Marks, ‘Question No Examiners 1 2 FOR USE BY EXAMINATION INVIGILATOR Saath +20 Sect i 1 byect z 3 a ‘Number of paper $ Date of examination Examination centre Total FINAL §=% PVL3703 (474831) U NISA:—~ October/November 2019 LAW OF DELICT ‘STUDENT NUMBER TOENTITY NUMBER I WARNING 1 ‘A candidate who witout authonsation takes cto, the fxommavon venue any book. document of object which coud assist hen mn the examination and does ret Nand ‘ver sich matenal 19 the mviglatoc before the ofc Commencement of the examnation wil be gully of Sntengng the Unwersitys examnation regulstons 3nd wit ‘be labioto punsiiment as determined by Count Rough wark may be done only onthe exemnaion queston ape and must be labelled a5 such [No notes may be made on any part of the body, such as the hends orn any garment meee pei en pooner preairaera stat aceite PLEASE COMPLETE THE ATTENOANCE REGISTER ON THE BACK PAGE, TEAR OFF AND HAND TO THE InviGlLATORUNIVERSITY EXAMINATIONS. UNIVERSITEITSEKSAMENS Cd UNISA Tex PVL3703. (ara) oseberMvember 2010 Law of Delict Duration 2 Hours 100 Marks mautnens saat oR RAED WSF MAHOMED SECOND PROF M MOKOTONG closed book tama, ‘This examination question paper remains the property of the University of South Africa and may not be removed from the examination venue This paper consists of 21 pages plus instructions for the completion of a mark-reading sheet. STUDENT NUMBER - STUDENTENOMMER INSTRUCTIONS | This paper consists of Section A: Multiple-choice questions (to be answered on the mark-reading sheet) and Section B: Fill-in questions (to be answered on the fill-in question paper) You will not receive an ‘examination book ‘You must hand in the complete examination paper plus the mark-reading sheet ‘The unique number to be filled-inon the mark-teading sheet 1s 474831. ‘Answer all the questions in the designated spaces only Answers outside such spaces will not be read Do not write in the margins - this space 1s reserved forthe examiners Do your rough work on page 2. This page will not be read by the examiners, ‘This paper counts 100 marks Divide your time accordingly Plan each answer carefully before you wrte t down and refer to the relevant authority whenever possible NB: PLEASE COMPLETE THE ATTENDANCE REGISTER ON THE BACK PAGE, TEAR OFF AND HAND TO THE INVIGILATOR. NB: THE EXAMINERS ACCEPT RESPONSIBILITY FOR THE CORRECTNESS OF ONLY THE ENGLISH VERSION OF THIS EXAMINATION PAPER.PVL3703 October/November 2019 SECTION A: MULTIPLE-CHOICE QUESTIONS NB ANSWER THESE QUESTIONS ON THE MARK-READING SHEET! Please ALSO circle the correct alternative to each MCQ clearly on this question paper This is an additional precautionary measure in the event that your mark- reading sheet 1s misplaced Unique number: 474831 1. Which one of the following remedies 1s instituted for personality infringements? oN The acti legis Aquilae The actio munarum The action for pain and suffering The interdict (2) 2. Which of the following statements is incorrect with regard to the defence of automatism? 1 2 3 Arrefiex movement may cause a person to behave involuntanly and he/she may rely ‘on automatism ‘According to Van der Merwe and Oliver, automatism does not exclude conduct in delict ‘A person may not rely on automatism if he/she intentionally created the situation in which he/she behaves involuntary ‘The person relying on sane automatism in a delictual case, bears the onus of proving tt (2) [TURN OVER]PVL3703 ‘October/November 2019 3 Mpho plants a bomb in a busy restaurant Before the bomb explodes and causes damage, it 1s discovered and rendered harmless Which of the following statements 1s correct with regard to Mpho's act? 1 Mpho's act s delictually wrongful 2 Mpho's act is not delictually wrongful 3 Even though Mpho's act s delictually wrongful, no delict was committed 4 Mpho had the intention to cause harm, therefore he committed a delict (2) 4 In which one of the following judgments, did the court accept that wrongfulness consists in the infringement of a night, breach of a legal duty, and the reasonableness of holding a defendant lable? 1 2 3 4 Minister van Polisie v Ewels 1975 3 SA 590 (A) Telematnx (Pty) Ltd Ya Matnx Vehicle Tracking v Advertising Standards Authonty SA 2006 1 SA 461 (SCA) Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) Le Roux v Dey 2011 (3) SA 274 (CC) (2) 5 _ In which of the following circumstances may X rely on “private defence"? 1 2 X, a prisoner whose prison term has expired is not released in order to escape prison, X assaults the guard who refuses to release him ‘The owner of a farm Z, while placing his hand on his nife, tells X that he 1s trespassing on his land and that if he does not leave within the next hour, he will forcefully remove him X immediately reacts by stnking Z with a knife X1s attacked and bitten while playing with the neighbour's dog X reacts by stnking the. dog with a stick injuring it A policeman with a valid warrant of arrest for X, arrests X X resists the arrest and stnikes the policeman injuring hin (2) 6 Which of the following statements 1s correct with regard to the requirements of consent? 