Delict Cases Part 1 PDF PDF

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Delict Cases Part 1DE v RH 2015 (CC) ..................................................................................................................................... 3Hoffa, NO v SA Mutual Fire and General Insurance Co LTD 1965 (C) ....................................................... 4Carmic...

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Delict Cases Part 1! DE v RH 2015 (CC)"..................................................................................................................................... 3! Hoffa, NO v SA Mutual Fire and General Insurance Co LTD 1965 (C)"....................................................... 4! Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (CC)"................................................................................................................................................... 5! Dendy v University of the Witwatersrand 2005 (W)".................................................................................... 7! Fose v Minister of Safety and Security "..................................................................................................... 9! H v Fetal Assessment Centre 2015 (CC)"................................................................................................... 10! Molefe v Maheng 1991 (SCA)"..................................................................................................................... 11! Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (SCA)".......................................... 12! Minister van Polisie v Ewels 1975 (A)"......................................................................................................... 13! Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (T)"....................................................... 14! Deneys Reitz v SACAWU 1991 (A)"............................................................................................................. 15! Four Ways Shopping Mall v SACAWU 1999 (WLD)"................................................................................... 16! Road Accident Fund v Mtati"....................................................................................................................... 17! Brooks v Minister of Safety and Security 2009 (SCA)"................................................................................ 18! Loureiro and Others v iMvula Quality Protection 2014 (CC)"...................................................................... 19! ZA v Smith and Another 2015 (SCA)".......................................................................................................... 20! Thaba v Haffajee 2016 (GP)"....................................................................................................................... 21! Clarke v Hurst NO and Others 1992 (D)"..................................................................................................... 22! Administrateur, Transvaal v Van der Merwe 1994 (A)"................................................................................. 23! Minister of Safety and Security v Van Duivenboden 2002 (SCA)"............................................................... 24! Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003 (SCA)".... 25! Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (SCA)".......... 26! Stewart and Another v Botha and Another 2008 (SCA)"............................................................................. 27! Shabalala v Metrorail 2007 (W)"................................................................................................................... 28! Harrington NO and Another v Transnet Ltd t/a Metrorail and Others 2010 (SCA)"..................................... 29! Holm v Sonland Ontwikkeling 2010 (GNP)"................................................................................................. 30! Jacobs v Chairman, Governing Body, Rhodes High School, and Others 2011 (WCC)"............................. 31! McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel 2012 (GNP)" 33! Lee v Minister of Correctional Services 2013 (CC)".................................................................................... 34! The Minister of Justice and Constitutional Development v X".................................................................... 35! BS v MS and Another 2015 (GP)"................................................................................................................ 36! Stedall and Another v Aspeling and Another 2018 (SCA)".......................................................................... 37! Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (A)".................................................................. 38! S v Goliath 1972 (A)".................................................................................................................................... 39! Kgaleng v Minister of Safety and Security 2001 (W)".................................................................................. 40! Mugwena and Another v Minister of Safety and Security 2006 (SCA)"....................................................... 41! Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (SCA)"....................................................... 42!

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Feni v Kondzani 2007 (EC)"......................................................................................................................... 43! Bester v Calitz 1982 (O)".............................................................................................................................. 44! Castell v De Greef 1993 (C) "....................................................................................................................... 45! Castell v De Greef 1994 (C) "....................................................................................................................... 46! Hattingh v Roux NO and Others 2011 (WCC)"............................................................................................ 47! Jameson’s Minors v CSAR 1908 (TS)"........................................................................................................ 48! Burger v Administrateur, Kaap 1990 (C)"..................................................................................................... 49! Christian Education South Africa v Minister of Education 2000 (CC)"........................................................ 50! Regal v African Superslate 1963 (A)"........................................................................................................... 51! Gien v Gien 1979 (T)"................................................................................................................................... 52! Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 (T)"................................................... 53! Van Rensburg and Another NNO v Nelson Mandela Metropolitan Municipality and Others 2008 (SE)".....54! Allaclas Investments (Pty) Ltd v Milnerton Golf Club 2008 (SCA)".............................................................. 55! Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home Affairs 2010 (WCC)".......................................... 56! Oosthuien v Van Heerden t/a Bush Africa Safaris 2014 (GP)"..................................................................... 57

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DE v RH 2015 (CC) Facts: Mr DE (applicant) sued Mr RH (respondent) for damages on the basis that Mr RH had an extramarital affair with Mr DE’s former wife. The action was based on general remedy for the infringement of personality rights, specifically insult to his personality, and loss of comfort and society of his spouse. In the High Court, action for claim for insult successful, but loss of comfort and society could not be proved (decided there was no evidence that the adultery had called the breakup of the marriage). Appeal to SCA, which recognised our law had allowed for claim of insult against a third party in the case of adultery, however it raised the question of whether such a claim should continue to exist. The court concluded that the claim was outdated and therefore abolished it. Mr DE appealed the decision to the CC, contending that the claim serves an important purpose of protecting the innocent spouse’s dignity, and it preserves the institution of marriage.

