Law at UNISA

# 2016 University of South Africa
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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.

(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.

(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
– 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
(2) See paragraph 2. Note that the definition of an act (question 2) must include all these
characteristics.
(4) See paragraph 2. Although the attack by the dog is not an act, X’s incitement of the
dog is an act.
(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.
(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.
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
– 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
(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
(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
– 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
(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
(2) See paragraph 3.1.
(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?
(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).
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
– 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
& 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
(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
(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.
(10) See paragraph 4.4
(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
– 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
(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.
(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
– 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
(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
(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.
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
– 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
(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
(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
– 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
(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
(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.
(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 relevant in our current
45
constitutional dispensation. If we apply those principles to our question, 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 and Maimela cases. 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. This
is the theoretically correct position. However, some cases have allowed a defence of
necessity to succeed in circumstances where the defendants only subjectively
believed that they were in a state of necessity. (Can you cite an example of such a
case?)
(8) See paragraph 7.3.2 (c).
(9) See paragraphs 7.2 and 7.3. 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/her actions against another person’s actual or
imminently threatening wrongful act in order to protect his/her own legitimate
interests or such interests of someone else. Private defence will be present if the
following requirements are met: (i) the defence must be directed against the
aggressor; (ii) the defence must be necessary to protect the threatened right and this
implies that there must be no reasonable alternative to the act of defence; and (iii) the
act of defence must not be more harmful than is necessary to ward off the attack.
Requirement (iii) 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/she is able to
protect his/her interests or those of someone else only by reasonably violating the
interests of an innocent third person. 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 third person, necessity
may be applicable. This is clearly apparent from the judgement in Maimela v
Makhado Municipality 2011 (6) SA 533 (SCA). 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 against 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 1972 (3) SA 1
(A)).
CONCLUSION In this study unit you studied necessity as a ground of justification. Did you achieve all
the learning outcomes?
46
11 unit
study
Provocation
PREFACE We are still dealing with grounds of justification, which are based on circumstances
indicating that an ostensibly wrongful act was actually lawful from the outset. Two grounds of
justification, defence and necessity, have already been dealt with in the previous two study units. In this
study unit, we look at provocation.
LEARNING OUTCOMES
– define provocation
– give your opinion on the correct legal basis for the defence of provocation
– distinguish between provocation and private defence
– discuss the requirements for provocation in the case of physical assault, defamation and
insult
– explain the principle of compensatio
STUDY
Prescribed book
& chapter 3, paragraphs 7.4.1–7.4.3
& footnotes 498, 502, 506, 510 and 521
47
COMMENTARY
First read paragraph 7.1 (the introduction to grounds of justification) before you study
paragraph 7.4.
You will note that there is no consensus on the view that provocation is a ground of
justification. Some people are of the opinion that provocation is, instead, a ground for
excluding fault (par 7.4.1).
Provocation must be carefully distinguished from private defence (par 7.4.1). Your
prescribed textbook distinguishes between provocation in the case of physical assault
(par 7.4.2) and provocation in the case of defamation and insult (par 7.4.3).
SELF-ASSESSMENT
(1) Explain the meaning of the concept of provocation with reference to examples.
(2) Is provocation a ground of justification or a ground of exclusion for fault? Briefly
discuss with reference to case law.
(3) Explain, with reference to an example, the difference between provocation and private
defence.
(4) A swears at B, C’s friend. C starts swearing back at A. Can C’s conduct fulfil the
requirements for provocation? Discuss briefly.
(5) 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 fulfil the requirements for provocation? Discuss
briefly.
(6) 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 angry and therefore
strikes X’s cheek. X feels deeply injured and institutes the actio iniuriarum against Y
on the ground of physical assault and insult. Can Y succeed with provocation as a
ground of justification? Discuss briefly.
(7) Write a short note on the meaning of the concept compensatio.
FEEDBACK
(1) See paragraph 7.4.1 and footnote 498.
(2) See paragraph 7.4.1. The defence of provocation is assessed objectively by 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 supporting the assumption that provocation
excludes wrongfulness and not fault (see fn 521). Authority from case law for this
point of view is Bester v Calitz 1982 (3) SA 864 (O). 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. Authority from case law for this point of view is
Winterbach v Masters 1989 (1) SA 922 (E). (See fn 502.)
48
(3) See paragraph 7.4.1 and footnote 506. 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 attack
that has not yet been terminated. (R v Van Vuuren 1961 (3) SA 305 (E), discussed in
fn 506, is not one of your prescribed cases and therefore need not be studied as such.
The facts of the case, however, well illustrate the distinction between private defence
and provocation.)
(4) See paragraph 7.4.1 and footnote 521. (Note that 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.)
(5) See paragraph 7.4.2 and footnote 521. As a general rule, provocation is not a
complete defence where provocative words preceded a physical attack. Such
provocation may nevertheless have the effect of mitigating the damages. (This should,
however, be a flexible principle in terms of which the basic principle is still the legal
convictions of the community, and there may be cases where the verbal incitement is
of such a nature that the resultant physical assault might be considered reasonable.)
However, in the given facts, B will most probably not succeed in proving provocation.
(6) See paragraph 7.4.1. Y’s defence of provocation will fail because his counter-attack
did not follow immediately on X’s attack and also because his counter-attack was out
of proportion to X’s attack.
CONCLUSION In this study unit you studied provocation as a ground of justification. Did you achieve
all the learning outcomes?
49
12 unit
study
Consent
PREFACE We are still dealing with the element of delict known as wrongfulness, and in particular
with grounds that exclude wrongfulness, that is, the grounds of justification. The grounds of justification
of defence, necessity and provocation have already been studied. Consent is the next topic up for
discussion.
LEARNING OUTCOMES
& distinguish briefly, with reference to examples, between the following concepts:
– consent to injury
– consent to the risk of injury
– volenti non fit iniuria
– voluntary assumption of risk
– contributory negligence and contributory intent
& name the characteristics and requirements for valid consent and apply them to a given set of facts
& briefly discuss a pactum de non petendo
STUDY
Prescribed book
& chapter 3, paragraph 7.5.1–7.5.3
& footnotes 540, 558, 568, 569, 575 and 578
50
COMMENTARY
In this study unit we will examine consent as a ground of justification. Make sure that you
understand the introductory paragraph (7.5.1) very well before you study the rest of the
study unit. Most of the problems in understanding this subject are caused by confusing the
terminology used in respect of consent and related concepts. Therefore, make sure that you
have a clear understanding of the connection between concepts such as ‘‘consent’’, ‘‘consent
to the risk of injury’’, ‘‘volenti’’, ‘‘volenti non fit iniuria’’, ‘‘voluntary assumption of risk’’,
‘‘contributory intent’’ and ‘‘contributory negligence’’ (par 7.5.1).
SELF-ASSESSMENT
(See study unit 1 par 1.2.2.2 above on the aim of the following questions.)
(1) 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
(2) List the characteristics of consent as a ground of justification.

(3) List the requirements for legally valid consent.
(4) 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 with reference to case law.
(5) 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 his 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 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.
(6) Briefly discuss the importance of the decisions of Boshoff v Boshoff 1987 (2) SA 694
(O); Roux v Hattingh 2012 (6) SA 428 (SCA) and Castell v De Greeff 1994 (4) SA 408
(C) for consent as a ground of justification.
(7) Briefly discuss the pactum de non petendo with reference to an example.
51
FEEDBACK
(1) See paragraph 7.5.1 and footnote 540. Think of your prescribed court cases with
reference to the different concepts.
(2) See paragraph 7.5.2 (a)–(e).
(3) See paragraph 7.5.3 (a)–(f).
(4) See paragraph 7.5.3 (a). Also remember that consent to bodily injury is, in principle,
contra bonos mores.
(5) See paragraph 7.5. 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, that is, not under pressure or compulsion; (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, he or she must understand it; (e) the person must, in fact,
subjectively give the consent; and (f) the consent must be permitted by the legal
order, that is, the consent (not the harm consented to, but the consent itself) must not
be contra bonos mores. Consent to bodily injury (or the risk thereof) 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 (or the risk thereof) without
the consent being contra bonos mores. Castell v De Greef 1994 (4) SA 408 (C)
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.
Roux v Hattingh 2012 (6) SA 428 (SCA) 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 of a trivial or very minor 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. [When
answering a question of this nature, your conclusion at the end of the answer is not
the most important element. Displaying a good knowledge and understanding of the
applicable principles is, however, crucial.]
(6) See footnotes 575 and 569.
CONCLUSION In this study unit you studied consent as a ground of justification. Did you achieve all
52
13 unit
study
Statutory authority, official capacity,
execution of an official command;
power to discipline
PREFACE As indicated by the heading, we are still dealing with the grounds of justification. In the
previous study unit, we discussed consent. In this study unit, the last four grounds of justification are
discussed. Remember, however, that the grounds of justification we cover do not constitute a numerus
clausus (fixed number) (par 7.1).
LEARNING OUTCOMES
– explain when a statute authorises an infringement of interests

– explain when an act falls within the boundaries of statutory authorisation
– explain when official capacity will constitute a ground of justification
– explain when execution of a wrongful command can constitute a defence
– indicate when punishment will be lawful and which factors must be taken into consideration
with reference to case law and section 10 of the South African Schools Act 84 of 1996
STUDY
Prescribed book
& chapter 3, paragraphs 7.6, 7.7, 7.8 and 7.9
& footnote 620
53
READ
Prescribed book
& chapter 3, paragraph 7.1
COMMENTARY
This is the last study unit on the grounds of justification. The following four grounds of
justification are discussed: statutory authority (par 7.6), official capacity (par 7.7), official
command (par 7.8) and power to discipline (par 7.9).
SELF-ASSESSMENT
(1) Discuss the guidelines applied by the court to determine whether the legislature
intended to authorise an infringement of interests.
(2) Discuss the considerations to be borne in mind when determining whether the act
authorised by the legislator has exceeded the bounds of authority.
(3) Briefly discuss official capacity as a ground of justification.
(4) 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.
(5) Briefly discuss the factors that must be taken into consideration when determining
whether chastisement was moderate and reasonable.
(6) Can a teacher rely on power to discipline after having meted out corporal punishment
to a pupil?
FEEDBACK
(1) See paragraph 7.6 (a).
(2) See paragraph 7.6 (b).
(3) See paragraph 7.7 and footnote 620.
(4) 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/she is justified in refusing to
obey such orders. If the soldier, however, obeys such a manifestly and palpably
illegal order, then he/she will not succeed in the defence of official command.
54
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, therefore, is 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.
CONCLUSION In this study unit you studied statutory authority, official capacity, official command and
power to discipline as grounds of justification. Did you achieve all the learning outcomes?
55
14 unit
study
Abuse of right; nuisance
PREFACE In the previous study unit we studied the last few grounds of justification. This study
unit is the last of eleven study units on wrongfulness as an element of delict.
LEARNING OUTCOMES
After studying this study unit you should be able to
– explain the underlying notion of the doctrine of abuse of rights