1 There must be an agreement between the person consenting (the injured person) and the actor The person giving the consent must have full legal capacity to act Mere knowledge of the nsk of harm 1s sufficient for the requirement of ‘appreciation’ of the nsk of harm The person consenting must be able to express his will (2) {TURN OVER]PVL3703 October/November 2019 7 Humbulani and Patricia are neighbours Humbulani often has quarrels with Patricia and does not like her Humbulani builds a large shed for his chickens on his property in order to spot! Patncia’s beautiful view It appears that Humbulani did indeed need a shed, but that he could have easily built it elsewhere on his property Which of the following statements 1s correct with regard to Humbulan's act? 1 Humbulan's improper motive renders his act wrongful 2 Humbulani furthered a reasonable interest of his own and thus did not act wrongfully 3 Humbulans exceeded his capacity as an owner and abused his nght 4 = Option 4 and 3 above (2) 8 Aterronst places a time-bomb in a busy restaurant The bomb explodes and injures Xholis) In respect of Xholis''s injuries, the terrorist had 1 dolus indirectus 2 dolus directus 3 dolus indeterminatus 4 dolus eventualis 2) 9 Inwhich of the following cases did the court decide that the test for negligence for a child 1s ‘no longer the reasonable child standard? Bester v Commercial Union Versekenngsmaatskappy van SA Bpk 1973 (1) SA 769 (A) Bamard v Santambank 1999 (1) SA 202 (SCA) Jones NO v Santam Bpk 1965 (2) SA 542 (A) Van Wyk v Lewis 1924 AD 438 Rone (2) 40 Tshepo's bull eats and tramples Grace's maize crops Tsepho forgot to close the gate between his and Grace's land Which remedy or remedies may be available to Grace? The actio de paupene and actio legis Aquilae The actio de paupene and interdict The actio de pastu only The actio de pastu and actio legis Aquilae bon (2) [TURN OVER]PVL3703 October/November 2019 11. Maureen inadvertently damages Lora’s drum Which delictual action may be available to Lora? 1 The acto legis Aquilae 2 The actio munarm 3 The acto de pastu 4 None of the above @) 12 Musa negligently left his statonary donkey on the road Shaun came along driving his new VW polo and collided with the donkey Musa now wishes to sue Shaun Which defence may Shaun raise? 1 Prvate defence 2 Contributory intention 3 Contnbutory negligence 4 Consent 2 13 In Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd Ya Volkskas Bank 1997 (2) SA 691 (W) the court held that 1 adefence of contnbutory intention could succeed where both the plaintiff and the defendant acted with intention 2 person is guilty of negligence if his conduct falls short of that of the standard of the diigens paterfamilas 3 for the purposes of the law of delict, intent and negligence may be present simultaneously 4 there is na single criterion for legal causation which 1s applicable in all instances @ 14. Whats the cnterion for determining factual causation? 1 Actio ibera m causa 2 Novus actus mterveniens 3 Conaitio sine qua non 4 The flexible approach (2) [TURN OVER]PVL3703 October/November 2019 15 Inwhich one of the following cases did the court maintain that factual causation cannot always 16 7 18 be answered by strict adherence to logic but that common sense sometimes has to prevail? 1 International Shipping Co (Pty) Ltd v Bentiey 1990 1 SA 680 (A) 2 Sv Van As 1967 4 SA 594 (A) 3. Sv Mokgethi 1990 (1) SA 32 (A) 4 Lee v Minister of Correctional Services 2013 2 SA 144 (CC) (2) ‘What does the talem qualem rule mean? 1 Damages have to be apportioned due to contributory fault 2 New intervening cause 3 You must take your victim as you find him 4 — Reasonable foreseeability of harm (2) Prospective loss s best assessed in accordance with 1 the sum-formula approach 2 the “once and for all” rule 3 the concrete approach to damage 4 resinter alios acta (2) Oratile and Mapule are farming on adjacent properties Oratie bears a grudge against Mapule He sets up a device, which causes a loud bang every half an hour, on the ‘common boundary between the two farms, near Mapule’s homestead As a result of this, Mapule and her family cannot sleep at night and are irritated by day Mapule asks Oratile to dismantle the device, but Oratile says that the device serves the purpose of ‘scanng baboons away from his orchards Which delictual remedy may be available to Mapule? 