Legal Question: Is a claim for damages based on adultery outdated? Was adultery still wrong according the boni mores

Ratio decidendi: The court considered Green v Fitzgerald where it was stated that authorities take no notice of the offence of adultery, and that is has ceased to be regarded as crime. The court then found that many actions for claiming damages based on adultery have been abolished in multiple foreign countries, including England, New Zealand, Australia, and Scotland. The court then stated that the law can remove all legal obstacles that impede meaningful enjoyment of married life, but it cannot be expected to prop up a marriage that is weakening or disintegrating through no fault of the law. The judge stated that wrongful in Afrikaans loosely meant the ‘community’s general sense of justice’ and that current trends show a softening in attitudes towards adultery. The court also stated that the innocent person’s rights are do not necessarily weigh less because of adultery. The court further found that the threat of delictual liability was an intrusion on the right of a consenting individual to have a sexual relationship with whomever s/he chooses. The court conceded that the innocent party’s dignity is infringed, but it was weighed against the infringement of the fundamental rights of the adulterous spouse and third party’s to privacy, freedom of association, and freedom of security of the person. The judge concluded that the act of adultery by a third party lacks wrongfulness for purposes of a delictual claim of contumelia and loss of consortium and thus it is not reasonable to attach delictual liability to it.

Court order: The appeal was dismissed. Leave to appeal was granted

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Hoffa, NO v SA Mutual Fire and General Insurance Co LTD 1965 (C) Facts: Plaintiff acted in her capacity as executrix testamentary in the estate of her dead husband (deceased). Plaintiff’s claim was for damages arising out of a motor vehicle collision in which the deceased was a passenger. It was averred in the declaration that the collision was as a result of negligence of the other driver, G. As a result of the collision, the deceased was said to have been seriously injured, and the plaintiff claimed to have suffered damages for the sum of R10, 383.10. R10 000 was claimed by way of general damages in respect of shock, pain, suffering, loss of amenities of life and disability (a restriction of wrist of forearm movement). The damages were claimed against the defendant insurance company. Legal question: Was the non-patrimonial claim an asset in the deceased’s estate, or had it died with him? Ratio decidendi: The judge ruled that in our law the actio ex lege Aquilia is an action for the recovery of patrimonial loss and would not include within its ambit a claim for compensation for pain and suffering, and loss amenities of life. The judge reasoned that the objective of damages is to compensate the person who sustained injuries or loss. The judge argued that if not for this purpose, the award of damages could only serve the purpose of swelling the inheritance accruing to the heirs of the injured party. Therefore it was concluded that the plaintiff’s claim for general damages must accordingly fail. Court order: Judgment for plaintiff in an amount of R383.10, with the defendant to pay the costs of the action up to the date of the payment into Court (after which the plaintiff would pay the costs). Note: This is the first case in which the action for pain and suffering was identified as a separate action, independent of the actio legis Aquiliae and the actio iniuriarum. It was also decided that the action, at least before litis contestatio, was not actively heritable. It was decided that it is of importance that the court, in determining whether personality injury is present, did not follow a completely subjective approach (ie not only the subjective injury to feelings of the prejudiced person plays a role in this regard). !