– briefly name the main principles (or primary guidelines) that can be used to determine
whether there was an abuse of rights in a particular case
– apply the above-mentioned main principles to a given set of facts
– discuss the role of an improper motive in the doctrine of the abuse of rights
– describe the delict of nuisance with reference to practical examples
STUDY
Prescribed book
& chapter 3, paragraphs 8.1 and 8.2
COMMENTARY
Two related subjects, abuse of rights (misbruik van reg) and nuisance (oorlas) are dealt with
in this study unit. The applicable area of law is sometimes called law of neighbours because
the judgments in this connection often deal with problems between neighbouring property
owners. However, the doctrine of abuse of rights is not limited to owners of neighbouring
56
property, but has general validity in the law of delict. The courts sometimes characterise
abuse of rights as ‘‘nuisance’’. In English law, nuisance is an independent tort (ie delict). In
our law, nuisance is not a separate delict – general delictual principles are applied (see
fn 667).
SELF-ASSESSMENT
(1) What notion underlies the so-called doctrine of abuse of rights? Explain briefly.
(2) Is the following statement correct: ‘‘A property owner can do exactly as he pleases on
his property’’? Briefly discuss with reference to case law.
(3) What role does malice (animus vicino nocendi or onbehoorlike motief) play in the
doctrine of the abuse of rights? Discuss, referring to common law and case law.
(4) 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.
(5) 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.
(6) Give a few examples of nuisance that have already occurred in practice.
FEEDBACK
(3) See paragraph 8.1. In considering the reasonableness of the wrongdoer’s conduct,
his/her mental disposition plays an important role (Gien and Regal cases). The
presence of malice on his/her part may be a strong indication of the
unreasonableness of his/her 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/her own reasonable interests. In such a case, the
wrongdoer’s own, subjective view of the reasonableness of his/her conduct may be an
important aid: if he/she himself/herself did not consider his/her conduct to be a
reasonable way of advancing his/her interests (and this will necessarily be the case
where his/her exclusive aim is to injure the prejudiced person), he/she can hardly
complain if his/her 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/her neighbour in the process of
advancing his/her own reasonable interests, he/she does not act wrongfully, even if
he/she has the improper motive to harm his/her neighbour in the process. Improper
motive in itself is therefore insufficient to convert lawful conduct into a wrongful act.
57
However, where the wrongdoer acts unreasonably (eg where the benefit that he/she
derives from his/her conduct is exceptionally slight, but, on the other hand, the nature
of his/her conduct is very far-reaching and the harm caused to his/her neighbour
relatively serious), he/she exceeds the bounds of reasonableness and acts wrongfully,
despite the fact that he/she had no intention to harm his/her neighbour. Any use to
which an actor puts his/her property, in which he/she fails to advance his/her
reasonable interests, is thus wrongful, whatever his/her motive may be.
(4) See paragraph 8.1 (a)–(e).
(5) 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. The following
guidelines may play a role in considering the reasonableness of X’s conduct:
(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 wrongdoer
puts his/her property, in which he/she fails to advance his/her reasonable
interests, is wrongful, whatever his/her 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.
Before you read the answer below, apply these principles to the given set of facts and
try to decide for yourself whether X’s conduct was wrongful.
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.
CONCLUSION In this study unit you studied abuse of rights and nuisance. Did you achieve all the
learning outcomes?
58
15 unit
study
Fault: general; accountability; intent
PREFACE We have now dealt with the first two of the five elements of delict, namely conduct and
wrongfulness. We will now turn our attention to the element of fault. As a rule, there is no delictual
liability where the defendant has acted without fault (a few instances of liability without fault, which are
the exception to the rule, will be dealt with later on).
Conduct
FIGURE 15.1
59
LEARNING OUTCOMES
– name the two forms of fault

– define accountability and explain the influence of youth, mental disease or illness,
intoxication and provocation on accountability
– explain the relationship (nexus) between accountability and fault
– describe all three forms of intent and be able to apply them to practical examples
– briefly distinguish between intent and motive
– briefly explain the effect of mistake concerning the causal chain of events
STUDY
Prescribed book
& chapter 4, paragraphs 1, 2 and 3.1–3.3
& footnotes 57 and 58
COMMENTARY
You have already seen that in the case of wrongfulness, the important question is whether a
particular act was objectively unreasonable in the eyes of the law. Where a wrongful act has
been established, fault is the next factor to be considered. Now the focus shifts more to the
participation or role of the defendant: can he/she be legally blamed for his/her wrongful
conduct? The law blames him/her if he/she directed his/her will at the damage he/she
caused, conscious of the wrongfulness of his/her conduct (ie if he/she acted intentionally),
or where he/she caused the damage by negligent conduct. Therefore, there are two forms of
fault, namely intent and negligence.
No person can be said to have fault, that is to be legally blameworthy, unless he/she has the
mental ability to distinguish between right and wrong and can also act in accordance with
such appreciation. Such a person is said to be accountable (culpae capax). Accountability is
therefore a prerequisite for fault in either of its two forms.
This study unit contains a short, general introduction to fault as an element of delict (par 1),
a discussion of accountability (par 2), as well as a discussion of intent as a form of fault
(par 3). (N
Negligence is dealt with in study units 16 to 18.)
With reference to mistake regarding the causal chain of events (par 3.3), you should note an
appeal court decision, S v Goosen 1989 (4) SA 1013 (A) (see fns 57 and 58). Van Heerden
JA ruled that where the causal chain of events differs fundamentally from that conceived by
the defendant, the defendant did not act intentionally. This approach will probably also be
followed in the law of delict.
60
SELF-ASSESSMENT
(1) Name the two forms of fault.

(2) 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?
(3) Complete the following table by indicating which form of fault can/should be present
when instituting each action:
Actions Intent Negligence
Actio legis Aquiliae
Actio iniuriarum
Action for pain and

suffering
(4) When is a person accountable?

(5) Discuss the possible effect of the following factors on accountability: (a) youth; (b)
mental disease or illness; (c) intoxication; and (d) provocation.
(6) Define intent with reference to its two elements.
(7) Name and briefly describe the three forms of intent with reference to examples.
(8) Ajay breaks the windscreen of Chetan’s car in order to steal his car radio. Because it
was not Ajay’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.
(9) 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 of them there would be), he did not have intent in respect of their
injuries. Is this statement correct? Discuss briefly.
(10) What does the concept ‘‘consciousness of wrongfulness’’ mean?
(11) Discuss mistake as a ground for exclusion of fault.
(12) Distinguish between intent and motive.
(13) Does a person act intentionally if the result occurred in a manner that differed from
what he/she had envisaged?
FEEDBACK
(2) See paragraph 1. 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
61
(ground of justification) he was protecting his own life against an immediate wrongful
attack his conduct was lawful. Y’s reprehensible state of mind is therefore irrelevant,
because wrongfulness is absent.
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 (ch 10, par
3.2.2.4.3) – this will be studied later.
(4) See paragraphs 1 and 2.

(7) See paragraph 3.1. (Note, however, that although a distinction is made between the
different forms of intent, it is irrelevant for the purpose of delictual liability which form
of intent 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.)
(8) See paragraph 3.1(b).
(9) See paragraph 3.1 and note, especially, the distinction between dolus determinatus
and dolus indeterminatus in answering the question.
(10) See paragraph 3.2. (Answer in two sentences.)
(11) See paragraph 3.2. (Answer in three sentences.)
(12) See paragraph 3.3. (Answer in four sentences.)
(13) See paragraph 3.3. (Answer in three sentences.)
CONCLUSION In this study unit you studied accountability, as well as intent (as a form of fault). Did
you achieve all the learning outcomes?
62
16 unit
study
Negligence
PREFACE This is the second study unit on fault. In the previous study unit we discussed
accountability and one of the two forms of fault, namely intent. In the following three study units we will
discuss the second form of fault, namely negligence. In the vast majority of instances of delictual
liability, negligence (and not intent) is the form of fault present – just think of all the motorcar accidents
normally caused through negligence.
Conduct
FIGURE 16.1
63
LEARNING OUTCOMES
– state the test for negligence with reference to the formulation in Kruger v Coetzee 1966 (2) SA
428 (A) and apply it to a set of facts
– form a reasoned opinion on whether negligence and intent can overlap
– explain whether it is necessary to differentiate between ordinary and gross negligence
– differentiate between negligence and omission
– briefly discuss the general characteristics of the reasonable person (diligens paterfamilias) as
applied in case law
– discuss in detail, with reference to case law, the reasonable person test as applied to children,
and then apply it to a set of facts
– discuss in detail, with reference to case law, the negligence test as applied to experts, and
then apply it to a set of facts
STUDY
Prescribed book
& chapter 4, paragraphs 4.1–4.5.3
COMMENTARY
This is the first of three study units dealing with negligence. The following aspects are
discussed in this study unit: the definition and nature of negligence (par 4.1); the question
of whether negligence and intent may overlap (par 4.2); ordinary and gross negligence (par
4.3); the difference between negligence and an omission (par 4.4); and the characteristics of
a reasonable person (which is the basis of the test for negligence) (par 4.5). With regard to
the latter, the determination of negligence on the part of children (par 4.5.2) and experts (par
4.5.3) is also examined.
Note that several important cases are mentioned and discussed in the textbook, in the main
text as well as the footnotes that you should study. As always, you should regard these case
names and discussions as part of your prescribed material.
64
SELF-ASSESSMENT
(1) State the test for negligence with reference to its formulation in Kruger v Coetzee
1966 (2) SA 428 (A) 430.
(2) Can negligence and intent overlap? Discuss briefly.
(3) Is it necessary to differentiate between ordinary and gross negligence? Discuss
briefly.
(4) Differentiate between negligence and omission.
(5) Write short notes on the general characteristics of the reasonable person (diligens
paterfamilias).
(6) ‘‘Since 1965, South African case law has followed a new approach in respect of the
negligence of child wrongdoers.’’ Discuss.
(7) Danny, a thirteen-year-old boy, kicks a rugby ball in a suburban garden. The ball
breaks the window of a neighbouring house and smashes a priceless vase from the
Ming dynasty. Was Danny negligent? Discuss with reference to case law.
(8) How is the negligence of experts determined? Discuss briefly.
(9) Discuss the concept imperitia culpae adnumeratur, using an example.
FEEDBACK
(2) See paragraph 4.2. Note that there are two points of view on this matter – that of Van
der Merwe and Olivier and that of your textbook writers. You must give a reason for
which view you prefer.
(5) See paragraph 4.5.1. Refer in your answer to the relevant dictum (passage) in Weber
v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A).
(6) See paragraphs 2 and 4.5.2.
(7) See paragraphs 2 and 4.5.2. Before Jones NO v Santam Bpk 1965 (2) SA 542 (A), the
negligence of a child used to be determined with reference to a reasonable child
standard. In the Jones case, the court held that the test for negligence remains
objective, and the reasonable person test (also known as the diligens paterfamilias
test) must also be employed in the case of a child wrongdoer. The youthfulness of the
child wrongdoer is not specifically considered here. However, during the inquiry into
the accountability of the child, his or her youthfulness is taken into account. The
Jones case was criticised on two counts: firstly, many are of the opinion that a
reasonable adult standard for a child wrongdoer is unfair; secondly, the court put the
cart before the horse by testing for negligence first and, thereafter, for accountability.
In Roxa v Mtshayi 1975 (3) SA 761 (A), the court followed the correct order. In Weber
v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A), the Jones case was
confirmed in essence and the court said that if the principles were applied with
insight, the criticism would fall away. In Eskom Holdings Ltd v Hendricks 2005 (5)
SA 503 (SCA), the court reiterated that in each case it must be determined whether
65
the child has attained the emotional and intellectual maturity to appreciate the danger
to be avoided and to act accordingly. In respect of accountability, the Child Justice
Act 75 of 2008 provides that a child of nine or younger is irrebuttably presumed to be
culpae incapax/not accountable, whereas a child over nine, but under fourteen, is
rebuttably presumed to be culpae incapax/not accountable. Whether Danny in our
question would be held to have been negligent would depend on all the
circumstances of the case. If he was intelligent and mature enough to be accountable/
culpae capax, he was probably negligent, because, taken at face value, his conduct
deviated from that of the reasonable person in the circumstances.
(9) See paragraph 4.5.3 and footnote 134.
CONCLUSION In this study unit you studied the test for negligence with particular reference to
children and experts. Did you achieve all the learning outcomes?
66
17 unit
study
Foreseeability and preventability
of damage
PREFACE The previous study unit served as an introduction to negligence as a form of fault. In
this study unit the reasonable person test will be discussed in more detail.
LEARNING OUTCOMES
– name the two legs on which the test for negligence stands
– describe the nature and applicability of the abstract and concrete approaches to foreseeability
– name the four considerations that play a role in the preventability aspect of the test for
negligence and apply them to factual scenarios
STUDY
Prescribed book
COMMENTARY
In the previous study unit you will have noted that the test for negligence stands on two
legs: the foreseeability of damage and the preventability of damage. Remember that both
these legs must be present before there can be negligence. To establish negligence, the
reasonable person must not only have foreseen damage, but must also have taken steps to
prevent the damage from occurring, and the wrongdoer must have omitted to take either or
both of these steps. The nature and application of both these legs are examined in this study
67
unit. Before you go any further, make certain that you know the definition of negligence well
(especially as formulated in Kruger v Coetzee – see par 4.1, dealt with in the previous study
unit).
Footnotes
The judgments discussed in the prescribed footnotes will help you to understand the nature
of the test for negligence. The names and discussion of these cases in your textbook form
part of your prescribed material.
SELF-ASSESSMENT
(See study unit 1, par 1.2.2.2 above on the aim of the following questions.)
(1) Define negligence.

