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CLS cc Delict Pack 1 LAW OF DELICT Private law: regulates relationships between individuals in a community. Role of delict: indicate which interests are recognized law, under what circumstances they are protected against infringement and how a disturbance in the balance is restored. Definition of de...

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LAW OF DELICT Private law: regulates relationships between individuals in a community. Role of delict: indicate which interests are recognized by law, under what circumstances they are protected against infringement and how a disturbance in the balance is restored. Definition of delict: a delict is an act of a person, which in a wrongful and culpable way causes harm to another. 5 requirements: 1. Act 2. Wrongfulness 3. Fault 4. Causation (factual and legal) 5. Damage (damnum iniuria datum) All must be present before conduct can become a delict. Difference between delict and a crime: Delict: 1. Protects private interests (private law) 2. The aggrieved party institutes the action 3. Objective: claim damages as compensation 4. Can’t have attempted delict Crime: 1. Protects public interest (public law) 2. The state prosecutes 3. Objective: punish the criminal 4. Can have attempted crime Both are wrongful culpable acts causing damage Delict and breach of contract: Delict: 1. Excludes non-fulfillment of a duty to perform (real right) 2. Primary remedy = damages Breach of contract: 1. Breach = non-fulfillment of a contractual obligation to perform (personal right) 2. Primary remedy: performance of the contract

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Delict, the Constitution and fundamental rights: The Constitution is supreme and conduct inconsistent with it is invalid. Fundamental rights can be limited by the law of general application, but only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity equality and freedom (Section 36). Courts must promote the values that underlie this society. International law must be taken into account. Direct application: the fundamental rights relevant to or connected with the law of delict include = right to property, life, freedom, privacy, dignity, equality, freedom of expression, freedom of religion belief and opinion, the right to assembly, demonstration, picket, petition, freedom of association, freedom of trade, occupation and profession. The state must protect fundamental rights and not infringe them except unless the requirements for Section 36 have been complied with. In case of an infringement that is not justified, anyone who is entitled to relief can approach a competent court. Indirect application: all private law rules, principles and those regulating the law of delict are subject to chapter 2 and applies in particular to the so-called “open-ended or flexible” delictual principles. For example, the boni mores test for wrongfulness where policy considerations and factors such as reasonableness, fairness and justice may play an important part.

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THE ACT (CONDUCT) Consists of a voluntary human commission or omission: Elements: 1. Human act: where an animal is used as an instrument a human act is still present. A juristic person can act through its agents (company) and be held delictually liable for its actions. Gijzen: held – delictual liability can occur without there being an act on the part of the defendant, in the case of land subsistence cases. Such an act must be wrongful: an act and its consequences may be separated from each other in time and space, but there always has to be an act. 2. Voluntary conduct: the act must have been performed voluntarily – the wrongdoer must have had control over his muscular movements (i.e. If it is susceptible to control b the will of the person involved). One’s voluntary conduct does not have to be willed or desired, as can be seen in the case of S v Russell: X forgot to warn others that an electric current had been switched on. Someone was electrocuted. Russell stated that he wasn’t guilty because he hadn’t willed or desired the outcome. Court held: that the test was whether he was able to utter a warning = GUILTY. 3. Commission and Ommission: conduct can be in the form of a commission or omission. Liability for an omission is in general more restricted than liability for a positive act (commission). The law is hesitant to find that there was a legal duty on someone to act positively and so to prevent damage to another. The Defence of Automatism: The voluntary conduct on the part of the defendant is a requirement for delictual liability. The defendant could argue that the conduct complained of doesn’t satisfy the requirement of voluntariness. This is where someone acted mechanically = sleep, unconscious, fainting fit, absolute compulsion (X grabs Y’s hand and stabs P using Y’s hand), epileptic fit, serious intoxication, black out. If these are present a person is incapable of controlling his bodily movement = purely mechanical action and that person raises the defence of automatism

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Molefe: the defendant doesn’t bear the onus to prove that he was in a state of automatism, its for the plaintiff to prove that the defendant acted voluntarily. Dhlamini: X was sleeping on the floor in a room with others when he had a nightmare; he then stabbed and killed Y with a knife while under the influence of his dream. He was not convicted of any crime. Mkize: X stabbed and killed Y with a knife while X was having an epileptic fit, he was acquitted of murder. Du Plessis: X was charged with negligent driving as he injured a pedestrian. He was 72 years old and experienced a black-out due to low blood pressure. He was found not guilty.

