Delict 8 TH

Law of Delict
Eighth Edition
La
Law
w ooff D
Deliicct
E ghthh Ed
Eig Editiionn
J NE
NEEETH
HL
LIN
NG
G
BAA LL
LB (UUOV VS) LL LM (M McG Gill)) LL
LD (UUnisa)
Reeseaarcch Fell
F low w, D
Depaartmmennt of PPriva Free State
ate Laaw, Unniversitty of thhe F S e
Foorm
mer Sen
S niorr Prrofe
fessoor of P vatee Laaw, Unniveersiity of
o Priv o thhe Fre
F ee Stat
S te
Em merrituus Prof
P fesssor of Pri
P ivatte Law
L w, Univ
U verssity of Souuth Afr frica
a
Me berr off thee Euuroppea
Memb an Gro
G oup onn Toort Law
L w
A oca
Advo ate of
o thhe Hig C urt of Sou
H gh Cou S uth Afr
A ricaa
JM PO
JM P TG
GIE
ET
TEER
BIuur LLB
B L B LL LM
M (R RAU U) LLLMM (Ha
( arvaard)) LL
LD (UUnissa)
E
Extraorrdinnaryy P
Proffesssor of Priv
P vatee Laaw,, Unive
Un ersity of Sou
S uth AAfrricaa
Life
L fe Mem
M mberr, Clar
C re HalH l CoColleege,, Univ
U verssity of Cam
mbrridgge
A
Attoornney, Nootarry and
a d Coonvveyaanceer
M
Mem
mberrs off thee LeexisN
Nexiis Grou
G up w
world
dwid
de
South
h Affricaa LexissNexxis ((Pty
L y) Lttd
JOHA ANNNESBBURG
G B dingg 8, C
Build Countryy Cluub Estat
E te Officee Paark, 21
2 WWoo
odlannds Driv
D ve, W
Woo
odmeead,, 21991
CAPE TOWN
O N F
First Floor, G
Greaat Weste
W erforrd, 2240 Maiin Road
R d, Roondeebosch, 7700
DUR
RBAN
N 2215 Pete
P r Mokab ba Road
R d (Northh Riddge Roaad), Mor
M rningsidde, Durb
D ban, 400
01
w w.lexxisneexiss.co.za
www
A
Austrraliaa L sNexxis, CHA
Lexis ATSWWOO OD, New
N w So
outh Waales
A
Austrria L sNexxis V
Lexis Verllag ARD
A D Orrac, VIE
ENNAA
B
Beneelux L sNexxis B
Lexis Beneluxx, AMSTM TERDDAMM
C
Cana ada L sNexxis C
Lexis Canada,, MARKHA HAM M, Ontar
O rio
C
Chin na L sNexxis, BEIIJING
Lexis G
F
Fran nce L sNexxis, PAR
Lexis RIS
G
Germ many L sNexxis G
Lexis Germ manny, MÜN NSTE
ER
H
Hong g Koong L sNexxis, HON
Lexis NG KON NG
Inndiaa L sNexxis, NEW
Lexis W DELH HI
Ittaly G ffrè Edito
Giuff E ore, MILLAN N
Jaapan L sNexxis, TOK
Lexis KYO O
K
Koreea L sNexxis, SEO
Lexis OUL
M
Mala aysiaa L sNexxis, KUA
Lexis ALAA LUMPU
U UR
N
New Zeaaland L sNexxis, WELLIN
Lexis E NGTON
P
Polan nd L sNexxis P
Lexis Polaand, WARSA
A AW
Singa aporre L sNexxis, SIN
Lexis NGAP PORE E
U
Uniteed King
K gdom
m L sNexxis, LON
Lexis NDO ON
U
USA L sNexxis, DAY
Lexis YTOON, Ohio
O o
© 202
20
IS N 978-0--63990-12220-9
SBN
eB
Boo
ok IS N 9788-0-6390-12221--6
SBN
First edittion 19990, RReprrinted 19991, 19992
Seconnd editio
e on 1994 1 4, Reeprinntedd 19995, 119966, 19997
T
Thirdd ediitionn 19999, R
Repprinteed 1999
1 9, 20001
Fourtth edditioon 20002,, Reprinnted 20002, 22003
Fifth edittion 20006, RReprrinteed 20006,, 20007
h editionn 20110
Sixth
Sevennth editi
e ion 2015
2 5
C
Copy yrighht suubsissts inn th w k. Noo paart of thiis work
his work w mayy bee repprodducedd inn any
y forrm or
o byy anny mean
m ns withow out thhe pub-
p
lisherr’s writt
w ten perm misssion.. Anny unau
u uthorrisedd repprodducttion of this
t worrk w will connstituute a coopyrrightt inffringgemeent and
reendeer thhe dooer liabl
l le un nderr botth civil aand crim
minaal law
w.
W
Whilsst evveryy efffort hhas beenn maade to eensuure thhat the
t infor
i rmaationn pubblishhed in th
his work
w k is accuurate, thhe edditorrs, ppublish-
errs an
nd print
p ters taket e no respponssibillity ffor any
a losss or dam magee sufffereed by p on as a resu
b anny perso r ult off thee relliancce up
upon the
innform
matiion cont
c taineed th hereein.
Editorr: Maandyy Jonnck
Techn
nical Edittor: Magg
M gie Talan
T nda
Preface
Law of Delict is intended to be a comprehensive introduction to the general principles of delic-

tual liability and the most important forms of delict. It is primarily aimed at students in so far as
we sought to deal systematically and critically with the most important principles of the law of
delict. Although it was not our aim to provide an exhaustive discussion of positive law, practi-
tioners should also find the book useful since we cite and discuss the most authoritative sources
(case law and legislation).
The eighth edition of Law of Delict is a comprehensive revision and update of Neethling-
Potgieter-Visser Law of Delict (7th edition, 2015) in light of new legal authority and literature
which naturally necessitated an adaptation of legal principles and theoretical points of view. In
particular, special attention was given to the continuing debate on delictual principles that has
taken place in academic and judicial circles since the appearance of the previous edition, espe-
cially on the relationship between wrongfulness, negligence and legal causation.
The title of the book now reverts to its original title, Law of Delict, and as the name of Profes-
sor PJ (Hans) Visser (1953–2007), co-author until the fifth edition (2006), no longer appears on
the title page, we continue to honour our late colleague and friend here for his lasting contribu-
tion to the law of delict and, in particular, to this book.
Case law was updated to the July 2020 South African law reports.
We express our appreciation to Elna Brelage and Mandy Jonck of LexisNexis for their efficient
and friendly assistance with this edition of Law of Delict.
J NEETHLING
JM POTGIETER
September 2020
v
Contents
Page
Preface ................................................................................................................................................... v
PART I
Introduction to the law of delict
1 General introduction
1 Delict: general nature and place in the legal system ...................................................................... 3
2 Delict and breach of contract ......................................................................................................... 6
3 Delict and crime ............................................................................................................................. 7
4 Historical development of delictual liability .................................................................................. 8
4.1 Introduction ........................................................................................................................... 8
4.2 Actio legis Aquiliae ............................................................................................................... 9
4.3 Actio iniuriarum ................................................................................................................... 13
4.4 Action for pain and suffering ................................................................................................ 16
5 The law of delict, the Constitution and fundamental (human) rights ............................................. 17
PART II
General principles of the law of delict
2 Conduct
1 General ........................................................................................................................................... 27
2 Nature and characteristics of conduct ............................................................................................ 27
3 The defence of automatism ............................................................................................................ 28
4 Commission (commissio) and omission (omissio) ......................................................................... 32
3 Wrongfulness
1 Introduction .................................................................................................................................... 35
2 Act and consequence ...................................................................................................................... 36
3 The legal convictions of the community (boni mores) as the basic test for wrongfulness ............. 39
3.1 The balancing of interests...................................................................................................... 41
3.2 A delictual criterion ............................................................................................................... 44
3.3 An objective criterion ............................................................................................................ 46
3.4 Practical application of the boni mores criterion ................................................................... 49
4 Wrongfulness as infringement of a right ........................................................................................ 55
4.1 The doctrine of subjective rights ........................................................................................... 55
4.2 The nature of a subjective right ............................................................................................. 56
4.3 Further development of the doctrine of subjective rights ...................................................... 57
4.4 Origin of subjective rights ..................................................................................................... 58
4.5 Infringement of a subjective right: requirements .................................................................. 58
5 Wrongfulness as breach of a legal duty ......................................................................................... 60
5.1 General .................................................................................................................................. 60
5.2 Liability for an omission ....................................................................................................... 64
5.2.1 Prior conduct (the omissio per commissionem rule) ................................................. 67
5.2.2 Control of a dangerous object ................................................................................... 69
5.2.3 Knowledge and foresight of possible harm .............................................................. 73
5.2.4 Rules of law .............................................................................................................. 74
5.2.5 A special relationship between the parties ................................................................ 79
vii
viii Law of Delict
Page
5.2.6 A particular office ..................................................................................................... 81
5.2.7 Contractual undertaking for the safety of a third party ............................................. 81
5.2.8 Creation of the impression that the interests of a third party will be protected......... 83
5.2.9 Danger of limitless liability ...................................................................................... 84
5.2.10 Vulnerability to risk of damage ................................................................................ 84
5.2.11 Interplay of factors .................................................................................................... 84
5.2.12 The general wrongfulness criterion .......................................................................... 89
5.3 Breach of a statutory duty ..................................................................................................... 90
6 Wrongfulness as the reasonableness of imposing liability ............................................................. 93
7 Reconciliation of the traditional boni mores test and the new test of the reasonableness
of imposing liability ....................................................................................................................... 102
8 Grounds of justification ................................................................................................................. 106
8.1 Introduction ........................................................................................................................... 106
8.2 Private defence ...................................................................................................................... 108
8.2.1 General...................................................................................................................... 108
8.2.2 Requirements for the attack ...................................................................................... 109
8.2.3 Requirements for the defence ................................................................................... 112
8.3 Necessity ............................................................................................................................... 117
8.3.1 General...................................................................................................................... 117
8.3.2 Requirements for necessity ....................................................................................... 119
8.3.3 Necessity and impossibility ...................................................................................... 123
8.4 Provocation ........................................................................................................................... 124
8.4.1 General...................................................................................................................... 124
8.4.2 Provocation in the case of physical assault ............................................................... 125
8.4.3 Provocation in cases of defamation and insult .......................................................... 127
8.5 Consent.................................................................................................................................. 128
8.5.1 General...................................................................................................................... 128
8.5.2 Characteristics of consent as a ground of justification.............................................. 129
8.5.3 Requirements for valid consent ................................................................................ 131
8.5.4 The pactum de non petendo in anticipando .............................................................. 134
8.6 Statutory authority ................................................................................................................. 135
8.7 Official capacity .................................................................................................................... 142
8.8 Execution of an official command ........................................................................................ 144
8.9 Power to discipline ................................................................................................................ 145
9 Abuse of right, nuisance and neighbour law .................................................................................. 147
9.1 Abuse of right ........................................................................................................................ 147
9.2 Nuisance ................................................................................................................................ 152
4 Fault (and contributory fault)

1 General ........................................................................................................................................... 155
2 Accountability ................................................................................................................................ 157
3 Intent .............................................................................................................................................. 159
3.1 Direction of the will .............................................................................................................. 160
3.2 Consciousness (knowledge) of wrongfulness........................................................................ 162
3.3 Motive and mistake concerning the causal chain of events ................................................... 163
4 Negligence ..................................................................................................................................... 164
4.1 Definition and nature ............................................................................................................. 164
4.2 Can negligence and intention overlap?.................................................................................. 167
4.3 Ordinary and gross negligence .............................................................................................. 168
4.4 Negligence and an omission .................................................................................................. 168
4.5 The reasonable person: characteristics .................................................................................. 169
4.5.1 General...................................................................................................................... 169
4.5.2 Children .................................................................................................................... 171
4.5.3 Experts ...................................................................................................................... 173
4.6 Negligence: foreseeability and preventability of damage ..................................................... 176
4.7 Negligence judged in the light of the surrounding circumstances ......................................... 184
4.8 Negligence and “duty of care” .............................................................................................. 188
Contents ix
Page
4.9 Proof of negligence ............................................................................................................... 190
4.10 Relevance of negligence........................................................................................................ 192
4.11 Distinction between wrongfulness and negligence ............................................................... 193
5 Contributory fault........................................................................................................................... 198
5.1 Introduction ........................................................................................................................... 198
5.2 The common law position ..................................................................................................... 198
5.3 The Apportionment of Damages Act 34 of 1956 .................................................................. 199
5.3.1 Provisions and meaning of section 1(1)(a) and (b) ................................................... 199
5.3.2 Meaning of “fault” .................................................................................................... 200
5.3.3 Meaning of “apportionment of damages” ................................................................. 201
5.3.4 Criteria for the “apportionment of damages” ............................................................ 201
5.3.5 Onus of proof ............................................................................................................ 204
5.3.6 The concept of contributory “negligence” ................................................................ 204
5.3.7 Fault in respect of “damage” or “damage-causing event” ........................................ 205
5.3.8 The provisions and meaning of section 1(3) ............................................................. 206
5.3.9 The dependant’s action ............................................................................................. 206
5.3.10 Joint wrongdoers ....................................................................................................... 206
5.3.11 Breach of contract ..................................................................................................... 207
5.3.12 Legal causation ......................................................................................................... 208
5.4 Voluntary assumption of risk and contributory fault (intent) ................................................ 208
5.4.1 Introduction .............................................................................................................. 208
5.4.2 Relevant cases ........................................................................................................... 209
5.4.3 “Rescue” cases .......................................................................................................... 212
5 Causation
1 General ........................................................................................................................................... 215
2 Factual causation ............................................................................................................................ 216
2.1 General .................................................................................................................................. 216
2.2 Conditio sine qua non and causation by positive conduct ..................................................... 218
2.3 Logical criticism of the conditio sine qua non theory ........................................................... 219
2.4 Conditio sine qua non and causation by an omission ............................................................ 223
2.5 The flexible application of conditio sine qua non ................................................................. 226
2.6 The determination of a factual (causal) nexus ....................................................................... 228
3 Legal causation .............................................................................................................................. 230
3.1 General .................................................................................................................................. 230
3.2 The flexible approach ............................................................................................................ 233
3.3 Adequate causation ............................................................................................................... 237
3.4 Direct consequences .............................................................................................................. 238
3.5 Fault ...................................................................................................................................... 240
3.5.1 Intent as criterion for legal causation ........................................................................ 241
3.5.2 Negligence as criterion for legal causation ............................................................... 245
3.6 Reasonable foreseeability ...................................................................................................... 248
3.7 Novus actus interveniens ....................................................................................................... 250
3.8 So-called egg-skull cases (talem qualem rule) ...................................................................... 253
6 Damage
1 Introduction .................................................................................................................................... 255
2 The compensatory function of the law of delict ............................................................................. 255
3 The concept of damage .................................................................................................................. 256
3.1 The definition of damage ...................................................................................................... 256
3.2 Extent of the concept of damage ........................................................................................... 256
3.2.1 General...................................................................................................................... 256
3.2.2 Damage includes patrimonial (pecuniary) as well as non-patrimonial
(non-pecuniary) loss ................................................................................................. 257
3.3 The relationship between patrimonial and non-patrimonial loss ........................................... 259
3.4 The relationship between damage and wrongfulness (unlawfulness).................................... 260
3.5 The relationship between damage and factual causation ....................................................... 262
x Law of Delict
Page
4 Patrimonial (pecuniary) loss .......................................................................................................... 263
4.1 Definition of patrimonial loss................................................................................................ 263
4.2 A person’s patrimony (estate) ............................................................................................... 263
4.3 The ways in which patrimonial loss is caused ....................................................................... 264
4.4 Forms of patrimonial loss ...................................................................................................... 265
4.5 The assessment of patrimonial damage ................................................................................. 266
4.5.1 The sum-formula approach ....................................................................................... 266
4.5.2 A concrete concept of damage .................................................................................. 267
4.5.3 Time for the assessment of damage .......................................................................... 267
4.6 Prospective patrimonial damage (lucrum cessans) ............................................................... 268
4.6.1 General...................................................................................................................... 268
4.6.2 Definition and nature of prospective loss ................................................................. 268
4.6.3 Forms of prospective loss ......................................................................................... 269
4.6.4 Requirements before damages may be recovered for prospective loss ..................... 269
4.7 The “once and for all” rule .................................................................................................... 270
4.7.1 Formulation and implications of the rule .................................................................. 270
4.7.2 Exceptions to the rule ............................................................................................... 270
4.7.3 Causes of action ........................................................................................................ 271
4.7.4 Examples of causes of action and the “once and for all” rule ................................... 272
4.8 The collateral source rule and compensating advantages (res inter alios acta) .................... 273
4.8.1 General...................................................................................................................... 273
4.8.2 Summary of positive law .......................................................................................... 274
4.8.3 Explanations of the collateral source rule ................................................................. 277
4.9 Mitigation of loss .................................................................................................................. 279
4.10 Nature, object and form of damages...................................................................................... 280
4.11 Assessment of the quantum of damages ................................................................................ 282
4.11.1 General...................................................................................................................... 282
4.11.2 The assessment of damages in specific instances ..................................................... 283
4.12 Damages for loss of income or support earned illegally ....................................................... 285
4.13 Onus of proof ........................................................................................................................ 287
5 Non-patrimonial (non-pecuniary) damage or injury to personality................................................ 288
5.1 Definition of non-patrimonial loss ........................................................................................ 288
5.2 Interests of personality .......................................................................................................... 288
5.3 The general nature of non-patrimonial loss or injury to personality ..................................... 288
5.4 Assessment of non-patrimonial loss or injury to personality and other
general principles .................................................................................................................. 289
5.5 The object of damages (compensation and satisfaction) in the case of non-patrimonial
loss or injury to personality ................................................................................................... 290
5.6 Injury to personality in respect of physical-mental integrity ................................................. 291
5.6.1 General...................................................................................................................... 291
5.6.2 Theories in regard to the nature of physical-mental injury ....................................... 293
5.6.3 Cases of unconsciousness and changed personality.................................................. 294
5.7 Assessment of damages in the case of non-patrimonial loss ................................................. 298
5.7.1 Introduction .............................................................................................................. 298
5.7.2 Physical-mental integrity .......................................................................................... 298
5.7.3 Injury to personality in the form of iniuria ............................................................... 301
7 Delictual remedies
1 General ........................................................................................................................................... 305
2 The interdict ................................................................................................................................... 308
3 Concurrence of remedies ............................................................................................................... 309
3.1 Introduction ........................................................................................................................... 309
3.2 Delictual actions .................................................................................................................... 310
3.3 Actio iniuriarum and contractual action ................................................................................ 311
3.4 Action for pain and suffering and contractual action ............................................................ 312
3.5 Actio legis Aquiliae and contractual action ........................................................................... 312
3.6 Exclusion clauses .................................................................................................................. 317
4 Prescription of remedies................................................................................................................. 318
Contents xi
Page
8 Joint wrongdoers
1 General ........................................................................................................................................... 319
2 Special cases .................................................................................................................................. 321
2.1 Prejudice suffered by a spouse as a result of the conduct of the other spouse and
a third party ........................................................................................................................... 322
2.1.1 Marriage in community of property .......................................................................... 322
2.1.2 Marriage out of community of property ................................................................... 323
2.2 Prejudice suffered by a person as a result of the death or injury of another person
through the conduct of the deceased or injured person and a third party .............................. 324
2.2.1 Prejudice as a result of death .................................................................................... 324
2.2.2 Prejudice as a result of injury.................................................................................... 325
PART III
Forms of delict
9 Forms of damnum iniuria datum
1 Introduction .................................................................................................................................... 329
2 Injury or death of another person ................................................................................................... 329
2.1 Action of non-dependants ..................................................................................................... 329
2.2 Action of dependants ............................................................................................................. 332
2.2.1 Death of the breadwinner .......................................................................................... 332
2.2.2 Injury to the breadwinner .......................................................................................... 341
3 Psychological lesions (emotional shock) ....................................................................................... 342
4 Pure economic loss......................................................................................................................... 349
5 Negligent misrepresentation........................................................................................................... 357
6 Interference with a contractual relationship ................................................................................... 368
7 Unlawful competition .................................................................................................................... 373
8 Product liability .............................................................................................................................. 382
10 Forms of iniuria
1 Introduction .................................................................................................................................... 387
2 Rights relating to physical integrity ............................................................................................... 392
2.1 Introduction ........................................................................................................................... 392
2.2 The right to corpus or body ................................................................................................... 392
2.2.1 General...................................................................................................................... 392
2.2.2 Seduction .................................................................................................................. 394
2.3 The right to libertas or physical liberty ................................................................................. 396
2.3.1 General...................................................................................................................... 396
2.3.2 Wrongful deprivation of liberty: wrongful arrest and wrongful detention ............... 396
2.3.3 Malicious deprivation of liberty................................................................................ 398
3 The right to fama or good name ..................................................................................................... 399
3.1 Introduction ........................................................................................................................... 399
3.2 Defamation ............................................................................................................................ 400
3.2.1 Definition .................................................................................................................. 400
3.2.2 Elements ................................................................................................................... 400
3.2.2.1 Publication .................................................................................................. 400
3.2.2.2 Defamatory effect: wrongfulness ................................................................ 402
3.2.2.3 Grounds of justification .............................................................................. 405
3.2.2.3.1 Privilege or privileged occasion .............................................. 407
3.2.2.3.2 Truth and public interest ......................................................... 409
3.2.2.3.3 Media privilege (reasonable publication of untruth) ............... 410
3.2.2.3.4 Political privilege .................................................................... 411
3.2.2.3.5 Fair comment .......................................................................... 411
3.2.2.3.6 Private defence, provocation and consent ............................... 412
3.2.2.3.7 Reasonable suspicion of shoplifting........................................ 412
xii Law of Delict
Page
3.2.2.4 Fault ............................................................................................................ 413
3.2.2.4.1 Animus iniuriandi.................................................................... 413
3.2.2.4.2 Grounds excluding intent ........................................................ 414
3.2.2.4.3 Negligence .............................................................................. 415
3.3 Malicious prosecution ........................................................................................................... 416
3.4 Attachment of property ......................................................................................................... 419
4 Rights relating to dignitas .............................................................................................................. 420
4.1 The right to dignity ................................................................................................................ 420
4.2 The right to privacy ............................................................................................................... 421
4.3 The right to identity ............................................................................................................... 425
4.4 The right to feelings .............................................................................................................. 427
4.4.1 Breach of promise ..................................................................................................... 427
4.4.2 Adultery: legal relevance .......................................................................................... 428
4.4.3 Abduction, enticement and harbouring ..................................................................... 430
11 Forms of liability without fault

1 General ........................................................................................................................................... 433
1.1 Dominance of the fault theory ............................................................................................... 433
1.2 Reaction to the fault theory ................................................................................................... 433
1.3 Justification for liability without fault ................................................................................... 433
1.4 General characteristics of liability without fault ................................................................... 435
2 South African law .......................................................................................................................... 435
2.1 Common law and case law .................................................................................................... 435
2.1.1 Damage caused by animals ....................................................................................... 435
2.1.1.1 Actio de pauperie ........................................................................................ 435
2.1.1.2 Actio de pastu.............................................................................................. 438
2.1.1.3 Actio de feris ............................................................................................... 439
2.1.1.4 Conclusion .................................................................................................. 440
2.1.2 Damage caused by objects thrown, poured or falling out of or from a building ....... 441
2.1.3 Damage caused by loss of a stolen thing .................................................................. 441
2.1.4 Damage to goods stored during shipping and by inn- and stable-keepers ................ 441
2.1.5 Damage caused by owners of neighbouring property: nuisance ............................... 442
2.1.6 Forms of iniuria ........................................................................................................ 443
2.1.7 Vicarious liability ..................................................................................................... 444
2.1.7.1 Introduction ................................................................................................. 444
2.1.7.2 Employer – employee ................................................................................. 444
2.1.7.3 Principal – agent ......................................................................................... 453
2.1.7.4 Motor car owner – motor car driver ............................................................ 453
2.1.7.5 State – public school ................................................................................... 454
2.1.8 Independent contractors ............................................................................................ 455
2.2 Legislation ............................................................................................................................. 456
2.2 1 Consumer Protection Act 68 of 2008 (product liability) .......................................... 456
2.2.2 National Nuclear Regulator Act 47 of 1999 ............................................................. 458
2.2.3 Civil Aviation Act 13 of 2009 .................................................................................. 458
2.2.4 Post and Telecommunication-Related Matters Act 44 of 1958 ................................ 459
2.2.5 Genetically Modified Organisms Act 15 of 1997 ..................................................... 459
2.2.6 Protection of Personal Information Act 4 of 2013 (POPI Act) ................................. 459
Bibliography .......................................................................................................................................... 461
Table of Cases ....................................................................................................................................... 487
Table of Statutes .................................................................................................................................... 531
Index ...................................................................................................................................................... 535
Part I
Introduction to the law of delict
This chapter serves as a general introduction to the law of delict. Topics dealt with are the
nature of a delict and its place in the legal system; the distinction between this
phenomenon and breach of contract and crime; the historical development of delictual
liability; and the influence of the constitutional Bill of Rights on the law of delict.
Chapter 1
General introduction
1 Delict: general nature and place in the legal system

The purpose of the law, and in particular private law, is to regulate relations between individuals
in a community.1 A legal order would be unnecessary if people lived in complete harmony. The
reality is, however, that individual interests are continually in a state of real or threatened con-
flict. Accordingly, it is the function of private law to recognise these interests, delimit them in
relation to each other and harmonise those that are in conflict. In particular, it is the role of the
law of delict to indicate which interests are recognised by the law, under which circumstances
they are protected against infringement (that is, when the impairment of a legally recognised
interest constitutes a delict) and how such a disturbance in the harmonious balance of interests
may be restored.2
The fundamental premise in law is that damage (harm) rests where it falls, that is, each person
must bear the damage he suffers (res perit domino).3 If someone drives his car carelessly and
collides with a tree, or clumsily drops and breaks his watch, or hail damages his corn crop, or
lightning kills his horse, he has, in principle, no legal ground for complaint. However, damage
does not always rest where it falls. There are indeed certain legally recognised instances in
which the burden of damage is shifted from one individual to another, with the result that the
latter incurs an obligation to bear the former’s damage or to provide compensation for it.4 For
example, where damage arises from a delict,5 the wrongdoer is legally obliged to compensate the
aggrieved party. In general terms, the law of delict thus determines the circumstances in which a
person is obliged to bear the damage he has caused another, ie when he may incur civil liability
for such damage.6
Because the wrongdoer has an obligation to compensate for the damage suffered, the person
prejudiced has a corresponding right to claim compensation. As a result, an obligatio or obligation
________________________
1 By contrast, it is the task of public law to regulate the relations between the state and the individual, and between
the organs of the state (Van der Merwe and Olivier 1–2). Private law nevertheless plays a role with regard to, eg,
the delictual liability of the state. Note further that not only individuals but also juristc persons may be involved.
2 Cf idem 1; Loubser and Midgley Delict 5–7.
3 In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA)
468, Harms JA stated: “The first principle of the law of delict, which is so easily forgotten and hardly appears in
any local text on the subject, is . . . that everyone has to bear the loss he or she suffers. The Afrikaans aphorism is
that ‘skade rus waar dit val’.” See further Meechan v VGA Chartered Accountants Partnership t/a PKF (VGA)
Chartered Accountants [2020] 2 All SA 510 (GJ) para 37; Potgieter v University of Stellenbosch [2017] 1 All SA
282 (WCC) para 18; Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) 418; Road Accident
Fund v Krawa 2012 2 SA 346 (ECG) 358–359; Potgieter v University of Stellenbosch [2017] 1 All SA 282 (WCC)
para 18; Scott 2009 THRHR 167; Neethling and Potgieter 2006 TSAR 610; Van der Walt and Midgley Delict 40;
Van der Merwe and Olivier 214.
4 Cf, eg, contracts of insurance and relief schemes by the state.
5 See further Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461
(SCA) 468. A delict is thus a legal fact, ie, a fact of which the law takes notice. It is, however, not a legal act, be-
cause the law attaches consequences to it independent of the will or aim of the wrongdoer (Van der Merwe and
Olivier 4).
6 In the law of delict, the primary question is therefore who must bear the loss: the wrongdoer or the aggrieved party.
Thus this section of the law has, in the words of Van der Walt and Midgley Delict 40, “a strong, individualistic
character” (our emphasis).
3
4 Law of Delict
between the two parties is created. Thus the law of delict belongs to that part of private law
known as the law of obligations.7
The mere fact that a person has caused another to suffer damage is, of course, insufficient to
constitute a delict for which he may be held liable. To found liability, further requirements must
be met. These requirements, otherwise referred to as the different elements which constitute a
delict, appear from the following definition: A delict is the act of a person that in a wrongful and
culpable way causes harm to another.8 All five requirements or elements, ie an act, wrongful-
ness, fault, causation9 and harm must be present before the conduct complained of may be
classified as a delict.10 If any one (or more) of these elements is missing,11 there is no question of
a delict and, consequently, no liability.12 Generally it is therefore reasonable to hold a person
liable in delict for damage sustained only if all the elements of a delict have been established.13
From the above, it follows that the question of delictual liability is governed by a generalising
approach. This means that general principles or requirements regulate delictual liability. These
principles as a rule apply irrespective of which individual interest (for example, a thing, the
human body, honour, privacy, earning capacity, a trade secret, a trademark or the goodwill of a
corporation) is impaired, and irrespective of the way in which the impairment is caused.14 The
casuistic approach of the English and Roman law of delict contrasts with the generalising ap-
proach. According to the casuistic approach, the law of delict consists of a group or set of separate
delicts (torts or delicta), each more or less with its own rules. The aggrieved party may thus only
________________________
7 Van der Walt and Midgley Delict 1; Van der Merwe and Olivier 3–4. See in general Zimmermann Obligations
passim.
8 Cf Van der Walt and Midgley Delict 2; Van der Merwe and Olivier 1; Burchell Delict 10; Loubser and Midgley
Delict 7–9. Boberg Delict 1 defines a delict as the “infringement of another’s interests”. This description is, how-
ever, both incomplete and misleading. On the one hand, there is an omission to state fault as a general delictual re-
quirement, and on the other hand, the erroneous impression is created that all individual interests, and not only
those that are legally recognised and protected, are relevant in this regard.
9 As will be seen (infra 215 ff), causation consists in reality of two independent delictual elements, ie, factual
causation and legal causation. Thus a delict actually consists of six elements.
10 See, eg, Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461
(SCA) 468; MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) 82; Van Eeden v Minister of Safety and Se-
curity (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 395; Truter v Deysel 2006 4 SA 168
(SCA) 174; Mntambo v Road Accident Fund 2008 1 SA 313 (W) 318; cf First National Bank of South Africa Ltd v
Duvenhage 2006 5 SA 319 (SCA) 320–321; Black v Joffe 2007 3 SA 171 (C) 183; see further Knobel 2008
THRHR 651.
11 See, eg, First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319 (SCA) 320 326 for an instance where
a claim failed because causation was absent.
12 See Road Accident Fund v Krawa 2012 2 SA 346 (ECG) 358–359. Exceptions, however, exist because relations in
life simply refuse to be regulated by inflexible rules. One of the most important developments which has taken
place in the field of delictual liability during the past eight to ten decades is the formation and recognition of in-
stances of liability without fault (strict liability) as distinct from traditional liability where fault is an essential re-
quirement. An example in our law is the imposition of strict liability for wrongful deprivation of liberty (Minister of
Justice v Hofmeyr 1993 3 SA 131 (A); cf Van der Walt and Midgley Delict 2 fn 11; cf however Van der Merwe and
Olivier 16). Specific instances of liability without fault will be discussed infra 433 ff.
13 See Ahmed in Potgieter, Knobel and Jansen (eds) 49 ff; 2019 THRHR 257 ff; 2019 THRHR 381 ff on the influence
of the concept of reasonableness, explicit (on wrongfulness, negligence and legal causation) or implicit (on all the
other delictual elements).
14 The generalising approach of South African law is apparent from the following dictum in Perlman v Zoutendyk
1934 CPD 151 155: “Roman-Dutch law approaches a new problem in the continental rather than the English way,
because in general all damage caused unjustifiably (injuria) is actionable, whether caused intentionally (dolo) or by
negligence (culpa)” (see also Loubser and Midgley Delict 18–19; Mukheibir 2015 SALJ 29–30, in Potgieter,
Knobel and Jansen (eds) 345). From this it is also clear that our law does not stand alone with its general principles
of delictual liability. Various modern continental codes follow the same pattern (see in this regard Van der Merwe
and Olivier 16–18). Note, however, that with regard to the protection of certain individual interests (such as the in-
terests of inventors or authors), the generalising approach or the general principles of delict have been replaced by
statutory measures (the Patents Act 57 of 1978 and the Copyright Act 98 of 1978 respectively).
Chapter 1: General introduction 5
render the wrongdoer liable if his conduct satisfies all the requirements of a specific delict.15 It is
self-evident that a legal system embracing general principles of delictual liability is able to
accommodate changing circumstances and new situations more easily than one that adopts a
casuistic approach, since the latter approach requires the constant creation of new delicts (usual-
ly a slow legislative process), while general principles, because of their flexibility and pliancy,
need only be adapted or applied in a new way (normally a speedy judicial process).16 The South
African law of delict, unlike the English law of torts, has therefore been able to recognise and
protect individual interests (such as privacy17 and the goodwill of a corporation18) which have
only come to the fore in modern times.
The generalising approach is, however, subject to an important qualification in our law. A
distinction is made in principle between delicts that cause patrimonial damage (damnum iniuria
datum) and those that cause injury to personality (iniuria). This distinction grounds the actions
which form two of the pillars of the law of delict, ie the actio legis Aquiliae, in terms of which
damages for the wrongful and culpable (intentional or negligent) causing of patrimonial damage
are claimed, and the actio iniuriarum, which is directed at satisfaction (solatium or sentimental
damages) for the wrongful and intentional injury to personality.19 These two actions, apart from
a few exceptions, comprehensively cover the whole area of delictual liability.20 The most im-
portant remaining action – which may be regarded as the third pillar of the law of delict – is the
action for pain and suffering, by which compensation for injury to personality as a result of the
________________________
15 “Unlike the law of torts, where each tort is notionally distinct, our law of delict proceeds from long-established
principles that are common to all claims falling under this head” (Wallis 2019 SALJ 188). See also Van der Merwe
and Olivier 18–20; Van der Walt and Midgley Delict 39. Notwithstanding its casuistic approach, the English “law
of torts” exercised a very strong influence on our law of delict until fairly recently (Van der Merwe and Olivier 20–
21). This occurred to such an extent that in certain areas of delictual liability (such as unlawful competition: Neeth-
ling Van Heerden-Neethling Unlawful Competition 66–67 77 162) English law was adopted almost completely by
the courts. This adoption (and, at times, even slavish following of the “law of torts”) is unacceptable if it is not rec-
oncilable with our own delictual principles (cf Meter Systems Holdings Ltd v Venter 1993 1 SA 409 (W) 427–428;
Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1990 2 SA 718 (T) 634–735). The fertile influence of a
related legal system should nevertheless not be excluded (Van der Merwe and Olivier 21; Trust Bank van Afrika
Bpk v Eksteen 1964 3 SA 402 (A) 410 ff). Supplementary to the generalising approach, it is, after all, a secondary
characteristic of our law of delict that specific forms of delict with their own specific rules have evolved in order to
promote the practical utility of general principles in given fields of delictual liability (such as unlawful competition
or defamation: see infra 373 400), and to promote legal certainty (see Neethling in Smits (ed) 81 ff 102; see
infra 5, infra ch 9 10; cf Neethling 1999 THRHR 146 on Longueira v Securitas of South Africa (Pty) Ltd 1998 4
SA 258 (W) 262–263). Here, the casuistry and detail of the “law of torts” have fulfilled an important and beneficial
role. This blend of the “general” and the “specific” constitutes the hybrid character of our law of delict, in which
Roman-Dutch law and English “common law” have been merged into a harmonious unity (see further Smits Euro-
pees Privaatrecht in Wording 241–242; Loubser and Midgley Delict 20–21). In future, the courts should, therefore,
follow the English “law of torts” with circumspection, and only insofar as those legal rules are reconcilable with
our own law (cf Perlman v Zoutendyk 1934 CPD 151 155; Home Talk Developments (Pty) Ltd v Ekurhuleni Metro-
politan Municipality 2018 1 SA 391 (SCA) para 26). The recent tendency of the courts to give preference to our
own delictual principles and thus to avoid the injudicious adoption of English law, is thus to be welcomed (see also
Van der Merwe and Olivier 21–23; cf Boberg Delict 26–27).
16 “The essential characteristic of the generalising approach is that it is flexible and pliable and can hence be adapted to
new circumstances . . . In terms of the generalising approach, there should be no need to resort to conceptual
pigeonholes with ready-made ‘delicts’” (Mukheibir 2015 SALJ 29 30); cf Van der Walt and Midgley Delict 39 fn 10.
17 National Media Ltd v Jooste 1996 3 SA 262 (A) 271–272; Jansen van Vuuren v Kruger 1993 4 SA 842 (A) 849;
Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 462–463; Neethling, Potgieter and Roos Neeth-
ling on Personality Rights 4 45 ff 307 ff. This will be discussed in detail infra 421.
18 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 182; Neethling Van Heerden-
Neethling Unlawful Competition 105–107. This will be discussed in detail infra 373.
19 Van der Walt and Midgley Delict 1; Van der Merwe and Olivier 15; Boberg Delict 18; Marais v Groenewald 2001
1 SA 634 (T) 645; University of Pretoria v South Africans for the Abolition of Vivisection 2007 3 SA 395 (O) 400.
20 Van der Walt and Midgley Delict 1. In Edouard v Administrator, Natal 1989 2 SA 368 (D) 389 Thirion J stated:
“In present-day Roman-Dutch law the actio injuriarum and the actio legis Aquiliae, in its extended form, cover al-
most the whole field of delictual liability.” Cf also Dhlomo v Natal Newspapers (Pty) Ltd 1988 4 SA 63 (D) 65.
6 Law of Delict
wrongful and negligent (or intentional) impairment of bodily or physical-mental integrity is

claimed.21
Although, in terms of the generalising approach, the wrongful culpable causing of patrimonial
loss forms the basis for the Aquilian action, and the wrongful intentional injury to personality
constitutes an iniuria, it is nevertheless inevitable that forms of damnum iniuria datum and
iniuria which occur frequently in practice become known as separate delicts under specific
names. Thus, inter alia, patrimonial loss caused by another person’s death (the dependants’
action) or injury, negligent misrepresentation and emotional shock have emerged in practice as
forms of damnum iniuria datum, whereas assault, defamation, insult, invasion of privacy,
wrongful deprivation of liberty, etc, have crystallised into specific forms of iniuria. In this
process it has happened that such forms develop their own specific rules within the framework
of the general principles of delict. It is therefore useful (and even necessary) to treat the different
forms separately. Nevertheless, it must be borne in mind that each is merely a specific form of
the broad concept of delict. There is definitely not a series of separate delicts, each with its own
principles. At most, the specific forms of delict may be seen as being species of the genus
“delict”.
Furthermore, it is important to note that a delict is not the only form of unwarranted or inadmis-
sible conduct of which the law takes cognisance. For the sake of conceptual clarity, it is neces-
sary to distinguish between a delict and two similar legal phenomena, ie breach of contract and
crime.22
2 Delict and breach of contract
Breach of contract clearly constitutes a different form of wrongful conduct in private law. As
with a delict,23 breach of contract is normally an act by one person (contracting party) which in a
wrongful and culpable way causes damage to another (contracting party).24 Thus there is appar-
ently no material difference between these two legal phenomena.25
________________________
21 Van der Walt and Midgley Delict 1 fn 9; Van der Merwe and Olivier 15; Boberg Delict 18; cf however Burchell
Delict 19 who appears not to appreciate the independent existence of the action for pain and suffering. Other delic-
tual actions, especially those that are based on strict liability (such as the actio de pauperie and the actio de pastu in
respect of harm caused by animals), today play a relatively minor role (cf in this regard infra 435 ff; Van der Walt
and Midgley Delict 45 47–51).
22 As to the interplay between the law of delict and social security law, see Millard 2010 TSAR 532 ff.
23 See supra 4.
24 Cf Van der Walt and Midgley Delict 5; Stoop 1998 THRHR 10. However, in Administrator, Natal v Edouard 1990
3 SA 581 (A) 597, the Appellate Division stated clearly that “fault is not a requirement for a claim for damages
based upon a breach of contract”. Cf also Van der Walt and Midgley Delict 5 fn 7. In contradistinction, Hutchison
and Pretorius (eds) Contract 276 ff 278 (see also Stoop 1998 THRHR 10 fn 64) maintain that the statement in
Edouard is “a sweeping generalisation” and that fault is indeed a requirement for most forms of breach of contract
apart from repudiation and in certain instances of positive malperformance. In these cases liability therefore seems
to be strict (see infra 433). It has been suggested that the reasonable person test for negligence should apply in all
cases of a breach of contract (Van Aswegen Sameloop van Eise 194; see however Stoop 1998 THRHR 11).
25 Cf Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 495–496 and the
authority cited there. For McKerron Delict 2, the distinction between a delict and breach of contract lies in the fact
that a delict consists in the “breach of a duty imposed by law” whereas breach of contract comprises the “breach of
a duty voluntarily assumed”. See also Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276
(SCA) 292. Although this distinction has merits, there are also objections. One is that it describes a delict solely in
terms of a breach of a duty, without including the infringement of a right or legally protected interest (see Burchell
Delict 3). Another is that although a contractual duty may flow from the will of the parties (such as the duty to pay
compensation for breach of contract), that duty is, in reality, imposed by law as a consequence of the unlawful
breach of the contract (Hutchison and Pretorius (eds) Contract 8–9).
Nevertheless, breach of contract and a delict are fundamentally different.26 Breach of contract is
only constituted by the non-fulfilment by a contractual party of a contractual personal right
(claim) or an obligation to perform. Accordingly, the primary remedy for breach of contract is
directed at enforcement, fulfilment27 or execution of the contract; a claim for damages as a
remedy only plays a secondary part. By contrast, a delict is constituted by the infringement of
any legally recognised interest of another party, excluding the non-fulfilment of a duty to per-
form by a contractual party. Consequently, the delictual remedies are primarily directed at
damages (or satisfaction), and not at fulfilment. The fundamental differences between breach of
contract and a delict are, for historical, systematic and practical reasons, also supported by the
fact that breach of contract is not formally treated as part of the law of delict but is considered to
be part of the law of contract. The law of contract, as indicated, therefore provides specific rules
and remedies for breach of contract that are not applicable to a delict.28 This distinction is clearly
apparent from the fact that one and the same act may render the wrongdoer liable ex contractu as
well as ex delicto.29
Thus, despite the apparent similarity between a delict and breach of contract, these concepts may
not be treated identically. At most, it can be said that both are species of the genus “wrongful
conduct” in private law.
3 Delict and crime
The law also takes cognisance of wrongful and culpable acts in the sphere of public law, more
particularly in criminal law. Despite the apparent similarity between delicts and crimes,30 there
are fundamental differences between them.
The principal difference relates to the distinction between private and public law. Private law is
directed at the protection of individual (private) interests, while public law is directed at uphold-
ing the public interest. Accordingly, delictual remedies differ substantially from criminal sanc-
tions. Delictual remedies are compensatory in character, compensating or indemnifying the
aggrieved party for the harm the wrongdoer has caused. By contrast, criminal sanctions are of a
penal nature, and are intended to punish the criminal for his transgression against the public
interest.31 The distinction between a delict and a crime is also apparent from the fact that one and
________________________
26 See Van Aswegen’s persuasive arguments in this regard (Sameloop van Eise 300 ff); see generally also Neethling
in Martin-Casals (ed) 469 ff. Cf Price 2014 Stell LR 501 ff.
27 Note too that while, in delict, patrimonial as well as non-patrimonial damages may be claimed, the latter may not
be recovered in contract (Administrator, Natal v Edouard 1990 3 SA 581 (A) 595–596; Van der Walt and Midgley
Delict 5).
28 Van der Walt and Midgley Delict 5; cf any textbook on the law of contract in connection with the remedies for
breach of contract.
29 “Although delicts and breaches of contract are distinct categories of civil wrong, with differing legal consequences,
it is accepted that the same harm-causing conduct may on occasion constitute both simultaneously. In such cases,
the innocent contracting party may choose to proceed in contract, or in delict, or to frame her claim in the alterna-
tive, although she may not receive a monetary remedy on both grounds” (Price 2014 Stell LR 501–502). See
infra 311 ff on the concurrence of delictual actions and the contractual action.
30 Cf the definition of a delict supra 4.
31 Van der Merwe and Olivier 1–2; Van der Walt and Midgley Delict 4; cf Burchell Delict 2. See further, eg, Esselen
v Argus Printing and Publishing Co Ltd 1992 3 SA 764 (T) 771; Argus Printing and Publishing Co Ltd v Esselen’s
Estate 1994 2 SA 1 (A) 29–30; Innes v Visser 1936 WLD 44 45; Lynch v Agnew 1929 TPD 974, 978; Collins v
Administrator, Cape 1995 4 SA 73 (C) 94; Dikoko v Mokhatla 2006 6 SA 235 (CC) 263; Mogale v Seima 2008 5
SA 637 (SCA) 641–642; Tsedu v Lekota 2009 4 SA 372 (SCA) 379; Seymour v Minister of Safety and Security
2006 5 SA 495 (W) 500; Fose v Minister of Safety and Security 1997 3 SA 786 (CC) 823–828 (cf Loubser and
Midgley Delict 489–491). Note, however, that according to common law and some (particularly earlier) case law
(see, eg, Masawi v Chabata 1991 4 SA 764 (ZH) 772; Steele v Minister of Safety and Security 2009-02-27 case no
10767/2005 (C) paras 125–129 135; Salzmann v Holmes 1914 AD 471 480 483; Gray v Poutsma 1914 TPD 203,
211; Bruwer v Joubert 1966 3 SA 334 (A) 338; Potgieter v Potgieter 1959 1 SA 194 (W) 195; Mhlongo v Bailey
[continued ]
8 Law of Delict
same act may found delictual, as well as criminal, liability.32 This does not mean that the two
legal phenomena always overlap. On the contrary, their difference is emphasised by the fact that
a delict is not necessarily a crime33 and vice versa.34
4 Historical development of delictual liability
4.1 Introduction
In contrast to the casuistic approach of the Roman law of delict, the South African law of delict
is based, as stated, on three pillars: the actio legis Aquiliae, the actio iniuriarum and the action
for pain and suffering.35 Unlike the last-mentioned action, which developed in Roman-Dutch
law, the first two remedies had already played an important role in Roman law. The fields of
application of all three actions have, over the course of time, extended far beyond their Roman-
Dutch law limits.36 In order to ascertain in detail the significance of these actions in the law of
delict, it is necessary to consider their state of development in our law. In this way it can be
determined whether these actions have reached their so-called logical end development, that is,
whether all patrimonial loss caused wrongfully and culpably is actionable with the Aquilian
action, whether every wrongful and intentional injury to personality (iniuria) grounds the actio
iniuriarum, and whether each form of harm that is related to physical-mental integrity and
results from a culpable act may be compensated in terms of the action for pain and suffering.
________________________
1958 1 SA 370 (W) 373; Buthelezi v Poorter 1975 4 SA 608 (W) 615–616 617 618; Pauw v African Guarantee and
Indemnity Co Ltd 1950 2 SA 132 (SWA) 135; SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) 458;
Gelb v Hawkins 1960 3 SA 687 (A) 693; Brenner v Botha 1956 3 SA 257 (T) 262; Kahn v Kahn 1971 2 SA 499
(RA) 500 501–502; Chetcuti v Van der Wilt 1993 4 SA 397 (Tk) 399–401; Afrika v Metzler 1997 4 SA 531 (Nm)
538–539; Pickitup Johannesburg SCO Ltd v Nair 2019 5 SA 540 (GJ) 549 fn 13) the actio iniuriarum (supra 5)
may in certain cases be used to claim punitive damages from the wrongdoer. According to some authors these
common law remnants should be abolished since they disregard the distinction between the law of delict and crim-
inal law, as well as the compensatory nature of delictual remedies (Van der Merwe and Olivier 2–3 fn 10; Van der
Walt and Midgley Delict 3–4; see further the case law cited above). The following comments will suffice for the
present. Although the actio iniuriarum had a penal character in common law, it developed a dual function in case
law, ie, recovery of damages or satisfaction (solatium, solace), firstly as compensation for injured feelings resulting
from intentional infringements of personality rights, and secondly as punishment (punitive or exemplary damages)
to mitigate and neutralise the plaintiff’s feelings of injustice and revenge flowing from the wrong done to him.
Nevertheless, because it is extremely difficult in practice to differentiate between the compensatory and punitive
elements of damages, and in view of valid criticism of an award of punitive damages in a civil action, it is submit-
ted that aggravated compensatory damages should fulfil the function of punitive damages, so that the latter is not
regarded as punishment but as compensation, also for irate feelings, and that in this way provision is made for a
covert penal element that continues to do justice to the true concept of satisfaction (for in-depth discussion, see
Neethling in Boezaart and De Kock (eds) 173 ff, 2008 Obiter 238 ff; see also Potgieter, Steynberg and Floyd Dam-
ages 195–198).
32 Such as theft, fraud and assault, ie, where the crime causes patrimonial damage or injury to personality. The thief,
eg, is not only guilty of a crime, but he is also obliged to compensate the owner of the stolen property for the dam-
age he has caused (see further Van der Walt and Midgley Delict 3; Van der Merwe and Olivier 2).
33 Such as breach of promise and negligent damage to property (Van der Walt and Midgley Delict 3; Van der Merwe
and Olivier 2).
34 Such as blasphemy, high treason and parking offences (Van der Merwe and Olivier 2; Van der Walt and Midgley
Delict 3).
35 Supra 5–6; cf Loubser and Midgley Delict 18.
36 One of the fundamental characteristics of our Roman-Dutch common law is that it is dynamic, fluid, and ever-
changing in order to keep pace with the increasing complexities of modern society. Our courts have not evaded
their responsibility to develop the common law, which has been done by taking heed of the ever-changing legal
convictions of the community, a concept that is now so deeply ingrained in our law that it infuses all areas of the
law (cf the exposition of Mojapelo DJP and Vally J in Nkala v Harmony Gold Mining Company Ltd (Treatment Ac-
tion Campaign NPC as Amici Curiae) 2016 5 SA 240 (GJ) paras 193–198; also RH v DE 2014 6 SA 436 (SCA)
paras 16–18; DE v RH 2015 5 SA 83 (CC) paras 17–19). See Dirix in Potgieter, Knobel and Jansen (eds) 141 ff on
the role of legal culture in the development of the law of delict.
4.2 Actio legis Aquiliae37

Roman law One of the most important sections of Roman law that still exists in our law,
although time has wrought many changes and extensions to it, relates to liability for patrimonial
damage (damnum iniuria datum). Roman law in this regard was based on an Act (plebiscitum)
from 287 BC, and known as the lex Aquilia.38 This Act was divided into three chapters, of which
only the first and the third are still of importance.39 It is noticeable that, according to these two
chapters, the lex Aquilia was originally only applicable to certain forms of damage to things
(corporeal assets). It dealt only with the killing or wounding of a slave or four-footed animal, and
the burning, breaking and destroying of other things. The Aquilian action was furthermore only
available to the owner of the damaged property.40
Over the course of time, the field of application of the Aquilian action has been extended con-
siderably as a result of extensive interpretation of the lex and the granting of actiones utiles and
in factum. Consequently, Aquilian liability could ensue after any kind of physical infringement
of a thing, and not only, as was originally the case, after infringements of a specific, defined
nature.41 A further important development was that the wrongdoer had to compensate not only
for the damage that had been caused to the thing itself, but also for all patrimonial damage that
resulted from his wrongful act (id quod interest).42 In Justinian’s time, the extension was such
that, apart from the owner, other holders of real rights43 – and in at least one instance the holder
of a personal right in respect of the thing (the colonus partiarius)44 – were also protected against
damage to property.
In addition to damage to property, the actio legis Aquiliae was made applicable to two further
instances of patrimonial loss resulting from bodily injuries: a father could claim for patrimonial
loss suffered as a result of the injury of his child, while a free man (liber homo) could claim for
patrimonial loss resulting from his own personal injuries.45
It is, however, not exactly clear what dimensions the extension of Aquilian liability had reached
in Justinian’s time. Nevertheless, the general opinion seems to be that, although interests other
than ownership were also protected, a perceptible, physical infringement of a concrete object, ie,
a thing or the body of a person, was still required.46 The reasons for this are probably twofold.
Firstly, the lex Aquilia was, as already mentioned, initially only applicable to certain physical
infringements of corporeal legal interests. It is therefore understandable that the extension by
analogy of Aquilian liability was still connected to physical infringements. Secondly, the wrong-
fulness of a physical infringement was readily apparent to the less sophisticated legal mind. The
infringement constituted, as it were, a conspicuous peg on which an evaluation of wrongfulness
could be hung. However, when a person suffered harm that was not caused by a physical in-
fringement, the Roman jurist had no criterion by which to evaluate the act.47
________________________
37 See in general Van der Walt and Midgley Delict 16 ff; Neethling Van Heerden-Neethling Unlawful Competition 74 ff;
Van der Merwe and Olivier 5 ff; Loubser and Midgley Delict 29; Fagan Aquilian Liability ix ff.
38 See in general Van der Merwe and Olivier 6 ff; Van der Walt and Midgley Delict 10–13.
39 The second chapter had already fallen into disuse in Roman law.
40 See in general Van der Walt and Midgley Delict 10 12; Van den Heever Aquilian Damages 8–14; Van der Merwe
and Olivier 6–7 8.
41 Van den Heever Aquilian Damages 28; Van der Walt and Midgley Delict 10.
42 Van den Heever Aquilian Damages 27–28; Van der Walt and Midgley Delict 10.
43 Such as the bona fide possessor, the pledgee, the holder of a servitude, the usufructuary and the heir (Van der
Merwe and Olivier 8; Van der Walt and Midgley Delict 12).
44 D 9 2 27 14 (sharecropper).
45 D 9 2 53 and D 9 2 13 pr (Van der Merwe and Olivier 8; Van der Walt and Midgley Delict 12).
46 Van den Heever Aquilian Damages 28; Van der Walt and Midgley Delict 11–12. That does not mean that the
object itself necessarily had to be damaged or destroyed. In I 14 3 16, recognition is given to the applicability of an
actio in factum in the case where a slave had been set free and was thus able to escape.
47 It is important to bear in mind that although in classical Roman law fault (either intent or negligence) on the part of
the wrongdoer was already stated as a requirement for liability (Van den Heever Aquilian Damages 26–27; Van der
Walt and Midgley Delict 11), the nature of the act (and its effect) was of primary importance, and the attitude of the
wrongdoer of secondary importance.
10 Law of Delict
Notwithstanding this restriction, it is clear that the progression, from liability based on damage
to property, to a more general liability for patrimonial loss, began to develop in Roman law. This
was apparent from the fact that the aggrieved party could claim his id quod interest, and, in
certain cases, damages for the patrimonial loss he may have suffered as a result of bodily in-
juries. Thus the way was prepared for the expansion of the Aquilian action into a general remedy
for all patrimonial loss caused wrongfully.
Roman-Dutch law In Roman-Dutch law, the dimensions of Aquilian liability underwent very
important extensions, going beyond the limits of Roman law. Firstly, there were definite indica-
tions that the requirement of physical impairment of a thing was no longer insisted upon.48
Secondly, damages could be claimed with the Aquilian action for patrimonial damage resulting
from any injury to personality (iniuria)49 and not only, as was the case in Roman law, for an
injury to personality in the form of bodily injury.50 Thirdly, Roman-Dutch law went much
further than Roman law in granting an action to the holder of a personal right in respect of a
thing. The availability of the Aquilian action was extended to the borrower, the fullo51 (or
persons in similar relationships to the owner) and the lessee of the services of a slave or ser-
vant.52 Lastly, the actio legis Aquiliae in Roman-Dutch law was also available to the dependants
of a free person who had been killed,53 and to parents or employers for patrimonial loss suffered
where a child or domestic servant had been injured.54
These important developments do not indicate, however, that the Aquilian action in Roman-
Dutch law had developed into a general remedy for the culpable and wrongful causing of patri-
monial damage. Since none of the old authorities makes this point unequivocally, it does not
seem as if the law had advanced to this level.55 There are nevertheless a number of South Afri-
can decisions in which a different conclusion about the position in Roman-Dutch law was reached.
For example, in The Cape of Good Hope Bank v Fischer,56 De Villiers CJ stated with reference to
Voet and Matthaeus:57
It appears from both these authors that in their time the Aquilian law had received an extension by anal-
ogy to a degree never permitted under the Roman law. The action in factum was no longer confined to
cases of damage done to corporeal property, but was extended to every kind of loss sustained by a person
in consequence of the wrongful acts of another.58
South African case law Whatever the end result was in Roman-Dutch law, the above-men-
tioned decisions nevertheless give the impression that, in modern South African law, Aquilian
liability results from every culpable and wrongful act that causes patrimonial damage.59 This
________________________
48 Voet 20 1 11 says that an actio in factum must be given to a prejudiced creditor against the actuarius who culpably
omits to comply with the formalities concerning the creation of a hypothec, or who, when asked about it, declares
that property is unmortgaged while this is in fact not the case. (See also Matthaeus 1 19 86; The Cape of Good
Hope Bank v Fischer (1886) 4 SC 368; cf in general Van der Walt and Midgley Delict 13.)
49 Voet 47 10 18. Voet states that only the amende honorable and amende profitable (which replaced the actio
iniuriarum in Roman-Dutch law: infra 14) could be instituted for iniuria, except where the iniuria also caused
patrimonial damage. In such a case damages could then be claimed under the lex Aquilia. See Descheemaeker 2015
SALJ 909 ff for a detailed discussion of the amende honorable.
50 Cf however De Villiers Injuries 155 fn 20 184.
51 That is, a person who receives clothes for the purpose of repairing them for remuneration.
52 Eg Voet 9 2 10; Van der Walt and Midgley Delict 13. In the case of the servant, of course, one is not dealing with
damage to property.
53 Eg Voet 9 2 11; Van der Walt and Midgley Delict 15.
54 Eg De Groot 3 34 3; Van der Walt and Midgley Delict 16.
55 Neethling Van Heerden-Neethling Unlawful Competition 71; cf however Van der Walt and Midgley Delict 17.
56 (1886) 4 SC 368 376.
57 Supra fn 48.
58 See also Matthews v Young 1922 AD 492 504; Bester v Commercial Union Versekeringsmaatskappy van SA Bpk
1973 1 SA 769 (A) 776–777.
59 Or at least certain kinds of patrimonial damage where a physical infringement (damage to property or impairment
of personality) was completely out of the question.
viewpoint was given prominence by the following remark, made by Watermeyer J in Perlman v
Zoutendyk:60
Roman-Dutch law approaches a new problem in the continental rather than the English way, because in
general all damage caused unjustifiably (injuria) is actionable, whether caused intentionally (dolo) or by
negligence (culpa).
Nowadays, there is no dearth of decisions underscoring the viewpoint that the Aquilian action
has in fact reached its logical end development in South African law. In contradistinction to
earlier cases,61 which require physical injury to person or property to found Aquilian liability, it
is today established law that compensation for so-called “pure” economic loss62 may in principle
be claimed ex lege Aquilia.63 In Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty)
Ltd,64 Booysen J stated clearly:
The legal basis of the plaintiff ’s claim is the lex Aquilia. In essence the Aquilian action lies for patrimo-
nial loss caused wrongfully (or unlawfully) and culpably. Although the contrary view had long been held
by many authorities, it seems clear that the fact that the patrimonial loss suffered did not result from
physical injury to the corporeal property or person of the plaintiff, but was purely economic, is not a bar
to the Aquilian action.
The Appellate Division confirmed this view in respect of delictual liability for negligent misrep-
resentation65 and unlawful competition.66
The development of the actio legis Aquiliae to its logical conclusion is however hampered by
Union Government v Ocean Accident and Guarantee Corporation Ltd.67 As a result of this
decision, the courts have (as a rule) refused to extend Aquilian liability for negligent interference
with a contractual relationship beyond certain historically justified exceptions.68 Be that as it
________________________
60 1934 CPD 151 155; see also supra fn 14.

61 Such as Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd 1972 4 SA
185 (T) 191–192.
62 See infra 349 ff for a definition of this concept.
63 See, eg, Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N); Freddy Hirsch
Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA); Indac Electronics (Pty) Ltd v Volkskas Bank Ltd
1992 1 SA 783 (A); Minister of Law and Order v Kadir 1995 1 SA 303 (A); BOE Bank Ltd v Ries 2002 2 SA 39
(SCA); Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461
(SCA); Minister of Finance v Gore 2007 1 SA 111 (SCA); Fourway Haulage SA (Pty) Ltd v SA National Roads
Agency Ltd 2009 2 SA 150 (SCA). See in general Loubser and Midgley Delict 274–280; Van der Walt and Midgley
Delict 136–141; Boberg Delict 103 ff; Fagan Aquilian Liability xxi. This is dealt with in detail infra 349 ff.
64 1982 4 SA 371 (D) 377.
65 Eg Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A); also see, eg, Delphisure Group Insur-
ance Brokers Cape (Pty) Ltd v Dippenaar 2010 5 SA 499 (SCA); Cape Empowerment Trust Limited v Fisher
Hoffman Sithole 2013 5 SA 183 (SCA); mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA); ABSA
Bank Ltd v Fouche 2003 1 SA 176 (SCA); OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA
688 (SCA); Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A); EG Elec-
tric Co (Pty) Ltd v Franklin 1979 2 SA 702 (E). (See in general Loubser and MidgleyDelict 269–273; Neethling
and Potgieter 1980 De Rebus 179–182; Boberg Delict 58 ff. This is discussed in detail infra 357 ff.) In Bayer South
Africa (Pty) Ltd v Frost 1991 4 SA 559 (A), the court also extended delictual liability for negligent misrepresenta-
tion to instances where the misrepresentation led to the conclusion of a contract (see infra 367–368). Initially, the
courts were reluctant to grant a delictual action based on negligent misrepresentation to a contracting party if a
breach of the contract caused only pure economic loss. Now a claim ex delicto is in order, provided all the delictual
requirements are complied with (see infra 312 ff).
66 Eg Schultz v Butt 1986 3 SA 667 (A); Taylor and Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 1 SA 412 (A); Phumelela
Gaming and Leisure Ltd v GrĦndlingh 2007 6 SA 350 (CC); Premier Hangers CC v Polyoack (Pty) Ltd 1997 1 SA
416 (A); Geary and Son (Pty) Ltd v Gove 1964 1 SA 434 (A). See in general Neethling Van Heerden-Neethling Un-
lawful Competition 74 ff; Loubser and Midgley Delict 294–304. This is discussed in detail infra 373 ff.
67 1956 1 SA 577 (A).
68 As will be seen (see infra 368 ff for a detailed discussion), intent is set as a requirement for liability – this also
applies to liability for so-called “injurious falsehood” (see Neethling Van Heerden-Neethling Unlawful Competition
72–73 for a critical discussion).
12 Law of Delict
may, there are indications that the Supreme Court of Appeal has commenced reconsidering its
decision in this respect.69
It may be concluded that, despite a few decisions to the contrary, there is a very strong tendency
in case law to recognise Aquilian liability for all patrimonial loss caused wrongfully and culp-
ably. It is in any event apparent that the extent of this liability has increased a great deal in
modern law70 and can still be expanded. Indeed, in Union Government (Minister of Railways
and Harbours) v Warneke,71 Innes JA held:
The position of our law with regard to negligence to-day is the result of the growth and the regulated
expansion of the original provisions of the Lex Aquilia. Crude and archaic in some respects, their opera-
tion was gradually widened by the application of the utilis actio, and by the interpretation of the Roman
jurists. The broadening process was continued by Dutch lawyers on the same lines; and there is no rea-
son why our Courts should not similarly adapt the doctrine and reasoning of the law to the conditions of
modern life, so far as that can be done without doing violence to its principles.
From this it is apparent that there can be no objection to the extension by analogy of the dimen-
sions of Aquilian liability in order to cope with changing circumstances. And, since the Appel-
late Division in Administrateur, Natal v Trust Bank van Afrika Bpk72 treated infringements of
corporeal objects (such as things) and incorporeal objects (such as the general patrimonial
interests that could be at stake in the case of misrepresentations) alike for the purposes of Aqui-
lian liability (and thus in principle denied a distinction between the causing of damage by words
on the one hand and by deeds on the other), there is no reason why every infringement of any
incorporeal object should not ground the actio legis Aquiliae, provided that all the requirements
for the action are met.
This does not mean that a liberal approach should be followed in every case. On the contrary,
our courts adopt a conservative approach to the expansion of the Aquilian action and will,
according to Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd,73 only
permit such an extension if it is justified by policy considerations:
South African law approaches the matter in a more cautious way . . . and does not extend the scope of the
Aquilian action to new situations unless there are positive policy considerations74 which favour such an
75
extension.
________________________
69 See Minister for Safety and Security v Scott 2014 6 SA 1 (SCA) 11í12; cf Dantex Investment Holdings (Pty) Ltd v
Brenner 1989 1 SA 390 (A) 395; see also Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA
378 (D) 380–381. This is discussed in detail infra 368 ff.
70 In South African case law the availability of the Aquilian action to persons who only have a personal right with
regard to a thing was also extended further than in Roman-Dutch law: see Smit v Saipem 1974 4 SA 918 (A) (hire-
purchaser); also Tarmacadam Services (SA) (Pty) Ltd v Minister of Defence 1980 2 SA 689 (T) (long-term lessee).
71 1911 AD 657 664–665; see also Latham v Sher 1974 4 SA 687 (W) 694; Zimnat Insurance Co Ltd v Chawanda
1991 2 SA 825 (ZS) 829–833 (1990 1 SA 1019 (ZH)).
72 1979 3 SA 824 (A).
73 1985 1 SA 475 (A) 500 503–504; see further, eg, Country Cloud Trading CC v MEC, Department of Infrastructure
Development 2015 1 SA 1 (CC) 9í10; South African Hang and Paragliding Association v Bewick 2015 3 SA 449
(SCA) 461; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461
(SCA) 468; AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) 620–622; Steenkamp NO v Provincial Tender
Board, Eastern Cape 2006 3 SA 151 (SCA) 162; Trustees, Two Oceans Aquarium Trust v Kantley & Templer (Pty)
Ltd 2006 3 SA 138 (SCA) 145; Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 618–619; Living
Hands (Pty) Ltd v Ditz 2013 2 SA 368 (GSJ) 378–379; Natal Fresh Produce Growers’ Association v Agroserve
(Pty) Ltd 1990 4 SA 749 (N) 754; Joubert v Impala Platinum Ltd 1998 1 SA 463 (B) 476; McMurray v HL&H
(Pty) Ltd 2000 4 SA 887 (N) 903; cf Kadir v Minister of Law and Order 1992 3 SA 737 (C) 742. See further Neeth-
ling and Potgieter 2007 THRHR 130.
74 See in general Van Aswegen 1993 THRHR 171 ff with regard to the role of policy considerations in the law of
delict.
75 Although this apparently deals with the question of whether it is desirable or essential to recognise (or extend)
Aquilian liability, it is often equated with the determination of wrongfulness as element of a delict. This contentious
issue is discussed in depth infra 100–102.
4.3 Actio iniuriarum76

Roman law The Roman law concerning liability for injury to personality (iniuria) is of cardinal
importance to our law, since it has been adopted almost without change in South Africa.77 The
protection of personality had its origin in the Twelve Tables and was directed mainly at the
physical person, ie, bodily integrity as an interest of personality. Penalties in the form of fixed
fines were imposed for os fractum (the fracturing of a bone) and membrum ruptum (the sever-
ance of a limb) on the one hand, and for iniuria in a specific sense (less serious bodily injuries)
on the other.78
Over the course of time, the protection of personality has been extended considerably by praeto-
rian reforms. Firstly, the rigid fines of the Twelve Tables have been replaced by a judicial
taxatio, in accordance with the bodily infringement complained of. Secondly, the protection of
personality has also been made applicable to the following non-physical interests:79 good
name,80 dignity,81 feelings of chastity82 and privacy.83
These extensions eventually resulted in the iniuria concept developing into a general delict in
the classical period.84 One should, however, always bear in mind that the Roman law approach
to the field of iniuria was casuistic.85 There was no question of an organised system for the
protection of personality rights. Consequently, in order to ascertain the extent of the protection
of personality – ie, which interests of personality were legally recognised – it is necessary to
classify the casuistry of the sources according to one or other system. The generally acceptable
classification of iniuriae found in Roman law86 is that the actio iniuriarum was applicable to
impairments of corpus, fama and dignitas. However, although one may identify corpus and fama
as independent interests of personality with more or less fixed meanings, the same cannot be
said of dignitas. Dignitas was in any case not regarded as synonymous with honour or dignity as
an interest of personality, but rather as a collective term for all interests of personality other than
corpus and fama, which in Roman law had not yet been clearly distinguished from each other
and independently defined.87 As a result, the door was left open for further development in the
protection of personality by the praetor. In consequence, it is hardly surprising that various
interests of personality, although not mentioned eo nomine, were included in the concept of
dignitas in Roman law and as a result were brought under the protection of the actio iniuriarum.
Apart from dignity, feelings of chastity and privacy that had already been identified as protected
interests under the praetorian edicts, feelings of piety and religious and family feelings88 were
now also, in certain cases, regarded as worthy of protection.
________________________
76 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 59 ff and Du Bois 2019 Acta Juridica
229 ff on the transformation of the actio iniuriarum from a punitive action into a reparative one, from its Roman
origins via seventeenth-century Holland to South African law today.
77 See, eg, Du Bois 2019 Acta Juridica 229 ff who states (279) that “South African law has retained more of the
Roman actio iniuriarum than the husk of its name”.
78 Van der Walt and Midgley Delict 15–16; Neethling, Potgieter and Roos Neethling on Personality Rights 62.
79 Neethling, Potgieter and Roos Neethling on Personality Rights 62–64.
80 D 47 10 15 25, 27 (defamation of a person as an iniuria).
81 D 47 10 15 2 (public ridicule of a person as an iniuria) and D 47 10 15 22 (addressing or following of someone in
an indecent manner as an iniuria). Cf Burchell 2019 Acta Juridica 207 ff.
82 D 47 10 15 15–18 (abduction of the companion of a woman or young man as an iniuria).
83 D 47 10 5 pr (violent entering of a house as an iniuria).
84 D 47 10 1 pr; Neethling, Potgieter and Roos Neethling on Personality Rights 64–67.
85 The emphasis falls mainly on the ways in which an iniuria can be committed: see Neethling, Potgieter and Roos
Neethling on Personality Rights 60 fn 16.
86 D 47 10 1 2.
87 See Neethling, Potgieter and Roos Neethling on Personality Rights 72í75 for a summary of the views on the
concept of dignitas, especially on the distinction between dignity, dignitas and the constitutional concept of human
dignity (see also infra 420 fn 300).
88 Eg D 47 10 27: the actio iniuriarum was available to the family members of a deceased whose gravestone had been
damaged.
14 Law of Delict
One may assume with a reasonable measure of certainty that, in addition to the requirement that
a legally recognised interest of personality had to be infringed, Roman law required intent (dolus
or animus iniuriandi) on the part of the wrongdoer before an iniuria could be said to have been
committed.89 The requirement that the infringement must be accompanied by contumelia indi-
cates only the intentional contempt (violation) of another’s personality, and does not mean, as
has sometimes incorrectly been stated, that the intent to insult or to violate a person’s honour
had to accompany every iniuria.90
One may conclude that although the concept of iniuria developed into a general delict intended
to protect personality interests, it would be unwise to maintain that the actio iniuriarum protect-
ed the personality in its entirety. At most, it can be said that in principle the action was available
for every intentional infringement of a person’s corpus, fama or dignitas. The door was, how-
ever, left open for further development in the sphere of personality protection, since the concept
of dignitas was wide enough to include new facets of the personality deemed worthy of protec-
tion.
Roman-Dutch law In essence, the Roman law delict iniuria remained unaltered in Roman-
Dutch law.91 Although the field of iniuria had been approached differently by various writers of
the time,92 it is apparent that, insofar as the identification of protected interests of personality is
concerned, they did not proceed much further than the level reached in Roman law. Apart from
the fact that some writers identified libertas (freedom) as an additional personality interest,93 the
only other protected interests on which unanimity existed were corpus and fama. As was the
case in Roman law, dignitas (and related concepts such as hoon (used by De Groot)94 and eer
(used by Van der Linden)),95 was not regarded as an independent, clearly defined interest of
personality. These concepts may therefore be regarded as collective terms for interests of per-
sonality which were neither identified nor clearly delimited in Roman-Dutch law, and which
were broad enough to include new interests of personality worthy of protection.
Similarly, the old writers did not depart in any material way from Roman law with regard to the
requirements for liability for an iniuria.96 It must, however, be emphasised that, unlike Roman
law, the old writers expressly required intent (dolus malus or animus iniuriandi) as an element of
liability for an iniuria. Although the concept contumelia was also used, the writers do not appear
to attach a specific meaning to it. All that it probably refers to is conduct that demonstrates
contempt for a person’s personality. No support can be found in their writings for the view that
contumelia should be interpreted exclusively to mean insult or injury to a person’s honour.97
In conclusion, mention should be made of a particular development in the field of personality
protection in Roman-Dutch law. The actio iniuriarum was replaced by two actions, the amende
profitable and the amende honorable. The former, like the actio iniuriarum, was aimed at the
recovery of satisfaction. The latter departed completely from the actio iniuriarum: an injured
________________________
89 Neethling, Potgieter and Roos Neethling on Personality Rights 67; Van der Walt and Midgley Delict 16.
91 Idem 45–49; Van der Walt and Midgley Delict 14; Van der Merwe and Olivier 14–15.
92 Neethling, Potgieter and Roos Neethling on Personality Rights 67–71; Du Bois 2019 Acta Juridica 236 ff.
94 3 35 1; Neethling, Potgieter and Roos Neethling on Personality Rights 68–69.
95 Cf Joubert Grondslae113 fn 25.
96 It is, however, very important that Matthaeus (47 4 1 1) in his definition of the delict iniuria, now expressly
recognises the boni mores (legal convictions of the community) as the criterion for wrongfulness. This criterion
(which is discussed in detail infra 39 ff) already applied in Roman law with regard to some praetorian edicts as the
basis for extending the protection of personality (Neethling, Potgieter and Roos Neethling on Personality Rights
62–65). Thus, Matthaeus draws attention to the important function that the boni mores fulfil with regard to iniuria
(Neethling, Potgieter and Roos Neethling on Personality Rights 78 ff; Joubert Grondslae 109; Van der Merwe and
Olivier 14).
person could claim a palinodia or recantatio, ie, demand that the wrongdoer withdraw his words
and deny the truth thereof; as well as a deprecatio, ie, an admission of guilt and a request for
forgiveness.98 99
South African case law100 The question of whether and to what extent South African case law
has built on the common law basis in respect of the identification and recognition of personality
interests now arises. Firstly, it should be noted that, apart from certain English law influences
regarding iniuriae,101 the common law delict iniuria has actually undergone no change in South
African law. In fact, the courts (almost without exception) start with Voet’s definition of this
delict.102 In R v Umfaan,103 for example, Innes CJ stated with reference to Voet that an iniuria:
is a wrongful act designedly done in contempt of another, which infringes his dignity, his person and his
reputation. If we look at the essentials of iniuria we find . . . that they are three. The act complained of
must be wrongful; it must be intentional; and it must violate one or other of those real rights, those rights
in rem, related to personality, which every free man is entitled to enjoy.
In short, then, an iniuria is the wrongful, intentional104 infringement of or contempt for a per-
son’s corpus, fama or dignitas.105 For present purposes, only the last of these concepts requires
discussion.
The present position is that the courts identify, recognise and protect corpus (physical integrity)
and fama (good name) as separate interests of personality.106 However, views about the meaning
to be attached to the concept of dignitas vary considerably.107
On the one hand, certain decisions108 limit dignitas to the personality interest of dignity or
honour, and consequently require an “element of degradation, insult or contumelia” for an
iniuria to have been committed against the dignitas. The emphasis on contumelia in the sense of
an insult is furthermore not restricted solely to iniuria pertinens ad dignitatem. There are deci-
sions that go so far as to require contumelia in this sense for every iniuria.109 No support can,
however, be found for these views in our common law sources. Contumelia in the sense of an
insult was at no stage a general requirement for the delict iniuria. Furthermore, the concept of
________________________
98 Joubert Grondslae 112; Van der Merwe and Olivier 14–15; Van der Walt and Midgley Delict 15.
99 After falling into disuse in South Africa for 150 years, the amende honorable has been resurrected in case law (see
Descheemaeker 2015 SALJ 909 ff; infra 308 fn 24).
100 Neethling, Potgieter and Roos Neethling on Personality Rights 71–96; Du Bois 2019 Acta Juridica 257 ff.
101 This is discussed in detail infra 398 420 443.
102 47 10 1.
103 1908 TS 62 66; for further examples from the case law, see Walker v Van Wezel 1940 WLD 66 67; Carelse v Van
der Schyff 1928 CPD 91 94; Brenner v Botha 1956 3 SA 257 (T) 260–261; S v A 1971 2 SA 293 (T) 297; Matthews
v Young 1922 AD 492 503; Boswell v Union Club of SA (Durban) 1985 2 SA 162 (D) 164–165; R v Chipo 1953 4
SA 573 (A) 576; cf SAUK v O’Malley 1977 3 SA 394 (A) 402.
104 However, an opinion that intent should be replaced by negligence as requirement for iniuria has, for very good
reasons, been advanced (see Neethling, Potgieter and Roos Neethling on Personality Rights 88–89; Neethling 2008
SALJ 43–45; Knobel 2002 THRHR 24 ff; Marais v Groenewald 2001 1 SA 634 (T) 646). It is not surprising that
negligence has, over the course of time, been accepted as the fault requirement of certain forms of defamation (see
infra 415). Furthermore, it has been submitted that animus iniuriandi should be abandoned in favour of gross negli-
gence in respect of malicious prosecution as iniuria (infra 418–419). Moreover, strict liability applies in respect of
wrongful deprivation of liberty and wrongful attachments of property (see infra 398 419 443–444). See, however,
Midgley in Boezaart and De Kock (eds) 187 ff.
105 In Hofmeyr v Minister of Justice 1993 3 SA 131 (A) 154, the court formulates this principle in the following words:
“Injuria is the wrongful and intentional infringement of an interest of personality.” See further NM v Smith (Free-
dom of Expression Institute as amicus curiae) 2007 5 SA 250 (CC) 265–266.
106 See infra 392 399.
107 Cf Jackson v NICRO 1976 3 SA 1 (A) 11.
108 Eg Walker v Van Wezel 1940 WLD 66 70 (see also 68); R v Umfaan 1908 TS 62 68; Kidson v SA Associated News-
papers Ltd 1957 3 SA 461 (W) 467; Mhlongo v Bailey 1958 1 SA 370 (W) 371–372.
109 Eg Matthews v Young 1922 AD 492 503, where De Villiers JA said that “there is an element of contumelia, insult,
in every iniuria in this sense, for which this action lies”. Only contumelious or insulting infringements of corpus,
dignitas and fama are thus regarded as iniuriae.
16 Law of Delict
dignitas was never restricted to the personality interest of “dignity”.110 For these reasons, the
rejection of these views by the Appellate Division can be wholeheartedly supported.111
On the other hand, one encounters decisions that correctly interpret the concept of dignitas in its
broad common law meaning and refuse to restrict its application to the personality interest of
“dignity”. The leading decision in this regard is O’Keeffe v Argus Printing and Publishing Co
Ltd.112 Watermeyer AJ113 accepted that the actio iniuriarum is available for “an intentional
wrongful act which constitutes an aggression upon [a plaintiff’s] person, dignity or reputation”.
Since in this case there was no question of the infringement of the plaintiff’s “person” or “repu-
tation”, the only question was whether there was infringement of “dignity” or “those rights
relating to . . . dignity”. It is evident from the judgment that the judge interpreted dignitas114 so
widely that it encompasses all aspects of the legally protected personality, except fama and
corpus. As such, dignitas cannot be considered as a single interest of personality; it is rather a
concept encompassing all “those rights relating to . . . dignity”.115 Dignitas is thus a collective
term for all rights (interests) of personality with the exception of the rights to good name and to
physical integrity.
This view of the concept of dignitas can be supported.116 As indicated, it accords with the wide
common law meaning attached to the concept. Another important point is that this approach
offers a good basis for the identification, recognition and delimitation of individual, independent
rights of personality in South African law. In this way, the proper scientific classification and
practical handling of personality rights (apart from those relating to corpus and fama) can find
application in positive law. At the same time, dignitas serves as a basis for the extension of
personality protection.
The question of which rights of personality are accorded independent recognition and protection
by our positive law is discussed below. For the moment, it suffices to say that, apart from fama
and corpus, dignity, privacy, and to a lesser extent feelings and identity, are accorded protection
and recognition in our case law.117
4.4 Action for pain and suffering

Unlike the Aquilian action and the actio iniuriarum, the action for pain and suffering did not
originate in Roman law. No compensation could be claimed under Roman law for the negligent
causing of bodily injuries.118
By contrast, the position in Roman-Dutch law, under the influence of Germanic customary law,
was that pain, suffering and bodily disfigurement as a result of physical injuries founded an
________________________
110 See also Joubert Grondslae 93–94.

111 Foulds v Smith 1950 1 SA 1 (A) 11; see also O’Keeffe v Argus Printing and Publishing Co Ltd 1954 3 SA 244 (C)
248; cf further Moaki v Reckitt and Colman (Africa) Ltd 1968 3 SA 98 (A) 104; Jackson v NICRO 1976 3 SA 1 (A)
10–11; Neethling, Potgieter and Roos Neethling on Personality Rights 72 fn 164.
112 1954 3 SA 244 (C).
113 247–248.
114 It is important to note that for the judge the concepts of “dignity” and dignitas are identical.
115 This viewpoint is also apparent from Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357
(W) 366–367; Khumalo v Holomisa 2002 5 SA 401 (CC) 418; Gosschalk v Rossouw 1966 2 SA 476 (C) 490;
Fayd’herbe v Zammit 1977 3 SA 711 (D) 718–719; cf also S v A 1971 2 SA 293 (T) 297. The approach in the
O’Keeffe case with regard to the delict iniuria has also by implication been accepted by the Appellate Division
(Moaki v Reckitt and Colman (Africa) Ltd 1968 3 SA 98 (A) 104; see also DE v RH 2015 5 SA 83 (CC) 86 fn 5).
116 See also McQuoid-Mason Privacy 124–125; Neethling, Potgieter and Roos Neethling on Personality Rights 74–75;
Van der Walt and Midgley Delict 168; Neethling in Nagel (ed) 91–93; Snyman Criminal Law 462.
117 In Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC)
253, Moseneke DCJ declared: “Besides bodily integrity, our law recognises and protects other personality interests
such as dignity, mental integrity, bodily freedom, reputation, privacy, feeling, and identity.”
118 Joubert Grondslae 111; Visser Kompensasie en Genoegdoening 199–204.
action.119 Although this action was dealt with by most of the old writers in the same breath as the
Aquilian action, the two actions were nevertheless different. In Roman-Dutch law, the actio
legis Aquiliae was restricted to patrimonial damage, and thus did not include compensation for
injury to personality as a result of pain and suffering.120 However, the action for pain and suffer-
ing did not reach its logical end development in Roman-Dutch law. Clearly not every form of
harm relating to physical-mental integrity and resulting from a culpable act was actionable, as
the old authorities only mention compensation for pain, suffering and bodily disfigurement.121
No reference was made to other forms of harm related to physical-mental integrity, such as
shock, loss of amenities of life and loss of life expectancy.
The action for pain and suffering has been adopted by South African law and is considered by
the courts, just as in Roman-Dutch law, to be a unique action that cannot be classified with the
actio legis Aquiliae or with the actio iniuriarum.122 The courts, however, continued to develop
the action, with English law playing an important role, to the extent that it now protects the
physical-mental integrity of a person in its entirety.123 In addition to pain, suffering and disfig-
urement, which had already been identified at common law, this protection is particularly
apparent insofar as psychological or mental injury is equated with physical (bodily) injury in the
area of emotional shock,124 and loss of (or shortened) life expectancy,125 amenities of life and
health126 are recognised as injuries to personality for which compensation may be claimed. In
this regard, one must nevertheless warn that the classification of specific forms of harm related
to physical-mental integrity should not be taken too far. There is no sense in further subdividing
such harm to the personality by making subtle distinctions and it may be assumed that all pos-
sible forms that should be protected in South African law have probably already been recog-
nised. Further developments may be accommodated through the extension and interpretation of
existing forms.127
5 The law of delict, the Constitution and fundamental (human)

rights
The Constitution of South Africa is the supreme law of this country, and any conduct or law
which is inconsistent with it is invalid.128 Certain fundamental rights, to which juristic persons
________________________
119 Eg Voet 9 2 11; De Groot 3 34 2; Matthaeus 47 3 3 4; Van der Linden 1 16 3; see in general Visser Kompensasie
en Genoegdoening 207–218; Joubert Grondslae 111; Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965
2 SA 944 (C) 950–951; Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A) 776.
120 Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 2 SA 944 (C) 951–952; Van der Walt and Midgley
Delict 15–16; cf however Visser Kompensasie en Genoegdoening 217–218.
121 See Visser Kompensasie en Genoegdoening 92 fn 4 for authority.
122 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A) 776; Government of the
Republic of South Africa v Ngubane 1972 2 SA 601 (A) 606; Administrator, Natal v Edouard 1990 3 SA 581 (A)
595; Guardian National Insurance Co Ltd v Van Gool 1992 4 SA 61 (A) 65; Hoffa v SA Mutual Fire and General
Insurance Co Ltd 1965 2 SA 944 (C) 950–952; Van der Merwe and Olivier 244–246; cf Burchell Delict 12; cf
however Brandon v Minister of Law and Order 1997 3 SA 68 (C) 78–79, where the court failed to appreciate the
sui generis nature of the action for pain and suffering (see Neethling 1997 THRHR 707–709 for criticism). In Min-
ister of Finance v EBN Trading (Pty) Ltd 1998 2 SA 319 (N) 324, Magid J, by implication, even wrongly denied
the existence of this action when he opined: “In our law all delicts give rise to claims based on either the actio
injuriarum or on the lex Aquilia” (cf also Burchell Delict 19).
123 Visser Kompensasie en Genoegdoening 226; cf in general idem ch 3.
124 Infra 342 ff; cf Visser Kompensasie en Genoegdoening 230–234.
125 Visser idem 234–236; Van der Merwe and Olivier 243.
126 Van der Merwe and Olivier 242–243; cf Visser Kompensasie en Genoegdoening 245–246.
127 Visser idem 92–93.
128 Constitution of the Republic of South Africa, 1996 s 2.
18 Law of Delict
are also entitled,129 are entrenched in Chapter 2 (the Bill of Rights) of the Constitution. Chap-
ter 2 is applicable to all law – therefore also to the law of delict – and does not only vertically
bind the state (the legislature, the executive, the judiciary and all organs of the state),130 but also
horizontally binds all natural and juristic persons.131
The fundamental rights may be limited by a law of general application, but only to the extent
that the limitation is both reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom. The fundamental rights are thus not absolute rights. In
judging the lawfulness of a limitation, all relevant factors must be taken into account, including
the nature of the fundamental right, the importance of the purpose of the limitation, the nature
and extent of the limitation, the relation between the limitation and its purpose, and less restric-
tive means of achieving this purpose.132 133
When interpreting the provisions of Chapter 2, the courts must promote the values that underlie
an open and democratic society based on human dignity, equality and freedom.134 In this pro-
cess, applicable international law must be taken into account, and the courts have a discretion to
have regard to comparable foreign law as well.135 Furthermore, in the interpretation of any
legislation, and when developing both the common and customary law, the courts must
promote the spirit, purport and objects of the Bill of Rights.136 In Carmichele v Minister
of Safety and Security (Centre for Applied Legal Studies Intervening),137 the Constitutional
Court stated unequivocally that where the common law deviates from the spirit, purport and
objects of the Bill, the courts have a general duty to develop the common law to eliminate the
deviation.138 However, many of the fundamental rights that are important to the law of delict139
________________________
129 To the extent required by the nature of the fundamental right(s) and the nature of the juristic person concerned
(Constitution, 1996 s 8(4); see Neethling, Potgieter and Roos Neethling on Personality Rights 104 fn 484 111
fn 546).
130 Constitution, 1996 s 8(1).
131 Constitution, 1996 s 8(1). Unlike the interim Constitution, 1993 (see, eg, Dendy 1996 De Rebus 604; Van Aswegen
1995 SAJHR 52 ff; Van der Vyver 1995 SALJ 572 ff; Visser in Van Aswegen (ed) 29 ff; Woolman 1996
SALJ 428 ff), the Bill of Rights also has horizontal application (see Van der Walt and Midgley Delict 18; Woolman
1996 SALJ 449 ff; Visser 1997 THRHR 299–303, 1998 De Jure 143–150, 1997 THRHR 495; Neethling, Potgieter
and Roos Neethling on Personality Rights 123 ff; Burchell Personality Rights 65 ff). See Fagan Aquilian Liability
xxxi–xxxii who says that, with the exception of Minister of Safety and Security v Van Duivenboden 2002 6 SA 431
(SCA), where the court, invoking s 39(2), as well as s 2 and s 7 of the Constitution, added the so-called “norm of
public accountability” as a reason to judge a negligent omission wrongful (see infra 86), “the Constitution has to
date had no impact at all” on the basic rule by which Aquilian liability is determined, nor on the structure or ele-
ments of Aquilian liability.
133 Provision is furthermore made for the suspension of certain fundamental rights in a state of emergency that is
proclaimed prospectively under an Act of Parliament (Constitution, 1996 s 37).
134 See Van der Walt and Midgley Delict 23–28 on constitutional values.
136 Constitution, 1996 s 39(2); cf infra fn 181. Related hereto is the fact that, in terms of s 173 of the Constitution, the
CC, SCA and High Courts have the inherent power, among other things, to “develop the common law, taking into
account the interests of justice”. See Froneman J’s directional judgment in MEC for Health and Social Develop-
ment, Gauteng v DZ 2018 1 SA 335 (CC) paras 27 ff on the general approach to the development of the common
law under s 39(2).
137 2001 4 SA 938 (CC) 953 ff. For discussions see Neethling and Potgieter 2002 THRHR 265 ff; Leinius and Midgley
2002 SALJ 17 ff; Pieterse 2002 SALJ 27 ff; Fagan Undoing Delict 47 ff 106 ff, 2008 SALJ 659 ff, 2010 SALJ 611
ff.
138 See also, eg, Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1
SA 389 (SCA) 395; Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 444 ff; Nkala v
Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC as Amici Curiae) 2016 5 SA 240 (GJ) para
199; Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) 371–372. However, in Car-
michele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC) 962
(see also Dendy 371–372), the court warns against “overzealous judicial reform”, and emphasises that development
of the common law must take place “within its own paradigm”. See the incisive criticism of Wallis 2019 SALJ 165
[continued ]
were already recognised and protected by the law of delict before the constitutional era. There-
fore it is accepted as point of departure that, unless the contrary is clearly apparent, the common
law principles are in conformity with the spirit, purport and objects of the Bill of Rights, or (as
expressed by Langa CJ in respect of unlawful competition), “the Bill of Rights in this respect
merely emphasises the . . . principles already at play in the common law”.140
The vertical141 and horizontal application of the Constitution can take place in a direct as well as
an indirect manner,142 although (because of unavoidable overlap) a clear-cut distinction cannot
be made between them.
(a) Direct application143 Direct vertical application means that the state must respect the
fundamental rights (and may therefore not infringe them)144 except insofar as such infringement
is reasonable and justifiable according to the limitation clause.145 Direct horizontal application
entails that the courts must give effect to an applicable fundamental right by applying, and where
necessary, developing the common law insofar as legislation does not give effect to that right,
except where it is reasonable and justifiable to develop the common law to limit the right in
accordance with the limitation clause.146 The fundamental rights relevant to the law of delict
must find application in this manner.147 These rights include the following: the right to
property,148 the right to life,149 the right to freedom and security of the person (including
the right to bodily and psychological integrity),150 the right to privacy,151 the right to human
________________________
of the manner in which the CC went about developing the common law regarding factual causation (the “but-for
test”) in Lee v Minister of Correctional Services 2013 2 SA 144 (CC) (see infra 226), indicating that in certain in-
stances, such as in Lee, far-reaching, as opposed to incremental, changes to general principles of the law should be
brought about by the legislator, rather than the courts (190). According to Fagan Undoing Delict 106, 2010 SALJ
611, contrary to the CC’s assertion in Carmichele, the Constitution does not regard the spirit, purport and objects of
the Bill of Rights as reasons for developing the common law, but only as “tie-breaker” reasons for choosing be-
tween ways of developing the common law that are already justified by the following three reasons that have noth-
ing to do with the spirit, purport and objects of the Bill of Rights: the rights in the Bill of Rights, justice, and the
rules of the common law itself.
139 See infra 19–22.
140 Phumelela Gaming and Leisure Ltd v GrĦndlingh 2007 6 SA 350 (CC) 363; cf Discovery Ltd v Liberty Group Ltd
2020 4 SA160 (GJ) 178; see Neethling Van Heerden-Neethling Unlawful Competition 13–14, 2009 TGW 48, 2008
TSAR 811–812. Cf fn 138 supra.
141 Protecting citizens against arbitrary state action (see, eg, Gardener v Whitaker 1995 2 SA 672 (E) 682–685; De Klerk v
Du Plessis 1995 2 SA 40 (T) 45; Neethling, Potgieter and Roos Neethling on Personality Rights 20 123–124).
142 See Van der Walt and Midgley Delict 19–23.
143 See Van der Walt and Midgley Delict 19; Neethling, Potgieter and Roos Neethling on Personality Rights 123–124;
Loubser and Midgley Delict 40–43.
144 Whether by positive conduct or by omission in instances where the state had a legal duty to act (see Carmichele v
Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC) 957; Neethling
2002 THRHR 585 fn 76; see also infra 74–79 84–89 on state liability for an omission.
145 Constitution, 1996 s 36(1); see further supra 18.
146 Constitution, 1996, ss 8(3) and 36(1); see also Woolman 1996 SALJ 449 ff; Visser 1997 THRHR 299–303.
147 The application of these rights is again considered below where they are applicable to particular aspects of the law
of delict.
148 Constitution, 1996 s 25(1). According to this section no one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of property. Depending on how the concept
“property” is defined, it may apart from things, also include immaterial or intellectual property, such as patents,
copyright, trade secrets, trade marks and the goodwill of a business (see Neethling Van Heerden-Neethling Unlaw-
ful Competition 13 fn 95). In Phumelela Gaming and Leisure Ltd v GrĦndlingh 2007 6 SA 350 (CC) 361–363 the
court accepted outright that the right to goodwill is immaterial property (also known as intellectual property) that
can be protected as property – and therefore as a fundamental right – in terms of the Bill of Rights (see Neethling
2008 SA Merc LJ 420–421).
149 Constitution, 1996 s 11; see Neethling, Potgieter and Roos Neethling on Personality Rights 20 33–34 125–126;
Visser 1997 De Jure 135; see further Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) 841–842; Chris-
tian Lawyers Association of SA v Minister of Health 1998 4 SA 1102 (W) in respect of unborn children.
150 Constitution, 1996 s 12, which includes, inter alia, the right “to make decisions concerning reproduction”; see Reid
in Potgieter, Knobel and Jansen (eds) 385 ff on so-called “reproductive rights” – “the right to choose when, or when
[continued ]
20 Law of Delict
dignity,152 the right to equality,153 the right to freedom of expression,154 the right to freedom of
religion, belief and opinion,155 the right to assembly, demonstration, picket and petition,156 the
________________________
not to, have a child”; see also Neethling, Potgieter and Roos Neethling on Personality Rights 36. The rights to free-
dom from slavery, servitude or forced labour (s 13), freedom of movement (s 21), a healthy environment (s 24),
health care services and sufficient food and water (s 27(1)), and the right of a child to be protected from maltreat-
ment, neglect, abuse or degradation (s 28(1)(d)) are also relevant in this respect (see also Visser 1997 THRHR 497–
499; Neethling, Potgieter and Roos Neethling on Personality Rights 35 fn 396 39 fn 446 135 173.
151 Constitution, 1996 s 14; see also Neethling, Potgieter and Roos Neethling on Personality Rights 45 fn 517 125
309–310.
152 Constitution, 1996 s 10 (see also Neethling, Potgieter and Roos Neethling on Personality Rights 41 125–126).
However, it is not easy to fathom the precise meaning of the right to human dignity (see National Coalition for Gay
& Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC) 28; Burchell Personality Rights 328; Neethling 2006
TSAR 197 ff; Neethling in Nagel (ed) 85 ff for a differentiation of this right and the common law concepts dignitas
and dignity). In essence this right is the recognition of the intrinsic worth of the human being in our community (S v
Makwanyane 1995 3 SA 391 (CC) 507; Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357
(W) 36; National Coalition for Gay and Lesbian Equality 28) which is regarded as the highest of the entrenched
human rights after the right to life (see Makwanyane 451; see also Minister of Home Affairs v Watchenuka 2004 4
SA 326 (SCA) 339). Human dignity is therefore a cornerstone or foundational value of the utmost importance in
our constitutional dispensation (see, eg, Makwanyane 506–507; National Coalition of Gay & Lesbian Equality 28;
Watchenuka 339; Khumalo v Holomisa 2002 5 SA 401 (CC) 418; Mthembi-Mahanyele v Mail & Guardian Ltd
2004 6 SA 329 (SCA) 348). This is particularly evident in the emphasis of human dignity as democratic value in
the Constitution (s 1(a) 7(1)) which plays a part in both the limitation of fundamental rights (s 36(1)) and the inter-
pretation of the Bill of Rights (s 39(1)). From the above it is clear that human dignity is a comprehensive concept
that encompasses being a human in all its facets (see Watchenuka 339; Dawood; Shalabi; Thomas v Minister of
Home Affairs 2000 3 SA 936 (CC) 961–962; Nandutu v Minister of Home Affairs 2019 5 SA 325 (CC) pa-
ras 38í39; Du Plessis v Road Accident Fund 2004 1 SA 359 (SCA) 372–373; Dendy 367), and therefore underlies
the entire human personality, both in respect of its physical-psychological aspects (cf Dawood; Shalabi; Thomas
961–962) and spiritual-moral aspects (cf Khumalo 418–419; Mthembi-Mahanyele 348; Investigating Directorate:
Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd; In re Hyundai Motor Distributors (Pty) Ltd v
Smit 2001 1 SA 545 (CC) 557; September v Subramoney NO [2019] 4 All SA 927 (WCC)). Seen this way, consti-
tutional human dignity is a much wider concept than the dignitas concept of the common law (see also Dendy 367;
Gardener v Whitaker 1995 2 SA 672 (E) 690; Neethling, Potgieter and Roos Neethling on Personality Rights 127).
As indicated (supra 15–16), dignitas is a generic term for all personality rights apart from the fama and corpus. By
contrast, human dignity also includes, eg, the reputation or fama (see Khumalo 418–419; Mthembi-Mahanyele
348). This recognition and protection of the fama under human dignity has the important implication that the right
to good name is recognised as an entrenched human right, and that all other personality rights which are – like the
good name – not mentioned eo nomine in the Bill of Rights (eg the rights to identity and feelings: see infra 425
427), can in the same manner be protected under the human dignity. This has indeed already happened in respect of
the right to identity (see Grütter v Lombard 2007 4 SA 89 (SCA) 95; Neethling 2007 TSAR 834 ff), the right to
feelings (see Wiese v Moolman 2009 3 SA 122 (T) 127; Seroot v Pieterse 2005-06-13 case no 33377/2005 (T);
Neethling 2006 THRHR 344–345) and, as mentioned, in particular the right to good name (see in respect of the in-
terim Constitution of 1993, National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1216–1217; Bogoshi v National
Media Ltd 1996 3 SA 78 (W) 82; Holomisa v Argus Newspapers Ltd 1996 2 SA 588 (W) 606; Gardener v Whita-
ker 1995 2 SA 672 (E) 690–691; cf McNally v M & G Media (Pty) Ltd 1997 4 SA 267 (W) 275; Mandela v Falati
1995 1 SA 251 (W) 257 ff; contra Potgieter v Kilian 1995 11 BCLR 1498 (N) 1529–1530; see also Neethling, Pot-
gieter and Roos Neethling on Personality Rights 127 fn 732; Neethling and Potgieter 1994 THRHR 513 516–517,
1995 THRHR 710, 1996 THRHR 707; Van Heerden and Neethling Unlawful Competition 14 fn 84; Van der Vyver
1995 SALJ 516). This position was confirmed under the Constitution, 1996 (see, eg, Khumalo 418–419; Mthembi-
Mahanyele 348; Van Zyl v Jonathan Ball Publications (Pty) Ltd 1999 4 SA 571 (W) 591; Marais v Groenewald
2001 1 SA 634 (T) 646; Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA) 253; Burchell
Personality Rights 139; Neethling, Potgieter and Roos Neethling on Personality Rights 127 fn 732 197). Support
for this view is also apparent in German law (see Neethling, Potgieter and Roos Neethling on Personality Rights
127 fn 735), as well as the fact that the Bill of Rights does not deny the existence of other (personality) rights rec-
ognised in the common law (s 39(3)).
153 Before the law and to equal protection and benefit of the law (Constitution, 1996 s 9). S 9(4) moreover provides
that no one may unfairly discriminate directly or indirectly against another person. The right to equality which, in-
ter alia, promotes equality between men and women, may, eg, influence the field of application of the action for
seduction which may currently only be instituted by a girl (see infra 394). Again, unfair discrimination against a
person may conceivably amount to an infringement of that person’s dignity (insult) (cf Jacobs v Waks 1992 1 SA
521 (A) 541–542; Moseneke v The Master 2001 2 SA 18 (CC) 29–31), and thus constitute an actionable iniuria.
right to freedom of association,157 and the right to freedom of trade, occupation and profes-
sion.158 Situations will inevitably occur where two or more of these fundamental rights are in
conflict, for example, the right to privacy (or fama) versus the right to freedom of expression, or
the right to assembly, demonstration, picket and petition versus the right to freedom of trade,
occupation and profession. In such situations, there will have to be a careful and correct bal-
ancing or weighing-up of the opposing rights.159
The entrenchment of fundamental rights in the Bill of Rights enhances their protection160 and
gives them a higher status, in that all law, state actions (executive or administrative), court
decisions and even the conduct of natural and juristic persons may be tested against them,161
taking into account that any limitation of a fundamental right must be in accordance with the
limitation clause of the Constitution.162 It is submitted that in exercising this value judgment (as
well as in the process of weighing up opposing fundamental rights), the general principles which
have already crystallised in our law with regard to the reasonableness or boni mores (legal
________________________
154 Constitution, 1996 s 16 (see Burchell Personality Rights 59 ff, 2019 Acta Juridica 203 ff). This right had already
received the attention of the courts under the interim Constitution, 1993 with regard to defamation (see, eg, Nation-
al Media Ltd v Bogoshi 1998 4 SA 1196 (SCA); Bogoshi v National Media Ltd 1996 3 SA 78 (W); Holomisa v Ar-
gus Newspapers Ltd 1996 2 SA 588 (W); Gardener v Whitaker 1995 2 SA 672 (E); Jurgens v Editor, Sunday Times
Newspaper 1995 2 SA 52 (W); Rivett-Carnac v Wiggins 1997 3 SA 80 (C); McNally v M & G Media (Pty) Ltd
1997 4 SA 267 (W); Mangope v Asmal 1997 4 SA 277 (T) 288–289; O v O 1995 4 SA 482 (W) 486; De Klerk v Du
Plessis 1995 2 SA 40 (T); Mandela v Falati 1995 1 SA 251 (W); Potgieter v Kilian 1995 11 BCLR 1498 (N); Hall
v Welz 1996 4 SA 1070 (C); see also Neethling and Potgieter 1994 THRHR 513 ff, 1995 THRHR 710 ff, 1996
THRHR 707 ff). See on the right to freedom of expression and defamation law under the Constitution, 1996, eg
Khumalo v Holomisa 2002 5 SA 401 (CC); Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA);
Van Zyl v Jonathan Ball Publications (Pty) Ltd 1999 4 SA 571 (W); Marais v Groenewald 2001 1 SA 634 (T); Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA). The application of this right will in all prob-
ability lead to a diminution of the protection of the right to fama, so that a fairer delimitation of these two diametri-
cally opposed rights may be achieved (see in general infra 399 fn 123; Neethling, Potgieter and Roos Neethling on
Personality Rights 81 fn 249 128 197–198 206–207 218 fn 179 229–231 244–246 261–262). Burchell 2019 Acta
Juridica 224 concludes that the current common law regulation of hate speech (under the actio iniuriarum and
crimen iniuria) provides the most effective and equitable legal way of balancing individual dignity and freedom of
expression (see idem 214 ff on the The Prevention and Combating of Hate Crimes and Hate Speech Bill 2018 ('The
Hate Speech Bill) [B9–2018] GG no 41543 of 24 March 2018, updated 16 April 2018). See further on the justifica-
tion of freedom of expression, Burchell Personality Rights 1–19.
155 Constitution, 1996 s 15. The interpretation and application of this right may lead to the recognition of the right to
religious feelings as a right of personality, the infringement of which will found the actio iniuriarum (cf Neethling,
Potgieter and Roos Neethling on Personality Rights128–129 286 fn 35 289).
156 Constitution, 1996 s 17.
157 Constitution, 1996 s 18. This right, as well as the previous one, is, eg, applicable in the competitive sphere, where it
is restricted by the prohibition on the organisation or instigation of a boycott except in very limited circumstances
(see Neethling Van Heerden-Neethling Unlawful Competition 13).
158 Constitution, 1996 s 22. This right is directly related to the right to the goodwill of a business and the right to the
earning capacity of a natural person that are protected by the law of delict (Van Heerden and Neethling Unlawful
Competition 16).
159 See, eg, Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ) 178 ff on the right to property versus the right to
freedom of trade; see further Neethling, Potgieter and Roos Neethling on Personality Rights 125–126; see especial-
ly supra fn 154 on the balancing of the right to good name against the right to freedom of expression.
160 Such enhancement may, eg, consist in an increasing of the quantum of damages for the infringement of a personal-
ity right (such as the right to good name: see supra fn 152) which is also a fundamental right (cf Afrika v Metzler
1997 4 SA 531 (Nm) 539; Visser 1998 THRHR 150 ff; Minister of Safety and Security v Seymour 2006 6 SA 320
(SCA) 324 – Visser 2007 THRHR 176–177); or in replacing animus iniuriandi as requirement for iniuria with neg-
ligence – liability based on negligence is wider than liability based on intent (see, eg, Marais v Groenewald 2001 1
SA 634 (T); Heyns v Venter 2004 3 SA 200 (T); Neethling, Potgieter and Roos Neethling on Personality Rights 125
fn 703).
161 Constitution, 1996 s 8(1) and (2); Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as
amicus curiae) 2003 1 SA 389 (SCA) 397; Botha v Minister van Veiligheid en Sekuriteit 2003 6 SA 568 (T) 584;
Van der Walt and Midgley Delict 18.
162 S 36(1).
22 Law of Delict
convictions of the community) criterion for delictual wrongfulness163 may serve as prima facie
indications of the reasonableness of a limitation in terms of the Bill of Rights.164 In the case of
an infringement of or threat to a fundamental right,165 a prejudiced or threatened person is
entitled to approach a competent court for appropriate relief.166 In this respect, mention should
be made of the possibility of the development of a so-called “constitutional delict”, ie that the
infringement of a fundamental right per se constitutes a “delict”.167 It is submitted that a clear
________________________
163 See infra 39 ff.

164 See Neethling, Potgieter and Roos Neethling on Personality Rights 80–83 125 fn 706; see further Phumelela
Gaming and Leisure Ltd v GrĦndlingh 2007 6 SA 350 (CC) 363; Neethling Van Heerden-Neethling Unlawful
Competition, 2009 TGW 48–49, 2008 TSAR 811–812; cf Dendy 1996 De Rebus 604 with regard to the interim
Constitution, 1993.
165 An alleged infringement of a fundamental right can in principle be evaluated in a dual inquiry: Firstly, whether
there was a prima facie infringement of the relevant right; and secondly, whether the infringement can be justified
by use of the limitation clause (s 36(1)). The person who alleges the infringement, bears the onus to prove it.
Thereafter the onus is on the infringer to prove that the infringement is justified (see Qozeleni v Minister of Law
and Order 1994 3 SA 625 (E) 640; Gardener v Whitaker 1995 2 SA 672 (E) 686 in respect of the interim Constitu-
tion, 1993). However, note the warning in Bernstein v Bester 1996 2 SA 751 (CC) 790 that common law principles
cannot as a matter of course be applied to the interpretation of fundamental rights and their limitation.
166 Constitution, 1996 s 38. In this respect it appears that an award of constitutional damages will only be regarded as
appropriate relief if no other effective compensatory remedy is available (see Dendy v University of the Witwaters-
rand, Johannesburg 2005 5 SA 357 (W) 369 fn 16; Modderfontein Squatters, Greater Benoni City Council; Presi-
dent of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd (AGRI SA and Legal Resources Centre, Amici
Curiae) 2004 6 SA 40 (SCA) 62; cf Darson Construction (Pty) Ltd v City of Cape Town 2007 4 SA 488 (C) 509–
510; Moniel Holdings (Pty) Ltd v Premier of Limpopo Province [2007] 3 All SA 410 (T) 421–422). If such a rem-
edy is available – and here delictual remedies in particular can often play an important part (see Dendy 372) – the
remedy will be regarded as appropriate constitutional relief if it effectively vindicates the relevant fundamental
right and deters future infringements thereof (see Fose v Minister of Safety and Security 1997 3 SA 786 (CC) 836–
837; see also RK v Minister of Basic Education [2019] ZASCA 192 (18 December 2019) paras 57í63; Dendy
368–370; Van der Walt and Midgley Delict 6–8). This was indeed the position in Fose where a claim for constitu-
tional damages for assault and torture (in addition to ordinary delictual remedies) was not regarded as appropriate
relief in terms of the interim Constitution, 1993 (see also Fose v Minister of Safety and Security 1996 2 BCLR 232
(W); Visser 1996 THRHR 695 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 170 fn 375). Cf
also Minister of Police v Mboweni 2014 6 SA 256 (SCA) paras 21– 24 (cf Parker and Zaal 2015 THRHR 146 ff).
Here Wallis JA was critical of the decision of the court a quo in M v Minister of Police 2013 5 SA 622 (GNP) 635
(cf Parker and Zaal 2015 THRHR 146 ff) and referred the matter back to it (for a discussion of M and Mboweni, see
Robinson and Prinsloo 2015 (5) PELJ 1670 ff). In M the court a quo, notwithstanding the availability of the com-
mon law delictual action of dependants for loss of support, pronounced itself in favour of awarding constitutional
damages for the loss of support of children since in its view this action is now based on s 28 of the Constitution and
the Children’s Act 38 of 2005 and no longer on the common law. However, it is very important to note that the
courts will not – mainly for reasons of public policy (see Dendy 380–383) – readily award a compensatory remedy
in circumstances where another effective remedy is available to the prejudiced person as appropriate relief (see, eg,
Dendy 375–380 382–383; Knop v Johannesburg City Council 1995 2 SA 1 (A); Olitzki Property Holdings v State
Tender Board 2001 3 SA 1247 (SCA); Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6
SA 13 (SCA) 28–31; cf Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 446–447; Minis-
ter of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 236; Minister of Safety and Security v Carmichele
2004 3 SA 305 (SCA) 321–322. An effective remedy can include amending a statute (eg Moseneke v The Master
2001 2 SA 18 (CC) 29–30; Booysen v Minister of Home Affairs 2001 4 SA 485 (CC) 487–489), judicial review of
an administrative decision (eg Dendy 375–380), an appeal against an administrative decision (eg Knop), a declara-
tory order (eg Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 359 (CC)) and an interdict
(mandamus) (eg Van Duivenboden 446–447). See also Potgieter, Steynberg and Floyd Damages 17–19 197–198;
Robinson and Prinsloo 2015 (5) PELJ 1670 ff; Fick 2019 SALJ 710 ff; Zitzke 2019 TSAR 827 ff, 2015 Consti-
tutional Court Rev 285 ff (who is of the view that constitutional damages ought to serve as a final safety net after
legislation, common and customary law have left a victim in a delict case remediless). Cf Ngomane v Johannesburg
(City) 2020 1 SA 52 (SCA) where constitutional damages were awarded to homeless victims for violations of their
rights to property, privacy and dignity as a result of unlawfully removing their homes from a public space and
destroying them.
167 See Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) 370–371; Visser 1996 THRHR 695
ff; Van Aswegen 1995 SAJHR 63–65; Van der Walt and Midgley Delict 6–9; Neethling, Potgieter and Roos Neeth-
ling on Personality Rights 20 fn 210 127 170 fn 375; Burchell Personality Rights 106 ff; cf Burchell Delict 14.
distinction should be made between such a constitutional wrong168 and a delict,169 even though
these two figures may overlap.170 The requirements for a delict171 and those for a constitutional
wrong172 differ materially.173 As a result, not every delict is necessarily also a constitutional
wrong,174 and vice versa.175 Besides, unlike a delictual remedy which is aimed at compensation,
a constitutional remedy (even in the form of damages)176 is directed at affirming, enforcing,
protecting and vindicating fundamental rights and at preventing or deterring future violations of
Chapter 2.177 A constitutional wrong and a delict (or their remedies) should therefore not be
treated alike and for conceptual clarity, the term constitutional “delict” or “tort” should rather be
avoided. However, mention should be made of the extension of a so-called group or class action
in terms of section 38 of the Constitution to also include delictual claims,178 and not only Bill of
Rights’ claims.179
(b) Indirect application180 The term “the indirect operation of the Bill of Rights” means that
all private law rules, principles or norms – including those regulating the law of delict – are
subjected to, and must therefore be given content in the light of the basic values of Chapter 2.181
This promoting of the spirit, purport and objects of the Bill182 will in all probability deliver the
________________________
168 Conduct in conflict with the Bill of Rights is clearly constitutionally contra bonos mores and therefore wrongful
(Walker v Stadsraad van Pretoria 1997 4 SA 189 (T) 202).
169 See Van der Walt and Midgley Delict 6–9 for a thorough discussion.
170 Eg an intentional infringement of the right to privacy constitutes a delict as well as a constitutional wrong.
171 Ie, an act, wrongfulness, fault, causation and damage: see supra 4.
172 According to Van der Walt and Midgley Delict 8, the only requirement for this wrong is the infringement or denial
of a fundamental right.
173 Van der Walt and Midgley Delict 8.
174 Because not every delict involves the infringement of a fundamental right (eg the wrongful culpable causing of
pure economic loss: see infra 349 ff).
175 Because not all the requirements of a delict are present in every infringement of a fundamental right.
176 Fose v Minister of Safety and Security 1997 3 SA 786 (CC) 821.
177 See Van der Walt and Midgley Delict 7; Fose v Minister of Safety and Security 1997 3 SA 786 (CC) 799 821 830
835–836; Hoffmann v South African Airways 2001 1 SA 1 (CC) 22; Dendy v University of the Witwatersrand, Jo-
hannesburg 2005 5 SA 357 (W) 368–370.
178 Nkala v Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC as Amici Curiae) 2016 5 SA 240
(GJ) para 25. This case involved an application for certification of a consolidated class action on behalf of current
and past underground mineworkers who contracted silicosis or pulmonary tuberculosis (TB), and on behalf of the
dependants of mineworkers who died of these illnesses contracted while employed in gold mines belonging to cer-
tain mining companies since 1965. Mojapelo DJP and Vally J held that it was in the interests of justice that the ac-
tion be certified as a class action (para 225). For discussions, see Neethling and Potgieter 2016 Annual Survey 744–
747; Hurter 2016 Annual Survey 110–114 and on the transmissibility of actions for non-pecuniary damages, as ad-
dressed in this case, Neethling and Potgieter 2016 Annual Survey 744–752; infra 306 ff.
179 In Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd 2013 2 SA 213 (SCA) paras 16 21 26 and 28, Wallis
JA broadened the basis for class actions by holding that they may also be instituted for common law claims, and not
only Bill of Rights’ claims; see also Nkala v Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC
as Amici Curiae) 2016 5 SA 240 (GJ) paras 25 29; Hurter 2013 Annual Survey 115.
180 See Van der Walt and Midgley Delict 20–23; Neethling, Potgieter and Roos Neethling on Personality Rights 125–
128; Loubser and Midgley Delict 43–46.
181 As seen (supra 17–19), both the limitation and interpretation clauses of the Constitution, 1996 (ss 36(1) and 39(1))
require the consideration and promotion of the values that underlie an open and democratic society based on human
dignity, equality and freedom. Moreover (supra 18), when interpreting legislation or developing the common law,
the courts must promote the spirit, purport and objects of the Bill of Rights (s 39(2); Carmichele v Minister of Safe-
ty and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC) 953 ff; MEC for Health and
Social Development, Gauteng v DZ 2018 1 SA 335 (CC) paras 27 ff; see also Visser 1997 THRHR 299, 1997
THRHR 495; Woolman 1996 SALJ 452; Neethling, Potgieter and Roos Neethling on Personality Rights 125–128;
Van der Walt and Midgley Delict 20–22). See Barnard-Naudé 2016 SALJ 16 ff who takes issue with the SCA’s
declaration in RH v DE 2014 6 SA 436 (SCA) para 40 that it was “unnecessary” to visit the question whether the
continued existence of the action for adultery (see infra 428) is in conflict with constitutional norms, arguing that
such an approach misunderstands the role that the Constitution plays in assessing the common law’s pedigree, and,
consequently, its validity.
182 See supra 18; previous fn.
24 Law of Delict
same results as the direct application of the Bill,183 and applies in particular to the so-called
open-ended or flexible delictual principles, ie the boni mores test for wrongfulness,184 the imput-
ability test for legal causation,185 and the reasonable person test for negligence,186 where policy
considerations and factors such as reasonableness, fairness and justice may play an important
part. The basic values underlying Chapter 2 could, therefore, be implemented with good results
as important policy considerations in determining wrongfulness, legal causation and negli-
gence.187 This approach is already evident from case law.188
________________________
183 See Neethling and Potgieter 2002 THRHR 271–272; Neethling 2003 SALJ 100, 2002 THRHR 587–588.
184 Infra 39; Neethling, Potgieter and Roos Neethling on Personality Rights 78–83.
185 Infra 230.
186 Infra 164.
187 For this purpose, the court, in Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 4 SA 938 (CC) 962–963, said that the net of delictual wrongfulness should be cast wider by
emphasising its objective nature and by defining it more widely so that it can give better protection to inter alia
recognised fundamental rights. The court was also of the opinion that fault and legal causation should fulfil a more
important role in limiting liability. A proper application of these delictual elements should allay the fear of opening
floodgates of liability without limits.
188 See, eg, Marais v Groenewald 2001 1 SA 634 (T) 646; Heyns v Venter 2004 3 SA 200 (T) 209; Ntamo v Minister
of Safety and Security 2001 1 SA 830 (Tk) 841–842; Van Eeden v Minister of Safety and Security (Women’s Legal
Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 395 ff (and similar cases in respect of the legal duty of the
state to protect the rights to the security of the person and the bodily integrity against infringement by third parties:
infra 74–79 84–89); Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) 1256–1257 1263;
Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA 1319
(SCA) 1327–1230; Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13 (SCA) 27–35;
Du Plessis v Road Accident Fund 2004 1 SA 359 (SCA) 371 ff; see also Neethling, Potgieter and Roos Neethling
on Personality Rights 126 fn 717.
Part II
General principles of the law of delict
In the following seven chapters the general principles of the law of delict are discussed.
Firstly attention is given to the different elements of a delict, namely the act, wrongfulness,
fault, causation and damage. Thereafter the delictual remedies and the position of joint
wrongdoers are considered.
Chapter 2
Conduct
1 General
In order to constitute a delict, one person (the doer or actor) must have caused damage or harm
to another person (the person suffering the loss) by means of an act or conduct. Conduct may
thus be described as a general prerequisite1 for delictual liability.2 Damage3 must be caused by
something, and in the case of delictual liability it is caused by conduct. Phrased differently,
conduct constitutes the damage-causing event in the case of a delict.4
2 Nature and characteristics of conduct

For the purposes of the law of delict, conduct may be defined as a voluntary human act or
omission.5 The law itself determines what is regarded as “conduct” and thus, in a sense, a nor-
mative approach is followed. For the purpose of delictual liability, conduct displays the follow-
ing characteristics:
(a) Only an act of a human being (in contrast to that of an animal) is accepted as “conduct”.6
Where a human uses an animal as an instrument in the commission of a delict, a human act is
still present.7 It is accepted that a juristic person (such as a company, university, public school,
statutory body and so forth) may act through its organs (humans) and may thus be held delictual-
ly liable for such actions.8 It is submitted that the following rule may be used to determine
________________________
1 Van der Merwe and Olivier 24 ff; Van der Walt and Midgley Delict 90; Boberg Delict 41; cf, too, Snyman
Criminal Law 51 ff; De Wet and Swanepoel Strafreg 48 ff; Ahmed 2019 (22) PELJ 1 ff; and generally Kemp
Omissions.
2 It was contended in, eg, Gijzen v Verrinder 1965 1 SA 806 (D) 811 that an act by the defendant is not a requirement
for delictual liability in cases of land caving in because of excavation: “In subsidence cases there is usually no unlawful
act and the cause of the action is damage and damage only.” Van der Merwe and Olivier 24 fn 1 and Van der Walt
and Midgley Delict 91 fn 2 correctly point out that such a viewpoint cannot be accepted. The court’s argument is
based on the premise that conduct (eg an excavation on land) is lawful unless damage occurs at the time when such
conduct takes place. Where damage only occurs later (when, eg, another person’s land caves in) it is argued that
delictual liability exists independently of any conduct on the part of the defendant. Although it must be accepted
that conduct may only be described as unlawful with regard to the consequences caused by it, it must be remem-
bered that an act and its consequences may be separate from each other in respect of time and space (infra 37). To
deny the existence of conduct only because its detrimental consequences occur at a later stage is not sound. There
can clearly be no question of delictual liability for damage unless such damage has been caused by a specific act on
the part of the defendant. See also Potgieter, Steynberg and Floyd Damages 27–28 40–41 166–167.
3 See ch 6 infra.
4 See Potgieter, Steynberg and Floyd Damages 21 28 33. A damage-causing event is a factual situation (consisting of
a human act and surrounding circumstances) giving rise to damage.
5 Van der Merwe and Olivier 25; Van der Walt and Midgley Delict 90; De Wet and Swanepoel Strafreg 49; Snyman
Criminal Law 54; Burchell Delict 36–37. See Ahmed 2019 (22) PELJ 1 ff, Ahmed in Potgieter, Knobel and Jansen
(eds) 49–50 on the (implicit) influence of reasonableness on the element of conduct.
6 Loubser and Midgley Delict 95. In primitive legal systems notice was taken of the “conduct” of animals and even
lifeless objects. Accordingly, provision was made for charging and punishing animals (see in this regard Snyman
Criminal Law 53; Van der Walt and Midgley Delict 90).
7 See, eg, Jooste v Minister of Police 1975 1 SA 349 (E) and Chetty v Minister of Police 1976 2 SA 450 (N) where
the courts dealt with delictual liability for the use of police dogs.
8 Van der Walt and Midgley Delict 90. The definition of conduct by Van der Merwe and Olivier 25 as including an
act of a legal corporation is misleading (see also Neethling, Potgieter and Scott Workbook 17–18). Conduct here
[continued ]
27
28 Law of Delict
whether human conduct may be attributed to a juristic person for delictual liability: An act
performed by or at the order of or with the permission of a director, official or servant of a
juristic person in the exercise of his duties or functions in advancing or attempting to advance
the interests of the juristic person, is deemed to have been performed by the juristic person.
(b) Human action only constitutes conduct if it is performed voluntarily, ie, if it is susceptible to
control by the will of the person involved.9 Voluntariness implies that the person in question has
sufficient mental ability to control his muscular movements.10
Voluntariness does not mean that a person must have willed or desired his conduct. Where, for
example, X forgets to warn other people that an electric current has been switched on11 and
someone is electrocuted as a result, X has clearly not willed or desired this omission; however,
his conduct is nevertheless voluntary because he was, in principle, able to utter a warning.
However, if X, for example, was unconscious as a result of an epileptic fit at the time when he
was supposed to warn the others, the omission12 was clearly involuntary because he lacked the
capacity to speak (act).
Moreover, the requirement of voluntariness does not mean that a person’s conduct should be
rational or explicable.13 Conduct by an infans or someone suffering from a mental disease is
usually voluntary14 although the doer may escape delictual liability, either because he lacks
accountability or because fault is absent.15
Where a defendant claims that for some reason he did not act voluntarily, he is in fact raising the
defence of automatism, which is discussed in more detail below.16
(c) Conduct may be in the form of either a positive act (active conduct – a commissio) or an
omission (omissio).17 The distinction is considered below.
3 The defence of automatism
As stated above, the act of the wrongdoer (usually the defendant) must be voluntary to give rise
to delictual liability. In a given situation, a defendant may therefore argue that the conduct
complained of does not satisfy the requirement of voluntariness. In other words, he relies on the
defence of automatism,18 ie, that he acted mechanically.19
________________________
deals with an act of a human being which is attributed to a legal corporation on account of the human’s connection
with the corporation. Thus the requirements of conduct (eg voluntariness) are only applied to the human organ of
the legal corporation and not to the corporation itself. Eg, the defence of automatism (infra 28) can only be raised
by a legal corporation on account of the human factors pertaining to its organ acting on its behalf. It is therefore
accurate to define conduct merely as a voluntary human act. Cf in general First National Bank of SA Ltd v Rosen-
blum 2001 4 SA 189 (SCA); Pinshaw v Nexus Securities (Pty) Ltd 2002 2 SA 510 (C); H Mohammed & Associates
v Buyeye 2005 3 SA 122 (C).
9 Loubser and Midgley Delict 95. The same principle is found in criminal law and is explained as follows in S v
Johnson 1969 1 SA 201 (A) 204: “As stated, a fundamental requirement for criminal liability is a voluntary act or
omission, in the sense that the actor was capable of taking a decision about his conduct” (translation). See further the
discussion in Snyman Criminal Law 55, from which it appears that the law does not accept the principle of natural
science that mere muscular movement constitutes an act but rather employs a normative concept of conduct in which
the human will (which controls bodily actions) plays a vital part.
10 See Van der Walt and Midgley Delict 91 and De Wet and Swanepoel Strafreg 49 for common law authority.
11 S v Russell 1967 3 SA 739 (N).
12 See infra 32 on omissions as conduct.
13 See, eg, S v Van Zyl 1984 1 PH H13 (A); De Wet and Swanepoel Strafreg 51.
14 Van der Walt and Midgley Delict 90–91; De Wet and Swanepoel Strafreg 50; see, however, fn 30 infra. Usually
persons under the influence of intoxicating liquor do act voluntarily.
15 Infra 157 ff.
16 Infra 28 ff.
17 Infra 32 ff.
18 The defence of automatism is not frequently encountered in the law of delict (see, however, The Government v
Marine and Trade Insurance Co Ltd 1973 3 SA 797 (D); Smit v Standard General Versekeringsmaatskappy Bpk
[continued ]
Chapter 2: Conduct 29
It is accepted that the following conditions may cause a person to act involuntarily in that they
render him incapable of controlling his bodily movements:20 absolute compulsion (vis absolu-
ta),21 sleep,22 unconsciousness,23 a fainting fit,24 an epileptic fit,25 serious intoxication,26 a black-
out,27 reflex movements,28 strong emotional pressure,29 mental disease,30 hypnosis,31 a heart
attack32 and certain other conditions.33
________________________
1979 4 SA 624 (O); Molefe v Mahaeng 1999 1 SA 562 (SCA)) but it is instructive to take note of comparable prin-
ciples in criminal law (see generally S v Wiid 1990 1 SACR 561 (A) 564; S v Potgieter 1994 1 SACR 61 (A) 73–74).
19 Loubser and Midgley Delict 96–99; Van der Merwe and Olivier 26 ff; Snyman Criminal Law 55; Ahmed 2019 (22)
PELJ 6 ff.
20 The different conditions listed here do not depend on scientifically watertight distinctions, but on the approach
adopted by the courts in dealing with automatism.
21 The compulsion can be exerted by human agency or through forces of nature. An example of the former is where X
pushes a knife into Y’s hand and then, without Y being able to offer resistance, takes hold of the hand holding the
knife and forces it into Z’s chest. In this example, it is clear that Y did not act but was merely used as an instrument
by X. This situation must not be confused with relative compulsion (vis compulsiva). This occurs where X points a
pistol at Y and orders him to damage Z’s motor car. In order to save his own life, Y dents Z’s car. Here Y did act,
because despite the compulsion, he could decide whether to offer resistance to X or whether to carry out X’s com-
mand. In casu, Y could possibly escape delictual liability either because of the absence of unlawfulness (due to
necessity) or because of the absence of fault (see infra 117–118 184–185 193–198 and S v Goliath 1972 3 SA 1
(A)).
22 In S v Johnson 1969 1 SA 201 (A) 204, the court stated the following: “It is thus generally accepted that a person
who commits a misdeed in his sleep, cannot be held liable for it because such a deed cannot be a voluntary act”
(translation). Cf also the case where X dreams that he is attacked by Y and then in fact grabs a knife and injures or
kills Y. In R v Dhlamini 1955 1 SA 120 (T) 122, it was said: “He had just half-wakened out of a nightmare and was
acting mechanically without intention, volition or motive. The accused is consequently found not guilty.” More-
over, the following statement was made in R v Ngang 1960 3 SA 363 (T) 366: “The appellant acted involuntarily or
automatically and cannot be held criminally responsible for his act which was no more than a purely physical re-
flex.” A person does not act voluntarily when he acts as a so-called sleepwalker (eg S v Ncube 1978 1 SA 1178
(R)). It is accepted (eg R v Nhete 1941 SR 1) that where a person awakes from a nightmare and then mechanically
reacts to the dream he has just had, his “conduct” can be described as involuntary.
23 S v Johnson 1969 1 SA 201 (A) 204: “Muscle movements during unconsciousness, irrespective of the reason for
the unconsciousness, cannot result in a voluntary act” (translation).
24 R v Du Plessis 1950 1 SA 297 (O); R v Ahmed 1959 3 SA 776 (W); R v Rossouw 1960 3 SA 326 (T). Mere amnesia
after a voluntary act, ie, where a person cannot recall what happened, does not constitute the defence of automa-
tism, because the question is whether the person involved could at the relevant time control his muscular move-
ments and not whether he can later recall what happened (Snyman Criminal Law 55). Cf further S v Els 1993 1
SACR 723 (O) 732 (according to this case, total amnesia is usually present in instances of true automatism).
25 See R v Victor 1943 TPD 77 where X suffered an epileptic fit while driving his motor car and in the process
collided with a pedestrian and another vehicle – his defence of automatism was rejected; R v Schoonwinkel 1953 3
SA 136 (C) where the facts were similar to those in the Victor case except that here X killed a pedestrian – his de-
fence of automatism was, however, upheld and he was acquitted of culpable homicide; R v Mkize 1959 2 SA 260
(N) where X, during an epileptic fit, stabbed and killed his sister. In this case the court (268) held as follows: “As it
is clear that the stabbing of [his sister] was part of muscular activity by the accused during unconsciousness, it fol-
lows that the accused did not do a voluntary act. As said in respect of the discussion of the common law, this is the
end of the matter.” See further De Wet and Swanepoel Strafreg 50–51.
26 Usually a person who is under the influence of intoxicating liquor (or a drug) is capable of acting voluntarily
although he may possibly lack accountability (infra 159). There may, however, be exceptional cases where intoxi-
cation leads to automatism. See S v Chretien 1981 1 SA 1097 (A) 1104: “If [the person concerned] is so drunk that
he is ‘blind drunk’ and merely lies somewhere, making involuntary muscle movements with his arm or foot, and
someone is hit and injured by such involuntary movement, there would in any case not be any question of an act. It
would be no more an act than the bodily movements of a sleepwalker. In criminal law an act is an act only when it
is mentally controlled. In the case of the involuntary muscle movements of a blind drunk, there is no semblance of
control and it is therefore not even necessary to philosophise about fault” (translation).
27 In The Government v Marine and Trade Insurance Co Ltd 1973 3 SA 797 (D) it was argued that a motor accident
occurred while a driver had a mental blackout. This defence was rejected because of lack of proof. Also see the fol-
lowing statement in S v Trickett 1973 3 SA 526 (T) 531: “A lapse of consciousness may conceivably . . . have been
caused by . . . a condition not voluntarily induced, eg concussion, inadvertent absorption of a sedative, a pathological
failure of the nervous system or some other condition.” Cf further Molefe v Mahaeng 1999 1 SA 562 (SCA). In this
case, the defendant pleaded that he was overcome by a “sudden, unforeseen and uncontrollable blackout”. The court
decided that although this type of defence must be approached with caution, the plaintiff bears the onus to prove a
[continued ]
30 Law of Delict
The defence of automatism will not succeed if the defendant intentionally created the situation in
which he acts involuntarily in order to harm another. This is known as an actio libera in causa.
The defendant will be held liable for his culpable conduct in creating the state of automatism
which resulted in damage to the plaintiff.34
Moreover, the defendant may not successfully rely on the defence of automatism where he was
negligent with regard to his automatic “conduct”. This will be the case where the reasonable
man would have foreseen the possibility of causing harm while in a state of automatism.35
Examples include drinking alcohol while knowing or reasonably foreseeing that one will later
drive a motor vehicle,36 knowing that harm may be caused during a spell of sleepwalking
________________________
voluntary and negligent act on the part of the defendant. In casu, the plaintiff did not succeed in discharging this onus
(see also Burchell 1999 SALJ 729).
28 S v Ramagaga 1965 4 SA 254 (O). In this case, the deceased tickled the accused from behind and the latter
suddenly turned round and stabbed and killed him. The defence of the accused on a murder charge was that his
conduct was a mere reflex reaction and thus there was no conduct on his part. The court held that if the accused was
so ticklish that he could not control his actions, he could not be guilty of murder. On the facts, however, his defence
was rejected because the court was of the opinion that he could indeed control his conduct. Impulsive or spontane-
ous acts do not really amount to reflex movements and are usually regarded as voluntary: cf CS v Smit 1963 4 SA
824 (G) where the driver of a car alleged that he acted involuntarily after someone had knocked against a window
of his vehicle. The court held that although someone who performs involuntary actions on account of, eg, a heart
attack or other condition cannot be held liable, there was in the present case no question of completely involuntary
conduct; cf further S v Erwin 1974 3 SA 438 (C) where a motorist’s action after being stung by a bee and having
had his glasses broken, was still regarded as voluntary; S v Lombard 1964 4 SA 346 (T) (voluntary conduct despite
being stung by a bee) and S v Crockart 1971 2 SA 496 (RA) (voluntary conduct despite the presence of a burning
match on a motorist’s lap). See further Van der Walt and Midgley Delict 91; De Wet and Swanepoel Strafreg 49 fn
9.
29 In S v Arnold 1985 3 SA 256 (C) the accused was charged with murdering his wife. According to the evidence, he
was under strong emotional stress and there was also provocation on the part of his wife. The court decided, inter
alia, that the evidence did not prove that the accused acted voluntarily and that his conduct was subconscious. (For
criticism of this judgment, see Snyman 1985 SALJ 240–251; see also S v Lubbe 1963 4 SA 459 (W) 466.)
30 As was pointed out supra 28, it is accepted that a person suffering from a mental disease usually acts voluntarily
even though he lacks accountability. There may, however, be situations (the so-called cases of “insane automatism”
– see Burchell and Hunt Criminal Law 286–287) where a mental disease renders a person unable to control his bod-
ily movements and he may thus raise the defence of automatism. See, eg, S v Trickett 1973 3 SA 526 (T) 531 where
this condition is obiter referred to as follows: “[A] mental disease, suddenly and unexpectedly . . . making itself felt
by interrupting the conscious operation of the mind.” (See also S v Mahlinza 1967 1 SA 408 (A) – automatism due
to hysterical dissociation; S v Edward 1992 2 SA SACR 429 (ZH).)
31 Burchell and Hunt Criminal Law 284 fn 422; Van der Walt and Midgley Delict 91.
32 Smit v Standard General Versekeringsmaatskappy Bpk 1979 4 SA 624 (O).
33 Eg arteriosclerosis (Burchell and Hunt Criminal Law 284 fn 424); hypoglycaemia or low blood-sugar (S v Be-
zuidenhout 1964 2 SA 651 (A); S v Van Rensburg 1987 3 SA 35 (T)). See generally S v Stellmacher 1983 2 SA 181
(SWA).
34 An example of such a case is where X becomes intoxicated or uses a drug with the intention to injure Y when he
(X) is later unable to control himself (Van der Walt and Midgley Delict 91; S v Baartman 1983 4 SA 395 (NC);
Vorster 1984 TSAR 89). See infra 159 on intention.
35 See on negligence infra 164. See Wessels v Hall and Pickles (Coastal) (Pty) Ltd 1985 4 SA 153 (C) (loss of control
over vehicle by someone knowing of his diabetic condition and the dangers it poses – held to be liable). In Molefe v
Mahaeng 1999 1 SA 562 (SCA) the court held that there was no evidence in casu that a reasonable person in the
position of the defendant would have been aware of the possible “blackout” while driving the motor vehicle.
36 Visser 1981 THRHR 423; Vorster 1984 TSAR 89. Cf also the following dictum in S v Johnson 1969 1 SA 201 (A)
211 which covers this situation: “Fault in connection with the misdeed committed in drunkenness, lay therein that
the actor, while he was still sober, in an improper manner made himself guilty of excessive drinking while he
should not have been unaware that the drunkenness could lead to the commission of a misdeed. His fault therefore
originated not when the misdeed was committed, but when he, while he was still sober, in an improper manner
made himself guilty of excessive drinking which resulted in ‘will-lessness’ and the commission of the misdeed”
(translation). But see Van der Walt and Midgley Delict 91 who correctly point out that the mere fact that X be-
comes so intoxicated that he later causes damage in a state of automatism, does not necessarily indicate that his
drinking was negligent. It must be proved that the damage was reasonably foreseeable when he consumed the
liquor.
and failing to take necessary precautions,37 knowing that one may suffer an epileptic fit and
nevertheless driving a motor vehicle38 and sleeping next to a new-born baby where it is reason-
ably foreseeable that the mother may roll on to the child in the course of the night while she is
asleep and cause it to die of suffocation.39
In respect of “sane” automatism (ie, where the automatism is not a consequence of mental
illness), the onus is on the plaintiff to prove that the defendant has acted voluntarily and, there-
fore, not mechanically.40 However, if a defendant raises automatism resulting from mental
illness as a defence, such a defendant will probably bear the onus to prove the absence of con-
duct.
A final matter for consideration is the contention of Van der Merwe and Olivier41 that automa-
tism does not actually exclude the conduct requirement in delict, but that it may exclude wrong-
fulness42 or fault.43 The authors’ view may be illustrated with the following example: X buys a
knife which he keeps at his bedside when he retires at night. One night, X dreams that he is
being attacked. While still half asleep, X grabs the knife and wounds Y (who sleeps on a bed
next to him).44 According to Van der Merwe and Olivier,45 it is clear that the stabbing with the
knife was not a voluntary act, but that there are indeed other (prior) voluntary acts on X’s part
which also caused46 Y’s injuries. For example, the mere fact that X went to bed with the knife
next to him, is, according to the authors, a voluntary act which caused Y’s injuries and it would
thus be incorrect to conclude that X did not in any way act voluntarily with regard to such
injuries. This voluntary conduct by X was, however, not accompanied by fault47 and he will thus
not be held delictually liable.
Although this view may possibly be correct in theory, it should nevertheless not be accepted,
because it takes too narrow a view of automatism as a defence. Automatism does not mean that
there is no voluntary act whatsoever by the defendant which caused the damage, but only that
the conduct in question (for example, the injuring of Y with a knife in the above-mentioned
example) was not voluntary. Only the voluntary act closest to the harmful consequence is
normally of relevance, and it is therefore unnecessary to consider prior voluntary acts.48 In the
________________________
37 De Wet and Swanepoel Strafreg 50 fn 16; R v Dhlamini 1955 1 SA 120 (T) 121: “[T]here may be cases in which
some degree of negligence on the part of a sleepwalker would render him liable to some extent, [for example] the
case of a person, being aware that he is accustomed in his sleep to commit acts of violence, failing to take precau-
tions which he could reasonably take.”
38 R v Victor 1943 TPD 77. Where the person in question could not reasonably have foreseen that he could suffer a fit,
he will not be held liable (R v Schoonwinkel 1953 3 SA 136 (C)). Cf also Smit v Standard General Verseke-
ringsmaatskappy Bpk 1979 4 SA 624 (O) 626: “According to the findings already made, it could not have been said
that [the driver] through his knowledge of his problems . . . as a reasonable man should not have undertaken the
ride or should have stopped after the ride commenced” (translation). See further S v Trickett 1973 3 SA 526 (T)
531; Snyman Criminal Law 58.
39 Cf Van der Merwe and Olivier 26–27.
40 Molefe v Mahaeng 1999 1 SA 562 (SCA) 568. See, however, The Government v Marine and Trade Insurance Co
Ltd 1973 3 SA 797 (D) 799.
41 26–29.
42 Infra 35 ff.
43 Infra 155.
44 Cf R v Dhlamini 1955 1 SA 120 (T).
45 They argue (28): “Any voluntary conduct of a [defendant] that stands in a causal relation to a relevant consequence,
is in turn relevant as being the required element of conduct” (translation).
46 See infra 215 on causation.
47 See infra 155 ff on fault.
48 Cf Van der Merwe and Olivier 28 fn 24: “Although a consequence can be the result of various acts of the defend-
ant, the jurist in analysing the chain of events needs only to work back from the relevant consequence to the closest
voluntary act of the defendant in order to find the required act. It is, however, not denied that earlier voluntary acts
of the person involved can sometimes also come into the picture, eg where it appears that the closest voluntary act
[was not negligent or wrongful]” (translation).
32 Law of Delict
example under discussion, the act of the defendant in going to bed with the knife next to him
was indeed voluntary, but the plaintiff should not rely on this, because he will in any event not
be able to prove that it was a negligent act. However, if X knew or should reasonably have
foreseen that he could cause damage with the knife in his sleep, he would, as explained earlier,
not be able to rely on automatism, because his liability would be based on conduct prior to his
automatic state.49
4 Commission (commissio) and omission (omissio)50
As previously stated, conduct may be in the form of a commission or an omission.51 Although

the difference between the two concepts should not be overemphasised,52 there are nevertheless
some important distinctions which should be taken into account. One distinction of fundamental
importance is that liability for an omission is in general more restricted than liability for a
positive act (a commission).53 For policy considerations, the law is hesitant to find that there was
a legal duty54 on someone to act positively and so to prevent damage to another. However, it is
often difficult to draw a distinguishing line between conduct of a positive nature and conduct by
way of an omission. Van der Walt and Midgley55 explain the position as follows:
This [difficulty] is particularly true in cases involving a continuous course of conduct in response to a
series of new situations requiring precautionary adjustments, such as driving a car and, in some instances,
the same conduct may simultaneously be both a commission and an omission, depending upon its pur-
pose and context. There are also associated linguistic issues. Many “omissions” are therefore merely
indications of legally deficient positive conduct and an “omission” or failure to take certain measures in
the course of some activity is not necessarily a form of conduct, but may well indicate that the action
was negligently performed: Negligence is by definition a failure to take reasonable precautions.56
Driving a car through a stop street into another car illustrates a situation involving a continuous course of
positive conduct. The failure to stop indicates negligent or deficient positive conduct – culpa in faciendo.
The mere fact that linguistic alternatives enable us to describe the positive occurrence in a negative way
(for example, “the driver failed or omitted to stop at the stop street”) is legally irrelevant in the determin-
ation of the nature of the conduct.
In our opinion, this explanation is correct.57 It also implies that where (for example) X already
has control over a dangerous object (such as a fire) and fails to take reasonable steps to prevent
________________________
49 Supra 30.
50 See also infra 64 ff.
51 Loubser and Midgley Delict 99; Van der Walt and Midgley Delict 92; Snyman Criminal Law 51–52.
52 However, Snyman Criminal Law 51 declares: “From a technically correct point of view the term ‘act’ does not
include an ‘omission’. ‘Act’ is rather the opposite of an ‘omission’ . . . The word ‘conduct’ may refer to both of
them, but the use of the word ‘conduct’ is merely a formal, linguistic device of referring to both of them simultane-
ously.”
53 Van der Walt and Midgley Delict 92. See also Boberg Delict 211: “The forces of history and social policy maintain
the distinction between positive and negative conduct by viewing the latter more benevolently than the former: the
duty not to cause harm is more stringent than the duty to prevent it. Ethics and law part company here: not every
moral duty has a legal counterpart.”
54 For a discussion of instances where the law places a duty on someone to act positively, see infra 64 ff.
55 Delict 92.
56 Infra 176 ff.
57 Contra Van der Merwe and Olivier 29: “Where the dividing line between commissio and omissio lies cannot
always be indicated. Take the case where motorist A ignores the red light and consequently runs over and injures
pedestrian B. Is B’s injury the consequence of a positive act of A, in that he accelerated when the traffic lights were
against him, or was B’s injury caused by A’s failure to step on the brake and obey the traffic rules?” (translation).
In our opinion the example of Van der Merwe and Olivier is clearly concerned with a negligent commission (the
careless driving of the motor car) and not with an omission. It is also incorrect to accept that nearly every human
act can be described positively (commissio) or negatively (omissio) and that there is therefore no real distinction
between the two forms of conduct.
harm to others, it is more likely a case of negligent exercise of control (commissio)58 than of an
omission.59 However, this must be distinguished from the case where a person fails to take
precautions against the occurrence of damage and his failure is not an integral part of positive
conduct. Examples include the owner of land failing to exercise any control whatsoever over a
fire which has started on his land without his doing; a policeman neglecting to protect someone
who is being assaulted by a third person;60 the police failing timeously to disarm a dangerous
person who is (according to their information) in lawful possession of firearms and who then
causes damage;61 the police failing to prevent a dangerous criminal from escaping and he subse-
quently rapes a woman;62 the police failing to take an injured person in a police cell for medical
treatment and he subsequently sustains brain damage;63 the police and prosecutor failing to
oppose the bail application of a dangerous criminal who seriously assaults a woman after his
release,64 or a champion swimmer seeing a child drowning in a swimming pool and simply
ignoring the incident. These cases constitute omissions in that there is a failure to take any
positive steps whatsoever to prevent damage to other people. Whether the omissions in question
are wrongful, ie, whether there is a legal duty to act positively is, of course, a separate issue.65
________________________
58 Infra 69 168. Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13 (SCA) 25, which,
inter alia, dealt with an omission to consider relevant documentation before an administrative decision was made,
probably concerned a commission rather than an omission.
59 Cf Van der Walt and Midgley Delict 92–93; see also Moses v Minister of Safety and Security 2000 3 SA 106 (C)
114; infra 198 fn 251.
60 Minister van Polisie v Ewels 1975 3 SA 590 (A).
61 Eg Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA); see also Minister of Safety and
Security v Hamilton 2004 2 SA 216 (SCA).
62 A security gate being left unlocked (Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as
amicus curiae) 2003 1 SA 389 (SCA)).
63 Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA).
64 Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA).
65 See infra 64 ff where this matter is discussed in detail.
Chapter 3
Wrongfulness
1 Introduction
An act1 which causes harm to another is in itself insufficient to give rise to delictual liability. For
liability to follow, the act must be wrongful.2 Without wrongfulness, a defendant may not be
held liable.3
In essence, wrongfulness lies in the infringement of a legally protected interest (or an interest
worthy of protection) in a legally reprehensible way.4 As point of departure, wrongfulness
should be determined objectively ex post facto (diagnostically), in other words taking into
account all the relevant facts and circumstances that were really present and all the consequences
that really ensued.5
________________________
1 Supra 27 ff.
2 See regarding this requirement for delictual liability, Van der Walt and Midgley Delict 93 ff; Loubser and Midgley
Delict 177 ff; Van der Merwe and Olivier 49 ff; Boberg Delict 30 ff; Visser in Kuschke and Cornelius (eds) 194 ff;
Fagan Aquilian Liability 147 ff. In Herschel v Mrupe 1954 3 SA 464 (A) 485, Van den Heever JA regarded
wrongfulness as “an essential element” for liability (see also 490) and, as pointed out by Leach JA in Stedall v
Aspeling 2018 2 SA 75 (SCA) para 11, with reference to many cases, both the SCA and the CC have often stressed,
particularly in recent years, that wrongfulness is “an essential and discrete element which has to be established for
delictual liability to ensue” (see Scott 2018 TSAR 908 910–912; see also K v Minister of Safety and Security [2019]
1 All SA 415 (ECP) para 190). Roman and Roman-Dutch law required that the act had to be carried out non iure or
contra ius before liability could follow: D 9 2 5 1; Voet 47 1 1 (cf Van der Walt and Midgley Delict 93).
3 Supra 4; Herschel v Mrupe 1954 3 SA 464 (A) 490; cf Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA) 498.
The plaintiff bears the duty to allege, plead and prove wrongfulness (Stedall v Aspeling 2018 2 SA 75 (SCA) paras
17–19).
4 Van der Walt and Midgley Delict 99; Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA
13 (SCA) 31–32; cf also Loubser and Midgley Delict 22–25 178; Scott 2018 TSAR 75; Millner Negligence 24 ff 26;
Fleming Torts 139 (Fleming was cited in inter alia, Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)
(Pty) Ltd 1985 1 SA 475 (A) 498–499, Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 833-
834, Knop v Johannesburg City Council 1995 2 SA 1 (A) 27 and eBotswana (Pty) Ltd v Sentech (Pty) Ltd 2013 6
SA 327 (GSJ) 340, while Millner was cited in, eg, Trust Bank 833 and Knop 27); see also the European Group
Principles 29 ff 75 ff who also submit that “wrongfulness” is established with reference to infringement of
protected interests and the violation of the required standard of conduct, namely that of the reasonable person in the
circumstances (art 2:102, read with art 4:102 of the principles); Neethling and Potgieter 2014 THRHR 119.
5 See Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 139 where Moseneke DCJ
declared that “the enquiry into wrongfulness is an after-the-fact, objective assessment”. In a similar vein Langa CJ
stated in NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 5 SA 250 (CC) 274: “Unlawfulness
is an ex post facto inquiry into whether the action is compatible with the boni mores,” and deals “with the facts that
are now available to the court”; see also Bergrivier Municipality v Van Ryn Beck 2019 4 SA 127 (SCA) 142, where
Navsa JA stated (with reference to Neethling and Potgieter Delict (2015) 33): “As to wrongfulness, it is determined
objectively, taking into account all the relevant facts and circumstances and consequences that ensued”; Stedall v
Aspeling 2018 2 SA 75 (SCA) para 17; see further Knobel 2008 THRHR 653 who expresses this as follows: “[T]he
test [for wrongfulness] must be objective in nature and must entail an ex post facto inquiry aided by the wisdom of
hindsight”; Knobel 2008 THRHR 7, 2020 THRHR 213; Van der Merwe and Olivier 51 72 134; Boberg Delict 31–
33 381; Van der Walt and Midgley Delict 96; Ahmed in Potgieter, Knobel and Jansen (eds) 53; cf Loubser and
Midgley Delict 197; further infra 193–198; contra Roux v Hattingh 2012 6 SA 428 (SCA) 440–441; Brand 2013
THRHR 66–67; Fagan 2005 SALJ 95 ff, 2007 SALJ 285 ff; Visser in Kuschke and Cornelius (eds) 206í207; Visser
in Du Bois (ed) 1100. Brand JA’s statement in Roux 440–441 that the ex post facto determination of wrongfulness
renders the actor’s subjective mental disposition irrelevant, is subject to criticism (see Neethling and Potgieter 2014
[continued ]
35
36 Law of Delict
The determination of wrongfulness in principle entails a dual investigation.6 In the first place,
one must determine whether a legally recognised interest has been infringed, ie, whether such
interest has in fact been encroached upon.7 In other words, the act must have caused a harmful
result.
In the second place, if it is clear that a legally protected interest has been prejudiced, legal norms
must be used to determine whether such prejudice occurred in a legally reprehensible manner.8
Violation of a legal norm must therefore be present; a harmful consequence in itself is
insufficient to constitute wrongfulness.9 The question of whether the factual infringement of an
interest occurred in a legally reprehensible manner constitutes the essence of the investigation
into the element of wrongfulness. Whether an interest is worthy of protection, as well as whether
its infringement is legally unacceptable, is determined by the legal convictions of the community
or boni mores criterion.10
2 Act and consequence
An act may be described as delictually wrongful only when it has as its consequence11 the
infringement of a legally protected interest. Whether such a consequence is present, normally
________________________
THRHR 122–123, 2014 SALJ 252–253). In MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) 85 the court
held that reasonable foreseeablity plays no role in determining wrongfulness. This view can be supported because,
as indicated, for wrongfulness the defendant’s conduct is determined diagnostically (ex post facto), by taking
account of all the relevant facts and circumstances that are actually present and all the consequences that actually
ensued. Naturally the prognostic (ex ante) reasonable foreseeability of harm plays no part here but is a core
requirement of negligence (see infra 176). However, this does not mean that subjective foreseeability (the
defendant’s own, subjective, foresight or knowledge) should not play a role with regard to wrongfulness. Clearly,
adjudged ex post facto, the defendant’s knowledge is also a relevant fact which is actually present and should be
taken into account to determine wrongfulness. This approach is already established practice in case law (see above
and infra 47 ff for further references) (see also Neethling and Potgieter 2018 JJS 155).
6 Cf Van der Merwe and Olivier 56 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 78.
7 Lewis JA declared in Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13 (SCA)
31–32: “For an act or an omission to be actionable, it must constitute an infringement of a legal interest. Just as
there cannot be negligence in the air, so too there cannot be wrongfulness . . . in the air . . .” (see Neethling and
Potgieter 2004 Obiter 479). In Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 138
Moseneke DCJ viewed wrongfulness of an omission as “the failure to fulfil a duty to prevent harm to another”. See
further Local Transitional Council of Delmas v Boshoff 2005 5 SA 514 (SCA) 522; Van Eeden v Minister of Safety
and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 395; Minister of Safety and
Security v Carmichele 2004 3 SA 305 (SCA) 324; Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA)
36 37–38 (where Van Heerden AJA placed the focus on infringement of the right to physical integrity as legally
protected interest); Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 229.
8 Ibid. Cf Coetzee 2004 THRHR 661 ff who advocates that norm violation on its own, ie, in the absence of an
infringement of an interest, suffices to constitute delictual wrongfulness (however, cf Knobel 2005 THRHR 645).
9 Bester v Calitz 1982 3 SA 864 (O) 879; Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA
376 (T); Neethling, Potgieter and Roos Neethling on Personality Rights 78. Van der Merwe and Olivier 56–57
state: “From the fact that a person was harmed by the conduct of another it cannot, without further ado, be
concluded that the victim suffered a legal infringement. Harm and legal infringement must be clearly separated.
The former is a factual result; the latter a juridical evaluation of the events. Where A breaks the window of B’s
house as the only way of escaping a certain fiery death, B suffers patrimonial harm but no legal infringement”
(translation).
10 See, eg, Paixão v Road Accident Fund 2012 6 SA 377 (SCA) 381 385; Lee v Minister of Correctional Services
2013 2 SA 144 (CC) 167; eBotswana (Pty) Ltd v Sentech (Pty) Ltd 2013 6 SA 327 (GSJ) 339; Heroldt v Wills 2013
2 SA 530 (GSJ) 543 547–548. For a detailed discussion, see 39 infra.
11 Van der Merwe and Olivier 50 ff. See in particular the judgment of Van Reenen J in Thomas v BMW South Africa
(Pty) Ltd 1996 2 SA 106 (C) 120: “There can be no delict in the absence of a wrongful act or omission on the part
of a wrongdoer. An act or omission can be characterised as wrongful only if it results in damnum. Until that
happens an act or omission constitutes no more than ‘negligence in the air’. Wrongfulness is not simply an attribute
of a wrongdoer’s conduct but a function of that conduct together with its consequences in relation to a particular
person.” See also Mukheiber v Raath 1999 3 SA 1065 (SCA) 1075, where Olivier JA declared: “Common to all
[continued ]
Chapter 3: Wrongfulness 37
requires a concrete investigation of the relevant facts through an analysis of the available
evidence. For example, it may have to be determined, depending on the circumstances, whether
the plaintiff’s car has been damaged, his dignity impaired, his goodwill infringed, his claim to
delivery of a thing prejudiced or his earning capacity detrimentally affected.
Thus an act on its own, ie, without reference to a consequence of the nature described above, can
never be held to be delictually wrongful. For example, if X races down a main street in
Johannesburg at 120 km/h in peak hour traffic, and nothing happens, his act will not be
considered wrongful in delict.12 As a matter of fact, his conduct is irrelevant for the purposes of
the law of delict because there is no infringement of an interest.13 In delict, the wrongfulness of
an act is, therefore, always determined with reference to its consequence: if such a consequence
is lacking, the act cannot be wrongful.14
An act and its consequence are always separated by time and space.15 The division or detachment
of an act and its consequence may be negligible or significant. Where X slaps Y’s face, the
consequence (infringement of physical integrity or honour) follows immediately upon the act (the
slap). On the other hand, the act of placing a limpet mine in a restaurant and the resultant damage
to property or physical injury hours later when the device explodes, are separated to a greater
extent.16 In both instances, the act is only wrongful in delict when harmful consequences ensue.
If one bears in mind that the act and its consequences are separate in time and space, and that an
act may be labelled as lawful or unlawful only with reference to its consequences, then
seemingly problematic cases such as Pinchin v Santam Insurance Co Ltd17 will create no
________________________
approaches to [the unlawfulness of a misrepresentation] is the fundamental principle that tortious liability is
founded not upon the act performed by the defendant, but upon the consequences of that act (Viscount Simonds in
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] 1 All ER 404 (PC) (Wagon Mound
No 1) 415A: ‘But there can be no liability until the damage has been done. It is not the act but the consequences on
which tortious liability is founded. Just as . . . there is no such thing as negligence in the air, so is there no such
thing as liability in the air’”). See also Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6
SA 13 (SCA) 31–32, quoted in fn 7 supra.
12 X contravenes the statutory speed limit and his conduct is, as far as criminal law is concerned, indeed prima facie
wrongful. Cf Thomas v BMW South Africa (Pty) Ltd 1996 2 SA 106 (C) 120. However, see Coetzee 2004 THRHR
661 ff who is of the opinion that a harmful consequence is not indispensable for delictual wrongfulness and that
norm violation is the essence of wrongfulness.
13 Private law regulates conflicting individual interests (Van Apeldoorn Inleiding 36 ff) and will normally apply only
when infringement of an interest has in fact taken place (supra 3), unless the infringement of interests is imminent
(imminent wrongful conduct) in which case an interdict may be requested to prevent injury (infra 308).
14 In a sense it is preferable to speak of a wrongful consequence rather than of a wrongful act. Van der Merwe and
Olivier 58 fn 98 put it as follows: “Here, by ‘act’ is meant the ‘causing of a consequence’. Where an action for
damages or satisfaction is always concerned with the causing of a consequence, it can hardly be doubted that the
question as to reasonableness with regard to wrongfulness cannot be answered merely with reference to the act. The
examination focuses on the consequence . . . The question is therefore always whether the causing of the conse-
quence was unreasonable” (translation). This implies that the same act may cause both a wrongful and a lawful
consequence; that an act may be wrongful in respect of one plaintiff, but lawful in respect of another: “[C]onduct
which is lawful towards one person may be unlawful towards another” (per Harms JA in SM Goldstein & Co (Pty)
Ltd v Cathkin Park Hotel (Pty) Ltd 2000 4 SA 1019 (SCA) 1024; cf Premier, Western Cape v Faircape Property
Developers (Pty) Ltd 2003 6 SA 13 (SCA) 31–32; Union Government v Ocean Accident and Guarantee
Corporation Ltd 1956 1 SA 577 (A); Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980
3 SA 653 (D); Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A) 367: “Since we know that
second respondent was in fact not the only occupant [of the car], the question is whether the conduct in question can
also be regarded as lawful in respect of its consequences to the other occupant” (emphasis added); Thomas v BMW
South Africa (Pty) Ltd 1996 2 SA 106 (C) 120; Faiga v Body Corporate of Dumbarton Oaks 1997 2 SA 651 (W) 664).
15 Van der Merwe and Olivier 51; Loubser and Midgley Delict 181.
16 Van der Merwe and Olivier 51 provide the following eg: X fires a missile from Pretoria to Perth, Australia. X’s act
is completed long before the missile strikes its target and causes damage. Only when the consequence occurs may it
be said that X acted wrongfully. (If the missile misses its target and falls into the sea without causing any loss, X’s
act is irrelevant for the law of delict and, consequently, also not wrongful.)
17 1963 2 SA 254 (W).
38 Law of Delict
difficulties. Briefly, the facts were the following: A pregnant woman was involved in a motor-
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. However, at the time of the defendant’s act, the child was in ventre matris. As a result,
the child had no juristic personality18 and, consequently, had no legally protected interests that
could be infringed. The question was whether the defendant’s act was wrongful in relation to the
child.
Relying on the nasciturus fiction19 – that an unborn child is deemed born if doing so is in its
interest – Hiemstra J held that the child had an action in principle, but that the action had to fail
in casu because there was no proof that the brain injuries were caused by the accident.
As Joubert20 convincingly argues, it was unnecessary to rely on the nasciturus fiction to find that
in principle this child would have had an action. Because the act and its consequences are
separate both in time and space, the child need not have had legal capacity at the time of the act;
or, to put it differently, it was not necessary that the act be classified as lawful or unlawful
immediately after its completion. In casu, the defendant’s act (at the time of the accident)
resulted in a harmful consequence much later (when the child was born with injuries – we
assume, for argument’s sake, that a causal connection had been proved). The legal subject came
into being at birth, and only then did the erstwhile act bring about a harmful consequence, ie,
injury to the legal subject. Only when this harmful consequence takes place may the defendant’s
act, long since committed, be classified as wrongful. Therefore, if one keeps in mind that the act
and its consequence are separate in time and space, it is unnecessary to employ the nasciturus
fiction in order to grant a delictual action to a child who is born with defects resulting from pre-
natal injuries.
In Road Accident Fund v Mtati,21 the Supreme Court of Appeal followed Joubert’s approach.22
Farlam JA pointed out that the nasciturus fiction does not offer a solution in certain instances
(for example, when a mother is negligently infected with syphilis before she became pregnant,
but the child is then born with the disease) and may in other situations lead to unfair results. The
court stated clearly that wrongfulness and damage are separate delictual elements that must not
be merged, and emphasised that recognition of a child’s right to claim for antenatal injuries will,
for several reasons, not open the floodgates of litigation, inter alia, because the claim depends
upon the live birth of the child.
________________________
18 See Robinson 2018 (21) PELJ 1 ff who, in discussing whether a (cryopreserved) embryo is a legal subject or legal
object, concludes that embryos are not legal subjects sui iuris but share the legal subjectivity of their parent.
19 See on the nasciturus fiction Road Accident Fund v Mtati 2005 6 SA 215 (SCA) and sources cited there. (It is a
self-evident requirement for delictual liability that the relevant act must have caused the relevant consequences; ie,
that a causal nexus existed between the act and the consequence: see infra 215 ff.)
20 1963 THRHR 61 ff; see also RAF v M obo M [2005] 3 All SA 340 (SCA) 346 ff; Van der Merwe and Olivier 53 ff;
Van der Vyver and Joubert Persone- en Familiereg 61 ff. On legal subjectivity (“regsubjektiwiteit”) see Van der
Vyver 1973 THRHR 266 ff; Van Rensburg 1974 THRHR 94.
21 2005 6 SA 215 (SCA) 219 ff. See also H v Fetal Assessment Centre 2015 2 SA 193 (CC) 211; cf SS v Road
Accident Fund [2016] 3 All SA 637 (GP); Scott 2006 TSAR 617 ff; Neethling 2006 THRHR 511 ff; Knobel and
Kruger 2006 THRHR 517 ff; Mukheibir 2006 Obiter 188 ff.
22 The judgment in SS v Road Accident Fund [2016] 3 All SA 637 (GP) by implication also confirmed the fact that an
act and its consequences are separated in time and space and that an act must be labelled as lawful or unlawful only
with reference to its consequences. In this case the plaintiff was involved in a motor vehicle collision just over two
months before her child was due to be born. Although the plaintiff did not sustain serious injuries, the accident was
serious and resulted in the deaths of the occupants of the other vehicle involved in the collision. The child was born
with cerebral palsy some seven weeks after the collision and the court found that the injuries were caused by the
collision and held the defendant liable.
3 The legal convictions of the community (boni mores) as the

basic test for wrongfulness
The general norm or criterion to be employed in determining whether a particular infringement

of interests is unlawful is the legal convictions of the community: the boni mores.23 In Lee v
Minister for Correctional Services24 the Constitutional Court expressed it as follows:
________________________
23 In Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 387 it was unequivocally stated
that wrongfulness is basically determined with reference to the boni mores. The boni mores criterion as test for
wrongfulness is frequently emphasised by the courts: see DE v RH 2015 5 SA 83 (CC) 101 where Madlanga J
stated: “On the yardstick for wrongfulness, the Afrikaans language – in its characteristic expressive manner – refers
to the algemene regsgevoel van die gemeenskap the rough translation of which would be ‘the community’s general
sense of justice’. This is a concept that has also been referred to as ‘the boni mores of society’ or ‘the legal
convictions of the community’”; see also, eg, Brouze v Wenneni Investments (Pty) Ltd [2015] 4 All SA 543 (SCA)
110; Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2016 2 SA 586 (SCA) para 21; Steenkamp NO v
Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 139; Phumelela Gaming and Leisure Ltd v
GrĦndlingh 2007 6 SA 350 (CC) 361–362; Marais v Richard 1981 1 SA 1157 (A) 1168; Minister van Polisie v
Ewels 1975 3 SA 590 (A) 597; Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 833–834;
Minister of Safety and Security v Howard 2009 5 SA 201 (SCA) 206–209; Jacobs v Chairman, Governing Body,
Rhodes High School 2011 1 SA 160 (WCC) 165; Hattingh v Roux NO 2011 5 SA 135 (WCC) 140; Coronation
Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 380; Hawker v Life Offices Association of
South Africa 1987 3 SA 777 (C) 781; Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA
173 (T) 188–189; Schultz v Butt 1986 3 SA 667 (A) 679; Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd 1988
2 SA 350 (W) 356–357; Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 4 SA 749 (N) 753–
754; Macadamia Finance Ltd v De Wet 1991 4 SA 273 (T) 278; Clarke v Hurst 1992 4 SA 630 (D) 651–653;
Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 380; Administrateur, Transvaal v
Van der Merwe 1994 4 SA 347 (A) 358 364; Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA);
McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 904–905; SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel
(Pty) Ltd 2000 4 SA 1019 (SCA) 1024; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA
382 (W) 297; Deacon v Planet Fitness Holdings (Pty) Ltd 2016 2 SA 236 (GP) para 17 (Scott 2016 TSAR 754 ff).
See further, in regard to the boni mores criterion, Van der Walt and Midgley Delict 99 ff; Boberg Delict 33 ff;
Neethling, Potgieter and Roos Neethling on Personality Rights 78–83; Neethling Van Heerden-Neethling Unlawful
Competition 123–124; Loubser and Reid Product Liability 40–45; Van der Merwe and Olivier 58 ff; Neethling
1991 THRHR 218–219; Potgieter 1978 THRHR 330 ff; Van Wyk 1975 THRHR 383; cf Ahmed 2019 THRHR
387í390; but see Taitz 1993 SALJ 440 who questions the use of a single boni mores criterion in a heterogeneous
society. Cf Wessels 2020 THRHR 155–158 for a critical discussion of the boni mores criterion.
24 2013 2 SA 144 (CC) 167 (our emphasis); F v Minister of Safety and Security 2012 1 SA 536 (CC) 566; Bergrivier
Municipality v Van Ryn Beck 2019 4 SA 127 (SCA) 142í143. Brand 2013 THRHR 63 65 (and Country Cloud
Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214 (SCA) 222 (Scott 2014 TSAR 826
ff) – but see RH v DE 2014 6 SA 436 (SCA) para 18) is clearly opposed to the utilisation of the boni mores as
criterion for wrongfulness (but see Neethling and Potgieter 2014 THRHR 117–118), in contrast to several of his
colleagues in the CC, the SCA and the High Courts (apart from the decisions in the previous fn, see, eg, also Lee
167; Loureiro v Imvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) 410; H v Fetal Assessment Centre 2015 2
SA 193 (CC) 216; Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 1 SA 1
(CC) para 21; Minister of Justice and Constitutional Development v X 2015 1 SA 25 (SCA) paras 13 17 (see
Neethling and Potgieter 2015 TSAR 856–857); Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA)
para 32; Paixão v Road Accident Fund 2012 6 SA 377 (SCA) 381 385; Van Jaarsveld v Bridges 2010 4 SA 558
(SCA) 564; eBotswana (Pty) Ltd v Sentech (Pty) Ltd 2013 6 SA 327 (GSJ) 338í342 (see Scott 2014 THRHR 686
ff); Greeff v Protection 4U h/a Protect International 2012 6 SA 393 (GNP) 407 408 409; Heroldt v Wills 2013 2
SA 530 (GSJ) 543 547–548; Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) 424–426; Living Hands (Pty)
Ltd v Ditz 2013 2 SA 368 (GSJ) 379; Jaffit v Garlicke & Bousfield Inc 2012 2 SA 562 (KZP) 569 575; McCarthy
Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel 2012 6 SA 551 (GNP) 563–
564; Wingaardt v Grobler 2010 6 SA 148 (ECG) 156–159). Be that as it may, Brand JA stated in Cape
Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 197 (see also Country Cloud Trading
(SCA) 221–222; Brand in Visser and Pretorius (eds) 55) that both wrongfulness and legal causation “serve as safety
valves preventing the imposition of liability in a particular situation which most right-minded people [‘including
judges’ – 193] will regard as untenable, despite the presence of all other elements of delictual liability” (emphasis
added). It is difficult to grasp the difference between the test of the legal convictions of the community (boni
[continued ]
40 Law of Delict
In [Minister van Polisie v] Ewels25 it was held that our law had reached the stage of development where
an omission is regarded as unlawful conduct when the circumstances of the case are of such a nature that
the legal convictions of the community demand that the omission should be considered wrongful. This
open-ended general criterion has since evolved into the general criterion for establishing wrongfulness
in all cases, not only omission cases.
The boni mores test is an objective test based on the criterion of reasonableness.26 The basic
question is 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 an unreason-
able manner.27 28
________________________
mores) as determined by, inter alia, judges (cf Schultz v Butt 1986 3 SA 667 (A) 679), which he opposes, and the
opinion of “most right-minded people, including judges”, which he favours.
25 Minister van Polisie v Ewels 1975 3 SA 590 (A) 597.
26 Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 139; SM Goldstein & Co (Pty) Ltd v
Cathkin Park Hotel (Pty) Ltd 2000 4 SA 1019 (SCA) 1024; McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 905;
Oosthuizen v Van Heerden t/a Bush Africa Safaris 2014 6 SA 423 (GP) 433; BS v MS 2015 6 SA 356 (GP)
360í361; Neethling, Potgieter and Roos Neethling on Personality Rights 79í80; Van der Merwe and Olivier 58 ff;
Van der Walt and Midgley Delict 99í100. The concepts “boni mores” (good morals) and “legal convictions of the
community” are used synonymously. However, the concept boni mores, as applied in the law of delict, has a
juridical content. Boni mores does not merely mean “good morals”: it is not a purely moral criterion; in this context
boni mores concerns the legal convictions of the community which serve as a yardstick to establish whether or not
the community regards a particular act to be delictually wrongful (infra 44). This test is also referred to as the
“general reasonableness criterion” or, simply, the “reasonableness criterion” (cf Natal Fresh Produce Growers’
Association v Agroserve (Pty) Ltd 1990 4 SA 749 (N) 753), whilst reference to conduct being “sosiaal-inadekwaat”
has also been made (Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 358; Van der Merwe and
Olivier 57–58). In Marais v Richard 1981 1 SA 1157 (A) 1168 it was stated: “Nowadays the borders of wrong-
fulness are sought in the application, as fundamental norm, of what can be called the ‘general reasonableness
yardstick’” (translation) (cf Van der Merwe Vorderingsregte 158). See also Government of the Republic of South
Africa v Basdeo 1996 1 SA 355 (A) 367. Cf Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1053 fn 3
where Marais JA expressed dissatisfaction with “legal convictions of the community” as translation of “regsoor-
tuiging van die gemeenskap”: “It is not a particularly happy rendering. What after all is a legal conviction? ‘Sense
of what the law ought to be’ would, I think, convey the meaning more accurately.” In Minister of Law and Order v
Kadir 1995 1 SA 303 (A) 318–319, Hefer JA spoke of “society’s notions of what justice demands” while Van
Deventer J in Graham v Cape Metropolitan Council 1999 3 SA 356 (C) 369–370 referred to “the sense of justice
and legal convictions of the community”. See Ahmed in Potgieter, Knobel and Jansen (eds) 51–55 on the (explicit)
influence of reasonableness on the element of wrongfulness.
27 See Hattingh v Roux NO 2011 5 SA 135 (WCC) 140; Oosthuizen v Van Heerden t/a Bush Africa Safaris 2014 6 SA
423 (GP) 433. In Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 380, the
court expressed it as follows: “[I]n any given situation the question is asked whether the defendant’s conduct was
reasonable according to the legal convictions or feelings of the community.” In Compass Motors Industries (Pty)
Ltd v Callguard (Pty) Ltd 1990 2 SA 520 (W) 528–529, Van Zyl J pointed out that the boni mores concept has
points of contact in our common law where it is also linked to the concept of good faith (bona fides): “This
indicates that the community’s perception of boni mores is closely linked to the concept of good faith in
community relations. These concepts, again, are similarly associated with the community’s perception of justice,
equity and reasonableness. This has been recognised not only in historical and comparative context, but in the
contemporary decisions of our own Courts . . . From this it appears that public policy, in the sense of boni mores,
cannot be separated from concepts such as justice, equity, good faith and reasonableness, which are basic to
harmonious community relations and may indeed be regarded as the purpose of applying public policy
considerations.” The question as to the determination of wrongfulness is answered as follows by Van der Merwe
and Olivier 57–58: “The answer is that at all times the focus must be on the reasonableness or otherwise of the
actor’s conduct in light of its effect on the victim. In private law a continual weighing-up of interests between
persons must take place with reference to reasonableness. The reasonableness yardstick . . . is an objective
yardstick. Here one is simply working with the general legal convictions of the community . . . An act is
accordingly reasonable if it is lawful according to the legal convictions of the community” (translation). See also
Neethling, Potgieter and Roos Neethling on Personality Rights 79.
28 This reasonableness criterion must be differentiated from the reasonableness of holding a person delictually liable,
used as a variation of the test for wrongfulness in several judgments of the CC and SCA. See infra 93 ff for an in-
depth and critical discussion of that variation.
3.1 The balancing of interests

Nature of balancing process The application of the boni mores criterion essentially entails the
ex post facto balancing or weighing-up of, on the one hand, the interests which the defendant
promoted by his act, and on the other, those which he infringed.29 The court must weigh the
conflicting interests of the defendant and plaintiff, and the social consequences of imposing
liability in similar instances, in light of all the relevant circumstances and in view of all pertinent
factors in order to decide whether the infringement of the plaintiff’s interests was reasonable or
unreasonable.30
Factors Various factors may play a role in the process of determining the reasonableness or
unreasonableness of the defendant’s conduct: these include the nature and extent of the harm;
whether the harm was (subjectively) foreseen31 or (reasonably) foreseeable;32 the possible value
to the defendant or to society of the harmful conduct; the costs and effort of steps which could
________________________
29 In Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 384, it was stated: “In
determining whether conduct is of such a nature as to be determined unlawful, the Court must carefully balance and
evaluate the interests of the concerned parties, the relationship of the parties and the social consequences of the
imposition of liability in that particular type of situation.” See also Loureiro v iMvula Quality Protection (Pty) Ltd
2014 3 SA 394 (CC) para 34 (see Knobel in Kuschke and Cornelius (eds) 53í54); Oosthuizen v Van Heerden t/a
Bush Africa Safaris 2014 6 SA 423 (GP) 433; Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) 426; Dersley
v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) 1055; Administrateur, Transvaal v Van der Merwe
1994 4 SA 347 (A) 361; Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 462; Hawker v Life
Offices Association of South Africa 1987 3 SA 777 (C) 781; Universiteit van Pretoria v Tommie Meyer Films
(Edms) Bpk 1977 4 SA 376 (T) 387; Minister van Polisie v Ewels 1975 3 SA 590 (A) 596–597; Black v Joffe 2007
3 SA 171 (C) 183–184; Van der Merwe and Olivier 57–58 (quotation in fn 27 supra); Van der Walt and Midgley
Delict 99–105. Fagan Aquilian Liability 153 disagrees. He states: “I do not accept the claim – which sits at the heart
of the prevailing scholarly analysis – that whether conduct was wrongful is ultimately to be determined by whether
it was ex post facto unreasonable, and thus by whether the interests it served outweigh the interests it set back.
Consistent with my refusal to accept this claim, I do not believe that the existing wrongfulness-determining rules
can be justified on the basis that, by applying them, one is determining whether the conduct was ex post facto
unreasonable, albeit indirectly rather than directly. Nor do I believe that, on those occasions when courts are
required to determine whether conduct was wrongful by the exercise of their discretion, they should do so by
asking themselves whether the conduct was ex post facto unreasonable.” See, however, supra fns 26 27.
30 Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 361; see also Natal Fresh Produce Growers’
Association v Agroserve (Pty) Ltd 1990 4 SA 749 (N) 753–754; Hawker v Life Offices Association of South Africa
1987 3 SA 777 (C); see further Wolmarans v ABSA Bank Ltd 2005 6 SA 551 (C) 561–562; Neethling 2006 SA
Merc LJ 376 ff; Deneys Reitz v SA Commercial, Catering and Allied Workers Union 1991 2 SA 685 (W).
31 Or, in other words, the knowledge that harm will be caused: see infra 47; 64 (liability for an omission); 349 (pure
economic loss); 357 (negligent misrepresentation).
32 However, recently, in an apparent attempt to avoid confusion and the conflation of the elements of wrongfulness
and negligence, the SCA has determined, according to Leach JA in Stedall v Aspeling 2018 2 SA 75 (SCA) para 14
(see also para 21) (with reference to Country Cloud Trading CC v MEC, Department of Infrastructure Development
2014 2 SA 214 (SCA) para 27 (see Neethling 2015 TSAR 194); MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76
(SCA) para 18 (see Neethling and Potgieter 2018 JJS 153–156)), “that foreseeability of harm, a critical requirement
of negligence, should find no place in the inquiry into wrongfulness” (see Scott 2018 TSAR 916 918). (See also
Brand 2014 Stell LR 457: “When [foreseeability of the resultant consequences] is also introduced into the test for
wrongfulness, the recipe for confusion between wrongfulness and negligence has gone full circle”; Botha 2013
SALJ 171; Knobel in Potgieter, Knobel and Jansen (eds) 229 ff.) On the other hand, for cases recognising the role
of foreseeability in determining wrongfulness, see, eg, Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 589;
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468;
Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) 418 (cf Scott 2014 De Jure 374 ff);
Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 3 SA 151 (SCA) 159–160; Gouda Boerdery BK v
Transnet 2005 5 SA 490 (SCA) 498–499; Harrington NO v Transnet (Ltd) 2007 2 SA 228 (C) 241 246; Van der
Eecken v Salvation Army Property Co 2008 4 SA 28 (T) 39; Minister of Safety and Security v Carmichele 2004 3
SA 305 (SCA) 324; Stewart v Botha 2008 6 SA 310 (SCA) 314; eBotswana (Pty) Ltd v Sentech (Pty) Ltd 2013 6
SA 327 (GSJ) 340; see further Neethling 2007 SALJ 206–207 212; Neethling and Potgieter 2014 TSAR 893–895;
contra Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 163; Cape
Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 197–198. The role of (reasonable)
foreseeability in respect of wrongfulness and negligence is discussed infra 193–198 under the difference between
these two delictual elements; cf also Fagan 2005 SALJ 90.
42 Law of Delict
have been taken to prevent the loss; the degree of probability of the success of preventative
measures; the nature of the relationship between the parties; whether the costs of preventing the
harm would have been proportional to the harm that the plaintiff could suffer; the motive of the
defendant; economic considerations and the fear of limitless liability;33 the legal position in other
countries; ethical and moral issues; as well as other considerations of public interest or public
policy,34 including the values and norms underpinning the Constitution, 1996 and the Bill of
Rights.35
Influence of the Constitution and the Bill of Rights The Constitution and the Bill of Rights
influence the boni mores criterion, since, as discussed above,36 the Constitution applies both
vertically and horizontally and both directly and indirectly to all law – including the boni mores
criterion for wrongfulness.37 This means that the legal convictions of the community must now
incorporate the constitutional values and norms and give effect to them.38 The courts therefore
have a duty to develop the boni mores as part of the common law in accordance with the spirit,
________________________
33 Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A); Fourway Haulage SA (Pty) Ltd v SA
National Roads Agency Ltd 2009 2 SA 150 (SCA); Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne
Panama SA 1980 3 SA 653 (D); Franschhoekse Wynkelder (Ko-operatief) Bpk v SAR & H 1981 3 SA 36 (C);
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214 (SCA); Brand 2014
Stell LR 466; cf Price 2019 Acta Juridica 315 ff. See also infra 84.
34 See Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 361–362 (cf Scott 1995 De Jure 239). See also
Loureiro v iMvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) para 56; Coronation Brick (Pty) Ltd v
Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 384; Bowley Steels (Pty) Ltd v Dalian Engineering (Pty)
Ltd 1996 2 SA 393 (T) 400–401; SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd 2000 4 SA 1019
(SCA) 1024 ff; Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C) 969–970; Mpongwana v Minister of Safety and
Security 1999 2 SA 794 (C) (cf Scott 1999 De Jure 340; Neethling 2000 THRHR 150); Clarke v Hurst 1992 4 SA
630 (D) 657; Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 387. See also
Loubser and Midgley Delict 190–197; Boberg Delict 34; Van Aswegen 1993 THRHR 171 ff; Corbett 1987 SALJ
52; Van der Walt and Midgley Delict 99–105; Potgieter 1978 THRHR 330; Brand 2014 Stell LR 463–464; Price
2019 Acta Juridica 315 ff on the role in this regard of “proximity considerations”, alongside legal and public policy
considerations and constitutional norms. (Note that although some of these factors may also play a role in the
reasonable person test for negligence (infra 180 ff), the reasonableness test for wrongfulness differs from the
reasonable person test for negligence (infra 193–198).)
35 See, eg, Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA
938 (CC) 956–957 970; Oppelt v Department of Health, Western Cape 2016 1 SA 325 (CC) para 51; Van Vuuren v
Ethekwini Municipality 2018 1 SA 189 (SCA) para 22; Odinfin (Pty) Ltd v Reynecke 2018 1 SA 153 (SCA) para
14; Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 144; Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 156; Stewart v Botha 2008 6 SA 310
(SCA) 314–315; Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 139; Minister of
Finance v Gore 2007 1 SA 111 (SCA) 138; McIntosh v Premier, KwaZulu-Natal 2008 6 SA 1 (SCA) 7–8; Brooks v
Minister of Safety and Security 2009 2 SA 94 (SCA) 96–97; see further Neethling 2005 SALJ 580–581; Brand 2014
Stell LR 464 ff.
36 See supra 17 on the influence of the Constitution, 1996, and the Bill of Rights (ch 2 of the Constitution, 1996) on
the law of delict and the wrongfulness criterion (cf also Loubser and Midgley Delict 35 ff; Neethling, Potgieter and
Roos Neethling on Personality Rights 123–129; Van der Walt and Midgley Delict 18 ff 110 ff; Neethling and Potgieter
2002 THRHR 271 and sources cited there; Brand 2014 Stell LR 464 ff who says that the Constitution “represents and
crystallises the objective normative values of our society”).
37 Constitution, 1996 s 8(1). Cf Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 4 SA 938 (CC).
38 Cf Du Plessis v De Klerk 1996 3 SA 850 (CC) paras 60 63 86; Carmichele v Minister of Safety and Security
(Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC) 953 ff 962–963; Minister of Justice and
Constitutional Development v X 2015 1 SA 25 (SCA) para 17 (see Neethling and Potgieter 2015 TSAR 858);
Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 228–231; Minister van Veiligheid en Sekuriteit v
Geldenhuys 2004 1 SA 515 (SCA) 528; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust,
as amicus curiae) 2003 1 SA 389 (SCA) 396–397; Minister of Safety and Security v Van Duivenboden 2002 6 SA
431 (SCA) 444–448; Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA); Nortje v Attorney-
General, Cape 1995 2 SA 460 (C) 471; Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 2
SA 54 (C); Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13 (SCA) 30–31.
purport and objects of the Bill of Rights;39 in brief, to develop the boni mores of our
constitutional community.40 Wrongfulness must therefore be interpreted more widely to give
better protection to the values underpinning the Bill of Rights.41 This approach is already
followed in case law42 and in future the values underpinning the Bill of Rights, ie, the values
underlying an open and democratic society based on human dignity, equality and freedom, must
take precedence over existing mores.43 Over the course of time, the value system incorporated
into the Constitution will enrich, extend and even replace existing wrongfulness norms. The
Constitution can nevertheless not be regarded as the exclusive embodiment of the legal
convictions of the community.44 The Constitution’s influence on the law of delict is still
relatively new; hence the existing principles in respect of the boni mores criterion should play a
part during this process of development.45 Existing boni mores principles should, for the sake of
legal certainty, be prima facie indicators of whether conduct is reasonable or not in light of the
Bill of Rights.46
________________________
39 Constitution, 1996 ss 8(3)(a) and 39(2). See Froneman J’s guiding judgment in MEC for Health and Social
Development, Gauteng v DZ 2018 1 SA 335 (CC) paras 27 ff on the general approach to the development of the
common law under s 39(2). See also Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 4 SA 938 (CC) 953 ff; Minister of Justice and Constitutional Development v X 2015 1
SA 25 (SCA) para 17; Neethling and Potgieter 2002 THRHR 265 ff, 2015 TSAR 858; Neethling, Potgieter and Roos
Neethling on Personality Rights 80–81. In Carmichele 953 ff, the CC emphasised the duty of each court under
s 39(2) of the Constitution, 1996 to promote the spirit, purport and objects of the Bill of Rights when developing
the common law (including, therefore, the law of delict) (see also supra 18). In Faircape Property Developers (Pty)
Ltd v Premier, Western Cape 2000 2 SA 54 (C) 65, Davis J declared: “In my view, the determination of the legal
convictions of the community on which the test for wrongfulness is based must take account of the spirit, purport
and object of the Constitution.” Cf also s 173 of the Constitution in terms of which the CC, SCA and High Courts
have the inherent power to, amongst other things, “develop the common law, taking into account the interests of
justice”.
40 See Sayed v Editor, Cape Times 2004 1 SA 58 (C) 61.
41 In Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938
(CC) 962–963, the court declared that the applicable constitutional imperatives require the net of delictual liability
to be cast wider by emphasising the objective nature thereof and by defining it wider (see Carpenter 2003 SAPL
256; Neethling and Potgieter 2002 THRHR 271–272).
42 See the following examples: The courts have, with consideration of, inter alia, applicable constitutional impera-
tives, appreciably extended the legal duty of the state to protect the right to physical-psychological integrity against
infringement (assault) by third parties (see Neethling 2013 THRHR 119–120 330–335; infra 84 ff). Furthermore,
Madlanga AJP declared, in Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) 841 (see also 843): “The
new constitutional dispensation certainly has a bearing on the boni mores of society . . . Surely, the legal
convictions of the community on the issue under discussion [private defence] are, at present, informed by, inter
alia, the sanctity of life, a fundamental right enshrined in s 11 of the Constitution of the Republic of South Africa
Act 108 of 1996.” See also supra 17 ff; Neethling and Potgieter 2002 THRHR 271–272; Neethling, Potgieter and
Roos Neethling on Personality Rights 80–83.
43 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC)
953 ff; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA
389 (SCA) 395–397; Ryland v Edros 1997 2 SA 690 (C) 707; Rivett-Carnac v Wiggins 1997 3 SA 80 (C) 87. Eg,
new ethical norms in respect of freedom of expression can influence the law of defamation, while new views on
privacy, freedom of religion, human dignity and punishment can influence the protection in delict of respectively
privacy, different facets of the dignitas (eg religious feelings, feeling of honour, and different spriritual-moral
feelings), and the physical integrity (see also Neethling, Potgieter and Roos Neethling on Personality Rights 78–83;
see in general on these interests infra 392 ff). See on the influence of the Constitution on liability for an omission,
infra 66 85.
44 See Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389
(SCA) 396.
45 Application of the Constitution to the boni mores does not imply that this criterion loses its status as instrument for
shaping and improving the law of delict to keep up with new challenges (see Van Eeden v Minister of Safety and
Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 396; Van der Walt and Midgley
Delict 110–111; Visser 1998 TSAR 535).
46 See also supra 21–23; Neethling and Potgieter 2002 THRHR 272 278; Neethling 2003 TSAR 568–569, 2003 TSAR
790–791; Neethling, Potgieter and Roos Neethling on Personality Rights 80–83; Dendy 1996 De Rebus 604; cf
Neethling 2002 SALJ 700 ff).
44 Law of Delict
Conclusion The boni mores or general reasonableness criterion is, therefore, a juridical
yardstick that gives expression to the prevailing convictions of the community regarding right
and wrong.47 It is a criterion which enables the court continuously to adapt the law to reflect the
changing values and needs of the community.48
3.2 A delictual criterion

In applying the boni mores criterion in the law of delict, we are not concerned with what the
community regards as socially, morally, ethically or religiously right or wrong, but whether or
________________________
47 Boberg Delict 33 declares: “At the root of each of these crystallized categories of wrongfulness lies a value
judgment based on considerations of morality and policy – a balancing of interests followed by the law’s decision
to protect one kind of interest against one kind of invasion and not another. The decision reflects our society’s
prevailing ideas of what is reasonable and proper, what conduct should be condemned and what should not – the
boni mores, or, as Rumpff CJ put it in Minister van Polisie v Ewels . . . the legal convictions of the community.”
Furthermore, the balancing of conflicting interests involves the convictions of the South African community and
not those of, eg, the USA, Europe or England (cf National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1212;
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) 593; Deneys Reitz v SA
Commercial, Catering and Allied Workers Union 1991 2 SA 685 (W) 692–693). This principle does not, however,
preclude the investigation of foreign legal systems for comparative purposes (cf Clarke v Hurst 1992 4 SA 630 (D)
653 ff where American and English cases were examined to determine societal attitudes in regard to maintaining or
discontinuing artificial life-sustaining measures). In addition, s 39(1) of the Constitution, 1996 provides that courts
have a discretion to consider comparable foreign decisions. Cf, however, Taitz 1993 SALJ 440 who highlights the
difficulties in formulating a single boni mores criterion for South Africa where a controversial issue such as
euthanasia is involved.
48 Mostert J formulated this view eloquently in Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4
SA 376 (T) 387: “By applying the yardstick of the ‘legal convictions of the community’. . . the legal system obtains
the benefit of an interplay between ethos and judicial example, and a flexibility which is absent in systems more
bound by precedent” (translation). The Appellate Division has on occasion stated that it is guided in its decisions
by “the tempora et mores of today, not of yesteryear” (Publication Control Board v Gallo Africa Ltd 1975 3 SA
665 (A) 683). The decision of the Appellate Division in S v Goliath 1972 3 SA 1 (A) is an illustration of where,
inter alia, “the development that took place since the days of the old writers of the Netherlands and England”
(translation), enabled the court, in applying criminal law, to find that, in conflict with earlier perceptions, the
ordinary man who finds himself in mortal danger, considers his own life to be of greater value than the life of
another person (see the discussion of necessity, infra 121). In his judgment in Amod v Multilateral Motor Vehicle
Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA) – the question was whether
a Muslim marriage gave rise to a duty of support – Mahomed CJ described how the boni mores had changed
concerning this matter. The view that the law would only protect a duty of support arising from marriages
sanctioned by a single religion or philosophy to the exclusion of others, was according to him “an untenable basis
for the determination of the boni mores of society” (1328). He continued (ibid): “It is inconsistent with the new
ethos of tolerance, pluralism and religious freedom which had consolidated itself in the community even before the
formal adoption of the interim Constitution . . . This new ethos is substantially different from the ethos which
informed the determination of the boni mores of the community when the cases which decided that ‘potentially
polygamous’ marriages which did not accord with the assumptions of the culturally and politically dominant
establishment of the time did not deserve the protection of the law for the purposes of the dependant’s action.”
According to him, the boni mores have changed and will now recognise the existence of a duty of support flowing
from a Muslim marriage (1329–1330): “This important shift in the identifiable boni mores of the community must
also manifest itself in a corresponding evolution in the relevant parameters of application in this area [of the law].
‘The common law is not to be trapped within the limitations of its past’ [Du Plessis v De Klerk 1996 3 SA 850
(CC) 897]. If it does not do this it would risk losing the virility, relevance and creativity which it needs to retain its
legitimacy and effectiveness in the resolution of conflict between and in the pursuit of justice among the citizens of
a democratic society. For this reason the common law constantly evolves to accommodate changing values and new
needs.” See also Paixão v Road Accident Fund 2012 6 SA 377 (SCA) 381 388–390 in connection with the
extension of the action of dependants to heterosexual life-partnerships, reflecting the changing boni mores; Cape
Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1056; Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C) 968;
Ryland v Edros 1997 2 SA 690 (C) 707; cf Bonthuys 2018 (21) PELJ 1 ff on the development of customary and
common law to extend rights to support to “African women in invalid customary marriages and in intimate
partnerships which do not resemble monogamous Western nuclear households”, and to “all women in unmarried
intimate relationships”.
not the community regards a particular act or form of conduct as delictually wrongful.49
Nevertheless, conduct, which was initially regarded as morally (but not legally) reprehensible,
may, over the course of time, also be censured by the law of delict.50
Because the law of delict is only concerned with the legal permissibility of infringements of
individual interests, the application of the boni mores test in the law of delict is not determined
by the question of whether the particular act should be considered wrongful for the purposes of,
for example, criminal law (where the public interest is paramount).51
________________________
49 In Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389
(SCA) 395–396 (see also Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 230), the SCA
formulated it as follows: “In applying the concept of the legal convictions of the community the Court is not
concerned with what the community regards as socially, morally, ethically or religiously right or wrong, but
whether or not the community regards a particular act or form of conduct as delictually wrong.” Naturally, legal
convictions are influenced by ethical, moral and religious convictions: “Wrongfulness is tested according to
society’s legal, as opposed to its moral, convictions but at the same time morality plays a role in shaping society’s
legal convictions. If it is accepted, as I think it should, that law is but a translation of society’s fundamental values
into policies and prescripts for regulating its members’ conduct, then the Court, when it determines the limits of
such a basic legal concept as wrongfulness, has to have regard to the prevailing values of society” (per Thirion J in
Clarke v Hurst 1992 4 SA 630 (D) 652; see also Minister of Law and Order v Kadir 1995 1 SA 303 (A) 320;
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC)
956–957; Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) 1055; Ries v Boland Bank PKS Ltd
2000 4 SA 955 (C) 968; Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1055–1056; Local
Transitional Council of Delmas v Boshoff 2005 5 SA 514 (SCA) 522; but cf Taitz 1993 SALJ 440); cf Van der Walt
and Midgley Delict 99–100; Strauss Toestemming 422; Neethling and Van Rensburg 1973 THRHR 430–431;
Boberg 1975 SALJ 364; Potgieter 1978 THRHR 330. Fagan Aquilian Liability 154 (cf Undoing Delict 259 277,
2018 SALJ 33 53–54) also ascribes a particular role to a moral duty in determining wrongfulness, stating that, in his
view, wrongfulness ultimately is to be determined by two considerations: “(1) Was there a moral duty not to cause
the harm negligently, so that the conduct was morally wrongful? (2) If there was such a moral duty, do the benefits
of recognising it as a legal duty the breach of which was wrongful for the purpose of Aquilian liability outweigh the
costs of doing so?” He proposes the same approach to determine the wrongfulness of “intentional harm-causing
conduct”; see Aquilian Liability 157 ff and 173 ff (also 2019 Acta Juridica 283 ff) for a discussion of this approach
to the determination of wrongfulness, and Aquilian Liability 206–209 (cf also 216–223) for the view that there is
(even if only weak) support that our courts regard a moral wrong “as a necessary condition for negligent harm-
causing conduct to be judged a legal wrong”.
50 Minister van Polisie v Ewels 1975 3 SA 590 (A) illustrates that conduct which previously gave rise to, at most,
moral indignation, may later also constitute delictual wrongfulness. Rumpff CJ stated as follows with reference to
specific cases of failure to act positively (omission) in order to prevent loss: “It appears that the stage of develop-
ment has been reached in which an omission is regarded as wrongful conduct also when the circumstances of the
case are of such a nature that the omission not only incites moral indignation but also that the legal convictions of
the community demand that the omission ought to be regarded as wrongful and that the damage suffered by the
plaintiff ought to be made good by the person who failed to act positively” (translation) (597). Ethical and moral
convictions must not too readily be regarded as legal duties. In Cape Town Municipality v Bakkerud 2000 3 SA
1049 (SCA) 1055 Marais JA warned that not every “reasonably perceived ethical and moral obligation to act” must
be transformed “into an obligation or duty imposed by law” because “society is simply not prepared to live under
so potentially demanding and onerous a legal regime in the area of omissions in the law of delict”.
51 See supra 7 for the distinction between delict and crime. Although the boni mores test for wrongfulness finds
application in both the law of delict and, eg, criminal law (Snyman Criminal Law 97–99), the application of the test
differs in these two legal fields. It is apparent that the same act may sometimes cause consequences for the
purposes of criminal law without causing delictual consequences, and vice versa. (Blasphemous conduct is, eg,
prohibited by criminal law and certain administrative law measures (R v Webb 1934 AD 493), but has not led to an
action in delict.) In other words, conduct which, according to the legal convictions of the community, is unlawful
for the purposes of one legal field, eg criminal law, and exposes the actor to punishment by the state, may be lawful
for the purposes of another legal field, eg the law of delict, as a result of which the actor is not condemned to pay
damages or solatium, and vice versa (Strauss Toestemming 264 ff; Van der Merwe and Olivier 49–51).
According to another view, it is impossible for a single act to be wrongful in regard to one field of law, while at the
same time being lawful in another legal field (cf Van der Westhuizen Noodtoestand 442 ff; Coetzee 2004 THRHR
661 ff). According to this view, conduct is lawful or unlawful with reference to the law as a whole; a single act may
not simultaneously be lawful and wrongful. However, this view does not reflect reality. It is a fact that the
community’s adjudication of wrongfulness in, eg, delict and criminal law differs. Consequently, Thirion J’s
[continued ]
46 Law of Delict
3.3 An objective criterion

The role of the adjudicator In Schultz v Butt,52 Nicholas AJA accepted the viewpoint of
Van der Merwe and Olivier that the “legal convictions of the community” must be seen as the
legal convictions of the legal policymakers of the community, such as the legislature and
judges.53 In his role as interpreter of the legal convictions of the community, a judge never-
theless does not elevate his personal viewpoint regarding right and wrong to the sole measure of
wrongfulness. A judge who does that, impermissibly makes the law whilst his main task is to
apply the law.54 The idiosyncratic views of an individual judge may furthermore be a conduit for
legal uncertainty, and this should be avoided as far as possible.55 As stated, the boni mores
criterion is an objective criterion. The task of the judge is, therefore, to define and interpret the
________________________
statement in Clarke v Hurst 1992 4 SA 630 (D) 652, that he “can see no reason why the concept of wrongfulness in
criminal law should have a content different from what it has in delict”, should be treated with circumspection.
52 1986 3 SA 667 (A) 679.
53 The quote is from Van der Merwe and Olivier 58 fn 99. The SCA declared in Van Eeden v Minister of Safety and
Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 395–396 (see also Minister of
Safety and Security v Hamilton 2004 2 SA 216 (SCA) 230): “The legal convictions of the community must . . . be
seen as the legal convictions of the legal policy makers of the community, such as Legislature and Judges . . .” (cf
Neethling and Potgieter 2004 THRHR 502). In Government of the Republic of South Africa v Basdeo 1996 1 SA
355 (A) 367 the same court made it clear that “the Court’s perception of the legal convictions of the community” is
relevant in the application of “the general criterion of reasonableness” (per Hefer, JA; emphasis added); cf also SM
Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd 2000 4 SA 1019 (SCA) 1024. See also Eloff JP’s
exposition in Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T) 398–399: “How is the
‘attitudes of the community’ determined? In my view, the remarks of the Chief Justice [Corbett] in [1987 SALJ 52
67 68], albeit made in a slightly different context, set out appropriate guidelines: ‘It is these values and norms that
the Judge must apply in making his decision. And in doing so he must become ‘the living voice of the people’; he
must ‘know us better than we know ourselves’; he must interpret society to itself. In this process the Judge would
no doubt be influenced by concepts of natural law, by international law norms and by the way in which the
particular problem is handled in other comparable systems of jurisprudence. He would draw upon his knowledge
and experience gained as an educated, responsible and enlightened member of society, upon the contact with and
insight into his fellow humans which his professional career has given him; and he would draw upon his continuing
perceptions of the attitudes of the community around him’.” See also Dersley v Minister van Veiligheid en
Sekuriteit 2001 1 SA 1047 (T) 1055 (“a juridical value judgment”); Cape Town Municipality v Bakkerud 2000 3
SA 1049 (SCA) 1057. Brand JA’s reference to the view of “right-minded people, including judges” in Cape
Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 197 should also be seen against this
background (see supra 39 fn 24). Cf Wessels 2020 THRHR 157–158.
54 In S v Matsemela 1988 2 SA 254 (T), Kriegler J criticised the judgment of a magistrate who had relied on his
personal convictions in deciding that certain sexual acts between men are contra bonos mores. The judge stated
(257): “Examined closely, the magistrate elevated his moral norms to principles and public policy and then used
them to create new law. This is not destined for him or for me. Our function is to speak the law, not to create it”
(translation). (Cf, however, Zimnat Insurance Co Ltd v Chawanda 1991 2 SA 825 (ZS) 832–833.) In Deneys Reitz
v SA Commercial, Catering and Allied Workers Union 1991 2 SA 685 (W) 693, Flemming DJP described the role
of the judiciary as follows: “When apparently permissible conduct impacts upon others, the assessment of
unlawfulness is guided by the sense of fairness of the judiciary (in the wide sense) as the criterion-formulating arm
of society. The judiciary responds to the general sense of justice of the community, frequently displayed by
expressions of public opinion, to which vent is given in accordance with sound public policy and good morals in
the relevant sphere. I emphasise the words ‘sound’ and ‘good’.” On the so-called “law-making” function of the
judge, see also Van Aswegen 1993 THRHR 190; Corbett 1987 SALJ 59 ff; and, for criticism, Taitz 1993 SALJ 440
ff.
55 In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 158, Brand JA stated this
principle in illuminating words: “Liability cannot depend on the idiosyncratic views of an individual judge. That
would cloud the outcome of every case in uncertainty . . . A legal system in which the outcome of litigation cannot
be predicted with some measure of certainty would fail in its purpose . . . We therefore strive for certainty. The
question is, how can that be achieved in an area directly by consideration of public or legal policy [boni mores]? I
believe we must accept at the outset that absolute certainty is unattainable.” Nonetheless, “some degree of certainty
is established by the identification of categories where liability will be imposed”, such as in respect of the liability
of a collecting banker or liability for negligent misrpresentation (160). If a case falls outside a recognised category,
the first step to be taken is to determine what policy considerations are relevant in respect of the particular instance,
and here previous judgments (including foreign ones) and the views of academics may be of value (161).
legal convictions of the community in a particular instance, having regard to legal policy, legal
rules and court decisions in which the convictions of the community have found expression in
the past, supplemented by the evidence before him and all the information he has gathered, and
subsequently to apply this interpretation to the problem concerned, taking into consideration the
particular circumstances of the case.56
Subjective factors normally irrelevant 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, normally57 do not play a role in determining wrongfulness.58 The determination of
wrongfulness entails an objective, ex post facto weighing-up of interests in order to determine
whether the defendant acted reasonably or not in the particular circumstances, and subjective
considerations are normally irrelevant in this weighing-up process. A defendant who, for
example, violently resists lawful arrest because he incorrectly believes the arrest to be unlawful,
acts wrongfully despite his honest, subjective conviction that the arrest is invalid. Objectively
considered, the defendant acted unreasonably in resisting lawful arrest. His honest mistake does
not make his conduct lawful and, as indicated later,59 may at most influence the question of
whether he was at fault or not.
The relevance of subjective factors However, in certain cases, subjective factors do play a part
in the determination of wrongfulness.60 For example, improper motive (“malice”) may play an
________________________
56 In McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 902, Booysen J indicated that the evidence of expert witnesses
must be considered during the determination of wrongfulness (and negligence) of the defendant’s conduct, but
emphasised that it is the function of the court to decide in light thereof whether wrongfulness (and negligence)
were present. A specific manner of conduct in practice (in casu “a recognised practice or convention in the forestry
industry”) could furthermore be a factor relevant to the determination of wrongfulness or negligence. Rumpff JA’s
approach in S v Goliath 1972 3 SA 1 (A) is an example of the interpretation of the convictions of the community in
a particular case on the basis of present-day ethical, moral, philosophical and religious opinions, legal development
and the viewpoints in force in other countries. See Hefer JA’s statement in Government of the Republic of South
Africa v Basdeo 1996 1 SA 355 (A) 367: “This question [lawfulness] falls to be decided by applying the general
criterion of reasonableness . . . In doing so we must bear in mind that the value judgment which the application of
the general criterion of reasonableness requires is based on considerations of morality and policy and the Court’s
perception of the legal convictions of the community, and entails a consideration of all the circumstances of the
case” (cf Neethling 1996 THRHR 682). Cf also Hawker v Life Offices Association of South Africa 1987 3 SA 777
(C); Potgieter 1978 THRHR 330. Factors which may influence the weighing-up of interests in applying the boni
mores criterion were noted earlier (supra 41). See Knobel in Potgieter, Knobel and Jansen (eds) 229 236 ff on “the
old insight that wrongfulness refers to a (comparatively) objective way of determining the unreasonableness of the
wrongdoer’s conduct, while fault refers to a (comparatively) subjective way of determining the unreasonableness of the
wrongdoer’s conduct”.
57 There are exceptions to this principle: see infra 47–49; cf Bress Designs (Pty) Ltd v GY Lounge Suite Manufac-
turers (Pty) Ltd 1991 2 SA 455 (W) 475.
58 Van der Walt and Midgley Delict 109 hold the view that such factors are facts that are considered with other facts
in determining the policy outcome with regard to wrongfulness. Such subjective factors are, however, of greater
interest in regard to the question of fault, namely when it has to be determined whether the defendant acted
intentionally or negligently. There are different viewpoints on whether the wrongfulness is logically anterior to the
fault inquiry, or vice versa (see in this regard Van der Walt and Midgley Delict 97 and infra 155 193–198 where
fault is discussed).
59 Infra 162.
60 The fact that certain subjective factors are taken into consideration in determining wrongfulness does not make the
boni mores test less objective (Boberg Delict 796). Brand JA 2013 THRHR 67 expresses his disquiet because, in his
opinion, the view that wrongfulness is based on an ex post facto objective reasonableness criterion (see supra 35)
“renders the defendant’s subjective mental disposition entirely irrelevant”. In Roux v Hattingh 2012 6 SA 428
(SCA) 440í441 he similarly asserts that academic authors such as Van der Walt and Midgley Delict (3rd ed 71)
and Neethling and Potgieter Delict (7th ed 43í44) are of the opinion “that the perpetrator’s subjective mental
disposition is of no relevance at all” in establishing wrongfulness. However, Brand JA’s submissions are unfounded
since on the very pages referred to by him, the authors make it clear that in certain cases subjective factors may
indeed play a role in determining wrongfulness (see Neethling and Potgieter 2014 THRHR 122í123, 2014 SALJ
252í253; cf also Van der Walt and Midgley Delict 109; Loubser and Midgley Delict 199–200). See, however,
[continued ]
48 Law of Delict
important role in this regard.61 Two examples will suffice.62 In the area of neighbour law 63 the
improper motive of a defendant who, for example, plants deciduous trees along the boundary of
his property for the sole purpose of injuring his neighbour by causing leaves to fall onto his
nearby threshing floor, will render his apparently reasonable conduct wrongful.64 Motive also
plays an important part in determining the reasonableness and, consequently, the lawfulness of
conduct between competitors.65
Furthermore, the fact that the defendant actually knew or subjectively foresaw that the plaintiff
would suffer damage as a result of his conduct is taken into consideration in determining
________________________
Knobel in Potgieter, Knobel and Jansen (eds) 229 236 ff who makes a strong argument that subjective factors should
not play any role in determining wrongfulness, but be confined to the fault enquiry.
61 Improper motive or malice must not be confused with intent. Intent as a form of fault is a technical-legal concept
with particular requirements: directing the will towards the achievement of a particular result with consciousness of
wrongfulness (the knowledge that it is wrongful) (infra 159). However, improper motive is a general concept
suggesting merely a reprehensible purpose or objective on the part of the defendant. Moreover, intent will only
logically exist when wrongfulness is already present. Therefore, it is incorrect to suggest, as Boberg Delict 33 does
(see also Fagan 2019 Acta Juridica 283 ff), that a defendant’s intent sometimes determines the wrongfulness of his
conduct (see further, eg, Loureiro v Imvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) para 53 fn 48;
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214 (SCA) 224 (with
reference to an earlier edition of Loubser and Midgley Delict 197–198); Country Cloud Trading CC v MEC,
Department of Infrastructure Development, Gauteng 2015 1 SA 1 (CC) paras 39–40; Minister of Finance v Gore
2007 1 SA 111 (SCA) 139–140; Media 24 Ltd v SA Taxi Securitisation 2011 5 SA 329 (SCA) 335; Mediterranean
Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 494; mCubed International (Pty) Ltd v
Singer 2009 4 SA 471 (SCA) 482–483; South African Post Office v De Lacy 2009 5 SA 255 (SCA) 257 260; Black
v Joffe 2007 3 SA 171 (C) 181–182 – for criticism see Scott 2007 TSAR 808; Neethling 2008 THRHR 318;
Burchell in Potgieter, Knobel and Jansen (eds) 116–118; Knobel 2010 THRHR 115–123; Botha 2013 SALJ 177;
Knobel in Potgieter, Knobel and Jansen (eds) 229 236 ff). Knobel 242 fn 72 also rejects the idea that the presence of
intention can co-determine wrongfulness and maintains that the “control function” of the wrongfulness element (cf
Country Cloud (CC) 10) would be performed better “if wrongfulness had to be established objectively and completely
independently of the wrongdoer’s own subjective views in respect of the reasonableness of his or her conduct” (cf
Nugent 2006 SALJ 560). Knobel “would have preferred the courts to state that certain types of conduct would be
actionable only when committed with intention rather than stating that certain types of conduct would be wrongful
only when committed with intention”). After all, there can be no question of consciousness of wrongfulness (an
element of intent) before it is clear that wrongfulness is present: surely wrongfulness must exist before one can be
aware of it (see also Neethling and Potgieter 2014 THRHR 122í123). Improper motive and intent have different
meanings. Intent may be present even in the absence of improper motive. Someone who practises euthanasia on
another in order to relieve the latter of great suffering, may act with only the best of motives. Nevertheless, he acts
intentionally if he directs his will towards causing death in the knowledge that he is acting in conflict with the law
(Van der Merwe and Olivier 68 fn 39). See generally on the distinction between intent and motive Neethling and
Potgieter 1991 SALJ 36–38; Neethling, Potgieter and Roos Neethling on Personality Rights 86–87; Neethling Van
Heerden-Neethling Unlawful Competition 140; Neethling and Potgieter 2007 TSAR 621.
62 Other similar reprehensible states of mind such as bad faith or mala fides may also be relevant (see, eg, Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 473, where
Harms JA declared that “[d]ecisions made in bad faith are . . . unlawful”).
63 In the law of delict, neighbour law is traditionally discussed under the so-called doctrine of “abuse of right” (infra 147).
64 Cf Kirsch v Pincus 1927 TPD 199; infra fn 809. There are other cases where motive may influence the decision
that conduct was wrongful. In defamation, eg, the defendant’s improper motive deprives him of the defences of
privilege and fair comment (infra 407–409 411); and in the area of rugby matches, the malicious motive of the
defendant rugby player will be decisively indicative of wrongfulness where his conduct constitutes a flagrant
contravention of the rules of rugby and is aimed at causing serious injury (see Roux v Hattingh 2012 6 SA 428
(SCA) 440–441; Neethling and Potgieter 2014 SALJ 249; Brand 2014 Stell LR 469; Labubschagne 2018 (21) PELJ
16 (motive to injure in cricket); infra fn 663). Cf Van der Walt and Midgley Delict 109; Boberg Delict 32.
65 See, eg, Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 2 SA 455 (W) 475. Note also
that while the defendant’s improper motive may be a strong indication that he infringed his competitor’s goodwill
in an unreasonable manner, vice versa, an altruistic or honest motive may tip the scales the other way (see
Aetiology Today CC t/a Somerset Schools v Van Aswegen 1992 1 SA 807 (W) 820). Neethling Van Heerden-
Neethling Unlawful Competition 134 ff; infra 377).
wrongfulness in cases of, for example, the causing of so-called pure economic loss66 and
omissions.67 68 Also, the fact that a person directed his will at causing a harmful result may be
relevant in finding that he had acted wrongfully.69
3.4 Practical application of the boni mores criterion

Although the legal convictions or boni mores of the community constitute the basic norm for
wrongfulness in our law, it is seldom necessary to make direct use of this general and
comparatively vague test to determine wrongfulness.
Infringement of interests as indication of wrongfulness In general, if a factual infringement
has taken place, this can already be an indication of, or pointer to, the wrongfulness (legal
inadmissibility) of the conduct: in other words, it can constitute prima facie wrongfulness, or
create a presumption of wrongfulness.70 This pertains to positive conduct (commissiones)
impacting upon the physical person (bodily integrity),71 property72 and freedom of the body,73
________________________
66 That is financial loss which does not arise from damage to the plaintiff’s property or an injury to his personality (eg
where X suffers loss because Y entices Z, an employee of X, to leave the employ of X); infra 349.
67 Infra fn 182; cf Knobel 1987 THRHR 484; Neethling and Potgieter 1992 TSAR 322–323. In MTO Forestry (Pty)
Ltd v Swart NO 2017 5 SA 76 (SCA) 85 the court held that reasonable foreseeablity plays no role in determining
wrongfulness. As said (supra fn 5), this view can be supported because for wrongfulness the defendant’s conduct is
determined diagnostically (ex post facto, by looking back) by taking account of all the relevant facts and
circumstances that are actually present and all the consequences that actually ensued (see supra 35). Naturally, the
prognostic (ex ante, by looking forward) reasonable foreseeability of harm plays no part here but is a core require-
ment of negligence (see infra 195). However, this does not mean that subjective foreseeability (the defendant’s
own, subjective, foresight or knowledge) should not play a role with regard to wrongfulness. Clearly, adjudged ex
post facto, the defendant’s knowledge is also a relevant fact which was actually present and should be taken into
account to determine wrongfulness. This approach is already established practice in case law (see above and infra
352 for further references). Unfortunately Leach JA opined that the fact that the respondent in MTO had been aware
or had knowledge of the risk of damage (subjective foreseeability) was a factor relevant to the determination of
negligence, rather than wrongfulness (see Neethling and Potgieter 2018 JJS 155).
68 In the eyes of the community the subjective knowledge of the defendant may be of importance in the (objective)
investigation into the reasonableness of his conduct. After all, the community is less tolerant of a person, who
causes loss whilst he has particular knowledge of the relevant circumstances. The fact that a person, who, eg,
operates a bulldozer, knows where electrical cables are buried and nevertheless cuts the cables with consequential
loss of production to the plaintiff’s factory, will be an important factor in determining whether he acted reasonably
or not. (See Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 386; Dersley v
Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) 1059; Standard Bank of South Africa Ltd v OK Bazaars
(1929) Ltd 2000 4 SA 382 (W) 397–398.) In a similar vein, the police’s knowledge that a certain prisoner was
dangerous and would probably commit sexual crimes played a part in the decision of the court in Van Eeden v
Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 400, that
the police had had a legal duty to prevent the prisoner’s escape (and subsequent damages – in this case the prisoner
sexually assaulted, raped and robbed a young woman after his escape); see further infra 73 352 363 in respect of
liability for omission, pure economic loss and negligent misrepresentation.
69 The fact that it is juridically impossible to employ consciousness of wrongfulness to determine wrongfulness (see
fn 61 supra) does not mean that direction of the will as the other element of intention (or “an attenuated form of
intention”: cf Van der Walt and Midgley Delict 228 230) cannot play this part (see also Neethling 2015 TSAR 193;
Neethling and Potgieter 2014 THRHR 122í123).
70 See Van der Walt and Midgley Delict 163–164; Brand 2007 SALJ 78–79; Fagan Aquilian Liability 174 ff; cf
Snyman Criminal Law 100–101.
71 Therefore, if X slaps Y’s face, (infringing his physical integrity), X’s conduct appears to be wrongful at first sight.
72 In Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 143, Brand JA
declared: “Negligent conduct manifesting itself in the form of a positive act causing physical damage to the
property or person of another is prima facie wrongful. In those cases wrongfulness is therefore seldom conten-
tious.” See further, eg, Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) para 22; Van Vuuren v Ethekwini
Municipality 2018 1 SA 189 (SCA) para 16; Pro Tempo Akademie CC v Van der Merwe 2018 1 SA 181 (SCA)
para 17; Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214 (SCA)
221; Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 1 SA 1 (CC)
para 22; Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 156; McIntosh v
Premier, KwaZulu-Natal 2008 6 SA 1 (SCA) 7; Stewart v Botha 2008 6 SA 310 (SCA) 314; Local Transitional
[continued ]
50 Law of Delict
but may also be relevant in respect of, for example, direct infringements of the goodwill of an
undertaking.74 In other words, from the mere fact that a detrimental consequence has been
caused, ie, without using the boni mores test, it may provisionally be deduced that the defendant
acted contra bonos mores and therefore wrongfully. It may be assumed at the outset that,
according to the legal convictions of the community, the actual infringement of interests is
prima facie wrongful in the mentioned instances.
As will become apparent, not all factual infringements of interests are prima facie wrongful.
Generally, infringements by way of omission,75 pure economic loss, non-physical personality
infringements (such as defamation,76 infringement of dignity and infringement of privacy) and
indirect infringements of the goodwill of an undertaking are examples of factual infringements
that do not constitute prima facie wrongfulness. In these instances, prima facie wrongfulness
________________________
Council of Delmas v Boshoff 2005 5 SA 514 (SCA) 522; Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA)
498; Harrington NO v Transnet (Ltd) 2007 2 SA 228 (C) 240; Van der Eecken v Salvation Army Property Co 2008
4 SA 28 (T) 37; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA
461 (SCA) 468; Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 494;
Malahe v Minister of Safety and Security 1999 1 SA 528 (SCA) 533–534 540; Minister of Safety and Security v
Mohofe 2007 4 SA 215 (SCA) 218. See further Neethling 2006 SALJ 210; Boberg Delict 32; Fagan Aquilian
Liability 174 ff. It is important to note that the theft of property also qualifies as property damage, which is prima
facie wrongful, and should not be considered to be pure economic loss, which is prima facie lawful (Imvula Quality
Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) 425 (cf Scott De Jure 374 ff); Freddy Hirsch Group (Pty)
Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 294). In this respect, the following decisions are therefore
incorrect: Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security 2010 4 SA
455 (SCA) 458, McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel
2012 6 SA 551 (GNP) 561 and Faynaz Import and Export Enterprises CC v Commisioner of Customs and Excise
[2009] 2 All SA 358 (T) para 81 (see also Neethling 2011 THRHR 170; Neethling and Potgieter 2011 THRHR 489–
490). As will be explained (and as correctly stated by Cloete JA in Imvula 425, but unfortunately not followed by
the CC in Loureiro v iMvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) paras 53–57), in these cases the
onus should therefore have been on the defendant to prove that the prima facie wrongful conduct was indeed
justified.
73 In Minister of Justice v Hofmeyr 1993 3 SA 131 (A) 153, Corbett CJ declared: “The plain and fundamental rule is
that every individual’s person is inviolable. In actions for damages for wrongful arrest or imprisonment our Courts
have adopted the rule that such infractions are prima facie illegal.” See further Zealand v Minister of Justice and
Constitutional Development 2008 4 SA 458 (CC) 468–469; De Klerk v Minister of Police 2019 12 BCLR 1425
(CC) paras 14 62; Olivier v Minister of Safety and Security 2009 3 SA 434 (W) 443–444; Terblanche v Minister of
Safety and Security [2009] 2 All SA 211 (C) 212; Le Roux v Minister of Safety and Security 2009 4 SA 491 (N)
496; Ingram v Minister of Justice 1962 3 SA 225 (W) 227; Cele v Minister of Safety and Security [2007] 3 All SA
365 (D) 367; Neethling, Potgieter and Roos Neethling on Personality Rights 177–178; Van der Walt and Midgley
Delict 164–166; Neethling 2006 SALJ 210; infra 396.
74 Neethling Van-Heerden Neethling Unlawful Competition 144 145 305; infra 381–382.
75 “By contrast [to conduct in the form of a positive act causing physical harm to the property or person of another]
negligent conduct in the form of an omission is not regarded as prima facie wrongful. Its wrongfulness depends on
the existence of a legal duty” (Brand JA in Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) para 22; cf Van
Vuuren v Ethekwini Municipality 2018 1 SA 189 (SCA) para 16). See also Van der Walt and Midgley Delict 122 ff;
Loubser and Midgley Delict 263 ff; Brand 2014 Stell LR 452; Scott 2018 TSAR 906–907 911; Fagan Aquilian
Liability 174 179 ff, Undoing Delict 247 249, 2018 SALJ 19 22. But see infra 64 on instances of omission that may
indeed give rise to prima facie wrongfulness.
76 In Media 24 Ltd v SA Taxi Securitisation 2011 5 SA 329 (SCA) 334–335 the court incorrectly stated that the loss of
profit of a corporation as a result of defamation amounted to pure economic loss. Surely, there can in principle be
no difference between loss that results from damage to a plaintiff's person (physical integrity – see Telematrix (Pty)
Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 465), which is not
regarded as pure economic loss, and loss that flows from infringement of his reputation. Viewed in this light, it was
unnecessary for the court to employ the legal duty approach to determine wrongfulness as applied in instances of
pure economic loss. Instead, the court should have utilised the infringement either of the corporation’s personality
right to reputation, or of its right to goodwill for determining wrongfulness (see infra 58–59 374–376 399 ff; see
Neethling and Potgieter 2012 THRHR 306–307).
must be determined with reference to the boni mores wrongfulness criterion (sometimes
embodied in the reasonable person).77
An infringement that is prima facie wrongful is not necessarily conclusively wrongful. A further
investigation is necessary. It may be that, on closer examination, the apparent wrongfulness is
actually not present, because the causing of damage is legally excused or justified in the particu-
lar circumstances. After all, the legal convictions of the community do not condemn all actual
infringements of another’s interests. Certain legal norms permit a person to cause damage: in
other words, damage may be caused in a lawful manner. For example, a person is permitted by
law to infringe individual interests, inter alia, where he injures an attacker in self-defence, where
he damages an innocent person’s interests out of necessity in order to protect more compelling
interests, or where he causes harm to a person who consented thereto. Such examples of lawful
infringement of interests are known as grounds of justification and are discussed in detail
below.78
Consequently, the factual infringement of an interest is provisionally characterised as wrongful
until closer investigation reveals that a ground of justification exists, in which case the conduct
causing harm will be deemed to be lawful.
Existing legal norms and doctrines In addition, the general boni mores test is seldom applied
directly to establish wrongfulness because more precise methods have been developed to deter-
mine the legal convictions of the community. In other words, the determination of wrongfulness
– the investigation into the legal convictions of the community – finds practical application or
expression in specific legal norms and doctrines, with the result that it is necessary to investigate
the legal convictions of the community directly only in exceptional cases.79 Two examples of the
practical application of the boni mores yardstick that have developed into the generally accepted
basic tests for wrongfulness, are that wrongfulness lies in the infringement of a subjective right
or the non-compliance with a legal duty to act.80
________________________
77 See infra 60 ff (omission); 351 ff (pure economic loss); 374 (unlawful competition); 402 (defamation); 421
(infringement of dignity); 423 (infringement of privacy).
78 See infra 106 ff. Eg in Malahe v Minister of Safety and Security 1999 1 SA 528 (SCA) 540, Smalberger JA
declared: “The . . . appellants sustained physical injury as a consequence of the conduct of the . . . respondents. This
gives rise to an inference of wrongfulness . . . as there exists no legal justification or excuse for the infliction of
such injury”; see further Minister of Safety and Security v Mohofe 2007 4 SA 215 (SCA) 218; Brand 2007 SALJ
78–79; Neethling and Potgieter 2007 THRHR 122; Van der Walt and Midgley Delict 190 ff; Van der Merwe and
Olivier 70 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 82; Neethling Van Heerden-Neethling
Unlawful Competition 305 ff. If a ground of justification is in fact present, it is accepted that the causing of loss
which at first glance appeared wrongful, was in fact lawful from the beginning. In such a case, wrongfulness – one
of the requirements for delictual liability – is lacking, and the defendant will not be held liable for the loss he has
caused. As will be shown in more detail (infra 106), grounds of justification are nothing but the particularization of
the legal convictions of the community with reference to typical circumstances which occur regularly in practice.
Grounds of justification therefore still deal with the basic question of whether or not the defendant’s conduct is, in
the light of the prevailing circumstances, in accordance with what the community regards as reasonable, and there-
fore lawful. Because specific principles and requirements have developed over the years for each ground of
justification, these grounds are practical aids with which the presence (or not) of wrongfulness may be determined
with a greater degree of precision than might have been done by applying the general boni mores test on its own.
79 Cf McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 905; Scott 2018 TSAR 908 who supports this approach
unreservedly.
80 See respectively infra 55 ff and 60 ff; Loubser and Midgley Delict 184–186. In Mukheiber v Raath 1999 3 SA 1065
(SCA) 1075, Olivier JA declared (eg): “[U]nlawfulness, in the relevant sense, is to be found in the violation of the
rights of the person suffering damage as a consequence of the act complained of and . . . whether or not there was a
violation of a right of the claimant (or the converse, a dereliction of a duty by the defendant) depends on a number
of considerations, including in the final instance, public policy . .”. In Black v Joffe 2007 3 SA 171 (C) 184,
Dlodlo J phrased this as follows: “Simply put, the question is whether the appellant’s conduct interfered with the
respondent’s subjective right in a legally reprehensible way or constituted the breach of a duty owed by the
appellant to the respondent (recognised in law for purposes of liability)”. See further Masstores (Pty) Ltd v Pick n
Pay Retailers (Pty) Ltd 2016 2 SA 586 (SCA) para 21; Local Transitional Council of Delmas v Boshoff 2005 5 SA
514 (SCA) 522; Brooks v Minister of Safety and Security 2008 2 SA 397 (C) 408; Madyibi v Minister of Safety and
[continued ]
52 Law of Delict
These two approaches are merely practical applications of the general criterion of reason-
ableness, ie, they are juridical methods or procedures whereby one determines whether an
infringement of interests is in conflict with the legal convictions of the community and therefore
wrongful. In other words, deciding whether a subjective right has been infringed or a legal duty
has not been complied with, provides a more accurate solution to the basic question of wrong-
fulness, ie, whether the defendant acted in conflict with the legal convictions of the community,
than the often vague general investigation into the legal convictions of the community. In short:
conduct is in conflict with the legal convictions of the community – wrongful – if it infringes a
subjective right or violates a legal duty.81
The boni mores as supplementary criterion From the above it is clear that the general boni
mores or reasonableness criterion must not be regarded as the sole criterion to determine
wrongfulness. Although this criterion provides the basic test for wrongfulness and as such is
applied in each and every case, in itself it functions at most at a supplementary level, because the
convictions of the community concerning what conduct should be regarded as reasonable or
unreasonable for the purposes of the law of delict have, over time, found expression in many
common law and statutory norms, grounds of justification and certain theoretical legal methods
whereby wrongfulness may be established.82 Consequently, it is seldom necessary to apply the
general boni mores test directly. 83
There are two main ways in which the general boni mores or reasonableness criterion is applied
as a supplementary test for wrongfulness – firstly, in novel cases where there is no clear legal
norm or ground of justification involved; and, secondly, for the purposes of refinement,
especially in assessing wrongfulness in borderline cases:
(a) Firstly, the boni mores test is applied as a test for wrongfulness in cases where either the
wrongfulness of the defendant’s conduct does not appear from the violation of an existing
delictual norm, or the lawfulness thereof does not appear from the presence of a recognised
ground of justification.84
________________________
Security 2006-12-08 case no 1034/2004 (Tk) para 7; cf McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 905.
Scott 2018 TSAR 916 says that further support for the view that wrongfulness should still be seen as fundamentally
the infringement of a right or the breach of a legal duty, even in the context of the “new” approach to wrongfulness
(see infra 93), can be found in Froneman J’s judgment in H v Fetal Assessment Centre 2015 2 SA 193 (CC) para 69.
81 In principle both approaches should lead to the same result. Because the law of delict is primarily directed at the
restoration of violated legally protected interests (supra 3), it is preferable, where possible, to determine wrong-
fulness by deciding whether a subjective right of the plaintiff has been infringed. Moreover, such an approach is
also better suited to the stated premise, that wrongfulness must always be determined with reference to a harmful
consequence (supra 36). The infringed interest of the plaintiff (consequence), rather than the conduct of the
defendant (act), then serves as primary focus point of the investigation into wrongfulness (cf Coronation Brick
(Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 379–380). As will be explained in more detail
(infra 60), there are certain cases (such as liability for omissions, misrepresentation and the causing of pure
economic loss) where it is more efficacious to determine wrongfulness by means of the legal duty approach, in
other words with the conduct of the defendant as starting point.
82 Cf McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 905. Van der Walt and Midgley Delict 101 state: “The reason-
ableness standard is applied in each and every case. It is particularly useful to provide guidance in borderline and
novel situations. However, courts do not readily extend the ambit of delictual liability to new situations and will do
so only if ‘there are positive policy considerations which favour such an extension’. Proof of the existence of a
recognised ground of justification – such as self-defence, necessity, volenti non fit iniuria or statutory authority –
conclusively demonstrates the reasonableness, and therefore the lawfulness, of the defendant’s conduct.” Boberg
Delict 207 declares: “[T]he positive law has crystallized the underlying criterion of reasonableness into definite
rules, so that direct recourse to it is necessary and permissible only in unusual or borderline situations.” Cf Van
Wyk 1992 THRHR 119 on the role of the boni mores in determining wrongfulness in novel situations involving
AIDS.
83 In Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 383, Mostert J expressed this in
the following terms: “Where specific forms of delict have crystallised in case law, a practical need to apply these
general principles in determining wrongfulness or liability no longer exists” (translation).
84 In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 161, Brand JA explained
this in respect of the determination of a legal duty pertaining to pure economic loss: “In a case like the present
[continued ]
For example, in order to establish whether a champion swimmer who failed to rescue a helpless
child from drowning, acted wrongfully, one must establish, in the absence of clear legal norms
founding liability for this particular type of omission,85 whether a legal duty to rescue rested
upon the swimmer; in other words, whether in the light of all relevant circumstances the swim-
mer’s omission constitutes conduct which the community regards as wrongful for the purposes
of the law of delict. Rumpff CJ stated this idea very clearly in Minister van Polisie v Ewels:86
The stage of development appears to have been reached where an omission is seen as wrongful conduct
when the circumstances of the case are such that the omission does not only elicit moral indignation, but
the legal convictions of the community also require the omission to be regarded as wrongful, and the
resulting harm to be compensated by the person who omitted to act in a positive manner.
The boni mores criterion (as represented by the convictions or feelings of the reasonable
person87) as a supplementary test for wrongfulness likewise finds application where the wrong-
fulness of certain personality infringements has to be determined (for example, whether certain
words were defamatory88 or whether certain conduct infringed the plaintiff’s right to dignity).89
Thus a defendant may show, for example, that his infringement of a sensitive plaintiff’s dignity
________________________
where the claim for pure economic loss falls outside the ambit of any recognised category of liability, the first step
is therefore to identify the considerations of policy that are of relevance. As part of the identification process
assistance can of course be gained from previous decisions, both at home and abroad, as well as from the helpful
analysis by academic authors . . .” Mostert J expressed it in the following words in Universiteit van Pretoria v
Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 383: “If case law is silent on the liability or wrongfulness of
specific conduct, the general criterion is applied, and there is room in practice for the application of general criteria,
including the doctrine of subjective rights” (translation). Cf McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 905;
Corbett 1987 SALJ 52 59; see further infra 55 in respect of the doctrine of subjective rights.
85 In a discussion of wrongfulness in instances of negligent misrepresentation (see infra 359) Corbett CJ declares in
1987 SALJ 59: “[A]s in the case of liability for an omission, the general test for determining wrongfulness or
unlawfulness poses the question of whether in all the circumstances of the case there was a legal duty to act reason-
ably. The application of this test in each individual case, where there is no clear precedent, entails the making of a
further policy decision, or value judgment. Here the law must keep in step with the attitudes of society and consider
whether on the particular facts society would require the imposition of liability.” See infra 64 on liability for an
omission in general and infra 89 on the possible wrongful conduct of the champion swimmer in particular.
86 1975 3 SA 590 (A) 597 (translation). However, the statement of Conradie J in Kadir v Minister of Law and Order
1992 3 SA 737 (C) 742 is also apposite: “[B]ut one should remember that we are 10 years wiser now and that
Courts nowadays are a great deal more comfortable with the notion that a decision on the wrongfulness of the act or
omission in a novel duty situation, whether in the field of physical damage or economic loss, is custom-made for
that particular situation. With the aid of the test in Ewels [1975 3 SA 590 (A)] we can now pinpoint very particular
features of a particular situation which can be seen to be wrongful in one context and in practically no other.”
87 The content of the legal convictions of the community in these instances is expressed as the convictions of the
reasonable person; ie, whether the defendant acted in violation of the legal convictions of the community in the
particular circumstances, is determined by asking whether the reasonable person would have regarded the relevant
infringement of interests as legally reprehensible in the circumstances. The reasonable person therefore embodies
or represents the legal convictions of the community. Eg: to determine whether words were prima facie defamatory
according to the legal convictions of the community, one asks whether, in the estimation of the reasonable person
of normal intelligence and development, the particular words have the tendency to injure the plaintiff’s good name
and reputation in the community (SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) 451; Neethling,
Potgieter and Roos Neethling on Personality Rights 204; infra 402). Here, two points require careful consideration.
Firstly, the application of the convictions of the reasonable person in the boni mores test does not detract from the
objective nature of the test for wrongfulness. As Van der Westhuizen 1976 De Jure 375 puts it, here the “normal
person” can be regarded as the embodiment of the feelings of the community in the application of an objective test.
Secondly, the use of the reasonable person as a representative of the legal convictions of the community in the test
for wrongfulness must not be confused with the reasonable person test for negligence (see in regard to the latter,
infra 164). The distinction between wrongfulness and negligence need not be violated by expressing the convic-
tions of the community with reference to the opinions of the reasonable person (see in respect of the distinction
between wrongfulness and negligence, infra 193; cf Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA)
1054–1055).
88 Infra 402; Neethling, Potgieter and Roos Neethling on Personality Rights 205; Van der Merwe and Olivier 392 ff;
Van der Walt 1978 THRHR 80 and authority cited there.
89 Infra 420–421; Neethling, Potgieter and Roos Neethling on Personality Rights 278 ff.
54 Law of Delict
by using an offensive word in his presence (irrespective of the moral reprehensibility of the
conduct) was not wrongful because, judged objectively according to the boni mores (reasonable
person) criterion, his conduct in the particular circumstances could not be seen to be
unreasonable for the purposes of delictual liability. The defendant clearly infringes the plaintiff’s
dignity (in accordance with the first part of the test for wrongfulness set out earlier), but his
conduct does not amount to the violation of a norm, because, in accordance with the
community’s convictions, the norms of the law of delict do not regard the use of that particular
word as unreasonable.90
A further example of the boni mores as independent wrongfulness test is Telematrix (Pty) Ltd t/a
Matrix Vehicle Tracking v Advertising Standards Authority SA.91 In this case, the plaintiff
claimed damages from the defendant because one of the defendant’s organs had wrongly pro-
hibited the publication of two of the plaintiff’s advertisements. On exception, the question of
whether such a negligent decision, leading to pure economic loss, could be wrongful in a
delictual sense was raised. Harms JA expressed the opinion that wrongfulness was not to be
determined according to the legal-duty approach in that case. According to him, there was no
doubt that the defendant had had a duty towards the plaintiff to act without negligence and in a
manner that was fair, justifiable and reasonable when deciding whether publication of the two
advertisements had to be prohibited or not. This did not necessarily mean that the defendant had
acted wrongfully. According to Harms JA,92 “[p]ublic or legal policy considerations require that
there should be no liability, ie, that the potential defendant should be afforded immunity against
a damages claim, even from third parties affected by the judgment.” In light of this conclusion,
Harms JA found that the defendant had not acted wrongfully by (incorrectly) prohibiting
publication of the advertisements, and the claim was dismissed. A wrong decision that was
negligently made during a judicial process aimed at serving the public interest could, according
to Harms JA, not be viewed as wrongful.
Although the result of this judgment deserves support, the absence of wrongfulness may be
explained in two ways. On the one hand, this can be done (as in the judgment of Harms JA) by
circumventing the legal-duty approach and relying on the boni mores as independent
wrongfulness criterion: although the defendant’s conduct certainly elicits moral indignation, to
paraphrase the well-known dictum of Rumpff CJ in Minister van Polisie v Ewels,93 the legal
convictions of the community do not require the conduct to be regarded as wrongful and the
harm to be compensated, in view of clear considerations of public policy militating against this.
On the other hand, the absence of wrongfulness can be explained within the context of the legal-
duty approach: the apparent breach of a legal duty can be seen as reasonable and thus lawful,
precisely because the legal convictions of the community regard the conduct as lawful in view of
public policy considerations. By implication, this conclusion may even be reached from
Telematrix,94 where the court declared that “there is obviously a duty – even a legal duty – on a
judicial officer to adjudicate cases correctly and not to err negligently”; this does not, however,
mean that “a judicial officer who fails in the duty, because of negligence, acted wrongfully”
because “[p]ublic or legal policy considerations require that there should be no liability”.
Viewed in this way, prima facie breach of a legal duty is really lawful from the outset due to
considerations of public policy.
(b) Secondly, recourse to the general reasonableness test becomes imperative for the purposes
of refinement, especially in assessing wrongfulness in borderline cases, for example in
________________________
90 Ibid.
91 2006 1 SA 461 (SCA); see Neethling and Potgieter 2006 TSAR 610 616.
92 469.
93 1975 3 SA 590 (A) 597 (cited supra 53).
94 2006 1 SA 461 (SCA) 469.
determining whether a defendant transgressed the limits of self-defence by his conduct, whether
consent to a particular violation of legally recognised interests (such as consent to serious bodily
injury) should be tolerated by the law or not, or whether or not particular conduct complies with
the requirements of necessity.95
The facts in S v Goliath96 aptly illustrate the last-mentioned example. X, under compulsion from
Y and fearing for his own life, helped Y to kill Z. The court had to decide whether X’s defence
of necessity could be upheld. (In cases of necessity, the defendant infringes the interests of an
innocent third party in order to protect his own interests.) Thus the decision entailed weighing
the life of the person threatened against the life of the deceased. In view of the fact that it was
uncertain whether this particular instance complied with one of the requirements of necessity,
namely that the interest infringed should in general not be greater (or more valuable) than the
interest protected,97 recourse was had to the general test of reasonableness. The Appellate
Division recognised, at least as far as criminal law is concerned, the community’s conviction
that the ordinary human being in general does not consider the life of another person to be more
important than his own. By applying the general reasonableness criterion, the conclusion was
reached that the requirements for necessity had in this instance been satisfied.
4 Wrongfulness as infringement of a right
4.1 The doctrine of subjective rights98

In Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk,99 the court accepted the
doctrine of subjective rights. The fundamental premise of this doctrine is that wrongfulness
consists of the infringement of a subjective right.100
All people (legal subjects) are holders of subjective rights. The holder of a subjective right has a
right to something enforceable against other people. This indicates the dual relationship that
characterises every right: firstly, there is a relationship between the holder of the right (legal
subject) and the particular object of the right (legal object); secondly, there is a relationship
between the holder of the right (legal subject) and all other persons (legal subjects). The first
relationship is known as the subject-object relationship and the latter as the subject-subject
relationship.101 For example, a legal subject has a right to his car (legal object) – the subject-
object relationship – enforceable against other persons (legal subjects) – the subject-subject
relationship.
The subject-object relationship provides the holder of a right with the power to use, enjoy
and alienate the object of his right; in other words, the holding of a right confers powers of
________________________
95 Potgieter and Van Rensburg 1977 THRHR 382–383.