(2) On which two legs does the test for negligence stand?
(3) Describe the two divergent views on the nature of the foreseeability test for negligence
and briefly indicate your preference.
(4) What general/broad guideline can be used for the application of the foreseeability test
for negligence? Discuss briefly.
(5) Name the four considerations that play a role in the preventability aspect of the test
for negligence, according to Van der Walt and Midgley. Give the name of an
applicable judgment in the case of each of the considerations.
(6) Discuss Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson 1973 (4) SA 523
(RA) in connection with the preventability aspect of the negligence test.
(7) Compare Gordon v Da Mata 1969 (3) SA 285 (A) and City of Salisbury v King 1970
(2) SA 528 (RA) in connection with the preventability aspect of the negligence test.
FEEDBACK
(6) See paragraph 4.6, footnote 160. (Answer in 5–7 sentences.)
(7) See paragraph 4.6, footnote 165. In your answer clearly indicate the differences
between the facts of the two cases and also explain why the two courts came to two
different decisions.
CONCLUSION In this study unit you studied the foreseeability and preventability legs of the test for
negligence. Did you achieve all the learning outcomes?
68
18 unit
study
Negligence judged in the light of the
surrounding circumstances; negligence
and duty of care; proof of negligence;
wrongfulness and negligence
PREFACE In the previous two study units you were introduced to the concept of negligence as a
form of fault; you also analysed the test for negligence – the reasonable person test. Make sure that
before you begin this study unit, you know the definition of negligence off by heart and can answer the
questions set on the previous two study units.
LEARNING OUTCOMES
– identify the general factors that are considered in determining whether negligence was present
in a particular case and be able to apply this knowledge to a set of facts
– explain and apply the principles relating to the so-called doctrine of sudden emergency
– explain the ‘‘duty of care’’ doctrine, the criticism thereof, and the difference between ‘‘duty of
care’’ and ‘‘legal duty’’
– write brief notes on the application of the onus of proof in the case of negligence and, in
particular, the res ipsa loquitur maxim
– explain the difference between wrongfulness and negligence
69
STUDY
Prescribed book
READ
Prescribed book
& footnotes 172, 176, 177 and 188
COMMENTARY
This is the third study unit on negligence. You must have completely mastered the previous
two study units before you start studying this study unit.
Quite a few aspects of this form of fault are discussed:
In paragraph 4.7 the factors that must be taken into consideration in the determination of
negligence are discussed under the heading ‘‘Negligence judged in the light of the
surrounding circumstances’’. Note especially the so-called doctrine of sudden emergency.
In paragraph 4.8 the concept ‘‘duty of care’’, which has often led to much confusion, is
examined. Distinguish especially between ‘‘duty of care’’ and ‘‘legal duty’’ (regsplig), which
is used in the case of wrongfulness.
In paragraph 4.9 we discuss the proof of negligence and, in this connection, the concept res
ipsa loquitur (the facts speak for themselves).
In paragraph 4.11 the difference between wrongfulness and negligence is dealt with. It is of
the utmost importance that you understand this difference well. Take careful note of the
arguments of the authors of your textbook in this regard. In addition, pay attention to the
following statement of the Constitutional Court in Loureiro v Imvula Quality Protection (Pty)
Ltd 2014 (3) SA 394 (CC) 410: ‘‘The enquiries into wrongfulness and negligence should not
be conflated ... . 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. [The wrongdoer’s] subjective state of
mind is not the focus of the wrongfulness enquiry. Negligence, on the other hand, focuses
on the state of mind of the defendant and tests his or her conduct against that of a
reasonable person in the same situation in order to determine fault.’’
70
SELF-ASSESSMENT
(1) ‘‘The negligence of an act must always be judged in the light of the circumstances of
the particular case.’’ Discuss this statement and name the factors that play a role when
evaluating the circumstances of the case.
(2) A, who is wearing a pair of shorts, smokes a pipe while driving his car. An ember
falls from his pipe and burns his bare leg. At the same time a bee, which has flown in
through the open window, stings him on his upper lip. While trying to get rid of the
ember and to kill the bee, A collides with B’s parked car. In the action brought by B
against A, A alleges that in the light of the particular circumstances of the case, he did
not act negligently. Discuss the merits of A’s defence.
(3) A enters an intersection while the traffic light is green for him and collides with B’s
vehicle, which enters the intersection against the red light. The first time that A
notices B’s car is at the moment the two cars collide. B concedes that he was
negligent, but alleges that A was also negligent because A did not look where he was
going and did not take steps to avoid the collision. Discuss the merits of B’s
allegation.
(4) A collision takes place between the vehicles of A and B after A’s vehicle crosses over
onto the wrong side of the road. The collision therefore takes place on what is the
wrong side of the road for A. Indicate how B may apply the res ipsa loquitur doctrine
to assist in proving A’s negligence.
(5) Describe the test for wrongfulness and the test for negligence and name the factors
that may be applied to distinguish between the two tests.
(6) B holds a revolver to A’s head and commands A to kill the sleeping C with a knife. A
obeys B, fearing for his life. Afterwards, it appears that the revolver is a toy and that
A’s life was never in danger. Did A act (a) wrongfully and (b) negligently? Discuss
with reference to the tests for wrongfulness and negligence and refer to case law.
(7) Briefly discuss the difference between wrongfulness and negligence in the case of an
omission.
FEEDBACK
(2) See paragraph 4.7(c). The question is whether the sudden emergency that A
experienced caused him not to be negligent. Test the given facts against each of the
three requirements for non-liability in a sudden emergency (see par 4.7(c)(i)–(iii)).
For example, did A cause the perilous situation through his own negligence or
imprudence (by smoking a pipe next to an open window)? If so, he did not act as a
reasonable person and he cannot claim that he was not negligent on the basis of the
doctrine of sudden emergency.
(3) This matter is discussed in paragraph 4.7(d). Does a person act reasonably if he/she
accepts that another person will act reasonably (like a reasonable person), for
example by stopping at a red traffic light? This is generally the case, but is not
necessarily so in modern traffic conditions.
(4) See paragraph 4.9 for a detailed explanation. On the ground of the maxim res ipsa
loquitur (the facts speak for themselves), the court may infer negligence on the part of
the defendant (A). B proves that the accident took place on what was the wrong side
71
of the road for A. Should A fail to come forward with another explanation, the court
may, on the proven facts, infer that A was probably negligent. This does not mean that
a presumption of negligence on the part of A arises. Res ipsa loquitur is an argument
on the probabilities, which a plaintiff (B), who may have little evidence at his/her
disposal, may use in order to convince the court that the defendant (A) acted
negligently.
(5) The matter is discussed in detail in paragraph 4.11. The distinction between the test
for wrongfulness (the objective reasonableness criterion) and the test for negligence
(the reasonable person test) is very important and you must make sure that you
understand it.
(6) The given problem is based partly on the facts of S v Goliath 1972 (3) SA 1 (A) and is
discussed in detail in paragraph 4.11. This question is a good test of your
understanding of the important difference between wrongfulness and negligence.
(7) See paragraph 4.11 for a discussion. It is useful to study this question with reference
to the facts in Minister of Forestry v Quathlamba 1973 (3) SA 69 (A). Also take note
of the quotation from the Loureiro case in the commentary above.
CONCLUSION A number of important matters in connection with wrongfulness and negligence were
discussed in this study unit. Make sure that you achieved the learning outcomes.
72
19 unit
study
Contributory fault
PREFACE The previous four study units dealt with fault on the part of the defendant. The two
forms of fault known as intent and negligence were discussed. We will now deal with fault on the part of
the plaintiff.
LEARNING OUTCOMES
– write brief notes on the meaning and relevance of the term ‘‘contributory fault’’
– explain the common-law position regarding contributory fault and be able to apply this
knowledge to factual examples
– explain the terms, meaning and effect of the Apportionment of Damages Act 34 of 1956 and
be able to apply this knowledge to factual situations
STUDY
Prescribed book
& footnote 289
Read
73
COMMENTARY
While the concept of fault is linked with the defendant (see the previous four study units –
study units 15 to 18), contributory fault refers to fault on the part of the plaintiff (see this and
the following study unit – study units 19 and 20). In practice, contributory fault plays an
important role because contributory fault on the part of the plaintiff can limit the extent of the
defendant’s liability; in other words, the plaintiff’s claim is reduced (and in some cases, even
excluded) when he/she bears contributory fault in respect of the damage.
Paragraph 5.1 is a short introduction to the subject. In paragraph 5.2 the common-law
position in respect of contributory fault is set out briefly. At present, contributory fault is
regulated by the Apportionment of Damages Act 34 of 1956. The provisions and effect of the
Act are dealt with in the various subsections of paragraph 5.3.
As always, the names and discussions of the cases dealt with in the textbook form part of
your study material.
SELF-ASSESSMENT
(1) Briefly distinguish between the concepts of fault and contributory fault.
(2) Briefly summarise the contents of sections 1(1)(a) and 1(1)(b) of the Apportionment
of Damages Act 34 of 1956 and give a short explanation of how these provisions have
changed the common-law position.
(3) A intentionally drives into B’s car. B is found to have acted negligently. B institutes a
claim against A for the damage to his car. A alleges that the claim should be reduced
in the light of B’s negligence. Will A’s plea be successful? Discuss briefly.
(4) A intentionally drives into B’s car. B is found to have acted negligently. A institutes a
claim against B for the damage to his car. B alleges that A’s claim cannot succeed in
the light of A’s intentional conduct. Will B’s plea be successful? Discuss briefly.
(5) A and B both intentionally drive their cars into each other. A institutes a claim against
B. Can the Apportionment of Damages Act 34 of 1956 be applied in this situation?
(6) Explain, with reference to the developments in case law, how damage caused by a
negligent defendant and a contributorily negligent plaintiff should be apportioned
between the two parties.
(7) X rents out mountain bikes. Y hires one of the mountain bikes. On completing her
ride, Y is unable to stop the bike, and she collides with a tree and sustains head
injuries. It transpires that X did not properly maintain the bikes, with the result that
the brakes of the relevant bike were malfunctioning. Y, on the other hand, neglected to
wear the safety helmet supplied by X. Y is hospitalised and her hospital costs amount
to R10,000. His costs would have been R6,000 had she worn the helmet. At the
relevant time X used no indemnity forms or notices excluding liability in her
business. Y wishes to recover R10,000 in delictual damages from X. Will she be
successful? Discuss in detail with reference to case law and legislation.
(8) Does contributory negligence pertain to the damage-causing event or the damage
itself? Explain.
74
FEEDBACK
(3) See paragraph 5.3.2. Here the defendant (A) acts intentionally and the plaintiff (B)
negligently. Because A acted intentionally, he will fail with his plea that B’s claim
should be reduced in the light of B’s negligence.
(4) See paragraph 5.3.2. Here the plaintiff (A) loses his claim against the negligent B
because he (A) acted intentionally.
(5) See paragraph 5.3.2. In light of the wording used in the long title of the Act and the
heading of section 1 (where reference is made to negligence only), as well as to the
historical background to the Act, it would appear that the legislature intended to make
provision only for the defence of contributory negligence and not the defence of
contributory intent. The Supreme Court of Appeal has not yet conclusively decided
this issue, but has, on occasion, expressed its doubt whether a defence of
contributory intent may be raised in terms of the Act. However, in Greater
Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank
1977 (2) SA 691 (W), the court held that section 1(1)(a) was applicable where both
the plaintiff and the defendant had acted with intent.
(6) See paragraph 5.3.4. In principle, the respective degrees of negligence of the parties
concerned must be compared. You should be familiar with the seemingly divergent
views in case law on the manner in which this comparison should take place:
compare Jones v Santam Bpk 1965 (2) SA 542 (A) (the ‘‘Jones approach’’) and AA
Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A) (the ‘‘Nomeka
approach’’). Also study the view that these two approaches are actually compatible,
and the view of the Appellate Division in General Accident Versekeringsmaatskappy
SA Bpk v Uijs 1993 (4) SA 228 (A) (one of the cases you should study), namely that
the extent of the plaintiff’s fault is but one of a number of factors that can be
considered by the court to reduce the plaintiff’s damages on the basis of equity and
justice.
(7) See paragraph 5.3, especially 5.3.1, 5.3.4 and 5.3.7. From the given facts, we can
conclude that the defendant has been negligent, but the plaintiff appears to have been
negligent too. Thus we must consider whether contributory negligence was present.
Contributory negligence is negligence on the part of the plaintiff, and it is a defence
that the defendant can raise. The Apportionment of Damages Act 34 of 1956 is
applicable. This Act provides that a contributorily negligent plaintiff’s damages be
apportioned. The court will determine the degree of deviation from the reasonable
person standard shown by the conduct of both the defendant and the plaintiff, express
the deviation as percentages, and use these percentages as a basis for the
apportionment. According to the Smit 1962 (3) SA 826 (A) and Nomeka 1976 (3) SA
45 (A) cases, the percentages of negligence attributed to the defendant and plaintiff
respectively will always add up to a hundred per cent. According to Jones NO v
Santam Bpk 1965 (2) SA 542 (A), both percentages must be assessed independently,
which could mean that, for example, a defendant may be 80% negligent while the
plaintiff is 30% negligent. According to Neethling and Potgieter, the approach in
Jones is to be preferred, but the two approaches can be reconciled. According to King
v Pearl Insurance Co Ltd 1970 (1) SA 462 (W), a defence of contributory negligence
could not succeed where the plaintiff had omitted to wear a crash-helmet while
driving a scooter, but had not been negligent in respect of causing the accident.
However, in Bowkers Park Komga Cooperative Ltd v SAR and H 1980 (1) SA 91 (E),
the court held that contributory negligence did not refer to negligence in respect of the
damage-causing event, such as a motorcar accident, but to negligence in respect of
75
the damage itself, and this was confirmed by the Appellate Division in Union National
South British Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A) and General Accident
Versekeringsmaatskappy SA Bpk v Uijs 1993 (4) SA 228 (A). Therefore, failure to
wear a safety helmet would constitute contributory negligence if it contributed to the
plaintiff’s damage. Applying these principles to the facts, we can conclude that Y was
contributorily negligent and that her damages will be apportioned. She will be
awarded R6 000 plus a portion of the R4 000 damage to which she contributed,
taking into account her and X’s respective degrees of negligence.
CONCLUSION In this study unit you were introduced to the concept of contributory fault. The
provisions and meaning of the Apportionment of Damages Act 34 of 1956 are of particular importance in
practice. Answering the self-assessment questions should assist you in mastering the study material.
Did you achieve all the learning outcomes?
76
20 unit
study
Voluntary assumption of risk and
contributory fault (contributory intent)
PREFACE In the previous study unit you were introduced to the concept of contributory fault
(particularly in the form of contributory negligence) and the provisions of the Apportionment of Damages Act
34 of 1956. This study unit deals with a related topic, namely contributory intent. In this case the question is
as follows: what effect will the plaintiff’s intentional conduct in respect of the damage have on his/her claim?
LEARNING OUTCOMES
– distinguish between the following concepts: volenti non fit iniuria, consent to injury, consent
to the risk of injury, voluntary assumption of risk, contributory intent and contributory
negligence
– distinguish between voluntary assumption of risk by the plaintiff as ground of justification
excluding wrongfulness, and voluntary assumption of risk on the part of the plaintiff as a type
of ground excluding fault which excludes the defendant’s negligence
– discuss the case law discussed in your textbook as an illustration of contributory intent
– discuss the connection between the doctrine of voluntary assumption of risk and the so-
called rescue cases
– explain the importance of the decision in Greater Johannesburg Transitional Metropolitan
Council v ABSA Bank t/a Volkskas Bank 1997 (2) SA 591 (W) in respect of the defence of
contributory intent
STUDY
Prescribed book
& chapter 3, paragraph 7.5.1 (the last paragraph dealing with terminology)
77
& chapter 3, footnote 540