In respect of sane automatism (where it’s not a consequence of mental illness) the onus is on the plaintiff to prove that the defendant has acted voluntarily and therefore not mechanically. Automatism doesn’t mean that there’s no voluntary act whatsoever by the defendant which caused the damage, but only that the conduct in question wasn’t voluntary. Antecedent liability: The defence of automatism will not succeed if the defendant intentionally created the situation in which he acts involuntarily in order to harm another (actio libera in causa). The defendant may not successfully rely on the defence of automatism where he was negligent with regard to his automatic conduct. This is where the reasonable man would have foreseen the possibility of causing harm while in a state of automatism. E.g. drinking while knowing or reasonably foreseeing that you will later drive a car – knowing you may suffer an epileptic fit but still driving. Victor: X was convicted of negligent driving despite the fact he caused the accident. During an epileptic fit, Victor collided with a pedestrian and another car as the evidence revealed. He’d been suffering from epileptic fits for the last 13 years and had insufficient reason to believe he would not have a fit on that day.

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WRONGFULNESS For liability to follow an act, prejudice must be caused in a wrongful or unreasonable manner. Without wrongfulness defendant cannot be held liable. Determination of wrongfulness is essentially a dual investigation, looking at: 1. Was there an infringement of a legally protected interest – the act must have a harmful consequence. 2. If the interest has been prejudiced, legal norms are used to determine if it occurred in a legally reprehensible manner (unreasonable manner) – boni mores test. Act and consequence: An act is only delictually wrongful when it has as its consequence the factual infringement of an individual interest. An act on its own without a harmful consequence can never be held delictually wrongful – e.g. X races down main street at 160 km in peak hour traffic, his act isn’t considered wrongful in delict as there has been no infringement of an interest. An act and its consequence are always separated by time and space. Pinchin v Santam Insurance Co Ltd:

A pregnant woman was involved in a car accident caused by the defendant’s negligence. When the child was born it was found to suffer from serious brain damage. Compensation was claimed from the defendant on the child’s behalf. But at the time of the defendants act the child was in ventre matris and as a result the child had no legal personality and therefore no legally protected interest that could be infringed. The judge – was of the opinion that the child did have an action but it failed because there was no evidence that the accident caused the brain injuries. The judge based his view on the nasciturus fiction – an unborn child is regarded as having been born whenever it’s in the child’s interests.

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Joubert argues: it’s unnecessary to rely on the nasciturus fiction to find that the child would have an action – because the act and its consequences are separate both in time and space – the child need not have legal capacity at the time of the act. The defendant’s conduct resulted in a harmful consequence much later. In RAF V Mtati it was held that the nasciturus fiction does not always offer a solution in all circumstances. BONI MORES TEST: BASIC TEST FOR WRONGFULNESS Boni mores test: The legal convictions of the community (boni mores test) as the basic test for wrongfulness: The general norm to see if an infringement of interests is unlawful, is the legal convictions of the community = boni mores. This is an objective test. (Steenkamp NO) Basic question: whether according to the legal convictions of the community and in light of all the circumstances of the case the defendant infringed the interests of the plaintiff in a reasonable or unreasonable manner. The application of the Boni Mores test = the ex post facto weighing up of the interests of the defendant actually promoted by his act and those which he infringed. (Tommi Meyer) The court must weigh the conflicting interests of the defendant and plaintiff in light of all the circumstances to decide whether the infringement of the plaintiff’s interests was reasonable or not. This is done by looking at factors: the foreseeable loss, the costs to prevent loss, the motive of the defendant, extent of the harm etc. Subjective factors The objective nature of the Boni mores test appears from the fact that subjective factors such as the defendant’s mental disposition, knowledge, and motive normally don’t play a role in determining wrongfulness. To determine wrongfulness it’s the weighing up of interests to determine whether the defendant acted reasonably or not and subjective factors are normally irrelevant. In exceptional circumstances subjective factors do play a role in determining wrongfulness – a defendant who plants deciduous trees on the boundary of his property for the sole purpose of injuring his neighbour = wrongful.