96 1972 3 SA 1 (A).
97 See the discussion under necessity, infra 120.
98 Joubert (Grondslae 118–121, 1958 THRHR 12 ff 98 ff) is generally regarded as the father of this doctrine in South
Africa (Neethling 1987 THRHR 316). For a detailed discussion of this doctrine, see Van der Vyver Huldigings-
bundel WA Joubert 201 ff. See Van der Walt 1995 THRHR 396 and Van der Walt 1996 TSAR 521 626 for a critical
philosophical view.
99 1977 4 SA 376 (T) 387; cf also Hawker v Life Offices Association of South Africa 1987 3 SA 777 (C) 780–781.
100 Cf Clarke v Hurst 1992 4 SA 630 (D) 651. Nonetheless, infringement of a subjective right is not to be regarded as
the only criterion for wrongfulness. Thus, in Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4
SA 376 (T) 387, the court continued: “This premise does not exclude the existence or development of other criteria
for wrongfulness for specific cases and needs. Without investigating this, I point only to the breach of norms and
duties as supplementary criteria, particularly in difficult cases such as the causing of pure economic loss and mis-
representation” (translation). (See infra 60 in respect of violation of a duty as criterion for wrongfulness.)
101 Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 382; Joubert Grondslae 118; Van
der Merwe and Olivier 54 ff; Van der Walt and Midgley Delict 113 ff.
56 Law of Delict
enjoyment, use and disposal in respect of a legal object.102 The content and extent of these
powers are determined and regulated by the rules and norms of the law. In other words, the law
determines how a person may use, enjoy and alienate his legal objects. The limits or boundaries
of a person’s rights are therefore determined by the law.103
The second (subject-subject) relationship implies that the holder of a right can uphold his powers over
a legal object against all other legal subjects and, as a corollary, that a duty rests on all other legal
subjects not to infringe the relationship between the holder of a right and the object of his right.104
Thus every right has a correlative duty: if I have a right to a thing, other persons have a duty not
to infringe my right.105
4.2 The nature of a subjective right

The nature of a subjective right is largely determined by the nature of the object of the particular
right.106 Thus rights are categorised and named with reference to the different types of legal
objects to which the rights relate.
Five classes or categories of rights are distinguished on this basis, ie, real rights; personality
rights; personal rights; immaterial property rights, and personal immaterial property rights.107
________________________
102 Joubert 1958 THRHR 110–111. This means that the content of a subjective right is determined by the extent of the
powers referred to. Thus the owner (holder of a right, legal subject) of a piece of land (legal object) may walk on
his land, build or garden on it, sell or lease it, etc.
103 To determine the scope and bounds of, say, my ownership of land, we must determine what the legal norms allow
me to do with my land and what they forbid me to do. Then we may find, eg: the law allows me to cultivate vege-
tables on my land, but not certain kind of weeds; to build a house on it, but, in terms of a municipal regulation (a
rule of the law), not less than two meters from the boundary; to make a fire on it, but not in such a way that the
smoke continually blows into my neighbour’s windows, etc. My neighbour’s right to his land is similarly limited by
legal norms which prescribe what he may and may not do with his land. If this were not so, our interests would be
clashing continually. The law demarcates our interests in the form of individual rights and in this way ensures peaceful
co-existence. The rights each of us enjoy, are limited in content in accordance with the rules of law. Thus no right
applies without restriction; every right is limited by legal norms and by the rights of others. See also infra 108.
104 A landowner may exercise his powers in respect of his property even against the wishes of other people. At the
same time a legal duty rests on all other people not to disturb him in the use of his land.
105 Therefore every right enjoyed by a person has a correlative legal duty imposed on another. As owner I have, eg, a
right to my car, and all other people simultaneously have a legal duty to honour my right by, eg, not damaging or
stealing my car. Because every right has as its correlative a legal duty, wrongfulness may exist in either the
infringement of a right, or in the non-compliance with the corresponding legal duty. Because a subjective right has
not yet been identified in every instance where damage is caused, (cf, eg, certain instances of misrepresentation and
pure economic loss, infra 357 349), it is expedient to determine wrongfulness in those cases by inquiring whether a
legal duty has not been complied with, rather than trying to determine whether a right has been infringed. Accord-
ing to Van der Merwe and Olivier 50 fn 63, in such cases wrongfulness is still to be found in the infringement of a
(albeit terminologically unidentified) subjective right and not in the violation of a legal duty. Logically speaking,
their approach would be correct if one, as they do, dogmatically regards the infringement of a subjective right as the
only criterion for wrongfulness. However, as has already been indicated, the doctrine of subjective rights provides
at most one of several methods which may be used to determine that the conduct is in conflict with the legal con-
victions of the community and therefore wrongful. (See supra 60 in regard to non-compliance with a legal duty as
criterion for wrongfulness.)
106 Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 382; Joubert Grondslae 120–121,
1958 THRHR 1 13; Van der Merwe and Olivier 54 ff; cf Van der Walt and Midgley Delict 113.
107 Traditionally only the first four classes of rights are distinguished (Universiteit van Pretoria v Tommie Meyer Films
(Edms) Bpk 1977 4 SA 376 (T) 382; Joubert Grondslae 113; Van der Merwe and Olivier 55). However, Neethling
(1987 THRHR 316–324; Neethling Van Heerden-Neethling Unlawful Competition 90 115–117; see further
Neethling, Potgieter and Roos Neethling on Personality Rights 21–24; Van der Walt and Midgley Delict 114) has
identified personal immaterial property rights as a possible fifth category of rights (see further Wolmarans v ABSA
Bank Ltd 2005 6 SA 551 (C) 557; see fn 108 infra for particulars). It is sometimes stated that rights can be divided
into “absolute” and “relative” rights (cf Van der Merwe and Olivier 55–56; Van der Merwe Vorderingsregte 141 ff
and authority cited there). According to this distinction, absolute rights are enforceable against all people, whereas
relative rights are enforceable only against a particular person or persons. Whilst real rights, personality rights and
[continued ]
The objects of these rights are respectively things (tangible objects such as a farm, a car, a pen, a
flock of sheep, compressed air in a cylinder); aspects of personality (aspects of human person-
ality such as good name, physical integrity, honour, privacy and identity); acts and per-
formances (human acts or conduct which may juridically be claimed from another, such as
delivery by the seller of the thing sold, payment of the amount owing by the debtor, rendering of
services by an employee); immaterial property (intangible products of the human mind, intellect
and activity which are expressed in one or other outwardly perceptible form, such as an
invention, a poem or a work of art); and personal immaterial property (intangible products of
the human mind or endeavour which are connected with the personality, such as earning
capacity and creditworthiness).108
4.3 Further development of the doctrine of subjective rights

Nothing prevents the further development or evolution of the doctrine of subjective rights. The
existing subjective rights are not restricted in number, as clearly appears from the fairly recent
acknowledgement of “new” personality rights, namely the rights to privacy and to identity109 and
________________________
immaterial property rights are classified as absolute rights, personal rights are regarded as relative rights. This
distinction is unacceptable because all rights – including personal rights – operate against all people. If a purchaser
has a personal right to delivery of a thing sold enforceable against the seller, it is obvious that all other persons
must respect the purchaser’s right and must refrain from interfering with it by, eg, destroying the thing purchased.
It is indeed characteristic of absolute rights that the holder of the right has direct control over the object of his right
(eg the owner may use his property directly), while it is characteristic of relative rights that their object is an act or
performance on the part of another (something over which the holder of the right is obviously unable to exercise
direct control). After all, the creditor himself cannot undertake to perform the debtor’s obligations. The
performance consists in an act personally undertaken by the debtor.
108 See in regard to things, aspects of personality, performance and immaterial property, Universiteit van Pretoria v
Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 382; Joubert Grondslae 120–121, 1958 THRHR 1 13; Van
der Merwe and Olivier 55 ff; Van der Walt and Midgley Delict 114; and in regard to personal immaterial property
Wolmarans v ABSA Bank Ltd 2005 6 SA 551 (C) 557; Neethling 1987 THRHR 316, 1990 THRHR 101, 2006 SA
Merc LJ 376; Neethling and Le Roux 1987 Industrial LJ 719; cf Van der Vyver Huldigingsbundel WA Joubert
232–233; Reinecke 1988 De Jure 235.
Legal objects such as earning capacity and creditworthiness are called personal immaterial property because they
contain elements or characteristics of both aspects of personality and immaterial property. (In Hawker v Life Offices
Association of South Africa 1987 3 SA 777 (C) 780, eg, it is stated that earning capacity as legal object contains
both “factors of personality” and “a monetary component”.) They are therefore neither aspects of personality only,
nor pure immaterial property. Contrary to certain claims (cf Van der Walt Sommeskadeleer 289; Wiehahn Boikot
191–193; Klopper Kredietwaardigheid 201 ff), the legal objects in question are not aspects of personality. One
may, eg, infringe another’s earning capacity or creditworthiness without infringing his personality, such as when an
advocate’s library is destroyed. Nevertheless, they display similarities to personality objects: like personality
objects, they do not exist separately and independently from the personality; they cannot therefore be transferred or
bequeathed and cannot be attached. But unlike personality objects, they do not necessarily arise on the birth of a
person and lapse at his death; in the nature of things a baby, eg, does not have earning capacity whereas an adult
can lose or abandon his creditworthiness as a result of insolvency. Neither are the relevant legal objects purely
immaterial property, inter alia, because, unlike industrial creations (eg patents, works of art, poems), they cannot
exist independently from their creator. They can only exist during the lifetime of a person, and are therefore linked
to his or her personality.
It is nevertheless clear that earning capacity and creditworthiness also have a patrimonial nature. Infringement
thereof may lead to patrimonial loss. These legal objects further have a definite market value: a person can “trade”
with them in the sense that he may offer his earning capacity for financial remuneration, or his creditworthiness as
security for the granting of credit. Neethling’s identification of personal immaterial property has since evoked a
lively debate: see, eg, Van der Vyver Huldigingsbundel WA Joubert 232–233; Van der Merwe and Olivier 186 fn
28; Reinecke 1988 De Jure 235; Van der Walt 1990 THRHR 141–142; and for a summary and evaluation of the
comments, Neethling 1990 THRHR 101, Van Heerden-Neethling Unlawful Competition 115–117.
109 Infra 421 425.
58 Law of Delict
of the immaterial property rights to goodwill and to trade secrets.110 In addition, even new
categories of rights may be recognised, such as personal immaterial property rights, which were
identified and described relatively recently.111
4.4 Origin of subjective rights

Subjective rights arise when the law recognises existing individual interests as being worthy of
protection.112 Thus a person’s ever-increasing need to be guarded from the public eye – his
individual interest in privacy – has over time been recognised by positive law as a legal object
requiring legal protection and is now, unlike in the past, explicitly protected by the courts.
However, before the law will accord recognition to an individual interest as a legal object in
terms of the doctrine of subjective rights, two conditions must be met: firstly, it must be of
value – that is relatively scarce – to the holder of the right;113 and secondly, it must have such a
measure of independence that it is possible to dispose of it and to enjoy it.114 Once an interest
complies with these requirements and is regarded by the law as worthy of protection, it changes
from a mere individual interest of which the law does not take notice, into a legally recognised
and protected object of a subjective right. The dual relationship, which, as mentioned above,
characterises a subjective right, will then come into being.
4.5 Infringement of a subjective right: requirements

As indicated,115 the fundamental premise of the doctrine of subjective rights is that the infringe-
ment of such a right is wrongful. A dual investigation is necessary to determine whether a right
has been infringed. Firstly, one must determine whether the holder of a right was disturbed in the
use and enjoyment of his right; ie, whether the subject-object relationship has in fact been
disturbed. If so, one must establish secondly whether the infringement complained of took place
in a legally reprehensible way (in violation of a norm). If this is established, the conduct is
________________________
110 Neethling Van Heerden-Neethling Unlawful Competition 105 ff 213–219.

111 Fn 108 supra; Neethling 1987 THRHR 316; Neethling and Le Roux 1987 Industrial LJ 719. Conditions for the
recognition of a new category of rights are that the individual interests concerned must qualify as legal objects and that
it must not be possible to classify such interests under one of the existing groups of legal objects.
112 Neethling, Potgieter and Roos Neethling on Personality Rights 14–15. Consequently the law does not create
individual interests but merely provides juridical recognition of interests which exist in fact even before legal
recognition takes place. Accordingly the qualities of these interests cannot be deduced from legal norms, but must
be established with reference to their actual nature. The law should not impute a meaning to an individual interest
which differs from its meaning in fact. Legal rules that are based on incorrect conceptions of factual reality will
inevitably lead to inconsistency and injustice (cf Van Rensburg Juridiese Kousaliteit 134; Neethling Van Heerden-
Neethling Unlawful Competition 90–91)).
113 This qualification was already set by De Groot 1 2 28. (See further Van der Vyver and Joubert Persone- en
Familiereg 10 ff; Labuschagne 1990 THRHR 561.) Joubert (Grondslae 119–120, 1958 THRHR 112; see further
Neethling Van Heerden-Neethling Unlawful Competition 90), following Dooyeweerd, requires that a legal object
must have economic value, although economic value in this instance is not necessarily equal to market value, but
includes a pretium affectionis (so-called sentimental value). One should, however, concede – as submitted by the
first three writers mentioned above (see also Van der Vyver Huldigingingsbundel WA Joubert 229–231) – that
economic value cannot be a requirement for all legal objects (aspects of personality simply do not have economic
value), neither should it be such a requirement (development will be inhibited); thus this requirement should be
abolished (see also Neethling, Potgieter and Roos Neethling on Personality Rights 15 fn 151).
114 An interest must possess such a measure of definiteness, definition and independence that the disposal, use and
enjoyment thereof is possible (Neethling, Potgieter and Roos Neethling on Personality Rights 15; Neethling Van
Heerden-Neethling Unlawful Competition 90).
115 Supra 55; cf Clarke v Hurst 1992 4 SA 630 (D) 651.
wrongful.116 A subjective right is therefore infringed when the relationship between the holder of
a right and the object of the right has been infringed in a legally reprehensible manner.
(a) The first requirement for the infringement of a subjective right (ie, violation of the
relationship between a legal subject and his legal object) is normally present when the defendant
in fact violates a legal subject’s powers of use, enjoyment and disposal in respect of the object of
his right. Such a violation of the subject-object relationship occurs mostly by means of an action
impacting directly on the legal object itself: the defendant, for example, crashes into a car
belonging to the plaintiff with his own vehicle, or infringes the plaintiff’s physical integrity by
slapping his face, or injures the plaintiff’s dignity by addressing humiliating words to him, or
violates the plaintiff’s right to privacy by peeping at him in his bathroom.117
However, the violation of the subject-object relationship may also take place in an indirect
manner where the defendant, without directly interfering with the object of a right, affects the
plaintiff’s powers of use and enjoyment of this object: for example the defendant hides the
plaintiff’s car keys, with the result that he is unable to use his car, or damages an electrical cable
which supplies power to the plaintiff’s factory, with the result that production is suspended.118
Whether the subject-object relationship has in fact been violated is determined by means of
evidence.
(b) Secondly, as stated above, the mere fact that the subject-object relationship has been
violated does not in itself mean that the defendant’s conduct was wrongful (in other words, that
the right of the plaintiff has been infringed). Although actual violation is a prerequisite for
wrongfulness, a right is only infringed when, in addition, the violation of a norm occurs; ie,
when the actual interference takes place in a legally impermissible manner.119 The norm or
standard used to determine whether an actual violation of the subject-object relationship is
legally impermissible or not remains the general reasonableness criterion,120 which is established
with reference to the legal convictions of the community, ie, the boni mores.121
As indicated earlier,122 application of the boni mores criterion essentially entails the weighing of
interests in the light of surrounding circumstances. But, as we have also explained,123 it is
seldom necessary to apply the general reasonableness or boni mores test directly. In most cases,
proof of an actual infringement of the subject-object relationship is already an indication of
wrongfulness. Thereafter the defendant normally endeavours to show that a ground of
justification – such as necessity or consent – applies to his conduct and that in the circumstances
his apparently unreasonable conduct is justified by law. If his defence succeeds, he will not be
held to have acted in conflict with the law (wrongfully).
________________________
116 Cf Loubser and Midgley Delict 184–185; Neethling Van Heerden-Neethling Unlawful Competition 119–121;
Neethling, Potgieter and Roos Neethling on Personality Rights 78.
117 Potgieter 1978 THRHR 329.
118 Cf Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D).
119 Clarke v Hurst 1992 4 SA 630 (D) 651; Neethling, Potgieter and Roos Neethling on Personality Rights 78; see also
the quotation from Van der Merwe and Olivier 57, cited in fn 9 supra.
120 Van der Merwe and Olivier 57–58 declare that the reasonableness or not of the actor’s conduct must always be
considered in light of its effect on the victim. See also Bester v Calitz 1982 3 SA 864 (O) 879.
121 Clarke v Hurst 1992 4 SA 630 (D) 651; Bester v Calitz 1982 3 SA 864 (O) 879; cf Minister van Polisie v Ewels
1975 3 SA 590 (A) 597; Marais v Richard 1981 1 SA 1157 (A) 1168.
122 Supra 41.
123 Supra 49 ff.
60 Law of Delict
5 Wrongfulness as breach of a legal duty124
5.1 General
Wrongfulness need not necessarily be determined with reference to the infringement of a
subjective right. As indicated, the doctrine of subjective rights merely provides one of several
juridical methods for determining whether an actual violation of interests is in conflict with the
legal convictions of the community and therefore wrongful. Problems relating to wrongfulness
may arise which cannot readily be solved by asking whether a subjective right has been
infringed, for example because, as often occurs with misrepresentation,125 no clearly defined
right exists in the particular circumstances.
However, even where a subjective right is identifiable, there are circumstances in which it is
more appropriate to determine wrongfulness by asking whether a legal duty has been breached
than by asking whether a subjective right has been infringed.126 Accordingly, in cases of liability
for an omission127 or for causing pure economic loss128 (with the exception of the infringement of
the right to goodwill in the case of unlawful competition129) wrongfulness is normally deter-
mined not by asking whether the plaintiff ’s subjective right has been infringed, but rather by
asking whether, according to the boni mores or reasonableness criterion, the defendant had a
legal duty to prevent harm, in other words whether the defendant could reasonably (according to
the boni mores) have been expected to act positively. In Van Eeden v Minister of Safety and
________________________
124 See in general Loubser and Midgley Delict 186; Van der Walt and Midgley Delict 93 ff 115 ff; Boberg Delict 30 ff;
Van der Merwe and Olivier 59 ff; Fagan Aquilian Liability 149 ff. In Masstores (Pty) Ltd v Pick n Pay Retailers
(Pty) Ltd 2016 2 SA 586 (SCA) para 21 Majiedt JA sets out the approach to wrongfulness concisely as follows
(with reference to Boberg Delict 32): “Wrongfulness is determined by ascertaining whether there has been a breach
of a legal duty. Conversely, it involves a determination of whether a subjective right has been infringed.” It is
preferable to use the term “legal duty” (Afrikaans: “regsplig”) in English instead of “duty of care”. As explained
later in more detail (infra 188), the term “duty of care” may lead to considerable confusion, as it is traditionally
employed to denote more than one meaning. Sometimes the term relates to wrongfulness: to the existence of a legal
duty to take steps to prevent loss, determined objectively and ex post facto (the “duty issue”); on other occasions it
relates to negligence: to the duty to take reasonable care – to foresee and prevent loss (the “negligence issue”). This
sometimes results in a failure to distinguish between two fundamentally different elements of delict: wrongfulness
and fault (Boberg Delict 35–37; Van der Walt and Midgley Delict 116: “The enquiry into the existence of legal
duty and its breach is very different from the enquiries into the so-called policy-based and fact-based notions of a
duty of care. The question of a defendant’s fault, or negligence, is not in issue”; cf Scott 1999 De Jure 340 341–
342). Fagan Aquilian Liability 149 opines that, for the purpose of Aquilian liability, “wrongfulness means the
breach of a duty” and that, as “the infringement of a right entails the breach of a duty”, the addition of “the
infringement of a right” in the context of Aquilian liability is superfluous.
125 Infra 360–361.
126 This exposition was accepted by Fourie J in Spar Group Ltd v FirstRand Bank Ltd [2016] 4 All SA 646 (GP) para
58. In Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 144, Brand JA
declared that referring to a legal duty in respect of wrongfulness is somewhat unfortunate. This is not correct. The
series of judgments since Minister van Polisie v Ewels 1975 3 SA 590 (A) on liability for omissions and pure
economic loss in which the legal-duty concept was applied to good effect, was surely a necessary and fruitful
development in our law (and even beyond our borders) to determine wrongfulness in instances where no positive
act took place or no physical harm was caused.
127 Infra 64.
128 Infra 349.
129 Infra 373.
Security (Women’s Legal Centre Trust, as amicus curiae)130 Vivier ADP stated this clearly in
respect of omissions:
The appropriate test for determining wrongfulness [of an omission] has been settled in a long line of
decisions of this Court. An omission is wrongful if the defendant is under a legal duty to act positively to
prevent the harm suffered by the plaintiff. The test is one of reasonableness. A defendant is under a legal
duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have
taken positive measures to prevent the harm.131
The reason why the existence of a legal duty is sought is probably because, contrary to the
rule,132 the impairment of the legal object is not prima facie wrongful in these cases, but rather
prima facie lawful, because, according to the boni mores criterion, there is neither a general duty
to prevent loss to others by positive conduct,133 nor a general duty to prevent pure economic
loss.134 The imposition of such duties would probably place too heavy a burden on individuals in
the community.135 Therefore, one must determine in each case whether there is a legal duty to
________________________
130 2003 1 SA 389 (SCA) 395 (see Scott 2018 TSAR 912; Knobel 2020 THRHR 210–212); see also Lee v Minister of
Correctional Services 2013 2 SA 144 (CC) 167; Minister of Justice and Constitutional Development v X 2015 1 SA
25 (SCA) para 13 (see Neethling and Potgieter 2015 TSAR 856 ff); Harrington v Transnet Ltd t/a Metrorail 2010 2
SA 479 (SCA) 485; Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 229; Minister of Safety and
Security v Rudman 2005 2 SA 16 (SCA) 36; F v Minister of Safety and Security 2012 1 SA 536 (CC) 566 (minority
judgment); McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel 2012 6
SA 551 (GNP) 563–564; Carelse v City of Cape Town [2019] 2 All SA 125 (WCC) para 48; Van der Bijl v
Featherbrooke Estate Home Owners’ Association (NPC) 2019 1 SA 642 (GJ) 646í647; Jacobs v Chairman,
Governing Body, Rhodes High School 2011 1 SA 160 (WCC) 165; Holm v Sonland Ontwikkeling (Mpumalanga)
(Edms) Bpk 2010 6 SA 342 (GNP) 347; Swinburne v Newbee Investments (Pty) Ltd 2010 5 SA 296 (KZD) 302–
303; Minister van Polisie v Ewels 1975 3 SA 590 (A) 597; Neethling and Potgieter 2007 THRHR 125 ff.
131 According to Brand 2007 SALJ 80–81 (cf Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006 3 SA 138 (SCA) 144) this formulation does not form part of the wrongfulness test, but is rather part of the
inquiry pertaining to the preventability leg of negligence (on that topic, see infra 169 176–184). This view is
subject to criticism (see infra 99; cf Knobel 2020 THRHR 210–211). By contrast, Brand JA stated in Hawekwa
Youth Camp v Byrne 2010 6 SA 83 (SCA) para 22 that the wrongfulness of an omission “depends on the existence
of a legal duty. The imposition of this legal duty is a matter for judicial determination, involving criteria of public
and legal policy consistent with constitutional norms”; cf Van Vuuren v Ethekwini Municipality 2018 1 SA 189
(SCA) para 16.
132 Supra 49.
133 See infra 64, also with regard to certain omissions which may indeed be regarded as prima facie wrongful.
134 See, eg, Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461
(SCA) 468; Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 32; Mediterranean Shipping
Co (Pty) Ltd v Tebe Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 494; Spar Group Ltd v FirstRand Bank Ltd
[2016] 4 All SA 646 (GP) para 61; cf Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA) 498; Trustees, Two
Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 143; Local Transitional Council of
Delmas v Boshoff 2005 5 SA 514 (SCA) 522; Stewart v Botha 2008 6 SA 310 (SCA) 314–315; Van der Bijl v
Featherbrooke Estate Home Owners’ Association (NPC) 2019 1 SA 642 (GJ) 646 648; Fagan Aquilian Liability
186–194. Cf supra 55 on a duty as the converse of a right and infra 349 on liability for pure economic loss.
135 Fn 152 infra. In addition, Van der Walt and Midgley Delict 92 declare as follows with reference to an omission:
“Liability for omissions is generally more restricted than liability for commissions, and additional policy considera-
tions come into play where, for example, statements, and not physical conduct, cause someone loss. For reasons of
public policy, the law is reluctant to assume too readily the existence of a legal duty in these instances. In cases
involving omissions the law does not generally demand altruistic behaviour: it does not require you to love your
neighbour, but only that you shall not injure your neighbour. The law also recognises that ‘words are more volatile
than deeds’ and that some restriction should be placed on the scope of liability in such cases.”
62 Law of Delict
act positively or a duty to avoid pure economic loss.136 In these cases, it is consequently more
appropriate to make use of breach of a legal duty rather than infringement of a subjective right137
to establish and express wrongfulness.
If it is found that the defendant indeed had a legal duty, a breach of that duty is, in the absence of
a ground of justification, unreasonable, contra bonos mores and thus wrongful. The determination
of wrongfulness by the use of breach of a legal duty does not entail a new test. Given that in
many instances, a legal duty merely constitutes the converse of a subjective right,138 the test for
wrongfulness where breach of a legal duty is involved is in principle clearly the same as the
question of whether a subjective right has been infringed. The question of whether a legal duty
has been breached is also determined with reference to the boni mores or general legal convic-
tions of the community.139
In this context, it is important to note that several judgments describe the legal duty employed to
establish wrongfulness as “a legal duty not to act negligently”,140 or use similar formulations
________________________
136 In Spar Group Ltd v FirstRand Bank Ltd [2016] 4 All SA 646 (GP) paras 58–62 Fourie J stated that the existence
of a legal duty to prevent loss is a conclusion of law depending on a consideration of all the circumstances of the
case. The enquiry encompasses the application of the general criterion of reasonableness, having regard to the legal
convictions of the community as assessed by the court. An omission is wrongful if the defendant is under a legal
duty to act positively to prevent the harm suffered by the plaintiff. A defendant is under a legal duty to act
positively to prevent harm to a plaintiff if it is reasonable to expect of the defendant to have taken positive
measures to prevent the harm (cf Van Eeden v Minister of Safety & Security (Women's Legal Centre Trust, as
Amicus Curiae) 2003 1 SA 389 (SCA) 396 400).
137 As indicated earlier (supra fn 81), for the purposes of delict it is preferable, whenever possible, to determine
wrongfulness with reference to the question of whether a subjective right has been infringed. Private law relates in
the first place to the protection of individual interests rather than to the regulating of conduct by imposing duties,
and the doctrine of subjective rights approaches the problem from the perspective of the prejudiced person whose
interests have been infringed.
138 The fact that I have a right to my car, implies that other people have a duty not to infringe my right: supra fn 105.
See also Boberg Delict 32: “[A] finding that the right existed implies that the defendant had a legal duty not to
infringe it.”
139 Boberg Delict 32 points out that two separate tests for wrongfulness are not present here: “[T]he difference is only
one of emphasis or approach. For right and duty are correlative concepts: the one necessarily implies the other. It
follows that breach of a duty and infringement of a right are not alternative foundations for a finding of wrong-
fulness. Rather, they are alternative paths to the policy conclusion that the wrongfulness requirement compels, the
one or the other seeming more comfortable in the circumstances.” It is true that every duty has as its corollary a
“right”. However, not every such right is necessarily a subjective right. In the case of negligent misrepresentation
(infra 357), wrongfulness is determined with reference to the legal duty to provide correct information precisely
because an identifiable subjective right is mostly absent. The corollary of the intended duty, namely the right to
correct information or the right not to be misled, does not qualify as a traditional subjective right (cf Pauw 1978
THRHR 57–58; Neethling 1985 THRHR 246; cf nevertheless Neethling 1990 THRHR 104–105). As long as one
bears this fact in mind, it makes no difference whether one considers the two approaches concerned as independent
tests, or merely as two different applications of the same criterion. What is certain, is that in both instances one is
dealing with the unreasonable impairment of legally protected interests, and that in every case the reasonableness
or not of the conduct is determined by the boni mores.
In Cape Metropolitan Council v Graham 2001 1 SA 1197 (SCA) 1203 the defendant, a municipal council, simply
admitted that it had had a legal duty to take reasonable steps to prevent or limit injury to road users; in other words
the defendant admitted that it had acted wrongfully. Therefore the only question was whether the defendant was
also negligent and thus liable (cf Neethling 2001 THRHR 494).
140 In this regard, Fagan Aquilian Liability 153 believes that, for the purpose of Aquilian liability, “wrongfulness not
only sometimes, but always, is constituted by the breach of one of the following two kinds of duty: (1) a duty not to
cause harm by conduct that was negligent; (2) a duty not to cause harm by conduct that was intended to do so.” See
idem 157–223 for Fagan’s extensive exposition of wrongfulness according to what he terms “the breach of a duty
not to cause harm negligently”. In support of this view, Fagan (158 ff) relies on cases where the courts used
terminology such as “duty of care”, a “duty not to act negligently”, a “duty to act reasonably”, a “duty to take
reasonable steps”, and similar expressions. In one of many similar examples, Fagan (163) also prefers to articulate
Rumpff CJ’s use of “a duty to act reasonably” in Minister van Polisie v Ewels 1975 3 SA 590 (A) 596 as “a duty
not not act negligently”. Against this background, Fagan concludes (eg 169) that, for the purpose of Aquilian
[continued ]
apparently conveying the same idea.141 This creates the impression that the legal duty deals with
the question of whether the defendant acted negligently;142 ie, whether his conduct differed from
that of the reasonable person in the circumstances. This approach can lead to the wrongfulness
inquiry usurping the negligence test.143 In turn, this can lead to the essence of the wrongfulness
inquiry, ie, whether a legal duty existed according to the boni mores to act positively to prevent
an infringement of a legally protected interest, being negated.144 This formulation furthermore
mirrors the classic duty-of-care approach of English law “which straddles both elements of
wrongfulness and negligence”145 and which was expressly rejected by the Supreme Court of
Appeal.146 In view of this, it is unfortunate that the Supreme Court of Appeal continues to
formulate the legal duty as a legal duty not to act negligently.147
In what follows, only liability for an omission and the breach of a statutory duty receive
attention. The position concerning liability for pure economic loss (including misrepresentation)
will be discussed at a later stage.148
________________________
liability, “negligent harm-causing conduct was wrongful if and . . . only if it breached a duty not to cause harm
negligently”. This conclusion can only be valid if Fagan is correct in equating the various pronouncements of the
courts on a duty to act reasonably (in determining wrongfulness), with a duty not to act negligently. This remains
open for debate. (See too Van der Walt and Midgley Delict 115–116 (cf infra 63 fn 147) who maintain that to
describe the duty as, inter alia, a duty not to act negligently “is not tenable in terms of a theoretical structure of
delict which requires a distinction between the elements of wrongfulness and fault”.)
141 See, eg, Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 144;
Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 494; Shabalala v
Metrorail 2008 3 SA 142 (SCA) 145; McIntosh v Premier, KwaZulu-Natal 2008 6 SA 1 (SCA) 7–8; Du Preez v
Swiegers 2008 4 SA 627 (SCA) 632; Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 588; Gouda Boerdery
BK v Transnet 2005 5 SA 490 (SCA) 498–499; Minister of Correctional Services v Lee 2012 3 SA 617 (SCA)
623–624; Moniel Holdings (Pty) Ltd v Premier of Limpopo Province [2007] 3 All SA 410 (T) 417; Van der Eecken
v Salvation Army Property Co 2008 4 SA 28 (T) 37–38; Harrington NO v Transnet (Ltd) 2007 2 SA 228
(C) 240–241; Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 618; Minister of Water Affairs v Durr
[2007] 1 All SA 337 (SCA) 341; Stewart v Botha 2008 6 SA 310 (SCA) 314; Indac Electronics (Pty) Ltd v
Volkskas Bank Ltd 1992 1 SA 783 (A) 797. See further Van der Walt and Midgley Delict 115; Fagan Aquilian
Liability 149 ff, 2005 SALJ 110–112; Brand 2007 SALJ 80–81; Neethling and Potgieter 2007 THRHR 123–125; cf
Loubser and Midgley Delict 190.
142 Van der Walt and Midgley Delict 115 116; cf fn 140 supra.
143 Neethling 2006 SALJ 212–213; Neethling and Potgieter 2006 TSAR 611 ff, 2007 THRHR 123–124.
144 See supra 36 fn 7.
145 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 144; cf Home Talk
Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA 391 (SCA) para 25.
146 See, eg, Local Transitional Council of Delmas v Boshoff 2005 5 SA 514 (SCA) 522; Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468; Steenkamp NO v Provincial Tender
Board, Eastern Cape 2006 3 SA 151 (SCA) 159. See infra 189 fn 211 for a full discussion.
147 We identify with the criticism of Van der Walt and Midgley Delict 115–116 in this respect (see further Neethling
2006 SALJ 206 212–213; Neethling and Potgieter 2006 TSAR 611–612, 2007 THRHR 124): “Under the influence
of the classic English doctrine of ‘duty to take care’, courts have customarily described the duty as a duty to take
reasonable care, or to conform to a certain standard of conduct (not to act negligently). However, such an approach
is not tenable in terms of a theoretical structure of delict which requires a distinction between the elements of
wrongfulness and fault. The duty to take care, or to act reasonably, or not to act negligently, is a separate and
independent duty, concerned with establishing whether or not the defendant was at fault, and which only arises
after it has been established that the defendant was in breach of a legal duty not to harm the plaintiff . . . It is
therefore incorrect and confusing to express the legal duty in terms of a standard of care and to formulate the
standard of care required in the particular case in terms of a duty – for example, that a defendant has a legal duty to
act without negligence, or to take reasonable steps . . . ” See further Loubser in Boezaart and De Kock (eds) 133.
148 Infra 349.
64 Law of Delict
5.2 Liability for an omission149

As a general rule, a person does not act wrongfully for the purposes of the law of delict if he
omits to prevent harm to another person.150 Thus, the point of departure is that a person is
generally not liable where his omission or omissio – his failure to act positively to prevent loss151
– factually infringes the interests of another.152 Omissions are therefore not prima facie
unlawful, but rather lawful153 (except where, in those cases of omissions causing physical harm,
a “pre-existing duty” is already present, for example the failure to provide safety equipment in a
factory or to protect a vulnerable person from harm;154 in such exceptional cases the omission
will be prima facie wrongful, like positive conduct causing physical harm).155 Liability follows
only if the omission was in fact wrongful, and this will be the case only if, in the particular
circumstances,156 a legal duty rested on the defendant to act positively to prevent harm from
________________________
149 See in general Loubser and Midgley Delict 263–268; Van der Merwe and Olivier 24 ff; Van der Walt and Midgley
Delict 122 ff; Boberg Delict 210 ff; Fagan Aquilian Liability 174 179–186 199 ff; Kemp Omissions passim;
Burchell Delict 39 ff; Knobel 2020 THRHR 203 ff; Wessels 2020 THRHR 153 ff; cf Cape Town Municipality v
Bakkerud 2000 3 SA 1049 (SCA).
150 In Saaiman v Minister of Safety and Security 2003 3 SA 496 (O) 503, Rampai J stated this idea as follows: “The
general rule of delict is that no one is held liable for doing nothing. This is trite law.”
151 See supra 32 with regard to the act.
152 As stated above, according to our law no general duty rests on an individual to prevent an infringement of another
person’s interests and the latter consequently suffering loss. In Minister van Polisie v Ewels 1975 3 SA 590 (A) 596
it was stated: “As premise, it is accepted that in general there is no legal duty on a person to prevent someone else
from suffering damage, even if such a person could easily have prevented the damage occurring and even if it could
have been expected from such a person, on purely moral grounds, to actually act in order to prevent the damage”
(translation) (see also Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1054: “Society is hesitant to
impose liability in law for, as it is sometimes put, ‘minding one’s own business’.” See further Nkumbi v Minister of
Law and Order 1991 3 SA 29 (E) 35; Macadamia Finance Ltd v De Wet 1991 4 SA 273 (T) 278). In this respect a
distinction is therefore made between a positive act and an omission. The prohibition on positive conduct causing
harm is stronger than the injunction to assist others in order to prevent them from suffering loss. Although various
reasons may be advanced for this approach (Van der Walt 1976 TSAR 101 106–107; Boberg Delict 210–211; Van
den Heever Aquilian Damages 37–38), the law simply reflects the convictions of the community in this respect.
The community expects one not to cause loss to another by positive conduct, but in principle does not hold an
individual legally liable for his failure to protect others against loss. The reason for this is self-evident: “If every
individual were liable for failure to protect others against loss, each would be compelled, in order to avoid liability,
to run around and busy himself with the affairs of his neighbours, to the neglect of his own, which would lead to
chaos” (Van den Heever Aquilian Damages 37–38). See also Van der Walt and Midgley Delict 122; Loubser and
Midgley Delict 263; Fagan Aquilian Liability 174 179 ff; Wessels 2020 THRHR 153 ff.
153 See previous fn.
154 This principle was enunciated by Mogoeng CJ in Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA
528 (CC) para 19 (cf Scott 2016 THRHR 551 ff).
155 Scott 2016 THRHR 551 567 is critical of Mogoeng CJ’s judgment in Mashongwa. According to Scott, it gives the
impression that a harm-causing omission is prima facie wrongful and this flies in the face of the well-established
legal rule that omissions are prima facie lawful. He states: “The only conclusion to be reached is that Mogoeng CJ
was guilty of a serious lapsus calami in this regard and that this part of his judgment will in future not be binding as
being clearly per incuriam” (567). However, so far as we understand Mogoeng CJ’s statement, he did not imply
that every omission causing physical injury is prima facie wrongful, but only those where it has already been
established that a legal duty existed, and has been breached. In such cases, prima facie wrongfulness may be
rebutted by proving a ground of justification (see too Jacobs and Neethling 2016 (3) LitNet Akademies 798 fn 94).
See also Scott 2018 TSAR 917 for similar criticism against Stedall v Aspeling 2018 2 SA 75 (SCA) paras 15 17.
156 In this regard Leach JA said the following in Stedall v Aspeling 2018 2 SA 75 (SCA) para 17: “As an omission is
not prima facie unlawful the [plaintiffs], on particularising their claim, should not only have alleged that the
negligent omissions upon which they relied had been wrongful, but pleaded the facts upon which reliance was
placed in support of that contention. Indeed in [Minister of Law and Order v Kadir 1995 1 SA 303 (A) 318] this
court stated that the facts pleaded ‘in support of the alleged legal duty represent the high-water mark of the factual
basis on which the court will be required to decide the question’.” See Scott 2018 TSAR 906 ff 910–912; cf Fagan
Aquilian Liability 171.
occurring (“to take preventative steps”) and he failed to comply with that duty.157 The question
of whether such a duty existed is answered with reference to the flexible criterion158 of the legal
convictions of the community and legal policy.159
________________________
157 See Bergrivier Munisipality v Van Ryn Beck 2019 4 SA 127 (SCA) 140. Brand JA stated this idea as follows in
Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 528: “In contrast to the causing of
physical damage through positive conduct, where wrongfulness is prima facie assumed, the premise is that an
omission is only wrongful if it is in conflict with a legal duty to act positively. Underlying this premise, is the view
that no one is his brother’s keeper. Whether such a legal duty to act positively exists, is dependent on a value
judgement . . . This value judgement must obviously now, in the new constitutional dispensation, be exercised
taking into account the norms and values endorsed in the [Constitution, 1996]” (translation). See also Minister of
Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) para 12 where Nugent JA stressed that an omission
should only be regarded as being wrongful “if it occurs in circumstances that the law regards as sufficient to give
rise to a legal duty to avoid negligently causing harm”; Stedall v Aspeling 2018 2 SA 75 (SCA) paras 15–16;
Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) para 22; Minister of Safety and Security v Hamilton 2004 2
SA 216 (SCA) 229–230; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus
curiae) 2003 1 SA 389 (SCA) 395–396. See also Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) 424;
Carelse v City of Cape Town [2019] 2 All SA 125 (WCC) paras 37í49; Brand 2014 Stell LR 454. See Knobel 2020
THRHR 213 who submits that “preventative steps are highly relevant to the wrongfulness inquiry” and that,
although, “in many cases, wrongfulness may be dealt with satisfactorily without expressly considering preventative
steps . . . preventative steps are always an integral, if at times implicit, part of the wrongfulness of an omission, and
such steps should be considered explicitly in more difficult cases”.
(SCA) 396 Vivier ADP declared: “The approach of our Courts to the question of whether a particular omission to
act should be regarded as unlawful has always been an open-ended and flexible one.” See also Lee v Minister of
Correctional Services 2013 2 SA 144 (CC) 167.
159 “The appropriate test for determining wrongfulness [of an omission] has been settled in a long line of decisions of
this Court. An omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm
suffered by the plaintiff. The test is one of reasonableness. A defendant is under a legal duty to act positively to
prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent
the harm. The Court determines whether it is reasonable to have expected of the defendant to have done so by
making a value judgment based, inter alia, upon its perception of the legal convictions of the community and
on considerations of policy. The question whether a legal duty exists in a particular case is thus a conclusion of law
depending on a consideration of all the circumstances of the case and on the interplay of the many factors which
have to be considered” (Vivier ADP in Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust,
as amicus curiae) 2003 1 SA 389 (SCA) para 9; see Scott 2018 TSAR 912; Knobel 2020 THRHR 203í204). In
similar vein Langa CJ stated in NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 5 SA 250
(CC) 274: “Unlawfulness is an ex post facto inquiry into whether the action is compatible with the boni mores,”
and deals “with the facts that are now available to the court”. See also Odinfin (Pty) Ltd v Reynecke 2018 1 SA 153
(SCA) para 13; Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 229–230; Gouda Boerdery BK v
Transnet 2005 5 SA 490 (SCA) 498–499; Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA) 36–37;
Brouze v Wenneni Investments (Pty) Ltd [2015] 4 All SA 543 (SCA) para 110; Bridgman NO v Witzenberg
Municipality 2017 3 SA 435 (WCC) para 4. In Moses v Minister of Safety and Security 2000 3 SA 106 (C) 113
Van Reenen J described this principle as follows: “An omission is wrongful if in the particular circumstances a
legal duty to act positively exists and the party whose conduct is under consideration fails to discharge that duty. It
is generally accepted that, in the absence of an established legal norm or a recognised ground of justification,
wrongfulness is determined according to the criterion of reasonableness with reference to the legal convictions of
the community as established by the Courts.” See Minister van Polisie v Ewels 1975 3 SA 590 (A) 597; Minister of
Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 444; Ries v Boland Bank PKS Ltd 2000 4 SA 955
(C) 968; Nkumbi v Minister of Law and Order 1991 3 SA 29 (E) 35; Macadamia Finance Ltd v De Wet 1991 4 SA
273 (T) 278; Clarke v Hurst 1992 4 SA 630 (D) 658; Kadir v Minister of Law and Order 1992 3 SA 737 (C) 740;
McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (C) 722–723; Administrateur, Transvaal v Van der
Merwe 1994 4 SA 347 (A) 358; cf Scott 1995 De Jure 237. See also supra 39 ff where the nature of the boni mores
is discussed. As explained (supra 44), this does not deal with purely ethical or moral convictions of the community,
but rather with the question whether the community regards the relevant conduct as reasonable or unreasonable for
the purpose of the law of delict (Van Eeden 396). The values incorporated into the Constitution, 1996 and the Bill
of Rights play an important part in determining the boni mores in the law of delict (supra 42; cf, inter alia,
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC);
Van Eeden 396–397). In Saaiman v Minister of Safety and Security 2003 3 SA 496 (O) 508–512 the court refused
to recognise a legal duty on the police, partly on legal policy grounds, because of the possibility of opening the
“floodgates” to a multiplicity of claims. See also Brand 2014 Stell LR 454. Fagan Aquilian Liability 199–209 (cf
[continued ]
66 Law of Delict
The test to determine whether the omission was in conflict with the convictions of the commu-
nity is purely objective,160 in the sense that all the relevant circumstances of a particular case161
must be taken into consideration. Consequently, all factors, which, according to the convictions
of the community, may be indicative of a legal duty to act positively, must be considered.162
Although it is not possible to provide a complete list of the factors which may play a part in this
respect (there is no numerus clausus of such factors), certain factors have come to the fore over a
long period of time which may indicate the existence of a legal duty to act positively to prevent
harm.163 In the era of the new constitutional dispensation, these factors must furthermore be
applied in light of the “spirit, purport and objects of the Bill of Rights”.164
________________________
Undoing Delict 261, 2018 SALJ 35) says that our courts have, over the past four decades, repeatedly endorsed the
following proposition regarding the wrongfulness of an omission: “A negligent harm-causing omission is to be
judged wrongful if and only if the imposition of liability for it is reasonable, or is not contrary to policy, or is
required by the legal convictions of the community.” See Knobel 2020 THRHR 203 ff for a discussion of the
apparant tautology of the wrongfulness and negligence tests in instances of omission.
160 Moses v Minister of Safety and Security 2000 3 SA 106 (C) 113; cf Van der Merwe and Olivier 133; Neethling and
Van Rensburg 1973 THRHR 429.
161 Minister van Polisie v Ewels 1975 3 SA 590 (A) 597. In Van der Bijl v Featherbrooke Estate Home Owners’
Association (NPC) 2019 1 SA 642 (GJ) the plaintiffs resided on the Featherbrooke Estate. One evening robbers
gained access to the Estate and the plaintiff’s home where they were assaulted and sustained injuries. They brought
an action against the defendant on the basis that it had a legal duty to protect them. The court (paras 10í12) stated
that, to accertain whether this was so, is determined by reference to the resonant formulation: the legal convictions
of the community, which has been rendered as the general criterion of reasonableness, based on considerations of
morality and policy. The court is required to exercise a value judgment embracing all relevant facts and involving
considerations of policy. After examing all relevant considerations (paras 17 ff), the court held that the defendant
did not have a duty to protect the plaintiffs and therefore did not act wrongfully in failing to prevent the assaults
upon the plaintiffs (para 42).
162 In Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 444 Nugent JA delared: “When
determining whether the law should recognise the existence of a legal duty in any particular circumstances what is
called for is not an intuitive reaction to a collection of arbitrary factors but rather a balancing against one another of
identifiable norms” (see further eg Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150
(SCA) 161; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461
(SCA) 470; Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA) 38; Swinburne v Newbee Investments
(Pty) Ltd 2010 5 SA 296 (KZD) 303; Brooks v The Minister of Safety and Security [2007] 4 All SA 1389 (C) 1401;
cf Saaiman v Minister of Safety and Security 2003 3 SA 496 (O) 504). It should be noted that Nugent JA in AB
Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) 618 reformulated his above dictum in Van Duivenboden 144
(which was subsequently cited in numerous cases, as indicated above) by referring to “a mere intuitive reaction to
the facts [instead of ‘arbitrary factors’] of the particular case” (emphasis added). On the face of it, this change
appears to be significant and perhaps calls for an explanation since “facts” and “factors” are certainly not identical.
It should also be noted that courts seem to use the terms “factors”, “norms”, “considerations of policy” and
“criteria” interchangeably as synonyms (see, eg, Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar
2010 5 SA 499 (SCA) 508). A principled distinction between these terms, if as much was intended by Nugent JA in
Van Dui-venboden, therefore seems to be superfluous (see also Neethling and Potgieter 2011 THRHR 693; cf
Wessels 2020 THRHR 163–164).
163 See infra 67 ff for a discussion of these factors; cf Scott 2018 TSAR 912.
164 Cf Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938
(CC) 957; cf also Kleyn and Zitzke in Kuschke and Cornelius (eds) 35. In Minister of Safety and Security v Van
Duivenboden 2002 6 SA 431 (SCA) 444 Nugent JA declared: “In applying the test that was formulated in Minister
van Polisie v Ewels [1975 3 SA 590 (A)] the ‘convictions of the community’ must necessarily now be informed by
the norms and values of our society as they have been embodied in our Constitution. The Constitution is the
supreme law, and no norms or values that are inconsistent with it can have legal validity . . .”; see also Van Eeden v
Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 396;
Odinfin (Pty) Ltd v Reynecke 2018 1 SA 153 (SCA) para 14. See in general Van Rensburg 1976 THRHR 176;
Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 363–364. See also Cape Town Municipality v
Bakkerud 2000 3 SA 1049 (SCA) 1055–1057 where Marais JA mentioned a number of factors and specifically
stated that the list was not a numerus clausus; Moses v Minister of Safety and Security 2000 3 SA 106 (C) 114; Ries
v Boland Bank PKS Ltd 2000 4 SA 955 (C) 969; fn 35 supra; infra 84 ff.
5.2.1 Prior conduct (the omissio per commissionem rule)165

A person acts prima facie wrongfully when he creates a new source of danger by means of
positive conduct (commissio) and subsequently fails to eliminate that danger (omissio), with the
result that harm is caused to another person.166 Prior conduct in the form of a positive act that
creates a danger of harm may, in other words, be a strong indication that a legal duty rested upon
the defendant to take steps to prevent the damage from materialising. Prior conduct is, however,
not a necessary prerequisite for the existence of such a legal duty; other factors may also point to
the existence of a legal duty to act positively.167
However, the view that “prior conduct” is an indispensable requirement for liability for
omissions prevailed in our law for a long time. This viewpoint was introduced by the Appellate
Division in Halliwell v Johannesburg Municipal Council168 in 1912, and was followed for
decades, especially in the so-called municipality cases169 where it was often applied in an
unsatisfactory manner.170 However, in 1957, the “prior conduct” requirement was rejected by
Steyn JA in a minority decision in Silva’s Fishing Corporation (Pty) Ltd v Maweza171 in favour
of the preferred view that “prior conduct” was but one of several considerations which might
indicate the existence of a legal duty. This more flexible approach was later accepted by the
Appellate Division in Regal v African Superslate (Pty) Ltd,172 confirmed in Minister of Forestry
________________________
165 See in general Van der Walt and Midgley Delict 124 ff; Boberg Delict 42 ff; Van der Merwe and Olivier 31 ff;
Burchell Delict 40 ff; Loubser and Midgley Delict 265; Fagan Aquilian Liability 180.
166 Holm v Sonland Ontwikkeling (Mpumalanga) (Edms) Bpk 2010 6 SA 342 (GNP) 347–348; cf Pro Tempo Akademie
CC v Van der Merwe 2018 1 SA 181 (SCA) paras 18 21: “By placing a steel rod within a playground where
children engaged in ball games, the defendant created a dangerous situation;” Van Vuuren v Ethekwini Municipality
2018 1 SA 189 (SCA) para 21 28: “[I]n providing the pool with the slide, the Municipality created a potential risk
of harm to others . . . the creation of the slide facility posed a potential risk of harm to others”.
167 Minister van Polisie v Ewels 1975 3 SA 590 (A) 596–597; cf Stols v Garlicke & Bousfield Inc 2012 4 SA 415
(KZP) 426 431.
168 1912 AD 659. In this decision the view was held that the common law did not recognise liability for a “mere
omission”. Innes CJ stated, eg (670): “The weight of civilian authority is in favour of the view that liability under
the lex Aquilia was always attributable to some act of a positive nature; mere omission was not in itself sufficient.”
And Wessels JA declared (691): “The view of those jurists who hold that a person cannot be guilty of culpa merely
because he does nothing seems to me the view taken by the majority of Roman Dutch authorities.” Nevertheless
some doubt exists about the true position in our common law (cf Van der Walt 1976 TSAR 104 ff).
169 See Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) for a useful summary of the approach followed in
the so-called municipality cases. Because (as is often the case today) municipalities were not compelled to build
and repair streets but merely possessed permissive powers to do so, no general duty rested on them to repair road-
ways constructed in a proper fashion but which had become dangerous because of poor maintenance. A muni-
cipality could only be held liable if by prior conduct it created a “new source of danger” (Van der Walt and
Midgley Delict 124; Boberg Delict 210 ff). For examples, see Moulang v Port Elizabeth Municipality 1958 2 SA
518 (A) (the plaintiff failed after he sprained his ankle in a hole on the sidewalk: see also Cape Town Municipality
v Bakkerud 2000 3 SA 1049 (SCA) 1058 ff); Blackwell v Port Elizabeth Municipality 1978 2 SA 168 (SE) (the
plaintiff failed after she stumbled over the cover of a storm water drain on a sidewalk, fell, and was injured); Butise
v City of Johannesburg 2011 6 SA 196 (GSJ) 202 (see Scott 2013 TSAR 164 ff) (the plaintiff succeeded after he fell
into an uncovered valve chamber on a pavement, sustaining a fracture).
170 Strict application of the “prior conduct” requirement often led to a far-fetched search for a prior positive act in
order to establish liability which resulted in unsatisfactory and conflicting judgments (Van der Merwe and Olivier
31–42; Boberg Delict 210 ff).
171 1957 2 SA 256 (A) 264–265. In this case the defendant was the owner of a fishing fleet. The engine of one of his
boats failed, the boat drifted out on the open sea for nine 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 an action against
the defendant. The majority of the judges still associated themselves with the “prior conduct” requirement laid
down in the Halliwell case. They found that “prior conduct” was present in casu because the defendant created a
potentially dangerous situation by providing the boat and consenting to the fishing run from which he would benefit
financially. Accordingly, a legal duty rested upon the defendant to take steps to rescue the crew of the drifting boat.
172 1963 1 SA 102 (A) 106 109 111–112 116–117 121–122. In this case the applicant applied for an interdict to compel
the respondent, his neighbour who lived further up a river transversing both properties, to take steps to prevent slate
being washed down by the river onto applicant’s land. The court decided that “prior conduct” was not an indispensable
[continued ]
68 Law of Delict
v Quathlamba (Pty) Ltd173 and eventually expressed by Rumpff CJ in Minister van Polisie v
Ewels as follows:174
Certain prior conduct or control of a dangerous object may be a factor in the total matrix of circumstances
of a particular case from which a conclusion of wrongfulness may be drawn, but it is not an essential
prerequisite for wrongfulness. The stage of development appears to have been reached where an
omission is seen as wrongful conduct when the circumstances of the case are such that the omission does
not only elicit moral indignation, but the legal convictions of the community also require the omission to
be regarded as wrongful, and the resulting harm to be compensated by the person who omitted to act in a
positive manner.
In this judgment, the generally accepted view that wrongfulness is in principle determined by the
legal convictions of the community has now been applied to omissions. Different factors (inter
alia, prior positive conduct) may contribute to influencing the conviction of the community that
there was a legal duty on the defendant to act positively to prevent harm in a particular situation.
The defendant acts wrongfully if he fails to perform this duty and loss in fact results.
The emphasis placed on the general reasonableness test does not mean that there is now
uncertainty about when liability for an omission will arise.175 Where a factor such as prior
conduct is present, it will normally indicate the existence of a legal duty so clearly that direct
application of the general reasonableness test will not even be necessary.176 Nevertheless,
exceptional circumstances could possibly occur where, despite the presence of prior conduct,
there is no legal duty.177
________________________
requirement for the existence of a legal duty to act (109) and held that in casu there was no duty upon the respondent to
act positively to prevent loss to the applicant. His omission was therefore not wrongful (cf Van der Merwe and Olivier
38–39; Knobel 2020 THRHR 211). Rumpff JA summarised the court’s approach as follows: “There may be many
circumstances in which prior conduct cannot be found, but which will create a duty to act positively . . . The
circumstances that may lead to such a duty, may differ according to the convictions that prevail in a particular
community at a certain time” (translation) (121).
173 1973 3 SA 69 (A) 82 (translation). In this case the Appellate Division 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. To arrive
at a decision, the court first had to decide whether or not the defendant was under a duty to control the fire. Ogilvie
Thompson CJ held that a mere omission (“an omission stricto sensu”) did not found liability ex lege Aquilia: liability
for an omission is dependent upon the existence of a legal duty to act (80–81). The chief justice was not prepared to
commit himself to the various circumstances which could give rise to a legal duty. With reference to the case under
discussion, he reached the conclusion that 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 (81–82).
174 1975 3 SA 590 (A) 597 (translation). In this case 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 (see, inter alia, Van der Merwe and Olivier 41–42; Boberg Delict 213–214 263–267; Van der Walt and
Midgley Delict 123 ff; Loubser and Midgley Delict 263–264; Brand 2014 Stell LR 453 ff; Scott 2018 TSAR 906–
907; Fagan Aquilian Liability 181 ff 199 ff; Van Rensburg 1976 THRHR 175; Wessels 2020 THRHR 154 ff).
175 According to Amicus Curiae 1976 SALJ 85, the approach laid down in the Ewels case gives too much discretion to
the courts and may result in legal uncertainty (Boberg Delict 266; Scott 1984 THRHR 345; see in this regard also
Smit v Suid-Afrikaanse Vervoerdienste 1984 1 SA 246 (C) in which Van den Heever J, without reference to the
legal position laid down in Ewels, expressed a similar point of view (cf Scott 1984 THRHR 345)). However, there
is no doubt that the approach favoured by the Appellate Division in Ewels is correct (eg Van der Merwe Burger v
Munisipaliteit van Warrenton 1987 1 SA 899 (NC); Rabie v Kimberley Munisipaliteit 1991 4 SA 243 (NC) 258;
Cape Town Municipality v Butters 1996 1 SA 473 (C) 477 479–480; Longueira v Securitas of South Africa (Pty)
Ltd 1998 4 SA 258 (W) 262–263; cf Neethling 1999 THRHR 144).
176 Cf Holm v Sonland Ontwikkeling (Mpumalanga) (Edms) Bpk 2010 6 SA 342 (GNP) 347–348; Butise v City of
Johannesburg 2011 6 SA 196 (GSJ) 202.
177 Eg Knobel 1987 THRHR 483 declares as follows with reference to the judgment of Rumpff CJ in Minister van
Polisie v Ewels 1975 3 SA 590 (A): “The implication is clear that in the ‘total circumstances of a particular case’
there may also be factors other than prior positive conduct that can be taken into account. The deduction can then
be made that in a particular case there may be factors which, in the process of the weighing up of interests, could be
so strongly indicative of the reasonableness of the omission, that the otherwise damning presence of prior conduct
is cancelled thereby. It must immediately be conceded that it is extremely difficult to think of a practical example
where this will indeed be the case. It appears, in any case, that the chief justice in the Ewels case left open the
possibility that such a situation may occur” (translation). Cf, nevertheless, Boberg Delict 266–267, who, after
[continued ]
Any doubt about the applicability of the decision of the Appellate Division in the Ewels case
(that prior conduct is not indispensable for the existence of a legal duty) to the “municipality
cases”,178 was removed by the Supreme Court of Appeal in Cape Town Municipality v
Bakkerud.179 The court held that the legal convictions of the community can even in the absence
of “prior conduct” (or a statutory duty)180 place a legal duty on a municipality to, for instance,
repair roads or sidewalks or to warn against danger. Whether this is the case, depends on the
circumstances and must be determined ad hoc.
5.2.2 Control of a dangerous object181

Control over a dangerous (or potentially dangerous) object or situation (for example fire, long
grass alongside a road exposing the bordering property to a fire hazard, a broken stairway or a
hole in the ground) or person (for example a dangerous criminal)182 can be a factor in
determining whether a legal duty rested on the person in control to prevent someone from being
injured by the particular situation.183
Two relevant questions are: firstly, whether there was actual control and, secondly, whether, in
light of, inter alia, such control, a legal duty rested on the defendant to take steps to prevent
damage resulting from his or her omission to exercise proper control.
________________________
comparing opinions of writers in this regard, reaches the conclusion that the presence of eg prior conduct
undeniably indicates the existence of a legal duty.
178 Cf Boberg Delict 234; supra fns 169 170.
179 2000 3 SA 1049 (SCA) 1059–1060. Here, a woman stepped into a pothole on a pavement and was injured. The
court held that there was a legal duty on the municipality to prevent the plaintiff's harm, taking account of the
following factors: the period of time in which the danger (the pothole) existed, the area where the injuries occurred,
and the resources needed to maintain the pavement in a safe condition (see also Loubser and Midgley Delict 323;
Neethling 2013 THRHR 337–338). See further Van der Merwe Burger v Munisipaliteit van Warrenton 1987 1 SA
899 (NC). However, the last-mentioned judgment is susceptible to an interpretation that a prior commissio has no
part at all to play in our law. Knobel 1987 THRHR 482–483 correctly points out that such a conclusion is not
justified and that “prior conduct” will usually require a legal duty to be placed on a municipality to prevent harm.
Knobel (484) furthermore points out that the court evidently took another factor into account in finding that a legal
duty rested on the municipality to prevent loss to the plaintiff, namely that the municipality was conscious of or
knew of the dangerous conditions before the plaintiff was prejudiced by them (see also infra 73; Rabie v Kimberley
Munisipaliteit 1991 4 SA 243 (NC)). In Van der Merwe Burger the prior commissio and the knowledge of the
dangerous situation probably worked together as two factors in the “total matrix of circumstances” (Ewels case
1975 3 SA 590 (A) 597) pointing towards the wrongful nature of the defendant’s omission (Knobel 1987 THRHR 484).
180 See infra 74–78.
181 Cf in general Loubser and Midgley Delict 265–266; Van der Merwe and Olivier 42–45; Van der Walt and Midgley
Delict 125; Boberg Delict 212; Burchell Delict 43; Fagan Aquilian Liability 180; Neethling and Potgieter 1989
THRHR 263.
(SCA) 400, the following factor (inter alia) played a part in Vivier JA’s finding that the police were under a legal
duty to prevent a dangerous prisoner from escaping and raping and robbing the plaintiff: “[T]he fact that the police
had control over [the prisoner] who was known to be a dangerous criminal and who was likely to commit further
sexual offences against women should he escape.” Cf also Van der Spuy v Minister of Correctional Services 2004 2
SA 463 (SE) (control of dangerous prisoners); Seema v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng
2002 1 SA 771 (T) (control of potentially dangerous mentally-ill patients).
183 Cf Za v Smith 2015 4 SA 574 (SCA) 585 (dangerous property, covered by slippery ice) (cf Scott 2018 TSAR 919);
MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) 82; Potgieter v University of Stellenbosch [2017] 1 All
SA 282 (WCC) para 148; Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 360; HL&H Timber
Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd 2001 4 SA 814 (SCA) 820; Butise v City of Johannesburg
2011 6 SA 196 (GSJ) 202; Holm v Sonland Ontwikkeling (Mpumalanga) (Edms) Bpk 2010 6 SA 342 (GNP) 347–
348; Faiga v Body Corporate of Dumbarton Oaks 1997 2 SA 651 (W) 665; Kritzinger v Steyn 1997 3 SA 686 (C).
In Graham v Cape Metropolitan Council 1999 3 SA 356 (C) 370, Van Deventer J declared: “[A] local authority
which is in control of a dangerous road such as in this case [Chapman’s Peak Drive] is under a duty to warn
intending road users specifically of the nature of the hazard and the risk involved, by special and appropriate road
signs or other means.”
70 Law of Delict
(a) Whether control was present can be deduced from the fact that the defendant had actually
taken control over the (potentially) dangerous situation (such as fire),184 or that the defendant
was the owner or occupier of the (potentially) dangerous object (for example, property with
grass or trees that could help spread fire,185 or a dangerous staircase,186 or a swimming pool187),
________________________
184 See the minority judgment, but one worthy of emulation, by Conradie AJA in Minister of Water Affairs v Durr
[2007] 1 All SA 337 (SCA) 352.
185 See Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 (A) 81–82 where the court based the liability of a
property owner for his failure to control a fire that had already broken out, on the fact that the owner was in control
of the property; see also HL&H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd 2001 4 SA 814 (SCA)
820; cf Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 360; Minister of Water Affairs v Durr
[2007] 1 All SA 337 (SCA) 344; Van der Eecken v Salvation Army Property Co 2008 4 SA 28 (T) 38; Regal v
African Superslate (Pty) Ltd 1963 1 SA 102 (A) 109.
186 Swinburne v Newbee Investments (Pty) Ltd 2010 5 SA 296 (KZD) 303–304.
187 The focus will here be on the question whether, on the one hand, parents, or, on the other, the occupiers of premises
(eg the owner) where a dangerous situation such as the presence of a swimming pool or fishpond exists, are
responsible for the safety of children: see, eg, BS v MS 2015 6 SA 356 (GP) (where a child sustained brain damage
after falling into a fishpond on the defendants’ property) (Neethling 2016 TSAR 798 ff); Stedall v Aspeling 2018 2
SA 75 (SCA) (where a 30-month-old girl was severely injured when she fell into the swimming pool of the defend-
ants whilst under the care and supervision of her mother) (Neethling and Potgieter 2018 (2) LitNet Akademies 496
ff; Scott 2018 TSAR 920 ff); cf CA v GS [2016] 4 All SA 386 (WCC) (Neethling and Potgieter 2017 (1) LitNet
Akademies 389 ff). The courts were unanimous that parents bear the primary responsibility for the safety of their
children. It is their duty to ensure that their children do not wander around on premises where dangers lurk, even
for a very short period, as has happened in both BS and Stedall. It would be socially unacceptable if a parent could
shift the responsibility of looking after his or her child onto the occupier of the property, especially where the
parent knows about the dangerous situation; to hold otherwise, according to Leach JA in Stedall 85 “would be to
expect the host to provide greater supervision than the parent itself” (a conclusion which Scott 2018 TSAR 922
regards as unrealistic). Further, in Stedall 82, the court held that despite the presence of a legal duty on the part of
the homeowner to protect the child, the court did not impose liability on him because, in the light of public and
legal policy, wrongfulness was absent. In BS 362 the court under similar circumstances held that there was, taking
account of s 28(2) of the Constitution (in terms of which a child’s best interests are of paramount importance in
every matter concerning the child) and the boni mores, indeed a legal duty on the homeowners to protect the child,
but they nevertheless escaped liability because of absence of negligence on their part. From these two cases it is
clear that s 28(2) is not absolute but can be limited. In S v M 2008 3 SA 232 (CC) para 26 the court stated that
s 28(2) is not an “overbearing and unrealistic trump” that will automatically override other rights (see also Kruger
in Potgieter, Knobel and Jansen (eds) 271). However, where the occupier (or anyone else) expressly or tacitly
accepted the responsibility to supervise the child, the parents may be released from their duty of care. This seems to
be the position in Van Vuuren v eThekwini Municipality 2018 1 SA 189 (SCA) (Scott 2018 TSAR 919–920), where
a young child was injured when using a municipal beachside pool slide. Parents were not allowed entry to the
facility itself and were therefore unable to control the actions on their children. The court (196) held that there was
a legal duty on the municipality to supervise the children, taking into account their best interests in terms of s 28(2)
of the Constitution (see also Stedall 83–84 where the court agreed with Van Vuuren that, because of the fact that
“there was public access to potentially dangerous places by children who might not be in the custody and care of a
supervising adult”, there is a duty on occupiers to inform visiting parents of small children of the danger, unless the
parents acquire such knowledge by other means). So, if the danger is conspicuous, obvious and easy to avoid, it
should be sufficient to release the occupier of his duty. Where an occupier fails to bring the danger to the attention
of the parents and a child is injured as a result of the dangerous situation, the occupier can in principle be delic-
tually liable (see also Neethling, Potgieter and Roos Neethling on Personality Rights 116í117.) In Bridgman NO v
Witzenberg Municipality 2017 3 SA 435 (WCC) the court had to decide whether the adoptive parents of an 18-
year-old woman (L) with a mental disability (she functioned cognitively at the level of a six- to eight-year-old
child), who was abducted and raped at a holiday resort where she was staying with her parents, had a legal duty to
protect her against the rape. The court held the municipality liable for damages, but found that the parents acted
lawfully because it would have been a transgression of L’s constitutional rights (to freedom of movement,
independence and control over her body) if the parents had a legal duty to supervise L in the circumstances (paras
8í14). However, in our view, L’s vulnerability to exploitation, lack in social skills, judgement and defence
mechanisms, and her having the cognitive development of a six- to eight-year-old child, are clear indications that
she did require some supervision by her parents and that they therefore had a legal duty to protect her. This duty
was breached when they allowed her to wander freely and unsupervised on the playground from where she was
abducted to be raped. The parents thus acted wrongfully as against L (see Neethling and Potgieter 2018 THRHR
329í330).
or that a shop owner had factual control over a shop where customers could slip on slippery
floors,188 or that teachers had control over young children sleeping on bunk beds in a bungalow
with a cement floor,189 or that a public railway carrier had control over a potentially dangerous
situation, because passengers were virtually trapped in compartments while the train was in
motion,190 or from statutory provisions placing control on the defendant.191
(b) The fact that the defendant had control of a (potentially) dangerous object is in itself not
necessarily sufficient to establish a duty to take precautionary measures, but may be a factor in
determining such a duty.192 It is inappropriate to lay down in advance the degree and measure of
control necessary to establish a legal duty. The facts and circumstances of a particular situation
will be decisive in determining whether the defendant should have exercised control, ie, should
have taken steps to prevent damage.193
________________________
188 Avonmore Supermarket CC v Venter 2014 5 SA 399 (SCA) para 16; Holtzhauzen v Cenprop Real Estate (Pty) Ltd
[2020] 1 All SA 767 (WCC) paras 22–24; Lindsay v Checkers Supermarket 2008 4 SA 634 (N) 637; Checkers
Supermarket v Lindsay 2009 4 SA 459 (SCA) 461 (see Gowar 2011 THRHR 682–688); Monteoli v Woolworths
(Pty) Ltd 2000 4 SA 735 (W); Probst v Pick ‘n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W) 200; cf
Chartaprops 16 (Pty) Ltd v Silberman 2009 1 SA 265 (SCA) 274–275; Klassen v Blue Lagoon Hotel and
Conference Centre [2015] 2 All SA 482 (ECG) (slipping on floor of hotel bathroom). In Holtzhauzen para 22 the
court cited the useful summary of the approach to so-called “slip and trip” incidents in places frequented by
members of the public in Probst 200 (and ensorsed by the SCA in Avonmore para 18): “The duty on the keeper of a
supermarket to take reasonable steps is not so onerous as to require that every spillage must be discovered and
cleaned up as soon as it occurs. Nevertheless, it does require a system which will ensure that spillages are not
allowed to create a potential hazard for any material length of time, and that they will be discovered, and the floor
made safe, with reasonable promptitude.” See further Neethling 2009 Obiter 750–753.
189 Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA).
190 See Mahongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) para 17 where the plaintiff, a
passenger on a train, was robbed, beaten and thrown off the train out of an open doorway.
191 According to Olivier AJA in Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 359, s 4 of the Trans-
vaal Road Ordinance 22 of 1957 (“All public roads within the province are under the control and supervision of the
Administrator”) put the defendant “in control” of the road alongside which a fire broke out which eventually caused
damage to the plaintiff’s property. Cf Pro Tempo Akademie CC v Van der Merwe 2018 1 SA 181 (SCA) para 188
where Navsa JA, in a case involving the liability of a school towards a child who was injured on the playground,
took into account s 28(1)(b) of the Constitution which dictates that every child has the right to appropriate
alternative care when removed from the family environment; also Van Vuuren v Ethekwini Municipality 2018 1 SA
189 (SCA) para 28.
192 In Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 359–360, Olivier AJA stated: “It cannot be
denied that the element of control is an important factor in evaluating the wrongfulness question . . . The mere fact
that the appellant had control or supervision over all public roads in the Transvaal in terms of section 4 of the
Ordinance (22 of 1957), in itself does not create delictual liability. Such control and supervision does not impose
any statutory mentioned obligations on the appellant. Much more likely, it indicates permissive powers regarding
traffic regulations and road construction. The fact that the appellant had control and supervision of the particular
road, is a necessary factor to link liability to the appellant, but in itself it is not sufficient. It still has to be asked
whether there was a legal duty to make firebreaks on the sides of the road” (translation). Cf Scott 1995 De Jure 238
ff; Faiga v Body Corporate of Dumbarton Oaks 1997 2 SA 651 (W) 665; Neethling 1997 THRHR 730 733.
193 In Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 360 (cf Knobel 2020 THRHR 210–211). Olivier JA
continued (360–364) that, in the absence of positive conduct creating danger, the mere control over property and
the failure to exercise it, with consequential harm to another, is not per se wrongful. The crucial issue is whether
the precautionary measures (fire-breaks) which the controller should, according to the plaintiff, have taken in order
to prevent the prejudice, can in the circumstances be reasonably and practicably required of him (361). The
underlying philosophy is that a consequence can only be wrongful if, in light of all the circumstances, it can
reasonably be expected of the defendant to act positively and to undertake the proposed preventative measures, the
failure for which he is blamed by the plaintiff. In order to ascertain whether an omission can be considered to be
wrongful, the interests of the parties, the nature of the relationship between the parties and the social consequences
of imposing liability on the defendant must be carefully weighed up. Factors which play an important role in this
regard are, inter alia, the probable or possible extent of the prejudice to others; the degree of risk of such prejudice
eventuating; the interests which the defendant and the community or both have in the act or omission in issue;
whether there were reasonably practiceable measures available to the defendant to avoid the prejudice; what the
[continued ]
72 Law of Delict
It has been held that the occupier of property or a building where (potentially) dangerous
conditions exist has a legal duty to prevent injury to persons, even trespassers, who visit the
premises.194 195 A legal duty may also rest on the owner, occupier or controller of property to
control the fire on such property.196 The same applies to a person in possession of a firearm or
dangerous animal,197 or the police in control of a dangerous prisoner,198 or a teacher in control of
a dangerous learner.199 On the other hand, as indicated, it has been held that the owners of a
private swimming pool or fishpond are not liable where a small child, who is brought onto the
premises in the custody and under the supervision of a parent, is injured when falling into the
pool; it is accepted that the responsibility for the safety of little children rests primarily on the
parents.200
________________________
chances were of the measures being successful; and whether the cost involved in taking such measures was
reasonably proportional to the damage which the plaintiff could suffer. The court held that, considering all the
facts, the objective criterion of reasonableness did not require the making of fire-breaks by the defendant and its
omission was accordingly not unlawful” (364) (cf Scott 1995 De Jure 239).
194 See Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan 2006 6 SA 537 (SCA) 539 (Neethling 2009 Obiter 753–755).
However, in Kritzinger v Steyn 1997 3 SA 686 (C) 699–700, Van der Westhuizen AJ held that as a general rule an
owner was not liable for injury caused by dangerous conditions on his property to persons not lawfully there: the
reason for such a rule was that it could not be reasonably expected of the owner to anticipate the presence of a tres-
passer. However, if in any instance a reasonable person would have anticipated the presence of trespassers, then the
owner had to observe due and reasonable care towards trespassers. It had to be determined, under all the circum-
stances of each case, whether the conduct of the defendant had complied with the standard of the reasonable
person. All the circumstances had to be taken into account, even where the plaintiff was an unlawful trespasser. On
“trespassers”, see Veiera v Van Rensburg 1953 3 SA 647 (T); Van der Walt and Midgley Delict 125. Our law, in
contrast to English law, does not distinguish between classes of visitors. In King v Arlington Court (Muizenberg)
(Pty) Ltd 1952 2 SA 23 (C) 27 it was stated: “But as I shall show directly, our law does not follow that technical
distinctions made by English law between invitees and licensees” (cf Ablort-Morgan v Whyte Bank Farms (Pty) Ltd
1988 3 SA 531 (E) 535). The general rule that one should act with more care towards children than towards adults
(infra fn 201) applies here as well. For examples of dangerous (or potentially dangerous) situations, see King v
Arlington Court (Muizenberg) (Pty) Ltd 1952 2 SA 23 (C) (dangerous stairs and handrail); Wolff v Foto Helga (Pty)
Ltd 1986 1 SA 816 (O) (a broken stair); cf Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 3 SA 531 (E) (an
open car inspection pit in the ground); Oosthuizen v Homegas (Pty) Ltd 1992 3 SA 463 (O) (the decanting of liquid
petroleum gas into small cylinders in an inadequately ventilated strongroom on the premises); Cape Town
Municipality v Butters 1996 1 SA 473 (C) 480 (a narrow, uneven, sloping ledge next to a canal); Van der Walt and
Midgley Delict 125; Van der Merwe and Olivier 42–43.
195 Such a legal duty will be absent if policy considerations clearly militate against it. Tsogo Sun Holdings (Pty) Ltd v
Qing-He Shan 2006 6 SA 537 (SCA) was a case in point. Here the court had to answer the question of whether an
owner or occupier of business premises had a legal duty to protect clients from assault by other clients by, eg,
preventing the latter from carrying weapons on the premises. Harms JA held in the negative (540): “If this were
correct [that is, if such a legal duty did indeed exist], life in this country would become unbearable and the duty cast
on owners and occupiers limitless.” See also Govender v Salgados Fruiters t/a Lyndhurst Fruit Basket 2009 1 SA
500 (W) 508 (Scott 2009 TSAR 758 ff; Neethling 2009 Obiter 754–755).
196 Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 (A) (supra fn 173); Minister of Water Affairs v Durr
[2007] 1 All SA 337 (SCA) paras 18–19; Lubbe v Louw [2006] 4 All SA 341 (SCA) paras 13–17; Steenberg v De
Kaap Timber (Pty) Ltd 1992 2 SA 169 (A) (“[t]he duty to prevent a fire from spreading when you yourself have lit
it is a high one” (181)); Dews v Simon’s Town Municipality 1991 4 SA 479 (C) 485. A well-known case where a
duty to control a fire arises, is the one mentioned in D 9 2 27 9: A makes a fire and B undertakes to take care of it.
B fails to do so properly. The fire spreads and damages C’s property. B is liable. (Of course, B’s conduct must also
satisfy the other requirements for delictual liability, but this does not concern us at present.) This example may also
be classified as a contractual undertaking to ensure the safety of another (infra 81).
197 See, with regard to the possession of a firearm, Maylett v Du Toit 1989 1 SA 90 (T); and, with regard to animals,
Kruger v Coetzee 1966 2 SA 428 (A); cf S v Fernandez 1966 2 SA 259 (A); R v Eustace (2) 1948 3 SA 859 (T).
(Keeping a wild animal gives rise to an irrebuttable presumption of negligence (Bristow v Lycett 1971 4 SA 223
(RA); cf Zietsman v Van Tonder 1989 2 SA 484 (T); Van der Walt and Midgley Delict 125.)
198 Cf Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389
(SCA) 400; see also supra fn 182; infra 84 ff.
199 Jacobs v Chairman, Governing Body, Rhodes High School 2011 1 SA 160 (WCC) 168–169.
200 See Stedall v Aspeling 2018 2 SA 75 (SCA); BS v MS 2015 6 SA 356 (GP), discussed supra 70 fn 187.
If a legal duty exists, injury resulting from the omission to control the dangerous situation is
prima facie wrongful.201 To avoid liability, it has to be clear either that the defendant’s apparent
wrongful omission was lawful (for example, as a result of the presence of a ground of
justification202), or that he had taken reasonable steps to prevent injury (in other words, that he
had not acted negligently203).
It is sometimes difficult to determine whether prior conduct or control over a dangerous object is
present in a particular situation.204 However, it is not essential to make the distinction, because a
legal duty can be inferred from either of the two situations.
5.2.3 Knowledge and foresight of possible harm205

The fact that a person had knowledge or foresight that his omission might cause harm, is
indicative of the unreasonableness and therefore wrongfulness of his conduct. Where a person
was aware of a dangerous situation (for example, a fire206 or a dangerous hole on his land), this
may be a factor in determining whether he had to exercise control over the danger and, conse-
quently, whether a legal duty rested on him to take steps to avert loss. A few examples from case
law will suffice: a municipality was conscious of the fact that a stormwater pipe could be
blocked by debris and that the overflow could damage the plaintiff’s property;207 a municipality
________________________
201 In these instances, courts seldom consider the question of wrongfulness, probably because they assume that it is
present. The investigation mostly entails the question of whether, in the circumstances, the defendant took
reasonable steps to prevent the loss – in other words, whether he acted as a reasonable person – ie, the inquiry into
negligence (see in regard to negligence infra 164). The answer to this question will depend on, inter alia, whether
the defendant knew, or should reasonably have known, about the dangerous situation (Wolff v Foto Helga (Pty) Ltd
1986 1 SA 816 (O) 818; King v Arlington Court (Muizenberg) (Pty) Ltd 1952 2 SA 23 (C) 28; Rabie v Kimberley
Munisipaliteit 1991 4 SA 243 (NC) (the defendant was aware of the malfunctioning traffic light; cf Neethling and
Potgieter 1992 TSAR 322)), and on whether the presence of the injured person was reasonably foreseeable. (The
standard of care which must be exercised by the occupier is influenced by, eg, the probability that children may
enter the premises (Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 3 SA 531 (E) 536; Transvaal Provincial
Administration v Coley 1925 AD 24; Pro Tempo Akademie CC v Van der Merwe 2018 1 SA 181 (SCA) para 21;
Van der Walt and Midgley Delict 124–126).)
202 Infra 106.
203 In cases where a defendant is in possession of a dangerous animal, the court accepts as a matter of course that a
legal duty rests on him to ensure that no one is injured (cf, eg, instances of control of a baboon (S v Fernandez 1966
2 SA 259 (A)) or a fierce dog (R v Eustace (2) 1948 3 SA 859 (T)). The only outstanding question is whether the
defendant failed to act as a reasonable person would (in other words, not negligently; cf infra 164 in regard to
negligence) in order to avert injury to another person arising as a result of the dangerous situation. Consequently,
negligence is discussed only when it has become clear that the defendant acted wrongfully (cf Administrateur,
Transvaal v Van der Merwe 1994 4 SA 347 (A); Scott 1995 De Jure 240). See also Pretoria City Council v
De Jager 1997 2 SA 46 (A). In Kritzinger v Steyn 1997 3 SA 686 (C) the plaintiff sued for damages for injuries
sustained during a visit to a building site at night. It was held that it was not reasonably foreseeable that someone would
visit the building site late at night, and that the defendants were, accordingly, not negligent (see infra 179 fn 162).
204 With regard to prior conduct, see supra 67. Cf Union Government (Minister of Railways and Harbours) v Matthee
1917 AD 688; McKerron Delict 249; Van der Merwe and Olivier 44–45.
205 See Loubser and Midgley Delict 267. This subjective factor also plays a prominent part in determining liability for
pure economic loss: infra 352. It should however be noted that the SCA has now determined in Stedall v Aspeling
2018 2 SA 75 (SCA) para 14 (see also para 21) “that foreseeability of harm, a critical requirement of negligence,
should find no place in the inquiry into wrongfulness” (per Leach JA, with reference to Country Cloud Trading CC
v MEC, Department of Infrastructure Development 2014 2 SA 214 (SCA) para 27 (see Neethling 2015 TSAR 194);
MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) para 18). A distinction should, however, be made
between subjective foreseeability and reasonable foreseeability (see supra 36 49; infra 176; Neethling and Potgieter
2018 JJS 145 ff). See further Nugent 2006 SALJ 560; Scott 2018 TSAR 914–915; Brand 2014 Stell LR 457; Botha
2013 SALJ 171; Knobel 2010 THRHR 115 ff, in Potgieter, Knobel and Jansen (eds) 229 ff. See infra 193 on the
distinction between wrongfulness and negligence.
206 Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 (A) 81 83; Minister of Water Affairs v Durr [2007] 1
All SA 337 (SCA) paras 18–19; Neethling 2011 SALJ 226–228.
207 Van der Merwe Burger v Munisipaliteit van Warrenton 1987 1 SA 899 (NC) 901–902 908; see Knobel 1987
THRHR 484.
74 Law of Delict
knew that a traffic light had not been functioning properly but omitted to repair it, leading to
damage arising from an accident that took place at the relevant crossing;208 a municipality was
aware of the rampant theft of inspection covers in a case where the plaintiff, while jogging, fell
into an uncovered valve chamber situated on a pavement;209 and the police knew of a dangerous
situation (“taxi war”) which threatened the lives of passengers.210
In this regard, the minority decision in Langley Fox Building Partnership (Pty) Ltd v De
Valence211 deserves mention. A (a builder) was working on a building in central Johannesburg.
A obtained the services of a subcontractor, B, to attach a ceiling to a part of the building over-
hanging a public pavement. The plaintiff bumped her head against a beam and suffered serious
injuries. B was responsible for erecting the beam and he failed to put up warning boards to alert
pedestrians to the danger. The Appellate Division found that A, as mandator, had a duty to ward
off the danger because a reasonable person in his position would have taken appropriate steps.212
A was consequently held liable. In a minority judgment, Botha JA disagreed. In his view, the
cardinal question was whether A had been aware of the dangerous situation. Only then would a
legal duty have rested on A to prevent the danger (in a reasonable manner). In casu A had not
been aware of the danger, accordingly a legal duty to act was absent. This approach can be
supported because it was first established whether a legal duty to act at all rested on A (the
question of wrongfulness), whereafter the question of his negligence (the reasonable person test)
was raised.213
5.2.4 Rules of law214

In certain instances, the law (either common law or statute) places an obligation upon a person
to perform certain acts. For example, common law obliges the owner of lower land to provide
lateral support for his neighbour’s land,215 and owners of neighbouring land in local commu-
nities who light controlled fires on their property are obliged to obey certain statutory pre-
cepts.216 If the neighbour suffers damage as a result of their failure to perform this duty, their
conduct is prima facie wrongful.217
________________________
208 Rabie v Kimberley Munisipaliteit 1991 4 SA 243 (NC). Cf Neethling and Potgieter 1992 TSAR 321; Van der Walt
1993 TSAR 747; Butters v Cape Town Municipality 1993 3 SA 521 (C) 528; 1996 1 SA 473 (C).
209 Butise v City of Johannesburg 2011 6 SA 196 (GSJ) 203–204.
210 Mpongwana v Minister of Safety and Security 1999 2 SA 794 (C).
211 1991 1 SA 1 (A).
212 Cf eg Saayman v Visser 2008 5 SA 312 (SCA); Chartaprops 16 (Pty) Ltd v Silberman 2009 1 SA 265 (SCA); see
the discussion infra 445 455–456.
213 Cf also Knobel 1991 THRHR 665–666. In Minister of Community Development v Koch 1991 3 SA 751 (A) 762,
Kriegler AJA appeared to have succeeded in reconciling the majority and minority judgments in Langley Fox (see
Neethling and Potgieter 1992 THRHR 313; see also infra 456). (See in general on the role of the defendant’s
awareness or knowledge concerning wrongfulness, supra fn 68; cf Neethling and Potgieter 1992 TSAR 322–323.)
214 This section should be read in conjunction with para 5.3 (“Breach of a statutory duty”) infra 90. See in general
Loubser and Midgley Delict 266; McKerron Delict 186–187; Van der Merwe and Olivier 47–48; Boberg Delict
212; Burchell Delict 44; Fagan Aquilian Liability 180; The Cape of Good Hope Bank v Fischer (1886) 4 SC 368;
Muller v Government of the Republic of South Africa 1980 3 SA 970 (T); infra 90 for a discussion of the creation of
a legal duty by means of a statutory provision which does not require the presence of an omission. In Macadamia
Finance Ltd v De Wet 1991 4 SA 273 (T) 279, the court considered the position in other legal fields (regarding the
duty of a liquidator in the winding-up of a company) as useful in determining a legal duty in an Aquilian action (cf
Neethling and Potgieter 1992 TSAR 323).
215 Infra 442 fn 106.
216 See s 12 of the National Veld and Forest Fire Act 101 of 1998; see further Van der Eecken v Salvation Army
Property Co 2008 4 SA 28 (T) 38–39.
217 See Van der Eecken v Salvation Army Property Co 2008 4 SA 28 (T) 39. The omission is only prima facie, or
provisionally, wrongful because the defendant may show that a ground of justification is present (see infra 106).
Only when he is unable to do this, can finally be said that he acted wrongfully.
A statutory provision can by implication itself grant a delictual action, or it can justify a con-
clusion that a common law legal duty exists.218 Interpretation of statutes plays a central part
here.219 The statute as a whole, its objectives and provisions, the circumstances under which it
came into existence, and the kind of injustice it is meant to prevent, must be considered.220 A
flexible approach is followed.221 The question of whether it is equitable and reasonable to award
the plainitff a claim for damages or not in view of the non-compliance with a legal provision
must still be asked.222 The conduct will be wrongful, not due to the non-compliance with the
statutory legal duty per se, but rather because it is reasonable in the circumstances to compensate
the plaintiff for the infringement of his right.223 Reasonableness is determined with reference to
the legal convictions of the community and legal policy.224
Taking statutory provisions into account is of particular significance when it must be determined
whether governmental bodies and state institutions are under legal duties to prevent damage.225
If, for instance, a local ordinance compels a divisional council to maintain roads, and the
divisional council fails to do this and someone suffers damage as a result of this omission, the
non-compliance with the statutory provision will be indicative of the wrongfulness of the
omission.226
________________________
218 Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) 1257.
219 Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) 1257; Knop v Johannesburg City Council
1995 2 SA 1 (A) 27 (cf Neethling and Potgieter 1995 THRHR 528); Steenkamp NO v Provincial Tender Board,
Eastern Cape 2006 3 SA 151 (SCA) para 20; Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan
Municipality 2018 1 SA 391 (SCA) para 19; cf Chowan v Associated Motor Holdings 2018 4 SA 145 (GJ) paras 56 ff.
220 Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) 1257 and authority quoted there.
221 Ibid; Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2002 6 SA 180 (C) 192.
222 In this the Constitution also plays a part: Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA)
1257. See also Knop v Johannesburg City Council 1995 2 SA 1 (A) 27; Cape Town Municipality v Bakkerud 2000
3 SA 1049 (SCA); cf Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 2 SA 54 (C) 66.
223 Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) 1257 and authority quoted there; see also
South African Hang and Paragliding Association v Bewick 2015 3 SA 449 (SCA) 460. However, see infra 93 ff for
criticism of the view that wrongfulness can be determined with reference to the reasonableness of holding a person
liable.
224 Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA 391 (SCA) para 19; Steen-
kamp NO v Provincial Tender Board, Eastern Cape 2006 3 SA 151 (SCA) para 21; Olitzki Property Holdings v
State Tender Board 2001 3 SA 1247 (SCA) 1256–1257; Knop v Johannesburg City Council 1995 2 SA 1 (A) 35;
Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2002 6 SA 180 (C) 192–193; Premier, Western
Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13 (SCA) 30 ff.
225 Cf Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA); Beurain h/a Toptrans Transport v Regering van
die Republiek van Suid-Afrika 2001 4 SA 921 (O) 925 (duties on state under legislation in respect of national
roads). Cf also Barley v Moore [2017] 3 All SA 799 (WCC) where the court held that the Department of Social
Development had a legal duty to protect a child who died at a day-care centre, based on its constitutional
and legislative mandate (in terms of the Child Care Act 74 of 1983, the Children’s Act 38 of 2005 and relevant
regulations and guidelines) to regulate, manage and control the provision of early childhood development services
in the province. However, the SCA did not agree (see Western Cape Department of Social Development v Barley
2019 3 SA 235 (SCA)). The SCA (paras 32 ff) confirmed that a statutory duty, as in casu, does not necessarily
translate into a delictual legal duty and that several policy factors must be taken into account to ascertain whether
such a duty is present. In this regard the nature of the functions of a public authority must also be considered (see
also infra 90 ff). The court (para 44) concluded that nothing in the legislative framework on which the plaintiffs
relied was indicative of an intention to create delictual liability for non-compliance with any particular legislative
function. Wrongfulness was thus absent and the claim against the department (second defendant) consequently
dismissed (see Neethling 2019 TSAR 773 ff 777 ff for a discussion of both cases).
226 See McIntosh v Premier, KwaZulu-Natal 2008 6 SA 1 (SCA) 8 (see Scott 2009 TSAR 392 ff ) where it was held
that although an obligation according to public law does not necessarily create a delictual legal duty, s 9(3) of the
KwaZulu-Natal Provincial Roads Act 4 of 2001 explicitly subjects the minister to (delictual) liability for damage
caused by the negligence of an official of the department. In this case officials omitted to repair a pothole as a result
of which the plaintiff suffered damage. See in general Ordinance 18 of 1976 (C) compelling divisional councils in
the former Cape Province to build and maintain roads; Victoria East Divisional Council v Pieterse 1926 EDL 38;
Cremer v Afdelingsraad, Vryburg 1974 3 SA 252 (NC); Van der Merwe and Olivier 48. If, on the other hand, a
governmental body only has permissive powers in respect of the building and maintenance of roads, it will not be
[continued ]
76 Law of Delict
A statutory provision on its own is not necessarily sufficient to ensure the existence of a
legal duty, and is usually considered in interaction with other factors to determine the
wrongfulness or otherwise of an omission in a given case.227 Thus, the courts have, inter alia,
taken account of provisions of the former Police Act,228 the South African Police Service Act,229
________________________
liable for damage caused due to its failure to build or maintain roads purely on the strength of the permissive
legislation alone (Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 360–361 (cf Scott 1995 De Jure
234; Brand 2014 Stell LR 459–460); Blackwell v Port Elizabeth Municipality 1978 2 SA 168 (SE)). Naturally the
existence of a legal duty may in such an instance be apparent from other circumstances, eg if a municipality had by
its operations created a new danger or source of danger (supra 67). In Administrateur, Transvaal v Van der Merwe
1994 4 SA 347 (A) 359 ff Olivier AJA considered the role of s 4 of the Transvaal Road Ordinance 22 of 1957 in
creating a possible legal duty to prevent the onset and spreading of fire along a public road. Although the provision
places control and supervision of the roads on the Administrator (defendant), it is of a mere permissive nature and it
does not create a duty, eg, to make firebreaks or to take other preventative measures. In other words, in itself
control and supervision in terms of s 4 does not create delictual liability, but is a factor in establishing liability on
the part of the defendant (360; cf Knobel 2020 THRHR 211–212). Scott 1995 De Jure 238 points out that Olivier
AJA utilises two interacting factors, control of a dangerous object and legal provisions, in search of a legal duty to
act. Cf Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA); Beurain h/a Toptrans Transport v Regering
van Suid-Afrika 2001 4 SA 921 (O) 925; Bhana and Samaradiwakera-Wijesundara 2018 Stell LR 446 ff on when
public-law duties translate into private-law duties. See further supra 69 74.
227 Sometimes it is said that “something more” than mere non-compliance with a statutory obligation (such as mala
fides or an ulterior purpose) is needed (see Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan
Municipality 2018 1 SA 391 (SCA) paras 19 ff 24 27; see also infra 84 ff.
228 7 of 1958. In Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4
SA 938 (CC) the applicant was viciously assaulted by a person awaiting trial but out on bail. The applicant argued
that there was a duty upon the investigating officer and state prosecutors to ensure that the attacker did not get bail
and stayed in captivity. Both the court a quo and the SCA (cf Carmichele v Minister of Safety and Security 2001 1
SA 489 (SCA)) decided that the police and the prosecutors did not act wrongfully because in the circumstances
there had been no legal duty upon the police officer or prosecutors to protect the applicant. The applicant appealed
to the CC. The court decided (954–955 956) that both courts incorrectly accepted that the pre-constitutional test for
determining wrongfulness of an omission in delictual cases had to be applied, and neglected to reconsider the test in
light of s 39(2) of the Constitution, 1996, which provides that every court must promote the spirit, purport and
objects of the Bill of Rights when developing the common law (955). When determining whether a legal duty to act
rested upon the police, the interests of the parties and the conflicting interests of the community had to be weighed.
The court continued (957): “This is a proportionality exercise with liability depending upon the interplay of various
factors. Proportionality is consistent with the Bill of Rights, but that exercise must now be carried out in accordance
with the ‘spirit, purport and objects of the Bill of Rights’ and the other relevant factors must be weighed in the
context of a constitutional state founded on dignity, equality and freedom and in which government has positive
duties to promote and uphold such values”, and declared (961): “The influence of the fundamental constitutional
values on the common law is mandated by section 39(2) of the Constitution. It is within the matrix of this objective
normative value system that the common law must be developed.” According to the court both the interim Con-
stitution, 1993 (s 215) and the Police Act 7 of 1958 (s 5) contain provisions placing duties on members of the
police force to prevent crime (963 ff), and a duty rested upon prosecutors to place relevant information concerning
the question of whether bail should be allowed or not before the court (967–968). Seen from the perspective of the
constitutional provisions protecting the rights of individuals, and the duty on South Africa in terms of international
law to grant particular protection to women and children from infringement of their fundamental rights by violent
crime (964–965), the court a quo should not have given absolution of the instance. The case was accordingly
referred back to the High Court for the trial to continue. (See Fagan Undoing Delict viii 47, 2018 SALJ 650 who
criticizes the CC’s judgment. He also objects to, what he regards as a “spin-off” of this judgment, the creation of
the so-called “norm of public accountability” on the ground that “it involved an unacceptable instrumentalisation of
public officials”).
After considering the matter afresh, the trial court held the state liable (Carmichele v Minister of Safety and
Security 2003 2 SA 656 (C)), and an appeal to the SCA was dismissed. The Carmichele saga ended, therefore, with
the judgment of Harms JA in die second Carmichele decision in the SCA, Minister of Safety and Security v
Carmichele 2004 3 SA 305 (SCA) (see Neethling 2005 TSAR 402 for an analysis of the judgment). In respect of
wrongfulness, the SCA held that both public-law and private-law duties rested on the state to prevent the violence
against the plaintiff (320–322). Breach of the private-law duty could found a delictual claim if the plaintiff, as
indeed in casu, had no other effective remedy against the state. There were no considerations of public policy that
could suspend the accountability of the state and deny the plaintiff her action. Apart from the constitutional
imperatives indicative of the legal duty on the state to protect the physical-mental integrity of its citizens, the court
[continued ]
the former Weapons and Ammunition Act230 (now the Firearms Control Act231), the Regulation
of Gatherings Act,232 the Domestic Violence Act,233 the National Health Act,234 the Immigration
________________________
relied on, inter alia, two common law factors to confirm its conclusion in respect of wrongfulness: first, that the
relevant state officials knew or foresaw that the plaintiff could be assaulted while the wrongdoer was free pending
his trial (324), and second, that a special relationship existed between the relevant state officials and the plaintiff.
Furthermore there was no indication that burdening the state with the legal duty in casu would not serve the public
interest (ibid; see Neethling 2005 TSAR 402 for a discussion). For further examples of the applicability of s 5 of the
(now repealed) Police Act 7 of 1958, see Minister van Polisie v Ewels 1975 3 SA 590 (A) 596 and Nkumbi v
Minister of Law and Order 1991 3 SA 29 (E).
In Kadir v Minister of Law and Order 1992 3 SA 737 (C) 739–740 the police failed to record the necessary
information relating to the driver and the identity of the vehicle at the scene of a motor-car accident. Conradie J
held that a policeman’s statutory duty to investigate an offence or alleged offence laid down by s 5 of the (repealed)
Police Act 7 of 1958 simpliciter could not in law give rise to a legal duty to act in delict; the duties stated in s 5 are
not exhaustive and the duty on a policeman also flows from non-statutory duties created by the conceptions prevailing
in a particular community at a particular time (740). In view of this, the court held that a delictual duty rested upon the
police in this case.
However, the Appellate Division did not agree. In Minister of Law and Order v Kadir 1995 1 SA 303 (A) 317
Hefer JA confirmed that although the statutory duty to investigate in terms of s 5 of the Police Act 7 of 1958 was a
“relevant consideration” (319), it did not carry the same weight in this case as in Ewels; there was, according to the
court, a marked difference between Ewels and this case (319 321). The failure of the police to record particulars of
the identity of the driver and his vehicle, did not constitute an infringement of a duty towards the plaintiff:
“Viewing the matter objectively, society will take account of the fact that the functions of the police relate in terms
of the Act to criminal matters and were not designed for the purpose of assisting civil litigants . . . Bearing this in
mind society will baulk at the idea of holding policemen personally liable for damages arising from what was a
relatively insignificant dereliction of duty” (321–322; see also Minister of Safety and Security v Rudman 2005 2 SA
16 (SCA) 38–39, discussed in fn 296 infra). Cf, nevertheless, critical discussions of the decision in the Kadir
appeal case by Scott 1995 De Jure 158; Neethling and Potgieter 1996 THRHR 333; Burchell 1995 SALJ 211.
229 68 of 1995. In Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T), the police assured the plaintiff
that the vehicle he wanted to buy had not been stolen, and omitted to inquire about the car to determine whether it
in fact had been stolen. Later it transpired that the car had indeed been stolen, and the plaintiff suffered damage
which he wanted to recover from the police. Van Dyk J held that the police was liable for the plaintiff’s damage. To
determine the functions of the police in general, the court consulted s 13 of the South African Police Service Act 68
of 1995 as well as s 205(3) of the Constitution, 1996. The court confirmed that statutory duties were just a factor to
be considered when determining whether the police had a legal duty, but decided that in the specific case there was
a legal duty upon the police to supply the correct information to the plaintiff. Looked at closely, one is dealing with
a negligent misrepresentation here: see infra 357. The following factors were, inter alia, relevant to the finding that
a legal duty was present (1058–1060): the plaintiff approached the police for help specifically to ascertain whether
the car had been stolen; the police were the only real experts who could determine whether a car had been stolen; it
was the specific function of the particular police unit to investigate, uncover and try to prevent theft (of motor cars);
for an expert the investigation to determine whether the car had been stolen was relatively simple; the relevant
police officer knew that a physical examination of the car was essential, but did not do it or have it done. See
further Mpongwana v Minister of Safety and Security 1999 2 SA 794 (C); cf Scott 1999 De Jure 340 342.
230 75 of 1969. In Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) Van Duivenboden (X)
possessed two firearms. He often abused alcohol, became aggressive, and mistreated his family while under the
influence. During one of these episodes X and his wife got involved in an argument. X loaded both firearms, and
fired a number of shots, killing his wife and his daughter and wounding Y. The police had known – before this
episode – that X should not have possessed firearms, since they had on two occasions been called out to defuse X’s
threats against his family. Furthermore, X’s wife had on occasion told the police that he was incompetent to possess
firearms. Y instituted a delictual claim against the police on the ground that the police had negligently failed to take
reasonable steps in terms of their statutory duty under s 11 of the Act to deprive an incompetent person (X) of his
firearms. Y’s claim was rejected by a single judge, but was allowed on appeal to a full bench and confirmed by the
SCA. (See also Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) where the police, because of their
failure to properly screen an application for a firearm licence, breached their statutory duty not to issue a firearm
license to a person suffering from serious psychological disturbance; Minister of Safety and Security v De Lima
2005 5 SA 575 (SCA) 579 ff; cf Minister of Safety and Security v Madyibi 2010 2 SA 356 (SCA) 359 where a
policeman committed suicide with his service pistol in circumstances where the police had breached their legal
duty to confiscate the firearm; Botha v Minister van Veiligheid en Sekuriteit 2003 6 SA 568 (T) 574–577 581–
582 585 where a policeman was overpowered and dispossessed of his service pistol by a suspect in circumstances
where the policeman breached his duty in terms of standing orders to have handcuffs and a fellow policeman with
him.)
78 Law of Delict
Act,235 constitutional provisions236 and other legal provisions237 as factors in inquiries whether a
legal duty rested on the police (or other public institutions, such as state tender boards238 or
railway carriers239) to prevent members of public from suffering damage, in other words, the
question of whether delictual wrongfulness was present or not.
________________________
231 60 of 2000.
232 205 of 1993. Cf the duty of the police under s 9(1)(f) of the Act to take reasonable steps to protect people and
property during a demonstration or meeting (cf Mpongwana v Minister of Safety and Security 1999 2 SA 794 (C)
804).
233 116 of 1998. See Minister of Safety and Security v Venter 2011 2 SACR 67 (SCA) (Scott 2012 THRHR 288);
Naidoo v Minister of Police [2015] 4 All SA 609 (SCA).
234 61 of 2003. S 25(2)(m) of this Act provides that emergency medical service should be provided and coordinated
(see Oppelt v Department of Health, Western Cape 2016 1 SA 325 (CC) para 56; Daniels v Minister of Defence
2016 6 SA 561 (WCC) para 175).
235 See Minister of Home Affairs v Rahim 2016 (3) SA 218 (CC). See for a discussion Scott 2017 TSAR 371 ff.
236 Eg s 187 of the Constitution, 1996 (Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA)). In
this case Cameron JA declared (1258): “[I]n determining whether a delictual claim arises from breach of a statute
the fact that the provision is embodied in the Constitution may (depending on the nature of the provision) attract a
duty more readily than if it had been in an ordinary statute.” See also Van Eeden v Minister of Safety and Security
(Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 396 ff 400 where Vivier JA relied inter alia
upon constitutional imperatives in determining the presence of a legal duty on the police to act positively; Ntsele v
MEC for Health, Gauteng Provincial Government [2013] 2 All SA 356 (GSJ) and Oppelt v Department of Health,
Western Cape 2016 1 SA 325 (CC) para 55 (cf also Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA
765 (CC) paras 20 51) where a statutory duty to provide health care in terms of s 27 of the Constitution was
indicative of a delictual duty. Cf Pro Tempo Akademie CC v Van der Merwe 2018 1 SA 181 (SCA) para 188 where
Navsa JA, in a case involving the liability of a school towards a child who was injured on the playground, took into
account s 28(1)(b) of the Constitution which dictates that every child has the right to appropriate alternative care
when removed from the family environment and Van Vuuren v Ethekwini Municipality 2018 1 SA 189 (SCA) para
22 where, in a case where a child was injured whilst using the slide facility at a municipal swimming pool, the same
justice stated that s 28(2) of the Constitution, which provides that “[a] child’s best interests are of paramount
importance in every matter concerning the child”, is “a constitutional norm that must be taken into account in
determining whether a duty ought to be imposed”. See also Stedall v Aspeling 2018 2 SA 75 (SCA) paras 22 25.
See further supra 42 and infra 84 ff on the influence of the Constitution on the determination of wrongfulness.
237 See Macadamia Finance Ltd v De Wet 1991 4 SA 273 (T) 279 where the legal duties resting upon a liquidator in
terms of commercial law principles were found useful in determining a legal duty for the purpose of Aquilian
liability (cf Neethling and Potgieter 1992 TSAR 323). See also Botha v Minister van Veiligheid en Sekuriteit 2003 6
SA 568 (T) 574–577 581–582 585 and Minister of Safety and Security v Hamilton 2004 2 SA 219 (SCA) 231 ff 235
(fn 230 supra) where inter alia standing orders, regulations and special service orders were taken into account in
determining the existence of legal duties upon members of the police. See also Imvula Quality Protection (Pty) Ltd
v Loureiro 2013 3 SA 407 (SCA) 418–419 (as regards the legal duty on private industry security officers to act in
accordance with the provisions of the Code of Conduct for Security Service Providers, 2003; cf Scott 2014 De Jure
374 ff).
238 In cases involving irregular tender procedures, the rule is that state officials as adjudicators of disputes involving
competing tenders, for compelling public considerations do not have a legal duty to comply with administrative
procedures to avoid pure economic loss for unsuccessful tenderers even if they acted negligently, as long as their
conduct was bona fide. But where the loss of a tender contract was brought about by dishonesty or fraud on the part
of the public officials concerned, their conduct would be wrongful (see Steenkamp NO v Provincial Tender Board,
Eastern Cape 2007 3 SA 121 (CC) 144 (2006 3 SA 151 (SCA) 162–163 169); South African Post Office v De Lacy
2009 5 SA 255 (SCA) 256–258; Minister of Finance v Gore NO 2007 1 SA 111 (SCA) 139; cf Olitzki Property
Holdings v State Tender Board 2001 3 SA 1247 (SCA) 1256–1258; see also Moniel Holdings (Pty) Ltd v Premier
of Limpopo Province [2007] 3 All SA 410 (T); Darson Construction (Pty) Ltd v City of Cape Town 2007 4 SA 488
(C); see Neethling 2013 THRHR 335.
239 See Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) paras 17–22 where Mogoeng CJ
accepted that the defendant, a public rail carrier, had a legal duty to protect passengers from suffering physical
harm while using their transport services. This duty arose from the existence of a relationship between carrier and
passenger and it also stemmed from public law obligations (para 20). Moreover, the defendant had control over a
potentially dangerous situation, because passengers were virtually trapped in compartments while the train was in
motion (para 17). This strengthens the contention that the breach of those duties was wrongful in the delictual sense
and could attract liability for damages (para 20). The judge stated that to conclude that an omission, particularly in
relation to public-law duties, was wrongful, and to impute delictual liability, is an exacting exercise requiring a
reflection on various important factors. Some of these are “whether the operating statute provides for a delictual
[continued ]
5.2.5 A special relationship between the parties240

In certain instances, the existence of a special relationship between the parties may be an
indication that the one party had a legal duty towards the other to prevent harm. The existence of
a contractual relationship may indicate such a legal duty.241 Other examples are the relationship
between a policeman and a citizen,242 an officer of the law or a warden and a prisoner,243 an
employer and an employee,244 a parent and a child,245 a doctor and a patient,246 a municipality
________________________
claim for damages; whether the legislation's scheme is primarily about protecting individuals or advancing public
good; whether the public power conferred is discretionary; whether the imposition of liability for damages is likely
to have a ‘chilling effect’ on the performance of government functions; whether the loss was foreseeable; and
whether alternative remedies such as an interdict, review or appeal are available to the claimant” (para 22). He
ultimately emphasised that breach of a public-law duty is but one of the factors underpinning the development in
the private law of delict to recognise a new form of wrongfulness (para 28). (See also Scott 2016 THRHR 551 ff;
Knobel 2020 THRHR 209 ff for discussions.)
240 See in general Loubser and Midgley Delict 266; McKerron Delict 23; Van der Merwe and Olivier 45–46; Van der
Walt and Midgley Delict 125; Boberg Delict 212; Fagan Aquilian Liability 180.
241 Cf Cathkin Park Hotel v JD Makesch Architects 1993 2 SA 98 (W) 100: “The duty . . . arose in relation to
obligations assumed by the defendants pursuant to a contractual relationship”; Joubert v Impala Platinum Ltd 1998
1 SA 463 (B); Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N); Bayer
South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 575; cf Neethling and Potgieter 1992 THRHR 313; Van der
Merwe and Olivier 46; Davel 1979 THRHR 214. (Van der Merwe and Olivier and Davel express their surprise that
in the Greenfield decision, which was reached after Minister van Polisie v Ewels 1975 3 SA 590 (A) 596–597, the
court found that liability for an omission may correctly be considered exceptional. However, in Ewels Rumpff CJ
expressly stated that as a general rule liability does not flow from an omission: “As premise, it is accepted that in
general there is no legal duty on a person to prevent someone else from suffering damage, even if such a person
could easily have prevented the damage occurring and even if it could have been expected from such a person, on
purely moral grounds, to actually act in order to prevent the damage” (596) (translation). In other words, liability on
the basis of an omission may indeed correctly be regarded as exceptional.) In Van der Bijl v Featherbrooke Estate
Home Owners’ Association (NPC) 2019 1 SA 642 (GJ) the plaintiffs resided on the Featherbrooke Estate. One
evening robbers gained access to the Estate and the plaintiff’s home where they were assaulted and sustained
injuries. They brought an action against the Association on the basis that it had a legal duty to protect them. The
court (paras 10í12) stated that to accertain whether this was so, is determined by reference to the resonant
formulation: the legal convictions of the community, which has been rendered as the general criterion of reason-
ableness, based on considerations of morality and policy. The court is required to exercise a value judgment
embracing all relevant facts and involving considerations of policy. After examing all relevant considerations
(paras 17 ff), the court (para 40) concluded that “absent an agreement between the Association and its members as
to the liability of the Association to protect those residing on the Estate, I can see no basis for holding that the
Association assumed a duty to protect or that the law requires that the Association is so burdened”.
242 Minister van Polisie v Ewels 1975 3 SA 590 (A); cf Mpongwana v Minister of Safety and Security 1999 2 SA 794
(C) (Scott 1999 De Jure 340; Neethling 2000 THRHR 150); Dersley v Minister van Veiligheid en Sekuriteit 2001 1
SA 1047 (T); cf Saaiman v Minister of Safety and Security 2003 3 SA 496 (O) 505 ff; Minister of Safety and
Security v Carmichele 2004 3 SA 305 (SCA); Neethling 2005 TSAR 402.
243 Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 170–171; Minister of Correctional Services v Lee
2012 3 SA 617 (SCA) 624–625; Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 529;
Minister of Safety and Security v Craig [2010] 1 All SA 126 (SCA) 137; Jaftha v Honourable Minister of
Correctional Services [2012] 2 All SA 286 (ECP) para 19; B v Minister of Correctional Services 1997 2 All SA
574 (C) 587; Mtati v Minister of Justice 1958 1 SA 221 (A); McKerron Delict 23–24; Van der Merwe and Olivier
46.
244 Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 2 SA 256 (A); McKerron Delict 24. Also the relationship
between auditor and client: cf Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 397–
398.
245 As a result of the relationship between parent and child, a parent is in certain circumstances under a legal duty to
prevent his child from committing a delict (De Beer v Sergeant 1976 1 SA 246 (T) 251; see Potgieter 2008 THRHR
331 ff).
246 See, eg, Oppelt v Department of Health, Western Cape 2016 1 SA 325 (CC) 343í344 (see Kleyn and Zitzke in
Kuschke and Cornelius (eds) 32í35); Life Healthcare Group (Pty) Ltd v Suliman 2019 2 SA 185 (SCA) 189. See
infra 80 for a discussion of the relationship between doctor and patient.
80 Law of Delict
and a member of the public,247 and between public carrier and passenger.248 However, a special
relationship is not an indispensable requirement for the existence of a legal duty.249
There is some doubt whether such a relationship is in itself sufficient to give rise to a legal
duty.250 It is not clear in what circumstances a particular relationship between parties will in fact
give rise to a legal duty. A legal duty should, for example, rest upon the owner of a dynamite
factory towards his employees who are injured by an explosion, and upon the transport services
towards passengers who are injured in a train accident.251 However, in these examples, the legal
duty does not arise merely from the special relationship between the parties concerned, but also
from the particular circumstances present (such as the potential seriousness of the damage that
may occur). Therefore, to determine whether a legal duty to prevent damage exists, each case
must be measured against the boni mores criterion in the light of all the circumstances, including
the special relationship between the parties.
As to the relationship between a doctor and a patient, special attention should be given to the
actions for wrongful conception (an action for damages by the parents of a normal child born as
a result of a failed sterilization or abortion performed by a medical doctor), wrongful birth (an
action by the parents of a disabled child where a physician failed to inform the parents before its
birth of the disability), and especially wrongful life (an action instituted under similar circum-
stances by the disabled child) have received the attention of our courts. The first two actions are
mainly concerned with the patrimonial loss of the parents (cost of pregnancy, child-birth and of
bringing up the child) and have been recognised in our law.252 As regards the action for wrongful
life, the following: First of all, the name of the action is problematic. The legal issue is not the
“wrongful life” of the child – a child’s life can of course never be wrongful – but whether the
law should allow a child to claim compensation for a life with disability. It is submitted that the
name of the action for wrongful life should be replaced by the action for wrongful suffering as a
result of disability.253 If a deformed or injured child is born alive, although his mere existence is
not regarded as damage – no person has a right to non-existence – he should be able to claim
damages for the infringement of his physical integrity. In H v Fetal Assessment Centre254 the
________________________
247 Butise v City of Johannesburg 2011 6 SA 196 (GSJ) 202.

248 Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) para 20 (Scott 2016 THRHR 551 ff).
Mogoeng CJ accepted that the defendant, as a public carrier, had a legal duty to protect passengers from suffering
physical harm while using its transport services. This is true of taxi operators, bus services and the railways. This
duty arose from, inter alia, the existence of a relationship between carrier and passenger, ususally, but not always,
based on contract.
249 “The requirement of a special relationship between a plaintiff and defendant as an absolute prerequisite for
imposing a legal duty can, in the light of the State’s constitutional imperatives . . . no longer be supported. To do so
would mean that the common law does not adequately reflect the spirit, purport and objects of the Bill of Rights . . .
It should not be regarded as anything more than one of several factors to be considered in deciding the
reasonableness of an omission to prevent violent conduct” (per Vivier JA in Van Eeden v Minister of Safety and
Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 400. In view of this clear
declaration of the SCA, the emphasis placed on the indispensability of a “special relationship” in Saaiman v
Minister of Safety and Security 2003 3 SA 496 (O) 505 ff can be criticised (see Neethling and Potgieter 2004
THRHR 494–495; Carpenter in Essays to Marinus Wiechers 151; Pieterse 2002 SALJ 37). A special relationship is
only one of several factors that can play a part in determining the existence of a legal duty (see Neethling and
Potgieter 2002 THRHR 277, 2004 THRHR 494; Minister of Safety and Security v Carmichele 2004 3 SA 305
(SCA) 324; Neethling 2005 TSAR 402).
250 Cf Bedford v Suid-Kaapse Voogdy Bpk 1968 1 SA 226 (C) 230; Van der Merwe and Olivier 46; Van der Walt and
Midgley Delict 87.
251 These examples are taken from McKerron Delict 23–24; Van der Merwe and Olivier 45.
252 See Administrator, Natal v Edouard 1990 3 SA 581 (A); Mukheiber v Raath 1999 3 SA 1065 (SCA); Premier,
KwaZulu-Natal v Sonny 2011 3 SA 424 (SCA) 433; Sonny v Premier, KwaZulu-Natal 2010 1 SA 427 (KZP) 437.
253 Neethling 2016 THRHR 535; Neethling and Potgieter 2015 (2) Litnet Akademies 365; Britz and Slabbert 2015
THRHR 577 578 582; Boezaart 2015 Stell LR 402.
254 2015 2 SA 193 (CC); see for discussions Neethling 2016 THRHR 538 ff; Neethling and Potgieter 2015 (2) LitNet
Akademies 364 ff. Boezaart in Potgieter, Knobel and Jansen (eds) 93 ff, 2015 Stell LR 399 ff supports the child’s
[continued ]
Constitutional Court held that the action may potentially be found to exist for patrimonial
damages provided that all delictual requiremnts are present.255 As to wrongfulness, the core
question is whether the doctor had a legal duty to discover the disability and inform the parents
of the fetus’s impairments.256 However, the court257 did not wish to express itself on whether
non-patrimonial harm such as pain and suffering and loss of amenities of life may be com-
pensated. It is submitted that a claim for such damages should also be allowed in principle. The
latter claim would be for possible personality harm related to the child’s physical integrity but
not caused by bodily injury, in other words for “pure” pain and suffering. The claim should not
be denied because the child did not suffer any infliction of bodily injury. This would give an
unreasonable preference to the requirement of bodily injury over the reality of a child’s life with
(sometimes extreme) physical and mental disabilities. This is especially a situation where in
terms of section 28(2) of the Constitution a child’s best interests are of paramount importance.
The common law should therefore be developed to cater for the extension of the application of
the action for pain and suffering in this regard.258
5.2.6 A particular office259

Sometimes the person’s occupation or the office he holds places a legal duty upon him to
conduct himself in a particular manner in relation to the public or certain people. In Macadamia
Finance Ltd v De Wet,260 the defendants, who were liquidators, inter alia, failed to insure the
assets of the first plaintiff, a company under their control. The court stated that “the office held
by a person sometimes places a legal duty upon him to act in a certain manner towards the
public or specific persons”.261 Such a duty existed in casu and the defendants’ breach of that
duty rendered them liable for the first plaintiff’s resultant loss.262
5.2.7 Contractual undertaking for the safety of a third party

Where A enters into a contract with B in which A undertakes to take steps to ensure the safety of
C, A is placed under a legal duty towards C. If A then fails to take those steps and C suffers
damage as a consequence, the legal duty is violated and A acts wrongfully in relation to C. This
________________________
action and avers that the “principles of the law of delict are able to accommodate the claim perfectly” (422).
Mukheiber in Potgieter, Knobel and Jansen (eds) 345 ff submits that the CC erred in allowing the child’s claim only
in the absence of a claim by the parents. Van Loggerenberg 2017 SALJ 162 183 and Rabie 2016 (1) LitNet Akade-
mies 502 ff remain opposed to the recognition of a wrongful-life claim. See further Pienaar 2016 (19) PELJ 16 ff;
Chürr 2015 Obiter 745 ff, 2009 THRHR 168; Human and Mills 2010 Stell LR 67 ff; Van Niekerk 2012 Stell LR 527
ff; Giesen 2009 THRHR 257 ff. See also Dirix in Potgieter, Knobel and Jansen (eds) 148–149 on the position in
certain European systems and Reid in Potgieter, Knobel and Jansen (eds) 385 ff on so-called “reproductive rights” –
“the right to choose when, or when not to, have a child”, and claims for “wrongful pregnancy” and “wrongful birth”;
Neethling, Potgieter and Roos Neethling on Personality Rights 38í39.
255 Contra Stewart v Botha 2008 6 SA 310 (SCA); Premier, KwaZulu-Natal v Sonny 2011 3 SA 424 (SCA) 433;
Friedman v Glicksman 1996 1 SA 1134 (W); Blackbeard 1996 THRHR 711–715; Pearson 1997 SALJ 91 ff; cf
Mukheiber v Raath 1999 3 SA 1065 (SCA) 1068.
256 See paras 67í73.
257 Para 77.
258 See Neethling, Potgieter and Roos Neethling on Personality Rights 38í39 117í118.
259 See in general Loubser and Midgley Delict 267; Van der Walt and Midgley Delict 125; Van der Merwe and Olivier
47; Boberg Delict 212; Burchell Delict 44.
260 1991 4 SA 273 (T); cf Neethling and Potgieter 1992 TSAR 321.
261 278 (translation).
262 280. In establishing the duty, De Villiers J also relied on the duty placed on liquidators in mercantile law, and on
the legal convictions of the community (279–280). The court referred to The Cape of Good Hope Bank v Fischer
(1886) 4 SC 368 where a Registrar of Deeds failed to register the plaintiff’s bond. There the court decided that on
account of his public office, the registrar had a legal duty to register the bond. His failure to do so rendered him
liable for the plaintiff’s loss. (Liability of the Registrar of Deeds is presently regulated by s 99 of the Deeds
Registries Act 47 of 1937; cf Van der Merwe and Olivier 47 fn 43.)
82 Law of Delict
explains why an appointed lifesaver has a legal duty to rescue swimmers at a swimming pool or
a beach.263
Related situations, but where no contractual undertaking existed as to the safety of third parties
(clients of a business who may be injured on a slippery floor and the owner of trucks parked on a
secured construction site) can be found in Chartaprops 16 (Pty) Ltd v Silberman264 and Viv’s
Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security265 respect-
ively. In the first case, a contractual relationship existed between cleaning services and a retail
business, and in the second case between a security firm and a construction company. The
crucial question in both cases was whether, notwithstanding the existence of exclusion of
liability clauses as against third parties in the contracts, there was nevertheless a legal duty on
the cleaning and security services to protect the interests of the shoppers and the truck owner. In
Chartaprops the court answered this question in the affirmative.266 This view was also supported
in Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd267 where Van Zyl J stated that the
“community’s sense of justice, equity and reasonableness will undoubtedly be offended by stric-
tures placed on delictual liability towards third persons, simply because the contract limits the
contractual liability of the parties inter se”. In contradistinction, the court in Viv’s Tippers held,
incorrectly in our view, that there was no legal duty on the security firm to prevent the theft of
the plaintiff’s truck, mainly because of the exclusion of liability towards third parties, and also
because the imposition of such a duty would lead to limitless liability.268
________________________
263 This category was first identified and described by Boberg Delict 212 225 260. Cf S v Chipinge Rural Council
1989 2 SA 342 (ZS). It also explains the liability imposed in SAR & H v Estate Saunders 1931 AD 276. The rail-
way service (defendant) left its trailer with A to enable A to unload goods. After the goods were unloaded, A
pushed the trailer to the side of the street and, in accordance with the normal arrangement, telephoned the defendant
and told him that the trailer could be collected. The defendant undertook to have the trailer collected, but failed to
do so. As a result the trailer was left overnight protruding into the street without lights. The plaintiff’s bus collided
with the trailer. The claim against the defendant for the ensuing damage succeeded. The court established “prior
conduct” in that the defendant allowed the trailer to be left without control in the street on the understanding that it
would be collected. This prior conduct was directly related to the failure to have it collected. Although one could
indeed base a legal duty on this ground (cf Boberg Delict 224), it is, according to Boberg 225, more satisfactory to
deduce the legal duty from the “contractual assumption of responsibility for the safety of a third party”. Cf in this
regard Blore v Standard General Insurance Co Ltd 1972 2 SA 89 (O): In terms of a contract between a garage and
the owner of a car, the garage accepted responsibility for the safety of the car’s steering mechanism. Out of this
agreement flowed a legal duty upon the garage towards X, the plaintiff and the third-party insurer of the car, who
might have suffered loss if the garage failed to fulfil its obligation towards the owner of the car. Cf further
Neethling and Potgieter 1992 THRHR 313; Faiga v Body Corporate of Dumbarton Oaks 1997 2 SA 651 (W)
(Neethling 1997 THRHR 730 734); Longueira v Securitas of South Africa (Pty) Ltd 1998 4 SA 258 (W) (Neethling
1999 THRHR 144).
264 2009 1 SA 265 (SCA).
265 2010 4 SA 455 (SCA).
266 In Chartaprops 16 (Pty) Ltd v Silberman 2009 1 SA 265 (SCA) 285–286 Ponnan JA held that the terms of
contracts in connection with cleaning services cannot “operate to discharge [the contracting parties] from a legal
duty to persons who are strangers to those contracts [clients injured on slippery floor]. Nor can they directly
determine what it must do to satisfy its duty to such persons. That duty is cast upon it by law, not because it made a
contract, but because it entered upon the work” (emphasis added).
267 1990 2 SA 520 (W) 529.
268 As is clear from both Chartaprops and Compass Motors above, it seems unfair and unreasonable to apply the
exclusion of liability terms in a contract directly to the possible delictual claims of non-contracting persons. This is
especially so where the delictual claim, particularly the element of wrongfulness, can exist independently of the
contract. In this regard it has already been pointed out that the fact that the security firm in Viv’s Tippers was in
factual control of a (potentially) dangerous situation, as well as the fact that there were practical steps available to
prevent the loss, were indicative of a legal duty to protect the truck on the premises. Moreover, the assumption of
contractual obligations may also be indicative of a delictual legal duty as against non-contracting parties (see
Chartaprops 276; Longueira v Securitas of South Africa (Pty) Ltd 1998 4 SA 258 (W) 263; Neethling 2011
THRHR 174–176).
5.2.8 Creation of the impression that the interests of a third party will be
protected269
Where one party acts in reasonable reliance on the impression created by another party that the
latter will protect the person or property of the former, a legal duty rests upon the party creating
the impression to prevent prejudice to the party acting in reliance on that impression.270 This
guideline is deduced from Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd.271 In this
case, a security firm was in control of certain premises in performance of a contract to minimise
the chances of theft and damage. The question of whether the security firm could be held
delictually liable by a third party for the loss of property on the premises arose. The court
decided with reference to, inter alia,272 policy considerations and the boni mores, that the
defendant had a legal duty towards the plaintiff whose motor car was lawfully on the
premises,273 but that the defendant escaped liability due to the absence of negligence on his
part.274
This case cannot really be classified under any of the other categories275 and, therefore, the
general criterion for wrongfulness plays an important part here. It is, however, clear that the fact
that third parties knew of the security service, and therefore, like the plaintiff, relied on the
defendant’s taking reasonable steps to protect his property, strongly points to the existence of a
legal duty; and this forms the basis of the guideline formulated above.276 However, perhaps the
court went too far in suggesting that a legal duty may be deduced from the mere existence of a
business, ie, where people may not even be aware of existing protective measures.277 The mere
existence of a business (such as a shop or motor-car dealership) should not in itself be regarded
as creating the impression that safety measures for the protection of the interests of visiting third
________________________
269 See in general Loubser and Midgley Delict 267; Neethling and Potgieter 1990 TSAR 763; cf Viv’s Tippers (Edms)
Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security 2010 4 SA 455 (SCA); Compass Motors
Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 2 SA 520 (W); Faiga v Body Corporate of Dumbarton Oaks 1997 2
SA 651 (W) (Neethling 1997 THRHR 730 734); Longueira v Securitas of South Africa (Pty) Ltd 1998 4 SA 258
(W) (Neethling 1999 THRHR 144).
270 Neethling and Potgieter 1990 TSAR 766; cf fn 276 infra.
271 1990 2 SA 520 (W).
272 Initially, the question as to the existence of a legal duty was incorrectly answered by the court since it employed the
reasonable person test for negligence; for criticism see Neethling and Potgieter 1990 TSAR 764–765; Longueira v
Securitas of South Africa (Pty) Ltd 1998 4 SA 258 (W) 261–262; (Neethling 1999 THRHR 144).
273 527–529.
274 530–531.
275 Nevertheless, the underlying line of thought relating to these factors probably played a part in Van Zyl J’s decision
that a legal duty actually existed: the fact that the defendants were in control of a premises where the possibility of
danger towards third parties existed (possible breaking and entering, damage to and theft of property); the fact that
there was a contractual undertaking to minimise the danger on the premises (thus by implication also as against
third parties); and the fact that the defendant’s occupation was specifically aimed at providing a security service on
the particular premises.
276 Van Zyl J stated as follows: “Should [third] persons be aware of the presence of a security system on the premises,
they may be lulled into a false sense of security in deciding to leave their property on such premises. They are in
fact relying on the presence of security guards and they may justifiably entertain the expectation that reasonable
steps will be taken to protect their property” (530). However, in Longueira v Securitas of South Africa (Pty) Ltd
1998 4 SA 258 (W) 260–261 (where the facts were similar to those in Compass Motors), Strauss AJ did not agree
with the suggested new guideline. According to him the guideline is an expression of the “reliance theory”, and
aspects like “[k]nowledge of and reliance on the [contractual] undertaking” to minimise the chances of theft and
damage are merely facts to be considered when deciding whether a legal duty existed or not. He continued (263):
“By elevating decisions on often repeated similar facts to categories is dangerous as it stifles the application of the
principles to changing attitudes of the society and the way in which commerce is conducted.” However, although
we agree that the stifling of legal principles should be avoided, the effect of stare decisis and the obvious
advantages of systematising the law and promoting legal certainty should not be ignored (cf Neethling 1999
THRHR 144).
277 530.
84 Law of Delict
parties exist. This conclusion may well have to be reconsidered should the high levels of
violence and crime in South Africa continue.
5.2.9 Danger of limitless liability

The danger of limitless liability can influence the decision whether an omission is wrongful.278
In South African Hang and Paragliding Association v Bewick279 the plaintiff was involved in a
tandem paragliding accident. The court opined that there are many situations in which tandem
paragliding may endanger not only participants but also the general public on the ground should
an accident happen. According to Brand JA, this creates “great concern about indeterminate
liability”. In contrast to the present case, this policy consideration has, until now, only played a
part with regard to liability for pure economic loss where the situation is “one fraught with an
overwhelming potential liability” and would probably lead to a “multiplicity of actions” that
may be “socially calamitous”.280 In view of this, it was correctly stated in Fourway Haulage SA
(Pty) Ltd v SA National Roads Agency Ltd281 that “liability will more readily be imposed for a
single loss of a single identifiable plaintiff occurring but once and which is unlikely to bring in
its train a multiplicity of actions”.
5.2.10 Vulnerability to risk of damage

The fact that the plaintiff was “vulnerable to the risk of damage” is a further policy consideration
that can be taken into account in determining the presence of a legal duty.282 Where a plaintiff is
unable to protect himself from the risk of damage caused by an omission (he is thus vulnerable
to such a risk), this may be indicative of wrongful conduct. However, where the plaintiff can
protect himself against such damage, for example where by reasonable means he can avoid
making himself “vulnerable” to the risk but did not do so, this would be an important indicator
that the defendant did not act wrongfully.283
5.2.11 Interplay of factors

It should now be clear that in particular instances the existence of a legal duty may often be
ascribed to a single factor, but in other cases several factors play a part.284 The duty of the
policeman to prevent the assault on the plaintiff in Minister van Polisie v Ewels285 may be
deduced from the statutory duty to prevent crime, from the special relationship between police-
man and citizen, as well as from the public office occupied by the policeman.286 This emphasises
the fact that all the relevant circumstances of a particular case must be considered to determine
whether a legal duty to act is present or not.
________________________
278 South African Hang and Paragliding Association v Bewick 2015 3 SA 449 (SCA) 463; Van der Bijl v Feather-
brooke Estate Home Owners’ Association (NPC) 2019 1 SA 642 (GJ) 648.
279 2015 3 SA 449 (SCA) 463 (cf Knobel 2020 THRHR 212).
280 Infra 354.
281 2009 2 SA 150 (SCA) 161; see also Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 295.
282 South African Hang and Paragliding Association v Bewick 2015 3 SA 449 (SCA) 463í464.
283 See generally Neethling and Potgieter 2015 THRHR 259 ff; see also infra 356 as to pure economic loss.
284 See also Bergrivier Municipality v Van Ryn Beck 2019 4 SA 127 (SCA) 143.
285 1975 3 SA 590 (A).
286 See also Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) paras 17–22 where a variety of
factors led to a legal duty on the defendant Rail Agency to protect passengers from suffering physical harm while
using their transport services, inter alia, the existence of a relationship between carrier and passenger, public law
obligations and the fact that the defendant had control over a potentially dangerous situation, because passengers
were virtually trapped in compartments while the train was in motion. (See also Scott 2016 THRHR 551 ff; Knobel
2020 THRHR 209 ff.)
Furthermore, an interplay of various factors can indicate that a particular type of omission is
wrongful.287 For instance, whereas causing of physical-mental harm by omission is not prima
facie wrongful, the courts increasingly consider an interplay of several (constitutional and
common law) factors to find that a legal duty existed in a given case and that the omission was
accordingly wrongful – particularly in cases of potential state liability,288 but, of course, not
restricted to state liability.289 Thus, the constitutional entrenchment of the right to bodily and
psychological integrity290 is strongly indicative of a legal duty upon the state (especially the
police) to take reasonable steps to protect persons from violence perpetrated by third parties.291
292
This conclusion is strengthened in given cases by constitutional imperatives293 such as the
duty of the state to respect, protect, promote and fulfil the rights in the Bill of Rights;294 the duty
of the police service to prevent crime and to protect the citizens of the country;295 296 the duty of
________________________
287 Cf Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) 431; Neethling, Potgieter and Roos Neethling on
Personality Rights 146.
288 Cf idem 93–94; cf also Kleyn and Zitzke in Kuschke and Cornelius (eds) 35.
289 See, eg, Daniels v Minister of Defence 2016 6 SA 561 (WCC) paras 175 178 where Allie J held that doctors in the
present case had a duty to act: the moral convictions of society, the National Health Act 61 of 2003, and ethical
considerations required medical practitioners to treat patients promptly to establish the cause of an illness, or to
refer the patient to someone who could attempt to establish that cause, and to explain to a patient the consequences
of not making a definitive diagnosis. In addition, a medical practitioner's oath demands of him or her to place the
interests of the patient before any cost-saving considerations or other conditions of employment.
290 Constitution, 1996, s 12(2).
938 ff; see in general Neethling 2005 SALJ 558 ff, 2005 TSAR 402 ff, 2003 TSAR 783 ff, 2003 SALJ 99–100, 2002
THRHR 584–548, 2001 THRHR 489 ff, 2000 THRHR 150 ff; Neethling, Potgieter and Roos Neethling on
Personality Rights 146 ff; Neethling and Potgieter 2004 THRHR 501 ff, 2004 THRHR 490 ff, 2002 THRHR 273 ff,
2002 THRHR 270–271; Carpenter 2003 SAPL 252 ff, (1998) 139 ff 146–158; Visser 1997 THRHR 499–500;
MacQueen 2004 SALJ 367–369. Note that, even before the Constitutions of 1993 and 1996, our law placed a legal
duty upon the police to protect citizens from assault if they were able to do so (Minister of Safety and Security v
Hamilton 2004 2 SA 216 (SCA) 231; Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA)
451–452; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA
389 (SCA) 399).
292 According to the SCA, the general principle is that the state will be liable for its failure to perform the duties
imposed upon it by the Constitution, unless it can be shown that there is a compelling reason to deviate from that
norm. Such deviation may, eg, be warranted if it would not be in the public interest to inhibit the police in the
proper performance of their duty (see Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA)
446–448; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA
389 (SCA) 399; Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 321–322 324). This general
principle appears to be incorrect, because a legal duty cannot exist in the absence of common law and statutory
factors which concretely point to the existence of a legal duty in the particular circumstances of the case (on this
see infra 90).
293 The question of whether a statutory (constitutional) duty translates into a delictual legal duty is a matter of legal
policy (see Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 446–448; Minister of Safety
and Security v Hamilton 2004 2 SA 216 (SCA) 236; Minister of Safety and Security v Carmichele 2004 3 SA 305
(SCA) 323–324).
294 Constitution, 1996, ss 2 and 7(2); see, eg, Minister of Safety and Security v Van Duivenboden 2002 6 SA 431
(SCA) 446; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1
SA 389 (SCA) 397; Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 359 (CC) 397; see also
Neethling and Potgieter 2002 THRHR 270; Neethling 2003 SALJ 99, 2002 THRHR 586.
295 Constitution, 1996 s 205(3); see also the South African Police Service Act 68 of 1995, s 13; see Carmichele v
Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC) 963–964; Van
Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA)
398; Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 231; Transnet Ltd t/a Metrorail v Rail
Commuter Action Group 2003 6 SA 349 (SCA) 366; Botha v Minister van Veiligheid en Sekuriteit 2003 6 SA 568
(T) 582–583; Saaiman v Minister of Safety and Security 2003 3 SA 496 (O) 508–509; Rail Commuter Action
Group v Transnet Ltd t/a Metrorail 2003 5 SA 518 (C) 572; Mpongwana v Minister of Safety and Security 1999 2
SA 794 (C) 800; Moses v Minister of Safety and Security 2000 3 SA 106 (C) 114; Kawa v Minister of Safety and
Security [2019] 1 All SA 415 (ECP) paras 198–201.
86 Law of Delict
the state-controlled transport service (Transnet) that delivers a public service in the public
interest, to afford security to commuters;297 the duty of the state (especially the police) under
international law to protect women and children against violent crime, particularly rape;298 the
duty of the prosecuting authority to perform its functions without fear, favouritism or
prejudice299 and in the interest of the public;300 the duty of the state (correctional authority and
police) to protect prisoners and to provide them with medical treatment;301 the duty of the state
to provide accountable government for the country (the “accountability” factor);302 and the duty
________________________
296 The question may be asked whether members of the police have a legal duty to protect people against other hazards
than crime under certain circumstances. This question arose in Minister of Safety and Security v Rudman 2005 2 SA
16 (SCA). Stated briefly, the question was whether a police official had a legal duty to continue with emergency
treatment (CPR) of a young boy who had been removed from a swimming pool in a state of unconsciousness. The
court (38–39 per Van Heerden JA) denied the existence of such a duty because compelling considerations of public
policy militated against a legal duty on police officials in the position of the relevant official “to save people from
drowning or to administer CPR on near-drowning victims”. The primary functions and purposes of the police
service are the prevention, detection and investigation of crime, and recognition of “a legal duty on the police to
save people from drowning or to attempt to resuscitate near-drowning victims would indeed, to my mind, have the
potential to disrupt the effective functioning of the police and would require the provision of substantial additional
training and resources”. Although the omission of the official to administer emergency treatment may elicit moral
indignation, “the legal convictions of the community do not demand that [the official’s] failure to attempt to
perform CPR on [the child] ought to be regarded as unlawful”. This finding is subject to criticism (see Neethling
2006 Obiter 369 ff). No doubt exists that in the current human-rights dispensation the expectations of the
community about the service delivery of the police are higher than before the Constitution, especially in respect of
the protection of the physical and psychological integrity of members of the public. This view is underscored by the
fact that no academic commentator is likely to oppose the recognition of such a legal duty in principle (cf Neethling
and Potgieter 1996 THRHR 333 ff; Scott 1995 De Jure 158; Burchell 1995 SALJ 211 ff for references to critical
discussions of Minister of Law and Order v Kadir 1995 1 SA 303 (A) (see further supra fn 228) where the
existence of a legal duty on the police to protect people against pure economic loss was also dismissed (however, cf
Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T); supra fn 229)). Nonetheless, in spite of hope
expressed on previous occasions that the SCA would consider all relevant factors when determining a legal duty (in
contexts other than crime) that should pertain to the police to prevent, by positive conduct, harm to members of the
public (see Neethling and Potgieter 1996 THRHR 338–339; Scott 1995 De Jure 160–161; Neethling 2005 SALJ
583–585, 2006 Obiter 369 ff), that hope was dashed by the decision in Rudman.
297 Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 359 (CC); Mashongwa v Passenger Rail
Agency of South Africa 2016 3 SA 528 (CC) (see Scott 2016 THRHR 551 ff for a critical discussion of the decisions
in Mashongwa of the High Court, the SCA and the CC); Passenger Rail Agency of South Africa v Moabelo [2017]
4 All SA 648 (SCA); cf Transnet Ltd t/a Metrorail v Rail Commuter Action Group 2003 6 SA 349 (SCA); Rail
Commuter Action Group v Transnet Ltd t/a Metrorail 2003 5 SA 518 (C); Shabalala v Metrorail 2007 3 SA 167
(W); Shabalala v Metrorail 2008 3 SA 142 (SCA) 145 (see Scott 2009 THRHR 156 ff).
298 This factor was emphasised in two cases dealing with violence against women: Carmichele v Minister of Safety and
Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC) 964–965 and Van Eeden v Minister of
Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 398; cf Minister of Safety and Security v
Carmichele 2004 3 SA 305 (SCA) 323; see also K v Minister of Safety and Security [2019] 1 All SA 415 (ECP)
paras 53–57 197–202; cf Minister of Police v K (case no 403/2019) [2020] ZASCA 50 (6 May 2020).
299 Constitution, 1996, s 179(4).
300 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC) 967–
968; Minister of Justice and Constitutional Development v X 2015 1 SA 25 (SCA) paras 15–18.
301 Constitution, 1996, s 35(2)(e); Correctional Services Act 111 of 1998, ss 12 and 30; see Lee v Minister of
Correctional Services 2013 2 SA 144 (CC) 170–171; Minister of Correctional Services v Lee 2012 3 SA 617
(SCA) 624–625; Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 529; Minister of Safety
and Security v Craig [2010] 1 All SA 126 (SCA) 137; Jaftha v Honourable Minister of Correctional Services
[2012] 2 All SA 286 (ECP) para 19; B v Minister of Correctional Services 1997 2 All SA 574 (C) 587; Neethling
2014 TSAR 33–34; Neethling and Potgieter 2013 (2) LitNet Akademies 1 ff; cf Moses v Minister of Safety and
Security 2000 3 SA 106 (C) 114; Minister of Police v Skosana 1977 1 SA 31 (A) 40.
302 Constitution, 1996 s 41(1)(c); see, eg, Minister of Safety and Security v Van Duivenboden 2002 6 SA 431
(SCA) 446–447; Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 1 SA 1 (CC)
17í19; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA
389 (SCA) 398; Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 321–322 324; Rail Commuters
Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 359 (CC) 399–401; Rail Commuter Action Group v Transnet
Ltd t/a Metrorail 2003 5 SA 518 (C) 571–572. In Van Duivenboden 446 the court opined that the norm of
accountability must necessarily assume an important role in determining whether a legal duty ought to be
[continued ]
of the courts to promote the spirit, purport and objects of the Bill of Rights when developing the
common law.303
Case law nevertheless makes it clear that constitutional imperatives are not indispensable to
place a legal duty on the state; common law and statutory factors may be adequate.304
Furthermore, while constitutional imperatives are in general indicative of a legal duty, they are
not conclusive; common law and statutory factors should in addition concretely point to the
existence of a legal duty in a given case.305 Seen in this light, the following factors may – in
addition to the constitutional imperatives which in abstracto place a positive duty on the state to
protect, for instance, the right to bodily integrity – play an important part in evaluating the
existence (or otherwise) of such a duty in a particular case:306 statutory obligations which are
applicable to particular situations;307 the fact that the violation was observed by employees of the
________________________
recognised in any particular case. This view is, however, questionable (see Neethling 2003 TSAR 789–790). The
accountability of the state can arise only after it has been established that it had a legal duty to act, which depends,
as indicated, on the interplay of many factors (inter alia, the constitutional imperatives in ss 7(2), 12, and 39(2) of
the Constitution) which must be considered. In other words, the state is accountable because there is a legal duty
and not vice versa: there is not a legal duty because the state is accountable. Carpenter 2003 SAPL 261 states that
“the emphasis on the accountability of the state for the actions of its organs appears to complicate matters
unnecessarily”. This norm should therefore not be elevated to an indispensable requirement for the existence of a
legal duty upon the state (see also Rail Commuters Action Group (CC) 401). In Van Duivenboden 542 Marais JA
expressed the latter view in his minority judgment as follows: “I doubt that the accountability of which s 41(1)(c) of
the Constitution speaks . . . can be regarded as prima facie synonymous with liability under the lex Aquilia for
damages for omissions to act. . . I would prefer not to elevate accountability to the status of a factor giving rise to
something akin to a rebuttable presumption of liability to pay damages under the lex Aquilia. Generalisations of that
kind may result in consequences which were never intended when applied to other situations.” (However, see
Carpenter 2003 SAPL 260 who is of the opinion that this does not reflect the court’s words accurately.) In Mashongwa
v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) paras 24–25 Mogoeng CJ stated that the value of
accountability assumes a prominent role in the determination of the appropriateness of transposing a breach of a
constitutional duty into a private-law breach leading to the awarding of damages. That transposition will, however,
become an option only if there are no other appropriate non-juridical remedies available to enforce accountability
(see Scott 2016 THRHR 551 ff). See also Olivier 2009 TSAR 740–744 on the possible liability of the South African
Revenue Service. Fagan Undoing Delict viii 47, 2018 SALJ 650 objects to the creation of the so-called “norm of
public accountability” (which he regards as a “spin-off” of the CC’s judgment in Carmichele v Minister of Safety
and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938 (CC)) on the ground that “it involved an
unacceptable instrumentalisation of public officials”. Nevertheless, he acknowledges that “the norm of public
accountability remains firmly entrenched in our law” (Undoing Delict viii). See Bhana and Samaradiwakera-
Wijesundara 2018 Stell LR 446–448 for a discussion of “state accountability” with reference to Country Cloud
Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 1 SA 1 (CC).
303 Constitution, 1996, s 39(2); MEC for Health and Social Development, Gauteng v DZ 2018 1 SA 335 (CC) paras 27
ff; Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA 938
(CC) 953 ff.
304 See Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 237; Van Eeden v Minister of Safety and
Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 399; Seema v Lid van die Uitvoe-
rende Raad vir Gesondheid, Gauteng 2002 1 SA 771 (T) 771 ff; cf Bergrivier Municipality v Van Ryn Beck 2019 4
SA 127 (SCA) 143; see also Neethling 2003 TSAR 790; Neethling and Potgieter 2002 THRHR 277–278.
305 See, eg, Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 431 ff; Van Eeden v Minister of
Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 389 ff; Neethling 2003
TSAR 790–791; Neethling, Potgieter and Roos Neethling on Personality Rights 146–148. In Minister van
Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 529, the court formulated this idea as follows: “Of
course, one must distinguish between the general duty to provide medical treatment to a prisoner and the specific
duty, in light of the prevailing circumstances and knowledge, to provide specific treatment to a particular prisoner
at the relevant time” (translation). In similar vein, O’Regan J declared in Rail Commuters Action Group v Transnet
Ltd t/a Metrorail 2005 2 SA 359 (CC) 402 (see further 406–407): “It should also be emphasised that a public law
obligation such as that under discussion [the duty on state-controlled transport services to protect commuters] does
not automatically give rise to a legal duty for the purposes of the law of delict.” Whether a (delictual) legal duty
exists, will depend on the relevant circumstances (cf Shabalala v Metrorail 2007 3 SA 167 (W) 169–171).
306 See Neethling 2000 THRHR 153–154, 2001 THRHR 489; Neethling and Potgieter 2002 THRHR 272; Neethling,
Potgieter and Roos Neethling on Personality Rights 146–147.
307 See supra 74 ff.
88 Law of Delict
state;308 knowledge or foreseeability of the prejudice or threatening prejudice by the state;309 a

special relationship (or proximity) between the state and the victim;310 a contractual undertaking
by the state to protect the victim;311 factual control by the state over a (potentially) dangerous
situation;312 a representation by the state that the victim will be protected;313 the possible or
probable extent of the victim’s harm;314 the preventative measures that could reasonably and
practically have been required, the probability of success of the measures, and whether the cost
of the measures is in relation to the harm the plaintiff could have suffered;315 that the public
________________________
308 See, eg, Minister van Polisie v Ewels 1975 3 SA 590 (A); Nkumbi v Minister of Law and Order 1991 3 SA 29 (E)
(see also supra fn 228); Mtati v Minister of Justice 1958 1 SA 221 (A) (the plaintiff was assaulted in a police cell
by a policeman who gained entry to the cell due to the negligent conduct of the constable who controlled the keys).
309 See on this factor supra 73, infra 352; Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 324; cf
Minister of Safety and Security v WH 2009 4 SA 213 (E); Neethling 2005 TSAR 402. See Knobel 2010 THRHR 115
ff and in Potgieter, Knobel and Jansen (eds) 229 ff who makes out a strong argument that subjective factors such as
knowledge and foreseeability should play no part at all in determining wrongfulness, but that their role should be
restricted to determining fault. See also Nugent 2006 SALJ 560; Botha 2013 SALJ 154 171.
310 See on this factor supra 79; Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 324; Neethling
2005 TSAR 402.
311 See on this factor supra 81.
314 In Mpongwana v Minister of Safety and Security 1999 2 SA 794 (C) 803, the court declared that the more serious
the prejudice, the more probable the existence of a legal duty. See further Neethling 2000 THRHR 150 ff; cf also
Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 361.
315 In Van Vuuren v Ethekwini Municipality 2018 1 SA 189 (SCA) paras 25–26 29, in finding that a municipality had a
legal duty to avoid negligently causing harm to children whilst using a slide facility at a municipal swimming pool,
Navsa ADP took into account, amongst other things, that “the steps that could have been taken to prevent harm by
ensuring access control are relatively simple and would not place an intolerable financial burden on the
Municipality”. In Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae)
2003 1 SA 389 (SCA) 400 the court emphasised that the suspect’s escape from police custody could easily have
been prevented by the police (by simply keeping a security gate closed). In this case the plaintiff was attacked,
indecently assaulted, raped and robbed by a dangerous suspect who had escaped from police custody. The plaintiff
instituted a delictual claim against the state. The state conceded that the police had acted negligently, but denied
that the policeman owed a legal duty to the plaintiff to prevent the wrongdoer from escaping. The trial court agreed
that the police did not act wrongfully and rejected the plaintiff’s claim. However, her claim was successful in the
SCA (cf Knobel 2020 THRHR 210–212). In Seema v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng 2002
1 SA 771 (T) 783, the court held that the hospital authority could have taken steps to prevent potentially dangerous
patients from leaving the hospital premises by erecting a proper fence and guarding the premises. A potentially
dangerous patient (B) escaped from a psychiatric hospital and abducted and raped the plaintiff’s minor daughter.
B, allegedly seriously psychologically disturbed at the time, had shortly before the incident been transferred from a
security hall to an open hall from which he had free access to the hospital grounds. The grounds were neither
properly fenced nor guarded, and consequently potentially dangerous patients could freely move into the adjacent
residential area where the plaintiff’s house was situated. The plaintiff claimed compensation in his personal
capacity as well as on behalf of his child. The court held that there was a legal duty upon the hospital staff to
protect the public against potentially dangerous patients, that this legal duty had been breached in a negligent
manner, and held the defendant liable (see Neethling and Potgieter 2002 THRHR 276–279). See further Minister
van Polisie v Ewels 1975 3 SA 590 (A) 597: it was reasonably possible, even easy, to prevent or stop the attack on
the plaintiff (see supra 68–69). In Saaiman v Minister of Safety and Security 2003 3 SA 496 (O), on the other hand,
the court denied the existence of a legal duty, inter alia because, apart from the logistical hurdles and costs
involved in the suggested measures, it was difficult to conceive how the measures would have prevented the
plaintiff from being robbed and injured. The plaintiffs travelled by motor-car along a national road and came across
a transito robbery. Several shots were fired at the vehicles of the cash carrier and the plaintiffs, as a result of which
the plaintiffs suffered physical and emotional damage. The plaintiffs alleged that the police failed to implement
certain safety measures in breach of a legal duty owed to them. They grounded their claim on the fact that the
police was aware of the many intransit robberies taking place in South Africa and endangering innocent road users;
that the police was responsible to protect the public from violence; and therefore the police had a duty to
accompany vehicles transporting money; that road signs and/or warnings should be displayed warning the public
about the routes used by cash carriers, and that legislation had to be enacted in this regard (see further Neethling
and Potgieter 2004 THRHR 494.) Note that the defence of impossibility could also have been relevant here (ibid;
see infra 123).
interest would not be served by imposing a legal duty on the state;316 and that a multiplicity of
actions could result from imposing a legal duty on the state.317
5.2.12 The general wrongfulness criterion

Although practice has shown that the factors that we have focussed upon strongly indicate the
existence of a legal duty, in the final analysis we are dealing with the determination of the
reasonableness of the defendant’s failure to act in view of all the circumstances of the case. In
other words, it is not imperative that the omission in question falls into one of the crystallised
categories.
The well-known example of the champion swimmer may serve as an example. A champion
swimmer is walking alongside a river and sees a small child drowning. He fails to rescue the
child. As a result of his omission, the child suffers serious brain damage and becomes quadri-
plegic. In determining whether a duty rested on him to rescue the child, the swimmer’s conduct
cannot be classified under any of the stereotyped categories that indicate a legal duty.
Consequently, recourse must be had to the general test for wrongfulness. By means of the boni
mores test, a balancing process must take place between, on the one hand, the interests of the
swimmer (for example, inconvenience and damage to his clothes) and, on the other hand, the
interests of the child (serious violation of his physical integrity) and the child’s parent or
guardian (great financial cost brought about by the child’s handicap). Public policy and
constitutional values also play a part here. In view of all the circumstances, it must be decided
whether the swimmer’s omission, in the words of the Ewels case,318 evokes not merely moral
indignation but should also be regarded as wrongful according to the legal convictions of the
community and that he should consequently render compensation for the damage suffered.319 In
________________________
316 Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 447–448; Minister of Safety and Security
v Carmichele 2004 3 SA 305 (SCA) 324; Van Eeden v Minister of Safety and Security (Women’s Legal Centre
Trust, as amicus curiae) 2003 1 SA 389 (SCA) 399–400; Minister of Safety and Security v Hamilton 2004 2 SA
216 (SCA) 236. This will eg be the case if imposing a legal duty upon the police would have the potential to disrupt
the effective functioning of the police, or would require additional resources, or would require dividing the
available means to fight crime, or would result in defensive policing (see ibid; cf also Transnet Ltd t/a Metrorail v
Rail Commuter Action Group 2003 6 SA 349 (SCA) 370–371). In Saaiman v Minister of Safety and Security 2003
3 SA 496 (O) 510 the court took into account the paralysing and harmful effect running the police service had on
the fiscus when it refused to place a legal duty on the state; and in Mpongwana v Minister of Safety and Security
1999 2 SA 794 (C) 803 the court was of the opinion that placing a legal duty upon the police would in casu be
counterproductive. In Bergrivier Municipality v Van Ryn Beck 2019 4 SA 127 (SCA) 143 the court held that to
require municipalities to provide for an effective storm water system would result in a too onerous duty on them
and may ignore the budgetary priorities of certain municipalities.
317 See Saaiman v Minister of Safety and Security 2003 3 SA 496 (O) 505–506 511–512; cf Van Eeden v Minister of
Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 400; Minister of Safety
and Security v Hamilton 2004 2 SA 216 (SCA) 236–237. The courts can refuse to place a legal duty to protect
citizens against violence on the state if doing so will open the floodgates of litigation, resulting in liability without
limits. This happened in Minister of Police v K (case no 403/2019) [2020] ZASCA 50 (6 May 2020) where the
plaintiff, K, who had been abducted and raped, instituted an action for damages against the police based on their
alleged negligence in respect of both the search for her on the night she was raped and the subsequent investigation.
The trial court allowed her claim but the SCA rejected it, inter alia, for lack of wrongfulness. The court (para 55)
held: “To impose liability for the harm for which Ms K sued would make it difficult for the police to conduct their
investigations in the future and would expose them to the potential risk of civil litigation in every case where any
rescue search or their investigations are negligent, even if only to a slight degree, and a successful arrest and
conviction of the perpetrators of serious crimes do not ensue.” The “floodgates” factor plays an important part in
determining wrongfulness in instances of pure economic loss. However, it has been subjected to criticism (see infra
355 fn 182).
318 Minister van Polisie v Ewels 1975 3 SA 590 (A) 597; supra 68–69.
319 See also Mahongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) para 23 where Mogoeng CJ
stated that “[a]n omission will be regarded as wrongful when it also ‘evokes moreal indignation and the legal
convictions of the community require that the omission be regarded as wrongful’. This leads to a legal-policy
[continued ]
90 Law of Delict
this example, it will probably be decided that a legal duty rested on the swimmer to take steps to
rescue the child. However, the scales may favour the defendant-swimmer if, for example, it
should appear that there were crocodiles in the vicinity and that he would place his own life in
danger were he to rescue the child; the law no longer requires that a person regard another’s life
as more important than his own.320
Nevertheless, it is probably only in exceptional cases that the courts will deviate from the funda-
mental premise of our law that, in principle, a defendant does not act wrongfully when he fails to
act positively in order to prevent harm to another.321
5.3 Breach of a statutory duty322

The causing of damage by means of conduct in breach of a statutory duty is prima facie
wrongful. In other words, non-compliance with a statutory duty is an indication that the violation
of the plaintiff’s interests took place wrongfully.323 The violation of a statutory norm does not in
itself constitute wrongfulness; rather, it is the infringement of the interests of the plaintiff in a
legally reprehensible manner that constitutes wrongfulness.324 Whether the breach of a statutory
norm indeed brings about delictual wrongfulness, is a matter of statutory interpretation.325 The
________________________
question that must of necessity be answered with reference to the norms and values, embedded in our Constitution,
which apply to the South African society”.
320 Cf S v Goliath 1972 3 SA 1 (A) 25; infra 121; cf also S v Russell 1967 3 SA 739 (N).
321 Supra 60 ff. Scott 1995 De Jure 164 eg infers from the Appellate Division’s decision in Minister of Law and Order
v Kadir 1995 1 SA 303 (A) that it is becoming increasingly improbable that the champion swimmer (referred to
above) would ever incur delictual liability. See supra fn 228 for more on the Kadir case. See again, however,
Mahongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) para 17 where Mogoeng CJ indicated
that omissions causing physical harm, where a “pre-existing duty” is already present, eg the failure to provide
safety equipment in a factory or to protect a vulnerable person from harm, will be prima facie wrongful, just as
positive conduct causing such harm (supra 64).
322 This section should be read in conjunction with 5.2.4 (“Rules of law”) supra 74. See in general especially Van der
Walt and Midgley Delict 154–160; Neethling Van Heerden-Neethling Unlawful Competition 253 ff, 1991 THRHR
567–569; cf Van der Merwe and Olivier 47–48; Boberg Delict 212.
323 To an extent this case overlaps with the cases already mentioned where, in the event of an omission, a legal duty to
act is created by legal rules (supra 74). In the case under discussion an omission is, however, not necessarily
present, neither is the question of wrongfulness necessarily approached from the perspective of non-compliance
with a legal duty. It may happen that the defendant infringes the plaintiff’s interests by his positive conduct in
violation of a statutory provision and that breach of a statutory duty indicates that a subjective right of the plaintiff
is infringed, in other words that the defendant infringed the legal object of the plaintiff in violation of a norm.
324 Insofar as the decision in Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd 1997 4 SA 578 (W)
created the impression that non-compliance with a statutory duty per se constitutes a delict, we must disagree (cf
for criticism, Badenhorst and Mukheibir 1998 De Jure 169); as a rule a breach of a statutory provision is merely an
indication that the defendant’s conduct is wrongful; delictual liability, on the other hand, requires compliance with
all the other elements of delict as well.
325 In Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) para 12 Cameron JA declared as
follows: “Where the legal duty the plaintiff invokes derives from breach of a statutory provision, the jurisprudence
of this Court has developed a supple test. The focal question remains one of statutory interpretation, since the
statute may on a proper construction by implication itself confer a right of action, or alternatively provide the basis
for inferring that a legal duty exists at common law. The process in either case requires a consideration of the
statute as a whole, its objects and provisions, the circumstances in which it was enacted, and the kind of mischief it
was designed to prevent. But where a common-law duty is at issue, the answer now depends less on the application
of formulaic approaches to statutory construction than on a broad assessment by the court whether it is ‘just and
reasonable’ that a civil claim for damages should be accorded. ‘The conduct is wrongful, not because of the breach
of the statutory duty per se, but because it is reasonable in the circumstances to compensate the plaintiff for the
infringement of his legal right.’ The determination of reasonableness here in turn depends on whether affording the
plaintiff a remedy is congruent with the court’s appreciation of the sense of justice of the community. This
appreciation must unavoidably include the application of broad considerations of public policy determined also in
the light of the Constitution and the impact upon them that the grant or refusal of the remedy the plaintiff seeks will
entail.” See also Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA 391 (SCA)
paras 19–22 where Ponnan JA provided a useful summary of the principles involved. Cf Chowan v Associated
Motor Holdings 2018 4 SA 145 (GJ) paras 56 ff.
facts in Patz v Greene and Co326 provide a good illustration of this principle. A, who traded in
the vicinity of a mining compound, applied for an interdict against B, who ran a similar trade on
claim land at the entrance of the compound. A based his application, inter alia, on the fact that
trading on claim land was prohibited by statute. On appeal it was decided, inter alia, that the
infringement of another’s goodwill327 is unlawful if it is caused by conduct expressly prohibited
by statute.328 Also in Chowan v Associated Motor Holdings329 the breach by an employer of a
duty under section 3 of the Protected Disclosures Act330 not to subject a whistle-blowing
employee to occupational detriment by dismissing her after she had lodged an internal complaint
of gender and race discrimination against the employer, was held to be delictually wrongful and
led to successful Aquilian and iniuria claims. In contrast, in Home Talk Developments (Pty) Ltd
v Ekurhuleni Metropolitan Municipality331 it was held that a city manager’s failure to issue
certificates in terms of section 82 of the Town Planning and Townships Ordinance332 was, for
various considerations of legal and public policy, not wrongful in the delictual sense.333
Similarly, in Odinfin (Pty) Ltd v Reynecke334 it was held that non-compliance with section 3 of
the Promotion of Administrative Justice Act335 (PAJA), which requires administrative action to
be procedurally fair, is not delictually wrongful.336
McKerron337 deduces from case law that in order to constitute wrongfulness in these circum-
stances the plaintiff must prove the following:
(a) that the relevant statutory measure provided the plaintiff with a private law remedy;338
________________________
326 1907 TS 427.

327 The right to goodwill (“werfkrag”) is infringed by unlawful competition (infra 374).
328 436. See Neethling Van Heerden-Neethling Unlawful Competition 255–256.
329 2018 4 SA 145 (GJ); see Neethling, Potgieter and Roos Neething on Personality Rights 274.
330 26 of 2000.
331 2018 1 SA 391 (SCA).
332 15 of 1986. Such certificates are a precondition to transfer erven (Home Talk Developments (Pty) Ltd v Ekurhuleni
Metropolitan Municipality 2018 1 SA 391 (SCA) para 115).
333 Para 44. Ponnan JA pointed out, amongst other things, that s 139 of the Ordinance provided for an internal appeal
against the refusal of a s 82 certificate, which suggested that its drafters did not intend there to be a damages action
for such a refusal (paras 22–23), and “something more” justifying liability (such as mala fides or an ulterior
purpose on the part of the city manager) was not present (paras 24 27).
334 2018 1 SA 153 (SCA).
335 3 of 2000.
336 Tsoko AJA stated: “There is nothing in PAJA to suggest that the lawmaker intended there to be a delictual remedy
for non-compliance with its provisions in general or its provisions relating to procedural fairness in particular”
(para 19). (PAJA’s s 6 and s 8 provide for administrative remedies, including judicial review.)
337 Delict 257 ff; see also Van der Walt and Midgley Delict 155 ff; Da Silva v Coutinho 1971 3 SA 123 (A) 140; cf
Knop v Johannesburg City Council 1995 2 SA 1 (A) 31 33 (see Neethling and Potgieter 1995 THRHR 531–532 for
a discussion); Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd 1997 4 SA 578 (W) 580 ff;
Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 2 SA 54 (C) 65–67.
338 This will depend on the intention of the legislature and must be determined in view of, inter alia, the nature and
objectives of the measure as a whole (Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 3 SA 151
(SCA) 160; Knop v Johannesburg City Council 1995 2 SA 1 (A); Da Silva v Coutinho 1971 3 SA 123 (A) 134–
138; Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) para 12; Lascon Properties (Pty) Ltd
v Wadeville Investment Co (Pty) Ltd 1997 4 SA 578 (W) 581; Van der Walt and Midgley Delict 154–155;
Badenhorst and Mukheibir 1998 De Jure 169). Unless the statute provides otherwise, the plaintiff will have an
action in private law if the statute protects the interests of a group or class of persons of which the plaintiff is a
member (Da Silva 134–135). Where the statute was enacted in the public interest and not for the protection of
individual interests, the courts tend to deny a private law action for the recovery of damages (cf Ellis v Vickerman
1954 3 SA 1001 (C)), but rather grant an interdict (cf Herbst v Dittmar 1970 1 SA 238 (T)). Generally, courts have
found that public policy considerations require that adjudicators of disputes are immune to damages claims in
respect of their incorrect and negligent decisions (Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA 2006 1 SA 461 (SCA) para 26; Home Talk Developments (Pty) Ltd v Ekurhuleni
Metropolitan Municipality 2018 1 SA 391 (SCA) para 27); “something more” than a mere negligent statutory
breach and consequent economic loss – such as male fide conduct or ulterior motive – is required to hold a
functionary delictually liable for the improper performance of an administrative function (Home Talk para 27; see
[continued ]
92 Law of Delict
(b) that the plaintiff is a person for whose benefit and protection the statutory duty was
imposed;339
(c) that the nature of the harm and the manner in which it occurred are such as are contem-
plated by the enactment;340
(d) that the defendant in fact transgressed the statutory provision;341 and
(e) that there was a causal nexus between the transgression of the statutory provision and the
harm.342
________________________
also Odinfin (Pty) Ltd v Reynecke 2018 1 SA 153 (SCA) para 21). If the statute provides for a specific remedy, it
suggests that a private law remedy was not contemplated. This is particularly the case where the legislature makes
provision for administrative law remedies such as an internal appeal in, eg, instances of incorrect administrative
decisions by municipalities (see Home Talk paras 21 ff; Knop 31; cf Von Moltke v Costa Areosa (Pty) Ltd 1975 1
SA 255 (C)). As a matter of fact, in Home Talk para 23 Ponnan JA considered the provision for an internal appeal
procedure as “the surest indicator” that an action for damages was not contemplated. Nevertheless, a delictual
remedy is not necessarily excluded where other remedies are available. As stated by Meyer J in Chowan v
Associated Motor Holdings 2018 4 SA 145 (GJ) para 52, where a delictual action was allowed for the transgression
of s 3 of the Protected Disclosures Act 26 of 2000, despite the availability of other remedies: “The fact that there
are other available remedies may in an appropriate case not satisfy the requirement of wrongfulness for delictual
liability to follow, but the present matter, in my view, is not such a case.” The court also took into account that the
Act “expressly does not exclude civil remedies, such as the Aquilian action” (para 57) (see also Coetzee v Fick
1926 TPD 213). Moreover, the fact that a statutory duty is enforceable by criminal proceedings (Da Silva 135–136)
does not necessarily exclude a private law remedy. According to Steenkamp 160–161 a legal duty to prevent pure
economic loss can arise by statute or at common law. If the legal duty arises by statute, an action for damages is
only available if the statute explicitly or implicitly makes provision for it. If the legal duty arises at common law, an
action for damages will only be available if justified by policy considerations. If the legal duty arises by statute as
well as common law and the statute does not make provision for an action for damages, the common law cannot be
relied upon to afford an action because recognition of such an action will be in conflict with the statutory scheme.
(In Steenkamp tenderers instituted an action for damages for pure economic loss suffered as a result of a bona fide
and negligent omission on the part of officials to comply with the precepts of administrative justice. Harms JA held
that policy considerations did not justify a delictual action, either by statute or at common law.) (See further
Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 144; South African Post Office v De
Lacy 2009 5 SA 255 (SCA) 256–257; cf Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 2
SA 54 (C) (overturned on appeal: Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13
(SCA).)
339 Two rules derived from Patz v Greene and Co 1907 TS 427 are involved here (see further Laskey v Showzone CC
2007 2 SA 48 (C) 54). Firstly: where the legislator forbids a particular act in order to protect the interests of a
particular group, the plaintiff must form part of that group; if he does, he need not prove that he suffered loss
because it will be presumed by the court. (Cf Bedfordview Town Council v Mansyn Seven (Pty) Ltd 1989 4 SA 599
(W) 601–602; Van den Berg; Schoeman v Unie en Suidwes-Afrika Versekeringsmaatskappy Bpk 1989 4 SA 721 (C)
727–728; Van der Walt and Midgley Delict 154. An example is where the defendant in conflict with s 24 of the
Consumer Protection Act 68 of 2008 (cf the repealed Merchandise Marks Act 17 of 1941) puts a false trade
description on his products (see Neethling in Henning-Bodewig (ed) Unfair Competition 464; cf Neethling Van
Heerden-Neethling Unlawful Competition 259).) Secondly: where the statutory provision serves the public interest
only, any member of the public will obtain legal protection (an interdict or damages) from the conduct objected to
if he can prove “that [he] has actually suffered patrimonial damage as a result of the illegal trading”. (United
Dairies Co-op Ltd v Searle 1974 4 SA 117 (E) 126; Bedfordview Town Council v Mansyn Seven (Pty) Ltd 1989 4
SA 599 (W) 601–602; Van den Berg; Schoeman v Unie en Suidwes-Afrika Versekeringsmaatskappy Bpk 1989 4 SA
721 (C) 727–728; Van der Walt and Midgley Delict 154). A typical example is where a statute requires a trader to
obtain a licence, and the trader does business either without a licence or with a licence which he obtained in an
improper manner (cf Neethling Van Heerden-Neethling Unlawful Competition 260).
340 Van der Walt and Midgley Delict 157 explain this requirement with reference to the decision in the English case
Gorris v Scott (1874) LR 9 Ex 125: “The defendant, a ship-owner, transported the plaintiff’s sheep. The sheep were
washed overboard and lost as a result of the absence of pens of the kind required by certain statutory regulations.
The court held that the defendant was not liable, because the purpose of the regulations was not to avoid
occurrences such as the one complained of, but to prevent the spread of contagious diseases among animals.”
341 Da Silva v Coutinho 1971 3 SA 123 (A) 141–144; Van der Walt and Midgley Delict 155.
342 Jordaan v Smith 1915 EDL 166; Da Silva v Coutinho 1971 3 SA 123 (A) 147–148. The following fictitious example
derived from Neethling Van Heerden-Neethling Unlawful Competition 253 fn 82 may serve as an illustration here: In
terms of legislation skilled tasks in a clothes factory may only be performed by local citizens. However, manufacturer
A has all the skilled tasks in his factory performed by cheaper foreign labour. Consequently his production costs are
[continued ]
6 Wrongfulness as the reasonableness of imposing liability
As seen above, it is generally accepted that wrongfulness is constituted by the infringement of a

subjective right or the breach of a legal duty to prevent harm.343 However, since Telematrix (Pty)
Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA,344 the Supreme Court of
Appeal has been taking a new direction (especially in respect of pure economic loss).345 In that
judgment, Harms JA346 declared that “conduct is wrongful if public policy considerations
demand that in the circumstances the plaintiff has to be compensated for the loss caused by the
negligent act or omission of the defendant”.347 According to Nugent JA in Crown Chickens (Pty)
Ltd t/a Rocklands Poultry v Rieck,348 this test is a recent formulation of one variation of the
general test of wrongfulness in our law and entails that wrongfulness is basically concerned with
“the reasonableness of imposing liability on the defendant”,349 or “whether, in the circumstances,
the law should recognise an action for the recovery of loss caused negligently”,350 or with the
question, if the defendant had been negligent, of whether “the law [should] impose on him
liability for such negligence”.351 The test was obiter formulated as follows by Brand AJ in Le
Roux v Dey:352
________________________
much lower than those of his competitor, manufacturer B. As a result, A is in a position to market clothes at a much
cheaper price than B. If it is clear that A is able to market his products at a cheaper price than B as a result of the
statutory transgression and if he thereby infringes B’s goodwill, he clearly acts wrongfully towards B. (See in
regard to the right to goodwill infra 374.) There is a causal connection between A’s transgression of the statutory
provision and B’s loss. The conclusion will differ if A pays his foreign workers the wages laid down for citizens and
nevertheless markets his clothes at the cheaper price. In such a case A still transgresses the provision but there is no
causal connection between the transgression and the loss suffered by B as a result of A’s more competitive prices. In
other words, B’s loss is not caused by A’s transgression of the legislation.
343 “Core to the determination is whether or not the conduct infringed the plaintiff’s right or interest, or amounted to a
breach of a legal duty not to harm the plaintiff” (Van der Walt and Midgley Delict 100; see further Loubser and
Midgley Delict 184–185; Loubser in Boezaart and De Kock (eds) 126 ff. See supra 55 ff 60 ff.
344 2006 1 SA 461 (SCA).
345 See Neethling and Potgieter 2006 TSAR 613–615.
346 468.
347 See further Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 3 SA 151 (SCA) 160; Minister of
Correctional Services v Lee 2012 3 SA 617 (SCA) 624; Brooks v Minister of Safety and Security 2009 2 SA 94
(SCA) 97; Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan 2006 6 SA 537 (SCA) 540; Stewart v Botha 2008 6 SA
310 (SCA) 314; Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) 90–91; Imvula Quality Protection (Pty) Ltd v
Loureiro 2013 3 SA 407 (SCA) 418 424 (cf Scott 2014 De Jure 374 ff); Living Hands (Pty) Ltd v Ditz 2013 2 SA
368 (GSJ) 375; AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) 618–619; Holm v Sonland Ontwikkeling
(Mpumalanga) (Edms) Bpk 2010 6 SA 342 (GNP) 348; cf Fourway Haulage SA (Pty) Ltd v SA National Roads
Agency Ltd 2009 2 SA 150 (SCA) 156; Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar 2010 5
SA 499 (SCA) 508; McIntosh v Premier, KwaZulu-Natal 2008 6 SA 1 (SCA) 8.
348 2007 2 SA 118 (SCA) 122; cf further Minister of Finance v Gore 2007 1 SA 111 (SCA) 140.
349 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 143–145; see further
Shabalala v Metrorail 2008 3 SA 142 (SCA) 145; Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd
[2007] 2 All SA 489 (SCA) 494–495; Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) 425; Jaffit v Garlicke
& Bousfield Inc 2012 2 SA 562 (KZP) 569; Minister of Water Affairs v Durr [2007] 1 All SA 337 (SCA) 341 fn 1.
The CC has since followed suit: see, eg, Oppelt v Department of Health, Western Cape 2016 1 SA 325 (CC)
para 51; but see infra 97 ff.
350 First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319 (SCA) 321.
351 Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 588; for discussions of the new test see Fagan Aquilian
Liability 199 ff, 2005 SALJ 106–109 132 ff, Undoing Delict viii–ix 1 ff 246 ff, 2018 SALJ 18 ff, 2019 Acta Juridica
283 ff; Neethling and Potgieter 2006 THRHR 125–127, 2007 TSAR 620–621; Neethling 2008 THRHR 319–320;
Scott 2009 THRHR 161–162, 2014 TSAR 826, 2015 TSAR 623, 2016 TSAR 754–769; Knobel 2008 THRHR 8–9,
2008 THRHR 652, 2020 THRHR 203 ff; Loubser in Boezaart and De Kock (eds) 122; Visser in Du Bois (ed) 1096
ff; Brand 2013 THRHR 57–69; 2014 Stell LR 451 ff; Ahmed 2019 THRHR 136–137; Wessels 2020 THRHR 151 ff.
352 2011 3 SA 274 (CC) 315. The judge repeated his formulation verbatim in Country Cloud Trading CC v MEC,
Department of Infrastructure Development 2014 2 SA 214 (SCA) 223; Cape Empowerment Trust Limited v Fisher
Hoffman Sithole 2013 5 SA 183 (SCA) 193; Roux v Hattingh 2012 6 SA 428 (SCA) 439; Za v Smith 2015 4 SA
574 (SCA) 583í584 (Knobel 2020 THRHR 203 206 ff); cf RH v DE 2014 6 SA 436 (SCA) para 18; see also Imvula
[continued ]
94 Law of Delict
In the more recent past our courts have come to recognise, however, that in the context of the law of
delict: (a) the criterion of wrongfulness ultimately depends on a judicial determination of whether –
assuming all the other elements of delictual liability to be present – it would be reasonable to impose
liability on a defendant for the damage flowing from specific conduct; and (b) that the judicial
determination of that reasonableness would in turn depend on considerations of public and legal policy
in accordance with constitutional norms. Incidentally, to avoid confusion it should be borne in mind that,
what is meant by reasonableness in the context of wrongfulness has nothing to do with the
reasonableness of the defendant’s conduct, but it concerns the reasonableness of imposing liability on the
defendant for the harm resulting from that conduct.
This new formulation of the test of wrongfulness in our law is unacceptable for the following
reasons:353
(a) In the first place, the test is, as formulated in Telematrix,354 based on a misinterpretation by
Fagan355 of the locus classicus on liability for omission in our law, namely Minister van Polisie
v Ewels.356 As summarised by Knobel,357 Fagan’s reliance on Ewels is misguided because
certain phrases from the judgment are taken out of context.358 According to Fagan,359 Ewels
provides the clearest authority for the view that wrongfulness is determined by an inquiry into
the reasonableness of the defendant’s liability for the plaintiff’s damage. He submits that
Rumpff CJ declared in Ewels360 that “the wrongfulness of a negligent omission depends on
whether ‘the legal convictions of the community require . . . the suffered harm to be compen-
sated by the person who omitted to act in a positive manner’”. However, if the relevant quotation
from Ewels is read in its entirety, ie, without removing a phrase thereof as done by Fagan (and
apparently followed by Harms JA in Telematrix361),362 namely “that the legal convictions of the
________________________
Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) 424–425 (cf Scott 2014 De Jure 374 ff); cf Lee v
Minister of Correctional Services 2013 2 SA 144 (CC) 173; F v Minister of Safety and Security 2012 1 SA 536
(CC) 567–568; Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions 2012 1 SA 615 (GSJ) 622;
Jacobs v Chairman, Governing Body, Rhodes High School 2011 1 SA 160 (WCC) 165. Cf Knobel 2020 THRHR
203 ff; Wessels 2020 THRHR 159.
353 See Neethling and Potgieter 2014 THRHR 116 ff, 2014 SALJ 249–251, 2009 THRHR 455 ff, 2006 TSAR 609 ff,
2007 THRHR 125–127; Knobel in Kuschke and Cornelius (eds) 51í52, 2008 THRHR 8–10, 2020 THRHR 203 ff
206; Millard 2012 TSAR 383, who describes the trend towards acceptance of the new formulation as “alarming”; cf,
however, Wessels 2020 THRHR 164 ff for some critique of the objections to the new test set out here. Brand JA’s
objection to our view that this formulation of wrongfulness is “new” (2013 THRHR 57 58, cf 2014 SALJ 451 ff),
does not hold water (see Neethling and Potgieter 2014 THRHR 116–118; also Scott 2014 THRHR 687 who
describes the test as “brand new” and even “groundbreaking” with regard to liability for pure economic loss; and
Wessels 2020 THRHR 151 159 ff 169 who deals with this approach as a new one; cf also Scott 2013 TSAR 782,
2014 TSAR 827–828 833–834, 2015 TSAR 623).
354 2006 1 SA 461 (SCA) 468.
355 2005 SALJ 109. Cf Wessels 2020 THRHR 159 ff.
356 1975 3 SA 590 (A) 597 where Rumpff CJ stated: “It appears that the stage of development has been reached in
which an omission is regarded as wrongful conduct also when the circumstances of the case are of such a nature
that the omission not only incites moral indignation but also that the legal convictions of the community demand
that the omission ought to be regarded as wrongful and that the damage suffered by the plaintiff ought to be made
good by the person who failed to act positively” (translation).
357 2008 THRHR 9; see further Scott 2009 THRHR 162, 2014 TSAR 827–828; Ahmed in Potgieter, Knobel and Jansen
(eds) 52; cf Botha 2013 SALJ 154.
358 Also according to Scott 2018 TSAR 907 918, the SCA (in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468), probably under the influence of Fagan’s article in
2005 SALJ 109, has distorted (“verdraai”) the Ewels test by leaving out certain words from Rumpff CJ’s dictum and
then using it as authority for the “new” wrongfulness test.
359 2005 SALJ 107–109.
360 1975 3 SA 590 (A) 597 (translation).
361 2006 1 SA 461 (SCA) 468 fn 15; cf also Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Muni-
cipality 2018 1 SA 391 (SCA) para 20 fn 14 where the court referred to only the conclusionary part of Rumpff CJ’s
seminal statement about wrongfulness and liability in Minister van Polisie v Ewels 1975 3 SA 590 (A) 597 (“dat
die gelede skade vergoed behoort te word” – “that the damage suffered ought to be made good”; see 68 supra for
the full statement).
362 Scott 2009 THRHR 162 (cf also 2014 TSAR 827–828, 2018 TSAR 907) states in this respect: “If Harms JA had in
[continued ]
community require the omission to be regarded as wrongful”, a different picture emerges. The
wrongfulness of an omission is then indeed determined, contrary to Fagan’s opinion, by asking
first whether the boni mores require the omission to be branded wrongful, and only once this has
been established, whether the omission should give rise to delictual liability.363 This correct
interpretation of Ewels is, inter alia, also apparent in Local Transitional Council of Delmas v
Boshoff,364 where Brand JA, without “leap-frogging” over or bypassing the indispensable,
preceding finding of wrongfulness, stated that “a negligent omission will be regarded as
wrongful and therefore actionable only when the legal convictions of the community impose a
legal duty”.365
(b) A second point of criticism against the new approach to wrongfulness is that liability for
causing harm does not depend upon wrongfulness alone, but rather upon the existence of a delict
________________________
fact considered the full text of the relevant part of Rumpff CJ’s judgment, it is suggested that it is inexplicable why
he would have referred to Fagan’s inaccurate reflection of that pronouncement.”
363 Fagan’s approach to wrongfulness is therefore questionable and was also challenged by, eg, Botha 2013 SALJ 154–
186, particularly with regard to private defence (see Neethling and Potgieter 2014 SALJ 249–250; infra 108
fn 462). Moreover, more than a decade after the publication of his article in 2005 SALJ 90, in which the new
wrongfulness test was first formulated, Fagan has conceded that his “original analysis was in some respects
simplistic” and that he is now “less confident that the analysis got it entirely right” with its claim, inter alia, that
“the wrongfulness of negligent harm-causing conduct turns on the reasonableness of imposing liability for it”
(Fagan Undoing Delict viii–ix 246 ff); also that his analysis “over-emphasised the degree to which that
determination depends on the reasonableness of imposing liability” (idem 246 ff; Fagan 2018 SALJ 18 ff). While
not abandoning the idea that wrongfulness depends on the reasonableness of imposing liability for the negligent
conduct involved, he now states that wrongfulness “depends on more that just that” (Fagan Undoing Delict viii–ix
246 ff). In Aquilian Liability 207 (cf also Undoing Delict 265) he says: “According to [Rumpff CJ’s] judgment [in
Ewels], the wrongfulness of an omission is to be determined by asking, not only whether the legal convictions of
the community require that the harm be compensated by the person who omitted to act, but also whether they
require that the omission be viewed as wrongful” (emphasis added). (The words following but also were left out of
Fagan’s original statement in 2005 SALJ 109.) Fagan’s latest formulation reflects Rumpff CJ’s words in Ewels
better as it now incorporates the part of it that Fagan had originally left out, except for the fact that the judge asked
the questions in the reverse order, namely, whether the legal convictions of the community require, first, that the
omission be regarded as wrongful and, only thereafter, second, whether the harm should be compensated by the one
who omitted to act. In Undoing Delict viii Fagan says that his (original) critique of the standard academic view of
wrongfulness “has achieved some success” as both the SCA and the CC have expressed agreement with it (cf
Wessels 2020 THRHR 159 ff). However, these courts would probably have had less incentive to deviate from the
traditional or standard approach to wrongfulness if Fagan had not in 2005 SALJ 90 ff, in his own words, “over-
emphasised” the reasonableness-of-holding-the-defendant-liable aspect of the Ewels formulation, and if he had not
left out the crucial part of Rumpff CJ’s formulation referred to. In view of this, Brand JA’s suggestion in 2014 that
the debate about the test for wrongfulness has become “sterile”, “without any hope of effecting any real change”,
because, in terms of the stare decisis principle, the SCA and the CC “have now spoken on several occasions” (2014
SALJ 458), was perhaps somewhat premature, also in light of the fact that the courts have since on occasion either
ignored the new formulation of the wrongfulness test and reverted to the traditional approach, or have paid mere
lip-service to it, or have conflated or combined it with the time-honoured approach to wrongfulness (see infra 102
ff). In addition, Scott 2018 TSAR 918–919, in analysing the approach of certain courts to wrongfulness in view of
the new test, concludes that their floundering proves that even those who apply the new test are not convinced of its
correctness and that the authentic traditional approach still figures with them as a type of “reservatio mentalis”.
364 2005 5 SA 514 (SCA) 522.
365 Our emphasis; see also Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214
(SCA) 222 where Brand JA also correctly said that the question is whether policy considerations “require that harm
causing conduct should be declared wrongful and consequently render the defendant liable for the loss” (our
emphasis); Minister of Law and Order v Kadir 1995 1 SA 303 (A) 320; Stedall v Aspeling 2018 2 SA 75 (SCA)
para 22; cf Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 156. (Insofar as the
expression “a negligent omission will be regarded as wrongful” (emphasis added) in Boshoff (see also Stedall para 15)
creates the impression that negligence is a precondition for wrongfulness, it is unfounded in theory and practice and
subject to strong criticism (see also Scott 2018 TSAR 917).) Another point of criticism against Fagan’s interpretation of
Ewels is that he incorrectly regards the term “onregmatige daad” (wrongful act, ie, delict) as wrongfulness (one of the
elements of a delict) and that he uses this incorrect interpretation as (unfounded) support for his view of wrongfulness:
see Neethling and Potgieter 2006 TSAR 614–615, 2007 THRHR 126, also for further criticism.
96 Law of Delict
(or wrongful act), ie, the presence of all the delictual elements.366 In Telematrix,367 Harms JA
declared that “in order to be liable for the loss of someone else, the act or omission of the
defendant must have been wrongful and negligent and have caused the loss”; and in Van Eeden v
Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae),368 this was
expressed in the following words by Vivier ADP: “Our common law employs the element of
wrongfulness (in addition to the requirements of fault, causation and harm) to determine liability
for delictual damages caused by an omission”.369 Legally it will only be reasonable to hold a
person liable for damage if he has committed a delict. 370 It is therefore incorrect to equate the
reasonableness of holding a person liable with wrongfulness; it is unreasonable to hold a person
liable if any one of the elements of a delict, namely conduct, causation, wrongfulness, fault or
damage is absent.371 To explain the new approach, Visser372 cites an example of conduct from an
English case that was (in his opinion) clearly unreasonable but nevertheless not wrongful,
because it would have been unreasonable to hold the alleged wrongdoer liable; his liability
would have extended too far. This view cannot be supported. In our opinion, the dismissal of
liability in that case did not turn on the wrongfulness issue. Due to the clearly apparent
unreasonableness of the conduct, wrongfulness was undoubtedly present. However, it would
nevertheless have been unreasonable to hold the alleged wrongdoer liable on account of the
absence of legal causation, because this element is directly relevant to the extent of a wrong-
doer’s liability373 that must not exceed the “boundaries of reasonableness, fairness and
justice”.374 This indicates clearly that the reasonableness of imposing liability does not depend
on wrongfulness alone. Viewed in this light, the reasonableness of holding a defendant liable is
the result of a conclusion that a delict has been commited, instead of a factor determining
wrongfulness. In similar vein, Loubser375 declares with reference to inter alia the new approach
to wrongfulness, ie, “whether it is reasonable to impose liability on the defendant”, that “this
general formulation is not very helpful, because it is hardly distinguishable from the general
concept of delictual liability”. Knobel376 strongly disagrees with the new approach, which he
views as “a kind of final wrap-up after the court has dealt with the other elements . . . Such an
approach arguably results in wrongfulness usurping the functions of the other elements,
particularly fault and legal causation, and this breeds much confusion”. 377 This confusion is
________________________
366 See further Knobel 2008 THRHR 651.