& chapter 4, paragraph 5.3.2
& chapter 4, paragraph 5.4.1–5.4.3
& chapter 4, footnotes 319 and 321
COMMENTARY
In this study unit we consider what effect the plaintiff’s intent will have on the claim he/she
institutes against a defendant who has acted negligently or intentionally. The facts in the
Lampert case (see par 5.4.2) make it easier to understand the relevant principles.
Note that contributory intent (a ground for the cancellation of fault) is also known as
voluntary assumption of risk (par 5.4.1). As was previously explained, the latter concept is
also sometimes used in the sense of consent to the risk of injury, which is a ground of
justification (see ch 3, par 6.5.1 above). It is therefore essential that you have absolute
clarity on the terminology used in connection with consent as a ground of justification,
contributory negligence and contributory intent. Therefore, review the applicable sections of
chapter 3, paragraph 6.5.1 above before you tackle this study unit. Also revise chapter 4,
paragraph 5.3.2.
SELF-ASSESSMENT
(1) Give the different meanings of the concept ‘‘voluntary assumption of risk’’.
(2) Distinguish between consent to the risk of injury and contributory intent.
(3) What is meant by the concept ‘‘contributory intent’’? Explain its effect briefly.
(4) Do our courts accept the defence of contributory intent for the purposes of the
Apportionment of Damages Act 34 of 1956?
(5) Discuss Lampert v Hefer 1955 (2) SA 507 (A) inasmuch as the decision is of
importance for the defence of contributory intent.
(6) In practice, does it make a difference whether the plaintiff has acted negligently or
intentionally, or whether he/she has given consent to the risk of injury? Discuss.
(7) Can contributory intent and contributory negligence overlap? Discuss briefly with
reference to case law.
(8) Discuss contributory intent and consent to the risk of injury with reference to the facts
and decision in Netherlands Insurance Co of SA Ltd v Van der Vyver 1968 (1) SA 412
(A).
(9) X negligently sets a house alight. Y runs into the burning house to save his jacket and
is injured by the flames. Y institutes a claim against X on the ground of his personal
injuries. What defences can X raise against the claim? Discuss briefly.
(10) X negligently sets a house alight. Y runs into the burning house to save a baby and is
injured by the flames. Y institutes a claim against X on the ground of his personal
injuries. Will X succeed with his defence that Y acted with contributory intent or
contributory negligence? Discuss briefly.
78
(11) What is the importance of Greater Johannesburg Transitional Metropolitan Council v