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Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (CC) Facts: In 1995, the applicant (28 year old female) was brutally assaulted by C at the home of Mrs G. C had previously been convicted on charges of housebreaking and indecent assault, for which he had served suspended periods of imprisonment. C was also facing a charge of rape at the time of the attack on the applicant. Upon hearing of C’s charge of rape and previous convictions, G asked the police to keep C in custody pending his trial, after which the police advised her to discuss the matter with a public prosecutor, who in turn told her nothing could be done unless C committed another offence. After a suicide attempt by C and an interview with the prosecutor that revealed serious sexual deviation, C was re-arrested and sent to a psychiatric hospital for observation. C then appeared in court again, and a report from the hospital recorded that C was mentally sound at the time of the rape, and was not a danger to society and was thus not recommended to be kept in custody. At this time the Attorney-General (who possessed the documents reflecting the seriousness of the rape and extent of C’s sexual deviation) had not instructed the prosecutor to oppose C’s bail, and thus his release was not opposed. G once again spoke to the senior prosecutor, who again informed her that she was unable to do anything about C. A few days later C attacked the applicant at G’s house, seriously wounding her. The applicant thus brought a delictual action in the High Court for damages against the two respondents (second respondent being the Minister of Justice) for the injuries she sustained during the attack. The applicant’s case was that the members of the police and public prosecutors had failed in their legal duty to act in order to prevent C from causing her harm. High Court ruled that there was no evidence upon which a court could reasonably find that the said duty existed and that the police and prosecutors had acted wrongly, and thus ordered absolution from the instance. The applicant then launched an appeal to the SCA, which dismissed the appeal with costs. The applicant then launched an appeal to the CC. Before the CC, the applicant contended that the police and prosecutors involved had a duty to safeguard her constitutional right to life, the respect for and protection of her dignity, freedom and security and privacy. It was further submitted that the police and prosecution services were agencies of the State responsible for the discharge of its constitutional duty to protect the public in general and women in particular against violent crime, and that based on the facts of the case, the applicant was entitled to damages due to their failure to do so. Legal question: As there is no common law duty for police and public prosecutors to take a proactive approach to protect the public, should the courts develop the common law according to S 39(2) of the Constitution? Ratio decidendi: The judge opined that the courts a quo had wrongfully assumed that the pre-constitutional test for determining the wrongfulness of omissions in delictual actions should be applied, and had overlooked the demands of S 39(2) of the Constitution. The judge reasoned that the obligation for courts to develop the common law, does not suggest that in each and every matter concerning common law they should ‘embark on an independent exercise as to whether the common law is in need of development’, but there might be circumstances where a court is obliged to raise the matter on its own. The court discussed that where common law is needing development, there are two stages to undertake. The first is to consider whether the existing common law, having regard to the objectives of S 39(2), requires development in accordance with these objectives. If this inquiry

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leads to a positive answer, the second stage is concerned with how such development should take place to satisfy the objectives of S 39(2). When determining if there was legal duty on the police officers to act, the judge in Minister of Law and Order v Kadir referred to weighing and striking the balance between the interests of parties and the conflicting interests of the community. It was added that the exercise must be carried out in accordance with S 39(2). The judge referred to the European Convention on Human Rights (Convention) where it states that ‘everyone’s right to life shall be protected by law’. The court also noted that State has positive obligations to enforce human rights. E.g. in the Police Act (S 5), and the IC (S 215). The judge found that Klein (the investigating officer in the rape case) was aware of many facts that suggested C would pose a risk of another woman being assaulted. Thus Klein’s advice to the prosecutor that C be realised was unlawful. The judge also reasoned that, subject to the facts of each particular case, should a prosecutor have reliable information that an accused is a threat should they be released on bail, and fail to bring such information to the attention of the courts, they can be held liable if the accused implements the threat. Court order: The appeal was upheld with costs. Note: Following aspects of the decision are important: 1. The CC stated that in terms of S 39(2), there is a general obligation on courts to develop the common law where the common law deviates from the values of the constitution. 2. This general duty however does not give judges carte blanche (complete freedom) to change the common law arbitrarily and that the development of the common law must take place within its own paradigm. A judge, when exercising his power to alter the common law, must be mindful of the fact that the major engine for law reform should be the legislator, not the judiciary. 3. The general duty does not mean that the court must in each and every case where the common law is involved embark on an independent exercise as to whether the common law is in need of development. An investigation can only take place where a party guests such or where the courts of its own accord deems it necessary. Such investigations consist of a two pronged approach: • Firstly, is to consider whether the existing common law requires reconsideration in accordance with the constitutional objectives, • And if so, how such development is to take place. 4. In casu the BoR entrenches the right to life, human dignity, and freedom and security of the person, and because the Bill binds the state, there is a duty imposed on the state not to infringe these rights. In some circumstances (e.g. an omission), there may also be a legal duty on the state to take positive steps to protect these rights. 5. In terms of traditional delictual principles, the determination of a legal duty to prevent harm to others occurs by weighing the interests of the parties in the light of the public interest. This is a proportionality exercise depending on the interplay of various factors which must be carried out in accordance with the BoR. 6. The court proposed that the net of unlawfulness may be cast wider because constitutional obligations on the state to respect, protect, promote, and fulfil the rights in the BoR. A consequence of such an approach may be to accentuate the objective nature of wrongfulness as an element of delictual liability (and that it be more broadly defined), as well as to allow fault and legal causation to play a greater role in limiting liability, which would allay the fear for unlimited liability of the state. 7. Although according to the court prosecutors always have owed a duty to carry out their public functions independently and in the interest of the public, the determination of a legal duty (for the purposes of the law of delict) will depend on the circumstances. 8. The court opined that in determining factual legal causation an objective test must be applied, namely whether a reasonable person would have acted differently.!

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Dendy v University of the Witwatersrand 2005 (W) Facts: Plaintiff ...