367 2006 1 SA 461 (SCA) 468.
368 2003 1 SA 389 (SCA) 395.
369 See further supra 4 fn 10.
370 See also Ahmed 2019 THRHR 257í258; supra 4 95í96.
371 See Neethling and Potgieter 2007 THRHR 125, 2006 TSAR 615; Knobel 2008 THRHR 8–9, 2008 THRHR 651.
372 In Du Bois (ed) 1099.
373 See infra 230 ff 355 fn 182; Van Aswegen 1993 THRHR 192–193.
374 S v Mokgethi 1990 1 SA 32 (A) 40–41; see further infra 233–236.
375 In Boezaart and De Kock (eds) 122.
376 2008 THRHR 652.
377 In Pro Tempo Akademie CC v Van der Merwe 2018 1 SA 181 (SCA) a 13-year-old schoolboy was seriously injured
in an extraordinary manner when he went to sit on a steel dropper on the school’s playground. He was impaled by
the dropper, which tore through his rectum and bladder, suffered pain and discomfort and required medical atten-
tion and surgery. Both the High Court and the SCA found that the school acted wrongfully because the school
breached its legal duty to protect the boy. However, both courts also utilised the new test for wrongfulness as a
Trojan horse to bring the extraordinary manner in which the loss occurred, through the back door of the wrong-
fulness issue, in order to ask whether wrongfulness, despite it having been already determined, was in fact present
because of the reasonableness to hold the defendant liable in the circumstances on grounds of policy. This approach
by the courts undermines the substance of the wrongfulness enquiry and violates the sound structure and principles
of the law of delict. It is in any event not clear whether the new test for wrongfulness was ever intended to re-ques-
tion wrongfulness after the parties had agreed that a legal duty existed and had not been adhered to. Nevertheless,
the almost bizarre manner in which the new test for wrongfulness was embraced in both cases, is a further indica-
tion of the damage and confusion that this unnecessary approach to wrongfulness can cause to the law of delict.
Moreover, where the delictual liability of an actor, who has acted wrongfully and negligently, is questioned on the
[continued ]
already apparent in Cape Empowerment Trust Limited v Fisher Hoffman Sithole378 where the
formulation of the new test for wrongfulness resembles to a large extent the formulation of the
test for legal causation (remoteness) which is concerned with whether it would be reasonable to
impute a consequence to the defendant and hold him liable for it.379
(c) In the third place, the wording of the new variation does not make provision for determining
wrongfulness when an interdict is sought. The new test deals with the reasonableness of holding
an alleged wrongdoer liable for damages, for which fault, usually negligence, is a prerequisite,
and for this only such remedies as the Aquilian action, the actio iniuriarum and the action for
pain and suffering are suitable.380 The function of the interdict, on the other hand, is to prevent
wrongful conduct, and not to compensate wrongfulness that has already materialised. For this
reason, fault is not required for the interdict.381 Therefore, the new variation cannot deal with the
wrongfulness inquiry when an interdict is sought. For this reason, the courts consistently apply
the boni mores or reasonableness criterion to establish wrongfulness for purposes of the
interdict.382
(d) Fourthly, the new test is vague and underdeveloped in respect of concrete guidelines
enabling its application. Probably for this reason even the Supreme Court of Appeal, in spite of
occasional lip-service to this test, nevertheless often falls back on the two well-worn tests of
wrongfulness, ie, infringement of a subjective right, and breach of a legal duty.383 Two examples
________________________
grounds of the extraordinary manner in which the loss occurred, it makes more sense to investigate this con-
sideration under the banner of legal causation, instead of attempting to revisit wrongfulness. The rich jurisprudence
and case law on legal causation, where the flexible approach and subsidiary considerations such as reasonable fore-
seeability and novus actus interveniens can play a role, offer a better opportunity and a sounder theoretical basis to
consider whether an extraordinary course of events should lead to the exclusion of delictual liability (see Potgieter
2017 (2) LitNet Akademies 813–830 for a critical discussion of both decisions; see also infra 233 ff 250 ff).
378 2013 5 SA 183 (SCA); see Neethling and Potgieter 2014 TSAR 895 ff, 2014 THRHR 118–119.
379 See 233 ff infra. This overlap is by implication admitted by Brand JA in Cape Empowerment Trust 197–198 where
he stated that both wrongfulness and legal causation are determined by considerations of legal and public policy,
that they perform the same function and that most of the considerations that serve to exclude a finding of wrong-
fulness will also rule out a finding of legal causation (see also De Klerk v Minister of Police 2019 12 BCLR 1425
(CC) para 28). But he did acknowledge that wrongfulness and remoteness are not the same in all respects and that
yardsticks for legal causation such as foreseeability and direct consequences do not play a role in establishing
wrongfulness. As far as foreseeability is concerned, it has now been confirmed in MTO Forestry (Pty) Ltd v Swart
NO 2017 5 SA 76 (SCA) 85 that foreseeability should not play a role at all in determining wrongfulness (see supra
41 fn 32 49 fn 67 infra 193 fn 234). Be that as it may, it appears that the tests for wrongfulness and legal causation
as applied by Brand JA in Cape Empowerment Trust 197–198 are similar to a significant extent (in this regard, cf
also Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) para 68; Scott 2016 THRHR 551 ff).
This conclusion is strengthened by his utilisation of the concept of “right-minded people” with regard to both
wrongfulness and legal causation (see supra fn 24). In the final analysis, this unfortunate consequence can mainly
be ascribed to the formulation and application of the new variation of the test for wrongfulness, which, as indicated,
echoes the test for legal causation. This may eventually have the unfortunate and unacceptable result of legal
causation becoming redundant as a separate element of a delict and will inevitably lead to an attenuation of this
field of the law. Such a development will be in conflict with the recognition and development of legal causation as
an essential separate element of delict in many foreign jurisdictions (see European Group Principles 59 ff; see in
general Neethling and Potgieter 2014 TSAR 898–900).
380 Because the presence of fault is assumed, it is furthermore not clear how the new test will be applied to instances of
strict liability (see infra 433 ff on strict liability).
381 See infra 308.
382 See, eg, Greeff v Protection 4U h/a Protect International 2012 6 SA 393 (GNP) 407 408 409; Heroldt v Wills 2013
2 SA 530 (GSJ) 543 547–548; Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home Affairs 2010 5 SA 367
(WCC) 402; Wingaardt v Grobler 2010 6 SA 148 (ECG) 156–159. See also Neethling 2014 (1) LitNet Akademies
36–37; cf Wessels 2020 THRHR 165 168.
383 See supra 55 ff 60 ff and for a recent example Odinfin (Pty) Ltd v Reynecke 2018 1 SA 153 (SCA) para 13 where
Tsoka AJA applied the traditional legal-duty test for wrongfulness for omissions as formulated in Van Eeden v
Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) para 9
(cited supra 61), without any reference at all to the new test. Knobel 2020 THRHR 216 concludes that, with regard
[continued ]
98 Law of Delict
from case law will suffice. The first is Crown Chickens (Pty) Ltd t/a Rocklands Poultry v
Rieck,384 where Nugent JA pointed out that “[t]o cause bodily injury to another by a positive act
is generally wrongful and will be visited with delictual liability if the actor was negligent . . .
Expressed in the idiom of one variation of the general test for wrongfulness in our law, it is
conduct in relation to which ‘public policy considerations demand that . . . the plaintiff has to be
compensated for the loss caused by [a] negligent act . . . of the defendant’ ”. It is heartening that
Nugent JA referred to the new approach as merely “one variation” of the wrongfulness test that
does not, by implication, replace the established variations.385 However, it is unclear why it was
at all necessary to refer to this new variation, since the court in the end applied the established
approach, ie, that the infringement of the physical person is prima facie wrongful, but that this
can be counteracted by the presence of a ground of justification.386 Referring to the new vari-
ation of the wrongfulness test in a field where legal certainty reigns can only create confusion.387
In Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd,388 Scott JA declared that
“conduct which takes the form of an omission or which results in pure economic loss is not
prima facie wrongful. In such cases it becomes necessary to determine whether there is a legal
duty owed by the defendant to the plaintiff to act without negligence, or, as the inquiry has more
recently been formulated, whether, if the defendant was negligent, it would be reasonable to
impose liability on him for such negligence”. In this case, the court simply applied the
traditional legal-duty approach without further reference to the new variation.389 Again it is hard
to understand why the court deemed it at all necessary to enlist the new variation of the
wrongfulness test while in the end it played no part in establishing wrongfulness in casu.390 In
the Constitutional Court, Moseneke DCJ in Steenkamp NO v Provincial Tender Board, Eastern
Cape391 also viewed wrongfulness of an omission purely as “the failure to fulfil a duty to prevent
________________________
to omissions, “the so-called new approach to wrongfulness does not function adequately as a stand-alone test and
the traditional wrongfulness criteria are still needed”.
384 2007 2 SA 118 (SCA) 122.
385 See also Scott 2018 TSAR 908.
386 See, inter alia, Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 144;
Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA) 498; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468; Local Transitional Council of Delmas v Boshoff
2005 5 SA 514 (SCA) 522; see further Brand 2007 SALJ 78–79; Van der Walt and Midgley Delict 190; infra 87 ff).
387 See, inter alia, Neethling and Potgieter 2007 THRHR 669. See also Pro Tempo Akademie CC v Van der Merwe
2018 1 SA 181 (SCA) for an example where the new wrongfulness test led to a confusing approach to determining
delictual liability (see supra fn 377 and Potgieter 2017 (2) LitNet Akademies 813–830 for a critical discussion).
388 [2007] 2 All SA 489 (SCA) 494.
389 See also Van Vuuren v Ethekwini Municipality 2018 1 SA 189 (SCA) paras 17 ff where Navsa ADP, despite citing
Brand JA’s well-kown formulation of the new test in Le Roux v Dey 2011 3 SA 274 (CC) para 122, continued to
deal with wrongfulness exclusively on the basis of the traditional legal-duty approach (paras 19 ff) and,
importantly, even to formulate wrongfulness in accordance with the latter approach (para 19): “In the present
case . . . it is convenient to deal with the question of wrongulness first, that is, whether there was a legal duty to
supervise and control access to the slide” (emphasis added). See further Minister of Water Affairs v Durr [2007] 1
All SA 337 (SCA) 344; Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 588–589; Shabalala v Metrorail 2008
3 SA 142 (SCA) 145.
390 See also Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) 90–91; Minister of Correctional Services v Lee 2012
3 SA 617 (SCA) 624–625; Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) 425–426; Holm v Sonland Ont-
wikkeling (Mpumalanga) (Edms) Bpk 2010 6 SA 342 (GNP) 348; Living Hands (Pty) Ltd v Ditz 2013 2 SA 368
(GSJ) 377–379; cf Jaffit v Garlicke & Bousfield Inc 2012 2 SA 562 (KZP) 569; Deacon v Planet Fitness Holdings
(Pty) Ltd 2016 2 SA 236 (GP) para 20 (Scott 2016 TSAR 765); Neethling and Potgieter 2011 De Jure 161 ff. In
view of this, on the other hand, it is easy to understand why in several instances the SCA continues to apply the
legal-duty approach without even mentioning the new approach: see eg Harrington v Transnet Ltd t/a Metrorail
2010 2 SA 479 (SCA) 485; Du Preez v Swiegers 2008 4 SA 627 (SCA); McIntosh v Premier, KwaZulu-Natal 2008
6 SA 1 (SCA) 8.
391 2007 3 SA 121 (CC) 138.
harm to another”.392 From the above it is clear that the two established variations of the wrong-
fulness test are adequate in virtually all instances. Where this is not the case, the boni mores can
be employed as (supplementary) criterion to good effect393 without venturing onto the uncertain
terrain of the new variation of the wrongfulness test. A clear example can be found in Masstores
(Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 394 where Froneman J stated that the boni mores or
reasonableness criterion has recently been refined by the courts, which refinement probably lies
in the recognition that, ultimately, the wrongfulness enquiry questions the reasonableness of
imposing liability. He however added, very significantly, that this test does not necessarily assist
in determining when it is reasonable to do so. For this purpose, he continued, the reasonableness
of holding a person liable is determined by falling back on the boni mores criterion.395
(e) In the fifth place, it is open to debate that reasonableness in the context of wrongfulness has
nothing to do with the reasonableness of the defendant’s conduct.396 Such a view is clearly in
conflict with large parts of our law of delict397 and will generally lead to confusion if applied
consistently. In particular, it would undermine many of the principles of the traditional grounds
of justification where the reasonableness, or otherwise, of the defendant’s conduct almost always
plays an important role in determining whether he acted within the bounds of a ground of
justification, and thus in determining wrongfulness.398 For instance, in Crown Chickens (Pty) Ltd
t/a Rocklands Poultry v Rieck Nugent JA explained that the wrongfulness of an act in necessity
________________________
392 But see Brand AJ’s obiter in Le Roux v Dey 2011 3 SA 274 (CC) 315 (cited supra 80–81); cf also Lee v Minister of
Correctional Services 2013 2 SA 144 (CC) 173.
394 2017 1 SA 613 (CC) 632í633.
395 See Neethling and Potgieter 2017 (1) LitNet Akademies 385 ff; Neethling and Potgieter in Roestoff and Brits (eds)
152. However, the boni mores criterion on its own is often too vague to provide a rational yardstick for the
determination of wrongfulness in a specific situation, eg in cases of unlawful competition where a particular
concretisation of the boni mores test may be found in the so-called competition principle (see infra 376).
396 As stated by Brand AJ in Le Roux v Dey 2011 3 SA 274 (CC) 315 (cited supra 93–94); see also Country Cloud
Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214 (SCA) 222; Potgieter v University
of Stellenbosch [2017] 1 All SA 282 (WCC) para 30; cf Lee v Minister of Correctional Services 2013 2 SA 144
(CC) 173; Pro Tempo Akademie CC v Van der Merwe 2018 1 SA 181 (SCA) para 19. Cf, however, Visser in
Kuschke and Cornelius (eds) 205 and in Du Bois (ed) 1099 who recognises that wrongfulness sometimes concerns
reasonableness of conduct. Knobel 2011 THRHR 641 fn 47 is also of the firm view that wrongfulness “is in essence
also very intimately concerned with the question as to whether conduct is reasonable or unreasonable and hence
legally reprehensible” (see also Knobel 2008 THRHR 650 ff). In his discussion of Loureiro v Imvula Quality
Protection (Pty) Ltd 2014 3 SA 394 (CC) para 53, where the court said that “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”, Knobel in Kuschke and Cornelius (eds) 54í55 remarks that wrongfulness is after all thus
most certainly concerned with the reasonableness of the defendant’s conduct and in 2020 THRHR 208 he adds:
“[T]he Constitutional Court made it clear, by necessary implication if not in so many words, that wrongfulness
(also) deals with the reasonableness of the defendant’s conduct in spite of the contrary opinion voiced in some
cases advocating the new approach. After all, an act that breaches a duty, infringes a right, or is found to be
unacceptable according to policy or the legal convictions of the community constitutionally understood, certainly
qualifies as unreasonable.” See also Knobel in Potgieter, Knobel and Jansen (eds) 229 232 ff (also on the origin of
the questionable view that “wrongfulness has nothing to do with the reasonableness of the defendant’s conduct”);
Neethling 2015 TSAR 191; Scott 2014 TSAR 833–834, 2018 TSAR 914–915; Ahmed in Potgieter, Knobel and
Jansen (eds) 53–55). Scott 2018 TSAR 915 regards the statement that wrongfulness has nothing to do with the
reasonableness of the defendant’s conduct as extremely contestable (“uitermate aanvegbaar”) and even prepos-
terous or absurd (“aweregs”).
397 Eg, it is established practice of the SCA that factors relevant to determining negligence (including the prevent-
ability leg) (see infra 193–194 fns 234 235), may also play a part in determining wrongfulness. This applies
particularly to breach of a legal duty as a test of wrongfulness (see Neethling 2006 SALJ 205–208 213–214;
Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 589 is a clear example of this). Scott 2018 TSAR 915 states
that if the view “that wrongfulness has nothing to do with the reasonableness of the defendant’s conduct” should
hold any water, it would, for all practical purposes, pull a stroke through an enormous portion of the established
case law on the topic of wrongfulness, particularly the cases dealing with grounds of justification.
398 Ahmed in Potgieter, Knobel and Jansen (eds) 53–55.
100 Law of Delict
requires an examination of whether “a reasonable person in the position in which [the actor]
found himself would have acted in the same way”.399 Seen in this light, Brand JA’s view that the
reasonableness of the defendant’s conduct has no relevance in ascertaining wrongfulness, is
subject to criticism. 400 As will be explained later,401 the fact that the reasonableness of conduct
can play a role with regard to both wrongfulness and negligence does not mean that the
application of these two elements of the law of delict necessarily leads to the same result, or, put
otherwise, that they are necessarily telescoped into one, thus leading to confusion between
them.402 403
Finally, and very significantly, as persuasively pointed out by Ahmed,404 the origin of the new
test for wrongfulness is in all probability derived from English tort law and more specifically
from the test applied in determining a “duty of care” with regard to the tort of negligence. The
South African courts, in applying the new test, are in fact drawing closer to applying English law
and the tort of negligence. Ahmed justly warns that the courts and academic writers should be
very careful of the possible implications of, in particular, adopting the tort of negligence. This
applies especially to Fagan’s attempt405 to “undo” the boni mores test for delictual wrongfulness
________________________
399 2007 2 SA 118 (SCA) 122–123 (see Visser in Du Bois (ed) 1099); Maimela v Makhado Municipality 2011 6 SA
533 (SCA) 540í541; Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) 23; see further
Mugwena v Minister of Safety and Security 2006 4 SA 150 (SCA) 158í159 where Ponnan JA held that private
defence must be determined by asking whether a reasonable person would have been of the opinion that real risk of
death or injury was threatening and would have taken proper steps before acting in self-defence by shooting the
attacker; Ramsay v Minister van Polisie 1981 4 SA 802 (A) 811 confirmed that for private defence both the
“necessity and reasonableness of the manner of conduct” (translation) are required (see also Ntamo v Minister of
Law and Order 2001 1 SA 830 (Tk) 836: force must be “reasonably necessary”; Ntsomi v Minister of Law and
Order 1990 1 SA 512 (C): the defence must be “reasonable”). Again in Minister of Community Development v
Koch 1991 3 SA 751 (A), a matter concerning the defence of statutory authority, Kriegler AJA (761) stated that the
bounds of lawfulness are transgressed if the defendant exercised his statutory authority in an unreasonable manner.
And in Heroldt v Wills 2013 2 SA 530 (GSJ) 547 Willis J (now Willis JA) stated that in matters relating to the
wrongfulness of violation of privacy, persons must act reasonably (“op ’n redelike wyse”). Moreover, Brand JA’s
attempt in Roux v Hattingh 2012 6 SA 428 (SCA) 441–442 (which dealt with volenti non fit iniuria and rugby
injuries) to indicate broad parameters that may assist in the wrongfulness inquiry in this regard, is specifically
concerned with the “reasonableness” or otherwise of the perpetrator’s conduct (see fn 663 infra). Similarly, the
reasonableness of the defendant’s conduct plays a central part in determining other grounds of justification such as
provocation, the power to discipline and those applicable to the law of defamation (such as relative privilege, media
privilege which deals specifically with the reasonable publication of defamatory untruths, and fair comment), as
well as instances of abuse of right (see infra 124–128 145–147 407–412; see also Neethling and Potgieter 2014
SALJ 250–251, 2014 THRHR 120–121, 2007 THRHR 128).
400 See also Knobel in Kuschke and Cornelius (eds) 54í55.
401 See infra 196–198.
402 See Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 193–194; see also Brand
2013 THRHR 66–67; Roux v Hattingh 2012 6 SA 428 (SCA) 439–440.
403 Finally, in support of our opposition to the new formulation of the test for wrongfulness, it should also be
mentioned that no trace can be found of anything akin to the new formulation in the principles proposed by the
European Group on Tort Law. (This group, consisting of tort-law scholars from 18 European countries, the USA,
Israel and South Africa, drafted European principles of tort law over a period of 10 years.) On the contrary,
according to the Group (Principles 29 75), “wrongfulness” is established with reference to protected interests and
the violation of the required standard of conduct, namely that of the reasonable person in the circumstances (art
2:102, read with art 4:102 of the principles) which is different from negligence since art 4:101 of the principles
states that “a person is liable on the basis of fault for intentional or negligent violation of the required standard of
conduct”. To our mind, the new test would have fallen strangely on the tort law ear of the Group and it should be
asked whether Brand JA is not completely on the wrong track in pursuing the new test. If so, it will require a
radical change of direction to return to the firm ground of the traditional approach to wrongfulness (see also
Neethling and Potgieter 2014 THRHR 119; see, however, infra 102 as to the reconciliation of the traditional boni
mores test and the new test of the reasonableness of imposing liability).
404 2019 THRHR 136 ff. This contribution is based on material from the author’s LLD thesis on reasonableness in the
law of delict (2018). See also Knobel 2020 THRHR 207.
405 See, eg, Fagan Undoing Delict 1 ff, approved by the SCA and CC in various decisions (see supra 93í95) and
supported by Visser in Kuschke and Cornelius (eds) 205í208. Cf, however, supra fn 363 on Fagan’s own reserva-
tions about his earlier approach to the new wrongfulness test.
by “doing tort” and replacing it with the new test for wrongfulness which seems to be derived
from English law. Fortunately, the application of the English “duty of care” doctrine in our law
has repeatedly been condemned by the Supreme Court of Appeal.406
In conclusion, the question arises whether the new approach to wrongfulness really concerns the
delictual element of wrongfulness in all instances, or whether it rather involves the question (as
the Supreme Court of Appeal has repeatedly stated) whether, if the defendant has acted negli-
gently, it would be reasonable to allow the Aquilian action in the particular (new) circumstances
– therefore not a question about wrongfulness, but rather about the expediency or necessity of
recognising (or extending) delictual liability and thus rendering damages recoverable.407 Here
policy considerations naturally play a very important part.408 An important policy consideration
in this regard is that a delictual action will not readily be allowed where the prejudiced person
has another adequate or effective remedy at his disposal.409 But this is of course not the only
policy consideration that can militate against extending Aquilian liability. In Telematrix (Pty)
Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA,410 which dealt with the
liability of dispute adjudicators for their incorrect and negligent decisions, the extension of the
Aquilian action was turned down because of other policy considerations.411 In Stewart v
________________________
406 See infra 189 fn 211 for references, see also Neethling 2019 TSAR 773 ff. It should be mentioned that the criticism
of Visser in Kuschke and Cornelius (eds) 205í208 of our objections to the new test does not hold water: Fagan
indeed created the wrong impression that Ewels supports his view of wrongfulness; it is only reasonable to hold a
person liable if he committed a delict; the new approach cannot be applied to the interdict unamended; the new
approach is vague and underdeveloped in respect of concrete guidelines; and wrongfulness definitely has to do with
the reasonableness of conduct. Moreover, it appears as if Fagan himself is now having second thoughts about the
soundness of some aspects of his approach to wrongfulness (see supra fn 363).
407 See Neethling 2008 THRHR 320–322; cf, however, Visser in Kuschke and Cornelius (eds) 206.
408 See, eg, Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 145; Tele-
matrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468;
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 500 503–504; supra 12.
409 See, eg, Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) 375–380 382–383; 2007 5 SA
382 (SCA) 390; Knop v Johannesburg City Council 1995 2 SA 1 (A) 31; Olitzki Property Holdings v State Tender
Board 2001 3 SA 1247 (SCA); Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13
(SCA) 28–31; see further supra 22 fn 165; Neethling in Nagel (ed) 98–99). An effective remedy can include
judicial review of an administrative decision (Dendy 375–380 (W); 390 (SCA)), an appeal against an administrative
decision (Knop 31) and an interdict (mandamus) (cf Minister of Safety and Security v Van Duivenboden 2002 6 SA
431 (SCA) 446–447). Before the action for adultery was abolished in RH v DE 2014 6 SA 436 (SCA), it had been
held that the innocent spouse could institute the actio iniuriarum against the third person only, and not against the
adulterous spouse (see, eg, Wassenaar v Jameson 1969 2 SA 349 (W) 352). Although it could have been argued
that the adulterous spouse commited an iniuria against the innocent spouse (see Asinovsky v Asinovsky 1943 CPD
131 131–132), the claim was probably disallowed because the innocent spouse had an action for divorce as remedy
(see Wiese v Moolman 2009 3 SA 122 (T) 128; Neethling, Potgieter and Roos Neethling on Personality Rights 349–
350). In Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 500 the Appellate
Division made it clear that an extension of liability under the actio legis Aquiliae will not readily be allowed on the
terrain of contract in instances where the prejudiced person has adequate contractual remedies. Grosskopf AJA
declared: “In considering whether an extension of Aquilian liability is justified in the present case, the first question
that arises is whether there is a need therefor. In my view, the answer must be in the negative, at any rate in so far as
liability is said to have arisen while there was a contractual nexus between the parties. While the contract persisted,
each party had adequate and satisfactory remedies if the other were to have committed a breach.” In Trustees, Two
Oceans Aquarium Trust 145 ff Brand JA (149) identified with the approach in Lillicrap and went a step further by
holding that there was no reason “why Aquilian liability should be extended to rescue a plaintiff who was in the
position to avoid the risk of harm by contractual means, but who failed to do so” (see further Fourway Haulage SA
(Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 162; Mediterranean Shipping Co (Pty) Ltd v Tebe
Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 495; infra 315 fn 96).
410 2006 1 SA 461 (SCA).
411 In similar vein Harms JA held in Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 3 SA 151 (SCA)
162 ff 169 that policy considerations did not justify a delictual action by tenderers for pure economic loss suffered
as a result of a bona fide and negligent omission to comply with the precepts of administrative justice (see further
Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 144). A relevant consideration here
was that allowing a delictual remedy would in all likelihood have placed a too heavy burden on the state (see ibid;
Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA); Neethling and Potgieter 2002 TSAR 381 ff).
[continued ]
102 Law of Delict
Botha,412 the Aquilian action by a child for so-called “wrongful life” was dismissed because the
pivotal question of whether the child should have been born at all “goes so deeply to the heart of
what it is to be human that it should not even be asked of the law”.
One can agree that, on account of such policy considerations (whether these include existence of
another adequate remedy or other relevant policy considerations), it would have been unneces-
sary or undesirable and hence unreasonable to extend Aquilian liability in the mentioned
instances, but one may wonder whether it is dogmatically sound always to deal with the
necessity or expediency of extending the action under the heading of wrongfulness. Indeed, a
case can possibly be made that in several of the mentioned instances a delict (wrongfulness
included) was present, but that a delictual action was nonetheless not allowed on account of
considerations of legal policy.413
In view of the above, it is doubtful whether the so-called new variation of the wrongfulness test
contributes to a better evaluation of delictual wrongfulness. Indeed, because the established tests
of wrongfulness deal satisfactorily with this matter in virtually all cases, the new variation,
which clearly creates confusion and legal uncertainty, can safely be left aside.414
7 Reconciliation of the traditional boni mores test and the new test
of the reasonableness of imposing liability
As pointed out earlier,415 in Country Cloud Trading CC v MEC, Department of Infrastructure

Development416 Brand JA made short shrift of the most important wrongfulness criteria
________________________
The dismissal of the actio legis Aquiliae for negligent interference with contractual relations because it would have
given rise to an “unmanageable situation” (Union Government v Ocean Accident and Guarantee Corporation Ltd
1956 1 SA 577 (A) 585–586), can also be mentioned in this regard (see infra 329).
412 2008 6 SA 310 (SCA) 319; see, however, H v Fetal Assessment Centre 2015 2 SA 193 (CC); see supra 80 for a
discussion of the action for wrongful life.
413 One example is Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA
461 (SCA) 469 where the court stated clearly that in spite of a negligent breach of a legal duty by a dispute adju-
dicator, policy considerations nevertheless excluded wrongfulness and consequently liability. One could equally
have argued – particularly in view of the objections against the new variation of the wrongfulness test (supra 93;
Neethling and Potgieter 2007 THRHR 125–127) – that the dispute adjudicator’s conduct was unreasonable (insofar
as he breached his legal duty) and hence wrongful (see supra 53–55), but that the delictual action for damages was
not allowed on legal policy grounds (cf, however, Boberg Delict 146–148). This could perhaps offer a better
explanation why liability is imposed upon, eg, a judical officer who intentionally delivers a wrong judgment (cf
Telematrix 473), or state officials who fraudulently manipulate a tender procedure (Minister of Finance v Gore
2007 1 SA 111 (SCA) 138–139), or a person who intentionally interferes with a contractual relationship (Dantex
Investment Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A)). In these instances the objections of legal policy fall
away and the defendants are liable on the strength of their wrongful and intentional conduct – otherwise the courts
are moved to incorrectly declare that intention can colour an act (which is lawful in other respects) wrongful (Gore
2007 139–140; cf Fagan 2019 Acta Juridica 283 ff) – a view that has repeatedly been subjected to criticism because it
confuses intention and motive (supra fn 61; see Neethling and Potgieter 2007 TSAR 621–622; Neethling Van Heerden-
Neethling Unlawful Competition 140; Knobel in Potgieter, Knobel and Jansen (eds) 242 fn 72; Burchell in Potgieter,
Knobel and Jansen (eds) 116–118 who criticizes Fagan Undoing Delict viii 156 ff for failing to distinguish, inter
alia, motive and intention).
414 It is significant that in Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) Mogoeng CJ
flatly ignored the controversial new test for wrongfulness formulated in Le Roux v Dey supra as the reasonableness
of holding the defendant liable. The court’s negation of the new test for wrongfulness is even more conspicuous
where it referred to a part of the formulation of the wrongfulness test by Van der Westhuizen J in Loureiro v Imvula
Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) para 53, without including the words “the reasonableness of
imposing liability” that reflect the essence of the new test: “[A]n enquiry into wrongfulness ‘focuses on the conduct
and goes to whether the policy and legal convictions of the community, constitutionally understood, regard it as
acceptable’” (para 13). Scott 2018 TSAR 916–917 (cf also Scott 2016 THRHR 551 ff ) is of the view that part of the
formulation in Loureiro is fully compatible with the well-established, traditional wrongfulness test.
415 Supra 39 fn 24.
416 2014 2 SA 214 (SCA) 222.
developed over the past five decades in our law. He effectively drew a line through the boni
mores, legal convictions of the community and general criterion of reasonableness which,
according to him, create confusion.417 Suffice it to say, as is apparent from numerous decisions
(including those of the Supreme Court of Appeal and the Constitutional Court),418 as well as the
approach of authoritative writers on the law of delict,419 that they do not share his concern and
apparently have no problem applying these criteria. Brand JA420 was also critical of the “legal
duty” concept as it is often confused with the English law “duty of care” and should be avoided
because the latter concept straddles both wrongfulness and negligence and therefore leads to
confusion between these two delictual elements in our law.421 In addition, according to Brand
JA, the reasonableness criterion is associated with the reasonableness of the defendant’s conduct
that is an element of negligence. Notwithstanding possible confusion that should be avoided, the
legal duty approach with regard to an omission and pure economic loss,422 as well as the role
played by the reasonableness of conduct with regard to wrongfulness,423 are so ingrained in our
positive law that the courts and academic writers will not and should not readily renounce
them.424 In an apparent attempt to avoid all confusion, Brand JA was in favour of replacing the
existing wrongfulness criteria and the legal duty concept with the reasonablenes of imposing
liability test.425
Be that as it may, in South African Hang and Paragliding Association v Bewick426 Brand JA
appears to have had a change of heart.427 He declared as follows:
[I]n relation to liability for omission and pure economic loss, wrongfulness … depends on the existence
of a legal duty. The imposition of this legal duty is a matter for judicial determination according to
criteria of public and legal policy consistent with constitutional norms . . . On occasion the same
principles had been formulated somewhat differently, namely that wrongfulness depends on whether or
not it would be reasonable, having regard to considerations of public and legal policy, to impose
delictual liability on the defendant for the loss resulting from the specific omission.
From this dictum it appears that, according to Brand JA, the traditional test for the wrongfulness
of an omission is reconcilable with the new test for delictual wrongfulness.428 This conciliatory
________________________
417 See also Za v Smith 2015 4 SA 574 (SCA) 584í585; cf Knobel 2020 THRHR 203í204 206 ff.
418 See again supra 39 fns 23 24.
419 Such as Van der Walt and Midgley Delict 99 ff, Loubser and Midgley Delict 183 ff (see also supra 39 ff) appear
not to share his concern and apparently have no problem applying these criteria.
420 Supported by Leach JA in MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) 82í83 (see Neethling and
Potgieter 2018 JJS 145 ff).
421 As has been pointed out repeatedly by the SCA (see infra 188í190).
422 See Loubser and Midgley Delict 186 ff; Van der Walt and Midgley Delict 115í116; supra 60 ff.
423 See supra 99í100.
424 See also Neethling 2015 TSAR 190í191.
425 Supra 93 ff; see in general Neethling and Potgieter in Schlemmer and O’Brian (eds); 2017 5 TSAR 98í103; and
Wessels 2020 THRHR 163 ff for a discussion of the difference between the traditional and new approaches; cf
Knobel 2020 THRHR 206 ff.
426 2015 3 SA 449 (SCA) 452–453 (see Neethling 2015 (3) LitNet Akademies 813–815.)
427 See, however, Za v Smith 2015 4 SA 574 (SCA) 581í585 (Neethling and Potgieter 2016 (1) LitNet Akademies
491 ff).
428 This approach is also evident from RH v DE 2014 6 SA 436 (SCA) para 18 where Brand JA said: “The boni mores
of society or the legal convictions of the community, which in effect constitute expressions of considerations of
legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of
delictual liability in our law, both under the lex Aquilia and the actio iniuriarum. In Le Roux v Dey . . . the principle
was formulated . . . [as whether] it would be reasonable to impose liability on a defendant for the [damage] flowing
from specific conduct; and . . . that the judicial determination of that reasonableness would in turn depend on
considerations of public and legal policy in accordance with constitutional norms.” See also Neethling, Potgieter
and Roos Neethling on Personality Rights 84; Ahmed 2019 THRHR 144; Wessels 2020 THRHR 162–163 who also
refers to this approach as “a mixed approach” adopted in some cases “aiming to establish a legal duty (sometimes
by employing the boni mores criterion) while also referring to the importance of consulting policy considerations to
determine if it is reasonable to impose liability for pure economic loss”.
104 Law of Delict
approach has also been mentioned frequently in the Constitutional Court.429 It commenced in
Loureiro v Imvula Quality Protection (Pty) Ltd 430 where Van der Westhuizen J stated that “[t]he
wrongfulness enquiry focuses on the conduct and goes to whether the policy and legal convic-
tions of the community, constitutionally understood, regard it as acceptable. It is based on the
duty not to cause harm . . . and questions the reasonableness of imposing liability”.431 Subse-
quently, Froneman J remarked in H v Fetal Assessment Centre432 that the determination of
wrongfulness is approached normatively in our law that allows courts to question the reason-
ableness of imposing liability on grounds rooted in the Constitution, policy and legal convictions
of the community; and in Oppelt v Department of Health, Western Cape 433 the court proffered
the boni mores, the legal duty and the reasonableness of imposing liability as a potpourri for the
determination of wrongfulness. Finally, in Masstores (Pty) Ltd v Pick n Pay Retailers (Pty)
Ltd434 Froneman J took the reconciliation a step further by stating that although the boni mores
or reasonableness criterion has to be used to determine wrongfulness, this test has recently been
refined by the courts, which refinement probably lies in the recognition that, ultimately, the
wrongfulness enquiry questions the reasonableness of imposing liability. He however added,
very importantly, that this test does not necessarily assist in determining when it is reasonable to
do so. For this purpose the reasonableness of holding a person liable is determined with
reference to the boni mores criterion.435
________________________
429 See, eg, Loureiro v Imvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) para 53; Country Cloud Trading CC v
MEC, Department of Infrastructure Development 2015 1 SA 1 (CC) para 21 (cf also MTO Forestry (Pty) Ltd v
Swart NO 2017 5 SA 76 (SCA) 83); H v Fetal Assessment Centre 2015 2 SA 193 (CC) 216; Oppelt v Department
of Health, Western Cape 2016 1 SA 325 (CC) 343–344. For a comprehensive discussion, see Neethling and
Potgieter in Schlemmer and O’Brian (eds); 2017 5 TSAR 97í110. Cf also Mashongwa v Passenger Rail Agency of
South Africa 2016 3 SA 528 (CC) paras 13 23 26 27, discussed by Knobel in Kuschke and Cornelius (eds) 56í59.
Knobel 2020 THRHR 207í208 welcomes the trend in case law to reconcile the traditional and new approaches to
wrongfulness: “On the one hand, this reconciliatory approach confirms that our courts have not jettisoned the
traditional approach to wrongfulness, which has been developed in a long line of cases, has been supported by most
delict scholars and has in general served South African law well. On the other hand, it finds truth in the new
formulation and places it in its proper perspective, that is, the courts treat it as a further layer of understanding
added to the time-honoured test, rather than an independent new ‘test’ for wrongfulness.”
430 2014 3 SA 394 (CC) para 53 (italics added); see Knobel in Kuschke and Cornelius (eds) 53í56 for an incisive
discussion of Loureiro; cf Ahmed 2019 THRHR 136–146; Wessels 2020 THRHR 162 ff; Loubser and Midgley
Delict 200.
431 Scott 2018 TSAR 916–917 is of the view that part of the formulation of the wrongfulness in Loureiro is fully
compatible with the well-established, traditional wrongfulness test.
432 2015 2 SA 193 (CC) 216. See also Potgieter v University of Stellenbosch [2017] 1 All SA 282 (WCC) paras 23í25
where Cloete J stated that to determine wrongfulness, the court is obliged to make what in effect is a value judg-
ment based, among other things, on its perceptions of the legal convictions of the community and on considerations
of policy on grounds rooted in the Constitution; these considerations dictate whether it would be reasonable to
impose liability on the defendant.
433 2016 1 SA 325 (CC) 343–344. The court stated: “The next enquiry is whether the ‘negligent omission is unlawful
only if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently
causing harm’. In Loureiro, Van der Westhuizen J explained that the wrongfulness enquiry is based on the duty not
to cause harm, and that in the case of negligent omissions, the focus is on the reasonableness of imposing liability.
An enquiry into wrongfulness is determined by weighing competing norms and interests. The criterion of wrong-
fulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual
liability are present, it would be reasonable to impose liability on a defendant for the damages [sic] flowing from
specific conduct. Whether conduct is wrongful is tested against the legal convictions of the community which are,
‘by necessity underpinned and informed by the norms and values of our society, embodied in the Constitution’.”
See also Barley v Moore [2017] 3 All SA 799 (WCC) paras 71 73; Neethling 2019 TSAR 774í775.
434 2017 1 SA 613 (CC) 632í633.
435 See Neethling and Potgieter 2017 (1) LitNet Akademies 385 ff; Neethling and Potgieter in Roestoff and Brits (eds)
152. However, the boni mores criterion on its own is often too vague to provide a rational yardstick for the
determination of wrongfulness in a specific situation, eg in cases of unlawful competition where a particular
concretisation of the boni mores test may be found in the so-called competition principle (see infra 376).
From the above it is clear that the reconciliation of the two tests is facilitated by the fact that
both tests place the emphasis on considerations of legal and public policy and should probably
therefore produce the same result.436 However, this does not mean that the objections to the new
test cease to exist. It is therefore recommended that the courts, in order to determine wrong-
fulness in instances of omissions and pure economic loss, should, firstly, with reference to the
boni mores through a process of weighing the conflicting interests of the parties, make a value
judgement which includes all relevant policy considerations or factors. In this manner it can be
determined whether the plaintiff should be protected against damage. If justified by these
considerations, the court has to find that the loss-causing conduct is wrongful. On condition that
all the other delictual elements have also been proved, it will be reasonable to hold the defendant
liable.437 Seen thus, the conclusion that it is reasonable to hold the defendant liable is the result
of a decision that a delict has been committed, and not (simply) the result of the application of
the test for wrongfulness.438
From the above it is clear that Fagan’s attempt439 to undo the boni mores test for delictual
wrongfulness by “doing tort” and replacing it with the new test for wrongfulness, the origins of
which seem to be the English duty of care doctrine of the tort of negligence,440 is fading.441 In
________________________
436 See Neethling and Potgieter in Schlemmer and O’Brian (eds); 2017 5 TSAR 98í100; Scott 2016 TSAR 759;
Wessels 2020 THRHR 164; see also supra 103. Indeed, in TS v Life Healthcare Group (Pty) Ltd 2017 4 SA 580
(KZD) para 14 Ploos van Amstel J described and applied these two tests as if they did not differ. The court (para
10) reiterated that the “general test to be employed in determining whether a particular infringement of interests is
unlawful is the legal convictions of the community: the boni mores. It is an objective test based on the criterion of
reasonableness”, and it is also applied in the case of an omission to determine whether there was a legal duty on a
defendant to act positively to prevent damage. The judge then continued by recounting the new test for
wrongfulness as part of the wrongfulness enquiry. See also Scott 2017 TSAR 380 who states, with reference to
Masstores (Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd 2016 2 SA 586 (SCA) para 21, “that our modern South
African law of delict follows a diverse approach to the issue of determining wrongfulness. A judge could simply
apply the well-established ‘old’ rules, or follow the ‘new’ approach: the chances that the outcome of both
approaches to the same set of facts might be identical are overwhelming. To my mind the reason for this seemingly
perplexing state of affairs lies in the simple fact that the ultimate criterion for determining wrongfulness – whether
for a positive act or an omission – is that of objective reasonableness (the boni mores criterion which was so
forcefully formulated by Rumpff CJ in the leading judgment of Minister van Polisie v Ewels 1975 (3) SA 590 (A)
597A–B)”.
437 This approach corresponds with the following dictum of Brand JA in Country Cloud Trading CC v MEC,
Department of Infrastructure Development 2014 2 SA 214 (SCA) 222 (italics added): “Decisions . . . demonstrate
the clear recognition by different members of this court that wrongfulness in the context of delictual liability for
pure economic loss is ultimately dependent on an evaluation based on considerations of legal and public policy.
The inquiry is thus: do these policy considerations require that harm-causing conduct should be declared wrongful
and consequently render the defendant liable for the loss, or do they require that harm should remain where it fell,
ie with the plaintiff?” (italics provided; see also Minister van Polisie v Ewels 1975 3 SA 590 (A) 597; Local
Transitional Council of Delmas v Boshoff 2005 5 SA 514 (SCA) 522; supra 9).
438 Scott 2018 TSAR 925 states that, in view of the support of the theoretically untenable new wrongfulness test by
particularly the SCA and the CC, one will, of necessity, have to attempt to reconcile oneself with it. This could only
be done if the application of the new wrongfulness test is treated as a “safety valve”. This implies an initial applica-
tion of the normal rules, tempered by the “traditional” boni mores test, as amplified by constitutional values. In the
vast majority of cases this will solve the wrongfulness issue adequately. Only when the result of this application
offends the legal convictions in the sense that, on policy grounds, it would be untenable to hold the defendant
liable, should the new test find application as a real “safety valve”.
439 See Fagan 2005 SALJ 106í109 132 ff, reproduced in Fagan Undoing Delict 1 ff, approved by the SCA and CC in
various decisions (see supra 93 ff) and supported by Visser in Kuschke and Cornelius (eds) 208).
440 See Ahmed 2019 THRHR 136í146; Scott 2018 TSAR 925–926; see also supra 100.
441 See also Knobel in Kuschke and Cornelius 59 who concluded, after discussing Loureiro v Imvula Quality
Protection (Pty) Ltd 2014 3 SA 394 (CC) and Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528
(CC), that the real danger that the new approach to wrongfulness would completely eliminate or seriously
marginalise the traditional approach appears to be abated for now. See too, eg, Majiedt JA’s recent exposition of
the “traditional” approach to wrongfulness in Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2016 2 SA 586
(SCA) para 21 (with reference to Boberg Delict 32): “Wrongfulness is determined by ascertaining whether there
[continued ]
106 Law of Delict
any case, the application of the English duty of care doctrine in our law has repeatedly been
condemned by the Supreme Court of Appeal.442 Moreover, Brand JA’s attempt443 to do away
with the legal-duty concept with regard to the delictual wrongfulness of an omission and replace
it with the new test for wrongfulness, seems to have failed.444 This concept is so much part and
parcel of our law of delict that most decisions delivered after Brand JA’s obiter remarks did not
even take note of his radical proposal. In light of this, it can be asked whether there is any value
at all in involving the new test in the wrongfulness enquiry. It happens all too often that courts
simply apply the boni mores test whilst merely paying lip-service to the new test. This is perhaps
the reason why several recent cases apply only the boni mores test without even referring to the
new test.445
8 Grounds of justification446
8.1 Introduction
Grounds of justification are special circumstances in which conduct that appears to be wrongful
(because an actual violation of interests is present447) is rendered lawful (since there is no violation
of a norm).448 The violation of interests is therefore not unreasonable or contra bonos mores. A
ground of justification therefore excludes wrongfulness by eliminating the apparent
wrongfulness of the defendant’s conduct.449 In reality, grounds of justification are nothing more
than practical expressions of the boni mores or reasonableness criterion with reference to typical
factual circumstances that occur regularly in practice.450
________________________
has been a breach of a legal duty. Conversely, it involves a determination of whether a subjective right has been
infringed.” Referring to this statement, Scott 2016 TSAR 755 is of the opinion that “[t]his concise pronouncement
of the essence of wrongfulness in such a recent judgment of the supreme court of appeal attests to the fact that we
are today in fact following at least two approaches in the process of determining wrongfulness; the ‘new test’ has
apparently not dealt the ‘old test’ a death-blow”. Moreover, see Fagan’s own later misgivings about his original
formulation of the new test, as set out supra 95 fn 363.
442 See supra 101 406; infra 189 fn 211; see also Neethling 2019 TSAR 775í776.
444 See Neethling and Potgieter 2018 JJS 145í161; see also Neethling 2019 TSAR 775í776.
445 See, eg, Waldis v Von Ulmenstein 2017 4 SA 503 (WCC) 509; Bridgman NO v Witzenberg Municipality 2017 3 SA
435 (WCC) (confirmed in Witzenberg Municipality v Bridgman NO [2019] ZASCA 189 (3 Des 2019); Masstores
(Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2016 2 SA 586 (SCA) para 21 (see Scott 2016 TSAR 755); Itzikowitz v
ABSA Bank Ltd 2016 4 SA 432 (SCA) (cf, however, Scott 2017 THRHR 486í487); Brouze v Wenneni Investments
(Pty) Ltd [2015] 4 All SA 543 (SCA); Du Plessis v Media 24 t/a Daily Sun 2016 3 SA 178 (GP) 186; BS v MS 2015
6 SA 356 (GP); Western Cape Department of Social Development v Barley 2019 3 SA 235 (SCA); Bergrivier
Municipality v Van Ryn Beck 2019 4 SA 127 (SCA) 140; Van der Bijl v Featherbrooke Estate Home Owners’
Association (NPC) 2019 1 SA 642 (GJ) 647; Odinfin (Pty) Ltd v Reynecke 2018 1 SA 153 (SCA) para 13; cf
Knobel 2020 THRHR 208.
446 See in general Van der Merwe and Olivier 70 ff; Van der Walt and Midgley Delict 190 ff; Boberg Delict 724 ff;
Neethling, Potgieter and Roos Neethling on Personality Rights 82 149 ff.
447 Supra 35 49–52.
448 Van der Walt and Midgley Delict 190; cf Malahe v Minister of Safety and Security 1999 1 SA 528 (SCA) 534.
449 Eg: Where A slaps B’s face, A’s conduct at first sight appears to be wrongful. B’s physical integrity, and possibly
his honour as well, have been violated. Violation of interests has in fact occurred (see supra 58). However, should
closer scrutiny reveal that A slapped B to prevent B from stabbing him with a knife, it becomes clear that in the
circumstances the slapping was not unreasonable: A’s conduct in self-defence satisfies all the requirements for the
ground of justification defence (infra 108). A ground of justification reveals that the apparently wrongful conduct
of A is in fact from the outset lawful because there is no violation of a norm.
450 Van der Walt and Midgley Delict 190 declare: “Grounds of justification are practical examples of circumstances
justifying a prima facie infringement of a recognised right or interest, according to the fundamental criterion of
reasonableness. They indicate the circumstances in which society condones prima facie unlawful conduct. Grounds
of justification are an expression of society’s legal convictions and therefore policy considerations underpin their
existence. Although in practice they have developed to the full status of defences to an action in delict, they are in
[continued ]
The legal convictions of the community therefore underpin the grounds of justification that are
used as practical aids451 to facilitate the process of delimiting the interests of different legal sub-
jects. Consequently, grounds of justification are still concerned with the basic question of
whether the actor’s violation of an individual interest was reasonable in the particular circum-
stances and therefore lawful.452 In other words, grounds of justification are simply stereotyped
examples of circumstances indicating that an act that at first sight appears to be wrongful is in
fact lawful.453
Because grounds of justification such as defence, consent and necessity are merely embodiments
of the legal convictions of the community, the existing grounds of justification do not constitute a
numerus clausus. Consequently one may examine “the entire field of the law”454 to find suitable
grounds of justification. In future, the weighing of interests of legal subjects by means of the
reasonableness criterion may result in new situations justifying a defendant’s apparently wrongful
conduct.
In the final analysis, the grounds of justification indicate that the defendant was exercising his
own “right” or “power” (granted to him by law)455; that he acted within the confines of his own
rights. In other words, when a ground of justification is present, the plaintiff’s right does not
extend so far that the defendant infringes it, even though the defendant in fact violates the
interest concerned. The extent of the plaintiff’s rights is, therefore, limited by the defendant’s
exercising his own rights.
In the law of delict, the onus to prove the existence of a ground of justification rests on the
defendant.456
The traditional grounds of justification which are discussed are defence, necessity, provocation,
consent, statutory authority, public authority and official command, and power to discipline.
________________________
reality the expression of the boni mores test in typically recurring practical circumstances” (cf Van der Merwe and
Olivier 70; Snyman Criminal Law 98).
451 Cf Wessels v Pretorius 1974 3 SA 299 (NC).
452 Cf Van der Walt and Midgley Delict 190; Van der Merwe and Olivier 70.
453 “The stereotyped grounds of justification are specific grounds of justification of otherwise wrongful conduct which
with the passage of time have become crystallised, with their own rules limiting the scope of their application” (Clarke
v Hurst 1992 4 SA 630 (D) 650; cf Snyman Criminal Law 98; Van der Merwe and Olivier 70; Van der Walt and
Midgley Delict 190–191).
454 In Clarke v Hurst 1992 4 SA 630 (D) 650, Thirion J stated: “The fallacy in counsel’s argument lies in the fact that
it assumes that conduct which is prima facie unlawful can in law only be justified under one or other of the
stereotyped categories of grounds of justification, such as self-defence, consent, necessity, etc. There is, however,
not a numerus clausus of grounds of justification”; cf Snyman Criminal Law 98.
455 Van der Merwe Vorderingsregte 162; Van der Merwe and Olivier 70; Van der Walt and Midgley Delict 190–191.
456 The onus involves a full burden of proof and not merely a burden of rebuttal (Mabaso v Felix 1981 3 SA 865 (A)
874). In Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) 833 (see also 837 839) Madlanga AJP
declared: “The defendant [who raised private defence] quite correctly conceded that he bears the onus of proving
that the shooting was justified. The defendant also accepted the duty to begin adducing evidence” (see also Kgaleng
v Minister of Safety and Security 2001 4 SA 854 (W) 856; Merryweather v Scholtz 2020 3 SA 230 (WCC) 235–
236; cf Malahe v Minister of Safety and Security 1999 1 SA 528 (SCA) 534 537 539; Ferreira v Ntshingila 1990 4
SA 271 (A) 273; see in general Boberg Delict 644 ff 652 789–790 792 799 823–824; Neethling, Potgieter and Roos
Neethling on Personality Rights 149 fn 145 177 fn 32 216 fn 164 227; Van der Merwe and Olivier 70 fn 49.
108 Law of Delict
8.2 Private defence457

8.2.1 General
Private defence (or defence; “noodweer”) is present when the defendant directs his actions
against another person’s actual or imminently threatening wrongful act in order to protect his
own legitimate (legally recognised) interests or such interests of someone else.458 For example:
A acts in defence if he hits B over the head to prevent B from stabbing A with a knife. If B
should institute a delictual action against A for damages caused by his head injury, A, by raising
private defence, will be able to show that he acted reasonably and therefore lawfully.459 As a
result A will not be liable in delict for B’s injury.
In Mugwena v Minister of Safety and Security,460 the Supreme Court of Appeal held, in the wake
of several provincial judgments,461 that private defence must be determined by asking whether a
reasonable person would have been of the opinion that a real risk of death or injury was
threatening. From this, Fagan462 concludes that the test of wrongfulness is not determined ex
post facto, with reference to the true state of affairs, but ex ante, with reference to a reasonable
belief of the state of affairs. This approach is unacceptable, because an ex ante determination of
defence as ground of justification blurs the distinction between wrongfulness and negligence
(which is indeed determined according to an ex ante reasonable-person test).463
Both the attack and the defensive conduct must meet certain requirements for defence to be
applicable.
________________________
457 See in general Loubser and Midgley Delict 217 ff; Van der Merwe and Olivier 71 ff; Van der Walt and Midgley
Delict 193 ff; Boberg Delict 787 ff and the authority cited at 794–795; Neethling, Potgieter and Roos Neethling on
Personality Rights 149; Fagan Aquilian Liability 265–276; McKerron Delict 74–75 153; Snyman Criminal Law
102 ff; Burchell Delict 67; Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 526. Defence (“noodweer”) as
a ground of justification is sometimes referred to as “self-defence”. This term is, however, too narrow because an
act in defence may also be executed in defence of someone else and of property. “Self-defence” is, therefore, a
form of defence. Defence (and necessity) occur more often in criminal law than in the law of delict. Criminal cases
therefore provide an important source of reference for the law of delict. Although there are differences between
these two fields of law (Boberg Delict 791 795), the principles are similar to a large extent.
458 Neethling, Potgieter and Roos Neethling on Personality Rights 149. Van der Merwe and Olivier 71 define private
defence as follows: “Private defence is present if a person protects his own or another's interests against a
(threatening) wrongful attack and in the process lawfully harms the (threatening) attacker” (translation). The
definition of Van der Walt and Midgley Delict 193 is: “An act of defence (‘noodweer’) is lawful conduct directed
against a wrongdoer for the protection of the actor’s or a third party’s interest which is threatened or infringed by
the wrongdoer.” Defence is based on the principle that justice need not yield to injustice (Snyman Criminal Law
102; Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 526). For centuries the law has given the individual
the power to, as it were, “take the law into his own hands” in order to uphold the law. It is impossible for represen-
tatives of the state to be present at every imminent wrongful attack in order to protect the victim. Consequently the
law accords every individual the power to protect his interests within legal limits.
459 The onus to prove private defence is on the defendant (Mabaso v Felix 1981 3 SA 865 (A); Kgaleng v Minister of
Safety and Security 2001 4 SA 854 (W) 856; cf fn 456 supra).
460 2006 4 SA 150 (SCA) 158.
461 See, eg, Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C) 405–406; Chetty v Minister of Police 1976 2
SA 450 (N) 452–453; Thabethe v Minister of Police 1981 3 SA 569 (D) 574; Ntsomi v Minister of Law and Order
1990 1 SA 512 (C) 526; Robbertse v Minister van Veiligheid en Sekuriteit 1997 4 SA 168 (T) 183; Minister of Law
and Order v Milne 1998 1 SA 289 (W) 293; Feni v Kondzani [2007] 4 All SA 762 (EC) 769; see further Fagan
2005 SALJ 97.
462 2005 SALJ 97. Fagan’s views are challenged by Botha 2013 SALJ 154–186. He states that Fagan’s approach to
wrongfulness “has the potential, if not properly challenged, to influence our highest courts to change the
fundamentals of the South African law of delict . . . for the worse in so far as the test for private defence is
concerned.” Cf also fn 363 supra.
463 See infra 193 ff for a full discussion. Scott 1991 THRHR 301 declares that the borderline between the boni mores
test for private defence and the bonus paterfamilias test for negligence is not as clear as legal theory would have
demanded (see further Botha 2013 SALJ 156 ff; Scott 2007 TSAR 193–196; Neethling 2006 SALJ 210; Neethling
and Potgieter 2007 SALJ 282–284; Van der Merwe and Olivier 72–73; Knobel in Potgieter, Knobel and Jansen
(eds) 237; contra Fagan 2007 SALJ 285 ff).
8.2.2 Requirements for the attack

(a) The attack must consist of a human act. This means, firstly, that the act may consist of
either a commissio or an omissio.464 The attack normally consists of positive conduct
(commissio). In exceptional cases, even an omission may qualify as an “attack” for the purposes
of defence: if a prisoner whose term of imprisonment has expired is not released and assaults the
guard in order to escape, he acts in defence against the omission (“attack”) of the guard who
refuses to release him.465
Secondly, it means that aggression by an animal does not qualify as an attack. As an animal
cannot act for the purposes of delict, defensive action against attack by an animal does not
constitute defence.466 In such a case, necessity may be an appropriate ground of justification.467
One may indeed act in defence against a person who uses his animal merely as an instrument of
attack, such as someone who incites his dog to attack another. In such an instance, the act of
defence is in reality directed against human conduct (attack).468
(b) The attack must be wrongful; in other words, it must threaten or violate a legally
protected interest without justification.469 Any legally recognised interest of the defendant or
other person may be protected when acting in defence.470 The law thus determines which
interests may justifiably be protected in defence.471 The courts have recognised defence as a
ground of justification against attacks on the following interests: life,472 bodily integrity,473
honour,474 and property or possessions.475 There is no reason why, in appropriate cases, defence
should not serve as a ground of justification where any other legally recognised interest is
violated.476
One may not act in defence against a lawful attack. For example, a person may not rely on
defence in resisting a policeman who is in the process of arresting him legitimately, because the
________________________
464 Snyman Criminal Law 103í104; De Wet and Swanepoel Strafreg 72.
465 Snyman Criminal Law 104í105.
466 Van der Walt and Midgley Delict 193; Snyman Criminal Law 103; Van der Merwe and Olivier 72.
467 Cf R v Staalmeister 1912 EDL 308 where defensive action against a fierce ostrich was in issue; S v Moller 1971 4
SA 327 (T) where the act of defence against an animal was incorrectly described as defence instead of necessity;
Van der Merwe and Olivier 72; Snyman Criminal Law 104. (See in regard to necessity infra 117.)
468 Van der Merwe and Olivier 72; Van der Walt and Midgley Delict 193; Snyman Criminal Law 107.
469 R v Ndara 1955 4 SA 182 (A) 184; cf Feni v Kondzani [2007] 4 All SA 762 (EC) 769; Ntanjana v Vorster and
Minister of Justice 1950 4 SA 398 (C) 404–405; Minister of Law and Order v Milne 1998 1 SA 289 (W) 293–294;
Naude and Du Plessis v Mercier 1917 AD 32; S v Kibi 1978 4 SA 173 (E) 179–180; Loubser and Midgley Delict
217; Van der Walt and Midgley Delict 193; Boberg Delict 788; Van der Merwe and Olivier 71. Botha 2013 SALJ
157 ff criticises Fagan’s (2005 SALJ 97 ff) reliance on Ntanjana and Milne as support for his view that it is a
requirement for private defence that the defender should reasonably have believed that a danger existed.
470 Neethling, Potgieter and Roos Neethling on Personality Rights 149–152; Snyman Criminal Law 105; Van der Walt
and Midgley Delict 195.
472 Cf Cele v R 1945 NPD 173; Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C); Ntsomi v Minister of
Law and Order 1990 1 SA 512 (C).
473 R v Nomahleki 1928 GWL 8.
474 In R v Van Vuuren 1961 3 SA 305 (E) the appellant was prosecuted for assault. According to the evidence he
grabbed the complainant by the arm after the complainant had insulted his wife. The appellant claimed that he had
acted in defence. The court held that the appellant had acted reasonably in order to prevent further injury (insult)
and that as a result his conduct did not amount to assault. In S v Ndlangisa 1969 4 SA 324 (E) the accused spat in
the complainant’s face to prevent further verbal abuse by the complainant. The court held that the accused’s
conduct was not justified. See also Neethling, Potgieter and Roos Neethling on Personality Rights 279.
475 Ntai v Vereeniging Town Council 1953 4 SA 579 (A); Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1
SA 488 (A); S v Mogohlwane 1982 2 SA 587 (T); cf R v Schultz 1942 OPD 56.
476 Conversely, the infringement of any interest, eg the good name, feelings, privacy and identity, may be justified by
defence (see Neethling, Potgieter and Roos Neethling on Personality Rights 235 288 304 336 359).
110 Law of Delict
conduct of the policeman is lawful.477 Likewise, a person may not act in defence against an
attack to which he consented,478 or which occurred out of necessity479 or even in defence,
because such attacks are lawful.480 In other words, one may not act in defence against someone
who “has the right” to violate one’s interests.
Where two people are involved in a duel to which they both agreed, there is no question of
defence, because both duellists attack each other unlawfully.481
Because the attack has to be wrongful, the test here is objective.482 If the defending person
subjectively 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 he acts wrongfully. Putative or
imagined defence does not constitute private defence;483 reasonable grounds for private defence
must exist objectively.484 An objective test deals with the facts as they appear ex post facto and
________________________
477 Where the policeman does not have the authority to arrest the defender or where he exceeds his authority, he may
indeed act against the policeman in defence (cf R v Moloy 1953 3 SA 659 (T) 661; Snyman Criminal Law 103). Cf,
eg, Mugwena v Minister of Safety and Security 2006 4 SA 150 (SCA) where the police wrongfully attempted to
arrest the deceased. His resistance against the arrest was therefore lawful and the police could not rely on private
defence against his lawful resistance (see Neethling and Potgieter 2007 SALJ 282).
478 See on consent infra 128.
479 See on necessity infra 117.
480 Eg: A consents to B removing A’s jacket but as B does so, A pushes B away. Or: B tears A’s shirt out of necessity
in order to bandage a serious wound on C’s leg, but A hits B in order to protect his shirt. Or: A threatens to stab B
with a knife, B resists A’s attack in defence whereupon A slaps B’s face. In none of these examples may A rely on
defence because in each case his interests were violated in a lawful manner. A may not lawfully resist B because
B’s “attacks” were not wrongful. Consequently A’s defensive actions were unreasonable. However, if B exceeds
the limits of his grounds of justification, he acts wrongfully in which case A indeed may act against B in defence
(cf Snyman Criminal Law 103).
481 S v Jansen 1983 3 SA 534 (NC) 536–537. Snyman Criminal Law 103 summarises the facts of this case as follows:
“X and Y decided to settle their differences by a knife duel. During the fight Y first stabbed X, and then X stabbed
Y in the heart, killing him. The court held, quite correctly, that X could not rely on private defence, and convicted
him of murder. X’s averting of the blow was merely part of the execution of an unlawful attack which he had
planned beforehand”; (cf Boberg Delict 793; Neethling, Potgieter and Roos Neethling on Personality Rights 149–
152). Van der Merwe and Olivier 74 correctly argue that there is no question of mutually wrongful attacks where
two people attack each other in a boxing ring in accordance with recognised boxing rules. Both act lawfully
according to the legal convictions of the community (see on consent to the risk of injury infra 128). However,
should one of them violate the rules, his conduct becomes wrongful and subject to defensive action by the other.
482 In Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) 865, Cloete J declared: “A plea of defence is
aimed at showing that the attack by the defendant was not wrongful. For that very reason, the test is objective.” See
also Neethling 2002 SALJ 283 ff; Van der Walt and Midgley Delict 193–194; Boberg Delict 788; Neethling,
Potgieter and Roos Neethling on Personality Rights 149; Van der Merwe and Olivier 71–73.
483 In Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) X shot and killed Y because X – according to his
testimony – believed that Y was busy activating a hand grenade to throw at him. In reality Y did not have a hand
grenade in his hand, but rather a teargas canister which was not a threat to life. Cloete J declared (865): “On the
defendants’ case [Y’s] possession of a teargas canister, even assuming that [Y] activated the device and throwing it
at [X], did not objectively constitute a physical danger to [X] which would have justified [X] shooting him. The
plea of defence cannot therefore succeed even if [X’s] version is accepted.” In Coetzee v Fourie 2004 6 SA 485
(SCA) the defendant was held liable after he had shot the plaintiff due to his incorrect (and, according to the court,
unreasonable) belief that his life was threatened by the plaintiff. See Neethling and Potgieter 2004 TSAR 602 for
criticism of this judgment.
484 Previous fn. In Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 526 the court declared: “There must have
been an unlawful attack or threatened attack and the victim must have had reasonable grounds for believing that he
was in physical danger.” On the other hand it must not be concluded that someone who acts in private defence,
must necessarily believe that he is threatened. Van der Merwe and Olivier 73 fn 61 declare, eg, that the fact that
someone believed that he was not acting in private defence, will not make his actions wrongful in circumstances
where his conduct was indeed justified by private defence. Their example is: A, who bears a grudge against B,
seriously wounds B with a revolver, not knowing that B would have murdered a group of people with a hand
grenade the next moment if it had not been for A shooting him. A’s defence of private defence against B’s delictual
claim should succeed. Snyman Criminal Law 111–112 disagrees. According to him it is a requirement for defence
that the person warding off the attack must know that he is acting in defence. Perhaps a rigid choice must not be made
between these two views. Reasonableness must be decisive in each particular case, and both views could, depending on
the circumstances, be valid.
not with the person’s subjective impression of the events.485 Someone who acts wrongfully
because he incorrectly believes that he is acting in private defence can still escape liability if he
did not have fault (intent or negligence).486
(c) The attack must already have commenced or be imminently threatening, but must not
yet have ceased.487 Because it is possible to act in defence against a threatened attack, it is not
necessary to distinguish between a threatened and an actual attack.488 However, it is self-evident
that one may not act in defence against someone from whom one expects an attack only at some
time in the future.489 On the other hand, one does not have to wait until the attack has actually
commenced.490 Where an attack is imminently threatening, one may act in defence even before
the attack commences with the intention of preventing the attack from taking place.491 It is not
possible to act in defence where the attack has already ceased. Such conduct would amount to
unjustified revenge. It is, however, not always possible to determine precisely when an attack
has ceased.492
The following two considerations are not requirements for defence:
(a) Fault on the part of the aggressor is not a requirement.493 The nature of the attack
concerns the question of wrongfulness. Consequently, as has been shown, the test is objective.494
Therefore, one may act in defence even against someone who is incapable of having a
blameworthy state of mind (who can act wrongfully but not culpably) such as an infans or an
________________________
485 Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) 865. Van der Merwe and Olivier 72 cite an apt
example: B draws a revolver and points it at A with the apparent intention of killing A whereupon A produces his
own revolver and shoots B. Afterwards it appears that B only intended to frighten A and that he merely pointed a
water pistol at A. In reality, judged objectively, there was no imminent attack on A. Therefore A did not act in
defence. The fact that A thought that he had acted in self-defence against B, does not make his putative act of
defence lawful. A acted wrongfully because, judged objectively, defence did not apply.
486 In Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) 865–866 Cloete J declared: “The defendants may
yet escape liability on the basis that the second defendant’s [the person who supposedly acted in defence] bona fide
(although erroneous) belief that his conduct was justified, excluded consciousness of wrongfulness – and thus fault
in the form of dolus – on his part, and provided a reasonable man would not have reacted differently to the way in
which the second defendant reacted under the circumstances – thereby excluding fault in the form of culpa” (see
Neethling 2002 SALJ 284–285; cf also S v Dougherty 2003 4 SA 229 (W) 238 ff and Snyman 2004 THRHR 325 ff
for criticism of the last-mentioned case); S v De Oliviera 1993 2 SACR 59 (A) 63; see infra 162 in respect of fault;
also Van der Walt and Midgley Delict 194; Boberg Delict 788. See Botha 2013 SALJ 171 ff for valid criticism of
Fagan’s 2007 SALJ 95 ff rejection of the ex post facto objective reasonableness test for wrongfulness, in favour of
an ex ante reasonable belief in states of affairs actually existing.
487 S v Mogohlwane 1982 2 SA 587 (T) 592; S v Kibi 1978 4 SA 173 (E) 181; Loubser and Midgley Delict 218; Van
der Merwe and Olivier 71; Boberg Delict 792 812; Neethling, Potgieter and Roos Neethling on Personality Rights
149; Snyman Criminal Law 105–106.
488 Cf Van der Merwe and Olivier 71 ff.
489 In such a case, one could apply for an interdict prohibiting the respondent from making the expected attack (see in
regard to the interdict infra 308).
490 Hope v R 1917 NPD 145 146; R v Patel 1959 3 SA 121 (A); Snyman Criminal Law 105.
491 Hope v R 1917 NPD 145 146; Snyman Criminal Law 105–106. Snyman ibid further states that in narrowly pre-
scribed cases the law regards the setting up of automatic preventative measures (such as a gun set up to go off in a
store when a thief enters the shop at night) as an act of defence even though there may be no imminent attack at the
time of the setting up of the measure (Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A)).
According to him the setting up of the measure must be viewed as a preparation for the act in defence. The actual
act in defence takes place only when the thief walks into the trap. It is probably unnecessary to make such a fine
distinction between preparation for the act in defence and the defensive act itself.
492 In S v Mogohlwane 1982 2 SA 587 (T) B attempted to remove A’s paper bag which contained clothing, shoes and
food. B succeeded by threatening A with an axe. A immediately ran to his house 350 yards away, grabbed a knife,
returned to B and tried to retrieve his paper bag. When B threatened him again, A stabbed and killed him to prevent
him from getting away with the bag. The court held that A’s reliance on defence should succeed. The attack had not
terminated because A’s conduct in fetching the knife formed part of a single, immediate and continuing defensive
act. However, writers have differing opinions regarding the correctness of this decision (cf Robinson 1983 THRHR
97; Burchell 1982 Annual Survey 194; Boberg Delict 792 812).
493 Loubser and Midgley Delict 218; see on fault infra 155.
494 Supra 110.
112 Law of Delict
insane person;495 or against someone who is under the wrong impression that he is acting
lawfully, such as A who resists B who is under the mistaken impression that he may arrest A.496
(b) It is not a requirement that the attack must be directed at the defender.497 One may act
in defence even where the attack is directed at third parties. A special relationship such as a
family tie or a claim to protection need not exist between the defender and the third party.498
However, where the third party consents to the attack, one cannot legally act in his defence,
because in such circumstances the attack against him is not wrongful.499 But where the third
party’s consent is invalid (eg, where he consents to be seriously maimed),500 the attack is indeed
wrongful and may be resisted in defence of the victim’s interests even against his wishes: his
“consent” is not recognised by law.
8.2.3 Requirements for the defence

(a) The defence must be directed against the aggressor.501
(b) The defence must be necessary to protect the threatened right.502 If the interest may
reasonably be protected in some other, less detrimental way, the act of defence is wrongful.503
________________________
495 Cf R v K 1956 3 SA 353 (A); Van der Walt and Midgley Delict 194; Snyman Criminal Law 104; Van der Merwe
and Olivier 71–72; Neethling, Potgieter and Roos Neethling on Personality Rights 151. See infra 157 on the
capacity to have a blameworthy state of mind, also known as accountability.
496 Snyman Criminal Law 104.
497 In Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C) the first defendant, a policeman, shot the
deceased in defence of a fellow policeman who, when trying to arrest the deceased lawfully, was attacked by the
deceased with a piece of iron; see also R v Patel 1959 3 SA 121 (A); Loubser and Midgley Delict 218; Boberg
Delict 791 803; Neethling, Potgieter and Roos Neethling on Personality Rights 151; Van der Merwe and Olivier 73;
Van der Walt and Midgley Delict 193; Snyman Criminal Law 104.
499 Cf ibid.
500 See infra 128 on consent as a ground of justification.
501 This requirement is self-evident; see Loubser and Midgley Delict 218; Neethling, Potgieter and Roos Neethling on
Personality Rights 151; Snyman Criminal Law 106.
502 Loubser and Midgley Delict 219; Van der Merwe and Olivier 74 ff; Neethling, Potgieter and Roos Neethling on
Personality Rights 151; Van der Walt and Midgley Delict 194; Snyman Criminal Law 106. In Ntamo v Minister of
Safety and Security 2001 1 SA 830 (Tk) 836 Madlanga AJP declared: “[W]here the threatened harm can be avoided
without the use of force, private defence cannot succeed.” The test is objective. In Ntanjana v Vorster and Minister
of Justice 1950 4 SA 398 (C) 406 it was stated: “The very objectivity of the test, however, demands that when the
Court comes to decide whether there was a necessity to act in self-defence it must place itself in the position of the
person claiming to have acted in self-defence and consider all the surrounding factors operating on his mind at the
time he acted. The Court must be careful to avoid the role of the armchair critic wise after the event, weighing the
matter in the secluded security of the Courtroom”; cf Ntamo 837; Ntsomi v Minister of Law and Order 1990 1 SA
512 (C) at 527–530; S v Motleleni 1976 1 SA 403 (A) 406; Van der Walt and Midgley Delict 194; Boberg Delict
792; Neethling, Potgieter and Roos Neethling on Personality Rights 151; Van der Merwe and Olivier 72 74. The
fact that the court takes into consideration certain subjective factors (“dadersubjektiewe faktore” – Van der
Westhuizen 1976 De Jure 373 ff) in determining this defence, does not render the test for wrongfulness less
objective (supra 46–47; Boberg Delict 796). Neither does the investigation necessarily become less objective when
the question of whether a valid act of defence was present, is answered with reference to the reasonable person. In
Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 527, Van Deventer AJ held that the defendant-policeman
had correctly assumed that he was in serious danger because “a reasonable policeman” in similar circumstances
would have thought likewise. Contrary to the opinion of Scott 1991 THRHR 300 (cf also Van der Merwe and
Olivier 72–74 who raise the same criticism against, inter alia, the Ntanjana case), the court’s approach does not
necessarily render the wrongfulness test less objective; nor does it inevitably result in the tests for wrongfulness and
negligence moving closer or even becoming identical. In the Ntsomi case the “reasonable policeman” is not used to
determine negligence, but, as often happens in the law of delict (cf supra fn 87), only as a convenient method to
express the objective boni mores criterion: in a sense the court says that according to the boni mores the defendant-
policeman acted reasonably because he acted just as a reasonable policeman would have acted. Here the reasonable
person, or, as in the Ntsomi case, the reasonable policeman, embodies the legal convictions of the community (see
also infra 193 on the distinction between the test for wrongfulness and that for negligence).
503 In, eg, Bakharia v Mia 1918 TPD 56 58 it was decided that force could be used against a trespasser only “after he
[defendant] has exhausted every other remedy”. Consequently bodily force is only permissible if it was the only
[continued ]
Therefore, the act of defence must be the only reasonable alternative to protect the threatened
interest. For example, a person will be able to set a trap gun to protect his property only when it
is clear that all other reasonable steps have failed.504
In this regard, the question of whether a person may defend himself in circumstances where he is
able to protect his interests by taking flight arises. Case law seems to be of the opinion that a
person must flee, unless such flight exposes him to danger, such as a shot in the back,505 or if
such flight would result in a policeman abandoning his duty to arrest a criminal.506 Perhaps the
requirement that there must be danger connected to flight is too narrow. It should also not be
expected of him to flee where flight will cause an infringement of the interests of the attacked
person, such as an impairment of dignity resulting from the humiliation caused by flight. Why
should justice yield to injustice?507 Nevertheless, it is not possible to lay down hard and fast
rules; too much depends on the circumstances surrounding each particular case.508
(c) The act of defence must not be more harmful than is necessary to ward off the
attack.509 The act of defence must be reasonable: in other words, the means used by the
defender must not be out of proportion to the (imminent) attack.510 The reasonableness of the act
of defence must be judged objectively, taking into account all the circumstances of the case.
Although there should be a reasonable measure of balance or proportionality between the attack
and the defending act,511 the threatened interest and the interest infringed in the process of
________________________
reasonable way to avert the attack; see S v Makwanyane 1995 3 SA 391 (CC) 448–449; Mugwena v Minister of
Safety and Security 2006 4 SA 150 (SCA) 158; cf also R v Mahomed, Goolam and Suliman (1906) 27 NLR 396;
Chetty v Minister of Police 1976 2 SA 450 (N) 455–456; Thabethe v Minister of Police 1981 3 SA 569 (D) 573;
Feni v Kondzani [2007] 4 All SA 762 (EC) 769. Snyman Criminal Law 106 uses the following example: “If, on the
termination of a lease, the obstinate lessee refuses to leave the house, the lessor is not entitled to seize her by the
throat and eject her from the premises. She can protect her right and interests by availing herself of the ordinary
legal remedies, which are to obtain an ejectment order from a court and possibly also to claim damages. The basic
idea underlying private defence is that a person is allowed to ‘take the law into her own hands’, as it were, only if
the ordinary legal remedies do not afford her effective protection. She is not allowed to arrogate to herself the
functions of a judge and a sheriff. On the other hand, a threatened person need not acquiesce merely because she
will be able to claim damages afterwards. The present rule merely means that the threatened person may not
summarily take the law into her own hands if the usual legal remedies afford her adequate protection”.
504 Cf Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A); see the discussion infra fn 514. In
Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) 837, where policemen shot and killed an alleged
attacker and raised private defence, the court indicated that use of force was not necessary at all and that the
policemen had several other options open to them to ward off the danger: “On these facts . . . other reasonable
forms of intervention by the police without initially or at all applying force to the person of the deceased readily
come to mind . . . On a balance of probabilities the defendant has failed to prove that the application of force to the
person of the deceased was at all necessary. He has thus failed to prove the absence of wrongfulness.”
505 Cf R v Zikalala 1953 2 SA 568 (A) 571–572; R v Molife 1940 AD 202; R v Patel 1959 3 SA 121 (A). In Ntsomi v
Minister of Law and Order 1990 1 SA 512 (C) 527, factors such as the fact that the defendant was attacked on
unfamiliar terrain and that he could have stumbled and fallen had he stepped back, played a role in his decision not to
flee. See also next fn.
506 In Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 530 Van Deventer AJ stated: “Our law does not ever
oblige a policeman who attempts or intends to effect a lawful arrest to flee from an unlawful assault, for flight in
such circumstances would amount to dereliction of duty.”
507 Cf Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 526; Snyman Criminal Law 106í107; Van der Merwe and
Olivier 74.
508 Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C); cf Snyman Criminal Law 106í108.
509 Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) 836: “Where force is necessary to neutralise the threat
of harm, the force used must not be more than is reasonably necessary to achieve that purpose (the proportionality
principle or doctrine)”; cf Loubser and Midgley Delict 218–220; Van der Merwe and Olivier 75 ff; Van der Walt
and Midgley Delict 194; Neethling, Potgieter and Roos Neethling on Personality Rights 151–152; cf Snyman
Criminal Law 108–111.
510 Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) 836; Ntsomi v Minister of Law and Order 1990 1 SA
512 (C) 526; Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) 501.
511 In Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) the court deduced, inter alia, the following general
guideline from legal authorities: “The means of defence must have been commensurate with the danger and
dangerous means of defence must not have been adopted when the threatened injury could have been avoided in
[continued ]
114 Law of Delict
defence need not be of equal value, nor do the means employed by the defender need to be
similar to those of the attacker.512 Different factors can play a role in determining the
reasonableness of the act of defence. In situations where defence is raised, the interests
threatened by the attack and those violated in defence are often different in nature and unequal in
value, and it is often difficult to undertake a realistic weighing-up of interests.513
The fact that the attacker is acting wrongfully counts in favour of the defender if the defender
causes greater harm to the attacker than the harm the defender suffered or would have suffered.
Steyn CJ expressed this idea as follows:514
He (the attacker) is the one who steps outside the legal order, and if he wishes to risk his life to infringe
the right of another, why must the person who acts in defence, for whom it is undoubtedly permissible to
protect his right, be branded a transgressor of the law if he kills [the attacker] rather than to forfeit his
right?
Although absolute proportionality between the threatened interest and the interest infringed in
defence cannot be a requirement for defence, extreme imbalance is unacceptable. 515 Thus, if an
attacker threatens only goods of little value where, for example, he tries to steal a piece of butter,
and the only way of stopping him is to shoot and kill him, such killing will be unreasonable and
the bounds of defence consequently exceeded.516 In the case of an extreme imbalance of
interests, the fact that the attacker steps outside the bounds of the law (“buite die regsorde tree”;
acts wrongfully), is therefore insufficient to render the defensive act lawful. The central enquiry
________________________
some other reasonable way.” See also Feni v Kondzani [2007] 4 All SA 762 (EC) 769; Ntamo v Minister of Safety
and Security 2001 1 SA 830 (Tk) 836–837 839 842; R v Molife 1940 AD 202 204; cf Loubser and Midgley Delict
219–220. As to private defence in the context of the battered wife who kills her abusive husband or partner, see S v
Steyn 2010 1 SACR 411 (SCA); Carstens 2010 Obiter 478 ff.
512 See infra 116. Absolute commensurateness of interests is therefore not in principle a requirement for private
defence. Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) 496–497.
513 Van der Walt and Midgley Delict 194 state: “An act of defence does not require that the interests harmed should be
less important than, or of the same nature and value as, the interest threatened. The conflicting interests involved in
situations of defence are often widely divergent in nature, importance and value. Whether the relevant conflicting
interests are proportionate to or commensurate with each other is therefore in general not an apposite basis for the
determination of the justifiability of an act purportedly committed in defence.”
514 Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) 497 (translation); see Boberg Delict 788–
789. See, however, Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) where the court decided that
policemen who had shot and killed a member ot the public did not succeed in proving that they had acted in private
defence. Madlanga AJP declared, inter alia (840–841): “[S]urely the boni mores by no means make light of the
sanctity of life, and that includes the life of the aggressor. It can never be that a person who whips out a firearm and
threateningly points it at the police apparently intent on shooting them is fair game to be shot and killed by the
police. The police must justify their resorting to lethal force. In this regard examples of factors that may be relevant
are the following: (i) the imminence of the danger; (ii) how threatening the danger is to life or limb; (iii) the nature
of the instrument, if any, the attacker is using in waging the unlawful attack; (iv) the proximity of the attacker and
the attacked; (v) the mobility of the attacker and the celerity of his/her movement; and (vi) how easy or difficult it
would be to apply force to a less delicate part of the body.” This dictum emphasises the fact that a defender cannot
act recklessly simply because the attacker is acting wrongfully; all relevant factors must be considered to determine
whether the defender acted reasonably. As a point of departure, the life of an innocent victim must nevertheless
receive preference over that of an attacker. In this regard, the CC in S v Makwanyane 1995 3 SA 391 (CC) 448–449
held as follows: “Self-defence is recognised by all legal systems. Where a choice has to be made between the lives
of two or more people, the life of the innocent is given preference over the life of the aggressor. This is consistent
with s 33(1) [of the interim Constitution, 1993; cf s 36(1) of the Constitution, 1996]. To deny the innocent person
the right to act in self-defence would deny to that individual his or her right to life. The same is true where lethal
force is used against a hostage taker who threatens the life of the hostage. It is permissible to kill the hostage taker
to save the life of the innocent hostage. But only if the hostage is in real danger. The law solves problems such as
these through the doctrine of proportionality, balancing the rights of the aggressor against the rights of the victim,
and favouring the life or lives of innocents over the life or lives of the guilty. But there are strict limits to the taking
of life, even in the circumstances that have been described, and the law insists upon these limits being adhered to.”
515 Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) 498; cf Boberg Delict 789; Van der Walt
516 Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) 503.
remains the reasonableness or otherwise of the defender’s conduct in the light of all the
circumstances.517
In summary, the following criteria may serve as points of departure for assessing the reason-
ableness or otherwise of an act of defence:
The value of the interests may differ. One may infringe a more valuable interest in order to
protect one of lesser value. Nevertheless, the value of the interests attacked and protected may
play an important role in determining whether the defender acted reasonably – such as in the
case of an extreme imbalance of interests.518
The interests need not be similar in character. A woman may defend her chastity by killing her
assailant if need be;519 a person may protect his possessions520 by assaulting the attacker521 and
even by killing him.522 Again, the proviso implies that extreme imbalance of interests will negate
________________________
517 Reasonableness is, however, not considered in abstracto (Ntsomi v Minister of Law and Order 1990 1 SA 512 (C)
528). Also, in balancing the interests, an objective test is employed: “The principle of proportionality involves an
objective balancing exercise” (Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) 839). According to
Holmes JA in S v Ntuli 1975 1 SA 429 (A) 437, a somewhat robust approach is followed by the court: “In applying
these formulations to the flesh and blood facts the Court adopts a robust approach, not seeking to measure with nice
intellectual calipers the precise bounds of legitimate self-defence or the foreseeability or foresight of resultant
death.” The conduct of the defender must be subjected to the boni mores test to determine whether the expectations
of the community have been met. When judging the conduct of the police, the question is, eg, according to the boni
mores: “[H]ow would a police officer, with the necessary training and acting reasonably, have handled the
situation?” (Ntamo 838–839; contra Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C) 410 where the
court felt that the conduct of the police merely needed to comply with the standard expected of “any member of the
public placed in a similar situation”).
518 Van der Merwe and Olivier 75.
519 S v Mokoena 1976 4 SA 162 (O); Loubser and Midgley Delict 220; Snyman Criminal Law 110–111.
520 Initially it was accepted that defence against theft of property is justified only where the property is valuable and
the thief’s identity unknown (R v Schultz 1942 OPD 56). However, as already mentioned, since Ex parte Die Minis-
ter van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) it is clear that the threatened interest need not necessarily be
valuable. The value of the interest threatened may, however, be a factor in determining whether the bounds of
defence have not been exceeded: very drastic acts of defence in protecting property of very little value may not be
justified under defence. Moreover, there is no reason why the identity of the thief must be unknown. Knowledge or
ignorance of the thief’s identity may, however, be considered in determining whether the defensive action was in
fact necessary.
521 Even before Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) our courts had stated that
violence against the person of another is legitimate when property or ownership is threatened. In R v Mahomed,
Goolam and Suliman (1906) 27 NLR 396 a police officer entered premises without a warrant, ie, unlawfully. The
court stated that the owners of the premises were entitled forcibly to resist the unlawful entry of their premises:
“Their proper course was to push him off the premises. They could, I suppose, have closed the door in his face”
(399). In casu they dragged the policeman into a room and hit and kicked him. Such drastic action exceeded the
bounds of self-defence. Also in R v Mutswasi (see 1931 SALJ 343) the court accepted the principle that a threatened
wrongful seizure of property may be opposed by force. Here the threat was averted by throwing stones at the
plaintiff, and he was injured. The court found that the bounds of defence had been exceeded because the accused
had continued to throw stones even after the plaintiff had begun to flee.
522 The question of whether a person may protect his property in defence by killing the attacker, was considered by the
Appellate Division in Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A). (For discussions of
this case, see, inter alia, Van der Merwe and Olivier 74–80; Boberg Delict 810–812; Snyman Criminal Law 109–
110; Loubser and Midgley Delict 220–221.) Before this case it was held that killing a thief in protection of property
can never be justified on the basis of defence (R v Schultz 1942 OPD 56). In the Van Wyk case the court had to
decide (i) whether one may in principle rely on the doctrine of defence when one has killed or injured another in
order to protect one’s property and, if the answer to this is in the affirmative, (ii) whether the bounds of defence
were exceeded in casu.
All the judges agreed that the answer to the first question should be in the affirmative. After a thorough
investigation of the works of the writers on the Roman-Dutch law, Steyn CJ came to the conclusion that killing in
defence of property is undoubtedly legitimate when the physical integrity or life of the person threatened is in
danger (496). When there is no danger to life or physical integrity, injury to the attacker was regarded by early
writers as justifiable. Opinions differed widely, however, on the question of whether killing was justifiable in the
absence of personal danger. The chief justice preferred the view that killing is legitimate in particular
[continued ]
116 Law of Delict
defence: killing in order to protect a piece of butter obviously exceeds the bounds of legitimate
defence; on the other hand, killing an attacker who is threatening to burn down one’s house is
probably permissible (provided, of course, that killing is the only reasonable way to prevent the
harm).523
The means of defence employed by the defender need not be similar to those of the attacker.524
The method of defence is determined in the first place by the means at the disposal of the
________________________
circumstances. The objection to the justification of killing in order to protect property is normally based on the
imbalance between the interests threatened and those attacked in defence: the law values a man’s life more highly
than his property. However, the chief justice was of the correct opinion, as already explained (supra 113–115), that
commensurability is not a valid requirement for private defence.
On the second question – whether Van Wyk exceeded the bounds of defence – the judges of appeal had differences
of opinion. The cardinal question, which must be answered in order to determine whether someone has exceeded
the bounds of defence, is whether the steps actually taken by him constituted the only reasonable method of
warding off the attack (supra 112–113). Van Wyk set up a gun in his shop to protect his property against thieves,
who had been a persistent problem in the past. A shot from this gun killed a burglar and Van Wyk was prosecuted
for murder. The question was whether he could succeed with defence as a ground of justification. The majority of
the judges decided that the setting-up of the gun was indeed the only reasonable possibility if Van Wyk wished to
protect his property: Van Wyk could not reasonably have been expected to sleep in his shop every night; burglar-
proofing, night-watchmen and watchdogs had proved ineffective; the police could not guard the shop, and an alarm
system would have been useless. Further, Van Wyk had not set up the gun in such a way as to demonstrate any
motive to kill. He had also put a notice warning of the danger on the door of the shop. All these circumstances
suggested that Van Wyk did not exceed the bounds of defence.
Rumpff JA motivated his minority view that the bounds of defence had been exceeded as follows: as point of
departure he accepted that the reasonableness of Van Wyk’s defensive act would have to be determined on the
same basis as if Van Wyk himself had fired the shot at the moment when the gun went off (504–505). The judge
based his argument on the premise that one may not do indirectly what one may not do directly. On this basis the
judge stated that if Van Wyk had been present himself he would first have had to warn the deceased and, if the
warning had been ignored, could only legitimately have wounded him in the leg, and not shot him in the hip.
According to the judge Van Wyk had not taken adequate steps in casu to warn anyone who might break in against
his “robot”, and therefore he had exceeded the bounds of defence.
This approach of Rumpff JA is open to criticism. If one finds on the basis of the facts that the only reasonable
possibility of warding off potential thieves is to set up a gun, then it is illogical to inquire into the reasonableness or
otherwise of the defensive act on the basis of the assumption that one handled the gun oneself when the shot went
off, and that one was on the scene oneself. If a person is obliged by necessity to set up a gun, the question that must
be asked is whether the setting-up of the gun was a reasonable action, and the gun cannot be expected to have
“acted” like a person present at the moment when the attack was taking place. To say that one may not do indirectly
what may not be done directly is to beg the question; if the law approves of the setting-up of a gun as the only
reasonably possible means of warding off attacks, the attacker and not the defender must run the risk of the gun’s
“actions” (Van der Merwe and Olivier 76 ff).
In S v Makwanyane 1995 3 SA 391 (CC) 449, Chaskalson P suggested that the position in the Van Wyk case will in
due course have to be reconsidered in the light of “our new legal order” and the Constitution, 1996. He declared
(ibid): “Self-defence is treated in our law as a species of private defence. It is not necessary for the purposes of this
judgment to examine the limits of private defence. Until now, our law has allowed killing in defence of life, but
also has allowed killing in defence of property, or other legitimate interest, in circumstances where it is reasonable
and necessary to do so. Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A). Whether this is
consistent with the values of our new legal order is not a matter which arises for consideration in the present case.
What is material is that the law applies a proportionality test, weighing the interest protected against the interest of
the wrongdoer. These interests must now be weighed in the light of the Constitution.” Cf Loubser and Midgley
Delict 221; Krause 2012 TSAR 469 ff.
523 Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) 503–504; cf Van der Walt and Midgley
Delict 195.
524 Cf Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C) 407; R v Patel 1959 3 SA 121 (A); Snyman
Criminal Law 110. In the Patel case the deceased struck the appellant’s brother on his back with a hammer. It was
obvious that the next blow could have struck him on the head as he was stooping. The appellant used the only
weapon at his disposal, his revolver, and shot and killed the deceased. Holmes J declared: “[I]t may well be that the
danger could have been averted by less drastic means. But . . . one must beware of being an arm-chair critic. The
appellant was suddenly confronted by an emergency not of his own creating. He had to act quickly. Delay on his
part might well have proved fatal to his brother . . . the next hammer blow might have landed on his head, for he
[continued ]
defender.525 In addition, the weapon of attack, the ferocity of the attack and the persistence of the
attacker influence both the defender’s choice of his method of defence and the question of
whether he applied it in a reasonable manner. The surrounding circumstances will therefore be
of decisive importance.526 In this connection, De Wet and Swanepoel527 state the following:
If defence is essential, and the attacker is not deterred by moderate weapons of defence, the attacked
person may ward off the attack, if necessary with the most powerful instruments.528
8.3 Necessity529
8.3.1 General
A state of necessity (“noodtoestand”) exists when the defendant is placed in such a position by
superior force (vis maior) that he is able to protect his legally recognised interests (or those of
someone else) only by reasonably violating the interests of an innocent person.530 For example:
A acts out of necessity if he knocks out the window of B’s burning house in order to rescue C,
who is trapped inside the house. A will not be liable to B for the damage to the window because
breaking the window was lawful. Necessity justifies A’s conduct; it gives A the power to break
the window and simultaneously restricts B’s right to his window. In other words, the state of
necessity gives A the power to act in a way which, in the absence of necessity, would have
infringed B’s right and would have been wrongful.
In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck,531 Nugent JA pointed out that al-
though the weight of academic opinion regards necessity as a ground of justification (that
cancels the wrongfulness of conduct) and accordingly regards the criterion for its determination
________________________
was in a crouching position after the first blow on his back . . . In this critical situation the appellant used the only
weapon to hand – his revolver. He fired at the deceased. In my view the Crown did not prove beyond reasonable
doubt that in doing this he exceeded the bounds of justifiable homicide” (124).
525 In Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 529, Van Deventer AJ stated: “[I]t would be
nonsensical to require equilibrium between the weapons used. An assailant selects his method of attack and picks
his weapon. A victim can only employ the weapon that happens to be at hand. An offender who uses an object such
as a stone to attack a policeman who is armed only with a shotgun is certainly not entitled to expect the policeman
to lay his shotgun neatly aside and to take up the challenge to a fight with a stone in his hand.” Cf Neethling,
Potgieter and Roos Neethling on Personality Rights 152.
526 See in general Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C) 407 ff; Dukhi v Culverwell 1903 NLR
21 27. With reference to the firstmentioned case Van der Walt and Midgley Delict 194 state: “The defender is only
entitled to use means and methods which are reasonably necessary to repel the wrongful attack and protect the
imperilled interest. The test is an objective one. The inquiry must be conducted without losing sight of the fact that
one must not expect too nice a discrimination or too careful a choice of weapons from a person required to act
promptly in a situation of imminent peril.” In Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 530 it was
also stated: “The victim of an unlawful assault is entitled to defend himself with whatever weapon he happens to
have at hand if he has no reasonable alternative. Thus, if an offender attacks a policeman who has a dangerous
weapon such as a shotgun in his hands, he has only himself to blame if the gun is used in self-defence.”
527 Strafreg 78 (translation).
528 For doubts as to the correctness of this statement as a general rule, see R v Zikalala 1953 2 SA 568 (A) 571.
529 See in general Loubser and Midgley Delict 213–217; Van der Merwe and Olivier 81–88; Boberg Delict 787 ff and
the sources cited at 794; Van der Walt and Midgley Delict 192–193; Snyman Criminal Law 114–122; Neethling,
Potgieter and Roos Neethling on Personality Rights 153–155; Fagan Aquilian Liability 276–283; Van der
Westhuizen Noodtoestand passim.
530 Neethling, Potgieter and Roos Neethling on Personality Rights 153–155. Van der Walt and Midgley Delict 192
defines an act of necessity as follows: “An act of necessity can be described as lawful conduct directed against an
innocent person for the purpose of protecting an interest of the actor or a third party (including the innocent person)
against a dangerous situation.” See also Burchell Delict 75; Maimela v Makhado Municipality 2011 6 SA 533
(SCA) 540; Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) 23; S v Adams, S v Werner 1981
1 SA 187 (A) 220; S v Bailey 1982 3 SA 772 (A) 796.
531 2007 2 SA 118 (SCA) 122; see Scott 2007 De Jure 391; Mukheibir 2007 Obiter 154 ff; Neethling and Potgieter
2007 THRHR 669.
118 Law of Delict
as an objective one, the jurisprudential niche of necessity in the scheme of delictual liability has
never been authoritatively determined, namely whether it excludes wrongfulness (and is
therefore a ground of justification) or whether it excludes negligence (and is therefore a defence
that cancels fault). According to Nugent JA, it was really not necessary to answer the last-
mentioned question in casu because he regarded both wrongfulness and negligence to be
concerned with whether the reasonable person in the position of the alleged wrongdoer would
have acted in the same manner.532 The same test was therefore incorrectly employed for both
delictual elements533 and in this manner the distinction between the two elements was blurred.534
Necessity must be clearly distinguished from private defence. The distinction is that when acting
in defence the actor’s conduct is directed at an attack by the wrongdoer; whereas when acting
out of necessity, his conduct violates the interests of an innocent third party.535 Consequently, a
person who defends himself against the attack of an animal acts out of necessity and not in self-
defence because an animal cannot “act” (wrongfully).536
________________________
532 Nugent JA explained (122–123): “Whether it operates to justify conduct that would otherwise be wrongful, or to
avoid a finding of negligence, the test for whether it operates at all calls for an objective evaluation. For the classic
test for negligence, as it was articulated by Holmes JA in Kruger v Coetzee [1966 2 SA 428 (A) 430], itself requires
not only that the harm was foreseeable, but also that a reasonable person would have guarded against it occurring.
Thus whatever the correct jurisprudential approach, a person who causes bodily injury by a positive act will avoid
liability for the harm that he caused, on either approach, only if a reasonable person in the position in which he
found himself would have acted in the same way.”
533 This conclusion is strengthened by the part of Nugent JA’s judgment italicized by us, where he stated (123 fn 9; see
further 124) that “[i]t seems to be suggested by Neethling et al … that the belief in which the defendant acted might
be relevant to whether he acted negligently, but not relevant to whether his conduct was wrongful. In my view that
cannot be correct. The law judges what is reasonable according to a single standard, that is applied in the context
within which the conduct occurred”. Be that as it may, Nugent JA’s opinion that our view is incorrect insofar as we
state that the defendant’s beliefs are relevant to negligence but not to wrongfulness, is not convincing. In the first
place his view does not accord with that of, eg, Van der Walt and Midgley Delict 193 fn 12 who clearly point out
that putative necessity can exclude fault, in the form of either intention or negligence (see further Boberg Delict
788): “It is submitted that the objective test requires a completely objective enquiry into the question of whether a
situation of danger actually existed at the time of the defendant’s conduct. The defendant’s beliefs, fears and the
like in this respect can only affect the question of fault, ie dolus or culpa.” In the second place there is case law that
endorses this view outright (see Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) 874–875 where our
view (see infra 196–198) was quoted with approval). See infra 193–198 for the distinction between wrongfulness
and negligence.
534 The correct approach would be to determine ex post facto (and not with reference to the ex ante reasonable-person
test of negligence – see supra 108 under private defence) whether there was a state of necessity, judged objectively
with reference to the circumstances that were really present and the consequences that really ensued (cf Steenkamp
NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 139 where Moseneke DCJ declared that “the
enquiry into wrongfulness is an after-the-fact, objective assessment”; see Neethling and Potgieter 2007 THRHR
671–672).
535 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) 122; Maimela v Makhado Muni-
cipality 2011 6 SA 533 (SCA) 539–540; Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) 23;
Van der Walt and Midgley Delict 192. Boberg Delict 789 states: “This remarkable difference between necessity
and defence rests on the policy consideration that, whereas the victim of necessity is innocent, the victim of defence
is himself an unlawful aggressor, in some degree unworthy of the law’s protection. The victim’s own turpitude is
therefore the key to this differential treatment – an important criterion when deciding whether a particular situation
is one of necessity or defence.” See also Van der Merwe and Olivier 81; Snyman Criminal Law 114í115;
Neethling 1998 THRHR 163. For a case where the distinction between necessity and private defence was not borne
in mind, see Robbertse v Minister van Veiligheid en Sekuriteit 1997 4 SA 168 (T); for comment see Neethling 1998
THRHR 160 ff.
536 Supra 108. The courts sometimes incorrectly refer to this type of defensive act as defence: Du Plessis v Van
Aswegen 1931 TPD 332 (where the defendant was justified in killing the plaintiff’s donkey which created havoc on
the plaintiff’s property); cf S v Moller 1971 4 SA 327 (T); Van der Bijl v Richter 1921 CPD 316; Van der Merwe
and Olivier 72 81; Boberg Delict 791; Van der Walt and Midgley Delict 192; Snyman Criminal Law 115.
8.3.2 Requirements for necessity

(a) The state of necessity must exist or be imminent.537 In other words, it must not have
terminated or be expected in future.538 It is also irrelevant whether it has been caused by human
action, animals, or forces of nature.539
The existence of a state of necessity must be determined objectively,540 taking into consideration
the circumstances which actually prevailed and the consequences which actually ensued.541 The
question is whether, viewed ex post facto, a state of necessity actually existed, not whether the
defendant believed it to exist.542 (Putative necessity therefore does not constitute necessity.) The
fact that the defendant was in a state of terror is also not relevant. Only actual necessity is
important. Although a subjective factor such as terror may indicate the existence of a state of
necessity, the fact that a person experiences fear does not necessarily justify the conclusion that
a state of necessity in fact exists.543 Fear may either influence the defendant’s accountability
(“toerekeningsvatbaarheid”) or his fault, as will be illustrated later,544 but not the wrongfulness
of his conduct.
(b) A legally recognised or protected interest of the actor or someone else must have been
endangered.545 The defendant need not only protect his own interests, but may also protect the
interests of others.546 Moreover, the prejudiced and the protected party may be the same
person.547 Not only life or physical integrity,548 but also other interests, such as property549 may
________________________
537 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) 123; Maimela v Makhado
Municipality 2011 6 SA 533 (SCA) 540; Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) 23.
See also Burchell Delict 75; Van der Merwe and Olivier 82; Snyman Criminal Law 118; Loubser and Midgley
Delict 216.
539 Van der Walt and Midgley Delict 192; Snyman Criminal Law 114; Loubser and Midgley Delict 215. Van der
Merwe and Olivier 82 give the following example: “For example, where I jump on another's scooter parked next to
the road, and race away in order to save my life, it is not relevant whether the cause of my hasty departure was a
gang of murderous mobsters, a fierce jersey bull or fiery lava” (translation).
540 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) 122; Petersen v Minister of Safety
and Security [2010] 1 All SA 19 (SCA) 23; Van der Walt and Midgley Delict 192.
541 Van der Walt and Midgley Delict 193 fn 12; Neethling and Potgieter 2007 THRHR 671; Neethling 1975 THRHR
302. See on the burden of proof fn 456 supra.
542 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) 122. Putative (imagined) necessity
is therefore not in fact necessity. In S v Pretorius 1975 2 SA 85 (SWA) the appellant was found guilty of exceeding
the speed limit. It appeared that the appellant’s two-year-old child had taken a number of pain tablets, that the
appellant believed that the child’s life was in danger and that he wanted to get the child to a hospital as quickly as
possible, hence the speeding violation. On appeal the court found that the appellant acted out of necessity and set
the conviction aside. In reality there was no question of necessity. Objectively seen, the child’s life was never in
danger. (The only symptom which could possibly be attributed to the overdose of pills, was an upset stomach the
following day.) The fact that the appellant subjectively believed that a state of necessity existed, does not mean that
it existed in fact. (The absence of a state of necessity in this particular case, resulting in wrongful conduct on the
part of the appellant, does not necessarily mean that a conviction would be appropriate. For a conviction fault is a
prerequisite. In casu both intent and negligence were absent: the appellant believed in good faith that a state of
necessity existed and in addition he acted like a reasonable person in the circumstances (see infra 159 and 164 on
intent and negligence).) See further Neethling 1975 THRHR 302; Van der Merwe and Olivier 82; Boberg Delict
798; Van der Walt and Midgley Delict 192.
543 In R v Mahomed 1938 AD 30 the court apparently established whether a state of necessity existed or not with
reference to a subjective factor, namely the fear of the persons raising the defence of necessity: “The fear of attack
by the Indians existing in the minds of the accused was reasonable and their conduct must be judged in the light of
that fear” (36). Cf Boberg Delict 791.
544 Infra 157 ff.
545 Maimela v Makhado Municipality 2011 6 SA 533 (SCA) 540; Loubser and Midgley Delict 214–215.
546 Eg, where a father protects his child (cf S v Pretorius 1975 2 SA 85 (SWA) 85; Van der Merwe and Olivier 82;
Snyman Criminal Law 118). See also Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) 23.
547 Van der Merwe and Olivier 83 mention two examples: a surgeon who carries out an emergency operation on a
person (the patient’s bodily integrity is simultaneously violated and protected by the surgeon); and A who throws
[continued ]
120 Law of Delict
be protected in necessity. (Conversely, any interest, such as honour,550 privacy,551 identity,552

freedom553 and feelings,554 may be violated in a state of necessity.)
(c) The act in necessity must have been necessary to protect the threatened interest. In
other words, the actor must not have had any other reasonable means of averting the danger.555 If
the defendant can escape from the emergency by fleeing, he must do so.556
(d) The means used for averting the danger must not have been excessive but reasonable
in the circumstances.557 In general, the interest sacrificed must not be more valuable than the
interest protected.558 In contrast with private defence,559 the so-called principle of commensur-
ability (proportionality) of interests therefore applies in the case of necessity.560 It is not possible
________________________
sand on the burning engine of B’s car extinguishing the fire but in the process damaging the engine (here B is both
the injured and protected party: in order to protect B’s superior interests (the car) out of necessity, A has to infringe
B’s lesser interests (the engine)).
548 Van der Merwe and Olivier 82; Snyman Criminal Law 118. The most obvious example of conduct protecting life
or limb in a state of necessity is that of a medical doctor who treats a patient in an emergency without the patient’s
consent (Stoffberg v Elliott 1923 CPD 148 150). This does not mean that a doctor has a “professional right” in
terms of which he may treat patients at will without their consent (Van der Merwe and Olivier 107–108). A doctor
must always obtain the consent of his patient (see on consent infra 128), except where his intervention is reasonable
as a result of necessity or, possibly, negotiorum gestio (“saakwaarneming”). (Negotiorum gestio is present where a
person attends to the interests of another without the latter’s permission: eg it would be lawful to break down one’s
neighbour’s door in his absence in order to switch off the water when the pipes in his roof have burst and the house
has been flooded. In the case of negotiorum gestio a person acts reasonably even if he causes damage to the person
in whose interest he is acting. Not only is the negotiorum gestor not liable for the loss which he causes; in addition
he may claim compensation for all reasonable costs incurred in the process: see Van der Merwe and Olivier 107.)
See further on acting out of necessity to protect life or limb, eg R v Mahomed 1938 AD 30; S v Goliath 1972 3 SA 1 (A).
549 In Roman law a person could, eg, throw cargo from a ship in order to prevent the ship from sinking (D 19 5 14 pr),
and break down his neighbour’s house in order to protect his own from the threat of fire (D 47 9 3 7). In Du Plessis
v Van Aswegen 1931 TPD 332 the court found that the defendant was entitled to shoot the plaintiff’s donkey which
had caused damage on the defendant’s property, but in Van der Bijl v Richter 1921 CPD 316 the defendant was not
entitled to shoot the plaintiff’s sheep which came onto his property. See further Van der Westhuizen Noodtoestand
23–25; Van der Merwe and Olivier 82; Snyman Criminal Law 118.
550 Cf Fayd’herbe v Zammit 1977 3 SA 711 (D) 719; Neethling, Potgieter and Roos Neethling on Personality Rights 279.
551 Eg: to escape the threat of a devastating hail storm or violent agitators, refuge is sought in the private home of
another; a medical doctor is compelled to examine an unconscious person; a father publishes personal information
regarding his missing son, who suffers from amnesia, in the hope that the information will help in locating his son
(Neethling, Potgieter and Roos Neethling on Personality Rights 335–336).
552 Eg: in order to protect B’s physical integrity, A provides C, who intends assaulting B, with false information
regarding B’s whereabouts (Neethling, Potgieter and Roos Neethling on Personality Rights 359).
553 Eg: during a storm the captain of a ship temporarily locks the passengers below deck in order to prevent the ship
from going down (Neethling, Potgieter and Roos Neethling on Personality Rights 178; Snyman Criminal Law 118).
554 Eg: a third party convinces a married woman who is seriously ill to undergo treatment in a hospital against the
wishes of her husband, or harbours her when he finds her in a drunken state on the street. The acts committed by
the third party out of necessity justify the apparent enticement and harbouring which normally would have
constituted an infringement of the feelings of the woman’s husband (consortium) (Neethling, Potgieter and Roos on
Personality Rights 304; infra 430).
Municipality 2011 6 SA 533 (SCA) 540; Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) 23;
Van der Merwe and Olivier 85; Burchell Delict 75; Van der Walt and Midgley Delict 192; Snyman Criminal Law
119; Loubser and Midgley Delict 216.
556 S v Bradbury 1967 1 SA 387 (A) 390 392–393 404; Van der Merwe and Olivier 85; Snyman Criminal Law 119.
Municipality 2011 6 SA 533 (SCA) 540; Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) 23;
Burchell Delict 75.
558 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) 123; Van der Merwe and Olivier
82–83; Van der Walt and Midgley Delict 192; Snyman Criminal Law 119í120.
559 Supra 113 ff.
560 Cf Maimela v Makhado Municipality 2011 6 SA 533 (SCA) 541. As Boberg Delict 788 correctly argues, the
requirements for necessity are therefore stricter than the requirements for defence; see also fn 535 supra; cf Van der
Walt and Midgley Delict 192; Loubser and Midgley Delict 216.
to lay down fixed principles to determine whether the protected interest was more valuable or
less valuable than the interest sacrificed, or of similar value to it. 561 The answer will depend on
the circumstances of each particular case.562
Flowing from this requirement is the difficult question of whether necessity may ever justify
homicide.563 Following English law,564 our law initially answered this question in the nega-
tive.565 In other words, the killing of an innocent person was viewed as a greater evil than the
death of the threatened person; an individual was expected to sacrifice his own life rather than
kill another in order to save himself. However, in the criminal case S v Goliath,566 the Appellate
Division held by implication that homicide may be justified by necessity. A, under compulsion
from B, and fearing for his own life, assisted B in killing C. The court had to decide whether A’s
defence of necessity could be upheld. This meant that the life of the threatened person had to be
weighed against the life of the deceased. Whereas it had been formerly accepted that the killing
of an innocent person out of necessity was not justified, Rumpff JA now said:567
It is generally accepted, even by moralists, that an ordinary human being regards his own life as more
important than that of another person. Only he that is imbued with a quality of heroism, will purposefully
sacrifice his own life for someone else. If criminal law provided that compulsion could never be a
defence to a charge of murder, it would require a person who killed another person under compulsion,
irrespective of the circumstances, to comply with a standard higher than that expected of an average
human being. Such an exception to the general principle applied in criminal law, does not appear to me
to be justified.
It is clear from this dictum that the law recognises the conviction of the community that a per-
son’s own life is more important to him than the life of another. Therefore, the majority
judgment clearly supports the view that compulsion (a form of necessity) may justify homicide.
Such justification will depend entirely on the circumstances and must be judged with the greatest
________________________
561 “Essentially what is called for, is a weighing against one another of the gravity of the risk that was created by the
defendant and the utility of his conduct” (per Nugent JA in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck
2007 2 SA 118 (SCA) 123).
562 Van der Walt and Midgley Delict 192; Neethling, Potgieter and Roos Neethling on Personality Rights 153–155.
563 See, inter alia, Van der Westhuizen Noodtoestand 617–696; Boberg Delict 793 and the authorities cited therein;
Van der Merwe and Olivier 83 ff; Van der Walt and Midgley Delict 192; Snyman Criminal Law 120–122; Loubser
and Midgley Delict 216–217.
564 The English decision which for many years served as a directive in this regard, is the well-known R v Dudley and
Stephens (1884) 14 QBD 273. Two people who had been adrift on a small boat after a shipping disaster, were
convicted of murder after they had cut the throat and eaten the weakest of the passengers in order to stay alive after
twenty days at sea and eight without food. The court rejected a plea of necessity as a defence against the murder
charge and found that necessity can never justify the killing of an innocent person. (See Burchell 1977 SALJ 282
and Van der Merwe 1989 THRHR 453 for an overview of later developments in English law; see also Boberg
Delict 793.)
565 R v Mtetwa 1921 TPD 227 230 231–232 (obiter); R v Werner 1947 2 SA 828 (A) 837 (obiter); S v Mneke 1961 2
SA 240 (N) 243. See, however, R v Garnsworthy 1923 WLD 17 21 (compulsion recognised obiter as a defence
against a murder charge). (Cf in general Van der Westhuizen Noodtoestand 684.) De Wet and Swanepoel Strafreg
80 (3 ed; cf 4 ed 92) also believe that homicide is not justified by necessity: “A human being may never regard his
own life as more important than that of another. Much rather one would expect that a person would sacrifice his
own life to save another, than that he would save his own life at the expense of another” (translation).
566 1972 3 SA 1 (A). See for a discussion of this case, inter alia, Van der Merwe and Olivier 84 ff; Boberg Delict 793
820–821; Snyman Criminal Law 121.
567 25 (translation). In a minority judgment Wessels JA concluded that necessity could not justify the killing of an
innocent person. According to him, necessity could, however, exclude fault. Rumpff JA did not wish to bind
himself by stating whether compulsion was a ground of justification or a ground excluding fault. (See also S v
Bailey 1982 3 SA 772 (A) 796.) In our opinion this view is correct. As the judge himself said, it will depend
entirely on the particular circumstances whether fault or wrongfulness is excluded by the state of necessity (25–26).
This matter is fully discussed in the chapter on fault (infra 155). Nevertheless, for a discussion of the question of
whether necessity, as raised in the Goliath case, excludes wrongfulness or fault, see Van der Merwe and Olivier
84–85; Boberg Delict 795–799; Snyman Criminal Law 120–127; Van der Westhuizen Noodtoestand 684 695.
122 Law of Delict
circumspection,568 569 particularly in light of the right to life which is entrenched in section 11 of
the Constitution.570
Note also the following in connection with necessity.
(a) It is not clear whether the defendant may rely on a state of necessity which he himself has
created.571 There is authority for both the view that a state of necessity created by the defendant
excludes a plea of necessity,572 and for the view that a person may rely on necessity even though
he has himself created the state of necessity.573 The last-mentioned view appears to enjoy the
most support.574
________________________
568 Van der Merwe and Olivier 84–85 support the view that in certain instances homicide may be justified by neces-
sity, eg where a single life has to be sacrificed for more lives. An eg of this is where a crack develops in the side of
a ship and the captain, in order to save the ship and most of the passengers, shuts off the damaged part of the ship
with watertight doors, resulting in the death of people in the damaged part. After a discussion of this example Bo-
berg Delict 794 stresses that fixed rules cannot be laid down: “Perhaps the only answer to these and other conun-
drums is to say that the court must determine whether the sacrifice of human life was objectively reasonable in all
the circumstances of the case before it – a value judgment amenable to no rules.”
569 As indicated by Boberg Delict 789, the difference between defence and necessity also finds expression here:
“Whereas necessity will ‘hardly ever’ justify the taking of a human life . . . it has been held that defence may do so
even to protect property – albeit only in the most exceptional circumstances [see Ex parte Die Minister van
Justisie: In re S v Van Wyk 1967 1 SA 488 (A)]. A fortiori will defence of one’s own or another’s life justify killing
the aggressor, if this be reasonably necessary in the circumstances (see Ntanjana v Vorster and Minister of Justice
1950 4 SA 398 (C) . . .).”
570 Maimela v Makhado Municipality 2011 6 SA 533 (SCA) 541. In this case the defendant, who was attacked by
violent strikers threatening his life, shot and killed an innocent bystander. The SCA confirmed the decision in S v
Goliath 1972 3 SA 1 (A) that a defendant will not act wrongfully where he can demonstrate that his conduct with
regard to the killing of an innocent person was objectivity reasonable in the particular circumstances, taking
account of the principle of proportionality. Referring to the remark in Crown Chickens (Pty) Ltd t/a Rocklands
Poultry v Rieck 2007 2 SA 118 (SCA) 123 that “the greater the harm that was threatened, and the fewer the options
available to prevent it, the greater the risk that a reasonable person would be justified in taking, and vice versa”,
Mpati P stated that “there can be no greater harm than a threat to one’s life” (541). See also Petersen v Minister of
Safety and Security [2010] 1 All SA 19 (SCA) 23 for a similar finding on comparable facts; see further Neethling
and Potgieter 2011 JJS 110.
571 Van der Merwe and Olivier 85–86, Snyman Criminal Law 118–119.
572 S v Kibi 1978 4 SA 173 (E) 179; S v Bradbury 1967 1 SA 387 (A) 393 404. In the last-mentioned case it was stated
obiter that a person who voluntarily joins a gang knowing what the gang’s disciplinary code expects of him, may
not later rely on necessity if the gang compels him to murder.
573 Snyman Criminal Law 118–119. He argues that the opposite view would mean, eg, that a parent who wrongfully
neglected to keep an eye on his baby with the result that the child swallowed an overdose of pills, would not be
allowed to exceed the speed limit while rushing the baby to hospital, but would have to resign himself to the child’s
dying. For authority for the view that a person may rely on necessity even if he created it himself, see S v Pretorius
1975 2 SA 85 (SWA) 90; R v Mahomed 1938 AD 30. (In the latter case the accused kidnapped a girl, and because
of this they were attacked. A defence of necessity was successfully raised by the accused in justification of their
defensive actions against the attack, although they themselves were responsible for the state of necessity.) This
approach is also supported by, inter alia, Van der Merwe and Olivier 85–86 and Van der Westhuizen Noodtoestand
608 612.
574 Proponents thereof argue that the conduct creating the emergency and the defensive act should be kept apart. If the
conduct creating the emergency constitutes a crime or causes damage, the defendant should be held liable for it;
nevertheless, such conduct should not preclude him from acting out of necessity in order to escape from the
emergency. Where, eg, A starts a fire inside a house and then has to break a door in order to escape, A should, on
the basis of this argument, be liable for the damage caused by the fire, but not for the damage to the door, because
such damage was caused out of necessity, admittedly self-induced (cf Snyman Criminal Law 118–119). However,
Van der Merwe and Olivier (86) argue with reference to the same example that A will not necessarily escape
liability for the damage to the door. Although breaking the door was lawful because it took place out of necessity,
the damage to the door was nevertheless caused by the preceding unlawful conduct that created the state of
necessity, ie, the arson. Damage to the door was therefore lawful with reference to the defensive conduct (breaking
the door), but wrongful with reference to the conduct creating the emergency (the arson). According to this
argument, every act committed out of necessity is lawful, irrespective of whether it was caused by the defendant or
not, but damage caused thereby may still be actionable because it is (factually and legally) causally connected to a
[continued ]
(b) A person may not rely on necessity where he is legally compelled to endure the danger.575
Logically, the fact that the law compels him to endure the state of necessity means that he lacks
the power to avoid it. If he does act, he infringes the right of another person. In this connection,
for example, a landowner may not alter the natural flow of water on his land so that it causes
damage to others, even where his own interests are threatened by flood waters.576 On the other
hand, it has been held that a landowner may drive a swarm of locusts away from his land onto
the land of his neighbour.577
8.3.3 Necessity and impossibility578

Necessity must be distinguished from impossibility, which may also constitute an emergency
situation. The concept impossibility may play a role in excluding liability when applied to
different elements of a delict, namely conduct, wrongfulness and fault. Therefore, impossibility
is not necessarily a ground of justification that excludes wrongfulness.
Impossibility and conduct579 A person (A) who causes harm because he found it absolutely or
physically impossible to act (eg, A fails to go to work because B locked him up, with resultant
loss to A’s employer), or to act in a different manner (B grabs the hand of the weaker A and with
it breaks an expensive vase), is not liable because he failed to act. Conduct is absent and con-
sequently the question of wrongfulness does not arise. Absolute impossibility is therefore not a
ground of justification such as necessity, but a circumstance excluding conduct.
Impossibility and wrongfulness580 Where impossibility does not amount to an absolute, physi-
cal impossibility, it may exclude wrongfulness. Regal v African Superslate (Pty) Ltd 581 provides
a good example. A, the owner of a piece of land traversed by a stream, requested an interdict
forbidding B, the owner of a farm bordering the stream at a higher point, to allow loose slate to
wash down onto his (A’s) land, because there was a danger that the stones could cause damage
to A’s property. The court found that while it would have cost B approximately R10 000 to build
a wall to prevent the slate washing down, the possible damage to A’s land would probably be
slight. Under the circumstances, B’s failure to build the wall was not wrongful because it was
impossible for him to avert the threatening damage. In this sense “impossible” does not mean
physically or absolutely impossible (it was indeed physically possible to build the wall), but
rather “impossible” according to the legal convictions of the community as to what one could
reasonably expect from B. To determine what is reasonably possible, the interests that B would
have to sacrifice to avert the danger (R10 000) are weighed against A’s interests that would
probably be infringed should B fail to act (an interest in his property not being slightly
damaged).582 In accordance with the general test for wrongfulness it was therefore, in light of the
circumstances, “impossible” to build the wall. Here impossibility is a ground of justification that
excludes wrongfulness.
________________________
preceding wrongful act (infra 215).

575 Van der Merwe and Olivier 85; Van der Walt and Midgley Delict 192; Loubser and Midgley Delict 216; Snyman
Criminal Law 119.
576 In Dickens v Lake (1906) 23 SC 201 204 it was stated: “He cannot be allowed, because there is an exceptionally
heavy rainfall, to create an obstruction in the flow so as to divert the water on to the lands of others where it would
not naturally flow.” (Also Hugo v Page 1944 CPD 119.) Damage caused by the wrongful diversion of water is
recoverable not only with the actio legis Aquiliae but also with the old Roman law remedies, the actio aquae
pluviae arcendae and interdictum quod vi aut clam which are still recognised by our law (infra 442 fn 107).
577 Greyvenstein v Hattingh 1911 AD 358.
578 Van der Merwe and Olivier 87–88; Van Oosten 1986 THRHR 375–410.
579 See supra 27 on conduct; Van Oosten 1986 THRHR 379–391 406–407.
580 Loubser and Midgley Delict 228.
581 1963 1 SA 102 (A). See in general Van Oosten 1986 THRHR 392–396 407.
582 See 111–112 121–122.
124 Law of Delict
Impossibility and fault A person who is unable to control his impulses may also, in appro-
priate circumstances, avoid liability on the basis that he lacks accountability and thus the fault
element is absent.583
8.4 Provocation584
8.4.1 General
Provocation is present when a defendant is provoked or incited by words or actions to cause
harm to the plaintiff. 585 Our courts recognise provocation as a complete defence in the sense that
the plaintiff who provoked the defendant may have to forfeit any compensation for injury to
personality586 caused by the defendant’s conduct.587
There is no unanimity regarding the correct legal basis for the defence of provocation.588 This is
particularly evident when one considers the question of whether provocation constitutes a
ground of justification, or a ground excluding fault, or whether it merely serves to mitigate (or
even reduce to nothing) the damages recoverable by the plaintiff.589
We prefer the view that provocation is a ground of justification that renders the defendant’s
conduct lawful. The defence of provocation is assessed objectively by weighing the provocative
conduct against the reaction to it using the criterion of reasonableness – the boni mores.590
________________________
583 On the capacity to be held accountable as a requirement for fault, see infra 157.
584 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 155–157; Loubser and Midgley
Delict 221–223; Van der Walt and Midgley Delict 204–207; Van der Merwe and Olivier 98 fn 7 112 436; Boberg
Delict 827 ff; Snyman Criminal Law 230 ff; Neethling 1989 SALJ 694; Van Aswegen 1982 De Jure 368 and
authority cited in Bester v Calitz 1982 3 SA 864 (O) 875 ff.
585 Eg: X insults Y and Y returns the insult. Alternatively, X assaults Y, whereupon Y assaults X. Should X now
institute a claim against Y, Y relies on provocation: he claims that X provoked (enticed) him and that for this
reason X’s claim should fail.
586 According to D 9 2 45 4 provocation cannot be a defence against a claim for pecuniary loss in terms of the lex
Aquilia: see also Neethling, Potgieter and Roos Neethling on Personality Rights 155; cf however Mehnert v
Schlemmer (1908) 18 CTR 783.
587 Eg Bester v Calitz 1982 3 SA 864 (O) 875 880–881; Bennett v Minister of Police 1980 3 SA 24 (C) 31–32; Powell
v Jonker 1959 4 SA 443 (T) 445–446; Thomson v Harding 1914 CPD 32 34; Wapnick v Durban City Garage 1984
2 SA 414 (D) 419–420; Dzvairo v Mudoti 1973 3 SA 287 (RA); Mordt v Smith 1968 4 SA 750 (RA).
588 See Bester v Calitz 1982 3 SA 864 (O) 875 ff for an exposition of different juridical bases for provocation as a
defence; cf also Winterbach v Masters 1989 1 SA 922 (E); Snyman Criminal Law 230 ff for a detailed discussion
of the role of provocation in criminal law.
589 Cf Loubser and Midgley Delict 222. The following judicial and juristic authority supports the view that provocation
may be a ground of justification, cancelling the wrongfulness of the defendant’s conduct: Wapnick v Durban City
Garage 1984 2 SA 414 (D) 419–420; Bester v Calitz 1982 3 SA 864 (O) 877–881; Dzvairo v Mudoti 1973 3 SA
287 (RA) 288; Mordt v Smith 1968 4 SA 750 (RA) 751; Van der Walt and Midgley Delict 204–207; Neethling
1989 SALJ 694, Neethling, Potgieter and Roos Neethling on Personality Rights 155; Van Aswegen 1982 De Jure
370–371; Burchell Defamation 272–273.
Conversely the following case law and writers are of the opinion that provocation cannot constitute a complete
defence, rendering the defendant’s conduct lawful: Winterbach v Masters 1989 1 SA 922 (E) 925; Wessels v
Pretorius 1974 3 SA 299 (NC) 301; Powell v Jonker 1959 4 SA 443 (T) 444–445; Van der Merwe and Olivier 98
fn 7; Boberg Delict 828–829 834–837. Most of the latter group, however, acknowledge that provocation may affect
the defendant’s mental capacity so as to exclude fault, and also subscribe to the view that the plaintiffs’s claim for
damages may be diminished or even extinguished as a result of his provocative conduct: cf, eg, Winterbach v
Masters 1989 1 SA 922 (E) 925; Boberg ibid.
590 This test is aptly applied in Bester v Calitz 1982 3 SA 864 (O) 878–881. According to some of the facts of this case,
C provoked B by swearing at him, whereupon B swore back at C. C instituted a claim against B on the ground of
defamation and insult. Kotze AJ dealt with provocation as a ground of justification, inter alia, in the following
manner: “[It cannot be said] that [C’s] dignitas has been wrongfully infringed by [B’s] verbal abuse. I will accept in
[C’s] favour that the verbal abuse constituted a factual infringement of his dignitas, but this in itself does not entitle
him to satisfaction. This infringement was brought about by [B’s] uncontrolled anger and this anger was, in my
[continued ]
Provocation must be distinguished from private defence. As stated,591 one acts in self-defence in
order to avert an attack that is imminent or has already commenced. Retaliatory conduct after the
attack has terminated exceeds the bounds of defence. Conduct as a result of provocation, by
contrast, takes place immediately after the provocative conduct has terminated; it is, in other
words, “an act of revenge”592 in contrast with “an act of defence”.593
Provocation may be raised as a defence against actions for the violation of different aspects of
personality, for example honour,594 reputation595 and physical integrity.596
8.4.2 Provocation in the case of physical assault

As a general rule, provocation is not a complete defence where provocative words preceded a
physical attack;597 and this is so even where the words were gravely insulting and defamatory of
the defendant’s spouse.598
________________________
opinion, a humanly natural reaction to [C’s] immediately prior provocative conduct. Since the infringement did not
exceed the borders of what could have been reasonably expected, it can consequently not be branded as an
unreasonable infringement and therefore as wrongful” (879) (translation); see also Loubser and Midgley Delict
222–223). Boberg Delict 828–829 834–837, however, does not accept that provocation may justify physical
assault. He argues (829) that assault in retaliation to provocative physical aggression is “natural, but it is against the
law” (cf Blou v Rose Innes 1914 TPD 102 104). In his view the reason why the law does not recognise provocation
as a ground of justification, is to educate people “to display self-control in the face of provocation” (836). The
contrary argument which is to be preferred is that an assault in retortio should be permitted by the law because it is
the natural reaction of even the most reasonable man and accordingly the (laudable) function of the law should be
to educate people not to provoke others (cf Neethling 1985 THRHR 251–252, 1989 SALJ 699; Bester 880).
591 Supra 111 ff.
592 Cf Van der Walt and Midgley Delict 206.
593 The difference between private defence and provocation may be explained with reference to the facts in R v Van
Vuuren 1961 3 SA 305 (E). The appellant was prosecuted for assault. He had forcefully grabbed the complainant
by the arm after the complainant had insulted the appellant’s wife. The appellant raised defence as a ground of
justification, and this was accepted by the court: he grabbed the complainant by the arm in order to prevent the
complainant from continuing with his insults. Therefore the appellant acted in defence because he averted further
damage. However, had it been clear that the verbal abuse had already terminated when the appellant took the
complainant’s arm, the appellant would not have been in a position to rely on private defence. In such a case the
appellant’s conduct would not have amounted to an act of defence, but to an act of revenge. Would the appellant
then have been justified in relying on provocation? Apparently our courts do not allow physical attacks in
retaliation against merely provocative words: see fn 597 infra.
595 Idem 236–237.
596 Idem 155–156.
597 In other words, X who slaps Y merely because Y verbally provoked him, cannot rely on provocation as a defence
(see, inter alia, Bennett v Minister of Police 1980 3 SA 24 (C) 31–32; Blou v Rose Innes 1914 TPD 102). Such
provocation may nevertheless have the effect of mitigating the damages (Blou v Rose Innes 1914 TPD 102 104–
105; Keyzer v Marais (1910) 20 CTR 839). On the other hand, an assault resulting from the fact that the defendant
was called a liar, was fully excused in Saget v Bataillou (1868) 1 Buch 32; while in Parker v Scott (1894) 14 NLR
218 219 it was held that verbal provocation may in certain instances be a complete defence.
Although we support the premise that mere verbal provocation should not justify a physical assault, we do not
believe that this should be an inflexible principle. The basic norm is still the legal convictions of the community,
and cases may certainly arise where the verbal incitement is of such a nature that in the particular circumstances the
resultant physical assault might be considered reasonable. Eg, X, a frail woman, who slaps Y, a bully who rudely
insulted her, should be in a position successfully to raise a defence of provocation against Y’s claim against her for
assault and insult. The fact that the law allows her conduct in such a case, should not be interpreted to mean that the
law indiscriminately allows unlimited self-help. It should rather be seen as a demonstration of the law’s aversion to
insulting and provocative conduct.
598 Bantjes v Rosenberg 1957 2 SA 118 (T). (See, however, D 48 5 22 3 where a father who assaulted a man whom he
had caught red-handed having intercourse with his daughter was excused on the ground of provocation (cf fn 604
infra).) Note that if the physical attack meets the requirements for private defence, it is lawful (R v Van Vuuren
1961 3 SA 305 (E) 307–308). Whilst conduct as a result of provocation is basically an act of revenge which takes
place after the termination of the provocation, an act of defence takes place in defence of a wrongful attack which
has not yet terminated: supra 111.
126 Law of Delict
However, where the provocation takes the form of a physical assault, such provocation may very
well serve as a ground of justification for a subsequent counter-assault of a physical nature (or,
in the words of those who prefer not to regard provocation as a ground of justification, as a
ground reducing to nil the damages recoverable by the plaintiff); in other words, such
provocation may serve as a complete defence against an action based on assault, provided that two
requirements are met.599
(a) The provocative conduct must be of such a nature that a reaction to it by means of a
physical assault is reasonable, and accordingly “excusable”.600 The question is whether,
viewed objectively, the reasonable person in the position of the defendant would have acted as
the defendant did in light of the provocation.601 602
(b) The conduct of the provoked defendant must be an “immediate and reasonable retalia-
tion”603 against the body of the plaintiff.604 Not only must the retortio or act of revenge follow
immediately on the provocation;605 it must also, judged objectively, be reasonable.606 Here
“reasonable” means “that the physical assault by the second person is not out of proportion in its
nature and degree to the assault by the first aggressor”.607 The violation of interests in retortio
must, in other words, be commensurate with (ie, not out of proportion to) the preceding
violation.608 Normally this means that the different interests must be of equal value and similar
in nature. Whether this is the case is determined objectively with reference to all the surrounding
circumstances. If the bounds of the defence are exceeded by unreasonable conduct, provocation
________________________
599 Neethling, Potgieter and Roos Neethling on Personality Rights 156–157; Loubser and Midgley Delict 223.
600 If the provocation fails to excuse the assault completely, it may nevertheless lead to a mitigation of the damages (cf
Winterbach v Masters 1989 1 SA 922 (E) 925; Mordt v Smith 1968 4 SA 750 (RA) 751).
601 Bester v Calitz 1982 3 SA 864 (O) 878–881; Neethling, Potgieter and Roos Neethling on Personality Rights 156.
Amerasinghe 1967 SALJ 72 makes the following comments with reference to case law: “It would seem to be
implied in these cases that the court must decide on an objective test whether in all the circumstances of the case a
reasonable man in the position of the defendant would have been provoked by the unlawful act of the plaintiff to
retaliate with an assault. In other words, the question is not simply whether the defendant as an individual was in
fact provoked by the plaintiff’s action.” The same approach is evident in Bennett v Minister of Police 1980 3 SA 24
(C) 31: the court inquired whether a constable with 12 years’ experience would have been provoked by the conduct
concerned – therefore an objective test is used (see further Van Aswegen 1982 De Jure 371).
602 Objective adjudication does not imply that the defendant’s subjective rage is irrelevant. Indeed, there cannot be any
question of a justified counter-reaction in the absence of such rage. Therefore Van Aswegen’s criticism 1982 De
Jure 371 of Bester v Calitz 1982 3 SA 864 (O) 879 is not convincing (Neethling, Potgieter and Roos Neethling on
Personality Rights 156). Moreover, the violent emotions experienced by a person in a fit of rage may be of such a
nature that he lacks the capacity to be held accountable (Van der Merwe and Olivier 112; on the capacity to be held
accountable, see infra 157).
603 Powell v Jonker 1959 4 SA 443 (T) 445; also Dzvairo v Mudoti 1973 3 SA 287 (RA); Neethling, Potgieter and
Roos Neethling on Personality Rights 157.
604 D 48 5 22 3 mentions the case of a father who caught a man red-handed having sexual intercourse with his
daughter. If the father assaulted the man there and then, his conduct was excused. De Villiers Injuries 217 remarks
that “here the absolute right of giving immediate vent to one’s feelings under the intense provocation of the
occasion is clearly recognised”. In this case there was no question of similar interests – the man’s physical integrity
was violated subsequent to the violation of the father’s interests as parent and guardian. Nevertheless in this
particular instance the interests were probably of equal value; infra 132–133.
605 It cannot therefore be an act of revenge perpetrated only after some time has elapsed (Neethling, Potgieter and Roos
Neethling on Personality Rights 157 fn 218).
606 Also see Amerasinghe 1967 SALJ 72.
607 Powell v Jonker 1959 4 SA 443 (T) 446; Bennett v Minister of Police 1980 3 SA 24 (C) 31–32.
608 In contrast to the opinion of Boberg Delict 834–835, provocation entails, as in all cases where the test for wrong-
fulness is applied, a weighing-up of interests: here the interests of the person who is provoked are compared to the
interests of the person who does the provoking. It is clear from the requirement that the interests concerned must be
commensurate with one another (in other words that as a general premise, eg, violation of the body (assault) in
retortio will only be justified by a preceding provocative violation of the body), that we are dealing here with a
weighing-up of interests (see, however, our commentary in this regard in fns 597 604 supra). This also follows
from the fact that the act of retaliation should not be out of proportion to the provocative conduct (see in general
Neethling 1985 THRHR 252, 1989 SALJ 694; Van Aswegen 1982 De Jure 370–371).
as a complete defence fails and the plaintiff will not have to forfeit his right to damages. Never-
theless, in such a case the provocation may lead to a diminution of damages.609 The defendant
who violates the bodily integrity of another person as a result of provocation cannot claim
satisfaction for the personality infringement (violation of bodily integrity or insult) which he
himself has suffered on account of the provocation.610
8.4.3 Provocation in cases of defamation611 and insult612

Defamatory or insulting allegations made during an argument (rixa)613 in reaction to provocative
conduct may be justified in certain circumstances.614 The requirements for provocation as a
defence in the case of infringement of bodily integrity, apply here mutatis mutandis:
(a) Firstly, the provocation itself must be of such a nature that a reasonable person in the
position of the defendant would also have reacted by defaming or insulting the plaintiff. The test
is thus objective.615
(b) Secondly, defamation or insult in retortio must stay within prescribed limits. The limits are
not exceeded where the defamation or insult (i) immediately or directly follows the provocation
and (ii) is not out of proportion to the provocative conduct.616
Compensatio617 The second requirement referred to above concerns the principle of
compensatio. This principle means that where two persons have defamed or insulted each other
________________________
609 Powell v Jonker 1959 4 SA 443 (T) 446; Mulvullha v Steenkamp 1917 CPD 571 573.
610 De Villiers Injuries 216–217; Neethling, Potgieter and Roos Neethling on Personality Rights 157. One could say
that his act of revenge is a sufficient remedy for the injury suffered by him on account of the provocation.
611 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 236–237.
612 De Villiers Injuries 217 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 279; Bester v Calitz
1982 3 SA 864 (O).
613 See generally on rixa as a defence in a case of defamation, Van der Merwe and Olivier 436–437; Visser 1981
THRHR 438–441. Visser 440 correctly submits that rixa, in the sense of an argument between persons, cannot be
clearly connected to any requirement for delictual liability and that in such a case the emphasis falls rather on
provocation and compensatio. Also see Neethling, Potgieter and Roos Neethling on Personality Rights 236–237.
614 Note, however, the following two aspects: (i) Where the reasonable person would consider words uttered in
reaction to provocation during an argument not as being defamatory but merely as meaningless abuse, unlawfulness
is absent because the words in question are not even prima facie unlawful (Fradd v Jaquelin (1882) 3 NLR 144
149; Neethling, Potgieter and Roos Neethling on Personality Rights 236 fn 353; infra 404). (ii) In accordance with
a number of decisions, provocation (rixa) does not exclude unlawfulness (it is in other words not a ground of
justification) but excludes intention (animus iniuriandi and thus serves as ground which excludes fault (eg Jeftha v
Williams 1981 3 SA 678 (C) 683–684; Geyser v Pont 1968 4 SA 67 (W) 72–73). Although the practical effect is
the same whether one views provocation as a ground of justification or as a ground excluding fault – in neither
instance is the defendant liable – the latter view is theoretically unacceptable. As Visser 1981 THRHR 440 puts it,
rixa rather serves as proof of the existence of animus iniuriandi than of the absence thereof. See in this regard also
Bester v Calitz 1982 3 SA 864 (O) 876. In the latter case Kotze AJ was of the opinion that the earlier tendency to
see provocation as a factor which excludes animus iniuriandi is possibly an inheritance of the common law where
there was no strict distinction between grounds of justification and grounds excluding fault (ibid).
615 Neethling, Potgieter and Roos Neethling on Personality Rights 236 279. The presence or absence of real subjective
anger is nevertheless not irrelevant in this regard. In fact, certain decisions accept “great and sudden anger” as a
requirement for a successful reliance on rixa as a defence to defamation (eg Kernick v Fitzpatrick 1907 TS 389
394; Kirkpatrick v Bezuidenhout 1934 TPD 155 158–159; cf Neethling, Potgieter and Roos Neethling on
Personality Rights 237 fn 357). This requirement is acceptable.
616 See in this regard Neethling, Potgieter and Roos Neethling on Personality Rights 237 (especially fn 359) 280. To
rely successfully on rixa in the case of defamation, some decisions require that the defendant must not have
persisted in his defamatory allegations after the quarrel (eg Kernick v Fitzpatrick 1907 TS 389 394). In our opinion
this should not, however, be a substantive requirement. Such conduct is only indicative of the fact that the defama-
tory response was out of proportion to the provocation.
617 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 236 279; Visser 1981 THRHR 440;
Bester v Calitz 1982 3 SA 864 (O) 876.
128 Law of Delict
in such a manner that the one instance of defamation or insult is not out of proportion to the
other, the two iniuriae cancel or neutralise each other.618
8.5 Consent619
8.5.1 General
Where a person legally capable of expressing his will gives consent to injury or harm, the
causing of such harm will be lawful. Consent is a ground of justification: the person suffering
harm waives his right to the extent that he permits the defendant to violate his interests;620 thus,
the actor cannot be held liable for the damage caused.621
Volenti non fit iniuria The principle that a defendant is not liable where the injured person has
consented to injury or the risk thereof, is embodied in the maxim volenti non fit iniuria (a willing
person is not wronged; he who consents cannot be injured) and was already known in Roman
and Roman-Dutch law.622
Forms of consent Consent takes two forms: consent to injury, and consent to (or acceptance of)
the risk of injury.623 Since both are forms of the same ground of justification, the same principles
apply to each.
In the case of consent to injury, the injured party consents to specific harm: A, for example,
consents to B’s removing his appendix; C consents to D’s using his pen; the rugby prop-forward
consents that his opponent may scrum against him; E consents to his barber, F, cutting his hair.
In the case of consent to the risk of injury, the injured party consents to the risk of harm caused
by the defendant’s conduct: A consents to the risk that the operation, performed by B on him,
may have a certain side effect; a participant in sport consents to the risks involved in such sport:
a rugby player accepts the risk that he may be injured in a tackle; a boxer that a blow may
paralyse him; a squash player that his opponent’s racket may hit him against the head. Should
the risk contained in the operation or the sports injuries mentioned earlier in fact ensue, the
________________________
618 Compensatio must nevertheless be clearly distinguished from provocation (Bester v Calitz 1982 3 SA 864 (O) 876).
There is in general little clarity on the application of compensatio in the case of defamation (Visser 1981 THRHR
440). Van der Walt and Midgley Delict 206 submit that the principle of compensatio (set-off) in terms of which
two comparable delicts cancel each other out (De Villiers Injuries 218; Strydom v Fenner-Solomon 1953 1 SA 519
(E) 540), is contrary to modern legal notions and that the two parties involved should rather institute counterclaims
against each other.
619 See in general Loubser and Midgley Delict 204–212; Van der Merwe and Olivier 89 ff; Boberg Delict 724 ff; Van
der Walt and Midgley Delict 207 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 157 ff; Fagan
Aquilian Liability 248 ff; Van Oosten Informed Consent passim; Snyman Criminal Law 122 ff; Strauss
Toestemming; Aspekte; Doctor, Patient and the Law 3 ff, 1964 SALJ 179 332, 1964 THRHR 116; Gauntlett 1974
THRHR 195; Scott 1976 De Jure 218.
620 Cf Beukes v Smith 2020 4 SA 51 (SCA) 58–59 (Townsed and Thaldar 2020 SALJ 13 ff). Boberg Delict 724 sup-
plies the following definition of consent: “Consent freely and lawfully given by a person who has the legal capacity
to give it justifies the conduct consented to, making lawful the infliction of the ensuing harm. It is therefore a
defence that operates by negativing wrongfulness.” Van der Walt and Midgley Delict 207 state: “By consenting . . .
the plaintiff unilaterally restricts his or her rights to such an extent that the defendant’s conduct is not wrongful.”
(See also Van der Merwe and Olivier 89; Neethling, Potgieter and Roos Neethling on Personality Rights 157; Strauss
Aspekte 11 18; cf R v Taylor 1927 CPD 16 20; Esterhuizen v Administrator, Transvaal 1957 3 SA 710 (T) 720; South
African Municipal Workers Union v Jada 2003 6 SA 294 (W) 303; Van Loggerenberg 2018 SALJ 55 ff.)
621 Eg: (1) A says to B that B may slap him lightly. Should B act accordingly, he does not act wrongfully towards A
because A has, through his consent, limited his right to physical integrity. (2) C says to D: “I do not mind if you
take my book.” Should D take the book, he does not wrongfully harm C by dispossessing him of his property
because C has abandoned his right to possession of the book by giving C consent to take his property. Thus, a
person who has consented to injury cannot complain that a delict has been committed against him. Consent
excludes the wrongfulness of the injury.
622 D 47 10 1 5; De Groot 3 35 8; Voet 47 10 4; cf Van der Walt and Midgley Delict 207.
623 Van der Walt and Midgley Delict 207; Boberg Delict 724 ff; Van Oosten Informed Consent 14–15.
injured person will not be able to hold the defendant delictually liable, because he has consented
to the risk of such harm. It appears that consent to the risk of injury as a ground of justification
has been successfully raised in only a few reported cases.624
Terminology It is necessary to consider the terminology used in connection with consent and
related concepts. The maxim volenti non fit iniuria, in short volenti, is used as a common
concept to describe both forms of consent. Volenti non fit iniuria may thus mean either consent
to injury, or consent to the risk of injury. The expression “voluntary assumption of risk” is some-
times used to imply consent to the risk of injury (a ground of justification) and sometimes to
refer to contributory intent 625 (a ground excluding fault or culpability).626 In addition, a distinc-
tion must be made between contributory negligence,627 on the one hand, and consent and con-
tributory intent, on the other. These different concepts are frequently confused but should be
distinguished as their practical implications may differ.628
8.5.2 Characteristics of consent as a ground of justification

(a) Consent to injury is a unilateral act.629 Therefore the consent need not necessarily be made
known to the defendant.630 In other words, the existence of an “agreement” or “contract”
between the injured party and the actor is unnecessary to relieve the actor of liability.631 Because
consent is a unilateral act, it may be unilaterally revoked by the consenting party at any stage
________________________
624 Boshoff v Boshoff 1987 2 SA 694 (O); Card v Sparg 1984 4 SA 667 (E) and Maartens v Pope 1992 4 SA 883 (N)
(see Ahmed Contributory Intent 24–29; cf Greenfield et al 2015 (6) PELJ 2184 ff).
625 Infra 208.
626 In Van Vuuren v Ethekwini Municipality 2018 1 SA 189 (SCA) para 32 Navsa ADP used the terms interchangeably
as the “defence of volenti non fit iniuria or voluntary assumption of risk”. Each case will have to be examined to
establish what the nature of the applicable defence is (cf fn 628 infra).
627 Infra 199 ff.
628 “Voluntary assumption of risk” in both its forms constitutes a complete defence excluding delictual liability:
consent excludes wrongfulness, contributory intent cancels the defendant’s negligence (infra 208). Where the
defendant proves any of these two defences, he escapes liability. Contributory negligence, on the other hand, is not
a complete defence. The claim of a plaintiff who is guilty of contributory negligence may, however, be reduced by
the court in accordance with the degree of his contributory negligence (infra 199 ff). One should therefore not be
misled by the terminology used in regard to consent, contributory intent and contributory negligence. Instead of
being blinded by clichés such as volenti non fit iniuria, “voluntary assumption of risk” (“vrywillige aanvaarding
van die risiko”) and “consent” (“toestemming”), one should ascertain precisely what happened in a particular
situation; whether wrongfulness was excluded because of the consent of the injured, or whether the negligence of a
defendant was cancelled by the plaintiff’s intention (contributory intent) or whether, although the plaintiff neither
consented nor had contributory intent, he was in fact contributorily negligent in respect of his damage because he
acted in a manner different from that of the reasonable person. (See also Boberg Delict 724–725 739–740.)
629 Van der Merwe and Olivier 89–90; Van der Walt and Midgley Delict 208 213–214; Neethling, Potgieter and Roos
Neethling on Personality Rights 157–160.
630 Illustrating this point, Van der Merwe and Olivier 90 provide the following clear example: “The politician who
declares from the platform that anyone in the meeting may freely defame him, consequently suffers no legal
infringement if someone hard of hearing who did not hear the politician’s permission, utters defamatory words
regarding him during the meeting” (translation). The consent, being a legal act (see 130 infra), must nevertheless
be made known, eg by informing a third party thereof.
631 Van der Walt and Midgley Delict 208; also see Santam Insurance Co Ltd v Vorster 1973 4 SA 764 (A) 780–781;
Van der Merwe and Olivier 90 fn 50. In contrast Boberg Delict 734 738 769–770 is of the opinion that consent in
fact entails an agreement or “bargain” between the injured party and the defendant and that there is no distinction
between consent and a pactum de non petendo (an agreement not to institute an action (infra 134)). It is true that
conduct by which consent to harm is given, may (perhaps in most cases?) simultaneously give rise to at least a tacit
contract or agreement. Where A consents to his doctor’s operating on him and they come to an agreement on how,
where and when it will take place and what the cost will be, both consent to harm and a contract is present. Because
consent is a unilateral act, it may, however, be revoked unilaterally at any time, even against the will of the doctor.
Should the doctor proceed to operate despite the cancelled consent, his action is definitely delictually wrongful. On
the other hand, A’s revocation may constitute a breach of contract. Should the doctor suffer damage as a result of
the cancelled operation, he may institute an action against A for breach of contract.
130 Law of Delict
preceding the defendant’s conduct.632 The defendant acts wrongfully if he proceeds to cause
harm despite the revocation of consent.633
(b) Consent is a legal act that restricts the injured person’s rights.634 To qualify as a legal act,
the consent must be apparent, or manifest;635 in other words, it must be brought to light. Consent
will not be held to exist if it is not evident.
(c) Consent may be given either expressly (for example by words), or tacitly (for example by
conduct).636 Incitement, encouragement and invitation to injure637 normally,638 but not
necessarily,639 indicate that consent is present; however, mere acquiescence (submission) does
not necessarily amount to consent.640 Neither does the knowledge that prejudice will ensue, in
itself, constitute consent.641
(d) Consent must be given before the prejudicial conduct; “approval” given after the act is not
consent, but may amount to an undertaking not to institute an action against the defendant (a
pactum de non petendo).642
(e) As a rule, the prejudiced person himself must consent;643 only in exceptional circumstances
may consent to prejudice be given on behalf of someone else.644
________________________
632 Van der Merwe and Olivier 92; Van der Walt and Midgley Delict 213–214; Neethling, Potgieter and Roos
Neethling on Personality Rights 157; Snyman Criminal Law 127; Jooste v National Media Ltd 1994 2 SA 634 (C)
647 on infringement of privacy.
633 Van der Merwe and Olivier 92; see also the example in fn 631 supra.
634 Van der Merwe and Olivier 91; Boberg Delict 731; Neethling, Potgieter and Roos Neethling on Personality Rights
157–158. As will be pointed out later (infra 131), this fact implies that the consenting party must be capable of
forming a will.
635 R v Taylor 1927 CPD 16 20; Neethling, Potgieter and Roos Neethling on Personality Rights 157 fn 227.
636 Stoffberg v Elliott 1923 CPD 148; Waring and Gillow Ltd v Sherborne 1904 TS 340 344–345; Union Government
(Minister of Railways and Harbours) v Matthee 1917 AD 688 703; Neethling, Potgieter and Roos Neethling on
Personality Rights 157; Van der Merwe and Olivier 90; Snyman Criminal Law 126.
637 Eg where a girl entices, encourages or invites a man to kiss her, she will not succeed in an action against the man
for the alleged violation of her physical integrity or honour.
638 Cf R v Makeke; R v Makona 1942 SR 47; Jordaan v Delarey 1958 1 SA 638 (T) (invitation to defame); Neethling,
Potgieter and Roos Neethling on Personality Rights 157; Van der Merwe and Olivier 90.
639 Eg Strauss Aspekte 23 points out that the correctness of Jordaan v Delarey 1958 1 SA 638 (T) may be questioned
for the following reason: in this case the plaintiff requested the defendant to repeat the offending words in the
presence of two policemen. The court held that her challenge constituted volenti non fit iniuria. However, it appears
as if the purpose of her challenge was rather to gain evidence of the defendant’s conduct than to give consent to the
injurious conduct. And, as Van der Walt and Midgley Delict 211 correctly point out, the attempt to gain evidence
of the injurious conduct suggests that the plaintiff intended to protect and enforce her rights against the defendant
and not that she gave consent to such actions. Cf also Van der Merwe and Olivier 90.
640 R v Taylor 1927 CPD 16 20. Submission must not be confused with consent. Where a woman, in order to avoid
serious injury, “submits” to an attacker who rapes her, she does not consent to the intercourse (see R v Swiggelaar
1950 1 PH H61 (A) 110–111; S v Volschenk 1968 2 PH H283 (D); cf R v M 1953 4 SA 393 (A); Van der Merwe
and Olivier 90; Snyman Criminal Law 126.)
641 This important aspect will be discussed later when dealing with the requirement that the prejudiced person must
have full knowledge of the nature and extent of the injury, that he must appreciate the nature thereof and must
subjectively consent to it (infra 131–134).
642 Infra 134.
643 Van der Merwe and Olivier 93; Snyman Criminal Law 127. In Van Vuuren v Ethekwini Municipality 2018 1 SA
189 (SCA) para 32 Navsa ADP responded as follows to the defendant’s argument that a parent consented to the risk
of injury to her child at a slide facility at a municipal swimming pool: “The [parent] could hardly consent to the risk
of injury to her minor child.” Likewise, a breadwinner’s consent to injury does not necessarily justify the damage
suffered by his dependants as a result of the harmful conduct (infra 134).
644 Eg where a parent consents to an operation being performed on his child (Snyman Criminal Law 127). In addition,
s 129(6)–(9) of the Children’s Act 38 of 2005 provides that the superintendent of a hospital (or the person acting in
his absence) may consent to the medical treatment of or a surgical operation on a child if the treatment or operation
is necessary to preserve the life of the child or to save the child from serious or lasting physical injury or disability
and the need for the treatment or operation is so urgent that it cannot be deferred for the purpose of obtaining
consent that would otherwise have been required. The relevant minister may consent to such treatment or operation
if the parent or guardian of the child unreasonably refuses to give consent or to assist the child in giving consent, is
[continued ]
The question of whether consent is present in a given case is one of fact which has to be
proved.645 If the defendant thought that consent had been given while in fact it was absent, no
ground of justification existed and he acted wrongfully.646
8.5.3 Requirements for valid consent

Apart from the preceding characteristics of consent as a ground of justification, the law sets
specific requirements for valid consent. This indicates that the law applies this particular ground
of justification with circumspection; it is not readily accepted that a person consented to harm.647
The requirements for valid consent are as follows:648
(a) Consent must be given freely and voluntarily.649 Should the prejudiced person be forced in
some way to “consent” to the prejudice, valid consent is absent.650
(b) The person giving the consent must be capable of volition (expressing his will).651 This does
not mean that he must have full legal capacity to act,652 but that he must be intellectually mature
________________________
incapable of giving consent or of assisting the child in giving consent, cannot readily be traced or is deceased. The
minister may consent to such treatment or operation if the child unreasonably refuses to give consent. Finally, a
High Court or Children’s Court may consent to such treatment or operation in all instances where a person who
may give consent in terms of this section, refuses or is unable to give such consent. The Mental Health Care Act 17
of 2002 regulates consent for the medical treatment of the mentally ill.
645 The onus to prove that the plaintiff consented, rests on the defendant (supra fn 456).
646 In such a case the actor may possibly evade liability through lack of fault (cf R v K 1958 3 SA 420 (A)). On the
other hand, if the actor erroneously thought that the injured person did not consent whereas in fact he did consent,
the actor did not act wrongfully and escapes liability (Snyman Criminal Law 126).
648 See Hattingh v Roux 2011 5 SA 135 (WCC) 141 (see Neethling and Potgieter 2012 THRHR 675 ff; Ahmed 2012
Obiter 414 ff); Plumridge v Road Accident Fund 2012-05-08 case no 265/2009 (ECP) paras 43–44; Loubser and
Midgley Delict 205–208; Ahmed Contributory Intent 18–21.
649 R v McCoy 1953 2 SA 4 (SR); Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Asso-
ciation 2014 2 SA 569 (GJ) 593; Van der Merwe and Olivier 92; Van der Walt and Midgley Delict 210–211;
Boberg Delict 724 ff; Snyman Criminal Law 125; Neethling, Potgieter and Roos Neethling on Personality Rights
158; Loubser and Midgley Delict 207; Fagan Aquilian Liability 257–260.
650 The “compulsion” which excludes the voluntary nature of consent, may take various forms; even moral, social and
economic coercion may limit free consent: eg where an employee “consents” to a hiding by his employer for fear
that he may lose his job should he refuse, free consent is absent. Thus the employer cannot defend himself by
claiming that the employee had consented (cf R v McCoy 1953 2 SA 4 (SR); S v Collett 1978 3 SA 206 (RA); Van
der Walt and Midgley Delict 210–211).
651 Van der Merwe and Olivier 90 ff; Van der Walt and Midgley Delict 210 ff; Boberg Delict 731 ff; Loubser and
Midgley Delict 207; Snyman Criminal Law 126; Strauss 1964 THRHR 123 ff. This requirement flows logically
from the fact that consent is a legal act. A person is capable of volition when he has the mental capacity to distin-
guish between right and wrong and to act accordingly. Although majority age is probably not a necessary prerequi-
site for the ability to consent to harm, there is no unanimity on the matter. Eg Strauss ibid distinguishes between
patrimonial loss and personality infringement. He submits that a minor cannot consent to patrimonial loss without
the necessary assistance because such cases are concerned with business transactions for which capacity to act is
required. On the other hand, he is of the opinion that a minor who is able to appreciate the nature and consequences
of his conduct, may indeed be able to consent to an infringement of personality. Boberg Delict 731–732, unlike
Van der Merwe and Olivier 91–92, in principle supports this point of view. Van der Walt and Midgley Delict 214,
again, submit that the capacity to consent should not rest on the distinction between patrimonial loss and infringe-
ment of personality. They proceed (ibid): “In determining legal capacity in respect of consent to injury and volun-
tary assumption of risk, the basic question concerned is the particular party’s mental powers of comprehension with
regard to the situation in the particular case. It is illogical to differentiate between patrimonial interests and interests
of personality, especially if one bears in mind that interests of personality are often more valuable than patrimonial
assets.” And they state earlier (ibid): “A child of 14 years may, for example, have the necessary legal capacity to
consent to the destruction of her doll, but she would normally not have the legal capacity to consent to medical
treatment. Where the child does not have the necessary legal capacity, the guardian must act on behalf of the child.”
652 R v Taylor 1927 CPD 16; R v Sagaye 1932 NPD 236; cf Socout Ally v R 1907 TS 336.
132 Law of Delict
enough to appreciate the implications of his acts653 and that he must not be mentally ill or under
the influence of drugs that hamper the functioning of his brain.654
(c) The consenting person must have full knowledge of the extent of the (possible) prejudice.655
It is important that the requisite knowledge is present, especially where consent to the risk of
harm is concerned.656 In such cases, the consenting person must have full knowledge of the
nature and extent of the risk in order to consent to it.657
________________________
653 In S v Marx 1962 1 SA 848 (N) 854 it was held that two young children (seven and five years old) could not legally
consent to drinking alcohol. The court stated: “The administration of alcohol to another in the case of adults would
normally involve a question of volenti non fit iniuria. In the case of children of the age of the two here involved no
such question could arise.”
655 “[T]he consenting party ‘must have had knowledge and been aware of the nature and extent of the harm or risk’”
(Castell v De Greef 1994 4 SA 408 (C) 425); see further Louwrens v Oldwage [2006] 1 All SA 197 (SCA) 208;
Esterhuizen v Administrator, Transvaal 1957 3 SA 710 (T) 719; Santam Insurance Co Ltd v Vorster 1973 4 SA 764
(A) 781; Van der Merwe and Olivier 92; Loubser and Midgley Delict 207; Van der Walt and Midgley Delict 209
ff; Snyman Criminal Law 126; Neethling, Potgieter and Roos Neethling on Personality Rights 158; Fagan Aquilian
Liability 254 ff; Van Oosten Informed Consent 13–25, 1995 De Jure 167; Dreyer 1995 THRHR 534.
656 Eg where a patient accepts the risk that he may die under an operation performed by a surgeon or where a boxer
accepts the risk that he may be injured during a boxing match. There must therefore be informed consent (see Van
Oosten 1995 De Jure 167). In Esterhuizen v Administrator, Transvaal 1957 3 SA 710 (T) 721 the plaintiff was
submitted to radium treatment that caused serious injuries. The court held that a person submitting himself to X-ray
treatment, in the belief that it is without danger, or without knowledge of the serious risks inherent in such
treatment, does not legally give consent. Van der Walt and Midgley Delict 210 add the following: “The mere fact
that a patient agrees to be admitted to a hospital for an operation or treatment does not in itself imply consent to any
operation or treatment which the hospital or doctors consider beneficial. To operate without consent would be
justified only in a case of urgent necessity.” See also Santam Insurance Co Ltd v Vorster 1973 4 SA 764 (A);
Stoffberg v Elliott 1923 CPD 148.
657 Ibid; Neethling, Potgieter and Roos Neethling on Personality Rights 159 and authority cited there (fn 240). In
medical procedures the medical practitioner has a duty to inform the patient of any material risks connected to the
treatment. There is a difference of opinion on how the extent of the doctor’s duty to inform the patient should be
established. In Castell v De Greef 1994 4 SA 408 (C) 418 ff the court a quo, per Scott J, held that the test should be
determined by means of a reasonable doctor test: the court has to be led by medical evidence on what a reasonable
doctor would have told the patient in the circumstances. In an appeal to the full bench, Ackermann J differed from
this view. He preferred a reasonable patient test whereby the doctor’s duty to inform is to be established with refer-
ence to the needs and expectations of the particular patient rather than the insights of the medical profession. In his
view, this approach accords with the fundamental right to individual autonomy and self-determination and the
tendency in various common law and European countries, and is contrary to the paternalistic reasonable doctor
approach (426). He formulated the test as follows (ibid): “[F]or a patient’s consent to constitute a justification that
excludes the wrongfulness of medical treatment and its consequences, the doctor is obliged to warn a patient so
consenting of a material risk inherent in the proposed treatment; a risk being material if, in the circumstances of the
particular case: (a) a reasonable person in the patient’s position, if warned of the risk, would be likely to attach
significance to it; or (b) the medical practitioner is or should be reasonably aware that the particular patient, if
warned of the risk, would be likely to attach significance to it. This obligation is subject to the therapeutic privilege,
whatever the ambit or the so-called ‘privilege’ may today still be” (see also Beukes v Smith 2020 4 SA 51 (SCA)
59; Batohi v Roux [2019] 1 All SA 390 (KZD) paras 48í50). In terms of “therapeutic privilege”, practitioners may
withhold from patients information that, in their view, may be detrimental to them. This approach is criticised in
light of, inter alia, its violation of patient autonomy: see the Castell appeal case 418 and the authorities cited there;
Van Oosten Informed Consent 423–428.) See for a discussion of Castell, Loubser and Midgley Delict 207; Van
Oosten 1995 De Jure 164; Dreyer 1995 THRHR 532; cf Townsend and Thaldar 2020 SALJ 18–19. In view of the
uncertainty as to whether the reasonable-patient or reasonable-doctor approach should be adopted to determine
informed consent, it is unfortunate that the SCA in Sibisi NO v Maitin 2014 6 SA 533 (SCA) did not use the
opportunity to express its preference in this regard, albeit obiter. Van Loggerenberg 2018 SALJ 55 ff criticizes the
“time-honoured” approach to informed consent in medical law on the basis that, in his view, “a medical
intervention performed with a patient’s express consent cannot amount to an assault merely because the healthcare
practitioner omitted to disclose a material risk to the patient”. He proposes an alternative approach. Townsend and
Thaldar 2020 SALJ 13 ff 24í25 criticize the judgment in Beukes for introducing an “anti-patient prejudice” in our
law which they regard as clearly unconstitutional “and should be rectified by the SCA at the earliest opportunity”.
(d) The consenting party must realise or appreciate fully what the nature and extent of the harm
will be. Mere knowledge of the risk or harm concerned is therefore not sufficient; the plaintiff
must also comprehend and understand the nature and extent of the harm or risk.658
(e) The person consenting must in fact subjectively consent to the prejudicial act.659
The last three requirements are expressed as follows by Innes CJ in an often quoted dictum:
[I]t must be clearly shown that the risk (of injury) was known, that it was realized, and that it was
voluntarily undertaken. Knowledge, appreciation, consent – these are the essential elements; but know-
ledge does not invariably imply appreciation, and both together are not necessarily equivalent to
consent.660
(f) The consent must be permitted by the legal order; in other words, the consent must not be
contra bonos mores.661 662 Consent to bodily injury or consent to the risk of such injury is
________________________
658 “[T]he consenting party ‘must have appreciated and understood the nature and extent of the harm or risk’” (Castell
v De Greef 1994 4 SA 408 (C) 425; Beukes v Smith 2020 4 SA 51 (SCA) 58; Louwrens v Oldwage [2006] 1 All SA
197 (SCA) 208; cf Van Oosten Informed Consent 13–25). In Waring and Gillow Ltd v Sherborne 1904 TS 340 344
it was stated: “[K]nowledge does not invariably imply appreciation, and both together are not necessarily
equivalent to consent” (cf Van der Walt and Midgley Delict 210–211 and the authority cited there; Loubser and
Midgley Delict 207í208; Townsend and Thaldar 2020 SALJ 18–19). Cf Fagan Aquilian Liability 254–257.
659 “[T]he consenting party ‘must have consented to the harm or assumed the risk’”; and “the consent ‘must be
comprehensive, that is extend to the entire transaction, inclusive of its consequences’” (Castell v De Greef 1994 4
SA 408 (C) 425; Louwrens v Oldwage [2006] 1 All SA 197 (SCA) 208; cf Dreyer 1995 THRHR 534). Strauss
Aspekte 32 is of the opinion that consent is present as soon as the injured person consciously exposes himself to the
danger. According to Ogilvie Thompson CJ in Santam Insurance Co Ltd v Vorster 1973 4 SA 764 (A) 780–781,
however, Strauss formulates the test too widely. On the other hand, according to the judge, it would go too far to
expect the defendant to show that an “express or implied bargain” existed between him and the plaintiff; too heavy
a burden would be placed on the defendant if he is expected to prove that bilateral consensus existed between him
and the plaintiff. The judge was of the opinion that consent is present if the plaintiff, in addition to the fact that he
knew of the danger and appreciated the nature thereof, in fact foresaw the risk that the danger could affect him:
“[I]f it be shown that, in addition to knowledge and appreciation of the danger, the claimant foresaw the risk of
injury to himself, that will ordinarily suffice to establish the ‘consent’ required to render him volens – provided
always that the particular risk which culminated in his injuries falls within the ambit of the thus foreseen risk”
(781). According to the chief justice, the practical problems relating to proof are principally related to the subject-
ive nature of consent. Direct evidence that the prejudiced person consented to the injury is seldom available. The
plaintiff’s bare statement that he did not consent, does not carry much weight in itself. Therefore, consent has to be
inferred from the proven facts. In practical terms, the court first has to determine which risks can reasonably be
seen as inherent in the relevant hazardous activity by means of an objective assessment of the proven facts. There-
after, the court has to decide with reference to the facts whether the plaintiff, despite his possible statement to the
contrary, in fact foresaw the risk which later materialised and injured him, and whether it consequently has to be
held that he consented to such risk. (See also Van der Walt and Midgley Delict 210; Boberg Delict 725; Van der
Merwe and Olivier 90; Neethling, Potgieter and Roos Neethling on Personality Rights 159.)
660 Waring and Gillow Ltd v Sherborne 1904 TS 340 344; see also Union National South British Insurance Co Ltd v
SAR&H 1979 1 SA 1 (A) 9; Maartens v Pope 1992 4 SA 883 (N) 887–888 (cf Knobel 1993 THRHR 302); Payne v
Minister of Transport 1995 4 SA 153 (C) 159. In Lampert v Hefer 1955 2 SA 507 (A) 509 it was also stated that the
actor “must have known and appreciated the risk and elected to encounter it”. Cf Loubser and Midgley Delict 207–
208.
661 In S v Collett 1978 3 SA 206 (RA) a worker on the appellant’s farm committed a transgression. The appellant there-
upon gave the worker the choice between a hiding and prosecution. The worker consented to the hiding, was tied
up and given six cuts on the buttocks. The appellant was convicted for assault. On appeal, the conviction was
confirmed. The court held that the worker’s consent was invalid because it is contrary to public policy to consent to
physical injury (cf Van der Merwe and Olivier 92 ff). One could, of course, also argue that in casu the consent was
invalid because it was not free consent as a result of the pressure put on the worker. The possible effect of the
values underlying the Bill of Rights may in future be relevant in determining whether the consent in a particular
instance was contra bonos mores or not (cf supra 42). C v Minister of Correctional Services 1996 4 SA 292 (T)
involved consent to HIV-testing in prison. Kirk-Cohen J (303–304) stated that the norm for consent was laid down
by the Department of Correctional Services. As pointed out by Knobel 1997 THRHR 533 534, this is not correct.
The court should have the final word in determining the content of a ground of justification. The policy of the
department may be a factor in establishing the boni mores in a particular case. (See also Strauss 1996 THRHR 492;
Van Wyk 1997 THRHR 699; Loubser and Midgley Delict 208; Fagan Aquilian Liability 260 ff.)
662 The invalidity of consent to seduction should also be explained on this basis: infra 395.
134 Law of Delict
normally contra bonos mores unless the contrary is evident. Examples of the latter are cases of
participation in lawful sport,663 medical treatment,664 or cases where the injury is of a very minor
nature.665
Finally the impairment must, of course, fall within the limits of the consent.666
8.5.4 The pactum de non petendo in anticipando667

A pactum de non petendo is a contractual undertaking not to institute an action against the actor,
ie, not to hold the actor liable. Such a pactum must be distinguished from consent to harm.
Although the effects of a pactum de non petendo and consent are the same – in each case the
actor is not held liable – the reasons for the actor not being held liable are different.
In the case of a pactum de non petendo, there is no doubt that the actor committed a delict, but
the prejudiced person undertakes not to hold the actor liable. Wrongfulness is thus not excluded
in such cases; only the resultant action is. The prejudiced person loses the remedy that he would
otherwise have had at his disposal; he waives his action. An example of this can be found in
Jameson’s Minors v CSAR.668 The deceased was injured in a train accident caused by the
defendant’s negligence and subsequently died. He was a passenger travelling on a “free pass”
issued to him on the condition that the railways would not be liable in the event of injury caused
through the negligence of the railways. An action could, therefore, not be instituted against the
________________________
663 In Roux v Hattingh 2012 6 SA 428 (SCA) (see also Hattingh v Roux NO 2011 5 SA 135 (WCC) 142; Cornelius
2012 TSAR 574) the plaintiff, a rugby hooker, was seriously and intentionally injured by an illegal and highly
dangerous manoeuvre during a scrum. The plaintiff succeeded in his claim for damages. Brand JA proposed the
following general guidelines that may assist in the wrongfulness enquiry in rugby matches. Firstly, the rule of
thumb is that conduct causing even serious injury cannot be regarded as wrongful if it falls within the rules of the
game. Secondly, the fact that the conduct causing the injury is in contravention of the rules of the game does not
automatically result in wrongful conduct. This is so because the legal convictions of the community or boni mores
may accept this kind of conduct as inherent in a rugby game. Thirdly, conduct which constitutes a flagrant
contravention of the rules of rugby and which is aimed at causing serious injury will be regarded as wrongful. In
such instances the malicious motive of the defendant will be decisively indicative of wrongfulness (440–441) (see
Neethling and Potgieter 2014 SALJ 244 ff and the authorities cited there; cf Brand 2014 Stell LR 469–470;
Greenfield et al 2015 (6) PELJ 2189 ff). In Boshoff v Boshoff 1987 2 SA 694 (O) the plaintiff was struck on the
head by his opponent’s racket during a squash game, resulting in an injury to his eye. The court rejected the
plaintiff’s claim for damages on the ground that he had consented to the risk of injury and that the consent was not
contra bonos mores (701; see also Loubser and Midgley Delict 209–212; Ahmed Contributory Intent 24–25). See
further as regards liability for sports injuries Loubser and Midgley Delict ibid; Basson and Loubser Sport and the
Law chap 5; Cornelius 2015 (3) LitNet Akademies 576 ff; Viljoen Rugby Injuries passim; Parmanand Sport Injuries
102–127; Prinsloo 1991 TSAR 42; Labuschagne 1998 Stell LR 72; Boshoff 698–699 and the authorities cited there;
Van Aswegen and Knobel 1989 THRHR 586; Greenfield et al 2015 (6) PELJ 2184 ff; Labuschagne 2018 (21)
PELJ (consent and injuries in cricket); see also Van der Merwe and Olivier 100–101; Snyman Criminal Law 125.
664 Neethling, Potgieter and Roos Neethling on Personality Rights 159; Snyman Criminal Law 125.
665 Cf S v Collett 1978 3 SA 206 (RA) 213. Cf Knobel’s discussion (1993 THRHR 303–304) of Maartens v Pope 1992
4 SA 883 (N).
666 This is self-evident (Van der Merwe and Olivier 93). In Santam Insurance Co Ltd v Vorster 1973 4 SA 764 (A) the
plaintiff was a passenger in a car that was dicing with another vehicle. At a turn in the road the other vehicle
accelerated and negligently collided with the car carrying the plaintiff. The car overturned and the plaintiff was
seriously injured. The court held that although one could say that the plaintiff had consented to the risks inherent in
motor racing, such as a burst tyre, the plaintiff had not consented to gross negligence on the part of a driver. Conse-
quenly, the violation of his physical integrity exceeded the limits of his consent. In Burger v Administateur, Kaap
1990 1 SA 483 (C) the plaintiff consented to Dr R operating on him. Years later he discovered that in reality Dr L
had performed the operation. The court held that Dr L did not have consent to perform any operation on the
plaintiff and that the debt arising from Dr L’s alleged operation was fundamentally different from the debt that
would have arisen from Dr R’s conduct if he had operated on the plaintiff. In this case the violation exceeded the
limits of the plaintiff’s consent.
667 Jameson’s Minors v CSAR 1908 TS 575; Payne v Minister of Transport 1995 4 SA 153 (C) 159–161; Strauss
Aspekte 36 ff; Loubser and Midgley Delict 212–213; Van der Merwe and Olivier 101–102; Van der Walt and
Midgley Delict 214.
668 1908 TS 575.
railways. The court correctly held that such an agreement was no defence to the actions insti-
tuted by the deceased’s dependants.669 Nevertheless, it is a fact that, if the deceased had merely
been injured, he would, on account of his undertaking, not have been able to institute an action
against the railways for his injuries.670
8.6 Statutory authority671

A person does not act wrongfully if he performs an act (which would otherwise have been
wrongful) while exercising a statutory authority.672 Harmful conduct authorised by statute is thus
reasonable (justified) and consequently lawful.673 By authorising an infringement of interests,
the statute limits the rights of the prejudiced person.674
Two obvious principles apply with regard to this ground of justification: Firstly, the statute must
authorise the infringement of the particular interest concerned, ie, it must restrict the right on
which the injured party relies, and, secondly, the conduct must not exceed the bounds of the
authority conferred by the statute.675
(a) The question of whether the statute authorises the infringement of the interest concerned
depends on the intention of the legislature.676 The intention of the legislature is determined in
accordance with the principles regulating the interpretation of statutes. The intention of the legis-
lature obviously appears from the Act itself. To determine whether the legislature intended to
authorise an infringement of the interests, the courts apply the following guidelines:677
(i) If the statute is directory, it is clear that an infringement of private interests is authorised.
The injured person is consequently not entitled to compensation unless the statute
specifically provides for it.
(ii) If the statute is not directory but permissive, and if the statute makes no provision for the
payment of damages, there is a presumption that the infringement is not authorised. (If
provision is made for compensation, it is generally accepted that the injured party is
entitled to that compensation only.)
________________________
669 Infra 340.

670 Cf Van der Merwe and Olivier 103.
671 See in general Loubser and Midgley Delict 224–225; Van der Merwe and Olivier 104 ff; Van der Walt and
Midgley Delict 196–199; Boberg Delict 771 ff; Burchell Delict 79; cf Neethling, Potgieter and Roos Neethling on
Personality Rights 160–164; Neethling 1996 THRHR 682.
672 Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A); Minister of Community Development v
Koch 1991 3 SA 751 (A); Dews v Simon’s Town Municipality 1991 4 SA 479 (C); East London Western Districts
Farmers’ Association v Minister of Education and Development Aid 1989 2 SA 63 (A) 70 ff; Union Government
(Minister of Railways) v Sykes 1913 AD 156 169; Johannesburg Municipality v African Realty Trust Ltd 1927 AD
163; cf Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13 (SCA); Neethling and
Potgieter 2004 Obiter 477.
673 This principle does not contain anything exceptional: in principle it makes no difference whether one derives a
capacity to act from common law or from statutory law.
674 Cf Van der Merwe and Olivier 105. For this reason, policy usually demands that the defendant bears the onus of
proving that his conduct was lawful (During v Boesak 1990 3 SA 661 (A) 673). This applies in particular in the
case of alleged infringements of fundamental rights such as individual freedom (ibid). (See generally on the burden
of proof concerning grounds of justification, supra fn 456.) Note also that if any fundamental right is infringed by
the exercising of a statutory authority, such limitation will have to be in conformity with the limitation clause of the
Constitution, 1996 s 36(1) (see supra 17; Neethling, Potgieter and Roos Neethling on Personality Rights 160 178 ff
339 fn 234).
675 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 172; Sambo v Milns 1973 4 SA 312 (T) 320;
Govender v Minister of Safety and Security 2001 4 SA 273 (SCA).
676 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 172; Simon’s Town Municipality v Dews 1993
1 SA 191 (A) 195–196.
677 See Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163.
136 Law of Delict
(iii) The presumption referred to in (ii) falls away if the authority is entrusted to a public body
acting in the public interest.
(iv) If the authorised act is circumscribed and localised (for example, building a dam in a
certain place or constructing a railway line between two specific points), there is a
presumption that the infringement is authorised.
(v) If the authorisation is permissive and general, not localised and does not necessarily entail
an infringement of private interests, the only possible inference is that the legislature did
not intend that private interests should be infringed.678
(b) To determine whether the permitted act fell within the boundaries of the authorisation, the
following are taken into account:
(i) It must not have been possible for the defendant to exercise the powers without infringing
the interests of the plaintiff. (The onus is on the defendant.)
(ii) The defendant’s conduct must have been reasonable;679 in other words, it must not have
been possible to prevent or limit the damage by other reasonably feasible measures or
methods.680 (Here the onus is on the plaintiff to show that reasonable alternative methods
indeed existed and that the defendant had therefore acted unreasonably.)
The application of the reasonableness criterion in this context is well illustrated by the
statutory provisions on searching a suspect person,681 arresting a suspect person and
________________________
678 Africa v Boothan 1958 2 SA 459 (A); cf East London Western Districts Farmers’ Association v Minister of
Education and Development Aid 1989 2 SA 63 (A) 70 ff.
679 The limits of statutory authorisation as ground of justification, being a question of wrongfulness, is determined by
the general reasonableness criterion. In Minister of Community Development v Koch 1991 3 SA 751 (A) 761,
Kriegler AJA declared: “[I]n order to remain within the bounds of lawfulness the extent and duration of such inter-
ference [in terms of statutory authority conferred by the former Community Development Act 3 of 1966] would
have to be reasonable. The contractor’s operations in the instant case, insofar as they impinged upon the respond-
ent’s rights, clearly transgressed the bounds of reasonableness.” The general reasonableness criterion, or boni
mores, is co-determined by the values underpinning the Constitution, 1996 (supra 42; cf Neethling and Potgieter
1992 THRHR 311) and Burchell Delict 82 points out that a reliance on statutory authority in instances of infringe-
ment of (private law) individual interests can fail if it became apparent that the statutory provision itself is in
conflict with the Bill of Rights. In respect of the reasonableness of conduct, it is sometimes said that the defendant
is liable if he exercised the powers “negligently” and thus caused damage to the plaintiff (Minister of Community
Development v Koch 1991 3 SA 751 (A) 757 (cf Neethling and Potgieter 1992 THRHR 311 for criticism); Dews v
Simon’s Town Municipality 1991 4 SA 479 (C) 486; Johannesburg Municipality v African Realty Trust Ltd 1927
AD 163 177). This is phrased incorrectly. The question here is not whether the defendant acted negligently (with
fault), but rather whether he by his unreasonable conduct exceeded his powers and thus acted wrongfully. (See
Simon’s Town Municipality v Dews 1993 1 SA 191 (A) 196: Referring to our views and those of Van der Merwe
and Olivier 105–106 and Boberg 771–773, Corbett CJ declared: “[T]hese writers all correctly state that
jurisprudentially the consequences of the repository of the statutory power having exercised it without due care and
without having taken reasonable precautions to avoid or minimise injury to others, are that the repository must be
taken to have exceeded the limits of his authority and accordingly to have acted unlawfully . . . I am . . . satisfied
that the analysis is sound and that it accords with modern distinctions in our law of delict between fault and unlaw-
fulness. The principle of statutory authority renders lawful what would otherwise have been unlawful; and if the
implied limits of the statutory authority are not observed the repository of the power acts without authority, or in
excess of his authority, and consequently unlawfully.”)
680 To determine whether such alternative measures are reasonably feasible, the relation between the costs thereof and
the efficiency thereof is considered (Breede River (Robertson) Irrigation Board v Brink 1936 AD 359; Bloemfon-
tein Town Council v Richter 1938 AD 195; Reddy v Durban Corporation 1939 AD 293).
681 See ss 22 and 29 of the Criminal Procedure Act 51 of 1977 (cf Sonnekus 2017 TSAR 231 ff); Raliphaswa v Mugivhi
[2008] 3 All SA 92 (SCA) 96. In this regard, note, however, that in Minister of Police v Kunjana 2016 9 BCLR
1237 (CC), 2016 2 SACR 473, the CC declared s 11(1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of
1992 unconstitutional and invalid as from the date of the court’s order. This section authorised warrantless searches
even where no urgency exists. The court held that such conduct constitutes an unjustifiable limitation on the right to
privacy.
causing bodily injury to a suspect during his arrest. The last two situations require special
attention.
(a) Arrest of a suspect This can be made with or without a warrant.682 In order to be lawful, the
arrest must be formally executed. For this purpose two requirements should be met. First, the
body of the person to be arrested must be actually touched unless he submits to custody, or, if
the circumstances so require, by forcibly683 confining his body.684 Second, the person effecting
an arrest must, at the time of effecting the arrest or immediately thereafter, inform the arrestee of
the reason(s) for the arrest; if the arrest was effected by virtue of a warrant, a copy of the warrant
must be handed to the arrestee upon his demand.685 Thereafter the arrestee must be brought to a
police station as soon as possible.686 Subsequently the police officer must bring the arrestee
before a court as soon as reasonably possible, but at least within 48 hours.687
________________________
682 See s 39 ff of the Criminal Procedure Act 51 of 1977. For details see Neethling, Potgieter and Roos Neethling on
Personality Rights 179 ff. Apart from the Criminal Procedure Act, there are many other statutory provisions
authorising the arrest of someone or some degree of interference with the physical liberty of a person in certain
circumstances. In this regard mention can be made of the arrest of an illegal foreigner in terms of s 34(1) of the
Immigration Act 13 of 2002 (see Rahim v Minister of Home Affairs 2016 4 SA 433 (SCA) and Minister of Home
Affairs v Rahim 2016 3 SA 218 (CC); see also Neethling, Potgieter and Roos Neethling on Personality Rights 179
fn 42) .
683 See in this regard infra 141; cf 396 ff.
684 See s 39(1) of the Criminal Procedure Act 51 of 1977; cf Mhlongo v Minister of Police 1978 2 SA 551 (A) 569.
685 See s 39(2) of the Criminal Procedure Act 51 of 1977. S 35(2)(a) of the Bill of Rights in the Constitution, 1996 also
provides that everyone who is detained has the right to be informed promptly of the reason for being detained. In
Mlilo v Minister of Police [2018] 3 All SA 240 (GP) the arrest was effected without the “telegraphic or similar
written or printed communication” as required by s 45(1) of the Criminal Procedure Act, and was therefore
unlawful.
686 See s 50(1)(a) off the Criminal Procedure Act 51 of 1977; see also Scott 2009 Obiter 728.
687 Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) 383í384. See also De Klerk v Minister of
Police 2018 2 SACR 28 (SCA) para 14 where the court held that presiding officers in courts of first appearance
must ensure that the rights in s 35(1)(e)–(f) of the Constitution are not undermined (cf Mahlangu v Minister of
Police [2020] 2 All SA 656 (SCA) para 13). It is imperative for a presiding officer to enquire from the prosecution
why it is necessary to further detain a suspect. In that enquiry the reasons for further detention will emerge as to
whether or not it is in the interests of justice to further detain or release the suspect (see too Mahlangu paras 16–17;
Minister of Police v Du Plessis 2014 1 SACR 217 (SCA) paras 30–31). It is important that the police cannot be
held liable for the further detention, even if the arrest is found to have been unlawful. The justice department would
be responsible and liable for the further detention because of its failure to observe the constitutional rights of a
detained person (cf in this regard also the discussion by De Villiers 2016 THRHR 302 ff of Minister of Safety and
Security v Tyokwana 2015 1 SACR 597 (SCA)). Be that as it may, according to the the minority judgment in De
Klerk paras 29 ff, the police may be liable for damages for the further detention of the plaintiff based on the causal
connection between the wrongful arrest and the further detention (see Neethling 2019 (1) LitNet Akademies 557 ff
for a discussion). In De Klerk v Minister of Police 2019 12 BCLR 1425 (CC) the court agreed with this approach
and differed from the majority decision in the SCA. Theron J (paras 62í63) summarised the principles emerging
from the jurisprudence as follows: “The deprivation of liberty, through arrest and detention, is per se prima facie
unlawful. Every deprivation of liberty must not only be effected in a procedurally fair manner but must also be
substantively justified by acceptable reasons. Since Zealand, a remand order by a magistrate does not necessarily
render subsequent detention lawful. What matters is whether, substantively, there was just cause for the later
deprivation of liberty. In determining whether the deprivation of liberty pursuant to a remand order is lawful, regard
can be had to the manner in which the remand order was made . . . In cases like this, the liability of the police for
detention post-court appearance should be determined on an application of the principles of legal causation, having
regard to the applicable tests and policy considerations. This may include a consideration of whether the post-
appearance detention was lawful . . . The conduct of the police after an unlawful arrest, especially if the police
acted unlawfully after the unlawful arrest of the plaintiff is to be evaluated and considered in determining legal
causation. In addition, every matter must be determined on its own facts – there is no general rule that can be
applied dogmatically in order to determine liability.” She continued (para 65) that legal causation is determined by
traditional factors such as direct consequences, reasonable foreseeability, and the presence of a novus actus
interveniens, tested against constitutionally infused considerations of public policy. In casu the court (paras 86í87)
held that the fact that the police official subjectively foresaw or knew that the plaintiff’s further detention after his
court appearance would be the consequence of her unlawful arrest of him, was crucial. To impute liability to the
Minister of Police for the entire period of the detention would therefore be fair and just. The decision can be
[continued ]
138 Law of Delict
Where an arrest is executed in terms of a warrant,688 the warrant must be valid and comply with
the following requirements: the warrant must be issued in terms of the relevant legislative provi-
sions; the warrant must be legally correct as far as its form and contents are concerned;689 and
the warrant must be issued by an official (usually a magistrate)690 who has been properly
authorised to do so. In issuing a warrant, the magistrate exercises a discretion and the bona fide
exercise of the discretion cannot be examined objectively by a court of law.691 Thus the warrant
is valid irrespective of whether there were in fact reasonable grounds for suspicion.692
In certain circumstances a lawful arrest of a criminal suspect can be effected without a war-
rant.693 Section 40(1)(a) and (b) of the Criminal Procedure Act 51 of 1977, for example,694 pro-
vides for the arrest without a warrant of a person who commits an offence or attempts to commit
an offence in the presence of a peace officer695 or who is reasonably suspected696 of having com-
mitted an offence in the First Schedule to the Criminal Procedure Act.697 In these cases the peace
________________________
supported (cf Neethling 2019 (1) LitNet Akademies 557 ff). In Mahlangu the question also arose whether the police
were liable for the further detention of the plaintiffs. Factual causation was assumed between the plaintiffs’ arrest
and their further detention (para 37). As to legal causation, the court (paras 38–41) applied the flexible approach
and held that the police were not the legal cause of the further detention because the plaintiffs’ failure to apply for
bail would probably have succeeded and they would have been released from detention.
688 See Neethling, Potgieter and Roos Neethling on Personality Rights 180í182 for details.
689 See, however, s 331 of the Criminal Procedure Act 51 of 1977.
690 See s 43(1) of the Criminal Procedure Act 51 of 1977.
691 See Groenewald v Minister van Justisie 1973 3 SA 877 (A) 883–884.
692 Cf Minister van Polisie v Goldschagg 1981 1 SA 37 (A) 54–56. According to Nkosi 2015 SALJ 17, Domingo v
Minister of Safety and Security [2013] ZAECGHC 54 suggests “that even a validly obtained warrant that was
properly executed can give rise to a claim of wrongful arrest, particularly where the police officer did not appre-
ciate the existence of a discretion vested in him to arrest or not to arrest”, and see 2015 TSAR 671 where he argues
that a police officer’s ignorance of his or her discretionary powers, precludes an exercise of those powers.
693 See, eg, ss 40–42 of the Criminal Procedure Act 51 of 1977; see Neethling, Potgieter and Roos Neethling on Per-
sonality Rights 182í187 for details.
694 See s 40(1)(c)–(q) of the Criminal Procedure Act 51 of 1977 for further examples (see Scott 2009 Obiter 728í729).
In this discussion the focus will be on s 40(1)(a) and (b).
695 S 40(1)(a) of the Criminal Procedure Act 51 of 1977. See, eg, Minister of Safety and Security v Tyulu 2009 5 SA 85
(SCA) 91í92; Rudolph v Minister of Safety and Security 2009 5 SA 94 (SCA) 98í99; Tsose v Minister of Justice
1951 3 SA 10 (A) 18.
696 Thus a suspicion based on reasonable grounds. The test for reasonable grounds is an objective one and the grounds
of suspicion must be those which would induce a reasonable person to have the suspicion (see, eg, Duncan v
Minister of Law and Order 1986 2 SA 805 (A) 814; Woji v Minister of Police [2015] 1 All SA 68 (SCA) paras 7í8;
Vaaltyn v Minister of Police [2018] 4 All SA 534 (ECP) para 80; Wiesner v Molomo 1983 3 SA 151 (A) 159;
Minister of Law and Order v Hurley 1986 3 SA 568 (A) 579; Botha v Lues 1983 4 SA 496 (A) 505 (1981 1 SA 687
(O) 695). This application of the objective criterion for wrongfulness can be supported. The subjective belief of the
defendant in the guilt of the plaintiff should accordingly be irrelevant (Botha v Lues 1981 1 SA 687 (O) 693–694
695). However, see Neethling, Potgieter and Roos Neethling on Personality Rights 182 fn 66 for the qualification
of Kotze AJ’s (694) view.
697 In Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) 373 (see, eg, also Duncan v Minister of Law and
Order 1986 2 SA 805 (A) 818; Barnard v Minister of Police [2019] 3 All SA 481 (ECG) para 8) the court stated
that arrest without a warrant in terms of s 40(1)(b) would be justified if the following four jurisdictional facts or
requirements are present: the arresting officer must be a peace officer; he must entertain a suspicion; the arrestee
must be suspected to have been committing a Schedule 1 offence; and the suspicion must rest on reasonable
grounds. See also Raduvha v Minister of Safety and Security (Centre for Child Law as amicus curiae) 2016 10
BCLR 1326 (CC) where the court stressed that the best interests of a child in terms of s 28(2) of the Constitution
are of paramount importance in this regard. However, the court rightly held that s 28(2) does not constitute an extra
(fifth) jurisdictional requirement in terms of s 40(1)(b), but it has to be considered as an important factor in the
exercise of the discretion of the police official when effecting the arrest of a child. Bosielo AJ had no difficulty in
concluding that both the child’s arrest and detention were in flagrant violation of her constitutional rights in s 28(2)
and 28(1)(g) (the arrest was not a measure of last resort) and thus unlawful (para 71). Moreover, the arrest was also
in violation of the child’s constitutional rights to freedom and security of the person and dignity in ss 12(1) and 10
(see Neethling, Potgieter and Roos Neethling on Personality Rights 115í116).
officer should therefore exercise a discretion whether he will be executing the arrest or not.698
The purpose of the arrest should be to bring the arrested person properly before a court of law
and there to face due prosecution.699 If not, the arrest is unlawful.700
The important question arises whether an arrest without a warrant that complies with the statu-
tory provisions and the intention to bring the arrested person to trial, should always be lawful
even if there are milder ways, such as a summons, of accomplishing that purpose.701 The
traditional view has a negative answer.702 In the light of the entrenchment of the right to personal
freedom in the Bill of Rights, the leading decision of Bertelsmann J in Louw v Minister of Safety
and Security,703 deviated from the traditional approach. However, in contrast to this approach
stands the decision in Charles v Minister of Safety and Security704 which confirmed the
traditional view and held that the decision in Louw was clearly wrong.705
In Minister of Safety and Security v Van Niekerk706 the Constitutional Court had the opportunity
to resolve the Louw-Charles dispute, but Sachs J did not want to express himself on the question
of which of the two approaches was correct. The court nevertheless stated that each case must be
________________________
698 According to Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) 381–382 (see also Barnard v
Minister of Police [2019] 3 All SA 481 (ECG) paras 10í12) the discretion must be excercised, objectively seen,
bona fide (honestly), rationally and not arbitrarily, ie, it must be rationally related to the purpose for which the
power was given. The discretion must also be within the limits of the authorising statute read in the light of the Bill
of Rights (Sekhoto 382–383; see also infra fn 700).
699 See, eg, Ex parte Minister of Safety and Security: in re State v Walters 2002 4 SA 613 (CC) 653.
700 The exercise of a discretion will thus be clearly unlawful if the police official knowingly invokes his power for a
purpose not contemplated by the legislator (Duncan v Minister of Law and Order 1986 2 SA 805 (A) 818–819). He
then uses his power for an ulterior purpose or with an improper motive (see, eg, Naidoo v Minister of Police [2015]
4 All SA 609 (SCA) paras 41í43; see infra fn 799; Neethling, Potgieter and Roos Neethling on Personality Rights
183 fn 72 for examples), and consequently abuses his power to arrest. This was also confirmed by the decision in
Charles v Minister of Safety and Security 2007 2 SACR 137 (W) 144 where the court expressly stated that an arrest
will be unlawful if “an abuse of the right of arrest” took place (see further Neethling 2010 TSAR 821 ff on the
applicability of the doctrine of abuse of right (see infra 149) in the present context). Where a police official did not
exercise his own discretion, either because he did not know that he has a discretion (Ramphal v Minister of Safety
and Security 2009 1 SACR 211 (E) 214; see Nkosi 2016 Obiter 147 ff who states that knowledge of the existence
of discretionary powers is an implied precondition to the proper exercise of a discretion to arrest without a warrant),
or because he relied on the opinion of another person, the arrest is unlawful (Ralekwa v Minister of Safety and
Security 2004 1 SACR 131 (T) 136). Where the official is uncertain whether there are reasonable grounds for
suspicion, an application for a warrant should rather be made (see Union Government v Bolstridge 1929 AD
240 244).
701 See Neethling, Potgieter and Roos Neethling on Personality Rights 185í187 for a full discussion.
702 As expressed in the following dictum of Scheiner JA in Tsose v Minister of Justice 1951 3 SA 10 (A) 17 (see, eg,
also Charles v Minister of Safety and Security 2007 2 SACR 137 (W) 144; Scott 2009 Obiter 729): “An arrest is, of
course, in general a harsher method of initiating a prosecution than citation by way of summons but if the
circumstances exist which make it lawful under a statutory provision to arrest a person as a means of bringing him
to court, such an arrest is not unlawful even if it is made because the arrestor believes that arrest will be more
harassing than summons . . . What I have said must not be understood as conveying approval of the use of arrest
where there is no urgency and the person to be charged has a fixed and known address; in such cases it is generally
desirable that a summons should be used. But there is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally effective.”
703 2006 2 SACR 178 (T) (see also Scott 2009 Obiter 730í731). Bertelsmann J put it as follows: “An arrest, being as
drastic an invasion of personal liberty as it is, must still be justifiable according to the demands of the Bill of
Rights . . . [T]he police are obliged to consider, in each case when a charge has been laid for which a suspect might
be arrested, whether there are no less invasive options to bring the suspect before the court than an immediate
detention of the person concerned. If there is no reasonable apprehension that the suspect will abscond, or fail to
appear in court if a warrant is first obtained for his/her arrest, or a notice or summons to appear in court is obtained,
then it is constitutionally untenable to exercise the power to arrest. I do not believe that this places an undue burden
on the police.” This view was given the green light in numerous cases (see Neethling, Potgieter and Roos Neethling
on Personality Rights 185 fn 86).
704 2007 2 SACR 137 (W) (see also Scott 2009 Obiter 731).
705 141í143.
706 2008 1 SACR 56 (CC) 60í61; see also Scott 2009 Obiter 732; Neethling 2011 THRHR 662.
140 Law of Delict
judged on its own facts and emphasised that the discretion to arrest should rather be regulated by
internal procedures, such as Standing Order (G) 341.707 This Order makes it clear that arrest is a
drastic procedure that should not be used if other effective methods are available to ensure that
the suspect is brought before a court – arrest should be seen as a last resort.
The Supreme Court of Appeal had the first opportunity in Minister of Safety and Security v
Sekhoto708 to express itself on the present matter. Harms DP turned down the Louw approach.
According to him the provisions of section 40(1)(b) of the Criminal Procedure Act 51 of 1977
are not unconstitutional and need therefore not be amplified by the Louw principle709 – thus,
“absent a finding of unconstitutionality, the high courts were not enitled to read anything into a
clear text”.710 Compliance with these provisions is therefore sufficient to make a lawful arrest
without a warrant. Police officials must nevertheless, when exercising their discretion whether or
not to arrest a suspect, take the circumstances of each case, especially the seriousness of the
crime, into account. As a “rule of thumb” then applies that the more serious the crime is, the
easier it is to justify the arrest, and vice versa.711 Seen thus, the traditional and unacceptable view
in Tsose that “there is no rule of law that requires the milder method of bringing a person into
court to be used whenever it would be equally effective”, had now indeed been qualified in this
manner.712 This was clearly a step in the right direction but it is submitted that, in the light of the
almost unanimous support of the approach in Louw by the high courts, as well as the Constitu-
tional Court’s apparent approval in Van Niekerk of the principle that an arrest should be
regarded as a last resort, the legal reform in Sekhoto of arrest without a warrant did not go far
enough. It is submitted that the legislature should step in and bring about the necessary
reform.713
(b) Causing of bodily injury to a suspect during his arrest.714 If an arrestor715 attempts to
arrest a suspect716 and the suspect resists the attempt, or flees, or resists the attempt and flees
________________________
707 15/1999.
708 2011 5 SA 367 (SCA) (see for discussions Neethling in Mostert and De Waal (eds) 51í52; Neethling 2011 THRHR
662 ff); Msaule 2015 De Jure 243 ff).
709 Harms DP (377) declared that “[w]ith all due respect to the different high court judgments referred to, applying all
the interpretational skills at my disposal . . . , I am unable to find anything in the provision which leads to the
conclusion that there is somewhere in the words a hidden fifth jurisdictional fact. And because legislation overrides
the common law, one cannot change the meaning of a statute by developing the common law”. See also Rowan v
Minister of Safety and Security NO [2011] 3 All SA 443 (GSJ) paras 50í53.
710 378.
711 384.
712 386í387.
713 See Neethling in Mostert and De Waal (eds) 37 ff; see also De Villiers 2014 THRHR 492 ff; Watney 2013 TSAR
576 ff, 2009 TSAR 733 ff; Du Toit 2011 Obiter 473 ff; Rowan v Minister of Safety and Security NO [2011] 3 All
SA 443 (GSJ) paras 50–53; cf Scott 2009 Obiter 724 ff.
714 See s 49 of the Criminal Procedure Act 51 of 1977 (that replaced the former s 49 in total in terms of the Judicial
Matters Second Amendment Act 122 of 1998; see in general Neethling, Potgieter and Roos Neethling on
Personality Rights 161–162; Snyman Criminal Law 129 ff; Van der Walt 2007 TSAR 96 ff); cf further Neethling
2000 THRHR 111 ff; Neethling and Potgieter 2003 THRHR 157–158; Watney 2002 TSAR 846 ff; Snyman 2004
Stell LR 536 ff; Visser 1987 De Jure 123; Le Roux and Moolman 2001 THRHR 97; Van der Walt 2007 THRHR 96
ff; Botha and Visser 2012 (2) PELJ 345 ff.
715 Arrestor means any person authorised under the Act to arrest or to assist in arresting a suspect (the Criminal
Procedure Act 51 of 1977, s 49(1)(a)).
716 Suspect means any person in respect of whom an arrestor has or had a reasonable suspicion that such person is
committing or has committed an offence (the Criminal Procedure Act 51 of 1977 s 49(1)(b)). The courts will
probably interpret “reasonable suspicion” in the same manner as the similar words in s 40(1)(b) of the Act (dealing
with arrest without a warrant of arrest), viz that there must be reasonable grounds for the suspicion or the grounds
for suspicion must be of such a nature that they would make a reasonable person suspicious. The test is therefore
objective (cf Minister of Police v Mthalane 1978 3 SA 542 (N) 545; Neethling 2000 THRHR 113–114 and sources
quoted). Because s 49(1) is only applicable to suspects, it cannot justify injury or death of innocent persons (cf in
respect of the old s 49 Malahe v Minister of Safety and Security 1999 1 SA 528 (SCA) 534; Government of the
Republic of South Africa v Basdeo 1996 1 SA 355 (A) 368; Macu v Du Toit 1983 3 SA 629 (A) 641; Hughes v
[continued ]
when it is clear that an attempt to arrest him or her is being made,717 and the suspect cannot be
arrested without the use of force,718 the arrestor may, in order to effect the arrest, use such force
as may be reasonably necessary and proportional in the circumstances to overcome the resist-
ance or to prevent the suspect from fleeing.719
The arrestor is only justified in using deadly force, in other words force that is intended or is
likely to cause death or grievous bodily harm to a suspect, in particular circumstances: if he
believes on reasonable grounds720 that (a) the force is immediately necessary for the purpose of
protecting the arrestor, any person lawfully assisting the arrestor or any other person from
imminent or future death or grievous bodily harm; (b) there is a substantial risk that the suspect
will cause imminent or future death or grievous bodily harm if the arrest is delayed; or (c) the
offence for which the arrest is sought is in progress and is of a forcible and serious nature and
involves the use of life-threatening violence or a strong likelihood that it will cause grievous
bodily harm. 721
It appears that four requirements must be met before an arrestor can use lethal force: (i) the
arrestor must on reasonable grounds suspect (ii) that lethal force is immediately necessary (iii) to
protect any person’s life or body (iv) against conduct of a suspect that is immediately threaten-
ing or will happen in the future. Although these requirements are a paraphrased summary of (a),
it is submitted that they are also applicable to the situations in (b) and (c).722 Nevertheless, little
doubt can exist that a person effecting an arrest can only use lethal force if he is confronted with
a situation similar to private defence,723 perhaps with an exception if he acts to prevent future
death or serious bodily injury.724 The meaning of these requirements will become clearer when
their application in case law generates guidelines.
________________________
Minister van Wet en Orde 1992 1 SACR 338 (A) 343 345–346; Prince v Minister of Law and Order 1987 4 SA 231
(E) 238; Neethling 1996 THRHR 683 688–689).
717 This means that before force may be used against someone, he must be aware (must be made aware) that an attempt
is underway to arrest him. This was already required in an earlier case (see Macu v Du Toit 1983 3 SA 629 (A) 645
647).
718 It must be certain that infringement of the body is really necessary; there must be no other (reasonable) possiblity
open to the person effecting the arrest than using force. If possible in the circumstances, he must first use non-
violent means to stop the suspect, eg an oral warning or a warning shot into the ground. The courts also applied this
principle in respect of the old s 49 of the Act (see, eg, Ex parte Minister of Safety and Security: In re State v
Walters 2002 4 SA 613 (CC) 643; Macu v Du Toit 1983 3 SA 629 (A) 637 ff; George v Minister of Law and Order
1987 4 SA 222 (SE) 228–230; Prince v Minister of Law and Order 1987 4 SA 231 (E) 233–237; Wiesner v
Molomo 1983 3 SA 151 (A) 156 ff; cf Matlou v Makuhubedu 1978 1 SA 946 (A) 956; Manamela v Minister of
Justice 1960 2 SA 395 (A) 402 on the similar (former) s 37 of the Criminal Procedure Act 56 of 1955; see further
Neethling 1996 THRHR 688–689, 2000 THRHR 114).
719 The infringement of the body must not take place in a manner that is more harmful than reasonably necessary to
subdue the suspect – it is, eg, not necessary to shoot the suspect in the leg if he can be caught relatively easily by
hand (see sources quoted in previous fn; see also Govender v Minister of Safety and Security 2001 4 SA 273 (SCA)
282–283; cf supra 113 on application of the analogous proportionality test in the case of private defence). In Ex
parte Minister of Safety and Security: in re State v Walters 2002 4 SA 613 (CC) 643, Kriegler J declared: “In
deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account,
including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the
offence the suspect is suspected of having committed; the force being proportional in all these circumstances.” The
seriousness of the offence was also emphasised in Macu v Du Toit 1983 3 SA 629 (A) 636 640 and Matlou v
Makuhubedu 1978 1 SA 946 (A) 956.
720 See fn 716 supra.
721 See April v Minister of Safety and Security [2008] 3 All SA 270 (SE) 274–275 276–277.
722 See Neethling 2000 THRHR 114–115; Neethling, Potgieter and Roos Neethling on Personality Rights 162.
723 See supra 108 on private defence; see also Neethling 2000 THRHR 115.
724 A person cannot act in defence to avert an attack that can only take place in future (see supra 111; Snyman
Criminal Law 105). This will probably be problematic for the courts (and police). It is submitted that a significant
risk of future death or serious injury exists if the suspect has committed a crime of which the inflicting of serious
bodily injury or a threat of serious injury is a part (cf Neethling and Potgieter 2003 THRHR 157). In both Govender
v Minister of Safety and Security 2001 4 SA 273 (SCA) 283 and Ex parte Minister of Safety and Security: in re
State v Walters 2002 4 SA 613 (CC) 643 the court held in respect of the old s 49 that it was constitutionally in order
[continued ]
142 Law of Delict
Finally it is important that where there is an element of discretion inherent in any decision made
by a state official, usually under the cloak of statutory authority or official capacity,725 certain
requirements are relevant for exercising the discretion. The discretion must firstly be exercised
bona fide and honestly.726 If this was done, a court would normally be unable to interfere even if
it considered the decision inequitable or wrong.727 Moreover, the Bill of Rights requires that the
discretion should not be exercised arbitrarily728 but must be objectively rational, that is,
rationally related to the purpose for which the power was given.729 So, as long as state officials
exercise their discretion in good faith and rationally, and also within the limits of the authorising
statute read in light of the Bill of Rights, they are entitled to exercise the discretion as they see
fit.730 The exercise of a discretion will be clearly unlawful if the official knowingly invokes his
power for a purpose not contemplated by the legislator.731 He then uses his power for an ulterior
purpose or with an improper motive.732 733
8.7 Official capacity734

Certain public officials, such as law enforcement officers (for example, members of the police
force and other security forces) and judicial officers (for example, magistrates, judges and other
official adjudicators),735 are obliged or authorised by law to perform certain acts. Should they
________________________
to use lethal force against a suspect who committed a crime of which serious bodily injury is a part, even if, at the
time of arrest, the suspect did not pose any immediate threat of serious bodily injury or death.
725 See infra 142.
726 See Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) 380–381; Mdlalose v Minister of Police [2016]
4 All SA 950 (WCC) para 52 as to the police’s discretion to arrest a suspect without a warrant (see supra 138 ff).
See also Nkosi 2015 TSAR 670 who states, with reference to Qunta v Minister of Police 2013 ZAECGHC 53 and
Motabatshindi v Minister of Police case nr A 3017/2014 (unreported): “The principle to extract from these cases is
that an officer who is ignorant of the existence of discretionary powers either fails to appreciate the nature of his
discretion or fails to apply his mind or does not exercise a discretion at all.”
727 See, eg, Shidiack v Union Government (Minister of the Interior) 1912 AD 642 652; Groenewald v Minister van
Justisie 1973 3 SA 877 (A) 883–884; cf Minister of Law and Order v Hurley 1986 3 SA 568 (A) 581.
728 See also, eg, Mabona v Minister of Law and Order 1988 2 SA 654 (SE) 658; Le Roux v Minister of Safety and
Security 2009 4 SA 491 (N) 498; Manase v Minister of Safety and Security 2003 1 SA 567 (Ck) 575; Minister of
Safety and Security v Xhego [2003] 2 All SA 269 (Ck) 276.
729 See Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) 381–382; Coetzee v National Commissioner of
Police 2011 2 SA 227 (GNP) 243.
730 See Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) 382–383.
731 See Duncan v Minister of Law and Order 1986 2 SA 805 (A) 818–819; see also Rowan v Minister of Safety and
Security NO [2011] 3 All SA 433 (GSJ).
732 As indicated (supra fn 700), this has also been considered to be an abuse of right (see Charles v Minister of Safety
and Security 2007 2 SACR 137 (W) 144; Brown v Director of Public Prosecutions 2009 (1) SACR 218 (C) 222; Le
Roux v Minister of Safety and Security 2009 4 SA 491 (N) 498; Terblanche v Minister of Safety and Security [2009]
2 All SA 211 (C) 223; see also Neethling 2010 TSAR 825–826; cf Minister of Safety and Security v Sekhoto 2011 5
SA 367 (SCA) 380).
733 As pointed out (supra 139), in regard to arrest without a warrant, the intention or object must be to bring the
arrested person to court; if not, it will be unlawful, eg where the intention is to frighten or harass the suspect (Tsose
v Minister of Justice 1951 3 SA 10 (A) 17) or to punish the suspect (Louw v Minister of Safety and Security 2006 2
SACR 178 (T) 184; see also Ex parte Minister of Safety and Security: In re State v Walters 2002 4 SA 613 (CC)
643), to force the arrestee to abandon his right to silence (Ramphal v Minister of Safety and Security 2009 1 SACR
211 (E) para 11), or where the arrestor knew that the state would not prosecute (Sex Worker Education and
Advocacy Task Force (SWEAT) v Minister of Safety and Security 2009 6 SA 513 (WCC) 521–522; Neethling 2010
TSAR 821 ff). The onus to prove that the discretion was exercised in an improper manner rests on the plaintiff (see
Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) 384–386).
734 Loubser and Midgley Delict 225–226; Van der Merwe and Olivier 106; Van der Walt and Midgley Delict 202–203;
cf Neethling, Potgieter and Roos Neethling on Personality Rights 160–164.
735 Judicial officers include not only judges and magistrates, but also other persons with adjudicative functions such as
members of a military tribunal, arbitrators, quasi-arbitrators and members of a licensing board. See McKerron
Delict 82; Van der Merwe and Olivier 106–107; Scott 2015 TSAR 623 ff; see, eg, Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 470 471; Klipriver Licensing Board
v Ebrahim 1911 AD 458 462.
cause damage in the process, their conduct will be justified (lawful) and consequently they will
not be liable.736 The decisive policy underlying the immunity of the judiciary is the protection of
its independence to enable it to adjudicate fearlessly, and the threat of an action for damages
could unduly hamper the expeditious consideration and disposal of litigation. For this reason
litigants are not entitled to a process free from incorrect decisions.737 An exception from this
immunity is granted only when the judicial officer’s conduct was malicious or in bad faith (mala
fide)738 and he therefore exceeded his official capacity.739 The fact that the officer is immune
from liability for his or her negligent conduct means there is no basis to hold any other party
vicariously liable for such negligent conduct. That is so because vicarious liability is in general
terms defined as the strict liability of one person for the delict of another.740 However, where a
judicial officer acts maliciously, it is submitted that the state will probably be vicariously liable
because there is a sufficiently close relationship between the magistrate’s conduct and his or her
employment.741
Reference should also be made to protection against unjust administrative action by the state
causing pure economic loss. Irregular tender procedures may serve as an example.742 In these
cases the rule is that state officials as adjudicators of disputes involving competing tenders, for
compelling public considerations, do not have a legal duty to comply with administrative
procedures to avoid pure economic loss for unsuccessful tenderers even if they acted negli-
gently, as long as their conduct was bona fide. But where the loss of a tender contract was
brought about by dishonesty or fraud on the part of the public officials concerned, their conduct
would be wrongful.743
________________________
736 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 470
471; see also Penrice v Dickinson 1945 AD 6 14–15; Gluckman v Schneider 1936 AD 151; Basner v Trigger 1945
AD 22; Moeketsi v Minister van Justisie 1988 4 SA 707 (T) 713–714 717 (unlawful arrest); Claassen v Minister of
Justice and Constitutional Development 2010 6 SA 399 (WCC) 407–409 (unlawful detention); May v Udwin 1981
1 SA 1 (A) 19 (defamation); see further Okpaluba and Osode Government Liability 245–248; Neethling 2013
THRHR 123–124; Scott 2015 TSAR 623 ff.
737 See Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA)
470 471.
738 See May v Udwin 1981 1 SA 1 (A) 19–20; Moeketsi v Minister van Justisie 1988 4 SA 707 (T) 711–713. Claassen
v Minister of Justice and Constitutional Development 2010 6 SA 399 (WCC) 409; Ingram v Minister of Justice
1962 3 SA 225 (W); Scott 2015 TSAR 632 ff.
739 Moeketsi v Minister van Justisie 1988 4 SA 707 (T) 713–714 held that it is clear that in our law a judicial officer
who acts in his official capacity is only liable for malicious or fraudulent conduct; and that the authority is clear
that mala fides, maliciousness or fraudulent conduct must be present. (See Neethling 1989 THRHR 466 for a dis-
cussion of this case.) According to May v Udwin 1981 1 SA 1 (A) 19, a case where a claim based on alleged
defamation instituted against a magistrate failed, a judicial officer, eg, acts with malice (and his defence that the
allegedly defamatory statements were not uttered wrongfully, would be unsuccessful) “where a judicial officer
under the guise of performing his judicial functions has been actuated by personal spite, ill will, improper motive,
unlawful motive (ongeoorloofde oogmerk of motief) or ulterior motive, that is to say, by malice, in his publication
of the defamatory matter in order to expose the defamed person to odium, or ill will, and disgrace”. The fact that
such a person acted with malice, could, depending on the circumstances, inter alia, be deduced from the fact that
the defamatory words had no bearing on the proceedings or were uttered without reasonable grounds (May 20). See
also Claassen v Minister of Justice and Constitutional Development 2010 6 SA 399 (WCC) 409; cf Van der Merwe
and Olivier 106–107; Scott 2015 TSAR 632 (magistrate). The harmful conduct in question may also be dealt with
under privilege, a ground of justification for defamation (infra 407).
740 See Minister of Safety and Security v Van der Walt (SCA) paras 23 26.
741 Cf infra 444 448.
742 See Neethling 2013 THRHR 335.
743 See Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) 144 (2006 3 SA 151 (SCA)
162–163 169); South African Post Office v De Lacy 2009 5 SA 255 (SCA) 256–258; Minister of Finance v Gore
NO 2007 1 SA 111 (SCA) 139; cf Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA 2006 1 SA 461 (SCA) 470 471 473; Olitzki Property Holdings v State Tender Board 2001 3 SA 1247
(SCA) 1256–1258. These principles are also applicable to provinces and municipalities: see Home Talk Develop-
ments (Pty) Ltd v Ekurhuleni Metropolitan Municipality [2017] 3 All SA 382 (SCA) para 26; Moniel Holdings
[continued ]
144 Law of Delict
8.8 Execution of an official command 744

Infringement of interests in carrying out a lawful command, for example where a constable
shoots a fleeing murderer at the order of his officer, is obviously not wrongful. This is really an
example of the ground of justification of official capacity:745 the constable (and his officer) act in
an official capacity because policemen are compelled or authorised by law to arrest criminals.
However, the question to be considered here is when execution of a wrongful command can
constitute a defence. In S v Banda,746 Friedman J laid down the following requirements for such
a defence:
(a) The order must issue from a person in a position of lawful authority over the accused.747
(b) There must be a duty on the accused to obey the order given.
(c) The accused must have done no more harm than was necessary to carry out the order.
The second requirement, that a duty must have rested on the subordinate to obey the command,
creates the most problems. According to case law, there is no absolute duty – that is, a duty of
blind obedience – on subordinates to obey the orders of their superiors748 and this defence should
therefore be limited. In respect of such limitations, two main approaches are followed. On the
one hand, there is a view that carrying out a wrongful order is always wrongful.749 On the other
hand, it is argued that obeying a wrongful order is not necessarily wrongful, but that only the
execution of “manifestly” or “palpably” illegal orders is wrongful.750 751
The question of whether an order is obviously wrongful is evaluated with reference to the
judgment of the reasonable person.752 This application of the reasonable person criterion for
wrongfulness deserves support. In cases where there is a duty to obey wrongful orders (that is,
where the execution of a wrongful order is lawful), the applicable ground of justification is, in
________________________
(Pty) Ltd v Premier of Limpopo Province [2007] 3 All SA 410 (T); Darson Construction (Pty) Ltd v City of Cape
Town 2007 4 SA 488 (C).
744 Loubser and Midgley Delict 226; Van der Merwe and Olivier 106–107; Van der Walt and Midgley Delict 204;
Snyman Criminal Law 134–136; Neethling and Potgieter 1991 THRHR 651 ff; Neethling, Potgieter and Roos
Neethling on Personality Rights 162í163.
745 Supra 142.
746 1990 3 SA 466 (B) 480. See Neethling and Potgieter 1991 THRHR 651 ff for a discussion of the case.
747 The judge continued (ibid): “It has been held that a prisoner of war who executes an order of a fellow prisoner,
without any lawful authority over him, cannot rely on this defence. In R v Werner 1947 2 SA 828 (A) at 834 an
order to kill a fellow prisoner was not given by the South African who was in command of the prisoners, but by a
German officer who was secretly hiding in the camp. The defence failed. See also R v Kumalo 1952 1 SA 381 (A)
at 387; R v Louw (1904) 21 SC 36.”
748 In R v Smith (1900) 17 SC 561 567 Solomon JP put it as follows: “[I]t is monstrous to suppose that a soldier would
be protected where the order is grossly illegal.” See also S v Banda 1990 3 SA 466 (B) 480.
749 R v Arlow 1960 2 SA 499 (T) 452; R v Van Vuuren 1944 OPD 35 38; De Wet and Swanepoel Strafreg 101; cf
750 Cf R v Smith (1900) 17 SC 561 568; R v Cilliers 1903 ORC l; S v Mule 1990 1 SACR 517 (SWA); S v Banda 1990
3 SA 466 (B) 468–494; Snyman Criminal Law 135. This viewpoint is now reflected in s 199(6) of the Constitution:
“No member of any security service may obey a manifestly illegal order.”
751 The view that only execution of manifestly wrongful commands is wrongful, represents a compromise between two
divergent opinions: on the one hand, the notion that soldiers must execute orders for the sake of military order and
discipline, and, on the other hand, the opinion that soldiers are nevertheless not elevated above the law and entitled to
blindly obey even palpably wrongful orders like robots (S v Banda 1990 3 SA 466 (B) 494–495; Snyman Criminal
Law 135).
752 In S v Banda 1990 3 SA 466 (B) 496 Friedman J formulated his view on soldiers as follows: “A soldier must obey
orders issued by a lawful authority, and is under a duty to obey all lawful orders, and, in doing so, must do no more
harm than is necessary to execute the order. Where, however, orders are manifestly beyond the scope of the
authority of the officer issuing them, and are so manifestly and palpably (‘klaarblyklik’) illegal that a reasonable
man in the circumstances of the soldier would know them to be manifestly and palpably illegal, he is justified in
refusing to obey such orders. The defence of obedience to orders of a superior officer will not protect a soldier for
acts committed pursuant to such manifestly and palpably illegal orders” (emphasis added).
reality, necessity in the form of compulsion753 and not official command. (Where the order is
wrongful, an “official” command is obviously absent.) The compulsion lies in the fact that the
order is given by a superior. Thus the principles that are generally applicable to necessity754 –
including the reasonable person criterion755 for wrongfulness756 – are appropriate here too.757
8.9 Power to discipline 758
At common law, parents759 and persons in loco parentis (such as teachers and housemasters)760
have, by virtue of their authority over children, the power to administer punishment to them for
the purpose of education and correction.761 This principle applies to all forms of discipline
which, previously, also included corporal punishment. A person with the authority to chastise may
delegate such authority to another.762 A teacher had an original power to chastise763 – it did not
depend on an implied delegation by parents.764 There is a presumption that chastisement
exercised by virtue of a power to chastise was meted out reasonably and without malice.765 A
________________________
753 Cf supra 117 ff.