ABSA Bank t/a Volkskas Bank 1997 (2) SA 591 (W) in respect of contributory intent?
Discuss briefly.
FEEDBACK
(1) See chapter 3, paragraph 7.5.1 and chapter 4, paragraph 5.4.1.
(2) See chapter 3, paragraph 7.5.1 and chapter 4, paragraph 5.4.1.
(3) See paragraphs 5.4.1 and 5.3.2.
(4) See paragraphs 5.4.1, 5.4.2 and 5.3.2. Note the importance of the Greater
Johannesburg case.
(5) See paragraph 5.4.2. Remember that you should study the Lampert case in so far as
the decision is of importance for the defence of contributory intent.
(6) See chapter 3, paragraph 7.5.1 and chapter 4, paragraph 5.4.2 and footnote 321.
Briefly, if the plaintiff gave consent to the risk of injury, the defendant goes free. On
the other hand, contributory negligence is not a complete defence, but the claim of
the plaintiff who bears contributory negligence may be reduced by the court in
proportion to the degree of his/her contributory negligence. If the plaintiff acted with
contributory intent, the result depends on the form of fault on the part of the
defendant. If the defendant was negligent, the defendant goes free. If the defendant
acted with intent, the contributorily intentional plaintiff’s claim will be reduced if the
Greater Johannesburg case is followed (cf also study unit 19 above).
(7) See paragraph 5.4.2. Fagan JA declared in the Lampert case that contributory intent
and contributory negligence can overlap. Note the argument in the textbook as to why
his statement is incorrect.
(9) See paragraph 5.4.3, where the answer is provided with reference to the same set of
facts.
(10) These facts are specifically discussed in paragraph 5.4.3 of your textbook.
CONCLUSION Once again, you are encouraged to master the terminology used in connection with
contributory fault. You have now completed fault as an element of delict. Did you achieve all the learning
outcomes?
79
21 unit
study
Causation: general; factual causation
PREFACE
The first four chapters of the prescribed book have now been dealt with: the introduction to the law of
delict (ch 1), as well as the first three elements of a delict, namely conduct (ch 2), wrongfulness (ch 3)
and fault (ch 4). In the following four study units (21–24) we will focus on chapter 5 of the textbook, in
which the fourth element of delict, causation, is discussed.
Conduct
FIGURE 21.1
80
LEARNING OUTCOMES
– distinguish between factual and legal causation

– explain the operation of the conditio sine qua non doctrine, and be able to apply it to factual
situations
– write brief notes on the criticism of the conditio sine qua non doctrine
– explain the apparent application of conditio sine qua non in the case of an omission, and be
able to apply this knowledge to factual situations
– explain the correct method of determining a factual causal relationship and be able to apply it
to factual examples
STUDY
Prescribed book
& chapter 5, paragraphs 1 and 2.1–2.6
COMMENTARY
This is the first study unit on the element of delict known as causation. You will note that
factual causation is distinguished from legal causation. The latter concept is also sometimes
referred to as remoteness of damage. (In Afrikaans it is referred to as juridiese kousaliteit,
aanspreeklikheidsbegrensing or die toerekenbaarheidsvereiste.) It is important that you
understand the difference between factual and legal causation from the outset.
In this study unit we start with a brief introduction to causation (par 1). In paragraph 2 the
conditio sine qua non approach is discussed (par 2.2) and then criticised (par 2.3–2.4).
This is followed by a discussion of the flexible application of the conditio sine qua non test
(par 2.5). Finally, we explain the correct approach – according to the authors of your
textbook – to determine factual causation (par 2.6).
SELF-ASSESSMENT
(See study unit 1 par 1.2.2.2 above on the aim of the following questions.)
(1) Briefly distinguish between factual and legal causation.

(2) While rushing to catch a train, Oratile bumps into Mmaleso, a frail old lady. Mmaleso
falls and breaks a leg. She is admitted to hospital and her leg is set in plaster. She is
then given a set of crutches and is discharged from the hospital. A week later, while
using her crutches, Mmaleso slips on a smooth floor, falls again and breaks her arm.
Is there a factual causal link between Oratile’s conduct and Mmaleso’s broken arm?
Discuss.
81
FEEDBACK
(1) See paragraphs 1 and 2.1. (See also paragraph 3.1.) It is very important to
understand the distinction between factual and legal causation from the outset.
Therefore, make sure that you fully understand this distinction before you proceed.
(2) See paragraph 2. The generally accepted test for factual causation is the conditio sine
qua non test, or ‘‘but for test’’. This entails mentally eliminating, or thinking away, the
conduct. If the damage then also disappears, a factual causal link is present between
the conduct and the damage. This test is subject to much criticism. Among others, it
is said to be based on circular logic and is, at best, a way to express the existence of
a causal nexus that has been determined in another way. Neethling and Potgieter
argue that evidence and human experience are sufficient to determine whether one
fact flowed from another fact, and that a so-called test of factual causation is
superfluous. However, the courts consistently state that the conditio sine qua non is
the test of factual causation. If we apply the test to the facts, we must conclude that if
Oratile had not bumped Mmaleso, she would not have broken her arm, and therefore
a factual causal link is present between Oratile’s conduct and Mmaleso’s damage.
CONCLUSION In this study unit factual causation was concluded. Did you achieve all the learning
outcomes?
82
22 unit
study
Legal causation: general; the flexible
approach; adequate causation;
direct consequences
PREFACE In the previous study unit you were introduced to the concepts of factual causation and
legal causation, and factual causation was dealt with in detail. The following three study units are
concerned with legal causation.
Conduct
FIGURE 22.1
83
LEARNING OUTCOMES
– discuss the meaning, operation and function of legal causation

– name the different theories of legal causation
– explain the flexible approach to legal causation, as applied by the courts, and be able to apply
it
– explain adequate causation as a specific test for legal causation, and be able to apply it
– explain the direct consequences theory as a test for legal causation, and be able to apply it
STUDY
Prescribed book
& footnotes 94, 95, 97 and 112
COMMENTARY
In this study unit you will gain a better understanding of legal causation in general (par 3.1),
the flexible approach, as formulated by the Appellate Division (par 3.2), and two further
theories of legal causation, namely adequate causation (par 3.3) and direct consequences
(par 3.4). In respect of the flexible approach to legal causation, the judgment in S v
Mokgethi 1990 (1) SA 680 (A) is of the utmost importance. Make sure that you know the
discussion in the textbook of the principles stated in that case very well.
Once again, first make sure that you know exactly what is meant by the concepts of factual
and legal causation, as well as the difference between them. Footnotes 97 and 112 contain
interesting factual scenarios that will make this aspect clearer to you.
SELF-ASSESSMENT
(1) What is meant by the concept ‘‘legal causation’’?

(2) Name five theories of legal causation.
(3) Describe the flexible approach to legal causation, as formulated by the Appellate
Division.
(4) Briefly set out the facts of S v Mokgethi 1990 (1) SA 32 (A) and state the views for
which the case serves as authority.
(5) What is the relationship between the flexible approach to legal causation and the
traditional causation theories?
84
(6) Briefly explain the content and operation of adequate causation as a test for legal
causation.
(7) Name an advantage that the theory of adequate causation may have over reasonable
foreseeability as a test for legal causation.
(8) Briefly explain the content and operation of direct consequences as a test for legal
causation.
(9) How has the direct consequences theory been influenced by the foreseeable plaintiff
doctrine? Discuss briefly.
(10) Do direct consequences still have a possible role to play in our law? Discuss briefly.
(11) Formulate your own set of facts, similar to that in the Alston or Mokgethi case, and
indicate how the Supreme Court of Appeal would solve the problem of legal
causation.
(12) While rushing to catch a train, Ayesha bumps into Fatima, a frail old lady. Fatima falls
and breaks a leg. She is admitted to hospital and her leg is set in plaster. She is then
given a set of crutches and is discharged from the hospital. A week later, while using
her crutches, Fatima slips on a smooth floor, falls again and breaks her arm. Is there
a legal causal link between Ayesha’s conduct and Fatima’s broken arm? Discuss.
FEEDBACK
(1) See paragraph 3.1, where this matter is discussed in detail.
(3) The flexible approach is discussed in paragraph 3.2. Note especially Van Heerden
JA’s formulation thereof in S v Mokgethi 1990 (1) SA 32 (A) and the relationship
between the flexible approach and the existing (traditional) legal causation theories.
The facts of the Mokgethi case are briefly set out in footnote 100.
(4) See footnote 112 for the facts of Mokgethi. The important principles stated in
Mokgethi are discussed in paragraph 3.2 of the textbook.
(5) See paragraph 3.2. Note especially the subsidiary role played by the other theories of
legal causation in respect of the application of the flexible approach.
(11) The facts of these two cases are set out in footnotes 97 and 112 respectively. The
flexible approach of the Appellate Division is set out in paragraph 3.2.
(12) See paragraph 3, especially 3.2. The test for legal causation is the so-called flexible
approach, as formulated in S v Mokgethi 1990 (1) SA 32 (A) and International
Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A). In Mokgethi a bank robber shot
a teller. The teller was rendered a paraplegic and was discharged from hospital in a
wheelchair. Subsequently, the paraplegic man failed to shift his body position in the
chair frequently and developed pressure sores, eventually dying from complications.
The question that arose was whether the shot fired by the robber was the legal cause
of the teller’s death. According to the court, the main question in respect of legal
85
causation is whether there is a close enough relationship between the wrongdoer’s

