not A’s aim to break the windscreen (his aim was to steal the radio), he did not have intent in respect of breaking the windscreen. Is this statement correct? Discuss briefly This statement is incorrect. B had indirect intent. In acting, he intended to steal the radio but at the same time had knowledge that another consequence, the breaking of the window, would unavoidably or inevitably occur as a result of his conduct. He therefore had indirect intent with regard to the breaking of the window. A plants a limpet mine in a busy shop and disappears. An hour later the limpet mine explodes and three people are injured. Because A did not know who his victims were (or how many there would be), he did not have intent in respect of their injuries. Is this statement correct? Discuss briefly This statement is incorrect. Any form of intent which has a specific person or object in mind is referred to as definite intent (dolus determinatus). Any form of intent which has no specific person or object in mind is referred to as indefinite intent (dolus indeterminatus). A has therefore has indefinite intent, if it can be shown that he has either direct intent, indirect intent, or dolus eventualis, in the situation. What does the concept “consciousness of wrongfulness” mean? Q&A  by  @yash0505   4   2   Knowledge of wrongfulness as a requirement of intent indicates that it is insufficient for the wrongdoer to merely direct his will at causing a particular result. He must also know (realise) or at least foresee the possibility that his conduct is wrongful (ie contrary to law or constituting an infringement of another’s rights). Discuss mistake as a ground for exclusion of fault A mistake with regard to any matter that has a bearing on the wrongfulness of the actor’s conduct, will exclude intent on his part because it will exclude his knowledge of wrongfulness, which is a requirement of intent. It is submitted that, in accordance with new developments in the field of criminal law, it must be accepted as a general rule that for the purposes of delictual liability any mistake with regard to either a relevant fact or to the law excludes intent. Distinguish between intent and motive In general, motive indicates the reason for someone’s conduct and must not be confused with intent. Intent is a technical legal term that denotes willed conduct which the wrongdoer knows is wrongful. Motive, on the other hand, refers to the reason why a person acts in a particular way. A person may thus, despite the fact that in his opinion he has a good motive, still act with intent (eg where he kil