754 Ibid.
755 In S v Goliath 1972 3 SA 1 (A) 25, the Appellate Division had already stated with reference to compulsion that
higher than reasonable demands can never be required, and that reasonableness means that which is expected of the
ordinary, average human being in the particular circumstances (and this applies also to the soldier who has to act on
a command).
756 Contrary to the approach apparently taken by Friedman J in S v Banda 1990 3 SA 466 (B) 484 495, there is no
distinction between the objective reasonableness (boni mores) test for wrongfulness and the reasonable person test
for wrongfulness. The last-mentioned test merely entails an expression of the legal convictions of the community in
the reaction (views and conduct) of the reasonable person. In other words, to determine whether the defendant acted
contra bonos mores, the question is asked what the reaction of the reasonable person would be in the
circumstances. The reasonable person thus embodies or represents the legal convictions of the community (supra
fn 87; see further Neethling and Potgieter 1991 THRHR 653–654).
757 Cf further R v Smith (1900) 17 SC 561.
758 See generally Neethling, Potgieter and Roos Neethling on Personality Rights 164í165; Van der Walt and Midgley
Delict 201í202; Loubser and Midgley Delict 227; Boberg Delict 843 ff; Visser 1999 THRHR 435; Amerasinghe
1967 SALJ 64 ff ; Olmesdahl 1984 SALJ 544; Labuschagne 1991 De Jure 23; Heaton 1987 THRHR 398 ff; cf
Snyman Criminal Law 137–138; Mahery 2018 Stell LR 124 (who explores various factors relevant to drafting
legislation banning corporal punishment in the family setting); Clark 2020 SALJ 335 ff.
759 See D 47 10 7 3; Voet 47 10 2; see also R v Janke and Janke 1913 TPD 382 385 392; Tshabalala v Jacobs 1942
TPD 310 313; R v Soga Mgikela (1893) 10 SC 240; Du Preez v Conradie 1990 4 SA 46 (BG). This capacity is also
available to the non-custodian parent where the parents are divorced and the child has temporarily been placed
under the control of the non-custodian parent. In Du Preez 51 Friedman J stated: “Even while the child is
temporarily under the control of the non-custodian parent pursuant to a right of access, the parental authority
revives, and the non-custodian parent in these circumstances can use reasonable force to correct or discipline the
child should it be necessary.” Also the child’s step-parent who finds himself in loco parentis during the natural
parent’s temporary absence, has a power of chastisement during such period generated by the particular situation
(Du Preez 54; cf Labuschagne 1991 THRHR 309).
760 Cf D 47 10 13 6; D 47 10 32, 33; Voet 47 10 2; see also Hiltonian Society v Crofton 1952 3 SA 130 (A); R v
Scheepers 1915 AD 337 338; R v Schoombee 1924 TPD 481; R v Soga Mgikela (1893) 10 SC 240; R v Le Maitre
and Avenant 1947 4 SA 616 (C); see further De Villiers 41.
761 Discipline may, of course, take forms other than corporal punishment (which is no longer permissible): Van Wyk v
Van der Merwe 1957 1 SA 181 (A); Thandroyen v Sister Annuncia 1959 4 SA 632 (N). See Clark 2020 SALJ 335 ff
for a definition and comprehensive discussion of corporal punishment and the consequences of its banning.
762 See, eg, Du Preez v Conradie 1990 4 SA 46 (BG) 52–53 (delegation by natural mother to stepfather); Hiltonian
Society v Crofton 1952 3 SA 130 (A) 134–135 (delegation by teacher to prefects); see further Amerasinghe 1967
SALJ 65.
763 See R v Muller 1948 4 SA 848 (O) 860 ff; R v Scheepers 1915 AD 337; Christian Education SA v Minister of Edu-
cation 1999 4 SA 1092 (SE) 1101. Therefore, a parent may not, eg, unilaterally restrict or suspend a teacher’s
power to discipline a child (Boberg Delict 845). The power to discipline may also originate from contract, eg,
where a parent contractually transfers his power to discipline to a private school (Thandroyen v Sister Annuncia
1959 4 SA 632 (N)).
764 See, eg, R v Liebenberg 1917 OPD 67 69; Amerasinghe 1967 SALJ 65.
765 R v Janke and Janke 1913 TPD 382 385; cf Boberg Delict 843–844.
146 Law of Delict
person who alleges the opposite must prove either that no power to chastise existed, or that (in
the circumstances) the chastisement was exercised in an unreasonable manner.766
If persons with such power act within the bounds of their power to discipline, physical or mental
harm inflicted by them is lawful. The bounds of their authority are determined, inter alia, with
reference to the question whether they apply moderate and reasonable punishment767 – in other
words, an objective criterion is used.768 The question whether punishment is moderate and
reasonable will depend on the relevant facts of each situation. General factors influencing the
reasonableness or otherwise of chastisement are the nature of the transgression, the extent of
punishment inflicted, the nature of the punishment and the object and motive of the person
inflicting punishment,769 as well as matters such as the age, gender and physical (including
build) and mental state of the child.770 If the person in question exceeds his authority through an
unreasonable infliction of physical and or mental harm, his conduct is considered to be
unlawful.771
Presently, however, the common law position concerning corporal punishment has been rad-
ically amended by the legislature and case law. Section 10 of the South African Schools Act 84
of 1996 now prohibits corporal punishment in public as well as independent (private) schools.772
This form of chastisement may therefore not be meted out by school principals, teachers and
persons in charge of school hostels. This prohibition of corporal punishment has now been
extended to parents in YG v S.773 In casu a father was charged with assault after giving his son a
spanking and found guilty by the trial court. On appeal he raised the defence of moderate and
reasonable chastisement, which is based on the common law power of a parent to inflict corporal
punishment on his or her children.774 However, the question was whether this defence is
compatible with the Constitution. After a thorough investigation,775 Keightey J held that the
defence was in conflict with the Bill of Rights, especially the rights to bodily integrity776 and
dignity,777 and also did not take account of the child’s best interests in terms of section 28(2) of
the Constitution which is of paramount importance also in this matter concerning the child. The
courts have a duty to develop the common law where it infringes constitutional rights. The judge
________________________
766 Hiltonian Society v Crofton 1952 3 SA 130 (A); Boberg Delict 844.
767 R v Scheepers 1915 AD 337 338; see also Du Preez v Conradie 1990 4 SA 46 (BG) 51; R v Roux 1932 OPD 59 61.
In R v Jacobs 1941 OPD 7 9 10 Van den Heever J emphasised (with regard to teachers) that the bounds of reason-
ableness should not be exceeded when exercising the power of chastisement: “But if he oversteps the mark, he
transgresses the objective limits of reasonableness, then he commits a crime, an iniuria. Then he does not chastise,
but gnaw” (translation; italics added).
768 See R v Jacobs 1941 OPD 7 10; Van der Merwe and Olivier 109.
769 The motive for inflicting punishment must be correctio: see R v Janke and Janke 1913 TPD 382 385.
770 See Du Preez v Conradie 1990 4 SA 46 (BG) 51–52; R v Janke and Janke 1913 TPD 382 385–386.
771 Cf Mahomed v Silanda 1993 1 SA 59 (ZH) where it was held that a teacher exceeded her statutory power of chastise-
ment – the court awarded satisfaction for shock, pain, suffering and contumelia for the unlawful assault.
772 See Visser 2007 TSAR 384 ff; Clark 2020 SALJ 341–342. In Christian Education SA v Minister of Education 1999
4 SA 1092 (SE) and Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC), a society of
Christian private schools contended that s 10 of the South African Schools Act 84 of 1996 is unconstitutional, inter
alia, because it infringes upon the belief of certain Christian parents that their children should be able to receive
corporal punishment in schools. Both the High Court and the CC found that, even though s 10 infringes upon
parents’ right to freedom of religion, it is a reasonable limitation in terms of s 36 of the Constitution, 1996. The
prohibition of corporal punishment in s 10 is therefore not unconstitutional. Cf Visser 1999 THRHR 435.
773 2018 1 SACR 64 (GJ) (see Lenta 2018 SALJ 205 for a discussion). In this case a father had given his 13-year-old
son a spanking because he was disappointed in the son’s conduct in watching pornographic material, which is
forbidden in their religion, and for lying to him about this. See Clark 2020 SALJ 339–340 for a comparative
overview of prohibition of corporal punishment of children in the home.
774 See paras 31í35 about the common law defence.
775 Para 61 ff.
776 Paras 69í70.
777 Paras 71í73.
concluded that that duty will be served in this case, declaring, with prospective effect, that the
common law defence of moderate and reasonable bodily chastisement is no longer applicable in
our law. This decision was confirmed by the Constitutional Court in Freedom of Religion South
Africa v Minister of Justice and Constitutional Development.778 Mogoeng CJ also found that cor-
poral chastisement, even if reasonable and moderate, constituted a violence in terms of sec-
tion 12(1)(c) of the Bill of Rights – the right to be free from all forms of violence – and thus
limited that right; it also limited the right to dignity in section 10.779 The defence of moderate
and reasonable chastisement was therefore an unjustified limitation of those rights.780 The court,
inter alia, also opined that little has been advanced to suggest that chastisement was in the best
interests of the child (section 28(2) of the Bill of Rights);781 and that there were less restricted
means to instil discipline.782 These decisions can be supported and should be applied also in the
law of delict to demarcate the power of parents to discipline their children in a manner other
than corporal punishment. Corporal punishment aside, some of the common law principles may
perhaps still be fruitfully applied in this respect.
9 Abuse of right, nuisance and neighbour law
9.1 Abuse of right

Underlying the so-called doctrine of abuse of right783 is the notion that the exercise of a right or
a power may take place in a manner or in circumstances which render such exercise wrongful; in
other words, that the actor may exercise his rights in a legally impermissible manner and thus
“abuse” them.784 The doctrine of abuse of right is not unknown to our common law: one finds
________________________
778 2020 1 SA 1 (CC). See Clark 2020 SALJ 342 ff 353–357; Lenta 2020 SALJ 185 ff for discussions of Mogoeng CJ’s
judgment.
779 Paras 36 39 44 45 48.
780 Paras 50 71.
781 Paras 62í67.
782 Paras 68í71. See Clark 2020 SALJ 344–353 for arguments in favour of the retention of, and of the removal of the
defence of reasonable corporal punishment.
783 See in general Van der Walt Neighbours 282–288; Van der Merwe and Olivier 64–70; Van der Walt and Midgley
Delict 187–189; Boberg Delict 32–34 206–210; and especially the comprehensive recent contributions by Neels
Tussen Regmatigheid en Onregmatigheid passim, 2000 De Jure 19 197, 1999 TSAR 63, 2000 TSAR 317 469 643;
Neethling Van Heerden-Neethling Unlawful Competition 134 ff. The idea that an abuse of right is possible, flowed
from the reaction that developed at the beginning of this century against the individualistic concept of the legal
right, which gives the individual a more or less absolute power which he may exercise without considering the
interests of other persons and the community. In terms of this view, the owner of a plot of land would have an
unfettered power to alienate his land and do with it as he pleased. Such a view is out of touch with reality.
Obviously there are many things which an owner may not do with his property, eg he may not dig a ditch on the
boundary of his property and thereby cause his neighbour’s ground to subside: the neighbour is entitled to lateral
support from his property. In reality no right has an absolute and unlimited character. Accordingly, in contrast to
the individualistic view of natural law that rights are absolute, the idea developed that subjective rights do have
certain social limits: some writers refer to the “social function” of the legal right. In terms thereof every “anti-
social” exercise of a person’s right is wrongful: although it remains the exercise of a right, it is a reprehensible
exercise thereof and thus an abuse of right.
784 The concept “abuse of right” may be questioned on theoretical grounds (see in general Van der Merwe and Olivier
64 ff; Neels 2000 TSAR 487–490 645–649; cf, however, Boberg Delict 206–210). Once one suggests that a right
has been abused, one in fact states that the act fell outside the bounds of the right concerned. In such a case one is
not dealing with the exercise, albeit unlawful, of a right. Should one “abuse” a right by acting outside the bounds
thereof, one acts “without a right” and, therefore, wrongfully. Strictly speaking the term “abuse of right” should
thus be avoided. As Van Apeldoorn Inleiding 48 correctly points out, the concept “abuse of right” contains a
contradiction: an act cannot simultaneously be lawful and wrongful. Either one acts within one’s right, in which
event one acts lawfully, or one does not, in which event one acts wrongfully. In the latter case one is not exercising
a right. In Koukoudis v Abrina 1772 (Pty) Ltd 2016 5 SA 352 (SCA) para 24 Leach JA acknowledged the criticism
[continued ]
148 Law of Delict
references to it in Roman,785 Roman-Dutch786 and Dutch787 law.788 The question of whether the
doctrine forms part of our law has not been expressly considered by our courts.789 It is, never-
theless, evident that our courts are not negatively disposed towards the existence of this doctrine
in our law;790 the courts having recognised the unlawfulness of an action purportedly performed
in terms of a right.791 The principles underlying the doctrine are unequivocally accepted.792
The doctrine of abuse of right entails the basic question of whether the defendant acted wrong-
fully or not.793 In the event of a dispute between neighbours, for example, it must be determined
whether the actor exceeded his powers of ownership (“abused” his right) and, therefore, acted
wrongfully in relation to his neighbour. This question must be answered objectively with
reference to considerations of reasonableness and fairness.794 Reasonableness remains a relative
concept – it implies weighing the benefits that the exercise of his right has for the defendant
against the gravity of prejudice suffered by the plaintiff as a result of such conduct.795 The
________________________
levelled at the phrase “abuse of right”, but used it in his judgment as it is “a phrase of convenience commonly used
in legal parlance”.
785 Gaius states in his Institutiones 1 53 with regard to the fact that an owner is prohibited from killing his slave, ie,
from exercising his right of ownership in this outrageous manner: “male enim nostro iure uti non debemus”. And in
D 39 3 1 12 Ulpianus subscribes to the view of Marcellus that a person is not liable if he excavates his ground and
in so doing draws away the water from his neighbour’s fountain; but, Ulpianus adds, this is only the case “si non
animo vicino nocendi, sed suum agrum meliorem faciendi id fecit” (ie, if it is not done with the purpose of injuring
the neighbour, but with a view to advancing his own farming interests). Cf Van der Merwe and Olivier 65.
786 Voet 39 3 4 (contra Groenewegen De legibus abrogatis 39 3 1 12); see Van der Merwe and Olivier 65; Van der
Walt and Midgley Delict 188.
787 Van Apeldoorn Inleiding 48 ff cites a number of examples: (i) Everardus (16th century) mentions the example of a
farmer who destroyed his crop to avoid payment of a tithe to the church – he was ordered to pay damages; (ii) the
municipal law of Tiel of 1659 contained the provision that anyone might build as high as he chose on his own erf,
even if in so doing he obscured his neighbour’s view and light, except if it could be shown that this was done out of
spite, with no benefit for himself (“uyt enkele spyt ende kregelheydt, om sijnen naesten te quellen, sonder sijns
selfs nut of profijt”); (iii) a judgment from the court of Colmar (1855): X and Y were neighbours. X’s house was
higher than Y’s and had a window which looked out over the latter’s roof. For the sole purpose of being unpleasant
to X, Y constructed a loose chimney on his house which blocked out X’s view. The court ordered Y to demolish the
chimney on the ground of abuse of right. (Cf Van der Merwe and Olivier 64–65.)
788 The idea that the exercise of a right becomes wrongful if the right is abused finds application in a number of
European codes. The Swiss Civil Code stipulates in s 2.2: “The manifest abuse of right enjoys no legal protection.”
An abuse of right is considered to be present when somebody exercises his right in such a manner that it comes into
conflict with the social purpose of the law (Van Apeldoorn Inleiding 49). The Civil Code of the former Soviet
Russia provides in s 1: “The civil rights are protected by the law, except in those cases where they are exercised in
a manner which conflicts with their economic and social purpose” (Van Apeldoorn Inleiding 49).
790 Union Government (Minister of Railways and Harbours) v Marais 1920 AD 240 247; Kirsch v Pincus 1927 TPD
199 206; Van Eck & Van Rensburg v Etna Stores 1947 2 SA 984 (A) 999; Millward v Glaser 1949 4 SA 931 (A)
942; Tothill v Gordon 1930 WLD 99; Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 107–108; Gien v
Gien 1979 2 SA 1113 (T); Deneys Reitz v SA Commercial, Catering and Allied Workers Union 1991 2 SA 685 (W)
693 695; Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 2 SA 455 (W) 475; cf Van der
Walt and Midgley Delict 123; Van der Merwe and Olivier 65 ff.
791 As noted by Leach JA in Koukoudis v Abrina 1772 (Pty) Ltd 2016 5 SA 352 (SCA) para 25; cf also Van Eck & Van
Rensburg v Etna Stores 1947 2 SA 984 (A) 999.
792 Previous fn; Gien v Gien 1979 2 SA 1113 (T) 1120 ff.
793 Koukoudis v Abrina 1772 (Pty) Ltd 2016 5 SA 352 (SCA) para 29.
794 PGB Boerdery Beleggings (Edms) Bpk v Sommerville 62 (Edms) Bpk 2008 2 SA 428 (SCA) 431; Gien v Gien 1979
2 SA 1113 (T) 1121. In Rand Waterraad v Bothma 1997 3 SA 120 (O) 136 the court stated that fairness is utilised
as authority for formulating a positive law rule through which a conflict of interests can be resolved in a particular
case. See also Dorland v Smits 2002 5 SA 374 (C) 384 where the court declared: “The enquiry is whether the
offending owner is acting unreasonably in all the circumstances. Reasonableness in this context is to be assessed
objectively”; Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home Affairs 2010 5 SA 367 (WCC) 402; cf
Knobel 2003 THRHR 500; Van der Walt Neighbours 309–312.
795 PGB Boerdery Beleggings (Edms) Bpk v Sommerville 62 (Edms) Bpk 2008 2 SA 428 (SCA) 431–432; Dorland v
Smits 2002 5 SA 374 (C) 384 (see fn 830 infra for quotation); Knobel 2003 THRHR 500.
reasonableness of the conduct thus depends upon the degree of disproportion between the
benefit and the prejudice.796
Various considerations play a role in determining whether the defendant acted reasonably.797
Although this doctrine applies mostly where the property rights of neighbours are concerned, it
is not restricted to this area of the law.798 The doctrine also applies to the abuse of a statutory
right.799 Most of the applicable principles were, however, developed in the field of neighbour
law800 and will now be considered.
________________________
796 Neethling Van Heerden-Neethling Unlawful Competition 135. In Rand Waterraad v Bothma 1997 3 SA 120 (O)
136 Hattingh J pointed out that reasonableness may require a proportionate distribution of potential loss between
neighbours: “Where in a specific case a neighbour’s powers arising out of his right in respect of the land would or
could lead, on the basis of established rules and principles, to substantial prejudice to another neighbour, fairness
would ensure that the first-mentioned neighbour sustained part of the prejudice which the last-mentioned neighbour
had suffered or would at least ensure that the prejudice did not arise. In this way the actual or the potential preju-
dice was distributed equally between the neighbours” (translation from headnote).
797 These principles are concisely summarised by Spoelstra AJ in Gien v Gien 1979 2 SA 1113 (T) 1121 (see also
Neethling 1979 THRHR 450–451; Van der Walt Neighbours 274–276).
798 The doctrine finds general application in the law of delict (Neethling 1985 THRHR 249; cf also Koukoudis v Abrina
1772 (Pty) Ltd 2016 5 SA 352 (SCA) para 26; contra Boberg Delict 207 209). It has already found application,
inter alia, in determining wrongfulness in cases of indirect violations of goodwill (unlawful competition) (infra
377), in establishing whether the bounds of privilege and fair comment (grounds of justification in the case of
defamation) have been exceeded (infra 408–409 411), in establishing whether the bounds of official capacity and
power to discipline as grounds of justification have been exceeded (supra 142 145), in determining whether
reasonable grounds exist for malicious prosecution, deprivation of liberty (see Neethling 2010 TSAR 821 ff) and
attachment of property (infra 398 418 419) and in determining whether an arrest has been effected in a lawful
manner (infra 398). See also Deneys Reitz v SA Commercial, Catering and Allied Workers Union 1991 2 SA 685
(W) where Flemming DJP formulated the general principle regarding “abuse of right” (696) as follows (693): “If
there is inadequate own interest in the exercise of the right, if a right is exercised not because of an understandable
desire fairly to do so, but because of the harm or irritation it can cause to the next man, the particular use of the right is
not tolerated.”
799 In Koukoudis v Abrina 1772 (Pty) Ltd 2016 5 SA 352 (SCA), where the appellants had acted in terms of the
Townships Ordinance 51 of 1986 to object to the development of a township, Leach JA stated: “My prima facie
opinion is that no right, whether statutory or otherwise, should be regarded as absolute and capable of being
exercised solely to cause harm without fear of the actor being held liable for abuse. For present purposes, I am
therefore prepared to accept, without finally deciding, that the abuse of a statutory right is actionable and that, in
the context of the present dispute, the fact that [the first appellant] exercised a statutory right is in itself no bar to
the appellants being held liable” (para 35). In casu, however, it was found that the respondents had failed to prove
either the subjective or the objective requirements for abuse of right – that is, that in objecting to the proposed
township, the appellants had acted with the ulterior purpose of causing them financial harm, and that the appellants
had not acted to protect or advance a legitimate interest (while their investment in another shopping mall proved
otherwise). The appellants had therefore not abused their rights (paras 36–52). From this it followed that the trial
court had erred in holding the appellants liable for the respondents’ economic loss. The appeal was allowed and the
respondents’ claim dismissed (paras 52–53). The court’s view that the abuse of any right, whether statutory or
otherwise, should in principle be regarded as wrongful and therefore actionable, should be supported because, as
indicated, the doctrine enjoys general application in the law of delict. In regard to abuse of a statutory right, the
following example can also be mentioned. The police have statutory authority to arrest a person without a warrant
but an arrest will be clearly unlawful if a police official knowingly invokes his power for a purpose not contem-
plated by the legislator. He then uses his power for an ulterior purpose or with an improper motive. The courts have
also considered this to be an abuse of right (Charles v Minister of Safety and Security 2007 2 SACR 137 (W) 144;
Brown v Director of Public Prosecutions 2009 1 SACR 218 (C) 222; Le Roux v Minister of Safety and Security
2009 4 SA 491 (N) 498; Terblanche v Minister of Safety and Security [2009] 2 All SA 211 (C) 223; Neethling 2010
TSAR 825–826; supra 139).
800 The legal principles applicable to neighbours of land are sometimes denoted by the term “nuisance” (“oorlas” or
“hinder”) (see in general Van der Merwe and Olivier 500 ff; cf Boberg Delict 206 ff; Rademeyer v Western
Districts Council 1998 3 SA 1011 (SE)). This term derives from English law and involves the repeated unreason-
able use of land by one neighbour at the expense of another (Van der Merwe and Olivier 507). In English law the
term “nuisance” or “public nuisance” has a specialised meaning. In East London Western Districts Farmers’
Association v Minister of Education and Development Aid 1989 2 SA 63 (A) 88, Viljoen JA stated: “Although
certain principles may coincide, the English law of nuisance is not our law” (cf also 67; Moller v SAR & H 1969 3
SA 374 (N); Rand Waterraad v Bothma 1997 3 SA 120 (O) 133). Due to the fact that it is clear that in our law the
[continued ]
150 Law of Delict
(a) As a general rule, the owner of immovable property may use his property as he sees fit, as
long as he acts within the bounds placed by the law on his powers of ownership.801
(b) Given that an owner is not completely free to utilise his property as he wishes, his interests
in exercising his right of ownership must be weighed against the interests of his neighbour.802
(c) The basic question is thus still one of wrongfulness; it concerns the reasonable or unreason-
able utilisation by the defendant of his property.803
In considering the reasonableness of the actor’s conduct, his mental disposition plays an
important role.804 Malice (animo vicino nocendi) may be a strong indication of the unreason-
ableness of his conduct.805 Although the reasonable utilisation of one’s property cannot be
termed unreasonable merely because of an intention to prejudice another,806 it is in many
instances extremely difficult to determine without further assistance to what extent the actor
promoted his own reasonable interests. In such a case, the actor’s own, subjective view of the
reasonableness of his conduct may be an important aid: if he himself does not consider his
conduct as being a reasonable advancement of his interests (and this will necessarily be the case
where his exclusive aim is to injure the prejudiced person), he cannot complain if his conduct is
considered to be unreasonable.807 For this reason, conduct with the exclusive aim of harming a
neighbour (animus vicino nocendi)808 is, as a general rule, wrongful. In other words, improper
________________________
causing of damage by neighbours has to comply in general terms (except for the qualification in respect of fault
which is discussed infra 442) with the normal requirements for delictual liability, “nuisance” does not require
extensive separate discussion (nevertheless, see infra 152). Moreover, the term “nuisance” may be confusing as a
result of its connection with English law. It is preferable, therefore, to avoid this term altogether (see also Van der
Merwe and Olivier 507), although our courts still tend to use it: Flax v Murphy 1991 4 SA 58 (W).
801 Gien v Gien 1979 2 SA 1113 (T) 1120; see also Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 106–107;
East London Western Districts Farmers’ Association v Minister of Education and Development Aid 1989 2 SA 63
(A) 66–67; Rand Waterraad v Bothma 1997 3 SA 120 (O) 136–138.
802 Gien v Gien 1979 2 SA 1113 (T) 1121; Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 106–107. See, in
particular, Rand Waterraad v Bothma 1997 3 SA 120 (O) 136 where Hattingh J pointed out that fairness may
require that actual or potential prejudice must be distributed equally between neighbours (cf fns 796 supra; 803
infra).
803 In Rand Waterraad v Bothma 1997 3 SA 120 (O) Hattingh J held that neighbour law traditionally sought to
harmonise the property interests of neighbouring property owners. Reasonableness and fairness were prominent
factors but attitude of mind (motive) also played an important, although not necessarily decisive, part in deter-
mining whether conduct was wrongful (133–134). Fairness also played an important role in cases where structures
encroached upon a neighbour's land. In this regard, an important question was whether a court had a discretion to
award damages to the aggrieved party instead of ordering the removal of the encroaching structures. In casu the
court held that it was fair not to order the removal of the encroaching structures. Union Government (Minister of
Railways and Harbours) v Marais 1920 AD 240 is another example of the reasonable exercise of proprietary rights:
the court decided that the railways had not acted wrongfully by pumping water from an underground stream
causing the river to dry up. Cf supra fn 785. See Van der Walt Neighbours 132–203 for a detailed discussion of
encroachment.
804 Gien v Gien 1979 2 SA 1113 (T) 1121; Rand Waterraad v Bothma 1997 3 SA 120 (O) 134; Union Government
(Minister of Railways and Harbours) v Marais 1920 AD 240 270; Kirsch v Pincus 1927 TPD 199 201 202 205;
Millward v Glaser 1949 4 SA 931 (A) 942; Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 107–108. See
also Van der Merwe and Olivier 68.
805 In Millward v Glaser 1949 4 SA 931 (A), a case in which the doctrine of abuse of right is referred to in passing,
Van den Heever JA accepted that the principle embodied in D 39 3 1 12 (see supra fn 785) forms part of our law
and proceeded as follows: “To use the trite illustration used in the authorities: if I dig a well upon my property, I
may be fully aware of the fact that by doing so I am going to diminish the supply in my neighbour’s well (D
39.3.12). If I do so with the expected result, for the advancement of my own interests, my neighbour will have no
ground of complaint. Where however I do so not to further my own interests but in order to injure him, he may
have a remedy” (942).
806 Cf fn 805 supra; fn 813 infra.
807 Cf Neethling Van Heerden-Neethling Unlawful Competition 136–137; cf also Bress Designs (Pty) Ltd v GY Lounge
Suite Manufacturers (Pty) Ltd 1991 2 SA 455 (W) 475–476; Deneys Reitz v SA Commercial, Catering and Allied
Workers Union 1991 2 SA 685 (W) 693 (quoted in fn 798 supra).
808 Such as an owner who digs a well with the sole purpose of cutting off his neighbour’s water supply (D 39 3 1 12; cf
Millward v Glaser 1949 4 SA 931 (A) 942); or an owner who plants trees merely to hinder the work of his
[continued ]
motive renders an act, which would have been lawful but for such motive, wrongful if it preju-
dices a neighbour without benefiting the actor in any way.809
(d) Where the benefit which the actor derives from his conduct is exceptionally slight but, by
contrast, the nature of his conduct is very drastic and the harm caused to his neighbour relatively
serious, he exceeds the bounds of reasonableness and acts wrongfully.810 Such an unreasonable
act is wrongful despite the fact that the actor did not intend to harm his neighbour; any use of
property which fails to advance reasonable interests is thus wrongful, whatever the motive of the
actor may be.811
(e) Where the actor harms his neighbour in the process of advancing his own reasonable
interests, he does not act wrongfully even if he intends (or has the improper motive of) harming
his neighbour in the process.812 Improper motive is in itself insufficient to convert lawful
conduct into a wrongful act.813
________________________
neighbour (Kirsch v Pincus 1927 TPD 199 – see fn 809 infra); or a person who builds a chimney with the exclusive
purpose of spoiling his neighbour’s view (the 1855 judgment of the court of Colmar – see fn 787 supra).
809 Gien v Gien 1979 2 SA 1113 (T) 1121; see also Rand Waterraad v Bothma 1997 3 SA 120 (O) 134. Cf in this
regard Kirsch v Pincus 1927 TPD 199: K produced malt. He had large cement slabs constructed on his property, on
which sorghum was spread out to dry. With the intention of injuring K, P planted willow trees along the boundary
of his property, the leaves of which fell onto K’s cement floors and interfered with his work. The court awarded
damages to K on the basis of nuisance, but the reasoning of Barry J revolved around the abuse of right. He stated
that the principle of D 39 3 1 12 (supra fn 785) was not applicable here, but then continued: “The principle
presupposes, I think, the use of property in an ordinary and reasonable manner. Where the property is so used, it
may well be that animus vicino nocendi makes a difference in our law, because this passage of Ulpian is followed
and applied both by Voet (39.3.4) and Schorer in his notes to Grotius . . . It is not necessary, however, to determine
the question which was left open in Union Government (Minister of Railways and Harbours) v Marais [1920 AD
240], because this is not a case of the using of his property by the defendant, but of the abuse of his rights which
has caused a nuisance to the plaintiff’s property” (206). The judge was in fact posing the question of whether there
had been an abuse of right, and to answer it he inquired whether P had planted the trees simply to injure K. In other
words, he followed the principle enunciated by Ulpian; there can surely be no difference in principle between digging
a well (see fn 785 supra) and planting trees on one’s own property. The fact that the judge became somewhat confused
between “abuse of right” and “nuisance” is perhaps an indication of how confusion may arise when one is blinded by
terminology and fails to emphasise the underlying principles.
810 In Gien v Gien 1979 2 SA 1113 (T) the wrongdoer (respondent) attempted to protect a patch of vegetables approxi-
mately 100 m in diameter against baboons and other vermin by emitting continuous explosive sounds from a noise-
generating apparatus. The noise, inter alia, caused his neighbour’s stock to become restless, disrupted the house-
hold’s sleep and adversely affected farming activities. The wrongdoer did nothing to lessen the noise and failed to
investigate any alternative pest control measures which would have been less offensive to the neighbours. In light
of this, Spoelstra AJ decided that the interests that the respondent attempted to protect were so insignificant and of
minor economic value, and the steps that he undertook to protect them so drastic, that he exceeded the boundaries
of his ownership. He therefore acted unreasonably and wrongfully. (Neethling 1979 THRHR 449 ff points out that
the continuous noise not only infringed the complainant’s proprietary rights, but may also have infringed the right
to physical integrity of the complainant and his household (see on the right to physical integrity, infra 392). As a
result of the disturbance they did not have a proper night’s sleep for over a fortnight. Consequently, they suffered
from excessive tiredness, short-temperedness and irritation. Therefore, the complainant could possibly have
recovered a solatium with the actio iniuriarum. See also Rand Waterraad v Bothma 1997 3 SA 120 (O) 139.)
811 Although malice could probably be deduced from such conduct (“a minor benefit for the actor against huge damage
for another gives rise to the deduction that the animus is present” (translation)): Gien v Gien 1979 2 SA 1113 (T)
1121; see also Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 108). In such a case it is not a prerequisite
for a finding that the conduct was unreasonable.
812 In Vanston v Frost 1930 NPD 121 the court held that the defendant did not heighten his fence in order to prejudice
his neighbour, but in order to advance his own reasonable interests. Tatham J declared obiter: “But it is said that the
respondent was actuated by a bad motive in heightening the fence. Even if this is a necessary inference (and I do
not think it is), the existence of a bad motive will not convert his legal act into a civil wrong for which reparation
may be claimed” (124).
813 Ibid; Gien v Gien 1979 2 SA 1113 (T) 1121. Schreiner JA expressed it as follows in Tsose v Minister of Justice
1951 3 SA 10 (A) 17: “[J]ust as the best motive will not cure an otherwise illegal arrest, so the worst motive will
not render an otherwise legal arrest illegal.”
152 Law of Delict
9.2 Nuisance814
The so-called delict nuisance (“oorlas” or “hinder”) that was referred to earlier815 must be
understood in the light of the above-mentioned principles. Cases traditionally dealt with under
the heading of nuisance also involve forms of unreasonable use of land by one neighbour at the
expense of another.816
Nuisance usually involves repeated infringements of the plaintiff’s property rights.817 An
objective weighing-up of the interests of the various parties, taking into account all the relevant
circumstances, is required in these instances.818 Examples of nuisance include repulsive
odours,819 smoke and gases820 drifting over the plaintiff’s property from the defendant’s land;
water seeping onto the plaintiff’s property;821 leaves from the defendant’s trees falling onto the
plaintiff’s premises;822 slate being washed down-river onto the plaintiff’s land;823 a disturbing
noise;824 a blinding light being directed onto a neighbouring property;825 destabilising a common
________________________
814 See generally Van der Walt Neighbours 237 ff; Church and Church 19 LAWSA 115–145; Milton 1969 Acta
Juridica 123–269; Van der Merwe Oorlas passim; Van der Merwe and Olivier 500 ff; Neels Tussen Regmatigheid
en Onregmatigheid passim, 2000 De Jure 19 197, 1999 TSAR 63, 2000 TSAR 317 469 643; and with regard to the
concept “nuisance” supra fn 800.
815 Fn 800 supra.
816 PGB Boerdery Beleggings (Edms) Bpk v Sommerville 62 (Edms) Bpk 2008 2 SA 428 (SCA) 431–432; Allaclas
Investments (Pty) Ltd v Milnerton Golf Club 2008 3 SA 134 (SCA) 140 (Van der Walt 2010 SALJ 274 ff); Dorland
v Smits 2002 5 SA 374 (C) 384 (see quotation infra fn 830); Knobel 2003 THRHR 500; Van der Walt Neighbours
274 ff. The question of whether fault is a requirement for liability for loss caused by nuisance, is discussed infra
442.
817 Van der Merwe and Olivier 506–507. However, it should be borne in mind that other rights, such as the right to
physical integrity, may also be infringed by, eg, excessive noise, smoke and smell, and may give rise to an action
for sentimental damages (Neethling 1979 THRHR 448 ff; infra 392–394).
818 Van der Walt Neighbours 272–273 states as follows: “Whether a particular interference is unreasonable is a purely
contextual question. The courts consider contextual factors such as the suitability of the respondent’s use of her
property; the extent of the interference; the duration of the interference; the time or times at which the interference
was caused; the sensitivity of the applicant to the particular imission or in general; the nature of the property and
the nature of the locality where the harm was caused or where it occurred and the custom with regard to land use in
that locality; and the possibility and practical or economical feasibility of actually preventing, terminating or miti-
gating the harm.” See also Gien v Gien 1979 2 SA 1113 (T) 1122; Dorland v Smits 2002 5 SA 374 (C) 384 (see
quotation infra fn 697); Knobel 2003 THRHR 500. According to Jacobs v Hylton Grange (Pty) Ltd [2020] 2 All SA
89 (WCC) para 79, the question is whether the harm-causing conduct, assessed in accordance with public policy and
the legal convictions of the community, constitutionally understood, is or is not acceptable; and where the offender can,
by taking reasonable steps, abate the nuisance, it woud be reasonable to impose liability (paras 98–99).
819 Jacobs v Hylton Grange (Pty) Ltd [2020] 2 All SA 89 (WCC); Herrington v Johannesburg Municipality 1909 TH
179; Graham v Dittman and Son 1917 TPD 288; Van der Merwe and Olivier 506.
820 See, inter alia, Gibbons v SA Railways and Harbours 1933 CPD 521; Turkstra Ltd v Richards 1926 TPD 276;
821 Bhayroo v Van Aswegen 1915 TPD 195; Van der Merwe and Olivier 506.
822 Kirsch v Pincus 1927 TPD 199; Malherbe v Ceres Municipality 1951 4 SA 510 (A).
823 Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A).
824 In De Charmoy v Day Star Hatchery (Pty) Ltd 1967 4 SA 188 (D) 192 (see further Laskey v Showzone CC 2007 2
SA 48 (C) 58) the following considerations were mentioned as being of assistance in deciding whether one owner
should endure the noise caused by another: “The factors which have been regarded as material in determining
whether the disturbance is of a degree which renders it actionable, include . . . the type of noise, the degree of its
persistence, the locality involved and the times when the noise is heard. The test, moreover, is an objective one in
the sense that not the individual reaction of a delicate or highly sensitive person who truthfully complains that he
finds the noise to be intolerable is to be decisive, but the reaction of ‘the reasonable man’ – one who, according to
ordinary standards of comfort and convenience, and without any peculiar sensitivity to the particular noise, would
find it, if not quite intolerable, a serious impediment to the ordinary and reasonable enjoyment of his property.”
Laskey dealt with theatre performances in a restaurant situated in the city centre where the applicant was living. The
court (59) declared that, although a person who lives in the city centre cannot expect “the tranquility of life in the
leafy suburbs”, such a person can nevertheless expect “that his or her neighbour, whatever its character, will use its
property in such a manner so as not unreasonably to intrude on the ordinary amenities of the inner-city resident”. In
casu the court held that the noise constituted an actionable nuisance (see also Van der Walt Neighbours 276–
277 289). Ferreira v Grant 1941 WLD 186 involved noise created by barking dogs. The court held that if the
[continued ]
wall by piling soil against it;826 failure to provide lateral support to contigious land;827 an
excessive number of golf balls landing on a neighbouring property;828 overhanging branches and
foliage;829 an electrified fence on top of a communal garden wall;830 blue wildebeest transmitting
disease to cattle on neighbouring ground,831 and occupants of structures on neighbouring land
allegedly causing a nuisance.832
________________________
person who complains that the nuisance is excessive is “a person of normal sensibilities”, he is entitled to relief if
he finds the noise excessive. In Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 3 SA 159 (T)
the occupiers of property situated around premises on which a building contractor was demolishing buildings,
applied for an interdict against the contractor. The court held that it could be expected of the contractor to take
special precautionary measures to prevent a nuisance resulting from noise although it may entail higher costs or
slower work performance. On appeal (Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 3 SA
896 (T)) the decision of the court a quo was in principle confirmed (with amendments to the order). It was
furthermore held that where it prima facie appears that a disturbing noise exists, a duty rests upon the person
causing the disturbance to show that it is impossible to take reasonable steps to prevent the disturbance (900–901).
See also Prinsloo v Shaw 1938 AD 570 575; Gien v Gien 1979 2 SA 1113 (T) 1121–1123; Botha v Andrade 2009 1
SA 259 (SCA); Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home Affairs 2010 5 SA 367 (WCC); Van der
Walt Neighbours 309–312; Van der Merwe and Olivier 506–507; cf Nelson Mandela Metropolitan Municipality v
Greyvenouw CC 2004 2 SA 81 (SE) 104 ff.
825 Tiffen v Woods NO [2007] 3 All SA 454 (C). The general principle in this respect is that any bright light that flood-
lights a neighbouring property excessively is an unreasonable disturbance and infringes the neighbouring owner’s
privacy and enjoyment of his or her property. Cf Wingaardt v Grobler 2010 6 SA 148 (ECG) (Christmas lights
switched on, in and outside a neighbour’s house).
826 Flax v Murphy 1991 4 SA 58 (W) (discussed by Van der Walt 1993 THRHR 645).
827 See infra 442 fn 106 and Van der Walt Neighbours 88–131. See also Dias v Petropulos 2018 6 SA 149 (WCC)
paras 25 ff for an overview of the origin and history of the right of lateral support (earlier regarded as a form of
nuisance but now recognised as a part of neighbour law – Dias paras 23 28 31 33 44 48); Anglo Operations Ltd v
Sandhurst Estates (Pty) Ltd 2007 2 SA 363 (SCA). In Dias para 63 Bozalek J held that the duty to maintain lateral
support between contiguous pieces of land extended not only to the land but also to buildings, save where such land
has been unreasonably loaded so as to place a disproportionate or unreasonable burden on the neighbouring land.
The concept of reasonableness may play a part in determining the scope of the duty of lateral support (para 62).
828 Allaclas Investments (Pty) Ltd v Milnerton Golf Club 2008 3 SA 134 (SCA) 140. An important consideration that
the court took into account in holding that the nuisance caused by the golf balls was unreasonable, was that
although the neighbouring owners had known that their property could be struck by golf balls when they had
bought property adjacent to a golf course, the specific hole had been designed so poorly that it had created an
unreasonable safety risk for the neighbouring owners. See also Van der Walt Neighbours 278–279 289–290.
829 Harris v Williams 1998 2 SA 263 (W).
830 Dorland v Smits 2002 5 SA 374 (C) 384. The respondents wanted to have an electrified fence, fixed by the appel-
lants to the communal wall between the properties, removed, inter alia, because it harmed the esthetic attractive-
ness of their property (the fence protruded about half a meter above the wall and huge warning signs had been fixed
to the wires), and because it allegedly posed a danger to the respondents, their gardener and their visitors. Comrie J
held that the fence did not constitute a “nuisance” in this case. According to the court, purely esthetic considera-
tions were irrelevant to the common law in respect of nuisance and neighbours (383). In respect of the alleged
danger, Comrie J declared that (384): “It may be accepted that danger, or potential danger, emanating from one
property to a neighbouring property may constitute a nuisance. But the presence or threat of danger is not a nuis-
ance per se. It is a question of degree. The enquiry is whether the offending owner is acting unreasonably in all the
circumstances. Reasonableness in this context is to be assessed objectively . . . The test is sometimes formulated in
this way: whether the offending owner’s conduct exceeds what the complainant owner can reasonably, and object-
ively, be expected to tolerate or forebear? . . . That seems to me to be an appropriate test to apply in the present
appeal. In doing so we must weigh the gravity of harm suffered against the utility of the conduct causing the harm.”
The court weighed the interests of the parties and found that the appellants’ conduct was reasonable (384–385) (see
Knobel 2003 THRHR 500; Van der Walt Neighbours 273–274 278).
831 Wright v Cockin 2004 4 SA 207 (E) 215 ff; but see PGB Boerdery Beleggings (Edms) Bpk v Sommerville 62
(Edms) Bpk 2008 2 SA 428 (SCA) 431–342.
832 Rademeyer v Western Districts Council 1998 3 SA 1011 (SE) (applicants failing to establish that the presence of
the occupants constituted a nuisance).
Chapter 4
Fault (and contributory fault)
1 General
It is accepted that fault (culpa in a wide sense) is a general requirement for delictual liability.1
There are divergent views on the true nature of fault.2 In practice, two main forms of fault are
recognised: intention (dolus) and negligence (culpa in the narrow sense).3 These terms generally
refer to the legal blameworthiness or the reprehensible state of mind or conduct4 of someone
who has acted wrongfully. In a sense, fault is a subjective element of a delict, because it is
concerned to a large extent with a person’s attitude or disposition. Nevertheless, as will be
apparent, the test for negligence is objective in nature.5
A controversial issue is whether wrongfulness or negligence should be determined first.6 On the
one hand, there is a view that fault can only be present if a person has acted wrongfully7 since it
would be illogical to blame someone (ie, to find fault on his part) who has not acted for the
________________________
1 Van der Merwe and Olivier 110 ff; Boberg Delict 268 ff; Loubser and Midgley Delict 137 ff; Van der Walt and
Midgley Delict 225 ff; Burchell Delict 85 ff; Fagan Aquilian Liability 2 ff (with regard to Aquilian liability); but
see infra 433 in respect of liability without fault (strict liability).
2 De Wet and Swanepoel Strafreg 99 define fault as the reprehensible disposition with which a person acts. De Wet
1970 THRHR 72 adds that fault is “something” for which a person is blamed, thus not the object of blame or the
blame itself. See also Burchell and Hunt Criminal Law 125 who submit that fault amounts to “an unlawful mental
condition (mens rea)”. On the other hand, Snyman Criminal Law 145 sees fault as the grounds on which a person is
blamed for his wrongful conduct. See also Van der Merwe and Olivier 111 (and Van der Merwe 1976 SALJ 288)
who reason that fault amounts to a reproach and that the blameworthy disposition of an actor does not by itself
constitute fault but is merely a prerequisite for fault. According to Boberg Delict 268–269, fault is that factor
“which induces the law to impute a man’s wrongful conduct to him in the sense of holding him responsible for it”.
Though fault in the form of intention (infra 159) may be seen as a reprehensible disposition, the Appellate Division
in S v Ngubane 1985 3 SA 677 (A) regards negligence (as a form of fault) as an objective quality of conduct, viz
that the conduct does not conform to the standard of the reasonable person (infra 164). Snyman Criminal Law 153–
154 rejects the “psychological” concept of fault (ie, the idea that fault is to be found in someone’s disposition) and
propagates a “normative” concept of fault according to which fault (especially intention) is based on an evaluation
of a person’s disposition. Although there are academics who accept the normative concept of fault (eg Van der
Merwe 1982 THRHR 146; Van Zyl 1982 THRHR 437–439, 1983 THRHR 100–104), the Appellate Division
declined to give its approval to this approach (S v Bailey 1982 3 SA 772 (A); Du Plessis 1985 SALJ 301 314 394);
see generally Van Oosten 1995 THRHR 361 568.
3 The Afrikaans translation of the English word fault is “skuld”. The latter term may denote a contractual debt as
well as the fact that someone is guilty of a crime: “iemand is skuldig aan ’n misdaad”.
4 In Loureiro v iMvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) para 53 Van der Westhuizen J stated: “[The
defendant’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” (see Knobel 2020 THRHR 212). Negligence should not be seen as a
form of conduct, which is a separate element of a delict (supra 27), but as a particular quality of conduct (see supra
fn 2; cf Knobel in Potgieter, Knobel and Jansen (eds) 245–237).
5 Knobel in Potgieter, Knobel and Jansen (eds) 237 fn 45 submits that “the negligence test is objective compared to the
test for intention, but subjective compared to the test for wrongfulness”.
6 See Loubser and Midgley Delict 197–198; Van der Walt and Midgley Delict 97; Scott 2018 TSAR 916; Knobel
2020 THRHR 212. Whether intent can be dealt with before wrongfulness, appears to be more problematic since
consciousness of wrongfulness (an element of intent) can only be determined after wrongfulness has been
established (cf Neethling 2014 THRHR 110; Knobel 2008 THRHR 6–8, 2010 THRHR 115 ff).
7 Supra 35; Snyman Criminal Law 156.
155
156 Law of Delict
purposes of the law of delict,8 or who has acted lawfully.9 On the other hand, it is accepted that
the inquiry into negligence can be dealt with before the wrongfulness issue,10 either because the
enquiry into negligence is “the logical starting point to any enquiry into the defendant’s liabil-
ity”,11 or because it is “convenient” to focus on negligence first – “[i]n the absence of negligence
the issue of wrongfulness does not arise”.12 Nowadays the courts seem to follow a more prag-
matic approach, accepting that, depending on the circumstances of the case, either of these two
elements can be dealt with first.13 In First National Bank of South Africa Ltd v Duvenhage14
Nugent JA explained this approach as follows: “[W]hatever sequence doctrinal logic dictates,
the human mind is sufficiently flexible to be capable of enquiring into each element separately,
in any order, with appropriate assumptions being made in relation to the others, and that is often
________________________
8 Supra 27 ff.
9 See Van der Walt and Midgley Delict 97 225; Knobel 2008 THRHR 6–8, 2010 THRHR 115 ff; Van der Merwe and
Olivier 111; however, cf Fagan 2005 SALJ 139–141; Brand 2014 Stell LR 458 ff. Boberg Delict 268 (see also 271)
formulates it as follows: “Fault may . . . be described as that element of a delict which induces the law to impute a
man’s wrongful conduct to him in the sense of holding him legally responsible for it” (emphasis added). See, in
respect of wrongfulness and intent, supra 48 fn 61. Consciousness of wrongfulness (an element of intent: infra 159)
and therefore intent can only be determined after wrongfulness has been proved. In respect of negligence, this view
is unequivocally apparent from two decisions of the SCA. In Administrateur, Transvaal v Van der Merwe 1994 4
SA 347 (A) 364 Olivier JA declared (see also Neethling and Potgieter 2000 THRHR 164–165): “A finding that the
appellant’s omission was not wrongful, means that there can be no question of negligence. Thus it is not only
unfeasible to speculate on the possible negligence of the appellant, but it is in fact juridically impossible to do so.
The negligence question can therefore only be answered if it is certain which legal duty rested on the defendant,
and that that particular legal duty had been breached” (translation). Marais JA formulated the same idea in Cape
Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1055 as follows: “[T]he existence of culpa only becomes
relevant sequentially after the situation has been identified as one in which the law of delict requires action.” For an
application of this approach, see, eg, Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA) 35–42;
Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 318–327; Minister of Safety and Security v
Hamilton 2004 2 SA 216 (SCA) 228–239 (however, cf 228–229); Minister van Veiligheid en Sekuriteit v
Geldenhuys 2004 1 SA 515 (SCA) 528–531; Premier, Western Cape v Faircape Property Developers (Pty) Ltd
2003 6 SA 13 (SCA) 27–37; Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 441–448;
Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389
(SCA) 395 ff; see further Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 574–576; Moses v Minister of
Safety and Security 2000 3 SA 106 (C) 113–117; African Life Assurance Co Ltd v NBS Bank Ltd 2001 1 SA 432
(W) 441 445; Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) 1054–1060; Columbus Joint
Venture v ABSA Bank Ltd 2000 2 SA 491 (W) 513 (“an act can only be negligent if it is also wrongful”); Toptrans
Transport v Regering van die Republiek van SA 2001 4 SA 921 (O) 925; Black v Joffe 2007 3 SA 171 (C) 183. Cf
Neethling and Potgieter 2001 THRHR 480, Neethling 2001 THRHR 493–494. For criticism of Olivier JA’s view in
Van der Merwe, see Brand 2014 Stell LR 459–460 who states that it is “simply not so” that “in the absence of
wrongfulness there is juridically – or in principle – no room for a finding of negligence”.
10 See, eg, Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 1 SA 827 (SCA) 837–838;
Mkhatswa v Minister of Defence 2000 1 SA 1004 (SCA) 1111; Mukheiber v Raath 1999 3 SA 1065 (SCA) 1077;
Goldstein v Cathkin Park Hotel 2000 4 SA 1019 (SCA) 1024; see also Standard Bank of South Africa Ltd v OK
Bazaars (1929) Ltd 2000 4 SA 382 (W) 395–398.
11 Mkhatswa v Minister of Defence 2000 1 SA 1004 (SCA) 1111.
12 Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 1 SA 827 (SCA) 837–838; see also
K v Minister of Safety and Security [2019] 1 All SA 415 (ECP) para 59; Mostert v Cape Town City Council 2001 1
SA 105 (SCA) 120–121; Cape Metropolitan Council v Graham 2001 1 SA 1197 (SCA) 1203; cf Knobel 2020
THRHR 212; Fagan 2005 SALJ 139–141; Brand 2014 Stell LR 459 ff.
13 In Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) 91 Brand JA stated it thus: “Depending on the
circumstances, it may be appropriate to enquire first into the question of wrongfulness, in which event it may be
convenient to assume negligence for the purpose of the inquiry. On the other hand, it may be convenient to assume
wrongfulness and then consider the question of negligence first.” See also Bergrivier Municipality v Van Ryn Beck
2019 4 SA 127 (SCA) 140; Van Vuuren v Ethekwini Municipality 2018 1 SA 189 (SCA) paras 18–19; Gouda
Boerdery BK v Transnet 2005 5 SA 490 (SCA) 499; Local Transitional Council of Delmas v Boshoff 2005 5 SA
514 (SCA) 522; cf Oppelt v Department of Health, Western Cape 2016 1 SA 325 (CC) paras 51 71; Loubser and
Midgley Delict 197–198; Van der Walt and Midgley Delict 97; Brand 2014 Stell LR 459 ff; Knobel in Potgieter,
Knobel and Jansen (eds) 232 fn 17.
14 2006 5 SA 319 (SCA) 326.
Chapter 4: Fault (and contributory fault) 157
done in practice to avoid prolonging litigation, for though the elements are naturally interrelated,
each involves a distinct enquiry.”
The existence of either intent or negligence on the part of the defendant is sufficient to blame
him, ie, to find that there was a reprehensible attitude or reprehensible conduct on his part. In the
discussion that follows, both forms of fault are analysed in detail.
For the purposes of the actio legis Aquiliae and the action for pain and suffering, either intention
or negligence suffices for liability, but for the purposes of the actio iniuriarum based on in-
fringement of personality (iniuria), intent is generally required and negligence is insufficient.15
Prior to determining whether the defendant’s wrongful conduct is blameworthy (whether there is
fault on his part), it must be established whether he has the capacity to be held accountable
(accountability or “toerekeningsvatbaarheid”). This means that the person’s mental ability must
be such that intent or negligence may be imputed to him.16
Any discussion of intent and negligence should therefore be preceded by an examination of
accountability.
2 Accountability
A person is accountable (culpae capax) if he has the necessary mental ability to distinguish
between right and wrong and if he can also act in accordance with such appreciation.17
He must have the required mental ability at the time of the commission of the act for which the
law wants to blame him. If a person lacks accountability at the relevant time, there can be no
fault on his part. Accountability can thus be seen as the basis of fault.18
According to our law, a person may lack the necessary mental capacity (and he is thus not
accountable – culpae incapax) where one or more of the following factors are present: youth;
mental disease or illness; intoxication or a similar condition induced by a drug; and anger due to
provocation.
________________________
15 Supra 5.
16 Van der Walt and Midgley Delict 226 declare in this regard: “Fault in the legal sense of the word does not
necessarily coincide with moral or ethical blameworthiness. The law determines its own peculiar standards for the
existence of fault. Thus the objective standard of care applied to determine negligence implies that legal
blameworthiness can attach to a person who was mentally incapable of conforming to the standard of care required
in the particular circumstances. The discrepancy between moral and legal blameworthiness in certain cases is due to
the fact that the law of delict is concerned not only with the moral quality of a person’s conduct, but also with the
effective protection of the interests of the victims of wrongful conduct . . . This does not, however, imply that the
law of delict takes no cognisance of the moral and ethical aspects involved where damage is caused by wrongful
conduct. The law requires that the person concerned must at least have had the mental and intellectual capacity to
comprehend and avoid the danger in a particular situation. One can be held accountable for one’s state of mind or
lack of due care only if at the time of one’s conduct one had this capacity: if one was culpae et doli capax.
Accountability (or imputability) on the part of a defendant is therefore a prerequisite for the existence of fault on
his part. The law thus requires at least a certain minimum capacity of moral responsibility.” Cf infra fn 65.
17 Van der Merwe and Olivier 112; Van der Walt and Midgley Delict 226; Loubser and Midgley Delict 139; Weber v
Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A) 389 403 410.
18 Van der Merwe and Olivier 112; De Wet and Swanepoel Strafreg 105; Snyman Criminal Law 155; Van der Walt
and Midgley Delict 226–227; Boberg Delict 271. Accountability plays a less prominent role in the law of delict
than in criminal law. In criminal law great importance is attached to extenuating circumstances which are related to
diminished (criminal) accountability. This concept is unknown to the law of delict; where a person is not account-
able, he cannot have fault in the juridical sense and will not be delictually liable. The only role that diminished
accountability may possibly play in delictual liability is to reduce the quantum of satisfaction (damages) claimable
in terms of the actio iniuriarum (infra 301 ff). See also Van der Merwe and Olivier 138 who submit that
diminished accountability may reduce the extent of blame in the case of contributory negligence of children.
158 Law of Delict
Youth19 The law always regards a child under seven years of age (an infans) as being culpae
incapax (lacking capacity).20 The actual mental ability of the child is irrelevant and there is an
irrebuttable presumption that he is not accountable. There is a rebuttable presumption that a
child over the age of seven and under the age of 14 years (an impubes) lacks accountability.21
This means that it is assumed that he is culpae incapax until the contrary is proved.22 After the
completion of his seventh year, a child may thus be accountable and held liable in delict if all
the requirements for such liability are met.23 Each case must of course be judged on its own
merits.24 Children between 14 and 18 years of age are considered to be adults for purposes of
accountability.25 26
________________________
19 See generally Loubser and Midgley Delict 149í142; Van der Walt and Midgley Delict 226í227; Boezaart in
Schlemmer and O’Brian (eds) 68 ff, Jansen and Neethling 2017 THRHR 474 ff; Snyman Criminal Law 173í174.
Cf Smits in Potgieter, Knobel and Jansen (eds) 455 ff on the relevance of neuroscience in showing, inter alia, that
younger people’s abilities are less developed than those of adults.
20 Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A) 389; Van Oudtshoorn v Northern Assurance Co
Ltd 1963 2 SA 642 (A); De Bruyn v Minister van Vervoer 1960 3 SA 820 (O); Jones v Santam Bpk 1965 2 SA 542
(A) 552.
21 Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A) 399; S v Pietersen 1983 4 SA 904 (E); S v Van
Dyk 1969 1 SA 601 (C); cf Nieuwenhuizen v Union and National Insurance Co Ltd 1962 1 SA 760 (W); South
British Insurance Co Ltd v Smit 1962 3 SA 826 (A) 836–837; Jones NO v Santam Bpk 1965 2 SA 542 (A) 552–
553; Eskom Holdings Ltd v Hendricks 2005 5 SA 503 (SCA) 511 (no distinction between boys and girls is made in
this respect); Van der Merwe and Olivier 113; Van der Walt and Midgley Delict 227 fn 9; Loubser and Midgley
Delict 141; Boezaart in Schlemmer and O’Brian (eds) 68 ff.
22 The onus of proof rests on the plaintiff: Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A) 399.
23 See the decisions supra fns 13 14; Damba v AA Mutual Insurance Association Ltd 1981 3 SA 740 (E); S v De Vries
1989 1 PH H37 (NC).
24 The following dictum from Jones v Santam Bpk 1965 2 SA 542 (A) 554 is relevant here: “If it be decided in any
particular case that a child under puberty is old enough to have and does have the intelligence to appreciate a
particular danger to be avoided, that he has a knowledge of how to avoid it, and further that he is sufficiently
matured or developed so as to be able to control irrational or impulsive acts, then it would be proper to hold that a
failure to control himself or to take the ordinary precautions against the danger in question is negligent conduct on
his part; in other words, that child, in relation to the particular acts or omissions complained of in the particular
circumstances, was culpae capax.” The court uses the expression culpae capax to denote accountability.
25 See Van der Walt and Midgley Delict 227; Loubser and Midgley Delict 141. Previously the age of majority was 21,
but was reduced to 18 by s 17 of the Children’s Act 38 of 2005.
26 As far as criminal law is concerned, see Snyman Criminal Law 173í174. (For an instructive comparative-law
discussion of the accountability of children in the law of delict and criminal law, see Boezaart in Schlemmer and
O’Brian (eds) 68 ff.) The Child Justice Act 75 of 2008 amended the common law position with regard to the crim-
inal accountability of children. As to infantes, s 7(1) of the Act (as again amended by Act 28 of 2019) now provides
that a “child who commits an offence while under the age of 12 [previously 10] years does not have criminal cap-
acity and cannot be prosecuted for that offence”; s 7(2) of the Act (as amended by Act 28 of 2019) provides that a
“child who is 12 [previously 10] years or older but under the age of 14 years and who commits an offence is
presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity”. (In the previous
edition of Law of Delict (2015) 131 we incorrectly indicated that the Act also changed the private law position with
regard to the accountability of children while the Act is clearly only applicable to criminal capacity; cf also
Boezaart in Schlemmer and O’Brien (eds) 68 ff.) An acceptance of the statutory limits for the law of delict can only
be brought about by the legislature or the courts by developing the common law in the light of the Bill of Rights
(see Jansen and Neethling 2017 THRHR 475í478). In this regard the principal difference between private law
(delict) and public law (crime) should be kept mind, namely that the law of delict is directed at the protection of
private interests by compensating the victim for the harm the wrongdoer has caused, while criminal law is directed
at upholding the public interest by punishing the criminal (see supra 7; Van der Walt and Midgley Delict 3í4;
Boezaart in Schlemmer and O’Brien (eds) 68 ff); and it may very well be that justice would not be served if all
children under 12 would be immune from delictual liability for damage they have caused. The crucial question is
therefore whether delictual capacity should follow criminal capacity. From a comparative law overview it is clear
that in some foreign systems the delictual capacity of children commences at a much younger age than their crim-
inal capacity and there is no indication in these systems that the status quo should be changed (see Jansen and
Neethling 2017 THRHR 477í478; Boezaart in Schlemmer and O’Brien (eds) 68 ff). The rules in the USA are
similar to the rules applicable in our own common law. Keeton Torts 180 remarks in this regard: “These multiple of
sevens are derived originally from the Bible, which is a poor reason for such arbitrary limits; and the analogy of the
criminal law is certainly of dubious value where neither crime nor intent is in question.” Keeton Torts 180–181 is
[continued ]
Mental disease or illness Where, because of a mental disease or illness, a person cannot at a
given moment distinguish between right and wrong, or where he is able to make such a distinc-
tion but cannot act in accordance with his appreciation of the distinction, he is culpae incapax.
In these circumstances there is no question of fault and thus of delictual liability.27
Intoxication Persons who are under the influence of intoxicating liquor or drugs may also be
culpae incapax.28 However, the mere consumption of liquor or use of drugs may in a given
situation be a negligent act for which the defendant may be held responsible. Where, for ex-
ample, the driver of a motor vehicle consumes liquor before his journey and the alcohol only
takes full effect after he has started his trip, and he then causes damage while in a state where he
is no longer able to distinguish between right and wrong or between safe and unsafe conduct or
to act in accordance with an appreciation of such distinction, he may nevertheless be liable. The
reason for this conclusion is that the consumption of liquor may be seen as a negligent act
performed at a time when the driver was accountable.29
Provocation Where a person under provocation loses his temper and becomes passionately
angry, he may be said to lack accountability and will thus not be blamed for his (“intentional”)
conduct.30 However, as already stated,31 provocation in our law is often regarded as a ground of
justification.
Once it has been established that the defendant was accountable at the relevant stage, it must be
determined whether he acted intentionally or negligently.
3 Intent
An accountable person acts intentionally if his will is directed at a result which he causes while
conscious of the wrongfulness of his conduct.32 From this definition it is clear that intention
________________________
opposed to any fixed or arbitrary rules laid down in advance and in favour of evaluating the capacity of the child in
each particular case, as is the position in English law. There is much to be said for this viewpoint. It is, eg,
questionable that a child of 6½ years who in the particular circumstances is capable of distinguishing between right
and wrong and acting in accordance with such insight – and therefore culpae capax – should escape delictual
liability merely because he is under 7. Koziol in Koziol (ed) 792 also supports this sentiment: “[W]hile the concept
of legal certainty can be used to argue for rigid age limits, the counter arguments would seem to outweigh this
concern: this concerns subjective imputation and as the personal development of children varies quite considerably
and in diverse situations very different powers of discernment are required, rigid age limits thus lead to results
which in individual cases cannot be objectively justified.” According to Koziol, legal certainty and justice can be
achieved by introducing rebuttable presumptions linked to age limits appropriate to the typical development of
children, as is done in our law in respect of impubes but it is recommended that it should also be extended to infants
(see Jansen and Neethling 2017 THRHR 481í482).
27 Van der Walt and Midgley Delict 227; Loubser and Midgley Delict 142; Fradd v Jaquelin (1882) 3 NLR 144 149.
In such a situation German law provides for liability without fault (para 829 of the Civil Code (BGB)).
28 Van der Walt and Midgley Delict 227; Loubser and Midgley Delict 143; also generally S v Chretien 1981 1 SA
1097 (A); Visser 1981 THRHR 423 ff.
29 Visser 1981 THRHR 423.
30 Van der Walt and Midgley Delict 227; Loubser and Midgley Delict 143–144; Van der Merwe and Olivier 111;
Wessels v Pretorius 1974 3 SA 299 (NC); see also De Wet and Swanepoel Strafreg 127 for a different viewpoint.
See S v Gesualdo 1997 2 SACR 68 (W) for lack of accountability in circumstances where an accused was unable to
act in accordance with the distinction between right and wrong on account of emotional factors.
31 Supra 124 ff.
32 In Dantex Investment Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A) 396 Grosskopf JA stated: “[I]t is now
accepted that dolus encompasses not only the intention to achieve a particular result, but also the consciousness that
such a result would be wrongful or unlawful.” See further Minister for Justice and Constitutional Development v
Moleko [2008] 3 All SA 47 (SCA) 64; Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) 874; Van der
Merwe and Olivier 115; Loubser and Midgley Delict 144–145; cf Fagan Aquilian Liability 102 ff; Snyman Crim-
inal Law 176 ff. There are other definitions of intent but they are all basically similar. See, eg, Boberg Delict 268:
“Intention (dolus) is a state of mind in which the will is directed at producing a particular consequence which the
[continued ]
160 Law of Delict
(animus iniuriandi, dolus) has two elements, ie, direction of the will and consciousness
(knowledge) of wrongfulness.
3.1 Direction of the will

This element refers to the direction of the wrongdoer’s will to a result which was either his
principal object or one which he foresaw might follow from his conduct. It is possible to identify
three forms of intent.33
(a) Direct intent (dolus directus or “oogmerkopset”) This form of intent is present where the
wrongdoer actually desires a particular consequence of his conduct. It does not make any differ-
ence whether the wrongdoer is certain that the consequence would result or whether it only
appears to him to be probable or possible. An example is where X decides to shoot and kill Y in
order to take Y’s money. The execution of this plan is accompanied by direct intent because it is
X’s desire or plan that Y should die.34
(b) Indirect intent (dolus indirectus or “opset by sekerheidsbewussyn”) This form of intent
is present where a wrongdoer directly intends one consequence of his conduct but at the same
time has knowledge that another consequence will unavoidably or inevitably also occur. The
causing of the second consequence is accompanied by indirect intent. In law, the wrongdoer is
said to have intent in respect of the second consequence which he has not desired or which was
not his immediate object. An example is where X desires to shoot and kill Y who is standing
behind a closed window. The bullet aimed at Y first shatters a windowpane and then fatally
wounds Y. In respect of Y’s death, it is clear that X has direct intent; but the same cannot be said
about the destruction of the windowpane – X definitely did not desire to break the window.
Nevertheless, X realised that it was an inevitable or necessary consequence of his shooting Y
and therefore in relation to the breaking of the window, indirect intent is present.35
________________________
actor knows to be wrongful.” Van der Walt and Midgley Delict 227 define intent as follows: “Intent (dolus or
animus iniuriandi) is a legally reprehensible state of mind or mental disposition encompassing the direction of the
will to the attainment of a particular consequence, and consciousness of the fact that such result is being achieved
in an unlawful or wrongful manner.” Intent is seldom encountered in legal practice in respect of the actio legis
Aquiliae (cf, however, Dantex Investment Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A) 395–396; Clifford v
Farinha 1988 4 SA 315 (T) 320) because negligence is usually a sufficient form of fault for this action.
(Nevertheless, for a view on the relevance of intent for the purposes of Aquilian liability, see Fagan Aquilian
Liability 102 ff, 2019 Acta Juridica 283 ff.) In the law of delict, intention is normally only relevant with regard to
liability for an impairment of personality (iniuria) where the actio iniuriarum is applicable (see supra 13 ff;
Neethling, Potgieter and Roos Neethling on Personality Rights 85–87; cf Fagan Aquilian Liability 103–124, 2019
Acta Juridica 283 ff who gives various reasons that intention matters to the determination of Aquilian liability). As
far as intent is concerned, the law of delict largely depends on criminal law for legal principles where this concept
is clearly defined and much development has taken place (eg R v Jolly 1923 AD 176; R v Peverett 1940 AD 213; S
v Mini 1963 3 SA 188 (A); S v P 1972 3 SA 412 (A); S v Du Preez 1972 4 SA 584 (A); S v De Bruyn 1968 4 SA
498 (A); S v Sigwahla 1967 4 SA 566 (A); S v Malinga 1963 1 SA 692 (A); S v V 1979 2 SA 656 (A); S v De Blom
1977 3 SA 513 (A); S v Ngubane 1985 3 SA 677 (A); S v Beukes 1988 1 SA 511 (A); S v Goosen 1989 4 SA 1013
(A); S v Naidoo 2003 1 SACR 347 (SCA)).
33 See Black v Joffe 2007 3 SA 171 (C) 186. In the different manifestations of the will discussed here, it is assumed
that consciousness of wrongfulness is present (infra 162); see further S v Naidoo 2003 1 SACR 347 (SCA). Cf Van
der Walt and Midgley Delict 227–230; Loubser and Midgley Delict 145–146. Burchell in Potgieter, Knobel and
Jansen (eds) 116–118 criticises Fagan (Undoing Delict viii 156 ff, cf also Aquilian Liability 102 ff 124–132, 2019
Acta Juridica 283 ff) for failing to specify the meaning he attaches to intention (in particular regarding the defences
in a defamation action – see infra 406 fn 178): “[I]s it confined to what may be regarded as ‘malice’ in English law;
is it equivalent to dolus directus in South African law; is it distinguishable from motive; does it include dolus directus
or even dolus eventualis?”
34 Cf Van der Merwe and Olivier 115; Van der Walt and Midgley Delict 227–228; Loubser and Midgley Delict 145–
146; Boberg Delict 268–269; Fagan Aquilian Liability 125–126.
35 Van der Merwe and Olivier 115–116; Van der Walt and Midgley Delict 227–228; Loubser and Midgley Delict
145–146; Fagan Aquilian Liability 126–129; Nasionale Pers Bpkt v Long 1930 AD 87; Van Zyl v African Theaters
Ltd 1931 CPD 61; cf Roux v Hattingh 2012 6 SA 428 (SCA).
(c) Dolus eventualis (“opset by moontlikheidsbewussyn”)36 This form of intent is present

where the wrongdoer, while not desiring a particular result, foresees the possibility that he may
cause the result and reconciles himself to this fact; ie, he nevertheless performs the act which
brings about the consequence in question.37 This form of intent is sometimes defined slightly
differently by stating that the wrongdoer foresees a consequence but recklessly carries on with
his conduct. The use of the word reckless in this regard should, however, be avoided because
recklessness may also refer to a serious degree of negligence. Thus confusion between dolus
eventualis and (gross) negligence may occur.38 The distinction between these two concepts can
be explained as follows: in the case of negligence, the question is whether the consequence,
objectively seen, was reasonably foreseeable, while in a case of dolus eventualis the question is
whether the wrongdoer actually subjectively foresaw the possibility of the consequence.39 The
fact that a particular result was reasonably foreseeable, may clearly be of fundamental im-
portance in deciding whether the actor actually foresaw the result.40 The implication is that the
objective foreseeability test may provide evidentiary material for determining what was actually
foreseen by the wrongdoer. Where the wrongdoer alleges that he did not foresee consequences
that are reasonably foreseeable, he must demonstrate factual circumstances that make his version
reasonably acceptable.
A general example41 of dolus eventualis is the following: X wants to kill his enemy Y. Z is
standing next to Y when X takes aim. X actually foresees the possibility that his shot may miss
Y and hit Z with fatal consequences. X nevertheless decides to proceed (to shoot Y). The bullet
misses Y and hits Z. The conclusion is that X shot Z intentionally, even though he did not desire
this consequence or foresee it as a necessary consequence of his conduct.42 The mere fact that X
subjectively foresaw the possibility that he might hit Z is sufficient for concluding that he acted
intentionally. If X initially foresaw the possibility that he might hit Z but later for some reason
(even an unreasonable one) came to the conclusion that this would not happen, there will not be
dolus eventualis on his part.43 In such a case, luxuria or conscious negligence may be present (ie,
the wrongdoer subjectively foresees the possibility of harm in circumstances where such harm is
also reasonably foreseeable but he does not reconcile himself to the possibility of this actually
happening).44
________________________
36 See Van der Walt and Midgley Delict 227–228; Loubser and Midgley Delict 146–147; Fagan Aquilian Liability
129–132; Frankel Pollak Vinderine Inc v Stanton 2000 1 SA 425 (W). Country Cloud Trading CC v MEC,
Department of Infrastructure Development, Gauteng 2014 2 SA 214 (SCA) 222 ff. Cf Watney 2016 TSAR 769 ff
for a critical review of recent developments regarding dolus eventualis in criminal law, with reference to Van
Schalkwyk v The State 2016 ZASCA 49.
37 Van der Merwe and Olivier 116–117; De Wet and Swanepoel Strafreg 137; S v Beukes 1988 1 SA 511 (A) (for
discussions of this case, see Loubser and Rabie 1988 SACJ 434–436; Paizes 1988 SALJ 636); S v Nkombani 1963 4
SA 877 (A); Moaki v Reckitt and Colman (Africa) Ltd 1968 1 SA 702 (W) 708–709; Nasionale Pers Bpkt v Long
1930 AD 87–100; Minister for Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA) 64;
Rudolph v Minister of Safety and Security 2009 5 SA 94 (SCA) 100; Country Cloud Trading CC v MEC,
Department of Infrastructure Development 2014 2 SA 214 (SCA) 222–224 (Scott 2014 TSAR 836); Country Cloud
Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 1 2 SA 1 (CC) para 37. According
to Fagan Aquilian Liability 129–132, it is not clear-cut that our law yet regards dolus eventualis as a form of intent
for the purposes of Aquilian liability.
39 See in this regard S v Sigwahla 1967 4 SA 566 (A) 570: “The fact that objectively speaking the accused ought
reasonably to have foreseen such possibility, is not sufficient. The distinction must be observed between what
actually went on in the mind of the accused and what would have gone on in the mind of a bonus paterfamilias
(reasonable man) in the position of the accused. In other words, the distinction between subjective foresight and
objective foreseeability, must not become blurred.” (See infra 164 ff on negligence.)
41 Ibid.
42 S v Mienies 1978 4 SA 560 (A) 562; S v Dladla 1980 1 SA 1 (A) 3–4.
43 De Wet and Swanepoel Strafreg 137; S v Van Zyl 1969 1 SA 553 (A) 557.
44 Snyman Criminal Law 183–184; S v Ngubane 1985 3 SA 677 (A) 685.
162 Law of Delict
Although a distinction is made between the different forms of intent, it is generally irrelevant
which one is present in a particular case. 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 intent is in law: its meaning is much broader than it is in
general usage. This observation is of equal validity when we consider the further division of
intent into definite and indefinite intent.
The difference between definite intent (dolus determinatus) and indefinite intent (dolus indeter-
minatus)45 is as follows: where a wrongdoer’s will is directed at a result which he causes while
he has a specific person or object in mind, he is said to have definite intent. This form of intent
may be present in the case of direct intent, indirect intent and dolus eventualis. However, where
the wrongdoer’s will is directed at the result which he causes while he has no specific person or
object in mind, indefinite intent is present. The classic example of this kind of intent is found in
the case of a person placing a time bomb in a busy shop. He does not know precisely who will
be hurt or what damage will be caused, but he nevertheless has intent in respect of the conse-
quences of his conduct. Indefinite intent indicates an indifference or lack of knowledge about the
identity or number of victims or the nature and extent of the resulting consequences, but not
necessarily indifference about the occurrence of the particular consequence(s). Seen from this
perspective, the wrongdoer may be indifferent about who will be injured (which points to
indefinite intent) while desiring such consequences (direct intent), or realising the inevitability
of such consequences (indirect intent), or merely foreseeing the possibility of such consequences
resulting from his conduct (dolus eventualis).46
3.2 Consciousness (knowledge) of wrongfulness

Knowledge of wrongfulness as a requirement of intent indicates that it is insufficient for the
wrongdoer merely to direct his will (as discussed earlier) at causing a particular result; he must
also know (realise) or at least foresee the possibility that his conduct is wrongful (ie, contrary to
law or constituting an infringement of another’s right(s)).47 A mistake sometimes made, particu-
larly by lay persons, is to describe any desired conduct or willed consequence as “intentional”;
intent is actually a technical legal term referring to a willed act which in addition is subjectively
known to be wrongful.
It follows that a mistake (error) with regard to any matter which has a bearing on the wrongful-
ness of the actor’s conduct, will exclude intent on his part. A good example of this is mistake
concerning the presence of a ground of justification. Where X takes a motor car belonging to Y
while erroneously thinking that Y has given consent, he does not take the car intentionally
because his mistake (thinking that Y has given consent) excludes knowledge of wrongfulness on
his part – in other words X honestly but wrongly believes that he is acting lawfully because of
the supposed consent from Y.48
________________________

46 Ibid.
47 Van der Merwe and Olivier 122–125; Loubser and Midgley Delict 148–149; Fagan Aquilian Liability 132–140
(who does not think that consciousness of wrongfulness should be an element of the intent-requirement for
Aquilian liability (137)); Dantex Investment Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A) 396–397; Kgaleng v
Minister of Safety and Security 2001 4 SA 854 (W) 874 (Neethling 2002 SALJ 284). See supra 35 ff on wrong-
fulness as an element of a delict. The determination of the consciousness of wrongfulness becomes intricate when
attempting to apply this leg of intent to the formulation of wrongfulness as “the reasonableness of imposing
liability on a defendant” (see supra 93). It is doubtful whether a defendant can really be consciously aware of “the
reasonableness of holding him liable” and thus of the wrongfulness of his conduct.
48 It will be pointed out later that X may possibly be negligent in the example under discussion (and thus liable for
damages if the other requirements for delictual liability are met) but it is clear that there is no intention here.
There are conflicting opinions about what form of mistake (error) excludes intent. In certain
cases49 it was held that a reasonable or unreasonable belief on the part of the wrongdoer that his
conduct (which is in fact wrongful) is lawful, will exclude intent. However, there are cases
which go so far as to suggest that mistake can never be a defence in an action based on intent50
(consciousness of wrongfulness is thus not recognised as an element of intent), while it has also
been held that only a reasonable mistake (ie, one that is not due to negligence) negates intent.51
It is submitted that, in accordance with new developments in the field of criminal law,52 it must
be accepted as a general rule that for the purposes of delictual liability any mistake (error) with
regard either to a relevant fact or to the law excludes intent.53 Such a principle will be significant
where intent (in the form of animus iniuriandi) is required for delictual liability in terms of the
actio iniuriarum.54 This will mean that where an actor, for any reason, is unaware of the wrong-
fulness of his conduct (for example, in a defamation action) animus iniuriandi (intent) cannot be
present and there can be no question of an action for satisfaction (sentimental damages as a
solatium).55 As stated above, intent is not required for the actio legis Aquiliae, as negligence is
sufficient; thus mistake excluding intent will seldom be relevant in this action.56
3.3 Motive and mistake concerning the causal chain of events

To conclude the discussion of intent, the meaning of motive and mistake concerning the causal
chain of events must be considered.57
Motive58 In general, motive indicates the reason for someone’s conduct and must not be con-
fused with intent. Intent is a technical legal term that, as stated earlier, denotes willed conduct
which the wrongdoer knows is wrongful; motive, on the other hand, refers to the reason why a
person acts in a particular way, ie, the objective he wishes to achieve, his desire, or the facts
behind the formation of his will. A person may thus, despite the fact that in his opinion he has a
good motive, still act with intent (for example, where he kills another in order to spare him suf-
fering). By contrast, intent may be absent in the case of a person who has a bad motive but
believes his conduct is lawful. Despite the differences between intent and motive, motive is
clearly of evidentiary value to prove direct intent – it may serve as evidence that someone acted
with direct intent.59 Moreover, motive may serve as proof of consciousness of wrongfulness. It
________________________
49 Maisel v Van Naeren 1960 4 SA 836 (C); Naidoo v Vengtas 1965 1 SA 1 (A).
50 Boswell v Union Club of SA (Durban) 1985 2 SA 162 (D) 166–168; Smith and Lardner-Burke v Wonesayi 1972 3
SA 289 (RA); Norton v Ginsberg 1953 4 SA 537 (A) 551; C v Minister of Correctional Services 1996 4
SA 292 (T).
51 Hassen v Post Newspapers (Pty) Ltd 1965 3 SA 562 (W).
52 See, eg, S v De Blom 1977 3 SA 513 (A); S v Sam 1980 4 SA 289 (T); S v Speedy 1985 2 SA 782 (A).
53 See also Van der Walt and Midgley Delict 233; Van der Merwe and Olivier 123 fn 48; cf Dantex Investment
Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A) 396–397 (where the court requires knowledge of wrongfulness in
general but adds that policy issues may justify exceptions in particular situations). See further Minister of Justice v
Hofmeyr 1993 3 SA 131 (A) 154 regarding liability for wrongful arrest and wrongful attachment where
consciousness of wrongfulness is not required; Minister of Finance v EBN Trading (Pty) Ltd 1998 2 SA 319 (N);
Sheriff, Pretoria East v Meevis 2001 3 SA 454 (SCA) 460; see further infra 398 419 443.
54 Supra 13 ff.
55 See on this infra 414. See, however, infra 415 for instances where negligence sufficiently fulfils the fault
requirement of defamation.
56 Supra fn 32; cf, however, Dantex Investment Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A) 396–397.
57 See on onus of proof in respect of intent, Van der Walt and Midgley Delict 235 and cases referred to there; Loubser
58 Van der Merwe and Olivier 126; Van der Walt and Midgley Delict 232; Loubser and Midgley Delict 150;
Neethling, Potgieter and Roos Neethling on Personality Rights 85–87; Esterhuizen v Administrator, Transvaal
1957 3 SA 710 (T) 722; supra 48 fn 61.
59 This is why the investigator in, eg, a murder case is concerned with who had a motive for killing the deceased
because such a motive may also prove that the suspect had intent. The same is true in delicts like defamation,
invasion of privacy, etc.
164 Law of Delict
may be accepted that a bad motive (malice or mala fides) usually indicates knowledge of wrong-
fulness while a good motive (bona fides) usually indicates the opposite.
Mistake concerning the causal chain of events60 In short, the problem here is whether intent
is present where the wrongdoer causes a result in a manner different from that foreseen by him.
A distinction must be made between a material and an immaterial deviation from the planned or
foreseen causal nexus. In the case of a material deviation,61 intention is absent, while it is as-
sumed to be present where the deviation is not markedly different from the foreseen causal chain
of events.62 According to the Appellate Division, a marked deviation exists if the actual causal
chain is so different from the foreseen one that the former cannot reasonably be regarded as
falling within the actor’s own perception.63
4 Negligence
4.1 Definition and nature

It was previously stated that fault (intent and negligence) refers to the blameworthy attitude or
conduct of someone who has acted wrongfully for the purpose of the law of delict.64 In the case
of negligence, a person is blamed for an attitude or conduct of carelessness, thoughtlessness or
imprudence because, by giving insufficient attention to his actions, he failed to adhere to the
standard of care legally required of him. The criterion adopted by our law to establish whether a
person has acted carelessly and thus negligently is the objective standard of the reasonable
person,65 the bonus paterfamilias.66 Changed terminology requires use of the expression
________________________
60 Van der Merwe and Olivier 118–122.

61 Cf the facts in S v Goosen 1989 4 SA 1013 (A): X, Y and three other persons participated in a robbery. X drove the
robbers’ vehicle. X did foresee that Y, who had a loaded gun, could shoot and kill their victim. During the robbery
Y jumped out of the way of the car driven by the victim and this caused a shot to be discharged involuntarily from
the gun he held. The shot hit and killed the victim. The court held that causing death by intentional conduct differs
markedly from causing death by unforeseen conduct. Thus there was a material difference between the actual
causal chain of events and that foreseen by X. Accordingly, X was acquitted of murder since his intention did not
cover the manner in which death was caused. (X was, however, found guilty of culpable homicide because the
events were reasonably foreseeable.) See Snyman Criminal Law 190–192 for criticism. Cf further Visser 1990
THRHR 601; Burchell 1990 SALJ 168.
62 The following example illustrates the problem: X wants to shoot and kill Y. He fires a shot in order to hit Y in the
head. The bullet misses Y and hits a rock from which it ricochets and then hits Y in the heart with fatal
consequences. Can it be said that X had intent in respect of Y’s death? The answer is in the affirmative even though
X did not foresee the precise manner of Y’s death (see S v Goosen 1989 4 SA 1013 (A) 1021). In the example, X
intended and caused a wrongful consequence; it would be absurd to accept that X did not intentionally kill Y
simply because the causal chain of events between his conduct and the result is different from that foreseen by him
(cf Snyman Criminal Law 191–192). See also S v Masilela 1968 2 SA 558 (A). In this case the two accused
throttled the deceased and hit him over the head with the intent to kill him. Believing him to be dead, they threw
him onto a bed and set fire to the house. A post-mortem examination revealed that the deceased did not die of
strangulation or the blow to his head, but because of the poisonous fumes of the fire. The court held that there was
intention to murder and stated that it regarded as ground for its finding of guilty of murder, the fact that the accused
“willed” the victim’s death and that they, and no one else, caused the death. There are certain other problems,
mostly of a purely theoretical nature, in respect of mistake as to the causal chain of events. Some will be considered
in the discussion of factual and legal causation (infra 215). See further Van der Merwe and Olivier 119–122.
63 S v Goosen 1989 4 SA 1013 (A) 1026. The court conceded that the criterion of a material (“wesenlike”) deviation
in the causal nexus is vague but reasoned that further guidelines will crystallise in future. Snyman Criminal Law
192 opines that the courts do not seem to follow Goosen in this respect: S v Nair 1993 1 SACR 452 (A); S v
Lungile 1999 2 SACR 597 (SCA); see further De Wet and Swanepoel Strafreg 141; Van Oosten 1976 De Jure 65;
Du Plessis 1989 TSAR 272; Jordaan 1990 SACJ 208.
64 See S v Naidoo 2003 1 SACR 347 (SCA) 357 on negligence in criminal law for the purpose of culpable homicide.
65 According to this criterion, an uneducated person acts negligently where, eg, children are injured by the explosion
of a detonator after he, in his ignorance, has picked up the detonator and given it to them as a toy. The problem here
is that the uneducated person cannot really be blamed for his ignorance or lack of understanding in this regard (as
[continued ]
“reasonable person” in future instead of “reasonable man”.67 The defendant is negligent if the
reasonable person in his position would have acted differently; and according to the courts the
reasonable person would have acted differently if the unlawful causing of damage was reason-
ably foreseeable and preventable.68 The test for negligence finds its most authoritative and
clearest statement in the following dictum of Holmes JA in Kruger v Coetzee:69
________________________
De Wet and Swanepoel Strafreg 161 correctly argue). The old problem of whether the law should apply an object-
ive or a subjective criterion is relevant here: must the uneducated person be blamed because he did not act like a
reasonable person, or can he only be blamed if he did not act in a manner which might reasonably be expected from
a person with his limited knowledge? De Wet and Swanepoel Strafreg 161–162 argue, with some cogency, that the
(more) subjective approach should be followed in criminal law (see also Mogridge 1980 SALJ 267; Botha 1977
SALJ 29; S v Van As 1976 2 SA 921 (A)). But as far as the law of delict is concerned, where one of two parties
must bear the damage, our law correctly refuses to lower the objective standard even though it would appear to be
inequitable in the case of an uneducated person. This means that in private law one is not expected to bear the risk
connected with the activities of the uneducated. Fagan Aquilian Liability 96–97 points out that our courts have
accepted that the test for negligence is objective, with reference to Jones v Santam 1965 2 SA 542 (A) 551 and
Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A) 410–411. See generally on the differences
between the test for negligence in the law of delict and criminal law, Jansen and Verschoor 1994 THRHR 565 ff.
66 Van der Walt and Midgley Delict 237 describe negligence as follows: “Conduct is negligent if the actor does not
observe that degree of care which the law of delict requires. This involves a value judgment which is made by
balancing various competing considerations and this normative aspect may render a conclusion on the negligent
nature of the conduct open to constitutional scrutiny. The standard of care which the law demands is ordinarily that
which a reasonble person . . . in the position of the defendant would exercise in the same situation.” On its own, this
description is probably too vague to be of much value and may lead to confusion with wrongfulness (see infra 193).
Boberg Delict 274 declares: “A person is negligent if he did not act as a reasonable man . . . would have done in the
same circumstances.” Cf generally Van der Walt and Midgley Delict 237 ff; Loubser and Midgley Delict 153 ff;
Snyman Criminal Law 209í211; Van der Merwe and Olivier 126.
67 See, eg, Mkhwanazi v Van der Walt 1995 4 SA 589 (A) 593F; cf also Van der Walt and Midgley Delict 239; Cape
Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1054–1055; Barnard v Santam Bpk 1999 1 SA 202
(SCA) 213 and more recent judgments of the SCA. Cf further Snyman Criminal Law 206.
68 The test for negligence, as it appears from decided cases, is formulated as follows by Van Rensburg Normatiewe
Voorsienbaarheid 23–24: A wrongdoer is negligent if “the reasonable [person], if he had found himself in exactly
the same position as the actor, would have foreseen harm to another with such a degree of probability that he, in
light of the circumstances, would either have refrained from the act, or would have acted differently, or would have
taken further preventive measures” (translation). See further Snyman Criminal Law 206.
69 1966 2 SA 428 (A) 430. This formulation has been endorsed by the CC as “[t]he proper approach for establishing
the existence or otherwise of negligence” (Oppelt v Department of Health, Western Cape 2016 1 SA 325 (CC)
para 69) and Loureiro v iMvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) para 58: “The test for negligence
set out in Kruger v Coetzee remains authoritative”; see also, eg, Mashongwa v Passenger Rail Agency of South
Africa 2016 3 SA 528 (CC) para 31; Van Vuuren v Ethekwini Municipality 2018 1 SA 189 (SCA) para 30; Naidoo
v Minister of Police (SCA) paras 24í25; Bergrivier Municipality v Van Ryn Beck 2019 4 SA 127 (SCA) 142;
Atwealth (Pty) Ltd v Kernick 2019 4 SA 420 (SCA) 433; Minister of Police v K (case no 403/2019) [2020] ZASCA
50 (6 May 2020) para 19; Meyers v MEC, Department of Health, EC 2020 3 SA 337 (SCA) 350; Santam
Versekeringsmaatskappy Bpk v Swart 1987 4 SA 816 (A) 819–820; Ngubane v South African Transport Services
1991 1 SA 756 (A) 776; Barnard v Santam Bpk 1999 1 SA 202 (SCA) 213; Minister of Safety and Security v
Rudman 2005 2 SA 16 (SCA) 39 referring to the formulation in Kruger v Coetzee as the “classic test” for
determining negligence; Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 237–238 (“classic test”);
Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13 (SCA) 36; Minister of Safety and
Security v Van Duivenboden 2002 6 SA 431 (SCA) 441 448; Minister of Safety and Security v Carmichele 2004 3
SA 305 (SCA) 325; Kruger v Carlton Paper of SA (Pty) Ltd 2002 2 SA 335 (SCA) 341 (“classic test”); Tsogo Sun
Holdings (Pty) Ltd v Qing-He Shan 2006 6 SA 537 (SCA) 540; Minister of Safety and Security v Mohofe 2007 4
SA 215 (SCA) 218; Du Preez v Swiegers 2008 4 SA 627 (SCA) 632; McIntosh v Premier, KwaZulu-Natal 2008 6
SA 1 (SCA) 8; Checkers Supermarket v Lindsay 2009 4 SA 459 (SCA) 461; Oliphant v RAF [2008] 4 All SA 239
(SCA) 243; Mercurius Motors v Lopez [2008] 3 All SA 238 (SCA) 244; Transnet t/a Metrorail v Witter 2008 6 SA
549 (SCA) 553; CA v GS [2016] 4 All SA 386 (WCC) paras 65–66; Neethling v Oosthuizen 2009 5 SA 376 (WCC)
379–380; Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) 91; Minister of Safety and Security v Craig [2010] 1
All SA 126 (SCA) 238; Sonny v Premier, KwaZulu-Natal 2010 1 SA 427 (KZP) 441; Skead v Melco Elevator
(South Africa) (Pty) Ltd [2010] 3 All SA 445 (GSJ) 457–459; Minister of Correctional Services v Lee 2012 3 SA
617 (SCA) 626; Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) 415; Avonmore Supermarket
CC v Venter 2014 5 SA 399 (SCA) para 10; Jacobs v Transnet Ltd t/a Metrorail 2015 1 SA 139 (SCA) para 6;
Minister of Justice and Constitutional Development v X 2015 1 SA 25 (SCA) para 20; McCarthy Ltd t/a Budget
[continued ]
166 Law of Delict
For the purposes of liability culpa arises if –

(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property
and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
This has been constantly stated by this Court for some 50 years. Requirement (a)(ii) is sometimes over-
70
looked. Whether a diligens paterfamilias in the position of the person concerned would take any guard-
ing steps at all and, if so, what steps would be reasonable, must always depend on the particular
circumstances of each case. No hard and fast basis can be laid down.71
Notwithstanding a few judicial dicta to the contrary, the above-mentioned dictum remains auth-
oritative.72
The test for negligence has been described in a more condensed manner without reference to
foreseeability and preventability of damage.73 In Jones NO v Santam Bpk74 it is stated as follows:
A person is guilty of culpa if his conduct falls short of that of the standard of the diligens paterfamilias –
a standard that is always objective and which varies only in regard to the exigencies arising in any
particular circumstances. It is a standard which is one and the same for everybody under the same cir-
75
cumstances.
________________________
Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel 2012 6 SA 551 (GNP) 566–567; Jacobs v
Chairman, Governing Body, Rhodes High School 2011 1 SA 160 (WCC) 169; Holm v Sonland Ontwikkeling
(Mpumalanga) (Edms) Bpk 2010 6 SA 342 (GNP) 349–350; Gora v Kings College 2019 4 SA 162 (ECG) 169 (see
Scott 2019 (3) LitNet Akademies 785í789); Kawa v Minister of Safety and Security [2019] 1 All SA 415 (ECP)
paras 59í61 (negligence in police investigation of rape); Carelse v City of Cape Town [2019] 2 All SA 125 (WCC)
para 62 (negligence in controlling dog at public facility). Cf generally Loubser and Midgley Delict 154–156; Van
der Walt and Midgley Delict 250; Fagan Aquilian Liability 8 ff 13 ff; Knobel 2020 THRHR 204.
70 See, eg, Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 448.
71 As far as liability of trade unions for damage caused during an organised protest march, based on s 11 of the Regu-
lation of Gatherings Act 205 of 1993 is concerned, the court held in SATAWU v Garvas 2013 1 SA 83 (CC) 97 that
the reasonable foreseeability and preventability test for negligence in delict is not necessarily expressed in
s 11, the wording of which must be given a rational meaning which does not necessarily equate to that of its
delictual counterpart (contra SA Transport and Allied Workers Union v Garvis [2011] 4 All SA 475 (SCA) 484,
where the court held that the common law test for negligence does not differ from the defence in s 11 of the Act).
See also Rautenbach 2013 TSAR 151 ff; Gericke 2012 THRHR 581–584.
72 However, in Mukheiber v Raath 1999 3 SA 1065 (SCA) 1077 Olivier JA accepted Boberg’s adaptation of this test
(Delict 390): “For the purposes of liability culpa arises if – (a) a diligens paterfamilias in the position of the
defendant – (i) would have foreseen harm of the general kind that actually occurred; (ii) would have foreseen the
general kind of causal sequence by which that harm occurred; (iii) would take reasonable steps to guard against it;
and (b) the defendant failed to take those steps.” Although this formulation has already been applied by the High
Court (eg Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C) 971), the SCA confirmed the Kruger v Coetzee test sub-
sequent to the Mukheiber judgment (see, eg, Mkhatswa v Minister of Defence 2000 1 SA 1004 (SCA) 1111–1112;
Mostert v Cape Town City Council 2001 1 SA 105 (SCA) 118–119; Du Pisanie v Rent-a-Sign (Pty) Ltd 2001 2 SA
894 (SCA) 899; Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA) 39; Minister of Safety and Security
v Van Duivenboden 2002 6 SA 431 (SCA) 441 448; Premier, Western Cape v Faircape Property Developers (Pty)
Ltd 2003 6 SA 13 (SCA) 36 (“no reason to qualify this test which has almost been invariably applied by this
Court”); Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 325; cf Sea Harvest Corporation (Pty)
Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 1 SA 827 (SCA) 839–840 846 (Scott 2000 De Jure 358 ff 365).
See also Neethling v Oosthuizen 2009 5 SA 376 (WCC); Scott 2000 De Jure 358 ff 365. The respective merits of
the Kruger v Coetzee and Mukheiber tests are discussed infra 176–178.
73 Indeed, in Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 325 Harms JA declared: “[I]t should
not be overlooked that in the ultimate analysis the true criterion for determining negligence is whether in the par-
ticular circumstances the conduct complained of falls short of the standard of the reasonable person. Dividing the
inquiry into various stages, however useful, is no more than an aid or guideline for resolving this issue. It is prob-
ably so that there can be no universally applicable formula which will prove to be appropriate in every case.”
74 1965 2 SA 542 (A).
75 See further Coetzee v Fourie 2004 6 SA 485 (SCA) 488. In Sea Harvest Corporation (Pty) Ltd v Duncan Dock
Cold Storage (Pty) Ltd 2000 1 SA 827 (SCA) 839–840 the condensed description is formulated as follows: “[T]he
true criterion for determining negligence is whether in the particular circumstances the conduct complained of falls
[continued ]
There are numerous matters relating to negligence and the test for negligence which require
discussion.
4.2 Can negligence and intention overlap?

While this is primarily a theoretical issue, it may have practical implications. According to
Van der Merwe and Olivier’s76 definition of negligence, it would appear that negligence may
only exist in respect of a consequence if the wrongdoer has not “intentionally” caused that con-
sequence. In terms of this view, intention and negligence are mutually exclusive concepts in the
sense that one cannot be present when the other exists.77 There are a number of decisions which
tend to support the view that a person cannot act intentionally and negligently in respect of the
same consequence.78 However, there are decisions in which it was stated that if intent is present,
negligence is included in the intent.79
In S v Ngubane80 the Appellate Division held that, for the purposes of criminal law (although it
must be accepted that the law of delict will also be influenced by this decision)81 intent and neg-
ligence may be present simultaneously. The court answered the question of whether someone
who on the evidence has intentionally killed another may be convicted of culpable homicide (for
which negligence is required) and not only of murder, in the affirmative.82 This view is accepta-
ble. Like Boberg,83 we consider the conclusion84 that “where dolus is present, so too is culpa”
________________________
short of the standard of the reasonable person. Dividing the enquiry into different stages, however useful, is no
more than an aid or guideline for resolving this issue.”
76 Supra 66.
77 The reason for this is that in the case of intent the law blames the wrongdoer because he knowingly acted
wrongfully. In the case of negligence the wrongdoer is blamed because, in general terms, his conduct deviated from
that of the reasonable person when he should have known better. In the case of intent the wrongdoer is aware of the
wrongfulness of his conduct, while in the case of negligence he should have been aware thereof. Because a person
cannot simultaneously be aware and unaware of the same fact, intention and negligence cannot, logically speaking,
overlap. See also Knobel in Potgieter, Knobel and Jansen (eds) 235–236 who proposes that the word “wrongfulness”
in the phrase, “[i]n the case of intent the wrongdoer is aware of the wrongfulness of his conduct, while in the case of
negligence he should have been aware thereof”, be replaced with “unreasonableness” because “it would be
unrealistic to equate fault with awareness that a wrongdoer had or should have had of wrongfulness in its full,
technical-legal sense”.
78 Eg S v Sigwahla 1967 4 SA 566 (A); S v Naidoo 1974 4 SA 574 (N); S v Alexander 1982 4 SA 701 (T); and see the
decision in AA Mutual Insurance Association Ltd v Manjani 1982 1 SA 790 (A) 796; Kgaleng v Minister of Safety
and Security 2001 4 SA 854 (W) 874; Boberg Delict 273.
79 Eg S v September 1972 3 SA 389 (C); S v Smith 1981 4 SA 140 (C); S v Zoko 1983 1 SA 871 (N).
80 1985 3 SA 677 (A).
81 See infra fn 267.
82 The court held that the argument that it is logically impossible for negligence and intention to be present
simultaneously in a given set of facts (because foreseeing a result is not relevant in negligence) cannot be sustained,
and referred, inter alia, to luxuria (conscious negligence) where foreseeing a result is relevant (see supra 161–162).
As to the argument that intent and negligence are conceptually different, the court held (687) as follows: “It has
been pointed out above that the concepts of dolus and culpa are totally different. Dolus connotes a volitional state
of mind; culpa connotes a failure to measure up to a standard of conduct. Seen in this light it is difficult to accept
that proof of dolus excludes culpa. The facts of the present case illustrate this. The appellant, somewhat under the
influence of liquor, without premeditation and as a result of some provocation, stabbed the deceased five times, the
fatal injury penetrating the heart. The inference drawn by the Court a quo that he foresaw the possibility of death
ensuing and that he killed intentionally (dolus eventualis) is clear. This, however, does not preclude the matter
being viewed from a different angle: did not the appellant, foreseeing the possibility of death ensuing by failing to
curb his emotions and failing to desist from attacking the deceased, fall short of the standard of the reasonable man
(or, if the subjective approach were to be applied, to measure up to the standard of his own capabilities)? The
existence of dolus does not preclude the answering of this question in the affirmative. On this approach dolus does
not exclude culpa.” It is precisely because intention and negligence are conceptually different that the court held
that they do not necessarily mutually exclude each other.
83 Delict 273–274. See also Ahmed 2014 (4) PELJ 1522 ff for a discussion of various viewpoints on this topic.
84 In S v Zoko 1983 1 SA 871 (N).
168 Law of Delict
to be logical and justifiable.85 One may argue here that the intentional causing of harm to an-
other person is contrary to the standard of care which the reasonable person would have exer-
cised and that negligence is thus simultaneously present.
4.3 Ordinary and gross negligence

Sometimes it is important to differentiate between ordinary and gross negligence. Although it
makes no difference for Aquilian liability whether the defendant acted with slight or gross negli-
gence,86 some statutory provisions87 limit liability to instances of “gross negligence”, and some
contractual exclusionary clauses also refer to this concept. In respect of malicious prosecution as
iniuria,88 it has already been held89 that liability may be based on gross negligence instead of
intent and that it is therefore material to determine whether a wrongdoer has acted with gross
negligence.90 For this purpose it is important to formulate a correct definition of gross
negligence. In MV Stella Tingas Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas91 the
court described gross negligence as follows:
[T]o qualify as gross negligence the conduct in question, although falling short of dolus eventualis,92
must involve a departure from the standard of the reasonable person to such an extent that it may
properly be categorised as extreme;93 it must demonstrate, where there is found to be conscious risk-
taking,94 a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take
care. If something less were required, the distinction between ordinary and gross negligence would lose
its validity.
This exposition may be accepted as correct.
4.4 Negligence and an omission

Negligence as a form of fault (culpability) must not be confused with an omission, which is a
form of conduct.95 An omission can indeed be performed intentionally or negligently; moreover,
a positive act can be negligent, proving that negligence is not relevant only in respect of an
omission. Furthermore, an omission (failure) to take reasonable steps to prevent foreseeable
________________________
85 See, for criticism of S v Ngubane 1985 3 SA 677 (A), Snyman Criminal Law 214–215 and Louw 1987 De Jure
173. See also Du Plessis 1986 SALJ 2–4 who offers convincing arguments against the “preposterous proposition
that murder is a defence to culpable homicide”.
86 See, eg, Neethling 2003 THRHR 694: the defendant is in principle liable for all the damage unless something like
contributory fault lightens his burden.
87 See, eg, s 222 of the Companies Act 78 of 2008.
88 See infra 419; Neethling, Potgieter and Roos Neethling on Personality Rights 261.
89 See Heyns v Venter 2004 3 SA 200 (T) 208–209; Neethling, Potgieter and Roos Neethling on Personality Rights
251 ff.
90 See Neethling 2003 THRHR 693–695; see, however, infra 419 fn 288.
91 2003 2 SA 473 (SCA) 480–481; see also Gora v Kings College 2019 4 SA 162 (ECG) 172í173.
92 See supra 133.
93 Examples referred to by the court are: “no consideration whatever to the consequences of his acts” (Central South
African Railways v Adlington & Co 1906 TS 964 973); “a total disregard of duty” (Rosenthal v Marks 1944
TPD 172 180); “negligence of a very serious nature” or “a particularly high degree of negligence” (translation) (S v
Smith 1973 3 SA 217 (T) 219); “ordinary negligence of an aggravated form which falls short of wilfulness” (Bickle
v Joint Ministers of Law and Order 1980 2 SA 764 (R) 770); “an entire failure to give consideration to the
consequences of one’s actions” (S v Dhlamini 1988 2 SA 302 (A) 308). It is probably also acceptable to rely on
criminal law judgments on negligence for the purposes of the law of delict.
94 The court emphasised that a conscious risk-taking is not an indication of the difference between ordinary and gross
negligence, because such conduct may also qualify as ordinary negligence (see further S v Van Zyl 1969 1 SA 553
(A) 557; Philotex (Pty) Ltd v Snyman; Braitex (Pty) Ltd v Snyman 1998 2 SA 138 (SCA) 143). On luxuria, see also
supra 161; Snyman Criminal Law 215.
95 Supra 32–33; Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA).
harm (as part of the test for negligence)96 should not be confused with an omission as a species
of conduct.97
4.5 The reasonable person: characteristics

4.5.1 General
From the above it is clear that the criterion of the reasonable person is central to the determina-
tion of negligence. The reasonable person is merely a fictitious person, a concept created by the
law to have a workable objective norm for conduct in society. Accordingly, the reasonable
person is not an exceptionally gifted, careful or developed person; neither is he underdeveloped,
nor someone who recklessly takes chances or who has no prudence. The qualities of the reason-
able person are found between these two extremes.98 It must be emphasised that the reasonable
person serves as the legal personification of those qualities which the community expects from
its members in their daily contact with one another. In Weber v Santam Versekeringsmaatskappy
Bpk99 Joubert JA explained this in the following words:
In my opinion it serves no purpose to ascribe various anthropomorphic characteristics to the diligens
paterfamilias, because we are not dealing with a physical person, but only with the name of an abstract,
objective criterion. We are furthermore not concerned with what the care of a legion of reasonable per-
son types would have been, such as a reasonable educated person, a reasonable illiterate person, a rea-
sonable skilled labourer, a reasonable unskilled labourer, a reasonable adult or a reasonable child.
________________________
96 Supra 165; infra 180 ff.

97 Supra 32–33; Van der Walt and Midgley Delict 92. As aptly explained by Knobel in Potgieter, Knobel and Jansen
(eds) 234–235: “If negligence is a form of fault, in an elementology that also includes conduct as a distinct element, as
in South African law, negligence cannot be conduct. Of course, the court needs to examine the conduct of the
wrongdoer to deduce that negligence is present, because this is the way in which it is made apparent to the world, and
for this reason the Kruger v Coetzee [1966 2 SA 428 (A) 430] test is appropriate and effective as a practical formula to
determine the presence of negligence. However, this does not mean that negligence is itself a form of conduct. In this
regard it is important to note that the Kruger v Coetzee test states that negligence arises if the reasonable person would
have foreseen the harm and taken steps to guard against it and the defendant failed to take such steps; it does not state
that the defendant’s conduct itself constitutes his or her negligence. Or, stated in different words, the defendant’s
conduct is negligent, not negligence, if it deviates from that of the reasonable person.”
98 See Herschel v Mrupe 1954 3 SA 464 (A) 490: “The concept of the bonus paterfamilias is not that of a timorous
faintheart always in trepidation lest he or others suffer some injury; on the contrary he ventures out into the world,
engages in affairs, and takes reasonable chances. He takes reasonable precautions to protect his person and property
and expects others to do likewise”; see also Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA)
416; Stedall v Aspeling 2018 2 SA 75 (SCA) para 35. See generally, eg, Transvaal and Rhodesian Estates Ltd v
Golding 1917 AD 18; Farmer v Robinson Gold Mining Co Ltd 1917 AD 501; Union Government v National Bank
of South Africa Ltd 1921 AD 121; Cape Town Municipality v Paine 1923 AD 207; Transvaal Provincial
Administrator v Coley 1925 AD 24; Wasserman v Union Government 1934 AD 228; Moubray v Syfret 1935 AD
199; Joffe & Co Ltd v Hoskins 1941 AD 431; Santam Insurance Co Ltd v Leal 1968 4 SA 645 (A); Gordon v Da
Mata 1969 3 SA 285 (A); Levy v Rondalia Assurance Corp of SA Ltd 1971 2 SA 598 (A); S v Burger 1975 4 SA
877 (A) 879; S v Van As 1976 2 SA 921 (A); AA Mutual Insurance Association Ltd v Manjani 1982 1 SA 790 (A);
Coetzer v AA Onderlinge Assuransie Assosiasie 1983 3 SA 774 (A); Siman & Co (Pty) Ltd v Barclays National
Bank Ltd 1984 2 SA 888 (A); Santam Insurance Co Ltd v Gouws 1985 2 SA 629 (A); National Employers’ General
lnsurance Co Ltd v Sullivan 1988 1 SA 27 (A); Ngubane v South African Transport Services 1991 1 SA 756 (A);
Steenberg v De Kaap Timber (Pty) Ltd 1992 2 SA 169 (A); SA Eagle Versekeringsmaatskappy Bpk v Harford 1992
2 SA 786 (A); Simon’s Town Municipality v Dews 1993 1 SA 191 (A); Standard Chartered Bank of Canada v
Nedperm Bank Ltd 1994 4 SA 747 (A) 762–763; Mkhwanazi v Van der Walt 1995 4 SA 589 (A); Johannesburg
City Council v Television & Electrical Distributors (Pty) Ltd 1997 1 SA 157 (A); Pretoria City Council v De Jager
1997 2 SA 46 (A); Welkom Municipality v Masureik and Herman t/a Lotus Corporation 1997 3 SA 363 (SCA);
Durr v ABSA Bank Ltd 1997 3 SA 448 (SCA). See generally on the reasonable person Van der Walt and Midgley
Delict 239 ff; Van der Merwe and Olivier 139; Loubser and Midgley Delict 154; Fagan Aquilian Liability 19–21;
cf Sonnekus in Potgieter, Knobel and Jansen (eds) 459 ff (also 2015 TSAR 804 ff).
99 1983 1 SA 381 (A) 410–411 (translation).
170 Law of Delict
There is only one abstract, objective criterion, and that is the Court’s judgment of what is reasonable,
because the Court places itself in the position of the diligens paterfamilias.100
It is both fair and realistic to accept that the characteristics of the fictional reasonable person in
South Africa must be adapted with changing circumstances. In view of the shocking prolifer-
ation of crimes endangering the lives, human dignity and property of innocent persons, it is, for
example, unrealistic and wrong to believe that the reasonable person cannot sometimes be ner-
vous and afraid and act accordingly.101 By contrast, circumstances such as improved technology
and improved access to education, training and information may require the reasonable person
test to be more stringent in evaluating the degree of care expected of human conduct in particu-
lar instances. It is therefore important not to regard the reasonable person test as static.
At this stage, it is necessary to examine more closely certain characteristics of the reasonable
person, which are important to the practical application of this standard of care in a given
situation.102
The reasonable person has a certain minimum knowledge and mental capacity which enable him
to appreciate the dangerous potential of certain actions. For example, the reasonable person
knows that there are inherent dangers involved in the use of arms, explosives, poison, motor
vehicles, electricity, sports equipment,103 etc. In general, the law makes no provision for the fact
that an individual wrongdoer may be stupid, illiterate, inattentive, intellectually retarded or
mentally unstable – everyone is required to conform to the objective standard of the reasonable
person. Be that as it may, “[t]here is a general consensus . . . that the knowledge possessed by
the actor is a relevant consideration in the make-up of his counterpart, the hypothetical reason-
able [person]”. This does not mean that all the subjective beliefs of the actor should be taken into
account but only those “that can properly be attributed to a reasonable [person] as ‘a concession
to the underlying moral basis of negligence’”.104
Furthermore, there is no authority105 for the view that the physical characteristics of the wrong-
doer play a part in the reasonable person test. This means, for example, that members of both
sexes must act like the reasonable person. Our law should, however, as in Anglo-American law,
not completely ignore physical handicaps in determining the possible negligence of, for exam-
ple, a blind person or a cripple. In other words, the question should be how a reasonable person
with a particular handicap (for example blindness) would have acted.106 A person suffering from
a physical disability may thus still be negligent where he engages in an activity which the
reasonable person in his position would not have regarded as safe (for example, a blind person
or a person with poor vision driving a motor car).
________________________
100 See nevertheless S v Van As 1976 2 SA 921 (A) 928 where a more subjective approach seems to have been pro-
posed since according to the court the fact that a person belongs to a particular group or type of persons in similar
circumstances and with the same intellectual capacity, should also be taken into account. See Sonnekus in Potgieter,
Knobel and Jansen (eds) 459 (cf also 2015 TSAR 804 ff) who maintains that the test “should not be relegated to a
gut feeling by the judge of what in his perception should be the conduct of the reasonable person, unless the
judgment is founded on an empirical determination of what the majority of the reasonable persons in that particular
control group’s conduct would really have done”.
101 See, eg, Neethling and Potgieter 2004 TSAR 607.
102 It must be emphasised that, in testing for negligence, an objective standard is used (see supra fn 65 and the
authority cited there). The extent to which subjective factors that are unique to the actor in question are taken into
account will be indicated. It is impossible to test for negligence merely by comparing the actor with himself
because adequate protection of private interests requires that all people – but especially those who engage in
potentially dangerous activities such as driving a motor car – must conform to a certain minimum standard of skill,
knowledge and care.
103 See, eg, Clark v Welsh 1975 4 SA 469 (W); Labuschagne 2001 THRHR 62–63.
104 Harrington v Transnet Ltd t/a Metrorail 2010 2 SA 479 (SCA) 489, citing Boberg Delict 272.
105 See especially Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A) 410–411.
106 Van der Walt and Midgley Delict 241 state: “Thus, in particular circumstances, the physical defect of the actor is
attributed to the reasonable person.”
4.5.2 Children
A matter which has received considerable attention in our law is the question of whether the fact
that the wrongdoer is a child should play a role in the application of the reasonable person
test.107 As stated above, this question only arises in the case of children who are older than
7 years, because the law deems a child under the age of 7 to be culpae incapax.
Before 1965, there was a tendency in our courts to take into account the youthfulness of a
wrongdoer in determining his negligence; ie, to test for negligence by means of the conduct
expected from a reasonable child of the wrongdoer’s age and intellectual development.108
In 1965, the Appellate Division passed judgment on this matter in Jones NO v Santam Bpk.109
Although the court did not acknowledge it in so many words, it adopted a new approach to the
determination of negligence in respect of children. The court implied that the criterion for the
determination of negligence is always objective in the sense that in all situations the test of the
reasonable person (diligens paterfamilias) is applied. According to this approach, in determining
whether a child acted with culpa, it must first be ascertained whether the child concerned met
the standard of care required of the reasonable person. Secondly, it must be asked whether the
child, if the care shown by him did not meet the requirements of the first test, was culpae capax
(accountable for his actions).110
In order to determine whether a child acted negligently, the question is whether the conduct of
the child measures up to the standard of care of the reasonable person. The fact that the conduct
in question is that of a child is irrelevant at this stage of the enquiry.111 Once it has been estab-
lished that the conduct is negligent, it must be ascertained whether the negligent conduct may be
imputed to the wrongdoer, ie, whether he is juridically responsible for his acts. Here one is
dealing with accountability, and the inquiry is whether the child-wrongdoer had the required
intellect, maturity, experience, insight, et cetera, to distinguish between right and wrong and to
act in accordance with such insight. Here all the subjective qualities of the child itself are taken
into account.112
________________________
107 See Van der Merwe and Olivier 135–140; Van der Walt and Midgley Delict 272–274; Loubser and Midgley Delict
172–174.
108 Lentzner v Friedmann 1919 OPD 20; Bellstedt v SAR & H 1936 CPD 397; Adams v Sunshine Bakeries 1939 CPD
72.
109 1965 2 SA 542 (A) 551.
110 Williamson JA explained it as follows (552): “It seems to me that once it is established that a child over the age of
seven but under the age of 14 has conducted itself in such a manner that its conduct would ordinarily amount to
culpa or negligence, then there arises the necessity of determining whether that child is culpae capax. This question
involves an enquiry in relation to the capacity for culpa of the particular child.”
111 Note, eg, how the court assessed only the degree of care shown by the nine-year-old Maria without taking into
account the fact that she was a child: “For a pedestrian to move suddenly in that manner in front of oncoming
traffic would clearly not be the conduct of the diligens bonus paterfamilias and would thus, on the application of
[the] objective test, amount to negligence” (551).
112 This appears clearly where Williamson JA inquired whether Maria was culpae capax: “In the instant case the child
Maria attained the age of nine years on the very day of the accident. The evidence showed her to be a normal, intel-
ligent child. She had grown up and lived in Springs, a town where she was accustomed to busy motor traffic, and
she was also accustomed, in going to and from school, to walking over busy streets. She had been told at school of
the danger of crossing streets or roads when traffic was approaching and had been instructed as to the precaution of
looking first before crossing. Her father said in evidence that his children had been trained since they were very
small to help themselves and that at the time in question Maria had reached the stage where she was self-reliant. On
the evidence before him, and after he had himself seen the child in the box, Corbett, J., found her to be culpae
capax in relation to her conduct that afternoon two years earlier. That finding seems to me in the circumstances to
be fully justified” (554).
172 Law of Delict
This (new) approach has had a critical reception.113 The following two aspects are noteworthy:
firstly, it would seem that the earlier test of the reasonable child is more acceptable than that of
the reasonable person, because a child, even though he may be fully accountable, cannot realisti-
cally be measured against an adult standard.114 Secondly, it is clear that the court in Jones placed
the cart before the horse by first inquiring into fault and then into accountability. Logically one
must first determine whether a person is accountable before there can be any question of fault. In
Roxa v Mtshayi115 the Appellate Division correctly accepted this criticism by testing first for
accountability and then for negligence. Jansen JA also questioned whether the Jones case really
departed from the older decisions and expressed the hope that the whole matter would be recon-
sidered in future.
In Weber v Santam Versekeringsmaatskappy Bpk116 the Appellate Division had another oppor-
tunity to consider the Jones case. The court held that the Jones case did not materially depart
from common law and confirmed the approach in this case. Jansen JA substantiated his judg-
ment as follows:117
When the child’s conduct is judged according to the criterion of an adult, the enquiry must be whether he
118
was mature enough to comply with that criterion in respect of the specific situation. If this approach is
applied with insight, many of the objections of our contemporary writers to the principles of the Jones
case should fall away, and it should also not be necessary to plead for the use of a reasonable child of
relevant age, as in the Anglo-American legal systems, instead of the criterion of the bonus paterfamilias
to reach a fair result.119
________________________
113 See in general Boberg Delict 355 ff; Van der Merwe and Olivier 137 ff; Snyman Criminal Law 213 for the position
in criminal law. Cf Eskom Holdings Ltd v Hendricks 2005 5 SA 503 (SCA) 511–512. See further S v T 1986 2 SA
112 (O) where the court used a “reasonable child” approach.
114 In addition it will make a difference in practice whether the traditional approach (reasonable child test) or the new
approach (reasonable person test) is adopted in cases where a child as a plaintiff encounters a defence of contribu-
tory negligence or where as defendant he raises the defence of contributory negligence (see infra 199 ff). Let us
take the case where the child is the plaintiff and there is a plea that the child is guilty of contributory negligence. If
the defence succeeds, damages must be apportioned in terms of the Apportionment of Damages Act 34 of 1956.
The extent to which the child is compensated therefore depends greatly on the degree of culpa on his part.
According to the traditional approach it is accepted that conduct which constitutes negligence on the part of an
adult will not necessarily entail negligence in the case of a child, or that conduct which constitutes a greater degree
of negligence on the part of an adult will constitute a lesser degree of negligence in the case of a child. This
conesquence arises from the fact that, according to the traditional approach, the presence or absence of or the
degree of negligence is not determined by the same criterion in the case of adults and children. In the case of an
adult the criterion was the reasonable person, in the case of a child the reasonable child. Conduct which, tested
according to the standard of the reasonable child, is careful, may be careless if tested by the standard of the
reasonable person. According to the traditional approach a court may find that the plaintiff-child was 50%
negligent; however, if the conduct in question had been that of an adult, there might have been 70% negligence.
According to the new approach the negligence percentage will remain constant, irrespective of whether the person
concerned is a child or an adult. The traditional approach favoured the child in the event of an apportionment of
damages; his negligence percentage was calculated with the fact of his youthfulness in mind – a factor which tends
to bring the percentage down. According to the new approach the fact of childhood is not taken into account in the
assessment of the negligence percentage. Thus the percentage will not tend to drop merely because the plaintiff is a
child. It therefore seems fair that the plaintiff’s childhood should here, apart from being considered in assessing his
delictual capacity, also be taken into account as a factor in determining his contributory negligence (see Jansen and
Neethling 2017 THRHR 482).
115 1975 3 SA 761 (A) 765–766.
116 1983 1 SA 381 (A). See Van der Walt and Midgley Delict 273.
118 Emphasis added. In other words, it must be asked whether the child in the particular situation, and not merely in
general, was capable of distinguishing between right and wrong and acting in accordance with such knowledge; ie,
whether he was accountable. Jansen JA aptly warned that in the determination of accountability one must be careful
not to place “an old head on young shoulders”. See Ndlovu v AA Mutual Insurance Association Ltd 1991 3 SA 655
(E): the court held that the plaintiff of seven years did not have legal capacity in relation to his act of proceeding
into the road (cf Gaiger 1992 THRHR 330–332).
119 Boberg Delict 681 summarises the contribution of Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A)
as follows: “(a) [A] child’s capacity for fault must be determined with due regard to youthful inability to control
[continued ]
In Eskom Holdings Ltd v Hendricks120 the Supreme Court of Appeal again had to deal with this
matter in evaluating the alleged contributory negligence of a child of eleven years of age. The
court took cognisance of criticism of the reasonable person test for children, but referred to
the approach in the above-mentioned cases and reiterated that in “each case what had to be
determined was whether the child in question had developed the emotional and intellectual
maturity to appreciate the particular danger to be avoided and, if so, to act accordingly”.121
4.5.3 Experts
It must now be considered whether the fact that the wrongdoer possesses proficiency or exper-
tise in respect of the allegedly negligent conduct, affects the application of the reasonable person
test. It is self-evident that the general test for negligence, ie, the test of the hypothetical reasonable
person in the position of the wrongdoer, cannot be applied when considering the conduct of the
defendant where such conduct calls for expertise.122
Thus, in the case of an expert such as a dentist, surgeon, attorney, electrician, et cetera, the test
for negligence in respect of the exercise of the expert activity is the test of the so-called reason-
able expert; in other words, the reasonable dentist,123 reasonable medical doctor,124 reasonable
________________________
irrational or impulsive acts; knowledge and experience must not be equated with maturity and judgment; just
because the child is required to measure up to the objective standard of a reasonable adult, the court must be
satisfied that he is sufficiently mature to do so before holding him culpae capax; (b) when both parties have been
found negligent and the child culpae capax, the fact that he is a child is relevant in the apportionment process in all
cases where the defendant knew or ought to have known that he was dealing with a child, because the defendant’s
failure to take the extra care required in those cases makes his degree of fault greater than the child’s.” Weber was
followed in Seti v Multilateral Motor Vehicle Accidents Fund 1999 1 SA 1035 (SCA). Cf, however, Van der
Merwe and Olivier 138 who submit that in the Weber case accountability is established by means of the test of
negligence.
120 2005 5 SA 503 (SCA) 511–512; see Scott 2006 De Jure 213 ff.
121 The child climbed a power pylon to a height of 14 m, and was injured by an electrical shock when he wanted to
touch an insulator. According to the court the child would in casu have acted negligently if he had sustained
injuries by merely falling from the pylon, since this kind of risk was learnt by children from an early age. However,
the child was not injured in this manner, but rather as a result of his fascination with the insulators. Although his
conduct was “foolhardy in the extreme”, he did not have sufficient knowledge of electricity on pylons and high-
voltage cables to resist the urge to continue with his exploration. His dangerous conduct was in fact an indication
that he did not have the ability to act in accordance with any insight into the danger that he might have had.
Therefore no grounds were present to found contributory negligence on his part.
122 See Van der Merwe and Olivier 140; Boberg Delict 346; Van der Walt and Midgley Delict 269–271 (and ibid on
“beginners”: “Where a beginner’s lack of skill generally exposes the public to an appreciable risk of serious harm,
no allowance should be made for that lack of proficiency and experience”); Fagan Aquilian Liability 13 43–46; S v
Ngema 1992 2 SACR 651 (D) 657.
123 McDonald v Wroe [2006] 3 All SA 656 (C).
124 On negligence in the medical profession, see Van Wyk v Lewis 1924 AD 438 444; Oppelt v Department of Health,
Western Cape 2016 1 SA 325 (CC) para 71 ff; Meyers v MEC, Department of Health, EC 2020 3 SA 337 (SCA)
350–351 354–355; Beukes v Smith 2020 4 SA 51 (SCA); Goliath v MEC for Health, Eastern Cape 2015 2 SA 97
(SCA); Joubert v Meyer [2017] 3 All SA 878 (GP); AN v MEC for Health, Eastern Cape [2019] 4 All SA 1 (SCA);
Blyth v Van den Heever 1980 1 SA 191 (A) 221; Buthelezi v Ndaba 2013 5 SA 437 (SCA); Stewart v Botha 2008 6
SA 310 (SCA); Mukheiber v Raath 1999 3 SA 1065 (SCA); Louwrens v Oldwage [2006] 1 All SA 197 (SCA) 207;
Premier, Kwa-Zulu-Natal v Sonny 2011 3 SA 424 (SCA); Medi-Clinic Ltd v Vermeulen 2015 1 SA 241 (SCA);
Lymbery v Jeffries 1925 AD 236; Esterhuizen v Administrator, Transvaal 1957 3 SA 710 (T); Daniels v Minister of
Defence 2016 6 SA 561 (WCC) paras 113–118; Ntsele v MEC for Health, Gauteng Provincial Government [2013]
2 All SA 356 (GSJ) (see Venter 2014 THRHR 268 ff; Wessels 2019 TSAR 4 ff); St Augustine’s Hospital (Pty) Ltd v
Le Breton 1975 2 SA 530 (D); S v Kramer 1987 1 SA 887 (W); Pringle v Administrator Transvaal 1990 2 SA 379
(W); Castell v De Greef 1993 3 SA 501 (C); Van der Walt v De Beer 2005 5 SA 151 (C); cf Deysel v Truter 2005 5
SA 598 (C); and in general Strauss Doctor, Patient and the Law 281–334; Loubser and Midgley Delict 327–331;
Townsend and Thaldar 2020 SALJ 16–17; Maimela 2013 THRHR 589 ff. See Pienaar 2016 (19) PELJ 1 ff for a
discussion of the reasons for the recent significant increase in medical negligence claims; Wessels 2019 TSAR 1 ff
who also discusses the expansion of the state’s liability for harm arising from medical malpractice, its deleterious
consequences and potential reform; Jansen in Potgieter, Knobel and Jansen (eds) 211 ff on the professional liability
of ophthalmologists for retinopathy of prematurity (ROP).
174 Law of Delict
attorney,125 reasonable banker,126 reasonable police officer,127 reasonable prosecutor,128 reasonable

teacher,129 reasonable auditor or accountant,130 reasonable financial services provider;131 reasonable
________________________
125 In respect of the legal profession, the following cases may be consulted: Fourie v Ronald Bobroff & Partners
Incorporated [2015] 2 All SA 210 (GJ); Seevnarayan v Garlicke and Bousfield Inc [2015] 2 All SA 503 (KZD);
Van As v Kotze [2019] 3 SA 284 (NCK); Broderick Properties (Pty) Ltd v Rood 1964 2 SA 310 (T); Mouton v Die
Mynwerkersunie 1977 1 SA 119 (A); Bezuidenhout v AA Mutual Insurance Association 1978 1 SA 703 (A);
Margalit v Standard Bank of South Africa Ltd 2013 2 SA 466 (SCA) 473 (“reasonable conveyancer”); Roestoff v
Cliffe Dekker Hofmeyr Inc 2013 1 SA 12 (GNP); Mlenzana v Goodrick & Franklin Inc 2012 2 SA 433 (FB);
Rampal (Pty) Ltd v Brett, Wills and Partners 1981 4 SA 360 (D); Mosala v Santam Insurance Co Ltd 1986 1 SA
808 (O); Guardian National Insurance Co Ltd v Weyers 1988 1 SA 255 (A); President Insurance Co Ltd v Retsos
1988 1 SA 276 (A); Moatshe v Commercial Union Assurance Co of SA Ltd 1991 4 SA 372 (W); Vosloo v
Sentraboer Koöperatief Bpk 1993 1 SA 722 (C) 733; Du Preez v Swiegers 2008 4 SA 627 (SCA) 633; see generally
Loubser and Midgley Delict 331–333; Midgley Professional Liability passim.
126 On the negligence of a banker (the bonus argentarius test) see Standard Chartered Bank of Canada v Nedperm
Bank Ltd 1994 4 SA 747 (A) 762; Fedgen Insurance Ltd v Bankorp Ltd 1994 2 SA 399 (W) 411; Kwamashu
Bakery Ltd v Standard Bank of South Africa Ltd 1995 1 SA 377 (D) 395 (“the reasonable, prudent collecting
banker”); Columbus Joint Venture v ABSA Bank Ltd 2000 2 SA 491 (W) 510; African Life Assurance Co Ltd v NBS
Bank Ltd 2001 1 SA 432 (W) 447 (“reasonable banker”); Great Karoo Eco Investments (Edms) Bpk h/a
Grobbelaarskraal Boerdery v ABSA Bank Ltd 2003 1 SA 222 (W) 234 (“redelike bankier”); Energy Measurements
(Pty) Ltd v First National Bank of SA Ltd 2001 3 SA 132 (W) 161; ABSA Bank Ltd v Mutual & Federal Insurance
Co Ltd 2003 1 SA 635 (W) (negligence admitted); Loubser and Midgley Delict 340–343; see further infra 353 fn 179.
127 On the negligence of police officers, see, eg, Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA)
325–327 (“reasonable police captain” and “reasonable control prosecutor”); Minister of Safety and Security v
Hamilton 2004 2 SA 216 (SCA) 238 (“reasonable police officials”); Minister van Veiligheid en Sekuriteit v Gelden-
huys 2004 1 SA 515 (SCA) 531 (“redelike polisiebeampte”); Minister of Safety and Security v Van Duivenboden
2002 6 SA 431 (SCA) 448 (“reasonable police officer”); Botha v Minister van Veiligheid en Sekuriteit 2003 6 SA
568 (T) 585 (“redelike lid van die polisie”); Minister of Safety and Security v Mohofe 2007 4 SA 215 (SCA) 218 ff;
K v Minister of Safety and Security [2019] 1 All SA 415 (ECP) paras 51 62 ff; cf Mashongwa v Passenger Rail
Agency of South Africa 2016 3 SA 528 (CC) paras 40–41; Minister of Police v K (case no 403/2019) [2020]
ZASCA 50 (6 May 2020) paras 20–21; Moses v Minister of Safety and Security 2000 3 SA 106 (C) 116–117. In
Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) 838–839 (Neethling 2002 SALJ 287) the court
emphasised that the standard of the reasonable policeman must be applied, rather than that of the reasonable
person: “I wish to express strong disagreement with the view expressed by Van Winsen AJ in the Ntanjana [v
Vorster and Minister of Justice 1950 4 SA 398 (C)] case supra at 410E. That view is to the following effect: ‘The
law requires of the police no higher and no less a standard of duty than is required of any member of the public
placed in a similar situation, viz that standard to which the ordinary and reasonable man in the street is required to
conform’.” Cf Naidoo v Minister of Police [2015] 4 All SA 609 (SCA) paras 24í25 (“notional reasonable person”).
128 Minister of Justice and Constitutional Development v X 2015 1 SA 25 (SCA) (see Neethling and Potgieter 2015
TSAR 856 ff).
129 As regards teachers, there is still a difference of opinion on whether the reasonable teacher test or that of the
reasonable parent should apply. We prefer the former (cf Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA)
where Brand JA (93–94) applied the reasonable teacher test but Griesel AJA (95–96), in a minority judgment,
preferred the reasonable parent test (cf Potgieter 2013 (2) LitNet Akademies 13 ff; Neethling and Potgieter 2011 De
Jure 161 ff; Davel 2003 (3) De Jure 403 412 414; Scott 2019 (3) LitNet Akademies 779 789–790 for his remarks in
discussing Gora v Kings College 2019 4 SA 162 (ECG)); cf also Maithufi 2012 THRHR 139 ff). See on the
delictual liability of the educator-coach in schools, Rossouw and Engelbrecht 2011 (6) PELJ 2 ff.
130 Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) (auditor); Axiam Holdings vir
Deloitte & Touche 2006 1 SA 237 (SCA) (auditor) (see Neethling 2007 De Jure 174 ff); Tonkwane Sawmill Co Ltd
v Filmalter 1975 2 SA 453 (W) (accountant); see also s 46(2) and 46(3) of the Auditing Profession Act 26 of 2005,
discussed infra 366–367; Loubser and Midgley Delict 336–340. Cf Stevens 2017 (20) PELJ on the delictual
liability of a company director in terms of s 77(2)(b) of the Companies Act 71 of 2008, with the author arguing that
the liability could also be contractual.
131 Oosthuizen v Castro (Centriq Insurance Company Ltd as Third Party) [2017] 4 All SA 876 (FB) (cf Centriq
Insurance Company Ltd v Oosthuizen 2019 3 SA 387 (SCA)) was about the loss sustained by the plaintiff, a
widow, who invested R2 million of the proceeds of her husband’s life insurance policy in the notorious Sharemax
scheme on the advice of the respondent, a financial services provider (FSP). Daffue J (para 59) was satisfied that
the defendant did not act as could have been expected of a reasonable FSP and concluded (para 60): “Much more
may be said of the defendant’s actions and/or inactions, but I conclude by finding that defendant was negligent, and
even dishonest, when he advised plaintiff, by placing no credence on the negative articles in the press [pertaining to
Sharemax] and failing to objectively investigate the criticism. He failed to exercise the degree of skill, care and
[continued ]
engineer and architect,132 et cetera.133 The negligence of an expert is sometimes referred to as

professional negligence.134
The reasonable expert is identical to the reasonable person in all respects, except that a reason-
able measure of the relevant expertise is added. The standard of expertise is described as “rea-
sonable” because regard is had not to the highest degree of expertise in the relevant profession or
occupation but to the general or average level of such expertise. In Van Wyk v Lewis,135 for
example, reference is made to “the general level of skill and diligence possessed and exercised at
the time by the members of the branch of the profession to which the practitioner belongs”.136 In
this case it was held that, as far as the medical profession was concerned, the same expertise
cannot be expected from a general practitioner as from a specialist.137 In Durr v ABSA Bank
Ltd 138 (a case dealing with an investment broker) the Supreme Court of Appeal approved of the
approach in Van Wyk v Lewis and emphasised that it is for the court to decide what is reasonable
under the circumstances. It will pay much attention to the views of the profession but is not
bound to adopt them. In respect of the facts before it, the court held that the appropriate standard
was not that of the average typical broker of modest accomplishments since the acceptance of
such a standard would allow a definition chosen by a witness (for the defendant) for his own
________________________
diligence which one is entitled to expect from a FSP.” Daffue J relied mainly on the locus classicus, Durr v Absa
Bank Ltd 1997 3 SA 448 (SCA), discussed infra 175; see also Page v First National Bank Ltd 2009 4 SA 484 (E)
488–489; Koziol 2011 THRHR 1 ff). See, however, Symons NO v Rob Roy Investments CC t/a Assetsure 2019 4 SA
112 (KZP) where a company (also Sharemax) recommended by a FSP collapsed after the plaintiffs’ investment.
The collapse was triggered by an intervention of the Reserve Bank that was not foreseeable by the FSP. This was
not the case in Oosthuizen. Accordingly the court distinguished Oosthuizen mainly on this basis and dismissed the
claim (see paras 57í69). See further Atwealth (Pty) Ltd v Kernick 2019 4 SA 420 (SCA) (negligence on part of
(reasonable) FSP not proved).
132 Dodd v Estate Cloete 1971 1 SA 376 (E) (architect); Randaree v Dixon 1983 2 SA 1 (A) (civil engineer); Lillicrap,
Wassenaar and Partners v Pilkington Bros SA (Pty) Ltd 1985 1 SA 475 (A) (engineer); Tsimatakopoulos v
Hemmingway, Isaacs & Coetzee CC 1993 4 SA 428 (C) (engineers); SM Goldstein & Co (Pty) Ltd v Cathkin Park
Hotel (Pty) Ltd 2000 4 SA 1019 (SCA) (builder); Pienaar v Brown 2010 6 SA 365 (SCA) (building contractor);
133 See, eg, S v Meyer 1972 2 PH H(S) 62 (R) (electrician); Boshoff v Prinsloo 1973 1 PH J16 (T) (pilot); Aviation
Insurance Co Ltd v Bates and Lloyd Aviation (Pty) Ltd 1982 4 SA 838 (T) (pilot); Mali v Shield Insurance Co Ltd
1984 2 SA 798 (SE) (bus driver); Ex parte Lebowa Development Corporation Ltd 1989 3 SA 71 (T) (director and
manager of a company); Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA), Loureiro v iMvula
Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) paras 64–65 (security guard). See further Greenfield et al 2015
(6) PELJ 2189 (on the reasonable expert test in sport); Neethling 1996 THRHR 205–207.
134 See Loubser and Midgley Delict 325 ff; Midgley Professional Liability passim.
135 1924 AD 438 444; see further Atwealth (Pty) Ltd v Kernick 2019 4 SA 420 (SCA) 434; Loureiro v iMvula Quality
Protection (Pty) Ltd 2014 3 SA 394 (CC) para 64 ; Louwrens v Oldwage [2006] 1 All SA 197 (SCA) 208; Goliath
v MEC for Health, Eastern Cape 2015 2 SA 97 (SCA) 103; Joubert v Meyer [2017] 3 All SA 878 (GP) para 125; cf
Pringle v Administrator Transvaal 1990 2 SA 379 (W).
136 See also Daniels v Minister of Defence 2016 6 SA 561 (WCC) para 113 where Allie J confirmed this principle:
“The standard of care the courts expect from a doctor is not the highest standard but rather a reasonable standard. In
Mitchell v Dixon [1914 AD 519 525] it was held to be as follows: ‘A medical practitioner is not expected to bring
to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ
reasonable skill and care; and he is liable for the consequences if he does not.’”
137 See also Buls v Tsatsarolakis 1976 2 SA 891 (T); Blyth v Van den Heever 1980 1 SA 191 (A). Van der Merwe and
Olivier 140–145 argue that in determining the negligence of an expert, one is actually concerned with increased
accountability. However, this statement is incorrect because in the case of the negligence of an expert one is not in
principle concerned with his capacity to distinguish between right and wrong and to act in accordance with such
knowledge, but with the manner and care with which an activity was performed by an accountable expert. Expertise
is relevant in respect of the consideration of a person’s conduct and has nothing to do with accountability which is a
prerequisite for fault.
138 1997 3 SA 448 (SCA); see further Atwealth (Pty) Ltd v Kernick 2019 4 SA 420 (SCA) 433í434; Page v First
National Bank Ltd 2009 4 SA 484 (E) 488–489.
176 Law of Delict
purposes to dictate the result, making the enquiry about what was required of a particular kind of
broker pointless. In casu the appropriate standard was that of the regional manager of the bro-
king division of a financial institution professing investment skills and offering expert invest-
ment advice.
Mention should also be made of the maxim imperitia culpae adnumeratur.139 Taken literally,
this maxim means that ignorance or lack of skill is deemed to be negligence.140 This maxim is,
however, misleading because our law does not accept that mere ignorance constitutes negli-
gence. The principle embodied in this maxim applies where a person undertakes an activity for
which expert knowledge is required while he knows or should reasonably know that he lacks the
requisite expert knowledge and should therefore not undertake the activity in question.141 An
example of this is where X, who has no expertise in piloting an aircraft, flies an aircraft and
causes an accident. X’s blameworthiness in this example is not to be found in his incompetence
in piloting an aircraft, but in the fact that, while he knows or should reasonably know that he is
incompetent, he nevertheless attempts to perform the expert activity.142
4.6 Negligence: foreseeability and preventability of damage

The test for negligence (as discussed earlier) rests on two legs, ie, the reasonable foreseeability
and reasonable preventability of damage.143 It is important to examine the nature and applica-
tion of both concepts.
(a) Foreseeability144 Two diverging views exist about the nature of the foreseeability test.
Abstract (or absolute) approach145 According to this approach the question of whether someone
acted negligently must be answered by determining whether harm to others was in general
________________________
139 See Atwealth (Pty) Ltd v Kernick 2019 4 SA 420 (SCA) 431; see also Carstens 2017 Obiter 613 ff as to whether
imperitia culpae adnumeratur can be extended to include the application of luxuria in the context of medical
negligence.
140 See Boberg Delict 346–347; Van der Walt and Midgley Delict 242; Scott LC Steyn-Gedenkbundel 124–145 for a
detailed discussion. See also Dews v Simon’s Town Municipality 1991 4 SA 479 (C) 485–486; Simon’s Town
Municipality v Dews 1993 1 SA 191 (A); Durr v ABSA Bank Ltd 1997 3 SA 448 (SCA) 460; Minister of Safety and
Security v Rudman 2005 2 SA 16 (SCA) 41–42.
141 See, eg, Savage and Lovemore Mining (Pty) Ltd v International Shipping Co (Pty) Ltd 1987 2 SA 149 (W) 210
where the court held that someone who performs activities which are regulated by legislative provisions, must
ensure that he acquires knowledge of such provisions. However, he does not have to study these provisions in detail
or even consult a lawyer. He merely has to act like a bonus paterfamilias and a reasonable error on his part will be
excusable. See further Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA) 41–42. This case dealt with
the police interfering with the administering of first aid (artificial respiration) to a child who had fallen into a swim-
ming pool. The minority of the court (per Van Heerden JA) held that the maxim was not applicable. The majority
nevertheless held that the police official was negligent in ordering the discontinuation of the first aid on the child,
because a reasonable person would have appreciated the extent of his ignorance and would have refrained from the
relevant conduct (42–43). Cf Loubser and Midgley Delict 325–327.
142 There may of course be instances where it would not be negligent for a lay person to undertake an activity for
which special skill is required. In the case of an aircraft the following scenario is possible: the trained pilot of the
aircraft suffers a heart attack in flight and is unable to function as pilot. X (a lay person) takes control of the
aircraft. X’s assumption of control in these circumstances may not be described as negligent, even though he has no
or very little knowledge of piloting aircraft. Where it is reasonable for a lay person to undertake an activity for
which expert skill is required, it is expected from such lay person that he acts as a reasonable lay person in the
circumstances; and as long as he exercises the care of an ordinary lay person in the particular situation, he is not
negligent.
143 For the very reason that the foreseeability and preventability of damage is required, so-called “negligence in the
air” will not do (see, eg, Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA 13 (SCA)
31–32; see further Loubser and Midgley Delict 157 ff and the discussion of Van der Spuy v Minister of
Correctional Services 2004 2 SA 463 (SE) by Neethling and Potgieter 2002 TSAR 767–768).
21–25.
145 See also Neethling and Potgieter 2004 TSAR 766 768; Fagan Aquilian Liability 46–93 (and 144–146 on the abstract
and relative approaches with regard to intent).
reasonably foreseeable; in other words, the question of whether his conduct in general created an
unreasonable risk of harm to others must be asked.146 On this approach it is clearly not a re-
quirement for negligence that the extent of the damage147 or a particular consequence that
actually occurred should have been reasonably foreseeable;148 it suffices if damage in general
was reasonably foreseeable.149 The question of whether a defendant is liable for a specific conse-
quence is, in terms of the abstract approach, answered with reference to legal causation150 rather
than by inquiring whether the defendant was negligent with regard to that specific consequence.
However, this view of negligence enjoys little support among academics and is not generally
accepted by our courts.151
Concrete (or relative) approach152 This approach to the test of foreseeability is based on the
premise that a person’s conduct may only be described as negligent in respect of a specific
consequence or consequences; therefore, it is a prerequisite for negligence that the occurrence of
a particular consequence must be reasonably foreseeable. In other words: a wrongdoer is only
negligent with reference to a specific consequence if that consequence, and not merely damage
in general, was reasonably foreseeable.153 According to some of its supporters, a strict applica-
tion of this approach obviates the need for an enquiry into legal causation.154
________________________
146 See, eg, Botes v Van Deventer 1966 3 SA 182 (A) (see, however, Dendy 1993 SALJ 639–640; Roederer 2000
SALJ 642–643; Boberg Delict 293–295); Herschel v Mrupe 1954 3 SA 464 (A) 474; Groenewald v Groenewald
1998 2 SA 1106 (SCA) 1112; Kruger v Coetzee 1966 2 SA 428 (A) 430 (cf Sea Harvest Corporation (Pty) Ltd v
Duncan Dock Cold Storage (Pty) Ltd 2000 1 SA 827 (SCA) 840 845; Mkhatswa v Minister of Defence 2000 1
SA 1004 (SCA) 1121; Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) 472–473 (see
Neethling and Potgieter 2004 TSAR 766–768)).
147 Botes v Van Deventer 1966 3 SA 182 (A) 191 is brief but clear in this regard: “He can also not escape liability by
proving that the extent or proportions of the damage was not foreseeable” (translation).
148 In Herschel v Mrupe 1954 3 SA 464 (A) Centlivres JA illustrated this view with an apt example (474): “If through
my negligent driving of a motor car I crash into another car containing valuable china and that china is smashed I
cannot be heard to say that I am not liable for the loss of china because I was unaware of the presence of the china,
or that a reasonable man would not have foreseen the presence of the china.” See also Alex v Noeske 1988 2 SA PH
J23 (SWA).
149 This wide approach was nevertheless narrowed down in some cases, eg by the principle that the specific harmful
consequence or the precise manner in which it has been caused need not be reasonably foreseeable, but rather the
general nature of the harm (see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 4 SA 147 (A) 152;
Botes v Van Deventer 1966 3 SA 182 (A) 191; Kruger v Van der Merwe 1966 2 SA 266 (A) 272) or the general
manner in which it was caused (see Kruger v Van der Merwe 272–273; Minister van Polisie en Binnelandse Sake v
Van Aswegen 1974 2 SA 101 (A) 108; Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
2000 1 SA 827 (SCA) 840; Mkhatswa v Minister of Defence 2000 1 SA 1004 (SCA) 1111).
150 See infra 230 ff; see also Premier of the Western Cape Province v Loots NO [2011] JOL 27067 (SCA) paras 12í13
16 ff (discussed by Potgieter 2017 (3) LitNet Akademies 975 ff ); cf Van der Spuy v Minister of Correctional
Services 2004 2 SA 463 (SE) 472–473 (see Neethling and Potgieter 2004 TSAR 766 ff). Van der Walt Delict (1997
edition) 68 summarises the abstract approach as follows: “To establish negligence it is sufficient if the defendant
should reasonably have foreseen the possibility of some harm to another. Negligence postulates actual or imputed
appreciation of the risk of injury to others and this implies that the defendant realised or should have realised that
his conduct created the risk of at least some harm to somebody. If the actual consequence or kind of damage which
ensues from the defendant’s negligent conduct was not reasonably foreseeable, the damage was too remote or could
not be considered as a legal consequence of the defendant’s conduct. Reasonable foreseeability of the actual
consequence or kind of harm which ensued relates to the question of causation and not to the determination of
negligence on the part of the defendant.” (See further Van Rensburg Juridiese Kousaliteit 250 ff, Normatiewe
Voorsienbaarheid 23 ff; Potgieter and Van Rensburg 1977 THRHR 383–384; Visser 1977 De Jure 393.)
151 Cf, however, Boberg Delict 276–278 281–283.
152 See also Neethling and Potgieter 2004 TSAR 766–767; Fagan Aquilian Liability 46–93.
153 The concrete approach was followed in Mukheiber v Raath 1999 3 SA 1065 (SCA) 1077 (see supra fn 72; Van der
Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) 472–473 (see Neethling and Potgieter 2004 TSAR
766 ff) see also Scott 2000 De Jure 360–362), and was formulated as follows in Ablort-Morgan v Whyte Bank
Farms (Pty) Ltd 1988 3 SA 531 (E) 536: “In applying the law to the facts it must be borne in mind that the test is
not whether, in the abstract, danger should have been foreseen. The facts peculiar to the occurrence under
consideration must be established and in the light thereof one must determine whether the defendant ought
reasonably to have foreseen the occurrence itself” (see also Boberg Delict 276–277; Van der Merwe and Olivier
143; Visser 1977 De Jure 382 ff). It must, however, be noted that in the application of the concrete approach the
[continued ]
178 Law of Delict
The question of which approach should be accepted now arises. In our opinion, the concrete (or
relative) approach is to be preferred for, inter alia, the following reasons: Boberg155 correctly
observes that the question of whether the reasonable person in the position of the wrongdoer
would have acted differently in order to prevent damage may only be answered in a meaningful
way by reference to the consequence or consequences that were indeed reasonably foreseeable
(and not merely by reference to damage in general, as required by the abstract approach). It is
only when these consequences of an act are considered that one can judiciously decide what
steps or precautions (if any) the reasonable person would have taken in order to guard against
such consequences.156 This does not mean that the precise nature and extent of the harmful
consequence(s), or the precise manner in which the damage was caused, must be reasonably
foreseeable. It is sufficient if the general nature of the consequence(s) and the manner in which it
was caused are foreseeable.157 However, it must be emphasised that acceptance of the concrete
or relative approach does not obviate the important role of legal causation as a criterion to limit
liability, especially where “remote consequences” are concerned.158
________________________
principle is observed that neither the precise nature and extent of damage nor the precise manner in which it was
caused, need be reasonably foreseeable. It is sufficient if the general nature of the damage, or the general manner
in which it was caused, is foreseeable (see, eg, Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407
(SCA) 416; Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 1 SA 827 (SCA) 839;
Mukheiber 1077; Jaftha v Honourable Minister of Correctional Services [2012] 2 All SA 286 (ECP) paras 22 23; cf
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 768; Boberg Delict 274–278 390).
154 See Boberg Delict 276 ff 381–382. Although Olivier JA in Mukheiber v Raath 1999 3 SA 1065 (SCA) 1077
subscribed to Boberg’s (Delict 390) view of the concrete approach, he nevertheless did not apply it fully, since he
still employed criteria of legal causation to limit liability (see Neethling and Potgieter 2000 THRHR 167–168; Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 1 SA 827 (SCA) 839). However, in
Smit v Abrahams 1992 3 SA 158 (C) 163 Farlam J declared unequivocally that, in so far as it rejects the application
of legal causation, the concrete approach to negligence is not part of our law (see Neethling and Potgieter 1993
THRHR 158–159; cf Dendy 1993 SALJ 640). See also Knobel in Potgieter, Knobel and Jansen (eds) 241 fn 64, who
favours the concrete approach to negligence but clearly has no issue in accommodating legal causation as well, making
it clear, though, that, in his view, foreseeability should play no part in legal causation but be confined to the negligence
issue (see however infra 245í247 248í250 on the application of foreseeability as to negligence and legal causation).
155 See supra fn 153.
156 See also Neethling and Potgieter 2001 THRHR 476; Van der Merwe and Olivier 143; Visser 1977 De Jure 382 ff;
cf infra 180 on the preventability test.
157 In Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 765 the court formulated the
general principle as follows: “In delict, the reasonable foreseeability test does not require that the precise nature or
the exact extent of the loss suffered or the precise manner of the harm occurring should have been reasonably
foreseeable for liability to result. It is sufficient if the general nature of the harm suffered by the plaintiff and the
general manner of the harm occurring was reasonably foreseeable”; see also Municipality v Bridgman NO [2019]
ZASCA 189 (3 Des 2019) para 25 where Navsa JA stated: “The submission on behalf of the Municipality, in
relation to negligence, that harm specifically in the form of a rape could not have been foreseen by it, is mis-
conceived. The precise nature of the harm need not be foreseen. The general nature of serious criminal conduct
with attendant consequences is what ought to have been foreseen. In the present circumstances it ought to have
been foreseen.” See in general Burchell Delict 92 ff; cf Van der Walt and Midgley Delict 243). This interpretation
of the concrete approach was also followed by Olivier JA in Mukheiber v Raath 1999 3 SA 1065 (SCA) 1077, and,
although Scott JA in Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 1 SA 827
(SCA) 839–840 did not wish to express a preference for either the abstract or the concrete approach, the concrete
approach was nevertheless by implication accepted by him and applied in casu (see 841; Neethling and Potgieter
2001 THRHR 476; Scott 2000 De Jure 363). In Mkhatswa v Minister of Defence 2000 1 SA 1004 (SCA) 1111–
1112 Smalberger JA referred to the mentioned viewpoint in Sea Harvest with approval (while preferring the
abstract approach of Kruger v Coetzee 1966 2 SA 428 (A) as point of departure). From this it can be concluded –
and this is important – that because both the concrete and abstract approaches require foreseeability of the general
nature of the consequence(s) and the general manner in which it occurred (see also fns 149 153 supra), both
approaches should as far as negligence is concerned, produce the same result. See further Minister of Safety and
Security v Carmichele 2004 3 SA 305 (SCA) 326–327 (Neethling 2005 TSAR 407–408); cf Loubser and Midgley
Delict 158.
158 Also Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 1 SA 827 (SCA) 839;
Mkhatswa v Minister of Defence 2000 1 SA 1004 (SCA) 1111; see further Neethling and Potgieter 2000
THRHR 165–168, 2001 THRHR 483–484; Scott 2000 De Jure 365.
As far as the application of the foreseeability test159 is concerned, it must be stressed that it is
not possible to lay down hard-and-fast rules,160 because the circumstances of each case are de-
cisive.161 One may nevertheless accept as a broad guideline that the foreseeability of harm will
depend on the degree of probability of the manifestation of the harm (or how great the chance or
possibility is that it will occur). Therefore, the greater the possibility that damage will occur, the
easier it will be to establish that such damage was (reasonably) foreseeable. (Of course, the
contrary is also true).162
________________________
159 See S v Naidoo 2003 1 SACR 347 (SCA) 357 on reasonable foreseeability as requirement for culpable homicide.
160 In Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 326 the court warns: “In considering this
question [what was reasonably foreseeable], one must guard against what Williamson JA called ‘the insidious
subconscious influence of ex post facto knowledge’. Negligence is not established by showing merely that the
occurrence happened (unless the case is one where res ipsa loquitur [applies]) [see infra 191] or by showing after it
happened how it could have been prevented. The diligens paterfamilias does not have ‘prophetic fore-
sight’ . . . After the event, even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reason-
able man which alone can determine responsibility.” See also S v Bochris Investments (Pty) Ltd 1988 1 SA 861 (A)
866í867; Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) 417; Loureiro v Imvula Quality
Protection (Pty) Ltd 2014 3 SA 394 (CC) 410; Knobel in Potgieter, Knobel and Jansen (eds) 237–238.
161 Van der Walt and Midgley Delict 252 state: “It is impossible to formulate exact legal criteria for the determination
of the reasonable foreseeability of harm. There are, however, certain broad and flexible guidelines which can be
followed . . . The fundamental factor involved is the magnitude of the risk created by the actor’s conduct. The
magnitude of the risk comprises two elements: how strong the possibility or likelihood of harm is, and the gravity
or seriousness of the possible harmful consequences that are risked.” See also S v Bochris Investments 1988 1 SA
861 (A); Butters v Cape Town Municipality 1993 3 SA 521 (C); Cape Town Municipality v Butters 1996 1 SA 473
(C); Deysel v Karsten 1994 1 SA 447 (A).
162 See Van der Walt and Midgley Delict 251; McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC
t/a Harvey World Travel 2012 6 SA 551 (GNP) 567; Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson
1973 4 SA 523 (RA); Oliphant v RAF [2008] 4 All SA 239 (SCA) 243 (freak accident). To illustrate, reference may
be made to a few cases. The first is the English case of Bolton v Stone 1951 AC 850. Here a cricket ball was hit out
of a cricket field onto a public road where it struck and injured a woman. Although cricket balls had been hit out of
the field 6 times in 28 years, the court held that under the circumstances the risk of causing harm in this manner
was so small that the reasonable person would not have foreseen it. A similar conclusion was reached in Ablort-
Morgan v Whyte Bank Farms (Pty) Ltd 1988 3 SA 531 (E) where the plaintiff sustained serious injuries when in
broad daylight he fell into an inspection pit in a workshop on the farm of the defendant. The court stated (532):
“Although remoteness of possibility and seriousness of harm are two variables which must be considered, the
possibility of harm resulting may in certain circumstances be so remote that precautions need not be taken even if
they could be taken without undue expense and even if the harm, if it were to result, would be of a high degree.” In
Stratton v Spoornet 1994 1 SA 803 (T) the plaintiff’s son aged eight years sustained burns when he climbed an
electric pylon abutting a railway line and touched a high-voltage cable. Preiss J (810–811) held that the child’s
injuries were not reasonably foreseeable and stated: “The very fact that an accident of this general kind has never
occurred is, in my view, a cogent and compelling pointer to the conclusion that this kind of harm does not fall
within the realm of reasonable foreseeability.” (See Scott 1995 THRHR 128–131 for a discussion; see also Van der
Walt and Midgley Delict 252.) However, in Grootboom v Graaff-Reinet Municipality 2001 3 SA 373 (E) 377–380
a boy climbing a transformer and sustaining an electrical shock was regarded as reasonably foreseeable. Cf further
Eskom Holdings Ltd v Hendricks 2005 5 SA 503 (SCA) where it was conceded that a reasonable person in the
position of Eskom could foresee that persons, particularly children, might climb power pylons and come
sufficiently close to the cables to be shocked. On the other hand it was held in Kruger v Carlton Paper of SA (Pty)
Ltd 2002 2 SA 335 (SCA) that injury of an electrician from contact with an open electrical terminal was not
reasonably foreseeable – even though contact with an open terminal was in general foreseeable – because he had
been well aware of the danger and exposing himself to it had been grossly negligent or reckless. (See also De
Maayer v Serebro; Serebro v Road Accident Fund 2005 5 SA 588 (SCA) on the unforseeability of another driver
suddenly turning into the road.) See further Johannesburg Consolidated Investment Co Ltd v Langleigh
Construction (Pty) Ltd 1991 1 SA 576 (A) (the presence of a “scrambler” motor cycle which fell into an excavation
for stormwater drains was not reasonably foreseeable); Prince v Minister of Law and Order 1987 4 SA 231 (E) (the
police fired shots at a vehicle they were chasing and hit a person who was sleeping on the back seat; the court held
that they could not reasonably have foreseen his presence and were thus not negligent); Willmers v Cape Provincial
Administration 1992 1 SA 310 (E) (the unforeseeability of a pile of rubble in the road); Kritzinger v Steyn 1997 3
SA 686 (C) (there is no evident reason why a reasonable person should expect someone to visit a building site in
the dark at 23:00 at night – see Scott 1997 De Jure 409; but see Kriel v Premier, Vrystaat 2003 5 SA 67 (O) (the
plaintiff was injured on the site of dangerous construction work and the court held that the defendants should have
[continued ]
180 Law of Delict
(b) Preventability163 Although the question of reasonable foreseeability plays the most prom-
inent role in the determination of negligence, the second leg of the test for negligence, ie,
whether the reasonable person would have taken precautionary steps to prevent the damage from
occurring, may also be very important. Thus the issue of the avoidance of harm should not be
neglected.164 The question is whether, in an instance of reasonably foreseeable damage, the
defendant took adequate, reasonable steps to prevent the materialisation of the damage.165 The
mere fact that foreseeable damage materialised does not necessarily mean that steps indeed
taken to prevent the damage were unreasonable.166
________________________
foreseen that construction work was dangerous per se)); Tenza v Putco Ltd 1998 2 SA 330 (N) (the reasonable
person would not have foreseen that the thief might steal the bus and drive it in a negligent manner); Road Accident
Fund v Landman 2003 1 SA 610 (C) (reasonable foreseeability of a child appearing from behind a school bus);
Road Accident Fund v Odendaal 2004 1 SA 515 (W) 591 (not reasonably foreseeable to the driver leaving his
vehicle at night with burning lights in the so-called “emergency lane” of a highway, that it would create an
obstruction for traffic); Brauns v Shoprite Checkers (Pty) Ltd 2004 6 SA 211 (E) (reasonably foreseeable that a
client would slip on a wet floor in a shop and sustain injuries); Van As v Road Accident Fund 2012 1 SA (SCA)
(not reasonably foreseeable that a driver apparently in proper control of his vehice would swerve into his incorrect
lane and collide with an oncoming truck); Gora v Kings College 2019 4 SA 162 (ECG) paras 37 40 (not reasonably
foreseeable that a 15-year-old pupil would assault another pupil while left unattended in class for an hour í see
Scott 2019 (3) LitNet Akademies 779 ff for a critical discussion).
25–32.
164 See Barnard v Santam Bpk 1999 1 SA 202 (SCA) 214; Du Pisanie v Rent-a-Sign (Pty) Ltd 2001 2 SA 894 (SCA)
900–901; Kruger v Carlton Paper of SA (Pty) Ltd 2002 2 SA 335 (SCA) (the employer took adequate steps to pro-
tect an electrician and would not have taken further steps to prevent him from recklessly or negligently exposing
himself to danger); Minister of Safety and Security v De Lima 2005 5 SA 575 (SCA) 581 (reasonable steps taken by
the police to determine the suitability of an applicant for a firearm licence). Cf further Minister of Safety and
Security v Van Duivenboden 2002 6 SA 431 (SCA) 448 on the importance of determining what reasonable steps
may be expected from a defendant in the circumstances: “That enquiry offers considerable scope for ensuring that
undue demands are not placed upon public authorities and functionaries for the extent of their resources and the
manner in which they have ordered their priorities will necessarily be taken into account in determining whether
they acted reasonably.”
165 See, eg, Minister of Education v Wynkwart 2004 3 SA 577 (C) where a nine-year-old learner climbed over an
unguarded but locked gate, in spite of warnings, and sustained injuries. The court held (on appeal) that this case
was distinguishable from Knouwds v Administrateur, Kaap 1981 1 SA 544 (C). In the last-mentioned case
dangerous machinery was left unguarded on a playground where children were present. The risk was of such a
nature that constant supervision of the children was required. In Wynkwart this was not the case (583): “The degree
of supervision to be exercised in a particular case would depend upon a great variety of circumstances. It appears
from the authorities referred to herein that a pupil of R’s age need not be kept under continuous supervision on the
school grounds unless there is some hazardous feature present. To guard against the possibility of a single pupil
slipping away, climbing over a gate or fence and suffering injuries would require that each pupil should be kept
under continuous supervision. It would not be reasonable to expect the appellants to have taken such steps in this
instance. In my view, the respondent did not establish on the evidence a failure by the appellants to take reasonable
steps which, if taken, would have prevented R from slipping away from his class and climbing over the locked gate
which he had been repeatedly warned not to use. Nor did the respondent show that other steps not taken by the
appellants constituted reasonable measures which, if applied, would have prevented R doing what he did” (contra
Wynkwart v Minister of Education 2002 6 SA 564 (C) that was correctly overturned on appeal; see on these de-
cisions Visser 2004 International Journal for Education Law and Policy 282 288). In Brauns v Shoprite Checkers
(Pty) Ltd 2004 6 SA 211 (E) 219 it was held that the defendant’s agreement with a supplier of ice cream was not
adequately reasonable to prevent foreseeable damage to someone who slipped and sustained injuries due to water
on a shop floor resulting from the presence of the ice cream. The reasonable person in the defendant’s position
would not have regarded it as “sufficient, adequate and reasonable steps”. In K v Minister of Safety and Security
[2019] 1 All SA 415 (ECP) and Minister of Police v K (case no 403/2019) [2020] ZASCA 50 (6 May 2020) the
plaintiff, K, who had been abducted and raped, instituted an action for damages against the police based on their
alleged negligence in respect of both the search for her on the night she was raped and the subsequent investigation.
The trial court (para 179) found that the police acted negligently because both the search and the investigation did
not meet the standards expected of reasonable police officers. However, the SCA did not agree as the police,
according to the court, indeed took reasonable steps in conducting the search and further investigation.
166 Shabalala v Metrorail 2008 3 SA 142 (SCA) 145; cf further infra fn 168.
On a more analytical level, there are four basic considerations or factors167 particularly relevant
to the preventability leg of the test for negligence that are taken into account in case law. They
are: (i) the degree or extent of the risk created by the actor’s conduct; (ii) the gravity of the
possible consequences if the risk of harm materialises; (iii) the utility of the actor’s conduct; and
(iv) the burden of eliminating the risk of harm.168
(i) The degree or extent of the risk created by the wrongdoer’s conduct. The fact that the
extent of the risk are not serious, or that the harm foreseen is slight, may have the result
that the reasonable person – despite the fact that the harm was reasonably foreseeable –
would not have taken steps to prevent it (and consequently the wrongdoer is not negligent
where he did not take such steps).169
________________________
167 Van der Walt and Midgley Delict 254; Loubser and Midgley Delict 162–163; Scott 2018 TSAR 924; see also the
analysis by Fagan Aquilian Liability 26–32; Ngubane v South African Transport Services 1991 1 SA 756 (A) 776;
Jacobs v Transnet Ltd t/a Metrorail 2015 1 SA 139 (SCA) para 8; Avonmore Supermarket CC v Venter 2014 5 SA
399 (SCA) para 15; Loureiro v iMvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) 412í413; Gouda
Boerdery BK v Transnet 2005 5 SA 490 (SCA) 500; Potgieter v University of Stellenbosch [2017] 1 All SA 282
(WCC) para 20. In the following exposition, reference is mainly made to illustrative case law discussed by Van der
Walt and Midgley 254 ff. See further Butters v Cape Town Municipality 1993 3 SA 521 (C); Grootboom v Graaff-
Reinet Municipality 2001 3 SA 373 (E) 380; cf Cape Town Municipality v Butters 1996 1SA 473 (C). Note that the
emphasis falls on reasonable steps to prevent damage, ie, the steps that a reasonable person would have taken (see
Deysel v Karsten 1994 1 SA 447 (A) where the court held that the respondent had indeed taken reasonable steps to
prevent his dog from going on to a street and into the traffic).
168 See, for a restatement and application of these principles, Pretoria City Council v De Jager 1997 2 SA 46
(A) 55–56 (the mere fact that the nature of a fence put up by the municipality around a hole did not prevent the
plaintiff from falling into the hole, did not mean that the municipality failed to take reasonable precautions under
the circumstances); McIntosh v Premier, KwaZulu-Natal 2008 6 SA 1 (SCA) 9–10 (see Scott 2009 TSAR 392 ff);
Ngubane v South African Transport Services 1991 1 SA 756 (A) 776; Mostert v Cape Town City Council 2001 1
SA 105 (SCA) 119; Beurain h/a Toptrans Transport v Regering van die Republiek van Suid-Afrika 2001 4 SA 921
(O) 934 (adding noise strips to road surface and putting up warning signs reasonable and sufficient); Minister of
Education v Wynkwart 2004 3 SA 577 (C) (precautionary measures against the risks young learners at public
schools are exposed to); Eskom Holdings Ltd v Hendricks 2005 5 SA 503 (SCA) 509 (adequate precautionary
measures taken by Eskom to safeguard power pylons against people (particularly children) who wish to climb
them); CA v GS [2016] 4 All SA 386 (WCC) paras 65–67 (securing a pool gate to prevent a child from drowning).
In Jacobs v Transnet Ltd t/a Metrorail 2015 1 SA 139 (SCA) the plaintiffs were passengers on the back of a truck
that was hit by a train at a level crossing and who were seriously injured. Applying the four factors, the court found
that the defendant was negligent as the risk of harm eventuating was high; the level of its seriousness was grave;
the utility of the 90 km/h designation was low; and the preventative measure í lowering the speed designation to
40 km/h í would cost nothing (paras 7 9 18 21). The court held that the simple precautionary measure of reducing
the speed to 40 km/h would have averted the collision altogether. Also in Potgieter v University of Stellenbosch
[2017] 1 All SA 282 (WCC) the plaintiff sustained serious and permanent injuries when, as a student at a hostel of
the defendant, he had to escape from a fire through the window of his top-floor room. Applying the four factors, the
court (paras 146 147) held that the university acted negligently: the risk of the fire spreading was a severe one; the
gravity of the possible harm if the risk materialised was serious; the defendant was financially able to take reason-
able steps to adequately address that risk; and the burden of adequately addressing the risk was not unduly onerous.
See also Bridgman NO v Witzenberg Municipality 2017 3 SA 435 (WCC) para 155 (confirmed in Witzenberg
Municipality v Bridgman NO [2019] ZASCA 189 (3 Dec 2019) paras 25í26).
169 In Herschel v Mrupe 1954 3 SA 464 (A) 477 Schreiner JA stated: “[T]he circumstances may be such that a reason-
able man would foresee the possibility of harm but would nevertheless consider that the slightness of the chance
that the risk would turn into actual harm, correlated with the probable lack of seriousness if it did, would require no
precautionary action on his part . . . [and] if . . . the harm, if it happened, would probably be trivial the reasonable
man might not guard against it even if the chances of its happening were fair or substantial.” An example may be
found in Wasserman v Union Government 1934 AD 228: A swarm of bees hived in the roof of a police station.
While a policeman attempted to locate the bees, he was stung on his lip and died. The question arose whether the
defendant was negligent in not driving out the bees. The court held that the reasonable person would not have taken
steps to prevent the harm from occurring. From the judgment it may be concluded that although it was reasonably
foreseeable that someone could be stung by a bee, death was not reasonably foreseeable; and because the reason-
able person would not have guarded against someone merely being stung by a bee (slight harm) the defendant was
not negligent. See also De Jager v Taaf Hamman Holdings (Edms) Bpk 1993 1 SA 281 (O) where it was found that
the risk of danger to the general public created by an independent subcontractor was foreseeable, but that a
[continued ]
182 Law of Delict
(ii) The gravity of the possible consequences if the risk of harm materialises and damage
follows. Where the wrongdoer’s conduct creates the possibility that grave and extensive
damage may occur, he should take reasonable steps to prevent such damage, even though
there is only a slight possibility or chance that the damage will actually materialise.170
(iii) The utility of the actor’s conduct.171 It may, for example, be that the interest or purpose
served by the conduct in question is of such a nature that it is more important than the risk
of harm which it involves; in such a case the reasonable person would not have taken
steps to prevent the harm.172
(iv) The burden of eliminating the risk of harm, ie, the cost and difficulty of taking precaution-
ary measures.173 Where the risk of harm can be eliminated or reduced without substantial
________________________
reasonable person in position of first defendant would not have taken steps to prevent such danger. See also
Oosthuizen v Van Heerden t/a Bush Africa Safaris 2014 6 SA 423 (GP) 432í433 where the risk of infecting a
neighbour’s cattle with “snotsiekte” from blue wildebeest was very low. (See further Van Rensburg Juridiese
Kousaliteit 252–253; Van der Walt and Midgley Delict 254 ff; Fagan Aquilian Liability 26–32, for a comparison of
the viewpoints of Van der Walt and Schreiner JA.)
170 Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson 1973 4 SA 523 (RA). In this case the defendant was
employed by the plaintiff to erect a roof on top of a silo. During welding operations the defendant’s servants ignited
bales of stover stacked against the silo. The court held that although the risk of the stover being ignited by the
welding was not very great, the damage which was likely to result from burning stover would be fairly extensive.
The reasonable person would thus have taken steps to prevent the damage from occurring. See further Khupa v SA
Transport Services 1990 2 SA 627 (W); Ngubane v South African Transport Services 1991 1 SA 756 (A). In both
these cases the facts were essentially the same: The plaintiff was pushed out of the open door of a moving train. In
the latter case the court remarked as follows (777): “On the evidence . . . it can hardly be contended that the first
two considerations [(i) and (ii) supra] would not prompt a reasonable man to take steps to prevent the occurrence.
The risk – in fact the near certainty – of serious, if not fatal, injury resulting from starting a train when persons are
in the act of leaving or boarding a coach is as obvious as can be.” Cf also the English case of Overseas Tankship
(UK) v The Miller Steamship Company (the so-called Wagon Mound case) 1967 1 AC 617 (see also [1961] 1 All
ER 404 (PC)). The defendant’s employees negligently spilled oil from their ship (the Wagon Mound) into the sea at
Sydney harbour. The oil spread to a wharf where repairs to two ships belonging to the plaintiffs were being carried
out. During welding operations the oil ignited and damaged the two ships. The court held that although there was
not a great risk of the oil igniting and causing damage, the gravity and extent of the damage that could occur
(together with the fact that it was easy to eliminate the possibility of damage taking place) were sufficient to
indicate negligence on the part of the defendant’s employees. Finally it should be noted that because of the
potentially serious consequences of a motor vehicle accident, the failure to wear a safety belt is blameworthy
conduct (in the form of contributory negligence – see infra 205) even though the possibility of an accident
happening is very slight (see Union National South British Insurance Co Ltd v Vitoria 1982 1 SA 444 (A); Vorster
v AA Mutual Insurance Association Ltd 1982 1 SA 145 (T); see also CA v GS [2016] 4 All SA 386 (WCC) para 67).
171 In Minister of Safety and Security v Mohofe 2007 4 SA 215 (SCA) 220 Lewis JA also declared, referring to Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) 123, that the gravity of the risk must be
weighed against the utility of the alleged wrongdoer’s conduct. Interestingly, in Crown Chickens Nugent JA
considered these factors to determine whether necessity (a ground of justification that eliminates wrongfulness) was
present. The fact that the SCA employs the same factors to determine both wrongfulness and negligence, indicates
a measure of overlap between the two elements. This overlap must never undermine the respective essential
functions of the two elements (see infra 193).
172 A clear example is that of an ambulance driver who considerably exceeds the speed limit in an urban area while
taking a seriously ill patient to hospital. The driver is acting reasonably even though his high-speed driving creates
some risk to other road users. See also S v Makwanazi 1967 2 SA 593 (N): A bus driver passed a vehicle which was
stationary in the road by moving over to the right-hand side (it was impossible to pass on the left). A collision
occurred. The driver contended that he took a reasonable risk. The court held, however, that the utility of the
driver’s conduct (eg to get the passengers to their destination in time) was not such that it outweighed the risk of an
accident and that the driver acted negligently (see also Van der Walt and Midgley Delict 256).
173 McIntosh v Premier, KwaZulu-Natal 2008 6 SA 1 (SCA) 9; Oosthuizen v Van Heerden t/a Bush Africa Safaris
2014 6 SA 423 (GP) 433 (high cost of erecting a fence). In Za v Smith 2015 4 SA 574 (SCA) the plaintiff’s
husband drove his four-wheel-drive vehicle to the parking area at the top of a mountain. From there he walked
across the apparently snow-covered ground to look into the gorge that was close by. Near to, but not at the edge of
the gorge, he slipped on ice concealed by the snow, slid over the edge and fell to his death. The court held that
because the danger was not clear and apparent, the reasonable person would have taken steps to warn and protect a
person in the position of the deceased in order to avert the danger, amongst others, by taking preventive steps which
[continued ]
problems, prejudice or costs, it may be accepted that the reasonable person would take
precautionary measures.174 However, where the costs and difficulty of taking precaution-
ary measures are greater than the gravity of the risk involved, the reasonable person would
clearly not take such steps to minimise or reduce the risk.175 176
________________________
the court (581) found would have been effective, affordable and sustainable (588). Brand JA came to the
conclusion that the defendants acted negligently because the reasonable person in the position of the defendants
would have taken the proposed preventative steps.
174 See Mkhwanazi v Van der Walt 1995 4 SA 589 (A) (simple and inexpensive precautions in padlocking gates or
erecting a grid of such a nature that a reasonable person would have effected one of them) (cf also CA v GS [2016]
4 All SA 386 (WCC) paras 65–67); Enslin v Nhlapo 2008 5 SA 146 (SCA) 149–150 (easy and affordable measures
to prevent cattle from venturing onto a public road); Durban’s Water Wonderland (Pty) Ltd v Botha 1997 3 SA 245
(N) (failure to take elementary precautions in an amusement park); Grobler v Santam Versekering Bpk 1996 2 SA
643 (T) (failure to remove a dead horse from the road).
175 In Gordon v Da Mata 1969 3 SA 285 (A) the plaintiff slipped on a cabbage leaf on the floor of the defendant’s
greengrocery. The cabbage leaf had fallen on the floor while the defendant’s assistant was slashing off cabbage
leaves. The court held that a reasonable person would definitely have taken steps to prevent leaves from falling
onto the floor by collecting them in a receptacle because this would not have required much trouble or high cost. In
City of Salisbury v King 1970 2 SA 528 (RA) the court had to decide whether it was negligent to leave potentially
slippery vegetable matter lying on a market floor. The plaintiff slipped on a piece of vegetable on the floor of a
large market while the sale of vegetables was in progress. The court held that the mere presence of vegetable matter
on a market floor did not in itself indicate negligent conduct; it would be unreasonable, expensive and unrealistic to
expect the immediate removal of vegetable matter as it fell onto the floor. In respect of the so-called “slippery-
shop-floor cases” the following general rule applies: “The duty on the keeper of a supermarket to take reasonable
steps is not so onerous as to require that every spillage must be discovered and cleaned up as soon as it occurs.
Nevertheless, it does require a system which will ensure that spillages are not allowed to create potential hazards
for any material length of time, and that they will be discovered, and the floor made safe, with reasonable
promptitude” (Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W); see further Lindsay v Checkers
Supermarket 2008 4 SA 634 (N) 636–637; cf Brauns v Shoprite Checkers (Pty) Ltd 2004 6 SA 211 (E); supra fn 162).
In Botes v Van Deventer 1966 3 SA 182 (A) a lorry collided, in the early hours of the morning on a public road,
with horses belonging to the plaintiff. The plaintiff claimed damages because he had to destroy the horses. The
defendant contended that the plaintiff was guilty of contributory negligence because he had allowed the horses to
roam freely at night without keeping them in a paddock fenced off from the public road. The defendant mentioned
the following precautionary measures which the plaintiff could have taken: keeping the horses in a secure place at
night; fencing off the public road; and erecting warning signs. But after considering all the facts, the court came to
the conclusion that the disadvantages, expense and ineffectiveness of these precautionary measures were so sub-
stantial that the reasonable person could not be expected to institute them. See further Kruger v Coetzee 1966 2 SA
428 (A) where the question was whether the defendant acted negligently in his failure to prevent his horses from
reaching a public road. The court could not make a finding of negligence because of the lack of evidence regarding
reasonable steps he could have taken.
176 In Khupa v SA Transport Services 1990 2 SA 627 (W) and Ngubane v South African Transport Services 1991 1 SA
756 (A) the question arose whether the defendant ought to have taken reasonable steps to prevent passengers from
being pushed out of a moving train with open doors. In the Khupa case the court held that even though the cost of
effective security measures was very high, it was not so “astronomical” that – especially in light of the serious
danger posed by open doors – one cannot reasonably expect a plaintiff to incur it. In the Ngubane case, evidence
was tendered dealing with, inter alia, problems with station crowds, over-occupation of coaches, undisciplined
conduct of passengers, the cost of employing more conductors and to develop train doors which could withstand
misconduct of passengers. The court held that the defendant could have taken reasonable steps without the cost
factor being taken into account (778): “The ‘effective precautions’ which would have prevented this occurrence are
really unrelated to difficulties of costs and requirements of public utility. The overcrowded coach in the vicinity of
that doorway may have played some part in the [plaintiff] being thrust from it, but the real cause was the conduct of
the railway officials in ordering or allowing the train at that stage to proceed. Similarly, if these doors were at that
time incapable of being closed (and there is no evidence to that effect), this was not the cause of the accident in this
case. If they had remained open and the train had taken off smoothly after all the passengers had alighted, there is
no reason to believe that the [plaintiff] would not have remained on the train and travelled in safety.” See also
Deysel v Karsten 1994 1 SA 447 (A) (respondent did take reasonable steps to prevent his dog from crossing the
road and getting in the way of traffic); Kwamashu Bakery Ltd v Standard Bank of South Africa Ltd 1995 1 SA 377
(D) 397 (the steps to be taken by a collecting banker to prevent harm are relatively simple and inexpensive); cf
Cape Town Municipality v Butters 1996 1 SA 473 (C) (cost of erecting a short length of fencing to prevent a person
falling into a canal).
184 Law of Delict
Van der Walt and Midgley177 provide the following summary of the above factors:
In general the magnitude of the risk must be balanced against the utility of the conduct and the difficulty,
expense or other disadvantage of desisting from the conduct or taking a particular precaution. If the
magnitude of the risk outweighs the utility of the conduct, the reasonable person would take measures to
prevent the occurrence of harm. If the actor failed to take such measures he or she acted negligently. On
the other hand, if the burden of eliminating a risk of harm outweighs the magnitude of the risk, the rea-
sonable person would not take any steps to prevent the occurrence of the foreseeable harm.
4.7 Negligence judged in the light of the surrounding

circumstances178
It must be self-evident that the negligence (or otherwise) of conduct may only be evaluated in
the light of all the relevant circumstances of a particular case. It is a well-known principle of our
law that all the relevant circumstances of a case must be considered as a whole when deciding
whether a wrongdoer’s conduct was negligent.179 In Cape Town Municipality v Butters180 this
was formulated as follows:
It needs to be emphasised, once again, that in considering issues of negligence what is, or what is not,
reasonably foreseeable and what steps, if any, ought to be taken by the reasonable person to avert such
foreseeable harm must always depend upon the particular circumstances of each case, that no hard and
fast rule can be laid down and that in general it is futile to seek guidance from the facts and results of
other cases.
The following are examples of factors which should be taken into account in this investigation.
(It must be emphasised, however, that in each and every case one is still concerned with the
question of whether the wrongdoer’s behaviour was in accordance with the standard of the
reasonable person in his position.)
(a) Greater care is required when someone works with things which are inherently dangerous,
like a loaded firearm, dynamite, a pressure cooker, a wet shop floor, etc.181
(b) Greater care is also expected when a person deals with individuals who suffer from some
disability or incapacity, such as deaf-mutes, the blind, children, intoxicated persons, etc.182 In
________________________
177 Delict 254.

178 There are many cases that illustrate the application of the general test of negligence in particular factual situations.
On the relevance of these cases Boberg Delict 367 remarks as follows: “The precautions required in a particular
situation cannot be determined by a priori rules: they depend on the circumstances of the case itself. Thus a court’s
opinion as to what the defendant ought to have done in given circumstances is a finding of fact not binding on a
subsequent court faced with similar circumstances. At the same time, the regular recurrence of typical factual
patterns yields a jurisprudence of rulings which, though not strictly binding, enjoys equivalent respect. This is
especially true in motor cases, for one intersection is much like another, and judges rightly refuse to treat each as
though it were unique.” Cf Manderson v Century Insurance Co Ltd 1951 1 SA 533 (A) 540: “While findings of fact
and the reasoning upon which they are based should not lightly be elevated into rules of law, a consideration which
has frequently been successfully urged in exculpation or a distinction which has repeatedly been drawn acquires the
authority of a legal principle; in no department of law is this more apparent than in the law of negligence. But for
this apotheosis the law would, apart from legislative interference, have remained static.” In the different editions of
the Annual Survey instances of negligence are classified under various practical headings. See Charewa v Road
Accident Fund 2018 6 SA 551 (GJ) para 39 where Sutherland J set out the law applicable where a motorist passes a
cyclist. See also Van der Walt and Midgley Delict 265–266; Loubser and Midgley Delict 167 ff; Fagan Aquilian
Liability 39–42.
179 Eg Moubray v Syfret 1935 AD 199; Boberg Delict 355 ff; Van der Walt and Midgley Delict 265–266.
180 1996 1 SA 473 (C) 482.
181 Havenga v Minister of Police 1981 2 SA 344 (T); Brauns v Shoprite Checkers (Pty) Ltd 2004 6 SA 211 (E) (wet
shop floor); see Loubser and Midgley Delict 169.
182 See in respect of small children, eg, Keown v Ned-Equity Versekeringsmaatskappy Bpk 1984 1 SA 656 (A) 661–
662; Levy v Rondalia Assurance Corp of SA Ltd 1971 2 SA 598 (A) 599; De Bruyn v Minister van Vervoer 1960 3
SA 820 (O) 822–823; Santam Insurance Co Ltd v Nkosi 1978 2 SA 784 (A) and S v Chipinge Rural Council 1989 2
SA 342 (ZS). Boberg Delict 355–356 states in this regard: “Before the higher standard of care can apply in a
particular case it must appear that a reasonable man in the defendant’s position would have expected to be dealing
[continued ]
the situations referred to in (a) and (b), someone who knows or is reasonably expected to be
aware of the special circumstances is required to act with exceptional care.
(c) Where a person has to make a decision in a situation of sudden emergency and there is
insufficient opportunity to consider all the consequences of his actions, the imminent peril must
be taken into account in deciding whether he is negligent. This situation is usually referred to as
the so-called “doctrine of sudden emergency”.183 The principle accepted here is that the law
cannot expect a person who has to act swiftly in a situation of imminent peril to show the same
judgment and skill as a person who is not acting in such urgent circumstances. Therefore, an
error of judgment does not necessarily amount to negligence because the reasonable person may
also make an error of judgment in certain circumstances.184 According to case law, three require-
ments must be satisfied in a case of sudden emergency for a wrongdoer’s conduct not to amount
to negligence, in other words, to meet the standard of the reasonable person:
(i) The wrongdoer must have faced a situation of imminent peril. Three examples from case
law are: a man, armed with a panga, slashes at a motorist who is driving past him; some-
one who is fighting with another person in public picks up a brick and aims it at a motor-
ist; a group of people throwing stones at a vehicle damage the windscreen so that the
driver cannot see properly.185 Although the reactions of the motorists in these three ex-
amples appeared to amount to negligent driving at first sight, they were held not to be
negligent by the courts.
________________________
with children. In the typical motoring situation this requirement is satisfied where it is shown that the defendant: (a)
saw children in or near the road ahead of him; or (b) ought, if he had kept a proper lookout, to have seen such
children or (c) ought, in the circumstances, reasonably to have anticipated the presence of such children, although
they were hidden from his view . . . The actual precautions that he should have taken depend on factors such as the
visibility of the children, their apparent age, their proximity to the edge of the road, their degree of liveliness, their
apparent intentions, and many other circumstances inseparable from the facts of the case.” Note also the following
remark in Ndlovu v AA Mutual Insurance Association Ltd 1991 3 SA 655 (E) 660: “This does not mean that all
traffic must stop or reduce speed to a snail’s pace as soon as young children appear in the vicinity of the road. It is a
matter of foreseeability in the full context of all the relevant circumstances.” Cf further Stratton v Spoornet 1994 1
SA 803 (T) (supra fn 162); Seti v Multilateral Motor Vehicle Accidents Fund 1999 1 SA 1035 (SCA): the mere fact
that the driver of a motor car owes a high standard of care towards children does not mean that the driver must
always drastically reduce speed because of a supposition that every child is on the verge of running into the way of
the vehicle. Foreseeability must be judged in the context of the circumstances, and the age of the child is a relevant
factor. In Road Accident Fund v Landman 2003 1 SA 610 (C) 618 the court held (in a case where a 14-year-old
child had suddenly appeared from behind a school bus and had been hit by a motor car) that the driver was 40%
negligent and must have driven at a snail’s pace in the circumstances. The court said that the inconvenience of slow
driving could not be weighed up against the safety of a human being. Greater care in respect of children is not
required only in the above-mentioned instances, but also where the parent’s control over his or her own children is
at stake. Such a case was dealt with in Wessels v Pretorius [2008] 1 All SA 131 (SCA). A father permitted his 16-
year-old son, who did not have a driver’s licence, to drive a bakkie with a group of boys in the back. The boy drove
recklessly and caused the plaintiff’s injuries. The court found that the father had acted negligently by allowing a
boy, who would display poor judgment in driving due to peer pressure and immaturity, unlimited access to a
vehicle. The father should have known that his son was ill-equipped to exercise full control over the vehicle. The
court accordingly held that the damage had been reasonably foreseeable and that the father had acted negligently.
(See in general Loubser and Midgley Delict 169.)
183 Van der Walt and Midgley Delict 266; Loubser and Midgley Delict 168–169; Van der Merwe and Olivier 134;
Boberg Delict 333 ff ; Scott 2008 TSAR 358 ff. See in general Thornton v Fismer 1928 AD 398 412: “[A] man
who, by another’s want of care, finds himself in a position of imminent danger, cannot be held guilty of negligence
merely because in that emergency he does not act in the best way to avoid the danger.”
184 In Road Accident Fund v Grobler 2007 6 SA 230 (SCA) 234 Hancke AJA declared that “[w]hen a person is
confronted with a sudden emergency not of his own doing, it is, in my view, wrong to examine meticulously the
options taken by him to avoid the accident, in the light of after-acquired knowledge, and to hold that because he
took the wrong option, he was negligent. The test is whether the conduct of the respondent fell short of what a
reasonable person would have done in the circumstances”.
185 Samson v Winn 1977 1 SA 761 (C); Mfihlo v Port Elizabeth Municipal Council 1976 3 SA 183 (SE); Msutu v
Protea Assurance Co Ltd 1991 1 SA 583 (C).
186 Law of Delict
(ii) The wrongdoer must not have caused the perilous situation by his own negligence or im-
prudence. Where the reasonable person would in any event have evaded or prevented the
emergency situation, the wrongdoer’s conduct will not be excused because it forms an
integral part of the conduct which placed him in the emergency.186
(iii) The wrongdoer must not have acted in a grossly unreasonable manner. This means that
one must establish whether the reasonable person in the same circumstances would have
made the same error of judgment as the wrongdoer. Thus the principle is that although the
reasonable person may also make a (justifiable) error of judgement, he will not lose his
head or behave completely foolishly.187
(d) Generally speaking, a person acts according to the standard of the reasonable person when
he relies on the fact that another person will act in a reasonable way (like a reasonable per-
son).188 This implies that he may expect others to obey the law when, for example, a motor car is
driven on a public road,189 or that sidewalks, lifts and floors will be kept in a safe condition.190 In
general, therefore, a person is not negligent where he simply fails to take into consideration the
negligent conduct of another driver (who is violating traffic rules) and is involved in a collision
with him. But where negligent conduct on the part of another driver is reasonably foreseeable –
as is frequently the case nowadays in fast-flowing traffic – a person may not always rely on
other road users acting reasonably.191 In general, however, a person need not take steps to guard
against the recklessness or the gross negligence of others.192
________________________
186 In Brown v Hunt 1953 2 SA 540 (A) a pump attendant in the employ of the appellant filled the respondent’s car
with petrol. In the process, the attendant spilled some petrol onto the ground. For some unexplained reason, the
petrol caught fire and the pump attendant attempted to put out the flames by spraying them with water. This,
however, drove the flames under the respondent’s car, which was destroyed completely. It was submitted on behalf
of the appellant that the apparently imprudent action of the pump attendant was excused by the doctrine of sudden
emergency because the fire created an imminent peril. This submission was, however, rejected by the court because
the sudden emergency would not have arisen (leading to the events described previously) had petrol not been
spilled onto the ground earlier. See also Ntsala v Mutual & Federal Insurance Co Ltd 1996 2 SA 184 (T) 192: “A
party to an action can only rely on the doctrine of sudden emergency if and when the sudden emergency in which
he finds himself is not of his own making. If his actions or neglect are the reason or cause of the sudden emergency,
he can for that reason also be found to be negligent.”
187 Bonthuys v Visagie 1931 CPD 75; Van Staden v May 1940 WLD 198; Walpole v Santam Insurance Co Ltd 1973 1
SA 357 (T); S v Claasen 1962 3 SA 308 (O); S v Crockart 1971 2 SA 496 (RA); S v Erwin 1974 3 SA 438 (C). Cf
S v Malik 1987 2 SA 813 (A) 819: “[A] reasonable person in his position would have realised, even in the stressful
situation appellant was in, that handling a loaded and cocked firearm in such circumstances was very dangerous
and that great care should be taken not to touch the trigger lest the pistol goes off and injures or kills someone.” See
further Ntsala v Mutual & Federal Insurance Co Ltd 1996 2 SA 184 (T) 192: “In this instance I am of the opinion
that, if the driver of the insured vehicle was in fact acting in a sudden emergency, he took the proper and obvious
course by swerving to the left. If he then loses control of his vehicle or if in panic he swerves back onto the tarmac
and a collision follows, he cannot be faulted and held to be negligent.”
188 Van der Walt and Midgley Delict 263; Loubser and Midgley Delict 167–168; cf Scott 2018 TSAR 923. But see also
Butters v Cape Town Municipality 1993 3 SA 521 (C); Masureik (t/a Lotus Corporation) v Welkom Municipality
1995 4 SA 745 (O) (assumptions by pilots upon landing).
189 In Moore v Minister of Posts and Telegraphs 1949 1 SA 815 (A) 826 the following was said: “Speaking very
generally one expects and is entitled to expect reasonableness rather than unreasonableness, legality rather than
illegality, from other users of the highway.” See also Naicker v Moodley 2011 2 SA 502 (KZD) 507–508; Santam
Insurance Co Ltd v Gouws 1985 2 SA 629 (A) 634–635; Gray v Protea Versekeringsmaatskappy Bpk 1990 3 SA
823 (O) 827; cf Griffiths v Netherlands Insurance Co of SA Ltd 1976 4 SA 691 (A) 695; Scott 2018 TSAR 924.
190 For authority and views on this, see Van der Walt and Midgley Delict 263.
191 Eg where someone knows or has reason to believe that another driver is not going to stop at a stop street or inter-
section controlled by traffic lights – Moore v Minister of Posts and Telegraphs 1949 1 SA 815 (A); see further
Naicker v Moodley 2011 2 SA 502 (KZD) 507–508; Joubert v Bekker 1952 3 SA 245 (T); Serfontein v Smith 1941
WLD 195.
192 Eg SAS & H v Reed 1965 3 SA 439 (A); Southern Insurance Association Ltd v Danneberg 1976 3 SA 253 (A);
Gray v Protea Versekeringsmaatskappy Bpk 1990 3 SA 823 (O) 827. In Kruger v Carlton Paper of SA (Pty) Ltd
2002 2 SA 335 (SCA) the court held that an electrician sustaining injuries by contact with an open electrical
terminal was not reasonably foreseeable because he was well aware of the danger and exposing himself to it was
[continued ]
These principles also find application with regard to contributory negligence;193 they provide
guidelines for determining when a person is required to be on his guard against the possible
negligence of others. Of particular importance here is that a person is required to act with ex-
treme circumspection when there are clear indications that another is not going to obey traffic
rules. Moreover, it must be noted that where a person creates a situation which is not inherently
dangerous but which may become dangerous when another person interferes, the former is
obliged to take the precautionary steps which a reasonable person in his position would take.194
(e) Another factor concerns the customs, usages and opinions of the community; generally a
wrongdoer will be able to defend himself successfully against an allegation of negligence by
proving that he acted in accordance with normal practices (in, for example, the building industry
or the medical profession195).196 This, however, is not always conclusive in determining the
absence of fault. A person whose conduct is in fact negligent may not escape liability by relying
on common practice. The ultimate question remains whether the reasonable person would have
acted in the same way as the defendant.197
(f ) In certain circumstances, the appropriate standard of care required for conduct is not entirely
left to the discretion of the court (by applying the reasonable person test) because there is also a
specific statutory provision which applies.198 It is not clear in our law whether conduct contrary
to a statutory provision is per se negligent or whether the provision merely affords proof of neg-
ligence. It should probably be accepted that in such a situation it is incorrect to speak of statutory
negligence and that the statutory provision at best only provides evidentiary material; the in-
fringement of the provision in question is thus not conclusive proof of negligence and the gen-
eral criterion of the reasonable person still applies.199
________________________
grossly negligent or reckless; see also Odendaal v Road Accident Fund 2002 3 SA 70 (W) (overturned in Road
Accident Fund v Odendaal 2004 1 SA 515 (W)).
193 See on this infra 199 ff.
194 Cf supra 184 ff .
195 In Medi-Clinic Ltd v Vermeulen 2015 1 SA 241 (SCA) para 25 the court held that in order to find that nurses in a
hospital were negligent in their treatment of a patient’s bedsores, their failure to act in accordance with a practice
accepted as proper in the relevant field is necessary, and it was for the court to decide that issue. Zondi JA (para 33)
however added, citing Denning LJ in Roe v Ministry of Health [1954] 2 All ER 131 (CA) 139, that “we should be
doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything
that happens to go wrong . . . We must insist on due care for the patient at every point, but we must not condemn as
negligence that which is only a misadventure”.
196 Cf Van Heerden v SA Pulp & Paper Industry 1946 AD 382; Colman v Dunbar 1933 AD 141 157.
197 See Van der Walt and Midgley Delict 262: “If common practice were accepted as conclusive determination of the
required standard of care, it would follow that people engaged in similar activities were free to formulate their own
standards of care by adopting careless methods.”
198 See Van der Walt and Midgley Delict 262í263; Loubser and Midgley Delict 169; Potgieter v University of
Stellenbosch [2017] 1 All SA 282 (WCC) paras 26í28. In this regard, see also Botha v Minister van Veiligheid en
Sekuriteit 2003 6 SA 568 (T) 581–582 on the fact that a reasonable police official must act in accordance with the
applicable standing orders of the police service, which contain minimum precepts to which he is bound; Naidu v
Minister of Correctional Services [2017] 2 All SA 651 (WCC) where it was found that the Parole Board did not act
as a reasonable person and thus negligently when it released a prisoner on parole without complying with the
mandatory statutory requirements of s 42(2) of the the Correctional Services Act 111 of 1998; Minister of Safety
and Security v Carmichele 2004 3 SA 305 (SCA) on departmental guidelines for bail applications. Cf Charewa v
Road Accident Fund 2018 6 SA 551 (GJ) where Sutherland J, in considering the negligence of a truck driver who
had passed too close to a cyclist, causing him to fall and break his leg, referred to, amongst other things, the Safety
of Cyclists Regulations, 2013, PN 372 in terms of the Western Cape Road Traffic Administration Act 6 of 2012.
199 Clairwood Motor Transport Co (Pty) Ltd v Akal & Sons 1959 1 SA 183 (N); Bekker v Du Toit 1974 3 SA 248 (O).
In general, it is negligent for the purposes of the law of delict to fail to stop at a stop street as required by a statutory
provision; situations may, however, arise (see the discussion of the doctrine of sudden emergency supra 185) where
it would not amount to negligence despite the literal transgression of the statutory provision. It must also be pointed
out that the mere adherence to a statutory rule does not necessarily prevent a person from acting negligently. Where
there is, eg, a speed restriction of 100 km/h and X drives at 95 km/h under circumstances where he should have
driven at 60 km/h (because of a slippery road surface, etc.), X cannot be heard to say that he did not act negligently
[continued ]
188 Law of Delict
4.8 Negligence and “duty of care”

As stated above, negligence is generally determined according to the test of the reasonable per-
son. On occasion, our courts have not applied this test and have instead followed English law in
applying the so-called “duty of care” doctrine.200 According to this approach, one must first
establish whether the defendant owed the plaintiff a duty of care (the “duty issue”), and there-
after whether there was a breach of this duty (the “negligence issue”). If both questions are
answered in the affirmative, negligence is said to be present.
In determining firstly whether a duty of care was owed, the criterion was traditionally whether
the reasonable person in the position of the defendant would have foreseen that his conduct
might cause damage to the plaintiff.201 At present, it is emphasised that this issue is a policy-
based value judgment, in which foreseeability plays no role, as to whether interests should be
protected against negligent conduct.202 In answering the second question, ie, whether there was a
breach of the duty of care, the court considers whether the wrongdoer exercised the standard of
care that the reasonable person would have exercised in order to prevent damage. In other
words, would the reasonable person, in contrast to the wrongdoer, have prevented the dam-
age?203 It should be noted that the duty of care is not a general duty; it is a duty towards certain
people or classes of people and not towards every person. Unless the plaintiff can prove that he
is someone who was owed a duty of care, he has no action;204 a duty of care is owed only to the
so-called foreseeable plaintiff.205
The duty of care approach is foreign to the principles of Roman-Dutch law which form the basis
of our law of delict. From a historical point of view, the application of these principles must be
rejected. An even more important reason to reject the application of the duty of care in our law is
that in its traditional form it is an unnecessary and roundabout way of establishing what may be
established directly by means of the reasonable person test for negligence, ie, whether the
reasonable person would have foreseen and guarded against damage. Moreover, the use of the
duty of care doctrine may confuse the test for wrongfulness (breach of a legal duty)206 with the
test for negligence. Our courts sometimes use the duty of care concept incorrectly as a synonym
for the legal duty used to determine wrongfulness.207 To avoid confusion, it would be preferable
________________________
because he stayed within the speed limit. To hold otherwise would be to adopt too mechanical an approach to
negligence and for this reason the test of the reasonable person still applies as described above. The existence of a
statutory provision is thus only one factor to be taken into account in the determination of the possible negligence
of a wrongdoer. See further Simon’s Town Municipality v Dews 1993 1 SA 191 (A) 196–197; Trencor Services
(Edms) Bpk v Loots & Loots 2001 1 SA 324 (NC) (driving on the shoulder of a road in contravention of s 91A of
the repealed Road Traffic Act 29 of 1989 was not per se negligent); Charewa v Road Accident Fund 2018 6 SA
551 (GJ) paras 26–29 (Sutherland J considering statutory provisions in South Africa, the UK, Canada and Australia
on the duties of motorists when passing cyclists).
200 Loubser and Midgley Delict 187–190; Boberg Delict 274; McKerron Delict 26; Van der Walt and Midgley Delict
118 ff; Van der Merwe and Olivier 129–130; Dendy 1988 SALJ 395; Price 2019 Acta Juridica 315 ff.
201 Cape Town Municipality v Paine 1923 AD 207 216; see further Van der Walt and Midgley Delict 119–120.
202 In, eg, Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 833 the court emphasised that the
“duty issue” “is not at all concerned with reasonable foresight; it is to do with the range of interests which the law
sees fit to protect against negligent violation”. See also Knop v Johannesburg City Council 1995 2 SA 1 (A) 27
(quoted infra fn 211); Saaiman v Minister of Safety and Security 2003 3 SA 496 (O) 504–505; Neethling and
Potgieter 2004 Obiter 484; cf also Van der Walt and Midgley Delict 119–120. On closer examination, one is
dealing here with the inquiry into wrongfulness (see infra fn 211).
203 See Van der Walt and Midgley Delict 119.
204 Idem 81; Workmen’s Compensation Commissioner v De Villiers 1949 1 SA 474 (C).
205 For a further discussion, see Van der Walt and Midgley Delict 119–120; Van der Merwe and Olivier 129; Boberg
Delict 30–31 279 736.
206 Supra 60.
207 Eg Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A); Coronation Brick (Pty) Ltd v Strachan
Construction Co (Pty) Ltd 1982 4 SA 371 (D); Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Mpy v Lebos
1985 4 SA 341 (T); Benson v De Beers Consolidated Mines Ltd 1988 1 SA 834 (NC); Compass Motors Industries
(Pty) Ltd v Callguard (Pty) Ltd 1990 2 SA 520 (W) (see Neethling and Potgieter 1990 TSAR 763–765); Longueira
[continued ]
to describe the duty involved in the test for wrongfulness as a “legal duty”. In McIntosh v
Premier, KwaZulu-Natal208 Scott JA formulated this as follows:
[T]he word ‘duty’ and sometimes even the expression ‘legal duty’ [in respect of the second leg of the
negligence test as formulated by Holmes JA in Kruger v Coetzee209], must not be confused with the
concept of ‘legal duty’ in the context of wrongfulness which . . . is distinct from the issue of negligence.
I mention this because this confusion was not only apparent in the arguments presented to us in this case
but is frequently encountered in reported cases. The use of the expression ‘duty of care’ is similarly a
source of confusion. In English law ‘duty of care’ is used to denote both what in South African law
would be the second leg of the inquiry into negligence and legal duty in the context of wrongfulness. As
Brand JA observed in . . . [Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd210] . . .
‘duty of care’ in English law ‘straddles both elements of wrongfulness and negligence’.”211
No reason exists why the duty of care approach should be used in determining negligence, and at
present it would appear that in most cases our courts simply use the test of the reasonable per-
son.212 Unfortunately, some judgments of the Supreme Court of Appeal contributed to this
________________________
v Securitas of South Africa (Pty) Ltd 1998 4 SA 258 (W) 261–262. See also Knop v Johannesburg City Council
1995 2 SA 1 (A) 27 and Local Transitional Council of Delmas v Boshoff 2005 5 SA 514 (SCA) 522 cited infra
fn 211. See further Saayman v Visser 2008 5 SA 312 (SCA) 318 319; Chartaprops 16 (Pty) Ltd v Silberman 2009 1
SA 265 (SCA) 279; Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T) 398, approved of in
Joubert v Impala Platinum Ltd 1998 1 SA 463 (B) 473–476. In Hawekwa Youth Camp v Byrne 2010 6 SA 83
(SCA) 90 Brand JA strongly criticised the use of the concept “duty of care” in the defendant’s pleadings. He
correctly stated as follows: “As I see it, the quoted contentions are indicative of confusion between the delictual
elements of wrongfulness and negligence. This confusion in turn, so it seems, originated from a further confusion
between the concept of ‘a legal duty’, which is associated in our law with the element of wrongfulness, and the
concept of ‘a duty of care’ in English law, which is usually associated in that legal system with the element of
negligence . . . Warnings against this confusion and the fact that it may lead the unwary astray had been sounded by
this court on more than one occasion . . . Nonetheless, it again occurred in this case.” See also MTO Forestry (Pty)
Ltd v Swart NO 2017 5 SA 76 (SCA) para 14; Stedall v Aspeling 2018 2 SA 75 (SCA) paras 16 28; Brand 2014
Stell LR 455; Scott 2018 TSAR 917–918. Cf Price 2019 Acta Juridica 325 ff.
208 2008 6 SA 1 (SCA) 8–9; see further Chartaprops 16 (Pty) Ltd v Silberman 2009 1 SA 265 (SCA) 279.
209 1966 2 SA 428 (A) 430.
210 2006 3 SA 138 (SCA) 144.
211 The same condemnation of the use of the “duty-of-care” concept of English law in our law also featured in other
judgments of the SCA (see also Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality [2017]
3 All SA 382 (SCA) para 25). In Knop v Johannesburg City Council 1995 2 SA 1 (A) 27 the following was stated:
“For present purposes . . . the difference between the two elements of a duty of care is perhaps more aptly described
by Millner . . . : ‘The duty concept in negligence operates at two levels. At one level it is fact based, at another it is
policy-based. The fact-based duty of care forms part of the enquiry whether the defendant’s behaviour was
negligent in the circumstances. The whole enquiry is governed by the foreseeability test, and “duty of care” in this
sense is a convenient but dispensable concept . . . ’ In the phraseology of our law the ‘policy-based or notional duty
of care’ is more appropriately expressed as a ‘legal duty’, in consonance with the requirement of wrongfulness as
an element of delictual liability . . . ” In Local Transitional Council of Delmas v Boshoff 2005 5 SA 515 (SCA) 522
Brand JA declared in a similar vein that the “legal duty has nothing to do with fault (negligence). It is therefore not
to be confused with the duty of care in English law which is usually associated with negligence”; see also Country
Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214 (SCA) 222 (Neethling 2015
TSAR 191; Scott 2014 TSAR 834); Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) 90 (cited supra fn 207).
Harms JA also firmly disapproved of using the “duty-of-care” concept. In Steenkamp NO v Provincial Tender
Board, Eastern Cape 2006 3 SA 151 (SCA) 160 he stated that “constant use of the phrase ‘duty of care’ is
unfortunate. It is a term that in our legal setting is inherently misleading and its use may have led the trial court
somewhat astray”, and in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
2006 1 SA 461 (SCA) 468 he declared: “[I]n order to be liable for the loss of someone else, the act or omission of
the defendant must have been wrongful and negligent . . . But the fact that the act is negligent does not make it
wrongful . . . To elevate negligence to the determining factor confuses wrongfulness with negligence and leads to
the absorption of the English tort of negligence into our law, thereby distorting it.” (See further Neethling and
Potgieter 2007 THRHR 124; Neethling 2006 SALJ 206; Brand 2014 Stell LR 452; Scott 2015 TSAR 634–635.)
212 Eg Kruger v Coetzee 1966 2 SA 428 (A) 430 and many other judgments following the classic formulation of the
negligence test from that case; supra 165–166, also fns 69–72; Boberg Delict 274. See nevertheless Smit v Suid-
Afrikaanse Vervoerdienste 1984 1 SA 246 (C) and Leon Bekaert Southern Africa (Pty) Ltd v Rauties Transport
(Pty) Ltd 1984 1 SA 814 (W).
190 Law of Delict
confusion by an incorrect approach to the “duty of care” doctrine.213 Although these judgments
pay lip-service to the distinction between wrongfulness and negligence, negligence is in effect
regarded as a co-determinant for wrongfulness.214
In the process, the distinction in our law of delict between fault and wrongfulness is obscured.215
Where this happens, the theoretical foundations of our law of delict are undermined and legal
uncertainty is inevitable. It is to be hoped that the Supreme Court of Appeal will clear up the
confusion. If not, the two approaches to the “duty of care” concept – including the incorrect one
– will continue to be reflected in the decisions of the courts.216
4.9 Proof of negligence

In order to succeed in his claim, the onus is on the plaintiff to prove on a preponderance of
probability that the defendant was negligent.217 Where there is a statutory presumption of negli-
gence, the onus rests on the defendant to rebut the presumption of negligence in order to escape
liability.218
________________________
213 Eg Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A); Premier, Western Cape v Faircape
Property Developers (Pty) Ltd 2003 6 SA 13 (SCA); Road Accident Fund v Mtati 2005 6 SA 215 (SCA); cf Gouda
Boerdery BK v Transnet 2005 5 SA 490 (SCA) 499; for criticism see Neethling 2006 THRHR 511 ff, 1996 THRHR
682 ff; Neethling and Potgieter 2004 Obiter 482–486).
214 Road Accident Fund v Mtati 2005 6 SA 215 (SCA) may be used for illustration, where Farlam JA (227) declared:
“In our law, for the element of wrongfulness to be present, there has to be a breach of a legal duty (a term to be
preferred to the expression derived from English law ‘duty of care’, the use of which can lead to confusion . . . ).”
However, if Farlam JA’s use of the legal duty is scrutinised, it becomes clear that he involved the negligence test in
the wrongfulness inquiry. He incorrectly stressed that a legal duty had existed toward the victim (unborn child)
because the injury of the unborn child fell “well within the area of potential danger which a driver is required to
foresee and take precautions against” (228) – therefore an application of the negligence test to determine
wrongfulness (see Neethling 2006 THRHR 515–516).
215 See infra 193 ff; Simon’s Town Municipality v Dews 1993 1 SA 191 (A) 196; cf Longueira v Securitas of South
Africa (Pty) Ltd 1998 4 SA 258 (W) 261–262 (Neethling 1997 THRHR 730 ff).
216 See, eg, Masureik (t/a Lotus Corporation) v Welkom Municipality 1995 4 SA 745 (O) 757; Neethling 1996
THRHR 686–687, 1997 THRHR 730–731. See Faiga v Body Corporate of Dumbarton Oaks 1997 2 SA 651 (W)
for a mixture of the two approaches to wrongfulness and negligence caused by reliance on “duty of care”
(Neethling 1997 THRHR 730 ff).
217 See Ntsala v Mutual & Federal Insurance Co Ltd 1996 2 SA 184 (T) 190: “I am satisfied that the onus rests
throughout on the plaintiff to prove negligence on the part of the defendant. Once the plaintiff proves an occurrence
giving rise to an inference of negligence on the part of the defendant, the latter must produce evidence to the
contrary: he must tell the remainder of the story, or take a risk that judgment be given against him.” See further
Broude v McIntosh 1998 3 SA 60 (SCA) (patient claimed damages for something which had occurred during a
medical operation – understandable sympathy for a blameless patient must not result in inferring negligence more
readily than objectively justified by the evidence). However, note that in the case of liability of the media for def-
amation, the onus is on the defendant to prove lack of negligence on its side (National Media Ltd v Bogoshi 1998 4
SA 1196 (SCA) 1215). See also Beurain h/a Toptrans Transport v Regering van die Republiek van SA 2001 4 SA
921 (O) 928 ff on evaluating evidence of alleged negligence. If the respective accounts in the evidence of the
plaintiff and defendant about the accident in which the plainitff was injured are “mutually destructive”, absolution
of the instance is given because the onus is on the plaintiff to prove his case on a balance of probabilities
(Machewane v Road Accident Fund 2005 6 SA 72 (T)). See also Loubser and Midgley Delict 174–175.
218 Eg s 34(1) of the National Veld and Forest Fire Act 101 of 1998, which creates a presumption of negligence in
cases of veld fires (see Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA); Van der Eecken v Salvation Army
Property Co 2008 4 SA 28 (T) 37; see also Neethling 2011 SALJ 231–232); cf on s 23 of the repealed Forestry Act
72 of 1968, Clan Syndicate (Pty) Ltd v Peattie 1986 2 SA 791 (A); cf also on s 84 of the repealed Forest Act 122 of
1984, Minister of Water Affairs v Durr [2007] 1 All SA 337 (SCA) 341–342; Louw v Long 1990 3 SA 45 (E);
Prinsloo v Van der Linde 1997 6 BCLR 759 (CC); HL&H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty)
Ltd 2001 4 SA 814 (SCA). The last-mentioned judgment emphasised (820) that the presumption of negligence in
the plaintiff’s favour does not mean that the plaintiff does not bear the onus to prove the other delictual elements
such as conduct, damage and causation. Cf on the repealed Electricity Act 41 of 1987 s 26 (cf now s 25 of the
Electricity Regulation Act 4 of 2006; Eskom Holdings Ltd v Hendricks 2005 5 SA 503 (SCA), in which the court
held that Eskom had not rebutted the presumption of negligence; Malherbe v Eskom 2002 4 SA 497 (O) 504; infra
[continued ]
Note should be taken of the maxim res ipsa loquitur (the facts speak for themselves). This
phrase normally refers to a situation where the facts of the matter are such as to give rise to an
inference of negligent conduct219 and finds application “where the only known facts, relating to
negligence, consist of the occurrence itself ”.220 This phrase may thus be applied where, for
example, a motor car suddenly swerves to the wrong side of the road or where objects fall from
a building, because these events do not usually occur without accompanying negligence. It has
been pointed out that the maxim could rarely find application in cases based on alleged medical
negligence.221
It has been contended that res ipsa loquitur creates a presumption of negligence,222 but the
current legal position is223 that there is no shift in the onus of proof in such cases and that there is
________________________
458 fn 221. See Jamneck v Wagener 1993 2 SA 54 (C) on an onus of rebuttal on a defendant regarding the manner
in which he complied with his duty to maintain a fence.
219 Boberg Delict 377–378.
220 Sardi v Standard & General Insurance Co Ltd 1977 3 SA 776 (A) 778. See, however, Stacey v Kent 1992 4 SA 495
(C) where the plaintiff had sued the defendant for damage to his motor vehicle sustained during a collision with the
car driven by the defendant. It appeared that immediately before the accident, which happened at night on a wet
road, the defendant’s car had skidded across the road into plaintiff’s car, which was on the correct side of the road.
The court, inter alia, held that an inference of negligence could not be drawn from the mere fact that the driver
skidded, as that could happen to persons possessing reasonable skill, and that the plaintiff had failed to prove
negligent conduct on the part of the defendant.
221 This topic requires special attention (see Van Wyk v Lewis 1924 AD 438 462 and in general Van den Heever and
Carstens Medical Negligence passim; Wessels 2019 TSAR 4 ff; Carstens 1999 De Jure 19 ff, 2013 Obiter 548 ff,
2017 Obiter 613 ff). In Buthelezi v Ndaba 2013 5 SA 437 (SCA) para 16 Brand JA stated that the maxim “could
rarely, if ever, find application in cases based on alleged medical negligence”. This can probably be ascribed to the
conflicting views of experts in many of these cases. However, according to Ponnan JA in Goliath v MEC for
Health, Eastern Cape 2015 2 SA 97 (SCA) 103, Brand JA’s statement did not preclude the application of the
maxim in a case of medical malpractice. As to the role of res ipsa loquitur in determining whether the medical staff
involved was negligent, he confirmed that nothing about its application is intended to replace common sense. The
maxim need not be magnified into a legal rule. There is only one enquiry, namely whether the plaintiff, having
regard to all of the evidence in the case, has discharged the onus of proving, on a balance of probability, the
negligence averred against the defendant (103í104). Ponnan JA submitted that in light of the incorrect application
of the maxim especially in medical-negligence cases, the time may well have come to jettison it from our legal
lexicon. Be that as it may, in Khoza v MEC for Health and Social Development, Gauteng 2015 3 SA 266 (GJ) 278
the court opined that although the application of res ipsa loquitur may be an unruly horse in certain cases, in
suitable cases it may be appropriate. Similarly in Nzimande v MEC for Health, Gauteng 2015 6 SA 192 (GP)
196í197 Bertelsmann J, whilst recognising that the maxim can seldom, if ever, be applied in cases of medical
negligence, opined that it may well be considered in unusual situations, eg, where the evidence established a strong
prima facie case of grave negligence by both doctors and nurses alike. Although it is clear from the decisions in
Khoza, Goliath and Nzimande above that, as was eluded in Buthelezi above, the res ipsa loquitur maxim will hardly
if ever be applied in cases of medical negligence, it is submitted that it may well be considered in unusual situations
where the evidence establishes a strong prima facie case of grave negligence.
222 Boberg Delict 378.
223 Arthur v Bezuidenhout and Mieny 1962 2 SA 566 (A); Sardi v Standard & General Insurance Co Ltd 1977 3
SA 776 (A) 780; Leon Bekaert Southern Africa (Pty) Ltd v Rauties Transport (Pty) Ltd 1984 1 SA 814 (W);
Madyosi v SA Eagle Insurance Co Ltd 1989 3 SA 178 (C); Swanee’s Cartage (Pty) Ltd v SH Jansen & Sons 1988 1
PH J8 (E); Stacey v Kent 1995 3 SA 344 (E) 352. See further Macleod v Rens 1997 3 SA 1039 (E): here it was,
inter alia, stated that reasoning along the lines of res ipsa loquitur could lead to an unsatisfactory finding that the
defendant was negligent in some general or unspecific manner. It was thus preferable to endeavour to determine
whether or not the defendant was negligent in a particular manner. However, in casu the court accepted that the
known facts illustrated the defendant’s negligence. Moreover, he had failed to rebut the prima facie case of
negligence against him. See further Monteoli v Woolworths (Pty) Ltd 2000 4 SA 735 (W) where the court decided
that res ipsa loquitur only comes into operation if the evidence suggests a conclusion of negligence. The court
further decided that the mere presence of vegetable remains did not justify a conclusion of negligence – there had to
be evidence that the defendant had to take steps to prevent the presence of the remains and that he omitted to take
reasonable steps. In Mostert v Cape Town City Council 2001 1 SA 105 (SCA) the court decided that res ipsa
loquitur was not applicable because a pipe does not necessarily burst for reasons indicative of negligence. In Road
Accident Fund v Mehlomakulu 2009 5 SA 390 (E) 396 the court held that res ipsa loquitur was applicable where
two vehicles had collided on a curve and were left in the middle of the road at night.
192 Law of Delict
not even a prima facie case in favour of the plaintiff; the phrase is merely an argument on the
probabilities that a plaintiff, who may have little evidence at his disposal, may use in order to
convince the court that the defendant acted negligently. If the evidence showed that all the
crucial facts were exclusively within the defendant’s knowledge, the court is permitted to draw
an inference of negligence by applying the doctrine of res ipsa loquitur.224 But the defendant
may still submit evidence to show that the occurrence in question bears no relation to any
negligent conduct on his part.225 The maxim is also not applicable if the parties have agreed on
certain facts and no evidence has been led.226
4.10 Relevance of negligence

A theoretical issue which has not received attention in our courts is a matter which Van Rens-
burg227 describes as “relevance of negligence”.
The following example may be used to explain this issue: suppose that, travelling at night at an
excessive speed and without a light, A drives his motorcycle round a sharp corner and collides
with B, who is standing in the middle of the road. B dies. There is probably228 no doubt that A is
negligent: the reasonable person would not have ridden his motorcycle at night without a light at
an excessive speed; thus the reasonable person would have foreseen the possibility of damage
and taken steps to prevent it even though such steps would have been ineffective. But what if it
emerges that even if A had ridden at a reasonable speed, and even if his light had been on, he
would not have been able to avoid the collision with B and B would still have been killed?
Van Rensburg argues that in these circumstances A’s negligence is not related to B’s death,
because B would have been killed even if A had behaved according to the standard of the
reasonable person. Therefore A should not be held delictually liable, because there is no juridical
connection (relevance) between the violation of the norm by A (negligence) and the conse-
quence (B’s death).
________________________
224 Ntsele v MEC for Health, Gauteng Provincial Government [2013] 2 All SA 356 (GSJ) para 5; see Wessels 2019
TSAR 4.
225 See in general Pringle v Administrator Transvaal 1990 2 SA 379 (W); Bayer South Africa (Pty) Ltd v Viljoen 1990
2 SA 647 (A). In the latter case the court held that there may be good reasons to apply res ipsa loquitur where a
merchant or a manufacturer is cited as defendant on account of a defect in a product sold by it (see also infra
384 ff).
226 Jordaan v Bloemfontein Transitional Local Authority 2004 3 SA 371 (SCA). Two vehicles were involved in a
collision with each other, but also collided with the plaintiff’s stationary vehicle. No further evidence was presented
by any party. The court said that the following dictum in Galante v Dickinson 1950 2 SA 460 (A) 465 was relevant:
“[W]here the defendant was himself the driver of the vehicle the driving of which the plaintiff alleges was
negligent and caused the accident, the court is entitled, in the absence of evidence from the defendant, to select out
of two alternative explanations of the cause of the accident which are more or less equally open on the evidence,
that one which favours the plaintiff as opposed to the defendant.” In casu the court chose the most probable account
of the events and “select[ed] a conclusion which seems to be the more natural, or plausible, conclusion from
amongst several conceivable ones even though that conclusion is not the only reasonable one” (see also Govan v
Skidmore 1952 1 SA 732 (N) 734). In casu both defendants were jointly and severally liable towards the plaintiff.
In respect of the quoted dictum from Galante, the court held in De Maayer v Serebro; Serebro v Road Accident
Fund 2005 5 SA 588 (SCA) that it is only applicable if there are two alternative explanations that are more or less
equally acceptable on the evidence before the court. It does, eg, not apply if an obvious explanation of the cause of
the accident is present in favour of the defendant.
227 See in general Van Rensburg 1977 TSAR 101 ff; Boberg Delict 384–385.
228 But Van der Merwe and Olivier 148 declare that an actor cannot be blamed for negligence if he did not foresee a
consequence which the reasonable person would have foreseen but would not have guarded against. In other words,
the actor did not act differently from how the reasonable person would have acted. The same applies where the
reasonable person would in any event not have been able to prevent the result.
It should be noted that negligence which is usually seen as a (blameworthy) characteristic of an

act, cannot itself cause anything. It is only the act which causes the consequences (damage). To
classify an act as negligent is simply to pass a juridical judgement on the act, or, in other words,
to state that an act has a certain juridical characteristic (ie, negligence). Although negligence as
an aspect of an act can thus not in itself bring about a consequence, it may stand in a certain
juridical relationship to (be relevant in respect of) the consequence.229 Liability should not be
imposed where this relationship is absent.230
4.11 Distinction between wrongfulness and negligence

It is accepted that wrongfulness is determined by means of an objective reasonableness criter-
ion,231 while the test for negligence is that of the objective reasonable person. Therefore, an ob-
jective criterion of reasonableness is used in the determination of both wrongfulness and neg-
ligence.232 The question of what the essential difference between the test for wrongfulness and
the test for negligence is, arises. The following factors are important:233
(a) In the case of wrongfulness, the reasonableness of the defendant’s conduct is determined by
weighing the conflicting interests in the light of the legal convictions of the community (boni
mores); in other words, the inquiry is whether a legally recognised interest was infringed in an
unreasonable manner or one that is contra bonos mores; whereas in the case of negligence the
reasonable person’s conduct is determined with reference to the reasonable foreseeability234
and preventability235 of damage.236
________________________
229 Van Rensburg 1977 TSAR 107 ff.

230 Van Rensburg 1977 TSAR 107 ff argues that the problem of the relevance of negligence was at issue in Minister of
Police v Skosana 1977 1 SA 31 (A). Cf also Boberg Delict 398–399; Scott 1977 De Jure 186 ff. See generally
Minister of Correctional Services v Lee 2012 3 SA 617 (SCA) 624–625 where the notion of relevance of
negligence was arguably at issue. In casu, in order to determine whether the omission of the prison authorities had
caused the TB of the plaintiff, it had to be investigated whether reasonable conduct on their part would have
prevented the infection, and the court’s conclusion was that it would not have done so. Consequently there was no
juridical connection (relevance) between the authorities’ negligent conduct and the plaintiff’s infection. For this
reason, the prison authorities in Lee should not be liable for the plaintiff’s infection: even if they had they acted as a
reasonable person would have done, the plaintiff would still have been infected (but note that on appeal, the CC
nevertheless held the prison authorities liable: Lee v Minister of Correctional Services 2013 2 SA 144 (CC); see
Neethling 2013 TSAR 185–186); cf Crafford v SANRAL Ltd (215/2012) [2013] SASCA 8 para 7 (cf Brand in Visser
and Pretorius (eds) 48); Kritzinger v Steyn 1997 3 SA 686 (C) 702 (even if the defendant had been negligent he had
not “caused” the plaintiff’s accident); Welkom Municipality v Masureik and Herman t/a Lotus Corporation 1997 3
SA 363 (SCA) 373 (failure to warn of a danger had no “causal relevance” in this case); Seti v Multilateral Motor
Vehicle Accidents Fund 1999 1 SA 1035 (SCA) (although a more cautious driver would have avoided a collision
with a child in the circumstances, the plaintiff did not prove on a balance of probability that the driver’s negligent
conduct had caused the accident); HL&H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd 2001 4 SA
814 (SCA) 822–823: notwithstanding the presumption of negligence created by s 84 of the (repealed) Forest Act
122 of 1984 the defendant can escape liability, inter alia, by showing that if he had been negligent, such negligence
was not relevant to the damage suffered by the plaintiff. Cf further s 25 of the Electricity Regulation Act 4 of 2006.
231 This reasonableness criterion must be differentiated from the reasonableness of holding a person delictually liable,
which is used as a variation of the test of wrongfulness in several judgments of the SCA (see, eg, Trustees, Two
Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 144). See supra 93 ff for an in-depth
and critical discussion of that variation; cf Ahmed in Potgieter, Knobel and Jansen (eds) 55–57; Knobel 2020
THRHR 203 ff.
232 In this regard, Knobel in Potgieter, Knobel and Jansen (eds) 237 states that “there is general consensus that the test
for negligence is objective to the extent that the requisite criterion, the standard of care of the notional reasonable
person, is at least a partially normative one and is imposed in a more or less uniform manner upon all wrongdoers.
However, compared to the test for wrongfulness, the test for negligence is subjective in that the reasonable person
is placed in the position of the wrongdoer to take account of the facts known to the wrongdoer as well as the facts
that should have been known to him”. He concludes (fn 45) that “the negligence test is objective compared to the
test for intention, but subjective compared to the test for wrongfulness”. See also Knobel 2020 THRHR 203 ff.
233 See also Neethling 2002 SALJ 285–286; Neethling and Potgieter 2004 Obiter 484–485.
234 Whereas, until recently, it had been accepted that (reasonable) foreseeability can play a part in determining wrong-
fulness (see infra for case law supporting this view), the SCA, in a judgment by Leach JA, has taken the bold step
[continued ]
194 Law of Delict
________________________
in MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) para 18 in holding that foreseeability should not play a
role at all in determining wrongfulness. Leach JA stated: “It is potentially confusing to take foreseeability into
account as a factor common to the inquiry in regard to the presence of both wrongfulness and negligence. Such
confusion will have the effect of the two being conflated and lead to wrongfulness losing its important attribute as a
measure of control over liability. Accordingly, I think the time has now come to specifically recognise that
foreseeability of harm should not be taken into account in respect of the determination of wrongfulness, and that its
role may be safely confined to the rubrics of negligence and causation” (see also Stedall v Aspeling 2018 2 SA 75
(SCA) para 14 where Leach JA confirmed this view by stating “that foreseeability of harm, a critical requirement of
negligence, should find no place in the inquiry into wrongfulness”). This aspect of the judgments can be supported
because it tallies with the ex post facto evaluation of wrongfulness which excludes any utilisation of the ex ante
reasonable foreseeability of harm; and it also (subject to the CC possibly deciding otherwise: see Neethling and
Potgieter 2018 JJS 158í159) brings about certainty as to the role of foreseeability (see also Knobel 2020 THRHR
215–216 who regards Leach JA’s position as “particularly welcome” and deserving “the strongest support insofar
as it promotes a clear understanding of the difference between wrongfulness and negligence”; Knobel in Potgieter,
Knobel and Jansen (eds) 229í243 239í242 fns 54 74; Brand 2013 THRHR 64, 2014 Stell LR 457; Scott 2018 TSAR
914 ff). In view of the foregoing, Brand JA’s remark in Fourway Haulage SA (Pty) Ltd v SA National Roads Agency
Ltd 2009 2 SA 150 (SCA) 163 that “the issue of foreseeability should more appropriately be considered under the
rubric of legal causation and not as part of determining wrongfulness” was probably a pointer in the right direction.
This applies even more in light of his emphatic statement in Cape Empowerment Trust Limited v Fisher Hoffman
Sithole 2013 5 SA 183 (SCA) 197–198 that “foreseeability . . . [does] not play a role in establishing wrongfulness”
(cf also his judgment in Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA
214 (SCA) 225 (cf Scott 2014 TSAR 837) and cf Country Cloud Trading CC v MEC, Department of Infrastructure
Development, Gauteng 2015 1 SA 1 (CC) 14). Notwithstanding, some cases still regard foreseeability as a relevant
factor for determining wrongfulness (see, eg, Western Cape Department of Social Development v Barley 2019 3 SA
235 (SCA) para 33; Potgieter v University of Stellenbosch [2017] 1 All SA 282 (WCC) para148; but see Neethling
2019 TSAR 779–780). For earlier cases supporting the view that (reasonable) foreseeability can play a role in
determining wrongfulness, see, eg, Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 589; Telematrix (Pty) Ltd
t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468; Imvula Quality
Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) 418; Steenkamp NO v Provincial Tender Board, Eastern
Cape 2006 3 SA 151 (SCA) 159–160; Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 324;
Stewart v Botha 2008 6 SA 310 (SCA) 314; Harrington NO v Transnet (Ltd) 2007 2 SA 228 (C) 246; eBotswana
(Pty) Ltd v Sentech (Pty) Ltd 2013 6 SA 327 (GSJ); supra 41; see further Neethling 2006 SALJ 206–207 212. In
Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA) 499 Scott JA explained this as follows: “The courts have in
the past sometimes determined the issue of foreseeability as part of the inquiry into wrongfulness and, after finding
that there was a legal duty to act reasonably, proceeded to determine the second leg of the negligence inquiry
[preventability], the first (being foreseeability) having already been decided. If this approach is adopted, it is
important not to overlook the distinction between negligence and wrongfulness.” For this reason, declared Harms
JA in Steenkamp 159–160, the role of foreseeability differs depending upon whether it is considered in the context
of wrongfulness or negligence: “The role of foreseeability in the context of wrongfulness must be seen in its correct
perspective. It might, depending on the circumstances, be a factor that can be taken into account but it is not a
requirement of wrongfulness and it can never be decisive of the issue. Otherwise there would not have been any
reason to distinguish between wrongfulness and negligence and since foreseeability also plays a role in determining
legal causation, it would lead to the temptation to make liability dependent on the foreseeability of harm without
anything more, which would be undesirable.” In a similar vein, Loubser and Midgley Delict 189–190 conclude that
foreseeability could be seen as a shared attribute of wrongfulness and negligence. Whilst foreseeability is a factor
that may be relevant in the wrongfulness enquiry, it is one of two core factors one must consider in determining
negligence (the other being preventability). Foreseeability of harm is thus a requirement for negligence, but al-
though it may add weight to the wrongfulness decision in some cases, it might not be decisive in the latter regard
since other factors may override it. Van der Walt and Midgley Delict 119–120 add that the criterion of reasonable
foresight for the determination of the existence of a duty in the context of wrongfulness is in reality used as a
device to control the range of liability, which is more often than not founded on considerations of reason and
policy. In this regard, the foreseeability test is concerned with the question of whether, in the particular
circumstances, the interest of the plaintiff is in principle entitled to legal protection (cf also Loubser and Midgley
Delict 187–190). In light of the foregoing it should be emphasised that if it should be accepted in future that
foreseeability may be a factor in determining wrongfulness, care should be taken not to elevate it to the determining
factor for wrongfulness since this will confuse wrongfulness with negligence and “lead to the aborption of the
English law tort of negligence into our law, thereby distorting it” (see Telematrix 468). An example of such an
unfortunate application of foreseeability is the judgment of the Appeal Court in Government of the Republic of
South Africa v Basdeo 1996 1 SA 355 (A) (see Neethling 1996 THRHR 682 ff; cf Neethling and Potgieter 2007
THRHR 123–124).
235 Factors of importance when determining the preventability leg of the negligence test, such as the nature and extent
of the risk inherent in the conduct of the alleged wrongdoer, the gravity of the damage if the risk materialises and
[continued ]
(b) Wrongfulness is concerned with determining the legal reprehensibility of the conduct
(wrongfulness thus qualifies conduct); whereas negligence is usually seen as determining the
legal blameworthiness of the defendant for his wrongful conduct (negligence thus qualifies the
defendant or wrongdoer).237
(c) Because wrongfulness concerns the legal reprehensibility of a person’s conduct, such con-
duct is determined diagnostically (ex post facto, by looking back) in light of (or with knowledge
of or by taking into account) all the relevant facts and circumstances that are actually present
and all the consequences that actually ensued.238 Because negligence concerns the legal blame-
worthiness of the wrongdoer, it is determined prognostically (ex ante, by looking forward) with
reference to the position in which the defendant actually found himself:239 this is achieved by
placing the reasonable person in the position of the wrongdoer at the time of the commission of
the act and then taking cognisance only of those facts and circumstances which the wrongdoer
________________________
damage occurs, the cost and trouble of taking preventative steps and the utility of the alleged wrongdoer’s conduct
(see, eg, Ngubane v South African Transport Services 1991 1 SA 765 (A) 776; Eskom Holdings Ltd v Hendricks
2005 5 SA 503 (SCA) 509; Minister of Safety and Security v Mohofe 2007 4 SA 215 (SCA) 220; Crown Chickens
(Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) 123; Van der Walt and Midgley Delict 253 ff;
supra 180 ff) can also play a part when determining whether necessity as ground of justification was present
(Crown Chickens 123) and whether a legal duty to prevent harm exists in instances of omission (see, eg,
Mpongwana v Minister of Safety and Security 1999 2 SA 794 (C) 803; Administrateur, Transvaal v Van der Merwe
1994 4 SA 347 (A) 361–362; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust as amicus
curiae) 2003 1 SA 389 (SCA) 400; see further Neethling 2005 SALJ 585; supra 41 88). See in general Neethling
2006 SALJ 207–208. This measure of overlap between wrongfulness and negligence (see also the previous fn) is
acceptable in suitable instances as long as the essential functions of the two elements – in the case of wrongfulness
to indicate that a legally protected interest has been infringed in an unreasonable manner, and in the case of
negligence to indicate the blameworthiness of the alleged wrongdoer for such infringement – are not violated (see
Neethling and Potgieter 2007 THRHR 123–124; Neethling 2006 SALJ 123–124; contra Nugent 2006 SALJ 557 ff). In
light of these statements that clearly support the view that wrongfulness and negligence are indeed separate elements
of a delict, Leach JA’s remark in MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) 84 that this view has
been questioned in academic circles, referring to Neethling 2006 SALJ 2006 ff (which was subjected to criticism by
Nugent 2006 SALJ 557 ff and Brand 2014 Stell LR 451 ff), is unfounded. As is apparent from the cases cited above
and in the previous footnote, where it is appropriate (realistic, practical and convenient), a certain extent of overlap
should be accepted, provided that this can be done without negating the distinctive functions of wrongfulness and
negligence as separate elements of a delict (see also Loubser and Midgley Delict 199í200). To deny this reality
would amount to placing the various factors relevant to the establishment of wrongfulness, on the one hand, and
negligence, on the other, into watertight compartments where no particular factor may be applied with regard to
more than one of these elements. Ultimately, as far as is known, there is no evidence from academic circles,
including Neethling, questioning the separate and discrete existence of wrongfulness and negligence in our law, and
there is therefore no debate in this regard (see Neethling and Potgieter 2018 JJS 149í151).
236 Supra 176 ff 180 ff; see also Local Transitional Council of Delmas v Boshoff 2005 5 SA 514 (SCA) 521–522;
S v Robson; S v Hattingh 1991 3 SA 322 (W) 333; Moses v Minister of Safety and Security 2000 3 SA 106 (C) 113
(see Neethling 2001 THRHR 495); Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) 1055
1059–1060; Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) 874–875 (for a discussion, see
Neethling 2002 SALJ 283 ff); cf Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1054–1056; Gouda
Boerdery BK v Transnet 2005 5 SA 490 (SCA) 498–499. For judgments obscuring the difference between
wrongfulness and negligence, see, eg, Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 6 SA
13 (SCA) (see Neethling and Potgieter 2004 Obiter 482–486); Government of the Republic of South Africa v
Basdeo 1996 1 SA 355 (A) (see Neethling 1996 THRHR 682 ff); Eskom Holdings Ltd v Hendricks 2005 5 SA 503
(SCA); McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 902 ff; Road Accident Fund v Mtati 2005 6 SA 215
(SCA).
237 Van der Walt Studiehandleiding 40; cf also supra 167.
238 See supra 35 fn 5 for references.
239 In NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 5 SA 250 (CC) 274 Langa CJ stated this
distinction clearly: “Unlawfulness is an ex post facto inquiry into whether the action is compatible with the boni
mores” [and concerns] “the facts that are now available to the Court,” whereas the reasonable-person test of
negligence “is based on the facts known to the defendant at the time.” See on the last-mentioned test supra 164–
167. See further Scott 2007 TSAR 193; Knobel in Potgieter, Knobel and Jansen (eds) 236, 2020 THRHR 213; Fagan
Aquilian Liability 94–96.
196 Law of Delict
knew of, amplified by facts about which the reasonable person in his position would have
known, to determine what consequences would probably flow from his conduct (reasonable
foreseeability of damage) and whether such consequences could reasonably have been prevent-
ed.240 In short, one can say that wrongfulness is determined on the basis of actual facts or
realities, and negligence on the basis of probabilities.241
(d) Traditionally it was accepted that wrongfulness, for reasons of efficacy and logic, should be
determined before negligence. Nowadays, as said, the courts follow a more pragmatic approach
and accept that, depending on the circumstances, any of these elements can be dealt with first.242
(e) As is clear from the above, wrongfulness and negligence should not be telescoped into one
when examining the reasonableness of the defendant’s conduct. In Roux v Hattingh243 the court
pointed out that the element of wrongfulness introduces a measure of control: “It serves as a
‘long-stop’ to exclude liability in situations where most right minded people, including judges,
will regard the imposition of liability as untenable, despite the presence of all other elements of
Aquilian action”. The court warned against confusing wrongfulness and negligence because, if
the tests for these two delictual elements are telescoped into one, the function of wrongfulness as
a measure of control is lost completely.244
________________________
240 Cf Van Rensburg Normatiewe Voorsienbaarheid 19 fn 65; Neethling 1975 THRHR 301–303 where he discusses S
v Pretorius 1975 2 SA 85 (SWA); cf also De Jager 1976 TSAR 112–113. Van der Merwe and Olivier 131 state that
the danger of confusion between wrongfulness and negligence is huge because the objective reasonableness of
conduct can easily be equated with the conduct of the reasonable person. However, since the reasonable person is
not perfect, his conduct does not always comply with the standard of objective reasonableness. If the actor’s
conduct fails to comply with the latter standard where the reasonable person would also have failed, he did not act
negligently, despite acting wrongfully. See in general Boberg Delict 38–40; cf Knobel 2020 THRHR 214.
241 This distinction between wrongfulness and negligence is unfortunately not always upheld by case law. As shown
(see supra 108 117–118), this is particularly apparent from the application in case law of the reasonable-person (ex
ante) test to determine wrongfulness in instances of private defence and necessity as grounds of justification. In this
way the difference between the two elements is blurred and a door is opened for legal uncertainty. This is also
apparent from Langa CJ’s remark in NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 5 SA
250 (CC) 274 that determining wrongfulness functions “on the basis that the act in question was done either
negligently or intentionally”, because an opposite approach “would defeat the purpose of the lawfulness inquiry as
the boni mores would never condemn a blameless act”. This approach is, furthermore, clearly in conflict with the
determination of wrongfulness by the boni mores in the instance of the interdict since fault is not required for the
interdict (see infra 308; Neethling 2008 SALJ 44; Knobel in Potgieter, Knobel and Jansen (eds) 236).
242 See as to the traditional approach, eg, Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) 364 (for
criticism, see Brand 2014 Stell LR 459–460 who argues that it “is simply not so”, as was suggested in Van der
Merwe, that “in the absence of wrongfulness there is juridically – or in principle – no room for a finding of
negligence”). See also Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1054–1055. In contra-
distinction, in First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319 (SCA) 320–321 Nugent JA put
the pragmatic approach as follows: “[W]hatever sequence doctrinal logic dictates, the human mind is sufficiently
flexible to be capable of enquiring into each element separately, in any order, with appropriate assumptions being
made in relation to the others, and that is often done in practice to avoid prolonging litigation, for though the
elements are naturally interrelated, each involves a distinct enquiry”. See for a full discussion supra 155–157.
243 2012 6 SA 428 (SCA) 439–440; cf also Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA
183 (SCA) 193–194.
244 The following statement in Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) 1054–1055 illustrates this
consequence clearly: “Any attempt to decide whether a particular omission will potentially ground liability by
merely measuring it against the standard of conduct to be expected of a reasonable person will fail for a number of
reasons. First, that test is sequentially inappropriate . . . Secondly, the application of the classic test for culpa to the
solution of the anterior question is calculated to produce consequences which are likely to be too burdensome for
society to aquiesce in shouldering them. The hypothetical reasonable person (diligens paterfamilias) would have to
be credited with a reasonable sense of ethical or moral responsibility and a propensity to act in accordance with it.
To use his or her likely reaction to the situation as the yardstick by which to measure whether or not action is re-
quired by law would be tantamount to converting every reasonably perceived ethical or moral obligation to act into
an obligation or duty imposed by law. But that is the very equation against which the law has thus far set its face.”
Cf also Deacon v Planet Fitness Holdings (Pty) Ltd 2016 2 SA 236 (GP) paras 19–21 where Louw J emphasised
the necessity to recognise the conceptual differences between wrongfulness and negligence, referring in this regard
to Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) para 12 and Telematrix (Pty) Ltd t/a
[continued ]
The fact that the reasonableness of conduct can play a role with regard to both wrongfulness and
negligence does not mean that these two elements of the law of delict are necessarily telescoped
into one, thus leading to confusion between them.245 This distinction may be explained by
reference to the judgment in S v Goliath.246 A’s life was threatened by B and under B’s compul-
sion and out of fear of B, he assisted B in killing C. The court held that compulsion may be a
defence to the killing of a human being, but was not prepared to express an opinion on the
question of whether compulsion is a ground of justification or a ground excluding fault. This
approach is correct, because a decision as to whether compulsion will exclude wrongfulness or
fault will depend entirely on the relevant facts of each case. If it appears that, in view of all the
facts which came to light after the incident, A’s life would have been endangered if he did not
assist B, necessity as a ground of justification is present; in other words, A’s conduct (the
protection of his own life) was reasonable in terms of the boni mores (legal convictions of the
community) and thus lawful. Should it later appear that A’s life was not in danger (for example
because B threatened him with a fake weapon) conduct in necessity is absent and the causing of
C’s death is unreasonable and thus wrongful.247 The question of whether compulsion may
nevertheless exclude fault (negligence in this instance) then arises. Suppose that because of the
compulsion, A believed that his life would have been endangered if he did not assist B in killing
C (putative necessity). In determining whether A was negligent, the reasonable person must be
placed in A’s position at the time of the commission of the act and, taking into account A’s
(incomplete) knowledge and insight, supplemented by the knowledge and insight which he
should reasonably have had, one must decide on the probabilities how the reasonable person
would have acted. If the reasonable person’s conduct would have differed from A’s, A’s conduct
was negligent.248 But if the reasonable person would – in the case of putative necessity – not
have acted differently from A, there is no negligence and A will not be liable.249 The conclusion
is that because of the differences between the test for wrongfulness and the test for negligence, a
defendant may be said to have acted unreasonably for the purposes of wrongfulness but
reasonably (like the reasonable person) for the purposes of negligence.250
________________________
Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) paras 12 13 (see Scott 2016
TSAR 761 ff for a critical discussion).
245 See also Neethling and Potgieter 2014 SALJ 251; Neethling and Potgieter 2014 THRHR 121–122; contra Brand
2013 THRHR 65–67.
246 1972 3 SA 1 (A) (cf supra 121). Cf Knobel in Potgieter, Knobel and Jansen (eds) 242 fn 74. See also Neethling
1996 THRHR 682 ff for a discussion of Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A) in
this regard.
247 See in general supra 117 ff on necessity.
248 Where it was apparent that B’s weapon was an imitation, the reasonable person would not have feared for his life
and he would have avoided assisting in the killing of C by taking evasive action (like fleeing or simply refusing to
help). Cf S v Bailey 1982 3 SA 772 (A).
249 This will be the case where the reasonable person would also have feared for his life and despite the probability that
C could be killed (reasonable foreseeability of damage), would still have assisted B because he (the reasonable
person) would have believed that he was protecting his own life (because of the relative importance of the purpose
served – the probable protection of one’s own life – the reasonable person would not have attempted to prevent the
probable killing of C by taking evasive action; it can thus be said that damage could not reasonably have been
prevented: cf supra 180).
250 See further Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) 874–875 where the court refers to this
example with approval. In this case negligence was absent because the defendant had reasonably believed that he
was acting in private defence, while in fact only putative private defence was present (see supra 110; see further
Neethling 2002 SALJ 283–285; however, see Fagan 2005 SALJ 97–99). In S v Dougherty 2003 4 SA 229
(W) 239–240 the court differentiates carefully between the differing methods by which wrongfulness and negli-
gence are determined. The conclusion set out in the text above is also evident from the cases where the so-called
doctrine of sudden emergency finds application. This “doctrine” implies (see supra 185–186) that where a wrong-
doer makes an error of judgment in a situation of sudden emergency his conduct will not be seen as negligent
where the reasonable person would have made a similar error. See also Van der Merwe and Olivier 133 for an
example explaining the difference between wrongfulness and negligence.
198 Law of Delict
Finally, the distinction between wrongfulness and negligence may be illustrated with reference
to liability for an omission. An omission is unreasonable and thus wrongful where, according to
the boni mores test, a legal duty rested on the defendant to act positively in order to prevent
harm and he neglected to comply (fully) with such a duty. However, where a defendant did
attempt (albeit unsuccessfully) to comply with such a duty and his attempt coincided with what
the reasonable person would have done, his (unreasonable) wrongful act is not accompanied by
(unreasonable) negligent conduct (damage could not reasonably be prevented) and he will
escape liability.251 The case of Minister of Forestry v Quathlamba (Pty) Ltd252 may be cited as
an example. Fire broke out on X’s land without any fault on his part. Despite his attempts to
extinguish the fire, it spread to Y’s land and caused damage. The court held that there is a legal
duty on a landowner to control a fire on land under his control. Because the fire caused damage
to Y, it may be said that X did not fully comply with his duty and his conduct (omission) was
thus wrongful (unreasonable). The court253 nevertheless correctly held that X acted in accord-
ance with the standard of the reasonable person in attempting to extinguish the fire and that he
was thus not liable. Despite the wrongfulness of his conduct in not complying fully with his
legal duty, he escaped liability because of the absence of negligence.
5 Contributory fault
5.1 Introduction
While fault refers to the defendant’s conduct, contributory fault254 refers to the conduct of the
plaintiff. Contributory fault is primarily relevant in limiting the extent of the defendant’s liability
and is thus of considerable importance in legal practice. Contributory fault is currently regulated
by the Apportionment of Damages Act 34 of 1956. For a proper understanding of the relevant
provisions, it is essential to examine the common law position as it existed before its enactment.
5.2 The common law position

The general rule in Roman-Dutch law was that fault on the part of the plaintiff precluded him
from claiming damages from the defendant who was also to blame for causing the damage. Thus
if two people were at fault, neither could claim damages unless one was more to blame than the
other.255
________________________
251 In Minister van Polisie v Ewels 1975 3 SA 590 (A) 596–597 the court explained that in the case of wrongfulness
one is not concerned with the usual negligence of the bonus paterfamilias (reasonable person), but with the
question of whether there was a legal duty to act reasonably. Cf also Regal v African Superslate (Pty) Ltd 1963 1
SA 102 (A) 112 (Knobel 2020 THRHR 211 214). It should be noted that where a defendant takes (unsuccessful)
positive steps to prevent damage in terms of a legal duty resting on him, one is not really dealing with an omission
but with a commissio (supra 32–33; see also Moses v Minister of Safety and Security 2000 3 SA 106 (C) 114). But,
whatever the case may be, the causing of damage is, in any event, wrongful in such a situation.
252 1973 3 SA 69 (A) (supra 68 fn 173; Neethling and Van Rensburg 1973 THRHR 427 ff). See also Neethling 1997
THRHR 730 ff for a discussion of Faiga v Body Corporate of Dumbarton Oaks 1997 2 SA 651 (W) in this regard.
253 88–89.
254 See in general Loubser and Midgley Delict 529 ff; Van der Merwe and Olivier 156 ff; Van der Walt and Midgley
Delict 332 ff; Boberg Delict 652 ff; Potgieter, Steynberg and Floyd Damages 301–306; Klopper Damages 356 ff.
For an excellent comparative and critical exposition of the apportionment of damages in the case of contributory
fault, see Botha Verdeling van Skadedragingslas passim; cf also Ahmed Contributory Intent as a Defence Limiting
or Excluding Delictual Liability passim.
255 Voet 9 2 7 mentions the case of a barber who is shaving a slave’s beard in the vicinity of a games arena. One of the
players hits the ball too hard and it strikes the hand of the barber who cuts the slave’s throat. Voet assumes that the
slave is also to blame, but considers that the barber is more culpable and should therefore be held liable. Cf further
Boberg Delict 661.
The doctrine of contributory negligence as applied initially in our courts was taken over from
English law. This rule developed in England from the judgment in the well-known case of
Davies v Mann.256 The plaintiff had negligently left his haltered donkey in the road. The defend-
ant, driving his wagon, collided with the donkey. There was negligence on both sides. In terms
of the “all-or-nothing” rule which was in force in England at that time, the plaintiff would have
been unable to claim damages from the defendant. But the court adopted a new approach. Since
the defendant had the “last opportunity” to avoid the collision, the plaintiff ’s negligence was
ignored and the defendant incurred full liability for the damage. In 1945, the English legislature
intervened, however, and replaced this rule with the principle of proportional division of damag-
es in accordance with each party’s degree of fault.
Our courts initially accepted – as in English law – that if the negligence of two persons contrib-
uted to the causing of a particular result, and one or both of them suffered damage as a conse-
quence thereof, neither party could institute an action unless the negligence of one of them was
the decisive cause of the accident. In that event, the negligence of the other party was completely
ignored and he could succeed in full with his claim. In order to determine whose negligence was
the decisive cause of the accident, the enquiry was usually – as in English law – directed at de-
termining who had the last opportunity of avoiding the accident. The so-called last opportunity
rule did not work well in practice and in time resulted in such an untenable situation that the
legislature was compelled to intervene.257
Moreover, contributory negligence by a deceased person was no defence to an action instituted
by his dependants, unless the negligence of the deceased was the decisive cause of his death (ie,
he had the last opportunity to avoid the accident).258 If it was not possible to determine whose
negligence was the decisive cause, the dependants could succeed, notwithstanding the fact that
the deceased himself would not have succeeded if he had only been injured. This position has
now been changed by the Apportionment of Damages Amendment Act 58 of 1971.259 Although
a Bill has been prepared to replace the Apportionment of Damages Act, it has not yet been
enacted by Parliament.260
5.3 The Apportionment of Damages Act 34 of 1956

The Apportionment of Damages Act 34 of 1956 has made considerable changes in the common
law position concerning contributory fault (in the form of contributory negligence) on the part of
the plaintiff. The provisions of subsections (1)(a), (1)(b) and (3) of section 1 are of particular
importance.
5.3.1 Provisions and meaning of section 1(1)(a) and (b)

These provisions read as follows:
Section 1(1)(a):
Where any person suffers damage which is caused partly by his own fault and partly by the fault of any
other person, a claim in respect of that damage shall not be defeated by reason of the fault of the claim-
ant but the damages recoverable in respect thereof shall be reduced by the court to such extent as the
court may deem just and equitable having regard to the degree in which the claimant was at fault in rela-
tion to the damage.
________________________
256 (1842) 10 M & W 546; cf Scott Huldigingsbundel Paul van Warmelo 170–172.
258 Union Government v Lee 1927 AD 202.
259 Infra 322 ff.
260 See Ahmed 2014 (4) PELJ 1533 ff 1555 ff on the Apportionment of Loss Bill, 2003, not yet promulgated, in terms
of which the defence of “contributory intent” as a defence limiting liability will be applicable. Ahmed idem 1535–
1553 says that this seems also to be the trend in other countries.
200 Law of Delict
Section 1(1)(b):
Damage shall for the purpose of paragraph (a) be regarded as having been caused by a person’s fault
notwithstanding the fact that another person had an opportunity of avoiding the consequences thereof
and negligently failed to do so.
The effect of these provisions is to abolish the “all-or-nothing” principle of common law and to
allow the court to apportion the damage of each party in accordance with their relative degrees
of fault. The interpretation and application of these provisions have resulted in much litigation.
Most problems, however, have been resolved and there is now a reasonable measure of
clarity.
5.3.2 Meaning of “fault”

In general, the term “fault” encompasses both intent and negligence.261 One of the questions in
respect of the Act is thus whether a defendant who has intentionally caused damage to the
plaintiff may raise a defence of contributory negligence on the part of the plaintiff. At common
law, the position was that such a defence could not be sustained where a defendant acted inten-
tionally262 and it must be accepted that the statutory provisions under discussion do not change
this principle.263 Consequently, a defendant who has intentionally caused harm to the plaintiff
will not be able to ask for a reduction in damages because of contributory negligence.
Another question is whether the section under discussion applies in the case of the so-called
defence of contributory intent. A distinction must be made between two situations: the first situ-
ation is where a plaintiff intentionally contributed towards his own loss while the defendant was
merely negligent. In such circumstances, the law is clear: the plaintiff forfeits his claim.264 The
second situation is where the defendant caused the loss intentionally and the plaintiff’s un-
reasonable conduct causing loss was also intentional. In light of, inter alia, the wording used in
the long title of the Act and the heading of section 1 (where reference is made only to negli-
gence), as well as 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.265 The Appellate Division266 has not found it necessary to decide this
issue but has on occasion expressed its doubt about whether a defence of contributory intent may
be raised in terms of the Act.267 However, in Greater Johannesburg Transitional Metropolitan
________________________
261 Supra 155 ff.