conduct and its consequence for such consequence to be imputed to the wrongdoer
in view of policy considerations based on reasonableness, fairness and justice.
Several other legal causation theories exist, such as adequate causation, direct
consequences, foreseeability and novus actus interveniens. None of these criteria is
suitable to be applied to all situations. They may, however, be used as subsidiary aids
when employing the flexible approach. In the Mokgethi case, the court held that the
shot was not a legal cause of the death. If these principles are applied to the facts in
the question, the conclusion is probably that Fatima’s broken arm was too remote and
should not be imputed to the wrongdoer. It could also be argued that a so-called
novus actus interveniens, that is, a new intervening act, was constituted by Fatima’s
second fall, and this strengthens the conclusion that there is no legal causal link
between Ayesha’s conduct and Fatima’s broken arm. (You will study the novus actus
intervieniens in study unit 23.)
CONCLUSION For practical purposes, the flexible approach of the Supreme Court of Appeal is the
most important. However, because the other (traditional) tests for legal causation may still play a
subsidiary role in the application of the flexible approach, it is important for you to have a thorough
understanding of their operation. Did you achieve all the learning outcomes for this study unit?
86
23 unit
study
Reasonable foreseeability; novus actus
interveniens; so-called egg-skull cases
(talem qualem rule)
PREFACE This study unit concludes the discussion of causation.
LEARNING OUTCOMES
– explain reasonable foreseeability as a test for legal causation and be able to apply it
– write brief notes on the relationship between reasonable foreseeability and the flexible
approach to legal causation
– explain the meaning and role of an actus novus interveniens in the case of legal causation,
and be able to apply this knowledge to factual situations
– explain the meaning and role of the so-called egg-skull cases with regard to legal causation,
and be able to apply this knowledge to factual situations
STUDY
Prescribed book
& chapter 5, paragraphs 3.6, 3.7 and 3.8
87
COMMENTARY
This study unit is a continuation of the discussion on legal causation. Another theory of
legal causation, reasonable foreseeability, is discussed in paragraph 3.6. In paragraph 3.7
the role of a novus actus interveniens (or new intervening cause) in the question of
imputability is discussed. The so-called egg-skull cases are dealt with in paragraph 3.8.
Read
SELF-ASSESSMENT
(1) Describe the relationship between reasonable foreseeability and the flexible approach
as criteria for legal causation.
(2) According to Van Rensburg, how must reasonable foreseeability, as a criterion for
imputability, be approached?
(3) What is a novus actus interveniens?
(4) What is the approach of the Appellate Division in S v Mokgethi 1990 (1) SA 32 (A) to
the role of a new intervening cause in respect of the question of legal causation?
(5) What are the various ways in which a novus actus interveniens can occur?
(6) Briefly explain what is meant by the concept of an egg-skull case.
(7) Give an example from case law of an egg-skull case.
(8) ‘‘Most jurists agree that in an egg-skull case the wrongdoer must also be liable for the
harm which may be ascribed to the presence of the weakness. However, there is no
agreement on how the liability of the wrongdoer for such harm should be explained,
or which criterion for legal causation should be used to express liability in legal
terms’’. In the light of this statement, give an overview of the approaches suggested
by Van Rensburg, Van der Walt and Midgley, as well as by Van der Merwe and
Olivier, and then give your own point of view in this regard.
FEEDBACK
(1) See paragraph 3.6. You can also consult paragraph 3.2 again.
(2) See paragraph 3.6; the criterion suggested by Van Rensburg is cited there.
(3) See paragraph 3.7 for a definition of a novus actus interveniens (or new intervening
cause).
(4) The answer appears in footnote 242. (Also read fn 241 for a comment on the
relationship between a novus actus interveniens and the flexible approach to legal
causation.)
88
(7) See footnote 247.

(8) The views of the jurists mentioned are set out in paragraph 3.8.
CONCLUSION We have now concluded our discussion of the delictual element of causation (factual
and legal causation). Did you achieve all the learning outcomes?
89
24 unit
study
Damage: patrimonial loss and
non-patrimonial loss
PREFACE Four of the elements of delict – conduct, wrongfulness, fault and causation – have
now been dealt with. The fifth element, damage, will be discussed in this study unit.
Note that you are not expected to study chapter 6 of the prescribed book as a whole. The chapter must be
carefully marked according to the guidelines provided under the headings ‘‘SSTUDY’’ and ‘‘RREAD’’.
Conduct
or/and
FIGURE 24.1
90
LEARNING OUTCOMES
– write brief notes on the compensatory function of the law of delict

– define the concept of damage
– explain that damage is a wide concept, including both patrimonial and non-patrimonial loss
– define patrimonial loss
– write brief notes on a person’s patrimony
– explain the methods by which patrimonial loss and the extent thereof are determined in a
particular case, and be able to apply these methods
– explain the ‘‘once and for all’’ rule, and be able to apply it
– explain the collateral source rule in one sentence
– write brief notes on the plaintiff’s duty to mitigate
– briefly explain what non-patrimonial loss (or injury to personality) is
STUDY
Prescribed book
& chapter 6, paragraphs 1, 2, 3.1, 3.2.1, 3.2.2 (only the first par), 4.1, 4.2, 4.5 (with its
subdivisions), 4.6.1, 4.7.1, 4.8.1, 4.8.2, 4.9, 5.1 and 5.2
READ
Prescribed book
& the rest of chapter 6
COMMENTARY
Only one study unit is devoted to the element of damage in delict. However, this does not
mean that the subject is unimportant. In fact, in practice, some of the most important
delictual problems revolve around this element. Nevertheless, for the purposes of this
introductory course, our main aim is to give you a thorough grounding in a few of the basic
principles concerning the element of damage.
Although chapter 6 of your prescribed book does not have to be studied in its entirety, you
must read the whole chapter thoroughly.
91
SELF-ASSESSMENT
(1) What does the concept ‘‘compensation of damages’’ mean?

(2) What does the concept ‘‘satisfaction’’ mean?
(3) What is meant by the statement that a wide concept of damage must be adopted?
Answer briefly.
(4) Define patrimonial loss.
(5) What is the content of the comparative methods whereby patrimonial loss is
established?
(6) At what moment is the damage determined for purposes of compensation for
damages?
(7) What does the ‘‘once and for all’’ rule mean?
(8) What are the practical implications of the ‘‘once and for all’’ rule in the light of
prescription, future damage and the instituting of more than one claim on the ground
of a single cause of action?
(9) Explain compensating advantages in one sentence.
(10) Briefly explain what is meant by the plaintiff’s duty to mitigate.
(11) Explain the concept ‘‘non-patrimonial loss’’.
FEEDBACK
(4) See paragraphs 4.1 and 4.2.
(11) See paragraphs 5.1. and 5.2.
CONCLUSION The five elements of delict have now been dealt with. Remember that, in principle, all
the elements should be present before a delict is established (as you already know, there are exceptions
in cases of strict liability). Did you achieve all the learning outcomes?
92
25 unit
study
Delictual remedies
PREFACE The general requirements for delict (conduct, wrongfulness, fault, causation and
damage) have now been dealt with. In the remaining study units, specific subjects related to the law of
delict, as well as the specific forms of delict, are examined. In this study unit we discuss delictual
remedies.
LEARNING OUTCOMES
– name the different remedies that may be instituted on the basis of a delict (ie the so-called
three pillars on which the law of delict rests, as well as the other delictual remedies)
– indicate whether the three main delictual actions are transmissible
– briefly discuss the purpose, forms, function and requirements of an interdict
– write brief notes on concurrence of remedies
– write brief notes on a so-called exclusionary clause
– explain the principles concerning prescription of remedies, and apply them
STUDY
Prescribed book
& chapter 7 paragraphs 1, 2, 3.1, 3.6 and 4
93
READ
Prescribed book
& chapter 1 paragraphs 1 and 4
& chapter 7 paragraphs 3.2, 3.3, 3.4 and 3.5
COMMENTARY
Aspects of the delictual remedies are discussed in this study unit.
Chapter 7, paragraph 1 deals particularly with the transmissibility (heritability and

cedability) of the actio legis Aquiliae, the actio iniuriarum and the action for pain and
suffering. A number of other delictual actions are also mentioned.
Paragraph 2 deals with the interdict. Note especially the purpose of the interdict and the
requirements for the granting of an interdict.
In paragraph 3 the problem of the concurrence of actions is discussed. Here you need only
study paragraph 3.1. The nature of the problem is examined briefly in this paragraph. You
need only read paragraphs 3.2 to 3.5. Study paragraph 3.6 on exclusionary clauses.
In paragraph 4 you will learn about prescription of delictual remedies. Study this paragraph.
SELF-ASSESSMENT
(1) Name the three actions that form the pillars of the South African law of delict.
(2) Discuss the transmissibility (heritability or cedability) of the three better-known
delictual actions.
(3) What is the aim and function of an interdict in the law of delict?
(4) What are the two forms that an interdict can take?
(5) Name and discuss the three requirements for the granting of an interdict.
(6) When does a concurrence of remedies occur?
(7) What is an exclusionary clause?
(8) Write a short note on the prescription of remedies in respect of the law of delict.
(9) When does the period of prescription commence?
FEEDBACK
94

CONCLUSION We have now concluded the discussion of the delictual remedies. Did you achieve all
95
26 unit
study
Joint wrongdoers
PREFACE In the previous study unit we discussed the delictual remedies. In this study unit (ch 8
of your prescribed book) we focus on joint wrongdoing.
LEARNING OUTCOMES
– explain what a ‘‘joint wrongdoer’’ is, as defined in terms of the Apportionment of Damages Act
34 of 1956
– explain how joint wrongdoing is regulated in terms of the Apportionment of Damages Act 34
of 1956, and apply this knowledge to factual situations
STUDY
Prescribed book
& chapter 8 paragraph 1
READ
Prescribed book
& chapter 8, paragraph 2
COMMENTARY
Joint wrongdoing occurs where damage is not caused by one person only, but by more than
96
one person. In this study unit (based on ch 8 of your prescribed book) the legal principles
relating to the delictual liability of joint wrongdoers will be discussed.
Distinguish carefully between the concepts of contributory fault (refer back to study units 19
and 20) and joint wrongdoers.
Paragraph 1 contains a general introduction to joint wrongdoing. In paragraph 2, two

particular instances of joint wrongdoing are examined: firstly, where a spouse suffers loss
as a result of the conduct of the other spouse and a third person (and here marriages in
community of property are distinguished from marriages out of community of property)
(par 2.1); and secondly, where a person suffers prejudice as a result of the death or injury of
another through the conduct of the deceased or injured person and a third party (and here
prejudice owing to death is distinguished from prejudice owing to injury) (par 2.2). Read
paragraph 2 for non-examination purposes.
SELF-ASSESSMENT
(1) What is a joint wrongdoer according to the Appointment of Damages Act 34 of 1956?
(2) Briefly explain briefly how the court deals with joint wrongdoing today in terms of the
Apportionment of Damages Act 34 of 1956.
(3) X and Y break into Z’s shop and steal the entire stock of Z’s famous ginger beer. Z
arrives at the scene just as they start to run away. Z recognises X. The police find X
only after he and Y have drunk all the ginger beer. Z wants to claim damages from X.
Can Z claim the whole amount of damages from X? How can X improve his own
position?
(4) Say Z in question (3) above has recognised both X and Y. Can he sue both of them in
the same action? Who will be liable to pay the damages?
FEEDBACK
CONCLUSION It is very important that you have a thorough understanding of joint wrongdoing. The
factual situations in the self-assessment exercises will assist you in this regard. Did you achieve all the
learning outcomes?
PART III
Forms of delict
98
27 unit
study
Forms of damnum iniuria datum:
psychological lesions (emotional shock)
PREFACE In the following two study units specific forms of delicts causing patrimonial loss are
dealt with.
Damage suffered as a result of psychological lesions is studied first. Psychological lesions may be
caused in many different ways and may have many different negative results. A parent might, for
example, suffer psychological lesions if his/her child is killed in front of his/her eyes.
LEARNING OUTCOMES
– describe psychological lesions