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Therefore, an improper motive for the sole purpose of injuring another will also render reasonable conduct, unreasonable. The fact that the defendant actually knew or subjectively foresaw that he plaintiff would suffer damage as a result of his conduct is taken into consideration in determining wrongfulness in cases of pure economic loss or omissions. Application of boni mores test: Boni Mores test is the basic test for wrongfulness but still functions at a supplementary level because the convictions of the community concerning what is reasonable or unreasonable have over time found expression in common law, statutory norms, grounds of justification etc. so its seldom necessary to apply the Boni Mores test directly. There are 2 ways the Boni Mores test is applied as a supplementary test for wrongfulness: 1. When the wrongfulness of the defendants conduct doesn’t appear from the violation of a pre-existing norm or the lawfulness thereof doesn’t appear from the presence of a recognized ground of justification. E.g. champion swimmer sees a drowning child and does nothing, or if a body builder would not be put in danger of helping an old granny who’s being beaten up by a younger and smaller person, or for example, the case of Ewels when an off duty police officer failed to stop an assault.

2. When borderline cases need refinement. In other words, to determine if the defendant transgressed the limits of private defence by his conduct, or if consent to violation of legal protection of interests should be tolerated etc. a good example from case law is S v Goliath under compulsion from Y and fearing for his own life helped Y to kill Z – X raised the defence of necessity. So look to more precise methods of determining wrongfulness: a) Infringement of a subjective right b) Non-compliance with a legal duty to act

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DOCTRINE OF SUBJECTIVE RIGHTS: Tommie Meyer Case: the courts accepted the doctrine of subjective rights = wrongfulness consists of the infringement of a subjective right. Said there was a duel relationship: •

Subject-object relationship: provides the holder of the right with the power to use, enjoy and alienate the object of his right. The limits of his rights are determined by the law.

•

Subject-subject relationship: the holder of the right can enforce his powers over a legal object against all other legal subjects

Nature of subjective rights: 1. Real rights: ownership over things 2. Personality rights: good name 3. Personal rights: payment etc 4. Immaterial property rights: intellect/poem/artwork 5. Personal immaterial property rights: earning capacity Look at whether the right has been infringed: was the holder of the right was disturbed in the use and enjoyment of his right (if the subject-object relationship has been disturbed and whether the infringement complained of took place in a legally reprehensible manner. If established the conduct is wrongful. WONGFULNESS AS A BREACH OF LEGAL DUTY: First, one has to ask whether, according to the boni mores test, a legal duty has been breached. In cases of omissions or the causing of pure economic loss, instead of asking whether a subjective right has been infringed, it’s better to ask whether the defendant has a legal duty to prevent the harm. In Van Eeden v Minister of Safety and Security the court stated that the test is one of reasonableness and the defendant is under a legal duty to act positively and if it’s reasonable to expect the defendant to take positive steps to prevent harm. Such a duty is often referred to as a duty not to act negligently as seen in the case of Shabalala v Metrorail.