262 Cf Pierce v Hau Mon 1944 AD 175 198; Minister van Wet en Orde v Ntsane 1993 1 SA 560 (A) 570; cf Transnet
Ltd t/a Metro Rail v Tshabalala [2006] 2 All SA 583 (SCA).
263 Wapnick v Durban City Garage 1984 2 SA 414 (D) 418. See Ahmed Contributory Intent 95–97. McKerron Delict
297 states: “This would constitute such a serious departure from the rule of common law that an intention to injure
negatives all defences, that it can hardly be supposed to have been the intention of the legislature”; cf Scott
Huldigingsbundel Paul van Warmelo 176.
264 Wapnick v Durban City Garage 1984 2 SA 414 (D) 418; Columbus Joint Venture v ABSA Bank Ltd 2000 2 SA 491
(W) 512–513; see nevertheless the discussion of Neethling and Potgieter 1994 THRHR 135 of General Accident
Versekeringsmaatskappy SA Bpk v Uijs 1993 4 SA 228 (A); see also Ahmed Contributory Intent 98–99; infra 208.
265 Van der Walt and Midgley Delict 333; Loubser and Midgley Delict 532–533; Klopper Damages 357; Boberg
Delict 656; contra Van der Merwe and Olivier 167 ff. In Minister van Wet en Orde v Ntsane 1993 1 SA 560 (A)
569 the Appellate Division left open the question of the meaning of fault in s 1(1)(a) but assumed in favour of the
appellant that “fault” includes intention and negligence.
266 Netherlands Insurance Co of SA Ltd v Van der Vyver 1968 1 SA 412 (A) 422; Mabaso v Felix 1981 3 SA 865 (A)
876–877; see also Wapnick v Durban City Garage 1984 2 SA 414 (D) 418; see infra 210–211 for a discussion of
Van der Vyver; also Ahmed Contributory Intent 99 ff.
267 Cf Minister van Wet en Orde v Ntsane 1993 1 SA 560 (A) 570. However, if one accepts, as has been argued earlier
(supra 167), that intent includes negligence and that an intentional act probably amounts to at least a 100%
deviation from the norm of the reasonable person, the Apportionment of Damages Act may be applied to all such
cases (see Neethling 1985 THRHR 250; Neethling and Potgieter 1992 THRHR 660–661). For a different approach
see Scott Huldigingsbundel Paul van Warmelo 177; cf also Van der Walt and Midgley Delict 333.
Council v ABSA Bank Ltd t/a Volkskas Bank268 it was held that a defence of contributory
intention could succeed where both the plaintiff and the defendant acted with intention.269
5.3.3 Meaning of “apportionment of damages”

While the term “apportionment of damages” (Afrikaans: “verdeling van skadevergoeding”)
appears in the short title of the Act, it is not possible literally to apportion damages. Damages
cannot be “divided” between a plaintiff and a defendant; the process concerns a reduction of
damages received by the plaintiff because of his own fault (negligence) in respect of the damage
he sustained.270
5.3.4 Criteria for the “apportionment of damages”

The criterion our courts use to apportion the damages is the reasonable person test for negli-
gence.271 The implication is that, as section 1(1)(a) applies only to damage caused partly by
the fault of the plaintiff and partly by that of the defendant, the Act cannot apply where liability
does not depend on the defendant’s fault. Thus the Act does not apply in the case of strict
liability.272
The basic principles (or approaches)273 regarding apportionment of damages on the basis of the
test for negligence are illustrated in the cases of South British Insurance Co Ltd v Smit274 and
Jones v Santam Bpk.275
The following conclusions may be drawn from these two cases: insofar as the objective reason-
able person test applies, one is dealing with the deviation from the standard of care which
applies to all persons in the community. The Act clearly implies that in the case of the plaintiff
as well as the defendant one is concerned with a negligent act or omission that is causally linked
to the damage. This causal nexus is determined according to the usual test276 and not, as was
previously the case, in terms of the so-called last opportunity rule. Moreover, the court does not
attempt to deal with degrees of causation. In other words, the court does not take into account,
for example, that the defendant’s conduct has actually contributed to the harm to a greater extent
________________________
268 1997 2 SA 691 (W); see Ahmed Contributory Intent 100–102; infra 212 for a discussion.
269 See Ahmed Contributory Intent 103 ff, 2014 (4) PELJ 1522 ff for a detailed discussion of arguments supporting
and opposing the view that “fault” in the Act includes intent; cf Potgieter 1998 THRHR 734.
270 Cf Midgley 2006 Annual Survey 341–342.
271 Supra 164. See, eg, Kriel v Premier, Vrystaat 2003 5 SA 67 (O). The plaintiff was injured due to constructions on a
building site. The court held according to the reasonable person test that the principle that a pedestrian walking on a
sidewalk need not study the ground in front of her for obstacles or potholes, also applied to members of public
walking on a site designated for the use of pedestrians (71–72). The plaintiff therefore did not have contributory
negligence in respect of her damage. In Brauns v Shoprite Checkers (Pty) Ltd 2004 6 SA 211 (E) the plaintiff slip-
ped in water on a shop floor and was injured. The court found that she did not have contributory negligence and
affirmed the following dictum in Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W) 200: “The
reasonable man in a supermarket is not expected to be looking down at the ground at every step he takes. He is en-
titled, generally speaking, to accept that the floor is kept in a clean and safe condition, and that he may direct his
attention to the shelves, to look for the goods he has come to buy, rather than to look out for possible hazards on the
floor. And when, as in the present case, he has made a choice of goods it seems to me that he is entitled to turn his
attention to the shopping trolley in which he wishes to load them, without necessarily having to examine the con-
dition of the floor between himself and the trolley.” In Coetzee v Fourie 2004 6 SA 485 (SCA) 490 the court held
that the plaintiff who was shot by the defendant when the latter was approached by the plaintiff at night, was not
contributorily negligent because the defendant’s firearm was not visible and therefore the plaintiff did not act
unreasonably. For criticism of this case see Neethling and Potgieter 2004 TSAR 607. See also Harrington v
Transnet Ltd t/a Metrorail 2010 2 SA 479 (SCA) 488–489.
272 Van der Walt and Midgley Delict 333; see infra 433 ff on liability without fault.
273 Loubser and Midgley Delict 530–532.
274 1962 3 SA 826 (A).
275 1965 2 SA 542 (A); see Boberg Delict 657 on the effect of these two cases.
202 Law of Delict
than the plaintiff ’s conduct. If the court is satisfied that the negligent acts or omissions of both
parties are causally connected to the damage, the question of causation is resolved.277
The method of determining who should bear what portion of the damage involves a comparison
of the respective degrees of negligence of the parties involved.278 Each party’s degree of negli-
gence is determined by expressing its deviation from the standard of the reasonable person as a
percentage; the two percentages are then compared in order to allocate responsibility in respect
of the damage in question.
Prior to the decision in Jones NO v Santam Bpk279 the Appellate Division accepted that once the
plaintiff ’s degree of negligence had been established, it was unnecessary to inquire into the
extent to which the defendant’s conduct had deviated from the standard of the reasonable per-
son. If the court had established, for example, that the plaintiff had been 40% negligent (his
conduct deviated 40% from the standard of the reasonable person), it was thought to follow
automatically that the defendant was 60% negligent.280 However, in the Jones case281 a com-
pletely new approach to determining the degree of fault shown by the plaintiff and defendant
was followed. According to this decision, the fact that the plaintiff was, for example, 30%
negligent, does not automatically imply that the defendant was 70% negligent. In order to estab-
lish the respective degrees of negligence, the carefulness of the conduct of each party must be
measured separately against the standard of the reasonable person. It is, for example, possible
that the plaintiff ’s conduct deviated 70% from this norm while the defendant’s conduct deviated
80%. In this case, the ratio between the plaintiff ’s and the defendant’s degree of fault is 70:80
(7:8 (15)). The plaintiff ’s degree of fault is thus 7/15 × 100/1 = 46,7%, and the defendant’s 8/15 ×
100/1 = 53,3% (or 100 – 46,7 = 53,3). The plaintiff thus receives compensation for only 53,3%
of the damage he has suffered because he is 46,7% to blame for his loss.
Despite the reasonably clear guidelines in the Jones case, it would appear from the decision in
AA Mutual Insurance Association Ltd v Nomeka that the Appellate Division confirmed the
approach followed in the Smit case, ie, that the degree of the plaintiff ’s fault automatically
determines the degree of fault of the defendant.282 How should the decision in the Nomeka case
be interpreted? There are commentators who argue that the decision was given per incuriam
________________________
277 In this respect contributory fault and factual causation must be distinguished clearly (see infra 216).
278 See Jacobs v Chairman, Governing Body, Rhodes High School 2011 1 SA 160 (WCC) 180.
279 1965 2 SA 542 (A).
280 This approach was formulated as follows in South British Insurance Co Ltd v Smit 1962 3 SA 826 (A) 835:
“Postulating a single defendant, the determination of the degree in which the claimant was at fault in relation to the
damage will also automatically determine the degree in which the defendant was at fault in relation to the damage.”
281 1965 2 SA 542 (A). Williamson JA stated (555): “I have come to the conclusion that the last sentence of this
quotation [supra fn 267] does not make clear my view as to how the respective degrees of fault of the different
parties must be assessed. A determination of the degree of fault on the part of the claimant does not by itself
‘automatically determine the degree in which the defendant was at fault in relation to the damage’; the Court must
first also determine in how far the defendant’s acts or omissions, causally linked with the damage in issue, deviated
from the norm of the bonus paterfamilias. It is on the basis of comparison between the respective degrees of
negligence of the two parties . . . that the court can determine in how far the fault or negligence of each combined
with the other to bring about the damage in issue.” See also Minister of Safety and Security v Venter 2011 2 SACR
67 (SCA) 76–77 (cf Scott 2012 THRHR 301–303 for a critical discussion).
282 1976 3 SA 45 (A). The following dictum (55) necessitates this conclusion: “If the determination of the degree in
which the plaintiff was at fault in relation to the damage will also automatically determine the degree in which the
defendant was at fault in relation to the damage, I fail to see why it should be necessary to plead and claim an
apportionment . . . One cannot disentangle the two. The one automatically involves the other and the court must ne-
cessarily apportion.” This view seems to a certain extent to be supported by General Accident Versekerings-
maatskappy SA Bpk v Uijs 1993 4 SA 228 (A) where Van Heerden JA remarked (235) that in the case of a collision
between two vehicles, s 1(1)(a) normally applies if the collision was caused by the negligence of both drivers and
both suffered damage as a result thereof. In such a case, the determination of the degree of causal negligence of
driver A would in many cases, but not always (Jones NO v Santam Bpk 1965 2 SA 542 (A) 555), provide the
answer to the degree of driver B’s fault. See for discussions Neethling and Potgieter 1994 THRHR 131; Scott 1995
TSAR 127.
because the court did not even consider the contrary opinion in the Jones case.283 Although this
point is arguable, there are many cases decided subsequent to the Nomeka case in which it would
appear that the courts, by implication, followed the Nomeka case.284 The view that Nomeka does
not represent the current legal position therefore appears to be unfounded. It would seem that the
Jones case, as well as the Nomeka case, represents our positive law and that it should be possible
to consider contributory negligence in terms of both approaches.285 However, this is an unsatis-
factory situation and, when an opportunity arises, the Supreme Court of Appeal should, in the
interests of legal certainty, reject the one approach and confirm the other. It is submitted that the
approach in the Jones case is preferable and that it should be confirmed.286
Another view of this issue is that the decisions in Nomeka and Jones can be reconciled. It may
thus be argued287 that it is hardly likely that the approach in Nomeka in fact suggests that estab-
lishing the percentage of negligence of the plaintiff is done in total isolation (in other words,
without any reference whatsoever to the degree of negligence of the defendant), after which the
plaintiff ’s negligence is without further consideration automatically expressed as the numerical
remainder of the defendant’s negligence. What probably occurs in these cases is that the courts
determine the degree of negligence of each party on the evidence and then through a mental
process (without even referring to it in detail as happened in Jones), ascertain each one’s devia-
tion from the standard of the reasonable person, the result of which is then without further ado
given as a percentage.
A further issue that is relevant is the view of the Appellate Division in General Accident
Versekeringsmaatskappy SA Bpk v Uijs288 that the extent of a plaintiff ’s fault is merely one of a
number of factors which the court may take into account in order to reduce the plaintiff ’s dam-
ages in a just and equitable manner. Although it may appear from a first reading of sec-
tion 1(1)(a) that the plaintiff ’s fault is the only or exclusive factor which may be taken into
account in deciding on a reduction of his damages, the approach by Van Heerden JA may be
justified in the light of criteria such as fairness and equity. In order to really achieve fairness and
________________________
283 Boberg Delict 715; Neethling 1976 THRHR 412.

284 Eg Santam Versekeringsmaatskappy Bpk v Letlojane 1982 3 SA 318 (A) (division of 65:35); Minister of Transport
NO v Du Toit 2007 1 SA 322 (SCA) (division of 80:20); Manuel v SA Eagle Insurance Co Ltd 1982 4 SA 352 (C)
(division of 75:25); Swart v Santam Versekeringsmaatskappy Bpk 1986 2 SA 377 (T) (division of 70:30); Smith v
SA Eagle Insurance Co Ltd 1986 2 SA 314 (SE) (division of 75:25); Maphosa v Wilke 1990 3 SA 789 (T) (division
of 65:35); cf also Transnet t/a Metrorail v Witter 2008 6 SA 549 (SCA) 557–558; Guardian National Insurance Co
Ltd v Engelbrecht 1989 4 SA 908 (T) 911; Rabie v Kimberley Munisipaliteit 1991 4 SA 243 (NC) 261 262
(Neethling and Potgieter 1992 TSAR 323–325); Guardian National Insurance Co Ltd v Saal 1993 2 SA 161 (C);
Squire v Sasol Mynbou (Edms) Bpk 1993 3 SA 298 (T); Butters v Cape Town Municipality 1993 3 SA 521 (C);
Payne v Minister of Transport 1995 4 SA 153 (C); Goss v Crookes 1998 2 SA 946 (N). However, Dendy 1993
SALJ 639 is probably correct in stating that at least some of the cases listed and apparently based on Nomeka
“assessed separately the degrees of negligence of the respective parties, compared the deviations and expressed
them as a ratio of two figures totalling 100 – an application of the Jones approach, not of that in Nomeka”. See also
Neethling and Potgieter 1994 THRHR 134.
285 See also Burchell Delict 112–113 who is of the opinion that the Nomeka approach still represents good law.
286 In Union National South British Insurance Co Ltd v Vitoria 1982 1 SA 444 (A) 462–463 (cf also 461) the
Appellate Division without referring to its decision in the Nomeka case, apparently confirmed the position in the
Jones case by stating that in each case the extent of the fault of the plaintiff, as well as the extent of the fault of the
negligent defendant, have to be determined. Whether this decision impliedly overruled the Nomeka case is
debatable: Dendy 1993 SALJ 182, 1993 SALJ 638–639, 1995 SALJ 370–371; contra Neethling, Potgieter and Scott
1993 SALJ 627–628; Neethling and Potgieter 1994 THRHR 132; see also the cases listed supra fn 284.
287 See Neethling and Potgieter 1994 THRHR 134; see also Scott 1995 TSAR 129–130; Neethling, Potgieter and Scott
Workbook 98–99; Dendy 1993 SALJ 639; supra fn 114.
288 1993 4 SA 228 (A).
204 Law of Delict
equity, not just the extent of the plaintiff ’s fault, but also other relevant factors should be con-
sidered.289 290
The Supreme Court of Appeal has held that it is impermissible to reduce a defendant’s liability
to a minor child by setting off, against a claim brought by its parent on the child’s behalf, the
alleged personal liability of the parent arising from the latter’s contributory negligence.291
A final point for consideration is the extent to which negligence on the part of a third party may
be taken into account in a delictual action. In general, it may not be raised as a defence to a
delictual claim292 unless the third party is the servant of the plaintiff and acted within the scope
of his employment.293
5.3.5 Onus of proof
Where the defendant raises the defence of contributory negligence on the part of the plaintiff, he
has to prove such a defence on a balance of probability.294 The defendant usually pleads con-
tributory negligence as an alternative to the complete denial of negligence. However, the Appel-
late Division has held that contributory negligence may be taken into account even where the
defendant has not expressly pleaded such a defence.295
5.3.6 The concept of contributory “negligence”
It is terminologically and theoretically incorrect to speak of contributory negligence. Strictly
speaking, an act can only be negligent where it is also wrongful and it is clear that a person
cannot act wrongfully in respect of himself.296 “Contributory negligence” is thus the result of an
approach used to determine the extent of the defendant’s liability by means of a method which is
analogous to that for determining negligence;297 technically, however, the method does not
pertain to negligence stricto sensu because wrongfulness cannot play a part.
________________________
289 See, however, the criticism of Scott 1995 TSAR 132 that the introduction of reasonableness and fairness as criteria
for the apportionment of damages in terms of s 1(1)(a) may render it almost impossible to have fixed guidelines in
particular situations; it may thus be very difficult for a practitioner to give his clients trustworthy advice.
290 The contributory negligence of children gave rise to many problems. Some of these are discussed in connection
with negligence (supra 171 ff especially fn 114). Cf also Boberg Delict 660 who comments as follows on
Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A): “Not only must a child’s capacity for fault be
determined with due regard to his youthful inadequacies of self-control and judgment . . . but, when it comes to
apportionment, the child’s degree of fault will be less than that of the adult who fails to take the extra care required
of those who imperil children. And so children, their frailties acknowledged in relation to both capacity and
apportionment, may continue to have the fact of their negligence decided objectively without harsh results. The law
has ceased to put old heads on young shoulders.”
291 This rule relating to contributory negligence was based by Leach JA in Road Accident Fund v Myhill NO 2013 5
SA 426 (SCA) paras 28–29 on his finding that “a debtor liable to a minor child, when sued by the child’s custodian
parent, may not set off against its liability to the child any amount that it may personally be owed by the custodian
parent”. This authority compelled the defendant municipality in Van Vuuren v Ethekwini Municipality 2018 1 SA
189 (SCA) para 34 to accept that a mother’s contributory negligence could not apply in respect of the claims
brought by her on behalf of her injured child, that is, in her representative capacity. On the other hand, as pointed
out by Navsa ADP, the parent’s contributory negligence, if any, could come into operation as far as her personal
claims in respect of medical expenses and loss of erarnings were concerned.
292 If the acts of the defendant and the third party were such that they are jointly responsible (infra 319), then both are
liable in solidum (Barry v SAR 1941 AD 168).
293 McKerron Delict 89 ff; infra 444 ff.
294 Schoeman v Unie en SWA Versekeringsmaatskappy Bpk 1989 4 SA 721 (C).
295 AA Mutual Insurance Association Ltd v Nomeka 1976 3 SA 45 (A); see also Ndaba v Purchase 1991 3 SA 640 (N).
296 See Columbus Joint Venture v ABSA Bank Ltd 2000 2 SA 491 (W) 513; Van der Walt and Midgley Delict 333.
297 See Boberg Delict 659 who says: “In general, the test for contributory negligence is the same as that for negligence:
Did the plaintiff behave as a reasonable man would have done in the circumstances? However, the concept of a
duty of care is inappropriate here: there is no duty to others to protect oneself against injury. The negligent plaintiff
is penalized, not because he has infringed the defendant’s rights, but because of his personal unworthiness to
receive full compensation.”
5.3.7 Fault in respect of “damage” or “damage-causing event”

An important question is whether section 1(1)(a) is also applicable where the plaintiff was not
negligent in respect of the damage-causing event itself (for example a motor vehicle accident)
but where his negligence increased the damage because, for example, he did not wear a seat belt
and in the process sustained more injuries or more serious injuries than would otherwise have
been the case.
In King v Pearl Insurance Co Ltd 298 Colman J ruled on exception that the plaintiff ’s failure to
wear a crash helmet while driving a scooter which was involved in a collision with a motor car,
did not constitute contributory negligence. The judge based his decision mainly on the argument
that only negligence with regard to the damage-causing event, as opposed to negligence with
regard to the damage itself, is taken into consideration for the purposes of the Act. However, this
approach was criticised in Bowkers Park Komga Cooperative Ltd v SAR and H.299 Addleson J
considered the opinion held by Colman J to be “both artificial and unnecessary on the plain
wording of section 1(1)(a)”. In his opinion, the section leaves no doubt that contributory negli-
gence relates to fault with regard to damage and not fault with regard to the damage-causing
event. In principle, therefore, it is always possible that a plaintiff ’s contributory negligence with
regard to his damage can lead to a reduction in damages, even if he cannot be held responsible
for the actual damage-causing event.
This approach was accepted by the Appellate Division in Union National South British Insur-
ance Co Ltd v Vitoria.300 According to the court, the failure to wear a seat belt constitutes
contributory negligence.301 The court was nevertheless of the opinion that the contributory
negligence of a plaintiff who deliberately fails to wear a seat belt will be greater than that of a
plaintiff who bona fide forgets to wear it.302
In such a case it must be emphasised that the contributory negligence of the plaintiff is only
relevant insofar as it has led to an increase in the damage. For this reason, section 1(1)(a) only
applies in respect of that damage for which the plaintiff is indeed also responsible. This is
illustrated by the following example: X suffers a loss of R10 000 due to a motor accident which
was caused entirely by Y’s negligence. It is proved that X’s damage would have amounted to
only R6 000 had there not been contributory negligence on his part due to his failure to wear a
seat belt. (X’s neglect therefore contributed to the R4 000 increase in the damage.) It therefore
follows that Y alone is responsible for the R6 000. Due to X’s negligence, the remaining R4 000
is subject to apportionment in accordance with section 1(1)(a).303
________________________
298 1970 1 SA 462 (W).

299 1980 1 SA 91 (E).
300 1982 1 SA 444 (A); cf Visser 1982 THRHR 81 ff.
301 The judgment of the court a quo (1980 4 SA 406 (T)) was that an omission to buckle up does not constitute
negligence and thus it does not constitute contributory negligence. This is criticised by Neethling and Potgieter
1981 THRHR 204. However, Sonnekus in Potgieter, Knobel and Jansen (eds) 459 465–467 (cf also 2015 TSAR 804
ff) criticises the appeal court’s finding that the failure to use a safety belt was negligent in view of the fact that, at
that point in time, less than 12% of vehicle users used a safety belt and its use was not yet compulsory. He
maintains that it is unjustifiable “to blame the perceived tortfeasor for his conduct if in reality the vast majority of
average reasonable persons in his control group would have conducted themselves in exactly the same manner had
they been in his shoes”.
302 See 462–463 for the court’s reasoning in this regard.
303 This approach was followed in Vorster v AA Mutual Insurance Association Ltd 1982 1 SA 145 (T). The plaintiff
(a passenger) was not wearing a seat belt when she was injured in an accident. Her contributory negligence was
taken into account by the court in the apportionment of damages. The plaintiff sustained R1 000 more damage than
would otherwise have been the case. She was 20% negligent in this regard. Her compensation was accordingly
reduced by R200 (20% of R1 000). See further General Accident Versekeringsmaatskappy SA Bpk v Uijs 1993 4
SA 228 (A) 232–235 where the plaintiff’s contributory negligence was apparently taken into account in respect of
his damage in toto and not merely in respect of the increase of damage. The plaintiff was a passenger in a motor
vehicle and sustained serious head injuries when the vehicle was involved in a collision. The collision could be
attributed exclusively to the negligence of the driver (Stander) of the vehicle in which the plaintiff was a passenger.
[continued ]
206 Law of Delict
5.3.8 The provisions and meaning of section 1(3)

Section 1(3) reads as follows:
For the purpose of this section ‘fault’ includes any act or omission which would, but for the provision of
this section, have given rise to the defence of contributory negligence.
The provisions contained in this subsection are obscure; on a literal interpretation, they appear to
suggest that the Act has abolished the defence of contributory negligence. In view of the Act as a
whole, this is clearly not the case; the legislature apparently confused contributory negligence
with the last opportunity rule which has indeed been abolished. The words “but for the provision
of this section” are therefore meaningless.
Moreover, the Act erroneously construes fault as an act or omission. Fault is, as explained
above, generally the legal blameworthiness of a person for his wrongful conduct. It is incorrect
to view fault as a type of conduct. An examination of conduct alone is an insufficient basis on
which to determine the fault of the actor. In addition to an act or omission, other relevant factors
must also be taken into account in determining fault.
5.3.9 The dependant’s action

Initially the Act was silent on the effect of the contributory negligence of a breadwinner on an
action instituted by his dependants. The common law position remained unchanged until 1971
and the last opportunity rule was still applied in these cases. This position was changed by an
amendment of the Apportionment of Damages Act in 1971.304
5.3.10 Joint wrongdoers

The question in this respect is how damages should be apportioned between a contributorily
negligent plaintiff and joint wrongdoers.305 Two approaches are discernable in our law. In San-
tam Insurance Co Ltd v Vorster306 it was held that each joint wrongdoer’s negligence (blame-
worthiness) had to be determined separately for the purpose of apportionment.307 By contrast,
________________________
The trial court held that the plaintiff was guilty of contributory negligence because he deliberately failed (in spite of
a warning) to buckle up and that his damages should be reduced by a third. Both parties appealed against this
finding. The plaintiff (respondent) obviously argued in favour of a lower percentage (25) and the defendant
(appellant) in favour of a higher percentage (50) than the 33,3%. Van Heerden JA held that the trial court’s
calculation of the plaintiff’s degree of contributory negligence did not materially deviate from his own estimation
and therefore dismissed both the appeal and the cross-appeal. The court (235) stated that in a case such as the
present, reasonableness and fairness require taking account of the fact that the passenger on whose behalf a claim
was instituted did not contribute to the occurrence of the collision, and that his fault was different in nature from
that of the negligent driver. See further Scott 1995 TSAR 130–131; Ahmed 2014 (4) PELJ 1557 1559–1560.
304 34 of 1956. The applicable principles are discussed in the chapter on joint wrongdoers (infra 319).
305 Cf Loubser and Midgley Delict 539; Klopper Damages 365–367.
306 1973 4 SA 764 (A) (cf the judgment in the court a quo in Vorster v Santam Insurance Co Ltd 1973 2 SA 186 (W)).
The plaintiff was seriously injured when the motor car in which he had been a passenger and another motor car
were involved in an accident in the course of an informal racing event. On getting into the car before the accident
took place, the plaintiff had been fully aware that a so-called “dicing” competition was going to take place. The
court a quo found that the two drivers had been equally to blame for the accident. The plaintiff’s claim was
countered by, inter alia, the defences of volenti non fit iniuria and contributory negligence. The court held that the
first-mentioned defence could not succeed and that an apportionment had to take place in accordance with the
plaintiff’s contributory negligence. Because both drivers and the plaintiff had been “in it together”, they were
“equally to blame for the accident that crippled the plaintiff”. Accordingly the two drivers were each liable for a
third of the plaintiff’s damages.
307 In Vorster v Santam Insurance Co Ltd 1973 2 SA 186 (W) 191 195 Marais J expressed this as follows: “I have
come to the conclusion that, all things considered, the negligence of the two drivers . . . is equally to blame for the
collision . . . As regards the blameworthiness of the plaintiff . . . [h]e was ‘in it’ with the other two, and it would be
fair if he shared the blame equally with them . . . In the result, the determination is that the three participants . . . are
equally to blame for the accident that crippled the plaintiff. The defendants are each liable to make good to the
plaintiff one third of his damages.” This approach was confirmed on appeal (Santam Insurance Co Ltd v Vorster
1973 4 SA 764 (A)) and is also apparent from Jones NO v Santam Bpk 1965 2 SA 542 (A) 555 where Williams JA
[continued ]
the court in Harrington NO v Transnet (Ltd)308 decided that the plaintiff’s negligence had to be
measured against the joint blameworthiness of the joint wrongdoers viewed as a unity (“the
totality of the tortious conduct of the wrongdoers”).309 Use of the unity approach in Harrington
cannot be faulted, because the two joint wrongdoers had been woven virtually into one310 and
could therefore be viewed as a unity for the purpose of apportionment. However, this does not
mean that the unity approach must in principle always apply in our law. One wonders whether
the approach in Vorster, where each joint wrongdoer’s negligence was determined separately,
would not in general produce a more equitable result than the somewhat mechanical “unity
approach”.311
5.3.11 Breach of contract

An interesting question is whether the Apportionment of Damages Act applies to damages for
loss suffered as a result of breach of contract. This question was, in line with two provincial de-
cisions,312 answered in the negative by the Supreme Court of Appeal in Thoroughbred Breeders’
Association of South Africa v Price Waterhouse.313 The plaintiff sued his auditor for breach of
contract. His complaint was that, during the routine annual audit, the auditor failed to discover
that the plaintiff’s financial director was systematically stealing from him. The auditor’s defence
was, inter alia, that the plaintiff was himself negligent in his control of the financial director and
that, due to his contributory negligence, his claim was subject to reduction in terms of the
Apportionment of Damages Act. The essence of the court’s decision314 was that the Act was
historically not intended to apply to claims for breach of contract, but only to amend the law of
delict. Nienaber JA formulated this as follows:315
The intention of the legislature as to the scope and range of the Act must be determined in the light of the
situation prevailing at the time it was enacted. At that time the concepts of both contributory negligence
and ‘last opportunity’316 were unknown to a claim based on breach of contract. That being so, it seems to
________________________
declared: “It is on the basis of comparison between the respective degrees of negligence of the two parties (or
several parties if there be more than one claimant or defendant) that the Court can determine in how far the fault or
negligence of each combined with the other to bring about the damage in issue” (emphasis added).
308 2007 2 SA 228 (C). The plaintiffs, two security guards on cable patrol along a suburban railway line, were struck at
night by an unscheduled train. They instituted a claim against, inter alia, the train driver and Metrorail (that was in
control of the railway line) as joint wrongdoers. A defence was raised that the plaintiffs had been contributorily
negligent. The court found that both the train driver and Metrorail had been negligent (the latter by neglecting to
inform the plainiffs’ employer, a security company, that on that specific night an unscheduled train would move
through the area where the plaintiffs had been on patrol), and that the plaintiffs had been contributorily negligent.
See also CA v GS [2016] 4 All SA 386 (WCC) paras 81–83; Neethling 2016 TSAR 805.
309 251 ff 256. This approach is subject to two qualifications formulated in the following words by Blignault J (256):
“The first qualification . . . is that the causative potency of the conduct of each of the parties (as opposed to their
fault) would not play an immediate role in the comparison. The second qualification . . . is to recognise that the
entire process remains subject to considerations of justice and equity. Such considerations, I may point out, may
become particularly relevant when the number of the wrongdoers involved or the nature of the conduct in question,
would, on a mechanistic application of the formula, give rise to inequitable results.” See also CA v GS [2016] 4 All
SA 386 (WCC) paras 81–83.
310 Metrorail was not only directly liable due to its own negligence, but was also vicariously liable for the negligent
conduct of its employee, the train driver. Metrorail was therefore both directly and vicariously liable for the same
damage.
311 For a complete discussion see Neethling and Potgieter 2008 TSAR 354 ff.
312 Barclays Bank DCO v Straw 1965 2 SA 93 (O); OK Bazaars (1929) Ltd v Stern and Ekermans 1976 2 SA 521
(C) 28 ff.
313 2001 4 SA 551 (SCA); contra the court a quo 1999 4 SA 968 (W) 1024 ff. See also Loubser and Midgley Delict
534–555.
314 589–591 (per Nienaber JA); 597–604 (per Marais JA, Farlam JA, Brand AJA).
315 591.
316 See supra 199.
208 Law of Delict
me to follow that the Act was designed to address and correct a particular mischief that was identified as
such within the law of delict; that it was confined to that particular mischief; and that the corresponding
problem that might arise within the law of contract was never within the legislature’s compass. The
express wording used in the Act does not fit a contractual claim.
However, a strong case can be argued in favour of intervention by the legislature to provide for
cases, like the one under discussion, where the defendant’s breach of contract is described in
terms of his negligence, while the plaintiff by his own negligence contributed to the damage.317
5.3.12 Legal causation

Contributory negligence and legal causation must be distinguished carefully.318 In this respect it
is important to note that not every negligent act of a plaintiff related to his damage is relevant for
the purpose of section 1(1)(a) of the Act. According to Gibson v Berkowitz,319 a clear distinction
must be made between a plaintiff ’s negligent conduct before the damage-causing event and such
conduct after the event. Claassen J opined that only the former conduct is relevant for the pur-
poses of apportionment of damages, while the latter must be taken into account when deter-
mining legal causation320 (which may, of course, exclude a defendant’s liability for harmful con-
sequences that are too remote and in this way reduce the plaintiff ’s damage and therefore his
damages).321 This distinction appears to be both theoretically sound and practically useful, and
may therefore be supported.322
5.4 Voluntary assumption of risk and contributory fault (intent)

5.4.1 Introduction
In the discussion of wrongfulness above,323 reference was made to the meaning of consent to
injury and consent to the risk of injury as a ground of justification (volenti non fit iniuria) which
negates wrongfulness. Such consent is sometimes referred to as voluntary assumption of risk.
Voluntary assumption of risk, however, also has a different meaning. In respect of contributory
fault, voluntary assumption of risk is a ground that cancels fault324 and is not a ground of
________________________
317 See Thoroughbred Breeders’ Association of South Africa v Price Waterhouse 2001 4 SA 551 (SCA) para 72 (per
Nienaber JA); cf 604 (per Marais JA, Farlam JA, Brand AJA); see especially Olivier JA’s thoroughly researched
and well argued dissenting minority judgment 605 ff; see further Lötz 1996 TSAR 172; Havenga 2001 THRHR
125–126; Lubbe and Van der Merwe 1999 Stell LR 142 ff.
318 Cf, eg, OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA 688 (SCA) 699–700. See Ahmed
2014 (4) PELJ 1553 ff.
319 1996 4 SA 1029 (W) 1051–1052; see further Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 627–628.
320 See infra 230.
321 He said (1051–1052): “A close study of these cases [on apportionment of damages] has convinced me that they
intend to convey the notion that the plaintiff’s ‘fault’ which may help to cause both the harmful event and the
subsequent nature and extent of his damages, is restricted to ‘pre-accident’ or ‘pre-tortious’ fault. Put differently: it
is the plaintiff’s negligent conduct prior to the commission of the defendants’ delict which is judged as being
relevant for purposes of apportioning the plaintiff’s damages, and not his negligent conduct after the commission of
the delict. Thus, as I understand the law, a plaintiff’s negligent conduct subsequent to the harmful event which
caused his damages, cannot be the subject of apportionment in terms of the Apportionment of Damages Act . . . A
distinction should therefore be drawn between the parties’ negligence prior to the harmful event and any relevant
negligence after the harmful event. In the case of a plaintiff, his pre-delictual negligence will trigger the application
of contributory negligence to reduce his damages. The plaintiff’s post-delictual negligence will, however, affect the
principles of legal causation (or remoteness) which may reduce his damages. Post delictor, the plaintiff’s negligent
conduct may be regarded as an actus novus interveniens which breaks the chain of causality sufficiently to absolve
the defendants from liability for the plaintiff’s damages.”
322 See also Neethling and Potgieter 1997 THRHR 552.
323 Supra 133–134.
324 Van der Walt and Midgley Delict 207 338; see in general Van der Merwe and Olivier 167 ff; Boberg Delict 740–
743; Ahmed 2014 SALJ 88 ff.
justification. Assumption of risk in this sense implies that the requirements for a ground of justi-
fication are absent.
When the plaintiff or injured party is well aware of the danger but nevertheless wilfully exposes
himself to it, he acts intentionally in respect of the prejudice he suffers, and blame in the form of
contributory intent attaches to him. He directs his will towards the achievement of a particular
result, ie, his own prejudice. However, to fulfil the other requirement of intent, ie, consciousness
of wrongfulness, his conduct must also be “consciously unreasonable”, ie, not directed towards
the achievement of a lawful goal. In other words, if, for example, a person wilfully exposes
himself to personal danger in order to save a baby’s life, he does not act “consciously unreason-
ably” and blame in the form of contributory intent will not attach to him.325
Where a plaintiff does act with contributory intent, the fault of the defendant (in the form of neg-
ligence) is eliminated by the contributory intent of the plaintiff. Although the defendant is also at
fault, he is not held liable towards the plaintiff because the plaintiff himself acts intentionally.
The contributory intent (at least dolus eventualis) or assumption of risk by the plaintiff therefore
cancels the defendant’s fault. (In what follows, the term “contributory intent” is used in this
sense.)
As has been mentioned,326 there is little authority for the so-called defence of contributory intent
in our law where the defendant acted negligently, and it would appear that our courts are not pre-
pared to recognise it in terms of the Apportionment of Damages Act. Nevertheless, the principle
that the conscious taking of an unreasonable risk by the plaintiff cancels fault on the part of the
defendant, is a principle of common law327 and functions independently of the Act.328
5.4.2 Relevant cases

A number of cases may be considered against the background of the above principles.329
In Lampert v Hefer 330 the plaintiff took her seat as a passenger in the sidecar of the defendant’s
motorcycle, well aware that the defendant was so intoxicated that he was incapable of maintain-
ing proper control of it. An accident occurred in which the plaintiff sustained injuries and the
defendant was killed. The plaintiff claimed damages from the defendant’s estate.
The provisions of the 1956 Act (which at the time of this case had not been promulgated) would
today materially affect the legal position in such circumstances if the plaintiff were guilty of
contributory negligence (in which event her remedy would not be completely excluded), or if
she consented to the injury (a ground of justification) or acted with contributory intent which
cancels fault (in which cases she has no action).331 Consent as a ground of justification was
________________________
325 Because a person cannot act wrongfully in respect of himself, he cannot, strictly speaking, have consciousness of
wrongfulness in respect of the harm he causes himself. Hence the reference to “consciously unreasonable conduct”
(see Van der Merwe and Olivier 167–168).
326 Supra 200.
327 In Wapnick v Durban City Garage 1984 2 SA 414 (D) 418 the court made it clear that “a plaintiff who has inten-
tionally contributed to his own damage cannot claim his own damage or part of it from a defendant on the ground
of the latter's negligent conduct”; see also Columbus Joint Venture v ABSA Bank Ltd 2000 2 SA 491 (W) 512–513;
Stern v Podbrey 1947 1 SA 350 (C); Van der Walt and Midgley Delict 338; Ahmed Contributory Intent 55–56.
328 Where, however, the defendant acted intentionally and the plaintiff intentionally contributed towards his loss, the
position is not clear. Scott Huldigingsbundel Paul van Warmelo 177 submits the following: “Where both the
plaintiff and the defendant acted intentionally in respect of the former’s damage, no direct authority could be
traced, but it is submitted that an extended application of the civil-law doctrine of culpae compensatio as well as
the principles of the English common law will come to the defendant’s aid, additional to the application of the
normal rules of statute interpretation, in denying the plaintiff an action.” Cf, however, Greater Johannesburg
Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank 1997 2 SA 591 (W); supra 200; infra 212.
329 See in general Ahmed Contributory Intent 58 ff.
330 1955 2 SA 507 (A); see Van der Merwe and Olivier 170–172; Ahmed Contributory Intent 58–61.
331 Because wrongfulness is absent or because the plaintiff’s contributory intent cancels the defendant’s negligence.
210 Law of Delict
absent since consent to serious bodily injury would have been contra bonos mores.332 For our
purposes, it is important only to determine whether there was contributory intent. This must be
answered in the affirmative, because the plaintiff, well aware of the danger and the possibility of
injury, nevertheless decided to expose herself to the risk. The remedy should therefore not be
available to her, as was in fact held by the court. However, other aspects of this decision require
consideration.
For the purpose of his judgment, Fagan JA discussed voluntary assumption of risk (contributory
intent) and contributory negligence, and stated that these two defences may overlap. He based
this conclusion on the great confusion which exists among writers and in our case law on the
concept “voluntary assumption of risk”. However, where there is an actual assumption of risk,
the injured party chooses freely, with full knowledge of the danger, to run the risk – which is not
a negligent but an intentional exposure to risk. In this sense there is thus no overlap with con-
tributory negligence. Where, however, the injured party should have been aware of the danger,
but was not, there is clearly no assumption of risk, but only contributory negligence. The two
defences can therefore be distinguished clearly, provided the concept of risk assumption is
properly formulated.333
In Netherlands Insurance Co of SA Ltd v Van der Vyver334 the Appellate Division had another
opportunity to direct its attention to two forms of volenti non fit iniuria, ie, consent to the risk of
injury (a ground of justification) and contributory intent or voluntary assumption of the risk
(which cancels fault). In this case, O was suspected of infidelity by his wife. She hired a private
detective, V, to spy on her husband. V followed O in his car to a lonely spot in the veld. O had a
woman with him in his car. When V approached O’s car, O started to drive off. V leapt onto the
bonnet in order to obscure O’s view and to make him stop. O accelerated, however, and began to
swerve from side to side, clearly with the object of dislodging V, who was clinging on for dear
life. Six kilometres further, O succeeded in dislodging V. V sustained injuries and claimed com-
pensation from the insurer of O’s motor car. In the court a quo, Boshoff J found that O was 50%
negligent and V 50% negligent. V, therefore, obtained only half his damages.
On appeal it was held that O had acted with intent and not only negligently. The court rejected
O’s defence that V had consented (as a ground of justification) to the risk of injury.335 The court
________________________
332 See Ahmed Contributory Intent 59.

333 In Lampert v Hefer the question could have arisen whether the injured party should have realised that Hefer was
unable to control the motorcycle properly; if this was the case, she was guilty of contributory negligence. This was
clearly not the court’s finding of fact although Fagan JA’s remarks rather cloud the issue: “[S]he must have or
should have appreciated that risk.” Either she did appreciate it (“must have”), and then there is assumption of risk,
or she ought to have done so, and then there is contributory negligence. Which of the two it is will naturally make a
considerable difference to the plaintiff. We must therefore differ from Fagan JA, where he gave an example
(513–514) of how the two defences (assumption of risk and contributory negligence) may overlap. Schreiner JA
was nearer to the truth (508) where he distinguished clearly between “voluntary assumption of risk” and “contri-
butory negligence”. However, although he inclined in that direction, he did not regard assumption of risk as a sep-
arate defence over and above consent (ground of justification). Although it makes little difference in practice (both
are absolute defences), it is in our opinion theoretically more correct to draw the distinction. See also Santam
Insurance Co Ltd v Vorster 1973 4 SA 764 (A) 778 (infra fn 338) where Ogilvie-Thompson CJ said that the
respective criteria for the defence of volenti and for that of contributory negligence are in theory radically different.
Unfortunately he then adds that the two defences may “no doubt sometimes overlap”.
334 1968 1 SA 412 (A); see also 1967 2 SA 476 (T); Van der Merwe and Olivier 172 ff; Ahmed Contributory Intent
62–65.
335 In order to succeed with this defence, the requirements are that V must have realised the nature and extent of the
risk and must have voluntarily consented to it. The court found that, when he leapt onto the bonnet, V neither knew
nor thought that O would continue driving – V assumed subjectively that O would stop. V was therefore unaware
of the danger which O’s conduct posed to him (V). There could thus have been no question of consent on V’s part.
The court declared that, although V had been aware of the risk, this would still not have meant that he had
consented to it. Yet, even if V had consented, his consent to the risk of serious physical injury would have been
invalid as being contra bonos mores (supra 133). This was in fact the position in Maartens v Pope 1992 4 SA 883
(N), a case involving the actio de pauperie. The plaintiff was a plumber who had been asked to call at the
[continued ]
then considered O’s defence that V had contributory intent. Referring to this defence, Van Blerk
JA declared:336 “No authority from our case law was cited for the statement that contributory
intent is an independent defence, nor was reference made to any of the authoritative sources of
our law recognising it.” The Appellate Division was therefore not prepared in principle to
acknowledge such a defence.
However, there are good arguments for supporting the recognition of contributory intent as a
defence. While contributory intent is not found as a defence eo nomine in our authorities, the
concept has been developed in law in order to explain a form of the well-known defence of
volenti non fit iniuria. Thus a defendant who relies on contributory intent relies, to use different
terminology, on a form of volenti non fit iniuria. This particular form is present in a case where
the defendant escapes liability because the plaintiff has exposed himself voluntarily and “inten-
tionally” to the risk of injury. In the Lampert case, the plaintiff failed precisely because of the
defence of volenti non fit iniuria. On closer analysis, her claim failed because of her contributory
intent. Therefore, contributory intent is in fact recognised as a defence in our case law, albeit not
eo nomine. In the sources of our law, the defence is nothing other than the well-known volenti
non fit iniuria.337 The Appellate Division’s denial of the existence of the defence is therefore
open to debate.338
In Malherbe v Eskom339 the court accepted the plaintiff’s contributory intent (in the form of
voluntary assumption of risk) as a ground cancelling the defendant’s negligence. The plaintiff, a
qualified engineer, worked on the defendant’s electrical distribution board knowing that a
damaged circuit breaker had been removed by an employee of the defendant. A short circuit
took place, and the plaintiff was injured. Van Rooyen AJ said:340
In my view, the answer lies therein that a plaintiff, who was aware of the fact that a defendant negli-
gently caused a dangerous situation or brought about a risk of harm, voluntarily accepted such a risk by
committing an act and consequently suffered damage, cannot rely on a delict committed by the defend-
ant. As a result of a rule of fairness that arose and was accepted by the courts, the negligence of the de-
fendant was extinguished by such voluntary acceptance of the risk.
________________________
defendant’s house to inspect a soakpit. He was asked to let the defendant’s wife know when he intended coming as
the defendant’s dog was dangerous. However, as he happened to be in the vicinity of the defendant’s house, he
decided to visit without a prior arrangement. He entered the premises in spite of the signs warning of the dog’s
presence and was bitten. The defence of voluntary assumption of risk against the actio de pauperie succeeded
because it was found that the defendant realised (foresaw) the danger and consented to the risk of being injured.
However, since the defendant consented to the risk of being seriously injured, his consent should have been found
to be contra bonos mores and thus invalid. It would therefore seem that the plaintiff’s defence was voluntary
assumption of risk in the form of contributory intent (see Knobel 1993 THRHR 303–304).
337 Cf nevertheless Boberg Delict 742–743.
338 The court (442) did, however, correctly point out that even if such a defence (contributory intent) did exist, V did
not have contributory intent because V did not know or think that O would drive off. In Santam Insurance Co Ltd v
Vorster 1973 4 SA 764 (A) (see further supra fns 306 307) the defence of voluntary assumption of (or consent to)
the risk was also considered by the Appellate Division. The respondent suffered serious injury when the car in
which he was a passenger was involved in a collision with another car. Both cars were engaged in a “dicing”
contest for a stake of R10. When the respondent got into the car, he was fully aware that a dicing contest would
take place. The defences of voluntary assumption of risk and contributory negligence were raised against the
plaintiff’s claim. The court confirmed the judgment of the court a quo, namely that the defence of voluntary
assumption of risk could not succeed and that apportionment must take place in accordance with the respondent’s
contributory negligence. It would seem that the court should have considered the defence of contributory intent in
this case (cf Van der Merwe and Olivier 177). See further the discussion by Ahmed 2010 THRHR 697 ff of
Neethling v Oosthuizen 2009 5 SA 376 (WCC).
339 2002 4 SA 497 (O); see Ahmed Contributory Intent 61.
340 507 (translation). Unfortunately, although the court distinguished between consent to the risk of injury (volenti non
fit iniuria) as a ground of justification excluding wrongfulness and voluntary assumption of risk as a ground
extinguishing fault, it incorrectly stated that the requirements for consent (“knowledge, appreciation and consent”)
apply to contributory intent (ibid; see also Ahmed Contributory Intent 61).
212 Law of Delict
In this light, the judgment in Greater Johannesburg Transitional Metropolitan Council v ABSA
Bank Ltd t/a Volkskas Bank341 appears to be correct. It was held that a defence of contributory
intention could succeed where both the plaintiff and the defendant acted with intention. In this
case T, an employee of the Soweto City Council (which was later dissolved and its assets and
debts transferred to the plaintiff), stole cheques that had been drawn in favour of his employer
and handed them to his accomplice, W, who was an employee of the defendant bank. W fraudu-
lently paid the proceeds from the cheques into other accounts, resulting in the City Council
suffering a loss. On a claim for damages being instituted for vicarious liability of the defendant
bank, contributory intention was raised as one of the defences, on the strength of the fraud of T,
who had been in the employment of the City Council at all relevant times. Goldstein J found in
favour of the plaintiff, but ordered a reduction of 50% of the amount of damages on account of
the plaintiff’s contributory intention. According to the court, section 1(1)(a) is applicable where
fault in the form of intention is present on the side of the plaintiff as well as the defendant.342
The court declared:343
In my view the word “fault” and its Afrikaans counterpart “skuld” clearly include dolus . . . It should be
noted that I have to do with a situation of dolus on both sides since both the plaintiff ’s servant . . . and
the defendant’s [servant] intentionally caused the harm which befell the plaintiff . . . Where there is
dolus on both sides there appears to me to be no reason not to give effect to the ordinary meaning of the
words “fault” and “skuld”.
5.4.3 Rescue cases

Lastly, it is necessary to refer briefly to the connection between the doctrine of voluntary as-
sumption of risk and so-called “rescue cases”. Rescue cases could in principle serve as a defence
excluding delictual liability.344 Take the following example: Defendant X negligently sets a
house on fire. Plaintiff Y runs into the burning house to salvage his jacket. Y is injured by the
flames. X is not liable for Y’s injuries, because Y’s contributory intent will cancel X’s negli-
gence since his exposure to the flames to save a jacket can be regarded as consciously unreason-
able.345 On the other hand, where Y voluntarily exposed himself to such a risk of harm in order
to save a baby, a different picture emerges because Y’s exposure to the risk was then conscious-
ly reasonable (acting towards a lawful goal) and he therefore lacked contributory intent. X might
be liable because he acted negligently since a reasonable person would have foreseen that some-
one might go into the house to save the baby, and would have acted differently by not setting the
house alight. Similarly, if Y was a fireman who had to enter the house in the course of perform-
ing his duties, X might well be liable because of his negligence since he should have foreseen
that the fire brigade would have to intervene.346
________________________
341 1997 2 SA 691 (W) (cf Randbond Investments (Pty) Ltd v FPS (Northern Region) (Pty) Ltd 1992 2 SA 608 (W)
620 (Ahmed 2014 (4) PELJ 1531); infra 320 fn 8).
342 See Malan and Pretorius 1997 THRHR 155 (who welcome this judgment); Scott 1997 De Jure 393 who declares
that “[o]ne can only guess what the mode of apportionment will be where the types of dolus of the plaintiff and the
defendant differ” and adds that it may perhaps be “only a matter of time before the courts are confronted with the
issue of weighing up different forms of dolus”; Ahmed 2014 (4) PELJ 1527 ff. See further in respect of joint
wrongdoers Randbond Investments (Pty) Ltd v FPS (Northern Region) (Pty) Ltd 1992 2 SA 608 (W) 621; Lloyd-
Gray Lithographers (Pty) Ltd v Nedcor Bank t/a Nedbank Ltd 1998 2 SA 667 (W) 672–673 (cf Nedcor Bank Ltd t/a
Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 2000 4 SA 916 (SCA) 921–923); ABSA Bank Ltd v Bond
Equipment (Pretoria) (Pty) Ltd 2001 1 SA 372 (SCA) 381; infra 320 fn 8.
343 696.
344 See also Ahmed Contributory Intent 56–57.
345 See supra 208. It is self-evident that X will be liable for the loss of the jacket.
346 The possibility of contributory negligence on the part of Y should be kept in mind in a situation where a reasonable
person would not have acted as a rescuer (see Ahmed Contributory Intent 56).
In summary, Ahmed347 states that the moral and social pressures, which induce a person to
expose himself to a risk in an effort to rescue another from a danger created by the defendant’s
negligent conduct, are sufficient to negate voluntary assumption of risk. But where the danger is
so extreme as to be out of proportion to the value of the interest protected, the rescue operation
is unreasonable and may constitute contributory intent or negligence on the part of the rescuer.
________________________
347 Contributory Intent 57.

Chapter 5
Causation
1 General
The causing of damage through conduct, or, in other words, a causal nexus between conduct and
damage, is required for a delict.1 A person can thus not be liable if he has not caused any dam-
age.2 The question of whether there is a causal nexus in a particular case is a question of fact that
must always be answered in light of the available evidence and relevant probabilities3 and that
may in suitable instances be dealt with first in the course of a trial.4 A causal nexus is simply
something which (factually) exists or does not exist and it appears that no amount of theorising
can take the matter any further.
Yet one finds that there are few other subjects on which jurists have theorised so much during
the last century as they have done on causation. Various so-called theories of causation have
been developed and the most important are the conditio sine qua non theory, the adequacy
theory, the direct consequences theory, the foreseeability theory and the “flexible approach”.5
It is noteworthy that not all these theories are applied at the same level. This is apparent from the
fact that the adherents of virtually all the theories use the conditio sine qua non theory as their
point of departure in order to determine initially whether a factual causal nexus between the act
and the harmful consequence exists; if it does exist, so-called factual causation is present. Such
________________________
1 See Potgieter, Steynberg and Floyd Damages 28 85–93 on the “causal element” in respect of damage. According to
our law damage must be caused by a so-called “damage-causing event”. This refers to a human act and the sur-
rounding circumstances (see supra 27 fn 4).
2 First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319 (SCA) 320 (for a discussion see Schulze 2006
TSAR 834 ff); see further mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) 479.
3 Often expert evidence (especially that of doctors) is decisive. In Oppelt v Department of Health, Western Cape
2016 1 SA 325 (CC) para 36 the court preferred Michael v Linksfield Park Clinic (Pty) Ltd 2001 3 SA 1188 (SCA)
regarding the approach to the evidence of expert witnesses according to which a court must not assess the cogency
of scientific evidence by scientific standards, but by the legal standard of the balance of probability (para 38). This
requires a flexible approach supported by common sense rather than strict logic; and the question of what is more
probable should not be based on a mathematical thought process, but rather on the practical way in which the ordin-
ary person’s mind works against the background of everyday life experiences (paras 45–49). This approach of the
CC was followed in both Daniels v Minister of Defence 2016 6 SA 561 (WCC) para 150 and SS v Road Accident
Fund [2016] 3 All SA 637 (GP) paras 47–54. See also, eg, Ocean Accident and Guarantee Corporation Ltd v Koch
1963 4 SA 147 (A) where the court had to decide whether the defendant, the third-party insurer of a vehicle with
which the driver negligently smashed into the rear of the plaintiff’s vehicle, could be held liable for expenses in-
curred as a result of a thrombosis which was allegedly caused by a persistent state of anxiety, allegedly arising as a
result of a neck injury which the plaintiff had suffered in the accident. In casu a majority of the court held on appeal
that on the medical evidence it was impossible to say that the eventual thrombosis was a result of the accident.
4 That is, even before wrongfulness and negligence (First National Bank of South Africa Ltd v Duvenhage 2006 5 SA
319 (SCA) 320 326; Knobel 2005 THRHR 653). In Duvenhage 320–321 Nugent JA explained this in the following
words: “[W]hatever sequence doctrinal logic dictates, the human mind is sufficiently flexible to be capable of
enquiring into each element separately, in any order, with appropriate assumptions being made in relation to the others,
and that is often done in practice to avoid prolonging litigation, for though the elements are naturally interrelated,
each involves a distinct enquiry.”
5 The existence of all these theories in respect of causation is possibly the reason why Boberg Delict 380 refers to a
“morass of controversy that surrounds this element of liability”.
215
216 Law of Delict
a factual causal nexus may, however, extend a very long way – in fact ad infinitum – because a
single act can, in principle, give rise to an endless chain of harmful events. The other side of the
coin is that each harmful consequence is produced by an infinite number of contributory factors.
The law of delict is usually focused on the influence, relevance and causal effect of the (volun-
tary) conduct of the defendant (wrongdoer) as damage-causing event. Due to the fact that no
legal system can, on the grounds of policy and fairness, allow unlimited liability merely based
on causation, the next question is for which of these harmful events flowing from his conduct a
defendant should be held liable. All the above-mentioned causation theories, with the exception
of the conditio sine qua non theory, attempt to solve this problem. Causation in this sense is
known as legal causation.6 The distinction between factual causation and legal causation must
constantly be borne in mind.7 8 At this stage it is necessary to concentrate first on factual causa-
tion. Then the different theories of legal causation will be discussed.
2 Factual causation
2.1 General
There can be no question of delictual liability if it is not proved that the conduct of the wrong-
doer or defendant caused the damage to the person suffering the harm.9 Whether an act can be
________________________
6 Van der Walt and Midgley Delict 285; Loubser and Midgley Delict 123–136; Boberg Delict 439; infra 230 ff;
Mukheibir 2015 SALJ 28–29.
7 See Corbett CJ’s authoritative exposition of the distinction between factual and legal causation in International
Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) 700; see also Tuck v Commissioner for Inland Revenue 1988 3
SA 819 (A) 832–833; Minister of Police v Skosana 1977 1 SA 31 (A) 34; Home Talk Developments (Pty) Ltd v
Ekurhuleni Metropolitan Municipality 2018 1 SA 391 (SCA) paras 45–52 56 ff 73 ff; Mashongwa v Passenger Rail
Agency of South Africa 2016 3 SA 528 (CC) paras 63 ff; De Klerk v Minister of Police 2019 12 BCLR 1425 (CC)
paras 24í26; Standard Bank of South Africa Ltd v Coetsee 1981 1 SA 1131 (A) 1134 1140; Siman & Co (Pty) Ltd v
Barclays National Bank Ltd 1984 2 SA 888 (A) 914; Smit v Abrahams 1992 3 SA 158 (C) 162 (1994 4 SA 1 (A)
13); Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 396–397; Moses v Minister of Safety and Security 2000 3
SA 106 (C) 117–118; Road Accident Fund v Russell 2001 2 SA 34 (SCA) 39 ff; Minister of Safety and Security v
Carmichele 2004 3 SA 305 (SCA) 327–328; Minister of Safety and Security v Van Duivenboden 2002 6 SA 431
(SCA) 448–449; Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 239–240; Minister van Veiligheid
en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 531–532; Minister of Justice and Constitutional Development v
X 2015 1 SA 25 (SCA) paras 22–23 (see Neethling and Potgieter 2015 TSAR 858–859); K v Minister of Safety and
Security [2019] 1 All SA 415 (ECP) paras 202–203; Minister of Police v K (case no 403/2019) [2020] ZASCA 50
(6 May 2020) paras 56 59; Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) 472; Neethling v
Oosthuizen 2009 5 SA 376 (WCC) 388; McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a
Harvey World Travel 2012 6 SA 551 (GNP) 568; Van der Walt and Midgley Delict 275–276; infra fn 95.
8 Factual causation, negligence and the relevance of negligence should not be confused either. See, eg, Siman and Co
(Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A) 915 where the determination of a causal nexus is de-
scribed as follows: “A straightforward example of this would be where the driver of a vehicle is alleged to have
negligently driven at an excessive speed and thereby caused a collision. In order to determine whether there was
factually a causal connection between the driving of the vehicle at an excessive speed and the collision it would be
necessary to ask the question of whether the collision would have been avoided if the driver had been driving at a
speed which was reasonable in the circumstances.” If X drives his motor car too fast and collides with a child in the
process, he has factually caused the child’s injuries even if it appears that he would not have missed the child had
he driven at a slower speed in accordance with the standard of the reasonable person. In such a case X may avoid
liability because of the absence of the relevance of negligence (supra 192). See infra 223 with regard to an omis-
sion. See further Bank of Credit and Commerce Zimbabwe Ltd v UDC Ltd 1991 4 SA 82 (ZS).
9 Boberg Delict 380 explains it as follows: “[T]he defendant is not liable unless his conduct in fact caused the
plaintiff’s harm.” See further Visser 2006 TSAR 581 ff; Van der Walt and Midgley Delict 276; Loubser and
Midgley Delict 101 ff; Van der Merwe and Olivier 196 ff; Van Rensburg Juridiese Kousaliteit; Van Oosten Oor-
saaklikheid; Hart and Honore Causation in Law; Hunt Criminal Law vol II 347 ff. Cf Protea Assurance Co Ltd v
LTA Building SWA Ltd 1988 1 SA 303 (A). In casu a collision occurred on a special mining road between a mine
lorry and a minibus driven by X. Regulations prohibited a minibus from being on that road. The question arose as
to whether X’s employer was negligent in failing to warn X not to drive on that particular road. The court accepted
[continued ]
Chapter 5: Causation 217
identified as a cause, depends on a conclusion drawn from available facts and relevant probabil-
ities. The important question in this regard is: how should one determine whether such a causal
nexus exists, in other words, what is the correct test for determining causation? At the outset it
must be emphasised that in most of the cases that occur in practice there is no problem in determin-
ing in one way or another whether the conduct of the defendant has caused harm to the plaintiff or
not. The courts usually succeed admirably in determining, on the basis of the evidence and the
probabilities of the given case, whether a causal link exists between the wrongdoer’s conduct and
the damage.10 The method employed by the courts in practice, although frequently expressed in the
terminology of conditio sine qua non, is the obvious one, ie, to inquire whether one fact follows
from another. This is indeed the natural way to determine a causal link.11
It is nevertheless noteworthy that frequent attempts have been made to formulate a general and
scientifically acceptable test for causation. Apparently, most writers,12 as well as the Constitu-
tional Court, the Supreme Court of Appeal and other courts,13 are in favour of the conditio sine
________________________
an admission by the plaintiff that the use of the road was not a cause of the accident. Dendy 1988 Annual Survey
181 correctly criticises this reasoning. From the facts it is obvious that the driving of the minibus was a cause of the
accident. In S v Mkhwanazi 1988 4 SA 30 (W) four robbers were charged with the murder of X, one of their gang,
who had been shot dead in self-defence by their victim. The court, inter alia, held that an actus reus (act) was ab-
sent in these circumstances. In our opinion the robbers did factually contribute to X’s death through their joint
criminal conduct. Their acquittal may, however, be based on various other grounds. See the following cases where
it was held that factual causation was not proved: Bekker v Constantia Insurance Co Ltd 1983 1 PH J13 (E); Siman
and Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A) 907–908; Benson v De Beers Consolidated
Mines Ltd 1988 1 SA 834 (NC) 842; Credé v Standard Bank of SA Ltd 1988 4 SA 786 (E); S v Chipinge Rural
Council 1989 2 SA 342 (ZS); Bayer South Africa (Pty) Ltd v Viljoen 1990 2 SA 647 (A) (see infra 358 fn 203;
Neethling and Potgieter 1990 De Jure 377 on the latter case). See Grobler v Santam Versekering Bpk 1996 2 SA
643 (T) on causation in terms of s 40 of the repealed Multilateral Motor Vehicle Accident Funds Act 93 of 1989:
injury or death “caused by or arising out of the driving of a motor vehicle”. Cf further Silver v Premier, Gauteng
Provincial Government 1998 4 SA 569 (W) 574–576; Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 396–397;
Moses v Minister of Safety and Security 2000 3 SA 106 (C) 117–118; Beurain h/a Toptrans Transport v Regering
van die Republiek van Suid-Afrika 2001 4 SA 921 (O) 932; (condition of road not causa causans of accident); Min-
ister van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors 2002 5 SA 649 (SCA) 658 (issue of false vehicle
clearance certificates caused plaintiff’s damage).
10 See fn 3 supra.
11 Infra 228.
12 Boberg Delict 380 ff; Van der Merwe and Olivier 197 ff; Van der Walt and Midgley Delict 276 ff; Loubser and
Midgley Delict 103 ff; Fagan Aquilian Liability xii 296 ff; Van Oosten 1982 De Jure 4 239, 1983 De Jure 36; see
also Burchell Delict 114–115; cf Brand in Visser and Pretorius (eds) 54–55.
13 Eg De Klerk v Minister of Police 2019 12 BCLR 1425 (CC) para 24; Oppelt v Department of Health, Western Cape
2016 1 SA 325 (CC) para 35; Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) paras 66–
67; K v Minister of Safety and Security [2019] 1 All SA 415 (ECP) para 205; Minister of Police v K (case no
403/2019) [2020] ZASCA 50 (6 May 2020) paras 56–58; Minister of Police v Skosana 1977 1 SA 31 (A); S v
Daniëls 1983 3 SA 275 (A); S v Van As 1967 4 SA 594 (A); Da Silva v Coutinho 1971 3 SA 123 (A); Siman & Co
(Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A) 914–918; S v Mokoena 1979 1 PH H13 (A); Interna-
tional Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A); Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan 2006 6
SA 537 (SCA) 541; Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 163;
mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) 479–480; Minister of Safety and Security v WH
2009 4 SA 213 (E) 220–221; Black v Joffe 2007 3 SA 171 (C) 185; Harrington NO v Transnet (Ltd) 2007 2 SA 228
(C) 241; S v Mokgethi 1990 1 SA 32 (A) (cf however fn 39 infra); Mediterranean Shipping Co Ltd v Speedwill
Shipping Co Ltd 1989 1 SA 164 (D); Tuck v Commissioner for Inland Revenue 1988 3 SA 819 (A) 832; Suid-
Afrikaanse Nasionale Lewensassuransiemaatskappy Bpk v Louw & Collins Afslaers (Edms) Bpk 1997 1 SA 592
(A) 610 (mental elimination of misrepresentation – credit would still have been given); Groenewald v Groenewald
1998 2 SA 1106 (SCA) 1113; Mukheiber v Raath 1999 3 SA 1065 (SCA) 1077–1079; Minister of Safety and Secur-
ity v Carmichele 2004 3 SA 305 (SCA) 327 ff; Minister of Safety and Security v Van Duivenboden 2002 6 SA 431
(SCA) 449; Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 239–241; Minister van Veiligheid en
Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 531–532; OK Bazaars (1929) Ltd v Standard Bank of South Africa
Ltd 2002 3 SA 688 (SCA) 697; see further Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE)
472; Mediterranean Shipping Co Ltd v Speedwill Shipping Co Ltd 1989 1 SA 164 (D); Smit v Abrahams 1992 3 SA
158 (C); Oelofsen v Cigna Insurance Co of SA Ltd 1991 1 SA 74 (T) 83; Thandani v Minister of Law and Order
1991 1 SA 702 (E); Tenza v Putco Ltd 1998 2 SA 330 (N) 333; Ncoyo v Commissioner of Police, Ciskei 1998 1 SA
[continued ]
218 Law of Delict
qua non theory in determining or describing factual causation.14 However, our courts have also
accepted that the conditio sine qua non approach is not the only way to determine factual causa-
tion.15 For them, the conditio sine qua non is the simplest and most intelligible way to construe
or explain the existence of a causal link. Nevertheless, it is not always clear precisely what inter-
pretation the courts give to the conditio sine qua non method they employ, which variant of the
method is employed, or precisely how the test works. It is in any case not essential to use the
“mental elimination” method of conditio sine qua non to determine factual causation correctly.16
Due to the prominence given to conditio sine qua non terminology in case law, it is nevertheless
necessary to examine aspects of this approach critically.
2.2 Conditio sine qua non and causation by positive conduct

The conditio sine qua non theory, also known as the “but for” test, is explained in the following
terms by Van der Merwe and Olivier:17
According to this, an act is the cause of a result if the act cannot be thought away without the result dis-
appearing simultaneously. The act must in other words be conditio sine qua non of the result.18
According to this theory, one should, in order to determine whether X was a cause of Y, elimin-
ate X mentally and consider whether Y still exists or not. If Y falls away when X is eliminated,
X is a cause of Y. If Y still exists even when X is eliminated, Y has not been caused by X.19 Van
________________________
128 (Ck) 137; Silver v Premier, Gauteng Provincial Government 1998 4 SA 569 (W) 574–576; Meevis v Sheriff,
Pretoria East 1999 2 SA 389 (T) 396–397; Moses v Minister of Safety and Security 2000 3 SA 106 (C) 117–118;
Odendaal v Road Accident Fund 2002 3 SA 70 (W).
14 See, however, Van Rensburg Juridiese Kousaliteit passim; Visser 1989 THRHR 560–564. Snyman Criminal Law
82í83 states that one should guard against describing conditio sine qua non as a “test” for determing factual causa-
tion. This author states clearly that conditio sine qua non is merely a way of referring to a causal link that has al-
ready been determined and that it does not really operate as a test (see also infra 221–222).
15 See, eg, Minister of Police v Skosana 1977 1 SA 31 (A) 35 43–44; Siman & Co (Pty) Ltd v Barclays National Bank
Ltd 1984 2 SA 888 (A) 917–918 where the court emphasised that “common sense standards” must be used where
the conditio sine qua non is not applicable; see also Portwood v Svamvur 1970 4 SA 8 (RA) 14–15; Van der Walt
and Midgley Delict 276 ff; Fagan Aquilian Liability 308 ff; infra 226–227.
16 See, eg, S v Counter 2003 1 SACR 143 (SCA).
18 See also Loubser 6 LAWSA 27: “Factually the cause of any given event is the sum of all the necessary conditions of
that event, in other words, the test of factual causation is whether the relevant act of commission or omission was a
necessary condition (conditio sine qua non) of the event in question.” Van der Walt and Midgley Delict 278 ex-
plain: “The application of the ‘but for’ test requires a particular process of reasoning. In cases involving positive
conduct, a method of mental elimination is applied. This means that the defendant’s positive act is hypothetically
eliminated from the complex set of conditions prevailing at the time when the detrimental consequence occurred, in
order to determine whether it would still have occurred in the absence of the defendant’s conduct. If, in spite of the
elimination of the act, the consequence would still have occurred, it may be concluded that the act was not a neces-
sary condition and therefore not a cause of the particular consequence. If the consequence would probably not have
occurred, the act was a necessary condition and consequently a cause of it.” See also Loubser and Midgley Delict
103.
19 See also De Wet and Swanepoel Strafreg 64. The facts in S v Daniëls 1983 3 SA 275 (A) may be used to illustrate
conditio sine qua non: the first appellant picked up the second appellant and M in a taxi driven by the deceased.
The latter was instructed to turn off the main road and drive a little further before stopping. The deceased and the
first appellant got out of the car and exchanged words. The deceased started to run away and the first appellant pur-
sued him, firing three shots at him (while the second appellant followed them). The deceased collapsed approxi-
mately 100 meters from the taxi. A while later the second appellant took the firearm and shot the deceased in the
head. The two appellants and M then drove away in the taxi. The body of the deceased had three bullet wounds,
two in the back and one in the head. The immediate cause of death was brain damage as a result of the bullet
wound in the head. The deceased would have died from the two wounds in the back if he did not receive medical
attention within half an hour. According to Jansen JA (332) the conduct of the first appellant was a causa sine qua
non of the death of the deceased: if he had not taken out the firearm and felled the deceased by shooting him in the
back, the second appellant would not have shot him in the head. Therefore, if one mentally eliminates the shot by
the second appellant, the result in question (the death of the deceased) still occurs because the deceased would in
any event have died from the shots fired by the first appellant. Accordingly the action of the second appellant did
[continued ]
Oosten20 asserts that conditio sine qua non is not only a factual test for causation but also a legal
test, because the law adopts it as a test, and further because the law sometimes approaches
causation in a manner different from that followed by medical science. However, the general
view is that conditio sine qua non is only a factual test for causation.21
In International Shipping Co (Pty) Ltd v Bentley22 the court formulated the conditio sine qua non
approach with regard to positive conduct23 as follows:
The first [enquiry] is a factual one and relates to the question whether the defendant’s wrongful act was a
cause of the plaintiff’s loss. This has been referred to as “factual causation”. The enquiry is generally
conducted by applying the so-called “but-for” test, which is designed to determine whether a postulated
cause can be identified as a causa sine qua non of the loss in question. In order to apply this test one
must make a hypothetical enquiry as to what probably would have happened but for the wrongful con-
duct of the defendant . . . If it would in any event have ensued, then the wrongful conduct was not a
cause of the plaintiff’s loss; aliter, if it would not so have ensued. If the wrongful act is shown in this
way not to be a causa sine qua non of the loss suffered, then no legal liability can arise.
In the case of “positive” conduct or a commissio24 on the part of the defendant, the conduct must
thus be “removed” in the mind to determine whether the relevant consequence would still have
resulted.25
2.3 Logical criticism of the conditio sine qua non theory

Although the expression conditio sine qua non is still widely accepted – in the sense that the
courts usually make reference to it in respect of factual causation – its underlying principles
have, after a thorough examination, been subjected to convincing logical criticism.26 It is there-
fore meaningful to take cognisance of some of these points of criticism27 even though they have
not yet gained acceptance in case law.
(a) The conditio sine qua non theory is based on a clumsy, indirect process of thought that
results in circular logic.28 Suppose that in a specific instance it must be established whether or
not X has caused Y. According to the conditio sine qua non formula, the judge must in his mind
eliminate X and try to imagine how the events would have progressed had X not existed.29 The
________________________
not cause the death. However, if one eliminates the two shots by the first appellant, the death of the deceased falls
away. Seen in this light, only the first appellant caused the death in question. (However, this line of argument can-
not be accepted as correct because it is clear that the deceased would not have died as and when he did if it was not
for the shot fired by the second appellant.) See in general the other judgments from which it appears that there is no
consensus on the precise facts of this case (see also Van Zyl 1983 THRHR 340). See also for the “but for” test Vig-
ario v Afrox Ltd 1996 3 SA 450 (W) 459; Silver v Premier, Gauteng Provincial Government 1998 4 SA 569 (W)
575; Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 396–397; Moses v Minister of Safety and Security 2000 3
SA 106 (C) 118.
20 1982 De Jure 256–257.
21 Boberg Delict 380 puts it thus: “To apply [conditio sine qua non] one asks whether the plaintiff’s harm would have
occurred but for the defendant’s conduct. The question is entirely one of fact.”
22 1990 1 SA 680 (A) 700; see further First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319
(SCA) 324–325; cf Dias v Petropulos 2018 6 SA 149 (WCC) para 133.
23 With regard to the application of the conditio sine qua non test in the case of omissions, see 223 infra.
24 Supra 32–33.
25 See also Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 162; Van der Walt and Midgley 278–279.
26 See especially Van Rensburg Juridiese Kousaliteit 3–65; also Van der Walt and Midgley Delict 280 fn 8; Visser
1989 THRHR 558–569; Snyman Criminal Law 82–83; cf Brand in Visser and Pretorius (eds) 49–50.
27 See, inter alia, Van Rensburg Juridiese Kousaliteit 3–65 who mentions more points of criticism not discussed here;
infra fn 45.
28 Van Rensburg Juridiese Kousaliteit 28–30; see further Van der Walt and Midgley Delict 280 fn 8; Loubser and
Midgley Delict 110; cf Fagan Aquilian Liability 323 338.
29 However, in OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA 688 (SCA) 697 the court did
not regard the mental elimination method as necessary. Cf also Minister of Safety and Security v Van Duivenboden
2002 6 SA 431 (SCA) 449 (quoted infra fn 55).
220 Law of Delict
fact that the judge must eliminate X from his mind obviously does not mean that he must think
of nothing, for if he were to do that he would inevitably have to find that Y also would not have
arisen because, after all, nothing cannot cause something. The judge must in fact eliminate X
with the retention of all other antecedents, ie, with the retention of all other circumstances which
accompanied X. The question which he must ask is whether Y would still have taken place if
these antecedents had existed without X. He must in fact search for a different possible cause of
Y, because Y did in fact take place. For the sake of convenience, we may group all the other
antecedents (which may be a possible cause or causes of Y) under the symbol Z. Briefly stated,
the question now is whether Z would have caused Y. How can it be determined whether Z
caused Y or not? If the conditio sine qua non test is also applied here, it means that Z must be
eliminated. In such a case the circle has been completed and one is back at X where one started.
It thus appears that conditio sine qua non may compel one in certain circumstances to follow a
particularly clumsy and indirect approach which ultimately does not provide a solution. The
judge is denied the opportunity of trying to establish the causal potency of antecedent X directly
and he is compelled to answer the question of causation indirectly by seeking an answer to the
question of whether other antecedents have caused Y.30 Although the influence of other anteced-
ents may well be relevant in determining causation, it is clearly unnecessary to elevate it to the
essence of or the only criterion to be used in the inquiry into causation.
(b) The conditio sine qua non test fails in cases of so-called cumulative causation.31 Cumula-
tive causation occurs where more than one act actually causes a particular consequence, for
example where X and Y simultaneously, but independently of each other, fire a fatal shot at Z’s
head. If one eliminates X’s shot, Z’s death does not fall away; on account of this one may
conclude that X did not cause Z’s death. Subsequently, when Y’s act is eliminated, the same
result is achieved, ie, that Z’s death does not fall away. The application of the conditio sine qua
non test thus permits one to come to the absurd conclusion that neither X nor Y has in fact
caused Z’s death. De Wet and Swanepoel,32 who are adherents of the conditio sine qua non test,
concede that this theory has no clear answer to this kind of problem.33
What then is the solution to this problem? The answer is comparatively simple: suppose a doctor
later gives evidence that the victim was still alive immediately before the two bullets penetrated
________________________
30 Van Oosten 1982 De Jure 20 argues that Van Rensburg’s criticism in this regard is unconvincing (cf also Fagan
Aquilian Liability 323 338 who regards Van Rensburg’s criticism as unfounded). According to Van Oosten,
Van Rensburg works with the wrong formulation of conditio sine qua non, ie, as “condition without” (“voorwaarde
waarsonder . . . wel”) instead of “condition without . . . not” (“voorwaarde waarsonder . . . nie”). According to
Van Oosten, one only has to ask whether, in the above-mentioned example, Y would fall away when X is eliminat-
ed and not whether Y would still occur if X is eliminated. This argument of Van Oosten is clearly wrong. Firstly it
should be noted that there are writers (eg De Wet and Swanepoel Strafreg 63; Hunt Criminal Law 345) as well as
cases (eg R v Makali 1950 1 SA 340 (N); Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A)
915; International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A)) in which the same formulation of conditio
sine qua non as that used by Van Rensburg is adopted. Therefore it cannot correctly be contended that Van Rens-
burg’s criticism of conditio sine qua non is based on a wrong formulation of this so-called test for causation. Sec-
ondly, the fact that the expression conditio sine qua non literally means “condition without which something does
not happen” does not at all indicate that in the application of this test one should not inquire as to possible alterna-
tive causes of a particular consequence. It is in fact impossible to see how this test can have any meaning if one
does not investigate alternative causes. The reason for this is that a certain consequence (eg Y) has been caused as
a matter of fact and in the elimination of X (the antecedent under investigation) it makes sense not to think of abso-
lutely nothing, but to concentrate on, eg, Z which is part of the factual circumstances, and which has possibly
caused Y. Van Oosten’s application of conditio sine qua non actually represents a completely unworkable method
and actually proves Van Rensburg’s objection that it is merely a convenient form of self-deception to eliminate an
act (a possible cause of a consequence) and then, without even considering other possible causes, to conclude that
the particular act is or is not the cause of the consequence in question (see infra fn 43).
31 Cf Loubser and Midgley Delict 111; Van der Walt and Midgley Delict 295; Fagan Aquilian Liability 324–328.
32 Strafreg 64.
33 See further Van Rensburg Juridiese Kousaliteit 36 ff; Van der Walt and Midgley Delict 284; Brand in Visser and
Pretorius (eds) 49–50.
his head. Suppose further his evidence is that, according to his knowledge, two bullets through
the head invariably cause immediate death. What can be simpler than to deduce that the firing of
two bullets was the cause of the victim’s death? This “direct common-sense approach of the man
in the street” – as it was put in Portwood v Swamvur34 – gives a satisfying answer: both X and Y
caused Z’s death. To theorise about what would have happened if one of the bullets had not
struck the victim’s head (as required by an application of the conditio sine qua non approach)
cannot lead to better insight into the problem.35 It is completely unnecessary to use conditio sine
qua non in this case.36
(c) The conditio sine qua non test is in fact not a test of causation, because it is merely an ex
post facto way of expressing a predetermined causal nexus. This, as a matter of logic, is the
most important reason why conditio sine qua non is unacceptable as a test for causation.37 It is
interesting to note that neither the courts nor the academics who accept conditio sine qua non as
a test for causation explain how one knows that if one eliminates a particular act, the alleged
result also falls away or not. Apparently it is generally accepted that merely by eliminating in the
mind an alleged cause of a consequence, one can establish whether or not it is a cause of the
consequence. That this approach is incorrect appears from the following example: X visits Y in
order to accuse him of adultery with his (X’s) wife. Y is exceptionally friendly and offers X a
glass of beer. A few minutes after X has drunk the beer, he suffers convulsions and drops dead.
How would one use the conditio sine qua non test in order to establish whether Y has poisoned
X by means of the beer? Even if one eliminates the giving of the beer to X, one is no closer to an
answer because a proper examination is necessary to determine whether X might not have died
of a heart attack or whether the beer might have contained poison. It is only after all the relevant
facts have been established, and the cause of X’s death has been ascertained on this basis that
one would know whether giving the beer to X was a conditio sine qua non of his death or not.
This example clearly proves that one can only “employ” conditio sine qua non after one has in
some other way already determined the cause of a particular consequence.38 Without prior
________________________
34 1970 4 SA 8 (RA) 15. Beadle CJ put it as follows: “I think it would be quite profitless to expect C, the injured by-
stander, to have to try and prove what might or might not have happened if one or other of A or B had not been
negligent [the judge means ‘had not acted’]. The proper approach surely is the direct common sense approach of
the man in the street and, in the example given, he would, without doubt, simply say: ‘Of course they are both to
blame.’ This is how I propose to approach the facts of this case.” See also Ncoyo v Commissioner of Police, Ciskei
1998 1 SA 128 (Ck) 137; Silver v Premier, Gauteng Provincial Government 1998 4 SA 569 (W) 575; Loubser and
Midgley Delict 112–113; infra 226–227.
35 Van der Merwe and Olivier 201 fn 86 attempt to solve the problem of cumulative causation only with reference to
where the actors have consciously worked together (as in the case of a firing squad). Their approach does not, how-
ever, offer a solution to the problem where two or more actors cause the same result independently of each other.
Boberg Delict 383 declares in this regard: “This argument [by Van der Merwe and Olivier] hardly applies to totally
independent concurrent acts, where the one actor may not even know of the other.” The objection to conditio sine
qua non, namely that the causing of a result by a particular act is made subject to the possibility of another act
causing or not causing this result (see supra 219), can in any event also be voiced against the approach of Van der
Merwe and Olivier to cumulative causation.
36 See on the question of whether the problem of more than one cause concerns damage or causation, Potgieter,
Steynberg and Floyd Damages 96 ff; Silver v Premier, Gauteng Provincial Government 1998 4 SA 569 (W) 575.
37 See Van Rensburg Huldigingsbundel Daniel Pont 384–409, 1977 TSAR 101, Normatiewe Voorsienbaarheid 4;
Visser 1989 THRHR 562; Loubser and Midgley Delict 111; Snyman Criminal Law 82–83. Snyman 82 mentions
that various writers [inter alia, Van Rensburg, Visser and Potgieter] point out, quite correctly, that one cannot de-
scribe conditio sine qua non as a test to determine the presence of causation. See also Van der Walt and Midgley
Delict 280 fn 8.
38 See also the following example by Corbett JA in Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA
888 (A) 915: “So, take a very simple example, where A has unlawfully shot and killed B, the test [ie conditio sine
qua non] may be applied by simply asking whether in the event of Y not having fired the unlawful shot (ie by a
process of elimination) B would have died.” Although Corbett JA intended this example to illustrate the application
of the conditio sine qua non “test”, it actually affords convincing proof that conditio sine qua non is no test at all. In
stating that A has unlawfully shot and killed B, Corbett JA accepted the existence of a causal nexus between A’s
firing of the shot and B’s death. Why is it then suddenly necessary to eliminate what he knows to be the cause of
[continued ]
222 Law of Delict
knowledge of what actually caused a result, conditio sine qua non offers no solution: in other
words, only after one has in one way or another determined the causal nexus between an act and
a particular result is it possible to express the conclusion in the terminology of the conditio sine
qua non approach and to state that if one eliminates the act mentally, the particular result will
also fall away.39
It may therefore be said that conditio sine qua non is merely a convenient and known way of
expressing an already determined causal link. This is probably how the acceptance and use of
conditio sine qua non by the courts40 can be explained.41 From this it follows that the conditio
sine qua non approach is no practical test of causation, but rather, as was clearly demonstrated,42
an expression of a conclusion already made on other grounds.43
________________________
death in order to “test” whether it is in fact the cause of death? The example clearly proves that conditio sine qua
non is no true test for causation but merely a way of expressing a predetermined causal nexus.
39 See S v Mokgethi 1990 1 SA 32 (A) where X shot Y during a robbery. As a result of his wound Y was paralysed
and bound to a wheelchair. Y failed to shift around sufficiently in his wheelchair, as he had been advised to do by
the medical practitioners treating him, and as a result developed serious pressure sores and septicaemia. He eventu-
ally died six months after the shooting incident. Van Heerden JA did not use the futile “but for” test but considered
the medical and other evidence in reaching the conclusion that the wound inflicted by X was the conditio sine qua
non of Y’s death. This leads Potgieter 1990 THRHR 269 to the (correct) conclusion that this case provides no sup-
port for the proposition that conditio sine qua non is a test to establish factual causation. Any attempt to use the
“but for” test or a method of elimination, would have been futile: how can the mere mental elimination of a shoot-
ing incident be used to identify the incident as the cause of someone’s death six months later unless the investigator
has already on other grounds established that it was indeed the cause of death? Du Plessis 1990 TSAR 750–751
concedes that the conditio method in establishing a factual nexus does not actually constitute a test. However, Du
Plessis adds that the conditio sine qua non “test” may be used to identify a predetermined, indispensable condition
for the purpose of establishing causation (“’n voorafvasgestelde onontbeerlike voorwaarde vir doeleindes van die
bepaling van kousaliteit”). The answer to this argument is that the method of elimination in terms of conditio sine
qua non is also incapable of identifying an indispensable cause (as opposed to a “dispensable” contributing cause):
only after an antecedent has, in view of all the evidence, been found to be “indispensable”, can this conclusion be
expressed in the terminology of the conditio sine qua non approach. See also the comments by Boberg
Delict 386 on the arguments of Whiting Fiat Iustitia 370 ff to which Du Plessis ibid refers: “The propositions he
lays down are no tests of causation, but mere verbal ex post facto rationalisations of conclusions already arrived at
on some other, unexpressed basis.” See further Silver v Premier, Gauteng Provincial Government 1998 4 SA 569
(W) 574–476.
40 See cases in fn 13 supra.
41 This conclusion is, on the one hand, directly supported by the following words of Corbett CJ in Standard Chartered
Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 764: “My conclusion is that the untrue report issued by
[defendant] was a factual cause of [plaintiff’s] loss. In other words, it was a conditio sine qua non of such loss”
(our italics; see also Neethling and Potgieter 1995 THRHR 347). On the other hand, the same conclusion may be
drawn from the fact that the Appellate Division has not yet critically analysed the conditio sine qua non test, or
even attempted to answer the criticism that has been raised against the test, in order to justify its acceptance thereof.
Without such justification this acceptance cannot really be considered convincing or persuasive (see also Visser
1989 THRHR 568; Potgieter 1990 THRHR 269).
42 See especially Van Rensburg Juridiese Kousaliteit 30–32.
43 How deceptive the application of a so-called “test” in this regard can be, appears from an example given by
Van der Merwe and Olivier 198–199. A doctor is confronted at an autopsy with a dagger in the deceased's heart.
According to them, in order to determine the cause of death, the process of reasoning is always that if the dagger
was not in the deceased's heart, he would not have died at the time and in the manner in which he did. However, it
would indeed be strange to find any doctor who argues like this in order to express a causal nexus. One would
rather expect the doctor to identify the stab wound as the cause of death because of the destruction of vital heart
tissue and the massive loss of blood caused by the wound. The reason why the doctor would contemplate the ques-
tion of what would have happened if the dagger had not penetrated the heart of the deceased, is not given in the ex-
ample of Van der Merwe and Olivier. Only if there was, eg, positive evidence that the deceased also had a bullet
wound in the head or that there was also poison in his stomach, would it have made any sense if there was specula-
tion on other possible causes of death. In such a case the doctor would possibly have to choose between different
possible causes. This only proves that the “test” of conditio sine qua non, in terms of which one asks what would
have happened if the act allegedly causing the result was not present, is mere self-deception because one already
knows on other grounds precisely whether or not the act in question caused the result or not.
Furthermore, it should be noted that prominent European jurists reject conditio sine qua non as a
test to determine a causal link – according to them it is at best a method of verifying the correct-
ness of one’s conclusion about a factual causal link on the evidence.44 The courts should consid-
er these views, since the inquiry into factual causation is not something unique to a particular
legal stystem, but rather a question with which all legal systems are confronted.
In view of the above,45 the conclusion is that the conditio sine qua non approach cannot really be
accepted as a correct test of causation, and the reference to the terminology of conditio sine qua
non in many cases46 does not really prove that it is in general a valid test of factual causation, or
that its underlying model of thought is really consistently used by the courts. An overview of
reported case law shows that the courts usually determine a factual causal link correctly47 in
light of the evidence and the relevant probabilities of how one fact follows another.48 The
characterisation by many judges of the method employed as conditio sine qua non or the “but
for” test is usually merely lip-service. Van der Walt and Midgley49 correctly state that “[t]he
application of the ‘test’ amounts in substance to a particular formulation of an a priori conclu-
sion based upon knowledge and experience of causal processes”.
2.4 Conditio sine qua non and causation by an omission50

The general view is51 that the conditio sine qua non test may also be applied where one wishes
to determine whether an omission caused a certain consequence. Whereas, in the case of positive
conduct, the conduct is mentally removed to determine whether the relevant consequences
________________________
44 See authority cited by Snyman Criminal Law 83 fn 25.

45 There are numerous other valid points of criticism which may be levelled at the application of conditio sine qua
non. It is unnecessary to go into this in detail and reference is only made to Van Rensburg Juridiese Kousaliteit 62–
65 who, inter alia, points out that conditio sine qua non rests on a deterministic viewpoint that is in conflict with
the indeterministic foundation of our law. He adds that the conditio sine qua non test is basically an experimental
method in the natural sciences that has little relevance in law which is primarily a social science. Van Rensburg
also correctly draws attention to the fact that conditio sine qua non is not used in the drafting of pleadings or charge
sheets and that it is useless in evidence. In a criminal case the state does not, eg, allege that the deceased would not
have died if the accused had not shot him, but that the deceased died because the accused actually shot him. Also
when a witness testifies that he saw how the accused shot the deceased, the judge does not interrupt him with a rep-
rimand that he should tell what would have happened if the accused did not shoot the deceased! (See previous fn.)
Boberg Delict 384 says the following of Van Rensburg’s points of criticism of conditio sine qua non: “The cogency
of Van Rensburg’s arguments cannot be denied.” See also Snyman Criminal Law 82–83. Van Oosten 1982 De Jure
4–33, who is an adherent of the conditio sine qua non approach, concedes that this theory is not perfect. Burchell
Delict 115 recognises deficiencies in the conditio sine qua non approach but adds: “It is of little value to subject
what is essentially a common-sense mode of reasoning to the strictures of philosophical analysis.” However, he
fails to explain how conditio sine qua non can be based on “common-sense” in view of the various points of valid
criticism discussed supra 219 ff.
46 See, eg, OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA 688 (SCA) 697 where the court
“applied” the “but for” test without “removing” the wrongful conduct or “replacing” it by hypothetical lawful con-
duct. It is clear that the court simply deduced factual causation from the factual picture painted by the evidence, and
then described its finding as a result of the “but for” test. Cf further Minister van Veiligheid en Sekuriteit v Japmoco
BK h/a Status Motors 2002 5 SA 649 (SCA) 658; Faircape Property Developers (Pty) Ltd v Premier, Western
Cape 2002 6 SA 180 (C) 199; Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 448–449;
Road Accident Fund v Landman 2003 1 SA 610 (C) 618; Minister van Veiligheid en Sekuriteit v Geldenhuys 2004
1 SA 515 (SCA) 531–532; Road Accident Fund v Odendaal 2004 1 SA 515 (W) 592; Minister of Safety and Secu-
rity v Carmichele 2004 3 SA 305 (SCA) 228). Cf in general Neethling and Potgieter 2004 THRHR 505; Neethling
2005 TSAR 408.
47 See supra 216 ff; infra 228 ff.
48 See eg S v Counter 2003 1 SACR 143 (SCA).
49 Delict 280 fn 8.
50 See also infra 228 ff.
51 Boberg Delict 384; Van der Walt and Midgley Delict 276 ff; Van der Merwe and Olivier 224; Scott 1977 De Jure
186.
224 Law of Delict
would still have resulted,52 in the case of an omission the inquiry involves “the mental elimina-
tion of the wrongful conduct and the substitution of a hypothetical course of lawful conduct and
the posing of the question as to whether upon such an hypothesis plaintiff’s loss would have
ensued or not”.53 Otherwise stated, in the case of an omission a hypothetical positive act should
therefore be “inserted” into the particular set of facts, which, in a sense, amounts to the mental
removal of the defendant’s omission.54 If hypothetical positive conduct of the defendant could
have prevented the damage, it can be said that the defendant’s omission was the cause of the
damage. This inquiry requires a retrospective analysis of what would probably have happened,
based upon the evidence and what could have been expected in the ordinary course of human
endeavour.55
The facts of S v Van As56 may serve as an example: in this case policemen neglected to search
for children who had fled into the night and later died of exposure. The question was whether the
children’s death was caused by the omission to search for them. From the judgment it appears
that the court attempted to test the causal connection between the omission and the death by
asking whether reasonable search would have prevented the children’s death; in other words, the
court “inserted” positive conduct in the place of the omission.57 This approach is viewed as an
application of conditio sine qua non by our courts.58
________________________
52 See supra 218.

53 International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) 700; see also Lee v Minister of Correctional
Services 2013 2 SA 144 (CC) 161–162.
54 Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 161–162.
55 In Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 449 the court explained: “A plaintiff
is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was prob-
ably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred,
based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than an
exercise in metaphysics”; see further Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 239–240;
Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 531–532; Moses v Minister of Safety and
Security 2000 3 SA 106 (C) 117–118; Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) 47;
Minister of Finance v Gore 2007 1 SA 111 (SCA) 125; Shabalala v Metrorail 2007 3 SA 167 (W) 170; Kantey &
Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 624; Neethling v Oosthuizen 2009 5 SA 376 (WCC) 388; Ja-
cobs v Chairman, Governing Body, Rhodes High School 2011 1 SA 160 (WCC) 175; Scott 2008 THRHR 329–330;
Neethling 2005 TSAR 408; Van der Walt and Midgley Delict 279.
56 1967 4 SA 594 (A); see also Minister of Police v Skosana 1977 1 SA 31 (A); Siman & Co (Pty) Ltd v Barclays
National Bank Ltd 1984 2 SA 888 (A) 914–918; S v Chipinge Rural Council 1989 2 SA 342 (ZS) 347; Moses v
Minister of Safety and Security 2000 3 SA 106 (C); Minister of Safety and Security v WH 2009 4 SA 213 (E) 220–
221; Minister of Safety and Security v Venter 2011 2 SACR 67 (SCA) (see Scott 2012 THRHR 296–300).
57 See, eg, Botha v Minister van Veiligheid en Sekuriteit 2003 6 SA 568 (T) 587 where the police had failed to hand-
cuff an arrested person, and the court posed the question of whether the captive person would still have caused
damage had he indeed been handcuffed – and answered the question in the negative, thus finding that a causal link
between the omission and the damage had been present; Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1
SA 515 (SCA) where the court had to decide whether the death of a captive person could have been prevented if the
police had seen to it that he received medical treatment in time; Minister of Safety and Security v Carmichele 2004
3 SA 305 (SCA) where the court sought to determine whether the magistrate who had heard the bail application of
a dangerous criminal, would have refused the application if the state had submitted proper submissions and infor-
mation (see Neethling 2005 TSAR 408–409).
58 Van Oosten 1982 De Jure 257. According to him one is not, strictly speaking, in this instance concerned with con-
ditio sine qua non but with conditio cum qua non since in this case no condition was mentally eliminated in order to
ascertain whether the consequence would have fallen away without it, but that in reality a condition is mentally in-
cluded in order to ascertain whether the consequence would have fallen away with it. See Moses v Minister of Safe-
ty and Security 2000 3 SA 106 (C) 116: “The application of the ‘but-for’ test to the facts of the instant case [a drunk
person was locked up in a police cell and died after being assaulted by other prisoners] entail mentally substituting
the omission to have conducted a cell inspection during the above-mentioned period with lawful conduct, namely
such a cell inspection . . . If the [assault] would not have taken place the omission on the part of the defendant’s
servants was the cause of the assault: if it would have taken place the converse is the position” (see also Neethling
2001 THRHR 495).
An interesting question is whether the hypothetical positive conduct must be determined object-
ively or subjectively, ie, according to what a reasonable person would have done, or what the
relevant person (wrongdoer or defendant) would have done.59 The Constitutional Court60 pre-
ferred an objective test, but Harms JA was of the opinion that the inquiry should contain both
approaches.61 However, “inserting” reasonable conduct of the wrongdoer into the set of facts
appears to have the potential to cause a confusion of factual causation and negligence. First it
must be determined whether the wrongdoer could have done anything to prevent the relevant
consequence (causation), and only then whether the reasonable person in the position of the
wrongdoer would have prevented the consequence (negligence).62
It is apparent that in instances of causation by an omission the conditio sine qua non test also
does not really offer a solution.63 The apparent success in using conditio sine qua non in the case
of an omission may be explained by means of the fact that every person knows that he can pre-
vent certain consequences by interrupting a causal chain of events. Thus, a mother knows that by
giving her child food, she will be able to prevent the child from starving to death. In such a case,
a hypothetical act is notionally inserted into all the facts of a situation and it is usually possible
to picture in one’s mind what the hypothetical course of events would be.64 However, this is
probably not a true application of conditio sine qua non because this test requires one to elimi-
nate something in the mind and not to “add” (or insert) something to the given facts.65 The
argument that conditio sine qua non is a true test for causation in cases of omission is thus
theoretically incorrect. The “inserting” method used by our courts to determine causation in
instances of omission is nevertheless a realistic approach to causation and is logically more
________________________
59 See Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 329; cf Ahmed in Potgieter, Knobel and
Jansen (eds) 57–59 on the (implicit) role of reasonableness in determining factual causation.
969; see further Minister of Finance v Gore 2007 1 SA 111 (SCA) 125–126.
61 In Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 329 he stated: “The solution to the conun-
drum appears to be this: The inquiry is subjective in the sense that a court has to determine what the relevant magis-
trate on the probabilities would have done . . . Courts of appeal are often called upon to decide what a reasonable
judicial officer should have done and this they do by establishing what a reasonable judicial officer would have
done. It may be presumed factually that judicial officers conform to that norm and it is fair to deduce that any par-
ticular judicial officer (even if his or her identity cannot be established), on the probabilities and as a matter of fact,
would have so acted. The proper inquiry is, thus, what the relevant judicial officer, who is factually assumed to
make decisions reasonably, would, on the probabilities, have done.” Cf Neethling v Oosthuizen 2009 5 SA 376
(WCC) 388.
62 See also Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 162; Neethling 2005 TSAR 408–409;
Neethling and Potgieter 2007 TSAR 618–619. It appears that the court followed the correct approach to factual cau-
sation in Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 532. Factual causation must
also be distinguished from wrongfulness. The statement in Moses v Minister of Safety and Security 2000 3 SA 106
(C) 117–118 that “[t]he application of the ‘but-for’ test to the facts of the instant case entails mentally substituting
the omission . . . with lawful conduct” (our emphasis; see also International Shipping Co (Pty) Ltd v Bentley 1990 1
SA 680 (A) 700; Minister of Finance v Gore 2007 1 SA 111 (SCA) 125) is therefore subject to criticism. As said,
the enquiry into factual causation is whether the defendant could do anything to prevent the consequence, and not
whether lawful conduct – ie, where the defendant acted in complete obeyance of the legal duty – would have pre-
vented the consequence because that would amount to a confusion of wrongfulness and factual causation (see
Neethling 2001 THRHR 495; Neethling and Potgieter 2007 TSAR 618–619). Cf further Neethling 2005 TSAR 409.
63 See Van Rensburg Juridiese Kousaliteit 51–55 64–65.
64 See the cases in fn 7 supra.
65 This probably pertains to so-called relevance of negligence (see supra 192) and not to causation, as explained by
Van Rensburg Juridiese Kousaliteit 64–65. He points out that in determining a causal connection between an omis-
sion and a consequence, for the sake of convenience a method can be employed which resembles the conditio sine
qua non method, but which does not correspond with it and also does not suffer from its defects. Where it appears
that a person caused a certain consequence in violation of a legal norm, it is sometimes possible and sensible to ask
what would have happened if he had indeed acted in accordance with that norm. In such a case one does not deal
with the causation of his act but with the juridical question of whether the violation of the norm was relevant with
regard to the consequence. Thus in such a case one is dealing with the relevance of negligence and not with causa-
tion (see on this supra 192; Neethling 2013 TSAR 185–186).
226 Law of Delict
well-founded than the “removing” of something that is obviously the cause of a consequence in
order to demonstrate the existence of factual causation.
2.5 The flexible application of conditio sine qua non

In Lee v Minister of Correctional Services66 the Constitutional Court emphasised that the appli-
cation of the conditio sine qua non approach with regard to both positive conduct and omissions
is not inflexible since the strict application of this approach would result in an injustice in certain
cases. The court maintained that a flexible approach to factual causation has a long history in our
law from which it appears that causation cannot always be answered by strict adherence to logic
but that common sense sometimes has to prevail.67 In Minister of Finance v Gore68 the flexible
approach was formulated thus:
________________________
66 2013 2 SA 144 (CC) 162. The facts of this case were briefly as follows: the plaintiff was detained in a maximum
security prison for approximately 4½ years. Whilst he was incarcerated, he became ill and was diagnosed as suffer-
ing from pulmonary tuberculosis (TB). After the plaintiff's release from prison, he instituted an action for damages
against the defendant on the basis that the defendant’s servants at the prison had by their conduct caused him to be-
come infected with TB. In the High Court (Lee v Minister of Correctional Services 2011 6 SA 564 (WCC)) the
plaintiff succeeded with his claim. On appeal (Minister of Correctional Services v Lee 2012 3 SA 617 (SCA)) the
decision of the High Court was dismissed because the plaintiff could not prove that there was a factual causal con-
nection between the prison officials’ negligence and the plaintiff’s infection with TB (see Neethling 2013 TSAR
177–186). In the CC, Nkabinde J held in her majority decision that factual causation was present and the plaintiff
succeeded with his claim (see Neethling and Potgieter 2013 (2) LitNet Akademies 1–12; Wessels 2013 (3) LitNet
Akademies 68–112; Brand in Visser and Pretorius (eds) 43 ff). See also Oppelt v Department of Health, Western
Cape 2016 1 SA 325 (CC) paras 45–49; CA v GS [2016] 4 All SA 386 (WCC) paras 79–80; Dias v Petropulos
2018 6 SA 149 (WCC) paras 129 ff; cf SS v Road Accident Fund [2016] 3 All SA 637 (GP). The CC’s judgments
in Lee have been met with strong criticism. Wallis 2019 SALJ 165 ff 188, after an incisive analysis of Lee,
concludes that “Lee leaves us in a morass of uncertainty”, that “the majority judgment did not change the law, but
arrived at the result through a defective analysis of the evidence and by drawing an untenable conclusion from it”,
that it “hinted at possible changes to the law without indicating what they were”, and that the minority “wanted
change, but on an unspecified basis, along a path that had been shown elsewhere to lead to nothing but confusion”;
Fagan Aquilian Liability 317–322 335 (see also Undoing Delict 216 ff, 2014 Constitutional Court Rev 104 ff) says
that much of what was said in the majority judgment on causation, was mistaken; Price 2014 SALJ 491 ff states that
the majority judgment in Lee is concerning, because its implications for factual causation are uncertain; and Paizes
2014 SALJ 501 regards the approach of the majority “unsustainable and unsound” and Cameron J’s minority judg-
ment as “irresistible”. See also Green in Potgieter, Knobel and Jansen (eds) 180 ff for insightful observations on Lee;
cf Van Wyk in Potgieter, Knobel and Jansen (eds) 505–508.
67 Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 163 ff. The court referred to Kakamas Bestuursraad v
Louw 1960 2 SA 202 (A) 220 and Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A) 917í918.
See also Visser and Kennedy-Good 2015 Obiter 150 ff. There has been some debate as to whether Lee changed the
law on factual causation (see AN v MEC for Health, Eastern Cape [2019] 4 All SA 1 (SCA) paras 4í8). According
to Wallis 2019 SALJ 165 ff, Lee did not do so, while Fagan in Undoing Delict 216 ff comes to the opposite conclu-
sion (cf also the previous fn). From this Gorven AJA in AN para 6 opined that Lee muddied the waters of factual
causation. However, the CC made it clear in Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528
(CC) para 65 that Lee did not change the test for factual causation: “Lee never sought to replace the pre-existing
approach to factual causation. It adopted an approach to causation premised on the flexibility that has always been
recognised in the traditional approach. It is particularly apt where the harm that has ensued is closely connected to
an omission of a defendant that carries the duty to prevent the harm. Regard being had to all the facts, the question
is whether the harm would nevertheless have ensued, even if the omission had not occurred. However, where the
traditional but-for test is adequate to establish a causal link it may not be necessary, as in the present case, to resort
to the Lee test.” The court in Mashongwa para 66 then applied the traditional but-for test which was in line
with Lee para 63 which seemed to embrace a flexible approach to causation only “where the specific incident or
source . . . cannot be identified”. Gorven AJA para 8 did not believe that it was necessary to resolve that debate
here, but he nevertheless applied the traditional but-for test as in Mashongwa because the source of harm in AN was
known. This approach can be supported as long as the flexible view in Lee is applied whenever the traditional test
produces an unfair outcome. Cf also Oppelt v Department of Health, Western Cape 2016 1 SA 325 (CC) para 48
where Molemela AJ stated: “The starting point, in terms of the ‘but-for’ test, is to introduce into the facts a hypo-
thetical non-negligent conduct of the defendant and then to ask the question whether the harm would have nonethe-
less ensued. If, but for the negligent omission, the harm would not have ensued, the requisite causal link would
have been established. The rule is not inflexible. Ultimately, it is a matter of common sense whether the facts estab-
lish a sufficiently close link between the harm and the unreasonable omission.”
With reference to the onus resting on plaintiff, it is sometimes said that the prospect of avoiding the
[damage] through the hypothetical elimination of the wrongful conduct must be more than 50%. This is
often followed by the criticism that the resulting all-or-nothing effect of the approach is unsatisfactory
and unfair. A plaintiff who can establish a 51% chance, so it is said, gets everything, while a 49% pro-
spect results in total failure. This, however, is not how the process of legal reasoning works. The legal
mind enquires: What is more likely? The issue is one of persuasion, which is ill-reflected in formulaic
quantification. The question of percentages does not arise . . . Application of the ‘but for’ test is not
based on mathematics, pure science or philosophy. It is a matter of common sense, based on the practical
way in which the ordinary person’s mind works against the background of everyday-life experiences.
A clear example where strict adherence to logic fails, are instances of so-called cumulative
causation69 where the common-sense approach of the man in the street provides a satisfactory
answer. The flexible approach to factual causation is supported because common sense rather
than strict logic should prevail and where the question as to what is more probable should not be
based on a mathematical thought process but rather, as Nugent JA eloquently stated, “on the
practical way in which the ordinary person’s mind works against the background of everyday-
life experiences”.
It is, however, clear that the application of conditio sine qua non, even in its flexible form,
would in certain cases lead to a denial of liability in our law because it had been more probable
than not that the defendants did not cause the harmful result.70 This consequence may be unac-
ceptable in certain circumstances since justice would be denied. In our law such an unfair
outcome of the but-for test could perhaps be circumvented by means of the element of legal
causation where the basic question is whether there was a sufficiently close relationship between
the defendant’s negligent conduct and the victim’s damage that the damage should be attributed
to the defendant, taking into account policy considerations based on fairness, reasonableness and
justice.71 To ascertain whether such a relationship existed, the negligent exposure to a risk of
harm may play a significant part.72
________________________
68 2007 1 SA 111 (SCA) 125; see also Za v Smith 2015 4 SA 574 (SCA) 589; Minister of Safety and Security v Van
Duivenboden 2002 6 SA 431 (SCA) 449; Bridgman NO v Witzenberg Municipality 2017 3 SA 435 (WCC) 159 ff;
Department of Health: Western Cape v Oppelt (238/2013) [2014] ZASCA 135 para 22; Mashongwa v Passenger
Rail Agency of South Africa 2016 3 SA 528 (CC) para 65; Life Healthcare Group (Pty) Ltd v Suliman 2019 2 SA
185 (SCA) 190 192; cf Barley v Moore [2017] 3 All SA 799 (WCC) paras 66í67 70 (Neethling 2019 TSAR 774); K
v Minister of Safety and Security [2019] 1 All SA 415 (ECP) paras 204í209; Minister of Police v K (case no
403/2019) [2020] ZASCA 50 (6 May 2020) paras 57–59; MS v Road Accident Fund [2019] 3 All SA 626 (GJ)
paras 10 18í19; Dias v Petropulos 2018 6 SA 149 (WCC) para 134; Brand in Visser and Pretorius (eds) 45í46 53.
69 As has already been pointed out supra 220.
70 See, eg, the decision in the English case of Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1
AC 32 to which Cameron J referred in his minority judgment in Lee v Minister of Correctional Services 2013 2 SA
144 (CC) 179 ff; cf Batohi v Roux [2019] 1 All SA 390 (KZD) paras 55 ff. The facts in Fairchild were as follows:
The claimants contracted mesothelioma because successive employers negligently exposed them to asbestos dust.
Although inhaling asbestos dust and fibres plays some part in causing the disease, the precise way in which a meso-
thelial cell is transformed into a mesothelioma is unknown. All that was certain was that the greater the exposure,
the greater the overall risk of contracting mesothelioma. The claimants’ difficulty was that the condition can be
caused by being exposed to a single asbestos fibre – so it was impossible for them to prove precisely which em-
ployer had negligently caused their injury. It was also impossible for them to prove that the negligence of any one
employer had more probably than not caused their exposure. No claimant could prove that “but for” the negligence
of any specified employer, the injury would probably not have occurred. Thus, though any one of the employers
might have caused the disease, the claimants could not prove which of them probably did. The House of Lords held
that the claimants were entitled to recover from any of the negligent employers. However, as pointed out by Wallis
2019 SALJ 186–187, Fairchild has met with strong criticism whilst Green in Potgieter, Knobel and Jansen (eds) 182
points out that Lee and Fairchild are not comparable.
71 See infra 233; cf Neethling 2003 SALJ 263–268; and on the question of causation and “multiple tortfeasors”, Faure
in Potgieter, Knobel and Jansen (eds) 151–160.
72 To which Cameron J referred in Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 174; cf Loubser and
Midgley Delict 114–115. See Brand in Visser and Pretorius (eds) 46 ff 55–56 for a critical discussion of this
approach.
228 Law of Delict
2.6 The determination of a factual (causal) nexus

Since conditio sine qua non cannot really function as a valid test for causation on the grounds of
logic and comparative law referred to above, the question of what test or method should then be
used in this regard arises.73 The point of departure is to have clarity on what factual causation is.
Factual causation concerns a particular kind of link or connection between at least two facts or
sets of facts, ie, the link existing when, stated succinctly, one fact arises out of another.74 In
other words, if fact X is a reason why fact Y exists, or exists in a particular form, or has come
into existence at a particular time, it may be said that X is a factual cause of Y. It stands to
reason that due to the dynamic and complex nature of reality it is neither possible, nor necessary,
to find a general “test” by means of which causation in general may be determined. In a particu-
lar set of facts, by contrast, it is necessary to indicate on what grounds a conclusion is based that
fact X, for example, the relevant act of the wrongdoer, caused the relevant fact Y, for example,
the damage suffered by the plaintiff. The existence of a factual causal chain must therefore be
demonstrated in view of the proved relevant facts. A test for factual causation therefore depends
on the facts of each case and is not something of a general nature that can be applicable to all
factual complexes. In other words, there are probably as many “tests” for causation as there are
causal links. An overview of the case law dealing with factual causation confirms this conclu-
sion.
It is incorrect to state that a test for factual causation also contains “normative” elements or
policy considerations.75 As stated, factual causation is something that either exists or does not
exist, and no legal rules, other norms or theorising can make any difference to this; therefore
factual causation is in itself not a policy matter, but rather a pure question of fact.76 Of course the
position differs in respect of legal causation, where normative imputability of particular remote
consequences is dealt with.77
The fact that determination of a factual causal nexus in the reported case law produces relatively
few problems proves that no need for a general and all-encompassing “test” of causation
exists.78 The courts usually determine (or test) on the basis of the evidence and probabilities
whether a factual causal link between the act and the harmful consequence exists without really
employing the method of the conditio sine qua non – although lip-service is paid to this “test” to
affirm the conclusion of a factual causal link.
It stands to reason that knowledge and experience, as well as reliable evidence, are required to
determine a causal link.79 This knowledge may be of a simple nature (for example, that a match
________________________
73 Cf, eg, the accusation of Van der Merwe and Olivier 198 ff that Van Rensburg’s criticism against the conditio sine
qua non method is negative in nature and that he does not propose any alternative test for causation.
74 See Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 161–162; see also other cases in which factual
causation was relevant in, eg, fns 7 9 13 supra. See further Van Rensburg Juridiese Kousaliteit 141 152 for a theo-
retical discussion.
75 Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 163; see however Van der Walt and Midgley Delict
276 who hold the view that “any test for causation has some normative elements and policy issues do in fact sur-
face when the existence of a factual link is considered”; cf Du Plessis 2010 THRHR 550; Loubser and Midgley De-
lict 117–119.
76 See, eg, Van der Walt and Midgley 279 who refer to dicta from Minister of Safety and Security v Van Duivenboden
2002 6 SA 431 (SCA) 449; quoted supra fn 55.
77 Infra 230.
78 As shown, conditio sine qua non is in any case not a test for causation and it is impossible to formulate a “true” test
that would cover all situations because the reality of cause and result is too complex for the generalisation which
must necessarily form the foundation of such a test.
79 Cf also Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 449: “A plaintiff is not required
to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of
the loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the
evidence and what can be expected to occur in the ordinary course of human affairs.” Cf Loubser and Midgley De-
lict 114.
may cause petrol to ignite) or it may be of an expert nature (for example, that the eating of
cheese when a certain medicine is used, may cause a stroke).80 Without knowledge that a certain
antecedent may in principle cause a certain result, it is impossible in an actual case to establish
whether an act has in fact caused a result.81 Since there is no magic formula by which one can
generally establish a causal nexus, the existence of such a nexus will depend on the facts of a
particular case, and a characteristic of a causal nexus is that one fact arises out of another.82
Whether one fact originated from another must be established according to human experience in
general and that of the judge of the facts in particular. In practice, a causal nexus is, just like
other legally relevant facts, determined by the court (with as much ease or difficulty as any other
fact) on the basis of the evidence. A causal nexus like the one referred to above can, of course,
exist only between actual (and not hypothetical) events.
It must further be noted that the law approaches factual causation differently from, for example,
medical science.83 If, for instance, X stabs Y with a knife and Y is then taken to hospital where,
as a result of the negligent conduct of a nurse, he falls off his bed, suffers a fractured skull and
dies, medical science will probably identify the fractured skull as the cause of death while the
law will view the initial stabbing as well as the negligent conduct of the nurse as causes of
death.84 It must be clear that the causes of a certain consequence, or the consequences of a cause,
can be practically unlimited. This is the reason why our law does not merely accept liability
based on the factual causing of a harmful consequence and uses criteria of legal causation85 to
limit liability.
________________________
80 Alston v Marine and Trade Insurance Co Ltd 1964 4 SA 112 (W) infra fn 99.
81 See Ocean Accident and Guarantee Corporation Ltd v Koch 1963 4 SA 147 (A) 151 (the facts quoted in fn 3
supra): “In the present state of medical knowledge the heart attack suffered by the respondent might equally have
been caused by overweight (the respondent is stated to have been obese); or by advanced age coupled with the dis-
eased state of his arteries (Dr Viljoen has stated that the incidence of coronary thrombosis among persons in the re-
spondent’s age group is high); or by some other agency or combination of agencies wholly unconnected with the
state of the respondent’s nerves. In my opinion it cannot therefore be stated with the necessary degree of certainty
that in this case the heightened state of anxiety was the cause of the respondent’s coronary thrombosis. One may
have a grave suspicion that the heightened state of anxiety was a contributing factor, but mere suspicion, although
grave, is not sufficient to discharge the onus of proof.” See, eg, Beurain h/a Toptrans Transport v Regering van die
Republiek van Suid-Afrika 2001 4 SA 921 (O) 929 ff – role and handling of expert and other evidence on the slip
resistance of a road and the influence thereof on a collision with a bridge on a highway.
82 This approach is evident in Smit v Abrahams 1994 4 SA 1 (A). In this instance the vehicle used by the plaintiff in
exercising the occupation of a hawker was irreparably damaged in a collision with the defendant. Plaintiff claimed
damages from the defendant in respect of the market value of the vehicle as well as the renting of a substitute ve-
hicle. It was argued on behalf of the defendant that the latter claim was not permissible because the loss was caused
by the plaintiff’s impecuniosity which prevented him from buying a substitute vehicle. Botha JA (13–14) indicated
that the question of factual causation does not present problems in this case. In a factual sense, the plaintiff's dam-
age was definitely caused by the defendant's conduct. The fact that the plaintiff was unable to purchase a substitute
bakkie means that in a factual sense his impecuniosity was a co-determinant of the loss. In other words, the judge
found that the fact that the plaintiff could not purchase another vehicle was partially caused by his unfavourable fi-
nancial position. It is significant that the court came to this conclusion without referring to or “applying” conditio
sine qua non (see also Neethling and Potgieter 1995 THRHR 347). Cf also S v Mokgethi 1990 1 SA 32 (A) where
the Appellate Division established causation in a sensible manner (without referring to conditio sine qua non)
through a reconstruction of the actual events from the moment the deceased suffered a bullet wound, his failure to
shift his position sufficiently in the wheelchair, the resultant pressure sores and septicaemia and his eventual death
(see fn 39 supra). See also Bayer South Africa (Pty) Ltd v Viljoen 1990 2 SA 647 (A) (see infra 358 fn 203 365
fn 248) where the court ignored the conditio sine qua non “test” and established a causal nexus on the evidence. See
further S v Williams 1986 4 SA 1188 (A) (where it was held that the termination of fruitless efforts to save the life
of a seriously wounded person does not interrupt the causal nexus between the initial wound and his eventual
death). See also Fourie v Hansen 2001 2 SA 823 (W).
83 Scientists from the natural sciences sometimes think that causation only exists in the field of their study – and
therefore religious, linguistic, social, psychological and spiritual aspects are incorrectly undervalued in respect of
causation (see further Van Rensburg Juridiese Kousaliteit 62).
84 Van Oosten 1982 De Jure 256–257.
85 Infra 230 ff.
230 Law of Delict
As explained above,86 in determining factual causation in a case of omission, the court must in
general determine what the alleged wrongdoer could have done in the circumstances to prevent
the relevant consequence – for instance, would the opposition by the state of a bail application
have prevented the subsequent assault of the plaintiff by a criminal who was released after the
state had failed to oppose the bail application?87 Or would searching for children have saved
their lives?88 It must be clear that only if the defendant could in the circumstances have done
something (in the form of positive conduct) to change the factual course of events to a meaning-
ful extent, do the questions concerning a legal duty and reasonable conduct (wrongfulness and
negligence) arise.89
In conclusion, it should be noted that it is usually sufficient for the purposes of factual causation
if a defendant’s conduct has in any way contributed to the damage sustained by the plaintiff; for
causation it is unnecessary that his conduct should be the only cause,90 or the main cause, or a
direct cause.91
3 Legal causation92
3.1 General
As has been explained earlier,93 no legal system holds a wrongdoer liable without some limita-
tion for the endless chain of harmful consequences which his act may have caused. There is
general agreement that some means must be found of limiting the wrongdoer’s liability.94 The
question of legal causation arises when determining which harmful consequences actually
caused by the wrongdoer’s wrongful, culpable act he should be held liable for;95 in other words,
________________________
86 See supra fn 62.

87 See Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA).
88 See, eg, S v Van As 1967 4 SA 594 (A).
89 See supra fn 62 and 223 as regards the determination of factual causation in the case of omissions; Neethling 2005
TSAR 408. As to the practical handling of causation, cf, eg, Minister of Safety and Security v Van Duivenboden
2002 6 SA 431 (SCA) 449; Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA) 531–532;
Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 239–240. In this regard, care must be taken not to
confuse factual causation with wrongfulness and negligence (see supra fn 62).
90 Due to the complex and dynamic nature of reality it is in any case inconceivable that a consequence can have only
one cause. The law is, of course, interested only in causes relating to voluntary behaviour of the defendant.
91 See however infra 364 with regard to negligent misrepresentation.
92 See in general Van der Walt and Midgley 285–296; Loubser and Midgley Delict 123 ff; Boberg Delict 439 ff; Van
der Merwe and Olivier 196 ff; Van Rensburg Normatiewe Voorsienbaarheid 1–63, Juridiese Kousaliteit 154 ff;
Potgieter, Steynberg and Floyd Damages 307–315; Burchell Delict 119–122; Fagan Aquilian Liability 339 ff;
Mukheibir 2015 SALJ 28; Snyman Criminal Law 83 ff; Van Oosten Oorsaaklikheid 1 ff, 1982 De Jure 239 ff, 1983
De Jure 36 ff; Potgieter 1990 THRHR 267; Neethling and Potgieter 1995 THRHR 343.
93 Supra 215. See also Van der Walt and Midgley Delict 275; Van der Merwe and Olivier 197–198; Van Rensburg
Juridiese Kousaliteit 181–182.
94 Ibid. In Napier v Collett 1995 3 SA 140 (A) 143 EM Grosskopf JA formulated this as follows: “The theoretical
consequences of an act stretch into infinity. Some means must be found to limit legal responsiblity for such conse-
quences in a reasonable, practical and just manner . . . Many criteria have been suggested for this purpose.” Ac-
cording to Nugent JA in First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319 (SCA) 321, factual
causation should be tempered “so as to contain liability within reasonable grounds”.
95 Factual and legal causation must be clearly distinguished (supra 215). Factual causation is present in a given case if
it has been proved on a preponderance of probability that the act concerned has caused the relevant consequence; in
other words, that the damage flowed from the act (supra 228). Conversely, legal causation concerns the question of
whether the actor should be held liable for the damage he has caused in a wrongful and culpable manner. Cor-
bett JA expressed this distinction as follows in Tuck v Commissioner for Inland Revenue 1988 3 SA 819 (A) 832–
833: “[I]t is generally recognised that causation in the law of delict gives rise to two distinct enquiries. The first,
often termed ‘causation in fact’ or ‘factual causation’, is whether there is a factual link of cause and effect between
the act or omission of the party concerned and the harm for which he is sought to be held liable; and in this sphere
the generally recognised test is that of the conditio sine qua non or the ‘but for’ test. This is essentially a factual en-
quiry. Generally speaking no act or omission can be regarded as a cause in fact unless it passes this test. [See supra
[continued ]
which consequences should be imputed to him.96 It is sometimes stated in general terms that the
wrongdoer is not liable for harm which is “too remote” from the conduct; hence the term “re-
moteness of damage” for legal causation or the problem of imputability of harm.97
In most cases of delict, the harm for which the wrongdoer is to be held liable clearly falls within
the limits of his liability, so that it is unnecessary to examine legal causation or the imputability
of harm in express terms.98 In such cases it is normally quite evident that the harm should be
imputed to him. In a sense the question of legal causation is tacitly dealt with within the frame-
work of the investigation into the other elements of delict – especially wrongfulness and fault.
Normally legal causation is only problematic where a chain of consecutive or remote conse-
quences (“ulterior harm”) results from the wrongdoer’s conduct, and where it is alleged that he
________________________
219 for criticism of the conditio sine qua non test.] The second enquiry postulates that the act or omission is a con-
ditio sine qua non and raises the question as to whether the link between the act or omission and the harm is suffi-
ciently close or direct for legal liability to ensue; or whether the harm is, as it is said, ‘too remote’. This enquiry
(sometimes called ‘causation in law’ or ‘legal causation’) is concerned basically with a juridical problem in which
considerations of legal policy may play a part.” (See also Fourway Haulage SA (Pty) Ltd v SA National Roads
Agency Ltd 2009 2 SA 150 (SCA) 163–164; International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) 700–
702; Road Accident Fund v Sauls 2002 2 SA 55 (SCA) 61; OK Bazaars (1929) Ltd v Standard Bank of South
Africa Ltd 2002 3 SA 688 (SCA) 697 699; S v Mokgethi 1990 1 SA 32 (A) 39 ff; Standard Chartered Bank of Can-
ada v Nedperm Bank Ltd 1994 4 SA 747 (A) 763 ff; Napier v Collett 1995 3 SA 140 (A) 143 ff; Neethling v Oost-
huizen 2009 5 SA 376 (WCC) 388; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382
(W) 399; Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 397; Clinton-Parker and Dawkins v Administrator,
Transvaal 1996 2 SA 37 (W) 55; Vigario v Afrox Ltd 1996 3 SA 450 (W) 464; Gibson v Berkowitz 1996 4 SA 1029
(W) 1039–1040; Ncoyo v Commissioner of Police, Ciskei 1998 1 SA 128 (Ck) 137–139 (see Scott 1998 De Jure
179; Dendy 1998 SALJ 583 for discussions); Bonitas Medical Aid Fund v Volkskas Bank Ltd 1992 2 SA 42 (W) 49;
Smit v Abrahams 1992 3 SA 158 (C) 161 ff; Clarke v Hurst 1992 4 SA 630 (D) 659; Ebrahim v Minister of Law
and Order 1993 2 SA 559 (T) 564–566; Minister of Police v Skosana 1977 1 SA 31 (A) 34–35; Masiba v Constan-
tia Insurance Co Ltd 1982 4 SA 333 (C) 341–342; Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA
888 (A) 914; Standard Bank of South Africa Ltd v Coetsee 1981 1 SA 1131 (A) 1134 1140; Van der Walt and
Midgley Delict 275; Van der Merwe and Olivier 197; Burchell Delict 32–34 112–114; Neethling and Potgieter
1995 THRHR 343; Boberg Delict 380 ff; Snyman Criminal Law 83 ff; Mukheibir 2015 SALJ 28–29.)
96 “Legal causation must be established on a balance of probabilities” (Oppelt v Department of Health, Western Cape
2016 1 SA 325 (CC) para 35; see also Lee v Minister for Correctional Services 2013 2 SA 144 (CC) para 39).
97 The concepts “legal causation”, “limitation of liability” and “imputability of harm” are used synonymously to
indicate the process whereby the court determines which of the heads of damage caused by an actor he should be
held liable for. See Clarke v Hurst 1992 4 SA 630 (D) 660: “The question is whether the result can fairly be said to
be imputable to the defendant.” According to Botha JA in Smit v Abrahams 1994 4 SA 1 (A) 16, the question is
whether there was a sufficiently close relationship between the defendant’s wrongful act and the damage suffered
by the plaintiff, and in Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) Corbett CJ
put it as follows: “It is still necessary to determine legal causation, ie whether the furnishing of the untrue report
was linked sufficiently closely or directly to the loss for legal liability to ensue, or whether the loss is too remote.”
According to Harms JA in Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 332, legal causation
deals with the question of whether “the wrongful act is linked sufficiently closely or directly to the loss for legal
liability to ensue or whether, as it is said, the loss is too remote. This is basically a juridical problem in the solution
of which considerations of policy may play a part”. (See further Lee v Minister of Correctional Services 2013 2 SA
144 (CC) 171–172; Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 37; Fourway Haulage
SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 163–164; Minister of Safety and Security v
WH 2009 4 SA 213 (E) 221; Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) 451; Minis-
ter of Safety and Security v Hamilton 2004 2 SA 216 (SCA) 239–240 241; Minister van Veiligheid en Sekuriteit v
Geldenhuys 2004 1 SA 515 (SCA) 531; Moses v Minister of Safety and Security 2000 3 SA 106 (C) 117; Van der
Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) 472 473 ff; Saaiman v Minister of Safety and Secur-
ity 2003 3 SA 496 (O) 505–506; Vigario v Afrox Ltd 1996 3 SA 450 (W); Gibson v Berkowitz 1996 4 SA 1029 (W)
1039–1040; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 399. Cf Neethling
and Potgieter 1995 THRHR 344; 2004 TSAR 764 ff; Knobel 2005 THRHR 493 ff; Mukheibir 2015 SALJ 28–29.)
98 Van Rensburg Normatiewe Voorsienbaarheid 2–3; cf Van Oosten 1982 De Jure 253–254.
232 Law of Delict
should not be held legally responsible for all the consequences.99 Nevertheless, the limits of
liability should, in principle, be determined in respect of every delictual claim, and the fact that
this determination in most cases need not be made expressly, should not lead one to believe that
legal causation is relevant only in exceptional cases.100
It would be incorrect to describe legal causation as the only mechanism for the limitation of
liability in delict. In a sense, the limitless liability, which could have been brought about by
factual causation in itself, is “limited” by those elements of a delict which establish liability.101
For example, the liability of an actor who in fact causes damage, but who does not act wrongful-
ly, or who acts wrongfully but not negligently, is “limited” by (the absence of) the elements
________________________
99 Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 624–625. (See also Van Rensburg Normatiewe
Voorsienbaarheid 1–2, Juridiese Kousaliteit 175 ff; Van der Merwe and Olivier 201 ff; Van Oosten 1982 De Jure
239 ff, 1983 De Jure 36 ff.) The need for legal causation appears clearly from two well-known examples from case
law, Alston v Marine and Trade Insurance Co Ltd 1964 4 SA 112 (W) and Mafesa v Parity Versekeringsmaatskap-
py Bpk 1968 2 SA 603 (O) (cf Van Rensburg Normatiewe Voorsienbaarheid 34). The facts of the Alston case were
as follows: the plaintiff suffered a brain injury in a motor car accident which was attributable to the negligence of
the driver of a car insured by the defendant. As a result of the brain injury, the plaintiff started to suffer from manic
depression, for which he was treated with parstellin, an acknowledged remedy for this condition. According to
medical knowledge at that time, there was no reason to believe that the use of parstellin presented any danger.
However, when the plaintiff ate cheese after taking parstellin, he suffered a stroke, resulting in additional loss of (as
was claimed) R900. It appeared afterwards that eating cheese after taking parstellin is extremely dangerous and
may even lead to death. In the Mafesa case the following took place: the plaintiff’s leg was broken in various places
in a motor car accident that was attributable to the negligence of the driver of a bakkie of which the defendant was the
third-party insurer. When the fractures healed sufficiently to support the leg, the plaintiff was discharged from hospital.
Due to the fact that his leg was still in plaster of Paris at that stage, he was supplied with crutches and warned not to
place weight on the leg because it could fracture again. Within the first month after his discharge, the plaintiff slipped
using his crutches, fell and broke his leg again. As a result, his convalescence was delayed by six months and the medi-
cal expenses increased considerably. In these two examples the question of legal causation came to the fore when it had
to be decided whether the defendant in the first case should also be held liable for the treatment of the stroke, and in the
second case for the treatment resulting from the second fracture. Factual causation was not in issue in these two cases.
In both cases it was clear from the facts that an actual, causal connection existed between the act and the (remote) con-
sequence concerned.
In Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) the plaintiff, an innocent bystander, was
shot by a dangerous criminal escaping from prison. The plaintiff claimed damages from the defendant on the basis
of vicarious liability for the failure of the prison warders to prevent the escape. According to the court, the only
question to be considered concerned legal causation (466 472): “viz whether the loss suffered by plaintiff should be
regarded as being too remote for the defendant to be held liable” (472). The court found that legal causation was
present and held the state liable. In reality there was no “remote consequence” and the court could have completed
the case during the determination of negligence (see supra 164); this was clearly a case where determining negli-
gence simultaneously answered the question of legal causation (cf Neethling and Potgieter 2004 TSAR 764 ff;
Knobel 2005 THRHR 493 ff).
100 Van Rensburg Normatiewe Voorsienbaarheid 2–3. Due to the fact that it has to be determined in every case which
consequences fall within the limits of the wrongdoer’s liability, legal causation or imputability of harm is probably
an additional element of, or requirement for, a delict. According to Van Rensburg ibid one could therefore speak of
the imputability requirement or element of a delict (which should naturally not be confused with the capacity for
having a blameworthy state of mind or accountability (supra 157)). Van Rensburg ibid correctly points out that, in
most delicts, the element of wrongfulness is so clearly present that, in determining the liability of the actor, it is not
at all necessary to refer to it. Nevertheless, no able-minded jurist would for this reason deny the existence of wrong-
fulness as an independent element of the delict concerned. The same applies to legal causation.
101 In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 163–164 Brand JA
stated this in the following words: “Broadly speaking, wrongfulness . . . on the one hand, and remoteness on the
other, perform the same function. They are both measures of control. They both serve as a ‘longstop’ where most
right-minded people, including judges, will regard the imposition of liability as untenable, despite the presence of
all other elements of delictual liability.” See also De Klerk v Minister of Police 2019 12 BCLR 1425 (CC) para 27.
Mukheibir 2015 SALJ 28–30 states: “Ultimately, when applied correctly, the elements of a delict, and in particular
the element of legal causation, should ensure that liability will not be limitless.” See further Schippers AJA’s judg-
ment in Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA 391 (SCA)
paras 73 ff; Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 1 SA 1
(CC) para 25; mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) 481.
of wrongfulness and fault respectively.102 However, legal causation as an independent element

arises specifically where it appears that the wrongdoer’s conduct was wrongful and culpable
with reference to at least certain consequences (and that the consequences concerned should, in
addition, be imputed to him), but where additional consequences (“ulterior harm”) result and the
question arises whether he should be liable for those additional consequences.103
The question is, therefore, what criterion should be applied to determine legal causation. Until
recently opinions differed in this regard.104 Although the courts acknowledged the existence of
the problem of legal causation,105 they were in the past either hesitant to lay down a single,
inflexible criterion by which the imputability of harm is to be determined,106 or they took a
neutral stance in respect of the test to be applied.107 The best-known theories108 for determining
legal causation are the flexible approach, based on policy considerations, reasonableness,
fairness and justice, the theory of adequate causation, the “direct consequences” criterion; the
theory of fault and the reasonable foreseeability criterion. Until recently it has generally been
accepted109 that the reasonable foreseeability criterion is preferred by the courts.110 However, the
Appellate Division has now expressed itself in favour of a flexible approach, in terms of which
there is no single criterion which can be applied to all situations.111 The different approaches to
legal causation will be discussed next.
3.2 The flexible approach112

The present approach of the courts to legal causation has been set out fairly extensively by the
Appellate Division in a criminal case, S v Mokgethi,113 and was thereafter confirmed in several
cases dealing with private law.114
________________________
102 Cf in this regard, eg, Rumpff CJ’s remark on the limiting role of the elements of causation, wrongfulness and fault
in the case of negligent misrepresentation in Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A)
833; infra 359.
103 In other words, these are cases where the normal elements that establish liability (act, factual causation, damage,
wrongfulness and fault) do not succeed in limiting liability, and the need arises for the express application of legal
causation as an additional element to determine the limits of the wrongdoer’s liability.
104 Van der Walt and Midgley Delict 286; Loubser and Midgley Delict 123; Boberg Delict 381 ff; Van der Merwe and
Olivier 204; Van Rensburg Normatiewe Voorsienbaarheid 5; Burchell Delict 119 ff; Clarke v Hurst 1992 4 SA 630
(D) 660; Snyman Criminal Law 83; Van Oosten 1982 De Jure 253 ff.
105 See fn 95 supra.
106 Van der Walt and Midgley Delict 286; Boberg Delict 440; Van der Merwe and Olivier 216; Van Rensburg
Juridiese Kousaliteit 229 ff; Van Oosten 1982 De Jure 253 ff, 1983 De Jure 36 ff; Burchell Delict 119.
107 Cf Da Silva v Coutinho 1971 3 SA 123 (A); Moehlen v National Employers’ Mutual General Insurance Associa-
tion Ltd 1959 2 SA 317 (R); Smit v General Accident Fire and Life Assurance Corporation Ltd 1964 3 SA 739 (C);
and the other cases cited by Van Rensburg Juridiese Kousaliteit 229.
108 Which will be discussed presently.
109 Van der Walt and Midgley Delict 285 ff 292 ff; Boberg Delict 445 447; cf Van der Merwe and Olivier 216 223–
224; Van Rensburg Normatiewe Voorsienbaarheid 31 ff, Juridiese Kousaliteit 233–241.
110 See the decisions mentioned infra 248 in the discussion of reasonable foreseeability.
111 See infra 233 ff and case law cited there.
112 See in general Van der Walt and Midgley Delict 285 ff; Loubser and Midgley Delict 125–128; Fagan Aquilian
Liability 367 381 ff.
113 1990 1 SA 32 (A) 39 ff. See for a discussion, Potgieter 1990 THRHR 267; Du Plessis 1990 TSAR 748; Loubser and
Midgley Delict 125–128.
114 See, inter alia, mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) 482; International Shipping Co
(Pty) Ltd v Bentley 1990 1 SA 680 (A) 700 ff; OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3
SA 688 (SCA) 699; Clarke v Hurst 1992 4 SA 630 (D) 660; Smit v Abrahams 1994 4 SA 1 (A) 14 ff (cf Neethling
and Potgieter 1995 THRHR 343); Road Accident Fund v Sauls 2002 2 SA 55 (SCA) 61; Standard Chartered Bank
of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 764 ff (cf Neethling and Potgieter 1995 THRHR 343); Napier v
Collett 1995 3 SA 140 (A) 143 ff; cf also Road Accident Fund v Russell 2001 2 SA 34 (SCA) 39 ff; Groenewald v
Groenewald 1998 2 SA 1106 (SCA) 1113; Barnard v Santam Bpk 1999 1 SA 202 (SCA) 215–217; Hing v Road
Accident Fund 2014 3 SA 350 (WCC) 367–369; Minister for Safety and Security v Scott [2014] 3 All SA 306
(SCA) para 38; Clinton-Parker and Dawkins v Administrator, Transvaal 1992 6 SA 37 (W) 55; Bonitas Medical
[continued ]
234 Law of Delict
In S v Mokgethi115 Van Heerden JA116 held that there is no single and general criterion for legal
causation which is applicable in all instances. A flexible approach is accordingly suggested. The
basic question 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.117 However, the existing criteria
for legal causation (such as direct consequences and reasonable foreseeability)118 may play a
subsidiary role in determining legal causation within the framework of this elastic approach.119
Van Heerden JA commented on this approach as follows:120
________________________
Aid Fund v Volkskas Bank Ltd 1992 2 SA 42 (W) 49; Clarke v Hurst 1992 4 SA 630 (D) 659; Ebrahim v Minister
of Law and Order 1993 2 SA 559 (T) 564–566; Majiet v Santam Ltd [1997] 4 All SA 555 (C) 561–562 568–569;
Thandani v Minister of Law and Order 1991 1 SA 702 (E); Minister of Finance v EBN Trading (Pty) Ltd 1998 2
SA 319 (N) 329; Concord Insurance Co Ltd v Oelofsen 1992 4 SA 669 (A) 673–674; Vigario v Afrox Ltd 1996 3
SA 450 (W) 464; Ncoyo v Commissioner of Police, Ciskei 1998 1 SA 128 (Ck) 138–139; Gibson v Berkowitz 1996
4 SA 1029 (W) 1040–1041; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 398
ff; Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 397 ff. Contrary to what Olivier JA said in Mukheiber v
Raath 1999 3 SA 1065 (SCA) 1077, the law concerning legal causation as embodied in the flexible approach is not
unclear (cf Neethling and Potgieter 2000 THRHR 162 165).
115 1990 1 SA 32 (A). In this case the deceased was a bank teller, and was shot between the shoulder blades by one of
the appellants during a robbery. The deceased did not die immediately, but only six months later. The deceased had
become a paraplegic as a result of the shot and had to use a wheelchair. His condition improved to such an extent
that he later resumed his work at the bank. He was, however, later readmitted to hospital suffering from serious
pressure sores and septicaemia, which had developed because he had failed to change his position in the wheelchair
frequently, as he had been advised to do by the medical practitioners who treated him. The Appellate Division held
that the wounding of the deceased could not be regarded as the juridical (legal) cause of the deceased’s death for
the purposes of a charge of murder.
116 39 ff.
117 S v Mokgethi 1990 1 SA 32 (A) 40–41; see also De Klerk v Minister of Police 2019 12 BCLR 1425 (CC) paras
29í30; Minister of Police v K (case no 403/2019) [2020] ZASCA 50 (6 May 2020) para 59; Minister for Safety and
Security v Scott [2014] 3 All SA 306 (SCA) para 38; International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680
(A) 700–701; Smit v Abrahams 1994 4 SA 1 (A) 18; Standard Chartered Bank of Canada v Nedperm Bank Ltd
1994 4 SA 747 (A) 765; Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) 55 ff; Vigario
v Afrox Ltd 1996 3 SA 450 (W) 464 ff; Gibson v Berkowitz 1996 4 SA 1029 (W) 1039 ff; cf Nashua Mobile (Pty)
Ltd v GC Pale CC t/a Invasive Plant Solutions 2012 1 SA 615 (GSJ) 621–622; Neethling v Oosthuizen 2009 5 SA
376 (WCC) 388; Jacobs v Chairman, Governing Body, Rhodes High School 2011 1 SA 160 (WCC) 176; cf Neeth-
ling and Potgieter 1995 THRHR 344, 1997 THRHR 548; Mukheibir 2015 SALJ 28–30. Constitutional imperatives
also play a part in applying this approach: Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE)
475–476 (cf Knobel 2005 THRHR 493 ff; Neethling and Potgieter 2004 TSAR 764 ff). Care must be taken not to
confuse wrongfulness, negligence and legal causation (see criticism by Knobel 2005 THRHR 495 ff on aspects of
the judgment in Van der Spuy; cf Van der Walt and Midgley Delict 286; Neethling and Potgieter 2004 TSAR 764
ff). Although policy considerations play a part in determining legal causation as well as wrongfulness and a meas-
ure of overlap between the two elements is accordingly inevitable, the elements are not the same in respect of char-
acteristics, content and function. For this reason an act may be wrongful according to certain policy considerations,
but may according to other policy considerations be too remote with the result that legal causation and therefore
liability are excluded (cf Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA)
164; Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 197–198). Cf Ahmed in
Potgieter, Knobel and Jansen (eds) 57–58 on the (implicit) role of reasonableness in determining legal causation.
119 “While the separate tests have not been abolished, they inform the flexible test” (Mukheibir 2015 SALJ 28). See
also the references in fn 117 supra. In Smit v Abrahams 1994 4 SA 1 (A), Botha JA questioned the view of the
court a quo that reasonable foreseeability of loss (infra 248) is the single, decisive criterion for determining liabil-
ity. According to him, reasonable foreseeability may be used as a subsidiary test in the application of the flexible
approach, but it cannot exclude the latter approach (17). Indeed, in terms of his approach, the present matter could
have been disposed of without any reference at all to reasonable foreseeability. He would, on the facts, merely as a
matter of policy, have imputed to the defendant the loss for the renting of a substitute vehicle by the plaintiff,
whose vehicle was irreparably damaged and who, because of his impecuniosity, was unable to purchase a replace-
ment vehicle. This the judge would have done even if the damage had been so exceptional that it could not have
been regarded as reasonably foreseeable (19). In Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4
SA 747 (A) 765, Corbett CJ to an extent associated himself with this view of the role of reasonable foreseeability,
although he apparently placed less emphasis on the subsidiary nature thereof. He considered it to be one of the
[continued ]
I doubt whether a legal system can do without a dominant elastic criterion for determining legal causa-
tion. As is clear from the passages quoted above, policy considerations are relevant, and [the Court must
guard] against the alleged wrongdoer’s liability exceeding the boundaries of reasonableness, fairness and
justice. The various criteria [for legal causation] seem to me not to be significantly more exact than a
criterion (the flexible criterion) according to which [the Court determines] whether a sufficiently close
link exists between an act and a consequence with reference to policy considerations. I am not saying
that one, or even more than one, of the criteria may not be employed on a subsidiary level in the applica-
tion of the flexible criterion to a specific type of factual situation; but merely that none of the criteria can
be used [exclusively] as a more concrete measure of limitation in all types of factual situations, and for
the purpose of any form of legal liability.121
Whether one regards reasonable foreseeability (or any other test for legal causation – such as
direct consequences) as a subsidiary test,122 or simply as a factor123 in determining legal causa-
tion, the Appellate Division’s formulation and application of the flexible approach makes it clear
that these tests or factors merely function as aids in answering the basic question of imputability
of harm. Consequently, differences in emphasis found in court decisions on the role of, for
example, reasonable foreseeability, are quite acceptable as long as justice prevails in the end.124
In terms of the flexible approach, the theories of legal causation are at the service of the imput-
ability question and not vice versa.125 This means that the theories should be regarded as pointers
or criteria reflecting legal policy and legal convictions about when damage should be imputed to
a person: damage is imputable when, depending on the circumstances, it is a direct consequence
of the conduct, or reasonably foreseeable, or if it is in an adequate relationship to the conduct, or
for a combination of such reasons, or simply for reasons of legal policy.126 A court is not bound
________________________
many factors that can play a role in legal causation: “[T]he test to be applied is a flexible one in which factors such
as reasonable foreseeability, directness, the absence or presence of a novus actus interveniens, legal policy, reason-
ability, fairness and justice all play their part . . . In applying this general test there are two matters on which I pro-
pose to concentrate: firstly [certain facts of the matter] and, secondly, the question of reasonable foreseeability.” Cf
Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA 391 (SCA) para 57; Meevis
v Sheriff, Pretoria East 1999 2 SA 389 (T) 398.
120 40–41 (translation); see further Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan 2006 6 SA 537 (SCA) 541–542.
Burchell Delict 121 refers to this as a “composite test” – a blend of other tests of causation. In our submission this
is an inaccurate description of the “flexible approach”. See also Smit v Abrahams 1994 4 SA 1 (A) 18 (next fn).
121 The dominance of the flexible test for legal causation was also emphasised by Botha JA in Smit v Abrahams 1994 4
SA 1 (A) 18 where he declared: “The importance and power of the dominant criterion to solve questions of legal
causation . . . lies precisely in the flexibility thereof. It is my conviction that any attempt to detract from its flexibil-
ity, should be resisted. Comparisons between the facts of the case that must be solved and the facts of other cases
for which solutions have already been found, or which can arise hypothetically, can obviously be useful and valu-
able, and sometimes even decisive, but one should be careful not to attempt distilling rigid or generally applicable
rules or principles for the comparison. The argument that the plaintiff’s claim should be rejected ‘in principle’, is
misplaced. There is only one ‘principle’: to determine whether the plaintiff’s damage was too distant from the de-
fendant’s conduct to impute it to the latter, considerations of policy, reasonableness, fairness and justice have to be
applied on the particular facts of this case” (translation; emphasis added; cf also Standard Chartered Bank of Can-
ada v Nedperm Bank Ltd 1994 4 SA 747 (A) 765; Ncoyo v Commissioner of Police, Ciskei 1998 1 SA 128 (Ck)
138–139: cf Dendy 1998 SALJ 583 ff for criticism). But see infra 236 on the unacceptable undermining by the SCA
of the dominant nature of the flexible test.
122 As in S v Mokgethi 1990 1 SA 32 (A) 40–41; Smit v Abrahams 1994 4 SA 1 (A) 18; cf fn 119 supra.
123 As in Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 765; cf fn 119 supra.
124 See fn 119 supra; Neethling and Potgieter 1995 THRHR 346.
125 Contra Van der Merwe and Olivier 211–212 who endeavour to put their view that only foreseeable loss should be
imputed to the wrongdoer, above the existing legal position that a wrongdoer in the “egg-skull” cases must be liable
also for loss which was not reasonably foreseeable (cf infra 254).
126 Eg in Smit v Abrahams 1994 4 SA 1 (A) 17 ff Botha JA would have been able to impute the loss to the defendant
for policy reasons only, in other words, without taking reasonable foreseeability into account (cf Neethling and
Potgieter 1995 THRHR 345; fn 119 supra). The flexible approach can also allay the fear of so-called limitless lia-
bility. In Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) 63 Navsa J stated: “Our sup-
ple approach to the question of legal causation enables us to deal with policy concerns and to ensure the floodgates
are tightly sealed.”
236 Law of Delict
beforehand to a single, specific theory, but has the freedom in each case to apply the theory
which serves reasonableness and justice best in the light of the circumstances, taking into
account considerations of policy. However, this does not mean that a test for imputability may
be chosen at random and that a court may simply express its decision in the terminology of the
test which suits its decision best. Most of the principles which may be of assistance in solving
the problem of imputability in a satisfactory manner have been expressed in the different theo-
ries and the court must determine which of those principles serve the problem of imputability
best in a particular case, and should then apply that theory. Justice will not be served if a court
commits itself dogmatically to a single theory; such an approach would subordinate the demands
of practice and justice to legal theory in an unacceptable manner.127
The dominance of the flexible approach and the subsidiary nature of the other tests for legal
causation have, however, been weakened in certain judgments of the Supreme Court of Appeal.
In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd128 the court opined that the
flexible approach is not an independent criterion that can be applied even in the absence of the
traditional criteria, but requires at most that the traditional measures are not applied dogmatical-
ly, but rather in a flexible manner.129 In this way the subsidiary role of the traditional criteria was
denied, the dominating role of the flexible approach undermined and its flexibility impaired. It is
to be hoped that our courts will strongly resist future attempts to dilute the dominating and
supple nature of the flexible approach. Fortunately, in Cape Empowerment Trust Limited v
Fisher Hoffman Sithole130 the court appeared to understand flexibility to also have the effect that
“if the application of any or all of the known criteria should lead to a result which is untenable,
legal causation will not be found”. This seems to mean that even where a consequence is found
to be foreseeable and a direct consequence of the act, flexibility would enable a court to deny
liability should the result appear to be so unjust or unfair that it can be regarded as untenable.
This possibly amounts to a recognition (and therefore confirmation) of the flexible approach as
an independent and even decisive test for legal causation.131
The flexible approach can accommodate the divergent needs for legal causation in different legal
fields, such as the law of delict, criminal law and insurance law.132
________________________
127 Cf Van der Walt and Midgley Delict 286í287.

128 2009 2 SA 150 (SCA) 164–165 (see Neethling 2010 TSAR 173 ff); see further mCubed International (Pty) Ltd v
Singer 2009 4 SA 471 (SCA) 482 (see Potgieter 2010 Obiter 646 ff); Freddy Hirsch Group (Pty) Ltd v Chickenland
(Pty) Ltd 2011 4 SA 276 (SCA) 297–298; Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA
183 (SCA) 198; McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel
2012 6 SA 551 (GNP) 568; Van der Walt and Midgley Delict 286; Loubser and Midgley Delict 127í128.
129 The court expressed this as follows (165): “[T]he existing criteria of foreseeability, directness, et cetera, should not
be applied dogmatically, but in a flexible manner so as to avoid a result which is so unfair or unjust that it is re-
garded as untenable.” Cf Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA
391 (SCA) para 57; Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 38.
130 2013 5 SA 183 (SCA) 198.
131 See Neethling and Potgieter 2014 TSAR 898; Mukheibir 2015 SALJ 30.
132 See, eg, International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) 700–701 (law of delict); S v Mokgethi
1990 1 SA 32 (A) 40–41 (criminal law); Napier v Collett 1995 3 SA 140 (A) 143–144 (insurance law). Cf Clinton-
Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) 56. Given that legal fields differ, the causing of
a result in particular circumstances may lead to, eg, delictual liability, but not necessarily criminal liability, whereas
distinctive factors sometimes may have to be considered in the law of insurance.
3.3 Adequate133 causation134

According to this theory, a consequence which has in fact been caused by the wrongdoer is
imputed to him if the consequence is “adequately” connected to the conduct.135 The connection
is termed “adequate” if, according to human experience, in the normal course of events the act
has the tendency of bringing about that type of consequence.136 In order to determine whether
the act has such a tendency, the following questions are, for example, asked: was the damage the
reasonably-to-be-expected consequence of the act?; did the damage fall within the expected field
of protection envisaged by the legal norm that was infringed?; were the consequences “juridical-
ly relevant” with reference to the cause?137
Seen in this light, there are probably no substantial differences between the theory of adequate
causation and the test of reasonable foreseeability, which is in many cases138 applied by the
courts, and, therefore, the application of these two approaches will usually have the same result.
Generally speaking, one would be able to say that a result normally to be expected is also a
reasonably foreseeable result, and vice versa. One possible advantage of the adequacy theory as
it is formulated by, for example, Jansen JA in S v Daniëls139 and Snyman,140 is that as a criterion
________________________
133 This word means “satisfactory”, “sufficient”, or “that which is suited to”.
134 See in general Joubert 1965 (1) Codicillus 6; Van der Walt and Midgley Delict 294í295; Loubser and Midgley
Delict 131; Boberg Delict 445–447; Van der Merwe and Olivier 204 ff; Van Rensburg Normatiewe Voorsienbaar-
heid 9 ff, Juridiese Kousaliteit 190–209; Snyman Criminal Law 85–86; Van der Walt 1966 THRHR 250–252; Van
Oosten 1983 THRHR 402–405, 1982 De Jure 242–243, 1983 De Jure 39–41.
135 Joubert 1965 (1) Codicillus 9. The adequacy doctrine is of German origin and is also followed elsewhere on the
Continent, eg in the Netherlands (Joubert ibid; Van der Merwe and Olivier 204 ff). With a few exceptions (Joubert
ibid; Van der Walt 1966 THRHR 244; Snyman Criminal Law 85–86), the adequacy doctrine has not found ac-
ceptance in South Africa. It is generally not applied by the courts (cf Van der Merwe and Olivier 204 ff). See fur-
ther Smit v Abrahams 1992 3 SA 158 (C) 162.
136 Joubert 1965 (1) Codicillus 10–11. In R v Loubser 1953 2 PH H190 (W) the accused inflicted a wound on the head
of the deceased. The deceased disregarded advice to undergo medical treatment and bound his wound with dirty
rags. Some days later he contracted tetanus and died. The court held that the accused caused the death of the de-
ceased and convicted him of culpable homicide. Rumpff J continued (384) that a causal relationship must exist be-
tween the conduct and the consequence. In his opinion, in law an act can only be a cause of a consequence when,
according to human experience, the possibility must be taken into account that the consequence could have devel-
oped from the act. Snyman Criminal Law 85 declares: “According to this theory an act is a legal cause of a situa-
tion if, according to human experience, in the normal course of events, the act has the tendency to bring about that
type of situation. It must be typical of such an act to bring about the result in question. If the turn of events is atypi-
cal in the sense that the act has brought about an unlikely, unpredictable or uncontrollable result, there is no ‘ade-
quate relationship’ between the act and the result and the act cannot be said to have caused the result. To put it
more simply, the act is the cause of the situation if it can be said: ‘That comes of doing so-and-so’. The test always
involves a consideration of the probable results of an act, and for this reason the theory is reminiscent of the test
sometimes applied in Anglo-American law, according to which one must determine whether the result corresponds
to the ‘natural and probable consequences’ or the ‘reasonable consequences’ of the act.” (When Rumpff J and
Snyman here refer to “cause of a condition or consequence”, in our view the question really is whether the conse-
quence should be imputed to the wrongdoer – at this stage the factual causal connection is already clearly present
and one is now concerned with imputability of harm.) Cf also S v Daniëls 1983 3 SA 275 (A) 332 where Jansen JA
apparently also applied the theory of adequacy.
137 Joubert 1965 (1) Codicillus 9–10. Snyman Criminal Law 86 declares: “In order to determine whether there is an
‘adequate relationship’ between the act and the result, all the factual circumstances ascertainable by a sensible per-
son should be taken into consideration . . . The criterion is the knowledge of an ordinary sensible person who in ad-
dition has the extra knowledge which [the actor] may happen to have. Thus if [the actor] has some additional
knowledge regarding the nature or effect of the act compared to what an objective observer would have, that addi-
tional knowledge must be taken into consideration. Furthermore, in deciding what a probable result might be, the
totality of human knowledge must be taken into consideration, including knowledge which only a specialist in a
particular field might have. Even knowledge which comes to light only after the occurrence of the events in ques-
tion may be taken into consideration.”
138 Infra 248; also Van Oosten 1983 De Jure 51–52.
139 1983 3 SA 275 (A) 332: “According to human experience, the shots fired by the first appellant had the general
tendency in the normal course of events to bring about death by a gunshot wound. Possibly the shots could be
[continued ]
238 Law of Delict
for legal causation, it can be more easily distinguished from negligence (where a reasonable
foreseeability criterion is also applied)141 than the criterion of reasonable foreseeability.
Although the theory of adequate causation, especially as it was formulated originally, has been
subjected to sharp criticism,142 it nevertheless enjoys the support of certain writers143 and has
also been recognised in decisions in the field of criminal law.144
3.4 Direct consequences145

According to this theory, which stems from English law,146 an actor is liable for all the “direct
consequences” of his negligent conduct.147 In other words, liability is not necessarily limited to
________________________
considered as adequate with regard to the death” (translation) (cf Snyman Criminal Law 85 to whom Jansen JA re-
fers in this regard).
140 Criminal Law 85–86; fn 136 supra.
141 Supra 164. See infra 245 ff on the distinction between the two foreseeability criteria referred to.
142 Van der Merwe and Olivier 206 fn 9; Van Rensburg Juridiese Kousaliteit 198 ff. According to Van Rensburg ibid,
the cardinal objection to the theory is that its adherents, in order to establish whether a consequence is reasonably to
be expected from an act, attempt to employ a juridically impracticable “mathematical” criterion. Thus a Dutch ju-
rist requires that the degree of probability (ie, the degree to which the ensuing result is probable according to gen-
eral human experience and thus reasonably to be expected) with which the result has taken place should not be
lower, or not much lower, than 50%. The fact that such a “mathematical” criterion is juridically untenable may be
illustrated by means of an example mentioned by Van Rensburg Juridiese Kousaliteit 208–209: “Suppose conscript
A is the worst shot in the army. It appears from the target-shooting register that in the preceding portion of his
compulsory training, he fired 1 000 rounds at a target of human dimensions at a distance of 500 meters, and that he
failed to strike the target but once. Suppose now that A (understandably) has a grudge against sergeant-major B.
During veld manoeuvres he notices B standing at a distance of 500 meters. He decides to fire a shot at B ‘to give
him a good fright’. As a result of his experiences on the shooting range, he is convinced that he will not hit B. But
suppose that the unexpected happens. The bullet strikes B between the eyes and he dies instantly. Seen prognosti-
cally, the possibility that A would strike B was smaller than 1/1000 and it is even smaller that he would kill him.
Notwithstanding, it appears fair that it should not only be found that there was a link establishing liability between
A’s conduct and B’s death, but also that there was sufficient negligence on A’s part to hold him both criminally and
delictually liable for B’s death” (translation). In law, such a “mathematical” degree of probability (eg 50%) can
never in itself indicate a reasonable limitation of liability for all cases, and it must therefore be rejected. The degree
of probability must vary in accordance with the specific circumstances of the particular case. However, it seems as
if the adherents of this criterion in South African law, such as Joubert 1965 (1) Codicillus 6 and Snyman Criminal
Law 85–86, have not committed themselves to such a fixed mathematical degree of probability and that the criti-
cism referred to, consequently, does not apply to their versions of the adequacy doctrine.
143 Joubert 1965 (1) Codicillus 6; Snyman Criminal Law 85–86 88í89.
144 S v Daniëls 1983 3 SA 275 (A) 332; R v Loubser 1953 2 PH H190 (W) 384.
145 See in general Van der Walt and Midgley Delict 290; Loubser and Midgley Delict 128–129; Boberg Delict 440–
442; Van der Merwe and Olivier 202 ff; Fagan Aquilian Liability 367–374. Van Rensburg Juridiese Kousaliteit
216–224; Burchell Delict 119; Neethling and Potgieter 1993 THRHR 159–160; Van Oosten 1983 De Jure 37–38.
146 The 1921 case In re Polemis and Furness, Withy & Co Ltd 1921 3 KB 560 is particularly well-known for its
application thereof. The facts were as follows: A hired a ship. Petrol tins had leaked in its hold, creating petrol
fumes. One of A’s employees dropped a plank into the hold in a negligent manner. The plank caused a spark which
ignited the fumes, and the ship was gutted. A was held liable for the loss of the ship: an amount of approximately
£200 000. Since it was A’s employee who dropped the plank in a negligent manner, A was held liable for all the
“direct consequences” of the negligent act. However, it was not clearly laid down what “direct consequences” are.
In Smith v London & South Western Ry Co 1870 LR 6 CP 14 a railway company left green twigs lying alongside
the railway line. The twigs dried and were ignited by a spark from a passing train. After having been fanned by a
breeze, the fire spread over a road, through a stubble field to a house, which it destroyed. The railway company was
held liable. The view was that the defendant was liable for the consequences of his action, once it was accepted that
he was guilty of negligence. In Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807 the plaintiff’s hus-
band suffered brain injuries in an accident. The injuries were caused by the defendant’s negligent conduct. After the
accident the husband began to suffer from a fear complex and from depression. As a result of his morbid condition,
he committed suicide. The court held that the man’s death was a direct result of the accident and the defendant was
held liable. Especially in certain emotional shock cases the application of “direct consequences” led to such wide
liability (eg Hambrook v Stokes Bros 1925 1 KB 141; Owens v Liverpool Corporation 1939 1 KB 394) that the
courts had to begin limiting the effects of the doctrine by various methods (eg by the “foreseeable plaintiff” re-
quirement: Hay or Bourhill v Young 1943 AC 92; fn 155 infra).
the foreseeable consequences of his conduct.148 A consequence need not follow the cause imme-
diately in time and space149 to be a “direct consequence” thereof.150 For a finding that a direct
nexus exists, it is furthermore not required that the exact course of events must have been for-
seeable.151
Since the direct consequences theory may in principle lead to exceptionally wide liability, the
effect thereof has, in English law, been limited to direct physical consequences.152 In addition, it
was required that the immediate nature of the nexus between cause and consequence must not
have been broken by a so-called novus actus interveniens (independent intervening conduct or
event).153 The possibly wide effect of the direct consequences test has also been limited by the
“foreseeable plaintiff” doctrine.154 According to the latter theory, an actor does not act negligent-
ly towards a plaintiff unless it is reasonably foreseeable that the particular plaintiff will be
injured. Accordingly, the actor is not liable to an unforeseeable plaintiff, even though the harm
has flowed directly from the actor’s conduct, and despite the fact that it is foreseeable that other
persons may have been injured.155
However, in 1961 the direct consequences theory was rejected by the Privy Council in Overseas
Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Wagon Mound No 1)156 in favour of
the principle that only foreseeable damage was recoverable.157
In the South African law of delict, the direct consequences theory has been accepted by the
Supreme Court of Appeal in a number of cases.158 In the past the theory has been subjected to
________________________
147 See the authority cited in fn 145 supra.

148 Cf Van der Walt and Midgley Delict 290 who refer to this statement as the “basic premiss” of the direct conse-
quences theory; cf Van Rensburg Juridiese Kousaliteit 220. In Thandani v Minister of Law and Order 1991 1 SA
702 (E) 705 (see also 1991 4 SA 862 (A)) Van Rensburg J held that the consequence in question (the unlawful de-
tention of the plaintiff by the Ciskeian security police) was both a “direct consequence” as well as the reasonably
foreseeable result of the conduct of the SA police in unlawfully arresting the plaintiff and then handing him over to
the Ciskeian police. See further Smit v Abrahams 1992 3 SA 158 (C) 164 where reference is made to a combination
of “direct consequences” and reasonable foreseeability. See, however, Neethling and Potgieter 1993 THRHR 160.
149 Van Rensburg Juridiese Kousaliteit 220.
150 In re Polemis and Furness, Withy & Co Ltd 1921 3 KB 560 570; cf Van Rensburg Juridiese Kousaliteit 220.
151 Thurogood v Van den Berghs & Jurgens LD 1951 2 KB 537 553; Smit v Abrahams 1992 3 SA 158 (C) 163–164; cf
Van Rensburg Juridiese Kousaliteit 221.
152 Owners of Dredger Liesbosch v Owners of Steamship Edison 1933 AC 449 461; cf Van Rensburg Juridiese
Kousaliteit 221; Hay or Bourhill v Young 1943 AC 92 110; cf Van der Walt and Midgley Delict 290.
153 In re Polemis and Furness, Withy & Co Ltd 1921 3 KB 560 577; Boberg Delict 441; Van Rensburg Juridiese
Kousaliteit 220 222–223; see infra 250 on the actus novus interveniens.
154 Hay or Bourhill v Young 1943 AC 92 100 102 105 110 119; cf Potgieter 9 LAWSA 6; Van der Walt and Midgley
Delict 290.
155 In Hay or Bourhill v Young 1943 AC 92 99, in which the “foreseeable plaintiff” theory has its origin, the plaintiff,
“a fishmonger”, was busy unloading her fish basket from a tram when a motorcyclist passed the tram on the oppo-
site side at an excessive speed and collided with a motor car some distance further. The motorcyclist was thrown to
the ground and fatally injured. The plaintiff did not witness the accident but, as a result of hearing the collision and
seeing the blood on the road, she suffered emotional shock which resulted in her child being stillborn a month later.
The House of Lords clearly did not intend to hold the motorcyclist liable for the injuries sustained by the plaintiff.
However, it was not possible for the court to refuse liability within the framework of the formulation of the negli-
gence test, which at that time applied to emotional shock and the wide liability that was brought about by the appli-
cation of the direct consequences doctrine that had been in force at that time. (It was accepted without contradiction
that the defendant drove negligently and it was also clear that the plaintiff’s indisposition was a direct consequence
of the negligent conduct.) The court then excluded liability by applying the so-called “foreseeable plaintiff” theory:
It was decided that the defendant had been negligent as against the driver of the vehicle with which he collided, but
not as against the plaintiff because he could not reasonably have foreseen that the plaintiff would suffer injury as a
result of his careless conduct (100 102 105 110 119).
156 [1961] 1 All ER 404 (PC).
157 Cf infra 248 ff.
158 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 165; mCubed International
(Pty) Ltd v Singer 2009 4 SA 471 (SCA) 482; Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA
276 (SCA) 297–298; Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 197–198;
[continued ]
240 Law of Delict
severe criticism,159 particularly as a result of its mechanical nature. Nowadays, in light of the
viewpoint that the direct consequences test should not be applied dogmatically but in a flexible
manner, much of this criticism can probably no longer be sustained.160 It is, however, clear that
the theory does not serve as a general or independent test for the imputability of harm161 but, like
the other tests (such as reasonable foreseeability),162 fulfils a subsidiary role in establishing legal
causation in terms of the prevailing flexible approach.163
3.5 Fault164
According to this approach, the wrongdoer is liable only for those consequences in respect of
which he had fault; in other words, those consequences covered by his fault are imputed to him.
Van der Merwe and Olivier165 explain it as follows:
Liability must therefore be limited to the consequences willed by a person whilst aware of their wrong-
fulness, and the wrongful consequences that he reasonably should have foreseen and prevented.166
Supporters of the fault-in-relation-to-the-loss approach declare that legal causation as an inde-
pendent element of delict is unnecessary; and that the questions of fault and imputability of loss
are disposed of simultaneously.167 In particular, this would apply where the so-called concrete
approach to negligence is followed. As stated,168 according to this approach, negligence is
________________________
Mukheiber v Raath 1999 3 SA 1065 (SCA) 1081; see also De Klerk v Minister of Police 2019 12 BCLR 1425 (CC)
para 65; Neethling v Oosthuizen 2009 5 SA 376 (WCC) 389; Thandani v Minister of Law and Order 1991 1 SA
702 (E) 705; Smit v Abrahams 1992 3 SA 158 (C) 164; Frenkel & Co v Cadle 1915 NPD 173 185–186; Van Rens-
burg Juridiese Kousaliteit 231; fn 148 supra.
159 Van Rensburg Juridiese Kousaliteit 222–223; Van Oosten 1983 De Jure 50–51.
160 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 165; Freddy Hirsch Group
(Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 297–298; Cape Empowerment Trust Limited v Fisher
Hoffman Sithole 2013 5 SA 183 (SCA) 197–198. But see supra 236 for a critical discussion of this viewpoint.
162 See infra 248.
163 See supra 233. Van der Walt and Midgley Delict 290 (infra 254) argue that the direct consequences theory finds
application in respect of personal injuries where the wrongdoer is held liable for consequences which, in their view,
were not reasonably foreseeable, eg, in the so-called egg-skull cases. See Wilson v Birt (Pty) Ltd 1963 2 SA 508
(D) 516–517; Potgieter v Rondalia Assurance Corporation of SA Ltd 1970 1 SA 705 (N) 713–714; Masiba v Con-
stantia Insurance Co Ltd 1982 4 SA 333 (C) 342; cf Neethling and Potgieter 2000 THRHR 168. This matter is dealt
with infra 253.
164 See in general Van der Merwe and Olivier 198 206 ff; Boberg Delict 381 ff; Van Rensburg Normatiewe Voorsien-
baarheid 10 ff, Juridiese Kousaliteit 155–160 179 242 ff; Van Oosten 1983 De Jure 57–60.
166 Van Oosten 1983 De Jure 57–58 suggests that in criminal law the limitation of liability can be attained satisfactor-
ily by complying with unlawfulness and fault as requirements for a crime. He emphasises (ibid) that the limitation
of liability may be disposed of by the existence of an “unlawfulness relationship” and a “fault relationship” be-
tween the act and the consequence. In Standard Bank of South Africa Ltd v Coetsee 1981 1 SA 1131 (A) 1139–
1140 Millner JA apparently attempted to reconcile wrongfulness and legal causation (“remoteness of damage”):
“Given the fact of a relationship between the act complained of and the loss suffered, the ultimate inquiry to be
made by the court is whether the conduct complained of, even if unlawful in itself, was unlawful in relation to the
loss suffered. This may be merely another way of saying, in effect, that legal liability will not arise if the unlawful
act complained of was, in the chain of causation, so remote from the event which directly brought about the loss
that it would be against the policy of the law to visit with legal liability the actor” (cf Boberg Delict 391). It is true
that wrongfulness (just like, eg, factual causation) must be determined with reference to a specific consequence
(supra 36), but the question of wrongfulness (as well as the question of fault) differs fundamentally from the ques-
tion of imputability: infra 230 ff.
167 Eg Boberg Delict 382 390 439 447 451; Van Oosten 1983 De Jure 57–60.
168 Supra 176 ff. Boberg, a supporter of the concrete (“relative”) approach to negligence, in this regard states (Delict
439–440): “[T]he issue of legal causation holds no terrors for those who take a relative view of wrongfulness and
fault – it simply does not exist. For the active role accorded these requirements in limiting the actor’s liability
makes it unnecessary to invoke a further requirement of legal causation for the purpose. Factual causation is an en-
tirely sufficient link between harm and conduct where it is further required that the conduct be wrongful and culp-
able in relation to the harm that it caused. A liability thus determined cannot be unconscionably wide, for its ambit
is coextensive with the ambit of the actor’s fault.” Cf Van Oosten 1983 De Jure 57–60.
determined by inquiring whether the wrongdoer should reasonably have foreseen and prevented
loss of the nature experienced in the particular case. It is then argued that negligence contains all
the elements necessary for limiting liability.169
Although the view that legal causation has no independent right of existence, because the ques-
tion of limitation of liability may be disposed of during the investigation to determine fault (and
wrongfulness) appears to be an attractive solution, especially given its simplicity, closer examin-
ation reveals that it is probably too simplistic. It is true that in most cases of delictual liability,
legal causation is not expressly raised, because it is evident that the consequence caused wrong-
fully and culpably must be imputed to the actor. In other words, the question of limitation of
liability is in most cases disposed of tacitly within the framework of the investigation into the
other elements of delict.170 However, this does not imply that legal causation is denied its sep-
arate right of existence, just as, for eample, wrongfulness is not irrelevant merely because in
many cases where wrongfulness is clearly present the courts find it unnecessary to investigate it
separately and, consequently, only investigate the question of fault. The fact remains that the
question of whether liability for a particular consequence should be imputed to a wrongdoer,
differs fundamentally from the question of whether that consequence has been caused in conflict
with the legal convictions of the community (wrongfully), or whether the law should blame the
wrongdoer for his wrongful conduct (in other words, whether he had fault).171
As shown below, intent and negligence cannot serve as satisfactory criteria for legal causation.
3.5.1 Intent as criterion for legal causation

Van der Merwe and Olivier172 are of the opinion that a wrongdoer is liable for those conse-
quences covered by his intent. In addition, it is traditionally accepted that consequences caused
intentionally can never fall outside the limits of liability: “intended consequences . . . can never
be too remote”.173 The fact that both these approaches are too simplistic174 is evident from the
case where a foreseen consequence occurs exactly as foreseen by the defendant but where intent
fails to keep liability within acceptable limits. The following example illustrates this view: X, a
young man, knows that his aunt (aged 75 years) has nominated him as her sole heir in her will.
________________________
169 Boberg Delict 382; infra fn 202.

170 Supra 231–232.
171 The Appellate Division made it clear that those who argue that liability can be satisfactorily limited through the
concepts of wrongfulness and fault, usually ascribe to these two concepts a totally different meaning and field of
application than what they would normally have (per Van Heerden JA in S v Mokgethi 1990 1 SA 32 (A) 39. We
are therefore unable to agree with Olivier JA’s opinion in Mukheiber v Raath 1999 3 SA 1065 (SCA) 1079 that
limitation of liability can be effected equally well with the concrete (or relative) approach (according to which
wrongfulness and negligence must be determined with reference to every harmful consequence) or legal causation
(in terms of which the imputability of damage is determined independently of wrongfulness and negligence). Ac-
cording to the judge, “public policy” plays exactly the same role in both instances, ie, to limit liability, and will
therefore in general produce the same result. The use of “public policy” as an overarching limitation criterion blurs
the distinction between wrongfulness, negligence and legal causation and undermines legal causation as independ-
ent delictual element (cf Neethling and Potgieter 2000 THRHR 165–166). The same criticism may be levelled
against Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) 475–476 where the court delcared
that the same policy considerations played a part in respect of both wrongfulness and legal causation, and that both
the existence of liability and the limits thereof can be determined according to legal policy (cf Neethling and Potgieter
2004 TSAR 764; Knobel 2005 THRHR 495 ff). See also infra fn 212.
172 198.
173 Boberg Delict 440 (also 391); cf Thandani v Minister of Law and Order 1991 1 SA 702 (E) 705 (and the criticism
by Neethling and Potgieter 1991 TSAR 498–499); cf Van Rensburg Normatiewe Voorsienbaarheid 15–16, Ju-
ridiese Kousaliteit 176 ff; Loubser and Midgley Delict 132–133.
174 See also Van Rensburg Normatiewe Voorsienbaarheid 11 ff; Neethling and Potgieter 1991 TSAR 498–499;
Potgieter and Van Rensburg 1977 THRHR 381.
242 Law of Delict
He becomes impatient with waiting for her to die a natural death so that he can acquire her
assets. He, therefore, cunningly persuades her to undertake a journey by motor car from Durban
to Johannesburg, in the expectation that she might die in an accident on Van Reenen’s pass. As
suggested by X, Y drives her own car. During bad weather in the mountain pass in question, Y
loses control over her car and she dies when the vehicle tumbles down the mountain, as X had
envisaged.175
There is without any doubt a factual causal nexus176 between X’s conduct and Y’s death.
Wrongfulness is also present as a result of the infringement of Y’s bodily integrity without a
ground of justification,177 as well as X’s evil motive.178 In other words, the law will hardly
consider X’s causing of Y’s death as lawful. Intent,179 in addition, is present if (i) the wrongdoer
(X) actually foresaw that his conduct would (possibly) lead to the consequence involved (Y’s
death), and (ii) actually foresaw that the consequence in the circumstances would (possibly) be
wrongful (and, in addition, reconciled himself with these possibilities). The view that a wrong-
doer is liable for the consequences that are covered by his intent180 and that “intended conse-
quences can never be too remote”,181 now necessitates the conclusion that X, in the absence of a
ground of justification, will be liable for Y’s death. Nevertheless, the vast majority of jurists
________________________
175 See Van Rensburg Normatiewe Voorsienbaarheid 14–15. This example must be distinguished from the following
type of situation. Suppose A has an adulterous relationship with B’s wife. B assaults A with a leaden pipe with the
intention of killing him or at least maiming him to such an extent as to paralyse him and render him incapable of
continuing his adulterous activities. B fractures A’s collarbone with only one blow before bystanders step in and
end the assault. A is taken to hospital by ambulance for treatment. The ambulance is involved in an accident and A
suffers serious head injuries. The head injuries cause A to suffer from manic depression for which he is treated with
the recognised remedy parstellin. During the treatment he eats cheese which, together with the parstellin, leads to a
stroke. The stroke leaves him a helpless paraplegic (as B intended). (Cf Alston v Marine and Trade Insurance Co
Ltd 1964 4 SA 112 (W); fn 99 supra.) Limitation of liability in terms of legal causation is not applicable here since
there is a marked deviation between the intended and actual causal nexus, thus excluding intent (supra 163; S v
Goosen 1989 4 SA 1013 (A)). Van der Merwe and Olivier would probably justify B’s non-liability for A’s invalid-
ism with reference to the element of wrongfulness (cf their arguments (217–224) with regard to Mafesa v Parity
Versekeringsmaatskappy Bpk 1968 2 SA 603 (O) and Alston v Marine and Trade Insurance Co Ltd 1964 4 SA 112
(W)). According to this argument, the causing of A’s invalidism by B will be lawful despite the absence of any
ground of justification and despite B’s reprehensible motive, because in the circumstances the causing of A’s in-
validism would not be in conflict with the legal convictions of the community (cf Van der Merwe and Olivier
at 218 and 222–223). This argument is not sound. Van der Merwe and Olivier would probably concede that if A’s
invalidism followed immediately upon B’s conduct, the conduct would have been wrongful with reference to the
full extent of the invalidism. To declare that wrongfulness is absent where the collision, parstellin treatment and the
eating of cheese intervene, because the causing of A’s invalidism in the circumstances was not in conflict with the
legal convictions of the community, would amount to an abuse of the criterion of unreasonableness (judged accord-
ing to the legal convictions of the community) in establishing wrongfulness. It is easy to declare in general that it
would not be reasonable to hold B liable in these circumstances, but then reasonableness as a criterion for liability
is applied in such a vague, undefined manner that one may as well do away with all the normal requirements for
liability and elevate reasonableness to the only criterion for liability. It is unreasonable to cause invalidism to an-
other unless such conduct can be justified. The opinion that wrongfulness “according to the convictions of the
community” is lacking in this case (as per Van der Merwe and Olivier 218 ff), can only rest on the tacit considera-
tion that the invalidism was not caused directly, but in an unusual and roundabout way. By making the manner in
which the consequence concerned was caused, or the foreseeability of the consequence at the time of the act, the
touchstone for wrongfulness (see supra 193 with regard to the distinction between wrongfulness and fault), the
concept of wrongfulness is completely denaturalised and the systematics of the law of delict violated (cf Potgieter
and Van Rensburg 1977 THRHR 382).
176 Supra 216 ff.
177 Supra 106 ff.
178 Supra 47–49.
179 Supra 159 ff.
181 Boberg Delict 391 440; Thandani v Minister of Law and Order 1991 1 SA 702 (E) 705.
would probably be of the opinion that it would be unreasonable to hold X liable for Y’s death
under these circumstances.182
By contrast, an example from case law demonstrates how intent as a criterion for legal causation
excludes liability for consequences which should reasonably be imputed to the wrongdoer. In
Brown v Hoffman183 the defendant punched the plaintiff three times at a political meeting. As a
result of this assault, the plaintiff suffered severe physical injury, in particular injuries to the
brain, head, face and neck. In addition to a claim for damages for considerable medical and
related expenses, satisfaction was also claimed for shock, pain, suffering, discomfort, loss of
amenities of life, and infringement of dignity suffered by the plaintiff.
It was argued on behalf of the defendant that liability was limited to the extent of the defendant’s
intent. As the defendant had not intended to cause the serious injuries he had in fact caused, it
was argued that he could not be held liable for damages falling outside his intent and compensa-
tion for “general damages” such as pain and suffering could not be claimed from him.184 In
addition, it was argued on behalf of the defendant that, although an actor who has caused dam-
age to another in a negligent manner may be held liable for those consequences of his conduct
which were reasonably foreseeable, the defendant in this case should not incur such a wide
liability, because the plaintiff had limited his action to the actio iniuriarum (for which negli-
gence is not sufficient).
Van Rhyn J rejected this argument, stating:
I cannot agree with an interpretation which upon analysis, in circumstances like those in casu, results in
our law attaching a lesser responsibility to one who injures someone intentionally (by assaulting him),
than one who causes the same injuries negligently.185
The court came to the conclusion that the criterion of reasonable foreseeability186 should deter-
mine for which consequences the defendant should be held liable, and held that, on the merits,
the plaintiff had sufficiently proved his case and that he was entitled to damages and satisfaction
for the “specific and general damages” he could prove he had suffered.187
The decision of the court justifies the deduction that intent cannot serve as a criterion for legal
causation.188 In this particular case the consequences for which the wrongdoer should reasonably
be held liable fell outside his intent; in other words, it was considered reasonable that the
wrongdoer in the particular circumstances should be held liable even for consequences which
were not covered by his intent. The court determined the limits of the defendant’s liability with
reference to the reasonable foreseeability test,189 but it must be borne in mind that the last-
mentioned test is subordinate to the flexible criterion, whereby legal causation is presently
established.190
Van der Merwe and Olivier, who adhere strictly to the approach whereby imputability is deter-
mined in accordance with fault, explain the liability of a defendant in an example similar to the
________________________
182 Van Rensburg Normatiewe Voorsienbaarheid 14–15 gives another example showing how intent fails as a criterion
of limitation: “G wishes to get rid of his troublesome servant H. To achieve this purpose, he sends H outside during
a thunderstorm in the expectation that H would be struck and killed by lightning. This indeed happens; H is killed
by lightning” (translation). In this case the consequence ensued precisely as envisaged by the actor. Nevertheless, it
seems unreasonable that G, the master, should be held liable for murder.
183 1977 2 SA 556 (NC); cf Potgieter and Van Rensburg 1977 THRHR 379.
184 557.
186 Infra 248 ff.
187 560.
188 Potgieter and Van Rensburg 1977 THRHR 380; cf Van Oosten 1983 De Jure 41.
189 See on the foreseeability test infra 248 ff.
190 See on the flexible approach supra 233.
244 Law of Delict
Brown case191 on the basis of the argument that the intentional defendant acted negligently with
reference to those consequences which he did not intend:
A person can have intent in respect of some of the wrongful consequences of his act, while being negli-
gent or even innocent in respect of others. If, for instance, I intentionally injure someone’s body, but in
so doing also break his precious watch of which I was not aware, I can sustain Aquilian liability in
respect of the latter on the basis of the negligent causing of damage. From the fact that intent and negli-
gence cannot overlap conceptually, it must not be concluded that an alleged wrongdoer who caused
consequences A and B intentionally, cannot be negligent in respect of consequences C and D, which he
192
had not willed.
However, in our view, in each of the three examples discussed – X who caused his aunt Y’s
death, the defendant in Brown v Hoffman193 who assaulted the plaintiff, and Van der Merwe and
Olivier’s assailant who also broke his victim’s watch – it would be illogical to apply a negli-
gence test to determine whether the wrongdoer should or should not be held liable for the death,
the serious additional injury and the broken watch. In each of these cases it is clear that the
wrongdoer had intent (at least with reference to some of the consequences) and at the same time
it is clear that the wrongdoer should reasonably have refrained from his conduct.194 The question
of fault – juridical blameworthiness – has thus been disposed of. The question is no longer
whether the wrongdoer has to be blamed for causing the consequences concerned (as a result of
his intent this is an established fact), but rather whether the consequences of his intentional
(blameworthy) conduct can be imputed to him; whether he should be held liable for them. In
other words, it is pointless at this stage to inquire whether an intentional wrongdoer must be
blamed for further consequences which a reasonable man would have foreseen and prevented.
Blameworthiness (fault) is no longer relevant at this stage.195 The questions are whether liability
for the consequences concerned should be imputed to the wrongdoer, and which criterion should
serve to establish this fact.
________________________
191 1977 2 SA 556 (NC).

193 1977 2 SA 556 (NC).
194 When it is already clear that the actor acted intentionally, it is simply not meaningful with reference to further
consequences to ask whether the reasonable person would have acted differently (as is required by the “second leg”
of the negligence test (supra 180; see also infra 245 with regard to the discussion of negligence as a possible limita-
tion criterion)). Naturally the reasonable person would not have caused harm to another intentionally and therefore
it is illogical, in considering further consequences which flow from the intentional conduct, to inquire whether the
actor should have acted differently to prevent loss (again it must be borne in mind that negligence has two legs, ie,
whether the reasonable person would have foreseen loss, and whether he would have prevented it (supra 176). In
other words, merely to ask whether a consequence was reasonably foreseeable (without inquiring into preventabil-
ity in every case), does not really amount to the negligence test but is merely a reasonable foreseeability criterion
(infra 248). As correctly pointed out by the Appellate Division (in S v Mokgethi 1990 1 SA 32 (A) 39; fn 171 su-
pra) those who attempt to use fault as a criterion of legal causation, usually give fault an unusual meaning.
195 In criminal law it may, however, be necessary (though illogical) to inquire into fault with reference to further
consequences when it has to be determined whether a further consequence possibly amounts to culpable homicide.
However, this involves fault as an element establishing liability and not as an element limiting liability. Eg: In S v
Van As 1976 2 SA 921 (A) A intentionally assaulted B by slapping his cheek. B, a fat man, fell backwards, hit his
head on a stoep and died. The question arose whether A was liable for culpable homicide. In the light of the defin-
ition of culpable homicide, it had to be established whether B’s death was caused in a negligent manner. The Ap-
pellate Division found that it was not reasonably foreseeable that the deceased would fall backwards and hit his
head on the stoep as a result of the slap. Consequently, the accused was not guilty of culpable homicide but rather
of assault. To hold A liable for B’s death merely because he assaulted B intentionally without establishing whether
the death was reasonably foreseeable, would amount to an application of the untenable versari in re illicita doc-
trine. Therefore it was necessary to determine whether the “further consequence” (the causing of death) was caused
in a negligent manner and thus met the definition of culpable homicide (cf also S v Bernardus 1965 3 SA 287 (A)).
On close examination, this type of case does not really involve negligence in respect of the death (in other words,
the foreseeability and preventability thereof), but merely the reasonable foreseeability of death (cf infra 248). See
in general with regard to the differences relating to the question of causation in the law of delict and criminal law,
Van Oosten 1982 De Jure 4 ff; cf supra 238 ff.
3.5.2 Negligence as criterion for legal causation

It is already partly evident that the criterion for negligence cannot, as in the case of intent, serve
as a test for determining the imputability of damage. The test for negligence is whether the
reasonable person, in the same position as the wrongdoer, would have foreseen and prevented
either injury to another in general (abstract approach) or the consequence concerned (concrete
approach).196
Boberg197 distinguishes two approaches to the imputability of damage in the case of negligence.
Depending on whether one prefers the abstract or the concrete approach to negligence,198 the
question of legal causation is answered differently.199 Since it is sufficient, according to the
abstract approach, if damage in general is reasonably foreseeable, the question of whether a
wrongdoer is liable for a specific consequence has to be determined separately by applying one
or other of the different criteria for legal causation and not with reference to the question of
whether the wrongdoer had been negligent with reference to that specific consequence.200
However, according to Boberg,201 the concrete (“relative”) approach renders an investigation
into legal causation unnecessary, because wrongfulness and negligence are determined with
reference to a specific consequence. According to this approach, it is unnecessary to undertake
an independent investigation into imputability of damage, because the concrete test for wrong-
fulness and negligence supposedly contains all the elements necessary to keep liability within
acceptable limits.202
It is true that the question of limitation of liability or legal causation is (tacitly) answered in most
cases during the investigation into wrongfulness and negligence.203 Even those who prefer the
abstract approach to negligence seldom need to apply legal causation expressly, because in most
cases it is apparent that the damage that has been caused by the conduct of the actor, who acted
wrongfully and negligently, must be imputed to him, with the result that it is unnecessary to
enter into the matter separately. This applies especially where the concrete approach to negli-
gence is followed.
Nevertheless, sight must not be lost of the fundamental distinction between, on the one hand, the
question of wrongfulness and fault and, on the other hand, imputability of harm or legal causa-
tion merely because, in most cases, the latter question is disposed of within the framework of the
former question.204 It appears from the discussion of intent as a possible limiting criterion205 that
________________________
196 Supra 176 ff.

197 Delict 381–382.
198 Supra 176 ff.
199 Cf Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) 472–473; Neethling and Potgieter 2004
TSAR 764; Knobel 2005 THRHR 493.
201 Ibid.
202 Boberg Delict 381–382 explains the role of the concrete approach with reference to the question of the imputability
of harm, as follows: “Wrongfulness is determined by applying the criterion of objective reasonableness ex post
facto to the actual harm and the manner of its occurrence; culpability is satisfied only where the defendant intended
or ought reasonably to have foreseen and guarded against harm of the kind that actually occurred . . . Having thus
accorded the requirements of wrongfulness and fault an active role in the limitation of liability, those who adopt
this approach have no need to postulate a further requirement that the plaintiff’s damage be not ‘too remote’. Their
finding that the defendant acted wrongfully and culpably in causing the harm actually complained of inherently
also confines his liability within acceptable limits. And the policy considerations that must ultimately determine
what limits of liability are acceptable receive due judicial recognition when the discretionary ‘objective reasonable-
ness’ test of wrongfulness and the flexible ‘foreseeable kind of harm’ test of negligence are applied.” Also see
Knobel 2006 SALJ 579 ff; Van Oosten 1983 De Jure 60. See, for criticism of Boberg’s views, Smit v Abrahams
1992 3 SA 158 (C) 163; Neethling and Potgieter 1993 THRHR 159; see also fn 194 supra. Cf Barnard v Santam
Bank Bpk 1997 4 SA 1032 (T) 1069 where the court seems to take an approach similar to Boberg’s.
203 Supra 231–232; cf Neethling and Potgieter 2004 TSAR 764 ff.
204 See also Knobel 2005 THRHR 495–496; cf Van der Walt and Midgley Delict 287.
205 Supra 241.
246 Law of Delict
where it is already clear that the wrongdoer has acted intentionally in respect of certain conse-
quences, the question is no longer whether he is blameworthy with regard to further conse-
quences, but whether liability for those consequences should be imputed to him. Where intent
has been established, it is illogical, for the purposes of legal causation, to inquire whether the
wrongdoer acted negligently with reference to further consequences which flowed from his
intentional conduct.206 Likewise, it is illogical after it was found that the wrongdoer had acted
negligently (because in light of the foreseeable consequences he should have acted differently),
to inquire with reference to further consequences whether the wrongdoer should have acted
differently. After all, it has already been decided that he should have acted differently.207 In the
event of further consequences (where legal causation is specifically relevant), the wrongdoer’s
blameworthiness is no longer at issue (at that stage its existence is a fact) and the pertinent
question is whether he should be held liable for the further consequences of his blameworthy
conduct.
In determining whether a specific consequence should be imputed to the wrongdoer, it is there-
fore pointless, once it has been established that a reasonable person in the wrongdoer’s position
would have foreseen and prevented damage in general (abstract approach), or damage of a
specific nature (concrete approach), to ask again whether the wrongdoer should have refrained
from acting because the specific remote consequence could ensue.208 In other words, in the event
of further consequences it is unnecessary once again to apply the “second leg” of the negligence
________________________
206 Ibid.
207 For determination of negligence the presence of a consequence (damage) is important. In Van der Spuy v Minister
of Correctional Services 2004 2 SA 463 (SE) (see supra fn 99 for the facts) the defendant conceded that the war-
ders were negligent in respect of the escape of the prisoners, but denied that they were negligent in repect of the
damage suffered by the plaintiff. The court apparently regarded this concession as sufficient for the existence of
delictual negligence because it only investigated the question of legal causation. Looked at closely, the failure of
the warders to prevent the escape cannot be judged negligent because viewed in isolation it did not cause any harm-
ful result; and negligence specifically concerns the foreseeability of damage – irrespective of whether one supports
the abstract or the concrete approach. Characterising the relevant failure as negligent boils down to unacceptable
“negligence in the air”. The only harmful consequence in casu was the wounding of the plaintiff. The court should
therefore have determined the negligence with consideration of the general nature of that consequence and the gen-
eral manner in which it took place. Taking into account that only a single harmful result was caused and that no
remote consequences were present, it was probably unnecessary to investigate limitation of liability (legal causa-
tion) separately, as done by the court (473 ff). The investigation of the court could have ended with the finding of
negligence (in respect of the plaintiff’s damage) (cf Neethling and Potgieter 2004 TSAR 764 ff; Knobel 2005
THRHR 493 ff).
208 Van Rensburg Normatiewe Voorsienbaarheid 28–29 states this view with reference to an example where the
wrongdoer (A) by his negligent driving caused an accident in which B broke his leg, had to spend a month in hospi-
tal, had to use crutches after his discharge, slipped, fell, again fractured his leg and had to spend an additional four
months in hospital to recover (cf Mafesa v Parity Versekeringsmaatskappy Bpk 1968 2 SA 603 (O) (see fn 99 supra
for the facts of this case)): “As appears from case law, the negligence criterion comprises whether the probability of
harm arising is so high that the reasonable person (in the position of the actor), in light of the seriousness of the
foreseeable harm and of the surrounding circumstances, would have acted differently from the actor. Can one apply
this criterion sensibly with regard to the second fracture of B’s leg? In my view, definitely not. It makes no sense,
when it is already certain that A’s conduct was negligent (in other words, that he should have refrained from the
conduct concerned), now to ask again whether he, in light of the probability of the occurrence of the second frac-
ture in itself, should have refrained from his conduct or not. In any event, how does one visualise the second frac-
ture without also thinking of the first? (Of course, the first fracture must be left out of consideration, because if it is
also taken into account, one will have to conclude that A should have refrained from his conduct, but this says
nothing as yet of the possible negligence specifically with regard to the second fracture.) The question whether a
reasonable person in the position of A would have acted differently than A, specifically with a view to the probabil-
ity that three months later, as a result of his conduct, another legal subject would fall from his crutches and fracture
his leg, is simply not a sensible question . . . The indisputable truth is that it is impossible to apply the foreseeability
criterion in exactly the same manner in relation to the limitation of liability as in the investigation as to negligence”
(translation). For this reason, the decision in Barnard v Santam Bpk 1999 1 SA 202 (SCA) 215 is subject to criti-
cism (see infra 346–347 in respect of emotional shock; however, see Knobel 2005 THRHR 423).
test (whether the wrongdoer should have acted differently). Hart and Honoré209 express it as
follows:
[T]here is a logical absurdity in asking whether the risk of further harm, arising from a harmful situation
which a reasonable man would not have created, would itself have deterred a reasonable man from acting.
The fact remains that the question of whether a wrongdoer should be held liable for a “remote
consequence” is completely different from the question of whether the wrongdoer’s conduct was
unreasonable according to the legal convictions of the community (the question of wrongful-
ness), from the question of whether the wrongdoer should be legally blamed because he foresaw
and reconciled himself with the consequence and the possible wrongfulness thereof (the question
of intent), and from the question of whether injury was foreseeable with such a degree of prob-
ability that the reasonable man would have taken steps to avoid injury (the question of negli-
gence). Wrongfulness, fault, factual causation and legal causation (imputability of harm) should
be clearly distinguished. A delict is a complex juristic fact which is traditionally divided into a
number of different elements. This classification is based on considerations of fairness, efficacy
and logic and should not lightly be disregarded. Anyone who, for example, without due consid-
eration, drags an element of wrongfulness into the requirement of fault or damage,210 or an
element of wrongfulness or fault into the requirement of legal causation,211 could be caught up in
a web of confusion of ideas.212
Strict liability The fact that legal causation entails considerations of a nature completely
different from that of fault is emphasised by the necessity of its application in the case of strict
liability. Suppose that in an example such as that of A, who eventually became paralysed,213 A
was not injured by a blow from B, but by being bitten by B’s vicious dog, and that the subse-
quent events took place as in the given example. While it is clear that B, although he was not
negligent in any way, will be liable without fault on the basis of the actio de pauperie214 at least
for the damage resulting from the initial bite-wound, it still has to be established whether B
should also be liable for A’s eventual invalidism. How should the limits of B’s liability be deter-
mined where he acted completely without fault but is liable for at least certain consequences?
The fact that it would be absurd to attempt to establish B’s liability for the invalidism with refer-
ence to fault once again illustrates that the imputability of harm entails a question completely
different from the question of fault.
Further authority for these views can be found in Thandani v Minister of Law and Order215
where it was confirmed that legal causation – quite apart from fault on the part of the wrongdoer
________________________
209 Causation in Law 239–240; cf Neethling 1985 THRHR 250, 1998 THRHR 339–341.
210 Cf the “duty of care” doctrine (supra 188); Van der Merwe and Olivier’s view with regard to damage (179 ff;
infra 261).
211 Cf also the opinions of Van der Merwe and Olivier 196 ff and Boberg Delict 439 ff with regard to legal causation.
See also supra 97 fns 378 379 and fn 171 for a discussion of a possible confusion between the tests for wrongful-
ness and legal causation in Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) and
Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) para 68.
212 Cf Potgieter and Van Rensburg 1977 THRHR 382. According to the court in Barnard v Santam Bank Bpk 1997 4
SA 1032 (T) 1069, it does not make a difference whether foreseeability is applied in determining negligence with
regard to a specific consequence, or as part of the inquiry whether liability for negligent conduct should ensue
because certain consequences were foreseeable. Although it must be conceded that, purely as far as foreseeability is
concerned, it does not make any practical difference which construction is preferred (cf Barnard v Santam Bpk
1999 1 SA 202 (SCA) 210), negligence and legal causation should be clearly distinguished (see Neethling 1998
THRHR 339–341). See also fn 211 supra.
213 Supra fn 175.
214 Fourie v Naranjo 2008 1 SA 192 (C); see infra 438; cf fn 218 infra.
215 1991 1 SA 702 (E); confirmed on appeal: 1991 4 SA 862 (A). This also holds good for the application of the
flexible approach to determining the boundaries of liability in terms of the actio de pauperie for emotional shock
(Fourie v Naranjo 2008 1 SA 192 (C) 202). See for a discussion Neethling and Potgieter 1991 TSAR 496; Potgieter
in Boezaart and De Kock (eds) 213–215; Scott in Boezaart and De Kock (eds) 103–104.
248 Law of Delict
– is a separate requirement for delictual liability. This case dealt with the possible liability of the
defendant for wrongful arrest and detention, a delict for which fault is not required – in other
words, an example of strict liability.216 According to the court, a solution to the problem of
liability in casu depended on whether the requirement of causation was satisfied.217 Since this
was a case of strict liability, the question of fault apparently played no part with regard to the
limitation of liability. In casu Van Rensburg J employed both the direct-consequences and the
reasonable-foreseeability approaches – but obviously not the basis of fault – to find that legal
causation was present in the facts considered by him.218
3.6 Reasonable foreseeability219

Reasonable foreseeability has been used in a number of decisions as a criterion for legal causa-
tion,220 but in terms of the prevailing flexible approach,221 it plays a subsidiary role, just like all
________________________
216 See with regard to wrongful arrest as an example of strict liability, infra 398.
217 705.
218 Ibid (see in general Neethling and Potgieter 1991 TSAR 496); see also Ncoyo v Commissioner of Police, Ciskei
1998 1 SA 128 (Ck) 137–139 (cf Dendy 1998 SALJ 583 ff for criticism); Minister of Finance v EBN Trading (Pty)
Ltd 1998 2 SA 319 (N) 329 (unlawful attachment of property); Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T)
397–398; Thandani v Minister of Law and Order 1991 1 SA 702 (E) 705–706; Ebrahim v Minister of Law and
Order 1993 2 SA 559 (T) 564–566; De Klerk v Minister of Police 2019 12 BCLR 1425 (CC) paras 29í30 62–63
65; Neethling and Potgieter 2000 THRHR 166–167. Against this background, the viewpoint of Bozalek J in Dias v
Petropulos 2018 6 SA 149 (WCC) para 139, a case involving the duty of lateral support, that “it is doubtful wheth-
er it is necessary to have regard to the question of legal causation since liability under the duty of lateral support is
strict and the question of reasonable foreseeability does not arise”, is subject to criticism. As has been explained
here, legal causation is a separate element and may be relevant whether fault is required or not. Fortunately the
judge’s incorrect conclusion did no harm in the present matter as he found that “[e]ven if legal causation had to be
proved, then in my view that requirement is fully satisfied”.
219 See in general Van der Walt and Midgley Delict 292–294; Loubser and Midgley Delict 129–131; Boberg Delict
442–445; Fagan Aquilian Liability 367 374–381; Burchell Delict 120–121; Neethling and Potgieter 1993 THRHR
159–160, 1995 THRHR 345–347; Van Rensburg Normatiewe Voorsienbaarheid 31 ff, Juridiese Kousaliteit 228 ff.
See Knobel in Potgieter, Knobel and Jansen (eds) 241 fn 64 who maintains that foreseeability is not needed in deter-
mining legal causation: “[I]ts place is in the test for negligence, and a concrete or relative concept of negligence at that.
Liability for unforeseeable results should always be excluded by proper application of the negligence test. When turn-
ing its attention to legal causation, the court must determine whether the (foreseeable or intended) harmful result is
nevertheless too remote for liability to be reasonable, fair and just . . . This approach should at best eliminate and at
worst substantially minimise the need to consider the same factors and ask the same questions over and over when
dealing with the elements of wrongfulness, fault and legal causation”. See also Knobel 2006 SALJ 587 ff.
220 Eg Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 198; Freddy Hirsch Group (Pty)
Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 298; Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
2009 2 SA 150 (SCA) 165; mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) 482; Nashua Mobile
(Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions 2012 1 SA 615 (GSJ) 621–622; Clinton-Parker and Dawkins v
Administrator, Transvaal 1996 2 SA 37 (W) 57 (“foreseeability may well be a factor to be considered in determin-
ing liability”); cf Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 398; Vigario v Afrox Ltd 1996 3 SA 450 (W)
464–467; Thandani v Minister of Law and Order 1991 1 SA 702 (E) 705 (in combination with the “direct conse-
quences” theory); Smit v Abrahams 1992 3 SA 158 (C) 164 (however, see the appeal: 1994 4 SA 1 (A) 13 ff; cf
Neethling and Potgieter 1995 THRHR 345); Retief v Groenewald (1896) 10 EDC 140 148; Workmen’s Compensa-
tion Commissioner v De Villiers 1949 1 SA 474 (C) 481; Van den Bergh v Parity Insurance Co Ltd 1966 2 SA 621
(W) 624; Pietersburg Municipality v Rautenbach 1917 TPD 252; Fischbach v Pretoria City Council 1969 2 SA
693 (T) 700; Mafesa v Parity Versekeringsmaatskappy Bpk 1968 2 SA 603 (O) 605; Ocean Accident and Guaran-
tee Corporation Ltd v Koch 1963 4 SA 147 (A) 152 158; Kruger v Van der Merwe 1966 2 SA 266 (A) 272; Bester
v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A); Brown v Hoffman 1977 2 SA 556
(NC); Van Rensburg Normatiewe Voorsienbaarheid 31 ff; Van der Walt and Midgley Delict 292–294; Boberg De-
lict 445 447; cf Van der Merwe and Olivier 216 ff 223–224; see also infra 345 with regard to emotional shock. Cf
further Mukheiber v Raath 1999 3 SA 1065 (SCA) where reasonable foreseeability (and direct consequences) are
apparently used as factors for limitation of liability (Neethling and Potgieter 2000 THRHR 167–168). See also Min-
ister of Police v K (case no 403/2019) [2020] ZASCA 50 (6 May 2020) para 59 where the court stated: “[Legal
causation] entails an enquiry into whether the alleged wrongful act is sufficiently closely linked to the harm for
legal liability to ensue. Generally, a wrongdoer is not liable for harm that was not foreseeable.”
the other traditional tests for legal causation.222 This implies, inter alia, that reasonable foresee-
ability should not be seen as the single, decisive criterion for establishing liability.223 Therefore
it would be possible in a given matter, merely on the basis of legal policy, to impute liability in
terms of the flexible approach, even where the damage was so exceptional that it could not be
described as reasonably foreseeable.224
However, the case law does not provide a clear picture of the content of the present criterion.
Normally the foreseeability test is not exactly defined, the decision simply being that a specific
result was foreseeable or not and that is the end of the matter.225 There is no complete clarity on
the question as to what should be foreseeable to found liability. Van der Walt and Midgley226
interpret the approach of the courts as follows:
It is not necessary that all the consequences of the defendant’s conduct should have been foreseen: only
the general nature or the kind of harm which actually occurred must have been reasonably foreseeable.
The exact extent or precise manner of occurrence need not have been reasonably foreseeable. However,
the risk of harm must have been a real risk, which a reasonable person would not have brushed aside as
227
being far-fetched.
Van Rensburg228 suggests the following criterion as a general test until such time as the courts
lay down concrete rules for the determination of legal causation according to this approach:
[W]as the consequence, as well as the causal progression between the act and the consequence, at the
time of the act foreseeable with such a degree of probability that the consequence can, in light of the
circumstances, reasonably be imputed to the alleged wrongdoer?
According to Van Rensburg, in the application of this criterion, the general rule should apply
that “an alleged wrongdoer is normally liable for all the consequences of his culpable, wrongful
act, except for the consequences that were highly improbable”.229
________________________
221 See supra 233.

222 See fn 119 supra for the Appellate Division’s approach to the foreseeability test. Cf also Clinton-Parker and
Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) 57–59; Vigario v Afrox Ltd 1996 3 SA 450 (W) 464–466.
223 As wrongly suggested by the court a quo in Smit v Abrahams 1992 3 SA 158 (C). For criticism, see the judgment of
Botha JA in Smit v Abrahams 1994 4 SA 1 (A) 17 ff where he declared that reasonable foreseeability is not the sole
decisive criterion for legal causation; see also Van der Spuy v Minister of Correctional Services 2004 2 SA 463
(SE) 474; cf Neethling and Potgieter 1995 THRHR 345–346; 2004 TSAR 764; fn 106 supra.
224 As pointed out by Botha JA in Smit v Abrahams 1994 4 SA 1 (A) 19. In Premier of the Western Cape Province v
Loots NO [2011] JOL 27067 (SCA) it had to be decided whether delictual liability should follow where the ser-
ious consequences suffered by a patient as a result of a failed sterilisation operation were so extraordinary or pecu-
liar that it could be described as reasonably unforeseeable. Brand JA’s approach in treating the question whether a
defendant should be delictually liable for a highly exceptional consequence as a matter of legal causation, can be
supported (see Potgieter 2017 (3) LitNet Akademies 975 ff for a full discussion). See also fn 106 supra; cf Neeth-
ling and Potgieter 1995 THRHR 345.
225 Cf Van Rensburg Normatiewe Voorsienbaarheid 48–49; Neethling and Potgieter 1995 THRHR 346–347.
226 Delict 292–293.
227 Boberg Delict 443: “The foreseeability test . . . has a key concept – the ‘kind’ or ‘nature’ of the harm that must be
foreseeable (which includes the general manner of the harm’s occurring). Again, this is the flexible instrument that
enables the judiciary to do justice in particular cases. For to require foreseeability of the precise harm that occurred
and the exact concatenation of events that produced it would reduce liability to the vanishing point, while to rest
content with the foreseeability of any harm howsoever caused is, of course, to return to abstract negligence and a
liability so wide as to require a device (such as the direct consequences test) to limit it. Thus between these two
extremes the court takes the position it thinks right in the circumstances of each case, defining ‘kind’, ‘nature’ or
‘manner of occurrence’ of the harm to include or exclude the particular consequence in issue according to its notion
of an equitable result.”
228 Normatiewe Voorsienbaarheid 56 ff (translation); cf Neethling and Potgieter 1995 THRHR 346–347.
229 Ibid. The additional rules, which, according to Van Rensburg 57–59, may play a role in the application of the
general criterion, are that the basis of considering probability is formed by “the facts about which the reasonable
person in the position of the actor would have been aware, supplemented by the special knowledge of the actor”
(translation); that where the events “took a completely unusual course . . . the adjudicator also has to decide wheth-
er the causal progression was foreseeable with a sufficient degree of probability to hold the actor liable for the re-
sult or results which came about in the unusual manner” (translation); that the extent of the harm never needs to be
[continued ]
250 Law of Delict
In the discussion of fault as a possible criterion for legal causation,230 the reasonable foresee-
ability and preventability test, which is applied to determine negligence, cannot be applied
unchanged as a criterion for the imputability of harm.231 Furthermore, the nature of the respect-
ive enquiries into fault and the imputability of harm differ so fundamentally that it is not expe-
dient to attempt to answer the question about the imputability of harm with reference to the
question of whether the wrongdoer had fault with regard to the remote consequence con-
cerned.232 The fact that the question of the imputability of harm in most cases may be deemed to
be settled as soon as it has been found that the actor has acted wrongfully and culpably does not
detract from the difference in principle between fault and legal causation.
Reasonable foreseeability may also serve as a (subsidiary)233 criterion for the imputability of
harm in cases of intentional wrongful conduct and liability without fault.234
3.7 Novus actus interveniens235

A novus actus interveniens (new intervening cause) is an independent event which, after the
wrongdoer’s act has been concluded, either caused236 or contributed to237 the consequence con-
cerned. The question of to what extent such an event influences the possible liability of the
wrongdoer now arises. Where a novus actus interveniens completely extinguishes the causal
connection between the conduct of the wrongdoer and the consequence, with the result that the
wrongdoer’s act can no longer be considered to be a factual cause of the consequence, the actor
obviously goes free.238 It is, however, more difficult to determine when a novus actus interveni-
ens influences the result to such an extent that the result should no longer be imputed to the
actor, although his conduct remains a factual cause of the result.239
________________________
foreseeable in order for the wrongdoer to be liable for it; that the criterion and principles referred to apply similarly
to intentional and negligent wrongful conduct; and that the reprehensible motive of a wrongdoer who acts inten-
tionally would probably play a role in determining legal causation.
230 Supra 240 ff.
231 Van Rensburg Normatiewe Voorsienbaarheid 16 ff 26 ff; Potgieter and Van Rensburg 1977 THRHR 383–385; Smit
v Abrahams 1992 3 SA 158 (C) 163.
232 In this connection Van der Walt Delict 100 correctly states: “The claim that the theory of foreseeability submits the
two questions of culpability and the extent of liability to the same test, is based on a fallacious view of the nature of
the tests for negligence and causal nexus.” Cf Van der Walt and Midgley Delict 293 fn 5.
233 Subordinate to the flexible approach to legal causation: see supra 233 ff.
234 Cf Brown v Hoffman 1977 2 SA 556 (NC) (intentional conduct); Thandani v Minister of Law and Order 1991 1 SA
702 (E) (liability without fault); Neethling and Potgieter 1991 TSAR 496; Van Rensburg Normatiewe Voorsien-
baarheid 58; Neethling 1985 THRHR 250; supra 248.
235 See in general Van der Walt and Midgley Delict 291–292; Loubser and Midgley Delict 134–135; Boberg Delict
441 448–449; Van der Merwe and Olivier 214 ff; Snyman Criminal Law 86–87; Van Oosten 1982 De Jure 244–
250, 1983 De Jure 43–46 54–55.
236 Eg where A “administers a dose of slow working poison to her husband whereafter the husband is shot dead by B,
there is no [causal] connection between A’s deed and her husband's death” (translation) (De Wet and Swanepoel
Strafreg 64–65). B’s act is then a novus actus interveniens with the result that the causal connection between A’s
conduct and the consequence concerned, is absent. Dendy 1998 SALJ 583 594 quotes the well-known description
of a novus actus interveniens by Lord Wright in The Oropesa [1943] 1 All ER 215: “To break the chain of causa-
tion it must be shown that there is something which I will call ultraneous, something unwarrantable, a new cause
which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or
extrinsic.” Cf Prinsloo v Road Accident Fund 2015 6 SA 91 (WCC) 110 where the court found that this was not the
case.
237 Where A wounds B and B, realising that he is fatally wounded, precipitates his end by shooting himself, a causal
connection between A’s conduct and B’s death in fact exists (De Wet and Swanepoel Strafreg 64–65). Cf Road
Accident Fund v Russell 2001 2 SA 34 (SCA) where the deceased committed suicide while suffering from depres-
sion caused by brain injuries sustained in a motor accident. Chetty AJP decided that the suicide was not a novus ac-
tus interveniens because the deceased had not been “of sound mind” after the accident (41).
238 Van der Walt and Midgley Delict 291; fn 236 supra.
239 In Road Accident Fund v Russell 2001 2 SA 34 (SCA) 41 the court did not find it necessary to decide “whether
the question of novus actus interveniens is properly a consideration material of legal causation or, rather, factual
[continued ]
In the latter instance the effect of a novus actus interveniens is obviously to limit the liability of
the wrongdoer240 and, thus, it plays an important role in legal causation. In each case it will have
to be determined within the framework of the relevant imputability test whether the novus actus
has had the effect of severing the legal nexus with the result that the consequence should not be
imputed to the actor. When applying the flexible approach,241 the question is, therefore, whether
the novus actus between the defendant’s conduct and the relevant consequence has been such
that the consequence cannot be imputed to the defendant on the basis of policy, reasonability,
fairness and justice.242 In applying the direct consequences test, the question therefore is whether
the novus actus breaks the “directness” of the consequence which is required for liability;243 and
when applying foreseeability, the question is whether the novus actus influences the degree of
foreseeability to such an extent that it may be said that the consequence was not reasonably
foreseeable as a result of the novus actus.244
________________________
causation”. See supra fn 237. In this connection the events in, eg, Mafesa v Parity Versekeringsmaatskappy Bpk
1968 2 SA 603 (O) and Alston v Marine and Trade Insurance Co Ltd 1964 4 SA 112 (W), which contributed to the
eventual result which flowed from the conduct of the wrongdoer (see fn 99 supra), may, eg, be described as a novus
actus interveniens (see also Fourie v Hansen 2001 2 SA 823 (W) 842–843).
240 Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 624–625; Van der Walt and Midgley Delict 291;
Boberg Delict 441; Van der Merwe and Olivier 214; Van Oosten 1983 De Jure 44. In Ebrahim v Minister of Law
and Order 1993 2 SA 559 (T) the defendant argued, without success, that his liability for the abduction, arrest and
different periods of detention of the plaintiff was limited by a novus actus interveniens, ie, the plaintiff’s further
committal to gaol by a magistrate and later by a judge. Els J held (566) that a supervening act, which is foreseen as
the likely consequence of the wrong, does not break the chain of causation (see fn 248 infra).
242 Cf Napier v Collett 1995 3 SA 140 (A) in this regard. A factual causal link between an accident and the later death
of a racehorse existed and the court had to decide whether the legal causal nexus between the accident and the death
of the horse due to heart and lung problems during an operation seven months later was broken by, inter alia, an
anaesthetic administered during the operation to determine whether the horse should be put down. EM Grosskopf
JA affirmed the flexible approach (143 ff) and declared that the question in casu was “whether there was a suffi-
ciently close relationship between the accident and the death to render one the legal cause of the other” (146). After
an investigation (146) of the facts since the accident (inter alia, an earlier operation to treat the injury and the later
operation during which the horse died), the court stated: “The causal relationship between the accident and the
death is accordingly an indirect and fortuitous one. The accident itself was not fatal. It caused an injury which was
treated by surgery. Although veterinary opinion differed as to the success of the surgery, there was no suggestion
that the horse’s life was in danger. The only question in dispute was whether his injuries were serious enough to
warrant euthanasia. And it is this dispute that led to the death of [the horse]. In the circumstances . . . the effective
cause of [death] was the administration of anaesthetic which flowed from the attempts of the respondents, support-
ed by a mistaken diagnosis, to secure the underwriters’ consent to the destruction of the animal. In my view the
horse did not, within the meaning of the policy, die as a result of the accident.” Although the court did not use the
term novus actus interveniens, this matter definitely involved the effect of intervening factors on legal causation. In
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 765 Corbett CJ makes it clear that
“the absence or presence of a novus actus interveniens plays a role in the application of the flexible approach to
legal causation” (see fn 119 supra). Cf also Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37
(W) 59; Gibson v Berkowitz 1996 4 SA 1029 (W); Vigario v Afrox Ltd 1996 3 SA 450 (W) 464; Groenewald v
Groenewald 1998 2 SA 1106 (SCA) 1114.
243 See Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 198; Fourway Haulage SA
(Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 165; mCubed International (Pty) Ltd v Singer
2009 4 SA 471 (SCA) 482. Boberg Delict 441 considers the novus actus interveniens concept as the “key concept”
in the direct consequences test because a novus actus interveniens “alone can break the chain of causation and re-
lieve the actor of responsibility for the factual (sine qua non) consequences of conduct already judged culpable. Its
inherent flexibility makes the concept a useful judicial instrument for controlling liability, though with time it has
become encrusted with rules as to when an ‘actus’ is ‘novus’ and independent of the causative effect of the actor’s
conduct.”
244 This does not mean that the novus actus necessarily plays an independent role in every case which has to be
investigated. In most cases such a novus actus is one of many circumstances which influence the question of imput-
ability of loss by means of the flexible approach (supra fn 242). The primary question is whether the consequence
should reasonably be imputed to the defendant. The presence or not of a novus actus, just like the subsidiary tests
for legal causation (eg direct consequences and reasonable foreseeability), is therefore of secondary importance and
is merely one of a number of factors which may be considered in answering the primary question.
252 Law of Delict
A novus actus interveniens may be brought about by the (culpable) conduct of the plaintiff
himself,245 by the (culpable) conduct of a third party,246 or by natural factors such as wind and
rain.247 It is important to note that an event will qualify as a novus actus interveniens only if
the event was not reasonably foreseeable.248 If the intervening cause was indeed reasonably
________________________
245 In Road Accident Fund v Russell 2001 2 SA 34 (SCA) the deceased sustained brain injuries, causing depression, in
a motor car accident. While suffering from the depression, he committed suicide. The defendant submitted that the
suicide, being “an informed and voluntary act on his part”, was a novus actus interveniens breaking the causal
chain between the accident and the deceased’s death (39). However, Chetty AJP held (41) that “even though the
deceased’s act of suicide may be said to have been deliberate . . . the deceased’s mind was impaired to a material
degree by the brain injury and the resultant depression. Consequently his ability to make a balanced decision was
deleteriously affected. Hence his act of suicide, though deliberate, did not amount to a novus actus interveniens”.
The court (ibid) followed a principle of English law that “a person who is not of sound mind cannot be said to have
acted with unimpaired volition in forming the decision to commit suicide and that such suicide does not constitute a
novus actus interveniens”.
When does the culpable conduct of the plaintiff amount to contributory negligence which causes her damages to be
reduced by apportionment, and when is it truly a defence of novus actus interveniens interrupting legal causation?
Claassen J made the following useful suggestion in Gibson v Berkowitz 1996 4 SA 1029 (W): “A distinction should
. . . be drawn between the parties’ negligence prior to the harmful event and any relevant negligence after the harm-
ful event. In the case of a plaintiff, his pre-delictual negligence will trigger the application of contributory negli-
gence to reduce his damages. The plaintiff’s post-delictual negligence will, however, affect the principles of legal
causation (or remoteness) which may reduce his damages” (cf Neethling and Potgieter 1997 THRHR 548 552; see
also supra 208).
In S v Mokgethi 1990 1 SA 32 (A) the court was, inter alia, concerned with the possible influence on the criminal
liability of an accused due to the fact that the victim of a shooting failed to prevent pressure sores which had led to
septicaemia and his eventual death (see fn 115 supra for the facts). In other words, the question was whether the
victim’s own conduct had broken the causal nexus between the accused’s wrongful act (shooting the victim in his
back) and the result in question (the victim’s death). The court doubted whether, for the purposes of determining
criminal liability, it is possible to formulate a general principle by which it could in all cases be established whether
a victim’s omission would interrupt the required legal causation between the initial wounding and the victim’s
eventual death. Too many factors would play a part: the seriousness of the initial injury; the circumstances, devel-
opment and attitude of the victim; the degree to which the omission is objectively unreasonable; and the timespan
between the initial wounding and the victim’s death (46). The court, nevertheless, suggested a criterion which may
be useful in some (but not all) cases in order to determine legal causation in view of the victim’s own conduct: “As
a rule, an actor’s conduct which is a conditio sine qua non of the victim’s death is too far removed from the result
to give rise to criminal liability therefor if (i) a failure of the victim to get medical or similar advice, to undergo
treatment or to follow instructions was the immediate cause of his death; (ii) the wounding in itself was not life-
threatening, or of such a nature at the relevant point in time, and (iii) the failure was relatively unreasonable, in
other words, unreasonable also taking account of the characteristics, convictions, etc, of the victim. In saying this, I
do not imply that should one or more of the requirements are met, the causal chain cannot be broken” (translation)
(46–47). Van Heerden JA then applied these criteria to the facts in casu and came to the conclusion that, for pur-
poses of the murder charge, the wounding of the deceased could not be seen as the legal cause of his death (47 ff).
This meant that factual causation existed, but that legal causation was lacking. (For a similar factual situation, see
also R v Loubser 1953 2 PH H190 (W); fn 136 supra.) Thus, the slipping and falling of the plaintiff in Mafesa v
Parity Versekeringsmaatskappy Bpk 1968 2 SA 603 (O) which led to the second fracture, or the eating of cheese in
combination with the medication, parstellin, by the plaintiff in Alston v Marine and Trade Insurance Co Ltd 1964 4
SA 112 (W) which led to the stroke, may both be described as a novus actus interveniens (Van der Walt and
Midgley Delict 291). Cf Groenewald v Groenewald 1998 2 SA 1106 (SCA) (plaintiff’s falling from a ledge of a
building in an attempt to escape from defendant’s assault, did not affect the chain of causation).
246 Such as medical treatment which causes further injury (cf R v Motomane 1961 4 SA 569 (W); R v Mabole 1968 4
SA 811 (R); Van Oosten 1983 De Jure 44). In Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) the plaintiff’s
jewels were taken in a robbery while they were in the defendant’s (wrongful) possession. The court held (398) that
the robbery was not a novus actus interveniens and held the defendant liable for the value of the jewels.
247 Van der Walt and Midgley Delict 291; Van Oosten 1983 De Jure 44–45.
248 In OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA 688 (SCA) 697 699 Nugent JA de-
clared: “When directed specifically to whether a new intervening cause should be regarded as having interrupted
the chain of causation (at least as a matter of law if not as a matter of fact) the foreseeability of the new act occur-
ring will clearly play a prominent role . . . If the new intervening cause is neither unusual nor unexpected, and it
was reasonably foreseeable that it might occur, the original actor can have no reason to complain if it does not re-
lieve him of liability”; see also Ebrahim v Minister of Law and Order 1993 2 SA 559 (T) 566 where Els J stated: “I
am of opinion that a supervening act which is foreseen as the likely consequence of the wrong does not break the
chain of causation and can be taken into account in assessing damages.” See also Hing v Road Accident Fund 2014
[continued ]
foreseeable at the moment of the act (or if it reasonably formed part of the risks inherent in the
conduct of the defendant), such an event may not be considered to be a novus actus interveniens
that may influence the imputability of harm to the actor.
3.8 So-called egg-skull cases (talem qualem rule)249

“Egg-skull cases” arise where the plaintiff, because of one or other physical, psychological or
financial weakness, suffers more serious injury or loss as a result of the wrongdoer’s conduct
than would have been the case if the plaintiff had not suffered from such a weakness.250 Most
jurists agree that, in such a case, the wrongdoer should also be liable for the harm which may be
ascribed to the existence of the weakness concerned – this principle is reflected in the maxim
“you must take your victim as you find him”, and is also identified as the talem qualem rule.251
However, there is no agreement about how the liability of the actor for such harm should be
justified, or which criterion for legal causation should be used to express liability in ideal
terms.252
According to Van Rensburg,253 in these cases liability may still be explained with reference to
the reasonable foreseeability norm.254 He is of the opinion that, as a result of the particular
________________________
3 SA 350 (WCC) 369; Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) 474 (cf Knobel 2005
THRHR 494 ff; Neethling and Potgieter 2004 TSAR 764 ff); Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 398;
Fischbach v Pretoria City Council 1969 2 SA 693 (T) 699–700; Van der Walt and Midgley Delict 291; Boberg
Delict 441 448–449; Dendy 1998 SALJ 583 594; Van Oosten 1983 De Jure 45 ff.
249 See in general Van der Walt and Midgley Delict 293; Loubser and Midgley Delict 133–134; Van der Merwe and
Olivier 211 ff; Van Rensburg Normatiewe Voorsienbaarheid 59–60, Juridiese Kousaliteit 278–284.
250 The egg-skull rule had its origin in the English decision Dulieu v White and Sons 1901 2 KB 669 and is traditional-
ly expressed in the maxim “the wrongdoer must take the victim as he finds him”: Hay or Bourhill v Young 1943
AC 92 109–110. The relevant dictum in Dulieu v White and Sons 679 is: “If a man is negligently run over or oth-
erwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suf-
fered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.” Wilson v
Birt (Pty) Ltd 1963 2 SA 508 (D) is an example of an egg-skull case. In this case the plaintiff was injured when
employees of the defendant, in demolishing scaffolding around a building in a negligent manner, caused a pole to
fall down which struck the plaintiff on the back of his head or neck. A few years earlier the plaintiff had been
stabbed in the forehead with a knife and in the ensuing operation to extract a piece of blade, a portion of the plain-
tiff’s skull bone was removed. At this spot the skin became attached to the brain. The blow of the pole against the
rear of the head or neck therefore caused a more serious brain injury than otherwise would have been the case. The
court decided that the defendant was liable for the full extent of the injury, despite the fact that the injury may have
been partially attributed to the existing weak spot on the plaintiff’s head (cf Van Rensburg Juridiese Kousaliteit
233 278 ff; see also Potgieter v Rondalia Assurance Corporation of SA Ltd 1970 1 SA 705 (N) (weak heart condi-
tion); cf Boswell v Minister of Police 1978 3 SA 268 (E) (high blood pressure); Masiba v Constantia Insurance Co
Ltd 1982 4 SA 333 (C) (high blood pressure; hypertension). See further the criminal cases S v Van As 1976 2 SA
921 (A) and S v Bernardus 1965 3 SA 287 (A) 303–304 where the following appears: “Regarding our own law, I
wish to mention the following. If A drives his motor car slowly and through slight negligence touches B with the
result that B bumps his head lightly against the car, causing a fracture to B’s egg-shell skull as a result of which he
suffers damage (eg medical costs, loss of income), then in my view A would be liable to B for compensation of the
loss, even though he did not foresee that B had an egg-shell skull” (translation). From Smit v Abrahams 1992 3 SA
158 (C) it is clear that the financial weakness (impecuniosity) of a plaintiff also falls under the rule that a defendant
must take his victim as he finds him. See in general also Modimogale v Zweni 1990 4 SA 122 (B); Zweni v Modi-
mogale 1993 2 SA 192 (BA); Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) 62 64–
65; Prinsloo v Road Accident Fund 2015 6 SA 91 (WCC) 110í112; Gibson v Berkowitz 1996 4 SA 1029 (W)
1048–1050 (where the plaintiff was a typical “thin skull” case in the emotional and psychological sense) (cf Neeth-
ling and Potgieter 1997 THRHR 548 550; Neethling 1998 THRHR 342, 2000 TSAR 10).
251 See Smit v Abrahams 1992 3 SA 158 (C) 171 where Farlam J carefully investigated the rule “a wrongdoer takes his
victim as he finds him”. He described the rule in short as the “talem qualem rule” (talem qualem: “just as he is”) (cf
Neethling and Potgieter 1993 THRHR 161).
252 See in general Van Rensburg Juridiese Kousaliteit 278 ff. However, see infra 254 with regard to how this problem
can be accommodated in terms of the prevailing flexible approach to legal causation.
253 Normatiewe Voorsienbaarheid 59 ff, Juridiese Kousaliteit 278 ff.
254 Law of Delict
circumstances present in these cases, the precise manner in which the consequences occur need
not be foreseeable with the same degree of probability that applies in normal cases. According to
Van Rensburg, the particular circumstances which bring about this deviation from the normal
are
derived from the fact that in typical egg-skull cases the alleged wrongdoer endangered a fellow human
being’s most precious legal interest, namely his physical-mental integrity, and that it was merely ‘coin-
cidental’ that the serious consequence did not occur directly but in an indirect way which was closely
255
linked to a weakness in the victim’s physical-psychological disposition.
Van der Walt and Midgley256 link the egg-skull rule to the “direct consequences” theory:
The doctrine of direct consequences has exerted its strongest influence on the question of liability for
personal injuries. Once a defendant has been proved to have acted wrongfully and negligently, his or her
responsibility embraces any harm flowing from a latent physical condition of the plaintiff, however
unforeseeable or abnormal. This principle, inherent in the theory of direct consequences, is usually ex-
pressed by stating that the tortfeasor ‘must take his victim as he finds him’.
Van der Merwe and Olivier,257 who strictly adhere to fault as a criterion for the imputability of
harm,258 contend that “the reasonable man cannot be expected to foresee the unforeseeable”,259
and declare that the notion that “you must take your victim as you find him” should be rejected
insofar as the reasonable person would not have foreseen the consequence concerned and that
the injured party should bear the loss himself.260 In this instance Van der Merwe and Olivier
prefer their own dogmatic starting point to the demands of legal practice.
The most acceptable approach to the so-called “egg-skull cases” is made possible by the flexible
criterion for legal causation261 and illustrated by the judgment of Botha JA in Smit v Abra-
hams.262 In terms of this criterion, the fact that the plaintiff was an “egg-skull case” was
just another fact to be considered, with all the other facts of each particular case, when applying the
‘dominant elastic criterion’, according to which [on the basis of policy considerations based on reason-
ableness, fairness and justice] the imputability of the particular damage to the defendant must be deter-
mined.263
In other words, the basic question is not whether the damage was a direct consequence or rea-
sonably foreseeable, but whether, in light of all the circumstances of the case, amongst others the
egg-skull situation, the damage should reasonably be imputed to the defendant.264
________________________
254 See also Van der Walt and Midgley Delict 293: “Provided that the general nature of the harm is foreseeable,
liability will also arise in respect of any pre-existing weakness. ‘Thin skull’ cases, where the well-established prin-
ciple is that one must take one’s victim as one finds him or her, can therefore be dealt with in terms of the foresee-
ability principle.”
255 Normatiewe Voorsienbaarheid 59 (translation). This explanation would obviously be inappropriate in the case of a
plaintiff’s impecuniosity – see fns 82 and 119 supra.
256 Delict 290. According to them, foreseeability can also find application in certain egg-skull cases: see fn 254 supra.
257 211 ff.
258 198 ff.
259 211–212.
260 Ibid.
261 Supra 233. Cf Neethling and Potgieter 1997 THRHR 548 551.
262 1994 4 SA 1 (A) 14 ff. The plaintiff was a so-called “financial egg-skull” who, after his vehicle had been damaged
in a collision with that of the defendant, as a result of impecuniosity could not purchase a replacement vehicle but
had to rent one. He claimed the rental from the defendant who argued that the plaintiff should fail because his loss
was actually caused by his impecuniosity. The Appellate Division applied the flexible approach to legal causation
(supra 233) and held that the damage should be imputed to the defendant.
264 Eg in Smit v Abrahams 1994 4 SA 1 (A) Botha JA was prepared to impute the loss to the defendant by means of the
flexible approach (supra 233) despite such loss not being reasonably foreseeable (see fn 119 supra).
Chapter 6
Damage
1 Introduction
A delict is a wrongful and culpable act which has a harmful consequence. The element of
damage is fundamental to a delictual action for damages.1 The general compensatory function of
the law of delict implies that there must be some loss or damage for which the law makes com-
pensation available.2 The object of this chapter is to discuss in general some basic principles of
the assessment of damage, as well as the quantification of the proper amount of compensation
(damages) or satisfaction in respect thereof.3
2 The compensatory function of the law of delict
The law of delict has a compensatory function.4 This general function of compensation may take
the following specific forms:
(a) Compensation for damage (or, briefly, damages – “skadevergoeding”) “Damages” is a
monetary equivalent of damage awarded to a person with the object of eliminating as fully as
________________________
1 In Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA 391 (SCA) para 93
Schippers AJA stated: “Proof of damage is fundamental to a delictual claim.” See further, eg, Jowell v Bramwell-
Jones 2000 3 SA 274 (SCA) 283; Road Accident Fund v Krawa 2012 2 SA 346 (ECG) 366–367; Van der Walt and
Midgley Delict 60í61; Loubser and Midgley Delict 75í76; Klopper Damages 1 6 ff. Where the plaintiff fails to
prove recoverable loss (eg where he claims damages from the defendant for a loss which he was only morally but
not legal obliged to), he cannot recover damages for such loss (Hentiq 1320 (Pty) Ltd v Mediterranean Shipping Co
2012 6 SA 88 (SCA) 92–93 95). For an in-depth analysis of the terminological distinction between damage (loss or
harm; “skade”) and damages (monetary compensation for loss or harm; “skadevergoeding”), and the incorrect ap-
plication of these concepts in case law, see Scott 2016 SALJ 715 ff, 2014 TSAR 835.
2 Supra 4. It is true that it is unnecessary in an application for an interdict to show that damage has already occurred
but the function of an interdict is different from that of a delictual action. The object of an interdict is to prevent or
limit future loss while a delictual action is aimed at compensation for loss already sustained as well as loss which is
expected in future (infra 308).
3 The principles regarding the assessment of damage and the quantum of damages or satisfaction are known as the
law of damages. See in general Potgieter, Steynberg and Floyd Damages; Visser and Potgieter Law of Damages
through the Cases; Klopper Damages 6 ff; Van der Walt Sommeskadeleer 1980 THRHR 1 ff; Davel Skade-
vergoeding aan Afhanklikes; Erasmus, Gauntlett and Visser 7 LAWSA; Koch Damages for Lost lncome, Reduced
Utility of a Life-Plan; Corbett and Buchanan 1; Reinecke 1976 TSAR 26–57, 1988 De Jure 221–238, Diktaat; Vis-
ser Kompensasie en Genoegdoening, Studiehandleiding, 1988 THRHR 468 ff; Newdigate and Honey MVA Hand-
book 143–190; Corbett and Honey passim; Klopper Derdepartyvergoedingsreg ch 6.
4 See also Van der Walt and Midgley Delict 303; Loubser and Midgley Delict 488; Klopper Damages 17. On
“constitutional damages” see supra 22–23; Fose v Minister of Safety and Security 1997 3 SA 786 (CC) (no “consti-
tutional damages” for assault and torture by police officials); Olitzki Property Holdings v State Tender Board 2001
3 SA 1247 (SCA) 1267 (claim for “constitutional damages” for loss of profit due to irregular tender process reject-
ed); Ngomane v Johannesburg (City) 2020 1 SA 52 (SCA) (constitutional damages awarded to homeless victims
for violations of their rights to property, privacy and dignity as a result of unlawfully removing their homes from a
public space and destroying them); Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) 369;
Visser 1996 THRHR 695; Potgieter, Steynberg and Floyd Damages 17–19; cf Robinson and Prinsloo 2015 (5)
PELJ 1675 ff; Fick 2019 SALJ 710 ff; Zitzke 2019 TSAR 827 ff, 2015 Constitutional Court Rev 285 ff (who is of
the view that constitutional damages ought to serve as a final safety net after legislation, common and customary
law has left a victim in a delict case remediless).
255
256 Law of Delict
possible his past as well as future patrimonial and, where applicable, non-patrimonial damage.5
Money is thus intended as the equivalent of damage.6
(b) Satisfaction (“genoegdoening”) If damage or loss is incapable of being compensated
because money cannot be a true equivalent of the impaired interest(s), satisfaction (“genoeg-
doening”) becomes relevant as a function of the law of delict. Satisfaction implies the reparation
of damage in the form of injury to personality (“persoonlikheidsnadeel”) by, inter alia, effecting
retribution for the wrong suffered by the plaintiff and by satisfying the plaintiff’s and/or the
community’s sense of justice.7 Usually satisfaction operates through the mechanism of the
defendant being ordered to pay a sum of money to the plaintiff in proportion to the wrong
inflicted on him.8
3 The concept of damage
3.1 The definition of damage

Damage (damnum) is an ancient concept in legal terminology.9 Although it is not absolutely
clear how damage should be defined, the following definition is acceptable:
Damage is the detrimental impact upon any patrimonial or personality interest deemed worthy of protec-
10
tion by the law.
3.2 Extent of the concept of damage

3.2.1 General
The question of whether “damage” indicates any form of harm whatsoever or whether some
forms of harm are excluded arises. The concept of damage does, of course, include more than
harm for which compensation is recoverable, since satisfaction may be awarded for some forms
of damage.11 As indicated by the definition above, only harm in respect of legally recognised
patrimonial and non-patrimonial interests of a person qualifies as damage.12 This may be the
reason why losses and harm such as inconvenience, disappointment, fear or frustration are not
compensable in terms of the Aquilian action,13 or why a husband may not claim for the loss of the
comfort and society of his wife who has been killed,14 or why the frustration of an expectation of
________________________
5 Potgieter, Steynberg and Floyd Damages 185 ff; Erasmus, Gauntlett and Visser 7 LAWSA 14.
6 Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC) 252.
7 See Potgieter, Steynberg and Floyd Damages 22 195–198.
8 The law of delict does not have a punitive function: see supra 7 fn 31; Loubser and Midgley Delict 488.
9 See Reinecke 1976 TSAR 26 for the necessary references; see also Potgieter, Steynberg and Floyd Damages 27 ff.
10 Cf Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC)
252. In other words, damage is the diminution, as a result of a damage-causing event, in the utility or quality of a
patrimonial or personality interest in satisfying the legally recognised needs of the person involved. Potgieter,
Steynberg and Floyd Damages 27–29 identify five elements of damage, viz an element of reduction, a causal ele-
ment, an interest element, a normative element and a time element. See also Klopper Damages 1 ff 6.
11 Infra 301. In cases of iniuria or where a person who is permanently unconscious suffers a loss of amenities of life,
compensation cannot occur and only satisfaction remains (infra 294).
12 See also Loubser and Midgley Delict 80í81; infra 257 ff on why non-patrimonial loss forms part of the concept of
damage and on the relationship between patrimonial and non-patrimonial loss. See also infra 259 ff on patrimony
and interests of personality.
13 Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 2 SA 111 (C); Wynberg Municipality v Dreyer 1920 AD
439 448. Where these losses are associated with the infringement of someone’s interests of personality, compensa-
tion may be recoverable with the action for pain and suffering, or satisfaction in terms of the actio iniuriarum (see
infra 291 ff).
14 Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657 665.
Chapter 6: Damage 257
inheriting something does not constitute damage.15 One may, of course, also argue that the
losses referred to are damage but that the law refuses compensation for policy reasons.16
Reinecke’s argument17 that the frustration of income from an unlawful activity does not amount
to damage in the legal sense appears to be correct, although it has been subjected to criticism.18
Damage is only that reduction in the utility of interests which has been brought about by an
uncertain event.19 A reduction in utility which is sure to take place because of, for example,
wear and tear, illness due to natural causes, death and consumption cannot be regarded as
damage.20
Prospective loss (the expectation that the utility of someone’s patrimony or personality will be
reduced or will not increase in value) is regarded as part of the concept of damage.21
3.2.2 Damage includes patrimonial (pecuniary) as well as non-patrimonial

(non-pecuniary) loss
In terms of the definition of damage offered earlier, damage is a broad concept that consists of
patrimonial as well as non-patrimonial loss (injury to personality).22 Thus damage is a compre-
hensive concept with patrimonial and non-patrimonial loss as its two mutually exclusive compo-
nents.23
Given that, in a primary sense, damage denotes “patrimonial loss”, there are authors such as
Van der Walt,24 Reinecke,25 Boberg26 and Van der Merwe and Olivier27 who define damage only
as patrimonial loss. This approach is based on the assumption that patrimonial damage and
injury to personality do not share any meaningful common denominator. Other authors, such as
________________________
15 Eg the case where attorney X’s negligence in regard to the execution of a will has the result that Y is no longer the
sole heir as intended by the testator. Reinecke 1976 TSAR 25 and Sonnekus 1981 TSAR 172 argue that the expecta-
tion of an inheritance is not part of someone’s patrimony (infra 264) and that its frustration can thus not amount to
damage. Contra Erasmus 1980 De Rebus 391 and Wunsh 1988 TSAR 23–24.
16 Cf infra 257. See also De Vos v SA Eagle Versekeringsmaatskappy Bpk 1985 3 SA 447 (A) 451 (infra 290 fn 10):
Here the court refused to award damages where the deceased’s application for life insurance had been accepted but
he was killed negligently before he could pay the first premium. The court argued that there was no damage in casu
since the policy would not have been payable had the deceased still been alive. There was, however, some kind of
loss as the premature death of the deceased prevented the policy from ever coming into operation. One may argue
that this kind of loss does not constitute damage or, if it is damage, the law refuses damages for reasons of policy.
See also Burns v National Employers General Insurance Co Ltd 1988 3 SA 355 (C) where the loss of a spouse’s
pension rights was not regarded as damage. In Santam Insurance Co Ltd v Fourie 1997 1 SA 611 (A) it was held
that the death of a mother did not cause her minor children any patrimonial loss (for a discussion, see Visser 1997
THRHR 715).
17 1976 TSAR 32–33; Boberg Delict 592. See also infra 260 on the relationship between damage and unlawfulness.
18 Van der Walt Sommeskadeleer 15; infra 261.
19 Reinecke 1976 TSAR 34; Visser and Potgieter Damages 28. A delict, a breach of contract or the realisation of risk
in terms of an insurance contract are examples of uncertain events.
20 Voluntarily incurring of a debt as the reasonable result of an involuntary event (eg medical expenses necessitated
by a motor accident) can be seen as the result of an uncertain event. Funeral expenses (infra 284 330), however, do
constitute damage in spite of the fact that such expenses are bound to be incurred at some time or other. Theo-
retically the wrongdoer should only be held liable for the acceleration of such expenditure (ie interest on the
amount in question). In the case of a claim by dependants of a breadwinner who has been killed (infra 284) it is
actually the acceleration of his death which causes damage.
21 See infra 268 ff for more detail.
22 Infra 257 ff for more detail. See also Loubser and Midgley Delict 80–81.
23 Infra 259 on the relationship between patrimonial and non-patrimonial loss.
24 1980 THRHR 3.
25 1976 TSAR 56.
26 Delict 485.
27 179.
258 Law of Delict
McKerron,28 Pauw29 and Pont,30 accept a wider concept of damage which includes non-patri-
monial loss.
There are compelling arguments which prove beyond doubt that damage is a broad concept that
consists of patrimonial as well as non-patrimonial loss:31
(a) Patrimonial and non-patrimonial loss have a common denominator, namely the diminution
in the utility of any (patrimonial or personality) interest which the law deems worthy of protec-
tion. The true nature of damage reflects its real nature (Afrikaans: “reële aard”), implying that it
need not be measurable in monetary terms.32 It is incorrect to insist on measurability in money
(which is a characteristic of patrimonial loss) as a requirement for every form of damage.33 The
fact that patrimonial and non-patrimonial damage both form part of a comprehensive concept of
damage, does not, of course, imply that certain important differences between these two con-
cepts disappear,34 or that compensation in regard to both functions is provided in exactly the
same manner. It is simply a realistic view of damage that includes all forms of harm that are
relevant in the field of delictual liability.35
(b) Legal practice uses a wide concept of damage. In interpreting phrases such as “damage” or
“loss” in legislation where these concepts are not defined, it is correctly accepted that damage
refers to patrimonial as well as non-patrimonial loss.36 Any other interpretation in terms of a
restricted view of damage would obviously have unjust results.
(c) The action for pain and suffering, which provides compensation for injury to personality in
cases of physical injuries, has developed in conjunction with the Aquilian action as an action
that is primarily intended to provide compensation (in contrast to satisfaction in terms of the
actio iniuriarum).37 The action for pain and suffering has made it possible to recover a form of
________________________
28 Delict 51. As a starting point he accepts that damage only refers to pecuniary loss but immediately adds that the
rule that it must be possible to express damage in an amount of money does not apply in cases of “an action for per-
sonal injuries”.
29 1977 TSAR 248 where he observes the following in regard to the common law: “Therefore pain, suffering and
disfigurement were almost inseparable from patrimonial loss.”
30 See 1942 THRHR 12 where he says the following on damage in a case of personal injuries: “Therefore the question
is: what is the nature of the damage for which the victim of a delict who suffers bodily injuries may claim compen-
sation? In the first place he may claim compensation for all costs incurred as a result of the injuries and expenses in
regard to hospital and medical costs . . . In the third place he may lay claim to compensation in connection with
bodily pain and mutilation of the body” (translation).
31 See also Potgieter, Steynberg and Floyd Damages 33 ff.
32 See also Reinecke 1988 De Jure 225 who correctly submits that damage is a “natural, that is, a concrete phenom-
enon” (translation).
33 The objection by Reinecke 1976 TSAR 28 (see also 1988 De Jure 233) that, in accepting a wide concept of damage,
one is trying to reconcile matters which are irreconcilable is therefore unacceptable. One should not ignore the sim-
ilarities between pecuniary and non-pecuniary loss just as one should not ignore the differences between these two
concepts. Elsewhere (Diktaat ch 5) Reinecke concedes that there is a “broad relationship to be noticed between pat-
rimonial and non-patrimonial loss . . . in both instances something is lost for the claimant, whether it is a thing or an
enjoyment of life” (translation).
34 See infra 259 on the relationship between patrimonial and non-patrimonial loss.
35 A comprehensive concept of damage is theoretically sound and is also accepted in important comparable legal
systems such as English, German and Dutch law (see Visser Kompensasie en Genoegdoening 12–41). The restric-
tion of damage to patrimonial damage is based on outdated theories (Visser 1988 THRHR 484).
36 The courts interpreted “damage or loss” in s 40 of the MMF Act 93 of 1989 (now the Road Accidents Fund Act 56
of 1996) as referring to patrimonial loss such as loss of income and earning capacity and medical expenses, as well
as injury to personality such as pain and suffering, loss of amenities, etc. Furthermore, in the interpretation of the
term “damage” in the Apportionment of Damages Act 34 of 1956 the principles of contributory negligence are
quite properly not restricted to patrimonial loss but also applied to non-patrimonial damage. See also Mphosi v
Central Board for Co-operative Insurance Ltd 1974 4 SA 633 (A): “damages” in the Workmen’s Compensation
Act 30 of 1941 (now the Compensation for Occupational Injuries and Diseases Act 130 of 1993) includes damages
for pain and suffering.
37 See Visser Kompensasie en Genoegdoening 270 ff, 1983 THRHR 43, 1988 THRHR 489 ff. Legal practice clearly
demonstrates that the action for pain and suffering has for a long time been seen as a type of exception to the Aquilian
[continued ]
imperfect compensation on account of physical injuries (non-patrimonial loss). The word “im-
perfect” is used since full and actual restitution is impossible in a case of physical injuries,
although the law nevertheless attempts to achieve a compensatory object.38 The conclusion to be
drawn from the development of the action for pain and suffering is that since certain forms of
injury to personality have become the object of (imperfect) compensation (in the sense of
“skadevergoeding”), injury to personality must necessarily be seen as damage.
Once it is accepted that injury to personality may be compensable damage, there is no justifica-
tion for why all forms of iniuria which are actionable in terms of the actio iniuriarum should not
be classified as non-patrimonial loss in terms of a comprehensive concept of damage. The action
for pain and suffering clearly demonstrates that natural (direct) compensability or commensur-
ability in money should not be a requirement for damage. Damage and compensable damage
are simply not the same. One should therefore accept a wide concept of damage as a starting-
point and thereafter consider which forms of damage are capable of compensation and in which
forms satisfaction plays the dominant role.
3.3 The relationship between patrimonial and non-patrimonial loss

As stated previously, the concept of damage refers to harm in connection with someone’s
patrimony39 as well as his personality.40 The major point of agreement between patrimonial and
non-patrimonial damage is that, in both instances, the utility or quality of an interest protected
by law is infringed (the plaintiff loses something for which he receives money as compensa-
tion).41 There are nevertheless important differences between these two forms of damage.42
However, qualifications of these differences demonstrate that there is no clearly defined line
between patrimonial and non-patrimonial damage.
The most important differences usually referred to are the following: 43
(a) Patrimonial loss can be directly or naturally expressed in money while non-pecuniary loss is
at most only indirectly measurable in this way.44
________________________
action (which provides damages for patrimonial loss) and not as an extension of the actio iniuriarum which is
aimed at satisfaction. See, eg, Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657
665–666: “The award of compensation for physical pain caused to a person through negligence, which was recog-
nised by the law of Holland, constitutes a notable exception to the rule in question [that only patrimonial loss is
compensable]”; Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A) 838: “I use the term Aquilian in an extended
sense to include the solatium awarded for pain and suffering, loss of amenities of life etc, which is sui generis and
strictly does not fall under the umbrella of the actio legis Aquiliae.” In Guardian National Insurance Co Ltd v Van
Gool 1992 4 SA 61 (A) 65 the court referred with apparent approval to Administrator, Natal v Edouard 1990 3 SA
581 (A) 595 where it was stated that the action for pain and suffering only differs from the Aquilian action insofar
as it is not from its inception actively transmissible. Cf also Casely v Minister of Defence 1973 1 SA 630 (A) 642.
But see Mutual and Federal Insurance Co Ltd v Swanepoel 1988 2 SA 1 (A) 11.
38 Infra 288. Even if the action for pain and suffering is described as a “genoegdoeningsaksie” in Afrikaans legal
terminology, it is not primarily aimed at satisfaction (which sometimes has a penal element) as is the case with the
actio iniuriarum (see Visser 1988 THRHR 489 ff).
39 Infra 263.
40 Infra 288 ff.
41 Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC)
252–253.
42 See in general Visser Kompensasie en Genoegdoening 8–53; Potgieter, Steynberg and Floyd Damages 38–39 for
the relevance of the distinction between patrimonial and non-patrimonial loss. Cf Klopper Damages 12–14.
252–254.
44 Patrimonial damage is also not always directly measurable in money, eg, where a unique object of which the
market value cannot be established, is destroyed. In this case, just as in a case of non-patrimonial loss, the court
must assess an amount of damages on an equitable basis. In determining compensation for injury to the personality
in respect of physical-psychological interests (infra 291) use is frequently made of awards in comparable cases
[continued ]
260 Law of Delict
(b) The extent of patrimonial loss can be ascertained with greater precision than the extent of
non-patrimonial loss.45 The amount of damages for patrimonial loss can be determined by using
objective criteria (for example, “market value”, “reasonable cost of repairs”, etc). However,
damages for non-patrimonial loss relate to injury to subjective feelings, and can only be assessed
by means of an equitable estimate.46
(c) Damages for patrimonial loss are of the same nature as the impaired patrimonial interest and
are thus a genuine equivalent for such damage.47 In non-patrimonial loss, there is no true rela-
tionship between money and the injury to personality.48
(d) Patrimonial loss implies that the utility of a patrimonial interest is reduced, while an interest
of personality is the subject of reduction in non-pecuniary damage.49
3.4 The relationship between damage and wrongfulness (unlawfulness)50

Wrongfulness51 and damage are two separate elements of a delict. The question of how their
relationship to each other should be defined nevertheless arises. The answer to this question has
both theoretical value and practical implications, for example in the case of income earned
illegally.52
It is generally accepted that in the law of delict an act is usually only wrongful if it has caused a
harmful consequence.53 If X drives his car at 120 kilometres per hour in an urban area but causes
no accident, his conduct is not wrongful for the purposes of the law of delict.54 There are, how-
ever, instances where conduct will be unlawful despite the absence of damage. Examples are
where X steals a valueless object belonging to Y or where X trespasses on Y’s property without
causing damage.
By contrast, there are instances where damage is caused without any wrongful act. Where light-
ning causes X’s house to burn down, X suffers damage for which he would probably have a
claim against an insurer. Similarly, where X breaks the windscreen of his own car, he sustains
damage, but there is no wrongfulness as a person cannot, for the purposes of private law, act
unlawfully in respect of his own interests. From these examples it may be concluded that one
should not attempt to define damage in terms of delictual wrongfulness. The custom of referring
________________________
(infra 300). This demonstrates that injury to personality has in fact acquired a kind of general market value (highly
personal interests have therefore been commercialised to a certain extent).
45 There is not much in this alleged difference. The assessment of damage and damages in the case of loss of earning
capacity or support, future medical expenses or unlawful competition can similarly be very difficult and specula-
tive. See further Potgieter, Steynberg and Floyd Damages 37.
46 Equitable assessment also plays an important role in the assessment of damages for patrimonial loss – see the
examples in fn 45 supra. On the other hand, objective criteria are also relevant in regard to non-patrimonial loss,
eg the court uses the standard of unhappiness which an average person in the position of the plaintiff would experi-
ence (infra 293).
47 Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC) 252.
48 Money cannot always be a true equivalent of pecuniary loss either. Consider the destruction of something unique
(an original painting). Here the amount of damages is merely the financial equivalent of the lost object. The same
occurs in the case of non-patrimonial loss where an amount of money is incapable of neutralising the damage but it
does provide a form of counterbalance.
49 This distinction can only be maintained if there is a clear difference between patrimonial and personality interests.
It is, however, well known that an infringement of the body may cause patrimonial damage (eg medical expenses).
Unless it is accepted that corpus consists of patrimonial as well as personality interests, this is a case of pecuniary
damage caused by an impairment of an interest of personality and this implies that the alleged distinction in the text
is not generally valid.
50 Potgieter, Steynberg and Floyd Damages 39–48.
51 Supra 35.
52 Infra 285.
53 See Thomas v BMW South Africa (Pty) Ltd 1996 2 SA 106 (C) 126.
54 Supra 36.
to patrimonial loss as damage which flows from a wrongdoer’s unlawful and culpable conduct55
does not mean that wrongfulness or culpability qualifies damage: it is simply a reference to
damage for which damages may be recovered ex delicto, in contrast to damage for which delic-
tual damages are not available (but in respect of which compensation may, for example, be
recovered in terms of an insurance policy).
Van der Merwe and Olivier56 advocate too close a connection between wrongfulness and dam-
age. They give an example of A breaking B’s window in a situation of necessity. B cannot claim
damages from A since the situation of necessity implies that B has suffered no damage in a legal
sense.
This argument has been the subject of considerable criticism,57 to the effect that Van der Merwe
and Olivier incorporate wrongfulness into the concept of damage. This criticism is justified. It is
not clear from their example why breaking the window does not constitute damage. Harm result-
ing from a lawful act performed in necessity obviously constitutes damage, although no one can
be held liable in respect thereof, as the other requirements of delictual liability are not met. If it
is argued that harm does not constitute damage, this conclusion should not be based on the fact
that certain other requirements of delictual liability are not present, but because the definition of
damage itself compels this view. If, for example, it is submitted that inconvenience does not
amount to damage or patrimonial damage, this may be understandable since the law may define
damage in such a manner that certain types of loss are excluded. However, it is pointless to
argue that, because there is no wrongfulness, damage must necessarily be absent, as this repre-
sents an attempt to define damage in terms of criteria which have nothing to do with the concept
of damage. It would amount to the same kind of mistake if, with reference to the example of
Van der Merwe and Olivier, one argues that conduct in necessity does not constitute conduct
since no one can be held liable in respect thereof. The fact of lawfulness or unlawfulness does
not determine whether someone has acted. Similarly, lawfulness or unlawfulness does not
indicate whether damage has been suffered or not.58
There is indeed an indirect connection between damage and wrongfulness in terms of the juridi-
cal concept of patrimony:59 X does not suffer damage if an object of Y (to which X has no
claim) is damaged, since the legally protected interests of X have not been impaired.60
Reinecke61 correctly argues that the existence of damage does not depend on wrongfulness, but
adds that the frustration of an expectancy to earn income from an illegal activity62 (caused by
bodily injuries) cannot be seen as damage, since an expectation of a benefit63 which is contrary
________________________
55 Eg Boberg Delict 475.