– name the locus classicus (trendsetting case) in the field of psychological lesions
– name the two artificial restrictions on the delictual principles which were initially applied by
our courts in determining liability for psychological lesions
– describe the two principles that were introduced by Bester v Commercial Union
Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) in the place of the two former
restrictions
– name the factors that may play a role in determining whether psychological lesions were
reasonably foreseeable
STUDY
Prescribed book
& chapter 9, paragraph 3
99
READ
Prescribed book
& chapter 9, footnote 105
COMMENTARY
In this study unit we deal with a specific form of damnum iniuria datum, namely damage
caused as a result of psychological lesions (emotional shock). Although psychological
lesions are discussed under the heading of damnum iniuria datum (ie delicts that involve
patrimonial damage), it is important to remember that psychological lesions also result in
infringement of a personality interest, namely bodily integrity. In theory, all three of the
delictual remedies, namely the actio legis Aquilia, the actio iniuriarum and the action for
pain and suffering (see study unit 26 to refresh your memory) could be relevant in an action
for psychological lesions. The actio legis Aquiliae will, of course, be used to recover
patrimonial damage, such as medical expenses. The action for pain and suffering will be
used to claim compensation for the negligent infringement of bodily integrity, while the
actio iniuriarum may only be used to claim satisfaction for an infringement of personality if
it can be proved that the shock was caused intentionally.
The footnote that you must read, contains examples of cases of psychological lesions,
which will help you to remember the principles involved.
SELF-ASSESSMENT
(SSee study unit 1, par 1.2.2.2 on the aim of the following questions.)
(1) Explain what is meant by ‘‘psychological lesion’’.

(2) Give an overview of the legal position in respect of emotional shock prior to the
appeal court decision in Bester v Commercial Union Versekeringsmaatskappy van SA
Bpk 1973 (1) SA 769 (A).
(3) Write notes on the way in which Bester v Commercial Union Versekeringsmaatskappy
van SA Bpk 1973 (1) SA 769 (A) influenced delictual liability for causing
psychological lesions.
(4) With reference to an example, briefly discuss the requirement that the damage
resulting from psychological injury be reasonably serious to be actionable.
(5) What restrictions were imposed on the ordinary delictual principles that should have
been applied in respect of liability for psychological lesions prior to the Bester case?
Do these restrictions still apply today? Discuss briefly.
(6) Name the factors that can influence the question of the reasonable foreseeability of
psychological injury.
(7) ‘‘The so-called ‘thin skull’ rule finds application in the case of liability for
psychological injury.’’ What is meant by this statement? Discuss briefly.
(8) Is liability excluded where the prejudiced party who suffered shock did not personally
100
witness the disturbing incident, but learnt of it? Briefly discuss with reference to case
law.
FEEDBACK
You will find all the answers to the above questions in paragraph 3 of chapter 9.
CONCLUSION In this study unit we discussed a form of damnum iniuria datum, namely psychological
lesions (emotional shock). Did you achieve all the learning outcomes?
101
28 unit
study
Injury or death of another person; pure
economic loss; negligent
misrepresentation; interference with a
contractual relationship; unlawful
competition; manufacturer’s liability
PREFACE In the previous study unit we examined how causing a person to suffer
psychological lesions is regarded as a specific delictual phenomenon. In this study unit – the
second and last on the specific forms of delict that involve patrimonial damage – we look briefly at
causing another person to suffer injury or death; pure economic loss; negligent misrepresentation;
interference with a contractual relationship; unlawful competition; and manufacturer’s liability as
examples of specific forms of delict.
LEARNING OUTCOMES
– explain what is meant by pure economic loss

– name five other specific forms of damnum iniuria datum
STUDY
Prescribed book
& chapter 9, paragraph 4 – the first two paragraphs (pp 305–307)

102
READ
Prescribed book
& chapter 9, paragraphs 2, 4, 5, 6, 7 and 8
COMMENTARY
In this study unit, six specific forms of damnum iniuria datum are dealt with. For the
purposes of this course, you need only take note of the existence of these topics. The
learning outcomes and self-assessment exercises will indicate to you what is important for
examination purposes.
SELF-ASSESSMENT
(1) What is meant by the concept ‘‘pure economic loss’’? Discuss with reference to case
law.
(2) Name five other specific forms of damnum iniuria datum.
FEEDBACK
(2) See paragraphs 2, 5, 6, 7 and 8.
CONCLUSION We have now completed the discussion of the specific forms of patrimonial loss
caused by a delict. Did you achieve all the learning outcomes?
103
29 unit
study
Forms of iniuria: Rights relating to physical
integrity; the right to fama or good name;
rights relating to dignitas
PREFACE The previous two study units dealt with specific forms of patrimonial loss caused by
delicts, whereas this study unit focuses on specific forms of personality infringement.
LEARNING OUTCOMES
– define defamation and give examples of this iniuria

– name and discuss the elements of defamation
– name, discuss and apply the traditional grounds of justification for defamation
– discuss the grounds on which intent can be excluded in a case of defamation
– discuss the role of negligence in certain instances of defamation
– name five other forms of personality infringement
– explain what the right to dignity is and, briefly, how it is infringed
– explain what the right to privacy is and, briefly, how it is infringed
– explain what the right to identity is and, briefly, how it is infringed
STUDY
Prescribed book
& chapter 10, paragraphs 3.2.1–3.2.2.4.3, 4.1, 4.2 and 4.3
104
READ
Prescribed book
& the rest of chapter 10
COMMENTARY
Paragraph 1 is a general introduction to the specific forms of personality infringement, while
paragraph 2 is a discussion of rights in respect of physical integrity. Read these paragraphs.
Paragraph 3.1 is an introductory section on defamation. In this section the meaning of a

person’s ‘‘good name’’, as an aspect of personality property, is explained; the acts that, in
principle, infringe fama are also discussed. Read this paragraph.
Paragraph 3.2 deals with defamation. In paragraph 3.2.1, defamation is described. You
should know this definition off by heart. In paragraph 3.2.2 the following elements of
defamation are considered: publication, defamatory effect or wrongfulness (and the grounds
of justification known as privilege, truth and public interest, media privilege, political
privilege and fair comment), intent (animus iniuriandi) (and, in this regard, the grounds
excluding fault known as mistake and jest), and negligence. You must study paragraph 3.2.
Paragraphs 3.3 and 3.4 deal with two other forms of infringement of the right to a good
name. Read these two paragraphs for non-examination purposes.
In paragraph 4 the various rights in respect of dignitas are discussed. Read this entire
section to obtain an overview of this part of the law and to enable you to achieve the last
three learning outcomes of this study unit.
SELF-ASSESSMENT
(1) Define the concept of defamation.

(2) Name the requirements for the delict of defamation.
(3) In which of the following situations can it be said that, according to the courts,
publication of defamatory words has taken place? Substantiate your answer.
(a) Two Japanese tourists in South Africa start arguing and, in front of a group of
South Africans, the one calls the other a liar and a thief.
(b) Mr X tells his wife, Mrs X, that Mrs Y, who works at the office with him, stole
some money.
(c) Mr X tells Mr Y that his wife, Mrs Y, stole some money at the office.
(4) Discuss in detail the test to determine wrongfulness in the case of defamation. Also
describe the principles that have crystallised in practice with regard to the application
of this test.
105
(5) Mention the most important grounds of justification that are relevant in the case of
defamation.
(6) Identify the ground of justification that a defendant in a defamation case may use in
each of the following situations:
(a) P is a patient of doctor D. P develops breast cancer and D has to perform a
mastectomy. The operation leaves P scarred, and she lays a complaint against
the doctor with the Medical and Dental Council, which decides that the doctor
acted as a reasonable doctor would have in the particular circumstances. D then
accuses P of defaming him.
(b) During a court case in which S is accused of stealing money from her employer,
a witness, W, testifies that he saw S taking money from the storeroom. S is later
acquitted and wants to sue W for defamation.
(c) G and F are members of a town council. Both of them want to be the mayor of
the town. During a public meeting that G arranges in order to address the
townsfolk, F reveals that G was expelled from a university years ago because he
was found guilty of cheating during an examination. G wants to sue F for
defamation.
(7) Define privilege.

(8) Distinguish between the two forms of privilege as grounds of justification for
defamation.
(9) Write a note on absolute privilege.
(10) Describe relative privilege and discuss the different fixed categories of relative
privilege that have already been developed in our law.
(11) Write notes on the ground of justification known as ‘‘truth and public interest’’ in the
case of defamation.
(12) Write brief notes on media privilege as a ground of justification.
(13) Write brief notes on political privilege as a ground of justification.
(14) Write notes on the ground of justification known as ‘‘fair comment’’ in the case of
defamation.
(15) Discuss animus iniuriandi as a requirement for defamation.
(16) Discuss the grounds excluding intent in the case of defamation.
(17) Is intent a requirement for liability of the press and other media in the case of
defamation? Discuss.
(18) Name five other forms of personality infringement.
(19) Explain what the right to dignity is and, briefly, how it is infringed.
(20) Explain what the right to privacy is and, briefly, how it is infringed.
(21) Explain what the right to identity is and, briefly, how it is infringed.
FEEDBACK
106
(3) Publication did take place in (c), but not in (b), and probably not in (a). In (a) the
South Africans probably did not understand the defamatory nature of the remarks
(uttered in Japanese); and in (b) the communication of the defamatory words took
place between spouses. See also the second paragraph of paragraph 3.2.2.1.
(4) Wrongfulness in respect of defamation lies in the infringement of a person’s right to
good name (fama). The test that is applied is whether, in the opinion of the
reasonable person with normal intelligence and development, the publication has the
tendency to lower the esteem in which the plaintiff is held by the community. It is very
important to remember that this reasonable person test is not the reasonable person
test used to determine negligence. This reasonable person test is an objective one,
and is actually just a convenient way of expressing the boni mores or reasonableness
criterion, which is, of course, the normal test for wrongfulness. It is also clear that the
words used need not actually lower the plaintiff’s reputation or the esteem in which he
or she is held – the reasonable person (as a concretisation of the boni mores) must
merely think that the words will probably have that effect. For the specific principles
that have crystallised in practice with regard to the application of the reasonable
person test, you should consult paragraph 3.2.2.2 (a)–(h).
(5) The traditional grounds of justification applicable in the case of defamation are
privilege, truth and public interest, and fair comment – see paragraph 3.2.2.3.
(6) The question requires you to identify (ie name) a ground of justification that may be
available to the defendant in each case. Although you were not asked to discuss these
grounds of justification, you should be able to discuss the possibility of success in
each case, should this be asked in an assignment or the examination. Therefore,
make sure that you know the details of each ground of justification.
(a) Relative privilege will be the applicable defence, since the supervisory body (the
Medical and Dental Council) has a duty to hear patients’ complaints about their
doctors, and a patient that feels aggrieved surely has a right to complain to the
Council. Remember that the defence of relative privilege is only a provisional
defence, and the doctor can always prove that the patient acted with an improper
motive, in which case the ground of justification falls away (see par 3.2.2.3.1(a)).
(b) Here, too, relative privilege is the relevant ground of justification, since all
defamatory remarks made during a judicial proceeding are privileged, as long as
the remarks are relevant and supported by reasonable grounds (see
par 3.2.2.3.1(b)).
(c) The relevant defence will be truth and public interest. Surely it must be in the
public interest to know about the dishonesty of a person running for public
office. However, the fact that past transgressions should not be raked up after too
long a time is also a factor that should be considered when deciding whether the
defence should be upheld (see par 3.2.2.3.2).
(7) See paragraph 3.2.2.3.1.