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LIABILITY FOR AN OMMISSION: General rule: a person doesn’t act wrongfully in terms of the law of delict where he fails to act positively to prevent harm to another. This means that there is no absolute duty to prevent loss. Liability follows only if the omission was in fact wrongful – where a legal duty rested on the defendant to act positively to prevent harm from occurring and he failed to comply with that duty. PRIOR CONDUCT: A person acts prima facie wrongfully when he creates a new source of danger by means of a commission and then fails to eliminate that danger, with the result that harm is caused to another person. Prior conduct isn’t a prerequisite for the existence of a legal duty – but at one stage this was the only category where liability was imposed on a failure to act. The requirements for legal duty was first introduced in Halliwell case which stated that prior conduct had to be present before one would be liable for an omission. MUNICIPLITY CASES: Halliwell v JHB municipal council: The council laid cobblestones adjacent to tramlines in road surface (experiment) – these wore smooth. H was in his horse cart, they slipped; injuries: AD: where road authority constructs, in such a way as to introduce a new source of danger which would other wise not have existed, it must take due steps to guard against that danger. I.E. with the creation of a new danger (prior conduct) legal duty arises Failure to comply with the legal duty = OMMISSION.

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Silva’s Fishing Corporation v Maweza (1957): The defendant was the owner of a fishing fleet, the engine of one of his boats failed and the boat drifted out to open sea for 9 days during which the defendant failed to take steps to rescue it and it was eventually lost in a storm. The plaintiff’s husband drowned and she instituted action against the defendant. Majority: 3/5: prior conduct – present since the defendant created a potentially dangerous situation by providing the boat and consenting to the fishing run from which he would benefit financially. Therefore a legal duty rests on the defendant to take steps to rescue the crew. Minority: STEYN JA – was critical of the Halliwell approach ….. That liability for omissions was based on prior conduct ONLY. Regal v African Superslate (1963): The applicant applied for an interdict to compel the respondent, his neighbor who lived further up the river, to take steps to prevent slate being washed down by the river onto the applicants land. The court decided that prior conduct WASN’T AN INDESPENSIBLE REQUIREMENT FOR A LEGAL DUTY TO ACT. It was suggested that you look to see if the loss could be prevented by reasonable measures. In this case the steps that would have been necessary to prevent the washing down of the slate – building of a dam wall – not in relation therefore there was no duty on the respondent to prevent the loss. Problem: in this case it was thought that the rejection of prior conduct was limited to interdicts. Minister of forestry v Quathlamba (1973): In this case the AD had to decide whether a landowner was liable for damage resulting from his failure to control a fire, which, through no action of his, broke out on his property. The court 1st had to decide whether the defendant was under a duty to control the fire – judge held that a mere omission did not found liability – LIABILITY FOR AN OMMISSION WAS DEPENDENT ON THE EXISTANCE OF A LEGAL DUTY TO ACT. The law does in certain circumstances, where there has been no prior conduct, impose a duty on the landowner to control a fire, which breaks out on his land. Confirmed the Regal decision – PRIOR CONDUCT IS NOT THE ONLY CRITERION FOR ESATBLISHING A LEGAL DUTY.

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Minister of police v Ewels (1975) NB Here the respondent claimed damages from the appellant on the ground that a policeman in the service of the appellant failed to take steps to prevent the respondent from being assaulted and injured. In this judgment, the generally accepted view that wrongfulness is determined by the legal convictions of the community has now been applied to omissions. It’s a more flexible approach – legal duty arises when the legal convictions of the community demand as much. Failure to comply with this duty = wrongful omission. Any doubt that prior conduct isn’t indispensable for the existence of a legal duty to the municipality cases was removed in: Van der Merwe Burger v the municipality of Warrenton (1987) Held: prior conduct as a criterion for establishing a legal duty was abandoned in Ewels. So the court applied the legal convictions of the community test = the municipality should have foreseen the damage and was liable. Rabie v Kimberly municipality (1991): A municipality, which had been aware that a traffic light was malfunctioning but had failed to properly investigate and repair it, was held liable for damages resulting from an accident at the intersection. Cape Town Municipality v Bakkerud This case confirmed the judgment in EWELS and held that legal convictions of the community can even, in absence of “prior conduct”, place a legal duty on the municipality.

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CONTROL OF A DANGEROUS OBJECT: Control over a dangerous (or potentially dangerous) object (fire etc) can be a factor in determining whether a legal duty rested on a person to prevent someone being injured by a particular situation. 2 relevant questions: 1. Whether ...