56 179. Scott 1985 De Jure 136 agrees with them.
57 Eg Reinecke and Van der Merwe 1966 THRHR 66 ff; Van der Walt 1973 THRHR 394 ff; Boberg Delict 479–480.
58 Van der Merwe and Olivier 180 also submit that the infringement of a right of personality (eg the right to physical-
mental integrity) may cause patrimonial damage. Reinecke 1976 TSAR 33–34 correctly questions how this is to be
reconciled with the authors’ view concerning the close connection between wrongfulness and damage: no patrimo-
nial right has been infringed but there is still patrimonial damage. In our view this problem may be explained
through the proper identification of patrimonial interests and personality rights. Medical expenditure and loss of
income as a result of bodily injuries are related to still to be identified patrimonial rights in respect of someone’s
personality. See Neethling 1987 THRHR 316 and 1990 THRHR 101–105 who submits that in the case of loss of
earning capacity (future income) caused by physical injuries, a new category of subjective rights has evolved,
namely personal immaterial property rights (supra 57 fn 108). The objects of these rights are a person’s earning ca-
pacity and creditworthiness and not personality interests such as his body or reputation.
59 Infra 263.
60 In casu wrongfulness is also absent since there is no legally protected interest of X which can be impaired in an
illegal manner. In the case of wrongfulness and damage one is concerned with the same (patrimonial and person-
ality) interests which are affected. The illegal disturbance of these interests is a requirement for wrongfulness while
the reduction in their utility constitutes damage.
61 1976 TSAR 34.
62 See, eg, Dhlamini v Protea Assurance Co Ltd 1974 4 SA 906 (A); infra 285.
63 Infra 263 on patrimony.
262 Law of Delict
to law is not recognised.64 Although criticism has been expressed that his approach implies that
wrongfulness is elevated to a prerequisite for damage,65 Reinecke’s theory appears to be sound.66
In this kind of situation it is not only damage that is absent, but also wrongfulness, as the plain-
tiff had no right to earn the lost income. However, the reason for the absence of damage is not
because wrongfulness has not been proved; it is because no asset of the plaintiff’s patrimony
(estate) has been impaired.67
3.5 The relationship between damage and factual causation

Damage and factual causation68 are two separate delictual elements,69 but they have a particular
relationship with each other, as causation is necessarily determined with reference to a conse-
quence (damage). Furthermore, there can also be an overlap between the tests employed to
establish causation and damage: Suppose X throws a stone through a shop window. At exactly
the same time, a bomb explodes that terrorist Y has previously set, causing all the windows in
the building to be destroyed. If X had not broken the window in question, it would in any event
have been shattered by the explosion. If the sum formula is used to establish damage, the present
position of the plaintiff is compared with the hypothetical position he would have enjoyed if the
damage-causing event had not taken place.70 In casu such a comparison indicates that the owner
of the shop did not suffer damage (as a result of X’s conduct) as the window would in any event
have been broken. This test may coincide with the comparative “test” of the conditio sine qua
non approach, which is used to determine the existence of a causal nexus.71 In terms of this test,
an antecedent (the alleged cause of damage) is notionally eliminated and the hypothetical course
of events without such antecedent is construed. If the damage in question still occurs, the alleged
antecedent is not a cause of such damage (and vice versa). In casu this test shows that X did not
cause the damage, ie, the broken window, as the window would have been broken independently
of his conduct.
Van der Walt72 contends that the two tests of comparison referred to above are clearly distin-
guishable, since the test for damage is aimed at identifying a reduction of interests, while the test
________________________
64 An example from case law can be found in Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipal-
ity 2018 1 SA 391 (SCA) para 104 where Schippers AJA, referring to this exposition, stated: “The [appellants’] claims
for economic loss – interest they would have derived from the proceeds of illegal and unenforceable contracts – cannot
be regarded as damage: it is an expectation of a benefit which is contrary to law and, in the circumstances, cannot be
recognised.”
65 Cf Van der Walt Sommeskadeleer 15 fn 24.
66 See also Potgieter, Steynberg and Floyd Damages 45–48.
67 Reinecke’s argument that wrongfulness is present in such a situation because the plaintiff’s right to bodily integrity
has been infringed is incorrect. In this case one is concerned with someone’s right to earning capacity and not his right
to bodily integrity. When someone who earns income illegally is injured wrongfully, there is obviously wrongfulness
in regard to his bodily integrity but the conduct is not necessarily unlawful with reference to his earning capacity. Ille-
gal activities do not constitute an exercise of someone’s earning capacity, and conduct may be wrongful in regard to
one consequence but lawful in regard to another (Van der Merwe and Olivier 86). An act can only be unlawful with
reference to its interference with the lawful exercise of someone’s earning capacity. See also Neethling Van Heerden-
Neethling Unlawful Competition 121 256 fn 10 in respect of the drawing power (goodwill) of a business concern.
68 Supra 216.
69 See, eg, De Klerk v ABSA Bank Ltd 2003 4 SA 315 (SCA). This judgment dealt with misrepresentation and the
court held that whereas the causal link between negligent conduct and damage must be proved on a balance of
probability, this is not necessarily required in respect of the extent of the prospective loss arising from the misrepre-
sentation. Unfortunately the judgment does not bring complete clarity in all respects (see Visser 2004 Speculum Ju-
ris 142; also infra 365 fn 249). Cf further Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515
(SCA), referring with approval (obiter) to De Klerk (see Neethling and Potgieter 2004 THRHR 505–506; Visser
2005 De Jure 183). See also Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1
SA 391 (SCA) paras 98–100 where Schippers AJA described De Klerk as “instructive on proof of damage”.
70 Infra 266.
71 Supra 218.
72 Sommeskadeleer 256 ff.
of causation tries to establish the reason for such reduction. This argument is rejected by
Reinecke,73 who refers to an alleged incorporation of the test for causation into the criterion for
damage. He submits that once damage has been established by means of a comparative method
(a comparison between a plaintiff’s actual and hypothetical position had the damage-causing
event not taken place), it has also been demonstrated that the alleged damage-causing event is a
cause (conditio sine qua non) of the damage.
It should be remembered that both the sum formula74 and the conditio sine qua non “test”75 are
unacceptable. But even if the correct approach to causation and assessment of damage is em-
ployed,76 the problem does not disappear. If, for example, the value of X’s property before and
after a delict (negligent injury to property) is compared, this process does not merely demon-
strate damage in the form of a diminution of value, but also the reason for the change, namely
that the delict of the defendant has caused such damage. Moreover, in order to determine causa-
tion, the alleged damage-causing event must be connected with a particular consequence (dam-
age – the reduction in value of X’s motor car). This proves that the determination of damage and
causation will necessarily coincide in some respects.77
4 Patrimonial (pecuniary) loss
4.1 Definition of patrimonial loss

Patrimonial loss is the detrimental impact on any patrimonial interest deemed worthy of protec-
tion by the law. Patrimonial loss may also be seen as the loss or reduction in value of a positive
asset in someone’s patrimony or the creation or increase of a negative element of such patri-
mony (a patrimonial debt).78
4.2 A person’s patrimony (estate)79

Patrimonial loss is defined in terms of someone’s patrimony; therefore it is important to have an
accurate idea of the concept of “patrimony”. There is no generally accepted definition of a per-
son’s patrimony. In terms of the juridical concept of patrimony, it consists of all his patrimonial
rights (namely subjective rights with a monetary value), his expectations to acquire patrimonial
rights and all legally enforceable obligations (or expectations) with a monetary value. According
to a different approach, patrimony is seen as a factual and economic concept in the sense of
everything a person possesses which has a monetary value.80
In Union Government (Minister of Railways and Harbours) v Warneke81 patrimony was defined
as a universitas of rights and duties. This definition is in accordance with the juridical concept of
________________________
73 1976 TSAR 38 ff, 1988 De Jure 225 fn 25.

74 Infra 266.
75 Supra 219.
76 Supra 228 on causation; infra 267 on damage.
77 See on damage and hypothetical causation Potgieter, Steynberg and Floyd Damages 100–101. It is possible to
eliminate some confusion between the tests involving causation and damage by adopting the correct approach to
factual causation.
78 In other words, patrimonial loss is the diminution in the utility of a patrimonial interest in satisfying the legally
recognised needs of the person entitled to such interest. See Potgieter, Steynberg and Floyd Damages 51 who also refer
to other definitions.
79 See idem 52 ff.
80 See Van der Walt Sommeskadeleer 280.
81 1911 AD 657; see also Rudman v Road Accident Fund 2003 2 SA 234 (SCA) 241 (Visser 2004 De Jure 378).
264 Law of Delict
patrimony.82 For the purposes of the assessment of patrimonial damage, the juridical doctrine of
patrimony is to be preferred. Reinecke83 identifies the following patrimonial elements:
(a) Positive elements of someone’s patrimony This refers to all a person’s patrimonial rights
such as real rights, immaterial property rights and personal rights (for example to a contractual
performance). The monetary value of such rights is determined by the market value of the object
in question, as well as any limitation on such rights. Expectations of patrimonial benefits are
also part of a person’s estate and this is the legally accepted expectation to acquire patrimonial
rights in future. This refers to a chance or possibility which is of such a nature that the law
affords it protection.84
(b) Negative elements of someone’s patrimony An obvious example is a debt which someone
incurs. Someone’s patrimony is burdened or reduced by the creation, acceleration or increase of
a monetary debt or liability.85 A debt constitutes damage even though the debtor has no assets to
pay such debt.86 An expectation of debt (ie, the opposite of an expectation of benefit) is also part
of a person’s patrimony. This refers to the situation where a person will reasonably have to incur
a debt as a result of a delict.87
The utility or quality of these patrimonial elements is always measured in money by using the
correct criterion of value at the proper time.88
4.3 The ways in which patrimonial loss is caused89

Patrimonial loss is described as the reduction in the utility of an element of someone’s patri-
mony. This implies that the utility value (expressed in monetary terms) of a positive element of
an estate is reduced, or that an increase does not take place or is delayed, or that a negative
element (a debt) comes into existence or is increased.
Generally damage is caused in one of the following ways:
(a) Loss of a patrimonial element When property is destroyed, a patrimonial right in respect
thereof (for example ownership) is lost and a person’s patrimony diminishes in value. Loss of
possession of something also means that the power to use this object is lost.90 Loss of an expec-
tancy occurs when the expectation can no longer be realised (for example, X’s vehicle which he
uses in his taxi business is damaged and his expectation of profit cannot materialise).
(b) Reduction in value of a patrimonial element Where the object of a patrimonial right (like
a thing or someone’s earning capacity91) is infringed, the utility value of such right is also
reduced. The reduction in value of an expectancy of a benefit takes place when the expectation
________________________
82 See Potgieter, Steynberg and Floyd Damages 52 for criticism of the definition in the Warneke case.
83 Diktaat ch 3. See also Potgieter, Steynberg and Floyd Damages 56–61 for a detailed discussion.
84 Eg the potential to earn money in future, ie, a person’s earning capacity. See Potgieter, Steynberg and Floyd
Damages 58–59 for the requirements that must be met before an expectation becomes part of someone’s estate.
85 See Potgieter, Steynberg and Floyd Damages 63–64 for more detail.
86 See Jonnes v Anglo-African Shipping Co (1936) Ltd 1972 2 SA 827 (A).
87 Eg the cost of future medical treatment as a result of bodily injuries.
88 See Potgieter, Steynberg and Floyd Damages 91 ff.
89 Idem 62 ff.
90 Eg Kellerman v South African Transport Services 1993 4 SA 872 (C) (see for a discussion Visser and Potgieter
1994 THRHR 312) and Smit v Abrahams 1994 4 SA 1 (A) (damage to a car and the hiring of a substitute).
91 Rudman v Road Accident Fund 2003 2 SA 234 (SCA) 241 (bodily injuries which impact upon a person’s capacity
to earn do not necessarily reduce his patrimony); Terblanche v Minister of Safety and Security 2016 2 SA 109
(SCA) (distinguished from Rudman and compensation granted for cost of additional labour to substitute for aspects
of the plaintiff’s functions he could no longer perform due to personal injuries sustained in an accident negligently
caused by the defendant’s servants); Bee v Road Accident Fund 2018 4 SA 366 (SCA) paras 81–95 (distinguished
from Rudman because there was ample evidence that the plaintiff’s reduced abilities resulting from his injuries
translated into a loss of income for him); Raath v Nel 2012 5 SA 273 (SCA) 280–281.
to make profit is partially frustrated (for example, the machinery in X’s factory is damaged and
he is likely to make less profit than before).
(c) The creation or increase of a debt (expense) and the creation or acceleration of an
expectation of debt If a delict causes an injured person to incur reasonable medical expenses,
such expenses constitute damage. The increase of an existing debt (in other words, the “positive”
value of such debt decreases) constitutes damage. An example is where X’s duty of support vis-
à-vis his child is increased when the child is injured – in this case the child needs more support
in the form of medical expenses.92 The mere creation of a debt immediately constitutes damage
even before the debt has to be satisfied. The creation or acceleration of an expectation of debt
similarly amounts to damage. An example is where, after having been injured, there is a 50%
possibility that X will have to undergo an operation and thus incur medical expenses. Damage is
also caused if an existing debt or expenses already incurred are rendered useless,93 but it is not
clear how this should be explained.94
4.4 Forms of patrimonial loss95

From a practical point of view, it is useful to take note of the different forms of patrimonial loss
recognised in practice:
(a) Damnum emergens and lucrum cessans The expression lucrum cessans means loss of
profit, but is also used to describe prospective loss and the loss of a patrimonial expectancy.
Damnum emergens refers to all other forms of damage. It is used in particular to refer to damage
suffered up to the date of trial.
(b) Damage to property and pure economic (financial) loss96 There is a clear distinction
between damage and physical damage to property. The latter refers to the impairment of the
physical object of a real right while “damage” is a much broader concept. Damage to property is
but one way in which damage is caused. In Afrikaans, damage caused by injury to property is
described as “saakskade”, which is contrasted with financial or economic loss. The latter refers
to damage that does not result from damage to property or injury to personality, or where it does,
it is either not the plaintiff’s property or personality that has been harmed, or it is not the defend-
ant who caused such damage or injury.
(c) Direct and consequential loss The distinction between direct and consequential damage is
made for the purposes of limitation of liability (legal causation or remoteness of damage).97
Direct loss indicates the immediate or direct result of a damage-causing event, while consequen-
tial damage is that loss which flows from direct loss. Where X’s motor car which he uses as a
taxi is damaged, the reasonable cost of repairs is direct damage, but the loss of profit from the
taxi business constitutes consequential loss.
(d) General (intrinsic) and special (extrinsic) damage These terms are derived from English
law and have various meanings.98 General damage often refers to damage which is presumed to
flow from an unlawful act and which need only be pleaded generally, while special damage
________________________
92 See, eg, Saitowitz v Provincial Insurance Co Ltd 1962 3 SA 443 (W).

93 Eg where a motor car is damaged beyond repair and the licence fees and insurance premium for the rest of the year
are rendered useless (Reinecke Diktaat).
94 Cf Potgieter, Steynberg and Floyd Damages 64.
95 Idem 64 ff. See on the so-called “interesse” of a plaintiff Transnet Ltd v Sechaba Photoscan (Pty) Ltd 2005 1 SA
299 (SCA) 300.
96 Infra 349 ff on pure economic loss.
97 Supra 230 ff.
98 See, eg, Corbett and Buchanan 1 3–14 44–47; Buchanan 1959 SALJ 475; Visser Kompensasie en Genoegdoening
13–18; Potgieter, Steynberg and Floyd Damages 66–68; Van der Merwe v Road Accident Fund (Women’s Legal
Centre Trust as amicus curiae) 2006 4 SA 230 (CC) 252–253; Guardian National Insurance Co Ltd v Van Gool
1992 4 SA 61 (A) 63.
266 Law of Delict
means loss in respect of which such a presumption does not apply and which has to be specially
pleaded and proved.99 The term “general damage” is also used to describe non-patrimonial loss
and even sometimes patrimonial loss. In the field of delictual liability for bodily injuries, all
non-patrimonial loss (pain, suffering, etc), as well as prospective patrimonial damage (such as
future medical expenses, loss of earning capacity and support) amounts to general damage. On
the other hand, monetary losses sustained up to the date of trial (medical expenses already
incurred, loss of past income and support) are seen as special damage. It is submitted that use of
the concepts “general” and “special” damages should be avoided. Confusion and uncertainty are
created by using these concepts to mean different things in different situations. The relevant
concepts are in any case so meaningless that it is surprising that they are regarded as useful by
some.
4.5 The assessment of patrimonial damage

There are different views about how the existence and extent of damage may be determined in a
given situation. It is, however, clear that a comparative method is necessary to determine dam-
age.100
4.5.1 The sum-formula approach101

This comparative test may be defined as follows:102
According to the sum-formula doctrine damage consists in the negative difference between the relevant
person’s current patrimonial position (after the event complained of) and his hypothetical patrimonial
position that would have been the current position if the event had not taken place. It therefore entails a
comparison of an actual current patrimonial sum with a hypothetical current patrimonial sum – and hence
the name: sum formula doctrine.
This test is recognised by the Supreme Court of Appeal.103
The reason why a hypothetical (potential) patrimonial position of the plaintiff is used is to
provide for prospective damage,104 loss of profit and certain other forms of damage.105 Criticism
has been expressed of various aspects of the sum formula (or method of differentiation).106
________________________
99 See on pleading and proof Potgieter, Steynberg and Floyd Damages 559 ff 563 ff.
100 The contrary opinion by Reinecke 1976 TSAR 56 cannot be accepted as correct. Cf Potgieter, Steynberg and Floyd
Damages 71; Klopper Damages 23. Cf Ahmed in Potgieter, Knobel and Jansen (eds) 59–60 on the (implicit) role of
reasonableness in determining the plaintiff’s loss.
101 See in general Potgieter, Steynberg and Floyd Damages 71 ff; Van der Walt Sommeskadeleer 284 ff; Klopper
Damages 161.
102 Van der Walt 1980 THRHR 4 (translation); see also Union Government (Minister of Railways and Harbours) v
Warneke 1911 AD 657; De Vos v SA Eagle Versekeringsmaatskappy Bpk 1985 3 SA 447 (A) 451; Janeke v Ras
1965 4 SA 583 (T); Dippenaar v Shield Insurance Co Ltd 1979 2 SA 904 (A) 917; Rudman v Road Accident Fund
2003 2 SA 234 (SCA) 240; Prinsloo v Road Accident Fund 2009 5 SA 406 (SE); cf Bee v Road Accident Fund
2018 4 SA 366 (SCA) para 48.
103 In Transnet Ltd v Sechaba Photoscan (Pty) Ltd 2005 1 SA 299 (SCA) para 15 Howie P declared: “It is now beyond
question that damages in delict (and contract) are assessed according to the comparative method. Essentially, that
method, in my view, determines the difference, or, literally, the interesse. The award of delictual damages seeks to
compensate for the difference between the actual position that obtains as a result of the delict and the hypothetical
position that would have obtained had there been no delict. That surely says enough to define the measure. There
appears to be no practical value in observing the distinction between positive and negative interesse in determining
delictual damages.” For a discussion see Visser 2005 THRHR 510; Pretorius 2006 TSAR 385 ff. Cf Klopper Dam-
ages 23.
104 Infra 268.
105 See for more detail Potgieter, Steynberg and Floyd Damages 73 ff; Visser 1994 THRHR 282.
106 See in general Van der Walt Sommeskadeleer 283 ff; Reinecke 1988 De Jure 224–225; Potgieter, Steynberg and
Floyd Damages 76–78.
4.5.2 A concrete concept of damage

It would appear that our case law does not always accept the sum formula exactly as stated
above. The Appellate Division has used the following method of differentiation:107
The difference between the patrimonial position of the prejudiced person before the wrongful act and
thereafter . . . [d]amage is the unfavourable difference caused by the wrongful act.
This is probably not the classic formulation of the sum formula, since there is no mention of a
hypothetical patrimonial position. This, in fact, is more in accordance with the concept of
damage suggested by Van der Walt.108 He observes that the concept of damage logically relates
to a comparative method – the real question is what is compared and how the comparison takes
place. He argues that what was (the position before the delict) must be compared with what is
(the position after the commission of the delict) and that the current position is not to be com-
pared with the hypothetical position which would have existed had the delict not been commit-
ted.109 This is in accordance with actual legal practice. It is suggested that our law should adopt
and follow the concrete concept of damage, except in instances of prospective loss, liability for
misrepresentation and loss of profit (in other words, all instances where the use of a test with a
hypothetical element is necessary).110
4.5.3 Time for the assessment of damage111

An important practical question is the time with reference to which the proper comparative
method of assessing damage should be used. According to current authority, the date of commis-
sion of a delict is generally the decisive moment for assessing damage (and this includes future
loss).112 The date of commission of a delict is the earliest date on which all the elements of a
delict are present. As far as damage is concerned, this does not mean that the full extent of the
damage should have occurred: if all the other requirements of a delict are present, the date on
which the first damage is manifested is used (if there is a series of harmful consequences caused
by the delict).113
Although the date of delict is the relevant time, events between this date and the date of trial are
also considered in the assessment of damage.114
________________________
107 Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 2 SA 146 (A) 150 (translation); see also De Jager v
Grunder 1964 1 SA 446 (A) 449 456; De Vos v SA Eagle Versekeringsmaatskappy Bpk 1984 1 SA 724 (O); Kantey
& Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 625; Klopper Damages 23; Van der Merwe and Olivier 180.
108 Sommeskadeleer 284; see also Reinecke 1988 De Jure 224–227.
109 See generally Potgieter, Steynberg and Floyd Damages 78–79; Holscher v ABSA Bank 1994 2 SA 667 (T) 673:
“Under the lex Aquilia, actual pecuniary loss is involved, and in order to determine that, it is asked what the state of
the claimant’s estate was before the act complained of, and what it is thereafter” (translation).
110 Potgieter, Steynberg and Floyd Damages 79–80. In Nationwide Airlines (Pty) Ltd (in liquidation) v South African
Airways (Pty) Ltd 2016 6 SA 19 (GJ), involving a claim by Nationwide Airlines (plaintiff) for loss of profit as a
result of anticompetitive conduct by South African Airlines (SAA, defendant), Nicholls J held that any loss suf-
fered by the plaintiff would amount to its lost profit over the relevant period. This involves a comparison of the ac-
tual situation in the relevant markets with the hypothetical position, or the so-called “counterfactual scenario”, in
the same markets, absent the abuse of dominance. Simply put, the lost profit is the difference between what the
plaintiff would have earned but for the SAA’s abusive conduct and what the plaintiff in fact earned (para 50) (see
also Ratz 2017 (Jan/Feb) De Rebus 34). In Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1998 1 SA 657 (ZSC) the
court indicated that, in a case of damage to property caused by poor workmanship, the plaintiff would be entitled to
restitutio in integrum, ie, to be put back in the same position in which he would have been had it not been for the
defendant’s wrongful act. For criticism see Visser 1998 De Jure 175.
111 Potgieter, Steynberg and Floyd Damages 91–93; cf Loubser and Midgley Delict 498–499; Klopper Damages
30–31.
112 See, eg, Drake Flemmer & Orsmond Inc v Gajjar NO 2018 3 SA 353 (SCA) para 38 and case law cited there.
113 See Oslo Land Co Ltd v Union Government 1938 AD 584; Van der Merwe and Olivier 2.
114 Eg General Accident Insurance Co SA Ltd v Summers/Nhlumayo; Southern Versekeringsassosiasie Bpk v Carstens
1987 3 SA 577 (A): “Probably it sounds logical to say that because the cause of action of the victim of a delict
arises on the date of the delict, his compensation for the loss that he suffers should also be determined as on
that day. However, I am not of the opinion that this statement is necessarily, or in all circumstances, correct, and
[continued ]
268 Law of Delict
4.6 Prospective patrimonial damage (lucrum cessans)115

4.6.1 General
Prospective damage plays an important role in legal practice but gives rise to many theoretical
and practical problems. The practical problems concern the speculative processes which are
necessary to quantify such loss, since there is no empirical knowledge available about future
events. The theoretical issues pertain to the correct definition of prospective loss and the ques-
tion of whether such loss is only concerned with future events or the frustration of current
expectations.116
The most important reason why assessment of damage and damages in regard to prospective loss
is relevant relates to the “once and for all” rule.117 In terms of this rule, a plaintiff who claims
damages on a specific cause of action118 has only one chance to claim damages for all damage
already suffered as well as all prospective loss.
4.6.2 Definition and nature of prospective loss

From a practical point of view, prospective damage is damage in the form of patrimonial (or
non-patrimonial) loss which will, with a sufficient degree of probability, materialise after the
date of assessment of damage resulting from an earlier damage-causing event.119
A more theoretical definition is the following: it is the total or partial frustration of an expecta-
tion that a patrimonial asset will accrue (or that a personality interest will exist), or it is the
creation of an expectation of a debt.120
Agreement has not been reached on the true nature of prospective damage. In terms of one view,
it is simply seen as damage which has not yet been suffered at the time of assessment.121Accord-
ing to another theory,122 prospective damage should only be explained as the frustration of an
expectancy of a benefit or the creation (or increase) of an expectation of debt. There is also a
third theory which accepts that prospective loss rests on two pillars: it has a prospective dimension
________________________
particularly I do not think that it has to be accepted that, because the damage to a thing such as a motor car should
be determined as on the date of the delict, compensation as a result of loss of earning capacity or support should
necessarily also be determined as on the date of delict” (translation). Here the court held that loss of support and
earning capacity expected after the date of trial must be assessed at the date of trial and not at the date of delict. Cf
also Sigournay v Gillbanks 1960 2 SA 552 (A) 557: “Where there has been a change in the situation between the
date of the delict and the date of the judgment, this change may affect the amount of the damages.” See further
Boberg Delict 487; Corbett and Buchanan 9; Koch Damages for Lost Income 104–105, 1987 THRHR 105, 1989
THRHR 67–70; Beverley v Mutual and Federal Insurance Co Ltd 1988 2 SA 267 (D) (escalation in medical costs);
Drake Flemmer & Orsmond Inc v Gajjar NO 2018 3 SA 353 (SCA) para 38. In SA Eagle Insurance Co Ltd v Hart-
ley 1990 4 SA 333 (A) it was held that inflation between the date of delict and the date of trial cannot be considered
in quantifying loss of income already suffered. See further Eeden v Pienaar 2001 1 SA 158 (W) 167 and Du Plooy
v Venter Joubert Inc 2013 2 SA 522 (NCK) on the influence of s 2A of the Prescribed Rate of Interest Act 55 of
1975 which provides for interest on liquidated and unliquidated claims for damages from the date of summons. See
further Van der Walt 2002 SALJ 649 ff on currency fluctuation, inflation and the time of assessment of damage and
Steynberg Gebeurlikhede 264–288 on taking into account contingencies that materialise or become appliable at differ-
ent times. Cf Loubser and Midgley Delict 498–503; Klopper Damages 72 ff.
115 See Potgieter, Steynberg and Floyd Damages 129 ff; Van der Walt and Midgley Delict 313í314; Klopper Dam-
ages 91 ff. See infra 289 for prospective non-patrimonial loss.
116 See Van der Walt Sommeskadeleer 271–277 284–285; Reinecke 1976 TSAR 29 ff.
117 Infra 270.
118 Infra 271.
119 See Potgieter, Steynberg and Floyd Damages 129 fn 2 on the relationship between prospective damage and lucrum
cessans; Klopper Damages 94.
120 Potgieter, Steynberg and Floyd Damages 116.
121 See Van der Walt Sommeskadeleer 272 who refers to the view of the Dutch author, Bloembergen.
122 See, eg, Reinecke 1976 TSAR 29.
as well as a present one.123 Even though prospective damage literally only manifests itself in
money or otherwise in future, its basis is to be found in the impairment of the plaintiff’s present
interests.
4.6.3 Forms of prospective loss124

The following forms of prospective loss are recognised in practice:125
(a) Future expenses on account of a damage-causing event.126
(b) Loss of future income.127
(c) Loss of business profit and professional profit.128
(d) Loss of prospective support.129
(e) Loss of a chance to gain a benefit.130
4.6.4 Requirements before damages may be recovered for prospective loss131

A claim cannot be instituted merely to recover damages for prospective loss, since a cause of
action132 only exists if some damage has already been caused. In such a case, damages are
awarded for damage already sustained as well as loss that is expected to occur in future.133
________________________
123 See Potgieter, Steynberg and Floyd Damages 130. This implies that future loss is not merely something which will
happen in future if one looks into the future from the moment damage is assessed, since it is also the present im-
pairment of an expectation of something in future. See idem 131 for criticism of Reinecke’s view that loss of earn-
ing capacity does not constitute prospective loss since nothing happens in future which completes the damage.
124 See Potgieter, Steynberg and Floyd Damages 133–135; see also Jowell v Bramwell-Jones 2000 3 SA 274 (SCA)
287.
125 See also Erasmus, Gauntlett and Visser 7 LAWSA 20–21.
126 Eg the incurrence of medical expenses in future on account of bodily injuries (see Blyth v Van den Heever 1980 1
SA 191 (A) 225). If the plaintiff only proves a possibility (expressed as a percentage) that he will have to incur
expenses, his damages will be based on that possibility. Eg, if he proves a 25% possibility of expenses of R1 000,
he will recover R250 (see Burger v Union National South British Insurance Co Ltd 1975 4 SA 72 (W)). Cf also
Jowell v Bramwell-Jones 2000 3 SA 274 (SCA) 287; De Klerk v ABSA Bank Ltd 2003 4 SA 315 (SCA); De Jongh
v Du Pisanie NO 2005 5 SA 457 (SCA); Visser 2005 THRHR 692 ff; 2004 Speculum Juris 142.
127 An example is where a person is injured and suffers from a disability that will prevent him from earning income in
future (see generally Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 2 SA 146 (A) 150; Dippenaar v Shield
Insurance Co Ltd 1979 2 SA 904 (A) 917; General Accident Insurance Co SA Ltd v Summers/ Nhlumayo; Southern
Versekeringsassosiasie Bpk v Carstens 1987 3 SA 577 (A) 613; President Insurance Co Ltd v Mathews 1992 1 SA
1 (A) 5; Terblanche v Minister of Safety and Security 2016 2 SA 109 (SCA) para 16; Kleinhans v Road Accident
Fund [2016] 3 All SA 850 (GP) paras 39–46). The general view is that loss of earning capacity (Neethling 1987
THRHR 316) constitutes prospective damage. See for criticism Reinecke 1988 De Jure 235. Cf further Griffiths v
Mutual & Federal Insurance Co Ltd 1994 1 SA 535 (A); Rudman v Road Accident Fund 2003 2 SA 234 (SCA);
Visser 2004 De Jure 378; Klopper Damages 117 ff.
128 If Y poisons X’s milk cow and she consequently produces smaller quantities of milk in future, the reduced profit X
will make is prospective loss. For a more sophisticated example see Transnet Ltd v Sechaba Photoscan (Pty) Ltd
2005 1 SA 299 (SCA): Corrupt conduct prevented the conclusion of a contract, and the court held that the quantum
of damages had to be determined according to the netto profit the plaintiff would have made from the contract
rather than wasted costs only. Cf Bee v Road Accident Fund 2018 4 SA 366 (SCA) para 49 for a claim for loss of
earnings based on lower turnover and profit resulting from the plaintiff being injured in a collision.
129 Dependants whose legally recognised breadwinner was killed may also claim for prospective loss of support (see
infra 332; cf Hing v Road Accident Fund 2014 3 SA 350 (WCC) 366–367; Davel Skadevergoeding aan Afhanklikes
91).
130 Eg a horse which has a one in three chance of winning prize money for its owner, is negligently injured so that it
cannot participate in a race (see generally Buchanan 1960 SALJ 192).
132 Infra 271.
133 See Coetzee v SAR & H 1933 CPD 565 “I know of no case which goes so far as to say that a person, who has as yet
sustained no damage, can sue for damages which may possibly be sustained in the future . . . Prospective damages
may be awarded as ancillary to accrued damages, but they have no separate, independent force as ground of
action.” See also Millward v Glaser 1949 4 SA 931 (A) 942: “The question was discussed at the Bar: to what
[continued ]
270 Law of Delict
Although this principle has been criticised,134 it is certain that an action for damages will not be
available in the following situation: X is exposed to radiation through Y’s negligent conduct. X
does not suffer any immediate harm but there is a 30% chance that he may become seriously ill
within four years. X only has an action once the illness (and damage) manifests itself.135
4.7 The “once and for all” rule136

4.7.1 Formulation and implications of the rule137
In claims for compensation and satisfaction arising out of a delict (including instances of strict
liability), the plaintiff must claim damages for all damage already sustained or expected in future
insofar as it is based on a single cause of action.138
This rule has the following important practical implications:
(a) Prescription in respect of a claim for damages commences as soon as a cause of action
accrues and the debt in respect of the payment of damages is claimable. This means that all the
elements of a delict are present (some damage must have occurred) and that the plaintiff is aware
of or should reasonably be aware of the identity of the debtor and the facts of the cause of action.
Generally speaking, prescription is concluded after three years.139
This implies that where some damage has already occurred, the plaintiff must, generally within
three years, institute an action in which he claims damages for all damage already sustained as
well as that expected in future.140
(b) A plaintiff who has sued with or without success for a part of his damage may not thereafter
sue for another part if both claims are based on a single cause of action.141
4.7.2 Exceptions to the rule142

(a) Where an act causes nuisance,143 a claim may be instituted each time such nuisance causes
damage. The fact that a plaintiff has claimed before does not bar a subsequent action. A plaintiff
________________________
degree must prospective gains be certain before they can enter into the computation of damages in delict. The ques-
tion does not arise until it is disclosed that the plaintiff has established a cause of action.” (There is no cause of
action if no damage has already occurred.) See also Jowell v Bramwell-Jones 1998 1 SA 836 (W) (where, as no
damage was as yet suffered at the date of the delict or trial and as such loss as might eventuate was merely specula-
tive, no Aquilian remedy was available).
134 See, eg, Boberg Delict 486 ff who submits that since prospective loss is recognised as damage, it should be possible
to base an action merely on such loss. He refers to Jacobs v Cape Town Municipality 1935 CPD 474.
135 See Buchanan 1960 SALJ 187. Should X be able to claim if there is a 60% chance that he will become ill? Corbett and
Buchanan I 11 reply as follows: “It is difficult to see why a wrongful act together with prospective damage, which can
be established as a matter of reasonable probability, should not be sufficient to constitute a cause of action.”
136 See Potgieter, Steynberg and Floyd Damages 153 ff; Van der Walt Sommeskadeleer 308 ff; Klopper Damages
32–47; cf Loubser and Midgley Delict 491 ff.
137 In MEC for Health and Social Development, Gauteng v DZ 2018 1 SA 335 (CC) para 16 Froneman J stated: “[T]he
‘once and for all’ rule is to the effect that a plaintiff must generally claim in one action all past and prospective
damages flowing from one cause of action. The corollary is that the court is obliged to award these damages in a
lump sum, the object of which is to prevent the repetition of lawsuits, the harassment of a defendant by a multipli-
city of actions and the possibility of conflicting decisions. It is buttressed by the res judicata principle, the purpose
of which is to prevent a multiplicity of actions based upon a single cause of action and to ensure that there is an end
to litigation.” See generally Cape Town Council v Jacobs 1917 AD 615 620; Oslo Land Co Ltd v Union Govern-
ment 1938 AD 584 591; Slomowitz v Vereeniging Town Council 1966 3 SA 317 (A); Horwowitz v Brock 1988 2
SA 160 (A); Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A); Custom Credit Corporation (Pty) Ltd v Shembe
1972 3 SA 462 (A); infra 270 ff.
138 See infra 271 on causes of action.
139 See infra 318 for a discussion of prescription.
141 See Green v Coetzer 1958 2 SA 697 (W).
142 Cf Loubser and Midgley Delict 494–495; Klopper Damages 46–47.
can obviously not be expected to claim in advance for future damage caused by the repetition or
continuation of the original nuisance.
(b) In subsidence cases where a person causes damage through unlawful excavation, there is a
cause of action every time that damage occurs and a plaintiff is not expected to claim once and
for all in respect of all such damage.144
(c) In the case of a continuing wrong which causes damage, there is a series of rights of action
as damage manifests itself and the plaintiff need not claim once and for all.145
(d) When the provisions of third-party liability in terms of the Road Accident Fund Act 56 of
1996 are applicable, there are qualifications to the “once and for all” rule, as this Act does not
apply to damage associated with injury to property. Moreover, the Act provides for an under-
taking by the Fund to pay future medical expenses as they are incurred.146
4.7.3 Causes of action147

In the application of the “once and for all” rule, the concept of a cause of action is of crucial
importance. There are two approaches to this concept. Firstly, in terms of the “single cause”
theory, every damage-causing event constitutes only one cause of action.148 Here the emphasis
falls on the conduct that causes damage and not on the damage itself. According to the second
approach, a cause of action exists if all its requirements (facta probanda) are present. These
requirements are the elements necessary before there can be delictual liability.149 While the
single cause approach is well-entrenched in certain typical situations, the most recent cases
accept the facta probanda theory, and the latter theory is also supported by the majority of
authors.150
A cause of action arises at the earliest date when all the requirements for delictual liability are
present.151 Although a cause of action does not arise before damage has been caused, this does
not imply that all the damage should have occurred. If all the other elements are present, a cause
of action accrues at the earliest stage, ie, when the first damage is caused.
When are different claims based on a single cause of action? In terms of the single cause theory,
it is accepted that all the different claims consequent upon an unlawful act fall within one cause
of action.152 In accordance with the facta probanda approach, the requisites of two or more
________________________
143 Supra 152; infra 442.

144 See generally Gijzen v Verrinder 1965 1 SA 806 (D) 811; D & D Deliveries (Pty) Ltd v Pinetown Borough 1991 3
SA 250 (D); Potgieter, Steynberg and Floyd Damages 166–167.
145 See, eg, Symmonds v Rhodesia Railways Ltd 1917 AD 582 588 where there was a continuing refusal to take back
wrongly delivered sheep. See further Slomowitz v Vereeniging Town Council 1966 3 SA 317 (A).
146 See s 17(1), (4)(a) and (4)(b) of the Road Accident Fund Act; cf Marine and Trade Insurance Co Ltd v Katz 1979 4
SA 961 (A); Dladla v Minister of Defence 1988 3 SA 743 (W); Maja v SA Eagle Insurance Co Ltd 1990 2
SA 701 (W); Loubser and Midgley Delict 495; Klopper Damages 85 114.
147 Potgieter, Steynberg and Floyd Damages 159 ff; Klopper Damages 34–41; cf Mntambo v Road Accident Fund
2008 1 SA 313 (W) 318–319.
148 See, eg, Oslo Land Co Ltd v Union Government 1938 AD 584 589; Casely v Minister of Defence 1973 1 SA 630
(A) 642.
149 Conduct, wrongfulness, fault, causation and damage, or the particular requirements in the case of liability based on
risk. See on the facta probanda approach Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A) 838; Potgieter,
Steynberg and Floyd Damages 162–164; Klopper Damages 35 ff.
150 See, eg, Van Aswegen Sameloop van Eise 370–371; Klopper Damages 37 ff 40–41 submits that the facta probanda
approach delivers reliable results and that the single-cause approach should be jettisoned.
151 See supra 267 with regard to the date for the assessment of damage(s).
152 See, eg, Schnellen v Rondalia Assurance Corp of SA Ltd 1969 1 SA 517 (W) 521.
272 Law of Delict
claims are compared to establish whether there is a substantial difference despite possible over-
lapping. If there is no substantial difference, the two claims are regarded as falling within a
single cause of action.153
4.7.4 Examples of causes of action and the “once and for all” rule
(a) X is assaulted by Y and suffers pain and suffering, feels humiliated and has to incur medical
costs. According to our law, there is only one cause of action in this example, despite the fact
that X has three delictual actions at his disposal to claim damages.154
(b) While X is riding his bicycle, pedestrian Y negligently runs into him. X suffers bodily
injuries and his bicycle is also damaged. According to current law, there is only one cause of
action in respect of X’s bodily injuries as well as the damage to his bicycle. Thus X only has one
chance of claiming for all his damage.155
(c) Because of Y’s negligent driving of his motor car, another motorist, X, is injured and his car
damaged. At common law there was only one cause of action as a result of the accident. In terms
of legislation providing for so-called third-party liability (currently the Road Accident Funds Act
56 of 1996), the position has been changed and there are now two causes of action: the first
deals with the damage to X’s car. Damage to property does not fall under third-party liability
and X must claim this from Y. The second cause of action is concerned with all X’s damage as a
result of his bodily injuries (medical expenses, loss of income, loss of earning capacity, pain and
suffering) and is instituted against the Fund or its agent.
(d) X drives his motor car and is accompanied by his child Y. Z drives his car in a negligent
manner and collides with X’s vehicle. X and Y are injured. The claim in respect of medical
expenses already incurred as a result of X and Y’s injuries depends on one cause of action.156
(e) X and his wife Y are travelling in X’s car. Z drives his vehicle negligently and collides with
X’s vehicle. X is seriously injured and dies after three months. Y suffers bodily injuries and the
vehicle is damaged. There are at least three causes of action in this set of facts: firstly, in respect
of the damage to the motor car; secondly, all Y’s damage as a result of her bodily injuries; and
thirdly, Y’s claim for damages on account of the death of her breadwinner X.157
________________________
153 Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A) 839. See also by way of analogy Signature Design Workshop
CC v Eskom Pension and Provident Fund 2002 2 SA 488 (C) (Visser 2002 THRHR 649).
154 Ie, the action for pain and suffering, the actio iniuriarum for insult and the actio legis Aquiliae for medical expens-
es. See for more detail Potgieter, Steynberg and Floyd Damages 167 ff.
155 See, eg, Green v Coetzer 1958 2 SA 697 (W) 701: “It seems to me to follow that damages claimable under the lex
Aquilia as extended cannot be divided into two separate causes of action, one for damages to property and the other
for damages for bodily injury to the person.” For criticism of this judgment see Van der Walt Sommeskadeleer
379–396; Boberg Delict 486. However, in our view the Green case appears to rest on practical realities that cannot
be ignored. See further Potgieter, Steynberg and Floyd Damages 167 ff.
156 See Schnellen v Rondalia Assurance Corp of SA Ltd 1969 1 SA 517 (W). As far as Y’s future medical expenses and
general damages for pain and suffering are concerned, they appear to form a separate cause of action – see Guard-
ian National Insurance Co Ltd v Van Gool 1992 4 SA 61 (A) 68.
157 See Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A) 839: “It is evident that although there is a measure of
overlapping, the facta probanda in a bodily injury claim differ substantially from the facta probanda in a claim for
loss of support. Proof of bodily injury to the plaintiff is basic to the one; proof of death of the breadwinner is basic
to the other . . . It is evident too that even where both claims flow from the same accident the cause of action in
each case may arise at a different time. As I have said, the cause of action in respect of bodily injury will normally
arise at the time of the accident . . . [I]n the case of the cause of action for loss of support, this will arise only upon
the death of the deceased, which may occur some considerable time after the accident. Until such death there is, of
course, no wrongful act qua the plaintiff; only a wrongful act qua the person who is later to become the deceased.”
This decision means that prescription of a claim based on the death of a breadwinner only commences at the time
of such death. Where the breadwinner X dies three years after the accident and after Y has already received dam-
ages in respect of her own bodily injuries, she will be able to bring a fresh claim for loss of support. This is not in
conflict with the “once and for all” rule since the new claim rests on a separate cause of action.
(f ) X sprays poison against locusts on Y’s cattle farm during June 1980. X uses the poison in a
negligent manner and the first of Y’s cattle die during July 1980. The last of the cattle die in
December 1980. Y institutes a claim for damages against X in November 1983 (more than three
years after the death of the first cattle but within three years of the deaths in December 1980).
Y’s claim against X rests on a single cause of action for all damage already suffered and all
prospective loss. The cause of action accrues in July 1980 when the first cattle died. Our law
does not recognise a separate cause of action in respect of the death of each head of cattle.
Consequently, Y’s action against X has become prescribed; he should have instituted his claim
before July 1983 in order to overcome the prescription bar.158
(g) X is injured through Y’s negligent conduct and recovers damages from Y. After X’s claim
has been finalised, there are further unforeseen complications as a result of the initial injuries. X
has no further claim against Y and will have to bear the expenses personally, in spite of the fact
that he could not have anticipated them.
(h) X is unlawfully detained and assaulted by Y. The detention and assault form separate causes
of action and each act of assault creates a new cause of action.159
4.8 The collateral source rule and compensating advantages

(res inter alios acta)160
4.8.1 General
A damage-causing event often not only causes loss, but also results in the plaintiff receiving
some benefit. Suppose X is negligently injured by Y and has to incur R1 000 as medical expens-
es. However, X’s aunt Z feels sorry for him and donates R1 000 to him. What role, if any, does
the receipt of R1 000 from Z play in the assessment of X’s damage and the damages that Y has
to pay? Is the R1 000 to be seen as a compensating advantage which neutralises X’s loss (“voor-
deeltoerekening” takes place) or is it to be ignored as originating from a collateral source (Z)
that does not concern Y?
This problem may be approached in two ways:161 Firstly, the law may hold Y liable for all the
damage he has caused. In terms of this approach, Y will have to pay R1 000 to X.162 Adopting
this approach also has the consequence that X suffers damage in the amount of R1 000 but
receives compensation of R2 000. Secondly, it may be argued that Y is only liable to compen-
sate X for damage actually sustained by him. This means that Y does not have to pay anything
to X as the receipt of R1 000 from Z has already compensated X. This implies that Z has in fact
donated the R1 000 to Y and not to X!
After a survey of current legal principles, possible theoretical solutions to the problem of collat-
eral benefits will be considered.163
________________________
158 This example and the principles on which it is based are deduced from Oslo Land Co Ltd v Union Government 1938
AD 584. Here the court held: “In negligence cases the cause of action is an unlawful act plus damage, and as soon as
the damage has occurred, all the damage flowing from the unlawful act can be recovered, including prospective dam-
age and depreciation in market value.” See the criticism of this case by Van der Walt Sommekadeleer 458.
159 See, eg, Lombo v ANC 2002 5 SA 668 (SCA).
160 See generally Potgieter, Steynberg and Floyd Damages 229 ff; Loubser and Midgley Delict 495–498; Klopper
Damages 55–70.
161 See Van der Walt 1980 THRHR 2–5; Potgieter, Steynberg and Floyd Damages 230–233 for other possible
approaches.
162 See Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 2 SA 146 (A) 152.
163 Infra 277.
274 Law of Delict
4.8.2 Summary of positive law

There are practical guidelines on which benefits may be taken into account in particular circum-
stances in reducing the amount of damages to which the plaintiff is entitled or which benefits are
to be ignored.
The following benefits which a plaintiff receives on account of his loss are seen as res inter
alios acta (they are not taken into account in reducing his damages):
(a) Benefits in terms of indemnity insurance and non-indemnity insurance (life assurance).164
(b) Benefits from a medical fund and sick leave where the medical scheme or the employer
(according to the case) has a discretion in respect of the payment of the benefit.165
(c) Benefits received by the owner of a damaged vehicle because the person who bought the
vehicle from him on hire purchase is contractually bound to repair the vehicle.166
(d) Insurance money and a pension payable to dependants whose breadwinner has been
killed,167 unless another legal provision requires the deduction thereof.168
(e) Benefits paid to an injured person in terms of a medical scheme that is in essence a form of
insurance.169
(f) Discretionary payment of pension benefits to a person who has been injured.170
________________________
164 McKenzie v SA Taxi Cab 1910 WLD 232; Ackermann v Loubser 1918 OPD 31; Teper v McGees Motors 1956 1 SA
738 (C); Dippenaar v Shield Insurance Co Ltd 1979 2 SA 904 (A) 920; Van Dyk v Cordier 1965 3 SA 723 (O);
Van der Walt 1980 THRHR 15–18 who states three basic principles: (1) The insured (plaintiff) is entitled to receive
both the insurance money and the damages (the defendant cannot rely on the proceeds of the insurance policy as
reducing his obligation); (2) if the insured has received both damages and insurance money he has to repay the
insurer to the extent that he is overcompensated; (3) the insurer may claim from the wrongdoer in the name of the
insured (if the latter has not already done so). See further Potgieter, Steynberg and Floyd Damages 236–240; Koch
Reduced Utility of a Life Plan 179–212. Disability (accident) insurance is disregarded in the calculation of damages
– Paton v Santam Insurance 1965 2 PH J25. In Burger v President Versekeringsmaatskappy Bpk 1994 3 SA 68 (T)
benefits received by a plaintiff under a compulsory group life assurance scheme were disregarded where the plain-
tiff had paid for all the premiums and her employer had made no contribution.
165 See Gehring v Unie Nasionaal Suid-Britse Versekeringsmaatskappy Bpk 1983 2 SA 266 (C) 271 (value of discre-
tionary sick leave in terms of police regulations disregarded). See however Krugell v Shield Versekerings-
maatskappy Bpk 1982 4 SA 95 (T) where discretionary sick-pay was taken into account. (See further Gough 1983
THRHR 174.) In our opinion discretionary benefits should not be taken into account (see Potgieter, Steynberg and
Floyd Damages 244–245).
166 See Botha v Rondalia Versekeringskorporasie van SA Bpk 1978 1 SA 996 (T) where X had sold a vehicle to Y on
terms according to which the latter had to have the vehicle repaired in case of damage. X could still claim full dam-
ages from a wrongdoer. See for criticism Van der Merwe and Olivier 182 fn 12; see also Boberg Delict 642. How-
ever, the Botha case was applied in Lehmbeckers Transport (Pty) Ltd v Rennies Finance (Pty) Ltd 1994 3 SA 727
(C) 731–732.
167 See s 1 of the Assessment of Damages Act 9 of 1969 according to which no insurance money (which includes a
refund of premiums and interest thereon), pension (which includes a refund of contributions and any payments of
interest and also payment of a gratuity or lump sum) or any benefit from a friendly society or trade union for the
maintenance of a member’s dependants shall be taken into account in reducing damages. (See Boberg 1969 SALJ
339; Du Toit v General Accident Insurance Co of SA Ltd 1988 3 SA 75 (D).) Cf further Potgieter, Steynberg and
Floyd Damages 249–250; Heyns v SA Eagle Versekeringsmaatskappy Bpk 1988-07-11 case no 13468/86 (T) for
critical and analytical commentary on the relevant Act. Cf further Santam Ltd v Gerdes 1991 SA 693 (SCA): pay-
ments received by a widow in terms of German social legislation for the death of her husband in South Africa is
excluded by Act 9 of 1969 from being taken into account in reducing damages; Erasmus Ferreira & Ackermann v
Francis 2010 2 SA 228 (SCA) 235: the court held that pension money received by a dependant will not be deduct-
ed from her claim against her attorney for the loss she suffered when the attorney negligently caused a claim for
loss of support against the RAF to become prescribed.
168 See, eg, Sasol Synthetic Fuels v Lambert 2002 2 SA 21 (SCA) on the application of s 36 of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 to such a case.
169 See, eg, Thomson v Thomson 2002 5 SA 541 (W) 547; D’Ambrosi v Bane 2006 5 SA 121 (C) 134; see Visser 2007
THRHR 663 ff.
170 Dippenaar v Shield Insurance Co Ltd 1979 2 SA 904 (A) 920; Prinsloo v Road Accident Fund 2015 6 SA 91
(WCC) 113.
(g) Donations (ex gratia benefits; benevolent or gratuitous payments).171

(h) In certain cases, savings on income tax where the delict has caused loss of income.172
(i) Pension payments to a member of the citizen force in terms of the Military Pensions Act 84
of 1976.173
(j) The benefit of concluding a beneficial contract on account of a delict.174
(k) The earning capacity of a widow who claims for loss of support caused by the death of her
husband.175
(l) The remarriage of a widow, insofar as it does not restore her financial position.176
(m) The adoption of a child who claims for loss of support on account of the death of his
parents.177
________________________
171 See Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 2 SA 146 (A) where B, a mechanic, suffered brain
damage in an accident which left him unfit for work. Notwithstanding this, his former employer allowed him to
perform simple tasks and continued to pay him his salary as motor mechanic. The question arose of whether this
amount of money had to be deducted from his damages for loss of earning capacity. The majority held that the
employer did not conclude a contract of service with B in allowing him to do simple tasks. The so-called salary was
received as a result of the employer’s generosity and it therefore had to be disregarded in calculating the compensa-
tion he was entitled to. It would be unfair and contrary to the employer’s intention to allow the wrongdoer (or his
insurer) to benefit from the employer’s generosity. Similarly, in Bee v Road Accident Fund 2018 4 SA 366 (SCA)
paras 100–108 a portion of the earnings of the plaintiff, who was injured in a collision, was paid out of benevolence
or charity and had to be disregarded when computing his loss of income. According to Rogers AJA (para 100), this
rule is founded on essential notions of justice and fairness. See also Henning v South British Insurance Co Ltd 1963
1 SA 272 (O); Morris v African Guarantee & Indemnity Co Ltd 1964 4 SA 747 (W); Van Heerden v African Guar-
antee & Indemnity Co Ltd 1951 3 SA 730 (C); Klingman v Lowell 1913 WLD 186; Bosch v Parity lnsurance Co
Ltd 1964 2 SA 449 (W); May v Parity Insurance Co Ltd 1967 1 SA 644 (D); Mutual and Federal Insurance Co Ltd
v Swanepoel 1987 3 SA 399 (W); Fulton v Road Accident Fund 2012 3 SA 255 (GSJ) 261–269; Potgieter, Steyn-
berg and Floyd Damages 234–235; Van der Walt 1980 THRHR 6–11; Koch 1989 THRHR 213; Klopper Damages
57.
172 Damages intended to replace lost income are of a capital nature and are therefore not taxable. Van Heerden JC
Noster 9 ff argues against the reduction of damages on account of savings on income tax. This was apparently also
the obiter view in Whitfield v Phillips 1957 3 SA 318 (A); cf Oosthuizen v Homegas (Pty) Ltd 1992 3 SA 463 (O)
481. In Sigournay v Gillbanks 1960 2 SA 552 (A) 568 this question was, however, left open. Where, in exceptional
cases, damages are taxable, no deduction can be made for tax in computing damages (see Omega Africa Plastics v
Swisstool Manufacturing Co (Pty) Ltd 1978 3 SA 465 (A); cf Barclay v Road Accident Fund 2012 3 SA 94 (WCC)
97–98). See Boberg Delict 545. See infra 276 fn 187 for authority that tax savings should be deducted from dam-
ages. See generally Potgieter, Steynberg and Floyd Damages 256–258; Klopper Damages 80 ff.
173 Mutual and Federal Insurance Co Ltd v Swanepoel 1988 2 SA 1 (A) 1. In Pretorius v Transnet Bpk 1995 2 SA 309
(A) the decision in Swanepoel was qualified somewhat by finding that the pension is deemed to be compensation
for a loss of earning capacity but that it does not exclude a claim for satisfaction.
174 See Lotz 1986 SALJ 704–705: X concludes a contract of service with Y for 5 years and will receive R50 000 per
year. Before X can take up his employment, he is injured through Z’s negligent conduct and cannot work for a year.
Y cancels his contract with X. However, after a year X concludes a contract with Q for 4 years at R60 000 per year.
If X claims loss of income for a year from Z, the latter should not be able to rely on the favourable contract with Q
in order to diminish damages payable to X. See also Sandown Park (Pty) Ltd v Hunter 1985 1 SA 248 (W).
175 Peri-Urban Areas Health Board v Munarin 1965 3 SA 367 (A) 376; Potgieter, Steynberg and Floyd Damages 250–
251. See Steynberg Gebeurlikhede 215–220 for a discussion of the circumstances under which the earning capacity
of a widow qualifies as a contingency deduction.
176 See Ongevallekommissaris v Santam Bpk 1999 1 SA 251 (SCA). If remarriage does not restore her financial
position but nevertheless improves it, this should be taken into account (Steynberg 2007 (3) PELJ 121 ff). In Ester-
huizen v Road Accident Fund 2017 4 SA 461 (GP) paras 10 12 Tolmay J held, on constitutional grounds (463 464),
that a widow’s appearance and nature (personality) should no longer, as earlier (see Potgieter, Steynberg and Floyd
Damages 253; Klopper Damages 149), be taken into account as a factor influencing her chances of remarriage (see
Scott 2018 TSAR 428 for a discussion). Scott idem 443 proposes that the rule regarding a contingency deduction on
the basis of a plaintiff’s possible remarriage should be scrapped in its entirety.
177 Constantia Versekeringsmaatskappy Bpk v Victor 1986 1 SA 601 (A) (1985 1 SA 116 (C)); Reinecke 1988 De Jure
231; Senior v National Employers General Insurance Co Ltd 1989 2 SA 136 (W) (where a child’s parents are di-
vorced without having made provision for his maintenance but his mother in fact supported him, his claim for loss
of maintenance upon her death is not influenced by the fact that his father has to provide support); see further Davel
[continued ]
276 Law of Delict
(n) Child-support grants178 in terms of the Social Assistance Act 13 of 2004179 and foster-child
grants.180
(o) An award which is received as solatium (solace money).181
The following benefits which a plaintiff has received or may receive must be taken into
account in reducing his damages (they are not regarded as res inter alios acta):
(a) Medical benefits or sick leave where the medical scheme or employer is contractually or
statutorily obliged to allow such benefits.182
(b) A pension paid out to an injured person if the beneficiary had a contractual or statutory right
to such a pension,183 as well as a disability pension.
(c) The amount of damages someone receives from the Compensation Commissioner.184
(d) The benefit to an injured person of receiving medical treatment free of charge in a provincial
hospital.185
(e) The marriage prospects of a widow who claims for loss of support due to the death of a
breadwinner.186
(f) Savings on income tax due to lost income.187
________________________
1989 De Jure 365.

178 Coughlan NO v Road Accident Fund 2015 4 SA 1 (CC) 14í15, overruling RAF v Timis [2010] JOL 25244 (SCA)
7–8; cf Steynberg and Millard 2011 (4) PELJ 269; Mukheibir 2011 SALJ 251 ff.
179 See Van Wyk v Santam Bpk 1998 4 SA 731 (C) on the repealed Social Assistance Act 59 of 1992.
180 Coughlan NO v Road Accident Fund 2015 4 SA 1 (CC) 14í15; overruling RAF v Coughlan 2014 6 SA 376 (SCA).
181 See Mutual and Federal Insurance Co Ltd v Swanepoel 1988 2 SA 1 (A); Zysset v Santam Ltd 1996 1 SA 273 (C)
(see, however, Visser 1994 THRHR 98). Cf also Pretorius v Transnet Bpk 1995 2 SA 309 (A).
182 Serumela v SA Eagle Insurance Co Ltd 1981 1 SA 391 (T) on a contractual right to “sick pay”. See further
Potgieter, Steynberg and Floyd Damages 244–245.
183 See Dippenaar v Shield Insurance Co Ltd 1979 2 SA 904 (A). D, a civil servant, was seriously injured in a motor
car accident. As a result of his injuries he had to retire 6 years prematurely. During his service he had contributed to
a pension fund supplemented by the state. On his retirement he became entitled to a pension as well as other bene-
fits. The unanimous decision of the Appellate Division was that such pension and benefits had to be deducted from
his damages. The court argued that to prove the monetary value of his loss D had relied on his contract of service
with the state. However, this contract provided for a salary as well as a pension. As the contract as a whole was
offered as evidence, the court had to take the value of the pension into account in assessing damages for loss of sal-
ary. This decision is highly controversial. See generally Claasen and Oelofse 1979 De Rebus 588; Burchell 1979
Annual Survey 211; Pauw 1979 TSAR 256; Boberg Delict 610; Van der Merwe and Olivier 183; Le Roux 1980 De
Rebus 483; Reinecke 1988 De Jure 227; Koch 1989 THRHR 210, Reduced Utility of a Life Plan 184; Potgieter,
Steynberg and Floyd Damages 240–244. In Standard General Insurance Co Ltd v Dugmore 1997 1 SA 33 (A) the
Appellate Division declined an invitation to overrule Dippenaar (see on this case Visser 1997 THRHR 536).
184 See s 36 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and on this Ngcobo v Santam
Insurance Co Ltd 1994 2 SA 478 (T). An employee who receives compensation from the Compensation Commis-
sioner (now the Director-General of the Department of Labour) and afterwards claims from the wrongdoer will
have his damages reduced by what has already been received. Compensation paid in terms of s 36 must be deduct-
ed from any common law damages, even if it is in the form of a pension as meant by s 1 of the Assessment of
Damages Act 9 of 1969 – Sasol Synthetic Fuels v Lambert 2002 2 SA 21 (SCA). In Road Accident Fund v Maphiri
2004 2 SA 258 (SCA) the court held (on appeal against the decision in Maphiri v Road Accident Fund 2002 6 SA
383 (W)) that the compensation in terms of Act 130 of 1993 had to be deducted from the total liability of the de-
fendant (after consideration of the plaintiff’s contributory fault) and that the specific headings under which dam-
ages were claimed and awarded, were irrelevant. The alleged “like from like” principle was rejected.
185 See Barnard v Union and SWA Insurance Co Ltd 1971 1 SA 537 (E).
186 See Peri-Urban Areas Health Board v Munarin 1965 3 SA 367 (A) 376; Ongevallekommissaris v Santam Bpk 1999
1 SA 251 (SCA); Davel Skadevergoeding aan Afhanklikes 124–128; Potgieter, Steynberg and Floyd Damages 251
ff; Steynberg 2007 (3) PELJ 121 ff.
187 Van der Plaats v SA Mutual Fire and General Insurance Co Ltd 1980 3 SA 105 (A) 114. In British Transport
Commission v Gourley 1956 AC 185 (HL) it was held that where the lost income would be taxable but the damages
are not subject to tax, the damages have to be reduced to accommodate a saving on tax. This was followed in Pitt v
Economic Insurance Co Ltd 1957 3 SA 284 (D) 289 and, in Zimbabwe, in Minister of Defence v Jackson 1991 4
[continued ]
(g) The amount which a plaintiff has received from the liability insurer of the defendant188 and,
naturally, the amount the plaintiff has received from the wrongdoer himself.189
(h) A plaintiff’s possible saving on living expenses on account of his injuries.190
(i) Accelerated benefits from the estate of a deceased breadwinner.191
(j) A welfare payment received in a foreign country by virtue of the fact that the plaintiff was
injured and unable to fully support himself.192
4.8.3 Explanations of the collateral source rule193
A generally acceptable explanation for the problem of deducting certain benefits from compen-
sation and disregarding others has not yet been found.194 The maxim res inter alios acta is
frequently used in connection with the disregarding of certain benefits. This “rule” means that in
________________________
SA 23 (ZS). Cf Barclay v Road Accident Fund 2012 3 SA 94 (WCC) 97–99; cf Loubser and Midgley Delict 499.
See, however, supra 275.
188 See Van der Walt 1980 THRHR 20: The defendant’s insurer pays damages to the plaintiff for damage caused by the
defendant. If the plaintiff claims damages from the defendant as well, he should be able to request that the damages
already received from the insurer be taken into account.
189 See, eg, Minister van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors 2002 5 SA 649 (SCA). The respondent,
a dealer in second-hand motor cars, instituted an action against the appellant for damages in the amount of
R362 805. The respondent averred that members of the vehicle theft unit of the South African Police Service had
for self-gain colluded with a syndicate of vehicle thieves, whereby the thieves were enabled to trade in motor ve-
hicles stolen by their members. The police officials had prepared and issued clearance certificates without which
the vehicles could not have been registered and sold. Eight of the stolen vehicles supplied with false documentation
were sold to Pro-fit, a dealer in second-hand motor cars, who in turn sold the vehicles to the respondent. The re-
spondent sold seven of these vehicles for a profit to different members of the public. Later the police confiscated all
eight vehicles. Six of the seven buyers instituted action against the respondent in terms of his warranty against evic-
tion and the respondent had to compensate each of them by paying them the purchase price or the value of the
vehicles. He lost the eighth vehicle. The total amount the respondent had to pay was R362 805 and he wished to
recover it from the appellant. The SCA held, inter alia, that the maxim res inter alios acta alteri nocere non debet
was not really applicable. It applied in the case of advantages received by the prejudiced person that would have
resulted in the damage suffered being compensated in whole or in part by a third person, a source other than the
wrongdoer. The advantage received by the respondent from Pro-fit did not really come from a source other than the
wrongdoer, but was rather directly attributable to the delict and therefore it fell within, and not outside of, a delic-
tual context (665–666). Furthermore, the primary question was whether the respondent had proved the extent of his
damage. Insofar as the respondent had been paid back by Pro-fit, the compensation due to him was accordingly re-
duced. It was impossible on the evidence to establish to what degree the extent of the respondent’s damage had
been reduced by such payments. It was therefore impossible to determine what the balance of his claim against the
appellant was. Consequently the respondent had not proved the extent of this damage (666–667).
190 Roberts v Northern Assurance Co Ltd 1964 4 SA 531 (D); Dyssel v Shield Insurance Co Ltd 1982 3 SA 1084 (C).
In Reid v SAR & H 1965 2 SA 181 (N) the court took the “benefit” that the plainiff could not marry and have chil-
dren into account but the Appellate Division correctly rejected it in General Accident Insurance Co SA Ltd v Sum-
mers (etc) 1987 3 SA 577 (A) 617. In D’Ambrosi v Bane 2006 5 SA 121 (C) 132 a saving in living expenses was
not taken into account while determining a loss of income or earning capacity because the saving would have been
too speculative. In Bane v D’Ambrosi 2010 2 SA 539 (SCA) 546 the court refused to treat the saving of cost-of-
living expenses as a collateral benefit in a claim for loss of income that would have accrued in a foreign country.
See further Potgieter, Steynberg and Floyd Damages 246–247.
191 Hulley v Cox 1923 AD 234 243; Maasberg v Hunt, Leuchars & Hepburn Ltd 1944 WLD 2 11–12; Milns v Protea
Assurance Co Ltd 1978 3 SA 1006 (C) 1011; Legal Insurance Co Ltd v Botes 1963 1 SA 608 (A); Davel Skade-
vergoeding aan Afhanklikes 122; Potgieter, Steynberg and Floyd Damages 247–249.
192 D’Oliveira v Road Accident Fund 2019 2 SA 247 (WCC) para 7. The value of this welfare payment (agreed to be
R2 million), which fell to be deducted from the plaintiff’s damages award, was held to be subject to a contingency
deduction of 20% (paras 5–17). See, however, Zysset v Santam Ltd 1996 1 SA 273 (C) where foreign social secur-
ity payments in respect of injuries were held not to be deductible since the plaintiffs would have to repay their
damages received in SA (see for criticism Visser 1996 De Jure 189).
193 See generally Potgieter, Steynberg and Floyd Damages 266 ff; Klopper Damages 56–57.
194 See, eg, Boberg Delict 479: “The existence of the collateral source rule can therefore not be doubted; to what
benefits it applies is determined casuistically: where the rule itself is without logical foundation, it cannot be
expected of logic to circumscribe its ambit.”
278 Law of Delict
a dispute between X and Y, a transaction between X and Z is irrelevant. However, it should be

clear that this expression provides no solution to the basic problem of collateral benefits; at best
it is only a way of expressing a conclusion that an advantage should be disregarded.
Disregarding a benefit in a claim with the actio legis Aquiliae should not be based on the idea of
punishing the defendant, since this action has no penalty function in a primary sense.195 Further-
more, Van der Walt196 convincingly demonstrates that the problem of collateral benefits is not
concerned with causation197 or the assessment of damage.198 His conclusion is that the problems
regarding collateral benefits have to be solved in terms of the basic philosophy of compensation
(which requires the fullest possible compensation in the circumstances) and has to take account
of the realities of the insurance industry as well as measures aimed at social care. Reinecke199
attempts to develop some general principles to explain the collateral source rule, but it appears
that one will necessarily have to employ vague and general principles of equity, reasonableness
and the public benefit. It appears that Corbett and Buchanan200 erroneously regard the problem
of collateral benefits as an issue of the assessment of damage, and argue for the taking into
account of all benefits except ex gratia benefits and those based on insurance. The views of
Van der Merwe and Olivier201 are too simplistic, as they intend to take all the beneficial conse-
quences of a delict into account so that the plaintiff does not show any “profit”. Koch202 furnish-
es certain practical reasons why some advantages should be seen as res inter alios acta.203
Questions regarding collateral benefits are normative in nature: they have to be approached and
solved in terms of policy principles and equity.204 It would appear that the Appellate Division
employs general concepts of fairness and justice.205 These principles are obviously relevant, but
do not provide any magic formula for solving all problems directly.206
________________________
195 Supra 7.
196 1980 THRHR 21 ff.
197 The idea that the benefit has not been caused by the delict is contrary to reality as factual causation is clearly
present. It may be correctly argued that there is no reasonable connection between the delict and the benefit (legal
causation is therefore absent: see supra 230) but then the question still remains: what is a reasonable or unreason-
able connection?
198 This approach is plausible in terms of the sum-formula approach (supra 266). In terms of this approach a plaintiff’s
total patrimony after the delict is compared with his total patrimony if the delict had not been committed. Any bene-
fit made possible by the delict is thus taken into account in determining the plaintiff’s present patrimony. Damage
is also seen as the net result when the benefits of a delict are deducted from the loss it has caused. (See generally
Reinecke 1988 De Jure 223; Van der Merwe and Olivier 317 ff.) However, it is clear that the process of consider-
ing the effect of benefits caused by a delict cannot merely be seen as a mathematical exercise of subtracting all
benefits from all losses as this may cause unjust and even absurd results. Eg there is general acceptance of the fact
that a donation cannot be seen as reducing the damages to which a plaintiff is entitled despite the fact that such do-
nation does in a purely factual sense reduce the loss suffered by the plaintiff (see supra 275).
199 1988 De Jure 229 ff. He states three requirements before a benefit should be taken into account in reducing
damages: (a) A causal nexus must exist between the benefit and the damage-causing event; (b) it must be an actual
benefit and not merely a “prospective” one; (c) the benefit must have been given with a compensatory object. To
this he adds that benefits regarded as solatium or in regard to non-patrimonial loss should always be disregarded
(see however supra 276). See further on Reinecke’s suggestions Potgieter, Steynberg and Floyd Damages 266–268.
200 121.
201 184.
202 1989 THRHR 211–212, Damages for Lost Income 117 ff, Reduced Utility of a Life Plan 209–212.
203 Eg an insurer’s right to subrogation and the plaintiff’s duty to indemnify the sources which paid him the benefit:
“The practical effect of the collateral benefit-rule is to appoint the claimant as representative for his associates who
are out of pocket by reason of his injury. This is an administratively convenient arrangement. To require that each
individual should bring his own action, may be good in law but it creates procedural hurdles which render it all the
more difficult to achieve fairness.”
204 See also Erasmus Ferreira & Ackermann v Francis 2010 2 SA 228 (SCA) 235.
205 See Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 2 SA 146 (A) where reference was made to the English
case of Parry v Cleaver 1970 AC 1 where the following expressions are used: “the ordinary man’s sense of just-
ice”, “public policy”. See also McKerron Delict 112 on the “interests of society” which are sometimes better served
[continued ]
Generally, it may be concluded that just as it would be unfair to deduct all benefits made possi-
ble by a damage-causing event from a plaintiff’s damages, it would also be unjustifiable to
regard all such benefits ab initio as irrelevant. The general principle should be that a plaintiff
cannot be allowed to recover damages in excess of his actual loss. In the long term, the recovery
of damages beyond the actual compensatory mark may place unacceptable pressure on the
community, the economy and the insurance industry. Thus there should always be a weighing-
up of the interests of the plaintiff, the defendant, the source of the benefit, as well as the com-
munity, in establishing how benefits resulting from a damage-causing event should be treated.207
4.9 Mitigation of loss208

It is a principle of the law of delict that a plaintiff may not recover damages for a loss which is
the factual result of the defendant’s conduct but which could have been prevented if the plaintiff
had taken reasonable steps.209 A failure to ensure that damage does not accumulate can be seen
as a failure by the plaintiff to take reasonable steps to limit the initial loss or an omission to
prevent further damage. The basic principles are as follows:210
(a) The plaintiff is obliged to take all reasonable211 steps to limit the damage caused by the
defendant’s delict. This duty arises as soon as the plaintiff in fact suffers loss and knows or
should reasonably know that he has to mitigate his damage. A plaintiff who fails to mitigate his
loss in this manner cannot recover damages in respect of a loss that he could reasonably have
prevented. The standard of reasonableness is not very high, since the defendant is a blameworthy
person.212
________________________
by allowing the plaintiff to recover damages and retain a benefit from another source. Cf also Van Wyk v Santam
Bpk 1998 4 SA 731 (C); Ongevallekommissaris v Santam Bpk 1999 1 SA 251 (SCA).
206 As Van der Walt 1980 THRHR 26 points out there may also be ideas of revenge behind a so-called equitable
approach. There can also be two solutions that are equally fair but the one is preferable on policy grounds.
207 See Erasmus Ferreira & Ackermann v Francis 2010 2 SA 228 (SCA) 235. See also Potgieter, Steynberg and Floyd
Damages 270–273: “The legislature and the courts should . . . allow the law to develop in such a way that in as
many situations as possible the source of a benefit can have a right of recourse against the defendant. This will have
the result that in more instances benefits may be taken into account with neither the source of the benefit suffering
an irrecoverable loss nor the plaintiff being compensated twice” (273).
208 See Potgieter, Steynberg and Floyd Damages 295 ff; cf Loubser and Midgley Delict 514; Klopper Damages 23–30.
209 See Butler v Durban Corporation 1936 NPD 139; Van Almelo v Shield Insurance Co Ltd 1980 2 SA 411 (C);
Da Silva v Coutinho 1971 3 SA 123 (A); Shrog v Valentine 1949 3 SA 1228 (T); Modimogale v Zweni 1990 4 SA
122 (B). The theoretical explanation of this principle is controversial. As it concerns a plaintiff’s conduct after the
damage-causing event, contributory fault is inapplicable. The correct view appears to be that the plaintiff owes a
legal duty to the defendant not to unreasonably burden the obligation of the defendant to pay damages. (Cf Swart v
Provincial Insurance Co Ltd 1963 2 SA 630 (A) 633: “A legal duty . . . to take all reasonable steps . . . to minimise
loss” (translation).) This duty is enforced indirectly by reducing the damages of a plaintiff who has failed to fulfil it
properly. There is no duty on the plaintiff not to harm himself since legally speaking such a duty cannot exist. Con-
tra Joubert Contract 254 who speaks of a moral duty and a “rule of equity limiting the loss recoverable”.
211 In Swart v Provincial Insurance Co Ltd 1963 2 SA 630 (A) it was held that it was unreasonable to expect of the
plaintiff, a married man of 27 years, to enhance his earning capacity by improving his school education. In Wil-
liams v Oosthuizen 1981 4 SA 182 (C) it was held that a plaintiff had to limit his loss by undergoing treatment in a
provincial hospital; contra Ngubane v South African Transport Services 1991 1 SA 756 (A) where it was held that
the use of private medical care is also reasonable. See Premier, Western Cape v Kiewitz 2017 4 SA 202 (SCA);
Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2017 12 BCLR 1528
(CC) (see infra fns 225 226 for more detail); cf Road Accident Fund v Mohohlo 2018 2 SA 65 (SCA) para 28. Cf
Klopper Damages 23–26; Pauw 2017 TSAR 846 ff, 2019 TSAR 91 ff.
212 See Da Silva v Coutinho 1971 3 SA 123 (A) 145; De Pinto v Rensea lnvestments (Pty) Ltd 1977 4 SA 529 (A). In
risk liability not based on fault this qualification should probably not apply.
280 Law of Delict
(b) A plaintiff who has taken reasonable steps to mitigate his loss may also recover damages for
any loss caused by such reasonable steps.213
(c) Where the plaintiff has reduced his damages by taking reasonable steps in mitigation, the
defendant is only liable to compensate him for the actual loss he sustained, even if the plaintiff
did more than the law required of him.214
(d) The onus of proving that the plaintiff did not properly fulfil his duty to mitigate rests on
the defendant.215 However, if the defendant has proved an unreasonable failure on the part of the
plaintiff to mitigate his loss, the plaintiff has to prove what his loss would have been had he
taken reasonable steps.216
4.10 Nature, object and form of damages217

Damages are a monetary equivalent of damage awarded to a person with the object of eliminat-
ing as fully as possible his past as well as future damage.218
The object of damages is evident from this definition.219 In delict, damages (compensation) are
the primary remedy, not restitution in kind or specific performance, as in the case of breach of
contract.220 Damages for patrimonial loss are never intended to punish221 the defendant or to
provide satisfaction222 to the plaintiff or the community. Consequently, damages cannot be
recovered with the Aquilian action for injury to feelings (affective loss).223 Nominal damages
ought not to be awarded where the plaintiff has only proved the invasion of a right but no dam-
age.224
________________________
213 The plaintiff may thus claim the reasonable rent of a substitute motor car which he then uses in his business instead
of his damaged vehicle (Shrog v Valentine 1949 3 SA 1228 (T); Modimogale v Zweni 1990 4 SA 122 (B); Zweni v
Modimogale 1993 2 SA 192 (BA)). However, expenses incurred by the plaintiff are only recoverable if damages
for damage it had to prevent would be recoverable (see Everett v Marian Heights (Pty) Ltd 1970 1 SA 198 (C)).
Reasonable expenses in discharging the duty to mitigate may be claimed even though the ultimate damage exceeds
the amount it would have been without the attempted mitigation, provided that the plaintiff acted reasonably.
214 Erasmus, Gauntlett and Visser 7 LAWSA 36.
215 Maja v SA Eagle Insurance Co Ltd 1990 2 SA 701 (W) 710; Krugell v Shield Versekeringsmaatskappy Bpk 1982 4
SA 95 (T) 99; Potgieter, Steynberg and Floyd Damages 301 fn 164. It is thus the defendant who has to prove that a
plaintiff’s refusal to undergo an operation is unreasonable (Butler v Durban Corporation 1936 NPD 139). See also
Van Almelo v Shield Insurance Co Ltd 1980 2 SA 411 (C); Sentrachem Bpk v Wenhold 1995 4 SA 312 (A).
216 Jayber v Miller 1980 4 SA 280 (W).
217 See Premier, Western Cape v Kiewitz 2017 4 SA 202 (SCA) 203; generally Potgieter, Steynberg and Floyd
Damages 189 ff; Klopper Damages 17 ff.
218 See further Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230
(CC) 252; Van der Walt 1980 THRHR 5; Boberg Delict 475.
219 See Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657 665 from which Boberg
Delict 489 deduces the following: “The object of awarding Aquilian damages is to place the plaintiff in the position
in which he would have been had the delict not been committed, redressing the diminution in his patrimony that the
defendant has caused.” See further Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus
curiae) 2006 4 SA 230 (CC) 252.
220 See Potgieter, Steynberg and Floyd Damages 186–187.
221 See Van der Walt 1980 THRHR 23; Visser 1983 TSAR 68–73; Potgieter, Steynberg and Floyd Damages 195 ff.
222 Damages may have a secondary effect of neutralising a plaintiff’s feelings of having suffered an injustice. The
causing of satisfaction in this manner is, however, never the aim of damages for patrimonial loss (see Visser 1988
THRHR 470; Van der Walt 1980 THRHR 23).
223 See Boberg Delict 477: “Mere mental distress, injured feelings, inconvenience or annoyance cannot support an
award of Aquilian damages.” These losses may be the subject of damages aimed at satisfaction with the actio ini-
uriarum where the defendant has acted intentionally (infra 301). The only example where damages in the form of
compensation may be recoverable for non-patrimonial loss, is where the action for pain and suffering is instituted
to claim on account of bodily injuries (infra 298). See further Union Government (Minister of Railways and
Harbours) v Warneke 1911 AD 657; Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 2 SA 111 (C);
Wynberg Municipality v Dreyer 1920 AD 439 448.
224 See for more detail Potgieter, Steynberg and Floyd Damages 198 ff.
Damages must be expressed in money.225 Damages are awarded as a lump sum for damage
already suffered as well as loss expected in future (in terms of the so-called once-and-for-all
rule).226
________________________
225 Idem 189 ff; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 782; Radell v Multilat-
eral Motor Vehicle Accidents Fund 1995 4 SA 24 (A); Premier, Western Cape v Kiewitz 2017 4 SA 202 (SCA)
204. In this case the province, instead of paying damages for the plaintiff’s son for his sight impairment, undertook
to provide all future medical care required for his impairment. Nicholls AJA (204) held that the province’s plea to
offer restitution in kind rather than a monetary award, boiled down to an attempt to abolish the long-established
common law rule that compensation for patrimonial loss should sound in money. This would also undermine the
application of the once-and-for-all rule (see 204í206) as it would provide fertile ground for future litigation, a situ-
ation that this rule was designed to avoid. In the court’s opinion, digressing from the once-and-for-all rule in situa-
tions such as the present is a policy decision for the legislature and not one for judicial reform (see also MEC for
Health and Social Development, Gauteng Provincial Government v Zulu [2016] ZASCA (30 November 2016) para
12; see further supra 270 on the rule). In MEC for Health and Social Development, Gauteng v DZ 2018 1 SA 335
(CC) (see Mukheibir 2019 (3) Obiter 252 ff) – Froneman J (paras 14í15) confirmed the common law rules that
damages are to be awarded in money (not in kind), and that the once-and-for-all rule still forms part of our law.
Nevertheless, he opined that it is open to counter the method and measure of the claim for damages on the basis
that the amount claimed is not reasonable because a plaintiff is more likely to use public healthcare, which is as
good as, and cheaper than, private healthcare (paras 18 ff). According to him, this approach is in accordance with
general principles in relation to the proving of damages (para 21) and it does not offend the once-and-for-all rule
(para 22). Be that as it may, the judge left the door open for further development of the common law (para 58). In
MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government 2020 2 SA 567
(GJ) the court indeed took the opportunity to develop the common law. In casu a claim for damages was instituted
against the defendant arising out of negligent conduct by medical staff in a public hospital resulting in the birth of a
child who is now severely disabled by cerebral palsy. She was represented by her mother as the plaintiff. The court
(para 207) held that “the common law rule requiring that delictual damages must be compensated in money is de-
veloped so as to permit a court to order compensation in kind in appropriate cases in circumstances where [the de-
fendant] is held liable for the negligent conduct of public healthcare staff causing injury during or at birth to a child
in the form of cerebral palsy”; and [the defendant] “establishes that medical services of the same or higher standard
will be available to the child in future in the public healthcare system at no or lesser cost to the child than the cost
of the private medical care claimed”.
226 See supra 270 for this rule. In MEC for Health and Social Development, Gauteng v DZ 2018 1 SA 335 (CC) para 2
the defendant (MEC) pleaded that the common law allowed her not to have to pay future medical expenses in a
lump sum, and that, if it did not, the court should develop it. Both the High Court and the SCA dismissed this plea
(para 3) and the appeal to the CC also failed. In the CC, Froneman J (paras 14 ff) confirmed that the current com-
mon law does not allow for damages to be ordered by way of periodic payments, but concluded, after a thorough
comparison of the once-and-for-all rule and the periodic payment system (paras 27 ff) that the failure of the appeal
does not mean that the door to further development of the common law is shut (para 58; see Pauw 2019 TSAR 91
ff). (In a minority judgment, Jafta J considered that the existing law already allows damages to be ordered by way
of periodic payments (para 87).) Pauw 2018 TSAR 176 ff (also 2019 TSAR 91 ff) regards the CC’s judgment, in
which “our highest court has now affirmed that a judgment sounding in money is not the only remedy in a delictual
claim where loss was caused by negligence on the part of a public hospital”, as a step in the right direction. See also
Mouton v Die Mynwerkersunie 1977 1 SA 119 (A) 147. An exception to the lump sum rule is to be found in s 17 of
the Road Accident Fund Act 56 of 1996. This section empowers the Fund or its agent to pay damages in respect of
medical costs as such costs are incurred. It may also, with the permission of the plaintiff, pay damages in respect of
loss of income and support in instalments (see Klopper Damages 114). In Wade v Santam 1985 1 PH J3 (C) the
court held that it had the inherent power to award damages in instalments (see also Coetzee v Guardian National
Insurance Co Ltd 1993 3 SA 388 (W)). However, there appears to be no authority for this proposition. See Pauw
2017 TSAR 836 ff, 2019 TSAR 91 ff 95 who proposes that alternative relief in the form of “restitution” (eg an order
to provide the medical services reasonably necessary to provide for the improvement or, at least, the maintenance
of the condition of the plaintiff) should be the preferred remedy in lieu of money where awards have to be made for
future medical and related expenses (see infra 284 fn 264 for more detail). Pauw 2019 TSAR 91 ff also discusses
(and proposes amendments to) the State Liability Amendment Bill (2018) (preceded by Issue Paper 33 of the South
African Law Reform Commission (20-05-2017)) with the object, inter alia, as set out in the preamble, to amend the
State Liability Act, 1957, “so as to provide for structured settlements for the satisfaction of claims against the State
as a result of wrongful medical treatment of persons by servants of the State” (see also Wessels and Wewege 2019
TSAR 484 ff who, after a comprehensive discussion of the Bill, concludes (509) that the Bill is a step in the right
direction, but needs further refinement). However, Pauw 2019 TSAR 91 is of the opinion that deference to the legis-
lature is unnecessary as the desired result could be achieved by the courts in terms of s 173 of the Constitution,
which provides that the superior courts have the inherent power to develop the common law, taking into account
[continued ]
282 Law of Delict
4.11 Assessment of the quantum of damages

4.11.1 General
The assessment of damages (quantification) is the process whereby damage which the law has
found to exist and for which compensation may be awarded is expressed in monetary terms in
order to reach a specific amount of damages.227 Quantifying damages is not the same as assess-
ment of damage. Damage is assessed228 by comparison of the utility value of a plaintiff’s patri-
mony before and after a damage-causing event.229 The utility value230 is directly expressed in
money during assessment of damage,231 but assessment of the quantum entails further steps.
After damage has been expressed in money with reference to the correct time232 and standard of
value,233 this amount must be adjusted in terms of other principles to obtain the final sum of
compensation. For instance, damages cannot be calculated in respect of damage which is too
remote;234 a plaintiff’s damages are reduced in proportion to his contributory negligence;235
damages are reduced when regard is had to compensating benefits236 and failure to take reason-
able steps in mitigation.237 Furthermore, damages for prospective damage are discounted or
capitalised238 and provision is made for contingencies.239 There are also special rules in connection
________________________
the interests of justice (see Mokone v Tassos Properties CC 2017 5 SA 456 (CC) paras 40–42). Pauw idem 92 states
that the current law, “as interpreted by the constitutional court, is sufficient to grant redress that will do justice, not
only to claimants, but also to public health authorities. Large single-sum payments will be avoided and, in general,
the money spent on litigation and the payment of damages can be usefully diverted to the upgrading of services and
facilities where required”. In MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial
Government 2020 2 SA 567 (GJ) paras 202–206 the court, despite its decision to develop the common law to make
provision for compensation in kind (see previous fn), and although it was in principle in favour of also developing
the common law to make provision for monetary awards to be payable by way of periodic payments, rather than in
one lump sum, found that such development could not be supported in casu for lack of sufficient evidence.
227 In Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA 391 (SCA) para 93
Schippers AJA stated: “Before quantifying [damages], one must ascertain whether any loss has in fact been suf-
fered”; see Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230
(CC) 252.
228 Supra 266.
229 “Damage is assessed by comparing the utility value of a plaintiff’s patrimony before and after a damage-causing
event” (Schippers AJA in Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1 SA
391 (SCA) para 93). See Potgieter, Steynberg and Floyd Damages 187–188.
230 Supra 264 ff.
231 Eg in the case of injury to property, both damage and damages may be expressed as the reasonable cost of repairs.
232 Supra 267 on the date for the calculation of damage which is normally also used for the computation of damages.
233 Supra 263 regarding a person’s patrimony (estate).
234 Supra 230.
235 Supra 199.
236 Supra 273.
237 Supra 279.
238 Ie, reduced by a certain percentage so that the plaintiff does not benefit from receiving the damages in advance –
see Potgieter, Steynberg and Floyd Damages 149–151.
239 Contingencies in a wide sense have been described as “the vicissitudes of life, such as illness, unemployment, life
expectancy, early retirement and other unforeseen factors” (Road Accident Fund v Guedes 2006 5 SA 583 (SCA)
585; see also Southern Insurance Association Ltd v Bailey 1984 1 SA 98 (A) 116). The court must exercise its dis-
cretion in this regard according to what is reasonable and fair and have regard to objective factors present, common
logic, expert evidence, and the like (Fulton v Road Accident Fund 2012 3 SA 255 (GSJ) 270–271; NK v MEC for
Health, Gauteng 2018 4 SA 454 (SCA) para 16; Goodall v President Insurance Co Ltd 1978 1 SA 389 (W) 392).
According to Potgieter, Steynberg and Floyd Damages 142, “[t]he fairest approach seems to be a general reduction
of all damages for prospective loss in accordance with a percentage reflecting the possibility that such loss may not
occur”. In D’Oliveira v Road Accident Fund 2019 2 SA 247 (WCC) the court had to deal with two issues: firstly,
the question of a contingency deduction to be applied to certain statutory benefits payable to the plaintiff in the
United Kingdom under the social security program available to residents of that country. Secondly, the court was
required to determine whether the plaintiff was entitled to be compensated for the cost of domestic help in the Unit-
ed Kingdom as a consequence of allegedly being unable to attend to certain domestic chores and personal functions
which he otherwise would have been able to fulfil but for the injuries sustained in the collision. The court held that
[continued ]
with the disregarding of income from illegal activities,240 as well as statutory limitations on the
amount of recoverable damages.241
4.11.2 The assessment of damages in specific instances

There are numerous specialised principles in respect of the assessment of the quantum of dam-
ages in specific cases of patrimonial loss (referred to as the different measures of damage).
Obviously, there is no room in an introductory work on the law of delict to discuss all these
rules, which properly belong to the law of damages.242 However, because the delict of damage to
property243 is instructive of certain principles in the assessment of damages, it will be discussed
here as a general example while reference will only be made to other forms of delict.
The owner244 of property is entitled to damages which are (theoretically) calculated on the basis
of the reduction in market value of such property245 at the time246 of the inflicting of damage;
this measure of damage is referred to as the criterion of difference in value.247 In order to prove
market value, a plaintiff is required to demonstrate the original value of the property and the
decline in value which has taken place up to the time of the damage-causing event.248 Since there
are often practical problems in proving the market value of property before and after the dam-
age-causing event,249 the reasonable cost of necessary repairs is usually used as a measure of
damages.250 However, reasonable cost of repairs cannot serve as a measure of damages where
the cost of repairs exceeds the pre-accident market value of the property, or where it exceeds the
diminution in market value as a result of the delict.251 In such cases, only the actual diminution
in value can be claimed. A plaintiff should also not base his damages merely on reasonable cost
of repairs where the repairs, though restoring the property to its pre-accident condition, do not
restore its pre-accident market value.252 Here, additional damages must be claimed for the
________________________
a contingency deduction of 20% shall be applied to the first issue and a contingency deduction of 40% to the award
for domestic assistance. See also Road Accident Fund v Kerridge 2019 2 SA 233 (SCA) 240í242. It should be
noted that contingencies of life are not always negative (Bee v Road Accident Fund 2018 4 SA 366 (SCA) para
114). See Steynberg Gebeurlikhede passim for an in-depth exposition of the manner and circumstances in which
contingencies should be taken into account. Cf Loubser and Midgley Delict 502–504; Klopper Damages 101–113.
240 Infra 285.
242 See generally idem 419 ff; Holscher v ABSA Bank 1994 2 SA 667 (T) 674. Cf Fulane v Road Accident Fund 2003 3
SA 461 (W): implications in respect of legal costs of the difference between a trial on the merit of a claim for dam-
ages and the determination of the quantum of compensation for bodily injury. Cf Loubser and Midgley Delict
504 ff.
244 Or others with a legal interest such as a hire-purchaser (see Botha v Rondalia Versekeringskorporasie van SA Bpk
1978 1 SA 996 (T) 999; Smit v Saipem 1974 4 SA 918 (A) 918; Reinecke 1976 TSAR 43–49; Potgieter, Steynberg
and Floyd Damages 282).
245 See Janeke v Ras 1965 4 SA 583 (T).
246 West Rand Steam Laundry Ltd v Waks 1954 2 SA 394 (T).
247 See Reinecke 1990 TSAR 776; Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 1 SA 398 (D); Romansrivier Koöpe-
ratiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd 1993 2 SA 358 (C).
248 West Rand Steam Laundry Ltd v Waks 1954 2 SA 394 (T).
249 Market value or market price means the price which a person who really wants to acquire the property is reasonably
prepared to pay for it (Reinecke 1990 TSAR 776). It is not always possible to determine the market value of dam-
aged property (such as motor cars). See Myburg v Hanekom 1966 2 SA 157 (GW) (a dealer’s trade-in offers before
and after the damaging of the motor car constitute proof of diminution of value); Du Plessis v Nel 1961 2 SA 97
(GW); Albertus v Jacobs 1975 3 SA 836 (W). See further Potgieter, Steynberg and Floyd Damages 357 ff.
250 See, eg, Erasmus v Davis 1969 2 SA 1 (A). According to the majority, proof of reasonable cost of repairs consti-
tutes sufficient proof of damage and damages as it indicates the diminution in value which has taken place. See for
criticism Boberg 1969 Annual Survey 153.
251 See Erasmus v Davis 1969 2 SA 1 (A) 18.
252 See, eg, Du Plessis v Nel 1961 2 SA 97 (GW).
284 Law of Delict
diminution in value.253 No damages may be claimed for inconvenience or frustration caused by

damage to property, unless it causes patrimonial loss.254 Damages may, however, be claimed for
the transport of a damaged article255 as well as the loss of profit where the article was used to
generate income.256
There are also specific principles regarding the measure of damages for patrimonial loss in cases
of, for example, the destruction, theft or alienation of property,257 fraud and negligent misrepresen-
tation,258 duress (metus),259 unlawful competition,260 infringement of immaterial property rights
(copyright, patents, etc),261 nuisance,262 certain common law and statutory causes of action,263
medical (and related) expenses as a result of bodily injuries,264 loss of income already suffered,265
loss of earning capacity,266 funeral costs,267 loss of support on account of a breadwinner’s
________________________
253 Page v Malcomess 1922 EDL 284 (the plaintiff recovered reasonable cost of repairs and diminution in value not
addressed by repairs). The total amount (cost of repairs and further damages) must, however, not exceed the pre-
delict market value of the property.
254 Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 2 SA 111 (C).
255 Eg the towing-in costs of a damaged car (see Lock v SAR & H 1919 EDL 212; Shrog v Valentine 1949 3 SA 1228 (T)).
256 Loss of profit is restricted to loss of actual rather than potential profit and this loss must be strictly proved. See
generally Shrog v Valentine 1949 3 SA 1228 (T) 1236: “Where a vehicle which is damaged through the negligence
of another has been in use in a business of its owner, the damages which can be recovered, apart from the cost of
repairs, include the loss of income to the owner due to the loss of use of the vehicle.” See also Potgieter, Steynberg
and Floyd Damages 425. See further on loss of profit Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd
1993 4 SA 378 (D). According to Kellerman v South African Transport Services 1993 4 SA 872 (C) the cost of
hiring a substitute vehicle may be claimed even if the damaged vehicle was not used for business purposes (see on
this case Visser and Potgieter 1994 THRHR 312).
257 Namely the market value at the time and place of loss: see SM Goldstein v Gerber 1979 4 SA 930 (A); Potgieter,
Steynberg and Floyd Damages 424–425; Klopper Damages 162 ff. Cf Fick 2019 SALJ 676 ff who, with reference
to Fischer v Unlawful Occupiers 2018 2 SA 228 (WCC), discusses the difficulties faced by landowners who wish
to claim damages from the state for the police’s failure to protect their properties against unlawful occupation.
258 See, eg, Cloete v Edel Investments (Pty) Ltd 2019 5 SA 486 (WCC) paras 17í20. Here the court held, as far as a
claim for loss of profits for misrepesentation is concerned and relying on Transnet Ltd v Sechaba Photoscan (Pty)
Ltd 2005 1 SA 299 (SCA) paras 15–17, that it is clear that our law relating to the measure of damages (whether in
contract or delict) no longer makes a distinction in a delictual claim (whether based on fraud or negligence) be-
tween negative and positive interesse. See Potgieter, Steynberg and Floyd Damages 428 ff for the necessary detail
and references; Klopper Damages 179 ff.
259 Potgieter, Steynberg and Floyd Damages 438; Klopper Damages 185.
260 Potgieter, Steynberg and Floyd Damages 438–440; Neethling Van Heerden-Neethling Unlawful Competition 82–
84. See Nationwide Airlines (Pty) Ltd (in liquidation) v South African Airways (Pty) Ltd 2016 6 SA 19 (GJ) on the
quantification of damages for loss of profit of an airline as a result of the uncompetitive practices of a rival airline.
261 Potgieter, Steynberg and Floyd Damages 440–442; Klopper Damages 199 ff.
262 Potgieter, Steynberg and Floyd Damages 445–446; Klopper Damages 176–177.
263 Eg the actio de pauperie, the actio de pastu, pure economic loss, interference with a contractual relationship, s 8(2)
of the Civil Aviation Act 13 of 2009, the National Nuclear Regulator Act 47 of 1999 s 30, the Consumer Protec-
tioin Act 68 of 2008, the Electricity Regulation Act 4 of 2006, the Road Accident Fund Act 56 of 1996, etc; cf in
general Potgieter, Steynberg and Floyd Damages 443 ff 450–452 493–494; Klopper Damages 178 ff 208 ff.
264 All medical expenses reasonably incurred in the treatment of bodily injuries and their consequences. This includes
a wide variety of related expenses such as the cost of an attendant, the cost for the modification of a vehicle or
house, the cost of aids such as prostheses, crutches, special shoes, socks, etc (see Potgieter, Steynberg and Floyd
Damages 456 ff; Klopper Damages 114 ff 194 ff; Administrator-General SWA v Kriel 1988 3 SA 275 (A) 283–
285; Troos Transport t/a Ekonoliner Luxury Coach Lines v Abrahams 1999 2 SA 142 (C); Revelas v Tobias 1999 2
SA 440 (W); De Jongh v Du Pisanie NO 2005 5 SA 457 (SCA); Singh v Ebrahim (1) [2010] 3 All SA 187 (D); cf
D’Oliveira v Road Accident Fund 2019 2 SA 247 (WCC) paras 46–48 (award for, inter alia, cost of domestic assist-
ance and handyman-cum-gardener). See Broodryk 2017 SALJ 821 ff on the calculation of damages in mass person-
al injury class actions. See Pauw 2017 TSAR 836 ff who proposes that “restitution” should be the “remedy of
choice” where awards have to be made for the needs of a person injured and disabled at birth, and also for future
medical expenses, loss of earning capacity and general damages for loss caused by medical negligence: “A hospital
or a doctor or both can be instructed by the court to render such services they are able to in order to provide a plain-
tiff with what he or she had lost. In the event that such services cannot be rendered by the hospital or practitioner
concerned, they can be ordered to engage the services of a third party, to remunerate such third party and to oversee
the rendering of such services by such third party to the plaintiff. Any financial consequences upon the rendering of
[continued ]
death,268 loss of someone’s services,269 unlawful or malicious imprisonment,270 defamation271

and adultery.272
4.12 Damages for loss of income or support earned illegally273

Patrimonial loss caused, in the case of bodily injury, by loss of income or earnings originating
from unlawful activities cannot form the basis of a delictual claim.274 The question of whether an
________________________
such services will be for the account of the hospital or the doctor concerned” (854); also Pauw 2018 TSAR 176 ff
for a discussion in this regard of MEC for Health and Social Development, Gauteng v DZ 2018 1 SA 335 (CC).
265 Corbett and Buchanan 149–151; Potgieter, Steynberg and Floyd Damages 462 ff; Koch Damages for Lost Income
167; Klopper Damages 192–193.
266 Potgieter, Steynberg and Floyd Damages 464 ff; Klopper Damages 117 ff; Koch Reduced Utility of a Life Plan 195
ff; Erasmus, Gauntlett and Visser 7 LAWSA 64–65 summarise the basic principles as follows: “An attempt at math-
ematical precision – particularly with an annuity basis – has sometimes been decried. So, on the other hand, has any
award by mere intuitive assessment. The middle way is a recognition that exact mathematical computation is im-
possible, but that a calculation upon an annuity basis is an appropriate guide though not a peremptory one. An
award of this type is designed to provide such a sum presently payable as will give to the plaintiff a periodic pay-
ment calculated in such a way that at the end of the appropriate period there will be no capital sum left. This period
must be computed on the basis of life expectancy, natural or reduced. Thus the present value of the plaintiff’s future
income but for the disability is first calculated and from that is deducted the present value of his future income with
the disability. This is then adjusted according to appropriate contingencies. It has been ruled obiter in the Appellate
Division that future taxation is not a contingency for the court to take into account – the incidence of taxation is a
matter within the jurisdiction of the commissioner of inland revenue and a special tax court. This approach has not
been followed. The fact that serious injuries have led not only to a loss of earning capacity but to a reduction of the
usual expenses of living – by, for instance, institutionalization of the victim – has also been held to be a contingen-
cy to be taken into account.” See generally Griffiths v Mutual & Federal Insurance Co Ltd 1994 1 SA 535 (A);
Hockly v Multilateral Motor Vehicle Accident Fund 2000 2 SA 246 (SE); President Insurance Co Ltd v Mathews
1992 1 SA 1 (A) 5; Rudman v Road Accident Fund 2003 2 SA 234 (SCA); Bane v D’Ambrosi 2010 2 SA 539
(SCA); Prinsloo v Road Accident Fund 2009 5 SA 406 (SE) 409; Santam Versekeringsmaatskappy Bpk v Byleveldt
1973 2 SA 146 (A) 150; Dippenaar v Shield Insurance Co Ltd 1979 2 SA 904 (A) 917; Terblanche v Minister of
Safety and Security 2016 2 SA 109 (SCA) (distinguished, on the facts, from Rudman); Fulton v Road Accident
Fund 2012 3 SA 255 (GSJ) 270; Barclay v Road Accident Fund 2012 3 SA 94 (WCC); Saayman v RAF [2011] 1
All SA 581 (SCA); Bouttell v Road Accident Fund 2018 5 SA 99 (SCA) para 11 (voluntary contributions to retire-
ment annuity fund, unlike pension fund contributions, not to be taken into account for puposes of calculating com-
pensation claimable for future loss of earnings); D’Oliveira v Road Accident Fund 2019 2 SA 247 (WCC); Road
Accident Fund v Kerridge 2019 2 SA 233 (SCA) 239í240.
267 See Potgieter, Steynberg and Floyd Damages 478.
268 See in general Davel Skadevergoeding aan Afhanklikes passim; Potgieter, Steynberg and Floyd Damages 478–479;
Klopper Damages 131 ff; Koch Reduced Utility of a Life Plan 273–351; Lambrakis v Santam Ltd 2000 3 SA 1098
(W); Mohan v Road Accident Fund 2008 5 SA 305 (D); Road Accident Fund v Monani 2009 4 SA 327 (SCA);
MacDonald v Road Accident Fund [2012] 4 All SA 15 (SCA); R v Netcare (Pty) Ltd t/a Umhlanga Hospital [2016]
4 All SA 195 (KZP).
269 Corbett and Buchanan I 96–97; Klopper Damages 155 ff.
270 Neethling, Potgieter and Roos Neethling on Personality Rights 262; Klopper Damages 254–259.
271 Neethling, Potgieter and Roos Neethling on Personality Rights 168; Burchell Defamation 306; Klopper Damages
260–288; Caxton Ltd v Reeva Forman (Pty) Ltd 1990 3 SA 547 (A) 575 on damages where a trading corporation is
defamed.
272 Since the actio iniuriarum for adultery has now been abolished (see infra 428–429), damages for non-pecuniary
loss are no longer claimable for adultery. Nevertheless, the circumstances in which an adultery took place may be
of such a nature that the innocent spouse would feel insulted and hurt where a reasonable person would also have
felt insulted, that the conduct objected to may qualify as an iniuria, giving rise to the actio iniuriarum for non-
patrimonial damages (see infra 429). In addition, the Aquilian action for patrimonial loss (eg for the loss of super-
vision over the household and children) should remain available to the innocent spouse (ibid). See generally
Neethling, Potgieter and Roos Neethling on Personality Rights 293–301; cf Klopper Damages 288–289.
273 See generally Van der Merwe and Olivier 186; Loubser and Midgley Delict 511–513; Klopper Damages 47–54;
Boberg Delict 591, 1993 THRHR 154; Davel Skadevergoeding aan Afhanklikes 52 ff, 1992 De Jure 83; Claasen
1984 THRHR 439, 1986 THRHR 343; Roos and Clarke 1987 THRHR 91; Dendy 1987 SALJ 243; Blommaert 1981
TSAR 176; Reinecke 1976 TSAR 32–33, 1988 De Jure 237–238; Visser 1991 THRHR 791–794; Potgieter, Steyn-
berg and Floyd Damages 45–48 322 ff; Burchell Delict 129–132; Van der Walt and Midgley Delict 312í313;
Dendy 1998 THRHR 564, 1999 THRHR 34 169.
286 Law of Delict
activity is unlawful must be answered with reference to public policy.275 It has accordingly been
held276 that an activity which is contrary to good morals, or criminal277 or even only statutorily
prohibited (but morally colourless) in circumstances where the income in question is unenforce-
able278 due to invalidity is considered to be unlawful.
According to Van der Merwe and Olivier,279 the refusal of damages in such cases must be
explained in terms of the absence of the element of wrongfulness which is required for delictual
liability: the person suffering the loss has no right to the income in question. Reinecke,280 by
contrast, argues that the frustration of an expectation of income from an unlawful activity cannot
legally be seen as damage. Both these views are correct, since unlawfulness, as well as damage,
is absent.281
In our opinion, a careful distinction should be made in these cases between loss of income and
loss of earning capacity.282 If a plaintiff, in the type of case under discussion, bases his claim for
damages on a loss of (or impairment of) his earning capacity,283 the fact that he has previously
earned income through an unlawful activity should not be a stumbling block and he should still
be able to recover damages.284 This approach is evident in Ferguson v Santam Insurance Ltd,285
where it was said:
Whereas a plaintiff who personally has lost ‘illegal’ income may be frowned upon by the Court and non-
suited on that account, non constat that a plaintiff who has lost earning capacity, ie future loss of income,
must be frowned upon. He has been injured and, if the injuries are permanent, his earning capacity is
affected.
________________________
274 In Dhlamini v Protea Assurance Co Ltd 1974 4 SA 906 (A) the court had to answer the interesting question of
whether a hawker who was injured in a motor accident but who did not have a hawker’s licence could claim dam-
ages for her future loss of income. The court rejected her claim on considerations of public policy. See also
Heese obo Peters v Road Accident Fund 2012 6 SA 496 (WCC) 510–512; confirmed on appeal in Heese NO v
Road Accident Fund 2014 1 SA 357 (WCC). Cf Vorster 1985 De Jure 17–22.
275 Dhlamini v Protea Assurance Co Ltd 1974 4 SA 906 (A) 915.
276 Rumpff CJ ibid explained it as follows: “Damage which is calculated according to the criterion of income received
from an activity which is contrary to good morals or which is criminal, shall . . . not be compensated because it
would be against public policy to compensate such loss. This rule would also be applicable to income from a col-
ourless statutorily prohibited activity (colourless in the sense that it cannot be described as criminal or against good
morals) and the income from such an activity is not enforceable because of invalidity. Compensation for mesne in-
come [‘gederfde inkomste’] of such a nature would also be against public policy” (translation).
277 Cf Heese obo Peters v Road Accident Fund 2012 6 SA 496 (WCC); Heese NO v Road Accident Fund 2014 1 SA
357 (WCC) (fraud); cf Klopper Damages 48.
278 See nevertheless Metro Western Cape v Ross 1986 3 SA 181 (A) and the discussion of this case by Davel Skade-
vergoeding aan Afhanklikes 54; cf Klopper Damages 48–49.
279 186.
280 1976 TSAR 32–33, 1988 De Jure; see also Boberg Delict 592.
281 Previously we argued that only wrongfulness is absent. However, there is also no damage since the frustration of a
person’s illegal activities does not impair his patrimony in a legal sense (supra 263). The same principle applies
when an article in the possession of a thief is damaged: one reason why the thief cannot claim damages is because
he suffers no damage. His relationship with the article in question is not recognised and protected by law.
282 See Neethling 1987 THRHR 316 ff and supra 57 fn 108 on the term “earning capacity”. See generally Boberg
Delict 530–531 538–540 575–577 who emphasises this difference and his sound arguments that damages should be
based rather on loss of earning capacity than on loss of income.
283 It is recognised that there is indeed a right to earning capacity – see fn 58 supra.
284 See Dendy 1987 SALJ 249–251. Naturally the income from an unlawful activity may not serve as proof of the
value of his earning capacity or the extent of the loss caused by the impairment of such capacity. See, however,
Dhlamini v MMF 1992 1 SA 802 (T) where it was held that income from illegal taxi-driving could be taken into
account in establishing earning capacity. But see also Ntwenteni v Allianz lns Co Ltd 1992 2 SA 713 (Ck) 716: “[I]f
the only measure of income earned by a plaintiff is derived from illegal activity, then there is nothing to go on to
establish his loss of future earning capacity.”
285 1985 1 SA 207 (C) 208.
The principle that loss of income from an unlawful activity is not recoverable has been extended
to the action of dependants.286 Dependants whose breadwinner was killed wrongfully and culp-
ably may accordingly not claim damages from the defendant if the breadwinner supported them
with income from an unlawful activity.287 There are, however, exceptions to this principle.288 In
any event, we are of the opinion that the claim of the dependants must also be based on the
deceased’s earning capacity and not on his actual earnings.289 In the cases in question, the
dependant should in principle thus be able to recover damages for loss of support.
4.13 Onus of proof

In general, the plaintiff must prove on a balance of probability that he has suffered damage and
what the extent of such damage is.290 Because it may sometimes be very difficult to determine
the exact extent of the loss, there are practical guidelines (for example, in the case of future loss,
the taking into consideration of certain probable events) that are of assistance in estimating the
damage in question. In general, the plaintiff is required to tender the best possible evidence in
respect of the extent of his loss, even though calculating the loss on such evidence may in fact be
a difficult task.291 A plaintiff must produce sufficient evidence to enable a court to reasonably
find that it has suffered damage.292 Where the plaintiff fails to present the best available evi-
dence of his damage, he runs the risk of his claim being rejected.293
________________________
286 See in general Davel Skadevergoeding aan Afhanklikes 53–58; Klopper Damages 51 ff.
287 Santam Insurance Co Ltd v Ferguson 1985 4 SA 843 (A) (but see 1985 1 SA 207 (C)); Shield Insurance Co Ltd v
Booysen 1979 3 SA 953 (A) (1980 3 SA l211 (SE)); Mba v Southern Insurance Association Ltd 1981 1 SA 122
(Tk).
288 The rule was, eg, qualified where the unlawful activity would not have continued for an indefinite period (Fortuin v
Commercial Union Assurance Co of SA Ltd 1983 2 SA 444 (C)), or where the activity posed no danger to the pub-
lic (Mankebe v AA Mutual Insurance Association Ltd 1986 2 SA 196 (D)), or where the requirements of the legisla-
tion in question could have been challenged successfully (Lebona v President Versekeringsmaatskappy Bpk 1991 3
SA 395 (W) 402–403), or where the unlawful activity (by the ANC) was legalised after the death of the breadwin-
ner and there was always a possibility that the ANC would cease to be an unlawful organisation (Xatula v Minister
of Police, Transkei 1993 4 SA 344 (Tk)).
289 This view is apparent from Lebona v President Versekeringsmaatskappy Bpk 1991 3 SA 395 (W) 401–402: “For
such purposes, the question whether the deceased had a duty to support should be adjudged according to his earning
capacity without reference to the [illegal] income that he indeed earned as hawker” (translation). From this case as
well as Dhlamini v MMF 1992 1 SA 802 (T) (see also supra fn 284) it would seem that the provincial divisions
easily evade the Appellate Division judgment in Santam Insurance Co Ltd v Ferguson 1985 4 SA 843 (A). See
also Shield Insurance Co Ltd v Booysen 1979 3 SA 953 (A) 964; Dendy 1987 SALJ 251.
290 Potgieter, Steynberg and Floyd Damages 563 ff. See also Boberg Delict 487 who is of the opinion that there is a
difference between the fact of damage (which must be proved on a balance of probability) and the extent thereof
(which does not have to be proved in this manner). This means, inter alia, that where X claims for future loss and
he can only prove that there is a 20% probability that such damage will occur, he can only receive 20% of the dam-
ages (see further Buchanan 1960 SALJ 187). See also Steynberg 2007 (1) PER 1 ff, 2007 De Jure 36–51.
291 Eg Nationwide Airlines (Pty) Ltd (in liquidation) v South African Airways (Pty) Ltd 2016 6 SA 19 (GJ) para 51;
Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194; Mkwanazi v Van der Merwe 1970 1 SA 609 (A) 632; Vers-
feld v SA Citrus Farms Ltd 1930 AD 452.
292 As stated by Schippers AJA in Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality 2018 1
SA 391 (SCA) para 93. In Nationwide Airlines (Pty) Ltd (in liquidation) v South African Airways (Pty) Ltd 2016 6
SA 19 (GJ) para 51 Nicholls J also declared: “A plaintiff is obliged to produce all the evidence at its disposal to
assist the court in making as accurate a decision as possible.” See also De Klerk v ABSA Bank Ltd 2003 4 SA 315
(SCA) paras 21–22; Esso Standard SA (Pty) Ltd v Katz 1981 1 SA 964 (A) 970; Aaron’s Whale Rock Trust v Mur-
ray and Roberts Ltd 1992 1 S 652 (C) 655–656 and, on the role of expert evidence and the effect of an agreement
between experts in proving damages, Bee v Road Accident Fund 2018 4 SA 366 (SCA) paras 64 ff. Cf Klopper
Damages 97–98.
293 Mkwanazi v Van der Merwe 1970 1 SA 609 (A) 632; Esso Standard SA (Pty) Ltd v Katz 1981 1 SA 964 (A)
969–970; De La Rey’s Transport (Edms) Bpk v Lewis 1978 1 SA 797 (A). See in general GDC Hauliers (Pvt) Ltd v
Chirundu Valley Motel (1988) (Pvt) Ltd 1999 3 SA 51 (ZSC).
288 Law of Delict
5 Non-patrimonial (non-pecuniary) damage or injury to

personality294
5.1 Definition of non-patrimonial loss

Non-patrimonial damage is the detrimental impact (change in or factual disturbance of) person-
ality interests deemed worthy of protection by the law and which does not affect the patri-
mony.295
5.2 Interests of personality

Just as patrimonial damage is defined as a reduction in the utility of patrimonial interests,296
non-patrimonial loss is described with reference to interests of personality. The different rights
to personality297 provide an indication of the relevant personality interests and thus also of non-
patrimonial loss. There are rights of personality in regard to the following: physical-mental
integrity, liberty, reputation, dignity, privacy, identity and feelings.298
5.3 The general nature of non-patrimonial loss or injury to personality299

In the case of non-patrimonial loss, there is an impairment or disturbance of interests of person-
ality that causes a reduction in their quality or utility. This implies that the affected interests can
no longer fulfil the legally justified expectations of the person in question. Non-patrimonial loss
has objective as well as subjective elements.
The objective element refers to the external or generally recognisable manifestation of the
impairment, for example, where X is defamed and his reputation in the community is actually
lowered;300 where X’s privacy is violated because Y enters his home;301 or where X lies in an
unconscious state in hospital and lacks the ability to enjoy the amenities of life he used to (even
though he does not realise it).302 The losses in these examples do not exist in the mind of the
person in question.
The subjective element of non-patrimonial loss exists in a person’s mind or consciousness and is,
inter alia, formed by his reaction to the objective impairment of his interests of personality.303
Such reaction (unhappy feelings) may be of a physical or an affective nature. Pain is a good
example of a physical feeling of unhappiness. An affective impairment of feelings or sentimental
________________________
294 Potgieter, Steynberg and Floyd Damages 103 ff 211 ff 497 ff; Klopper Damages 221 ff.
295 Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC) 253;
Visser 1981 THRHR 121; Potgieter, Steynberg and Floyd Damages 103; Edouard v Administrator, Natal 1989 2
SA 368 (D) 386.
296 Supra 263 ff.
297 See Neethling, Potgieter and Roos Neethling on Personality Rights passim.
298 Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC)
253–254.
299 See Potgieter, Steynberg and Floyd Damages 105–107.
300 See Visser 1981 THRHR 122 ff.
301 Idem 125; Neethling, Potgieter and Roos Neethling on Personality Rights 313.
302 See Reyneke v Mutual and Federal Insurance Co Ltd 1991 3 SA 412 (W); Visser 1981 THRHR 130 ff.
303 See Amerasinghe’s remark (1967 SALJ 333) concerning injury to personality in the case of infringement of bodily
freedom: “[I]niuria depends on damage to feelings and such damage cannot be experienced unless there is aware-
ness of the wrong. The general principle is that there must be knowledge for this purpose . . . but modern decisions
have taken the view that subsequent knowledge is sufficient if the plaintiff feels the injury on getting to know of it.
The awareness becomes necessary to complete the requirement of sentimental damage but it does not constitute
part of the unlawful factum of the iniuria as such” (cf Neethling Roos Neethling on Personality Rights 76). Appar-
ently there are exceptions to the general rule that affective (sentimental) loss is required, eg in the case of infantes
and insane persons (D 47 10 3 1, 2; Voet 47 10 4).
loss is X’s feeling of having suffered an injustice, his bitterness and despondency. Since these
feelings are to be found in a person’s consciousness, they are not readily predictable or capable
of being assessed objectively.304
In some instances of non-patrimonial loss (for example, shortened expectation of life,305 inva-
sion of privacy306 and defamation)307 the emphasis is placed on the objective element and the
plaintiff’s emotional reaction (affective loss) is of secondary importance. In other cases (for
example, pain and suffering308 and insult309) the emotional reaction of an individual is of primary
importance and constitutes the complete non-patrimonial loss. In a third category, objective and
subjective elements are more in balance (for example, disfigurement and loss of the amenities of
life),310 but the emotional reaction is nevertheless an important factor in the assessment of the
quantum of damages.
Non-patrimonial loss (which is often referred to as “general damage”)311 may take the form of
loss already sustained, as well as prospective loss. Prospective injury to personality can be seen
as the frustration of a justified expectation that the quality or utility of personality interests will
increase or not diminish.
5.4 Assessment of non-patrimonial loss or injury to personality and other

general principles
Theoretically, non-patrimonial loss is (like patrimonial damage) determined by means of the
comparative method.312 The utility or quality of the personality interests in question before and
after the delict are compared in order to establish the existence and extent of the loss. In this
way, information is obtained on the nature, seriousness, extent, intensity and duration of the
objective part of the loss as well as the impairment of the plaintiff’s feelings.313
Many principles applicable to patrimonial loss are also valid in respect of non-patrimonial
damage. Thus the rules in connection with the “once and for all” rule,314 the proper time for the
assessment of damage,315 the duty to mitigate loss,316 the form of the amount of damages
________________________
304 Thus a person may in a sense personally determine the extent of his affective loss by his reaction to the (primary)
infringement of his personality interests. In order to neutralise individual overreaction, the law usually takes cogni-
sance only of the unhappiness which an average person in the position of the plaintiff would experience (see Visser
1988 THRHR 476; cf Van der Merwe and Olivier 188).
305 Infra 292.
306 Infra 303 fn 418.
307 Infra 301–303.
308 Infra 291.
309 The essence of harm in this instance (in contrast with defamation) is to be found in the injury of the subjective
feelings of the individual. It is accordingly required that the plaintiff must have felt insulted on account of the
defendant’s conduct. This characterising of harm in the case of insult makes it clear that the emotional reaction,
consciousness of prejudice or feelings of prejudice of the harmed person is the essence of the relevant injury to per-
sonality. The requirement that the communication complained of must also objectively speaking be of an insulting
nature, must not be interpreted to render a subjective injury unnecessary. The requirement of the objectively insult-
ing nature of the communication concerns the wrongfulness element, and signifies that the insulting conduct must,
apart from the harmful impact on the legal object (the feeling of dignity), also violate a norm (see Neethling, Pot-
gieter and Roos Neethling on Personality Rights 277–278).
310 Infra 292.
311 Supra 265.
312 Supra 266 ff; Klopper Damages 221.
313 Infra 298.
314 Supra 270.
315 Supra 267.
316 Supra 279.
290 Law of Delict
(including satisfaction),317 and proof of damage318 are mutatis mutandis applicable to non-patri-
monial damage.319 A court of appeal will only in exceptional instances interfere with the quan-
tum of damages determined by the trial court.320
5.5 The object of damages (compensation and satisfaction) in the case of

non-patrimonial loss or injury to personality321
There is a view that damages in the sense of equivalent compensation are only applicable in
respect of patrimonial loss and that satisfaction is the only relevant function in the case of injury
to personality.322 It is true that money can usually only provide a true equivalent of the loss in
the case of patrimonial damage; but even in the case of such damage, one has to reckon with
cases where damage and damages can only be assessed by a process of equitable estimation,323
or where money cannot serve as a real or full equivalent of the damage.324 In non-patrimonial
loss, the affected interests do not have a direct or natural monetary equivalent325 but there are
nevertheless sound reasons why a kind of imperfect compensation is viable.326 Satisfaction
(Afrikaans: “ge-noegdoening”) is appropriate in the case of the actio iniuriarum327 but the object
of the action for pain and suffering is to provide imperfect compensation328 and not satisfaction
in the sense mentioned above.329 The custom of describing the action for pain and suffering as a
“genoegdoeningsaksie” without indicating that this is not satisfaction in the sense of the actio
iniuriarum,330 may lead to confusion and should be discontinued.331
________________________
317 Supra 280.

318 Supra 282.
319 See supra 274 ff on the collateral source rule in regard to non-patrimonial loss.
320 See in general Potgieter, Steynberg and Floyd Damages 568–571; see, eg, Road Accident Fund v Delport NO 2006
3 SA 172 (SCA) 179; Road Accident Fund v Guedes 2006 5 SA 583 (SCA) 587; Road Accident Fund v Van Rhyn
[2007] 3 All SA 689 (E) 664–665.
322 See Van der Merwe and Olivier 190 ff. See, however, Visser 1988 THRHR 483 who demonstrates that most
Western legal systems accept the principle of compensation of certain forms of non-patrimonial loss.
323 Eg where someone’s goodwill is infringed (see Neethling Van Heerden-Neethling Unlawful Competition 82–84).
324 Eg where a unique object is destroyed or stolen.
253.
326 See Visser 1988 THRHR 485–486 for an analysis of these reasons. The community accepts that non-pecuniary loss
caused by physical injuries is compensable. The use of previous awards in comparable cases to fix the quantum of
damages demonstrates that injury to personality has developed a kind of “market value”. It must still be borne in
mind that “the primary object of general damages too, in the non-patrimonial sense, is to make good the loss; to
amend the injury. Its aim too is to place the plaintiff in the same position he or she would have been but for the wrong-
doing” (per Moseneke DCJ in Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae)
2006 4 SA 230 (CC) 254).
327 The actio iniuriarum has to an extent retained its elements of revenge and punishment even in modern times. A
penal function lies at the heart of true satisfaction. Satisfaction should be seen not merely as the provision of some
sort of consolation to the plaintiff but also as the consolation of the plaintiff by the fact that the defendant has to
pay a private penalty to him. However, see supra 7 fn 31.
328 This action has no penal function and concentrates only on the harm suffered by the plaintiff and not on the
defendant’s blameworthiness. Because of third-party legislation, this action is instituted mostly against an insurer
or a fund and not against a wrongdoer. Moreover, the action is in practice passively transmissible by virtue of the
provisions of said legislation.
329 A plaintiff may experience the compensation in a secondary sense as satisfaction – but this is also possible in the
case of the Aquilian action. Where the plaintiff is permanently unconscious, the community may derive satisfaction
from the institution of the action for pain and suffering (infra 294 ff).
330 See, eg, Van der Merwe and Olivier 191; Erasmus 1976 TSAR 238.
331 See generally Potgieter, Steynberg and Floyd Damages 214.
5.6 Injury to personality in respect of physical-mental integrity332

5.6.1 General
For practical reasons, a distinction is made between the physical and psychological (mental)
aspects of the human body. The distinction should, however, not be taken too far, as the physical
body and the psyche (feelings and consciousness) are connected through the brain and nervous
system.333 The personality interests covered by “physical-mental integrity” can be ascertained by
examining the different forms of related injury to personality recognised in practice.334
Pain and suffering A plaintiff may claim compensation for all pain, suffering and discomfort
flowing from the injury, as well as the consequent medical treatment.335 This includes both
physical and mental pain and suffering in the past and in the future.336
Shock (psychological injury/lesion)337 The consequences of emotional shock338 are usually
identified with pain and suffering339 but may also cause further harm through conditions such as,
for instance, insomnia, anxiety neuroses, hysteria or other mental illnesses.340 Only emotional
________________________
332 See idem 108 ff 213 ff. See also Loubser and Midgley Delict 86 371–374; Klopper Damages 221 ff.
333 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A) 779.
334 See in general Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA
230 (CC) 253; Corbett and Buchanan I 51 ff; Van der Merwe and Olivier 242–243. However, the court can award a
global amount of damages for all non-patrimonial loss flowing from infringement of the physical-mental integrity:
Road Accident Fund v Marunga 2003 4 SA 164 (SCA) (see Visser 2004 THRHR 312).
335 Van der Westhuizen v Du Preez 1928 TPD 45 49; Van der Walt and Midgley Delict 317–318; Klopper Damages
221 ff 234 ff.
336 Potgieter, Steynberg and Floyd Damages 108 506–508; Visser Kompensasie en Genoegdoening 100 365–366;
Klopper Damages 238; Pauw 2018 TSAR 939 ff; Corbett and Buchanan I 51: “[A]ll pain, suffering, shock and dis-
comfort. It includes both physical and mental pain and suffering”; Hoffa v SA Mutual Fire and General Insurance
Co Ltd 1965 2 SA 944 (C); Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 199; Botha v Minister of
Transport 1956 4 SA 375 (W) (which is not clear on “mental pain”); Blyth v Van den Heever 1980 1 SA 191 (A)
227. So-called phantom pains “in” amputated limbs are also considered in Botha v Minister of Transport 1956 4 SA
375 (W) 376; Esterhuizen v Administrator, Transvaal 1957 3 SA 710 (T); Boberg Delict 518–522. See also Muzik v
Canzone del Mare 1980 3 SA 470 (C), where the court refused to consider anxiety caused by the eating of poisoned
food as damage. Compensation is awarded for pain subjectively experienced, irrespective of whether the plaintiff is
more or less sensitive than the ordinary person (Marshall v Southern Insurance Association Ltd 1950 2 PH J6 (D)
14; Pillai v New India Assurance Co Ltd 1961 2 SA 70 (N); Van der Westhuizen v Du Preez 1928 TPD 45 49; Cor-
bett and Buchanan I 39). Someone’s social and financial status or his race cannot give an indication of his pain and
suffering (Radebe v Hough 1949 1 SA 380 (A); Capital Assurance Co Ltd v Richter 1963 4 SA 901 (A) 905). Pain
can exist only insofar as it is actually experienced (which includes so-called “twilight” cases where, as a result of
brain injuries, a person may have diminished awareness of his suffering (eg NK v MEC for Health, Gauteng 2018 4
SA 454 (SCA) para 7) and, where the pain is excluded through unconsciousness or medication, there is no loss (this
includes persons in a vegetative state – also known as “cabbage cases” NK para 7; see also Sigournay v Gillbanks
1960 2 SA 552 (A) 571). Pain which was experienced but later forgotten qualifies as damage (Botha v Minister of
Transport 1956 4 SA 375 (W) 379–380). Someone who claims damages for pain and suffering must, in terms of
Supreme Court Rule 18(10), inter alia, give details of whether the pain is temporary or permanent and which inju-
ries it has been caused by. See in general on this rule Minister van Wet en Orde v Jacobs 1999 1 SA 944 (O). See
Smits in Potgieter, Knobel and Jansen (eds) 455 ff on the possible role of neuroscience and brain scans in determining
the exact physiological damage or the extent to which someone is in pain for puposes of determining damages in delict.
337 See infra 342 ff for a discussion. In more recent case law the concept “psychological injury/lesion” is used, since it
refers more accurately to the ascertainable consequences of emotional shock (see Road Accident Fund v Sauls 2002
2 SA 55 (SCA) 60 ff). On harm due to sexual harassment, see Grobler v Naspers Bpk 2004 4 SA 220 (C).
338 Shock may be of an organic or a psychic (ie, non-physical) nature or a combination of these two forms (Potgieter 9
LAWSA 3). See on damages for stress and fear after having been infected with AIDS, Venter v Nel 1997 4 SA 1014
(D). See further on psychiatric illness Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W)
(damages after hospital staff negligently swapped babies at birth); Visser v Visser 2012 4 SA 74 (KZD). See for
details infra 342 ff. See in general Klopper Damages 234 ff 237.
339 Corbett and Buchanan I 54; Potgieter 9 LAWSA 1–14; see further Visser Kompensasie en Genoegdoening 105 ff.
340 Boswell v Minister of Police 1978 3 SA 268 (E) 275; Swartz v Minister of Police: Corbett and Buchanan II 353.
292 Law of Delict
shock of a relatively serious nature is actionable,341 whereas shock of short duration which has
no substantial effect on the health of a person is usually ignored.342
Disfigurement All forms of facial and bodily disfigurement, including scars, loss of limbs, a
limp caused by a leg injury, or facial or bodily distortion, are included under this heading.343
Loss of the amenities of life This refers to any disability – physical or mental, temporary
or permanent – which diminishes the victim’s enjoyment of life, thus preventing him from
participating in and enjoying life as he previously could.344 Compensation can be claimed for
past as well as future loss of amenities.
Shortened life expectancy The fact that a plaintiff’s life expectancy has been reduced by his
injuries is also in some cases considered to be a form of harm for which damages may be award-
ed.345
A review of these forms of injury to personality reveals that the following interests in respect of
physical-mental integrity exist: freedom from pain and suffering which follows physical injury
to the body; freedom from serious emotional shock and accompanying mental illness; freedom
from dismay and unhappiness caused by disfigurement of the body; having the physical and
mental capacity to enjoy general as well as particular amenities of life; and fulfilment of a nat-
ural lifespan. A brief inquiry into these interests indicates that, depending on whether the
emphasis is placed on its objective or subjective components,346 impairment of physical-mental
integrity may take the following forms:
A physical impairment of feelings or infringement of the emotions and consciousness through
pain caused by physical injury and through nervous (emotional) shock. The non-patrimonial loss
________________________
341 Swartbooi v Road Accident Fund [2012] 3 All SA 593 (WCC) para 18; Hing v Road Accident Fund 2014 3 SA 350
(WCC) 356 ff.
342 Lutzkie v SAR & H 1974 4 SA 396 (W); Corbett and Buchanan I 36; Boberg Delict 176 516 ff; infra 302.
343 Corbett and Buchanan I 53–54; Visser Kompensasie en Genoegdoening 124; Klopper Damages 243–245; Eggeling
v Law Union and Rock Insurance Co Ltd 1958 3 SA 592 (D); Solomon v De Waal 1972 1 SA 575 (A). The extent
of the loss is determined by the plaintiff’s gender (heavier damages in the case of women), age, the visibility of the
disfigurement, its influence on the plaintiff’s life and the plaintiff’s appearance before the injuries. In terms of
Supreme Court Rule 18(10) a plaintiff must, inter alia, state whether his disfigurement is temporary or permanent.
344 Corbett and Buchanan I 54–55 state: “It would include factors such as sexual impotence, sterility, loss of marriage
opportunities, loss of general health, change of personality, loss of intellectual function, neurosis, insomnia and the
general handicap of a disability, and even the fact that as a result of his disability the plaintiff finds the exercise of
his profession more fatiguing and difficult and less pleasurable and efficient” (see Pauw v African Guarantee and
Indemnity Co Ltd 1950 2 SA 132 (SWA)). In Du Bois v MVA Fund 1992 4 SA 368 (T) it was held that the fact that
the award for plaintiff’s suffering devolved on her heirs, had a restricting influence on its quantum. See also Admin-
istrator-General SWA v Kriel 1988 3 SA 275 (A) 288. The fact that the plaintiff is temporarily or permanently
unconscious does not exclude the existence of a loss of amenities (infra 294 ff). Corbett and Buchanan I 55–56
observe that, if loss of amenities is understood in a wide sense, it is unnecessary to recognise loss of general health
as a separate form of loss. In practice, loss of general health is usually included in an award for loss of amenities
(see also Kriel). The fact that someone who has eaten poisoned seafood is not prepared to eat seafood again does
not constitute a loss of amenities of life (Muzik v Canzone del Mare 1980 3 SA 470 (C) 474). Supreme Court Rule
18(10) requires that someone who claims for loss of amenities must give particulars of such loss and state whether
the disability and loss are temporary or permanent. See also Klopper Damages 245–249.
345 See Goldie v City Council of Johannesburg 1948 2 SA 913 (W): “But if it is permissible in awarding a money sum
by way of general damages in cases of this kind to have regard to such incommensurable matters as pain and suf-
fering and loss of amenities of life, I do not see why regard should not also be had to diminished expectation of
life.” See Corbett and Buchanan I 56–57; Visser Kompensasie en Genoegdoening 117–124 367–369. In Du Bois v
MVA Fund 1992 4 SA 368 (T) it was confirmed that shortened expectation of life falls under loss of amenities of
life. See also Venter v Nel 1997 4 SA 1014 (D) 1017 where reduction of life expectancy because of AIDS was
apparently also considered and LN v Minister of Safety and Security 2011 5 SA 512 (KZP) where the court held
that the plaintiff’s HIV-positive status would not have a negative effect on his life expectancy and future loss of
earnings. Cf Klopper Damages 249.
346 Supra 288; see in general Reyneke v Mutual and Federal Insurance Co Ltd 1991 3 SA 412 (W) 420 425–426.
in such cases only exists in the mind where it is experienced.347 It is almost impossible to imag-
ine that affective or sentimental loss (feelings of injustice or unhappiness) can exist independent-
ly of emotional disturbance caused by physical injury.
An affective impairment (impairment of feelings) or disturbance of emotions in cases of disfig-
urement, loss of amenities of life and loss of life expectancy. The interests involved in this case,
in contrast with the position in the case of pain and shock, are partly objective, because they do
not consist only of an emotional experience. The consciousness of the injured person indeed
plays a secondary role insofar as it is only the mechanism through which he experiences the
harm in question. Affective (sentimental) loss consists here of the fact that the injured person
reflects on and reacts to the physical injury he has suffered. In disfigurement, for example, a
facial scar constitutes the objective part of the loss and the reaction of the injured person (his/her
feelings of unhappiness) is the affective part of such loss. In other words, the objective aspect of
the loss is the origin of the affective loss. In the case of a loss of amenities of life and reduced
life expectancy as well, the loss in question also does not primarily exist in the emotions or
consciousness of the injured person because the loss is objectively ascertainable without regard
to his emotions.348
The difference between physical injury causing emotional harm and a purely emotional disturb-
ance appears from the fact that, in the case of pain and suffering, the real subjective experience
of the plaintiff (depending of course also on the plaintiff’s ability to afford the necessary proof
and the other requirements for liability) is decisive for determining the existence and extent of
the loss, while in the case of affective loss, the plaintiff may obviously not be allowed to deter-
mine the extent of the loss himself by his reaction to the injury; an average criterion must be
used.349
5.6.2 Theories in regard to the nature of physical-mental injury

It is instructive to briefly consider certain theories in respect of the nature of physical-mental
injury in the light of the above discussion. These theories attracted the attention of the Appellate
Division in Southern Insurance Association Ltd v Bailey350 and have important practical implica-
tions. The theories are the abstract or objective theory;351 the personal theory,352 and the personal
functional theory.353 The differences between these three theories are summarised as follows by
Ogus:354
________________________
347 Sigournay v Gillbanks 1960 2 SA 552 (A); see too Visser Kompensasie en Genoegdoening 63.
348 Contra Van der Merwe and Olivier 192 fn 51; see however Visser 1988 THRHR 479–483.
349 Supra fn 304.
350 1984 1 SA 98 (A); see Visser Kompensasie en Genoegdoening 68–72, 1988 THRHR 481 ff; cf Klopper Damages
10.
351 According to this theory, the human personality is seen as a combination of economic and non-economic interests.
A person’s life, physical or mental faculties and freedom from pain are assets just as are, eg, his house, shares and
motor car. An impairment of any of these non-economic assets of a person leads to an action for damages. The val-
ue of the asset is determined irrespective of the “social, psychological or moral attitudes of the victim”. The con-
sciousness and feelings of the plaintiff thus have no significance. In addition to this, it must be accepted that an
injury to personality is usually the same in all people. It is not difficult to find reasons to reject this theory – its
basis depends on an obvious disregard of the subjective qualities of the physical-mental personality interests.
352 This theory rejects the abstract view of personality interests and gives consideration to both the personal circum-
stances of the plaintiff and his consciousness and feelings. According to this theory, the nature of physical-mental
interests cannot be appreciated without taking into account the feelings of the injured person. The personal theory
sees the essence of injury to personality as a loss of happiness. It is further argued that a delict causes a so-called
negative balance in a person’s happiness. Although the strength of this theory is to be found in its realistic approach
to personality interests, its weakness is that it is too subjective and depends too much on the concept of affective
(sentimental) loss.
353 This theory accepts (as its name indicates) the premise of the personal theory that the subjective unhappiness (in the
mind) of the injured is the essence of injury to personality. It does, however, go further in as much as it takes into
consideration the amount of money which is reasonably able to provide the plaintiff with solace in order to remove
[continued ]
294 Law of Delict
In short, the differences between these approaches may be summarized by asserting that the award is
measured in (a) by the extent of the injury, in (b) by the extent of the loss of happiness and in (c) by the
extent to which money can provide the plaintiff reasonable solace.
Which of these three theories should be accepted? In our opinion, none of them is completely
satisfactory. We suggest the following compromise: as far as injury to personality in the case of
a physical impairment of one’s feelings through pain, suffering and shock is concerned, the per-
sonal theory provides the only logical explanation for the existence of such loss. In such cases,
the essence of the harm is to be found in the conscious experience thereof and a subjective
approach is correct. As far as the other forms of injury to personality are concerned (loss of the
amenities of life, disfigurement and shortened life expectancy), it is clear that the essence of the
harm is not to be found in the mind or consciousness of the injured person. The harm is not, for
example, like pain, which exists only if it is subjectively experienced. Loss of amenities of life is
objectively identifiable and consciousness only comes into the picture in respect of affective loss
caused by the loss of amenities.
5.6.3 Cases of unconsciousness and changed personality

Attention will now be given to injury to personality in respect of physical-mental integrity in
cases of unconsciousness and, in connection therewith, of changed personality. These matters
have received considerable attention in our case law. In this regard, a distinction must be made
between the so-called “twilight” cases, and the so-called “cabbage” cases.355
There is no actual problem with regard to pain and unconsciousness, as it is accepted that pain
does not exist if it is not consciously experienced.356 The cases which pose problems are those
where the consciousness of the plaintiff is totally or partially reduced through brain injury and a
decision must be made regarding damages for loss of, for example, amenities of life.357
________________________
his unhappiness. This theory actually appears to be more of a compensation theory (ie, a theory which explains how
non-pecuniary loss is compensated by means of money) than a theory explaining the nature of injury to personality:
the cart is put before the horse by assuming that harm only exists insofar as it can be compensated by an award of
damages. For an application of this theory, see Collins v Administrator, Cape 1995 4 SA 73 (C). But in NK v MEC
for Health, Gauteng 2018 4 SA 454 (SCA) para 9 Willis JA said, with reference to Southern Insurance Association
Ltd v Bailey 1984 1 SA 98 (A) 119, that “this court has not adopted a ‘functional’ determination as to how general
damages should be awarded. It has consistently preferred a flexible approach, determined by the broadest general
considerations, depending on what is fair in all the circumstances of the case” (cf Pauw 2018 TSAR 940 ff).
354 Damages 195–196.
355 In “twilight” cases a measure of communication with the patient is sometimes possible (see Roberts v Northern
Assurance Co Ltd 1964 4 SA 531 (D); Marine and Trade Insurance Co Ltd v Katz 1979 4 SA 961 (A) 983; South-
ern Insurance Association Ltd v Bailey 1984 1 SA 98 (A) 120; NK v MEC for Health, Gauteng 2018 4 SA 454
(SCA) para 7 and the cases mentioned there (also discussed by Pauw 2018 TSAR 941 ff). In the “cabbage” cases the
patient is permanently unconscious (see Gerke v Parity Insurance Co Ltd 1966 3 SA 484 (W); Reyneke v Mutual
and Federal Insurance Co Ltd 1991 3 SA 412 (W)). In NK para 7 fn 2 Willis JA said that “[t]oday we may prefer to
use the term ‘vegetative state’ to ‘cabbage’”. See further Boberg Delict 567–570; Van der Merwe 1966 THRHR
381; Luntz 1967 SALJ 6; Erasmus 1976 TSAR 238; Visser 1988 THRHR 482.
356 Sigournay v Gillbanks 1960 2 SA 552 (A); Reyneke v Mutual and Federal Insurance Co Ltd 1991 3 SA 412 (W)
426; Collins v Administrator, Cape 1995 4 SA 73 (C) 92.
357 In our case law there are indications of a functional approach (supra 256), because in Steenkamp v Minister of
Justice 1961 1 PH J9 26 (O) the following was said: “On the other hand it does not seem to me proper to award
such an amount as would provide more than could be usefully employed in alleviating his unhappy position.” It
should not be concluded from this dictum that injury to personality only exists insofar as it can be compensated;
this case tends rather to a realistic theory of compensation. This approach also appears from Scheepers v African
Guarantee and Indemnity Co Ltd 1962 3 SA 657 (E). The plaintiff suffered brain damage and in awarding “gen-
eral” damages the court specifically mentioned that the plaintiff was aware of the change in his personality and that
this should be taken into account. The decision in the Steenkamp case was specifically rejected in Roberts v North-
ern Assurance Co Ltd 1964 4 SA 531 (D) 540. The court accepted the view explained in the English case of Wise v
Kaye [1962] 1 All ER 257 (CA), namely: “[U]nconsciousness or lack of awareness of the injuries done to a plain-
tiff, though relevant to exclude an award of damages in respect of pain and matters such as worry, anxiety and
anguish, which depend for their existence on an awareness in the victim and can only exist by being felt or thought
[continued ]
An important case in this regard is Gerke v Parity Insurance Co Ltd.358 In this case, the plaintiff
suffered brain injuries that were of such a nature that he would never regain consciousness. He
was accordingly totally unaware of his condition. The court researched English law and came to
the conclusion that, in that system, a predominantly abstract (objective) approach359 is followed,
but that subjective considerations do play a role in determining the quantum of damages.
Ludorf J enunciated the following principles as far as our law is concerned:360
In my judgment a similar approach is appropriate in a case like the one before me. I would say that the
test (a) is objective in that something falls to be awarded for what has been called loss of happiness even
in a case where the victim has been reduced to a state in which he has never realised and will never real-
ise that he has suffered this loss; (b) is, however, subjective, in the sense that the Court, in fixing quan-
tum, will have regard to any relevant data about the individual characteristics and circumstances of the
plaintiff which tend to show the extent and degree of the deprivation; (c) is subjective, also, in the sense
that any realisation which the plaintiff has, or did have or will have, of what he has lost, is most material
and important. This is the true compensable suffering (as distinct from pain) which will carry far heavier
damages than the somewhat artificial and notional award referred to in (a) above.
Although this decision has been strongly criticised, (and correctly so in some respects) it has
generally been followed in other cases.361 It was, however, later rejected in Collins v Administra-
tor, Cape362 where the court stated:
________________________
or experienced, were otherwise irrelevant.” In casu (542) the court nevertheless found that the plaintiff did have
some degree of appreciation of his own condition. The rejection of the Steenkamp case was, however, to be short-
lived because its principles were approved in Geldenhuys v SAR & H 1964 2 SA 230 (C) 235. This approval does
not, however, appear to have much value because the plaintiff had not suffered brain injuries which caused him to
be unconscious.
358 1966 3 SA 484 (W).
360 494.
361 In Qunta v Bay Passenger Transport: Corbett and Buchanan II 368 and Reyneke v Mutual and Federal Insurance
Co Ltd 1991 3 SA 412 (W) the court expressly accepted and applied the Gerke decision. Also in the case of Quan-
tana v Union and SWA Insurance Co Ltd: Corbett and Buchanan II 680 682 where the plaintiff’s injuries caused
him to become insane, the court referred to the Qunta case with approval and awarded a large sum of damages
although the plaintiff was not aware of his condition. In Southern Insurance Association Ltd v Bailey 1984 1 SA 98
(A) 119 the Appellate Division expressed itself in favour of a flexible approach to the making of awards in the kind
of case under discussion (see also NK v MEC for Health, Gauteng 2018 4 SA 454 (SCA) para 9). After considera-
tion of the cases in which a functional approach was followed, the following was said in Bailey: “As I read the
judgment in [Marine and Trade Insurance Co Ltd v Katz 1979 4 SA 961 (A)], however, it did not lay down that the
‘functional’ approach was the one to be followed: all that was said was that on the facts of the Katz case, an
approach of that kind would not call for an interference with the damages awarded by the trial court. This court has
never attempted to lay down rules as to the way in which the problem of an award of general damages should be
approached . . . I do not think that we should adopt a different approach . . . This does not mean, of course, that the
function to be served by an award of damages should be excluded from consideration. That is something which
may be taken into account with all the other circumstances.” The court thus did not condemn the approach in the
Gerke case. In Collins v Administrator, Cape 1995 4 SA 73 (C) 95 Scott J placed particular emphasis on the refer-
ence to a functional approach in the Bailey case: “The functional approach involves limiting an award to an amount
which can serve a useful purpose. In the circumstances of the present case, however, any award would not only
serve no useful purpose, it would serve no purpose at all, whether useful or otherwise. The claimant, by reason of
her condition, is in truth, incapable of being compensated by a monetary award. In the Bailey case the Court was
not concerned with the case of an unconscious plaintiff and was accordingly dealing with a very different situa-
tion.”
362 1995 4 SA 73 (C) 92. According to Pauw 2018 TSAR 946, it is a pity that the SCA in NK v MEC for Health,
Gauteng 2018 4 SA 454 (SCA) did not even refer to the Collins case, or decide whether Gerke v Parity Insurance
Co Ltd 1966 3 SA 484 (W) or Collins was the current law of the land. Pauw (945) also does not support the object-
ive approach, stating that, in his view, the question in law must be in each case: “what is the purpose of the award?
How can this award ameliorate the lost amenities and the pain and suffering? Historically this was always the case.
This should be the focus of the enquiry, which, by its very nature, must be subjective. Objectivity can never be a
criterion.”
296 Law of Delict
There are, I think, two principal objections to what is essentially the English approach, involving, as it
does, a notional distinction between a subjective and an objective element of the loss of amenities of life
and the award of non-pecuniary damages in respect of the objective loss or, as it has been described, the
actuality of the loss. As previously indicated, there would appear to be unanimity that an unconscious
person is not entitled to damages for pain and suffering or anguish, that is to say the subjective element
of loss of amenities, since he or she suffers no pain and experiences no anguish. The objections to the
English approach are the following. First, the award of non-pecuniary damages in respect of the actuality
of the loss serves no purpose as the money awarded cannot be used for the benefit of the unconscious
plaintiff. Second, it can provide no consolation to an unconscious plaintiff, as consolation presupposes
consciousness and some capacity of intellectual appreciation. A conscious person who, by reason of his
injuries, is incapable of deriving any advantage from a monetary award can notionally obtain some con-
solation from the receipt of money and from being able, if he pleases, to give it away. An unconscious
person cannot even have this consolation.
The court thus refused to award any damages whatsoever for non-patrimonial loss where the
young plaintiff was, because of the negligence of the defendant, in a permanent state of uncon-
sciousness and would probably die within a few years. According to the court, any award of
damages would merely amount to a (private) penalty.363
In analysing the problem under discussion, it is important to note that the existence of injury to
personality should not be confused with its compensability. There is clear agreement that injury
to the personality of a person whose consciousness has been reduced to such a level that he has
no or little insight into his own condition cannot be compensated by an award of damages. The
solution under German law in such a case is to make an award of objective satisfaction, which
signifies a symbolic redress of the harm by effecting retribution for the wrong done to the
plaintiff.364 Boberg365 also seems to favour this approach.366
________________________
363 See for criticism Visser 1996 THRHR 179 who points out that, in addition to other factors, the court has not taken
account of the high value accorded to human life and dignity by the Bill of Rights. See further Katz 1996 Stell LR
343; Van der Walt and Midgley Delict 318.
364 Visser Kompensasie en Genoegdoening 90.
365 He says (Delict 570) the following: “[I]t is believed that our courts will and should continue to award a nucleus of
damages for loss of amenities of life to the unconscious plaintiff à la Gerke, though any actual evidence of aware-
ness should greatly increase the award. Compromise this solution may be, but it offers the necessary flexibility to
deal justly with individual circumstances, and enables the law to express society’s sympathy with the victim and its
sense of outrage at his grievous loss.”
366 Van der Merwe and Olivier 192 fn 51, however, refuse to accept this as the correct viewpoint. According to them it is
“truly preposterous to grant a compensatory remedy where a personality infringement is not experienced as loss by
the person entitled” (translation). This criticism is unacceptable. It is sufficient to point out that the authors’ view is
not only contrary to current law, but it may also be dismissed on theoretical, comparative law and policy grounds.
They also state: “‘Loss’ that is not ‘compensable’, can hardly lead to a delictual claim . . . Therefore non-compen-
sable loss is conceptually irrelevant for the phenomenon of delictual liability. In any event, the infringement of a
personality right and harm should be distinguished just as clearly as the infringement of a pecuniary right and dam-
age” (translation). It would seem that the mistake Van der Merwe and Olivier make is to introduce a new require-
ment for delictual liability, ie, compensability of damage. For this there is neither authority nor any good reason.
On the approach in the Gerke case, Van der Merwe and Olivier 192 make the following comment: “The incon-
sistency of this approach [ie drawing a distinction between subjective and objective physical-mental loss] is that
where pain and suffering have not been experienced, no claim can be instituted therefor, but that compensation is
nevertheless granted for loss of an amenity of life, which loss is also not experienced . . . Where the injured person
is not unhappy and/or cannot be made happy (or less unhappy) through money, the ratio for awarding compensa-
tion falls away” (translation). This view cannot be accepted either. It has already been pointed out that pain repre-
sents a physical impairment of the feelings of the plaintiff while loss of the amenities of life may objectively exist
because the subjective sensation of the loss is only to be found in affective loss. Luntz 1965 SALJ 10 is apparently
of the opinion that the test for the existence of injury to personality is only whether the injured person is positively
unhappy. Consequently, it is, according to him, logical that where a plaintiff is unconscious because of a brain in-
jury, he cannot be “unhappy”. This explanation of the nature and existence of injury to personality is too simplistic.
See on this Reyneke v Mutual and Federal Insurance Co Ltd 1991 3 SA 412 (W) 425: “In my view the fallacy in
this argument is that it equates a dead man with an unconscious man. It also implies that it is cheaper to kill a man
than to maim him.” See, however, Collins v Administrator, Cape 1995 4 SA 73 (C) 91: “As far as it being cheaper
to kill a man than maim him, this is undoubtedly so in the absence of a dependent’s claim. But the reason is that the
[continued ]
In summarising the legal position in respect of the problem of injury to personality in the case of
an unconscious plaintiff, the following points must be made:
Injury to personality in cases of interests which are directly related to consciousness consists
only of an injury to feelings. The operation of the conscious mind is thus a prerequisite for the
existence of harm such as pain and (physical) suffering. The other forms of personal loss are
only indirectly related to consciousness. Where there is, for example, an impairment of one’s
reputation, or a loss of the amenities of life, the loss is not only to be found in the feelings or
consciousness of the plaintiff: in cases of defamation and loss of amenities, one is able to ascer-
tain objectively, without reference to the feelings of the plaintiff, whether his esteem in society
has been lowered or to what extent his capacity to enjoy a normal life has been negatively
influenced. The connection with consciousness is only created through affective (sentimental)
loss, ie, the reaction of the injured person to his loss, or, in other words, his personal unhap-
piness. In such a case, injury to personality has an objective as well as a subjective element.
Unconsciousness only excludes the subjective element (affective loss) but not the objective part
of the loss. An unconscious person with brain injuries does not have a normal life and does not
take part in normal activities as he used to: how can it then be correct to say that there is no loss?
Where a person is only temporarily unconscious and later regains his consciousness, there is no
doubt that the period during which he was unconscious must also be taken into account in
assessing his damages.367 From this, it appears that the existence of consciousness is not a
prerequisite for the existence of injury to personality. With regard to affective loss, the lack of
consciousness only implies that the experience of the loss as such is eliminated and nothing
more.
The common mistake that is made in the evaluation of personal loss where the plaintiff is uncon-
scious is to equate the existence of loss with its compensability. From a comparative law analysis,
it is clear that no one believes that personal loss can really be compensated through damages where
the injured person is permanently unconscious, insane, etc.368 In such cases, the objective function
of satisfaction (“genoegdoening”) becomes relevant in German law369 and also in some deci-
sions370 in South Africa.371 The fact that the loss cannot be compensated does not mean that
________________________
action is compensatory and not punitive.” It is also the opinion of Erasmus 1976 TSAR 238 (who relies on Govern-
ment of the Republic of South Africa v Ngubane 1972 2 SA 601 (A)) that a purely subjective approach should be
followed in the action for pain and suffering. In the opinion of Erasmus, the ratio for this view is to be found in
Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 2 SA 944 (C). The following dictum (per Van Win-
sen J 954–955) proves that the reliance on the Hoffa case is inappropriate: “Whether the basis of a money award is
to compensate the unhappiness flowing from the injury with the happiness resulting from the possession of money
– a subject . . . more suitable for discussion in any essay on Aristotelian ethics than in a judgment of a court of law
– or is one which has its origin in custom, perpetuated by the judicial practice, or whether it is in its essential nature
a penalty directed against the wrongdoer, are matters not calling for a decision in this case . . . Without becoming
embroiled in the controversy as to whether the measure of his compensation is to be determined upon an objective
or subjective basis, it is clear from a consideration of our judgments that slight pain or a slight loss of amenities at-
tracts slight compensation and vice versa. The damages awarded therefore bear a direct relationship to the personal
sufferings of the injured party and are intended for his personal benefit. The damages awarded to him are in a cer-
tain sense analogous to the solatium which is awarded under the actio injuriarum to someone as a salve to his
wounded feelings” (emphasis added). This dictum obviously does not justify a completely subjective approach and
must in any event be read subject to the Appellate Division judgment in the Bailey case 1984 1 SA 98 (A) referred
to supra fn 361.
367 Eg Corbett and Buchanan II 756 760 769 771.
368 Visser Kompensasie en Genoegdoening 72–80.
369 Idem 78 ff. Objective satisfaction means that the legal order is restored through retribution of the injustice the
plaintiff has suffered: Visser 1988 THRHR 481.
370 See also Reyneke v Mutual and Federal Insurance Co Ltd 1991 3 SA 412 (W) 416: “In making an award . . . the
Courts adopt an objective approach in determining the amount of damages, ie, it awards damages for loss whether
the victim is aware of such loss or not. In awarding damages for loss in this category, the Court may (but is not
obliged to) take into account, as one of the factors influencing the award, the so-called ‘functional approach’
whereby the amount of damages may be increased or decreased depending on: (a) the extent to which the money so
[continued ]
298 Law of Delict
it is non-existent or that the law should ignore it. The unconsciousness of the plaintiff is of
course relevant in fixing the quantum of damages because the objective satisfaction awarded
should not be nearly as much as “full” compensation.
5.7 Assessment of damages in the case of non-patrimonial loss372

5.7.1 Introduction
In what follows, reference will be made to a number of principles regulating quantification in
cases of non-patrimonial loss. “Quantification” or assessment of damages refers to the process
whereby an amount of money is arrived at which is to be awarded to someone who has suffered
injury to personality. As with the discussion of the assessment of damages for patrimonial loss,
the subject will only be dealt with briefly.
5.7.2 Physical-mental integrity373

The following four aspects are relevant in this regard:
(a) The quantum (amount) of damages recoverable with the action for pain and suffering must
obviously bear some relation to the extent of the loss suffered. Irrespective of how the loss is in
theory or in practice expressed in money (we refer here to a loss which by definition cannot
directly or naturally be measured in money), the amount awarded should be in direct proportion
to the extent of the loss. From a survey of our law, it would appear that the extent of physical-
mental harm may usually be said to equal the product of the intensity of the physical or affective
impairment of feelings, and the nature and the duration thereof.374 The medical and other
evidence in the case of bodily injuries should thus be considered in terms of this formula in
order to assess the full extent of the injury to personality. Such injury cannot be expressed in
money by means of purely arithmetical techniques, as is the case with pecuniary loss.
In considering the intensity of the impairment of the plaintiff’s feelings in order to determine the
extent of the non-patrimonial loss, particular attention is paid, inter alia, to the following factors
which are capable of objective assessment: the age375 (including the life expectancy) and gender376
________________________
awarded can be utilised to benefit the victim in alleviating his/her lot in life; and/or (b) the extent to which such
money will exclusively benefit the victim’s heirs.”
371 See, however, Collins v Administrator, Cape 1995 4 SA 73 (C) 94 where the court refused to award even a small
amount as symbolical satisfaction. According to the court such an award would incorrectly introduce a penal
element.
372 See Potgieter, Steynberg and Floyd Damages 497 ff; De Jongh v Du Pisanie NO 2005 5 SA 457 (SCA).
373 See in general on this topic Boberg Delict 535–547; Van der Merwe and Olivier 241; Corbett and Buchanan
passim; Visser 1981 De Rebus 438–440 476–477 523–524 579–583; Potgieter, Steynberg and Floyd Damages 497
ff. See in general Road Accident Fund v Marunga 2003 4 SA 164 (SCA).
374 Visser Kompensasie en Genoegdoening 315; Marshall v Southern Insurance Association Ltd 1950 2 PH J6 (D) 14;
Radebe v Hough 1949 1 SA 380 (A); Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194; Jacobs v Chairman,
Governing Body, Rhodes High School 2011 1 SA 160 (WCC) 190. As to damages for emotional shock, see Swart-
booi v Road Accident Fund [2012] 3 All SA 593 (WCC) paras 20 22.
375 Eg Redelinghuys v Parity Insurance Co Ltd: Corbett and Buchanan I 301–302; Mtshayi v Roxa: Corbett and
Buchanan II 381 384; Harmsworth v Smith 1928 NPD 174 182; Kinnear v Transvaal Provincial Administration
1928 TPD 133 144.
376 Eg Robinson v Roseman 1964 1 SA 710 (T); Harris v Federated Employers’ Insurance Co Ltd: Corbett and
Buchanan II 817.
of the prejudiced person, his status, culture377 and lifestyle378 and his degree of conscious
awareness.379
(b) In addition to the extent of the loss, the object of an award in a particular case is also of
importance,380 for example, the fact that the damages are to counterbalance the unhappiness
caused to the plaintiff, or that they must enable him to overcome the setback, or that they must
provide (psychological) satisfaction for the injustice done to him. The court must have one or
other object (even an implied object) in mind when awarding damages, otherwise the award will
be based on arbitrary speculation. This does not mean that the court must go into detail in each
and every case in order to determine how the damages will enable the plaintiff to achieve the
object of compensation or satisfaction, but the tribunal must at least always keep this factor in
mind. Neither the court nor the law has any control over what the plaintiff does with the money
he receives,381 but the function of the law is at least to enable the plaintiff theoretically to receive
proper compensation or satisfaction which does not burden the defendant unnecessarily. There
are indications in South African cases that a court must have an object when awarding damages
in a particular case.382
(c) Fairness and conservatism are further important guidelines to which a court should adhere
in the process of quantification. In general, this means that one should not, merely out of sym-
pathy with a plaintiff, award a large amount of money at the expense of the defendant.383 In Pitt
v Economic Insurance Co Ltd384 Holmes J used the following words which are quoted often:
I have only to add that the Court must take care to see that its award is fair to both sides – it must give
just compensation to the plaintiff, but must not pour out largesse from the horn of plenty at the defend-
385
ant’s expense.
“Fairness” (or equity) is of course a rather vague concept, but in this regard it is usually a phrase
summarising the following principles:
The court must take all relevant circumstances into account which disclose the extent of the
injury to personality and it must ignore irrelevant factors such as undue sympathy towards the
plaintiff; the basic object of compensating the plaintiff must be emphasised; the court must
________________________
377 See on race which can obviously not be relevant per se: Deysel v Santam Insurance Co Ltd: Corbett and Buchanan
I 483; Mkize v South British Insurance Co Ltd 1948 4 SA 33 (D); Radebe v Hough 1949 1 SA 380 (A).
378 Visser Kompensasie en Genoegdoening 322–328; Buchanan 1959 SALJ 462; Gush v Pretoria Assurance: Corbett
and Buchanan II 348 352.
379 Visser Kompensasie en Genoegdoening 328–332, 1981 THRHR 120 ff; Gerke v Parity Insurance Co Ltd 1966 3
SA 484 (W); Boberg Delict 567–570; Erasmus 1976 TSAR 238; Milne v Shield Insurance Co Ltd 1969 3 SA 352 (A)
359.
380 See further Visser 1983 THRHR 43 ff.
381 In NK v MEC for Health, Gauteng 2018 4 SA 454 (SCA) para 9 Willis JA said: “We do not have to determine what
the award will be used for – its purpose or function.”
382 Eg Geldenhuys v SAR & H 1964 2 SA 230 (C); Marine and Trade Insurance Co Ltd v Katz 1979 4 SA 961 (A)
983; Parity Insurance Co Ltd v Hill: Corbett and Buchanan I 680 688; but see also Southern Insurance Association
Ltd v Bailey 1984 1 SA 98 (A) 118 ff. See further on the effectiveness of damages, Visser Kompensasie en Geno-
egdoening 336–337 which deals with the form of an award of damages (capital or instalments) and future inflation.
See also Potgieter, Steynberg and Floyd Damages 498 ff; Klopper Damages 77 ff.
383 Pauw 2018 TSAR 947 criticises NK v MEC for Health, Gauteng 2018 4 SA 454 (SCA), where an award of
R1,8 million was made for general damages, for failing to take into account “that huge sums of money for general
damages for no ostensible purpose have a severe impact on the fiscus in cases where government hospitals are con-
cerned. The private sector is also affected: rates charged by private hospitals and increased premiums payable for
professional insurance by obstetricians and gynaecologists are directly affected. It is notorious that premiums have
increased exponentially over the past decade.”
384 1957 3 SA 284 (D) 287; see also Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 199; Schmidt v Road
Accident Fund [2007] 2 All SA 338 (W) 352. See also De Jongh v Du Pisanie NO 2005 5 SA 457 (SCA) 475–476
on the rising incidence of the compensation of “general loss”.
385 Cf Pauw 2018 TSAR 947.
300 Law of Delict
exercise its discretion carefully and conservatively and rather award too little than too much386
and the amount awarded must not unnecessarily burden the defendant in the plaintiff’s favour. If
these principles are applied, it may safely be said that a “fair” approach has been followed.
(d) An important instrument in the quantification process is the consideration of previous
awards in comparable cases. The locus classicus of the method of taking previous cases into
consideration is Protea Assurance Co Ltd v Lamb.387 The court stated:
It should be emphasised, however, that this process of comparison does not take the form of meticulous
examination of awards made in other cases in order to fix the amount of compensation; nor should the
process be allowed so to dominate the enquiry as to become a fetter upon the Court’s general discretion
in such matters. Comparable cases, when available, should rather be used to afford some guidance, in a
general way, towards assisting the court in arriving at an award which is not substantially out of general
accord with previous awards in broadly similar cases, regard being had to all the factors which are con-
sidered to be relevant in the assessment of general damages. At the same time it may be permissible . . .
to test any assessment arrived upon this basis by reference to the general pattern of previous awards in
cases where the injuries and their sequelae may have been either more serious or less than those in the
case under consideration.388
In conclusion, it must be pointed out that when dealing with an impairment of physical-mental
integrity, an award may be made for each of the particular forms of injury to personality recog-
nised by law. There are also specific principles in respect of each of these forms. The forms are
pain and suffering,389 shock,390 loss of the amenities of life,391 shortened life expectancy392 and
disfigurement.393
________________________
386 See, eg, Davies v Crossling 1935 WLD 107 113; see further Greenshields v SAR & H 1917 CPD 209 217; Clair v
Port Elizabeth Harbour Board 1884–1887 EDC 311 315–317; Rautenbach v Licences and General lnsurance:
Corbett and Buchanan I 221–222; Van Oudtshoorn v Northern Assurance Co Ltd 1963 2 SA 642 (A). A useful dis-
cussion of fairness and conservatism is that of Trollip JA in Bay Passenger Transport v Franzen 1975 1 SA 269
(A) 274. An award must, however, not be so “conservative” that the plaintiff does not obtain adequate compensa-
tion (Potgieter, Steynberg and Floyd Damages 500–502).
387 1971 1 SA 530 (A) 535–536. Cf as to defamation Tsedu v Lekota 2009 4 SA 372 (SCA) 381; Isparta v Richter 2013
6 SA 529 (GNP) 538; South African National Defence Union v Minister of Defence 2012 4 SA 382 (GNP) 398–
400; see in general Potgieter, Steynberg and Floyd Damages 502 ff; Klopper Damages 227 ff; Visser 1986 De Jure
207–229; Neethling, Potgieter and Roos Neethling on Personality Rights 247 fn 439. See further De Jongh v
Du Pisanie NO 2005 5 SA 457 (SCA) 477 on the consistency of awards and the discretion of the court. Cf Okpaluba
and Budeli-Nemakonde 2017 TSAR 802 ff. For a recent example of the role of previous awards in a claim of wrongful
arrest and detention, see Prinsloo J’s judgment in Mlilo v Minister of Police [2018] 3 All SA 240 (GP) paras 119–
124; see also Neethling, Potgieter and Roos Neethling on Personality Rights 190 fn 127.
388 See also NK v MEC for Health, Gauteng 2018 4 SA 454 (SCA) para 13 where Willis JA emphasised that, in
assessing damages, “this court will scrutinise past awards carefully and, in each case before it, make its own inde-
pendent assessment. It is trite that past awards are merely a guide and are not to be slavishly followed by a court in
assessing damages, but they remain a guide nevertheless. It is also important that awards, where the sequelae of an
accident are substantially similar, should be consonant with one another, across the land. Consistency, predictabil-
ity and reliability are intrinsic to the rule of law. Apart from other considerations, these principles facilitate the
settlement of disputes as to quantum.” Pauw 2018 TSAR 946 is of the opinion that the justices in NK “relied too
much on past awards” when the court awarded an amount nine times the amount awarded by the court a quo. Cf
also Neethling, Potgieter and Roos Neethling on Personality Rights 93 fn 362.
389 Supra 291; Corbett and Buchanan I 52: “In making the assessment the prime considerations are the duration and
intensity of the pain and suffering undergone or to be undergone by the plaintiff. In judging such duration and in-
tensity the court will rely upon the nature of the injuries and general circumstances of the case.” Pain of which the
plaintiff was aware at the time but which was subsequently forgotten can also be taken into account (Sigournay v
Gillbanks 1960 2 SA 552 (A) 569–571). See further fn 336 supra; Potgieter, Steynberg and Floyd Damages 506 ff.
390 See supra 291; see also Boswell v Minister of Police 1978 3 SA 268 (E); Lutzkie v SAR & H 1974 4 SA 396 (W).
Shock is usually considered in connection with “pain and suffering” (Corbett and Buchanan I 51). See Potgieter,
Steynberg and Floyd Damages 508–509.
391 Supra 292. Corbett and Buchanan I 55: “The amount of compensation which will be awarded under this head . . .
depends upon (1) the nature and extent of the plaintiff’s disability and (2) the pleasures, recreations and activities in
which he normally engaged prior to his injury. In regard to (2), factors of importance would be the age, gender and
social status of the plaintiff and his physique and general state of health prior to his injury.” See also Potgieter,
[continued ]
5.7.3 Injury to personality in the form of iniuria 394

(a) General In addition to the recovery of damages by way of the action for pain and suffering
for the (negligent) impairment of physical-mental integrity, damages (satisfaction) may be
claimed with the actio iniuriarum for an intentional infringement of a personality right.395 The
actio iniuriarum is an action which really has satisfaction as its object396 and is primarily con-
cerned with providing personal (psychological) satisfaction to a plaintiff by compelling the
defendant to pay a certain amount of money as solatium (solace money) to him. Compensation
(in the form of giving one or other equivalent for the impaired personality interest) is completely
in the background. The actio iniuriarum generally has the object of effecting retribution for the
injustice sustained by the plaintiff and of satisfying him for the feeling of injustice, injury and
suffering which he (actually or presumably) sustained as a result of defendant’s conduct. There
is no fixed formula in terms of which awards are made. Awards are assessed ex aequo et bono
(according to what is right and fair).397 Erasmus, Gauntlett and Visser398 provide the following
summary of the legal position in general:
There can be no basic formula for the assessment of damages under the actio injuriarum, the award
being entirely in arbitrio iudicis. It has been described variously as an assessment of imponderables
________________________
Steynberg and Floyd Damages 510–511; De Bruyn v Minister van Vervoer 1960 3 SA 820 (O); Marine and Trade
Insurance Co Ltd v Katz 1979 4 SA 961 (A); Pauw v African Guarantee and Indemnity Co Ltd 1950 2 SA 132
(SWA); Taylor v SAR & H 1958 1 SA 139 (N); Administrator-General SWA v Kriel 1988 3 SA 275 (A) (see supra
fn 344). In the latter case the court correctly held that the awarding of damages for medical and paramedical costs
(for aids to alleviate the loss of amenities of life) ought to be taken into account in determining the damages for
non-pecuniary loss connected with the loss of amenities of life. This approach was, however, rejected in NK v MEC
for Health, Gauteng 2018 4 SA 454 (SCA) para 12, without considering the pursuasive reasoning of the Appellate
Division in Kriel 288–289 regarding the ameliorating effect of paramedical aids on the plaintiff’s burden of pain
and suffering and loss of amenities of life (see also Klopper Damages 197; cf Pauw 2018 TSAR 943).
392 Supra 292; see also Dickinson v Galante 1949 3 SA 1034 (A); Du Bois v MVA Fund 1992 4 SA 368 (T); Corbett
and Buchanan I 57; Potgieter, Steynberg and Floyd Damages 512.
393 Supra 292; see also Solomon v De Waal 1972 1 SA 575 (A); Corbett and Buchanan I 53–54; Potgieter, Steynberg
and Floyd Damages 511–512.
394 See generally Potgieter, Steynberg and Floyd Damages 513 ff; cf Loubser and Midgley Delict 519–522.
395 Mokgoro J expressed this as follows in Dikoko v Mokhatla 2006 6 SA 235 (CC) 258: “The [actio iniuriarum] is
designed to afford personal satisfaction for the impairment of a personality right.” Where the same conduct infringes
more than one personality right, eg the right to reputation as well dignity, this does not give rise to multiple actions
under the actio iniuriarum. However, the infringement of each personality interest involved should be taken into
account in assessing the award of damages to ensure that the victim is compensated for each personality infringe-
ment (Le Roux v Dey 2011 3 SA 274 (CC) 319–320; see Gowar and Visser 2013 THRHR 490 ff; see also Le Roux v
Dey 2010 4 SA 210 (SCA) 217–219; Jankielsohn v Booysen [2020] 1 All SA 214 (FB) para 44).
396 See Visser 1988 THRHR 486 where it is pointed out that the actio iniuriarum has all the characteristics associated
with the delictual function of satisfaction: it is generally only available in cases of intentional wrongdoing; in most
cases it is an actio vindictam spirans intended to satisfy the plaintiff’s feeling of having suffered an injustice by
compelling the wrongdoer to pay a private penalty to him; it is neither passively nor actively transmissible before
litis contestatio which implies that there is a personal dispute between two specific parties; it is available in cases of
injury to personality (defamation, insult, invasion of privacy, etc) where the emphasis is more on wrongdoing than
on damage. However, see supra 7 fn 31; cf Jankielsohn v Booysen [2020] 1 All SA 214 (FB) paras 58).
397 See, eg, Jonker v Schultz 2002 2 SA 360 (O) 367; also Neethling, Potgieter and Roos Neethling on Personality Rights 93.
398 14 LAWSA para 107; see also Black v Joseph 1931 AD 132 150; Norton v Ginsberg 1953 4 SA 537 (A) 550. Cf
also Ramakulukusha v Commander, Venda National Force 1989 2 SA 813 (V) 847: “When researching the case
law on the quantum of damages, I took note with some surprise of the comparatively low and sometimes almost
insignificant awards made in Southern African Courts for infringements of personal safety, dignity, honour, self-
esteem and reputation. It is my respectful opinion that courts are charged with the task, nay the duty, of upholding
the liberty, safety and dignity of the individual.” See, however, the following statement by the Appellate Division
in a defamation case, Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) 590:
“Our Courts have not been generous in their awards of solatia. An action for defamation has been seen as the
method whereby a plaintiff vindicates his reputation, and not as a road to riches.” An award of damages should also
not function as an unjustifiable deterrent to exercising the right to freedom of expression: Mogale v Seima 2008 5
637 (SCA) para 9; South African National Defence Union v Minister of Defence 2012 4 SA 382 (GNP) 399.
302 Law of Delict
which is so discretionary as to be almost arbitrary, and as a conjectural estimate. There are (theoretically)
no limits beyond which damages cannot be awarded. Earlier cases of a similar nature may serve as an
approximate guide, but they must be applied with circumspection.
(b) Defamation Defamation is a well-known form of iniuria. Reference may be made, by way
of general example, to certain principles which are taken into account when making an award of
damages as satisfaction.399 The court determines an amount of money ex bono et aequo400 in
order to (attempt to) effect reparation for the lowering of the plaintiff’s esteem in the community.
Certain divergent factors may be taken into account.401 In considering these and other factors,
reference is usually made to “aggravating” and “extenuating” circumstances.402
In general, an improper motive or malice on the part of the defendant, for example where he is
aware of the falsity of his defamatory allegations,403 constitutes an aggravating circumstance.404
Other factors which may have a similar effect are the exceptional gravity (crassness or insulting
nature) of the defamation;405 reckless or irresponsible conduct on the part of the defendant;406
extensive distribution of a defamatory publication;407 the position and status of the plaintiff,408
and repetition of the defamatory allegations.409
________________________
399 Neethling, Potgieter and Roos Neethling on Personality Rights 246í249; Burchell Defamation 289 ff; Potgieter,
Steynberg and Floyd Damages 514 ff; Klopper Damages 260 ff.
400 Kritzinger v Perskorporasie van SA (Edms) Bpk 1981 2 SA 373 (O) 389; Smith v Die Republikein (Edms) Bpk 1989
3 SA 872 (SWA) 875; cf Chetcuti v Van der Wilt 1993 4 SA 397 (Tk) 399–401.
401 See generally Tuch v Myerson 2010 2 SA 462 (SCA) 468–469; Le Roux v Dey 2010 4 SA 210 (SCA) 225–226;
Mthimunye v RCP Media 2012 1 SA 199 (T) 204–205; South African National Defence Union v Minister of
Defence 2012 4 SA 382 (GNP) 398–400; Media 24 Limited v Du Plessis (127/2016) [2017] ZASCA 33 (29 March
2017) paras 34í35.
402 This terminology may, as is apparent from earlier case law, indicate that the actio iniuriarum (also) has a penal
function in instances of defamation (see, eg, Salzmann v Holmes 1914 AD 471, 480, 483; Gray v Poutsma 1914
TPD 203, 211; Buthelezi v Poorter 1975 4 SA 608 (W) 615–616 617 618; Pauw v African Guarantee and Indem-
nity Co Ltd 1950 2 SA 132 (SWA) 135; SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) 458; Gelb v
Hawkins 1960 3 SA 687 (A) 693; Kahn v Kahn 1971 2 SA 499 (RA) 500 501–502; Chetcuti v Van der Wilt 1993 4
SA 397 (Tk) 399–401; Africa v Metzler 1997 4 SA 531 (Nm) 538–539). According to the current approach, on the
other hand, the actio iniuriarum does not have a penal function in instances of defamation – the latter is a function
of criminal law (see, eg, Esselen v Argus Printing and Publishing Co Ltd 1992 3 SA 764 (T) 771; Collins v Admin-
istrator, Cape 1995 4 SA 73 (C) 94; Dikoko v Mokhatla 2006 6 SA 235 (CC) 263; Mogale v Seima 2008 5 SA 637
(SCA) 641–642; Tsedu v Lekota 2009 4 SA 372 (SCA) 379; Seymour v Minister of Safety and Security 2006 5 SA
495 (W) 500). See further supra 7 fn 31.
403 Geyser v Pont 1968 4 SA 67 (W) 76; Gelb v Hawkins 1960 3 SA 687 (A) 693; Dikoko v Mokhatla 2006 6 SA 235
(CC) 262; Mogale v Seima 2008 5 SA 637 (SCA) 642; Jankielsohn v Booysen [2020] 1 All SA 214 (FB) para 56;
Manuel v Economic Freedom Fighters, Ndlozi and Malema 2019 5 SA 210 (GJ) para 71.
404 Salzmann v Holmes 1914 AD 471 481 483; Mograbi v Miller 1956 4 SA 239 (T) 213; Sutter v Brown 1926 AD 155
171 172–173; cf Tsedu v Lekota 2009 4 SA 372 (SCA) 379; Mthimunye v RCP Media 2012 1 SA 199 (T) 204–205;
Wells v Atoll Media (Pty) Ltd [2010] 4 All SA 548 (WCC) para 52.
405 Pont v Geyser 1968 2 SA 545 (A) 552 558; SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) 458; Dikoko
v Mokhatla 2006 6 SA 235 (CC) 262; Mogale v Seima 2008 5 SA 637 (SCA) 642; Le Roux v Dey 2010 4 SA 210
(SCA) 225–226; Wells v Atoll Media (Pty) Ltd [2010] 4 All SA 548 (WCC) para 52; Jankielsohn v Booysen [2020]
1 All SA 214 (FB) para 55.
406 Buthelezi v Poorter 1975 4 SA 608 (W) 615–616; Dikoko v Mokhatla 2006 6 SA 235 (CC) 262; Du Plessis v Media
24 t/a Daily Sun 2016 3 SA 178 (GP) 187.
407 Geyser v Pont 1968 4 SA 67 (W) 75; Le Roux v Dey 2010 4 SA 210 (SCA) 225–226; Kritzinger v Perskorporasie
van SA (Edms) Bpk 1981 2 SA 373 (O) 389; Dikoko v Mokhatla 2006 6 SA 235 (CC) 262 269; Mogale v Seima
2008 5 SA 637 (SCA) 642; Mkhize v Media 24 Ltd [2008] 4 All SA 267 (N) 272 273; South African National
Defence Union v Minister of Defence 2012 4 SA 382 (GNP) 398; Wells v Atoll Media (Pty) Ltd [2010] 4 All SA
548 (WCC) para 52.
408 SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) 458; Le Roux v Dey 2010 4 SA 210 (SCA) 225–226; SA
Associated Newspapers Ltd v Samuels 1980 1 SA 24 (A) 43; Jeftha v Williams 1981 3 SA 678 (C) 684; Dikoko v
Mokhatla 2006 6 SA 235 (CC) 262; Mkhize v Media 24 Ltd [2008] 4 All SA 267 (N) 272 273; Raliphaswa v
Mugivhi [2008] 3 All SA 92 (SCA) 96–97.
409 Pont v Geyser 1968 2 SA 545 (A) 558; Vengtas v Nydoo (5) 1963 4 SA 358 (D) 393; Buthelezi v Poorter 1975 4
SA 608 (W) 615.
Circumstances which may be taken into account in mitigation are the bad reputation, character
or conduct of the plaintiff;410 the truth of the defamatory allegations;411 provocation on the part
of the plaintiff;412 the restricted extent of publication;413 an apology by the defendant;414 unne-
cessary delay by the plaintiff in instituting the action,415 and the fact that the defamation has
been circulating for a long time.416
(c) Other iniuriae It is unnecessary to discuss an award of satisfaction in other cases of iniuria
here.417 The relevant principles are more or less related to those recorded in respect of defama-
tion.418 The award generally entails an assessment ex bono et aequo while considering the
factors that are indicative of the extent of the loss and the injustice suffered by the plaintiff.419
________________________
410 Sutter v Brown 1926 AD 155 172; Black v Joseph 1931 AD 132 146; Geyser v Pont 1968 4 SA 67 (W) 77–78;
Mogale v Seima 2008 5 SA 637 (SCA) 642; Naylor v Jansen; Jansen v Naylor 2006 3 SA 546 (SCA) 556; Wells v
Atoll Media (Pty) Ltd [2010] 4 All SA 548 (WCC) para 52.
411 Sutter v Brown 1926 AD 155 172; Jeftha v Williams 1981 3 SA 678 (C) 684.
412 Sachs v Werkerspers Uitgewersmaatskappy (Edms) Bpk 1952 2 SA 261 (W) 284.
413 Jeftha v Williams 1981 3 SA 678 (C) 684; Jasat v Paruk 1983 4 SA 728 (N) 735; Simpson v Williams 1975 4 SA
312 (N) 315–316; Du Plessis v Media 24 t/a Daily Sun 2016 3 SA 178 (GP) 187.
414 Neethling, Potgieter and Roos Neethling on Personality Rights 94í96 and authority quoted; see further Le Roux v
Dey 2011 3 SA 274 (CC) 322; Dikoko v Mokhatla 2006 6 SA 235 (CC) 260–261 262; Mogale v Seima 2008 5 SA
637 (SCA) 643; Tsedu v Lekota 2009 4 SA 372 (SCA) 380–381; Pieterse v Clicks Group Ltd 2015 5 SA 317 (GJ)
343; Mkhize v Media 24 Ltd [2008] 4 All SA 267 (N) 272 273; Mkhize v Media 24 Ltd [2008] 4 All SA 267 (N)
272 273; Raliphaswa v Mugivhi [2008] 3 All SA 92 (SCA) 97; Isparta v Richter 2013 6 SA 529 (GNP) 538–539;
Mthimunye v RCP Media 2012 1 SA 199 (T) 204–205. In this regard mention must also be made of the amende
honorable (see supra 14). Although this remedy, which is aimed at the withdrawing of the defamation and the pub-
lication of an apology, is now apparently part of our law again (see Mineworkers Investment Co (Pty) Ltd v
Modibane 2002 6 SA 512 (W) 521; Neethling and Potgieter 2003 THRHR 329 ff; infra 308), the gravity and the
circumstances of the defamation can make the amende unsuitable in particular cases (see Young v Shaikh 2004 3
SA 46 (C) that also deals with other relevant criteria for determining a suitable amount of satisfaction; see Neeth-
ling 2004 THRHR 699–702). See further Dikoko 258–261 274–276.
415 Pienaar v Pretoria Printing Works, Reno and Stent 1906 TS 805 816.
416 Graham v Odendaal 1972 2 SA 611 (A) 615.
417 See Potgieter, Steynberg and Floyd Damages 535–553; Klopper Damages 288 ff for detail.
418 See, eg, on insult Neethling, Potgieter and Roos Neethling on Personality Rights 281; Potgieter, Steynberg and
Floyd Damages 535–537; Klopper Damages 288–289; Raliphaswa v Mugivhi [2008] 3 All SA 92 (SCA) 97; Ryan
v Petrus 2010 1 SA 169 (ECG) 177; on seduction Potgieter, Steynberg and Floyd Damages 540; Klopper Damages
290–291; on invasion of privacy Neethling, Potgieter and Roos Neethling on Personality Rights 350; Klopper
Damages 296–297; NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 5 SA 250 (CC) 269–270;
on breach of promise Potgieter, Steynberg and Floyd Damages 537–539; Klopper Damages 291–294; on unlawful
and malicious arrest and unlawful detention Potgieter, Steynberg and Floyd Damages 545–548; Klopper Damages
254–259; Okpaluba and Budeli-Nemakonde 2017 TSAR 526 ff, 2017 TSAR 792 ff (for a comprehensive discussion
of the quantification of damages for wrongful arrest, detention and malicious prosecution); Minister of Home
Affairs v Rahim 2016 3 SA 218 (CC) paras 18 22–24 29; Minister of Safety and Security v Seymour 2006 6 SA 320
(SCA); Woji v Minister of Police [2015] 1 All SA 68 (SCA) para 38; Mlilo v Minister of Police [2018] 3 All SA
240 (GP) paras 119–124; Mathe v Minister of Police [2017] 4 All SA 130 (GJ) paras 17 ff; Rowan v Minister of
Safety and Security NO [2011] 3 All SA 443 (GSJ) para 70; Van Rensburg v The City of Johannesburg [2008] 1 All
SA 645 (W) 653; Olivier v Minister of Safety and Security 2009 3 SA 432 (W) 445–446; Seria v Minister of Safety
and Security 2005 5 SA 130 (C); Minister of Safety and Security v Tyulu 2009 5 SA 85 (SCA) 93; Rudolph v Minis-
ter of Safety and Security 2009 5 SA 94 (SCA) 102–103; Neethling, Potgieter and Roos Neethling on Personality
Rights 188–190; on assault and rape Potgieter, Steynberg and Floyd Damages 551–553; Klopper Damages 250–
253; Neethling, Potgieter and Roos Neethling on Personality Rights 168í170, esp fn 356; Raliphaswa 97; Bridg-
man NO v Witzenberg Municipality 2017 3 SA 435 (WCC) paras 167í215 (see Neethling and Potgieter 2018
THRHR 325 ff); Minister of Justice and Constitutional Development v X 2015 1 SA 25 (SCA) and F v Minister of
Safety and Security 2014 6 SA 44 (WCC).
419 See, eg, Jonker v Schultz 2002 2 SA 360 (O) 367; Manase v Minister of Safety and Security 2003 1 SA 567 (Ck);
Minister of Correctional Services v Tobani 2003 5 SA 126 (E) 137–138.
Chapter 7
Delictual remedies
1 General
Transmissibility of actions The South African law of delict rests on three pillars: the actio legis
Aquiliae, the actio iniuriarum and the action for pain and suffering. The requirements for and
field of application of these three actions have already been discussed previously.1 All that still
briefly requires attention in respect of these actions is the question of their transmissibility (ie,
whether they are heritable2 and cedable). The Aquilian action is actively as well as passively
heritable;3 similarly, a claim under this action is freely cedable.4 In other words, litis contestatio
(closing of the pleadings) has no effect in this regard. By contrast, the traditional view is that the
actio iniuriarum and the action for pain and suffering are actively as well as passively heritable
only after litis contestatio.5 The claim, therefore, lapses if the plaintiff or the defendant dies
before litis contestatio.6 (Claims under these actions are also not cedable, in any case not before
________________________
1 Supra 5–6. Note that in terms of s 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of
1993 (COIDA) no (common law) delictual liability for compensation for occupational injuries is available to an
employee. This provision is only applicable to an employee who has a claim for compensation in terms of COIDA.
However, an employee who is not entitled to claim compensation in respect of “occupational diseases” under
COIDA, has a delictual action at his disposal (Mankayi v AngloGold Ashanti Ltd 2011 3 SA 237 (CC) 269; contra
Mankayi v Anglogold Ashanti Ltd [2010] 3 All SA 606 (SCA). See also DN v MEC for Health, Free State 2014 3
SA 48 (FB) 53–55 (confirmed in MEC for Health, Free State v DN 2015 1 SA 182 (SCA) 196í197; see Wessels
2015 Obiter 539 ff) where the court held that where a plaintiff, a paediatric registrar at a state hospital, was assault-
ed and raped by a stranger, this did not constitute an occupational accident for purposes of s 35 of COIDA and that
she may consequently institute a delictual claim against the defendant. On the other hand, in Churchill v Premier,
Mpumalanga 2020 2 SA 309 (MN), where a senior employee suffered psychiatric injury when she was assaulted at
her workplace by protesting employees, the court held that her relief was under COIDA as her injuries resulted
from an accident “arising out of” her employment, thus excluding a delictual claim. See generally on the exclusion
of employers’ liability by COIDA, Loubser and Midgley Delict 550–555; see also Thomas v Minister of Defence
(506/2013) [2014] ZASCA 109 which held that an employee from one state department is not precluded by s 35(1)
of COIDA from claiming delictual damages for injuries sustained on a staircase under the control of another state
department.
2 See in general Scott Oorerflikheid van Aksies; Scott in Schlemmer and O’Brien (eds) 27 ff.
3 Ie, where the plaintiff (wronged person) dies, the action falls into his estate and can be instituted by the executor
(active transmissibility). Where the defendant (wrongdoer) dies, the action can be instituted against his estate (pas-
sive transmissibility) (Van der Merwe and Olivier 235–236; Van der Walt and Midgley Delict 77; Hoffa v SA
Mutual Fire and General Insurance Co Ltd 1965 2 SA 944 (C) 950).
5 Neethling, Potgieter and Roos Neethling on Personality Rights 129; Van der Walt and Midgley Delict 77; Hoffa v
SA Mutual Fire and General Insurance Co Ltd 1965 2 SA 944 (C) 950 955; Potgieter v Sustein (Edms) Bpk 1990 2
SA 15 (T) 21–22.
6 Van der Merwe and Olivier 240–241 248–249 question the role which litis contestatio plays in this regard. Since these
actions are primarily concerned with the salving of injured feelings (Hoffa v SA Mutual Fire and General Insurance Co
Ltd 1965 2 SA 944 (C) 955) and this purpose can no longer be attained where the plaintiff dies, the actions should
according to them also not be actively heritable after litis contestatio. Scott Oorerflikheid van Aksies 211–213, how-
ever, is of the opinion that this objection against the effect of litis contestatio can be bypassed by giving more attention
to the problem of quantum; and here the actual lifespan of the deceased plaintiff can be applied as a quantum factor.
Van der Merwe and Olivier (loc cit) further maintain that the actions should also be passively heritable before litis con-
testatio (probably because the plaintiff’s injured feelings can still be salved by an amount of money from the estate of
the wrongdoer). (Cf however Scott Oorerflikheid van Aksies 213–214, 1978 THRHR 144–145.)
305
306 Law of Delict
litis contestatio.7) However, in Nkala v Harmony Gold Mining Company Ltd (Treatment Action
Campaign NPC as Amici Curiae),8 involving a (delictual) class action, Mojapelo DJP and Vally
J held that, for a variety of reasons,9 the common law in this regard should be developed to allow
for the transmissibility of actions for general (non-patrimonial) damage in the following terms:10
1. A plaintiff who had commenced suing for general damages, but who has died, whether arising from
harm caused by a wrongful act or omission of a person or otherwise, and whose claim has yet to
reach the stage of litis contestatio, and who would but for his/her death be entitled to maintain the ac-
tion and recover the general damages in respect thereof, will be entitled to continue with such action
notwithstanding his/her death; and
2. the person who would have been liable for the general damages if the death of a plaintiff had not
ensued remains liable for the said general damages, notwithstanding the death of the plaintiff so
harmed.
3. Such action shall be for the benefit of the estate of the person whose death had been so caused.
4. A defendant who dies while an action against him has commenced for general damages arising from
harm caused by his wrongful act or omission, and whose case has yet to reach the stage of litis con-
testatio, remains liable for the said general damages, notwithstanding his death, and the estate of the
defendant shall continue to bear the liability, despite the death of the defendant.
In a minority judgment, Windell J was of the view that the facts are sufficient to justify the
development of the common law regarding the transmissibility of actions in relation to class
________________________
7 Neethling, Potgieter and Roos Neethling on Personality Rights 129 130; Van der Walt and Midgley Delict 77;
Van der Merwe and Olivier 241 249–250.
8 2016 5 SA 240 (GJ). See Scott in Schlemmer and O’Brien (eds) 27 ff for a discussion; see also Neethling, Potgieter
and Roos Neethling on Personality Rights 130; Neethling 2020 (2) LitNet Akademies 732–743.
9 Paras 176 ff. These reasons include, among other things, that the common law rule of litis contestatio has failed to
keep pace with procedural developments established over the centuries as nowadays there is a much greater prob-
ability that a plaintiff might die before the pleadings are closed, thus potentially resulting in injustice to claimants
and their heirs (paras 184–191). It was also alleged that the common law infringes various provisions in the Bill of
Rights (para 192) and the claimants’ rights to equality, human dignity, life, security of the person (bodily integrity),
and access to courts (para 200). Also, a strong case was made out that the common law transmissibility rule contra-
venes s 9 of the Constitution in that it arbitrarily differentiates between survivors pre-litis contestatio and survivors
post-litis contestatio. Mojapelo DJP and Vally J highlighted the fundamental characteristic of our Roman-Dutch
law system as being dynamic, fluid, and ever changing in order to keep pace with the increasing complexities of
modern society and noted that our courts have not evaded their responsibility to develop the common law, which
has been done by taking heed of the ever changing legal convictions of the community, a concept that is now so
deeply ingrained in our law that it infuses all areas of the law (paras 193–198). The court pointed out that legisla-
tive interventions in the United Kingdom, Australia and the USA show that the law which prohibits the transmissi-
bility of general damages pre-litis contestatio fails to reflect the boni mores of a modern society (paras 205–209;
but see Scott in Schlemmer and O’Brien (eds) 35–36 for criticism of the court’s comparative law findings). Where
the common law deviates from the spirit, purport and objects of the Bill of Rights, the courts have a duty to develop
the common law to eliminate the deviation (para 199). The judges concluded that the common law transmissibility
rule can cause grave injustice, is incompatible with the legal convictions of our community, and does not reflect the
spirit, purport, and objects of the Bill of Rights. It was, therefore, necessary for the court to remedy this de-
fect. According to them, on the facts in casu a huge injustice would result if the general damages that would have
been due to a now deceased class member were to be denied simply because he or she succumbed to his or her dis-
ease before the case he or she brought or intended to bring had reached the stage of litis contestatio (para 213). In
the light of these circumstances it was the court’s view that the common law had to be developed to allow for the
claim for general damages to be transmissible to the estate or executor of a deceased claimant, even though the
stage of litis contestatio had not been reached at the time of his or her death. This development should also apply
where the defendant or potential defendant has died pre-litis contestatio, as the same principles apply to them
(paras 211–216). According to Scott in Schlemmer and O’Brien (eds) 37–38, it would have been more appropriate
for the legislator to change the law in this regard, rather than the courts, which should exercise their power to
develop the common law in an incremental fashion as required by the facts of each particular case.
10 Para 220.
Chapter 7: Delictual remedies 307
action proceedings only.11 Therefore, excluding class actions, the status quo should be retained
with regard to all other cases actionable under the action for pain and suffering.12
Additional actions Notwithstanding the fact that the actio legis Aquiliae, the actio iniuriarum
and the action for pain and suffering are based on general delictual principles, and as such cover
almost the whole area of delictual liability, there are still a few other actions which originated in
Roman-Dutch law and are applicable to specific situations. These actions are, on the one hand,
those that are based on liability without fault,13 inter alia, the actions for damage caused by
animals (the actio de pauperie; the actio de pastu and the actio de feris);14 those for damage
caused by objects poured, or thrown out of, or falling from a building (the actio de effusis vel
deiectis and the actio positi vel suspensi);15 the action for damage caused by the loss of a stolen
thing (the condictio furtiva);16 the actions for damage caused to goods stored during shipping or
by innkeepers and stable-keepers; and for damage caused by owners of neighbouring property
(the action for the disturbance of the lateral support; the actio aquae pluviae arcendae and the
interdictum quod vi aut clam).17 On the other hand, the actio doli,18 the actio quod metus
causa,19 and the actio ad exhibendum20 are also classified as delictual remedies.21 Whether all of
these actions should still be recognised today is, however, questionable.22 Insofar as any of them
is concerned with the wrongful and culpable (mostly intentional) causing of patrimonial damage,
they may quite easily be subsumed under the Aquilian action.23 Lastly, it must be mentioned that
________________________
11 Paras 234 241.

12 In this regard, we prefer Windell J’s minority judgment. We are not convinced that the possible far-reaching impli-
cations of the extension of the common law with regard to transmissibility by the majority of the court have been
sufficiently investigated. It is submitted that an investigation should be conducted by the South African Law Re-
form Commission as to the merit or otherwise of the extension of the common law rule of transmissibility as found
by the majority in Nkala. Scott in Schlemmer and O’Brien (eds) 37–38 is also of the view that it would have been
more appropriate for the legislator to change the law in this regard, rather than the courts (see supra fn 9 for more
detail).
13 See in this regard infra 435 ff.
14 Infra 435–440.
15 Infra 441.
16 Infra 441.
17 Infra 441–443.
18 This is an action based on damage as a result of an intentional misrepresentation (Van der Merwe and Olivier 228–
229; Van der Walt and Midgley Delict 45; Van Heerden and Neethling Unlawful Competition 59 fn 61).
19 This is an action based on damage as a result of culpable intimidation (Van der Merwe and Olivier 229–230;
Van der Walt and Midgley Delict 45).
20 This is an action for damages available to the owner of a thing against a thief or other mala fide possessor who
alienates, consumes or culpably destroys the thing, as well as against any other possessor who fraudulently acts
with the thing in such a way after he has become aware of the owner’s title or claim (Neethling 2000 Acta Juridica
215 ff; Van der Walt and Midgley Delict 45; Van der Merwe and Olivier 231–233). Intent, dolus (eventualis) or
mala fides, is traditionally required for this action (see, eg, Frankel Pollak Vinderene Inc v Stanton 2000 1 SA 425
(W) 438–443; Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 2 SA 986 (T) 1011–1012;
Faynaz Import and Export Enterprises CC v Commissioner of Customs and Excise [2009] 2 All SA 358 (T)
para 80). However, in Gore v Saficon Industrial (Pty) Ltd 1994 4 SA 536 (W) 549–550 mala fides was replaced by
negligence as requirement for liability. This view deserves support if the actio ad exhibendum is absorbed by the
Aquilian action, because it is a characteristic of the Aquilian action that both intent and negligence can be the basis
of liability (see Neethling and Potgieter 2010 THRHR 488–489). However, if the traditional requirement of intent is
maintained, the actio ad exhibendum should continue to exist as a sui generis remedy – an absorption thereof by the
Aquilian action would then not only be unnecessary, but would also negate the characteristic co-existence of intent
and negligence as fault requirement of the Aquilian action (see Neethling 2000 Acta Juridica 221–223).
21 See in general Van der Merwe and Olivier 230 259 ff on the actio Pauliana and the doctrine of notice. See, eg,
Commissioner of Customs and Excise v Bank of Lisbon International 1994 1 SA 205 (N) on the application of the
actio Pauliana (see, however, the critical discussion of Thomas and Boraine 1995 THRHR 178 ff); see also Com-
missioner, South African Revenue Service v ABSA Bank Ltd 2003 2 SA 96 (W) 127–133.
22 See, however, Pietermaritzburg and District Council for the Care of the Aged v Redlands Development Projects
(Pty) Ltd 2018 4 SA 113 (SCA) for a recent application of the actio aquae pluviae arcendae; cf infra 442 fn 107.
23 See the authority in fns 18–20 supra; cf however Neethling 2000 Acta Juridica 221–223; Scott 1985 De Jure 127.
308 Law of Delict
the Roman-Dutch amende honorable has been resurrected in our law24 and that a group or class
action in terms of section 38 of the Constitution, also for delictual claims, has been recognised
by the courts.25
2 The interdict
The delictual actions are directed at compensation for patrimonial damage or impairment of
personality. There is, however, also another important legal remedy that does not aim at com-
pensation, but with which a person can avert an impending wrongful act or prevent the continua-
tion of a wrongful act that has already commenced: the interdict.26 The interdict can be take one
of two forms, ie, prohibitory or mandatory. The former prohibits the wrongdoer from commit-
ting a wrongful act at all or from continuing with a wrongful act,27 while the latter requires
positive conduct on the part of the wrongdoer to terminate the continuing wrongfulness of an act
that has already been committed.28 On close examination, however, each is directed at prevent-
ing a person from acting wrongfully. The interdict thus has a preventative function. Since the
interdict is directed at the prevention of a wrongful act, and not at retribution for wrongfulness
already committed, there is no reason why fault on the part of the wrongdoer should be a re-
quirement for the granting of an interdict. Fault is, therefore, correctly not stated as a require-
ment in this regard in either our common law or case law.29
________________________
24 See supra 14–15. In terms of this remedy, a plaintiff in a defamation case could demand that the defendant retract
the allegations and publish an apology. It was accepted that the amende honorable had been abrogated in South
Africa by disuse for 150 years. The remedy – or a similar one – was nevertheless resurrected in Mineworkers In-
vestment Co (Pty) Ltd v Modibane 2002 6 SA 512 (W) 521 ff (cf NM v Smith 2005-05-13 case no 02/24948 (W);
Young v Shaikh 2004 3 SA 46 (C) 57; Dikoko v Mokhatla 2006 6 SA 235 (CC) 258–261 274–276; Isparta v Richter
2013 6 SA 529 (GNP) 538–539. See further University of Pretoria v South Africans for the Abolition of Vivisection
2007 3 SA 395 (O) where the remedy was applied, albeit not eo nomine; cf also Le Roux v Dey 2011 3 SA 274
(CC) 322 333 ff; Media 24 Ltd v SA Taxi Securitisation 2011 5 SA 329 (SCA) 350 ff; Neethling and Potgieter 2012
THRHR 310–311; Descheemaeker 2013 SALJ 435 ff; Mukheibir 2007 Obiter 583 ff; Neethling 2009 De Jure 286
ff; Loubser and Midgley (eds) Delict 430–432). The amende honorable can take three forms: an exclusive remedy;
an alternative remedy for damages (satisfaction); and a cumulative remedy with damages (see Neethling, Potgieter
Roos Neethling on Personality Rights 94í96; Neethling and Potgieter 2003 THRHR 329 ff; Van der Walt and
Midgley Delict 301í302; Visser 2011 SALJ 327 ff; Trengove 2013 THRHR 70 ff; Van Niekerk 2013 Fundamina
397 ff). See Descheemaeker 2015 SALJ 938–939, who, after a detailed analysis of the amende honorable, points
out that historically, “what lay at the heart of the remedy was the highly powerful and symbolic ritual of the public
humiliation of the insulter”. Consequently, “far from being concerned with the mending of relationships between
parties, as modern apologists appear to assume, amende honorable is in its very nature concerned with the public
triumph of one party over the other”.
25 Nkala v Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC as Amici Curiae) 2016 5 SA 240
(GJ); cf Neethling and Potgieter 2016 Annual Survey 744–752; Neethling 2020 (2) LitNet Akademies 732–743;
Hurter 2016 Annual Survey 110–114. In Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd 2013 2 SA
213 (SCA) paras 16 21 26 and 28, Wallis JA broadened the basis for class actions by holding that they may also be
instituted for common law claims, and not only Bill of Rights’ claims. See also Broodryk 2019 Stell LR 6 ff; Hurter
2013 Annual Survey 115. See Broodryk 2017 SALJ 821 ff on the calculation of damages in a mass personal injury
class action.
26 See in this regard in general Van der Merwe and Olivier 250 ff; Van der Walt and Midgley Delict 297–299;
Loubser and Midgley Delict 525–527; Neethling Van Heerden-Neethling Unlawful Competition 84–86. As to the
role of the interdict in connection with actionable personality infringements on the social media such as Facebook,
see Heroldt v Wills 2013 2 SA 530 (GSJ); Dutch Reformed Church Vergesig v Sooknunan 2012 6 SA 201 (GSJ);
Neethling 2014 (1) LitNet Akademies 40 ff.
27 Eg a prohibition to publish defamatory remarks, or cause disturbing noise, or keep a person imprisoned.
28 Eg a command to destroy photographs (and their negatives) of a person that infringe his right to privacy, or copies
of a book that infringe copyright, or labels that constitute passing off.
29 Van der Walt and Midgley Delict 298; Neethling Van Heerden-Neethling Unlawful Competition 85. See, eg,
Hawker v Life Offices Association of South Africa 1987 3 SA 777 (C) 780; R and I Laboratories (Pty) Ltd v Beauty
Without Cruelty International (South African Branch) 1990 3 SA 746 (C) 754–755; Long John International Ltd v
Stellenbosch Wine Trust (Pty) Ltd 1990 4 SA 136 (D) 143; Aruba Construction (Pty) Ltd v Aruba Holdings (Pty)
Ltd 2003 2 SA 155 (C) 175; Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home Affairs 2010 5 SA 367
(WCC). See further Neethling and Potgieter 1991 SALJ 35–36; Burchell Personality Rights 479 ff.
The courts30 state three requirements31 for the granting of an interdict:

(a) There must be an act by the respondent. The act,32 which could already have commenced
or be merely threatening, may be a commissio33 or an omissio.34
(b) The act must be wrongful. Wrongfulness in this regard means that there must be a threat
to or an infringement of a so-called “clear right”35 or a “liquide regt”36 of the applicant.37 This
viewpoint is acceptable if a “clear right” means a recognised subjective right.38 This does not
imply, however, that in cases where such a right is absent, wrongfulness in respect of the inter-
dict cannot also lie in the breach of a legal duty.39
(c) No other ordinary remedy which would prevent the (continued) wrongful conduct,
must be available to the applicant.40 An interdict may either be final or pendente lite
(temporary). In the former instance, a permanent prohibition is placed on the (threatening)
wrongful act. In the latter case, the prohibition only applies pending the outcome of the trial
action.41
3 Concurrence of remedies42
3.1 Introduction
One and the same act may in principle result in several – different or alternative – remedies. An
act from which various claims arise, each of which places a distinctive action at the plaintiff’s
________________________
30 Eg Setlogelo v Setlogelo 1914 AD 221 227; Patz v Greene and Co 1907 TS 427.
31 Following Van der Linden 3 1 4 7.
32 Cf Van der Linden 3 1 4 7.
33 Eg the causing of disturbing noise or the imprisonment of a person.
34 Eg an omission to prevent slate from washing on to neighbouring property (cf Regal v African Superslate (Pty) Ltd
1963 1 SA 102 (A)).
35 Eg Setlogelo v Setlogelo 1914 AD 221 227; Prinsloo v Shaw 1938 AD 570.
36 Van der Linden 3 1 4 7. He clearly states that no interdict should be granted if the act does not infringe the appli-
cant’s right (“niet inloopt tegen des verzoekers regt”).
37 In Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd [2017] 2 All SA 347 (SCA) paras 38–39 Wallis JA
referred to Hix Networking Technologies v System Publishers (Pty) Ltd 1997 1 SA 391 (A) where the court, citing
from Heilbron v Blignault 1931 WLD 167 169, accepted that a person is not entitled to an interdict unless it is clear
that the defendant has no defence. Therefore, if the defendant in a defamation matter can, eg, prove truth and public
benefit as a defence, the court may not disregard it, as the basis of the claim for an interdict is that an actionable
wrong (ie, conduct for which there is no defence in law) is about to be committed. What is required is that a sus-
tainable foundation be laid by way of evidence that a defence is available to the defendant. It is not sufficient simp-
ly to state that at a trial the defendant will prove a defence without providing a factual basis therefor (cf Neethling,
Potgieter and Roos Neethling on Personality Rights 249).
38 Cf Van der Merwe and Olivier 253.
39 Eg in the case of liability for pure economic loss; see in this regard infra 349 ff.
40 In Setlogelo v Setlogelo 1914 AD 221 227 the court referred to “the absence of similar protection by any other
ordinary remedy”; see also Heroldt v Wills 2013 2 SA 530 (GSJ) 546 and Willis J’s reference to Roman-Dutch
writers in this respect. See in general Van der Merwe and Olivier 257–258. The possibility of a criminal sanction
should therefore not qualify as a “remedy” in this regard (Neethling Van Heerden-Neethling Unlawful Competition
86).
41 The requirements for a temporary interdict were set out as follows in LF Boshoff Investments (Pty) Ltd v Cape
Town Municipality 1969 2 SA 256 (C) 267: “Briefly these requisites are that the applicant for such temporary relief
must show – (a) that the right which is the subject-matter of the main action and which he seeks to protect by
means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) that if the
right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if
the interim relief is not granted and he ultimately succeeds in establishing his right; (c) that the balance of conve-
nience favours the granting of interim relief; and (d) that the applicant has no other satisfactory remedy.”
42 See in general Hosten 1960 THRHR 251 ff; Van der Merwe and Olivier 463 ff; Van der Walt and Midgley Delict
78–82; Loubser and Midgley Delict 231 ff.
310 Law of Delict
disposal, gives rise to different remedies.43 These remedies may be similar (for example, only
delictual actions) or dissimilar (for example, delictual as well as contractual actions).44 By
contrast, an act from which only one or more claims arise but which offers a choice between
different remedies, results in alternative remedies (for example, a choice between a contractual
and a delictual action).45 46
It is important to have a closer look at the concurrence of the three most important delictual
actions amongst themselves, the concurrence of the actio iniuriarum and the contractual action,
that of the action for pain and suffering and the contractual action, as well as the choice between
the actio legis Aquiliae and the contractual action.47
3.2 Delictual actions

The actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering concur in the
following ways:48
The actio legis Aquiliae and the actio iniuriarum concur in circumstances where an iniuria also
causes patrimonial damage, for example an assault which brings about hospital and medical
expenses, or a doctor or an attorney losing patients or clients as a result of defamation. In prin-
ciple, the plaintiff must then institute the actio iniuriarum for satisfaction and the Aquilian
action for patrimonial damages.49 He must, therefore, clearly set out in his pleadings the facts
that are necessary to found both actions.50
The concurrence of the actio legis Aquiliae and the action for pain and suffering takes place
where a culpable infringement of physical-mental integrity causes patrimonial damage, for
example, bodily injuries (as a result of, for example, a motor-car accident) which brings about
medical expenses.51 Obviously, this type of concurrence is the one most often encountered in
practice. The plaintiff must then claim damages for patrimonial loss under the Aquilian action
and compensation under the action for pain and suffering. Consequently, he must clearly set out
in his pleadings the facts necessary to found both actions.52
Lastly, attention must be given to the concurrence of the actio iniuriarum and the action for pain
and suffering. According to Van der Merwe and Olivier,53 these two actions cannot concur.
They argue that in the case of assault (intentional bodily infringement), the action for pain and
suffering loses its meaning and is replaced by the actio iniuriarum, with which full compensa-
tion (also for pain, suffering, et cetera) may be claimed. This view cannot, however, be accepted.
________________________
43 Hosten 1960 THRHR 251; see supra 271 on causes of action.