(8) The question refers to absolute and relative privilege. Make sure that you know the
difference between the two forms (see par 3.2.2.3.1).
(13) See paragraph 3.2.2.3.4
107

(17) See paragraph 3.2.2.4.3 and especially National Media Ltd v Bogoshi 1998 (4) SA
1196 (SCA).
(18) See paragraphs 2.2, 2.2.2, 2.3.2, 2.3.3, 3.3, 3.4, 4.1, 4.2, 4.3, 4.4.1, 4.4.2 and 4.4.3.
CONCLUSION In this study unit you studied defamation and noted the existence of other forms of
iniuria. Did you achieve all the learning outcomes?
108
30 unit
study
Forms of liability without fault: Damage
caused by animals; vicarious liability;
Consumer Protection Act 68 of 2008
PREFACE All the preceding study units dealt with instances where all five delictual elements (refer
to study unit 2 again) must, in principle, be present for delictual liability (if we ignore that unique
remedy, the interdict (study unit 25), for the time being). The following study unit deals with certain
important exceptions where fault (either intent or negligence) is not a requirement for liability. This is
known as ‘liability without fault’ or ‘strict liability’. The instances of strict liability that we shall deal with
are damage caused by animals; vicarious liability and certain provisions of the Consumer Protection Act
68 of 2008.
LEARNING OUTCOMES
– discuss the requirements for the actio de pauperie and apply them to a given factual situation
– discuss the requirements for the actio de pastu and apply them to a given factual situation
– define vicarious liability
– name three relationships where vicarious liability may apply
– name and discuss the requirements for an employer’s liability for a delict committed by an
employee
– name the requirements for liability of the owner of a motor vehicle for a delict committed by
the driver of the motor vehicle
– briefly explain the importance of the Consumer Protection Act 68 of 2008 for the law of delict
109
STUDY
Prescribed book
& chapter 11, paragraphs 2.1.1.1, 2.1.1.2, 2.1.7.2 and 2.1.7.4
& footnote 46
READ
Prescribed book
& chapter 11 paragraphs 1, 2.1.1.3, 2.1.1.4, 2.1.7.3 and 2.2
COMMENTARY
In this study unit you will learn about the origin and development of liability without fault
and you will study two common-law instances of liability without fault that are still
important in South African law.
In paragraphs 1.1 and 1.2 we discuss the predominance of the fault theory (ie the view that
there can be no delictual liability in the absence of either intent or negligence), as well as
the reaction to the given theory. In paragraph 1.3, justification for liability without fault is
examined. In paragraph 1.4, the general characteristics of liability without fault are given.
Read these paragraphs as background information, not for examination purposes.
Paragraph 2 deals with the South African law on liability without fault. This study unit deals
with paragraph 2.1.1, in which damage caused by animals is discussed. Study the
requirements for the actio de pauperie and the actio de pastu carefully so that you can name
and discuss them and also apply them to a given set of facts.
Paragraph 2.1.7 deals with vicarious liability (middellike aanspreeklikheid), that is, one
individual’s liability without fault (eg an employer) for a delict committed by another
individual (eg an employee). Study paragraph 2.1.7.1 (an introduction – memorise the three
relationships that can give rise to vicarious liability), paragraph 2.1.7.2 (where the
employer-employee relationship is discussed) and paragraph 2.1.7.4 (where the motor-car
owner – motor-car driver relationship is examined). You need only take note of paragraph
2.1.7.3 (the principal-agent relationship) for non-examination purposes.
Liability without fault is also created by legislation: paragraph 2.2. Paragraph 2.2.1 deals
with the importance of the Consumer Protection Act 68 of 2008 for the field of product
liability. Study this, and read the rest of paragraph 2.2 for non-examination purposes.
SELF-ASSESSMENT
(1) Discuss in detail the requirements for success with the actio de pauperie with
reference to case law, as well as the defences that can be raised against the action.
110
(2) In which instances is the actio de pastu applied?

(3) Discuss in detail the requirements for success with the acto de pastu with reference to
case law, and name the defences that can be raised against the action.
(4) Answer the following questions in respect of each of the factual situations described
below:
(i) What action is available to B in order to recover the damages?
(ii) Against whom does B institute the action?
(iii) How would you substantiate your answer?
(a) B is delivering mail to A’s house and A’s dog bites her.
(b) B plans to visit her friend, C, who is looking after A’s house. C mentions to
B that there is a vicious dog on the premises, but promises to have the dog
locked up before B arrives. B arrives at the appointed time, but on entering
the premises, the dog comes running around the corner of the house and
bites her leg.
(c) A’s cattle graze on B’s crops after one of A’s employees left the gate
between A and B’s farms open.
(5) Describe the concept ‘‘vicarious liability’’.

(6) Name three relationships to which vicarious liability applies.
(7) Name the requirements for an employer to be vicariously liable for a delict of his/her
employee.
(8) Name the requirements for vicarious liability that arises from the motor-car owner –
motor-car driver relationship.
(9) Briefly explain the importance of the Consumer Protection Act 68 of 2008 for the law
of delict.
FEEDBACK
(1) See paragraph 2.1.1.1.
(4) (a) (i) The actio de pauperie.
(ii) Against the owner, A.
(iii) All the requirements for the action are met: A is the owner of the dog, the
dog is a domesticated animal, B was lawfully on the premises, and the dog
acted contra naturam sui generis. There is no defence available to the
owner, because nothing is said about a third party provoking the animal or
being negligent in supervising the dog (see par 2.1.1.1).
(b) (i) The actio legis Aquiliae and action for pain and suffering
(ii) Against C.
(iii) The owner cannot be liable in terms of the actio de pauperie where a third
party was in control of the animal and acted negligently. The third party, C,
is liable because of her negligence (see Lever v Purdy 1993 (3) SA 17 (A),
par 2.1.1.1 and fn 46). The plaintiff must therefore institute ordinary
111
delictual actions for patrimonial loss (medical costs, etc) and pain and
suffering.
(c) (i) The actio de pastu.
(ii) Against A.
(iii) All the requirements for the action are met: A is the owner of the animals,
the animals caused damage by grazing the crops, and the animals acted on
their own volition. Note that the negligence of a third party (the employee)
does not exclude the owner’s liability (see par 2.1.1.2).
(7) See paragragph 2.1.7.2 (a), (b) and (c).
(9) See paragraph 2.2.1. (The Act provides for strict product liability under certain
circumstances.)
CONCLUSION In this study unit you studied liability without fault or strict liability for damages caused
by animals. We also examined the topic of vicarious liability.
This study unit also concludes your study of the general principles of the law of delict. We trust that you
enjoyed your studies and we wish you success in the examination.

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1 Scope of study and study material 1

1.1 Scope of study: introductory remarks

1.1.2 The concepts ‘‘delict’’ and ‘‘law of delict’’: general meaning

1.1.4 However, a wrongdoer is responsible for damage that he has

1.1.5 As a point of departure we will study the general

1.1.6 Concluding remarks

1.2 Study material

& tutorial letters (see par 1.2.1 below)

The study material is dealt with in detail below.

1.2.1 Tutorial letters

1.2.2 This study guide

1.2.2.2 Contents of the study guide

1.2.3 The prescribed textbook

1.2.3.2 Content of the prescribed textbook: an overview

1.2.3.3 Only certain parts of the textbook need to be studied

1.2.3.4 Marking your prescribed book

1.2.4 Case law

& read the first tutorial letter

Important additional introductory remarks

Studie-eenhede 4–14 / Study units 4–14

Studie-eenheid 24 / Study unit 24 Studie-eenheid 24 /

(4) What is the similarity between delict and breach of contract?

(1) See paragraph 1.

(b) See paragraph 1.

(4) See paragraph 2.

(1) Define the concept ‘‘act’’ or ‘‘conduct’’.

(6) What does the concept of voluntary conduct mean?

– describe the two steps involved in an inquiry into wrongfulness

In criminal law, the concept of unlawfulness is used for wrongfulness. In Afrikaans

What follows is a supplementary explanation to enable you to understand paragraph 1: As is

(1) ‘‘The determination of wrongfulness in principle comprises a dual investigation.’’

(1) Briefly describe the general or basic test for wrongfulness.

(6) ‘‘Owing to the fact that wrongfulness is established by a criterion of objective

– explain the concept ‘‘subjective right’’

In paragraph 4.3 possible further developments in respect of the doctrine of subjective

In addition, breach of a legal duty as a criterion for wrongfulness is dealt with.

(1) Is infringement of a subjective right the only test for wrongfulness?

– briefly describe the concept of a ground of justification with reference to an example

(1) What is a ground of justification? Briefly discuss with reference to an example.

(1) Define necessity.

constitutional dispensation. If we apply those principles to our question, the

(2) List the characteristics of consent as a ground of justification.

– explain when a statute authorises an infringement of interests

– explain the underlying notion of the doctrine of abuse of rights

– name the two forms of fault

(1) Name the two forms of fault.

Actions Intent Negligence

Actio legis Aquiliae

Action for pain and

(4) When is a person accountable?

Actions Intent Negligence

Actio iniuriarum Generally required for Generally insufficient for

(4) See paragraphs 1 and 2.

(1) Define negligence.

Quite a few aspects of this form of fault are discussed:

& chapter 3, footnote 540