1 The actio de paupene 2 The acto de fens 3 The actio de effusis vel derectis 4 The interdict 2) [TURN OVER]PVL3703 October/November 2019 19 Precious has a stall on the sidewalk where she sells homemade cakes While Precious is tending to customers, Donald and Jacob pass by and steal an entire tray full of cakes As Donald and Jacob proceed to run away, Jacobs's hat falls off and Precious recognises him and reports the matter to the police The police manage to find Donald and Jacob, after they have consumed all the cakes Precious wants to claim damages from Jacob Can she claim the whole amount of damages from Jacob? Yes, Jacob 1s vicariously liable for the damage Yes, joint wrongdoers are in solidum liable for the full damage No, Jacob 1s known by Precious No, Jacob and Donald are equally lable for the damage Rens (2) 20 Which one of the following is not a specific form of damnum miuna datum? Product liability Pure economic loss Unlawful competition Defamation RON (2) TOTAL SECTION A: [40] [TURN OVER]PVL3703 October/November 2019 SECTION B: FILL-IN QUESTIONS | ANSWER THESE QUESTIONS IN THE SPACES BELOW THE QUESTIONS! Question 1 Lethabo suffers from epileptic fits. His doctor has prescribed him medication to control the onset of the epileptic fits. One morning, while Lethabo is driving a forklift in the warehouse where he works, he suffers an epileptic fit and the forklift veers into his co- worker Zanele, injuring her. It transpired that Lethabo had not taken his medication prescribed by the doctor that morning, Zanele sustains bodily injuries and is hospitalised. Zanele would like to institute a delictual action against Lethabo. Discuss with reference to relevant authority whether Zanele indeed acted for the purposes of the law of delict Restrict the scope of your answer to what is asked in the question, and note in particular that the question does not deal with the element of wrongfulness. (10) [TURN OVER]PVL3703 October/November 2019 ITURN OVER]PVL3703 October/November 2019 Total Question 1: [10] Question 2 Mina, while eight and half months pregnant, experienced severe abdominal and back pains. Her husband immediately took her to Midlands Private Hospital. The medical staff attending to her failed to perform a timely caesarean section, resulting in the baby ‘sustaining brain damage. Answer the following two questions with reference to these facts. 2.4 Was the conduct of the medical staff at Midlands Private Hospital wrongful? Discuss with reference to relevant authority. Restrict the scope of your answer to the element of wrongfulness only. (10)12 PVL3703 October/November 2019PVL3703 October/November 2019 [TURN OVER]PVL3703 October/November 2019 2.2 Did the medical staff at Midlands Private Hospital act negligently? Discuss with reference to relevant authority. Restrict the scope of your answer to negligence only. (10) [TURN OVER]15 PVL3703 October/November 2019 Total Question 2: [20] [TURN OVER]16 PVL3703 October/November 2019 Question 3 3.1 Tom and Hank play with their Frisbee in the front yard. During their game, the Frisbee gets stuck in a tree. They try throwing a variety of objects at the Frisbee in an attempt to dislodge it. Finally, they throw a baseball bat at it, which nudges the Frisbee out of the tree. The bat, however, damages the window of Caroline's house. Caroline institutes a delictual action against Tom and Hank for the damage to the window. Tom and Hank explain that they were trying to get their Frisbee out of the tree and raise necessity as a ground of justification. Indicate whether Tom and Hank will be successful with necessity as a ground of justification. Discuss with reference to relevant authority. 6) [TURN OVER]PVL3703 ‘October/November 2019 3.2 Betty and Oscar go out to a fancy restaurant for dinner. Oscar finds the dessert not to his liking and begins screaming at and insulting Betty as she chose the restaurant. Betty has had enough of his behavior and returns the insult. This angers Oscar and he institutes delictual action against Betty for insulting him in public. What defence may Betty rely ‘on? Discuss with reference to relevant authority. 6) [TURN OVER]18 PVL3703 October/November 2019 Total Question 3: [10] Question 4 Kabelo is in a hurry to get out of the bus. He pushes Zama who is In front of him. Zama falls out of the bus and twists her ankle badly. Zama Is troated In a nearby hospital and is issued with a special protective plastic boot to prevent further injury to her ankle while the healing Is in progress. Zama finds this boot very cumbersome and uncomfortable. The next day Zama slips with the boot, falls, and breaks her left arm. Does a legal causal link exist between Kabelo’s conduct and Zama’s broken arm? Discuss in detall with reference to case law. (10)PVL3703 October/November 2019 [TURN OVER]20 PVL3703 October/November 2019 Total Question 4: [10] Question 5 5.1 Name the requirements for the granting of an “interdict”. (3) 5.2 Name the requirements for the “actio de pauperie”. @) [TURN OVER)2 PVL3703, October/November 2019 5.3 Name the requirements for “vicarious liability”. (3) 5.4Explain the principle of “mitigation of loss” in one sentence. “ Total Question 5: [10] TOTAL SECTION B: [60) TOTAL PAPER: [100] ° UNISA 2019