44 Van der Merwe and Olivier 464 ff 468 ff.
45 Hosten 1960 THRHR 251–252; Van der Merwe and Olivier 463.
46 Hosten 1960 THRHR 251 points out that it is only in the former case – where different remedies can be exercised
simultaneously – that one has to do with a concurrence of remedies. One must, however, agree with Van Aswegen
Sameloop van Eise 101–102 that alternative remedies also coexist or concur and that the law only prohibits their
simultaneous application.
47 On the possible concurrence of a delictual action and a constitutional remedy, see supra 21–22; Van der Walt and
Midgley Delict 84; and on the concurrence of the remedies in terms of reformed pound legislation and the actio de
pastu, Van der Merwe 2014 Stell LR 612 ff.
48 See in general Van der Merwe and Olivier 464–466.
49 Idem 464; cf Neethling, Potgieter and Roos Neethling on Personality Rights 100–104. The distinction between the
scope of these two actions has incorrectly not always been maintained by the courts (infra 342).
50 In this regard it must be borne in mind that although the two actions are kept separate in theory, in practice
damages and satisfaction are claimed simultaneously and that the two actions are hardly ever mentioned by name
(Joubert Grondslae 144). This does not mean, however, that the differences between the requirements of the two
actions have disappeared (Neethling, Potgieter and Roos Neethling on Personality Rights 103–104).
52 Cf however the remarks supra fn 50. What has been said there, mutatis mutandis also applies here (cf Van der
Merwe and Olivier 465 fn 10).
53 465.
Since the object or function of the actio iniuriarum (satisfaction)54 differs from that of the action
for pain and suffering (compensation),55 the actions cannot be treated similarly in respect of
assault.56 Both actions are thus in principle available for a wrongful and intentional infringement
of physical-mental integrity. This view is by implication also apparent from the case law, where,
in principle, a distinction is made between satisfaction for contumelia (iniuria) and compensa-
tion for physical pain and suffering.57 58
3.3 Actio iniuriarum and contractual action59

The actio iniuriarum and the contractual action concur in circumstances where breach of con-
tract also constitutes an iniuria against the wronged contracting party.
In the first place, this type of concurrence of remedies can be illustrated by reference to breach
of promise (ie, breach of the contract of engagement). It is settled law that breach of promise
may be an iniuria against the innocent party. There is, however, uncertainty on the question of
whether breach of promise is per se an iniuria, or whether it only becomes one if the innocent
party in fact suffers an actionable infringement of his personality. Case law,60 under the influence
of English law, initially adopted the former approach. According to this view, breach of promise
not only results in patrimonial damage as a result of the breach of contract, but of necessity also
constitutes an iniuria. In Guggenheim v Rosenbaum (2)61 this approach was, however, not
supported. According to Trollip J, breach of promise is not per se an iniuria. It will only consti-
tute an iniuria if the plaintiff proves “not merely that the breach was wrongful, but also that it
was injurious or contumelious”. This approach is preferable.62 Not only does it emphasise the
fact that breach of promise does not necessarily result in an iniuria, but also that one is con-
cerned with two materially different actions, each with its own requirements and object.63 A
concurrence of actions can therefore occur only if the plaintiff clearly avers in his pleadings the
requirements necessary for both the contractual action and the actio iniuriarum. Be that as it
may, there are strong indications in case law that the contractual action will probably not be
available in future.64
________________________
54 Visser Kompensasie en Genoegdoening 197–198, 1988 THRHR 486–49.

55 Visser Kompensasie en Genoegdoening 284–289.
56 Idem 290; Neethling, Potgieter and Roos Neethling on Personality Rights 169–170.
57 Visser Kompensasie en Genoegdoening 290–291; see, eg, Radebe v Hough 1949 1 SA 380 (A) 384–385; Magqabi
v Mafundityala 1979 4 SA 106 (E) 110; N v T 1994 1 SA 862 (C) 854–865; GQ v Yedwa 1996 2 SA 437 (Tk) 438–
439; April v Minister of Safety and Security [2008] 3 All SA 270 (SE) 281–282 (where the court, in a case of
assault in the form of bullet wounds, differentiated between compensation for pain and suffering and satisfaction
for contumelia, but nevertheless followed a holistic approach because of overlap between the two forms of damage
and accordingly awarded a single amount to avoid double compensation). Cf however the remarks supra fn 42.
What was said there, mutatis mutandis also applies here (cf Visser Kompensasie en Genoegdoening 290).
58 In Brandon v Minister of Law and Order 1997 3 SA 68 (C) 78 the distinction between and concurrence of the actio
iniuriarum, the action for pain and suffering and the actio legis Aquiliae in connection with assault were ignored.
Van Reenen J stated that “damages suffered . . . as a result of . . . assault contains all the elements of the Aquilian
action, under which, in an extended sense, in the case of bodily injuries, not only patrimonial, but also non-
patrimonial loss may be recovered”. In this way the court failed to appreciate not only the applicability of the actio
iniuriarum in the case of assault, but also the independent existence of the action for pain and suffering as a sui
generis action (see Neethling 1997 THRHR 707–709).
59 See in general Van der Walt and Midgley Delict 78–79; Van der Merwe and Olivier 468–483; Edouard v Adminis-
trator, Natal 1989 2 SA 368 (D) 392.
60 Eg McCalman v Thorne 1934 NPD 86 91–92; Combrink v Koch 1946 NPD 512 514.
61 1961 4 SA 21 (W) 36; see also M v M 1991 4 SA 587 (D) 601.
62 In Bull v Taylor 1965 4 SA 29 (A) 37–38 the Appellate Division was not prepared to endorse any of these
approaches.
63 See also Neethling, Potgieter and Roos Neethling on Personality Rights 290; infra 427.
64 See Sepheri v Scanlan 2008 1 SA 322 (C) 330–331; Van Jaarsveld v Bridges 2010 4 SA 558 (SCA) 560–561;
Cloete v Maritz 2013 5 SA 448 (WCC) 451; see also infra 427.
312 Law of Delict
The breach of an ordinary commercial contract can nevertheless still be the basis of the actio
iniuriarum.65 The concurrence of this action with the contractual action occurred, for example in
cases such as the breach of a contract of employment;66 the dishonouring of a client’s cheque by
his banker,67 and the disregard of a place reservation agreement by the owner of a hotel.68 The
correct approach that should be followed in this regard appears from Ndamse v University
College of Fort Hare.69 The court stated70 that a wrongful dismissal from employment (breach of
contract) is not in itself an iniuria, but that “the manner of a wrongful dismissal may constitute
an iniuria”; in which case “the plaintiff must set out facts, other than the mere fact of dismissal,
which constitute an iniuria”.
3.4 Action for pain and suffering and contractual action

The action for pain and suffering and the contractual action concur in circumstances where
breach of contract also results in a wrongful and culpable infringement of the physical-mental
integrity of the wronged contracting party. An example of this situation is where a patient is
operated on, in terms of a contract, by a surgeon who performs the operation negligently and the
patient’s health suffers a setback. The patient then has a contractual action for damages, as well
as the action for pain and suffering for compensation.
With regard to this type of concurrence, the reasoning of Van der Merwe and Olivier71 appears
to be correct. Since two independent actions are involved, each with its own requirements and
purpose, they may coexist and be instituted simultaneously. This viewpoint is also apparent from
the decision in Administrator, Natal v Edouard.72 The court held that compensation for pain and
suffering experienced as a result of breach of contract cannot be claimed with the contractual
action; for this purpose the delictual action for pain and suffering must be employed.73
3.5 Actio legis Aquiliae and contractual action74

The actio legis Aquiliae and the contractual action concur in circumstances where breach of
contract simultaneously also constitutes the delict damnum iniuria datum – ie, a wrongful
culpable causing of patrimonial damage – against the wronged contracting party.75 The injured
________________________
65 See in general Van der Merwe and Olivier 470 ff.

66 Eg Hickman v Cape Jewish Orphanage 1936 CPD 548; Ndamse v University College of Fort Hare 1966 4 SA 137
(E); Viljoen v Nketoana Municipality 2003 24 ILJ (LC) 437 444–447.
67 Eg Van Aswegen v Volkskas Bpk 1960 3 SA 81 (T); Klopper v Volkskas Bpk 1964 2 SA 421 (T). As Van der
Merwe and Olivier 473–475, however, correctly point out, these two decisions are subject to criticism.
68 Jockie v Meyer 1945 AD 354; see also Edouard v Administrator, Natal 1989 2 SA 368 (D) 390–391; Administra-
tor, Natal v Edouard 1990 3 SA 581 (A) 593–596.
69 1966 4 SA 137 (E).
70 139; see also Jockie v Meyer 1945 AD 354 367–368; Brenner v Botha 1956 3 SA 257 (T) 260; cf Neethling,
Potgieter and Roos Neethling on Personality Rights 99–100.
71 476–477.
72 1990 3 SA 581 (A) 596–597; Edouard v Administrator, Natal 1989 2 SA 368 (D) 392–393; cf also Van der Merwe
and Olivier’s (476–477) discussion of Van Wyk v Lewis 1924 AD 438.
73 In this case the Appellate Division decided that the failure of a provincial hospital to sterilise a married woman for
socio-economic reasons in terms of a contract, constituted a breach of contract. According to the court, this omis-
sion founded an action for damages for the loss she and her husband suffered as a result of the maintenance of a
child that was born because of the omission. However, the breach of contract does not also found a claim for non-
patrimonial damages for the pain, suffering, inconvenience and loss of amenities of life which the woman experi-
enced as a result of her pregnancy and the birth of the child.
74 See in general Van der Merwe and Olivier 478 ff; cf Van der Walt and Midgley Delict 80–82; cf Price 2014 Stell
LR 501 ff; Bhana and Samaradiwakera-Wijesundara 2018 Stell LR 430 442 ff; Stevens 2017 (20) PELJ 16 ff.
75 See Kohler Flexible Packaging (Pinetown) (Pty) Ltd v Marianhill Mission Institute 2000 1 SA 141 (D) 144–145.
person can then choose whether he wants to claim ex contractu or ex lege Aquilia,76 or he can
institute the remedies in the alternative.77
In this regard, it must be emphasised that the actio legis Aquiliae is only available alongside the
contractual action if the conduct complained of, apart from breach of contract, also wrongfully
and culpably infringes a legally recognised interest which exists independently of the contract,
such as a thing or a personality interest.78 The example of the surgeon who performs an oper-
ation negligently and thus does not perform properly in accordance with the agreement with his
patient, can serve as an illustration again.79 If the patient suffers patrimonial damage as a result
of the conduct complained of, the patient also has the Aquilian action at his disposal, because the
surgeon, irrespective of the contract, also infringed the patient’s personality interest in his
physical-mental integrity in a wrongful and culpable manner.80
The leading judgment is Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty)
Ltd.81 Although the court acknowledged the possibility of a concursus actionum (concurrence of
actions), no concurrence was present in casu because the plaintiff had forfeited his contractual
claim after transferring his contractual rights and duties to a third party.82 The plaintiff could
accordingly only rely on a delictual action based on negligent misrepresentation, and here the
pivotal question was “whether the breach of a contractual duty to perform professional work
with due diligence is per se a wrongful act for the purposes of Aquilian liability, with the corol-
lary that if the breach were negligent damages could be claimed ex delicto”.83 The court an-
swered this question in the negative and held that delictual liability had to be established inde-
pendently of the contract.84 It was of particular importance here that delictual wrongfulness (or
________________________
76 Eg Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 496 499; Van Wyk v
Lewis 1924 AD 438; Correira v Berwind 1986 4 SA 60 (ZH) 63–66; Otto v Santam Versekering Bpk 1992 3 SA
615 (O) 623–624; Cathkin Park Hotel v JD Makesch Architects 1993 2 SA 98 (W) 102–103; Tsimatakopoulos v
Hemmingway, Isaacs & Coetzee CC 1993 4 SA 428 (C) 432–433; Erasmus v Inch 1997 4 SA 584 (W) 594–595;
Kohler Flexible Packaging (Pinetown) (Pty) Ltd v Marianhill Mission Institute 2000 1 SA 141 (D) 144–145; Van
Aswegen 1994 THRHR 147 ff; Van der Walt and Midgley Delict 81. See in general on the concurrence of delictual
and contractual actions Van Aswegen Sameloop van Eise passim; Van der Merwe and Olivier 468 ff; Van der Walt
and Midgley Delict 57–59; Hakime and Steynberg 2002 THRHR 448–451.
77 Eg Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N); Wellworths Bazaars
Ltd v Chandlers Ltd 1948 3 SA 348 (W); see also Van der Walt and Midgley Delict 81; Price 2014 Stell LR 501 ff.
Van der Walt and Midgley 81 also mention the possibility that the two remedies may be instituted cumulatively
provided that the plaintiff may not recover more than his actual loss. For a detailed and thorough discussion of the
concurrence of the Aquilian action and the contractual action, see Van Aswegen Sameloop van Eise ch 9.
78 See, eg, Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 496 499;
Van Wyk v Lewis 1924 AD 438; Mukheiber v Raath 1999 3 SA 1065 (SCA) 1069; Erasmus v Inch 1997 4 SA 584
(W) 594–595 Correira v Berwind 1986 4 SA 60 (ZH) 63–66; Kohler Flexible Packaging (Pinetown) (Pty) Ltd v
Marianhill Mission Institute 2000 1 SA 141 (D) 145; Otto v Santam Versekering Bpk 1992 3 SA 615 (O) 623–624;
Cathkin Park Hotel v JD Makesch Architects 1993 2 SA 98 (W) 102–103; Tsimatakopoulos v Hemmingway, Isaacs
& Coetzee CC 1993 4 SA 428 (C) 432–433; cf Loureiro v Imvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC)
(discussed by Price 2014 Stell LR 501 ff); see further Van der Walt and Midgley Delict 80–81.
79 Supra 312. See also Humphrys v Barnes 2004 2 SA 577 (C) 582–583 and Cathkin Park Hotel v JD Makesch
Architects 1993 2 SA 98 (W) where the court held that, apart from breach of contract, the defendants also commit-
ted a delict because of damage to property.
80 Cf the cases supra fns 77 78.
81 1985 1 SA 475 (A); see also Trio Engineered Products Inc v Pilot Crushtec International (Pty) Ltd 2019 3 SA 580
(GJ) 585í586; cf Loubser and Midgley Delict 231–237; Stevens 2017 (20) PELJ 17 ff.
82 See Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 495.
83 See Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 570.
84 See Stevens 2017 (20) PELJ 19. Price 2014 Stell LR 510 concludes that the decision in Loureiro v Imvula Quality
Protection (Pty) Ltd 2014 3 SA 394 (CC) is “consistent with the sound principle enunciated by the SCA in Viv's
Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk [2010 4 SA 455 (SCA)], namely that novel delictual
duties should not be imposed if they have no basis independent of a simultaneously-binding contract and if they
therefore would effectively replicate a contractual duty but instead be owed to third persons not party to the rele-
vant contract”. See also Bhana and Samaradiwakera-Wijesundara 2018 Stell LR 442 for a critique on Country
Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 1 SA 1 (CC).
314 Law of Delict
the presence of a legal duty) had to be clearly apparent according to the reasonableness criterion.
The court found that Aquilian liability should not be extended to the relevant situation, primarily
on account of the policy consideration “that the position of the parties had been determined by
contractual provisions that the parties themselves had preferred and which they had expected to
be applicable”.85 It was emphasised that extension of liability in terms of the actio legis Aquiliae
would not readily be allowed in the field of contract law if the prejudiced party had had adequate
contractual remedies, and according to the court this had indeed been the case here.86
In respect of the present concursus actionum, the position appeared to be – contrary to instances
where breach of contract accompanied damage to property or personality infringement 87 – that
the courts would not readily construe an interest that could exist independently of the contract in
instances of pure economic loss.88 Where professional services were negligently supplied pursu-
ant to an agreement (for example, with attorneys, auditors and architects), the prejudiced person
would as a rule only have the contractual action at his disposal.89 In Pinshaw v Nexus Securities
(Pty) Ltd90 a different approach was followed. The court held that the Lillicrap judgment was not
applicable to quasi-professional contracts (for example, contracts with persons providing finan-
cial services and presenting themselves as experts), and that the Aquilian action for pure eco-
nomic loss may be concurrent with the contractual action in such instances. Van der Walt and
Midgley91 agree with the approach in Pinshaw, but go one step further. They are of the opinion
that independent delictual liability is possible in instances of pure economic loss where the
delictual claim is (unlike the scenario in Lillicrap) not based solely on breach of contract. In
Holtzhausen v ABSA Bank Ltd, the Supreme Court of Appeal agreed with this approach.92 The
court found that the plaintiff’s delictual claim did not depend upon a breach of a contractual duty
________________________
85 (Translation). See also Nortje v Fakie 2013 1 SA 577 (KZP) 582; cf Country Cloud Trading CC v MEC, Depart-
ment of Infrastructure Development, Gauteng 2015 1 SA 1 (CC) para 62 ff; cf Freddy Hirsch Group (Pty) Ltd v
Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 292. In Alfa Laval Agri (Pty) Ltd v Ferreira 2004 2 SA 68 (O) 76 a
tripartite agreement existed between the parties. This comprised of A entering into a contract of sale with B, on the
strength of which B entered into a contract with C to give effect to the contract of sale. A allegedly suffered eco-
nomic loss due to the unprofessional manner in which the contract of sale was performed. His purported delictual
claim against C was, however, dismissed on the authority of Lillicrap (where such a tripartite agreement had also
been present), because the same policy considerations applicable to a direct contractual obligation were also applic-
able to a tripartite agreement.
86 See further Thatcher v Katz 2006 6 SA 407 (C) 411–412. See for discussions of Lillicrap, Wassenaar and Partners
v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A), Van der Walt and Midgley Delict 80í81; Van Aswegen
Sameloop van Eise 294–297 471. The contentious matter whether Lillicrap really dealt with wrongfulness as
delictual element, or rather with the question of the expediency or necessity of recognising (or extending) delictual
liability, is not repeated here (see 101–102 supra).
87 Cf further Lawrence v Kondotel Inns (Pty) Ltd 1989 1 SA 44 (D) 52–53.
88 Cf Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 499–500; Erasmus v
Inch 1997 4 SA 584 (W) 594–595; Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 570.
89 Cf Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 500; Erasmus v Inch
1997 4 SA 584 (W) 592–595; Van der Walt and Midgley Delict 81. However, in Erasmus 595 Wunsch J neverthe-
less appeared to accept that the plaintiff (a professional person) could establish an independent delictual basis (ie, the
obligation did not arise from contract) for damages for pure economic loss resulting from negligent misrepresentation.
90 2002 2 SA 510 (C) 518 ff 534–536; however, see Alfa Laval Agri (Pty) Ltd v Ferreira 2004 2 SA 68 (O) 77–78.
91 Delict 81.
92 2008 5 SA 630 (SCA) 633 (see Neethling 2009 TSAR 573 ff), where Cloete JA stated this in the following words:
“Lillicrap decided that no claim is maintainable in delict where the negligence relied on consists in the breach of a
term in a contract . . . Lillicrap is not authority for the more general proposition that an action cannot be brought in
delict if a contractual claim is competent. On the contrary, Grosskopff JA was at pains to emphasize (496D–I) that
our law acknowledges a concurrence of actions where the same set of facts can give rise to a claim for damages in
delict and in contract, and permits the plaintiff in such a case to choose which he wishes to pursue.” See also Trio
Engineered Products Inc v Pilot Crushtec International (Pty) Ltd 2019 3 SA 580 (GJ) 586 588.
but rather upon general delictual principles concerning negligent misrepresentation (resulting in
pure economic loss) that could, according to the court, found a cause of action.93
This judgment deserves support. It is clear from the case94 that a plaintiff may succeed with a
delictual claim for pure economic loss due to negligent misrepresentation if all the normal
delictual requirements are complied with. This holds good even where the misrepresentation
also resulted in breach of contract, with the proviso that the delictual claim does not depend
upon the breach of the contractual provision, but rather upon the infringement of an interest that
exists independently of the contract. In instances of pure economic loss, the usual inquiry in this
respect will be whether the defendant had a legal duty (according to the boni mores or reason-
ableness criterion and outside of contractual obligations) to prevent the loss.95 The conclusion
that was made earlier, that a concursus actionum is recognised in instances of breach of contract
accompanied by damage to property or injury to personality interests, but that it is not readily
accepted where the breach of contract only results in pure economic loss (for instance where a
professional service is performed in terms of an agreement), was thus swept from the table, and
a new course was established.96
________________________
93 See also Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 292; NSC Carriers &
Forwarding CC v Hyprop Investments Ltd 2013 1 SA 340 (GSJ) 345–346; Living Hands (Pty) Ltd v Ditz 2013 2
SA 368 (GSJ) 389–390; Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions 2012 1 SA 615 (GSJ)
620; cf Neethling and Potgieter 2014 THRHR 287 ff.
94 Cf further the judgment in Du Preez v Swiegers 2008 4 SA 627 (SCA) where the plaintiff deposited a sum of
money in the trust account of an attorney, and the latter, without first consulting the plaintiff, paid the money to
another person at the prompting of a client. The plaintiff based his claim for damages in the High Court on breach
of contract and alternatively delict. On appeal the first-mentioned ground was abandoned and the plaintiff succeed-
ed with his claim ex delicto on the basis that the attorney had caused the pure economic loss wrongfully and negli-
gently: “[A]n attorney is under a legal duty to deal with trust account money in such a way that loss was not
negligently caused, inter alia, to the depositor . . . even if the depositor is not an existing client of the practice.” See
further Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 588–589; Mukheiber v Raath 1999 3 SA 1065 (SCA)
1069 1075–1077; Neethling 2009 TSAR 575–576.
95 See infra 349 ff 357 ff.
96 However, this still leaves one with the legal policy factor raised in Lillicrap, Wassenaar and Partners v Pilkington
Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 500, ie, that extension of liability under the actio legis Aquiliae will not
readily be allowed in the field of contract law if the prejudiced party has adequate contractual remedies (see further
Thatcher v Katz 2006 6 SA 407 (C) 411–412). Grosskopf AJA declared: “In considering whether an extension of
Aquilian liability is justified in the present case, the first question that arises is whether there is a need therefor. In
my view, the answer must be in the negative, at any rate insofar as liability is said to have arisen while there was a
contractual nexus between the parties. While the contract persisted, each party had adequate and satisfactory rem-
edies if the other were to have committed a breach.” (Cf also Trio Engineered Products Inc v Pilot Crushtec Inter-
national (Pty) Ltd 2019 3 SA 580 (GJ) 588.) In Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd 2006 3 SA 138 (SCA) 145 ff (see further Thatcher 411–412) Brand JA identified himself with this approach in
Lillicrap and emphasised that “the point underlying the decision in Lillicrap was that the existence of a contractual
relationship enables the parties to regulate their relationship themselves, including provisions as to their respective
remedies. There is thus no policy imperative for the law to superimpose a further remedy”. He even went a step fur-
ther by finding no reason existed “why Aquilian liability should be extended to rescue a plaintiff who was in the
position to avoid the risk of harm by contractual means, but who failed to do so” (cf further Mediterranean Ship-
ping Co (Pty) Ltd v Tebe Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 495). The question arises how this ap-
proach can be reconciled with the judgment in Holtzhausen v ABSA Bank Ltd 2008 5 SA 630 (SCA) (delivered in
2004 but reported only in 2008), particularly because the judgment in Trustees, Two Oceans Aquarium Trust was de-
livered long after the one in Holtzhausen. Here, as indicated, the SCA emphatically held that an independent delict –
that is, where the delict relied on does not consist solely in the breach of a term of the contract but complies with the
general principles of delictual liability – may indeed found Aquilian liability despite the fact that the plaintiff could
have protected himself by contractual means. In our view, where a delictual action has not expressly been excluded in
a contract, the law should be loath not to allow the Aquilian action for an independent delict in a contractual setting
(see Neethling and Potgieter 2014 THRHR 287 ff 295–296). Similar criticism can be raised against the court’s ap-
proach in AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA). In casu, despite the absence of a concurrence of
actions (since there was no contract between the plaintiff and the defendant), the court found that such absence did
not constitute a difference in principle from the above cases where such concurrence was indeed present. The court
therefore denied a delictual claim because in its view the plaintiff could have protected itself in its contract with a
[continued ]
316 Law of Delict
Different factors may play a role in determining the prejudiced party’s choice of whether to
claim ex contractu or ex lege Aquilia. On this basis, he may then choose the action which will be
the most advantageous to him. Van Aswegen97 summarises the factors as follows:
(a) The extent of damages recoverable may differ because different measures limiting liability
apply.98
(b) The time for the computation of damages in the two instances differs.99
(c) The requirements for the capacity of persons for the two types of liability are such that, in a
given case, a person may “qualify” for delictual liability but not for liability for breach of con-
tract.100
(d) The liability of joint delictual wrongdoers differs from that of joint parties to a contract.101
(e) Vicarious liability differs in the two instances insofar as it may be more extensive in the case
of delict than for breach of contract.102
(f ) Unilateral waiver of his rights by a prejudiced party may extinguish the (possible) liability of
a delictual wrongdoer, as is the case with consent, whereas unilateral waiver of a contractual
right to performance cannot extinguish the other contracting party’s obligation to perform.103
(g) A contractual term excluding or limiting liability may, depending on the interpretation
thereof, apply only to contractual liability.104 A penalty clause will also probably not apply to
delictual liability.105
________________________
third party, but failed to do so. To our mind, in this case there was a compliance with all the requirements for
delictual liability and it appears unfair, unreasonable and unjust to exclude a delictual action against a negligent de-
fendant just because the plaintiff could have limited its liability in a contract with a third party (for a critical discus-
sion of AB Ventures, see Neethling and Potgieter 2012 THRHR 114–116).
97 Sameloop van Eise 452–453; see also Loubser and Midgley Delict 232–233; Van der Walt Studiehandleiding
11–12.
98 The extent of liability in the law of delict is not determined by a single yardstick (eg reasonable foreseeability), but
a flexible approach is adopted (supra 233). On the other hand, reasonable foreseeability is generally accepted as
the only criterion for the limitation of contractual liability. The extent of the damage may thus differ if the law of
delict should employ a different yardstick than the law of contract (see Van Aswegen Sameloop van Eise 328–330).
It has been submitted that this test might also profitably be employed in the law of contract (see Thoroughbred
Breeders’ Association of South Africa v Price Waterhouse 2001 4 SA 551 (SCA) 582–583), but this has not yet
happened.
99 In the law of delict the extent of the damage is usually measured with reference to the date of the commission of the
delict (supra 267). In the law of contract, on the other hand, the extent of the damage is usually measured with ref-
erence to the time of the conclusion of the contract (and not the breach thereof). Obviously these two calculations
may differ (Van Aswegen Sameloop van Eise 330–332).
100 To illustrate, reference may be made to the position of the minor. Although he may conclude a valid contract with-
out assistance, he cannot be sued for “breach of contract” since this involves an unenforceable natural obligation.
He may, nevertheless, qualify as a delictual wrongdoer and be sued as such (see idem 333–338).
101 In the law of contract the general rule is that if more than one contracting party is liable for the same performance,
then in the case of breach of contract each of them is only liable for his pro rata share of the performance. In the
law of delict, on the other hand, joint wrongdoers are jointly and severally liable for the full damage (infra 279).
Liability ex delicto may thus be wider than liability ex contractu (Van Aswegen Sameloop van Eise 338–341).
102 Eg the employer-employee relationship. The employer is vicariously liable for the delict of his employee if the
latter acted within the scope of his employment (infra 447). On the other hand, the employer can only be liable for
breach of contract by his employee if the latter acted in the execution of his employer’s (as contracting party) obli-
gations in terms of the contract (Van Aswegen Sameloop van Eise 341–343).
103 For this purpose an agreement between the parties to the contract is required (idem 343–348).
104 The party committing breach of contract may, therefore, still be delictually liable (idem 358–359).
105 Van Aswegen’s (Sameloop van Eise 361–362) argument that, as far as the law of delict is concerned, a penalty
clause would probably be contra bonos mores because it is in conflict with the compensation function of the Aqui-
lian action, appears to be correct. Accordingly, contractual liability can be extended much wider than delictual
liability by means of a penalty clause.
(h) Contributory negligence may only be raised against a delictual claim.106

(i) The onus of proof may differ in respect of contractual and delictual claims.107
(j) Different courts may have jurisdiction in claims for delict and breach of contract respectively.
(k) The rules of private international law or conflict of laws differ in respect of these two types
of claims.108
3.6 Exclusion clauses

As far as the above is concerned, parties to a contract may restrict their liability – contractual as
well as delictual – through a so-called exclusion (exemption) clause.109 The precise restriction on
the wrongdoer’s liability will depend on the interpretation of the clause concerned,110 and such
________________________
106 As seen (supra 207), the Apportionment of Damages Act 34 of 1956 applies only to delictual claims, and not to
damage suffered as a result of breach of contract. In certain circumstances it may thus be to the advantage of a con-
tributorily negligent plaintiff to institute a contractual action (see also Van Aswegen Sameloop van Eise 356–358).
107 In the case of a delictual action the onus is on the plaintiff to prove negligence on the part of the defendant. This
also applies to a delictual claim for damage to property against the person who was in possession of the property in
terms of lease, depositum, commodatum, pledge or locatio conductio (Van der Walt and Midgley Delict 81í82).
Where a claim is, however, instituted against such a person on the ground of breach of contract, then the onus of
proof is on the defendant to show that he was not negligent (ibid; see also Van Aswegen Sameloop van Eise
372–373).
108 As a rule the law of the place where the delict was committed (lex loci delicti), applies to delictual actions, while, with
regard to contractual actions, the law of the place where the contact was concluded (not breached) (lex loci contractus),
is applicable. See in this regard Van Aswegen Sameloop van Eise 373–378 379. The court that has jurisdiction on
the ground of delict may, eg, be convenient and advantageous to the plaintiff.
109 See in this regard Van der Walt and Midgley Delict 86í87; Van Aswegen Sameloop van Eise 352 ff; Loubser and
Midgley Delict 241–247. Liability for damage caused by intentional conduct may, however, not be excluded in this
manner (Van der Walt and Midgley Delict 86). After initial uncertainty as to whether gross negligence should be
treated in the same way as intent, the Appellate Division decided in Government of the Republic of South Africa v
Fibre Spinners & Weavers (Pty) Ltd 1978 2 SA 794 (A) 807 (see also First National Bank of SA Ltd v Rosenblum
2001 4 SA 189 (SCA) 201; cf Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA) 35) that the exclusion of
liability for gross negligence is permissible (see in this regard Van Aswegen Sameloop van Eise 355).
110 Cf Loubser and Midgley Delict 241–247; supra 134 on the pactum de non petendo. The courts follow a strict and
limiting approach: the exclusion of liability must be formulated clearly and unambiguously (“plainly”) to be en-
forceable (see, eg, First National Bank of SA Ltd v Rosenblum 2001 4 SA 189 (SCA) 195–196; Durban’s Water
Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA) 989; Johannesburg Country Club v Stott 2004 5 SA 511
(SCA) 516–517; Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA) 34; Van der Westhuizen v Arnold 2002 6
SA 453 (SCA) 468–469; Masstores (Pty) Ltd v Murray & Roberts Construction (Pty) Ltd 2008 6 SA 654 (SCA)
662 ff; Drifters Adventure Tours CC v Hircock 2007 2 SA 83 (SCA) 87; Walker v Redhouse [2007] 4 All SA 1217
(SCA) 1221; ER24 Holdings v Smith NO [2007] 4 All SA 679 (SCA) 683)). In Swinburne v Newbee Investments
(Pty) Ltd 2010 5 SA 296 (KZD) 307–308 the court pointed out that if the language of a disclaimer or exemption
clause is such that it exempts the proferens from liability in express and unambiguous terms, effect is to be given to
that meaning, but, if there is ambiguity in the language, it is to be construed against the proferens. The opinion of a
reasonable person is important in the interpretation of an exclusion clause. The application of these principles can
be illustrated by the following examples: In Stott the plaintiff’s husband was fatally struck by lightning on a golf
course. The court held that a provision excluding liability of the golf club for “personal injuries or harm howsoever
caused” to members and their children and guests, did not exclude the action of dependants and a claim for funeral
expenses. In Durban’s Water Wonderland, the plaintiff and her young daughter were injured when they fell during
a “jet ride”. The court had to answer three questions, two of which are relevant here: whether an exclusion clause in
a notice on the window of the ticket office formed part of the contract regulating use of the amusement park; and
whether the notice also excluded liability based on negligence. The court answered both question affirmatively, and
the defendant accordingly escaped liability. In Minister of Education and Culture (House of Delegates) v Azal 1995
1 SA 30 (A) the court concluded that a clause which limited the liability of the school as against the parents for
damage to property or the personal injury of children in respect of certain school activities, did not cover negli-
gence on the part of the teachers (cf further SAR & H v Lyle Shipping Co Ltd 1958 3 SA 416 (A); Government of
the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 2 SA 794 (A)). It has been decided that a
voetstoots clause only excluded contractual liability and not delictual liability (Humphrys v Barnes 2004 2 SA
577 (C) 582–583). In Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 285–287 the
court held that the exclusion clause that purported to exclude all statutory and common law terms, warranties or
[continued ]
318 Law of Delict
interpretation will influence the question of what remedies the prejudiced party has at his dis-
posal.111
4 Prescription of remedies
According to the Prescription Act 68 of 1969, a delictual debt prescribes (and the delictual
action is thus also extinguished) three years after it originated.112 Prescription commences to run
as soon as the debt is due and this occurs from the moment all the elements of a delict are
present, provided also that the creditor has knowledge (or ought reasonably to know) of the
identity of the wrongdoer and the facts from which the debt arises. But a creditor shall be
deemed to have such knowledge if he could have acquired it by reasonable care.113 The ending
of prescription may be suspended114 or interrupted.115
________________________
representations as to the quality or fitness of foodstuff, was contrary to public policy and unenforceable. Note that
the court in Stott 518–519 (see also Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA)) left open the question of
whether exclusion of liability for damages in the case of negligent homicide conflicted with the high value placed
on the inviolability of human life by the Bill of Rights (cf also Loubser and Midgley Delict 244–247). Cf Deacon v
Planet Fitness Holdings (Pty) Ltd 2016 2 SA 236 (GP) paras 26 ff (court’s discussion of exclusion clause probably
unnecessary obiter dicta in view of its finding that a delict had not been committed (see also Scott 2016 TSAR
757 765)).
111 The relevant term may, eg, only exclude the remedies for breach of contract, in which case the prejudiced party
may still institute the delictual action.
112 For general discussions, see Loubser Extinctive Prescription passim; Loubser and Midgley Delict 248 ff; Van der
Merwe and Olivier 283–291; Loubser and Reid Product Liability 138 ff; Saner 2010 LAWSA paras 123 ff; Neeth-
ling 2020 TSAR 182 ff; Sonnekus 2019 TSAR 575 (discussions of De Lange v Minister of Water and Environmental
Affairs 2019 4 SA 445 (SCA)); Klopper Damages 385–422. There are other Acts which lay down specific periods
of prescription or extinction, eg with regard to “third party” claims under the Road Accident Fund Act 56 of 1996
s 23, the period is two (or three or five) years (cf Gabuza v Road Acccident Fund 2020 2 SA 228 (GP) where it was
held that, where the last day of a three-year period in which to lodge a claim is a Saturday, the last day is extended
to the next day on which the claim may be lodged); that for claims regarding joint wrongdoers under the Appor-
tionment of Damages Act 34 of 1956 s 2, twelve months, as well as that for claims under the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 s 43 (see further Potgieter, Steynberg and Floyd Damages
346–348; Loubser and Midgley Delict 257–259). With regard to the recovery of debts from organs of state, the
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 has been brought in line with the
provisions of the Prescription Act 68 of 1969.
113 S 12 of the Prescription Act. See Links v Department of Health, Northern Cape Province 2016 4 SA 414 (CC)
where the court, in a medical malpractice suit, dealt authoritatively with the interpretation of s 12(3) of the Act and
the application of the relevant principles (for discussions, see Ditsela 2017 (Jan/Feb) De Rebus 30; Van der Merwe
2017 (Jan/Feb) De Rebus 32). Cf Spar Group Ltd v FirstRand Bank Ltd [2016] 4 All SA 646 (GP) paras 34–42.
See Loni v MEC for Health, Eastern Cape (Bhisho) 2018 3 SA 335 (CC) paras 34–35 for an example where a
plaintiff’s attempted reliance on prescription failed because he waited for seven years before he acted despite hav-
ing all the necessary facts upon which his claim was based.
114 S 13 of the Act. The ending of prescription will be delayed under certain circumstances, eg where the debtor is
outside the country, or the creditor is a minor or mentally ill (see Loubser and Midgley Delict 252–253).
115 Ss 14 and 15 of the Act. Prescription will be interrupted by an acknowledgement of liability by the debtor or by the
serving on the debtor of any process whereby the creditor claims payment from the debtor (see Loubser and
Midgley Delict 254–256).
Chapter 8
Joint wrongdoers
1 General
It goes without saying that damage can be caused not only by a single wrongdoer, but also by
more than one wrongdoer, ie, joint wrongdoers. At common law, a distinction was made
between joint wrongdoers and independent or separate wrongdoers (concurrent wrongdoers).
Where persons co-operated consciously to commit a delict, they were joint wrongdoers; where
more than one person by independent wrongful conduct contributed causally to the same
harmful consequence, they were considered to be concurrent wrongdoers. In accordance with
this distinction, the liability of the two kinds of joint wrongdoers was treated differently at
common law.1
Presently the position is regulated by the Apportionment of Damages Act 34 of 1956.2 The Act3
abolishes the common law distinction between joint wrongdoers and concurrent wrongdoers.4
Joint wrongdoers are now defined as persons who are jointly or severally liable in delict for the
same damage.5 6 A person may thus only be sued as a joint wrongdoer if he was indeed
________________________
1 See in general Van der Merwe and Olivier 292–307; Van der Walt and Midgley Delict 339–346; Burchell Delict
240–242; Klopper Damages 365–367; Lloyd-Gray Lithographers (Pty) Ltd v Nedcor Bank Ltd t/a Nedbank 1998 2
SA 667 (W) 671; Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 2000 4 SA 916 (SCA) 922–
923. According to the last-mentioned decision, the common law still applies to situations not covered by s 2(1) of
the Apportionment of Damages Act 34 of 1956. This means that joint wrongdoers in the common law sense are
denied a right of recourse in such instances.
2 The Act is also applicable to trade unions and their joint wrongdoers for damage caused during an organised protest
march (SATAWU v Garvas 2013 1 SA 83 (CC) 102–105).
3 S 2(1). See also Loubser and Midgley Delict 535–536.
4 See Pickitup Johannesburg SCO Ltd v Nair 2019 5 SA 540 (GJ) 553 fn 14.
5 See, eg, De Klerk v Minister of Police 2019 12 BCLR 1425 (CC) paras 82í85 where the Minister of Justice and the
Director of Public Prosecutions might be jointly and severally liable with the Minister of Police for the unlawful
detention of the plaintiff. “Same damage” refers to all the damage suffered by the plaintiff. If the plaintiff’s damage
is caused in part by one wrongdoer, in part by another wrongdoer and in part by both wrongdoers jointly, they are
not joint wrongdoers in terms of s 2 of the Act (Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA) 45;
however, see Wright v Medi-Clinic Ltd 2007 4 SA 327 (C)).
6 Where more than one person therefore causes separate damaging consequences with regard to a plaintiff, each is,
according to the ordinary principles of delict, only liable for the specific damage he has caused (Van der Merwe
and Olivier 293–294) and there is no question of joint wrongdoers (cf Minister of Communications and Public
Works v Renown Food Products 1988 4 SA 151 (C); Mkwanasi v Van der Merwe 1970 1 SA 609 (A) 622; Lloyd-
Gray Lithographers (Pty) Ltd v Nedcor Bank Ltd t/a Nedbank 1998 2 SA 667 (W) 671); Minister of Safety and
Security v Rudman 2005 2 SA 16 (SCA) 43–45; Wright v Medi-Clinic Ltd 2007 4 SA 327 (C) 369 ff). If, as in
Rudman, it is not possible to determine what the two wrongdoer’s separate contributions to the plaintiff’s damage
are, and action is instituted against only one of them, the court can on considerations of fairness hold that he is
liable for half of the damage. This wrongdoer has a common law right of recourse against the other wrongdoer for
half of the amount he has paid (Rudman 44; see further Neethling 2006 Obiter 369). In Wright the court inquired
whether the damage was divisible to determine whether two wrongdoers contributed separately to the damage. The
criteria for determining whether the damage was divisible or not were logic on the one hand, and pragmatism on
the other (359 ff 372). In casu the court found that part of the damage was indeed divisible and could therefore be
regarded as separate damage. In respect of the other part that was not divisible, the parties were jointly and
severally liable as joint wrongdoers, each for half thereof (378–379).
319
320 Law of Delict
delictually “liable” as against the plaintiff.7 If joint wrongdoers comply with this requirement,
the Act is applicable irrespective of whether they acted negligently or intentionally.8
Joint wrongdoers are in solidum liable for the full damage.9 The plaintiff therefore has the right
to sue whichever joint wrongdoer he chooses for the full amount of damages.10 Joint wrongdoers
may also be sued in the same action.11 If so, the court may order that the joint wrongdoers shall
________________________
7 Kohler Flexible Packaging (Pinetown) (Pty) Ltd v Marianhill Mission Institute 2000 1 SA 141 (D) 145. An
interesting case occurred in Maphosa v Wilke 1990 3 SA 789 (T). The defendant negligently drove a truck into a
stationary Putco bus. The driver of the bus was also negligent. The plaintiff, the defendant’s passenger, was injured
and he instituted a claim. On the ground of the bus driver’s negligence, the defendant joined both the owner (the
employer of the bus driver) and the insurer of the bus (in terms of the former Compulsory Motor Vehicle Insurance
Act 56 of 1972) as third parties (joint wrongdoers). The court had to decide, inter alia, whether the last-mentioned
two parties could be joint wrongdoers (with the defendant). Du Plessis AJ (797–799) answered in the affirmative
since both – although they were not delictual wrongdoers – were (jointly) liable in delict to the plaintiff for the
damage that the bus driver caused (jointly): the employer on the ground of vicarious liability for the delict of his
employee, and the insurer in terms of s 21(1) of the 1972 Act. According to Smith v Road Accident Fund 2006 4
SA 590 (SCA) 595–596, the Road Accident Fund is only liable against victims of motor vehicle accidents. If
damages are claimed for injuries for an amount greater than that which the Fund can be held liable for, the Fund
incurs no liability against the defendant who caused the victim’s (plaintiff’s) injuries and the Fund is accordingly
not a joint wrongdoer in the place of unidentified drivers who caused the plaintiff’s injuries together with the
defendant. The court (596 fn 5) did not wish to express itself about the correctness of the opposite conclusion
reached in Maphosa in respect of liability of the Fund against an identified driver. In Moshole v PUTCO (Pty) Ltd
2011 5 SA 38 (GNP) 43–46 the court held, in contrast to Maphosa, that the Fund was not a joint wrongdoer in
terms of s 2(10) of the Apportionment of Damages Act 34 of 1956 because the liability of the Fund for compen-
sation of victims of road accidents is statutory and not delictual in nature. The conflicting decisions in Maphosa and
Moshole will have to be resolved by a higher court. Cf further Harrington NO v Transnet (Ltd) 2007 2 SA 228 (C).
Note further that partners are liable as joint wrongdoers for a delict committed by an employee of the partnership
(Mdletshe v Litye 1994 3 SA 874 (E)).
8 In Randbond Investments (Pty) Ltd v FPS (Northern Region) (Pty) Ltd 1992 2 SA 608 (W) 616 ff (which is
regarded by Ahmed 2014 (4) PELJ 1531 as “the locus classicus for the view that the Act also applies to intentional,
as opposed to negligent, joint wrongdoers”) (cf Greater Johannesburg Transitional Metropolitan Council v ABSA
Bank Ltd t/a Volkskas Bank 1997 2 SA 591 (W) 609; Ahmed Contributory Intent 114–116; cf however Van der
Merwe and Olivier 302) the court held that the Act also applies to intentional, as opposed to negligent, joint
wrongdoers. The crux of Mahomed J’s decision (619–620) was that since the Act makes a radical departure from
the common law and does not restrict its application to negligent wrongdoers, the words “liable in delict” (s 2(1))
include negligent as well as intentional wrongdoing. The difficulty of apportioning liability between two joint
wrongdoers who both acted intentionally can, according to the judge, be overcome by taking the “degrees of
culpability” (620) of the wrongdoers into account (eg, a wrongdoer with dolus directus is more culpable than one
with dolus eventualis). In the same vein it was held in Lloyd-Gray Lithographers (Pty) Ltd v Nedcor Bank Ltd t/a
Nedbank 1998 2 SA 667 (W) 672–673 that the Act is also applicable where one joint wrongdoer acts intentionally
and the other negligently. According to Boruchowitz J (672–673), “[i]ntention and negligence are not mutually
exclusive concepts. It is logically possible for both to be present simultaneously . . . Apportioning liability between
intentional and negligent wrongdoers is not an impossible task. It is a question of assessing the relative degrees of
blameworthiness. In so doing, the Court is not required to act with precision or exactitude but to assess the matter
in accordance with what it considers to be just and equitable.” These decisions can be supported (see Neethling
1998 THRHR 519-521, 2003 SALJ 92 fn 25; Dendy 1998 THRHR 516–517; Neethling and Potgieter 1992 THRHR
661–662; cf also Minister van Wet en Orde v Ntsane 1993 1 SA 560 (A) 569; contra nevertheless Potgieter 1998
THRHR 731 ff). The SCA has until now sidestepped the issue by holding that the common law, which denies
intentional wrongdoers a right of recourse, still applies in these cases. (ABSA Bank Ltd v Bond Equipment
(Pretoria) (Pty) Ltd 2001 1 SA 372 (SCA) 381; cf Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty)
Ltd 2000 4 SA 916 (SCA) 921–923; Neethling 2003 SALJ 92–93; see also supra fn 1). If one accepts (as argued
supra 167 200 fn 267) that intent simultaneously constitutes negligence, and that an intentional act as a rule
amounts to at least a 100% deviation from the norm of the reasonable person, apportionment can also take place on
this basis between the joint wrongdoers. The wrongdoer’s degree of culpability or blameworthiness, as expressed
by his percentage-deviation from the norm of the reasonable person, should thus play an important part in enabling
the court to apportion the damages between the joint wrongdoers “in a just and equitable” manner, having regard to
the degree of their “fault in relation to the damage” (cf s 2(6) 2(7) 2(8)(a)) (for a detailed explanation see Neethling
1998 THRHR 521; Neethling and Potgieter 1992 THRHR 661–662; cf also Van der Walt and Midgley Delict 344;
Ahmed Contributory Intent 113 ff; contra Potgieter 1998 THRHR 732 ff).
9 S 2(1).
Chapter 8: Joint wrongdoers 321
be jointly or severally liable, and that payment by one of them shall absolve the others from any
liability to the plaintiff.12 If the court is satisfied that all the joint wrongdoers are before it, it may
apportion the damages among them on the basis of their relative degrees of fault, and may give
judgment against every wrongdoer for his part of the damages.13
Where a plaintiff or a defendant in an action notifies a joint wrongdoer of the action before litis
contestatio,14 the defendant may claim recourse (contribution) from that joint wrongdoer if he
(the defendant) has paid the full amount of damages to the plaintiff as a result of a judgment
against him.15 The right of recourse or recovery of such a defendant is directed at claiming an
amount which, taking into account the respective degrees of fault of the joint wrongdoers, is
considered to be fair.16 If the plaintiff recovers only part of his damages from a joint wrongdoer,
he may sue any other wrongdoer for the balance.17 If a joint wrongdoer pays more than is jus-
tified by the degree of his fault, he may exercise his right of recourse against any of the other
joint wrongdoers.18
2 Special cases
Two instances of joint wrongdoers require closer scrutiny as a result of the drastic departure
from the existing legal position brought about by the Apportionment of Damages Amendment
Act19 and the Matrimonial Property Act.20 These instances involve the prejudice suffered by a
spouse as a result of the conduct of the other spouse and a third party, and the prejudice suffered
________________________
10 Cf s 6(a); Lloyd-Gray Lithographers (Pty) Ltd v Nedcor Bank Ltd t/a Nedbank 1998 2 SA 667 (W) 673–674; cf
Boruchowitz J’s (idem 674–675) valid criticism of Holscher v ABSA Bank 1994 2 SA 667 (T) in this respect (see
also Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 2000 4 SA 916 (SCA) 921–923;
Neethling 1998 THRHR 521–522; Dendy 1998 THRHR 512 ff; Ahmed Contributory Intent 116–126).
11 S 2(1) (see Life Healthcare Group (Pty) Ltd v Suliman 2019 2 SA 185 (SCA) 192–193; cf Barley v Moore [2017] 3
All SA 799 (WCC) paras 92í93). If so, the court may, at the request of the plaintiff or a joint wrongdoer, order a
separation of trials or another (in the court’s opinion) fair and just ruling (s 2(3)). In Pickitup Johannesburg SCO
Ltd v Nair 2019 5 SA 540 (GJ) the plaintiff instituted a claim against the defendant who filed a third-party notice
which sought orders declaring third parties to be jointly and severally liable together with her to the plaintiff. The
third parties excepted to the third-party notice. The court did not agree and held that the common law and the
preponderance of authority stand for the opposite conclusion and that the defendant is in law entitled, as one joint
wrongdoer, from claiming a contribution from the third parties as other joint wrongdoers (unless the right to a
contribution is barred principally by the application of the maxims ex dolo malo non oritur actio or ex turpi causa
non oritur actio) (paras 67í69).
12 S 2(8). The one who has paid still has, of course, a right of recourse against the other. Cf TS v Life Healthcare
Group (Pty) Ltd 2017 4 SA 580 (KZD) 584.
13 S 2(8). Eg: The plaintiff, A, suffers damage amounting to R20 000. B, C, D and E, all joint wrongdoers, are before
the court as defendants. The respective degrees of fault of the defendants are 20%, 30%, 40% and 10%. The court
may now give judgment against B for R4 000, against C for R6 000, against D for R8 000 and against E for
R2 000. (Cf Maphosa v Wilke 1990 3 SA 789 (T) 800–801.)
14 S 2(2); see Absa Brokers (Pty) Ltd v RMB Financial Services 2009 6 SA 549 (SCA); Picbel Groep Voorsorgfonds
(in liquidation) v Somerville, and related matters 2013 5 SA 496 (SCA). Note that the effect of the notice is not to
make the addressee a party to the action. Such effect is brought about by serving a third-party notice (under
Supreme Court Rule 13) on the person involved (Van der Merwe and Olivier 300–301; Van der Walt and Midgley
Delict 343). See also Picbel regarding the interpretation and application of s 2(12) and s 2(13) of the Act.
15 S 2(4) 2(6)(a). If no such notice has been given, there is no right of recourse against a joint wrongdoer unless the
court condones the neglect for good cause (s 2(4)(b); Wapnick v Durban City Garage 1984 2 SA 414 (D) 422 ff;
Van der Walt and Midgley Delict 343; Van der Merwe and Olivier 301–302).
16 If A sues B for R10 000 and B pays the full amount, B may, if he has notified joint wrongdoer C, institute a
recourse action against C. If B was, eg, 40% negligent and C 60%, B will be able to claim R6 000 from C.
17 S 2(5) 2(8).
18 S 2(7).
19 58 of 1971 (inserted as s 2(1A) and (1B) of the Apportionment of Damages Act 34 of 1956).
20 88 of 1984.
322 Law of Delict
by a person as a result of the death or injury of another person in circumstances where the
deceased or injured person and a third party both contributed to such death or injury.
2.1 Prejudice suffered by a spouse as a result of the conduct of the other

spouse and a third party
2.1.1 Marriage in community of property
Prior to 1971, a spouse married in community of property could not be regarded as a joint
wrongdoer with a third party against the prejudiced (innocent) spouse. This state of affairs
resulted from the rule that a spouse married in community of property could not commit a delict
against the other spouse and hence such spouses could not sue one another ex delicto.21 The
reason for this was the existence of the joint (common) estate – liability would be senseless,
because the innocent spouse would have to be compensated from the single joint estate with
assets which would then merely be returned to it; a case therefore of taking out of one pocket
only to fill the other.22
In accordance with this earlier position, the courts ruled that the innocent spouse, whether the
husband as controller of the joint estate, or the husband or the wife with a claim for compen-
sation for bodily injury, could claim the full amount of damages from the third party. The third
party could not afterwards exercise a right of recourse against the guilty spouse, because the
latter was not regarded as being a joint wrongdoer.23 This was the case whether the husband as
administrator of the joint estate claimed patrimonial damages, or the husband or wife claimed
compensation (non-patrimonial damages) for bodily injuries. Furthermore, most decisions
correctly took the view that the third party could also not claim a reduction of damages in
accordance with section 1(1)(a) of the Apportionment of Damages Act,24 simply because the
plaintiff had no “fault in relation to the damage” (as the section requires) and also because the
other spouse’s contributory fault could not be imputed25 to him.26
The amendment of the Apportionment of Damages Act in 1971 brought about a change to this
unsatisfactory state of affairs for the third party. A spouse married in community of property
________________________
21 Eg Tomlin v London and Lancashire Insurance Co Ltd 1962 2 SA 30 (D) 32–33; Kleinhans v African Guarantee
and Indemnity Co Ltd 1959 2 SA 619 (E) 626.
22 See also Van der Merwe and Olivier 352.
23 See again Kleinhans v African Guarantee and Indemnity Co Ltd 1959 2 SA 619 (E) 626.
24 34 of 1956; supra 199 ff.
25 See with regard to patrimonial damages, eg, Van Schalkwyk v Folscher 1974 4 SA 967 (NC) 968–969; Grove v
Ellis 1977 3 SA 388 (C) 389–390; Labuschagne v Cloete 1987 3 SA 638 (T) 645–647. (The converse is also true. If
the husband, as administrator of the joint estate, institutes an action for damages (eg for medical expenses incurred
on behalf of himself and his wife) in circumstances where he and the third party were negligent, then his claim
(also in regard to his wife’s costs) is subject to a proportional reduction under s 1(1)(a) (Kleinhans v African
Guarantee and Indemnity Co Ltd 1959 2 SA 619 (E) 629).) In Van Zyl v Gracie 1964 2 SA 434 (T) the court,
however, gave a different judgment. A motor car, a joint asset of a husband and wife, was damaged as a result of
the negligence of the wife and a third party. The husband, as administrator of the joint estate, claimed the full
amount of damages from the third party. Strictly speaking, s 1(1)(a) is not applicable – the husband as the plaintiff
was definitely not contributorily negligent. The court nevertheless took the wife’s contributory negligence into
account and apportioned the damages accordingly. Therefore we are concerned with the identification of fault – the
wife’s fault is imputed to the husband as the plaintiff because the husband and wife are joint owners of the motor
car and the husband, in fact, is claiming on behalf of both in favour of the joint estate (see also Rosen v Pretorius
1970 2 PH J32 (N)). The last two decisions were, however, in the light of the clear provisions of s 1(1)(a), correctly
and expressly overruled in later cases (see the first three cases supra; cf also Kapp v Protea Assurance Co Ltd 1981
3 SA 168 (A) 172).
26 See with regard to non-patrimonial damages, eg, Kleinhans v African Guarantee and Indemnity Co Ltd 1959 2 SA
619 (E) 626–627; cf also Pretoria Municipality v Esterhuizen 1928 TPD 678.
may now27 be deemed to be a joint wrongdoer with a third party against the other spouse.
Accordingly, the prejudiced (innocent) spouse may recover his or her full claim for patrimonial
or non-patrimonial damages from the third party, while the latter then has a right of recourse
against the joint estate through the guilty spouse as joint wrongdoer.28 However, despite the fact
that this spouse is now regarded as a joint wrongdoer with the third party, the innocent spouse
may still not – because of the existence of the joint estate – institute an action against the
former.29
Since 1984, the position has been further regulated by the Matrimonial Property Act.30 The Act31
draws a definite distinction in respect of delictual damages between patrimonial damage and
non-patrimonial damage. Compensation for non-patrimonial damage becomes the separate
property of the spouse to whom it was awarded. The third party may thus not recover any part
thereof when exercising his right of recourse, because it does not form part of the joint estate.
Damages recovered for patrimonial damage, on the other hand, fall into the joint estate, and are
therefore subject to the third party’s right of recourse. In addition, the Act,32 as amended by
Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae),33 allows
the innocent spouse to institute an action for compensation of patrimonial and non-patrimonial
loss, flowing from personal (bodily) injuries, against the other spouse. This is possible because
this compensation is now the separate property of the innocent spouse, and the objection that the
existence of the joint estate made such a claim senseless, has therefore disappeared. The
innocent spouse may thus sue the other spouse, or the third party, or both. Finally, the Act34
provides that if a spouse married in community of property is delictually liable for damages,35
such compensation (and any costs awarded against him) is to be recovered from his separate
estate, if any, before the plaintiff has recourse to the joint estate. If the joint estate is indeed
utilised for this purpose, an adjustment in favour of the innocent spouse (or his estate) must take
place upon dissolution of the joint estate.
2.1.2 Marriage out of community of property
Since spouses married out of community of property each have their own estate, there is no joint
estate which may prevent them from suing one another ex delicto.36 There is, therefore, no
________________________
27 In terms of Act 34 of 1956 s 2(1A) which provides: “A person shall for the purposes of this section be regarded as a
joint wrongdoer if he would have been a joint wrongdoer but for the fact that he is married in community of
property to the plaintiff.” See also Van der Walt and Midgley Delict 340; Loubser and Midgley Delict 536–537.
28 Cf in this regard SA Onderlinge Brand- en Algemene Versekeringsmpy Bpk v Van den Berg 1976 1 SA 602 (A);
Grove v Ellis 1977 3 SA 388 (C) 390; Labuschagne v Cloete 1987 3 SA 638 (T) 647. Cf however s 19 Act 88 of
1984 (infra 323).
29 Delport v Mutual and Federal Ins Co Ltd 1984 3 SA 191 (D) 194–195.
30 88 of 1984. The proviso to Act 34 of 1956 s 2(1A) is abolished by s 33 of this Act.
31 S 18(a) which provides that notwithstanding the fact that a spouse is married in community of property, “any
amount recovered by him or her by way of damages, other than damages for patrimonial loss, by reason of a delict
committed against him or her, does not fall into the joint estate but becomes his or her separate property”. See
Van den Berg v Van den Berg 2003 6 SA 229 (T) for an interpretation of this article (see also Mailula 2005 THRHR
308 ff for a critical discussion).
32 S 18(b) which provides that notwithstanding the fact that a spouse is married in community of property, “he or she
may recover from the other spouse damage[s] in respect of bodily injuries suffered by him or her and attributable
either wholly or in part to the fault of that spouse and these damages do not fall into the joint estate but become the
separate property of the injured spouse”. Thus this section amends the decision in Delport v Mutual and Federal
Ins Co Ltd 1984 3 SA 191 (D) (supra fn 29) in the present context.
33 2006 4 SA 230 (CC) (see Sonnekus 2006 TSAR 848 ff; Robinson and Prinsloo 2015 (5) PELJ 1670 ff; cf Van der
Merwe v Road Accident Fund 2007 1 SA 176 (C); see further Neethling 2010 THRHR 109–114.
34 S 19.
35 Or if a contribution under the Apportionment of Damages Act 34 of 1956 can be claimed from him.
36 Rohloff v Ocean Accident and Guarantee Corp Ltd 1960 2 SA 291 (A) 304. Note that the courts have previously
held the opinion that the actio iniuriarum is not available mainly because such an action between spouses stante
matrimonio is considered as being undesirable from a legal policy point of view (Mann v Mann 1918 CPD 89; C v
C 1958 3 SA 547 (SR)). Now, however, see Van der Walt v Van der Walt 2009-03-26 case no 08/42736 (SG).
324 Law of Delict
reason why one spouse may not be a joint wrongdoer with a third party against the other spouse.
The Apportionment of Damages Amendment Act 58 of 1971 and the Matrimonial Property Act
88 of 1984 do not change this position.37
2.2 Prejudice suffered by a person as a result of the death or injury of

another person through the conduct of the deceased or injured
person and a third party
2.2.1 Prejudice as a result of death
The focus is on the situation where a dependant suffers loss of support as a result of the conduct
of both the deceased breadwinner and a third party.38 Prior to the amendment of the Apportion-
ment of Damages Act,39 the third party and the deceased estate could not be considered to be
joint wrongdoers, as the so-called last opportunity rule of the common law was still applicable.40
This meant that if the breadwinner had the last opportunity to avoid his death, his dependants
had no claim against the third party, but if the third party had the last opportunity, their claim
was satisfied in full.
This state of affairs was changed drastically by the amendment.41 The last opportunity rule was
abolished and the third party and the deceased estate are considered to be joint wrongdoers with
regard to the loss of support.42 In principle, this means that the dependant may now claim the
full amount of damages from either the third party or the deceased estate, and that there is a right
of recourse between the two joint wrongdoers. If one of the joint wrongdoers pays the damages
in full, he may claim a contribution from the other.
The Act43 further regulates the way in which the court must handle the dependant’s claim for
loss of support. The court may44 calculate the amount to be awarded in damages in respect of the
loss of support by subtracting any benefit derived by the plaintiff (under the law of testate or
intestate succession45) from the deceased estate, from the estimated value of the support which
the plaintiff has lost. If the third party has paid this amount to the plaintiff in full, he naturally
still retains his right of recourse against the deceased estate. However, in respect of this right of
recourse, the Act46 further provides that if the court deducts such benefit from the estimated loss
of support, the prejudiced party may not be deprived of this benefit.47
________________________
37 See also Van der Merwe and Olivier 359–360.

38 For a detailed discussion of the action of dependants, see infra 332 ff.
39 Act 34 of 1956 s 2(1B).
40 The Apportionment of Damages Act 34 of 1956 initially did not change the common law position in this regard
(Van der Merwe and Olivier 163–164; supra 199).
41 Van der Merwe and Olivier 340; Loubser and Midgley Delict 557–558.
42 Act 34 of 1956 s 2(1B) provides: “Subject to the provisions of the second proviso to subsection (6)(a), if it is
alleged that the plaintiff has suffered damage as a result of any injury to or the death of any person and that such
injury or death was caused partly by the fault of such injured or deceased person and partly by the fault of any other
person such injured person or the estate of such deceased person as the case may be, and such other person shall for
the purposes of this section be regarded as joint wrongdoers.”
43 See the second proviso in terms of s 2(6)(a) which provides “that if the court, in determining the full amount of the
damage suffered by the plaintiff referred to in sub-section (1B) deducts from the estimated value of the support of
which the plaintiff has been deprived by reason of the death of any person, the value of any benefit which the
plaintiff has acquired from the estate of such deceased person no contribution which the said joint wrongdoer may
so recover from the estate of the said deceased person shall deprive the plaintiff of the said benefit or any portion
thereof ”.
44 Thus the court has a discretion.
45 Cf however Davel Skadevergoeding aan Afhanklikes 84.
46 Supra fn 43.
47 The following example may serve as an illustration: A dies as a result of a motor car collision between himself and
B. A was 80% negligent and B was 20% negligent. The estimated value of the loss of support suffered by C, A’s
spouse, is R10 000 while she receives a benefit of R5 000 by way of inheritance from A’s estate. Suppose that the
[continued ]
2.2.2 Prejudice as a result of injury

The first situation to be considered is where the duty of support of a breadwinner (for example
a father or husband) has been increased48 as a result of an injury to a dependant in circum-
stances where the dependant and a third party contributed to the injuries.49 Prior to the amend-
ment of the Apportionment of Damages Act in 1971,50 the courts refused to consider a child51
to be a joint wrongdoer with a third party as against his breadwinner (father).52 According to
the Act,53 the child and the third party are now deemed to be joint wrongdoers as against the
father. He, as plaintiff, may in principle sue any joint wrongdoer and the wrongdoer who pays
out has a right of recourse against the other. In practice, he will probably sue the third party
rather than his own child.
A further example of persons who suffer damage as a result of injury to another person, is the
case of a master being harmed as a result of an injury to his domestic servant.54 If the conduct of
both the domestic servant and the third party caused the injuries, they are deemed to be joint
wrongdoers against the master in terms of the Apportionment of Damages Act.55
A problematic case, however, is where a dependant suffers loss of support through the conduct
of the injured breadwinner and a third party.56 Prior to 1971, the decision in De Vaal v Messing57
declared that the dependant had no claim in such a case. The court argued that the dependant
________________________
court adjusts C’s actionable loss of support to R5 000 (the estimated value minus the benefit) and B pays the full
amount of R5 000 to C. B then has a right of recourse of R4 000 (80% of R5 000) against A’s estate provided that
the R5 000 inheritance that C should receive, is not affected. It therefore follows that if the value of A’s estate does
not exceed the amount of the inheritance, B will have to bear the full amount of R5 000 loss of support (in spite of
the fact that he contributed only 20% to the damage).
48 Through, eg, medical expenses.
49 See in general for a discussion of the breadwinner’s action, infra 331.
50 Act 34 of 1956 s 2(1B).
51 The position of the prejudiced spouse is discussed supra 322–323.
52 Saitowitz v Provincial Insurance Co Ltd 1962 3 SA 443 (W) 445–446. The court stated: “But in any event it is
difficult to imagine on what basis a son can be liable to his father ex delicto for medical expenses incurred by a
father as a result of the son’s negligence, and so become a joint wrongdoer vis-à-vis his father in terms of the Act.
The liability resting on a father to pay for such expenses is one which arises by operation of law . . . and I know of
no authority which would enable a father to sue a son for the recovery of such expenses.” (See Van der Merwe and
Olivier 294–297 for a valid criticism of this decision.) In Bridgman NO v Witzenberg Municipality 2017 3 SA 435
(WCC) an 18-year-old woman (L) with a mental disability (she functioned cognitively at the level of a six-to eight-
year-old child) was abducted and raped by three youths at a holiday resort where she was staying with her adoptive
parents. The resort was owned, managed and controlled by the defendant. The municipality averred that L’s parents
committed a delict as against L and should therefore be joined as joint wrongdoers (third parties) in the action. In
our law, because of the close relationship between parents and children, children will probably have no action
against their parents. Actions between parents and children should, on ethical grounds, be viewed with cir-
cumspection. As far as is known, a child has never succeeded in our law with a delictual claim against its parent
(see Saitowitz; Neethling and Potgieter 1992 THRHR 480–484; Neethling 2016 THRHR 533–350). By extension, it
has also never been considered whether the child may institute action against a parent as joint wrongdoer (third
party) where the child’s damage was caused by the negligent conduct of both a defendant and the parent. Contrary
to what was previously contended (cf Neethling and Potgieter 2017 (1) LitNet Akademies 389–400), s 2(1B) of the
Apportionment of Damages Act 34 of 1956 is not applicable in a case such as the present as the provision applies to
a situation where someone suffers damage as a result of the injury or death of another caused partly by the conduct
of the injured person as well as a third party. Be that as it may, in Bridgman it seems that Donen AJ, without further
ado, proceeded on the basis that it was indeed possible for a parent to be a joint wrongdoer in a delictual action by
its child (see also Neethling and Potgieter 2018 THRHR 328).
53 S 2(1B); supra fn 50.
54 See in general in regard to the action of the master infra 332; see, however, Pike v Minister of Defence 1996 3 SA
127 (Ck) 130–132 where White J held that the master’s action has been abrogated by disuse.
55 S 2(1B); supra fn 50.
56 For a detailed discussion of the action of dependants in the case of injury of the breadwinner, see infra 341–342.
57 1938 TPD 34 38; confirmed in Brooks v Minister of Safety and Security 2009 2 SA 94 (SCA) 99–100 (for criticism
see Neethling and Potgieter 2009 Obiter 407–408); see further Minister of Safety and Security v Madyibi 2010 2
SA 356 (SCA) 359; infra 342.
326 Law of Delict
simply did not suffer damage because the breadwinner himself could institute an action for loss
of future income as a result of his injuries. This argument, however, is not relevant in all cases.
If, for example, the breadwinner was 80% negligent with regard to his own injuries, it follows
that he will be able to claim only 20% of his loss of future income, and in all probability this
amount will be inadequate if he is to support his dependant as in the past. Therefore, the
dependant definitely suffers loss of support. For this reason, and also due to the fact that the
wording of the Apportionment of Damages Act now covers the present situation,58 the depend-
ant should have an action and the breadwinner and the third party should be deemed to be joint
wrongdoers.
________________________
58 Act 34 of 1956 s 2(1B) expressly includes all cases where someone suffers damage “as a result of any injury to or
the death of any person” (emphasis added); see also Van der Merwe and Olivier 340–341; cf however Boberg 1971
SALJ 453–454.
Part III
Forms of delict
In the following three chapters some specific forms of delict are discussed. Firstly,
attention is given to forms of delict involving patrimonial loss (damnum iniuria datum),
thereafter to forms of impairment of personality (iniuria) and finally to some instances of
delictual liability without fault.
Chapter 9
Forms of damnum iniuria datum
1 Introduction
As stated earlier,1 it is useful and even necessary to deal separately with some of the specific
forms of damnum iniuria datum (ie, delicts involving patrimonial damage). These forms require
discussion either because distinctive rules within the framework of the general principles of
delict have been developed in respect of them, or, where they have recently crystallised and
consequently have no such rules, because the existing general principles need to be adapted or
applied in a particular way.
The forms discussed are patrimonial loss suffered by a person as a result of the death or injury of
another person (a distinction is made between the action of dependants of the injured or
deceased person and action of non-dependants); emotional shock; pure economic loss; negligent
misrepresentation; interference with a contractual relationship; unlawful competition; and
product liability. These forms, some of which overlap to a certain extent, are not exhaustive.
2 Injury or death of another person
2.1 Action of non-dependants

The Aquilian action is not at the disposal of every person who suffers patrimonial damage as a
result of the wrongful and culpable injury to or death of another person.2 Our courts have held
that loss suffered by the following persons is not recoverable:
(a) Contracting parties Persons who stand or stood in a contractual relationship to the injured
or deceased person cannot claim for the loss they suffered where the injury or death constituted a
negligent interference with the contractual relationship.3 This is dictated by legal policy.
According to the Appellate Division in Union Government v Ocean Accident and Guarantee
Corporation Ltd,4 the opposite view may lead to an “unmanageable situation”:
It is easy to imagine the absurdities that would arise if all persons contractually linked to the injured [or
deceased] person could sue the careless injurer for the loss suffered by them. The case was put to us of
the injured building contractor who in consequence of his injury has to discontinue his contract, so that
his employees and the building owner and the architect and his sub-contractors and their employees are
all put to some loss. Insurance companies would also be a wide class of plaintiffs who could bring
actions when persons insured by them were negligently injured or, presumably, killed, if the extension of
liability contended for were recognised. In fact it would be a rare accident that did not give occasion for
a crop of actions at the suit of persons who had made contracts with the injured party.
________________________
1 Supra 5–6.
2 Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 3 SA 295 (A) 304.
3 See, however, infra 368 ff where interference with a contractual relationship as a separate form of damnum iniuria
datum is discussed in detail.
4 1956 1 SA 577 (A) 585–586. Cf Loubser and Midgley Delict 345.
329
330 Law of Delict
In accordance with this view, it was decided that an employer cannot institute the Aquilian
action for loss suffered as a result of injury to an employee.5 Similarly, a person who has a
contractual (personal) right of support cannot in principle claim for loss of support as a result of
the death or injury of the person who was under a duty to support him or her.6
(b) Heirs and legatees An heir or legatee has no claim for damages on the ground that the
premature death of the deceased had probably prevented his future estate from being larger. In
Lockhat’s Estate v North British and Mercantile Insurance Co Ltd7 the court stated clearly that
heirs and legatees of the deceased . . . have no claim upon the wrongdoer. They may have inherited less
than they might have done had the deceased lived longer, but that gives them no right against the wrong-
doer.
The most important reason for refusing an action is probably the fact that the fortune of an estate
is unpredictable and that an heir will consequently not be in a position to prove his loss. Instead
of growing larger, the estate might become appreciably smaller in the future. Any attempt to
determine the future value of the estate would amount to pure speculation.8
In contrast with the previous two instances, the Aquilian action is available to the following
persons for loss suffered as a result of the death of or injury to another person:
(a) Executor The executor of the estate of the deceased, whose death was caused in a wrongful
and culpable manner, may in certain cases claim damages from the wrongdoer on behalf of the
estate. This includes compensation for medical expenses (that were incurred to treat the
eventually fatal injuries of the deceased), loss of income (from the time of the injury of the
deceased until his death) and funeral expenses.9 Except where litis contestatio occurred before
the death of the deceased, the executor cannot, however, claim compensation for the loss of the
deceased’s future income or earnings. The reason is that the deceased is not regarded as an asset
in his own estate which can be destroyed. Thus his death does not in itself bring about an
actionable financial loss.10
(b) Heirs and immediate family: funeral expenses Should an heir or a member of the
deceased’s immediate family (such as his spouse, parent or child) instead of the executor of the
estate meet the funeral expenses, the former may recover his expenses from the wrongdoer. The
claim for compensation in this regard is based on the duty to bury the deceased.11
________________________
5 Ibid. See also Pike v Minister of Defence 1996 3 SA 127 (Ck) 130. At common law an exception existed in the case
of the injury of a domestic servant (see Union Government v Ocean Accident and Guarantee Corporation Ltd 1956
1 SA 577 (A) 586; infra 370; see however Pike 130–132).
6 Nkabinde v SA Motor and General Insurance Co Ltd 1961 1 SA 302 (N); Amod v Multilateral Motor Vehicle
Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA); Neethling and Potgieter
2001 THRHR 484 ff; infra 336–338 at the discussion of the action of dependants.
7 1959 3 SA 295 (A) 304. Reinecke 1976 TSAR 50–56; Boberg Delict 540.
8 In Witham v Minister of Home Affairs 1989 1 SA 116 (ZH) 132–133 the claim was also rejected mainly on the
ground that the alleged damage was of a speculative nature. In this case the plaintiff’s wife was wrongfully and
culpably killed by the police. The plaintiff was not a dependant of his wife, but nevertheless claimed damages, inter
alia, for loss of income from his wife’s business which had to be closed as a result of her death. The court decided
that the projected profits from the business must be regarded as purely speculative and refused to allow the Aquilian
action. Cf Loubser and Midgley Delict 287–288.
9 Cf also infra fn 11 in respect of funeral expenses.
10 Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 3 SA 295 (A) 304; Du Bois v MVA Fund
1992 4 SA 368 (T) 371. The question of whether the executor may claim compensation as a result of the loss of a
conditional right which vested in the deceased before his death, was left open by the Appellate Division in De Vos
v SA Eagle Versekeringsmaatskappy Bpk 1985 3 SA 447 (A) 451 (see supra 257 fn 16 for a discussion of this
case). An executor may in principle sue anyone (also his predecessor) who caused damage to the assets of the
deceased estate (Lindsay v Stofberg 1988 2 SA 462 (C)). Cf Loubser and Midgley Delict 288.
11 Rondalia Assurance Corporation of SA Ltd v Britz 1976 3 SA 243 (T) 245–246. For the purpose of the actio
funeraria “spouse” also includes a spouse from a black customary marriage (Finlay v Kutoane 1993 4 SA 675 (W)
682–682). The extent of the damages that may be claimed is not limited to the “bare act of interment”, but includes also
[continued ]
Chapter 9: Forms of damnum iniuria datum 331
(c) Persons having a duty of support In principle, a person who bears a duty of support (such
as a father or a husband) may institute the Aquilian action against a wrongdoer who wrongfully
and negligently injures the former’s dependant (such as a child or a wife) and thereby adds
additional liabilities to his duty (for example, medical costs or household expenses).12 This claim
for compensation flows from the duty of the person involved to support his dependants.13 14
Strangely enough, however, according to our courts the action is not based on a delict committed
against the person who has the duty of support, but on non-compliance with a duty of care
towards the dependant.15
This view is unacceptable. One may assume – in accordance with general legal convictions –
that there is a legal duty not to increase the scope of a person’s duty of support in an unreason-
able manner. It is self-evident that causing injury to the dependant and the resultant expenses in
principle constitute a breach of this duty, and consequently a delict against the provider.16 17 By
implication, this view has also been evident from the Apportionment of Damages Act18 since
1971. Where the patrimonial loss was caused by the negligent behaviour of both the third party
and the dependant, they are considered to be joint wrongdoers, and thus each has committed a
delict against the provider.19 Seen in this light, the latter’s claim is undoubtedly based on a delict
committed against himself.20
________________________
all “incidental items as are reasonable in the circumstances”. Funeral expenses thus include, inter alia, reasonable
expenditure on the preparation of the body, the coffin, wreaths, transport (eg petrol costs for the funeral),
telephone calls (eg to notify the family of the time and place of the funeral) (Britz 246–248) and the tombstone
(Commercial Union Assurance Co of SA Ltd v Mirkin 1989 2 SA 584 (C)). Cf Loubser and Midgley Delict 346.
12 Eg Nieuwenhuizen v Union and National Insurance Co Ltd 1962 1 SA 760 (W); Saitowitz v Provincial Insurance
Co Ltd 1962 3 SA 443 (W); Neuhaus v Bastion Insurance Co Ltd 1967 4 SA 275 (W); Schnellen v Rondalia
Assurance Corp of SA Ltd 1969 1 SA 517 (W); Bester v Commercial Union Versekeringsmaatskappy van SA Bpk
1973 1 SA 769 (A); Erdmann v Santam Insurance Co Ltd 1985 3 SA 402 (C) 409; Lawrence v Kondotel Inns (Pty)
Ltd 1989 l SA 44 (D); cf Guardian National Insurance Co Ltd v Van Gool 1992 4 SA 61 (A) (1992 1 SA 191 (W));
see also Loubser and Midgley Delict 344–345.
13 In so far as, eg, household expenses in essence amount to loss of support, one is dealing with the action of depend-
ants based on the injury of the breadwinner. This will be discussed infra 341.
14 See supra 80–81 as to the actions of parents for wrongful conception (an action for damages by the parents of a
normal child born as a result of a failed sterilization or abortion performed by a medical doctor) and wrongful birth
(an action by the parents of a disabled child where a physician failed to inform the parents before its birth of the
disability). These actions are mainly concerned with the patrimonial loss of the parents (cost of pregnancy, child-
birth and of bringing up the child). See, eg, Mukheiber v Raath 1999 3 SA 1065 (SCA); Premier, KwaZulu-Natal v
Sonny 2011 3 SA 424 (SCA). Cf also supra 80–81 on the action for damages of the disabled child based on so-
called wrongful life.
15 See Saitowitz v Provincial Insurance Co Ltd 1962 3 SA 443 (W) 446 with regard to a child.
16 Cf Van der Merwe and Olivier 295–296; see in general supra 60 with regard to the breach of a legal duty as a
criterion for wrongfulness.
17 The wrongdoer thus commits a delict against both the dependant and the person who bears the duty of support.
With regard to the dependant, this view was confirmed in Guardian National Insurance Co Ltd v Van Gool 1992 4
SA 61 (A) 66–67 (see also the court a quo 1992 1 SA 191 (W); Singh v Ebrahim (1) [2010] 3 All SA 187 (D)
196–197). The court held that a minor who sustained injuries as the victim of a delict, in principle has two delictual
actions: the action for pain and suffering to claim damages for non-patrimonial loss, as well as the Aquilian action
for prospective patrimonial loss such as future medical and hospital expenses and loss of earnings. Apart from this,
the minor in principle also has a right to claim support from her parents, inter alia, to pay for her prospective
medical and hospital expenses. This view has different implications (see Neethling and Potgieter 1992 THRHR 482
ff for a detailed discussion): (i) The minor and her parents have concurrent delictual claims for the same future
medical expenses – the wrongdoer will, however, not be condemned to pay twice; (ii) the minor has a maintenance
claim against her parents and a delictual claim against the wrongdoer for the same future medical expenses – the
minor should, however, not be allowed to receive double compensation by considering the claim for support as res
inter alios acta as far as the delictual claim is concerned; (iii) a parent can be a joint wrongdoer as against the
minor – whether this implication can be justified from a policy point of view, is debatable (see supra 325 fn 52).
18 Act 34 of 1956 s 2(1A) and (1B). For a detailed discussion of these sections, see supra 321 ff.
19 Before the commencement in 1971 of s 2(1A) and 2(1B) of Act 34 of 1956, the courts refused to regard the
dependant child as a wrongdoer, and thus a joint wrongdoer with the third party, as against the person having the
[continued ]
332 Law of Delict
(d) Master-domestic servant The position at common law that the actio legis Aquiliae was
available to a master if he suffered patrimonial damage as a result of wrongful and culpable
injury to his domestic servant21 was confirmed obiter in Union Government v Ocean Accident
and Guarantee Corporation Ltd.22 However, in Pike v Minister of Defence,23 the court held that
this rule has been abrogated by disuse and is therefore no longer part of our law.
2.2 Action of dependants24

2.2.1 Death of the breadwinner
The dependants of a person killed in a wrongful and culpable manner may claim damages for
loss of support from the wrongdoer with the actio legis Aquiliae.25 As stated earlier,26 the action
did not originate in Roman law, but developed from Germanic customary law and was accepted
by the old writers as an actio utilis in terms of the lex Aquilia.27
According to positive law, however, the dependants’ action deviates from normal Aquilian
principles. The courts regard the action as an anomaly because it is not based on a delict
committed against the dependant himself, but on a delict committed against the breadwinner.
The dependant thus has to prove that the death of the breadwinner was caused wrongfully and
________________________
duty of support (supra 325–346). Similarly, a dependant wife married in community of property could not be a
wrongdoer and consequently a joint wrongdoer as against the husband (supra 322 ff). Before 1971 the third party
thus had to bear the full loss of the person having the duty of support in both cases. With regard to the marriage out
of community of property, the Apportionment of Damages Act did not bring about any changes (supra 323).
20 With regard to the defences that may possibly be raised against the action of the person having the duty of support,
in most cases it will make a difference whether the action is based on a delict against the dependant or against the
person having the duty of support. The defences are discussed in detail concerning the action of dependants where
an analogous situation exists (infra 339 ff). What has been stated there, also applies mutatis mutandis here.
21 Voet 9 2 10; De Groot 3 34 3.
22 1956 1 SA 577 (A) 586; cf Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 3 SA 295 (A)
304. According to this rule, the servant’s contributory negligence in respect of his own injuries and thus to the
master’s loss, causes him and the third party to be considered to be joint wrongdoers with regard to the master’s
damage (in terms of the Apportionment of Damages Act 34 of 1956 s 2(1B): see supra 325 for a detailed discus-
sion of this section). Cf, however, the position with regard to contracting parties in general supra 329.
23 1996 3 SA 127 (Ck) 130–132. Cf Loubser and Midgley Delict 345.
24 For detailed discussions see Davel Skadevergoeding aan Afhanklikes; Neethling in Koziol and Spier (eds) 253 ff;
25 See in general Van der Merwe and Olivier 332 ff; Burchell Delict 233 ff; see also Van der Walt and Midgley Delict
15.
26 Supra 10.
27 In Legal Insurance Co Ltd v Botes 1963 1 SA 608 (A) 614 the court declared: “At the outset it is necessary to deal
with the nature and scope of the action, according to existing South African Law, by dependants against a person
who has unlawfully killed the breadwinner who was legally liable to support them. The remedy was unknown to
Roman Law, in which no action arose out of the death of a freeman, and consequently the Aquilian action was not
available. It had its origin in Germanic custom, in which the reparation of ‘maaggeld’ was regarded as a concilia-
tion to obviate revenge by the kinsmen of the deceased, and it was divided among the latter’s children or parents or
other blood relatives. The Roman-Dutch Law modified the custom by regarding the payment as compensation to
the dependants for loss of maintenance. The Roman-Dutch jurists felt that this could be accommodated within the
extended framework of the Roman Aquilian action by means of a utilis actio. The remedy has continued its evolu-
tion in South Africa – particularly during the course of this century – through judicial pronouncements, including
judgments of this Court, and it has kept abreast of the times . . . The remedy relates to material loss ‘caused to the
dependants of the deceased man by his death’. It aims at placing them in as good a position, as regards main-
tenance, as they would have been in if the deceased had not been killed.” See also Brooks v Minister of Safety and
Security 2009 2 SA 94 (SCA) 97; Victor v Constantia Ins Co Ltd 1985 1 SA 118 (C) 119; Union Government v Lee
1927 AD 202 220–222; Santam Bpk v Fondo 1960 2 SA 467 (A) 471–472; Ongevallekommissaris v Santam Bpk
1999 1 SA 251 (SCA) 258; Santam Bpk v Henery 1999 3 SA 421 (SCA) 425–426; Amod v Multilateral Motor
Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA) 1324–1325;
Lambrakis v Santam Ltd 2000 3 SA 1098 (W) 1113–1114; Santam Insurance Ltd v Meredith 1990 4 SA 265 (Tk)
267; Mankebe v AA Mutual Insurance Association Ltd 1986 2 SA 196 (D) 198–199.
culpably. However, the dependant institutes the action in his own name, since the courts have
held that the action does not derive from the deceased or his estate, but that the dependant is
directly entitled thereto as a result of his loss of support.28
The view that the dependant’s action is based on a delict committed against the breadwinner
cannot be accepted – not only because it cannot be justified theoretically, but also because it can
lead to undesirable practical consequences. Dogmatically, the most important objection is that it
is illogical to base an action for damages upon a delict, and thus the causing of harm, committed
against another person – almost in the form of a delict per consequentias.29 The theoretically
correct view is that the dependant’s claim is based on the wrongful, culpable causing of damage
to him, the dependant himself. 30 Wrongfulness lies in the infringement of the dependant’s
personal right of support from the breadwinner.31 32 The theoretically correct approach is by
implication endorsed by the Apportionment of Damages Act33 and the Supreme Court of
Appeal.34 35
Requirements for a claim for loss of support According to the Supreme Court of Appeal,36
the most important requirements for the dependant’s action are the following:37 (i) The deceased,
while he was still alive, must have been under a duty to support the dependant (which duty must
have been legally enforceable inter partes). The existence of a duty of support is subject to the
________________________
28 In Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A) 837–838 the court stated: “An essential and unusual feature
of the remedy is that, while the defendant incurs liability because he has acted wrongfully and negligently (or with
dolus) towards the deceased and thereby caused the death of the deceased, the claimant (the dependant) derives his
right of action not through the deceased or from his estate but from the facts that he has been injured by the death of
the deceased and that the defendant is in law responsible therefor.” See also Jameson’s Minors v CSAR 1908 TS
575 583–585; Brooks v Minister of Safety and Security 2009 2 SA 94 (SCA) 97–98 100; Union Government v Lee
1927 AD 202 220–222; Santam Bpk v Fondo 1960 2 SA 467 (A) 471–472; Legal Insurance Co Ltd v Botes 1963 1
SA 608 (A) 614; Munarin v Peri-Urban Areas Health Board 1965 1 SA 545 (W) 552; Lambrakis v Santam Ltd
2000 3 SA 1098 (W) 1113.
29 See Neethling in Koziol en Spier (eds) 259.
30 See Brooks v The Minister of Safety and Security [2007] 4 All SA 1389 (C) 1394–1400; see further Boezaart in
Boezaart and De Kock (eds) 147–150; Neethling 2009 THRHR 297–299. Unfortunately the SCA again incorrectly
confirmed this approach, according to which the action of dependants is based upon a delict against the bread-
winner, in Brooks v Minister of Safety and Security 2009 2 SA 94 (SCA) 97–98.
31 Cf Zimnat Insurance Co Ltd v Chawanda 1991 2 SA 825 (ZS) 830. Van der Merwe and Olivier 345 point out in
this regard that once it is accepted that the delict was committed against the victim himself, his action conforms to
the foundations of our law of delict whilst the need to refer to it as a sui generis action disappears. See further
Brooks v The Minister of Safety and Security [2007] 4 All SA 1389 (C) 1399; also Boberg Delict 728; Davel Skade-
vergoeding aan Afhanklikes 50–51.
32 This does not exclude the possibility that the wrongdoer’s conduct may simultaneously also constitute a delict
against the breadwinner, eg in connection with damage to property.
33 Act 34 of 1956 s 2(1B) (see supra 324 ff for a detailed discussion.) This Act provides that if the negligent conduct
of the deceased breadwinner and the third party contributed to the breadwinner’s death and consequently to the
dependant’s loss of support, they are regarded as joint wrongdoers and therefore both have committed delicts
against the dependant. Seen in this light, the dependant’s claim is definitely based on a delict committed against
himself (see further Brooks v The Minister of Safety and Security [2007] 4 All SA 1389 (C) 1399 fn 33).
34 See Santam Bpk v Henery 1999 3 SA 421 (SCA) 430; Amod v Multilateral Motor Vehicle Accidents Fund
(Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA) 1326. In both cases the question of whether
the dependant’s right to support can be protected against third parties is dealt with (see Neethling and Potgieter
2001 THRHR 487; Brooks v The Minister of Safety and Security [2007] 4 All SA 1389 (C) 1398–1399; see how-
ever Henery 429–430).
35 See Neethling in Koziol and Spier (eds) 259–261 for details.
36 See Santam Bpk v Henery 1999 3 SA 421 (SCA) 430; Amod v Multilateral Motor Vehicle Accidents Fund
(Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA) 1326: Du Plessis v Road Accident Fund 2004 1
SA 359 (SCA) 370; see also Hing v Road Accident Fund 2014 3 SA 350 (WCC) 365; Metiso v Padongelukkefonds
2001 3 SA 1142 (T) 1148–1149; Neethling in Koziol and Spier (eds) 254–256; Scott 2019 TSAR 802.
37 If the action of the dependants arose from a crime (eg robbing and murdering the breadwinner), this claim is
adjudicated independently of the criminal prosecution. The result of the criminal prosecution is irrelevant for the
purpose of the civil procedure (Groenewald v Swanepoel 2002 6 SA 724 (E)).
334 Law of Delict
qualifications that the dependant must be in need of support and the breadwinner must be
capable of providing such support.38 (ii) The dependant must have had a right to (such) support
(which right must be capable of legal protection against third parties). The existence of a right to
support must be determined with reference to the boni mores or legal convictions of the com-
munity39 criterion of wrongfulness.40 41 These requirements may be supported in principle,
because for each legal duty of support, there is a concomitant personal right to support, the
infringement of which points to wrongful conduct against the dependant.42 Of course, the legal
duty of support (the correllate right of which can also be protected against third parties) can arise
from any legally recognised source.43 The following sources have received recognition:44
(a) Legal marriage Contrary to earlier opinion,45 legal marriages are not restricted to civil
marriages entered into according to the Marriage Act 25 of 1961, but also include any “solemn
________________________
38 Cf Constantia Versekeringsmaatskappy Bpk v Victor 1986 1 SA 601 (A) 612–613; Senior v National Employers
General Insurance Co Ltd 1989 2 SA 136 (W) 139; Ncubu v National Employers General Insurance Co Ltd 1988 2
SA 190 (N) 194–196; Oosthuizen v Stanley 1938 AD 322 327–328; Road Accident Fund v Krawa 2012 2 SA 346
(ECG) 367–368; Fosi v Road Accident Fund 2008 3 SA 560 (C) 561–562. In Pike v Minister of Defence 1996 3 SA
127 (Ck) 133 White J expressed it thus with regard to a child’s duty to support his parent(s): “The prerequisites are
that the child must be able to render the required services [support] and that the parent is indigent (inopes).” See
also Jacobs v Road Accident Fund 2010 3 SA 263 (SE) 265; Leask v Road Accident Fund 2015 5 SA 20 (GJ)
24í25; Osman v Road Accident Fund 2015 6 SA 74 (GP) 76 (see Scott 2016 THRHR 678 ff); Road Accident Fund
v Mohohlo 2018 2 SA 65 (SCA) paras 21 ff. In Smith v Mutual & Federal Insurance Co Ltd 1998 4 SA 626 (C) it
was held that a stringent criterion of need has to be established to prove indigence.
39 Supra 39.
40 In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA
1319 (SCA) 1326 Mahomed CJ formulated this (with reference to Santam Bpk v Henery 1999 3 SA 421 (SCA)
430) as follows: “(a) The claimant for loss of support resulting from the unlawful killing of the deceased must
establish that the deceased had a duty to support the dependant. (b) It had to be a legally enforceable duty. (c) The
right of the dependant to such support had to be worthy of protection by the law. (d) The preceding element had to
be determined by the criterion of boni mores” (see, however, Neethling and Potgieter 2001 THRHR 487). See also
Paixăo v Road Accident Fund 2012 6 SA 377 (SCA) para 13 where Cachalia JA said the following: “The existence
of a dependant’s right to claim support which is worthy of the law’s protection, and the breadwinner’s correlative
duty of support, is determined by the boni mores criterion or . . . the legal convictions of the community. This is
essentially a judicial determination that a court must make after considering the interplay of several factors: the
hand of history, our ideas of morals and justice, the convenience of administering the rule and our social ideas of
where the loss should fall. In this regard considerations of equity and decency have always been important. Under-
pinning all of this are constitutional norms and values. So the court is required to make a policy decision based on
the recognition that social changes must be accompanied by legal norms to encourage social responsibility. By
making the boni mores the decisive factor in this determination, the dependants’ action has had the flexibility to
adapt to social changes and to modern conditions” (see Scott 2019 TSAR 803 for criticism); Road Accident Fund v
Mohohlo 2018 2 SA 65 (SCA) para 10.
41 Note that according to case law, a legally enforceable right to support may be absent if the breadwinner supplied
support during his life out of an income gained in an illegal or wrongful manner (see Davel Skadevergoeding aan
Afhanklikes 53–58). This is dealt with in more detail supra 285.
42 Cf also Van der Merwe and Olivier 334; Ismail v General Accident Insurance Co of SA Ltd 1989 2 SA 468 (D)
473.
43 Neethling and Potgieter 2001 THRHR 487–488; cf Santam Bpk v Henery 1999 3 SA 421 (SCA) 430.
44 See also Neethling in Koziol and Spier (eds) 256–258.
45 See, eg, Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657; Waterson v Maybery
1934 TPD 210; Mokwena v Laub 1943 WLD 63; Santam Bpk v Fondo 1960 2 SA 467 (A); Nkabinde v SA Motor
and General Insurance Co Ltd 1961 1 SA 302 (N). In all these cases a so-called common law duty of support was
required, which had to arise from, inter alia, a “legal” marriage according to common law (cf in general Davel
Skadevergoeding aan Afhanklikes 69–81; Burchell Delict 235–237). Consequently the courts refused to allow
dependants’ claims in cases where such marriages were absent (eg in the case of a customary union according to
indigenous law; eg Nkabinde; Fondo; see infra fn 47). Understandably, this view was criticised sharply. In, eg,
Chawanda v Zimnat Insurance Co Ltd 1990 1 SA 1019 (ZH) (confirmed on appeal: Zimnat Insurance Co Ltd v
Chawanda 1991 2 SA 825 (ZS)) the court concluded on convincing grounds that the Fondo case was wrong in this
respect; moreover that, as far as black customary unions are concerned (infra fn 47), it “offends against the most
elementary notions of justice” (1021; see further Santam Bpk v Henery 1999 3 SA 421 (SCA) 429). It was therefore
to be expected that it would be revised by the SCA in the light of the values underpinning the Constitution, 1996
[continued ]
marriage in accordance with the tenets of recognised and accepted faith”46 and marriages
according to indigenous law.47
There is a reciprocal duty of support between spouses. The wife’s duty, however, is subsidiary in
the sense that it only comes into operation if the husband is unable to provide support, or if it is
necessary for the maintenance of the common household.48 If in such a case the husband’s right
to support is infringed by the death49 of his wife, he may, in principle, claim compensation.50
(b) Civil union Surviving partners in civil unions concluded in terms of the Civil Union Act 17
of 2006 are entitled to claim maintenance from their deceased civil union partner’s estate.51
(c) Blood relations52 A child (even a major) has a right to support from both his father and
his mother.53 Similarly, a parent has a right to support from his own child (also a minor).54 Even
________________________
(see Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA
1319 (SCA) 1327 ff).
46 Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA 1319
(SCA) 1331. In this case, in which a monogamous Muslim marriage was recognised as a legal marriage,
Mahomed CJ left open the question of whether a dependant in a polygamous Muslim marriage can enforce her
claim to support against third parties (1330). It is submitted that, in this respect, there is in principle no difference
between a customary union according to indigenous law and a Muslim marriage, and that such a plaintiff should
succeed (see Neethling and Potgieter 2001 THRHR 488).
47 Which is now legal according to statutory law (see the Recognition of Customary Marriages Act 120 of 1998).
Because a black woman married according to a customary union could not enter into a “legal marriage” before
commencement of the Act (see supra fn 45), she could not (at least before 1963: see infra fn 64) succeed with a
delictual claim for loss of support as a result of the death of her husband.
48 Eg McKelvey v Cowan 1980 4 SA 525 (Z) 526–527; De Harde v Protea Assurance Co Ltd 1974 2 SA 109 (E) 114–
115; Plotkin v Western Assurance Co Ltd 1955 2 SA 385 (W) 393–395; Abbott v Bergman 1922 AD 53; Erdmann v
Santam Insurance Co Ltd 1985 3 SA 402 (C) 408; Witham v Minister of Home Affairs 1989 1 SA 116 (ZH) 131;
Hendricks v President Insurance Co Ltd 1993 3 SA 158 (C) 159–160; Fourie v Santam Insurance Ltd 1996 1 SA
63 (T). Note that in Esterhuizen v Road Accident Fund 2017 4 SA 461 (GP) para 12 the court found that the
possibility of remarriage is usually taken into account when a claim for loss of support is assessed, but that no
reliance should be placed on factors such as a woman’s appearance and nature because they reveal a rather outdated
and offensive approach towards women; contra Legal Insurance Co Ltd v Botes 1963 1 SA 608 (A) 607í608;
Snyders v Groenewald 1966 3 SA 785 (C) 790.
49 Or injury: see in this regard infra 341.
50 See the authority in fn 48 supra. In this regard it should be borne in mind that damages for patrimonial loss because
of loss of consortium (such as loss of the wife’s services in the common household: see Neethling, Potgieter and
Roos Neethling on Personality Rights 300; Peter v Minister of Law and Order 1990 4 SA 6 (E) 9–10) as a result of
the wife’s death, which can be claimed with the actio legis Aquiliae (idem 10–11), may overlap with the claim for
loss of support.
51 S 13 of the Civil Union Act 17 of 2006 read with s 2 of the Maintenance of Surviving Spouses Act 27 of 1990; cf
Potgieter, Steynberg and Floyd Damages 280 fn 40.
52 Blood relations was also a source of the so-called common law duty of support (cf supra fn 45; in general Davel
Skadevergoeding aan Afhanklikes 69–81; Burchell Delict 235–237).
53 Cf Young v Hutton 1918 WLD 90; Union Government (Minister of Railways and Harbours) v Warneke 1911 AD
657 668; Mankebe v AA Mutual Insurance Association Ltd 1986 2 SA 196 (D) 198–199; Groenewald v Snyders
1966 3 SA 237 (A) 247; Senior v National Employers General Insurance Co Ltd 1989 2 SA 136 (W) 138–139;
Ismail v General Accident Insurance Co of SA Ltd 1989 2 SA 468 (D); Santam Insurance Ltd v Meredith 1990 4
SA 265 (Tk) 268; Kewana v Santam Insurance Co Ltd 1993 4 SA 771 (Tk); Santam Insurance Co Ltd v Fourie
1997 1 SA 611 (A). The reciprocal duty of spouses to support each other (supra fn 48) and the duty of parents to
support their children do not conflict but exist alongside each other and are accorded equal status (Fourie v Santam
Insurance Ltd 1996 1 SA 63 (T) 65). Note that a child does not lose his claim for loss of maintenance as a result of
his father’s death if he is adopted after his father’s death (Constantia Versekeringsmaatskappy Bpk v Victor 1986 1
SA 601 (A)). Neither does a child lose his claim for loss of maintenance (or his claim does not even qualify to be
reduced) as a result of the death of his mother who supported him on her own, because of the fact that his father
still has a duty to support him after his mother’s death (Senior v National Employers General Insurance Co Ltd
1989 2 SA 136 (W)). See in general Dendy 1990 SALJ 155–167. In Brooks v The Minister of Safety and Security
[2007] 4 All SA 1389 (C) a father had been imprisoned for murder and could no longer support his son. The son
instituted a claim for loss of support against the police on the basis that they had had a legal duty to confiscate his
father’s firearm and that their omission to do this had resulted in the father committing murder. In the trial court
[continued ]
336 Law of Delict
grandparents have a right to support from grandchildren,55 but only where their own children are
dead or unable to provide support.56 Furthermore, a brother (or sister) may claim support from
brothers or sisters if his parents are unable to support him.57 The duty of support with regard to
collateral consanguinity does not, however, extend beyond brothers and sisters.58 Where a duty
to support based on blood relationship outside the common law categories is claimed (for
example between uncle/aunt on the one hand and nephew/niece on the other), additional
________________________
Erasmus J held that the action of dependants could for reasons of legal policy not be extended to the present situ-
ation, mainly because the breadwinner had by his own intentional conduct rendered himself unable to support his
dependant (1044–1045; cf Brooks v Minister of Safety and Security 2009 2 SA 94 (SCA) 99–100; see Neethling
and Potgieter 2009 Obiter 404 ff; Buthelezi 2011 SALJ 642 ff). However, analogous policy considerations (cf
Neethling 2009 THRHR 302–304; Boezaart in Boezaart and De Kock (eds) 154 fn 71) did not deny children a
claim for loss of support where the parent committed suicide in circumstances where the police had had a legal duty
to confiscate his or her fire arm (see Minister of Safety and Security v Madyibi 2010 2 SA 356 (SCA) 359). To our
mind, the deceased parent and the police should be regarded as joint wrongdoers because both are, in principle,
liable in delict for the dependant’s loss of support (cf Neethling and Potgieter 2009 Obiter 409; see also Ahmed
Contributory Intent 52–54). In M v Minister of Police 2013 5 SA 622 (GNP) 635 the court held that the duty of a
parent to support his child arises out of and is now governed by statute (s 28 of the Constitution and the Children’s
Act 38 of 2005) and no longer by the common law, and that constitutional damages may be claimed (see Robinson
and Prinsloo 2015 (5) PELJ 1670 ff; cf however supra 22 fn 166). In JT v Road Accident Fund 2015 1 SA 609 (GJ)
a child was born out of wedlock and was adopted by her grandmother but her biological father voluntarily con-
tinued to support her. Following the death of the father in a motor vehicle accident, the grandmother sued the
defendant for damages for loss of the child’s support. In recognising that the father had a legal duty to support his
daughter after the adoption, Sutherland J (616í617) emphasised that although the father surrendered his status as a
legal parent, he surrendered it to his own parents with her interests at heart and continued to relate to her as a father,
by his presence and by his financial contribution to her maintenance. This created a relationship akin to a true
father-daughter relationship.
54 Cf Jacobs v Road Accident Fund 2010 3 SA 263 (SE); Anthony v Cape Town Municipality 1967 4 SA 445 (A);
Manuel v African Guarantee and Indemnity Co Ltd 1967 2 SA 417 (R); Oosthuizen v Stanley 1938 AD 322; Pike v
Minister of Defence 1996 3 SA 127 (Ck) 132–133; Smith v Mutual & Federal Insurance Co Ltd 1998 4 SA 626 (C)
629; Fosi v Road Accident Fund 2008 3 SA 560 (C). This rule is also applicable in respect of African indigenous
law (Fosi 567 ff). See Sonnekus 2018 TSAR 882 ff. In Seleka v Road Accident Fund 2016 4 SA 445 (GP) the
plaintiff, who had lived with her family according to African (Tswana) customary law, claimed damages from the
Road Accident Fund after her adult daughter (M) had been killed as a result of the negligent driving of a motor
vehicle. The core question related to the ambit of a child’s duty to support its parents. Diedericks AJ stated that in
common law a child has a duty to maintain its parents where: (a) the child contributed towards the parents’ support;
and (b) where there was a legal duty to contribute because the parents needed the contribution (ie, were indigent)
(paras 7–9). The judge found that in terms of (Tswana) customary law children were obliged, when able to earn a
living, to support their parents (paras 14 15) and – other than in traditional Tswana law where the duty to support
appears to be owed only by sons – nowadays this duty falls to both sons and daughters (paras 18 20). Diedericks AJ
agreed with the decision in Fosi that the test for parental indigence in Smith v Mutual & Federal Insurance Co Ltd
1998 4 SA 626 (C) 632 – that there must be an extreme need or want for basic necessities of life – is too onerous
and difficult to prove. The court found that M’s parents were indeed indigent (paras 21–28), that a contract existed
between the plaintiff and M that she would maintain her parents (para 29), and that the plaintiff was entitled, in
terms of customary law, to be compensated for the losses suffered by her as a result of M’s death (para 30). Scott
2016 (3) LitNet Akademies 827 ff is of the opinion that a proper application of South African (common) law would
have yielded the same result, and that the application of indigenous customary law was inappropriate. He argues
that the specific customary (Tswana) legal system does not recognise a parent’s dependant action resulting from the
killing of an adult daughter and that the court was forced to develop the African law artificially in order to provide
for such a claim. See further Carnelly and Mamashela 2016 Obiter 293 ff on the question whether the state should
have a duty to assist children to support their indigent elderly.
55 Ford v Allen 1925 TPD 57; Motan v Joosub 1930 AD 61 70.
56 Barnes v Union and SWA Insurance Co Ltd 1977 3 SA 502 (E) 510.
57 Oosthuizen v Stanley 1938 AD 322 331.
58 Vaughan v SA National Trust and Assurance Co Ltd 1954 3 SA 667 (C); Ford v Allen 1925 TPD 5. In Road
Accident Fund v Mohohlo 2018 2 SA 65 (SCA) para 5 (see also para 11) Rogers AJA said: “According to our
common law, blood relationship per se only gives rise to a duty of support to the second degree of consanguinity so
that, while there is a duty of support between grandchild and grandparent, and between siblings inter se, there is no
duty of support between uncle/aunt on the one hand and nephew/niece on the other.”
circumstances that fortify the blood relationship will have to be present.59 Since they are not
related by blood, a step-parent and step-child60 or persons related by affinity (such as brothers
and sisters-in-law)61 have no mutual right to support vis-à-vis one another.
(d) Adoption Adopted children are in the same position as blood relatives.62
(e) Foster relations A foster parent has a statutory duty to provide maintenance and support for
a foster child, and the child has a reciprocal right which is worthy of the law’s protection to
claim such support. The child therefore has a claim against a defendant for loss of support as a
result of the death of her foster parent.63
(f) Customary union A black woman married according to an indigenous-law customary
union has a statutory delictual claim for loss of support as a result of her husband’s death.64
(g) Court order A divorced woman who is entitled to support from her former husband in
terms of a court order may insitute a dependant’s action upon his death.65
(h) Contract As noted,66 a person who has a mere contractual claim to support, has no claim
for loss of support resulting from the death of the person bearing the duty of support. Such a
right to support is in principle deemed not to be enforceable against third parties, lest the liability
of wrongdoers according to dependants’ actions grow too wide.67 This does not mean, however,
________________________
59 Road Accident Fund v Mohohlo 2018 2 SA 65 (SCA) para 12. In Mohlohlo the plaintiff claimed damages from the
RAF for loss of support arising from the death her nephew (the child of her sister) as a result of injuries sustained in
a motor collision. The plaintiff had brought up the deceased as her own child since he was an infant. After entering
the job market, the deceased supported the plaintiff financially. Rogers AJA pointed out that the plaintiff based her
case that the deceased owed her a duty of support not merely on their blood relationship (para 5). The legal
convictions of the community called for the recognition of a reciprocal duty of support between them where the
aunt had de facto adopted the nephew and brought him up as her own child (paras 14 17 19). In assessing the legal
convictions of the community, the court had regard to the values underlying the Constitution, in particular ubuntu
(paras 12 and 14), and, as courts were required to in terms of s 211(3) of the Constitution, applicable customary
law, which recognised a duty of support where there existed a de facto relationship of mother and child (paras 13–
15).
60 Jacobs v Cape Town Municipality 1935 CPD 474; S v MacDonald 1963 2 SA 431 (C); contra Heystek v Heystek
[2002] 2 All SA 401 (T) 404 (for criticism of Heystek, see Heaton and Kruger Family Law 307).
61 Vaughan v SA National Trust and Assurance Co Ltd 1954 3 SA 667 (C).
62 Cf s 242 of the Children’s Act 38 of 2005. Adoption is regulated either by statute (ss 228–273 of the Children’s
Act) or by indigenous law (see, eg, Kewana v Santam Insurance Co Ltd 1993 4 SA 771 (Tk) 776–776; Metiso v
Padongelukkefonds 2001 3 SA 1142 (T) on the legal duty arising from such adoption). In the last-mentioned case
the court held that even where adoption did not fully comply with the requirements of indigenous law, the action of
dependants was still available to the “adopted” children (see also Neethling 2002 TSAR 156 ff). In Thibela v
Minister van Wet en Orde 1995 3 SA 147 (T) the court went further and held that a duty of support arising from
indigenous law – in casu the husband’s duty of support toward his indigenous-law wife and her child born out of a
previous relationship with another man – founded a claim for support by the child for the death of the breadwinner.
63 Fortuin v Road Accident Fund 2015 5 SA 532 (GP). Fourie J (536) based his decision first of all on s 188 of the
Children’s Act 38 of 2005 which provides that a foster parent has certain responsibilities in respect of the child
which calls for a corresponding right on the part of the child. Secondly, s 28(1) of the Bill of Rights includes the
right to foster care in a child’s right to alternative care, and in terms of s 28(2) the child’s best interests are of para-
mount importance in any matter concerning the child.
64 In terms of s 31 of the Black Laws Amendment Act 76 of 1963. Cf Davel Skadevergoeding aan Afhanklikes 63 ff;
Pasela v Rondalia Versekeringskorporasie van SA Bpk 1967 1 SA 339 (T), Hlela v Commercial Union Assurance
Co of South Africa Ltd 1990 2 SA 503 (N); Road Accident Fund v Mongalo; Nkabinde v Road Accident Fund 2003
3 SA 119 (SCA). Note that an obiter dictum in Santam Bpk v Fondo 1960 2 SA 467 (A) 474 that a statutory claim
to support does not create a correllate “common law” duty of support (cf supra fn 45) was rejected in Santam Bpk v
Henery 1999 3 SA 421 (SCA) 430.
65 See Santam Bpk v Henery 1999 3 SA 421 (SCA); Neethling and Potgieter 2001 THRHR 484 ff for a discussion.
66 Supra fn 6; cf, however, the criticism of this limitation by Van der Merwe and Olivier 334 and Davel Skade-
vergoeding aan Afhanklikes 66–67.
67 See Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA
1319 (SCA) 1331.
338 Law of Delict
that an interference with a contractual relationship of support68 will never be contra bonos mores
and accordingly wrongful.69 The nature of the contractual relationship founding the duty/right to
support fulfils an important role in determining this.70 Accordingly, the fact that a Muslim
marriage does not constitute a “normal” contractual relationship but flows from a “solemn
marriage in accordance with the tenets of recognised and accepted faith”, and the fact that the
customary union of black people is the product of a practice recognised by indigenous law, were
deciding factors in favour of the protection of dependants’ rights of support against infringement
by third parties.71 Likewise, the promise to support an adopted child, which is a contract giving
rise to obligations under indigenous law, is deemed worthy of protection according to the boni
mores, even though the promise is not a valid adoption due to non-compliance with
formalities.72 Furthermore, if same-sex partners had a permanent life relationship similar to a
marriage during which the now deceased person undertook a contractual duty of support, the
action of dependants is available to the surviving partner.73 This approach now also applies to a
heterosexual life partnership akin to marriage, for example where the life partners agreed to get
married, had already undertaken reciprocal duties of support and had executed a family will as
evidence of their commitment to each other,74 even where one of the life partners had still been
married to someone else,75 as well as where a heterosexual couple, subsequent to their divorce
________________________
68 Which amounts to pure economic loss (see Santam Bpk v Henery 1999 3 SA 421 (SCA) 430; infra fn 156).
69 See infra 371–372 under the general discussion of interference with contractual relations.
70 See Neethling and Potgieter 2001 THRHR 488.
71 See supra fns 45 46.
72 Metiso v Padongelukkefonds 2001 3 SA 1142 (T) 1149–1150; see also Neethling 2002 TSAR 156 ff; Labuschagne
and Davel 2002 De Jure 181 ff; cf supra fn 62.
73 Du Plessis v Road Accident Fund 2004 1 SA 359 (SCA) (see Steynberg and Mokotong 2005 THRHR 330 ff). The
plaintiff (A) and the deceased (B) had been partners in a same-sex relationship for eleven years when B was killed
in a motor car accident, negligently caused by the defendant. The relationship was stable, A and B had performed a
“wedding ceremony” and were accepted by family and friends as a couple. B also undertook to support A after A
had been declared unfit for work, and he supported A for five years until his death. The court (370–378) held that
the action of dependants was available to A because he complied with the two requirements of the action (see supra
333): B had a contractual duty of support enforceable inter partes; and A’s right of support was worthy of protec-
tion against third parties according to the boni mores of our constitutional community. See also Paixăo v Road
Accident Fund 2012 6 SA 377 (SCA) 381.
74 Paixăo v Road Accident Fund 2012 6 SA 377 (SCA) 390–391. Cachalia JA continued (391): “By coming to this
conclusion I do not intend to demean the value or importance that our society places on marriage as an institution,
as the high court feared. On the contrary, I am extending the protection afforded to the dependants of the deceased
precisely because the nature of their relationship is similar to a family relationship arising from a legally recognised
marriage. I therefore hold that the dependants’ action is to be extended to unmarried persons in heterosexual
relationships who have established a contractual reciprocal duty of support.” (For a critical discussion of this case,
see Scott 2013 TSAR 777 ff.) See also Verheem v Road Accident Fund 2012 2 SA 409 (GNP); Smith and Heaton
2012 THRHR 472 ff.
75 In Jacobs v Road Accident Fund 2019 2 SA 275 (GP) the plaintiff’s live-in partner died in a motor vehicle accident.
The relationship started six years prior and soon after engaging in it the deceased who was a married man but not
living with his wife, had moved into the plaintiff’s house with her two minor children. For the duration of their
relationship he maintained her and the children. She never worked and was a stay-at-home partner. They intended
to marry once the deceased had divorced his current spouse. The court also found that the deceased undertook to
support the plaintiff with the intention to be legally bound by such undertaking. There was therefore a legally
enforceable (contractual) duty to support arising out of a relationship akin to a marriage that the law ought to
protect (paras 12 14 15). According to the court, the fact that the deceased was still married to his current spouse,
was not an obstacle to claim damages for loss of support. Collis J (para 22) remarked: “Therefore, having regard to
the boni mores and albeit that our society continues to value the sanctity of marriage, the reality is that some parties
find themselves living together intending to get married and attracting reciprocal duties of support, but having a
legal bar to get married.” This was the case in point with the plaintiff and the deceased, with the result that the
plaintiff should be afforded her dependant’s action as an unmarried person in a heterosexual relationship (para 21).
See Scott 2019 TSAR 798 ff who strongly criticises the judgment, inter alia, for having an eroding effect on the
status of civil marriages in South Africa and who predicts that an appeal would have more than a fair chance of
success (813).
and a short-lived separation, reconciled and again commenced living together as a family with
two boys, with respect to one of them who was not the deceased’s biological son.76 Extension of
the action of dependants to other relationships out of which contractual duties of support may
arise, such as betrothed parties according to a cohabitation agreement, should be approached
with caution.77
Defences against a claim for support Attention must now be given to the defences which may
successfully be raised against the dependants’ action. It is self-evident that, if the traditional
basis of the action as one finds it in positive law (ie, that the delict is committed against the
breadwinner) is accepted, any defence which could have been raised successfully against a claim
by the breadwinner were he alive should also succeed against the dependant’s claim. This result,
however, does not always follow if one accepts the theoretically correct approach, ie, that the
delict is committed against the dependant. In this regard, the effect of a ground of justification
raised with regard to the breadwinner’s death, a pactum de non petendo in anticipando concluded
by him, and contributory intent and contributory negligence on his part must be considered.78
With regard to grounds of justification, it will make no difference whether one accepts the
positive law basis or the theoretically correct approach to the dependants’ action. If, for
example, the wrongdoer acted in accordance with the valid consent of the breadwinner, or
caused his death in self-defence or in necessity, his act will not be wrongful either against the
breadwinner or the dependant.79 As against the breadwinner, the presence of consent or self-
defence excludes wrongfulness. As against the dependant, these grounds of justification
naturally have no direct operation, since they are res inter alios acta as far as he is concerned.
Nevertheless, the infringement of the dependant’s interest in receiving support is also lawful
________________________
76 Engela v Road Accident Fund 2016 1 SA 214 (GJ). It was agreed that at the time of the breadwinner’s death he
owed a legal duty of support to one of the sons (O), but there was no express agreement between the deceased and
the plaintiff (mother of the other boy, T) that the deceased would support T, who was the plaintiff’s illegitimate son
and was brought into the marriage when the plaintiff married the deceased. The question that arose was whether the
deceased owed T a duty of support at the time of his death. This required the court to decide whether the principle
in Paixão v Road Accident Fund 2012 6 SA 377 (SCA) (see supra fn 74), which extended the dependent’s action to
permanent heterosexual relationships, applied. Mashile J noted that there were apparent differences between Paixão
and the present case. Eg, the parties in casu specifically agreed not to conclude another marriage relationship when
they reconciled but nonetheless committed to live together, whereas in Paixão the converse was true in that the
deceased promised to enter into a marriage relationship as soon as he had divorced his wife. Further, the parties in
Paixão drew up a joint will, whereas in the current case it was not done (para 11). However, there were also
important similarities between the two cases. In Paixão Cachalia JA stated that he was extending the protection
afforded to the dependants of the deceased precisely because the nature of their relationship was similar to a family
relationship arising from a legally recognised marriage (see quotation in fn 74 supra). This clearly was also the case
in Engela because the parties lived together as a family and their relationship after their reconciliation was
unquestionably akin to marriage. There were, therefore, reciprocal undertakings to support each other (para 13). In
the result, the facts warranted a conclusion that there was a tacit agreement that the deceased would support T as his
own child. According to Mashile J, the development of the common law to extend the dependents’ action to cover
permanent heterosexual relationships therefore applied to this case (para 15) and the defendant was ordered to pay
the plaintiff, in her representative capacity as mother and natural guardian of T and O, damages for loss of support
(para 16). We agree with the outcome of this case. Like Paixão, the present case is merely a further extension of the
action of dependants where the nature of the contractual relationship is akin to marriage, thereby creating a tacit
agreement to support.
77 Cf Bonthuys 2018 (21) PELJ 1 ff on the development of customary and common law to extend rights to support to
“African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous
Western nuclear households” and to “all women in unmarried intimate relationships”. In this regard, the author
criticises the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) and finds support in the minority
judgment in Laubscher v Duplan 2017 2 SA 264 (CC).
78 See also Neethling in Koziol and Spier (eds) 261–265.
79 Maimela v Makhado Municipality 2011 6 SA 533 (SCA) 542–543 with regard to necessity; see also Neethling and
Potgieter 2011 JJS 110–111 (contra Burchell Delict 77).
340 Law of Delict
because in the circumstances the infringement cannot be regarded as unreasonable or contra

bonos mores.80 81
The position is different where the breadwinner concluded a pactum de non petendo in
anticipando82 with the defendant. In these circumstances it should make a difference whether the
dependant’s action is based on a delict against the breadwinner or against the dependant. If the
former approach is followed, the pactum, to be logically consistent, should be a complete
defence against the action of dependants.83 Strangely enough, this view is not followed by the
courts. In Jameson’s Minors v CSAR84 the breadwinner was killed in a train accident caused by
the negligent conduct of the railways. The breadwinner was a passenger in possession of what is
known as a “free pass” that excluded liability of the railways in the specific circumstances. The
court decided that such a pactum was no defence against the dependants’ action. This view can
be accepted, on the one hand, because it accords with the theoretically correct approach to the
dependants’ action (according to which the pactum is res inter alios acta with regard to the
dependants’ action), and, on the other hand, because a breadwinner should in any case not be
able to conclude a pactum de non petendo which burdens his dependants, since such conduct
would be contra bonos mores.
In the case of contributory intent (voluntary assumption of risk)85 on the part of the breadwinner, it
should also make a difference which of the two approaches is followed. Suppose that the plaintiff
in Lampert v Hefer 86 had died and that her dependant had instituted a claim: if one regards the
dependant’s claim as based on a delict against the breadwinner, and if one accepts that the defence
of contributory intent, although not eo nomine, is recognised in positive law, it should constitute a
complete defence against the action of the dependants – the breadwinner’s intent in fact cancels the
negligence of the third party.87 If, on the other hand, one were to apply the theoretically correct
approach, the position would be completely different. The defence of contributory intent could
then not be raised against the dependant because, as far as he is concerned, this fact would be res
inter alios acta. The defence of contributory intent is only of academic interest in this regard since
the Apportionment of Damages Act,88 which endorses the theoretically correct approach, by impli-
cation treats the breadwinner and the third party as joint wrongdoers as against the dependant.89
The dependant can thus recover in full for his loss of support.90
________________________
80 One is thus concerned with a specific application of the boni mores as the general criterion for wrongfulness: see
again supra 39 ff.
81 Cf Van der Walt and Midgley Delict 160. Contra Van der Merwe and Olivier 346–348; Boberg Delict 733–736
742. Although one can in principle agree with these writers that one and the same act may have lawful as well as
unlawful consequences (supra 37 fn 14), this is definitely not the case where the death of the breadwinner was
caused lawfully. The reason is that as a result of the close relationship between the interests of the breadwinner and
those of the dependants, the position of the dependant cannot be judged independently of the circumstances under
which the breadwinner was killed (Van der Walt 1983 THRHR 444–445). Consequently, the prejudice caused to
the dependants will also always be lawful.
82 See in this regard supra 134; cf Davel Skadevergoeding aan Afhanklikes 86.
84 1908 TS 575.
85 See in this regard supra 208.
86 1955 2 SA 507 (A). For the facts of this case see supra 209.
87 The position is uncertain with regard to the defence of contributory intent in a case where the dependant bases his
claim on an intentional delict against the breadwinner (Wapnick v Durban City Garage 1984 2 SA 414 (D) 418).
On the one hand, it appears (supra 200; Mabaso v Felix 1981 3 SA 865 (A) 877) that s 1(1)(a) of the Apportion-
ment of Damages Act 34 of 1956 is only applicable to negligence and that apportionment of damages is thus
excluded where both parties acted intentionally. On the other hand, in Greater Johannesburg Transitional Metro-
politan Council v ABSA Bank Ltd t/a Volkskas Bank 1997 2 SA 591 (W) the court held that s 1(1)(a) is indeed
applicable where intent is present on the part of both parties (cf also Van der Merwe and Olivier 168; supra 200
212).
88 See supra fn 33.
89 This position also applies where the death of the breadwinner was caused intentionally (cf supra fn 87; Van der
Merwe and Olivier 343).
90 On the question of how the damages should be apportioned between the two joint wrongdoers, see supra 320 fn 8.
Finally, attention must be given to the effect of contributory negligence on the part of the bread-
winner. As in the case of contributory intent, it should also make a difference in this case
whether the positive law or the theoretically correct approach is followed. In the former case, the
position before 197191 was as follows: The Apportionment of Damages Act 34 of 1956 left the
common law principles concerning the dependants’ action unchanged.92 Accordingly, the so-
called last opportunity rule still applied.93 This means that if the breadwinner had the last oppor-
tunity to avoid the accident, this constituted a complete defence against the dependant’s action.
However, the dependant could succeed with his full claim if the third party had the last oppor-
tunity of avoiding the harm.94 If, by contrast, the dependant’s claim is regarded as being based
on a delict committed against the dependant himself, the fact that the breadwinner had the last
opportunity (or was contributorily negligent) could clearly not be raised against the dependant
(res inter alios acta). However, the position is presently regulated by the Apportionment of
Damages Act.95 The effect is that the breadwinner and the third party are regarded as joint
wrongdoers as against the dependant and he can, therefore, claim his compensation in full.
2.2.2 Injury to the breadwinner

The dependants of a person injured in a wrongful and culpable manner should, as in the case of
death, be able to claim loss of support with the Aquilian action. In principle there is no distinc-
tion between the two cases.96 Accordingly, the principles that have been stated with regard to the
death of the breadwinner97 should also apply here mutatis mutandis. There is, however, uncer-
tainty in this regard in positive law.
On the one hand, there are decisions that grant the Aquilian action to the dependants of an
injured married woman who has a duty to support them. In Abbott v Bergman98 a man, married
in community of property, was allowed to claim damages, inter alia, for the “loss of his wife’s
services in running the boarding-house”. Similarly, in Plotkin v Western Assurance Co Ltd,99
where the parties were married out of community of property, the court granted the husband
damages in circumstances where his injured wife was legally liable to contribute to the common
household. In Erdmann v Santam Insurance Co Ltd 100 the court was not unwilling to grant the
husband an action for loss of support as a result of injuries to his wife,101 but nevertheless
reached the conclusion102 “that the primary claim for the loss of her housekeeping ability should
be the wife’s and that that is in accord with modern social ideas”.
________________________
91 Before s 2(1B) was inserted into the Apportionment of Damages Act 34 of 1956.
92 Supra 199.
93 Van der Merwe and Olivier 163–164; Union Government v Lee 1927 AD 202.
94 It can be mentioned that if the apportionment principle had indeed been made applicable, it would have been
possible to raise the contributory negligence of the breadwinner as a defence and the dependant’s damages would
have been reduced in accordance with the breadwinner’s degree of fault.
95 Supra fn 33.
96 In Abbott v Bergman 1922 AD 53 56 De Villiers JA stated: “If he [the man] is allowed to recover the loss sustained
by him through the death of his wife, he must also be allowed to recover when the injuries are not fatal. For, in
principle, no distinction can be drawn between the two cases” (emphasis added); cf Van der Merwe and Olivier
336–339; Loubser and Midgley Delict 355.
97 Supra 332 ff.
98 1922 AD 53 56.
99 1955 2 SA 385 (W) 394–395.
100 1985 3 SA 402 (C).
101 The court stated, eg (406; see also 408–409): “Prima facie one would imagine that either of the two spouses could
institute action to recover that loss. The family unit has suffered because it is deprived of the services of one of its
members. That deprivation has been quantified. Whether the husband or the wife recovers the loss, is not really
material as it can be assumed that the award would be used for the family unit. Whilst there is something to be said
for the husband as nominal head of the household suing, there would appear to be more merit in allowing such a
claim to be brought by the spouse who suffered the physical injuries.”
102 409; see also 406.
342 Law of Delict
On the other hand, the decision in De Vaal v Messing103 lends support to the opposite view. The
court refused a claim for loss of support by the wife and children as a result of injury to the hus-
band. According to Greenberg J, dependants cannot claim in these circumstances because the
injured breadwinner himself must institute an action for loss of future income which can then be
utilised to support the dependants. He argued that “any claim by his [the injured person’s]
dependants against the wrongdoer would be met by the simple answer that they have suffered no
damage”.104 As stated,105 this argument cannot always be supported. Consequently, the depend-
ant should in principle have an action if he can prove loss of support. This approach is endorsed
by the Apportionment of Damages Act106 since 1971: the dependant is granted an action if the
injured breadwinner and the third party acted negligently and are regarded as joint wrongdoers
as against the dependant.
3 Psychological lesions (emotional shock)107
A psychological lesion (psychiatric injury or psychological disturbance) may be described as

any recognisable harmful infringement of the brain and nervous system of a person.108 The
existence of such a lesion, should, as a rule, be proved by supporting psychiatric evidence.109
Psychological injury may naturally be sustained in various ways, such as through nervous
shock,110 fright or other mental suffering.111 The fact that up to now South African courts have,
________________________
103 1938 TPD 34.

104 38. This view was unfortunately confirmed in Brooks v Minister of Safety and Security 2009 2 SA 94 (SCA)
99–100 where the court declared (99): “It follows that so long as a right of action exists in a breadwinner there
cannot also be a right of action in his/her dependants for loss of maintenance”; see further Minister of Safety and
Security v Madyibi 2010 2 SA 356 (SCA) 359; cf De Harde v Protea Assurance Co Ltd 1974 2 SA 109 (E)
114–115; Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 3 SA 295 (A) 305–306.
105 Supra 325–326.
106 See the discussion in this regard supra 326.
107 See in general Neethling 2000 TSAR 1 ff; Ahmed and Steynberg 2015 THRHR 181 ff; Neethling, Potgieter and
Roos Neethling on Personality Rights 143–145; Burchell 1999 SALJ 697 ff; Potgieter 9 LAWSA 1–14; Van der
Merwe and Olivier 328 ff; Boberg Delict 174 ff; Van der Walt Huldigingsbundel WA Joubert 247 ff; Van der Walt
and Midgley Delict 135í136; Loubser and Midgley Delict 361 ff; Mukheibir and Mitchell 2019 (22) PELJ 1 ff.
108 Barnard v Santam Bpk 1999 1 SA 202 (SCA) 208–209; Road Accident Fund v Sauls 2002 2 SA 55 (SCA) 61;
Media 24 Ltd v Grobler 2005 6 SA 328 (SCA) 347 348; Bester v Commercial Union Versekeringsmaatskappy van
SA Bpk 1973 1 SA 769 (A) 775 776 779; Grobler v Naspers Bpk 2004 4 SA 220 (C) 271 (Neethling and Potgieter
2004 SA Merc LJ 488–489); Majiet v Santam Ltd [1997] 4 All SA 555 (C) 567.
109 See Barnard v Santam Bpk 1999 1 SA 202 (SCA) 216; Road Accident Fund v Sauls 2002 2 SA 55 (SCA) 61; Hing
v Road Accident Fund 2014 3 SA 350 (WCC) 360–361 371; Swartbooi v Road Accident Fund [2012] 3 All SA 593
(WCC) para 18 (see Ahmed and Steynberg 2014 THRHR 306 ff).
110 Emotional shock may be described as a sudden painful emotion or fright resulting from the awareness or observa-
tion of an unwelcome or disturbing event which causes unpleasant emotions such as fear, anxiety or grief (Potgieter
9 LAWSA 2). Emotional shock may be caused, inter alia, by the prejudiced person’s fearing for his own safety (eg
Hauman v Malmesbury Divisional Council 1916 CPD 216; Creydt-Ridgeway v Hoppert 1930 TPD 664), or the
safety of another person (eg Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A)
(brother); Sueltz v Bolttler 1914 EDL 176 (spouse); Els E v Bruce; Els J v Bruce 1922 EDL 295 (spouse);
Hambrook v Stokes Bros 1925 1 KB 141 (children)), or even for the safety of his property (eg Masiba v Constantia
Insurance Co Ltd 1982 4 SA 333 (C) (breadwinner died of a stroke when he saw from a distance the defendant’s
motor car colliding with his car); by observing a gruesome accident (eg Masiba; Mulder v South British Insurance
Co Ltd 1957 2 SA 444 (W) (plaintiff saw her small son’s head being crushed by the wheel of a bus); Lutzkie v SAR
& H 1974 4 SA 396 (W) (plaintiff saw a co-passenger die in a bus accident)); by learning of the death of a relative
or a loved one (eg Waring and Gillow Ltd v Sherborne 1904 TS 340 (spouse); Layton and Layton v Wilcox and
Higginson 1944 SR 48 (child); Barnard v Santam Bpk 1999 1 SA 202 (SCA) (child)); or by experiencing other
disturbing events (Els E v Bruce; Els J v Bruce 1922 EDL 295 (defendant insulted the plaintiff and threatened to
harm her husband); Boswell v Minister of Police 1978 3 SA 268 (E) (defendant, fully aware of the untruth of the
information, told the plaintiff that he (defendant) had shot and killed plaintiff’s cousin); Creydt-Ridgeway v
[continued ]
in by far the majority of instances, been faced with delictual liability for emotional shock,
therefore does not exclude the possibility that psychological lesions not caused by emotional
shock may also be actionable.112 In fact, in Barnard v Santam Bpk,113 Van Heerden DCJ opined
that “there is undoubtedly much to be said for the viewpoint that ‘nervous shock’ is not only an
obsolete term without any specific psychiatric meaning, but it may also be misleading, and that
the only relevant question is whether the plaintiff sustained a recognisable psychological lesion”.
As a psychological injury is a requirement for liability on the ground of the emotional shock,
mere emotional sorrow, sadness or grief (for example as a result of the death of a child) which
does not cause such an injury, is not actionable. In Road Accident Fund v Sauls114 Olivier JA put
it thus:
________________________
Hoppert 1930 TPD 664; Fourie v Naranjo 2008 1 SA 192 (C) 201–202 (plaintiff was attacked by defendant’s dog);
N v T 1994 1 SA 862 (C) (defendant raped plaintiff’s eight-year-old daughter); Minister of Justice and Constitu-
tional Development v X 2015 1 SA 25 (SCA) 36í37 (rape of plaintiff’s five-year-old daughter); Majiet v Santam
Ltd [1997] 4 All SA 555 (C) (plaintiff came across the dead body of her son in the street); Clinton-Parker and
Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) (plaintiffs discovered that their babies had been swapped at
birth, two years earlier); Mbhele v MEC for Health for the Gauteng Province 2016 ZASCA 166 (R100 000
awarded for plaintiff suffering ordeal through delays in hospital and compelled to identify her stillborn baby –
finding rejected in Komape v Minister of Basic Education 2018 ZALMPPHC 1; cf Zitzke 2019 TSAR 820–821);
Western Cape Department of Social Development v Barley 2019 3 SA 235 (SCA) (see Neethling 2019 TSAR 773
ff) (parents of five-month-old child who died in early care facility claimed that they suffered psychiatric injury in
the form of post-traumatic stress disorder and depression, without presenting evidence to this effect) (see on the last
two cases, as well as on the substantial amounts awarded in “the tragedy of the Life Esidimeni patients”, Mukheibir
and Mitchell 2019 (22) PELJ 14 ff).
111 See in general Neethling, Potgieter and and Roos Neethling on Personality Rights 144–145. Cf Minister of Justice v
Hofmeyr 1993 3 SA 131 (A) 145–146 where psychological suffering resulting from an infringement of “mental and
intellectual well-being” (mental well-being as aspect of physical integrity: see Joubert Grondslae 131) was
regarded as actionable. This also applied where a woman suffered from a serious stress disorder as a result of
sexual harassment (Grobler v Naspers Bpk 2004 4 SA 220 (C) 271–272 (see Neethling and Potgieter 2004 SA Merc
LJ 488 ff); Media 24 Ltd v Grobler 2005 6 SA 328 (SCA) 347–348); PE v Ikwezi Municipality 2016 5 SA 114
(ECG)).
112 See Barnard v Santam Bpk 1999 1 SA 202 (SCA) 208–209.
113 1999 1 SA 202 (SCA) 208–209 (translation). In Swartbooi v Road Accident Fund [2012] 3 All SA 593 (WCC)
para 20 the court spoke of a “detectable psychiatric injury”. Cf Loubser and Midgley Delict 363.
114 2002 2 SA 55 (SCA) paras 13 17. See also, eg, Barnard v Santam Bpk 1999 1 SA 202 (SCA) 217; Western Cape
Department of Social Development v Barley 2019 3 SA 235 (SCA) para 23; Hing v Road Accident Fund 2014 3 SA
350 (WCC) 361; Komape v Minister of Basic Education 2018 ZALMPPHC 1 (see Zitzke 2019 TSAR 814 ff for a
critique; Mukheibir and Mitchell 2019 (22) PELJ 14 ff); see further Loubser and Midgley Delict 363). However, in
Mbhele v MEC for Health for the Gauteng Province (355/2015) [2016] ZASCA 166 (18 November 2016) para 11
there seems to be a deviation from the common law where the court awarded damages for severe shock, grief and
depression without any proof of the existence of a psychiatric lesion. A clear deviation from the common law took
place with regard to the Esidimeni tragedy when the former DCJ of the CC, Dikgang Moseneke, awarded
substantial constitutional bereavement damages to each of the families involved for the death of a mentally ill
family member who died as a result of neglect by state officials (see http://www.saflii.org/images/Life
EsidimeniArbitrationAward.pdf). In Komape v Minister of Basic Education 2020 2 SA 347 (SCA) (see Neethling
2020 (1) LitNet Akademies 527 ff) a core issue was whether mere emotional shock, bereavement or grief as a result
of the death of a family member can ground a delictual cause of action. Leach JA (paras 38í39) differed from the
view that Mbhele changed the common law (see also Komape v Minister of Basic Education 2018 ZALMPPHC 1
para 40; but see Zitzke 2019 TSAR 814 ff). Leach JA held that there were indeed indications of a psychiatric lesion
in Mbhele and that without reference to the SCA cases stating that mere grief is not considered to be actionable, and
without debating and adjudicating their ratio, “it cannot be said that they have been overruled by a simple passing
comment relating to grief. The decision in Mbhele is therefore no authority for the proposition that our law has
changed and that this court has recognised a claim for grief where there is no psychiatric lesion.” Leach JA (paras
57í63) also held that the Esidimeni arbitration award of constitutional damages was not applicable, because the
plaintffs in Komape had delictual remedies at their disposal, the arbitration decision did not have binding authority
as a judicial precedent and the facts of the two cases were completely different. In Komape, S, a five-year old boy,
fell into a pit latrine at his school and drowned. S’s parents and siblings instituted action in the High Court claiming
damages, inter alia, for emotional shock and grief. Their claims were dismissed and they appealed to the SCA. The
court held that in order to succeed with their claims, there was no need to develop the common law to recognise an
[continued ]
344 Law of Delict
It must be accepted that in order to be successful a plaintiff . . . must prove, not mere nervous shock or
trauma, but that she or he had sustained a detectable psychiatric injury. That this must be so is, in my
view, a necessary and reasonable limitation to a plaintiff's claim . . . I can find no general, “public
policy” limitation to the claim of a plaintiff, other than a correct and careful application of the well-
known requirements of delictual liability and of the onus of proof.
The decision of the Appeal Court in Bester v Commercial Union Versekeringsmaatskappy van
SA Bpk115 is the locus classicus for the viewpoint that impairment of personality and patrimonial
loss resulting from psychiatric injury or emotional shock caused wrongfully and negligently (or
intentionally), founds the action for pain and suffering and the actio legis Aquiliae in principle.
Prior to Bester, the South African law of delict lacked clear principles in this field. Since
Roman-Dutch authority was scant, the courts consistently sought guidance from English law.
This resulted in the imposition of two artificial restrictions on liability for emotional shock:116
(a) the shock (or psychological disturbance) must have originated from a physical injury or
resulted in harm to the physical constitution;117 and (b) the aggrieved party himself must have
been in personal danger of being physically injured.118 The first restriction concerns the element
of wrongfulness, while the second constitutes negligence or legal causation.
(a) Wrongfulness119 The requirement of physical harm indicates an infringement of the right
to physical integrity which is per se wrongful.120 This requirement was rejected in Bester. The
________________________
independent claim for grief and bereavement, as their claims could be accommodated within the existing law (paras
40í44). The court stated that it is clear from the evidence that S’s death had caused each of the plaintiffs to suffer
emotional shock and trauma, which embrace the psychiatric injuries suffered by them (that is, their post-traumatic
stress and depressive disorders), and with which their extended period of grief and sense of bereavement was
associated (paras 45í47). The court awarded damages to each plaintiff in respect of the claim for emotional trauma
and shock, which included allowance for their grief and bereavement (paras 51 ff). It is unfortumate that the court
did not use the opportunity to recommend obiter that the common law should be developed so that the causing of
grief and bereavement be recognised as an independant delictual cause of action. The Esidimeni tragedy provides
ample proof that there is a need in our law for such recognition. In this regard it should be mentioned that a number
of European systems grant damages for mere bereavement (pretium affectionis) to certain relatives or to other
persons having a firm relationship or ties of affection with a dead victim (see Verheij 2004 THRHR 406). In 2017,
para 844 (3) BGB also introduced bereavement damages in Germany and in the Netherlands the Wet Affectieschade
came into operation on 2019-01-01, also making provision for such damages (see Mukheibir and Mitchell 2019
(22) PELJ 10í11). Even in common law countries such as England, statutory provision is made for compensation
for bereavement for certain next of kin in the case of fatal accidents (see Komape (SCA) paras 36í37). See
Mukheibir and Mitchell 2019 (22) PELJ 14 ff on the distinction between sadness and psychiatric injury. They are
of the opinion that bereavement, sadness or grief resulting from a traumatic event causes significant distress and
that a continuum exists between normal and complex bereavement where a clear distinction does not exist, and that
South African courts should, therefore, bear this in mind in actions for compensation for non-patrimonial loss for
bereavement. Compensation for mere emotional sorrow, grief or sadness as a result of the wrongful death of a close
relative, would bring our law in line with these European systems. It is submitted that the South African Law
Reform Commission should investigate the matter and propose legislation for the future development of our law in
this respect (see also Neethling 2019 TSAR 777í778; cf Mukheibir and Mitchell 2019 (22) PELJ 28í30; Zitzke
2019 TSAR 814 ff; see generally Neethling, Potgieter and Roos Neethling on Personality Rights 28í29).
115 1973 1 SA 769 (A). In Minister of Justice v Hofmeyr 1993 3 SA 131 (A) the same court supplied direct authority
for the view that (intentional) causing of any psychological suffering with fairly serious consequences for the
psychological well-being of the victim, may found a claim based on the actio iniuriarum (see Neethling 2000 TSAR
2; Neethling, Potgieter and Roos Neethling on Personality Rights 144–145; Loubser en Midgley Delict 365).
116 See Majiet v Santam Ltd [1997] 4 All SA 555 (C) 557.
117 Eg Hauman v Malmesbury Divisional Council 1916 CPD 216 220; Bester v Commercial Union Versekeringsmaat-
skappy van SA Bpk 1972 3 SA 68 (D) 72–73.
118 Eg Mulder v South British Insurance Co Ltd 1957 2 SA 444 (W) 449.
119 See Neethling 2000 TSAR 3–5.
120 See infra 394.
artificial attempt to distinguish between physical and psychological harm121 necessitated by this
requirement was also dismissed. According to Bester,122 the brain and nervous system are as
much a part of the physical body as an arm or a leg. As a result, a physical injury is not
absolutely necessary to found liability. Botha JA123 stated that “to deny a prejudiced person
damages or satisfaction merely because nervous shock and consequent suffering are not
accompanied by a purely physical injury, can scarcely be defended on logical grounds”.
The effect of equating physical and psychological harm is that even a slight emotional shock
will in principle also infringe the personality right to physical integrity and consequently be
wrongful.124 This does not, however, mean that “insignificant emotional shock of brief duration
and with no material impact on the well-being of the person”, will be actionable.125 This is
simply an application of the maxim de minimis non curat lex. To be actionable, the harm caused
by the shock must be reasonably serious.126
(b) Negligence and legal causation127 The requirement of personal danger was similarly
rejected in Bester and replaced by the yardstick of reasonable foreseeability of harm.128 One is
________________________
121 Neethling, Potgieter and Roos Neethling on Personality Rights 35; Van der Merwe and Olivier 329–330; cf
Van der Walt Huldigingsbundel WA Joubert 249–251.
122 1973 1 SA 769 (A) 779.
123 Idem 777 (translation).
124 Cf Neethling, Potgieter and Roos Neethling on Personality Rights 146; infra 394. This view is supported by the
recognition of the right to physical and psychological integrity as a fundamental right in the Bill of Rights (Con-
stitution, 1996 s 12(2)), which recognition also enhances its protection (cf also supra 20 fn 160; infra 392 fn 59).
125 Bester 1973 1 SA 769 (A) 779 (translation); see also Clinton-Parker and Dawkins v Administrator, Transvaal 1996
2 SA 37 (W) 54; cf Van der Walt Huldigingsbundel WA Joubert 252. See 343 fn 144 supra on the non-actionability
for mere sadness or bereavement; cf Mukheibir and Mitchell 2019 (22) PELJ 1 ff.
126 See Van der Walt Huldigingsbundel WA Joubert 250; Swartbooi v Road Accident Fund [2012] 3 All SA 593
(WCC) para 18; Ahmed en Steynberg 2014 THRHR 307–308. Cases in which it was found that the shock was not
serious enough to merit compensation, are, eg, Layton and Layton v Wilcox and Higginson 1944 SR 48 (the plain-
tiff had to lie down and rest for an afternoon as a result of the shock); Lutzkie v SAR & H 1974 4 SA 396 (W) 398
(the effect of the shock was not described, but the court found that the plaintiff had suffered “no permanent conse-
quences” as a result of the shock); and Muzik v Canzone del Mare 1980 3 SA 470 (C) (no proof of any mental or
physical harm resulting from the shock experienced as a result of illness caused by eating poisoned mussels). On
the other hand, in Boswell v Minister of Police 1978 3 SA 268 (E) the plaintiff collapsed and lost consciousness as
a result of the emotional shock. Furthermore, she felt weak, had a headache and suffered from high blood pressure.
She felt shaky for a month after the infliction of the shock. A physician testified that the shock would have “a sub-
stantial effect on her health” (272). Her claim was allowed on appeal. Also in N v T 1994 1 SA 862 (C) 863 (cf also
Minister of Justice and Constitutional Development v X 2015 1 SA 25 (SCA) paras 54–55; Neethling and Potgieter
2015 TSAR 861–862) compensation was awarded for shock sustained as a result of the rape of the plaintiff’s
daughter. Williamson J stated (864): “[T]he plaintiff has a claim for damages, although she was not physically
injured. She has suffered significant emotional shock and trauma and still continues to suffer” (italics added);
Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) 54 (the plaintiffs suffered from “mixed
anxiety depressive disorder” after discovering that their babies had been swapped at birth, two years earlier);
Barnard v Santam Bpk 1999 1 SA 202 (SCA) 208 (news of her son’s death in an accident had a devastating – and
continuing – effect on the plaintiff. She suffered from serious “nervous shock” with diverse harmful consequences);
Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A) (due to fearing for his own
safety and seeing his brother being involved in an accident, the plaintiff suffered from a psychological neurosis and
a drastic personality change); Majiet v Santam Ltd [1997] 4 All SA 555 (C) (after discovering her son’s dead body
in the street where a car had run him over, the plaintiff suffered acute depression); Grobler v Naspers Bpk 2004 4
SA 220 (C) 271–272; Media 24 Ltd v Grobler 2005 6 SA 328 (SCA) 347–348 (due to sexual harassment, a woman
suffered from a serious stress disorder); Road Accident Fund v Sauls 2002 2 SA 55 (SCA) (since seeing her fiancee
being run over by a motor car, the plaintiff experienced a post-traumatic stress disorder); Komape v Minister of
Basic Education 2020 2 SA 347 (SCA) (the parents and siblings of a five-year-old boy who fell into a pit latrine at
his school and drowned, suffered serious emotional shock, grief and trauma resulting in post-traumatic stress and
depressive disorders) (cf fn 114 supra).
127 See Neethling 2000 TSAR 5–11.
128 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A) 780–781; see also Boswell v
Minister of Police 1978 3 SA 268 (E) 273–274; Masiba v Constantia Insurance Co Ltd 1982 4 SA 333 (C) 342–
343; Barnard v Santam Bank Bpk 1997 4 SA 1032 (T) 1066–1072; Clinton-Parker and Dawkins v Administrator,
[continued ]
346 Law of Delict
dealing here with the question of either negligence129 or legal causation130 with regard to the
emotional shock.
It is submitted that the question of negligence arises where the shock or psychiatric injury is the
only or at least (one of) the first harmful consequence(s) of the wrongdoer’s conduct; in other
words, in order to establish negligence, the reasonable foreseeability and preventability of the
psychological lesion(s) must be ascertained.131 However, where the emotional shock is a further
(subsequent or more remote) consequence of the wrongdoer’s already established negligent act
(ie, his negligence has already been determined with regard to another, pre-shock harmful conse-
quence), the question of legal causation is at hand, ie, whether the wrongdoer’s negligent act can
be regarded as the legal cause of the psychological lesion.132 133
The view that the reasonable foreseeability of remote psychological lesions is concerned with
legal causation is, however, not supported by Barnard. According to both the court a quo134 and
the Supreme Court of Appeal,135 one is still concerned with the question of negligence. This
view is subject to criticism, on the one hand because the question (in the court a quo) 136 of the
preventability of the psychological lesion involved does not make any sense in light of the
wrongdoer’s already established negligence,137 and, on the other, because the determination of
negligence with regard to the nervous shock through application of the foreseeability test only
(in the Supreme Court of Appeal) incorrectly reduces negligence to reasonable foreseeability
________________________
Transvaal 1996 2 SA 37 (W) 52 ff 57; Gibson v Berkowitz 1996 4 SA 1029 (W) 1049–1050; Swartbooi v Road
Accident Fund [2012] 3 All SA 593 (WCC) para 18.
129 In which case the reasonable person test – reasonable forseeability and preventability of the emotional shock – is
applied (see Barnard v Santam Bpk 1999 1 SA 202 (SCA) 213; supra 164 ff; cf Swartbooi v Road Accident Fund
[2012] 3 All SA 593 (WCC) para 18).
130 In which case the flexible approach is implemented, ie, the question of whether there was a sufficiently close
relationship between the wrongdoer’s negligent act and the emotional shock that it may, in view of policy
considerations based on reasonableness, fairness and justice, be imputed to the wrongdoer. In this process the
existing criteria for legal causation, such as reasonable foreseeability, may play a subsidiary role (see supra 233 ff).
131 Such as where the plaintiff, a pedestrian on the sidewalk, sustained serious emotional shock when he was nearly
knocked down by a vehicle driven by the defendant.
132 A good example is Barnard v Santam Bpk 1999 1 SA 202 (SCA) (1997 4 SA 1032 (T)) where the plaintiff
sustained serious nervous shock when she heard of her son’s death in a collision caused by the negligence of the
driver of one of the vehicles. (Be that as it may, in both the court a quo and the SCA, the court incorrectly deter-
mined the driver’s negligence with regard to the mother’s shock as well – this will be discussed infra.) See also
Majiet v Santam Ltd [1997] 4 All SA 555 (C) (psychological trauma sustained by the plaintiff when she discovered
her young son’s body in the street where he was negligently knocked down by a vehicle); Clinton-Parker and
Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) 55 ff (serious emotional disorder caused by the plaintiffs’
discovery, two years after the event, that their babies were negligently swapped at birth); Gibson v Berkowitz 1996
4 SA 1029 (W) 1038–1041 1048–1053 (psychological trauma experienced by the plaintiff after she was negligently
burnt with undiluted acid on her private parts during medical treatment); Road Accident Fund v Sauls 2002 2 SA 55
(SCA) (psychological lesion sustained when plaintiff saw her fiancee being negligently run over by a vehicle).
133 There is a difference of opinion whether, regarding the issue of foreseeability, Bester v Commercial Union Verseke-
ringsmaatskappy van SA Bpk 1973 1 SA 769 (A) dealt with legal causation or “fault (negligence) in relation to
nervous shock” (Boberg Delict 192) (see Neethling 2000 TSAR 6 fn 43); however, as Van Heerden DCJ (Barnard v
Santam Bpk 1999 1 SA 202 (SCA) 210) rightly remarked, as far as the foreseeability of a psychological lesion is
concerned, “from a practical point of view . . . it does not make any difference whether the one or the other
construction is preferred” (translation).
134 1997 4 SA 1032 (T) 1071–1072.
135 1999 1 SA 202 (SCA) 215–215; see also Road Accident Fund v Sauls 2002 2 SA 55 (SCA) 60–61. According to
Van Heerden DCJ in Barnard (213), only the foreseeability aspect of the test for negligence is relevant, since the
aspect of preventability was already finalised with regard to the negligence of the driver of the vehicle in relation to the
collision.
136 See also Road Accident Fund v Sauls 2002 2 SA 55 (SCA) 60–61.
137 See supra 245 ff; see the criticism by Potgieter 2004 Obiter 502–505 on the approach in Road Accident Fund v
Sauls 2002 2 SA 55 (SCA); however, see Knobel 2005 THRHR 423.
and consequently wrongly equates the two concepts.138 The conclusion is that the test for negli-
gence is not appropriate to ascertain liability for remote consequences.139
In the application of the foreseeability test – and here, from a practical point of view, it does not make
a difference whether the test serves to establish negligence or legal causation140 – this must be
determined in every case, taking account of all relevant circumstances, whether the psychiatric injury
was reasonably (or as a reasonable possibility) foreseeable.141 The following factors may play a role
in this regard:142 the fact that the psychological lesion resulted from physical injury, was connected
with such injury or sustained together with it;143 the fact that the plaintiff was in personal danger of
being physically injured;144 the fact that the plaintiff was informed of the death or injury of a
________________________
138 As indicated (supra fn 129), according to authoritative dicta of the Appeal Court, the test for negligence encom-
passes reasonable foreseeability and preventability of damage (cf also Barnard v Santam Bpk 1999 1 SA 202 (SCA)
213).
139 The difference between negligence (as far as foreseeability is concerned) and legal causation is emphasised by the
fact that considerations of policy play a part only with regard to the latter (Barnard v Santam Bpk 1999 1 SA 202
(SCA) 212–213 215; Road Accident Fund v Sauls 2002 2 SA 55 (SCA) 61–63). A consideration frequently raised
is that liability for psychological lesions will lead to a tidal wave of litigation (see Barnard 215; Majiet v Santam
Ltd [1997] 4 All SA 555 (C) 558 568; Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W)
60–64). The fear of unlimited liability seems to be somewhat exaggerated (Barnard 215–216; Neethling 2000
TSAR 7–8; Mukheibir and Mitchell 2019 (22) PELJ 25 ff) and can in any case be allayed by the correct and careful
application of delictual principles applicable to the area of liability for emotional shock or psychological lesions (eg
Majiet 558). A second policy consideration often advanced against liability for psychiatric injuries is that it will
lead to simulated claims. The answer to this is simply that the plaintiff still has to prove that she sustained a recog-
nisable psychiatric injury – as a rule she will therefore have to rely on corroborative medical and psychiatric
evidence (see Barnard 216; Sauls 61).
It is interesting to note that policy considerations relevant to legal causation, as well as the considerations of
reasonableness, fairness and justice which characterise the flexible approach in this regard (see supra fn 130; Sauls
61), are in essence not different from the considerations that play a part in English law with regard to the question
of whether the wrongdoer owed the psychologically harmed person a “duty of care” (Barnard 215). Van der Walt
Huldigingsbundel WA Joubert 256–260 subscribes to this view. He argues that the “duty of care” approach to
wrongfulness where reasonableness as policy yardstick is decisive (see supra 60 ff), rather than reasonable foresee-
ability as criterion for legal causation, should be utilised to keep liability for nervous shock within bounds. In this
regard it must, however, be emphasised that even though the courts applied reasonable foreseeability in many
instances to ascertain legal causation with regard to psychological lesions, it is not the decisive yardstick, since the
flexible approach to legal causation – where the criterion of foreseeability merely plays a subsidiary (albeit
important) part – should be applied (see, eg, Clinton-Parker 55 ff; Gibson v Berkowitz 1996 4 SA 1029 (W) 1038–
1041 1048–1053; Majiet 561–562 568–569; Barnard 215–217; see further Neethling 2000 TSAR 8). Seen in this
way, the use of reasonable foreseeability does not conflict with, but is rather in line with, current modern legal
thought in limiting liability by legal causation, and, in so doing, allaying the fear of unlimited liability (see, eg,
Clinton-Parker 55 ff; Majiet 561–562 568–569; cf Barnard 215–217; Van Aswegen 1993 THRHR 192–193). The
question of whether the plaintiff’s conduct constitutes a novus actus interveniens severing the link of legal causa-
tion between the defendant’s negligent conduct and the plaintiff’s psychological lesions (supra 250 ff) is also
relevant (see, eg, Clinton-Parker 55 59; Gibson 1050–1053; Majiet 569; Sauls 62).
140 See Barnard v Santam Bpk 1999 1 SA 202 (SCA) 210; cf supra fn 133.
141 Here it is not necessary that the precise nature or extent of the psychological lesion(s) should have been reasonably
foreseeable (Majiet v Santam Ltd [1997] 4 All SA 555 (C) 568; Masiba v Constantia Insurance Co Ltd 1982 4 SA
333 (C) 342; Gibson v Berkowitz 1996 4 SA 1029 (W) 1050). It suffices if the general nature thereof (eg nervous
shock) was foreseeable (Road Accident Fund v Sauls 2002 2 SA 55 (SCA) 60; Van der Walt and Midgley Delict
135; supra 178).
143 Eg Gibson v Berkowitz 1996 4 SA 1029 (W) 1048–1050 (plaintiff sustained serious psychological lesions after her
private parts were burnt by undiluted acid during medical treatment; cf Bester v Commercial Union Versekerings-
maatskappy van SA Bpk 1973 1 SA 769 (A) 777; Greydt-Ridgeway v Hoppert 930 TPD 664 666). However, as
stated, “pure” physical harm is no longer a necessary requirement for liability for emotional shock.
144 See Masiba v Constantia Insurance Co Ltd 1982 4 SA 333 (C) 343; Bester v Commercial Union Versekerings-
maatskappy van SA Bpk 1973 1 SA 769 (A) 781. In both cases the court intimated that nervous shock sustained
under circumstances in which the victim feared personal injury was more foreseeable than shock sustained as a
result of hearing of or seeing another’s suffering (cf infra fns 145 146). As indicated, personal danger is, however,
no longer a necessary requirement for liability for emotional shock (see also Barnard v Santam Bank Bpk 1997 4 SA
1032 (T) 1067).
348 Law of Delict
close relative;145 and the fact that the plaintiff personally witnessed the death or injury of
someone with whom the plaintiff had a close relationship.146
Finally, in connection with the foreseeability criterion, it must be noted that once the court has
found that reasonably serious147 emotional shock was reasonably foreseeable, the wrongdoer is
then liable for any detrimental physical or mental consequences148 ensuing from the emotional
shock, regardless of whether such consequences were foreseeable as well. The so-called “thin
skull” or talem qualem rule, ie, that “the wrongdoer takes his victim as he finds him”, thus
applies here.149 According to this rule, a defendant cannot escape liability by proving that the
plaintiff was particularly susceptible to the prejudicial consequences of the shock150 and that the
consequences were therefore not reasonably foreseeable.151 152
________________________
145 The so-called “hearsay cases”: see Barnard v Santam Bpk 1999 1 SA 202 (SCA) 209 where the plaintiff succeeded
on the ground of the serious nervous shock she sustained when hearing about her child’s death in a collision (see
also Swartbooi v Road Accident Fund [2012] 3 All SA 593 (WCC); contra Barnard (court a quo) 1997 4 SA 1032
(T) 1070–1072; Waring and Gillow Ltd v Sherborne 1904 TS 340). According to Van Heerden DCJ, the shock was
foreseeable as a reasonable possibility (214–215), especially because of the particularly loving relationship which
normally exists between a mother and her young child. He formulated the following general rule: “the closer the
relationship or affinity between the primary victim and the shocked person, the easier it is to conclude that the
causing of the shock was reasonably foreseeable” (translation). Cf further Bester v Commercial Union Verseke-
ringsmaatskappy van SA Bpk 1973 1 SA 769 (A) 781 (obiter); N v T 1994 1 SA 862 (C) (mother heard of the rape
of her eight-year-old daughter); Boswell v Minister of Police 1978 3 SA 268 (E) (aunt was informed, albeit falsely,
of the death of her nephew); Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) (mothers
were told that their babies had been swapped at birth two years earlier); Hing v Road Accident Fund 2014 3 SA 350
(WCC) 370 ff (daughter heard of mother’s car accident and observed her suffering and death in hospital). The
question of whether non-relatives may claim, has not yet been pertinently raised in the courts (cf Potgieter 9
LAWSA 1011). However, it does not seem that Barnard 215 excluded such a possibility. Cf infra fn 146.
146 See Road Accident Fund v Sauls 2002 2 SA 55 (SCA) where the plaintiff was successful with her claim for serious
emotional shock sustained on witnessing her fiancee being run over by a motor car. In respect of the inquiry into
legal causation, the objection was raised that a flood of litigation could follow if liability for emotional shock was
extended to non-relatives, eg betrothed persons. Olivier JA (62–63) rejected the objection because correct applica-
tion of delictual prinicples would keep liability within manageable bounds. He continued (ibid): “It is not justifiable
to limit the sort of claim now under consideration . . . to a defined relationship between primary and secondary
victims, such as parent and child, husband and wife, etc. Of course, in determining limitations a court will take into
consideration the relationship between primary and secondary victims. The question is one of legal policy, reason-
ableness, fairness and justice, ie was the relationship between the primary and secondary victims such that the
claim should be allowed, taking all facts into consideration.” Due to the close relationship between the betrothed
parties – prior to the accident they had lived as husband and wife for a year, and they had since then indeed entered
into marriage – the court allowed the plaintiff’s claim (see Potgieter 2004 Obiter 497 ff for a discussion). See
further Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A) (plaintiff saw how his
brother was fatally run over by a vehicle). Cf also Masiba v Constantia Insurance Co Ltd 1982 4 SA 333 (C) 342
where the claim succeeded on the ground that the plaintiffs’ breadwinner died of a stroke when he saw how his
motor car, in which his two children were sitting, was hit by another vehicle; Barnard v Santam Bank Bpk 1997 4
SA 1032 (T) 1067 (obiter). On the other hand, in Lutzkie v SAR & H 1974 4 SA 396 (W) 398, the court dismissed
the claim where the plaintiff saw how a fellow passenger (not a relative) in a bus was killed during a collision.
147 Or psychological harm of a gravity sufficient to render it actionable (eg Masiba v Constantia Insurance Co Ltd
1982 4 SA 333 (C) 342; see also Majiet v Santam Ltd [1997] 4 All SA 555 (C) 567; Clinton-Parker and Dawkins v
Administrator, Transvaal 1996 2 SA 37 (W) 65).
148 Such as a total change of personality, a miscarriage, a heart attack or a stroke.
149 Eg Masiba v Constantia Insurance Co Ltd 1982 4 SA 333 (C) 342; Majiet v Santam Ltd [1997] 4 All SA 555 (C)
567; Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) 64–65; Gibson v Berkowitz 1996
4 SA 1029 (W) 1049–1050; Barnard v Santam Bank Bpk 1997 4 SA 1032 (T) 1067–1068; Boswell v Minister of
Police 1978 3 SA 268 (E) 272 274; cf supra 253 in connection with egg-skull cases in general.
150 See Majiet v Santam Ltd [1997] 4 All SA 555 (C) 567; Boswell v Minister of Police 1978 3 SA 268 (E) 272;
Barnard v Santam Bank Bpk 1997 4 SA 1032 (T) 1069; see also Potgieter 9 LAWSA 11 13 fn 29.
151 Liability should therefore – as Van der Walt and Midgley Delict 290 propose – perhaps be explained with reference
to the “direct consequences” theory as a subsidiary criterion in the implementation of the flexible approach to legal
causation (see supra 240 fn 163).
152 See further Neethling 2000 TSAR 10–11 on instances where psychological lesions or emotional shock is caused
intentionally or by conduct which gives rise to strict liability.
4 Pure economic loss
As pointed out,153 the Aquilian action is in principle available to claim damages for pure
economic loss. For conceptual clarification, it is necessary at the outset to describe clearly
what is meant by the concept “pure economic loss”. On the one hand, pure economic loss may
comprise patrimonial loss that does not result from damage to property or impairment of
personality.154 155 On the other hand, pure economic loss may refer to financial loss that does
flow from damage to property or impairment of personality, but which does not involve the
plaintiff’s property or person;156 or if it does, the defendant did not cause such damage or
________________________
153 See supra 11 on the position in case law; see also in general Boberg Delict 103 ff; Van der Walt and Midgley
Delict 136–138; Loubser and Midgley Delict 274–280; Schoeman 1986 THRHR 287 ff; cf Fagan 2014 SALJ 288 ff,
Aquilian Liability xxi 186 ff, Undoing Delict 181 ff.
154 In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA)
465 Harms JA described pure economic loss in this context in the following words: “‘Pure economic loss’ in this
context connotes loss that does not arise directly from damage to the plaintiff’s person or property but rather in
consequence of the negligent act itself, such as loss of profit, being put to extra expenses or the diminution in the
value of property”; see further Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 25;
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 156.This is usually the case
in respect of negligent misrepresentation (this will be discussed in detail infra 357 ff) and unlawful competition (for
a detailed discussion, see infra 373 ff). Such pure economic loss was also present in eg Combrinck Chiropraktiese
Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd 1972 4 SA 185 (T) (where the lessee of a motor
car suffered patrimonial loss as a result of certain defects in the car which led to expensive repairs); Greenfield
Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N) (where A suffered financial loss
because a cheque that was sent to him by B was stolen and, as a result of the fact that the cheque had not been
crossed, the thief was able to open a bank account, withdraw the money and disappear with it); Arthur E Abrahams
and Gross v Cohen 1991 2 SA 301 (C) (where a firm of attorneys, employed by the executors of a deceased estate
to administer the estate, failed to take the necessary steps for the payment of the proceeds of certain policies to the
beneficiaries within a reasonable time – in casu payment only took place five years after the deceased’s death – and
consequently caused them financial loss); Knop v Johannesburg City Council 1995 2 SA 1 (A) (where A, a town
developer, as a result of a wrong decision of the City Council in connection with A’s application for the subdivision
of a stand, suffered financial loss because he could not continue with his development project for a certain period);
BOE Bank Ltd v Ries 2002 2 SA 39 (SCA) (see Neethling and Potgieter 2002 THRHR 473 ff); Ries v Boland Bank
PKS Ltd 2000 4 SA 955 (C) (see Hutchison 2000 SALJ 186 ff) (where an insurance broker (defendant) omitted to
nominate the plaintiff as beneficiary of a policy (taken out by her spouse) in the place of another person, as a result
of which the plaintiff forfeited the proceeds of the policy at the death of her spouse). See also Fagan Undoing
Delict 181 ff, 2014 SALJ 288 ff; Boberg Delict 104; Neethling and Van Aswegen 1989 THRHR 607.
155 It is important to note that the theft of property should not be considered to be pure economic loss, which is prima
facie lawful, but qualifies as property damage, which is prima facie wrongful (Imvula Quality Protection (Pty) Ltd
v Loureiro 2013 3 SA 407 (SCA) 425; Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276
(SCA) 294). In this regard, the decisions in Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a
Pha Phama Security 2010 4 SA 455 (SCA) 458 and McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading
300 CC t/a Harvey World Travel 2012 6 SA 551 (GNP) 561 are incorrect. See also supra 49 fn 72; Neethling 2011
THRHR 170).
156 Examples in case law are the following: A negligently damages the cable that provides electricity to B’s (plaintiff)
factory. B suffers consequential loss of production (Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty)
Ltd 1982 4 SA 371 (D)); A’s ship negligently damages B’s mooring buoy. This delays the discharge of the tanker
of which C (plaintiff) is the lessee and charterer. Consequently C, in terms of the agreement between him and the
lessor, has to pay additional demurrage for the period of delay (Shell and BP SA Petroleum Refineries (Pty) Ltd v
Osborne Panama SA 1980 3 SA 653 (D)); A (the railways) uses poison to destroy the plants next to the railway
line. The poison spreads and damages the vineyards of several farmers. The result is a poor grape crop and B
(plaintiff), the cooperative society to whom the farmers must deliver their crops in terms of an agreement, suffers
financial loss (Franschhoekse Wynkelder (Ko-operatief) Bpk v SAR & H 1981 3 SA 36 (C)). Note that despite the
fact that there was damage to property in all three examples (to the cable, the mooring buoy and the vineyards), it is
not the plaintiff’s property and his loss is thus of a purely economic character. Strictly speaking, one is also dealing
with pure economic loss in cases of patrimonial damage as a result of the death or injury of another person (supra
349) since the plaintiff was not harmed in respect of his person (see Santam Bpk v Henery 1999 3 SA 421 (SCA)
430; Boberg Delict 103). However, as a rule these cases do not present particular problems as crystallised prin-
ciples exist. The same applies with regard to the economic loss which flows from damage to property where the
[continued ]
350 Law of Delict
injury.157 To found liability for pure economic loss, the obvious qualification is that the
wrongdoer’s conduct must comply with the general delictual requirements.158 For present
purposes, only the element of wrongfulness requires special attention.
It is an accepted premise in our law that wrongfulness lies either in the infringement of a
subjective right, or in the breach of a legal duty to avoid damage (norm or duty violation).159
This also applies to liability for pure economic loss. Infringement of a subjective right occurs
fairly often in this regard, as in the case of unlawful competition, where the right to goodwill is
involved,160 or the interference with another’s contractual relationship, where a personal right is
frequently at stake.161 Nevertheless, according to the courts, the wrongfulness of an act causing
pure economic loss almost always162 lies in the breach of a legal duty.163 This approach is
________________________
plaintiff has a limited real right, or in historically justified cases, only a personal right in respect of the property
(see infra 370 where these instances of interference with a contractual relationship are discussed in more detail).
See also Neethling and Van Aswegen 1989 THRHR 607–608.
157 See, eg, Kadir v Minister of Law and Order 1992 3 SA 737 (C): As a result of the negligence of A, B’s motor car
left the road and he was injured. Two constables (employees of defendant) who arrived on the scene of the
collision, failed to take any particulars concerning the identity of A. As a result of this omission, B was precluded
from instituting a claim against the MMF for his damage and consequently suffered pure economic loss. B
succeeded with his claim in the court a quo (see Van der Walt 1991 TSAR 692; Neethling and Potgieter 1993 TSAR
525), but lost on appeal (Minister of Law and Order v Kadir 1995 1 SA 303 (A); see Burchell 1995 SALJ 21; Scott
1995 De Jure 158; Neethling and Potgieter 1996 THRHR 333 for discussions). Scott 1995 De Jure 164 opines that
because of the Appellate Division decision in Kadir, this type of pure economic loss is no longer relevant and
should therefore be scrapped. This view is, however, not acceptable; the reason being that it is still possible for the
courts to construe a legal duty to avoid economic loss in an analogous situation where the police is not involved.
This in fact happened in Joubert v Impala Platinum Ltd 1998 1 SA 463 (B). A (plaintiff) was injured in an accident
in the course of his employment with B (defendant). At the time of the accident A was covered by a master policy
of insurance negotiated between B and an insurance company. In terms of the policy B was required to give notice
of the accident to the insurer and to provide it with the necessary documentation without delay. B failed to do this
and A suffered pure economic loss. The court found that A had a cause of action (see also Neethling 1996 THRHR
196 for a further example).
158 Jowell v Bramwell-Jones 1998 1 SA 836 (W) 877.
159 See in this regard supra 60; cf in general Neethling 1983 THRHR 205 ff in respect of pure economic loss. See
further Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 567; Coronation Brick (Pty) Ltd v Strachan
Construction Co (Pty) Ltd 1982 4 SA 371 (D) 379–380; Van der Walt and Midgley Delict 138.
160 Van der Walt and Midgley Delict 138 fn 29; infra 373 ff for a detailed discussion.
161 Eg Franschhoekse Wynkelder (Ko-operatief) Bpk v SAR & H 1981 3 SA 36 (C); Coronation Brick (Pty) Ltd v
Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D); Basson 1983 1 Codicillus 9; infra 368 ff for a detailed
discussion.
162 Excluding cases of unlawful competition.
163 Eg Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 32; Mediterranean Shipping Co (Pty)
Ltd v Tebe Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 494–495; Minister of Finance v Gore 2007 1 SA 111
(SCA) 138–139; Du Preez v Swiegers 2008 4 SA 627 (SCA) 632; Trustees, Two Oceans Aquarium Trust v Kantey
& Templer (Pty) Ltd 2006 3 SA 138 (SCA) 143; Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
2009 2 SA 150 (SCA) 156; Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 588; Spar Group Ltd v FirstRand
Bank Ltd [2016] 4 All SA 646 (GP) paras 58–62; Moniel Holdings (Pty) Ltd v Premier of Limpopo Province [2007]
3 All SA 410 (T) 417–418; Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D)
384–387; Franschhoekse Wynkelder (Ko-operatief) Bpk v SAR & H 1981 3 SA 36 (C) 40–41; Shell and BP SA
Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 3 SA 653 (D) 659; Tobacco Finance (Pvt) Ltd v Zimnat
Ins Co Ltd 1982 3 SA 55 (ZH) 61–62; Zimbabwe Banking Corp Ltd v Pyramid Motor Corp (Pvt) Ltd 1985 4 SA
553 (ZS) 560 568; Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Mpy v Lebos 1985 4 SA 341 (T) 346–347
348; UDC Ltd v Bank of Credit and Commerce Zimbabwe Ltd 1990 3 SA 529 (Z) 533–535 (cf 1991 4 SA 82 (ZS)
92); McLelland v Hulett 1992 1 SA 456 (D) 464–466; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA
783 (A) 797–798; Fedgen Insurance Ltd v Bankorp Ltd 1994 2 SA 399 (W) 404 ff; Knop v Johannesburg City
Council 1995 2 SA 1 (A) 26–27; Minister of Law and Order v Kadir 1995 1 SA 303 (A) 317–318 (1992 3 SA 737
(C) 742–743); Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T) 398–399; Jowell v
Bramwell-Jones 1998 1 SA 836 (W) 878; Joubert v Impala Platinum Ltd 1998 1 SA 463 (B) 473–474; Ries v
Boland Bank PKS Ltd 2000 4 SA 955 (C) 968 ; The Oil Rig South Seas Driller Sheriff of Cape Town v Pride
Foramer SA 2001 3 SA 841 (C) 843; BOE Bank Ltd v Ries 2002 2 SA 39 (SCA) 46–47; Aucamp v University of
[continued ]
acceptable, as long as one bears in mind that, where a subjective right is in fact involved,
wrongfulness may just as well lie in the infringement of this right, being the converse of the
legal duty.
It must be borne in mind164 that a general duty to prevent pure economic loss for other persons
does not exist; or, in other words, that the factual causing of pure economic loss is not prima
facie wrongful.165 Consequently, it must be determined in each case whether, according to the
circumstances, there was a legal duty to avoid pure economic loss. The yardstick that must be
applied in this determination is the general criterion of reasonableness or boni mores.166 As
indicated,167 this criterion requires the court to exercise “a value judgment embracing all relevant
facts and involving considerations of policy”.168 169 This is usually described as the “policy
based aspect of the ‘duty of care’ concept, by means of which the scope of delictual liability is
________________________
Stellenbosch 2002 4 SA 544 (C) 566–569; Arthur E Abrahams and Gross v Cohen 1991 2 SA 301 (C) 307 309. Cf
Wessels 2020 THRHR 162 ff; Knobel 2020 THRHR 204.
164 Supra 60.
165 See, eg, Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 1 SA 1
(CC) paras 22 23; Itzikowitz v ABSA Bank Ltd 2016 4 SA 432 (SCA) para 8; Minister for Safety and Security v
Scott [2014] 3 All SA 306 (SCA) para 32; Minister of Finance v Gore 2007 1 SA 111 (SCA) 138; Telematrix (Pty)
Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468; Steenkamp NO v
Provincial Tender Board, Eastern Cape 2006 3 SA 151 (SCA) 155; Mediterranean Shipping Co (Pty) Ltd v Tebe
Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 494; Fourway Haulage SA (Pty) Ltd v SA National Roads Agency
Ltd 2009 2 SA 150 (SCA) 156; Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA) 498; Trustees, Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 143; Local Transitional Council of Delmas v
Boshoff 2005 5 SA 514 (SCA) 522; Brooks v Minister of Safety and Security 2009 2 SA 94 (SCA) 96–97; Brooks v
The Minister of Safety and Security [2007] 4 All SA 1389 (C) 1404; Meechan v VGA Chartered Accountants
Partnership t/a PKF (VGA) Chartered Accountants [2020] 2 All SA 510 (GJ) para 37; Living Hands (Pty) Ltd v
Ditz 2013 2 SA 368 (GSJ) 378–379; see also Knop v Johannesburg City Council 1995 2 SA 1 (A) 26; BOE Bank
Ltd v Ries 2002 2 SA 39 (SCA) 46; African Life Assurance Co Ltd v NBS Bank Ltd 2001 1 SA 432 (W) 440;
Energy Measurements (Pty) Ltd v First National Bank of SA Ltd 2001 3 SA 132 (W) 173–174; Van der Walt and
Midgley Delict 137; Loubser and Midgley Delict 275; Fagan Aquilian Liability 174, Undoing Delict 247 252, 2018
SALJ 19 25; Neethling 2006 SALJ 211; Van Aswegen Sameloop van Eise 117 ff 146; Neethling and Potgieter 1995
THRHR 530–531.
166 See Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 32; Hirschowitz Flionis v Bartlett
2006 3 SA 575 (SCA) 588 589; Jowell v Bramwell-Jones 1998 1 SA 836 (W) 877–878; Santam Bpk v Henery 1999
3 SA 421 (SCA) 430; Living Hands (Pty) Ltd v Ditz 2013 2 SA 368 (GSJ) 379; Coronation Brick (Pty) Ltd v
Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 384 (with reference to the classic formulation of the test for
an omission in Minister van Polisie v Ewels 1975 3 SA 590 (A) 597). Cf Fagan Aquilian Liability 199–209 who
says that our courts have endorsed the following proposition with regard to the wrongfulness of pure economic
loss: “Negligent conduct causing pure economic loss is to be judged wrongful if and only if the imposition of
liability for it is reasonable, or is not contrary to policy, or is required by the legal convictions of the community.”
167 See in this regard supra 39 ff.
168 Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 797; see also Steenkamp NO v Provincial
Tender Board, Eastern Cape 2007 3 SA 121 (CC) 139; Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty)
Ltd [2007] 2 All SA 489 (SCA) 494; Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3
138 (SCA) 144; Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 156; BOE
Bank Ltd v Ries 2002 2 SA 39 (SCA) 46–47; AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) 618–622;
Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 294–297; Living Hands (Pty) Ltd v
Ditz 2013 2 SA 368 (GSJ) 378–379; Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 568; Commissioner,
South African Revenue Service v ABSA Bank Ltd 2003 2 SA 96 (W) 112–114; Fedgen Insurance Ltd v Bankorp Ltd
1994 2 SA 399 (W) 406–407; Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T) 398;
Joubert v Impala Platinum Ltd 1998 1 SA 463 (B) 473; Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C) 968–969.
Cf Wessels 2020 THRHR 161 ff.
169 In Minister of Finance v Gore 2007 1 SA 111 (SCA) 139–140 the court held that intention “is in itself an essential
element of wrongfulness” and that public policy considerations required that the conduct of persons who inten-
tionally caused pure economic loss, be branded as wrongful (cf Brand 2014 Stell LR 467–468; cf further South
African Post Office v De Lacy 2009 5 SA 255 (SCA) 257–258; mCubed International (Pty) Ltd v Singer 2009 4 SA
471 (SCA) 483). This view is subject to criticism because the court probably confused an improper motive with
intention (see supra 48 fn 61). For an example of what Meyer J referred to as pure economic loss caused
intentionally, see Chowan v Associated Motor Holdings 2018 4 SA 145 (GJ) paras 54–55.
352 Law of Delict
judicially controlled”.170 The boni mores criterion implies a careful weighing up of the interests
of the parties involved, taking into account the public interest.171
In applying the boni mores criterion to determine the legal duty with regard to pure economic
loss, the courts attach importance to the following factors, which should not be considered to be
a numerus clausus:172 173
(i) Knowledge – the fact that the defendant knew or subjectively foresaw that his negligent
conduct would cause damage to the plaintiff.174 This factor plays a very important and
perhaps even a decisive role in the determination of the legal duty.175
________________________
170 Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 32; Shell and BP SA Petroleum Re-
fineries (Pty) Ltd v Osborne Panama SA 1980 3 SA 653 (D) 659; Franschhoekse Wynkelder (Ko-operatief) Bpk v
SAR & H 1981 3 SA 36 (C) 40; Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371
(D) 381–382; Tobacco Finance (Pvt) Ltd v Zimnat Ins Co Ltd 1982 3 SA 55 (ZH) 61; Zimbabwe Banking Corp Ltd
v Pyramid Motor Corp (Pvt) Ltd 1985 4 SA 553 (ZS) 563–564; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd
1992 1 SA 783 (A) 797–798 801; Thorpe v South African Reserve Bank 1992 3 SA 208 (T) 214; Minister of Law
and Order v Kadir 1995 1 SA 303 (A) 317–318; Knop v Johannesburg City Council 1995 2 SA 1 (A) 26–28. In
Franschhoekse Wynkelder 41 the court rejected the action, inter alia, on the basis of policy considerations,
declaring that “[n]o considerations of policy have been advanced to us to justify the extension of the Aquilian
action so as to cover the facts of the present case, and I can see none” (see also Witham v Minister of Home Affairs
1989 1 SA 116 (ZH) 132–133; Neethling and Van Aswegen 1989 THRHR 610–611). On the other hand, in Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 801 the Appellate Division was persuaded by
considerations of policy and convenience to extend the applicability of the lex Aquilia (see also Fedgen Insurance
Ltd v Bankorp Ltd 1994 2 SA 399 (W) 405 ff).
171 In Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 384 this view was
expressed as follows: “It would seem therefore that in determining in a given case whether the defendant’s conduct
which resulted in foreseen or foreseeable economic loss was unlawful or wrongful the question is whether it would
in all the circumstances be reasonable to recognise that defendant owed the plaintiff a legal duty or duty of care . . .
Although it is not possible to lay down hard and fast rules, certain guidelines have been laid down by our Courts. A
defendant’s conduct, including an omission, is regarded as unlawful when the circumstances of the case are of such
a nature that it not only incites moral indignation but also that the legal convictions of the community demand that it
ought to be regarded as unlawful and that the damage suffered by the plaintiff ought to be made good by the
defendant . . . In determining whether conduct is of such a nature as to be determined unlawful, the Court must
carefully balance and evaluate the interests of the concerned parties, the relationship of the parties and the social
consequences of the imposition of liability in that particular type of situation” (emphasis added). See also Santam
Bpk v Henery 1999 3 SA 421 (SCA) 430; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 797–
798; Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 568; Thorpe v South African Reserve Bank 1992 3
SA 208 (T) 214; McLelland v Hulett 1992 1 SA 456 (D) 465; Fedgen Insurance Ltd v Bankorp Ltd 1994 2 SA 399
(W) 506–509; Knop v Johannesburg City Council 1995 2 SA 1 (A) 27; Minister of Law and Order v Kadir 1995 1
SA 303 (A) 318; Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T) 398–399; Joubert v
Impala Platinum Ltd 1998 1 SA 463 (B) 473–374; Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C) 968–969; cf
Zimbabwe Banking Corp Ltd v Pyramid Motor Corp (Pvt) Ltd 1985 4 SA 553 (ZS) 562; Witham v Minister of
Home Affairs 1989 1 SA 116 (ZH) 132–133; Wessels 2020 THRHR 158.
172 See also Scott 2017 THRHR 487. In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA
150 (SCA) 161 Brand JA explained determination of a legal duty ouside of recognised factors in instances of pure
economic loss as follows: “In a case like the present where the claim for pure economic loss falls outside the ambit
of any recognised category of liability, the first step is . . . to identify the considerations of policy that are of
relevance. As part of the identification process assistance can of course be gained from previous decisions, both at
home and abroad, as well as from the helpful analysis by academic authors . . .” (see Neethling 2010 TSAR 171–
173). See further Arthur E Abrahams and Gross v Cohen 1991 2 SA 301 (C) 309; cf Wessels 2020 THRHR 158.
173 See also Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 568; As v Kotze [2019] 3 SA 284 (NCK)
para 130; Scott 2017 THRHR 487. Factors playing a part in determining a legal duty in instances of negligent
misrepresentation can, where relevant, also apply to pure economic loss (see infra 361–362).
174 In Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 386, where the defendant
damaged the electrical cables to the plaintiff’s factory, the court explained the determination of the legal duty as
follows: “It seems to me on balance that the circumstances alleged are of such a nature that the defendant’s alleged
conduct does incite moral indignation and offends against the legal convictions of the community. I believe that the
attitude of the community to defendant’s alleged conduct would be ‘but for heaven’s sake, you knew precisely
where the cables were; you knew that if they were cut plaintiff would suffer a substantial loss of income, surely
[continued ]
(ii) Reasonable foreseeability – the fact that the defendant should have foreseen that negligent
conduct on his part would harm the plaintiff.176 The general rule is that the greater the
foreseeability of damage, the greater the possibility that a legal duty to prevent damage
exists.177
(iii) Practical measures – whether practical steps could have been taken by the defendant to
prevent the economic loss. In this regard, the probable success of such steps, the reason-
ableness of expenses involved in taking such steps in proportion to the damage the
plaintiff suffered, and the relative ease with which the steps could have been taken, are
also taken into account.178
(iv) Professional knowledge and competence – the fact that the defendant exercises a certain
calling and thereby possesses or professes to possess special skill, competence and
knowledge. This means that where the defendant is rendering professional services, he has
a duty not to cause financial loss to others.179
________________________
there was a legal duty on you to take measures to avert the loss’. It follows that it is my view that the legal
convictions of the community demand that the alleged conduct of the defendant and its driver, if he had been duly
warned, be branded unlawful and that the damage suffered should be made good” (italics added). See also BOE
Bank Ltd v Ries 2002 2 SA 39 (SCA) 49; Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) 426 ff; Jaffit v
Garlicke & Bousfield Inc 2012 2 SA 562 (KZP) 573; Brooks v The Minister of Safety and Security [2007] 4 All SA
1389 (C) 1404; Commissioner, South African Revenue Service v ABSA Bank Ltd 2003 2 SA 96 (W) 119; Ries v
Boland Bank PKS Ltd 2000 4 SA 955 (C) 969; Jowell v Bramwell-Jones 1998 1 SA 836 (W) 878; McLelland v
Hulett 1992 1 SA 456 (D) 464–465; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 799;
Arthur E Abrahams and Gross v Cohen 1991 2 SA 301 (C) 311; cf Kadir v Minister of Law and Order 1992 3 SA
737 (C) 743. See further Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 3 SA 653 (D)
and the discussion by Neethling 1981 THRHR 79–80. In the latter case the fact that the plaintiff was not in sight of
the mooring buoy when the accident happened, and that the defendant was therefore not aware of the plaintiff at
that stage, evidently played an important role with regard to the decision that a legal duty was absent.
175 BOE Bank Ltd v Ries 2002 2 SA 39 (SCA) 49. This approach may be endorsed (see also Boberg Delict 146–147;
Basson 1983 1 Codicillus 11; Schoeman 1986 THRHR 302). The subjective knowledge or realisation of the
defendant – a so-called “dadersubjektiewe” factor – should thus play a part similar to that played by motive (supra
47–49) in the objective ex post facto test for wrongfulness (Boberg Delict 146). The wrongfulness of the
defendant’s conduct is accordingly limited to those people whom he knew would be prejudiced by his act at the
moment when it was committed; in other words, to those plaintiffs whose identity was known to him at the time of
committing the act (Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 386–387;
see also Schoeman 1986 THRHR 302). Thus, speculation regarding the identity of other possible plaintiffs (cf
Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N) 916–917; infra fn 182)
and concomitant unlimited liability are excluded. Cf further Fourway Haulage SA (Pty) Ltd v SA National Roads
Agency Ltd 2009 2 SA 150 (SCA) 163 (infra fn 177).
176 See, eg, Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 589; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking
v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468; Steenkamp NO v Provincial Tender Board,
Eastern Cape 2006 3 SA 151 (SCA) 159–160; Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA) 498–499; cf
Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 324; see further Neethling 2007 SALJ 206–
207 212; but see the next fn.
177 In Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) 324 Harms JA stated that “[t]he greater the
foreseeability, the greater the possibility of a legal duty to prevent harm existing”. Note, however, that in MTO
Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) 85 Leach JA took a bold step and held that foreseeability
should not play a role at all in determining wrongfulness. Cf also the opinion expressed by Brand JA in Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 163 that “the issue of foreseeability
should more appropriately be considered under the rubric of legal causation and not as part of determining wrong-
fulness”. See for a full discussion supra 193 fn 234; also 48–49 73 on different views on the role of subjective
factors in determining wrongfulness.
178 See Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 589; Coronation Brick (Pty) Ltd v Strachan Construction
Co (Pty) Ltd 1982 4 SA 371 (D) 384; Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T)
399; Joubert v Impala Platinum Ltd 1998 1 SA 463 (B) 474; Jowell v Bramwell-Jones 1998 1 SA 836 (W) 878;
McLelland v Hulett 1992 1 SA 456 (D) 465; Arthur E Abrahams and Gross v Cohen 1991 2 SA 301 (C) 312; cf
Schoeman 1986 THRHR 302. The cost aspect received considerable attention in Kwamashu Bakery Ltd v Standard
Bank of South Africa Ltd 1995 1 SA 377 (D) 393–395.
179 See Jowell v Bramwell-Jones 1998 1 SA 836 (W) 878 (cf 2000 3 SA 274 (SCA) 286); Ries v Boland Bank PKS Ltd
2000 4 SA 955 (C) 969; Page v First National Bank Ltd 2009 4 SA 484 (E) 488–489 (see Koziol 2011 THRHR 1
ff; see also infra 363 in respect of negligent misrepresentation). This view was confirmed in respect of attorneys
[continued ]
354 Law of Delict
(v) Extent of risk – the degree or extent of the risk of economic loss being suffered by the
plaintiff.180 This factor is indicative of the need for protection in a particular situation.181
(vi) Extent of loss – the fact that the situation can lead to indeterminate liability or is “one
fraught with an overwhelming potential liability”. This applies, for example, where the act
complained of would probably result in a “multiplicity of actions” which could be
________________________
who have a legal duty to deal with trust monies in a manner that does not (negligently) cause the persons who
deposited the money to suffer loss (Du Preez v Swiegers 2008 4 SA 627 (SCA) 632; Hirschowitz Flionis v Bartlett
2006 3 SA 575 (SCA) 588–589). This also holds true in respect of collecting bankers: there is a legal duty on the
part of a collecting banker to prevent financial loss to the true owner of a lost or stolen cheque by payment to an
unlawful possessor; where this duty is breached negligently, the banker is liable ex lege Aquilia (Indac Electronics
(Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A); see further Delphisure Group Insurance Brokers Cape (Pty) Ltd
v Dippenaar 2010 5 SA 499 (SCA) 508–509; Standard Bank of SA Ltd v Harris (JA du Toit Inc Intervening) 2003
2 SA 23 (SCA) 26; Columbus Joint Venture v ABSA Bank Ltd 2002 1 SA 90 (SCA) 96 (Columbus Joint Venture v
ABSA Bank Ltd 2000 2 SA 491 (W) 500 ff); Commissioner, South African Revenue Service v ABSA Bank Ltd 2003
2 SA 96 (W) 111 ff; ABSA Bank Ltd v Mutual & Federal Insurance Co Ltd 2003 1 SA 635 (W) 640–641; Energy
Measurements (Pty) Ltd v First National Bank of SA Ltd 2001 3 SA 132 (W) 139 ff; Strydom v ABSA Bank Bpk
2001 3 SA 185 (T) 193; African Life Assurance Co Ltd v NBS Bank Ltd 2001 1 SA 432 (W) 440 ff; Nedcor Bank
Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 2000 4 SA 916 (SCA) (Lloyd-Gray Lithographers (Pty) Ltd
v Nedcor Bank Ltd t/a Nedbank 1998 2 SA 667 (W)); ABSA Bank Bpk v ONS Beleggings BK 2000 4 SA 27 (SCA)
33 ff; ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 1 SA 372 (SCA) 376 (Bond Equipment
(Pretoria) (Pty) Ltd v ABSA Bank Ltd 1999 2 SA 63 (W) 70–71); Powell v ABSA Bank Ltd t/a Volkskas Bank 1998
2 SA 807 (SE); Coetzee v ABSA Bank Bpk 1997 4 SA 85 (T); Greater Johannesburg Transitional Metropolitan
Council v ABSA Bank Ltd t/a Volkskas Bank 1997 2 SA 591 (W) (see also Malan and Pretorius 1997 THRHR 155);
First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd 1995 3 SA 556 (A) 560–561; Kwamashu Bakery
Ltd v Standard Bank of South Africa Ltd 1995 1 SA 377 (D); Fedgen Insurance Ltd v Bankorp Ltd 1994 2 SA 399
(W); Holscher v ABSA Bank 1994 2 SA 667 (T); Rostrar (Pvt) Ltd v Netherlands Bank of Rhodesia Ltd 1972 2 SA
703 (R); Zimbabwe Banking Corp Ltd v Pyramid Motor Corp (Pvt) Ltd 1985 4 SA 553 (ZS); UDC Ltd v Bank of
Credit and Commerce Zimbabwe Ltd 1990 3 SA 529 (Z) (1991 4 SA 82 (ZS); contra Worcester Advice Office v
First National Bank of Southern Africa Ltd 1990 4 SA 811 (C) for the position before the Indac case). According to
the decision in Volkskas Bank Ltd v Bonitas Medical Aid Fund 1993 3 SA 779 (A) (see also 1991 2 SA 231 (W)
236–237; 1992 2 SA 42 (W) 48–49), there is also a duty on a collecting banker to prevent financial loss to the
drawer of a cheque by collecting the cheque only on behalf of the nominated drawee, and no one else. In Columbus
Joint Venture (SCA) (cf Energy Measurements 163 165; Commissioner, South African Revenue Service 113–124)
the court held that, in order to limit fraud in respect of stolen cheques, a bank has a legal duty to verify the validity
of opening of accounts by new clients. However, such a duty does not normally exist in respect of existing clients,
especially because the incentive to commit fraud is usually small in their case. See Spar Group Ltd v FirstRand
Bank Ltd [2016] 4 All SA 646 (GP) para 66 for an example where a legal duty on a bank to avoid economic loss
was found not to be present. Also Itzikowitz v ABSA Bank Ltd 2016 4 SA 432 (SCA): “Knowledge that lawful steps
to liquidate a company will cause harm to its shareholders and to other shareholders a few shareholding levels
removed from the company does not establish a duty to prevent economic loss” (Loubser and Midgley Delict 276;
cf Scott 2017 THRHR 483 ff). Note that the negligence of the collecting bank is determined with reference to the
reasonable banker (bonus argentarius: see Fedgen 411) or “what reasonable, practical and affordable measures
would a reasonable, prudent collecting banker have taken in order to have prevented the harm which resulted to the
plaintiff” (Kwamashu 395; see also Powell 819–820; Columbus 510; African Life Assurance 447; Great Karoo Eco
Investments (Edms) Bpk h/a Grobbelaarskraal Boerdery v ABSA Bank Ltd 2003 1 SA 222 (W) 234; Neethling 1996
THRHR 206; supra 174 fn 126). See further Mofokeng 1999 THRHR 120 ff on the liability of the client for
negligently causing the bank to suffer pure economic loss.
180 Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 384; McLelland v Hulett 1992
1 SA 456 (D) 465; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 798–799.
181 Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 799. In this case (cf fn 179 supra) the court
took the “ever-present risk in relation to a cheque in the sense that payment can be obtained by an unlawful
possessor with relative ease” into account. See also Fedgen Insurance Ltd v Bankorp Ltd 1994 2 SA 399 (W) 407;
Kwamashu Bakery Ltd v Standard Bank of South Africa Ltd 1995 1 SA 377 (D) 393. To this must be added the high
frequency of crime in SA. In Commissioner, South African Revenue Service v ABSA Bank Ltd 2003 2 SA 96 (W)
113 the court declared: “In my view, society’s notion of justice demands that a bank should not turn a blind eye to
the possibility that a customer may be using an account concluded with it for criminal purposes.”
“socially calamitous”.182 Where these circumstances are present, the view is held that the
defendant does not have a legal duty to avoid damage.183
________________________
182 In Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N) 916–917 the court
stated: “Looking at the facts involved in the plaintiff’s . . . claim it is important that the extent of the potential loss
is finite. Nor is it necessary in such a situation for a defendant to speculate as to the identity of the possible
claimant. It is further a case of a single loss occurring but once and hardly likely to bring in train a multiplicity of
actions. The loss, moreover, is a direct and not an indirect economic consequence of the defendant’s negligence. If
I may borrow from the language of an American decision (Rozny v Mornul (1969) 43 111 2d at 54, 250 NE 2d at
656): ‘The situation is not one fraught with an overwhelming potential liability’. Trying to balance the individual
interests of the claimant against the broader ones of the community I am unable to perceive that the imposition of
liability in a case such as this is likely to prove socially calamitous.” In light of this, Brand JA correctly declared in
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 161 “that liability will more
readily be imposed for a single loss of a single identifiable plaintiff occurring but once and which is unlikely to bring
in its train a multiplicity of actions”. See also Country Cloud Trading CC v MEC, Department of Infrastructure
Development, Gauteng 2015 1 SA 1 (CC) paras 23–25 42–43 where it was pointed out that our law is generally
reluctant to recognise pure economic loss claims, especially where to do so would constitute an extension of the
law of delict. Wrongfulness must, therefore, be positively established to provide the necessary check on liability in
these circumstances. It functions in this context to curb liability and, in doing so, to ensure that unmanageably wide
or indeterminate liability does not eventuate and that liability is not inappropriately allocated; Koukoudis v Abrina
1772 (Pty) Ltd 2016 5 SA 352 (SCA) para 29; Spar Group Ltd v FirstRand Bank Ltd [2016] 4 All SA 646 (GP)
para 60; Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 295; Delphisure Group
Insurance Brokers Cape (Pty) Ltd v Dippenaar 2010 5 SA 499 (SCA) 508–509; cf Itzikowitz v ABSA Bank Ltd
2016 4 SA 432 (SCA) para 17; Chowan v Associated Motor Holdings 2018 4 SA 145 (GJ) para 54. In Living
Hands (Pty) Ltd v Ditz 2013 2 SA 368 (GSJ) 382–383 the plaintiffs contended that shareholders looking to sell
their shares have a legal duty to ensure that incoming shareholders are responsible and would be responsible
directors. The court did not agree since such a duty would create the risk of indeterminate liability for shareholders
generally. See also Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) 429–430; Commissioner, South African
Revenue Service v ABSA Bank Ltd 2003 2 SA 96 (W) 120–121; Coronation Brick (Pty) Ltd v Strachan
Construction Co (Pty) Ltd 1982 4 SA 371 (D) 383–384 386–387; Franschhoekse Wynkelder (Ko-operatief) Bpk v
SAR & H 1981 3 SA 36 (C) 39–40; Tobacco Finance (Pvt) Ltd v Zimnat Ins Co Ltd 1982 3 SA 55 (ZH) 63–65;
Zimnat Insurance Co Ltd v Chawanda 1991 2 SA 825 (ZS) 831; McLelland v Hulett 1992 1 SA 456 (D) 464 465–
466; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 798; Kadir v Minister of Law and Order
1992 3 SA 737 (C) 742–743; Arthur E Abrahams and Gross v Cohen 1991 2 SA 301 (C) 312; Joubert v Impala
Platinum Ltd 1998 1 SA 463 (B) 475–476; Jowell v Bramwell-Jones 1998 1 SA 836 (W) 882–883; Ries v Boland
Bank PKS Ltd 2000 4 SA 955 (C) 970; The Oil Rig South Seas Driller Sheriff of Cape Town v Pride Foramer SA
2001 3 SA 841 (C) 844; cf eBotswana (Pty) Ltd v Sentech (Pty) Ltd 2013 6 SA 327 (GSJ) 340 (discussed by
Neethling and Potgieter 2014 TSAR 889 ff). Van Aswegen 1993 THRHR 192–193 convincingly argues that the
present factor is not relevant with regard to wrongfulness, but should rather be utilised in connection with legal
causation, which is directly concerned with the extent of liability (cf supra 230 ff); see also Neethling and Potgieter
2014 TSAR 893.
183 If one accepts that “an overwhelming potential liability” provides sufficient reason to allow the defendant to go
free, such release should occur only where the defendant would indeed incur too wide a liability (which implies that
in the case of a “multiplicity of actions”, eg, each claim would definitely succeed because the defendant’s conduct
with regard to each would comply with all the requirements of the Aquilian action – including that of subjective
knowledge of harm in the sense described supra fns 174 175). Each case will depend on the particular
circumstances. Where, eg, only one claim (or one incident or prejudice) is subjectively foreseeable, while there is
an element of speculation concerning the identity of other possible claimants (belonging, in other words, to “an
unascertained class of potential victims”) the first claim ought not to fail on the basis of this policy consideration.
Liability in respect of the other possible claimants is excluded in such cases by the absence of subjective
knowledge and thus of a legal duty to avert harm (cf also Coronation Brick (Pty) Ltd v Strachan Construction Co
(Pty) Ltd 1982 4 SA 371 (D) 386–387). Finally, the question arises whether the consideration of “an overwhelming
potential liability” can actually be meaningfully and rationally applied by the courts. In our view the answer to this
is a negative one, for the obvious reason that as a rule it will usually prove extremely difficult – in fact, impossible
– to decide whether the scope of the wrongdoer’s liability is too wide or “overwhelming”. It is probably also for
this reason that the policy consideration under discussion has never played a part in determining liability for
damage to property. Thus its application with regard to pure economic loss should also be abandoned (see
Neethling 1983 THRHR 201–211; see also Basson 1983 1 Codicillus 12; Pretorius Wanvoorstelling 283–285;
Schoeman 1986 THRHR 303; cf however Boberg Delict 147 ff; see in general further Dendy 1990 MBL 69–70 for
examples which illustrate clearly that patrimonial loss resulting from damage to property or personal injuries can be
as “indeterminate” as pure economic loss).
356 Law of Delict
(vii) Statutory provision – the fact that a statutory provision expressly or by implication
prescribes that the defendant must prevent (economic) loss. Whether such a duty exists
will depend on the intention of the legislature, as determined from the Act, according to
the principles of interpretation of statutes.184
(viii) Vulnerability to risk of loss í where the plaintiff can protect himself against economic
loss, for example by obtaining insurance cover,185 or, in a contractual “setting”, by con-
tractual provisions,186 or by other reasonable means avoid making himself “vulnerable” to
the risk of loss, the defendant does not have a legal duty to avoid the loss.187 The position
is of course different where the plaintiff is unable to protect himself from the economic
loss involved.188
(ix) Miscellaneous – other factors which have also been taken into account by the courts are,
inter alia,189 the extent of the duty which would be placed on other persons who find
themselves in the position of the defendant;190 an unacceptable additional burden that
would be placed on the defendant, or that his activities would be restrained unfairly;191 the
________________________
184 The following examples from case law may serve as illustrations. In Knop v Johannesburg City Council 1995 2 SA
1 (A) 31 33 (see supra fn 154 for the facts) the court held that the legislature did not contemplate creating a
delictual action for damages with the statutory provisions concerning applications for the subdivision of stands;
according to Botha JA the statutory framework made sufficient provision for an appeal procedure against a decision
of the Council. There was therefore, according to the “legal convictions of the communicty”, not a legal duty on the
Council to avoid pure economic loss. In Minister of Law and Order v Kadir 1995 1 SA 303 (A) 319 ff (see supra
fn 157 for the facts) the court decided – in contrast to the court a quo 1992 3 SA 737 (C) – that the police officials
did not have a legal duty to obtain the information concerned. The police only have a statutory duty (s 5 of the
repealed Police Act 7 of 1958) to deter crimes, track down criminals and protect the public against crimes. Hefer
JA (321) stated: “Viewing the matter objectively, society will take account of the fact that the function of the police
relate in terms of the Act to criminal matters and were not designed for the purpose of assisting civil litigants” (for
a valid criticism of the decision, see Burchell 1995 SALJ 214–216). See Chowan v Associated Motor Holdings
2018 4 SA 145 (GJ) paras 51 57 60 where a contravention of s 3 of the Protected Disclosures Act 26 of 2000 gave
rise to a delictual action; see also Commissioner, South African Revenue Service v ABSA Bank Ltd 2003 2 SA 96
(W) 121 125–127. Cf in general supra 90 on the question of wrongfulness and breach of a statutory duty (see also
Neethling and Potgieter 1995 THRHR 528 ff).
185 Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 799 (Brand 2014 Stell LR 466); Freddy Hirsch
Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 296; Jowell v Bramwell-Jones 1998 1 SA 836 (W) 878.
186 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 149; Fourway Haulage
SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 162; Mediterranean Shipping Co (Pty) Ltd v
Tebe Trading (Pty) Ltd [2007] 2 All SA 489 (SCA) 495; cf Lillicrap, Wassenaar and Partners v Pilkington
Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A); Holtzhausen v ABSA Bank Ltd 2008 5 SA 630 (SCA) 635; AB Ventures
Ltd v Siemens Ltd 2011 4 SA 614 (SCA) 620–623; Delphisure Group Insurance Brokers Cape (Pty) Ltd v
Dippenaar 2010 5 SA 499 (SCA) 508–509; Jaffit v Garlicke & Bousfield Inc 2012 2 SA 562 (KZP) 575; however,
see Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) 588; Du Preez v Swiegers 2008 4 SA 627 (SCA).
187 Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 194–195. In this case the court
held that if the plaintiff could reasonably have avoided damage by other means and consequently could have made
himself non-vulnerable to loss, but did not do so, this would be an important indicator that the defendant did not act
wrongfully. See also Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA
214 (SCA) 226–227; Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng
2015 1 SA 1 (CC) 19í22 (Neethling and Potgieter 2015 THRHR 718); Delphisure Group Insurance Brokers Cape
(Pty) Ltd v Dippenaar 2010 5 SA 499 (SCA) 509; Brouze v Wenneni Investments (Pty) Ltd [2015] 4 All SA 543
(SCA) para 115; Meechan v VGA Chartered Accountants Partnership t/a PKF (VGA) Chartered Accountants
[2020] 2 All SA 510 (GJ) paras 43 77–84; Van As v Kotze [2019] 3 SA 284 (NCK) paras 148–153; see generally
Neethling and Potgieter 2015 THRHR 259 ff.
188 Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 799 (Brand 2014 Stell LR 466); Freddy Hirsch
Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 296; Jowell v Bramwell-Jones 1998 1 SA 836 (W) 878.
189 Cf Scott 2017 THRHR 496–499.
190 Jowell v Bramwell-Jones 1998 1 SA 836 (W) 878; Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C) 970; McLelland
v Hulett 1992 1 SA 456 (D) 465.
191 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA) 162; Freddy Hirsch Group
(Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 296; Delphisure Group Insurance Brokers Cape (Pty) Ltd
v Dippenaar 2010 5 SA 499 (SCA) 508–509.
rules of another field of law;192 a variety of public-policy reasons;193 and that the non-
recognition of a legal duty will leave a serious lacuna in the law.194
In respect of pure economic loss, mention must finally be made of the so-called action of the
disappointed beneficiary.195 In BOE Bank Ltd v Ries196 the court declared that, in principle, it
was in favour of a delictual claim in this kind of case.197 A prejudiced beneficiary will therefore
succeed if his claim complies with all the ordinary requirements of a delict.198 As in other cases
of pure economic loss, the requirement of wrongfulness is of particular importance. Apart from
what was said in that case, the following factors are strongly indicative of a legal duty to prevent
prejudice to the beneficiary:199 the existence of a valid (professional) contract between the
defendant and the testator placing a duty on the defendant to act with the necessary care
(professional skill) to ensure that a particular (testamentary) benefit will accrue to the
beneficiary;200 and the existence of a delictual legal duty on the defendant to refrain from
wrongful conduct (such as misrepresentation) against the testator which could deprive the
beneficiary of a particular benefit.201
5 Negligent misrepresentation
Misrepresentation,202 as a form of damnum iniuria datum, occurs when the wrongdoer makes an
incorrect or misleading representation in a wrongful and culpable manner to another person who
________________________
192 As pointed out by Scott 2017 THRHR 499, Itzikowitz v ABSA Bank Ltd 2016 4 SA 432 (SCA) “provides a good
example of how wrongfulness can be determined for purposes of delictual liability for causing pure economic loss
by having recourse to readily ascertainable rules from another field of law – in this instance company law”.
193 In Chowan v Associated Motor Holdings 2018 4 SA 145 (GJ), involving whether a contravention of s 3 of the
Protected Disclosures Act 26 of 2000 (PDA) gave rise to a delictual action, Meyer J stated: “The present matter, in
my view, is a classroom example of an appropriate case where delictual liability should be imposed. There are
ample public-policy reasons in favour of imposing liability. The constitutional rights to equality and against unfair
discrimination are compelling normative considerations. There is a great public interest in ensuring that the
existence of systemic discrimination and inequalities in respect of race and gender be eradicated. As blatant and
patent as discrimination was in the days of apartheid, so subtle and latent does it also manifest itself today. The
protection afforded to an employee, such as [the plaintiff], by the PDA against occupational detriments by her
employer on account of having made a protected disclosure that was ‘likely’ to show unfair racial and gender
discrimination, is one of the measures taken by the legislature to eradicate the existence of systemic discrimination
and inequalities. If employers are too easily insulated from claims for harm, such as the occupational detriments to
which [the plaintiff] was subjected on account of having made a protected disclosure to her employer, they would
have little incentive to conduct themselves in a way that complies with the provisions of s 3 of the PDA” (para 60).
194 Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C) 970.
195 See Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 565–566 569–574 for details.
196 2002 2 SA 39 (SCA) 46.
197 See also Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C); Arthur E Abrahams and Gross v Cohen 1991 2 SA 301
(C); Pretorius v McCallum 2002 2 SA 423 (C); Aucamp v University of Stellenbosch 2002 4 SA 544 (C); see
further Neethling and Potgieter 2002 THRHR 473 ff, 2003 THRHR 318 ff; Hutchison 2000 SALJ 186 ff; Van der
Schyff 2002 Stell LR 454 ff; contra Sonnekus 2004 TPR 623 ff who is very critical of the recognition of this ground
of action.
198 This is what happened in, eg, Aucamp v University of Stellenbosch 2002 4 SA 544 (C).
199 See Neethling and Potgieter 2002 THRHR 477–478, 2003 THRHR 321–322.
200 See BOE Bank Ltd v Ries 2002 2 SA 39 (SCA) 47 48 49–50; see also Ries v Boland Bank PKS Ltd 2000 4 SA 955
(C) 969; cf Jowell v Bramwell-Jones 1998 1 SA 836 (W) 878.
201 Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 566–568. In this case a testator lost his membership of a
group insurance scheme as a result of a negligent misrepresentation of his employer (the defendant). Consequently
the plaintiffs (his wife and children) could not claim death benefits in terms of the scheme.
202 In Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 829 Rumpff CJ suggested that the
concept “wanvoorstelling” should be replaced by “wanbewering”. However, he lost sight of the fact that not only
words, but also conduct or behaviour may create a false impression (cf however Dendy 1993 SALJ 641).
358 Law of Delict
acts on it to his detriment. Since no specific problems attach to Aquilian liability for a misrepre-
sentation causing damage to property or the impairment of personality,203 this discussion is
restricted to misrepresentations causing pure economic loss.204 205
In Roman and Roman-Dutch law, the actio doli was available in the case of an intentional
misrepresentation.206 The common law, however, gives no clear indication about the existence of
liability for pure economic loss on the ground of a negligent misrepresentation. In case law,
negligent misrepresentation was not recognised as a delictual ground of action, either under the
influence of English law,207 which recognises only an intentional misrepresentation as a ground
________________________
203 Eg, A, a building contractor, negligently represents to B that a certain wall need not be rebuilt because it is still
solid. B believes A but later the wall falls on B and he is seriously injured. B’s resultant medical expenses are
damage arising from the infringement of his right to physical integrity. Thus wrongfulness (and negligence) is
present. Cf also the facts in Bayer South Africa (Pty) Ltd v Viljoen 1990 2 SA 647 (A). A grape farmer instituted an
action for damages, inter alia, against a dealer in and distributor of fungicides. The damage arose when the
farmer’s crop of table grapes was infested by powdery mildew, and he used Bayleton, a systemic fungicide, to
control the infestation to no avail. His ultimate allegation was that his loss was caused by the negligent misrepre-
sentation of the dealer that Bayleton was suitable for the control of powdery mildew. On appeal the claim was
however rejected because of the absence of misrepresentation, negligence and factual causation (see Neethling and
Potgieter 1990 De Jure 373 ff).
204 See in this regard supra 349 ff.
205 The following examples from case law may be used as illustrations: A, a sworn appraiser, negligently places too
high a value on B’s land. On account of this C (plaintiff) lends money to B and obtains a mortgage on the land as
security. B does not fulfil his contractual obligations and C has the land sold in execution. He suffers damage as the
land was worth far less than A estimated. It appears that if it had not been for the incorrect valuation C would never
have taken a mortgage on the land (Perlman v Zoutendyk 1934 CPD 151 328); after an accident A furnishes B
(plaintiff) with the incorrect name of the company where her (A’s) car is insured. B takes steps against the wrong
company and consequently wastes money (Herschel v Mrupe 1954 3 SA 464 (A)); A (plaintiff) buys a house from
B. In terms of the contract of sale B undertakes to provide A with a certificate to the effect that the electrical wiring
of the house complies with the provisions of the municipal regulations. The certificate is obtained from C, a
registered electrician. A subsequently resells the house and undertakes to supply the purchaser with a similar
certificate. However, A is informed by the city engineer that the wiring does not comply with the regulations.
Consequently A has to spend a considerable amount to repair the defects (EG Electric Co (Pty) Ltd v Franklin 1979
2 SA 702 (E)); A (defendant), on inquiry from B (plaintiff), negligently supplies incorrect information concerning
the creditworthiness of a client of A to B. As a result of this false bank report, B negotiates a bill of exchange
drawn on said client of A. B suffers damage when the bill is dishonoured and the full amount thereof cannot be
recovered from the client (Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A)); a
gynaecologist (defendant) makes a false representation to the plaintiff and the latter’s wife that he has sterilised her
and that they need not worry about birth control in future. The plaintiffs suffer financial loss (maternity costs and
maintenance of a child) when a child is conceived and is born (Mukheiber v Raath 1999 3 SA 1065 (SCA) – see
Neethling and Potgieter 2000 THRHR 162 ff, Roederer 2001 SALJ 347 ff for discussions). Looked at closely,
Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) also dealt with negligent misrepresentation
inducing pure economic loss. Here the police, at the inquiry of the plaintiff, incorrectly assured him that the car he
wanted to buy had not been stolen. On the strength of this assurance the plaintiff entered into a contract of sale and
paid the purchase price. The plaintiff suffered patrimonial loss when it came to light that the vehicle was indeed a
stolen one and the police then confiscated it. See further Van der Walt and Midgley Delict 131–132; Loubser and
206 Cf Van der Merwe and Olivier 12 and 228; Scott 1976 THRHR 347, 1977 THRHR 58 165. See in respect of inten-
tional misrepresentation in modern law Standard Bank of South Africa Ltd v Supa Quick Auto Centre 2006 4 SA 65
(N); Standard Bank of South Africa Ltd v Coetsee 1981 1 SA 1131 (A). In these cases reliance is usually placed on
the requirements stated in Geary and Son (Pty) Ltd v Gove 1964 1 SA 431 (A) for intentional misrepresentation in
respect of unlawful competition (deception in respect of one’s own performance and disparagement of a competi-
tor’s performance); see Neethling Van Heerden-Neethling Unlawful Competition 148–149 272–273; cf infra 378
381. According to Supa Quick 70–71 any form of intention (supra 160–162), thus also dolus eventualis, satisfies
the intention requirement. See further Minister of Safety and Security v Howard 2009 5 SA 201 (SG) on false
statements to the police that a crime has been committed.
207 Derry v Peek (1889) 14 AC 337.
of action (deceit),208 or as a result of the fear that the granting of the actio legis Aquiliae would
lead to unlimited liability.209
However, in Administrateur, Natal v Trust Bank van Afrika Bpk210 the Appellate Division (in
1979) confirmed the attitude reflected in cases immediately preceding that date,211 and based
Aquilian liability on a negligent misrepresentation. According to the court, the correct applica-
tion of delictual principles will keep liability within limits. Rumpff CJ declared:
In my opinion the cause of action in the current case can and should be placed in the extended field of
application of the lex Aquilia. From this it would follow that, according to our current prevalent norms,
wrongfulness is required, and fault. The fear of unlimited liability can only be allayed, if, in any given
case, it is the Court’s function to decide whether, in the particular circumstances, a legal duty rested
upon the defendant not to make a misstatement to the plaintiff, and also whether the defendant in light of
all the circumstances, exercised reasonable care, inter alia by checking the truth of his representation. In
the absence of a legal duty, there is no wrongfulness.212
It is clear that the elements of wrongfulness and negligence are of particular importance in deter-
mining liability for negligent misrepresentation. The question of whether there was a misrepre-
sentation involves the act as delictual element213 and is, of course, the first requirement for
liability on the ground of negligent misrepresentation.214 The existence of a misrepresentation,
which can take place in the form of an omission215 or a commission,216 is clearly a question of
fact which depends upon the circumstances of each case.217
________________________
208 Dickson and Co v Levy 11 SC 33; De Kock v Gafney 1914 CPD 377; African Banking Corp v Goldbard 4 OR 402;
also Alliance Building Society v Deretitch 1941 TPD 203.
209 Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 832–833. Cf Mukheibir 2015 SALJ 29.
210 Ibid. See also Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 568; McCann v Goodall Group Operations
(Pty) Ltd 1995 2 SA 718 (C) 722; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W)
392.
211 Eg Suid-Afrikaanse Bantoetrust v Ross en Jacobz 1977 3 SA 184 (T); EG Electric Co (Pty) Ltd v Franklin 1979 2
SA 702 (E).
212 (Translation.) See also Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA
214 (SCA) 221; Mukheiber v Raath 1999 3 SA 1065 (SCA) 1069–1070, where Olivier JA stated: “In all the cases
cited above this Court cautioned against the danger of limitless liability produced by the application of the extended
Aquilian action. The danger is ever present . . . In order to keep the cause of action within reasonable bounds, each
and every element of the delict should be properly tested and applied” (emphasis added). See also Brand 2014 Stell
LR 454 ff; Neethling 2015 TSAR 194–195; Scott 2014 TSAR 826 ff; Wessels 2020 THRHR 154 ff. Mukheibir 2015
SALJ 29 30 states: “Recognising delictual liability in a hitherto unknown situation also does not necessarily mean
that the sluice gates of liability will be opened. Ultimately, when applied correctly, the elements of a delict, and in
particular the element of legal causation, should ensure that liability will not be limitless.”
213 See Neethling and Potgieter 1990 De Jure 373.
214 Eg Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A) 911–912; Bayer South Africa (Pty) Ltd
v Viljoen 1990 2 SA 647 (A) 652 ff; Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 833;
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 759 ff.
215 See Mukheiber v Raath 1999 3 SA 1065 (SCA) 1069; Great Karoo Eco Investments (Edms) Bpk h/a Grobbelaars-
kraal Boerdery v ABSA Bank Ltd 2003 1 SA 222 (W) 234–235; Attorneys Fidelity Fund Board of Control v
Intibane Mediates 2016 6 SA 415 (GP) para 107 (failure to disclose secret commission where the community’s
legal convictions supported by policy considerations created a legal duty to inform the plaintiff thereof). In
McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (C) 721 726 (see Scott 1995 TSAR 778 for a dis-
cussion) Van Zyl J pointed out that an omission in the case of negligent misrepresentation can exist in the form of a
non-dislosure of information. In casu the alleged omission was constituted by the defendant’s failure to inform the
plaintiff that he was not a registered general motor car dealer. The plaintiff was therefore under the false impression
that the defendant was in fact such a dealer and accordingly did not claim the legally prescribed sales tax from him.
The plaintiff was held liable for this tax by the Receiver of Revenue, and he claimed this amount from the defend-
ant on the ground of negligent misrepresentation. See also Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd
1996 2 SA 393 (T). B (defendant) sold his business to A without informing his customers, amongst others C
(plaintiff). This created the false impression that there was no change in the ownership of the business and misled C
into thinking that it was doing business as usual with the same entity with which it had traded for a long time. A
was however a credit risk and failed to pay his debt to C. C suffered financial loss. The court held that C had a
cause of action since B had a “legal duty to speak” (401) about the change of ownership. Cf also Stols v Garlicke &
[continued ]
360 Law of Delict
(a) Wrongfulness Wrongfulness lies either in the infringement of a subjective right, or the
breach of a legal duty.218 Where a negligent misrepresentation causes pure economic loss, an
identifiable subjective right is usually absent.219 Therefore, wrongfulness is determined by
deciding whether there was a breach of a legal duty. This approach is already followed in case
law.220 The crucial question in the case of negligent misrepresentation is thus whether the
defendant was under a legal duty to furnish the correct information in the particular circum-
stances.
As in all cases concerning the question of wrongfulness, the reasonableness or boni mores
criterion (comprising a weighing-up of interests in the light of the public interest) should be
employed to ascertain the existence of such a legal duty.221 The flexible boni mores criterion
thus enables the courts to develop a predictable blueprint in a new and developing field; concrete
guidelines are developed by which the practical handling of this legal field is facilitated. It is
________________________
Bousfield Inc 2012 4 SA 415 (KZP) 430–431; Jaffit v Garlicke & Bousfield Inc 2012 2 SA 562 (KZP) 568. See
further infra fn 245.
216 Cf supra 27 in connection with the act.
217 In Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 392–393 Gautschi AJ
suggested that the element of conduct in instances of negligent misrepresentation should include the following
components (393): “(1) a statement (2) which was false (3) that the misstatement was material, in the sense that it
would have influenced or induced a reasonable man to act or rely thereon (4) that the defendant intended the
plaintiff, or a person in the position of the plaintiff, to act or rely thereon and (5) that the plaintiff in fact acted or
relied thereon, ie was in fact induced.” According to Gautschi AJ (ibid), these components do not apply to the
inquiry into wrongfulness. This view is open to criticism. It is apparent that only (1) and (2) constitute the element
of conduct in cases of negligent misrepresentation. Component (3) applies to wrongfulness, since the objective
reasonable-person test is employed to determine whether the misrepresentation is material (cf eg infra 363 on the
determination of materiality) – an inquiry regarding voluntary human conduct (see supra 27 for a definition of
conduct as delictual element) does not enter the picture here. Component (4) also applies to the wrongfulness
question because it relates to the question of whether the defendant subjectively knew or foresaw the identity of the
person(s) reacting to the misrepresentation or relying thereupon (see infra 363). The last component (5) definitely
deals with the inquiry into factual causation (see infra 364). Accordingly it is submitted that Gautschi AJ’s
judgment should not be followed in this respect.
218 Supra 51; cf Mukheiber v Raath 1999 3 SA 1065 (SCA) 1075–1076 in respect of misrepresentation.
219 Pauw 1978 THRHR 53 ff. In his view a subjective right is absent because the interest which is infringed by a mis-
representation, is part of the patrimony in general – thus this interest cannot serve as a defined independent legal
object. However, Neethling 1990 THRHR 104–105 suggests that the subjective right which is involved here, is a
personal right which originates ex lege, ie, the right to correct information (or the right not to be misled).
220 Eg Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 832–833; International Shipping Co
(Pty) Ltd v Bentley 1990 1 SA 680 (A) 694; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA
747 (A) 769–770; Mukheiber v Raath 1999 3 SA 1065 (SCA) 1075–1076; Kantey & Templer (Pty) Ltd v Van Zyl
NO 2007 1 SA 610 (C) 618–619; Holtzhausen v ABSA Bank Ltd 2008 5 SA 630 (SCA) 635; Great Karoo Eco
Investments (Edms) Bpk h/a Grobbelaarskraal Boerdery v ABSA Bank Ltd 2003 1 SA 222 (W) 235; McCann v
Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (C) 722–726 (omission); Bowley Steels (Pty) Ltd v Dalian
Engineering (Pty) Ltd 1996 2 SA 393 (T) 398–399 (omission); Erasmus v Inch 1997 4 SA 584 (W) 592; Standard
Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 386–387; EG Electric Co (Pty) Ltd v
Franklin 1979 2 SA 702 (E) 705; Suid-Afrikaanse Bantoetrust v Ross en Jacobz 1977 3 SA 184 (T) 187; cf Dersley
v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) 1054–1058 (supra 77 fn 229 365 fn 205); see also
Vorster 17 LAWSA 275–276; Pretorius Wanvoorstelling 229 ff.
221 Supra 39 ff; see also Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A) 913–914; Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 498; cf Meechan v VGA
Chartered Accountants Partnership t/a PKF (VGA) Chartered Accountants [2020] 2 All SA 510 (GJ) para 38;
McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (C) 722–723 (omission); Bowley Steels (Pty) Ltd v
Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T) 398–399 (omission); Standard Bank of South Africa Ltd v OK
Bazaars (1929) Ltd 2000 4 SA 382 (W) 397; Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T)
1055–1056 (supra fn 205); Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 833–834. In
ABSA Bank Ltd v Fouche 2003 1 SA 176 (SCA) 181 (see also Brouze v Wenneni Investments (Pty) Ltd [2015] 4 All
SA 543 (SCA) para 110) the court used the concept of an “honest person” as embodiment of the legal convictions
of the community – an unusual criterion in this context (Neethling and Potgieter 2004 THRHR 157–158).
possible to deduce a number of guidelines (which should not be regarded as a numerus clausus)
from case law and other authority, indicating whether a legal duty to furnish correct information
exists in a particular case:222
Firstly, there is in principle no legal duty to give the correct information where such information
is merely furnished informally.223 Nevertheless, a malicious or improper motive may still make a
prima facie lawful misrepresentation unreasonable and thus wrongful.224 Negligence, or even
gross negligence, plays no part in determining the wrongfulness of a misrepresentation.225
Secondly, there is, in principle, a legal duty to furnish the correct information in the following
instances:
(i) Where a person has a statutory duty to furnish the correct information.226
(ii) Where there is a contractual undertaking to furnish the correct information.227 Such a
contractual duty also arises where the correctness of the information, explicitly or tacitly, is
guaranteed.228
________________________
222 See Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 568–569; Kantey & Templer (Pty) Ltd v Van Zyl NO
2007 1 SA 610 (C) 619; further Holtzhausen v ABSA Bank Ltd 2008 5 SA 630 (SCA) 635; Vorster 17 LAWSA 276–
277. Factors that can play a part in determining a legal duty in instances of pure economic loss may, where
relevant, also apply to negligent misrepresentation (see supra 352–357). In Delphisure Group Insurance Brokers
Cape (Pty) Ltd v Dippenaar 2010 5 SA 499 (SCA) 508 the court stated that in determining wrongfulness, liability
should not depend on the “idiosyncratic views of the individual judge as to what is reasonable and fair” or on “an
intuitive reaction to a collection of arbitrary factors”, but should rather be the result of “a balancing against one
another of identifiable norms”. Criteria that have been recognised in the past, either favouring or operating against
the recognition of liability, should also be taken into account to advance the cause of legal certainty (see also supra
66 fn 164). In Meechan v VGA Chartered Accountants Partnership t/a PKF (VGA) Chartered Accountants [2020] 2
All SA 510 (GJ) paras 38 ff the court confirmed that a policy-based determination whether legal liability should be
imposed on an auditor for loss resulting from an alleged negligent misstatement (as in casu), must be determined
with reference to the facts and circumstances of the particular case. Considerations of public policy and the legal
convictions of the community inform the issue of wrongfulness. The court held that the plaintiffs could not rely on
wrongfulness or unlawfulness for a variety of reasons set out in the court’s judgment. In this regard the court (paras
41–45) referred to to a number of relevant factors, developed by the courts, which could play a role in determining
the wrongfulnes of an auditor’s liability: whether the misrepresentation was made in a business context and in
response to a serious request; whether the plaintiff was dependent upon the defendant to provide the information or
advice sought; whether the plaintiff was vulnerable to the risk of loss; the risk of indeterminate liability; the nature
of the relationship between the parties, contractual or otherwise and whether the relationship between the parties
was one of “proximity” or closeness; and the reasonableness of the plaintiff relying on the accuracy of the
statement. Cf also infra on some of these factors.
223 In Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 834 this principle was evidently accepted
with reference to a dictum from the English case Mutual Life and Citizens’ Assurance Co Ltd v Evatt 1971 1 All
ER 150 162. The court stated that “it would be quite unreasonable for the enquirer to expect more in such circum-
stances and quite unreasonable to impose any greater duty on the adviser. The law must keep in step with the habits
of the reasonable man and consider whether ordinary people would think they had some obligation beyond merely
giving an honest answer.”
224 With regard to the role of motive in respect of the question of wrongfulness, see supra 47 150–151.
225 Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 192–193. The court explained:
“Confusing wrongfulness and negligence not only offends the sensitivities of the legal purists. It has practical
consequences. In the law of delict in general and in the context of negligent misstatements in particular, the element
of wrongfulness introduces a measure of control . . . If the test for negligence and wrongfulness is telescoped into
one, the function of the latter element as a measure of control is lost completely” (193). See Neethling and Potgieter
2014 TSAR 889 ff for a discussion.
226 Eg International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) 694; Herschel v Mrupe 1954 3 SA 464 (A)
490; cf Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) 1056–1057 (supra 77 fn 229 358
fn 205).
227 Herschel v Mrupe 1954 3 SA 464 (A) 490; Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 569.
228 In, eg, Administrator, Natal v Bijo 1978 2 SA 256 (N) 261 Mostert J was of the opinion that the only point at issue
was: “[D]id the defendant guarantee the factual accuracy of the statements . . .?” Where there is a contractual duty,
[continued ]
362 Law of Delict
(iii) Where there is a contractual relationship between the parties (without a contractual
undertaking to furnish the correct information). Such persons have a duty inter partes to
furnish the correct information concerning a matter arising from the contract and relating
to its implementation.229
(iv) Where a person, who by reason of a specific public office which he holds (such as a
notary, a sworn appraiser or an auditor) has “a kind of patent of credibility and efficiency
conferred upon him by public authority”, furnishes information in his official capacity.
The reason is that “[m]embers of the public are invited and entitled to repose confidence
and trust in the acts of such persons performed in their respective capacities”.230
(v) Where a person has specific information in his exclusive possession by reason of his
particular occupation, and this information cannot therefore be obtained in another manner
than from that person (or an associate).231
(vi) Where a person, who by reason of his particular occupation claims to command
professional knowledge and competence, furnishes information in a professional
capacity.232
________________________
the defendant is inevitably contractually liable inter partes. With regard to third parties, the contractual duty or
guarantee may be indicative of the existence of a legal duty ex delicto.
229 Western Alarm System (Pty) Ltd v Coini and Co 1944 CPD 271 276; cf Bayer South Africa (Pty) Ltd v Frost 1991 4
SA 559 (A) 575; Mukheiber v Raath 1999 3 SA 1065 (SCA) 1076; Great Karoo Eco Investments (Edms) Bpk h/a
Grobbelaarskraal Boerdery v ABSA Bank Ltd 2003 1 SA 222 (W) 235. Cf in general McCann v Goodall Group
Operations (Pty) Ltd 1995 2 SA 718 (C) 723 ff with regard to the duty to disclose material facts in a contractual
context. According to Van Zyl J (726) a delictual duty to disclose the full particulars arises, inter alia, where the
defendant “has knowledge of certain unusual characteristics relating to or circumstances surrounding the
transaction”, or where there was an earlier “incomplete or vague disclosure which requires to be supplemented or
elucidated”. In Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 397 the “closeness
of the relationship” was emphasised – in casu the defendant was a client of the plaintiff.
230 Herschel v Mrupe 1954 3 SA 464 (A) 488; EG Electric Co (Pty) Ltd v Franklin 1979 2 SA 702 (E) 705; Perlman v
Zoutendyk 1934 CPD 151 328.
231 In Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 194 the court put it thus:
“Whether the plaintiff was dependent upon the defendant to provide the information or advice sought.” See also
Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar 2010 5 SA 499 (SCA) 508–509 (plaintiff
dependent on defendant for information and advice); Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 569;
ABSA Bank Ltd v Fouche 2003 1 SA 176 (SCA) 181; Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610
(C) 623. See also EG Electric Co (Pty) Ltd v Franklin 1979 2 SA 702 (E) 706 where Kannemeyer J stated in
respect of the relevant facts: “Obviously the assurance required by the purchaser could only be given by an elec-
trician” (emphasis added). In Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 575 Corbett CJ took into
account that the misrepresentation in casu “related to technical matters concerning a new product about which
[plaintiff] as a lay customer would necessarily be ignorant and [defendant] as the distributor would, or should, be
knowledgeable”. See also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 770
(“peculiar knowledge” of banker); Mukheiber v Raath 1999 3 SA 1065 (SCA) 1076 (technical knowledge of
gynaecologist); McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (C) 726–727 (“exclusive know-
ledge” in the context of motor car dealers); Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T)
1054–1055 (supra fn 205) (information about stolen vehicles at the police); Currie Motors (Pretoria) (Pty) Ltd v
Motor Union Ins Co Ltd 1961 3 SA 872 (T) 876–877. In Herschel v Mrupe 1954 3 SA 464 (A) 472 the relevant
information too was “a matter within the peculiar knowledge of the respondent herself”. Nevertheless Van den
Heever JA decided (491) that she had no legal obligation to furnish the correct information. A possible explanation
for this approach is that the respondent furnished the information in her private capacity as the owner of a motor
vehicle and not by reason of a specific occupation. The “nature of the party issuing the information”, therefore,
plays an important part in our case law in determining the legal duty in this connection (see Currie Motors 887).
232 Pretorius Wanvoorstelling 289–294; Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 569; Great Karoo
Eco Investments (Edms) Bpk h/a Grobbelaarskraal Boerdery v ABSA Bank Ltd 2003 1 SA 222 (W) 236; Holtz-
hausen v ABSA Bank Ltd 2008 5 SA 630 (SCA) 635. Cf further Siman & Co (Pty) Ltd v Barclays National Bank
Ltd 1984 2 SA 888 (A) 913, where the court indicated that the bank had a legal duty to furnish the correct informa-
tion because the information was given “in a strictly business context” and with regard to a matter “within a field in
respect of which respondent possessed knowledge not readily accessible to the public . . . and in respect of which
respondent professed skill and knowledge”; Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
[continued ]
The fact that the presence of one of these factors indicates a legal duty to provide the correct
information in general does not mean that breach thereof amounts to wrongful conduct as
against a particular person. For this to ensue, it must be established that the legal duty in fact
existed as against that person. According to the courts – as pointed out with regard to pure
economic loss233 – this will be the case if the person responsible for the misrepresentation knew
or subjectively foresaw, at the moment of furnishing the information, who the person or persons
were who would respond to or rely on it.234 The defendant’s legal duty, and consequently his
liability, are thus restricted to plaintiffs of whose identity he was certain at that time.235
It furthermore appears sensible to require in respect of wrongfulness that the misrepresentation
must, judged objectively, be “material” 236 in the sense that it would have influenced a
reasonable person to react to or rely on it.237 The reasonable person here embodies the boni
mores or the legal convictions of the community.238
Finally, with regard to wrongfulness, it is important to bear in mind that despite the presence of
these factors, the court may still refuse to construe a legal duty for considerations of legal policy,
where liability could lead to “a multiplicity of actions” that could be “socially calamitous”.239
________________________
1985 1 SA 475 (A) 509; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 770; Cape
Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 194 (information sought in a business
context and in response to a serious request); Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar
2010 5 SA 499 (SCA) 508–509; cf Jowell v Bramwell-Jones 1998 1 SA 836 (W) 882. Cf also supra fn 179 with
regard to the legal duty in the case of pure economic loss.
233 Supra 352.
234 See Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) 194; Delphisure Group
Insurance Brokers Cape (Pty) Ltd v Dippenaar 2010 5 SA 499 (SCA) 508–509; Aucamp v University of Stellen-
bosch 2002 4 SA 544 (C) 569. Also in International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) 694
Corbett CJ identified the fact that “the defendant was aware that . . . the plaintiff would rely upon the financial
statements in a serious and business context” (emphasis added) as one of the factors which in casu was indicative
of a legal duty (see also Mukheiber v Raath 1999 3 SA 1065 (SCA) 1076; Bayer South Africa (Pty) Ltd v Frost
1991 4 SA 559 (A) 575; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 770;
Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 397–398; Holtzhausen v ABSA
Bank Ltd 2008 5 SA 630 (SCA) 635; Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 619; cf Jowell
v Bramwell-Jones 1998 1 SA 836 (W) 882). In EG Electric Co (Pty) Ltd v Franklin 1979 2 SA 702 (E) 706 the
court stated with regard to the facts in that case: “The defendant, on the facts alleged, knew that Peek would hand
the certificate to the purchaser, who required it to satisfy herself and who would rely on it. Obviously the assurance
required by the purchaser could only be given by an electrician. In these circumstances the defendant had a duty
towards the purchaser to exercise care in supplying the certificate” (emphasis added).
235 Aucamp v University of Stellenbosch 2002 4 SA 544 (C) 569. EG Electric Co (Pty) Ltd v Franklin 1979 2 SA 702
(E) 706; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 398; cf also Greenfield
Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N) 916–917 which was referred to with
approval in the Franklin case 706.
236 See, eg, Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 570; ABSA Bank Ltd v Fouche 2003 1 SA 176
(SCA) 181. This requirement originated in contract law, but as Lewis 1992 SALJ 386 remarks correctly, there is
“no difference between the two remedies insofar as this particular requirement is concerned” (however, see Steyn
2003 SALJ 469–470). Furthermore it is submitted that although both these decisions dealt with negligent misrepre-
sentation leading to conclusion of a contract, the requirement of materiality should also apply to other instances of
(delictual) negligent misrepresentation.
237 See Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 393; cf Aucamp v University
of Stellenbosch 2002 4 SA 544 (C) 563 575. See further Neethling 2001 TSAR 814; Neethling and Potgieter 2003
THRHR 321, 2004 THRHR 157–158. For criticism of the decision in OK Bazaars that this dealt with conduct and
not with wrongfulness, see ibid; supra fn 217.
238 See supra 53 fn 87. See also infra fn 340 345 (Neethling Van Heerden-Neethling Unlawful Competition 154–155
183–185) for an analogous application of the reasonable-person (or ordinary-client) test to determine the
wrongfulness of passing off and misleading in respect of one’s own performance as forms of unlawful competition.
239 EG Electric Co (Pty) Ltd v Franklin 1979 2 SA 702 (E) 706; Standard Chartered Bank of Canada v Nedperm Bank
Ltd 1994 4 SA 747 (A) 770–771; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W)
398; Holtzhausen v ABSA Bank Ltd 2008 5 SA 630 (SCA) 635; Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1
SA 610 (C) 619; cf International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) 694; Siman & Co (Pty) Ltd v
[continued ]
364 Law of Delict
(b) Negligence If it is established that the defendant had a legal duty to furnish the correct
information, non-fulfilment of which caused patrimonial loss to a specific person or persons,
then he acted wrongfully. However, to establish liability, the wrongdoer must also have acted
negligently; in other words, he must have acted differently from the way in which a reasonable
person would have acted in the particular circumstances. The reasonable foreseeability and
preventability of damage is being dealt with.240 If the wrongdoer in fact showed the necessary
care in spite of the non-fulfilment of his legal duty, he ought not to be liable, on account of the
absence of fault.241 However, if it is found that the wrongdoer acted negligently, the possibility
of contributory negligence on the part of the prejudiced party must be borne in mind.242
(c) Causation In Administrateur, Natal v Trust Bank van Afrika Bpk243 Rumpff CJ pointed out
that apart from wrongfulness and fault, causation may also be instrumental in keeping the
present action within reasonable limits. Factual and legal causation are of vital importance in
this regard:244
(i) Factual causation The courts adhere in this regard to the conditio sine qua non or “but
for” test.245 As stated above,246 this “test” should for valid reasons not be supported. The
correct manner to determine a factual causal nexus is to ascertain from the facts of a
particular case (or the evidence concerning it) whether one fact arises out of another.247
With regard to the present cause of action, it must be established that there is a factual
causal link between the misrepresentation, the misunderstanding and the damage. This
means, firstly, that the plaintiff must have been misled by the misrepresentation; in other
words, he must in fact have believed that the misrepresentation was true. Secondly, it
means that the plaintiff must have acted to his detriment as a result of the misrepresentation.
________________________
Barclays National Bank Ltd 1984 2 SA 888 (A) 914; Meechan v VGA Chartered Accountants Partnership t/a PKF
(VGA) Chartered Accountants [2020] 2 All SA 510 (GJ) para 44. This matter has been discussed supra 311. What
has been stated there, applies mutatis mutandis here as well.
240 Supra 164 ff; Mukheiber v Raath 1999 3 SA 1065 (SCA) 1077; Standard Bank of South Africa Ltd v OK Bazaars
(1929) Ltd 2000 4 SA 382 (W) 395–396.
241 In respect of negligent misrepresentation, as in all cases concerning delictual liability, one must clearly distinguish
between the test for wrongfulness and that for negligence: see in this regard supra 193; see also Mukheiber v Raath
1999 3 SA 1065 (SCA) 1075–1077; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382
(W) 395–398; McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (C) 721.
242 Supra 198; OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA 688 (SCA) 696 700; Standard
Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 773; Suid-Afrikaanse Nasionale Lewensassu-
ransiemaatskappy Bpk v Louw & Collins Afslaers (Edms) Bpk 1997 1 SA 592 (A) 608–609 (cf also idem 601–605
with regard to contributory intent); Great Karoo Eco Investments (Edms) Bpk h/a Grobbelaarskraal Boerdery v
ABSA Bank Ltd 2003 1 SA 222 (W) 232–234 237–238.
243 1979 3 SA 824 (A) 833; see also Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 568 570 575.
244 See, eg, mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) 479–482; International Shipping Co (Pty)
Ltd v Bentley 1990 1 SA 680 (A) 700; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747
(A) 763–769; Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A) 914 ff; Credé v Standard
Bank of SA Ltd 1988 4 SA 786 (E) 790; see also Neethling and Potgieter 1990 De Jure 376–378.
245 Eg mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) 479–481; International Shipping Co (Pty) Ltd v
Bentley 1990 1 SA 680 (A) 700 according to which the misrepresentation is notionally eliminated and a true repre-
sentation is notionally inserted in order to ascertain causation. See also Siman & Co (Pty) Ltd v Barclays National
Bank Ltd 1984 2 SA 888 (A) 907–908 914–918 where the conditio sine qua non test was also applied to a
misrepresentation by means of an omissio (see Neethling and Potgieter 1990 De Jure 377–378); Bayer South Africa
(Pty) Ltd v Frost 1991 4 SA 559 (A) 575; OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA
688 (SCA) 696–697; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 764 (see also
Neethling and Potgieter 1995 THRHR 347); Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy Bpk v Louw
& Collins Afslaers (Edms) Bpk 1997 1 SA 592 (A) 610; Mukheiber v Raath 1999 3 SA 1065 (SCA) 1077; Standard
Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 399–400: Great Karoo Eco Investments
(Edms) Bpk h/a Grobbelaarskraal Boerdery v ABSA Bank Ltd 2003 1 SA 222 (W) 236–237.
246 Supra 219 ff.
247 Supra 228.
If considerations other than the defendant’s misrepresentation thus caused the misunder-
standing and prejudice, factual causation is absent.248 249
(ii) Legal causation In International Shipping Co (Pty) Ltd v Bentley250 Corbett CJ supported
the flexible approach251 to legal causation, where the crucial question is whether there is a
sufficiently close nexus between the wrongdoer’s act and the harmful consequence that
the consequence can be imputed to him – taking into account “policy considerations”
based on “reasonableness, equity (fairness) and justice”. The existing criteria for legal
causation (such as reasonable forseeability) may play a subsidiary role in implementing
the flexible criterion.252
In connection with negligent misrepresentation as a delictual ground of action, the following
three matters also require attention:
Firstly, it was stated in Alliance Building Society v Deretitch253 that the plaintiff himself must be
the person who acted to his detriment as a result of the misrepresentation. If third parties acted
________________________
248 In Trust Bank 1979 3 SA 824 (A) 833 the court by implication found that factual causation was absent because the
plaintiff misled himself through his own mistake; see also Credé v Standard Bank of SA Ltd 1988 4 SA 786 (E)
790–791. Similarly, in Bayer South Africa (Pty) Ltd v Viljoen 1990 2 SA 647 (A) (see supra fn 203 for the facts),
without using the conditio sine qua non test at all, the court on the proven facts came to the conclusion that factual
causation was absent because the farmer was not induced to use Bayleton for the treatment of his grapes by the
dealer’s conduct – other considerations induced him thereto (see also Neethling and Potgieter 1990 De Jure 377).
Cf infra fn 249.
249 In Perlman v Zoutendyk 1934 CPD 151 328 335–336 the court stated that the misrepresentation must be “the sole
cause”, or “the cause . . . so preponderatingly important as to outweigh all other”, or “virtually equivalent to the
sole cause” of the deception. The correct explanation of this dictum is problematic. If the defendant’s misrepresen-
tation contributed to the plaintiff’s loss in any way, factual causation is clearly present. The fact that other circum-
stances also contributed to the loss and that the misrepresentation was therefore not the only or most important
cause, can indeed be relevant with regard to legal causation (see supra 230): the identification of the most
important or decisive cause of the loss is logically relevant to the question of whether the loss can reasonably be
imputed to the defendant (misrepresentor). Where the plaintiff contributed to his deception and damage by his own
careless conduct, one can also say that contributory negligence is involved (supra 364). Furthermore, it can
possibly be argued that one is concerned with a problem of proof since a plaintiff who cannot prove that the
defendant’s misrepresentation is the most important cause of the loss, does not prove factual causation on a balance
of probability. Cf in general Ranger v Wykerd 1977 2 SA 976 (A) 991: “One of the problems sometimes
encountered in seeking to apply the measure is whether or not the fraud complained of did occasion, as cause and
effect, the alleged patrimonial loss. This involves ascertaining whether the fraud influenced the claimant’s mind
and conduct in entering into the contract in question or his agreeing to particular terms thereof and, if so, to what
extent.” See further Standard Bank of South Africa Ltd v Coetsee 1981 1 SA 1131 (A).
250 1990 1 SA 680 (A) 701; see also mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) 481–482;
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 764–765; OK Bazaars (1929) Ltd v
Standard Bank of South Africa Ltd 2002 3 SA 688 (SCA) 697–699; Standard Bank of South Africa Ltd v OK
Bazaars (1929) Ltd 2000 4 SA 382 (W) 399; Great Karoo Eco Investments (Edms) Bpk h/a Grobbelaarskraal
Boerdery v ABSA Bank Ltd 2003 1 SA 222 (W) 237; Neethling and Potgieter 1995 THRHR 343 ff.
251 See supra 233 ff for a discussion.
252 Applied to the facts of Bentley 1990 1 SA 680 (A) 702–704, Corbett CJ took into account several factors, inter alia,
foreseeability, in his decision that the damage involved was “too remote”, ie, that legal causation was absent. See
also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A) 765 766–769; Neethling and
Potgieter 1995 THRHR 344–347, 1990 De Jure 378. In Mukheiber v Raath 1999 3 SA 1065 (SCA) the functions
and fields of application of the delictual elements of wrongfulness, negligence and causation were confused to such
an extent that legal causation as independent and essential delictual element was undermined (see supra 241 fn 171;
Neethling and Potgieter 2000 THRHR 164–168). Legal causation was nevertheless not discarded altogether, since
the court (1081) still employed both reasonable foreseeability and direct consequences to limit the wrongdoer’s
liability – measures that fulfil a subsidiary role in the flexible approach to causation (see Neethling and Potgieter
2000 THRHR 167–168; supra 234.
253 1941 TPD 203 216–217.
366 Law of Delict
to the detriment of the plaintiff as a result of the misrepresentation, the plaintiff does not have an
action on the ground of negligent misrepresentation.254
Secondly, the delictual liability of auditors and public accountants to third parties for negligent
misrepresentation – including misrepresentation leading to conclusion of a contract255 – has been
regulated by legislation256 since 1982 and can therefore differ from the common law position.
The legislation257 provides in essence that an auditor can only incur liablity against a client or
third party for a report if he has acted with malice, fraudulently, or negligently in respect of his
auditor’s duties.258 259 In respect of negligent conduct, the auditor can only incur liability against
third parties for financial loss that they themselves have suffered because they have relied upon
the auditor’s report, if he at the stage when he performed his duties firstly knew (or could
reasonably have been expected to know) (i) that the report would be used by his client to induce
a third party to act in a certain manner or to enter into a transaction with the client or another
person, and (ii) that the third party would rely on the report to act in such a manner; and
secondly, if he at any time after the report has been delivered, in any manner represented to the
third party that the report was correct while he knew or could reasonably have been expected to
know that a third person would rely on the report to act in a certain manner or to enter into a
transaction with the client or another person.
Although this statutory provision agrees with common law liability for negligent misrepresen-
tation on face value, important differences exist.260 This is reflected particularly in the prescripts
of section 46(3)(b) of the Auditing Profession Act 26 of 2005. This may be explained as follows:
Although the negligent breach of an auditor’s duty is in principle wrongful, the wrongfulness
must be clear towards an identified third person. In this respect, section 46(3)(b) of the Act
provides “a clear pointer that a negligent misrepresentation falling within its terms is indeed
wrongful”.261 As evidenced above, the section creates two requirements that must be complied
with:262 firstly, the representation to the third person that the report is correct, and secondly, the
presence of knowledge (real or constructive) on the part of the auditor that the third person
would rely on the report. Whereas the last-mentioned requirement is clear, the requirement of
representation needs closer scrutiny. Clearly, the incorrect report does not on its own comply
________________________
254 This does not mean that in such a case the plaintiff cannot base his claim on another independent delictual ground
of action, such as misrepresentation with regard to one’s own performance or misrepresentation with regard to a
competitor’s performance (disparaging, untrue remarks concerning a competitor’s performance) as forms of unlaw-
ful competition (infra 378 381; Neethling Van Heerden-Neethling Unlawful Competition 73–74, 147 ff, 267 ff 273).
255 Axiam Holdings Ltd v Deloitte & Touche 2006 1 SA 237 (SCA).
256 These provisions are contained in s 46(3) of the Auditing Profession Act 26 of 2005 (the Act); previously s 20(9) of
the repealed Public Accountants’ and Auditors’ Act 80 of 1991 (see in respect of application of the last-mentioned
section Axiam Holdings Ltd v Deloitte & Touche 2006 1 SA 237 (SCA); cf Meechan v VGA Chartered Accountants
Partnership t/a PKF (VGA) Chartered Accountants [2020] 2 All SA 510 (GJ) paras 39–40; Neethling 2007 De Jure
174 ff; Jooste 2006 SALJ 563 ff; Pretorius Wanvoorstelling 533 ff; Strauss, Jansen and Lubbe 2004 TRW 91 ff). It
is unclear why the applicability of the Act was not considered in Cape Empowerment Trust Limited v Fisher
Hoffman Sithole 2013 5 SA 183 (SCA). Brand JA (par 22) held that the policy-based determination whether legal
liability should be imposed on an auditor for loss resulting from a negligent statement, must be determined with
reference to the facts and circumstances of the particular case (cf Meechan para 40).
257 S 46(2) and (3) of the Auditing Profession Act 26 of 2005. These subsections substantially agree with the repealed
s 20(9) of the Public Accountants’ and Auditors’ Act 80 of 1991 they replace; cf Pretorius Wanvoorstelling 535;
Meechan v VGA Chartered Accountants Partnership t/a PKF (VGA) Chartered Accountants [2020] 2 All SA 510
(GJ) paras 61–64.
258 The statutory duties of an auditor when auditing an undertaking are listed in s 44(3) of the Auditing Profession Act
26 of 2005.
259 S 46(2) of the Auditing Profession Act 26 of 2005.
260 See in general Neethling 2007 De Jure 174 ff.
261 See Axiam Holdings Ltd v Deloitte & Touche 2006 1 SA 237 (SCA) 247 in respect of the repealed s 20(9)(b)(ii) of the
Public Accountants’ and Auditors’ Act 80 of 1991, which is in substantial agreement with the section replacing it.
262 Cf Axiam Holdings Ltd v Deloitte & Touche 2006 1 SA 237 (SCA) 251.
with this requirement. After the report has been made available, a representation must be made
in some or other manner to the third person that the report is correct. Silence per se on the part
of the auditor can therefore not constitute “representation” for this purpose.263 Thus, some
contact must take place between the third person and the auditor after the release of the report,
during which a representation is in some manner, either expressly or impliclity, made that the
report is correct, or, as stated by Cloete JA in Axiam Holdings Ltd v Deloitte & Touche,264 “the
auditor must, subsequent to the audit, take responsibility to the third party for its accuracy”.
Because the liability of auditors against third persons is exhaustively regulated by the Act, the
courts must be very cautious not to apply common law principles in respect of negligent
misrepresentation without further ado when interpreting the Act. It is clear that the legislature, to
prevent liability of auditors from growing too wide, promulgated these statutory provisions to
limit liability, rather than to leave this field to be developed by the courts. For this reason, it is
important, expecially when interpreting “representation” in section 46(3)(b), to follow a conser-
vative approach.265
Thirdly, the courts were traditionally opposed to the granting of a delictual action for damages
that result from a negligent misrepresentation which induces a contract.266 A change in the
attitude of the courts267 was, however, confirmed by the Appellate Division in Bayer South
Africa (Pty) Ltd v Frost.268 Corbett CJ found269 that there is, in principle, no good reason why in
the recognition of a delictual action for negligent misrepresentation any distinction should be
________________________
263 As correctly pointed out by Cloete JA in Axiam Holdings Ltd v Deloitte & Touche 2006 1 SA 237 (SCA) 251.
264 2006 1 SA 237 (SCA) 251; see further Jooste 2006 SALJ 569; Neethling 2007 De Jure 174 ff.
265 This was unfortunately not done in Axiam Holdings Ltd v Deloitte & Touche 2006 1 SA 237 (SCA) 247 251. The
court declared that silence, where an auditor had a “a [legal] duty to speak” could constitute a “representation” for
the purpose of s 20(9)(b)(ii) of the repealed Act of 1991 (now s 46(3)(b) of the Act). This view is subject to
criticism. According to common law it is clear that auditors have a legal duty to supply the correct information (see
supra 362). This is a given and no further inquiry is needed. If an auditor has released an incorrect report, a legal
duty rests upon him to rectify the report to comply with his duty to speak the truth. There is, contrary to Axiam
246–247 249, no need for other factors (in particular knowledge, real or constructive, of the author that the report is
incorrect) to point toward the existence of a legal duty. The mere fact that the auditor released an incorrect report
should suffice. Even if other factors should play a part in determining a legal duty, this would not mean that the
requirement of “representation” in terms of s 46(3)(b) has been complied with. As stated, an auditor is required,
apart from his legal duty to furnish the correct information, to take responsibility for the truth of his report against a
third person, and for this the mere duty to speak is not sufficient (see further Neethling 2007 De Jure 174 ff; cf
Jooste 2007 SALJ 569).
266 Hamman v Moolman 1968 4 SA 340 (A); Du Plessis v Semmelink 1976 2 SA 500 (T); Murray v McLean 1970
1 SA 133 (R). The reasons why a delictual action on the ground of negligent misrepresentation was considered
undesirable in the area of the law of contract, were set out as follows by Margo J in Latham v Sher 1974 4 SA 687
(W) 695: “It seems that three reasons have contributed in one way or another to the reluctance to recognise an
Aquilian action for negligent misrepresentations inducing a contract, viz: (1) the early interpretation of the decision
in Derry v Peek, (1889) 14 AC 337; (2) the absence of any clear authority; (3) the fact that the requirements and
limits of such liability have not yet been marked out.” For a recent example of an action based on intentional
misrepresentation inducing a contract, see Cuba NO v Holoquin Global (Pty) Ltd [2016] 4 All SA 77 (GJ). It was
also clear from the facts in Attorneys Fidelity Fund Board of Control v Intibane Mediates 2016 6 SA 415 (GP) that
the misrepresentation was not merely negligent, as Potterill J described it (paras 109 110), but indeed “intentional”.
A duty to speak will be even stronger where the defendant acted fraudulently and intended to deceive, and not
merely negligently. In such a case a court, as the one in casu, would not be reluctant to find that a legal duty
existed.
267 See Kern Trust (Edms) Bpk v Hurter 1981 3 SA 607 (C); Autorama (Pvt) Ltd v Farm Equipment Auctions (Pvt) Ltd
1984 3 SA 483 (ZH).
268 1991 4 SA 559 (A); see also ABSA Bank Ltd v Fouche 2003 1 SA 176 (SCA) 180 185; Brouze v Wenneni Invest-
ments (Pty) Ltd [2015] 4 All SA 543 (SCA) para 110; OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd
2002 3 SA 688 (SCA) 695; Thatcher v Katz 2006 6 SA 407 (C) 411; Sanlam Capital Markets (Pty) Ltd v Mettle
Manco (Pty) Ltd) [2014] 3 All SA 454 (GJ); cf also McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718
(C) 721.
269 568 570.
368 Law of Delict
made between a misrepresentation that induces a contract and one made outside the contractual
sphere. A negligent misrepresentation may, therefore, depending on the circumstances and
provided that all the requirements for delictual liability are present,270 give rise to a delictual
claim for damages, even though the misrepresentation induced the plaintiff to conclude a
contract with the party who made it. However, if the misrepresentation was incorporated as a
provision in a contract, no need for a delictual remedy exists and the prejudiced party to the
contract must rely on his contractual remedies.271
6 Interference with a contractual relationship

