ASSESSMENT FEEDBACK TUTORIAL LETTER

GUIDELINES FOR ANSWERS TO ASSIGNMENT QUESTIONS

Year 2024
Semester First Semester
Module Law of Delict
Module code LOD301/372

1. DETAILS OF LECTURER

Lecturer Adv Jacques Nieuwoudt

Office 101, The Village Square, c/o Oxford and Queen Streets, Durbanville, Western Cape, 7550

CPD Vorster – Director | S Totaram – Director | D Singh – Director | JJ Human – Director

Company registration number: 2004/031722/07

2. GUIDELINES FOR ANSWERS TO ASSIGNMENT QUESTIONS

Question 1 [10]

The framework for the assessment of this question should be based on:

- Willingness to suffer harm or run the risk of some harm [1]

- Must indicate consent in an obvious manner [1]

- Consent verbally, either expressly or by implication or tacitly by conduct [1]

- Consent must be given before harm [1]

- Given by person capable of expressing his will and who is person who will suffer harm [1]

- Must be given freely and voluntary [1]

- full prior knowledge of the nature and extent of harm is required [1]

- Medical procedures doctor must explain material risk in proposed treatment [1]

- Willing to suffer harm, both where harm is certain or dangerous activity [1]

- Consent must be lawful [1]

Question 2 [20]

To be delictual liable, there should be a factual and legal causal link between Y’s conduct and the harm
suffered by X, i.e. Y must have caused the harm suffered by X. [2]

• Factual causation: conditio sine qua non theory or “but for” test. Defendant’s conduct must have
been a necessary condition for plaintiff’s harm. International Shipping Co (Pty) Ltd v Bentley. [3]
• Legal causation: flexible test whether factual link is sufficiently strong and closely connected to
the conduct to say that it is fair, reasonable and just to hold the defendant liable for damages.
Look at circumstances of the case and relevant social policy. Tests Direct consequence,
reasonable foreseeability, adequate cause [3]

However, in this case, a novus actus interveniens: an independent, unconnected and extraneous factor or
event that is not foreseeable and which actively contributes to the occurrence of harm after the defendant’s
original harm has occurred. Causes break between conduct and harm. [5]

Facts similar to the case of S v Mokgethi case Court found second incident constituted a new intervening
cause because it had not been reasonably foreseeable. It had not been reasonably foreseeable that the
plaintiff, who had been warned of the dangers of not moving his position would not adhere thereto. Cause
remove too far from initial conduct [5]

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Although there is a factual causal link between the shooting and the death, there is no legal causation as
there was a novus actus interveniens. [2]

Question 3 [10]

General rule that an employer is vicariously liable, regardless of the absence of fault on the employer’s part,
for employees’ delicts committed in the scope of employment. [1]

In South African Law, the employer of an independent contractor is not vicariously responsible for the
wrongful conduct of a contractor. [1]

Reason: Independent contractor carries out a specific piece of work (location conduction opersi) and is not
normally subject to the control or direction of the employer when performing his duties. [1]

Stein v Rising Tide Productions CC court identified number of factors indicating not an employee: [2]

- nature of work

- existence of right of supervision

- manner of payment

- relative freedom of action in performing duties

- employer’s power of dismissal

- employee precluded from working for another

- employee required to devote particular amount of time

- employee obliged to perform duties personally

- Ownership of working facilities and whether employee has own tools and equipment

- place of work

- length of time of the employment

- intention of the parties

Langley Fox Building Partnership (Pty) Ltd v De Valence, damaged caused when a building contractor left a
temporary beam extending over a pavement, court ruled the liability of an independent contractor’s
employer is governed by the ordinary principles of negligence, and the question is whether the harm was
reasonably foreseeable and preventable by the employer. [2]

Facts of scenario is similar to the case of Chartaprops 16 (Pty) Ltd v Silberman. Court applied the rule that
obliges a person to exercise the degree of care that the circumstances demand. [2]

Superspar would therefore not be vicariously liable for the harm AB Cleaning caused. [1]

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Question 4 [20]

The following framework should be used to answer the question:

1. The concept of negligence: Evaluating conduct according to a standard that is acceptable to

society – “reasonable person”. [2]

2. Characteristics of a reasonable person: Fictitious concept that expresses the standard of

reasonableness. Standard of the ordinary individual who takes reasonable chances and
reasonable precautions to protect interests, while expecting the same conduct from others. [4]

3. The test for negligence: Discuss test according to Kruger v Coetzee. Foreseeability and
preventability. [4]

4. Attributes that influence the standard of care: Beginners, experts and children. [3]

5. Proving negligence: Plaintiff bears onus on a balance of probabilities [2]

6. The student needs to make the above-theory applicable to the facts provided [2]

7. The student needs to specifically advise the parents regarding the negligence of the role
players and that they could be held delictually liable due to their negligence. [2]

8. Advice to client [1]

Question 6 [15]

Marks are allocated on an overall impression and review of your answer based on the following criteria:

a. Topic chosen to do research on. [1]

b. Defining the principle/rule/law. [2]

c. Setting out elements/requirements of the principle. [2]

d. Remedies, justification or defences. [2]

e. Supporting the topic or argument with EBSCO and other sources. [2]

f. A well thought through and debated conclusion. [3]

g. Layout of answer. [1]

h. Indication and verification that Sabinet, EBSCO and other referencing sources were used. [1]

i. Bibliography, using the SBS Harvard Style referencing, indicating references used. [1]

Assignment Total: 75 Marks

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3. CONCLUSION

Congratulations! You have now completed the first assignment for this semester. I shall provide you with
general feedback on this assignment. Good luck with your studies and preparation for the examination.

Regards,

Adv Jacques Nieuwoudt