Interference with a contractual relationship is present where a third party’s conduct is such that a
contracting party does not obtain the performance to which he is entitled ex contractu, or where a
contracting party’s contractual obligations are increased.272 Although there are few indications in
our common law for the protection of a contractual relationship against interference by a third
party,273 there are indications in case law that in certain circumstances a delictual action will be
granted to the prejudiced contracting party. The following instances have crystallised in case
law:274
(i) Most of the decisions deal with intentional interference causing one of the contracting
parties to commit a breach of contract (inducement to breach of contract).275 Examples are
enticing another person’s employees to breach of contract,276 or instigating such persons
________________________
270 In this regard Corbett CJ (ibid) remarked that each case must be decided in light of the delictual principles
discussed, inter alia, in Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 833–834 (see also
supra 357 ff). Of course principles and terminology of contract law should preferably be avoided (Steyn 2003 SALJ
469–470), unless it is possible to reconcile such principles with applicable delictual principles; and this appears to
be the case in respect of the two principles traditionally belonging to the inquiry into an actionable misrepresen-
tation in the case of cancellation of a contract, but employed in this field by Conradie JA in ABSA Bank Ltd v
Fouche 2003 1 SA 176 (SCA) 181 185. The two principles require a misrepresentation to be material, and to induce
the plaintiff to conclude a contract. As indicated above (supra 363), “materiality” can be applied meaningfully in
respect of delictual wrongfulness. “Inducement” clearly concerns factual causation, viz whether the misrepresenta-
tion caused the relevant conclusion of a contract (Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 575;
Fouche 188–189; Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W) 3 98–400). In
Cuba NO v Holoquin Global (Pty) Ltd [2016] 4 All SA 77 (GJ) para 42 Rubens AJ set out the requirements for this
cause of action: there must be a representation; that was false, wrongful and intentional or negligent; and which
caused loss to the claimant. See further Neethling and Potgieter 2004 THRHR 157–159.
271 Thatcher v Katz 2006 6 SA 407 (C) 412; cf Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 569.
272 Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 28. Cf Van der Merwe and Olivier 371
381 fn 6. They correctly point out that only the first case is concerned with the infringement of a personal right. See
further Neethling Van Heerden-Neethling Unlawful Competition 245; Loubser and Midgley Delict 281 ff.
273 Van der Merwe Vorderingsregte 113–119.
274 See Neethling and Potgieter 1994 THRHR 675–676; see also Country Cloud Trading CC v MEC, Department of
Infrastructure Development 2014 2 SA 214 (SCA) 224–225 (Scott 2014 TSAR 826 ff); Country Cloud Trading CC
v MEC, Department of Infrastructure Development, Gauteng 2015 1 SA 1 (CC) paras 27 30–31. See Bhana and
Samaradiwakera-Wijesundara 2018 Stell LR 430 ff who, in a critique of the CC’s judgment in Country Cloud,
contend that Country Cloud ought to have had a remedy against the Department both in terms of the law of contract
and the law of delict (see also Scott 2014 TSAR 837).
275 In Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 202 the court stated as
follows: “A delictual remedy is available to a party to a contract who complains that a third party has intentionally
and without lawful justification induced another party to the contract to commit a breach thereof ”; see also
Genwest Batteries (Pty) Ltd v Van der Heyden 1991 1 SA 727 (T) 729; Aetiology Today CC t/a Somerset Schools v
Van Aswegen 1992 1 SA 807 (W) 820; Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau
(Cape) (Pty) Ltd 1968 1 SA 209 (C) 215; Solomon v Du Preez 1920 CPD 401 404; Isaacman v Miller 1922 TPD 56
61. See in general Neethling Van Heerden-Neethling Unlawful Competition 245–147; infra 380 fn 352.
276 Cf McKriel v Keely 1 SC 32; Jansen v Pienaar (1881) 1 SC 276; Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn
Ghwano (Pty) Ltd 1981 2 SA 173 (T) 202–203.
to terminate their contracts of service unlawfully,277 or even conduct designed to frustrate

the conclusion of a contract.278
(ii) Interference with a contractual relationship is also present where a contracting party does
not obtain the performance to which he is entitled ex contractu, but without breach of
contract taking place or the conduct amounting to enticement (inducement).279 280 This
form of interference with a contractual relationship may overlap with unlawful com-
petition.281
(iii) Interference with a contractual relationship may furthermore occur in circumstances
where there is indeed an act of inducement, but the inducement causes a lawful termin-
ation of the contract and not a breach of contract.282
(iv) Lastly, interference with a contractual relationship may take place where a contracting
party’s contractual obligations are increased.283
________________________
277 Cf Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 200; New Kleinfontein Co
Ltd v Superintendent of Labourers 1906 TS 241. See in general Van der Merwe and Olivier 371–373; Neethling
Van Heerden-Neethling Unlawful Competition 246–247.
278 Makulu Plastics & Packaging CC v Born Free Investments 128 (Pty) Ltd 2013 1 SA 377 (GSJ) 381–383.
279 The conclusion is, therefore, that “an inducement and a breach [of contract] are not prerequisites to a successful
action for the unlawful and intentional interference by a third party in a party’s contractual relationship” (Lanco
Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 384). For examples, see Dantex Investment
Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A); Union Government v Ocean Accident and Guarantee
Corporation Ltd 1956 1 SA 577 (A); Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA
371 (D); Franschhoekse Wynkelder (Ko-operatief ) Bpk v SAR & H 1981 3 SA 36 (C); see also Neethling and
Potgieter 1994 THRHR 675; Lanco 831–384; infra 370–371 in connection with the instances of damage to
property (by a third party) which, in terms of a contract with the owner thereof, is in the possession of the other
contracting party.
280 In Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 1 SA 1 (CC) the court was
confronted with a novel situation, namely whether delictual liability should be extended to a contracting party for
damage suffered by a stranger to the contract (third-party plaintiff) resulting from the intentional repudiation of the
contract by that contracting party. According to Kampepe J, this is an instance of interference with a contractual
relationship (11í13). To be prima facie wrongful, the conduct must fit under either (i) or (ii) above. This was,
however, not the case in casu. Therefore, the wrongfulness of the defendant had to be established positively with
reference to policy considerations (13í23). The court concluded that the defendant’s conduct was not wrongful (see
Neethling and Potgieter 2015 THRHR 712í719 for a full discussion). In passing, concern should be expressed at
the seemingly casuistic (English tort law) approach of the court in attempting to fit Country Cloud’s claim into two
categories recognised in case law. From the start, the established generalising approach of our law, whereby general
requirements for delictual liability are applied to the present situation, would have been preferable.
281 In recent times, this has happened in at least four cases in which it was alleged that Masstores had committed a
delict by interfering with the exclusive contractual relationship between a general supermarket (Pick ƌ Pay or
Shoprite Checkers) and the owner or lessor of a shopping centre in terms of which the supermarket had the
exclusive right to sell groceries in the shopping centre (Pick ’n Pay Retailers (Pty) Ltd v Liberty Group Ltd 2015 4
SA 241 (GP); Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2016 2 SA 586 (SCA); Shoprite Checkers (Pty)
Ltd v Masstores (Pty) Ltd [2016] 3 All SA 926 (ECG); and Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd
2017 1 SA 613 (CC)). (See Neethling and Potgieter 2017 (1) LitNet Akademies 374í388 for a discussion of the
four judgments.) In the first three cases, an interdict was granted against Masstores to prohibit it from interfering
with said exclusive contractual relationship by trading as a general foodstore in its Game store in the centre. In the
last case, however, the CC came to the opposite conclusion. After refuting the decision of the SCA in Masstores
(paras 18 22í24; see also Neethling and Potgieter 2017 (1) LitNet Akademies 364–365), Froneman J held that
Masstores’s trading as a general supermarket did not deprive Pick n Pay of its entitlement to continue trading as a
supermarket in the shopping centre. There may have been a deprivation of a part of Pick n Pay’s trading interest,
namely its exclusivity, but Masstores had not usurped that exclusivity and appropriate it as its own (para 25). As a
result, Pick n Pay did not prove wrongfulness on the grounds of the interference of a contractual relationship by
Masstores. In all four cases, Masstores was clearly involved in a competition struggle with the other retailers, but
this state of affairs received attention only in the CC (see the discussion infra fn 335; see also Neethling and
Potgieter in Roestoff and Brits (eds) 151í152).
282 Cf Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 200; Lanco Engineering CC v
Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 383; Neethling Van Heerden-Neethling Unlawful Competition
247–249.
370 Law of Delict
This exposition is, however, subject to the general rule in South African law that only the
intentional interference with the contractual relationship of another in principle constitutes an
independent delictual cause of action.284 Following the Appellate Division decision in Union
Government v Ocean Accident and Guarantee Corporation Ltd,285 the courts have as a rule
refused to extend delictual liability for negligent interference with a contractual relationship
beyond the historically justified instances.286 These instances include, firstly, the delictual action
of the master for injury to his domestic servant.287 Secondly, a person who is in possession of
property in terms of a contract with the owner may, to the extent that he has a direct interest in
the economic value of such a thing, institute the actio legis Aquiliae against a third party who
damages it. As indicated above,288 at common law the Aquilian action was granted to such a
holder of a personal right with regard to property in the case of the colonus partiarius, the
borrower,289 the fullo (or persons in similar relationships to the owner) and the lessee of the
services of a slave or servant. Later, the courts extended this capacity to institute an action to the
hire-purchaser290 and the long-term lessee of a thing.291
________________________
283 On close examination, it appears that in AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) 618–619 the court
was dealing with a negligent interference by the defendant with a contractual relationship between the plaintiff and
a third party as a result of which the plaintiff's contractual obligations with the third party were increased (see
Neethling and Potgieter 2012 THRHR 114–115). Cf also Shell and BP SA Petroleum Refineries (Pty) Ltd v
Osborne Panama SA 1980 3 SA 653 (D); see also Neethling 1981 THRHR 78; Neethling and Potgieter 1994
THRHR 676; Van der Merwe and Olivier 371 381 fn 6.
284 Cf Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 28. In Dantex Investment Holdings
(Pty) Ltd v Brenner 1989 1 SA 390 (A) 395 Grosskopff JA stated: “It is clear that an interference with contractual
rights can in certain circumstances constitute a delict. What is less clear is what precisely the requirements for
liability are . . . In the present case Mr Slomowitz accepted that this cause of action required fault in the form of
dolus on the part of the defendants. Moreover both parties were ad idem that, if such dolus has been pleaded, the
pleading would disclose a cause of action in delict. For the purposes of this case I assume, without deciding, that
the parties’ attitude is correct. I would, however, emphasize that the question whether culpa might not constitute a
sufficient element of fault to ground liability for damages for an unlawful interference with contractual relations
was not raised or debated in argument . . . Since there was in any event no allegation of culpa in the pleadings I
need say no more about this possibility.” (In this case the question was whether a lessee of land, who has not
received occupation, is entitled to claim damages under the lex Aquilia for the unauthorised occupation of the
leased premises by a third person, ie, “whether in such a case the third person’s conduct is unlawful, in the delictual
sense, against the lessee” (at 394). The plaintiff based his claim on the fact that the defendants had deliberately
interfered with its contractual rights under the lease. However, the claim failed because the plaintiff “has neither
alleged intent or dolus in express terms, nor has it sufficiently alleged the elements which go to make up this
concept” (at 397). See Neethling and Van Aswegen 1989 THRHR 608–609.)
285 1956 1 SA 577 (A). See also supra 11 329; Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA)
para 29; Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 380–381; Nkabinde v SA
Motor and General Insurance Co Ltd 1961 1 SA 302 (N); Kruger v Strydom 1969 4 SA 304 (NC); cf
Franschhoekse Wynkelder (Ko-operatief) Bpk v SAR & H 1981 3 SA 36 (C) 41.
286 See however Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) paras 31í32. The judgment in
principle correctly supports the existence of Aquilian liability for pure economic loss based on the negligent inter-
ference with a contractual relationship povided that all other delictual elements, especially wrongfulness and legal
causation, are present (see Neethling and Potgieter 2015 THRHR 162 ff for a full discussion).
287 See however Pike v Minister of Defence 1996 3 SA 127 (Ck) 130–132; supra 10 325 332.
288 Supra 9; cf also Van der Merwe and Olivier 374.
289 The courts also grant an action to borrowers for use against a third party who causes damage to the borrower by
hindering him in the use of the property (Van der Merwe and Olivier 373; Maraisburg Divisional Council v Wage-
naar 1923 CPD 94). Similarly the borrower for use has an action for damage to property if he is contractually liable
against the owner for all damage which might befall the property (Refrigerated Transport (Edms) Bpk v Mainline
Carriers (Edms) Bpk 1983 3 SA 121 (A); Spolander v Ward 1940 CPD 24; cf however Kruger v Strydom 1969 4
SA 304 (NC) 308 ff).
290 Smit v Saipem 1974 4 SA 918 (A). The court stated (926–927): “As purchaser, he bears the risk and thus should pay
the full purchase price, even if the property is destroyed. Although the thing is still the property of the seller, as
such it (and its value) is for him not an asset in an economic sense. It stands to be replaced by the purchase price,
and the claim aimed at the purchase price is the seller’s true asset. It is therefore not surprising that it should be
regarded as desirable that the hire-purchaser should have a direct claim against the actor in regard to the
[continued ]
In this regard, it can be mentioned that case law correctly emphasised that, apart from the hire-
purchaser, the seller as owner of the damaged thing may also institute the actio legis Aquiliae.292
Although this fact does not mean that a defendant will be obliged to make good the same damage
twice,293 it nevertheless creates an interesting situation in the application of the Apportionment
of Damages Act.294 If the hire-purchaser was contributorily negligent in respect of damage done
to the thing and institutes his own action, his claim is reduced in accordance with the degree of
his negligence. However, should the hire-purchaser under the same circumstances obtain a
cession of action from the owner of the thing, he may recover the full amount of damages, since
the owner himself was not contributorily negligent.295
It is necessary to return to the decision in Union Government v Ocean Accident and Guarantee
Corporation Ltd.296 As stated,297 the court based its view that negligent interference with a
contractual relationship is not actionable on the fact that the granting of the action may lead to
an “unmanageable situation” because the door will then be opened to unlimited liability. In our
opinion, however, any negligent conduct by a third party which causes the infringement of a
contractual personal right or the increase of a contractual obligation ought, in principle, to found
the Aquilian action.298 The fear of unlimited liability299 may be allayed by the correct application
________________________
depreciation in value” (translation). (See also Botha v Rondalia Versekeringskorporasie van SA Bpk 1978 1 SA 996
(T) 999; cf further Moodley v Bondcrete (Pty) Ltd 1969 2 SA 370 (N); Lean v Van der Mescht 1972 2 SA 100 (O).)
In Raqa v Hofman 2010 1 SA 302 (WCC) a person (N) was unable to pay the purchase price for a motor car and
also did not qualify for credit from a financial institution. The plaintiff (P), a friend of N, thereupon agreed to enter
into an instalment sale transaction with a financial institution (F) on the understanding between P and N, firstly,
that N would take delivery and possession of the car and would pay the instalments and insurance premiums that
would have been P’s responsibility in terms of the agreement and, secondly, that in the event of a default in any of
the payments due, F would look to P for payment, and P, in turn, would look to N. The vehicle was damaged in an
accident and P instituted an action for damages against the defendant (N) for the damage he had allegedly suffered.
The only issue before the High Court was whether P had locus standi to sue for damages under the Aquilian action.
The court stated two requirements for locus standi in the present circumstances, namely, firstly, possession of the
property and, secondly, the risk-bearing responsibility by the claimant in respect of the property and held that as P
was not in possession of the vehicle, he had no recognisable propriety interest in it and therefore no locus standi.
291 Tarmacadam Services (SA) (Pty) Ltd v Minister of Defence 1980 2 SA 689 (T). A hired a motor car from B. In
terms of the agreement A was liable for all damage to the vehicle and on termination of the agreement A was
entitled only to the market value of the motor car. The question arose whether A in his own right could institute an
action for damages against C who damaged the motor car negligently. The court decided (695): “It is clear that the
lessee had a direct interest in the market value of the goods. He is entitled to the market value on the termination of
the agreement and in other circumstances set out in the agreement. A decrease in the market value, or value of the
goods, affects him directly. The factors which moved the learned Judge in Smit v Saipem (supra) to extend the right
to the purchaser under a hire-purchase agreement to sue in his own right for damages to goods are present in the
agreement under consideration herein and, on the same reasoning, the right to sue for damages to the leased goods
should be extended to the lessee under the present agreement.” See also Boots Co (Pty) Ltd v Somerset West Muni-
cipality 1990 3 SA 216 (C) 219; Lehmbeckers Transport (Pty) Ltd v Rennies Finance (Pty) Ltd 1994 3 SA 727 (C)
730–732.
292 Smit v Saipem 1974 4 SA 918 (A) 932; Botha v Rondalia Versekeringskorporasie van SA Bpk 1978 1 SA 996 (T)
999; cf also supra 9 with regard to the position at common law. This also applies in respect of the lessee (Lehm-
beckers Transport (Pty) Ltd v Rennies Finance (Pty) Ltd 1994 3 SA 727 (C) 730–732).
293 Ibid.
294 34 of 1956; cf supra 199 ff.
295 Stolp v Kruger 1976 2 SA 477 (T); Dhlamini v Protea Furnishers (Natal) (Pty) Ltd 1982 2 SA 50 (N) (cf, however,
the judge’s remark at 53).
296 1956 1 SA 577 (A). The facts in this case were briefly that a magistrate was injured in a motor car accident and
could not work for two and a half months. The state, however, in terms of the contract of service, had to pay the
magistrate his full salary for the period of absence. The state sued the party who caused the magistrate’s injuries for
damages.
297 Supra 329.
298 Cf Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA) para 31. In Shell and BP SA Petroleum
Refineries (Pty) Ltd v Osborne Panama SA 1980 3 SA 653 (D) the court was in principle willing to grant the actio
legis Aquiliae in a case where the interference with a contractual relationship consisted of aggravating a contractual
obligation. The claim, however, failed as a result of the absence of a legal duty – and consequently wrongfulness –
[continued ]
372 Law of Delict
of all the elements of a delict. The requirement of wrongfulness, especially, plays an important
part in this context, as in the case of pure economic loss.300 As a matter of fact, owing to the pure
financial nature of the interests concerned in cases of interference with a contractual relation-
ship,301 prejudice almost always takes the form of pure economic loss. What was said in the case
of pure economic loss therefore applies, mutatis mutandis, here as well. One must emphasise,
however, that not every factual interference with a contractual relationship by a third party is
wrongful in principle. It would be wrongful only if such interference was also contra bonos
mores or unreasonable.302 As stated,303 the wrongdoer’s subjective knowledge that the plaintiff
will be prejudiced,304 as well as (other) considerations of legal policy, plays an important part in
establishing wrongfulness.305 In Minister for Safety and Security v Scott306 the court followed
this approach with regard to the negligent interference with a contractual relationship and came
to the conclusion that, as a result of policy considerations, wrongfulness was absent, mainly
because it would create liability for an indeterminate group of plaintiffs.
________________________
as against the plaintiff (see Neethling 1981 THRHR 79). Also in Dantex Investment Holdings (Pty) Ltd v Brenner
1989 1 SA 390 (A) 395 (supra fn 284) there was not an outright rejection of the possibility of liability for the
negligent interference with a contractual relationship; instead, the Appellate Division left the question concerning
such a possibility open (see also Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D)
380–381; Neethling and Potgieter 1994 THRHR 677–678; Neethling and Van Aswegen 1989 THRHR 608–609; cf
on negligent interference with a contractual duty of support, Amod v Multilateral Motor Vehicle Accidents Fund
(Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA) 1326 1331; Du Plessis v Road Accident
Fund 2004 1 SA 359 (SCA); supra 337–339; Neethling and Potgieter 2001 THRHR 488).
299 See Bhana and Samaradiwakera-Wijesundara 2018 Stell LR 448–451 for a discussion of this factor with reference
to Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 1 SA 1 (CC).
300 Supra 349 ff. Van der Merwe and Olivier 375 ff also criticise the Union Government case. According to them each
infringement of a personal right by an outsider is prima facie wrongful. The requirement of fault (negligence) will
according to their view nevertheless prevent an unlimited extension of the third party’s liability. Seen in this light,
the third party will only be liable if he could reasonably have foreseen that a contracting party could be harmed by
his conduct.
301 The cases mentioned above where the patrimonial loss involved was indeed the result of damage to property or
personal injuries, did not concern the plaintiff’s injuries or property (see the remarks supra fn 156).
302 In Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 380 384 Galgut J emphasised
that wrongfulness in the present context must be determined by reference to the criterion of reasonableness or the
boni mores. Although he rejected inducement and breach of contract as absolute requirements for the present cause
of action (supra fn 279), he nevertheless said (384): “In all of the circumstances it seems therefore that I may safely
conclude that an inducement and a breach are not prerequisites to a successful action for the unlawful and inten-
tional interference by a third party in a party’s contractual relationship. I hasten to add, however, that this does not
mean that these matters are irrelevant. On the contrary, they will nevertheless be features of importance. As I see it
their true significance lies, however, in the question of unlawfulness . . . They are no more than features which must
be thrown into the scales when a Court considers whether public policy, or the boni mores, or the criterion of
reasonableness, will regard any particular interference in a contractual relationship as unlawful or not. Indeed, they
are important considerations, so important that in a given case their absence might make it difficult for a Court to
conclude that the interference concerned was unlawful. I emphasise however that each case must depend upon its
own facts” (cf however Neethling and Potgieter 1994 THRHR 676). Cf further Amod v Multilateral Motor Vehicle
Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA) 1326 1331; Du Plessis v
Road Accident Fund 2004 1 SA 359 (SCA) and supra 337 on interference with a contractual duty of support
(Neethling and Potgieter 2001 THRHR 488).
303 Supra 352 ff.
304 In Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 388–389, the knowledge of the
defendant’s representative that the plaintiff would suffer damage, played an important role in judging the inter-
ference with the contractual relationship concerned as wrongful (see Neethling and Potgieter 1994 THRHR 677).
305 The question arises why every intentional interference with a contractual relationship in principle leads to liability
and is by implication thus also wrongful. The answer to this seems to be that the perpetrator either had knowledge
that the plaintiff would suffer loss or that he acted with an improper motive. Both factors are, as pointed out (supra
47 150–151), indicative of unreasonable behaviour, thus making an otherwise lawful act unlawful (cf Neethling and
Potgieter 1992 TSAR 323). However, cf Minister of Finance v Gore 2007 1 SA 111 (SCA) 139–140 and for
criticism Neethling and Potgieter 2007 TSAR 619–622.
306 [2014] 3 All SA 306 (SCA) paras 31–32 36.
In the foregoing discussion, the courts had to deal with the interference with a contractual
relationship by a third party. In Country Cloud Trading CC v MEC, Department of Infrastruc-
ture Development,307 however, the court was confronted with a novel situation, namely whether
delictual liability should be extended to a contracting party for damage suffered by a stranger to
the contract (third party plaintiff) resulting from the intentional repudiation of the contract by
that contracting party. The court held that the plaintiff’s claim could not succeed, mainly for the
following reasons: imposition of liability could lead to indeterminate liability,308 and the plaintiff
was not “vulnerable to the risk of harm”, which signifies that the plaintiff could reasonably have
avoided the harm suffered by other means.309
7 Unlawful competition
In general, the concept of competition denotes the striving by several persons towards the same
purpose. In the area of unlawful competition, which in general concerns competition between
business enterprises, it denotes the pursuit of the custom of the same clients.310 The competitive
relationship accordingly brings about a struggle for the favour of the client; a struggle in which
the benefit that the one competitor gains, finds its correlate in the prejudice or potential prejudice
that the other competitor suffers. Where the interests of the different competitors in this struggle
directly oppose each other, it is self-evident that a conflict of interests will constantly be
present.311
In South Africa, the law relating to the conflict between competitors is placed within the
extended field of application of the lex Aquilia.312 Accordingly, the courts applied the general
principles of Aquilian liability to many of the forms of unlawful competition that occurred in our
law.313 A very important implication of the recognition of Aquilian liability in this field is,
however, that the wide basis of the actio legis Aquiliae is now available to help a prejudiced
________________________
307 2014 2 SA 214 (SCA) (see Neethling 2015 TSAR 188 ff; Mukheibir 2015 SALJ 22 ff; Scott 2014 TSAR 826 ff 839
who concludes that Brand JA’s judgment offers the only fair and practical solution for the facts in casu); see also
Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 1 SA 1 (CC), which
confirmed the SCA decision; but see the discussion supra fn 280. Cf Trio Engineered Products Inc v Pilot Crushtec
International (Pty) Ltd 2019 3 SA 580 (GJ) 586í587 where the court concluded: “In determining wrongfulness,
one must proceed with caution when assessing whether a third party, harmed by a breach of contract, can sue a
party to the contract for such harm, outside well defined causes of action.” See also Neethling and Potgieter 2015
THRHR 719–720.
308 225–226 (see also Scott 2014 TSAR 837), analogous to the unmanageable situation referred to in Union Govern-
ment v Ocean Accident and Guarantee Corporation Ltd 1956 1 SA 577 (A) 585; see supra 329.
309 226–227; cf supra 356 in connection with liability for pure economic loss.
310 In Lorimar Productions Incorporated v Sterling Clothing Manufacturers (Pty) Ltd 1981 3 SA 1129 (T) 1141 the
court stated as follows: “In general terms competition involves the idea of a struggle between rivals endeavouring
to obtain the same end. It may be said to exist whenever there is a potential diversion of trade from one to another.
For competition to exist the articles or services of the competitors should be related to the same purpose or must
satisfy the same need.” See also Royal Beech-nut (Pty) Ltd t/a Manhattan Confectioners v United Tobacco Co Ltd
t/a Willard Foods 1992 4 SA 118 (A) 123; Neethling Van Heerden-Neethling Unlawful Competition 2–3.
311 See also Neethling Van Heerden-Neethling Unlawful Competition 3–4.
312 In, eg, Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 186 it was said “that
the law of South Africa recognises and grants a general action in the case of unlawful competition, based on the
principles of the lex Aquilia”. See also Geary and Son (Pty) Ltd v Gove 1964 1 SA 434 (A) 440–441; Lorimar
Productions Incorporated v Sterling Clothing Manufacturers (Pty) Ltd 1981 3 SA 1129 (T) 1138 1152 ff; Schultz v
Butt 1986 3 SA 667 (A) 678; FW Woolworth and Co (Zimbabwe) (Pvt) Ltd v Sunray Stores (Pvt) Ltd t/a “The W
Store” 1999 2 SA 887 (ZH) 897; Waste Products Utilisation (Pty) Ltd v Wilkes 2003 2 SA 515 (W) 570–571;
Heyneman v Waterfront Marine CC [2005] 2 All SA 382 (C) 398; Neethling Van Heerden-Neethling Unlawful
Competition 76 ff; Van der Walt and Midgley Delict 144í145; Loubser and Midgley Delict 294–296.
313 Neethling Van Heerden-Neethling Unlawful Competition 75.
374 Law of Delict
competitor, even in the absence of a direct precedent in case law.314 Accordingly, a prejudiced
competitor who is the victim of another’s novel wrongful act need not endeavour to bring his
action within the framework of one of the recognised forms of unlawful competition or another
particular form of delict.315
Insofar as the area of conflict between competitors is governed by the general principles of
Aquilian liability, it follows that all the delictual elements must be present to found liability.
However, it is especially the question of the wrongfulness of a competitive act which is of
cardinal importance316 – a question that is not always easy to answer.317
As a point of departure it is accepted, also by the courts,318 that wrongfulness in unlawful com-
petition lies basically in the infringement of a competitor’s right to the goodwill (“werfkrag”)319
________________________
314 Eg Nationwide Airlines (Pty) Ltd (in liquidation) v South African Airways (Pty) Ltd 2016 6 SA 19 (GJ) para 1; Dun
and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 1 SA 209 (C) 218; Schultz v
Butt 1986 3 SA 667 (A) 678; see further Neethling Van Heerden-Neethling Unlawful Competition 76.
315 See Nationwide Airlines (Pty) Ltd (in liquidation) v South African Airways (Pty) Ltd 2016 6 SA 19 (GJ) where
South African Airways (SAA, defendant) was sued by Nationwide Airlines (plaintiff) for losses it had allegedly
suffered between 2001 and 2005 due to SAA’s anticompetitive conduct. In a 2010 finding by the Competition
Tribunal (the tribunal), which was affirmed by the Competition Appeal Court, it was held that SAA had abused its
dominance in the market by diverting customers from its rivals through incentive agreements with travel agents.
The tribunal found that SAA’s abuse of its dominant market position was the major cause of the fall in the
plaintiff’s passenger numbers. This conduct was in contravention of s 8(d)(i) of the Competition Act 89 of 1998
which prohibits a dominant firm from excluding competition by “requiring or inducing a supplier or customer not
to deal with a competitor” (see on the abuse of a dominant position Neethling and Rutherford 2003 (2) LAWSA
214–216). The finding entitled the plaintiff to commence the present civil action for damages under s 65 of the
Competition Act. Nicholls J commenced his judgment by stating that the defendant’s conduct constituted a delict –
the first of its kind in our law – arising from the anticompetitive practices of SAA (para 1); see also Interflora
African Areas Ltd v Sandton Florist 1995 4 SA 841 (T) 847; Woodlands Dairy (Pty) Ltd v Parmalat SA (Pty) Ltd
2002 2 SA 268 (E) 279; Waste Products Utilisation (Pty) Ltd v Wilkes 2003 2 SA 515 (W) 571. One must warn
against the tendency, especially in earlier cases, to seek guidance exclusively – and sometimes blindly – from
English law. It is necessary to keep in mind that the English law of delict is a “law of torts” and that in England a
competitor can accordingly only sue if the competitive act involved – plus its accompanying factors – complies
with the particular requirements of some or other “tort”. Our courts should thus allow themselves to be influenced
by English decisions concerning competition conflicts only to a limited extent and with great circumspection, and
then only insofar as these decisions are reconciliable with the principles of our law of delict (see Weber-Stephen
Products Co v Alrite Engineering (Pty) Ltd 1990 2 SA 718 (T) 734–735; Meter Systems Holdings Ltd v Venter
1993 1 SA 409 (W) 427–428; Gordon Lloyd Page and Associates v Rivera 2001 1 SA 88 (SCA) 94–95; Neethling
Van Heerden-Neethling Unlawful Competition 77; cf also supra 5 fn 15).
316 See Neethling Van Heerden-Neethling Unlawful Competition 78–79 81–84 with regard to the delictual elements of
the act, causation and damage. In connection with the requirement of fault the following should be noted. A very
important consequence of the recognition of Aquilian liability in the area of unlawful competition is that a plaintiff,
who suffered patrimonial damage as a result of the wrongful act of his competitor, should in principle be able to
succeed ex lege Aquilia if he proves either intent or negligence on the part of the wrongdoer (see, eg, Link Estates
(Pty) Ltd v Rink Estates (Pty) Ltd 1979 2 SA 276 (E) 281 with regard to passing off; William Grant and Sons Ltd v
Cape Wine and Distillers Ltd 1990 3 SA 897 (C) 915; Long John International Ltd v Stellenbosch Wine Trust (Pty)
Ltd 1990 4 SA 136 (D) 141 with regard to misleading as to one’s own performance; Van Castricum v Theunissen
1993 2 SA 726 (T) 735 with regard to trade secrets (see Neethling Van Heerden-Neethling Unlawful Competition
79–81)). Accordingly, the decisions requiring intent for Aquilian liability for injurious falsehood – or the publica-
tion of false, disparaging remarks in connection with a competitor’s business, products or services – are wrong. The
same applies to the decisions that apparently also require intent for a successful claim based on boycott as unlawful
competition (Neethling Van Heerden-Neethling Unlawful Competition 80, 271 ff 291–293).
317 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 186; Discovery Ltd v Liberty
Group Ltd 2020 4 SA 160 (GJ) 177; Neethling Van Heerden-Neethling Unlawful Competition 119.
318 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 182; Silver Crystal Trading
(Pty) Ltd v Namibia Diamond Corporation (Pty) Ltd 1983 4 SA 884 (D) 887–888; Pepsico Inc v United Tobacco
Co Ltd 1988 2 SA 334 (W) 348; Heyneman v Waterfront Marine CC [2005] 2 All SA 382 (C) 398; Geary and Son
(Pty) Ltd v Gove 1964 1 SA 434 (A) 440; Neethling Van Heerden-Neethling Unlawful Competition 105–107
119–121.
319 See Neethling Van Heerden-Neethling Unlawful Competition 100–105 with regard to this concept.
of his undertaking.320 As stated,321 the question of the infringement of a subjective right can only
arise if there is at least an infringement of the object of the right, or if the holder of the right has
otherwise been disturbed in the enjoyment and use of his legal object. This factual disturbance
of the relation between subject and object does not, however, necessarily imply the infringement
of a subjective right. The dynamic character of competition, which in essence amounts to a
sphere of conflict, entails that the majority of competitive acts by an entrepreneur factually
infringe the goodwill of his competitors without being wrongful. Thus it was correctly stated in
A Becker and Co (Pty) Ltd v Becker:322
To a far greater extent than other legal objects, the goodwill of a business is exposed to factual inter-
ferences about which the right-holder may not complain. In a capitalist system where free competition is
permitted by the legal order, it is axiomatic that the mere existence of two or more competing businesses
may be prejudicial to the respective business leaders.
Although it is a requirement for liability, such factual disturbance is thus in itself insufficient to
constitute an infringement of the right. An infringement of a right must necessarily also be
accompanied by the violation of a legal norm.323 Accordingly, to constitute an infringement of
the right to goodwill or a wrongful violation of goodwill, the competitive act must not only
factually infringe the goodwill of a competitor, but must simultaneously also violate a legal
norm.
Initially, the courts ascertained the limits of the right to goodwill with reference to the norm or
yardstick of honesty and fairness in trade and competition.324 At present, wrongfulness in the
competition struggle is determined by reference to the general criterion for wrongfulness in our
law, ie, the boni mores or reasonableness criterion (“public policy” or “the general sense of
justice of the community”).325 In Schultz v Butt326 Nicholas AJA succeeded in reconciling the
boni mores yardstick with the criteria of fairness and honesty:
________________________
320 For a theoretical exposition of this immaterial property right, see idem 100–105.
321 Supra 58–59.
322 1981 3 SA 406 (A) 417 (translation); see also Taylor and Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 1 SA 412 (A)
421–422; Matthews v Young 1922 AD 492 507; Manousakis v Renpal Entertainment CC 1997 4 SA 552 (C) 558;
Neethling Van Heerden-Neethling Unlawful Competition 120–121.
323 Supra 58–59.
324 Eg Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1972 3 SA 152 (C) 161–162; Dun and Bradstreet (Pty)
Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 1 SA 209 (C) 218–219; cf Schultz v Butt 1986
3 SA 667 (A) 679; Lenco Holdings Ltd v Eckstein 1996 2 SA 693 (N) 704–705; Waste Products Utilisation (Pty)
Ltd v Wilkes 2003 2 SA 515 (W) 571; Neethling Van Heerden-Neethling Unlawful Competition 121–123.
325 Eg Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 188–189; Lorimar
Productions Incorporated v Sterling Clothing Manufacturers (Pty) Ltd 1981 3 SA 1129 (T) 1152–1153; Silver
Crystal Trading (Pty) Ltd v Namibia Diamond Corporation (Pty) Ltd 1983 4 SA 884 (D) 888; Scott and Leisure
Research and Design (Pty) Ltd v Watermaid (Pty) Ltd 1985 1 SA 211 (C) 223; Elida Gibbs (Pty) Ltd v Colgate
Palmolive (Pty) Ltd 1988 2 SA 350 (W) 356–357; Times Media Ltd v SABC 1990 4 SA 604 (W) 606–607; Bress
Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 2 SA 455 (W) 473; Aetiology Today CC t/a
Somerset Schools v Van Aswegen 1992 1 SA 807 (W) 816–819; The Concept Factory v Heyl 1994 2 SA 105 (T)
115; Payen Components SA Ltd v Bovic Gaskets CC 1994 2 SA 464 (W) 474; FW Woolworth and Co (Zimbabwe)
(Pvt) Ltd v Sunray Stores (Pvt) Ltd t/a “The W Store” 1999 2 SA 887 (ZH) 897; Woodlands Dairy (Pty) Ltd v
Parmalat SA (Pty) Ltd 2002 2 SA 268 (E) 279; Waste Products Utilisation (Pty) Ltd v Wilkes 2003 2 SA 515 (W)
571; Heyneman v Waterfront Marine CC [2005] 2 All SA 382 (C) 399–400; GrĦndlingh v Phumelela Gaming and
Leisure Ltd 2005 6 SA 502 (SCA) 514 516–518; Phumelela Gaming and Leisure Ltd v GrĦndlingh 2007 6 SA 350
(CC) 361–362 363; Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ) 177–178; Tolgaz Southern Africa;
Easigas (Pty) Ltd v Solgas (Pty) Ltd 2009 4 SA 37 (W) 50; Neethling Van Heerden-Neethling Unlawful
Competition 123–124.
326 1986 3 SA 667 (A) 679. See, eg, also Taylor and Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 1 SA 412 (A) 423; The
Concept Factory v Heyl 1994 2 SA 105 (T) 115; Payen Components SA Ltd v Bovic Gaskets CC 1994 2 SA 464
(W) 474; Interflora African Areas Ltd v Sandton Florist 1995 4 SA 841 (T) 848; Spur Steak Ranches Ltd v Saddles
Steak Ranch, Claremont 1996 3 SA 706 (C) 715; Premier Hangers CC v Polyoack (Pty) Ltd 1997 1 SA 416
(A) 421–422; Kellogg Co v Bokomo Co-operative Ltd 1997 2 SA 725 (C) 736; Manousakis v Renpal Entertainment
[continued ]
376 Law of Delict
In judging of fairness and honesty, regard is had to boni mores and the general sense of justice of the
community . . . Van der Merwe and Olivier . . . rightly emphasise that ‘die regsgevoel van die
gemeenskap opgevat moet word as die regsgevoel van die gemeenskap se regsbeleidmakers, soos
Wetgewer en Regter’.
In applying this yardstick, the following factors may play a role:327 the honesty and fairness of
the conduct involved (“fairplay”); the morals and business ethics of the economic trade sector
involved; the protection that positive law already extends to the area concerned; statutory provi-
sions allowing the competitor’s conduct;328 the importance of a free market and strong competi-
tion in our economic system; the question of whether the parties are competitors; conventions
with other countries; and the motive of the actor.329 Contrary to what Boberg330 suggests, intent
or dolus is not a necessary qualification to colour a competitive act contra bonos mores and thus
unlawful.331
One cannot find fault with the boni mores as a general criterion for wrongfulness. This criterion
is, however, so vague that it does not in itself provide a rational yardstick for the delimitation of
the right to goodwill in the area of conflicting interests of competitors. A particular concretisa-
tion of the boni mores yardstick in the competition struggle is thus necessary.332 In this regard,
Van Heerden333 convincingly demonstrates that the so-called competition principle can serve as
such a yardstick. This principle implies that the competitor who delivers the best and/or fairest
performance, must be victorious in the competitive struggle;334 the one who offers the worst
performance, must suffer defeat.335 Performance or merit competition must thus be decisive with
________________________
CC 1997 4 SA 552 (C) 558; Aruba Construction (Pty) Ltd v Aruba Holdings (Pty) Ltd 2003 2 SA 155 (C) 172;
Neethling Van Heerden-Neethling Unlawful Competition 125–126.
327 See Phumelela Gaming and Leisure Ltd v GrĦndlingh 2007 6 SA 350 (CC) 362; Tolgaz Southern Africa; Easigas
(Pty) Ltd v Solgas (Pty) Ltd 2009 4 SA 37 (W) 50 and the cases supra fn 325; cf Neethling Van Heerden-Neethling
Unlawful Competition 126–127.
328 GrĦndlingh v Phumelela Gaming and Leisure Ltd 2005 6 SA 502 (SCA) 516–518 (confirmed in Phumelela
Gaming and Leisure Ltd v GrĦndlingh 2007 6 SA 350 (CC) 363).
329 Eg Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 2 SA 455 (W) 475–476; Aetiology
Today CC t/a Somerset Schools v Van Aswegen 1992 1 SA 807 (W) 820; Neethling Van Heerden-Neethling
Unlawful Competition 127 fn 66 134–139.
330 See Neethling Van Heerden-Neethling Unlawful Competition 139–141.
331 See Neethling and Potgieter 1991 SALJ 36–38.
332 Neethling Van Heerden-Neethling Unlawful Competition 127–128; Payen Components SA Ltd v Bovic Gaskets CC
1994 2 SA 464 (W) 474.
333 Neethling Van Heerden-Neethling Unlawful Competition 128–133; see also Van Heerden 1990 THRHR 155 ff;
Neethling 1991 THRHR 220. This principle was for the first time expressly recognised in Van der Westhuizen v
Scholtz 1992 4 SA 866 (O) 873; see also Kellogg Co v Bokomo Co-operative Ltd 1997 2 SA 725 (C) 739; Payen
Components SA Ltd v Bovic Gaskets CC 1994 2 SA 464 (W) 474; Aetiology Today CC t/a Somerset Schools v Van
Aswegen 1992 1 SA 807 (W) 819 where the court referred to the lawfulness of competition on merit; Van Heerden
and Neethling Unlawful Competition 131–132.
334 According to this, victory over a competitor may be obtained in two ways: either by offering the same performance
at a lower price, or by offering a better performance at the same price (cf Neethling Van Heerden-Neethling Unlaw-
ful Competition 8).
335 As pointed out (supra fn 281) in Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 1 SA 613 (CC), Frone-
man J held that Pick n Pay did not prove wrongfulness on the ground of the interference with a contractual relation-
ship by Masstores. However, Masstores was clearly involved in a competition struggle with the other retailers and
the question was whether Pick n Pay was not guilty of unlawful competition (paras 27í29). Froneman J, making it
clear that exclusive agreements between a supermarket and the owner or lessor of a shopping centre will not be
protected against competitors, held that Pick n Pay does not possess an exclusive right to trade (paras 33í36): “Our
law does not usually recognise this kind of exclusive right as worthy of general protection. The reason lies in the
fact that the underlying purpose of the law of unlawful competition is to protect free competition, not to undermine
it by making it less free. Our courts have often acknowledged the need for protection of free competition as an
important policy consideration when assessing the unlawfulness of competitive conduct by confirming the need for
free and active competition or by taking into account that by prohibiting competition an unlimited monopoly will
be bestowed upon the complainant . . . As a general proposition then, there is no legal duty on third parties not to
infringe contractually derived exclusive rights to trade” (see also Taylor and Horne (Pty) Ltd v Dentall (Pty) Ltd
[continued ]
regard to the question of whether the conduct of one competitor is wrongful as against another.
Conduct not based on the merits of the performance of the perpetrator is accordingly, in
principle, regarded as wrongful. This does not, however, mean that the boni mores or reason-
ableness criterion no longer has a role to play with regard to the determination of the dividing
line between lawful and unlawful acts of competition. In fact, in certain instances, the general
criterion is supplementary to the competition principle.336
An entrepreneur may infringe the goodwill of a competitor directly or indirectly.337
(a) Indirect infringement An infringement of the goodwill of a competitor is indirect where it
occurs as a result of the use that the perpetrator makes of his own goodwill: such infringement is
in principle lawful if it can be placed under the genus of performance competition. If not, the
prejudiced person’s right to goodwill is violated. It is important to note that an act which
amounts to performance competition may nevertheless be wrongful in certain circumstances.
This is the case where the perpetrator uses his own legal object (goodwill) in an unreasonable
manner; and an act is unreasonable if, in weighing up the interests of the two competitors, it is
found that there is too great an imbalance between the benefit that one gains and the prejudice
that the other suffers. In this weighing-up process, the motive (purpose)338 of the perpetrator may
be a strong indication of the (un)reasonableness of the use of his goodwill.339
________________________
1991 1 SA 412 (A) 421–422). The question then arose whether the circumstances in casu justified a different
finding as to unlawful competition. Here the boni mores or reasonableness criterion should be utilised (see also
supra 39 ff). According to the judge, this test had recently been refined by the recognition that, ultimately, the
wrongfulness enquiry questions “the reasonableness of imposing liability”. Froneman J added that this approach
does not necessarily assist in determining when it is reasonable to do so (para 48). He continued (para 49) that,
because the boni mores or reasonableness criterion on its own is often too vague to provide a rational yardstick for
the delimitation of the right to goodwill in the wrongfulness enquiry, the particular concretisation of the boni mores
test may be found in the so-called competition principle. But this principle can be properly applied only where the
activities of the competitors are comparable or where the playing fields are even. Where this is the case, the com-
petitive conduct by a rival will in principle be lawful (see also Neethling Van Heerden-Neethling Unlawful
Competition 132í133). Applying the competition principle to the facts in this case, the same conclusion is reached
according to the judge, namely that as a general proposition there is no legal duty on third parties not to infringe
contractually derived exclusive rights to trade. The underlying rationale is the same: Exclusive trading rights make
the competitive field uneven (para 51). Accordingly, Masstores’s conduct did not constitute unlawful competition.
(See for a full discussion Neethling and Potgieter in Roestoff and Brits (eds) 151í152; Neethling and Potgieter
2017 (1) LitNet Akademies 385í386.)
336 See Neethling Van Heerden-Neethling Unlawful Competition 135 ff; see also infra 375 under (a).
337 Idem 128–129 145–147.
338 Idem 135–140; see also supra 47–48 150–151 with regard to the role of motive in the determination of wrong-
fulness.
339 The following example, based on the American case Tuttle v Buck (1907) 107 Minn 145, may serve as an illus-
tration. With the sole purpose of prejudicing a barber, X establishes his own barber’s business. In order to achieve
his purpose, he charges prices that are below the profit level. He also does not make any secret of the fact that he is
going to close down his business as soon as he has ruined the other barber. It is thus perfectly clear that his conduct
cannot bring him any immediate or eventual advantages. Even if he manages his business at a profit, the benefit
that he receives in the ordinary course of events must necessarily be out of all proportion to the prejudice that the
barber suffers. Even if his acts can thus be typified as performance competition, they are nevertheless wrongful
according to the criterion of reasonableness. In Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd
1991 2 SA 455 (W) 475–476 a competitive act, of which the “sole or dominant purpose is the infliction of harm for
its own sake”, was also considered to be contra bonos mores (see also Woodlands Dairy (Pty) Ltd v Parmalat SA
(Pty) Ltd 2002 2 SA 268 (E) 280–281 (Neethling 2002 SA Merc LJ 827–830); Kellogg Co v Bokomo Co-operative
Ltd 1997 2 SA 725 (C) 739). Cf Deneys Reitz v SA Commercial, Catering and Allied Workers Union 1991 2 SA
685 (W) 693 696; Aetiology Today CC t/a Somerset Schools v Van Aswegen 1992 1 SA 807 (W) 819–820, where
Cloete J said: “In the same way that an improper motive can tip the scales in favour of a finding of unlawfulness, so
an altruistic or honest motive can tip the scales the other way.” See further Neethling Van Heerden-Neethling
Unlawful Competition 135–139.
378 Law of Delict
The most important forms of wrongful indirect infringements of the goodwill of a competitor are
the following:
(i) Misleading the public about the quality, extent, character or price of one’s own perform-
ance.340
(ii) Passing off (“aanklamping”), ie, adopting or copying a competitor’s distinguishing
signs341 (ie, his trade name342 in the case of an undertaking; his trademark or get-up343
(“aankleding” or “verpakking”) in the case of goods, and his service mark344 in the case of
services).345
________________________
340 By his misrepresentation, an entrepreneur draws clients who would otherwise probably have done business with his
competitors. Examples are where A alleges that his mainly South African whisky is a pure Scottish whisky; where
A markets his perlé wine as a sparkling wine; where A advertises that he sells his products at factory prices while in
fact charging retail prices; where A publishes that his circulation figure for a monthly publication is 80 000 while it
is merely 50 000; or where A in a campaign intimates that his product is manufactured abroad while it is not the
case (eg Geary and Son (Pty) Ltd v Gove 1964 1 SA 434 (A); Stellenbosch Wine Trust Ltd v Oude Meester Group
Ltd 1977 2 SA 221 (C); Escherich Development (Pty) Ltd v Andrew Mentis Steel Sales (Pty) Ltd 1983 3 SA 810
(W); Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd 1988 2 SA 350 (W); William Grant and Sons Ltd v Cape
Wine and Distillers Ltd 1990 3 SA 897 (C); Long John International Ltd v Stellenbosch Wine Trust (Pty) Ltd 1990
4 SA 136 (D); Spinner Communications v Argus Newspapers Ltd 1996 4 SA 637 (W); see in general Neethling Van
Heerden-Neethling Unlawful Competition 147 ff; Neethling 2003 SA Merc LJ 456–457). Note that the question in
respect of misrepresentation with regard to one’s own performance which infringes the goodwill of a competitor,
and consequently the question as to wrongfulness, should be answered by reference to the criterion of the ordinary
client (see in this regard Neethling Van Heerden-Neethling Unlawful Competition 158–159; infra fn 345 at passing
off).
341 On the concept of distinguishing signs, see Neethling Van Heerden-Neethling Unlawful Competition 110 ff; see
further Media24 Bpk v Ramsay, Son & Parker (Edms) Bpk 2006 5 SA 204 (C) 211; also Pepsico Inc v United
Tobacco Co Ltd 1988 2 SA 334 (W) 337–339.
342 Eg Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd 2016 6 SA 1 (SCA) para 5; Capital Estate and
General Agencies (Pty) Ltd v Holiday Inns Inc 1977 2 SA 916 (A); Appalsamy v Appalsamy 1977 3 SA 1082 (D);
Truck and Car Co Ltd v Kar-N-Truk Auctions 1954 4 SA 552 (A); The Tie Rack plc v Tie Rack Stores (Pty) Ltd
1989 4 SA 427 (T); Van der Watt v Humansdorp Marketing CC 1993 4 SA 779 (SE); Truth Verification Testing
Centre v PSE Truth Detection CC 1998 2 SA 689 (W) 699; Nino’s Coffee Bar & Restaurant CC v Nino’s Italian
Coffee & Sandwich Bar CC 1998 3 SA 656 (C); Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
1998 3 SA 938 (SCA); FW Woolworth and Co (Zimbabwe) (Pvt) Ltd v Sunray Stores (Pvt) Ltd t/a “The W Store”
1999 2 SA 887 (ZH); Incledon Cape (Pty) Ltd v DPI Plastics (Pty) Ltd [2010] JOL 24748 (WCC) (see Neethling
2010 SA Merc LJ 287 ff).
343 Eg Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd [2017] 2 All SA 347 (SCA) para 9; Beiersdorf AG v
Koni Multinational Brands (Pty) Ltd 2019 4 SA 553 (GJ); Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd
1977 4 SA 434 (W); Die Bergkelder v Delheim Wines (Pty) Ltd 1980 3 SA 1171 (C); Searles Industrials (Pty) Ltd v
International Power Marketing (Pty) Ltd 1982 4 SA 123 (T) 126; Pepsico Inc v United Tobacco Co Ltd 1988 2 SA
334 (W); Union Wine Ltd v E Snell and Co Ltd 1990 2 SA 189 (C); Weber-Stephen Products Co v Alrite
Engineering (Pty) Ltd 1992 2 SA 489 (A); Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 2
SA 307 (A); Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1995 1 SA 725 (T); Williams t/a
Jenifer Williams & Associates v Life Line Southern Transvaal 1996 3 SA 408 (A) 418–419; Kellogg Co v Bokomo
Co-operative Ltd 1997 2 SA 725 (C) 732–736; Premier Trading Co (Pty) Ltd v Sporttopia (Pty) Ltd 2000 3 SA 259
(SCA) 266–267; Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd 2001 3 SA 884 (SCA); Klimax
Manufacturing Ltd v Van Rensburg 2005 4 SA 445 (O) 455–458; New Media Publishing (Pty) Ltd v Eating Out
Web Service CC 2005 5 SA 388 (C) 400–405; Media24 Bpk v Ramsay, Son & Parker (Edms) Bpk 2006 5 SA 204
(C); Honda (SA) (Pty) Ltd v Hoffmann International (Pty) Ltd 2007-05-22 case no 04/5858 (W); Heyneman v
Waterfront Marine CC [2005] 2 All SA 382 (C); Diageo North America Inc v DGB (Pty) Ltd [2006] 2 All SA 529
(T); Online Lottery Services (Pty) Ltd v National Lotteries Board [2007] 1 All SA 618 (T).
344 Eg De Freitas v Jonopro (Pty) Ltd 2017 2 SA 450 (GJ); Yellow Cabs of SA Ltd v Ginsberg 1930 WLD 205; Lipman
v Myhill Garage (Pty) Ltd 1948 3 SA 565 (D).
345 In this way the perpetrator creates the impression that his performance is the similar performance of his competitor
and therefore creates a probability of misleading potential clients. Seen in this way, passing off is a form of mis-
representation with regard to one’s own performance (see in general on passing off Neethling Van Heerden-
Neethling Unlawful Competition 159 ff). The courts generally set two requirements for a successful action based on
passing off. The plaintiff must prove (i) that his distinguishing sign gained a reputation (and thus has distinguishing
value), and (ii) that the defendant’s copy creates a probability of misleading (see idem 164–188). This applies with
[continued ]
(iii) Leaning on (“aanleuning”), ie, openly exploiting the reputation of a competitor’s perform-
ance by means of the use of his advertising signs, such as his trade name, trademark or
service mark.346
(iv) Undue influencing of the public with regard to one’s own performance.347
(v) Bribery of a (potential) client’s employee or agent.348
________________________
regard to descriptive words (eg Truck and Car Co Ltd v Kar-N-Truk Auctions 1954 4 SA 552 (A) 557–558; Van
der Watt v Humansdorp Marketing CC 1993 4 SA 779 (SE) 783 ff; New Media Publishing (Pty) Ltd v Eating Out
Web Services CC 2005 5 SA 388 (C); Media24 Bpk v Ramsay, Son & Parker (Edms) Bpk 2006 5 SA 204 (C) 211
ff; Online Lottery Services (Pty) Ltd v National Lotteries Board [2007] 1 All SA 618 (T); Sea Harvest Corporation
(Pty) Ltd v Irvin and Johnson Ltd 1985 2 SA 355 (C); Premier Trading Co (Pty) Ltd v Sporttopia (Pty) Ltd 2000 3
SA 259 (SCA) 266–267), the own (family) name (eg Brian Boswell Circus (Pty) Ltd v Boswell-Wilkie Circus (Pty)
Ltd 1985 4 SA 466 (A); FW Woolworth and Co (Zimbabwe) (Pvt) Ltd v Sunray Stores (Pvt) Ltd t/a “The W Store”
1999 2 SA 887 (ZH) 902–903) and the get-up (eg Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1992
2 SA 489 (A); Heyneman v Waterfront Marine CC [2005] 2 All SA 382 (C) 400 402–403; Die Bergkelder v
Delheim Wines (Pty) Ltd 1980 3 SA 1171 (C) 1180; Rizla International BV v L Suzman Distributors (Pty) Ltd 1996
2 SA 527 (C); Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd [2015] 2 All SA 162 (GJ);
Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd 2016 6 SA 1 (SCA)) as distinguishing signs, but
reputation is probably not a requirement for the protection of the fancy name (Truck and Car Co Ltd v Kar-N-Truk
Auctions 1954 4 SA 552 (A) 557; Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd [2017] 2 All SA 347
(SCA) para 10; Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1972 3 SA 152 (C) 159–160; cf, however,
FW Woolworth 899–900). (See in general Neethling Van Heerden-Neethling Unlawful Competition 165–169;
Neethling 2002 SA Merc LJ 115 ff, 2005 SA Merc LJ 240.) Whether misleading in fact occurred is determined with
reference to the objective ordinary client yardstick (Neethling Van Heerden-Neethling Unlawful Competition 183–
185).
346 Thus the good name of the competitor’s performance serves as a springboard for one’s own similar performance.
Examples of this type of conduct are where an entrepreneur intimates that his product “is similar to”, or “is made
like”, or “is as good as” that of a competitor (Neethling Van Heerden-Neethling Unlawful Competition 196–197).
Cases of concealed misappropriation must be distinguished from such undisguised misappropriation. In the former
case one is concerned with the misappropriation of the good name of an entrepreneur beyond the scope of a
competitive relationship: eg entrepreneur A uses the name BMW for his garden tools (eg Capital Estate and
General Agencies (Pty) Ltd v Holiday Inns Inc 1977 2 SA 916 (A); Lorimar Productions Incorporated v Sterling
Clothing Manufacturers (Pty) Ltd 1981 3 SA 1129 (T); Philip Morris Inc v Marlboro Shirt Co SA Ltd 1991 2 SA
720 (A); Royal Beech-nut (Pty) Ltd t/a Manhattan Confectioners v United Tobacco Co Ltd t/a Willard Foods 1992
4 SA 118 (A) 122; Fairhaven Country Estate (Pty) Ltd v Harris 2015 5 SA 540 (WCC); Neethling Van Heerden-
Neethling Unlawful Competition 201–205). Concealed misappropriation can, however, also be present in the
competitive context (eg Federation Internationale de Football v Bartlett 1994 4 SA 722 (T); cf Union Wine Ltd v E
Snell and Co Ltd 1990 2 SA 189 (C); Neethling Van Heerden-Neethling Unlawful Competition 197–200). How-
ever, in Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd [2015] 2 All SA 162 (GJ) Nicholls J found
that leaning on (albeit described somewhat differently) had been dealt with in our law and rejected. The courts have
unanimously held that in the absence of passing off, no proprietary rights can be enjoyed in an unregistered
trademark (para 35). Although the judgment cannot be faulted de lege lata, de lege ferenda it is unfortunate that the
court did not see its way open to recognise leaning on as a common law ground of unlawful competition and in this
way to provide protection to the advertising value of trademarks. This the court could perhaps have done in terms
of s 39(1)(c) of the Bill of Rights by considering foreign law, especially German, Dutch and American law, where
such a recognition has indeed taken place (see Neethling Van Heerden-Neethling Unlawful Competition 195 ff),
and in the light thereof, developed the common law in terms of s 173 of the Constitution. Despite the fact that there
is merit in recognising unlawful competition in the form of leaning on, it is clear from Cochrane Steel Products
(Pty) Ltd v M-Systems Group (Pty) Ltd 2016 6 SA 1 (SCA) paras 16–26 that the SCA is also dead set against its
recognition, and that the chances of its recognition by the CC is unfortunately remote.
347 Thus the decisive factor is not only the merits of one’s own performance. An example is advertising that misuses
the feelings (such as fear) of potential clients (eg an advertisement in which potential clients are warned that their
health will be seriously harmed if they do not use a certain product). What amounts to undue influence must be
determined from case to case in accordance with community opinion (Van Heerden and Neethling Unlawful
Competition 219–221).
348 One is dealing with the offering of benefits to the employee or representative in the expectation that the offer will
influence the latter in such a way that he will give the person making the offer an advantage over his competitor
(so-called “commercial bribery”) (Neethling Van Heerden-Neethling Unlawful Competition 210–211).
380 Law of Delict
(vi) Obtaining and using the trade secrets349 or confidential business information of a com-
petitor.350
(vii) The misappropriation of a competitor’s performance, ie, the direct (immediate) adoption
or identical (or almost identical) copying of his performance (“prestasieaanklamping”).351
(viii) Interference with the contractual relationships of a competitor.352
(ix) Competition in breach of a statutory duty.353
________________________
349 In Pexmart CC v H Mocke Construction (Pty) Ltd 2019 3 SA 117 (SCA) 136 the court confirmed the three require-
ments before information can qualify as a trade secret: the information must relate to and be capable of application
in trade or industry; it must be secret or confidential; and it must be of economic value to the plaintiff (see also
Neethling Van Heerden-Neethling Unlawful Competition 214–216).
350 Eg Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 1 SA 209 (C);
Prok Africa (Pty) Ltd v NTH (Pty) Ltd 1980 3 SA 687 (W); Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano
(Pty) Ltd 1981 2 SA 173 (T) 189–196; Easyfind International (SA) (Pty) Ltd v Instaplan Holdings 1983 3 SA 917
(W) 927 ff; Meter Systems Holdings Ltd v Venter 1993 1 SA 409 (W) 427–430; Knox D’Arcy Ltd v Jamieson 1992
3 SA 520 (W) 525 ff; Van Castricum v Theunissen 1993 2 SA 726 (T); Telefund Raisers CC v Isaacs 1998 1 SA
521 (C); MV Lina: Union Shipping and Managing Co SA v Lina Maritime Ltd 1998 4 SA 633 (N) 637–638; STT
Sales (Pty) Ltd v Fourie 2010 6 SA 272 (GSJ); Townsend Productions (Pty) Ltd v Leech 2001 4 SA 33 (C) 53–56;
Waste Products Utilisation (Pty) Ltd v Wilkes 2003 2 SA 515 (W) 573–585 (see Neethling 2003 SALJ 472 ff for a
critical discussion); IIR South Africa BV (Incorporated in the Netherlands) t/a Institute for International Research v
Hall (aka Baghas) 2004 4 SA 174 (W) 179–181; Advtech Resourcing (Pty) Ltd t/a Communicate Personnel Group
v Kuhn 2008 2 SA 375 (C) 394–395; see further Neethling Van Heerden-Neethling Unlawful Competition 213 ff;
Knobel Trade Secret passim, 1990 THRHR 488–501; Van der Walt and Midgley Delict 100–101. The copying of a
competitor’s published business ideas, on the other hand, is in principle lawful in the absence of statutory protec-
tion (cf, eg, Taylor and Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 1 SA 412 (A) 422; The Concept Factory v Heyl
1994 2 SA 105 (T) 116; Payen Components SA Ltd v Bovic Gaskets CC 1994 2 SA 464 (W) 477; Premier Hangers
CC v Polyoack (Pty) Ltd 1997 1 SA 416 (A) 423–425; Aruba Construction (Pty) Ltd v Aruba Holdings (Pty) Ltd
2003 2 SA 155 (C) 171–172; Agriplas (Pty) Ltd v Andrag and Sons (Pty) Ltd 1981 4 SA 873 (C) 878–879; Sea
Harvest Corporation (Pty) Ltd v Irvin and Johnson Ltd 1985 2 SA 355 (C) 359–360; Neethling Van Heerden-
Neethling Unlawful Competition 229–230).
351 Thus, the perpetrator does not deliver a real own performance but only appropriates the performance of the com-
petitor. Unlike the direct adoption of a competitor’s performance, the identical copying thereof is not deemed
unlawful in our law (see, eg, Schultz v Butt 1986 3 SA 667 (A) 678–684) (1984 3 SA 568 (E)); Taylor and Horne
(Pty) Ltd v Dentall (Pty) Ltd 1991 1 SA 412 (A) 420–421; Aruba Construction (Pty) Ltd v Aruba Holdings (Pty)
Ltd 2003 2 SA 155 (C) 173–174 (see Neethling 2003 SA Merc LJ 455–456); The Concept Factory v Heyl 1994 2
SA 105 (T); Payen Components SA Ltd v Bovic CC 1995 4 SA 441 (A) 453 (1994 2 SA 464 (W)); Interflora
African Areas Ltd v Sandton Florist 1995 4 SA 841 (T) 847–849; Williams t/a Jenifer Williams & Associates v Life
Line Southern Transvaal 1996 3 SA 408 (A) 420; Spur Steak Ranches Ltd v Saddles Steak Ranch, Claremont 1996
3 SA 706 (C) 714–716; Premier Hangers CC v Polyoack (Pty) Ltd 1997 1 SA 416 (A) 421–425 (see Evans 1997
THRHR 724 ff); Heyneman v Waterfront Marine CC [2005] 2 All SA 382 (C) 401–402 (see Neethling 2005 SA
Merc LJ 238–240 for a critical discussion); Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd
1991 2 SA 455 (W) 472–474; GrĦndlingh v Phumelela Gaming and Leisure Ltd 2005 6 SA 502 (SCA) 511–515
(minority judgment); cf Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ) 179 ff; see in general Neethling
Van Heerden-Neethling Unlawful Competition 231–244.
352 See in this regard in general supra 368 ff; Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2
SA 173 (T) 202; Genwest Batteries (Pty) Ltd v Van der Heyden 1991 1 SA 727 (T); Aetiology Today CC t/a
Somerset Schools v Van Aswegen 1992 1 SA 807 (W) 820; Woodlands Dairy (Pty) Ltd v Parmalat SA (Pty) Ltd
2002 2 SA 268 (E) 279; Aruba Construction (Pty) Ltd v Aruba Holdings (Pty) Ltd 2003 2 SA 155 (C) 175;
Neethling Van Heerden-Neethling Unlawful Competition 245–247; Neethling 2002 SA Merc LJ 826–827. As
indicated (supra 369), interference with the contractual relationships of a competitor which does not result in
breach of contract but nevertheless causes a termination of the contract, may in certain circumstances also consti-
tute unlawful competition (see Neethling Van Heerden-Neethling Unlawful Competition 247–249; cf Lanco
Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 383).
353 Thus, the perpetrator is enabled to emerge as the victor in the competition struggle by means of an unlawful
performance (eg Patz v Greene and Co 1907 TS 427; Silver Crystal Trading (Pty) Ltd v Namibia Diamond Corpor-
ation (Pty) Ltd 1983 4 SA 884 (D) 888–889; Trustees, BKA Besigheidstrust v Enco Produkte en Dienste 1990 2 SA
102 (T) 109–110; Bellville Pharmacy CC v T Nortje (Pty) Ltd 2004 6 SA 442 (C) 463; cf Bophuthatswana Trans-
port Holdings (Edms) Bpk v Matthysen Busvervoer (Edms) Bpk 1996 2 SA 166 (A) 173–174). A typical case of
competition in breach of a statutory duty is the conduct of a competitor which transgresses the prohibitions of s 24
[continued ]
(b) Direct infringement An infringement of the goodwill of a competitor is direct where it

occurs without the perpetrator making use of his own goodwill. A direct infringement thus
implies a direct attack on a competitor.354 There can be no doubt that, as a rule, direct infringe-
ments are in conflict with the competition principle. There is absolutely no question of perform-
ance or merit competition taking place. Such conduct by an entrepreneur is in fact normally
perpetrated in order to prevent the merits of a competitor’s performance from gaining the edge.
Therefore, direct infringements are in principle wrongful.355 The only further question concerns
the grounds of justification available to the perpetrator.356
The most important forms of wrongful direct infringement of the goodwill of a competitor are
the following:
(i) Statements that disparage a competitor’s undertaking, goods or services in a false
(injurious falsehood)357 or truthful manner.358
(ii) Instigating a boycott against a competitor.359
________________________
of the Consumer Protection Act 68 of 2008 (cf the repealed Merchandise Marks Act 17 of 1941, s 6–7) by putting a
false trade description on his products (see Neethling in Henning-Bodewig (ed) Unfair Competition 464) (cf, eg,
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 2 SA 307 (A) 321; Sheffield Electro-Plating
and Enamelling Works Ltd v Metal Signs and Nameplates (Ply) Ltd 1949 1 SA 1034 (W) 1037–1038). See further
in general Neethling Van Heerden-Neethling Unlawful Competition 253 ff.
354 This type of competitive act, therefore, differs materially from indirect infringements of the goodwill. In the latter
case the prejudice that the harmed person suffers is the result of the benefit that the perpetrator gains; in the case of
direct infringements it is the other way round: the benefit or potential benefit that the perpetrator gains is the result
of the prejudice that the harmed person suffers.
355 Neethling Van Heerden-Neethling Unlawful Competition 144.
356 Three grounds of justification are especially relevant here, viz (private) defence, necessity and the public interest:
Neethling Van Heerden-Neethling Unlawful Competition 305 ff; cf Ebrahim t/a Broadway Fisheries v MER
Products CC 1994 4 SA 121 (C) (Neethling Van Heerden-Neethling Unlawful Competition 306–307).
357 The courts (eg GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1; International Tobacco Co (SA) Ltd v
United Tobacco Co (South) Ltd 1955 2 SA 1 (W) 24; cf Caxton Ltd v Reeva Forman (Pty) Ltd 1990 3 SA 547 (A)
560–561) incorrectly consider the applicable remedy for claiming patrimonial damages for false statements as the
actio iniuriarum (for which animus iniuriandi is required), or the Aquilian action based on dolus (Neethling Van
Heerden-Neethling Unlawful Competition 268–271). It has now been made clear in Media 24 Ltd v SA Taxi Securi-
tisation 2011 5 SA 329 (SCA) that the Aquilian action should be used to claim patrimonial damages for the
defamation of a corporation. However, the court’s use of the principles of injurious falsehood in this case is subject
to criticism (see Neethling and Potgieter 2012 THRHR 307–308). Following Geary and Son (Pty) Ltd v Gove 1964
1 SA 434 (A) 441, the courts (eg ECA (SA) v BlFSA (SA) 1980 2 SA 506 (W) 510; Helios Ltd v Letraset Graphic
Art Products (Pty) Ltd 1973 4 SA 81 (T) 89–90) require that the plaintiff must prove “that the defendant has by
word or conduct or both, made a false representation, that it knew the representation to be false, that the plaintiff
has lost or will lose customers, that the false representation is the cause thereof, and that the defendant intended to
cause the plaintiff that loss by the false representation” (Neethling Van Heerden-Neethling Unlawful Competition
272). Cf however with regard to the interdict R and I Laboratories (Pty) Ltd v Beauty Without Cruelty International
(South African Branch) 1990 3 SA 746 (C) 754–755; Aetiology Today CC t/a Somerset Schools v Van Aswegen
1992 1 SA 807 (W) 820 (Neethling Van Heerden-Neethling Unlawful Competition 272–273); Abakor Ltd v Crafcor
Farming (Pty) Ltd t/a Riversdale Feedlot 2000 1 SA 973 (N) 977–979; Woodlands Dairy (Pty) Ltd v Parmalat SA
(Pty) Ltd 2002 2 SA 268 (E) 281–282. The requirements in Geary 441 also apply to intentional misrepresentation
outside the field of unlawful competition (Standard Bank of South Africa Ltd v Supa Quick Auto Centre 2006 4 SA
65 (N) 68–69).
358 True disparaging remarks – which frequently occur in comparative advertising – were, however, in principle not
considered wrongful in Post Newspapers (Pty) Ltd v World Printing and Publishing Co Ltd 1970 1 SA 454 (W) (cf
however Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 187; Neethling
Van Heerden-Neethling Unlawful Competition 282–286).
359 Murdoch v Bullough 1923 TPD 495; Tothill v Gordon 1930 WLD 99; cf Hawker v Life Offices Association of
South Africa 1987 3 SA 777 (C); Deneys Reitz v SA Commercial, Catering and Allied Workers Union 1991 2 SA
685 (W) 692; see further Neethling Van Heerden-Neethling Unlawful Competition 287–296. Where one competitor
decides on his own to boycott another – there is thus no question of the instigation of a boycott – this conduct is in
principle lawful since it is the right of everyone “to decide with whom and on what basis it will do business” (Times
Media Ltd v SABC 1990 4 SA 604 (W) 607).
382 Law of Delict
(iii) Exercising physical or psychological pressure on potential clients, employees or suppliers

of a competitor.360
(iv) Direct attacks that primarily infringe an independent subjective right of a competitor,
other than his right to goodwill.361
8 Product liability
A particularly problematic area of the Aquilian action (and also of the action for pain and
suffering) is the liability of the manufacturer for patrimonial loss (and the impairment of
personality) caused by a defective product (“product liability”).362 This problem is inherent in
modern highly industrialised communities. Increasing industrialisation and mechanisation have
brought about a constant and daily potential of prejudice in the form of the unavoidable risk
which defective consumer products create for the individual.363
This potential prejudice is evident from instances arising in other legal systems:364 A pregnant
woman takes a tranquilliser called Thalidomide – this causes nerve injury and she gives birth to
a deformed baby; a woman enjoys a ginger ale in a café – she suffers shock and contracts gastro-
enteritis as a result of the remains of a decomposed snail poured from the dregs of the bottle; a
person buys a new Corvair motor car – he is seriously injured when a defective wheel breaks off
while he is turning a corner, and the motor car overturns; a woman buys pre-packaged medicinal
salt from the chemist – fine splinters of glass in the salt cause internal injuries; and a woman
uses a well-known hair remedy which causes serious physical lesions.
________________________
360 In modern commerce physical pressure is almost unknown (the so-called “taxi war” in South Africa is a remarkable
exception; see also Ebrahim v Twala 1951 2 SA 490 (W)). The exertion of psychological pressure, such as the
stationing of posts which discourage potential clients from entering the business of a competitor, occurs more
frequently (cf LC Welding Works (Pty) Ltd v Carey 1932 CPD 256 262; Deneys Reitz v SA Commercial, Catering
and Allied Workers Union 1991 2 SA 685 (W) 692). See further Neethling Van Heerden-Neethling Unlawful
Competition 298–302.
361 There are numerous examples of such infringements of the right to goodwill. Firstly, one can mention the wrong-
fulness of infringements of goodwill resulting from the defamation of a competitor (infringement of his personality
right to his good name) or interference with his contractual relationships leading to a breach of contract (inter-
ference with his personal rights) (Neethling Van Heerden-Neethling Unlawful Competition 276 ff 245–247; cf also
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd 1997 4 SA 399 (SCA)). Furthermore, a competitor may infringe the
goodwill of another directly, eg by destroying his advertising posters, by damaging his delivery vehicles (cf
Modimogale v Zweni 1990 4 SA 122 (B)), by burning down his factory building (infringement of his real rights) or
assaulting him, eg where he is prevented from delivering his product to the market by force (infringement of his
personality right to his physical integrity) (Neethling Van Heerden-Neethling Unlawful Competition 302–303).
362 See in general Loubser and Reid Product Liability 38 ff; Loubser and Midgley Delict 305–309; Van der Walt 1972
THRHR 224 ff; Van der Walt and Midgley Delict 152–153; Boberg Delict 193 ff; De Jager 1978 THRHR 347 ff;
Snyman 1980 CILSA 177 ff; Neethling 2002 THRHR 578–582 587. The liability of a manufacturer may in certain
circumstances also be viewed from a contractual angle. Normally, however, there is no contractual relationship
between the manufacturer and the prejudiced party (the consumer or even an innocent bystander). Hence, the
tendency is to institute delictual remedies against the manufacturer (cf Van der Walt 1972 THRHR 225–226;
De Jager Vervaardigersaanspreeklikheid 605 ff).
363 Van der Walt 1972 THRHR 224–225. He states: “This danger of defective products is each individual's constant
companion, without his choice or say. In the pre-industrial era, consumer goods were basically limited to natural
agricultural products and the relatively uncomplicated products of home and small industries. The consumer could,
without much knowledge, evaluate quality and suitability. In an age of industrialisation, automatisation and unpre-
cedented technological performance, the huge variety of consumer products are often originally packaged or of a
mechanical nature. The ordinary consumer has neither the particular knowledge nor access to or insight in the
complicated production process to discover the latent defects of his purchased product” (translation).
364 Van der Walt 1972 THRHR 225.
The courts regard manufacturer’s liability as being within the field of application of the Aquilian
action.365 Accordingly, all the elements of a delict must be present for liability of the manu-
facturer to ensue.366 The requirements of wrongfulness and negligence require particular
attention.367 In this regard, it must, however, be pointed out that South African law is still in its
infancy. In developing legal principles in this new field, much can be learnt from comparative
law.368 Such a comparative approach can already be discerned in case law.369
(a) Wrongfulness It has repeatedly been stated370 that wrongfulness in our law lies either in the
infringement of a subjective right or in the breach of a legal duty. De Jager371 gives convincing
reasons why the wrongfulness of the manufacturer’s conduct lies in the violation of a legal
________________________
365 Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 293; Wagener and Cuttings v
Pharmacare Ltd 2003 4 SA 285 (SCA) 300 (Wagener and Cuttings v Pharmacare Ltd [2002] 1 All SA 66 (C) 68);
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 2 SA 447 (SCA) 470–471; Bayer South Africa (Pty) Ltd v
Viljoen 1990 2 SA 647 (A); A Gibb and Son (Pty) Ltd v Taylor and Mitchell Timber Supply Co (Pty) Ltd 1975 2 SA
457 (W); cf Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd 1972 4
SA 185 (T); Doornbult Boerdery (Edms) Bpk v Bayer South Africa (Edms) Bpk en Ciba-Geigy (Edms) Bpk case no
1 5452/1976 (T) (discussed by Van der Merwe and De Jager 1980 SALJ 83 ff); see also the earlier decisions in
Lennon Ltd v BSA Company 1914 AD 1; Cooper and Nephews v Visser 1920 AD 111. Also take note of the follow-
ing dictum in Herschel v Mrupe 1954 3 SA 464 (A) 486–487: “By putting into circulation potentially harmful
things in that manner the manufacturer is not merely exercising a legal right but is encroaching upon the rights of
others not to be exposed, when going about their lawful occasions and when accepting the implied general
invitation to acquire and use such commodities, to danger without warning and without their having a reasonable
opportunity to become aware of such danger before use. In other words, it is an encroachment upon the rights of
others to set hidden snares for them in the exercise of their own rights.” (See in general Loubser and Reid Product
Liability 39–40; Loubser and Midgley Delict 248–251; Neethling 2011 TSAR 808–809; De Jager Vervaar-
digersaanspreeklikheid 581 ff; Snyman 1980 CILSA 186–189.)
366 For the purpose of Aquilian liability, an act on the part of the manufacturer is, of course, required. As discussed
(supra 27), an act is voluntary human behaviour. According to Van der Walt (1972 THRHR 239), the “human
hand” has to a large extent disappeared in the complicated technological manufacturing processes, while automa-
tion, relentless repetition labour, collective participation and passive instead of active control, casts doubt on the
applicability and relevance of an individualistic concept of act or conduct. Nevertheless, the technological process
has not replaced the human hand. The manufacturer’s act consists of the human control, supervision and organising
of the complex process of industrial production (ibid; see also De Jager Vervaardigersaanspreeklikheid 613 ff,
1978 THRHR 532–534).
367 As regards the delictual claim for product liability, Ponnan JA in Freddy Hirsch Group (Pty) Ltd v Chickenland
(Pty) Ltd 2011 4 SA 276 (SCA) 293 referred, with apparent approval to the view of Boberg Delict 194, that product
liability “has perhaps been puffed up a little beyond its true importance” because “regarding it as a special form of
Aquilian liability requiring its own dogmatic framework is not readily apparent” . . . “[W]rongfulness is hardly a
problem” – to harm others by distributing a defective product is “so objectively unreasonable . . . that the law
should have no difficulty in branding it wrongful”. This observation is perhaps contradicted by the judge’s own
rather extensive references (296–297) to academic views on product liability. Furthermore, the question as to
wrongfulness is not always as simple as Boberg and Ponnan JA profess it to be, eg to determine whether a product
is defective, as will appear infra 383–384. In addition, in Wagener and Cuttings v Pharmacare Ltd 2003 4 SA 285
(SCA) 299 the SCA was not prepared to become involved “in the function of trying to ‘legislate’ judicially in this
complex field” (italics added). In this regard it should be emphasised that although the primary characteristic of our
law of delict is its recognition and application of general principles of liability, an important secondary
characteristic is that for the purposes of facilitating the practical application of the general principles to a specific
field of delictual liability, and consequently the development of a predictable blueprint for such a field and the
promotion of legal certainty, specific forms of delict (such as unlawful competition, defamation and also product
liability) have been developed (see supra 5 fn 15). The recognition and development of product liability as a special
form of Aquilian liability requiring its own dogmatic framework can accordingly be fully supported (see Neethling
and Potgieter 2014 THRHR 502).
368 The legal development in especially the USA, England and other countries of the EU (such as Germany and the
Netherlands) offer many starting points for future unfolding of products liability in our law, in particular the
acceptance of strict manufacturer’s liability (see De Jager Vervaardigersaanspreeklikheid Afdeling B; Neethling
2002 THRHR 579; Van der Walt 1972 THRHR 230 ff; Koch and Koziol in Koch and Koziol (eds) 402–403).
369 A Gibb and Son (Pty) Ltd v Taylor and Mitchell Timber Supply Co (Pty) Ltd 1975 2 SA 457 (W) 461–464.
370 Supra 51.
371 Vervaardigersaanspreeklikheid 627 ff, 1978 THRHR 354 ff, especially 359.
384 Law of Delict
duty.372 According to the legal convictions of the community (boni mores), the manufacturer has
a duty reasonably to prevent defective products from reaching the market, or staying in the
market, and infringing the interests of consumers. Hence the causing of damage by a defective
product is in principle wrongful, being a violation of this legal duty.373 This view has been
upheld by the Supreme Court of Appeal. In Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd374
the court formulated it as follows:
It is actually self-evident that, according to the legal convictions of the community, a manufacturer acts
incorrectly and therefore wrongfully if he makes a product commercially available which in the course
of its designated use, and due to a defect, causes damage to the consumer thereof.
The presence of a defect in a product is accordingly a necessary prerequisite for wrongful
conduct on the part of the manufacturer.375 If there is no defect, damage arising from a product
cannot, as far as the manufacturer is concerned, be considered contra bonos mores or wrongful.
Consequently, the crux of the matter is to determine when a product is defective or deficient. In
general, one has to rely on the feelings, convictions and experience of society.376 As a general
rule, a product may be considered as being defective if it is unreasonably dangerous;377 and a
product is unreasonably dangerous if, in the circumstances, it does not meet the expectations of the
reasonable consumer with regard to its safety.378 Seen in this light, products that are inevitably
dangerous according to their form (such as a knife, blade or saw) or content (such as cigarettes
or alcohol), cannot be regarded as defective. However, even shortcomings in the design of a
product (such as a motor car ashtray, designed with a sharp edge, that injures a passenger’s eye
during an emergency stop) or insufficient warnings or information on products may be regarded
as defects.379 Furthermore,
in determining what qualifies as defective, the state of human science and technology and the need for
experimentation must not be lost sight of. Many human products are inevitably dangerous at a certain
stage, for instance new drugs with unknown side-effects.380
(b) Negligence Once wrongfulness has been established, there must also (at least) be
negligence on the part of the manufacturer in order to found liability.381 In other words, the
manufacturer’s conduct must be tested against the care that the reasonable person would have
exercised in the particular circumstances.382 Here one is concerned with the reasonable
________________________
372 This also applies to the causing of pure economic loss through defective products (see Freddy Hirsch Group (Pty)
Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 294–297; cf also Freddy Hirsch Group (Pty) Ltd v Chickenland
(Pty) Ltd 2010 1 SA 8 (GSJ) 24; Neethling 2011 TSAR 808). As will be seen infra 456 fn 208, strict liability for
damage caused by defective products under the Consumer Protection Act 68 of 2008 is not applicable to pure
economic loss.
373 Loubser and Reid Product Liability 40–45 emphasise that the legal convictions of the community or boni mores, as
basic test for wrongfulness in our law, are also applicable to the field of product liability.
374 2002 2 SA 447 (SCA) 470 (translation); Neethling 2002 THRHR 579; cf Freddy Hirsch Group (Pty) Ltd v Chicken-
land (Pty) Ltd 2011 4 SA 276 (SCA) 294–295; see also Loubser and Midgley Delict 305–306.
375 Van der Walt 1972 THRHR 241.
376 Ibid.
377 De Jager 1978 THRHR 360, Vervaardigersaanspreeklikheid 632 ff; however, see Van der Walt and Midgley Delict
153.
378 Cf Van der Walt 1972 THRHR 242.
379 Ibid; Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 2 SA 447 (SCA) (infra fn 382); see further De Jager
Vervaardigersaanspreeklikheid 630 ff.
380 Van der Walt 1972 THRHR 242 (translation).
381 See, eg, Wagener and Cuttings v Pharmacare Ltd 2003 4 SA 285 (SCA) 291 300 (Wagener and Cuttings v
Pharmacare Ltd [2002] 1 All SA 66 (C) 68); Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 2 SA 447 (SCA)
471; Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2010 1 SA 8 (GSJ) 27; De Jager Vervaardigers-
aanspreeklikheid 640 ff.
382 In Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 2 SA 447 (SCA) the defendant company (C) was the
manufacturer of a herbicide. According to C, the herbicide was suitable for eradicating weeds in pear orchards. The
plaintiff bought the herbicide from a dealer, used it according to C’s directions in his pear orchards and suffered
[continued ]
foreseeability and preventability of damage.383 In this regard, damage arising from the abnormal
use of a product will probably, as a rule, not be reasonably foreseeable.384 Otherwise the
manufacturer ought to be liable to any person (both consumer and innocent bystander) who
suffers damage on account of the defective product, provided, of course, that the prejudice to
such a person was reasonably foreseeable.385
It is, as a rule, very difficult to prove fault on the part of the manufacturer – either because fault
(intent or negligence) is simply not present in the production process or the prejudiced party
cannot obtain proof of fault as the technological production process is complicated and a closed
book as far as he is concerned.386 Consequently, the difficulty the prejudiced party has in
proving fault should be alleviated, as is the case in Anglo-American law, by a specific appli-
cation of the doctrine of res ipsa loquitur (the facts speak for themselves).387 In Bayer South
Africa (Pty) Ltd v Viljoen388 the Appellate Division was not in principle opposed to the
application of the doctrine where policy considerations justify it.389 However, Milne JA, unlike
________________________
damage in respect of his pear crop. He instituted action against C on the basis that the latter’s defective product
caused the damage. The court did not find it difficult to judge C’s conduct as wrongful (470). In respect of negli-
gence, the court found (473–474) that the fact that the damage to the pear trees was probably attributable to use of
the herbicide, in conjunction with C’s failure to include a warning that the herbicide was dangerous to pear trees in
the instructions for use, was indicative of prima facie negligence on C’s part. C then had an onus of rebuttal to
convince the court that it had acted like a reasonable manufacturer in its position by performing the necessary tests
to determine whether the product was safe for pear trees. C failed to do this, and hence was found to have been
negligent. At a closer look, it is apparent that this was an application of the maxim res ipsa loquitur (infra 385),
which is frequently – and justifiably so – used in cases of manufacturer’s liability because it is often extremely
difficult to prove fault on the part of the manufacturer (see Neethling and Potgieter 2002 TSAR 582 ff for a
discussion). In Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2010 1 SA 8 (GSJ) 27 the court considered
the defendant’s failure to test the products involved to be negligence of such a nature that it was unacceptable (for a
discussion of this case, see Neethling 2011 TSAR 808 ff).
383 Boberg Delict 194; A Gibb and Son (Pty) Ltd v Taylor and Mitchell Timber Supply Co (Pty) Ltd 1975 2 SA 457
(W) 464–465. In this case a building contractor (the plaintiff) ordered scaffolding from a dealer (the defendant). On
account of a defective scaffold plank an employee of the subcontractor sustained serious injuries. The plaintiff paid
damages to the employee. He (the plaintiff) alleged that the defendant was 90% contributorily negligent to the
employee’s damage and accordingly claimed a contribution ex delicto from the defendant. The court came to the
conclusion that a dealer may, in fact, be delictually liable for defects in the product which cause damage. In casu
the question of whether there was liability on the part of the dealer must be answered by deciding whether the
dealer had a duty to take reasonable care in detecting defects (reasonable foreseeability and preventability of
damage). Such a duty to inspect does not, according to the court, arise in the case where a reasonable dealer in the
position of the defendant expects a search for defects by the client and the inspection will, in all probability, bring a
defect to light. In the present case there was no duty to inspect simply because a reasonable timber merchant would
have expected a building contractor to inspect scaffolding for possible defects before using it. Consequently,
damage was not reasonably foreseeable (see further De Jager Vervaardigersaanspreeklikheid 595–596).
384 Cf De Jager Vervaardigersaanspreeklikheid 659.
385 Insofar as negligence on the part of the manufacturer has been established and the only question remaining is
whether a remote consequence was reasonably foreseeable, one is, of course, dealing with legal causation (see
supra 230 ff). This application of foreseeability as a criterion for the limitation of liability in the case of strict
liability, is further proof of the independence of legal causation as a separate delictual element (supra 247).
386 Van der Walt 1972 THRHR 242–243.
387 This doctrine gives rise to two presumptions against the manufacturer in Anglo-American law: the presumption that
he used an unsuitable production process and the presumption that his employees exercised his production process
negligently. The defendant must rebut both presumptions. Due to the fact that this onus of rebuttal is very difficult,
the principle of fault is undermined and a disguised liability without fault arises (Van der Walt 1972 THRHR 233).
(See in general further idem 248–249; De Jager 1978 THRHR 361 ff, Vervaardigersaanspreeklikheid 640 ff;
Boberg Delict 194.)
388 1990 2 SA 647 (A) 661–662 (see supra fn 203) for the facts of this case).
389 In Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd 1972 4 SA 185
(T) the court was also not opposed to such an approach. Myburgh J in fact stated (190): “I need not deal with the
acts of negligence alleged, it being assumed that these can be proved at the trial by reason of res ipsa loquitur or
otherwise.” A hired a new Datsun motor car from M. The latter had obtained the motor car from a garage for the
[continued ]
386 Law of Delict
Anglo-American law,390 wanted to restrict the doctrine to its “normal” application, ie, that it is
only applicable in instances where the facts of the case give rise to an inference of negligence.391
It is suggested that the res ipsa loquitur inference of negligence should at least be made where a
consumer proves that he was prejudiced by a defective (unreasonably dangerous) product and
that the product was in this state when the manufacturer abandoned his control over it.392
In light of the difficulty to prove fault on the part of the manufacturer, as well as for various
other reasons, it was advocated that product liability should, as in the member states of the EU
and the USA,393 be strict, ie, fault should not be required for liability.394
The willingness of the Supreme Court of Appeal to investigate this matter395 was tested in Wage-
ner and Cuttings v Pharmacare Ltd.396 After thorough consideration, the court was not prepared
to recognise strict product liability in principle and thus to become involved “in the function of
trying to ‘legislate’ judicially in this complex field (whether in this case or in other cases)”.397
The plaintiff’s remedy was therefore limited to the Aquilian action, which adequately protects
the physical integrity according to the court,398 with the possibility of gradual development of
the approach to the res ipsa loquitur maxim and a reversal of the onus of proof.399 If strict
liability had to be introduced, it was a task of the legislature.400
The legislature has now intervened and introduced strict liability for damage caused by a defect-
ive product in section 61(1) of the Consumer Protection Act 68 of 2008 (CPA).401 However, the
common law position, as set out above, also remains in force in terms of section 2(10) of the
CPA.402 This applies especially where a defective product causes pure economic loss, and where
certain juristic persons do not qualify as consumers in terms of the CPA.403
________________________
express purpose of leasing it to A. In the contract of lease, A undertook all responsibility for repairs to the motor
car. He later discovered certain defects in the motor car which resulted in expensive repairs and long periods of loss
of use. A claimed the subsequent patrimonial loss from Datsun Motors with the actio legis Aquiliae. Myburgh J
dismissed the claim. According to him there was no negligence on the part of the manufacturer. The manufacturer
had no duty of care towards A because the manufacturer could not reasonably foresee that A would renounce his
common law remedy to recover from his predecessor in law (191; for discussion of the viewpoint that “reasonable
foreseeability” can be applied as a yardstick for wrongfulness, see supra 193 fn 234). Besides, the Aquilian action
had not yet been extended to such a degree that pure patrimonial loss, without prior infringement of person or
property, could be recovered with it (today, such liability is, of course, trite law: supra 349 ff). In Combrinck it was
held that such extension would constitute an improper encroachment on the field of the law of contract (191–192).
390 Supra fn 390.
391 See also supra 191–192; Neethling and Potgieter 1990 De Jure 374–375.
392 See De Jager 1978 THRHR 364; Neethling and Potgieter 1990 De Jure 375–376.
393 Koch and Koziol in Koch and Koziol (eds) 402 declare: “All jurisdictions but South Africa have some strict
liability rule for damage caused by defective products, most of them implementing European Directive no 85/374
(which has not led to entirely identical solutions, however).”
394 Neethling 2002 THRHR 581–582; De Jager Vervaardigersaanspreeklikheid 648; Van der Walt 1972 THRHR 243;
cf Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 2 SA 447 (SCA) 471; De Jager 1978 THRHR 365–366.
395 Cf Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 2 SA 447 (SCA) 471.
396 2003 4 SA 285 (SCA).
397 Idem 299. However, see Neethling 2002 THRHR 587.
398 Wagener and Cuttings v Pharmacare Ltd 2003 4 SA 285 (SCA) 300.
399 See also idem 295–296. Application of res ipsa loquitur by means of an irrebuttable presumption of negligence can
create disguised strict liability (see Van der Walt Risiko-aanspreeklikheid 433–435; supra fn 387).
400 Wagener and Cuttings v Pharmacare Ltd 2003 4 SA 285 (SCA) 300; cf Freddy Hirsch Group (Pty) Ltd v Chicken-
land (Pty) Ltd 2011 4 SA 276 (SCA) 293.
401 Discussed infra 456–458.
402 See Neethling and Potgieter 2014 THRHR 502 ff.
403 See the discussion of Neethling and Potgieter 2014 THRHR 507–508 of s 61(5) and 5(2)(b) of the Act. Also see
infra 456 fn 208.
Chapter 10
Forms of iniuria
1 Introduction
It is necessary for theoretical and practical purposes to examine separately each of the species of
personality infringement that may be found within the genus iniuria.1 These forms may be
classified according to the different rights of personality that are already recognised and protect-
ed in our law; ie, the rights relating to the physical integrity (the rights to corpus or body and
libertas or physical liberty), the right to fama (good name), and those with regard to dignitas,
which serves as a collective term for the rights to dignity, privacy, feelings and identity.2
Prior to a discussion of these rights, consideration must be given to the following five issues,
proceeding on the assumption that an iniuria in principle consists of the intentional infringement
of a personality right:3 iniuria per consequentias; personality infringement and patrimonial
damage; the personality rights of children; the personality rights of state prisoners; and the
personality rights of juristic persons.
(a) Iniuria per consequentias 4 At common law, the position was that an iniuria could not only
affect a person directly, but also indirectly through other people.5 This indirect iniuria arose in
connection with three relationships, ie, between husband and wife, father and child, and testator
and heir.6 The actio iniuriarum was granted to the husband or father in respect of an iniuria
committed against his wife or child and to the heir in respect of an iniuria committed against the
testator’s mortal remains.7
It is questionable whether this concept, which simply presumes that an iniuria against the wife,
child or testator automatically affects the husband, father or heir, should still be recognised
today. Since there is no examination of whether these three people have in fact suffered person-
ality infringement8 (which is essential for the existence of an iniuria), our courts are reluctant to
recognise this concept.9 One may therefore conclude that insofar as iniuria per consequentias
still finds application in our positive law, it bears a meaning completely different from that
accorded to it in common law. Unlike the position at common law, the person involved in a
particular relationship is not automatically affected by the “indirect” iniuria. He will only be
able to succeed with an action if his personality has in fact been infringed. Consequently, all the
traditional requirements for an iniuria also apply in this case. Particular attention should be
________________________
1 Supra 6.
2 Supra 16. For a detailed discussion of and references to authorities on the protection of the personality under the
actio iniuriarum in our law, see Neethling, Potgieter and Roos Neethling on Personality Rights passim. In the dis-
cussion that follows, only the most important principles and authoritative sources are set out.
3 Supra 5 15.
5 D 47 10 1 3 ff.
6 D 47 10 1 3, 4.
7 See however Neethling, Potgieter and Roos Neethling on Personality Rights 97.
8 The unequivocal statement by Coetzee J in Meyer v Van Niekerk 1976 1 SA 252 (T) 256 that in modern legal
thought there is little room for iniuriae per consequentias or any expansion thereof should thus be fully supported.
9 See with regard to defamation per consequentias, Spendiff v East London Daily Dispatch Ltd 1929 EDL 113 129–
130; SA Associated Newspapers Ltd v Schoeman 1962 2 SA 613 (A); and with regard to an indirect iniuria in the
case of dignitas, Jacobs v MacDonald 1909 TS 442 443.
387
388 Law of Delict
given to the requirement of animus iniuriandi. Where a person is unaware of the relationship
between the plaintiff and the person against whom the injurious action was originally aimed, he
should be able to avoid liability on the ground of lack of intent.10
(b) Personality infringement and patrimonial damage11 An iniuria primarily infringes a
personality interest of another, but it often causes patrimonial damage as well.12 13 In principle,
the prejudiced person must then institute two actions: the actio iniuriarum for satisfaction
(solatium) and the actio legis Aquiliae for patrimonial damages.14 Although there was uncertain-
ty in the past regarding this matter,15 it has now been confirmed in Media 24 Ltd v SA Taxi
Securitisation16 that in instances of the defamation of a corporation, patrimonial (special) dam-
ages must be claimed with the Aquilian action whilst non-patrimonial (general) damages must
be claimed with the actio iniuriarum.
(c) Personality rights of children17 The juridical characteristics of personality rights are, inter
alia, that they come into existence with the birth and are terminated by the death of a human
being.18 From their birth children therefore dispose of all personality rights recognised in our
law, including all the fundamental rights that the Bill of Rights awards to “everyone”.19 Further,
in terms of section 9(1) and (2) of the Constitution, everyone (therefore adults as well as chil-
dren) is equal before the law and has the right to equal protection and benefit of the law; such
equality includes the full and equal enjoyment of all rights and freedoms. However, the protec-
tion of the personality rights of children under the age of 18 differs from that afforded to adults
as a result of the special protection of children in section 28 of the Constitution, 1996.20 Sec-
tion 28(2) reads as follows: “A child’s best interests are of paramount importance in every
matter concerning the child.”21 As far as personality rights are concerned, our courts and the
legislator have upheld the rights to bodily and psychological integrity, dignity, privacy and
physical freedom. 22
________________________
10 Voet 47 10 6.
11 See in general Neethling, Potgieter and Roos Neethling on Personality Rigjts 100–104; Neethling Van Heerden-
Neethling Unlawful Competition 67–69 268–271.
12 Bodily injuries may bring about hospital and medical expenses; defamation may cause a doctor or an attorney to
lose patients or clients.
13 According to Joubert Grondslae 144, the personality right does not on account of this attain the character of a
patrimonial right (cf however Neethling, Potgieter and Roos Neethling on Personality Rights 16 fn 168 with regard
to the theoretical problems created by this view); cf also supra 216 fn 58.
14 Supra 310; Voet 47 10 18.
15 See GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 7 where it was incorrectly held that patrimonial
damages may be claimed with the actio iniuriarum; see also Goodall v Hoogendoorn Ltd 1926 AD 11 16; Whit-
taker v Roos and Bateman; Morant v Roos and Bateman 1912 AD 92 123. For valid criticism in case law on
Fichardt, see Bredell v Pienaar 1924 CPD 203 213; Van Zyl v African Theatres Ltd 1931 CPD 61 64–65; Universi-
teit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 385. On the other hand, Matthews v Young
1922 AD 492 made a clear distinction between the scope of the actio iniuriarum and that of the Aquilian action
(see also Minister of Finance v EBN Trading (Pty) Ltd 1998 2 SA 319 (N) 324–326; Mukheibir and Badenhorst
1998 Obiter 343 ff). However, the Appeal Court in Caxton Ltd v Reeva Forman (Pty) Ltd 1990 3 SA 547 (A) 560–
561 was still uncertain as to the application of the two actions.
16 2011 5 SA 329 (SCA) (see Descheemaeker 2013 SALJ 435 ff; Neethling and Potgieter 2012 THRHR 304 ff). See
also Gold Reef City Theme Park (Pty) Ltd; Akane Egoli (Pty) Ltd v Electronic Media Network Ltd 2011 3 SA 208
(GSJ) 220.
17 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 115 ff for details.
18 See idem 17.
19 See Kruger in Potgieter, Knobel and Jansen (eds) 271–272; Teddy Bear Clinic for Abused Children v Minister of
Justice and Constitutional Development 2014 2 SA 168 (CC) 180.
20 See Kruger in Potgieter, Knobel and Jansen (eds) 271–272.
21 Cf also ss 2(b)(iv) and 9 of the Children’s Act 38 of 2005.
22 See Kruger in Potgieter, Knobel and Jansen (eds) 272; see also Neethling, Potgieter and Roos Neethling on
Personality Rights 115í123; Gabriel 2019 THRHR 605 ff on the Protection of Personal Information Act 4 of 2013
and children’s right to privacy in the context of social media.
Chapter 10: Forms of iniuria 389
(d) Personality rights of state prisoners23 The point of departure for the protection of the
personality rights of prisoners in our law is that, apart from the fact that their right to liberty has
been restricted by their imprisonment, prisoners have all other personality rights at their disposal
– the so-called residuum principle24 – and is entitled to the protection thereof except where a
right has been taken away from them by law, expressly or by implication. As prisons are primar-
ily aimed at punishing and rehabilitating criminals, they are – even in a relatively enlightened
age – places where prisoners spend their days in uncomfortable, dull and dismal conditions. As
stated in Alves v Lom Business Solutions (Pty) Ltd,25 “it is no holiday to be in prison in South
Africa”. Although social changes have introduced certain improvements to prison conditions,
one fundamental aspect of prison life continues: for the most part, prisoners remain at the mercy
of their wardens, which renders them “amongst the most vulnerable in our society to the failure
of the state to meet its constitutional and statutory obligations”.26 Case law has dispensed with
the misplaced notion that, upon admission to prison, a prisoner is stripped of all his personality
rights and may only claim those rights specifically provided for by statute. As indicated, the
inverse principle currently applies, namely that prisoners retain all personality rights, except
those they are denied by law. Personality rights of prisoners that already enjoy recognition and
protection are the rights to bodily freedom, physical-psychological integrity and privacy, as well
as the fundamental right to human dignity.27
(e) Personality rights of juristic persons28 Before the decision of the Appellate Division in
Dhlomo v Natal Newspapers (Pty) Ltd,29 various decisions30 supported the view that, unlike a
natural person, a juristic person or universitas (for example, a company, undertaking or universi-
ty) has no personality rights (including the right to good name). By contrast, there were numer-
ous decisions31 that recognised that a trading corporation may sue on the ground of defamation
(infringement of its reputation, good name or fama) if the allegations objected to “[are] calculat-
ed to injure its business reputation, or to affect the trade or business which it was
________________________
23 See Neethling, Potgieter and Roos Neethling on Personality Rights 111 ff for details.
24 See, eg, Whittaker v Roos and Bateman; Morant v Roos and Bateman 1912 AD 92 122–123; Minister of Justice v
Hofmeyr 1993 3 SA 131 (A) 138; Rossouw v Sachs 1964 2 SA 551 (A) 560; B v Minister of Correctional Services
1997 2 All SA 574 (C) 587; Goldberg v Minister of Prisons 1979 1 SA 14 (A) 39–40; Minister of Correctional
Services v KwaKwa 2002 4 SA 455 (SCA) 468–469; Pretorius v Minister of Correctional Services 2004 2 SA 658
(T) 663; Stanfield v Minister of Correctional Services 2004 4 SA 43 (C) 69;
25 2012 1 SA 399 (GSJ) 412.
26 Minister of Correctional Services v Lee 2012 3 SA 617 (SCA) 625.
27 See Neethling, Potgieter and Roos Neethling on Personality Rights 112í114.
28 See Neethling and Potgieter 1991 THRHR 120 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 104
ff; Neethling Van Heerden-Neethling Unlawful Competition 277 ff; Van der Walt and Midgley Delict 69 for a full dis-
cussion. According to s 8(4) of the Constitution, 1996, juristic persons are also entitled to the fundamental rights
entrenched in the Bill of Rights, to the extent required by the nature of the rights and the nature of the juristic person
involved. As will become apparent (infra 391–392) a juristic person can, eg, have a right to privacy and a right to repu-
tation, but not a right to dignity or a right to physical integrity.
29 1989 1 SA 945 (A).
30 The reason for this, as stated in Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 384,
was that the “personal suffering of the nature experienced by infringement of the corpus, fama or dignitas . . . is natu-
rally something which cannot be experienced by the universitas which has no personality”. See also Minister of Agri-
culture v Federal Theological Seminary 1979 4 SA 162 (E) 180–181; Church of Scientology in SA Incorporated
Association not for gain v Reader’s Digest Association SA (Pty) Ltd 1980 4 SA 313 (C) 317–318; AAIL (SA) v Muslim
Judicial Council (Cape) 1983 4 SA 855 (C) 865; cf also Dhlomo v Natal Newspapers (Pty) Ltd 1988 4 SA 63 (D)
70–72 with regard to non-trading juristic persons. This view was also partially supported by the Appellate Division in
Tommie Meyer 1979 1 SA 441 (A) 453–454 insofar as it was recognised that a juristic person has neither a body nor
dignitas in the sense of feelings of honour.
31 Witwatersrand Native Labour Association Ltd v Robinson 1907 TS 264 266; see also A Neumann CC v Beauty
Without Cruelty International 1986 4 SA 675 (C) 688; Multiplan Insurance Brokers (Pty) Ltd v Van Blerk 1985 3
SA 164 (D); Rand Water Board v Lane 1909 TH 4; Randfontein Estates Gold Mining Co Witwatersrand Ltd v
Sacks 1945 CPD 101; Marruchi v Harris 1943 OPD 15 21; cf Dhlomo v Natal Newspapers (Pty) Ltd 1988 4 SA 63
(D) 71–72.
390 Law of Delict
formed to carry on”. In such cases, damages are awarded without proof of actual loss. This view,
which was stated obiter for the first time by the Appellate Division in GA Fichardt Ltd v The
Friend Newspapers Ltd,32 was unequivocally confirmed by this court in the Dhlomo case,33
mainly on the ground “that it would be unrealistic not to hold that the law as stated by this Court
in Fichardt’s case more than seventy years ago has become the law of South Africa. I according-
ly so hold”.34
Before the Dhlomo case, it was also uncertain whether a non-trading juristic person could sue
for defamation.35 Now this case36 also accepted “that a non-trading corporation can sue for
defamation if a defamatory statement concerning the way it conducts its affairs is calculated to
cause it financial loss” (irrespective of whether such loss actually occurred).37
This view, generally accepted by the courts,38 implies that juristic persons have a personality
right to fama worthy of protection.39 The question of whether this view is justified in light of the
common law basis of the actio iniuriarum, may be asked. Traditionally, it is accepted that the
function of the actio iniuriarum lies in the provision of solatium (solace money) or satisfaction
(sentimental damages) for the salving of the injured personality (sentimental loss or injured
feelings).40 Strictly speaking, this point of departure means that the actio iniuriarum is not
available to the juristic person, which has “no feelings to outrage or offend”.41 In reality, how-
ever, exceptions to this general principle have already occurred in common law.42 Furthermore,
it seems that the fact that an injury to personality can exist without injured feelings,43 and that
________________________
32 1916 AD 1 5–6 9. See Burchell in Potgieter, Knobel and Jansen (eds) 111–112.
33 1989 1 SA 945 (A) 952–953.
34 With regard to the question as to proof of actual loss, the court stated (953): “It would be wrong, I think, to demand
of a corporation which claims for an injury done to its reputation that it should provide proof of actual loss suffered
by it, when no such proof is required of a natural person who sues for an injury done to his reputation.” Cf Ketler
Investments CC t/a Ketler Presentations v Internet Service Providers’ Association 2014 2 SA 569 (GJ) 583.
35 Die Spoorbond v SAR; Van Heerden v SAR 1946 AD 999 1011.
36 1989 1 SA 945 (A) 953–954; cf also Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1979 1 SA 441
(A) 455– 458; Burchell in Potgieter, Knobel and Jansen (eds) 112–113.
37 It is nevertheless trite law that the state or the government as such cannot be defamed, and may therefore not sue
for defamation (Post and Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 3 SA 1114 (ZS)
1118–1120; Die Spoorbond v SAR; Van Heerden v SAR 1946 AD 999 1011; Bitou Municipality v Booysen 2011 5 SA
31 (WCC) (municipality); Neethling, Potgieter and Roos Neethling on Personality Righs 106; Burchell Personality
Rights 143). But this does not imply that, eg, a cabinet minister or individual member of the state may not sue for
defamation (Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 345–349; cf SA Associated News-
papers Ltd v Estate Pelser 1975 4 SA 797 (A)). The same principle appears to apply with regard to the right to priv-
acy, if any, of the state and its organs (such as the SABC): see South African Broadcasting Corporation v Avusa Ltd
2010 1 SA 280 (GSJ); Neethling, Potgieter and Roos Neethling on Personality Rights 109í110; Neethling 2011
THRHR 456 ff.
38 See, eg, Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) (political party); South
African National Defence Union v Minister of Defence 2012 4 SA 382 (GNP) 385-388 (trade union); Caxton Ltd v
Reeva Forman (Pty) Ltd 1990 3 SA 547 (A); Gold Reef City Theme Park (Pty) Ltd; Akane Egoli (Pty) Ltd v Elec-
tronic Media Network Ltd 2011 3 SA 208 (GSJ) 220; Media 24 Ltd v SA Taxi Securitisation 2011 5 SA 329 (SCA);
Boka Enterprises (Pvt) Ltd v Manatse 1990 3 SA 626 (ZH); Post and Telecommunications Corporation v Modus Pub-
lications (Pvt) Ltd 1998 3 SA 1114 (ZS) 1118; Majolica Pottery (Venda) (Pty) Ltd v Barrow & Coetzee 1999 1 SA
1166 (C) 1180–1181; Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 6 SA 185 (SCA); Treatment
Action Campaign v Rath 2007 4 SA 563 (C) 568.
39 See Kloppers and Kloppers 2018 (3) LitNet Akademies 1211 ff on the question whether a trust may institute a
defamation action.
40 See supra 288–289; Neethling, Potgieter and Visser Neethling’s Law of Personality 70; Van der Merwe and Olivier
240; cf Descheemaeker 2013 SALJ 438.
41 See, eg, Caxton Ltd v Reeva Forman (Pty) Ltd 1990 3 SA 547 (A) 561; Universiteit van Pretoria v Tommie Meyer
Films (Edms) Bpk 1979 1 SA 441 (A) 453–454; Boka Enterprises (Pvt) Ltd v Manatse 1990 3 SA 626 (ZH) 631.
42 See supra 288 fn 303 with regard to infantes and lunatics.
43 See supra 288 ff; Neethling and Potgieter 1991 THRHR 123. A person’s good name can, eg, be injured without him
being conscious of it – in the case of defamation of a juristic person one is naturally concerned only with its
(objective) lowered reputation and not with an injury to feelings since “such a persona is unable to feel emotional hurt”
[continued ]
there is already a trend in case law to award compensation for such an injury to natural persons
in certain instances,44 seemingly provide a good basis for making the actio iniuriarum available
in the case of the defamation of a juristic person.45 However, alternative remedies for the def-
amation of a corporation may be more appropriate than an award of (sentimental) damages.
Alternative remedies (for example, retraction of and an apology for the defamation) are indeed
available or could be developed in our law. The fact that the actio iniuriarum, aimed at solatium
for injured feelings, is not a suitable remedy to address the infringement of the reputation of
corporations (including non-trading corporations, such as trade unions), provides a good reason
for changing the status quo by discarding the actio iniuriarum in respect of corporations. Natu-
rally, this does not imply that corporations do not possess a personality right to reputation which
is worthy of protection by alternative remedies.46 This is also justified by policy considera-
tions.47 Consequently, the recognition by the courts of the juristic person’s personality right to
fama can be fully supported.
The question of whether this protection of the personality of the juristic person can be extended
to the other recognised interests of personality of the natural person, ie, body, physical liberty,
feelings, honour, privacy and identity, arises.48 It stands to reason that a juristic person lacks a
body (and therefore also physical liberty).49 The opposite view would be in direct conflict with
reality. As a result of the fact that an infringement of honour (dignity) and feelings lies exclu-
sively in injury to the feelings,50 and a juristic person does not have feelings that can be hurt, the
recognition and protection of these interests of personality are likewise impossible in the case of
the juristic person. This is also evident from case law.51
However, the personality injury or harm in cases of invasion of the rights to privacy and identity
may be analysed in the same way as the infringement of the right to the good name and it would
lead to the same conclusion as in the case of defamation.52 This means that in the cases of
privacy and identity, an injury to personality can exist without an injury to feelings. Privacy and
identity can indeed also be violated without the injured person being conscious thereof. A
remedy should therefore also be available for infringement of the privacy or identity53 of the
________________________
(see Boka Enterprises (Pvt) Ltd v Manatse 1990 3 SA 626 (ZH) 631; see also the cases cited supra fn 41; contra Van
der Merwe and Olivier 402 fn 84).
44 See Boka Enterprises (Pvt) Ltd v Manatse 1990 3 SA 626 (ZH) 631–632 with regard to defamation; see also
Neethling and Pogieter 1991 THRHR 123.
45 Media 24 Ltd v SA Taxi Securitisation 2011 5 SA 329 (SCA) 336 ff. The court’s view that the actio iniuriarum is
the only available remedy to protect the reputation of a corporation, is subject to criticism since other remedies are
indeed available, such as the amende honorable or a similar remedy (retraction and/or apology). See Neethling,
Potgieter and Roos Neethling on Personality Rights 94í96; see also Trengove 2013 THRHR 74; Neethling and
Potgieter 2012 THRHR 310–311; Mukheibir 2007 Obiter 583 ff; Neethling 2009 De Jure 286 ff; Descheemaeker
2013 SALJ 435 ff; the minority judgment of Nugent JA in Media 24 350 ff.
46 Media 24 Ltd v SA Taxi Securitisation 2011 5 SA 329 (SCA).
47 See Neethling and Potgieter 1991 THRHR 124; Burchell Defamation 47; Neethling, Potgieter and Roos Neethling
48 See Neethling, Potgieter and Roos Neethling on Personality Rights 31í32 108 ff.
49 “A juristic or legal person clearly lacks a corpus against which a delict can be committed” (Boka Enterprises (Pvt)
Ltd v Manatse 1990 3 SA 626 (ZH) 631). See also Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk
1979 1 SA 441 (A) 454; Van der Merwe and Olivier 402 fn 84.
50 See infra 420 427; Neethling and Potgieter 1991 THRHR 123–124 125.
51 See the cases cited supra fn 41.
52 See supra 390–391; cf Visser 1981 THRHR 120.
53 Although the right to identity of natural persons has been recognised in GrĦtter v Lombard 2007 4 SA 89 (SCA)
(see infra 425 ff), this personality right has not been mentioned eo nomine in regard to juristic persons. One example
of the protection of the corporate right to identity can be found in instances of “injurious falsehood” or the publica-
tion of non-defamatory falsehoods concerning a business enterprise (see in general supra 381; Neethling Van
Heerden-Neethling Unlawful Competition 267 ff). Apart from the possible infringement of the right to goodwill as
a patrimonial right, one is here primarily also concerned with the falsification of the image of the juristic person
and therefore with an infringement of its personality right to identity. It is probably for this reason that the courts
occasionally applied the actio iniuriarum in claiming compensation (unfortunately also for patrimonial damage) in
[continued ]
392 Law of Delict
juristic person. This view was indeed adopted by the Appellate Division in Financial Mail (Pty)
Ltd v Sage Holdings Ltd 54 with regard to the right to privacy, and confirmed by the Constitu-
tional Court.55
To summarise, the confirmation by the Appellate Division of the principle that a juristic person
can be defamed and is entitled to a remedy, is not only realistic but is also in conformity with the
practical demands of a modern society; furthermore it is also theoretically and constitutionally56
justified. Apart from this recognition of the personality right to a good name and also of the right
to privacy, personality rights of juristic persons should, for obvious reasons, only be extended to
the right to identity.
2 Rights relating to physical integrity
2.1 Introduction
It is trite that physical integrity is recognised in our law as worthy of protection.57 A distinction
is made between two aspects of physical integrity which have developed into independent
interests of personality, ie, the body itself and physical liberty.58
2.2 The right to corpus or body

2.2.1 General
The corpus (bodily and psychological integrity)59 is protected against every factual infringement
of a person’s physique or psyche.60 Physical infringements may occur with61 or without
________________________
these cases (see, eg, GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 6–7 10–11 13; see also supra 381;
Neethling Van Heerden-Neethling Unlawful Competition 281, and for criticism idem 286–288; Neethling, Potgieter
and Roos Neethling on Personality Rights 110). For a detailed discussion of other instances of the protection of the
right to identity of juristic persons, see Neethling in Van Schouenburg (ed) 1003 ff; Neethling 2011 TSAR 62 ff.
54 1993 2 SA 451 (A) 462–463 (the opposite decision of the court a quo 1991 2 SA 117 (W) 131 was therefore
rejected); see also Motor Industry Fund Administrators (Pty) Ltd v Janit 1994 3 SA 56 (W) 60–61, confirmed in
Janit v Motor Industry Fund Administrators (Pty) Ltd 1995 4 SA 293 (A) 303–304; Pretoria Portland Cement Co
Ltd v Competition Commission 2003 2 SA 385 (SCA) 409–411; Huey Extreme Club v McDonald t/a Sport Heli-
copters 2005 1 SA 485 (C); cf the Tommie Meyer appeal case 1979 1 SA 441 (A) 456; Boka Enterprises (Pvt) Ltd v
Manatse 1990 3 SA 626 (ZH) 632. Insofar as the courts recognise that a juristic person has a right to privacy, its
protection should be approached cautiously since its contents are still vague and undefined (see in this regard
Neethling, Potgieter and Roos Neethling on Personality Rights 48 fn 544 where a tentative description is suggested;
Neethling and Potgieter 1991 THRHR 126).
55 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai
Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC) 557 (Okpaluba 2015 Acta Juridica 407 ff); cf Bernstein v
Bester 1996 2 SA 751 (CC) 796 (Neethling 1997 THRHR 140); see also Neethling, Potgieter and Roos Neethling
56 See supra fn 28; Van der Walt and Midgley Delict 69.
57 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 34 ff. The corpus is delictually
protected by the actio iniuriarum as well as the action for pain and suffering (idem 135; supra 13 16).
58 See in this regard Neethling, Potgieter and Roos Neethling on Personality Rights 39–40 133; Van der Walt and
59 For recognition of this right, see, eg, Minister of Justice v Hofmeyr 1993 3 SA 131 (A) 145–146; Minister of Safety
and Security v Rudman 2005 2 SA 16 (SCA) 37–38; Minister of Law and Order v Monty 1995 1 SA 35 (A) 39; S v
Orrie 2004 3 SA 584 (C) 589–590 591; Nell v Nell 1990 3 SA 889 (T) 895–896; Sizani v Minister of Police 1980 3
SA 1205 (SE) 1208–1209; Mabaso v Felix 1981 3 SA 865 (A) 875–876. In Minister of Safety and Security v Ham-
ilton 2004 2 SA 216 (SCA) 230–231 Van Heerden AJA declared: “In this case, the ‘plaintiff’s invaded interest’ is
his right to bodily integrity and security of the person, a right long regarded in our law as ‘one of an individual’s
absolute rights of personality’. As is abundantly clear from the inclusion of this right in the Bill of Rights in both
the 1993 and 1996 Constitutions, it is most certainly a right ‘deemed worthy of protection’.” The Constitution,
1996 (s 12) also entrenches the right to security of the person, as well as the right to physical and psychological in-
tegrity, including the right to be free from all forms of violence, not to be tortured in any way, not to be treated or
[continued ]
violence62 and with or without pain.63 Even an infringement of the senses, whereby a physical
feeling of disgust, discomfort or repugnance is caused,64 is included. Psychological harm, by
contrast, occurs mostly as a result of fear65 or emotional shock.66 In order to establish liability
under the actio iniuriarum, the bodily infringement need not be accompanied by contumelia in
the sense of insult.67 The following requirements must, however, be present: the infringement
must not be of a trivial character (de minimis non curat lex);68 it must be wrongful; and it must
________________________
punished in a cruel, inhuman and degrading way (cf Mohamed v President of the Republic of South Africa 2001 3
SA 893 (CC) 915), and not to be subjected to medical or scientific experiments (see Visser 1997 THRHR 495 ff for a
detailed discussion); see also concerning related provisions in the Bill of Rights; Neethling, Potgieter and Roos Neeth-
ling on Personality Rights 135 fn 7.
60 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 136 ff 143 ff; Loubser and Midgley
Delict 372–374; Van der Walt and Midgley Delict 163–166.
61 Eg serious assault (eg Ramakulukusha v Commander, Venda National Force 1989 2 SA 813 (V) 849–850; Bennett
v Minister of Police 1980 3 SA 24 (C); GQ v Yedwa 1996 2 SA 437 (Tk) 438–439) or the rape of a woman (eg F v
Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2012 1 SA 536 (CC); K v Minister
of Safety and Security 2005 6 SA 419 (CC); Van Eeden v Minister of Safety and Security 2003 1 SA 389 (SCA); M
v N 1981 1 SA 136 (Tk); N v T 1994 1 SA 862 (C); Bridgman NO v Witzenberg Municipality 2017 3 SA 435
(WCC) (Neethling and Potgieter 2018 THRHR 325 ff) (confirmed in Witzenberg Municipality v Bridgman NO
[2019] ZASCA 189 (3 Des 2019) paras 30í34); Neethling, Potgieter and Roos Neethling on Personality Rights 168
fn 356.
62 Eg poisoning (cf R v Jack 1908 TS 131 133); infecting someone with AIDS through sexual intercourse (Venter v
Nel 1997 4 SA 1014 (D)); secretly intoxicating someone with too much alcohol (cf S v Marx 1962 1 SA 848 (N));
medical intervention (eg blood tests) (see Nell v Nell 1990 3 SA 889 (T) 89); S v Orrie 2004 3 SA 584 (C) 589–
590 591; cf Cape Town City v Kotzé 2017 1 SA 593 (WCC) 600 606 607).
63 Eg pulsare sine dolore (D 15 10 5 1), pouring rubbish on someone or smearing him with mud (D 47 11 1 1).
64 Eg filling someone’s room with stifling smoke (cf R v Kumalo 1952 1 SA 381 (A) 388) or polluting his drinking
water (D 47 11 1 1); or exposing him to unending noise (cf Pretorius v Minister of Correctional Services 2004 2
SA 658 (T) 663–664; see Neethling 2005 THRHR 348–349 for criticism). Cf however Neethling, Potgieter and
Roos Neethling on Personality Rights 139í140.
65 Eg by threats of violence (D 47 10 15 1); cf however with regard to mere threatening words R v Umfaan 1908 TS
62 67–68; or threats to have a woman’s husband arrested Els E v Bruce; Els J v Bruce 1922 EDL 295.
66 Experienced where a constable, falsely and in an utterly insensitive way, told an old lady that her cousin, under
suspicion of housebreaking, had been shot and killed by the police, and that she should go to the police station to
identify him (Boswell v Minister of Police 1978 3 SA 268 (E); or where a mother, as a result of the rape of her
eight-year-old daughter, experienced serious emotional shock (N v T 1994 1 SA 862 (C) 864); or where a woman,
as a result of sexual harassment, suffered from a serious stress disorder (Grobler v Naspers Bpk 2004 4 SA 220 (C)
271–272 (see Neethling and Potgieter 2004 SA Merc LJ 488 ff); Media 24 Ltd v Grobler 2005 6 SA 328 (SCA)
347–349; PE v Inkwesi Municipality 2016 5 SA 114 (ECG)). An infringement, as a result of nuisance, on the “psy-
chological and emotional integrity” was emphasised in Deneys Reitz v SA Commercial, Catering and Allied Work-
ers Union 1991 2 SA 685 (W) 696. Flemming AJP said that “the right to peace of mind free from another making a
nuisance of himself can be an adequate basis for legal protection”. See further Minister of Justice v Hofmeyr 1993 3
SA 131 (A) 145–146 where it was held that a prisoner’s physical integrity may be infringed by withholding certain
rights from him, thereby affecting his mental and intellectual well-being; Neethling, Potgieter and Roos Neethling
on Personality Rights 143–145.
67 In Bennett v Minister of Police 1980 3 SA 24 (C) 37 it was stated: “The fact is that not all assaults necessarily
involve contumelia. It depends on the circumstances. A policeman who unlawfully shoots a person does not nor-
mally impair that person’s dignity; a robber who stabs his victim does not normally insult the victim by so doing”
(cf however Stoffberg v Elliott 1923 CPD 148 151–152). This of course in no way implies that assault and insult
cannot coincide. On the contrary, such instances are often encountered (eg Mabona v Minister of Law and Order
1988 2 SA 654 (SE) 664; Magqabi v Mafundityala 1979 4 SA 106 (E) 110; N v T 1994 1 SA 862 (C) 864; Mrasi v
Minister of Safety and Security 2015 2 SACR 28 (ECG) par 140; Minister of Justice and Constitutional Develop-
ment v X 2015 1 SA 25 (SCA); F v Minister of Safety and Security 2014 6 SA 44 (WCC); Moses v Minister of Law
and Order 1995 2 SA 518 (C) 523–525; GQ v Yedwa 1996 2 SA 437 (Tk) 438–439; cf Botha v Pretoria Printing
Works Ltd 1906 TS 710 714). See also Neethling, Potgieter and Roos Neethling on Personality Rights 137–138.
68 Eg giving someone a light slap in the face (S v Bester 1971 4 SA 28 (T)), or taking his arm (cf R v Van Vuuren
1961 3 SA 305 (E) 307) or emotional shock that has no serious effect on physical-mental well-being (cf Boswell v
Minister of Police 1978 3 SA 268 (E) 273–274; supra 345).
394 Law of Delict
be committed animo iniuriandi.69 In connection with wrongfulness, the following may be

stated:70 given that the corpus is regarded as being one of man’s most valuable legal interests,
every factual infringement of the physical-mental body is in principle per se contra bonos mores
or wrongful.71 There are, however, exceptions: factual infringements of the corpus by means of
conduct that corresponds to the demands of modern society,72 or by means of omission73 are, for
example, not per se wrongful. Moreover, a justified violation of the body is naturally also
lawful.74
2.2.2 Seduction
Seduction is the extramarital defloration of a girl with her consent.75 This form of infringement
of physical integrity has crystallised in practice into a separate form of iniuria.
Positive law stipulates two requirements which must be met in order for an action for seduction
to succeed. Firstly, there must be a physical defloration76 of the girl.77 Secondly, the defloration
must have occurred as a result of the man’s seductive conduct;78 this implies that he must have
overcome the girl’s opposition to his sexual advances. The manner in which he does this, for
example by making promises of marriage or by deceitfully inducing the girl to enter into a
bigamous marriage,79 or by abusing a relationship of dependency, is irrelevant.80 Where seductive
________________________
69 Eg Mentor v Union Government 1927 CPD 11 13; Esterhuizen v Administrator, Transvaal 1957 3 SA 710 (T) 722;
Moses v Minister of Law and Order 1995 2 SA 518 (C) 525; see in general Neethling, Potgieter and Roos Neethling
on Personality Rights 165–167. Note, however, that as far as prisoners are concerned, strict liability seems to apply
(see Minister of Justice v Hofmeyr 1993 3 SA 131 (A); Whittaker v Roos and Bateman; Morant v Roos and Bate-
man 1912 AD 92; cf C v Minister of Correctional Services 1996 4 SA 292 (T) 304–306 with regard to infringement
of privacy; see also Neethling, Potgieter and Roos Neethling on Personality Rights 89í91, cf 111í114). See how-
ever infra 443 fn 114 on the regrettable tendency to require negligence for liability for the infringement of physical
liberty. See also Neethling 2014 TSAR 37–39.
71 Eg Stoffberg v Elliott 1923 CPD 148; Sayed v Potgieter 1979 3 SA 354 (N) 356–357; Minister of Justice v Hofmeyr
1993 3 SA 131 (A) 153; Roux v Hattingh 2012 6 SA 428 (SCA) 438.
72 Eg where a person is accidentally jostled in a crowd of people in the street, or is pushed against in a crowded lift:
these infringements of the body can hardly be considered as being contra bonos mores (Bester v Calitz 1982 3 SA 864
(O) 880).
73 See supra 64; Neethling, Potgieter and Roos Neethling on Personality Rights 146–148; Neethling 2005
SALJ 558 ff.
74 Grounds of justification that may be applicable here are defence, necessity, consent, statutory or official authority,
parental authority and provocation (Neethling, Potgieter and Roos Neethling on Personality Rights 149 ff; supra
106 ff).
75 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 140í142; Loubser and Midgley
Delict 378–379; Du Bois 2019 Acta Juridica 266–274. It seems that the action for seduction is in conflict with the
fundamental right to equality before and equal treatment by the law (see s 9 of the Constitution, 1996) since it is
only available to virgins and not to boys or men. This action will probably therefore have to be abolished or ex-
tended to men (see supra 20 fn 153; see also Visser 1997 THRHR 502; (Neethling, Potgieter and Roos Neethling on
Personality Rights 140 fn 67).
76 Carelse v Estate De Vries (1906) 23 SC 532 538; cf Sager v Bezuidenhout 1980 3 SA 1005 (O) 1007. There is a
presumption that an unmarried girl is a virgin. The onus is thus on the man (defendant) to prove the contrary.
77 Such defloration is evidently a form of infringement of the girl’s physical integrity and is thus in principle an
iniuria (Bensimon v Barton 1919 AD 13 16; cf however Arendse v Roode 1989 1 SA 763 (C) 765; Card v Sparg
1984 4 SA 667 (E) 670). It has, however, already been suggested that this requirement should be abolished so that
seduction will also be possible in the case of a widow or even a divorcee (cf Claassen v Van der Watt 1969 3 SA 68
(T) 71). In such a case, the injured interest of personality will not be the body, but feelings of chastity (ibid; see also
infra 427).
78 Bull v Taylor 1965 4 SA 29 (A) 34.
79 Arendse v Roode 1989 1 SA 763 (C).
80 Bull v Taylor 1965 4 SA 29 (A) 34; see also M v M 1991 4 SA 587 (D) 599–600; Bibi v Variawa 1965 4 SA 675
(N) 679; Pillai v Pillai 1963 1 SA 542 (D).
conduct is, however, absent, for example where the girl was the seducing party, the man will not
incur liability.
The girl loses her right to claim if she continues her intimate relationship with the man after the
seduction.81 She may, however, still institute an action even if she had sexual intercourse with82
or married83 someone other than the seducer after the seduction, or if, at the time of the seduc-
tion, she was aware of the man’s married status,84 or if she received money or gifts from the
man.85
At common law, the man had the choice either of paying the girl compensation or marrying
her.86 Presently, it is uncertain whether the man may defend himself against a claim for compen-
sation by making a bona fide offer to marry the girl.87
An element of seduction is that the seduced girl gave her consent to sexual intercourse. Consent,
therefore, does not exclude the wrongfulness of the man’s act.88 This state of affairs perplexes
writers. McKerron89 is of the opinion that the action for seduction is sui generis since an iniuria
is lacking as a result of the girl’s consent. Van der Merwe and Olivier90 see the action as an
anomaly that is not only in conflict with the principles of consent to injury, but for which there is
also, viewed from a legal policy point of view, no justification in modern law. De Groot91
(followed by Van den Heever)92 and Joubert93 hold the view that the virgin’s consent is invalid,
either “om der vrouwen zwakheid”, or as a result of the man’s seductive behaviour. Our view
with regard to seduction is that one is dealing neither with an action sui generis, nor with an
anomaly. Seduction is a form of iniuria where all the normal principles apply. The consent of
the girl is invalid in the circumstances, not because of her “weakness” or the seductive conduct
of the man, but simply because such consent is regarded as invalid according to the legal convic-
tions of the community (boni mores).94
There is a difference of opinion as to whether animus iniuriandi is a requirement for liability for
this action.95 Ignorance of the girl’s virginity, which would in itself exclude intent, does not
seem to constitute a defence.96 This is probably an example of liability without fault.
________________________
81 Carelse v Estate De Vries (1906) 23 SC 532.

82 De Stadler v Cramer 1922 CPD 16.
83 Van den Heever Breach of Promise 49.
84 Bensimon v Barton 1919 AD 13.
85 De Stadler v Cramer 1922 CPD 16.
86 Eg Voet 48 5 3.
87 Eg Davel v Swanepoel 1954 1 SA 383 (A) 389; see in general Neethling, Potgieter and Roos Neethling on Person-
ality Rights 142.
88 See supra 128 with regard to consent as a ground of justification.
89 Delict 162 (see also Card v Sparg 1984 4 SA 667 (E) 670). Bekker Seduksie 482 ff also regards the action as sui
generis.
90 96 455.
91 3 35 8.
92 Breach of Promise 44.
93 1961 THRHR 279 ff.
94 Neethling, Potgieter and Roos Neethling on Personality Rights 159–160. It may, however, also happen that the
courts, as a result of changing opinions of the community, and especially the constitutional recognition of the right
to bodily-psychological integrity which, inter alia, includes a person’s right to control over her body (Constitution,
1996 s 12(2)(b)), may regard the girl’s consent as valid – not as contra bonos mores – and therefore the man’s se-
ductive conduct as lawful and consequently not actionable (see Neethling, Potgieter and Roos Neethling on Per-
sonality Rights 160).
95 Pauw Persoonlikheidskrenking en Skuld 194–196.
96 Ibid.
396 Law of Delict
2.3 The right to libertas or physical liberty

2.3.1 General
The libertas (bodily freedom)97 is protected not only against the total deprivation of liberty,98 but
also against any limitation of a person’s freedom of movement or action.99 With regard to such
limitation, it must be certain that there was a “physical means of obstruction”100 or at least that
“a person was being subjected to physical control” (even if only verbally).101
As in the case of bodily integrity, any unjustified interference with physical liberty is as a rule
wrongful102 and an actionable iniuria, provided that it was committed animo iniuriandi and was
not of a trivial nature.103 The influence of English law has, however, led to the development of
two forms of infringement of physical liberty which have come to be recognised as separate
forms of iniuria. These are wrongful deprivation of liberty (constituted either by false imprison-
ment or wrongful arrest) and malicious deprivation of liberty (malicious imprisonment or mali-
cious arrest).104
2.3.2 Wrongful deprivation of liberty: wrongful arrest and wrongful detention

As a form of iniuria, wrongful deprivation of liberty consists in a person being deprived of his
physical freedom without justification.105 The existence of such deprivation must be judged
objectively. Where a person thinks or believes that he is being held captive while this is not in
fact the case, infringement of his physical liberty does not occur. However, a person need not be
aware of the fact that he is being deprived of his liberty for the personality infringement to be
present. The deprivation of liberty is in itself an independent infringement and in principle,
therefore, constitutes an iniuria.106
________________________
97 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 39í40 173 ff; Van der Walt and
Midgley Delict 164–166; Loubser and Midgley Delict 375í378. In respect of the recognition of this right, see, eg,
Minister of Justice v Hofmeyr 1993 3 SA 131 (A); Tödt v Ipser 1993 3 SA 577 (A); Areff v Minister van Polisie
1977 2 SA 900 (A) 914; Brandon v Minister of Law and Order 1997 3 SA 68 (C) 78; Ochse v King William’s Town
Municipality 1990 2 SA 855 (E) 860; Botha v Lues 1981 1 SA 687 (O) 690 and 695. The right to freedom of the
person is also entrenched in the Constitution, 1996 (s 12(1)). This right includes the right not to be deprived of
freedom arbitrarily or without just cause, and the right not to be detained without trial (see Zealand v Minister of
Justice and Constitutional Development 2008 4 SA 458 (CC); Minister of Health, Western Cape v Goliath 2009 2
SA 248 (C); Terblanche v Minister of Safety and Security [2009] 2 All SA 211 (C) 214–216). Moreover, the Con-
stitution, 1996, s 21 also protects the right to freedom of movement (see, eg, Victoria & Alfred Waterfront (Pty) Ltd
v Police Commissioner, Western Cape (Legal Resources Centre as amicus curiae) 2004 4 SA 444 (C)); see also
Neethling, Potgieter and Roos Neethling on Personality Rights 173 fn 2.
98 Eg arrest or detention.
99 Eg preventing a person from catching fish in the sea (D 43 8 2 9), using his property (D 47 10 13 7), or driving on a
public road (Stern v Podbrey 1947 1 SA 350 (C) 362). See also Masawi v Chabata 1991 4 SA 764 (ZH) 771.
100 Sievers v Bonthuys 1911 EDL 525 531–532.
101 Masawi v Chabata 1991 4 SA 764 (ZH) 770–771; see also Burchell Delict 202–203.
102 Stoffberg v Elliott 1923 CPD 148.
103 In Sievers v Bonthuys 1911 EDL 525 531 it was stated in this regard: “A mere impertinence does not need . . . the
attention of the Courts.”
104 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 175 ff; Van der Walt and Midgley
Delict 164–166.
105 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 175 ff; Loubser and Midgley Delict
375–377. For a comprehensive discussion of the quantification of damages for wrongful arrest, detention and mali-
cious prosecution, see Okpaluba and Budeli-Nemakonde 2017 TSAR 526 ff, 2017 TSAR 792 ff.
106 Birch v Johannesburg City Council 1949 1 SA 231 (T) 238; cf also Neethling, Potgieter and Roos Neethling on
Personality Rights 175.
To succeed in an action based on wrongful deprivation of liberty, the plaintiff must prove that
the defendant himself, or a person acting as his agent or servant, deprived him of his liberty.107
For example, where the defendant furnishes a policeman with information on the strength of
which the latter himself decides to arrest the plaintiff, the defendant will not be liable on the
ground of wrongful deprivation of liberty.108
As a rule,109 every interference with physical liberty is prima facie (in the absence of a ground of
justification)110 wrongful.111 The exceptions are those forms of deprivation of liberty which are
normal in contemporary society and therefore cannot be considered as contra bonos mores.112
However, a prima facie lawful arrest (for example, in terms of a valid warrant) can be wrongful
________________________
107 Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 378; Vaaltyn v Minister of Police [2018] 4 All
SA 534 (ECP) para 65; Birch v Johannesburg City Council 1949 1 SA 231 (T); Rini v Carr 1921 EDL 239 241;
Tödt v Ipser 1993 3 SA 577 (A) 585. There should thus be a causative relation between the defendant’s act and the
plaintiff ’s deprivation of liberty. This applies to factual and legal causation. (In regard to the latter, see Thandani v
Minister of Law and Order 1991 1 SA 702 (E) 705–706 where the court applied the direct consequences and fore-
seeability tests; see also Ebrahim v Minister of Law and Order 1993 2 SA 559 (T) in connection with the foresee-
ability test – as to these tests and the flexible approach to legal causation, see supra 233 238 248; for a discussion
of Thandani and Ebrahim, see Neethling, Potgieter and Roos Neethling on Personality Rights 176 fn 30; Midgley
1994 THRHR 623 ff.) Cf further Ncoyo v Commissioner of Police, Ciskei 1998 1 SA 128 (Ck) 136–139 on the
question of causation (factual and legal) in connection with patrimonial loss (loss of earnings and employment) suf-
fered as a result of wrongful arrest and detention (for discussions see Scott 1998 De Jure 179 ff; Dendy 1998 SALJ
583 ff). The issue of causation was also raised in the minority judgment in De Klerk v Minister of Justice 2018 2
SACR 28 (SCA) paras 29 ff. Rogers AJA held that in a case of wrongful arrest the police may be liable for dam-
ages for the further detention of the plaintiff if there is a factual (“but-for” test) and legal (flexible-policy test) caus-
al connection between the arrest and the subsequent detention (see Neethling 2019 (1) LitNet Akademies 557 ff). In
De Klerk v Minister of Police 2019 12 BCLR 1425 (CC) this approach was confirmed. The court (paras 62í65)
held that in determining legal causation traditional factors such as direct consequences, reasonable foreseeability,
and the presence of a novus actus interveniens, tested against constitutionally infused considerations of public pol-
icy, must be applied. See also Mahlangu v Minister of Police [2020] 2 All SA 656 (SCA) paras 37–41 (see the dis-
cussion supra 137 fn 678).
108 Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 378–379; Cohen v Benjamin (1885) 4 SC 99; cf
also the authority in the previous fn.
109 Eg Zealand v Minister of Justice and Constitutional Development 2008 4 SA 458 (CC) 468–469; De Klerk v
Minister of Police 2019 12 BCLR 1425 (CC) para 14; Minister of Home Affairs v Rahim 2016 3 SA 218 (CC) paras
18 22–24 29; Minister of Safety and Security v Van der Walt [2015] 1 All SA 658 (SCA) par 14; Minister of Safety
and Security v Sekhoto 2011 5 SA 367 (SCA) 376; Minister of Safety and Security v Tyulu 2009 5 SA 85 (SCA)
91; Vaaltyn v Minister of Police [2018] 4 All SA 534 (ECP) para 64; Domingo v Minister of Safety and Security
[2013] ZAECGHC 54; Olivier v Minister of Safety and Security 2009 3 SA 434 (W) 437 443–444; Terblanche v
Minister of Safety and Security [2009] 2 All SA 211 (C) 212; Le Roux v Minister of Safety and Security 2009 4 SA
491 (N) 496; Ingram v Minister of Justice 1962 3 SA 225 (W) 227; Boland Bank Bpk v Bellville Munisipaliteit
1981 2 SA 437 (C) 444; Shoba v Minister van Justisie 1982 2 SA 554 (C) 559; Minister of Law and Order v Hurley
1986 3 SA 568 (A) 589; Masawi v Chabata 1991 4 SA 764 (ZH) 771–772; Minister of Justice v Hofmeyr 1993 3
SA 131 (A) 153; Bentley v McPherson 1999 3 SA 854 (E) 859; Lombo v ANC 2002 5 SA 668 (SCA) 680; Minister
of Correctional Services v Tobani 2003 5 SA 126 (E) 133; Seria v Minister of Safety and Security 2005 5 SA 130
(C) 143.
110 See in connection with grounds of justification, especially arrest with or without a valid warrant of arrest, Neeth-
ling, Potgieter and Roos Neethling on Personality Rights 178 ff; see also Nkosi 2015 SALJ 15; 2015 TSAR 662 ff;
supra 137 ff.
111 In Alves v LOM Business Solutions (Pty) Ltd [2011] 4 All SA 490 (GSJ) the court deviated from this approach. The
plaintiff was detained for an unreasonably prolonged period. As to wrongfulness, the court enquired whether there
was a legal duty on the defendant to prevent the plaintiff’s prolonged detention, whereafter it examined the defend-
ant's negligence. However, there is no reason why the ordinary approach could not have been followed in this case
(see supra fn 109). The plaintiff's prolonged detention was wrongful because the defendant could not prove that the
prima facie wrongfulness of the detention was justified. The defendant should therefore have been held strictly
liable since the question of fault was irrelevant (see infra 443; Neethling and Potgieter 2012 Obiter 390 ff). Cf also
Claassen v Minister of Justice and Constitutional Development 2010 6 SA 399 (WCC) 411 where the court incor-
rectly stated that the detention in casu was not prima facie wrongful; The Minister of Safety and Security v Slabbert
[2010] 2 All SA 474 (SCA).
112 Consider the necessary restrictions that a ride in a lift, train or bus brings about.
398 Law of Delict
if the wrongdoer acted with an improper motive; and such a motive is present if the arrest was
executed with a purpose other than bringing the arrested person properly to trial.113
Although the wrongful deprivation of liberty is an iniuria for which animus iniuriandi (intent)
should be a requirement, the courts, under the influence of English law, have simply ignored this
requirement, and neither intent nor negligence is necessary to found liability.114 Therefore one is
dealing with a form of strict liability or liability without fault.115 Since consciousness of wrong-
fulness (as a necessary element of intent) is not required for liability, the defendant cannot plead
mistake as a ground excluding fault.116 117
2.3.3 Malicious deprivation of liberty

Unlike the wrongful deprivation of liberty, where the result complained of must have been
caused without justification by the defendant himself or some person acting as his agent or
servant, the conduct in the case of malicious deprivation of liberty takes place under the guise of
a valid judicial process. The defendant makes improper use of the legal machinery of the state,
either through a policeman acting on his own discretion or through a valid warrant, in depriving
the plaintiff of his liberty.118 The actual deprivation of liberty is consequently not carried out by
the defendant himself or by his servant or agent, but by the machinery of the state through a
valid judicial process.119
As a result, the plaintiff will have to prove the following in order to succeed in an action based
on the malicious deprivation of liberty: that the defendant instigated the deprivation of liberty;
that the instigation was without reasonable and probable cause; and that the defendant acted
________________________
113 Eg Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) 379–380; Tsose v Minister of Justice 1951 3
SA 10 (A) 17; Duncan v Minister of Law and Order 1986 2 SA 805 (A) 820. In the latter case it was stated: “Put
negatively, an arrest is unlawful if the arrestor has no intention of bringing the arrestee before a court.”
114 Eg Donono v Minister of Prisons 1973 4 SA 259 (C) 262; Shoba v Minister van Justisie 1982 2 SA 554 (C) 559;
see however Neethling, Potgieter and Roos Neethling on Personality Rights 187í188; cf Scott 2015 TSAR 635.
115 Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 377; see also Mahlangu v Minister of Police
[2020] 2 All SA 656 (SCA) para 6. See, however, Woji v Minister of Police [2015] 1 All SA 68 (SCA) par 19
where the basis of the plaintiff’s claim for unlawful detention was that the magistrate, in refusing to grant bail, ex-
ercised his discretion on erroneous information supplied by the arresting officer. His continued detention was thus
unlawful. The arresting officer had a public law duty not to violate the plaintiff’s right to freedom (in terms of
s 12(1)(a) of the Constitution). In consequence, the arresting officer’s omission to perform his public duty was
wrongful in terms of private law (para 28). The court also found that the arresting officer acted negligently because
a reasonable policeman in the position of the officer would have provided the magistrate with the correct infor-
mation. The court awarded R500 000 damages for the plaintiff’s unlawful detention. Unfortunately, the court incor-
rectly required negligence for liability for the claim of unlawful detention instead of basing the claim on strict
liability. Similarly in Minister of Safety and Security v Van der Walt [2015] 1 All SA 658 (SCA), where the magis-
trate also refused bail, the court found that the continued detention of the plaintiffs was unlawful as the detective
inspector, who was the investigating officer in the case, acted negligently in not providing the magistrate with the
correct information. However, as with Woji, the inquiry into negligence was irrelevant as fault is not required for
liability (see also Neethling, Potgieter and Roos Neethling on Personality Rights 184 fn 79).
116 In Smit v Meyerton Outfitters 1971 1 SA 137 (T) 139 the court stated: “In the case of the actio iniuriarum the fault
concept entails two considerations. The first is that the defendant acted intentionally and the second is that he knew that
the act was wrongful. In the case of unlawful arrest, although it developed from the actio iniuriarum, the second con-
sideration is not a requirement for liability” (translation) (see also Minister of Justice v Hofmeyr 1993 3 SA 131 (A)
154–157; Tödt v Ipser 1993 3 SA 577 (A) 586–587; Moses v Minister of Law and Order 1995 2 SA 518 (C) 524–525;
Minister of Correctional Services v Tobani 2003 5 SA 126 (E) 133; Ramsay v Minister van Polisie 1981 4 SA 802
(A) 818–819; Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 377).
117 The courts have already found that the law in respect of unlawful deprivation of liberty is in accordance with the
Constitution (Minister of Correctional Services v Tobani 2003 5 SA 126 (E) 134–137; see also Neethling 2004
SALJ 714–715, 2008 TSAR 811–813).
118 Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 377–378. See Nkosi 2015 TSAR 671 who argues
that a police officer’s ignorance of his or her discretionary powers, precludes an exercise of those powers.
119 Newman v Prinsloo 1973 1 SA 125 (W) 127; Tödt v Ipser 1993 3 SA 577 (A) 585; cf Cole’s Estate v Oliver 1938
CPD 464 468. In Manase v Minister of Safety and Security 2003 1 SA 567 (Ck) 578 the court unfortunately did not
differentiate clearly between unlawful and malicious deprivation of liberty (see Neethling 2004 SALJ 716).
animo iniuriandi.120 These requirements are similar to those for malicious prosecution.121 Note
that if a criminal prosecution results from the deprivation of liberty, the plaintiff will also have
to prove that the prosecution failed before he will be able to succeed in an action based on the
malicious deprivation of liberty.122
3 The right to fama or good name
3.1 Introduction
Like the rights to corpus and libertas, the right to fama is recognised and protected as an inde-
pendent personality right in our law.123 This is the well-known field of defamation law.124 A
________________________
120 Thompson v Minister of Police 1971 1 SA 371 (E) 373–375; see in general Neethling, Potgieter and Roos Neethling
on Personality Rights 190–194.
121 Infra 416 ff; also Neethling, Potgieter and Roos Neethling on Personality Rights 192í194; Van der Walt and
Midgley Delict 166; Loubser and Midgley Delict 318.
122 Thompson v Minister of Police 1971 1 SA 371 (E) 375.
123 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 197 ff; Burchell Personality Rights
139 ff; Brand 2017 LAWSA 131 ff. As indicated (supra 20 fn 152), the right to fama should form part of, and there-
fore be protected under, the right to dignity in the Bill of Rights (Constitution, 1996 s 10) – this was indeed the case
in terms of the interim Constitution, 1993 (see, eg, National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1216–
1217) and is also the case in terms of the Constitution, 1996 (see, eg, Khumalo v Holomisa 2002 5 SA 401 (CC)
418–419; Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 338; Jankielsohn v Booysen [2020] 1
All SA 214 (FB) para 37; Van Zyl v Jonathan Ball Publications (Pty) Ltd 1999 4 SA 571 (W) 591; Marais v Groe-
newald 2001 1 SA 634 (T) 646; Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA) 253).
The possible influence of the Bill of Rights on the law of defamation, especially the right to freedom of the press
and other media (Constitution, 1996, s 16(1)(a)), will be discussed later (infra 407 fn 175 410–411 415 fn 260). At-
tention may be drawn to the fact that the courts followed divergent approaches to the law of defamation in light of
s 15 of the interim Constitution, 1993 (cf Van der Vyver 1995 SALJ 572 ff). On the one hand, there are decisions
that the law of defamation should be revised in light of the Constitution, especially with regard to the onus of proof
(infra fn 175), the (abolished) strict liability of the press (infra fn 260) and recognition of media privilege as de-
fence (infra 410–411) (eg Mandela v Falati 1995 1 SA 251 (W); Jurgens v Editor, Sunday Times Newspaper 1995
2 SA 52 (W); Gardener v Whitaker 1995 2 SA 672 (E); Holomisa v Argus Newspapers Ltd 1996 2 SA 588 (W);
Rivett-Carnac v Wiggins 1997 3 SA 80 (C); cf O v O 1995 4 SA 482 (W) 490). The opposite approach was fol-
lowed in the following cases: De Klerk v Du Plessis 1995 2 SA 40 (T); Potgieter v Kilian 1995 11 BCLR 1498 (N),
1996 2 SA 276 (N); Bogoshi v National Media Ltd 1996 3 SA 78 (W); Hall v Welz 1996 4 SA 1070 (C); McNally v
M & G Media (Pty) Ltd 1997 4 SA 267 (W); cf Mangope v Asmal 1997 4 SA 277 (T); Hix Networking Technol-
ogies v System Publishers (Pty) Ltd 1997 1 SA 391 (A) 500–502 (on the interdict). This dual approach created legal
uncertainty (cf Du Plessis v De Klerk 1996 3 SA 850 (CC) 882–885; see also Neethling, Potgieter and Roos Neethling
on Personality Rights 198 fn 13; Van der Walt 1998 TSAR 198 ff) which has now been partly addressed by the
SCA in National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) (for discussions of this case, see Burchell Personal-
ity Rights 210 ff, 262 ff 320 ff, 1999 SALJ 1 ff, in Potgieter, Knobel and Jansen (eds) 107 ff; Neethling and Potgiet-
er 1999 THRHR 442 ff; Neethling 1999 TRW 104 ff; Midgley 1999 SALJ 211 ff). Firstly, the court (1211 12)
abolished the strict liability of the press for defamation in favour of liability based on negligence (see infra fn 260).
However, this was done because the court considered the principle of strict liability to be wrong, and not because
constitutional values required the change. Secondly, the court (1212) expressed itself in favour of a defence of
media privilege, meaning that publication of false defamatory allegations by the press will not be wrongful if the
publication was reasonable (see infra 410–411). Note that in reaching these decisions the court (1217) was of the
opinion that the common law of defamation achieves a proper balance between the right to good name and the right
to freedom of expression, even when viewing these interests as constitutional values (see also Van Zyl v Jonathan
Ball 591–593; Marais v Groenewald 646; Van der Berg v Coopers & Lybrand 253; Mineworkers Investment Co
(Pty) Ltd v Modibane 2002 6 SA 512 (W) 520–521; Selemela v Independent Newspaper Group Ltd 2001 4 SA 987
(NC) 999; Botha v Mthiyane 2002 1 SA 289 (W) 315–317; cf Mostert v Nash [2018] 4 All SA 267 (GJ) paras 56
ff). In Khumalo v Holomisa 2002 5 SA 401 (CC) (see Neethling 2002 SALJ 701 ff) the court in principle gave the
green light to the common law defamation law as developed in Bogoshi (see also Mthembi-Mahanyele v Mail &
Guardian 349 ff; Lieberthal v Primedia Broadcasting (Pty) Ltd 2003 5 SA 39 (W) 45; Sayed v Editor, Cape Times
2004 1 SA 58 (C) 61–62; Waldis v Von Ulmenstein 2017 4 SA 503 (WCC) 509).
124 Note that the ordinary principles of defamation law are also applicable to defamation published on the social media
such as Facebook (Jankielsohn v Booysen [2020] 1 All SA 214 (FB); Dutch Reformed Church Vergesig v Sooknunan
[continued ]
400 Law of Delict
person’s fama or good name is the respect and status he enjoys in society. Any action which has
the effect of reducing his status in the community (ie, is defamatory to him), consequently
infringes his fama and is in principle an iniuria.125 A distinction is made between defamation in
general as iniuria, and those forms of infringement of good name which have in practice already
crystallised into specific forms of iniuria under different names, ie, malicious prosecution and
wrongful and malicious attachment of property.
3.2 Defamation
3.2.1 Definition
Defamation is the intentional infringement of another person’s right to his good name. To
elaborate, defamation is the wrongful, intentional publication of words or behaviour concerning
another person which has the effect of injuring his status, good name or reputation.126 From this
definition the elements of this iniuria are apparent, ie, the act (the publication of words or
behaviour), an injury to personality (the defamatory effect of words or behaviour), wrongfulness
(the infringement of the personality right to good name) and intent (animus iniuriandi).127 It is
not an element of defamation that the defamatory allegation must be false.128 True defamatory
words can also be actionable.129
3.2.2 Elements
3.2.2.1 Publication
Since the good name, respect or status which a person enjoys in society relates to the opinion
of others concerning him, and defamation consists in the infringement of his good name, it is
________________________
2012 6 SA 201 (GSJ); Heroldt v Wills 2013 2 SA 530 (GSJ) (see Zitzke 2016 THRHR 103 ff); Isparta v Richter
2013 6 SA 529 (GNP); Neethling 2014 (1) LitNet Akademies 40 ff; Neethling, Potgieter and Roos Neethling on Per-
sonality Rights 200 fn 21; Roos and Slabbert 2014 (6) PELJ 2845 ff), as well as to other forms of internet-related
defamation (see Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association 2014 2
SA 569 (GJ); Marx in Potgieter, Knobel and Jansen (eds) 323 ff ). Note also that the defamation in the field of
criminal law is not irreconcilable with the Constitution, 1996 (Hoho v S [2009] 1 All SA 103 (SCA)).
125 Neethling, Potgieter and Roos Neethling on Personality Rights 40. See also Greeff v Protection 4U h/a Protect
International 2012 6 SA 393 (GNP) 409; Esselen v Argus Printing and Publishing Co Ltd 1992 3 SA 764 (T) 770;
Gardener v Whitaker 1995 2 SA 672 (E) 686. Note that a judge, like any other person, also has a right to his good
name and therefore in principle has locus standi to institute an action for defamation (Argus Printing and Publishing
Co Ltd v Esselen’s Estate 1994 2 SA 1 (A); Langa v Hlophe 2009 4 SA 382 (SCA) 398). See also supra fn 37 on the
locus standi of cabinet ministers.
126 See Le Roux v Dey 2011 3 SA 274 (CC) 304; Tap Wine Trading CC v Cape Classic Wines (Western Cape) CC
[1998] 4 All SA 86 (C) 107; Kgothule v Majonga 2015 6 SA 389 (FB) 393; Hanekom v Zuma [2019] 4 All SA 425
(KZD) para 6; Jankielsohn v Booysen [2020] 1 All SA 214 (FB) para 36; University of Pretoria v South Africans
for the Abolition of Vivisection 2007 3 SA 395 (O) 400; Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ)
para 9; cf Van der Merwe and Olivier 389. For a detailed discussion of the law of defamation, see Burchell Def-
amation passim; Personality Rights 179 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 199 ff;
see also Burchell Delict 160–188; Van der Walt and Midgley Delict 175–183; Loubser and Midgley Delict 411 ff.
Cf Roos and Slabbert 2014 (6) PELJ 2852 ff on defamation on Facebook.
127 Cf Khumalo v Holomisa 2002 5 SA 401 (CC) 413; Waldis v Von Ulmenstein 2017 4 SA 503 (WCC); Du Plessis v
Media 24 t/a Daily Sun 2016 3 SA 178 (GP) 183; Botha v Mthiyane 2002 1 SA 289 (W) 311. In Holomisa 413 (see
also Waldis 509; Mostert v Nash [2018] 4 All SA 267 (GJ) para 68) the elements of the delict of defamation were
stated as follows: (a) the wrongful and (b) intentional (c) publication of (d) a defamatory statement (e) concerning
the plaintiff. As will be seen, intention (animus iniuriandi) has in certain instances been replaced by negligence
(infra 415).
128 See, eg, National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1218; Mohamed v Jassiem 1996 1 SA 673 (A) 694;
Khumalo v Holomisa 2002 5 SA 401 (CC) 414; Sayed v Editor, Cape Times 2004 1 SA 58 (C) 61.
129 See Neethling, Potgieter and Roos Neethling on Personality Rights 200.
self-evident that defamation will arise only if the defamatory statement or behaviour has been
published or disclosed to a third person.130 Without such publication, the opinion of others with
regard to the person involved cannot be lowered. Thus, publication is a necessary requirement
for defamation.131
In general, this requirement is satisfied if the words or conduct are made known or disclosed to
at least one person other than the plaintiff himself.132 This general principle is, however, subject
to important qualifications.133 One of them is that the courts do not consider the disclosure of
defamatory words or behaviour to an outsider who is unaware of the defamatory character or
meaning thereof in relation to the plaintiff134 as publication.135 136A second is that the communi-
cation of defamatory words concerning a third party by one spouse to the other does not consti-
tute publication according to the decision in Whittington v Bowles.137 138
Once publication is established, the plaintiff must prove that the defendant was responsible for
the publication.139 In this regard it may be stated as a general rule that publication is attributed to
the defendant if he was aware or could reasonably have expected that an outsider would take
cognisance of the defamation.140 The question is therefore whether the result objected to was
foreseen or was at least reasonably foreseeable.141 Note that not only the person from whom the
________________________
130 Whittington v Bowles 1934 EDL 142 145; see in general Neethling, Potgieter and Roos Neethling on Personality
Rights 200–204; Brand 2017 LAWSA 138 ff; Van der Walt and Midgley Delict 177í178; Loubser and Midgley
Delict 417í422. It is in this respect that a distinction is made between defamation and insult or infringement of dignity.
In the latter case, which is concerned with a person’s feelings regarding himself, publication of the insulting behaviour
to a third person(s) is obviously unnecessary (Neethling, Potgieter and Roos Neethling on Personality Rights 200–
201; see Jankielsohn v Booysen [2020] 1 All SA 214 (FB) para 44).
131 Since publication is required for liability in the case of defamation, the plaintiff must expressly state and prove that
the publication of the defamation in fact took place (eg Lubbe v Robinsky 1923 CPD 110 111). In certain circum-
stances publication is, however, presumed, and the onus is then on the defendant to rebut this presumption (see in
this regard Neethling, Potgieter and Roos Neethling on Personality Rights 202í203).
132 Eg Le Roux v Dey 2011 3 SA 274 (CC) 304; African Life Assurance Society Ltd; African Guarantee and Indemnity
Ltd; African Consolidated Investment Corp Ltd v Robinson and Co Ltd and Central News Agency Ltd 1938 NPD
277 295; Kyriacou v Minister of Safety and Security 1999 3 SA 278 (O) 287; cf Rivett-Carnac v Wiggins 1997 3
SA 80 (C) 88; Feni v Kondzani [2007] 4 All SA 762 (EC) 771; Tsichlas v Touch Line Media (Pty) Ltd 2004 2 SA
112 (W) 120–121; Rens 2005 SALJ 740 ff and Roos and Slabbert 2014 (6) PELJ 2845 ff (in respect of publication
on the internet).
133 See Neethling, Potgieter and Roos Neethling on Personality Rights 201–202 for a detailed discussion.
134 Eg because the outsider is deaf, blind or illiterate, or because the defamatory words are contained in a secret code
or a foreign language.
135 Eg Vermaak v Van der Merwe 1981 3 SA 78 (N) 79–80; Chadwick v Faku (1890) 11 NLR 174. If the outsider
becomes aware of the defamatory meaning at a later stage, the publication requirement is naturally complied with
(Vermaak v Van der Merwe 1981 3 SA 78 (N) 83).
136 Although one may agree with the result of the courts’ view, it nevertheless appears that the defendant escapes
liability, not so much because publication is absent, but rather because there is no infringement of personality.
Where the outsider is not aware of the defamatory meaning of the conduct involved, the defamatory words or be-
haviour do not have the effect of injuring the fama of the plaintiff despite the publication thereof.
137 1934 EDL 142 145. Unfortunately, in SKJ v PJ 2016-7-22 case no 4918/2012 (KZND) Masipa J (para 82) under-
stood this rule incorrectly (see Neethling and Potgieter 2017 (3) LitNet Akademies 930í931). However, the publi-
cation of defamatory remarks concerning one spouse by a third person to the other spouse does comply with the
publication requirement (eg Kuzzulo v Kuzzulo 1908 TS 1030).
138 Again one may agree with the result of this view. The reasons behind it must, however, be questioned. In our opinion
publication in the sense of the making known of defamatory remarks to someone other than the person defamed, is def-
initely present. Liability is, however, correctly excluded on the ground of policy considerations (and therefore absence
of wrongfulness), mainly because communications between husband and wife stante matrimonio should be as free as
possible from interference.
139 Pretorius v Niehaus 1960 3 SA 109 (O) 112.
140 Idem 113; Van Vliet’s Collection Agency v Schreuder 1939 TPD 265 268–269.
141 Seen in this light, one is in fact dealing with a specific application of reasonable foreseeability as a criterion for legal
causation, ie, the question for what consequences, that factually flow from his conduct, a wrongdoer should be held li-
able (see in this regard supra 248). A matter that frequently came before the courts in this regard is under what circum-
stances the author of a letter, addressed to a specific person and containing defamatory remarks, should be held
responsible for the publication should the letter be read by an outsider. The following principles have already crystal-
lised. Where a letter is addressed to a person in his personal capacity, it is not reasonably foreseeable that the letter will
[continued ]
402 Law of Delict
defamatory remark originated, but also any other person who repeats,142 confirms, or even
draws attention to it, is in principle responsible for its publication.143
3.2.2.2 Defamatory effect: wrongfulness144

Wrongfulness with regard to defamation lies in the infringement of a person’s right to his good
name.145 Accordingly, in order to be considered a wrongful defamation, the objectionable
publication must not only impair the individual’s good name (factual infringement of personal-
ity), but must also be objectively unreasonable or contra bonos mores (infringement of a
norm).146 However, this view has not been fully upheld by the courts. When determining wrong-
fulness, the question of whether the good name of the person involved has in fact (factually)
been infringed147 is irrelevant.148 For example, a witness may as a rule not be asked how he
understood the words or behaviour in question.149 According to Le Roux v Dey150 a two-stage
enquiry must be followed to establish prima facie wrongfulness. The first is to establish
________________________
be opened and read by another person (Van Vliet’s Collection Agency v Schreuder 1939 TPD 265), even if the words
“Private” or “Confidential” do not appear on the outside (Pretorius v Niehaus 1960 3 SA 109 (O) 115). In such cir-
cumstances publication may thus not be attributed to the defendant. On the other hand, where a letter is addressed to a
firm or undertaking and is not marked “Private” or “Confidential”, it is indeed reasonably foreseeable that clerks of
such a firm or undertaking will open and read the letter. The defendant is then responsible for the publication (ibid).
142 In certain circumstances a defamer may be held responsible for the further repetition of the defamation by other
persons (eg Vengtas v Nydoo (5) 1963 4 SA 358 (D) 393; NEHAWU v Tsatsi 2006 6 SA 327 (SCA) 333; see further
Neethling, Potgieter and Roos Neethling on Personality Rights 204 fn 59; Neethling 2007 De Jure 193 ff).
143 See Neethling, Potgieter and Roos Neethling on Personality Rights 204 for examples.
144 See generally Neethling, Potgieter and Roos Neethling on Personality Rights 204 ff; Brand 2017 LAWSA 140;
Burchell Defamation 59–66 82 ff, Delict 170 ff; Loubser and Midgley Delict 422 ff; Van der Walt and Midgley
Delict 179–183.
145 It is unfortunate that in Le Roux v Dey 2011 3 SA 274 (CC) 315 the court, albeit obiter, introduced into the law of
defamation the so-called new variation of the test for wrongfulness, namely that wrongfulness depends on whether
it would be reasonable to impose liability on the defendant, as well as the view that the reasonableness of the de-
fendant’s conduct has nothing to do with wrongfulness (for criticism, see supra 93 ff; Neethling and Potgieter 2014
THRHR 116 ff; Neethling and Potgieter 2014 SALJ 249–251). The law of defamation has been developed over a
long period of time and a great deal of certainty as to its interpretation and application has been attained. It is there-
fore difficult to understand why Brand AJ found it necessary to introduce this new variation into the law of defama-
tion. Also, as will be seen infra 405 ff, the reasonableness of the defendant’s conduct plays a central part in
determining some grounds of justification for defamation (such as relative privilege, media privilege (which deals
specifically with the reasonable publication of defamatory untruths), and fair comment). See also Neethling and
Potgieter 2011 Obiter 724–725.
146 See also Waldis v Von Ulmenstein 2017 4 SA 503 (WCC) 509; Heroldt v Wills 2013 2 SA 530 (GSJ) 543.
147 Such as is normally the case with regard to the evaluation of the infringement of a subjective right (supra 58).
148 Le Roux v Dey 2011 3 SA 274 (CC) 306–307; Neethling, Potgieter and Roos Neethling on Personality Rights
204–205. Brand AJ’s criticism in Le Roux 306–307 of these authors’ viewpoint (cited with approval by Harms DP
in Le Roux v Dey 2010 4 SA 210 (SCA) 213–214) is unacceptable (see Neethling and Potgieter 2011 Obiter 722).
See also Neethling and Potgieter 1992 THRHR 507–508.
149 Eg Sutter v Brown 1926 AD 155 163–164; Botha v Marais 1974 1 SA 44 (A) 48; Beesham v Solidarity Party 1991 3
SA 889 (N) at 892; Mangope v Asmal 1997 4 SA 277 (T) 286. An exception exists in the case of an innuendo (Neeth-
ling, Potgieter and Roos Neethling on Personality Righs 205 fn 60) (see infra 404 in regard to an innuendo).
150 2011 3 SA 274 (CC) 305–306 where school teachers had been the object of a purported joke or prank by their
learners and the court held that this is no defence against a defamation action against the learners if they impaired
the teachers’ reputation, since teachers are also entitled to the protection of their dignity and reputation (for criti-
cism of the case, see Fagan (Undoing Delict 121 ff, 2011 SALJ 395 ff; cf Mills 2014 SALJ 847 ff; see also Couzens
2018 (21) PELJ 1 ff) who is of the opinion that the court failed to give adequate attention to the best interests of the
child). See also Le Roux v Dey 2010 4 SA 210 (SCA) 213–214; Jankielsohn v Booysen [2020] 1 All SA 214 (FB)
para 41; Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) paras 10–12; Manuel v Economic Freedom Fight-
ers, Ndlozi and Malema 2019 5 SA 210 (GJ) paras 46í52 (Neethling 2019 (2) LitNet Akademies 658í659); Kassel
v Thompson Reuters (Markets) SA 2019 1 SA 251 (GJ) 254; Hanekom v Zuma [2019] 4 All SA 425 (KZD) paras
7í9.
the ordinary meaning of the statement. The inquiry is an objective one conducted through the
lens of the ordinary reasonable reader of the particular statement. The second is whether that
meaning is defamatory. Here the question is whether, in the opinion of the reasonable person
with normal intelligence and development, the reputation of the person concerned has been
injured (thus also an objective approach).151 If so, the words or behaviour are defamatory152 to,
and in principle (prima facie) wrongful153 as against that person.154 The objective reasonable
person test is thus of decisive importance with regard to the question of wrongfulness in cases of
defamation. This test must be seen as a particular embodiment of the boni mores or reasonable-
ness criterion, which is the general yardstick for wrongfulness155 (and must not be confused with
the reasonable person test for negligence).156 The following principles have crystallised in
practice with regard to the application of this test:157
(a) The reasonable person is the fictional, normal, well-balanced and right-thinking person, who
is neither hypercritical nor oversensitive, but someone with normal emotional reactions.158
(b) The reasonable person is someone who subscribes to the norms and values of the Constitu-
tion that must inform all law. The constitutional principles must therefore be the basis upon
which the values and views of reasonable members of the community must be determined.159
(c) The reasonable person is a member of society in general and not only of a certain group.160
The alleged defamation must thus have the effect of harming the plaintiff’s good name in the
eyes of all reasonable persons in society.161
________________________
151 Eg SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) 451; NEHAWU v Tsatsi 2006 6 SA 327 (SCA) 330–
331; Tsedu v Lekota 2009 4 SA 372 (SCA) 378–379; Media 24 Ltd v Du Plessis (127/2016) [2017] ZASCA 33 (29
March 2017) para 16; Waldis v Von Ulmenstein 2017 4 SA 503 (WCC) 509; Heroldt v Wills 2013 2 SA 530 (GSJ)
542; Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) para 10; Mthimunye v RCP Media 2012 1 SA 199 (T)
202; South African National Defence Union v Minister of Defence 2012 4 SA 382 (GNP) 398; Pieterse v Clicks
Group Ltd 2015 5 SA 317 (GJ) 338; cf Ketler Investments CC t/a Ketler Presentations v Internet Service Provid-
ers’ Association 2014 2 SA 569 (GJ) 581 (discussed by Marx in Potgieter, Knobel and Jansen (eds) 323 ff); see
Neethling, Potgieter and Roos Neethling on Personality Rights 205í206 for further cases.
152 Eg Botha v Marais 1974 1 SA 44 (A) 48–49; Demmers v Wyllie 1980 1 SA 835 (A) 842–843 847 ff; Greeff v
Raubenheimer 1976 3 SA 37 (A) 43; SA Associated Newspapers Ltd v Samuels 1980 1 SA 24 (A) 35 44; Johnson v
Beckett 1992 1 SA 762 (A) 733; Rivett-Carnac v Wiggins 1997 3 SA 80 (C) 89–90; Mineworkers Investment Co
(Pty) Ltd v Modibane 2002 6 SA 512 (W) 518 519–520 (Neethling and Potgieter 2003 THRHR 331–332); Mthem-
bi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 342–343 (Neethling 2005 THRHR 322); Delta Motor
Corporation (Pty) Ltd v Van der Merwe 2004 6 SA 185 (SCA) 192–193. For examples of words or behaviour
judged to be defamatory according to the reasonable person test, see Neethling, Potgieter and Roos Neethling on
Personality Rights 212í215.
153 The presence of a ground of justification naturally cancels such wrongfulness (see in this regard infra 405).
154 Neethling, Potgieter and Roos Neethling on Personality Rights 206.
155 See in this regard supra 39 ff; see also Burchell Personality Rights 207–208.
156 Cf Le Roux v Dey 2010 4 SA 210 (SCA) 223–224; as to negligence, see supra 164 ff.
157 For particulars, see Neethling, Potgieter and Roos Neethling on Personality Rights 207–211.
158 SAUK v O’Malley 1977 3 SA 394 (A) 408; SA Associated Newspapers Ltd v Schoeman 1962 2 SA 613 (A) 616;
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) 587–588; Rivett-Carnac v
Wiggins 1997 3 SA 80 (C) 89; Kyriacou v Minister of Safety and Security 1999 3 SA 278 (O) 286–287; Sindani v
Van der Merwe 2000 3 SA 494 (W) 497–498; Mineworkers Investment Co (Pty) Ltd v Modibane 2002 6 SA 512
(W) 518; Treatment Action Campaign v Rath 2007 4 SA 563 (C) 569.
159 Rivett-Carnac v Wiggins 1997 3 SA 80 (C) 89; see also Neethling, Potgieter and Visser Neethling’s Law of Person-
ality 136. To elucidate: Unfair discrimination (Constitution, 1996 s 9) on the ground of marital status may not take
place. For this reason there should be no stigma in respect of sexual relationships between unmarried persons. Alle-
gations that a woman had a baby born out of wedlock, and that she and the child’s father lived together as unmar-
ried persons for two years, will therefore not lower that person’s good name in the eyes of right-thinking people
(see Sokhulu v New Africa Publications Ltd 2001 4 SA 1357 (W) 1359; cf Afriforum v Pienaar 2017 1 SA 388
(WCC) 401).
160 Eg communists or members of the Reformed Churches.
161 Eg Botha v Marais 1974 1 SA 44 (A) 49; Ngcobo v Shembe 1983 4 SA 66 (D) 71; Afriforum v Pienaar 2017 1 SA
388 (WCC) 401. This “society generally” principle, if applied rigidly, would, however, not be realistic for our country
[continued ]
404 Law of Delict
(d) The reaction of the reasonable person depends on the circumstances of the particular case.
The alleged defamation must therefore be interpreted in the context in which it is published.162
(e) Verbal abuse is in most cases not defamatory because it normally does not have the effect of
injuring a person’s good name.163
(f) Words (or behaviour) are prima facie or according to their primary meaning, either
defamatory or non-defamatory.164 Words may, however, also have a secondary meaning, which
is an extraordinary meaning attached to them by a person with knowledge of special
circumstances.165 It follows that the plaintiff may show that words which are in their primary
sense non-defamatory have a secondary defamatory meaning (the so-called innuendo).166 Vice
versa, the defendant may prove that prima facie defamatory words are in fact non-defamatory.167
In both cases, the party concerned must allege and prove the circumstances on which the
innuendo is based.168 Both the primary and secondary meaning is ascertained objectively by
means of the reasonable person of ordinary intelligence test.169
(g) Where words or conduct are capable of more than one meaning, the courts apply the normal
standard of proof in civil cases, that is, a balance of probabilities. Where an allegedly defama-
tory statement is equally capable of bearing more than one meaning, one that is innocent and
another that is defamatory, the court must adopt the non-defamatory meaning.170
________________________
with its wide diversity of relatively large groups of people having different cultural, social, economic and educational
backgrounds (see Mohamed v Jassiem 1996 1 SA 673 (A) 708–709). Provision should therefore be made for excep-
tions, as was done in Mohamed with regard to the Western Cape Muslim community (idem 709; cf Burchell in
Potgieter, Knobel and Jansen (eds) 114). In Mtyhopo v South African Municipal Workers Union National Provident
Fund 2015 11 BCLR 1393 (CC) para 30, where an alleged defamatory article was published in a newspaper, the
court also did not adhere to the “society generally” principle. Instead, the question whether the plaintiff was de-
famed is whether he or she was diminished in the estimation of the reasonable reader of the article and not in the
eyes of society in general. This appears to be an acceptable approach (see also Neethling, Potgieter and Roos Neeth-
ling on Personality Rights 207í208).
162 Eg Johnson v Rand Daily Mails 1928 AD 190 194 204; Coulson v Rapport Uitgewers (Edms) Bpk 1979 3 SA 286
(A) 294; Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 342–343; Cele v Avusa Media Limited
[2013] 2 All SA 412 (GSJ) para 13. If the remarks are made in a book or article in a newspaper or magazine, it may
be necessary to read the whole book or article in evaluating the defamatory nature thereof. Furthermore, there is,
eg, a difference between the reader of a document and the listener to a report on the radio (Neethling, Potgieter and
Roos Neethling on Personality Rights 208–209).
163 Bester v Calitz 1982 3 SA 864 (O) 874; see also Brand 2017 LAWSA 140.
164 “The primary meaning is the ordinary meaning given to the statement in its context by a reasonable person”
(Le Roux v Dey 2011 3 SA 274 (CC) 304–305); see also Chowan v Associated Motor Holdings (Pty) Ltd 2018 4 SA
145 (GJ) para 66; Deedat v Muslim Digest 1980 2 SA 922 (D) 926; Sindani v Van der Merwe 2000 3 SA 494 (W)
497; Selemela v Independent Newspaper Group Ltd 2001 4 SA 987 (NC) 1000.
165 Eg Ngcobo v Shembe 1983 4 SA 66 (D) 69; Wells v Atoll Media (Pty) Ltd [2010] 4 All SA 548 (WCC) para 31;
Molotlegi v Mokwalase [2010] 4 All SA 258 (SCA) 263. A remark that a woman has children (prima facie non-
defamatory), may, eg, be defamatory in the light of knowledge of the fact that she has never been married (K v T
(1904) 21 SC 177; however, cf Sokhulu v New Africa Publications Ltd 2001 4 SA 1357 (W) 1359; supra fn 159).
166 “The secondary meaning is a meaning other than the ordinary meaning, also referred to as an innuendo, derived
from special circumstances which can be attributed to the statement only by someone having knowledge of the
special circumstances” (Le Roux v Dey 2011 3 SA 274 (CC) 305); see also Du Plessis v Media 24 t/a Daily Sun
2016 3 SA 178 (GP) 185–186; Deedat v Muslim Digest 1980 2 SA 922 (D) 927 ff; Ketler Investments CC t/a
Ketler Presentations v Internet Service Providers’ Association 2014 2 SA 569 (GJ) 581–583. See on determining
the meaning of an innuendo, Gowar and Visser 2011 Obiter 411 ff.
167 Eg Blumenthal v Shore 1948 3 SA 671 (A).
168 Le Roux v Dey 2011 3 SA 274 (CC) 305; Ngcobo v Shembe 1983 4 SA 66 (D) 69.
169 Le Roux v Dey 2011 3 SA 274 (CC) 305–306; Basner v Trigger 1945 AD 22 32; Rivett-Carnac v Wiggins 1997 3
SA 80 (C) 91; see in general further Neethling, Potgieter and Roos Neethling on Personality Rights 209–210.
170 Le Roux v Dey 2011 3 SA 274 (CC) 307 explained it as follows: “If it is found that the statement is ambiguous in
the sense that it can bear one meaning which is defamatory and others which are not, the courts apply the normal
standard of proof in civil cases, that is, a preponderance of probabilities. If the defamatory meaning is more prob-
able than the other, the defamatory nature of the statement has been established as a fact. If, on the other hand, the
non-defamatory meaning is more probable, or where the probabilities are even, the plaintiff has failed to rebut the
onus which he or she bears. Consequently it is accepted as a fact that the statement is not defamatory”; see also
[continued ]
(h) The law requires of public figures, politicians and public officers (by virtue of their chosen
professions) to be robust and thick-skinned in relation to negative comments made against
them.171
The plaintiff who proves that words or behaviour are defamatory in the judgment of the
reasonable person does not thereby prove that a wrongful act has been committed against him.
He may of course only institute an action on the ground of defamation if the defamatory
publication concerns him or refers to him.172 The plaintiff must therefore expressly aver and
prove that the defamation pertains to his good name. The test to ascertain this connection is
again that of the reasonable person, ie, whether the defamatory publication can be linked to the
plaintiff according to the judgment of the reasonable person.173
3.2.2.3 Grounds of justification

The plaintiff who proves that the publication is defamatory and that it refers to him, provides
only prima facie proof of wrongfulness.174 A presumption of wrongfulness then arises, which
places the onus on the defendant to rebut it.175 176 He may do this by proving the existence of a
________________________
Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) para 38; cf Neethling, Potgieter and Roos Neethling on
Personality Rights 210í211.
171 See, eg, Kgothule v Majonga 2015 6 SA 389 (FB) 398; African National Congress v Democratic Alliance 2014 3
SA 608 (GJ) 619; Afriforum v Pienaar 2017 1 SA 388 (WCC) 400-401; Manuel v Economic Freedom Fighters,
Ndlozi and Malema 2019 5 SA 210 (GJ) paras 49í53; Hanekom v Zuma [2019] 4 All SA 425 (KZD) para 10; Cele
v Avusa Media Limited [2013] 2 All SA 412 (GSJ) paras 23 ff; Malema v Rampede 2011 5 SA 631 (GSJ) 634–635;
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) 588; Delange v Costa 1989 2
SA 857 (A) 861–862; Pienaar v Argus Printing and Publishing Co Ltd 1956 4 SA 310 (T) 322; Crawford v Albu
1917 AD 102 105. See further Neethling 2014 THRHR 113–115; Burchell Personality Rights 229; Neethling, Pot-
gieter and Roos Neethling on Personality Rights 211. This is even more so where a public figure courted public
attention and controversy (Cele para 23; Malema 634–635). Burchell Personality Rights 229 however warns that
although public figures may in a sense be fair game for criticism, it is not completely open season in this field. Par-
ticularly comments made with malice will not necessarily be tolerated (cf Mthembi-Mahanyele v Mail & Guardian
Ltd 2004 6 SA 329 (SCA) 357; Kgothule 398; Jankielsohn v Booysen [2020] 1 All SA 214 (FB) para 42; see further
Neethling 2019 (2) LitNet Akademies 654í655).
172 AAIL (SA) v Muslim Judicial Council (Cape) 1983 4 SA 855 (C) 865; A Neumann CC v Beauty Without Cruelty
International 1986 4 SA 675 (C) 680; Williams v Van der Merwe 1994 2 SA 60 (E) 64; see also Loubser and Midgley
Delict 431–432.
173 Eg SA Associated Newspapers Ltd v Estate Pelser 1975 4 SA 797 (A) 810–811; Sauls v Hendrickse 1992 3 SA 912
(A) 918; Aymac CC v Widgerow 2009 6 SA 433 (W); Williams v Van der Merwe 1994 2 SA 60 (E) 64–65; Isparta
v Richter 2013 6 SA 529 (GNP) 534–537 (discussed by Roos and Slabbert 2014 (6) PELJ 2845 ff); see in general
Neethling, Potgieter and Roos Neethling on Personality Rights 212, especially with regard to group defamation.
174 See, eg, National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1202; Khumalo v Holomisa 2002 5 SA 401 (CC)
414; Le Roux v Dey 2011 3 SA 274 (CC) 304; Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 6 SA 185
(SCA) 191; Hardaker v Phillips 2005 4 SA 515 (SCA) 524; Neethling v Du Preez; Neethling v The Weekly Mail
1994 1 SA 708 (A) 767–769; SAUK v O’Malley 1977 3 SA 394 (A) 401–403; Borgin v De Villiers 1980 3 SA 556
(A) 571; May v Udwin 1981 1 SA 1 (A) 10; Marais v Richard 1981 1 SA 1157 (A) 1166–1167; Joubert v Venter
1985 1 SA 654 (A) 695 697; Herselman v Botha 1994 1 SA 28 (A) 35; Argus Printing and Publishing Co Ltd v
Inkatha Freedom Party 1992 3 SA 579 (A) 588 589–590; Naylor v Jansen; Jansen v Naylor 2006 3 SA 546 (SCA)
551; Tuch v Myerson 2010 2 SA 462 (SCA) 466–467; The Citizen 1978 (Pty) Ltd v McBride 2010 4 SA 148 (SCA)
158; Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) para 9; Gold Reef City Theme Park (Pty) Ltd; Akane
Egoli (Pty) Ltd v Electronic Media Network Ltd 2011 3 SA 208 (GSJ) 222–224.
175 Ibid. This is a full onus of proof and not merely an evidentiary burden: Neethling v Du Preez; Neethling v The
Weekly Mail 1994 1 SA 708 (A) 770 (Neethling and Potgieter 1994 THRHR 513–514; Burchell Personality Rights
135 231 ff, Burchell in Potgieter, Knobel and Jansen (eds) 109; Brand 2017 LAWSA 150–151); see also, eg, Na-
tional Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1215; Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001
2 SA 242 (SCA) 252; Mohamed v Jassiem 1996 2 SA 673 (A) 709; Gold Reef City Theme Park (Pty) Ltd; Akane
Egoli (Pty) Ltd v Electronic Media Network Ltd 2011 3 SA 208 (GSJ) 220–224; Kgothule v Majonga 2015 6 SA
389 (FB) 393; Du Plessis v Media 24 t/a Daily Sun 2016 3 SA 178 (GP) 183 184; Hardaker v Phillips 2005 4 SA
515 (SCA) 524; Naylor v Jansen; Jansen v Naylor 2006 3 SA 546 (SCA) 551; Jankielsohn v Booysen [2020] 1 All
SA 214 (FB) para 36; Mohamed v Jassiem 1996 1 SA 673 (A) 709; Sayed v Editor, Cape Times 2004 1 SA 58 (C)
61; Mineworkers Investment Co (Pty) Ltd v Modibane 2002 6 SA 512 (W) 519; Yazbek v Seymour 2001 3 SA 695
(E) 702; Botha v Mthiyane 2002 1 SA 289 (W) 312–313; Selemela v Independent Newspaper Group Ltd 2001 4 SA
[continued ]
406 Law of Delict
ground of justification177 for his conduct.178 There is no numerus clausus of grounds of justifica-
tion. Apart from the traditional grounds of justification in defamation cases,179 new grounds of
________________________
987 (NC) 993–994; Rivett-Carnac v Wiggins 1997 3 SA 80 (C) 68 91 93. For this reason, the judgment in Rali-
phaswa v Mugivhi [2008] 3 All SA 92 (SCA) 96 was incorrect in placing a mere evidentiary burden on the defend-
ant to rebut the presumption of wrongfulness. (Before Neethling the case law, following SAUK v O’Malley 1977 3
SA 394 (A) 401–403, accepted the viewpoint that the defendant merely had an evidentiary burden to rebut the pre-
sumption of wrongfulness: see, eg, Borgin v De Villiers 1980 3 SA 556 (A) 571; May v Udwin 1981 1 SA 1 (A) 10;
Marais v Richard 1981 1 SA 1157 (A) 1166–1167; Herselman v Botha 1994 1 SA 28 (A) 35; Argus Printing and
Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) 591.) The decision in Neethling was subjected to
strong criticism, suggesting that it unduly limits the fundamental right to freedom of speech entrenched in s 15(1)
of the interim Constitution, 1993 (cf Constitution, 1996 s 16(1)(a); see, eg, Van Aswegen 1995 SAJHR 61; cf
Neethling and Potgieter 1994 THRHR 518–519). In Gardener v Whitaker 1995 2 SA 672 (E) 686 ff 691 Froneman
J held that the interim Constitution changed the position and that the “plaintiff now bears the onus of showing that
the defendant’s speech or statement is, eg, false; not in the public interest; not protected by privilege; unfair com-
ment, and the like”. However, as pointed out (supra fn 123), there are currently conflicting decisions with regard to
the influence of s 15(1) of the interim Constitution on the law of defamation. (Cf specifically with regard to the
onus of proof, eg Gardener v Whitaker 1995 2 SA 672 (E) 691 and Holomisa v Argus Newspapers Ltd 1996 2 SA
588 (W) 608, as opposed to Potgieter v Kilian 1995 11 BCLR 1498 (N) and Hall v Welz 1996 4 SA 1070 (C)
1072.) In order to obtain a fairer balance between the right to good name and the right to freedom of speech, it is
perhaps better to restore the status quo ante Neethling, ie, that the plaintiff bears the full onus of proving defam-
ation as an iniuria, but that the defendant has an evidentiary burden to rebut the presumption of wrongfulness (see
Neethling, Potgieter and Roos Neethling on Personality Rights 216 fn 164; Van der Vyver 1995 SALJ 599; see also
Van der Walt 1998 TSAR 205–207; Van Heerden 1996 TSAR 775). However, subsequent to these decisions it has
been confirmed by both the SCA (see, eg, National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1215 (as to negli-
gence); Naylor v Jansen; Jansen v Naylor 2006 3 SA 546 (SCA) 551 554; Hardaker v Phillips 2005 4 SA 515
(SCA) 524; Modiri v Minister of Safety and Security 2011 6 SA 370 (SCA) 375) and the CC (Khumalo v Holomisa
2002 5 SA 401 (CC) 414–415 (negligence); Le Roux v Dey 2011 3 SA 274 (CC) 304) that the defendant who raises
a defence excluding unlawfulness or animus iniuriandi bears a full onus of proving that defence on a balance of
probabilities and that this rule is not in conflict with the constitutional principles. A bare denial by the defendant
will therefore not be enough (see Brand 2017 LAWSA 150–151; see also Neethling, Potgieter and Roos Neethling
on Personality Rights 240 fn 392; Van der Walt and Midgley Delict 235–236; infra 414).
176 The presumption of wrongfulness is not the only presumption that is created by the publication of defamatory
words or behaviour. Such publication also creates the presumption that the publication took place intentionally or
animo iniuriandi (see Neethling, Potgieter and Roos Neethling on Personality Rights 216 fn 165; see also Loubser
and Midgley Delict 433í434), or in the case of the press or other media, that the defendant was negligent (National
Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1215). This will be discussed infra fn 260 ff.
177 See in general supra 106 ff.
178 Contrary to what was incorrectly stated in earlier decisions, these defences do not rebut the presumption of animus
iniuriandi. In Marais v Richard 1981 1 SA 1157 (A) 1166–1167 (see also Wentzel v SA Yster en Staalbe-
dryfsvereniging, Wentzel v Blanke Motorwerkersvereniging 1967 3 SA 91 (T) 98; Argus Printing and Publishing
Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) 588–589) Jansen JA stated (which is now trite law) that the
traditional defences against an action for defamation, namely privilege, fair comment, and truth and public interest,
refer to the wrongfulness element of iniuria and should be considered as grounds of justification. They are there-
fore not defences which rebut the presumption of animus iniuriandi (contra Fagan Undoing Delict viii 156 ff, cf
2019 Acta Juridica 283 ff who supports the latter view). See, however, the convincing criticism of Fagan’s view by
Burchell in Potgieter, Knobel and Jansen (eds) 116–118. Burchell 116 points out that “Fagan does not specify the
meaning he attaches to intention: is it confined to what may be regarded as ‘malice’ in English law; is it equivalent to
dolus directus in South African law; is it distinguishable from motive; does it include dolus directus or even dolus
eventualis?” He concludes (idem 117–118) that “the hoary approach that all defences in a defamation action are actual-
ly defences excluding animus would lead to overloading the concept of animus (and, what is more significant, to over-
burdening judicial discretion in the drawing of inferences of subjective intention as well), potentially confusing motive
and intention, equating value judgments with factual findings, and hobbling the development of a nuanced set of
defences that might achieve a more relevant and viable balance between freedom of expression and protection of per-
sonality rights”.
179 Eg privilege, truth and public interest, fair comment, private defence, provocation and consent (see Neethling,
Potgieter and Roos Neethling on Personality Rights 217–229 232–237).
Chhapter 10: Fo
ormss off iniiuriaa 407
4
juustiificaatioon1880 m
may
y deve
d elopp inn acco
a ordaance w
with
h thhe bonni m
morres off ouur ((con
nstiitutiionnal) co
om-
m
mun nity.181
33.2.2.3 3.1 Privi
P ileg ge or
o priv
p vilegeged d occa
o asio ion
PPriv
vilegge exiists wher
w re som s meoone haas a riighht, duty d y or o inte
i eresst to m ke speeciffic defam
t mak mato ory
aassertioons andd thhe per
p rsonn orr peeople tot who
w om thee assserrtionns aare puublisheed hhave a corresspoondiing
riightt, duty
d y orr inttereest to
t lear
l rn oof such
s h assserrtioons. Priivillegee thhus graantss a per
p rson n thhe leegaal riightt to
innjurre ano
a otheer’ss gooodd naamee aand in so dooingg seets asiide the prim p ma fac f cie wronggfullnesss oof his
cond ducct.182
A distincttionn m mustt bee mad
m de bbetw weeen abso
a oluute andd reelattivee prrivillege. In I tthe caase of abbsolute
pprivilegge, thee ddefeendaant is prootectedd absoa oluttely y inn thhe sennse thaat liab
l bilitty for
f deefam mation n is
com mpleetelyy exxcluudeed. The
T ese insstanncess arre reeguulated by b statutee. Thu
T s, for
f exae amp ple, in term ms of the
CConnstittutioon, 19996 meembbers of parliiam mentt (N Natiional AssA semmbly y annd Naationnal Coounncil of Pro ov-
innces) aree giivenn comc mpleete freeed domm of spee s ech duurinng thee debaatess orr ootheer proc p ceeedinngs off
mentt.1833
pparliiam
BBy con
c ntrasst, ini tthe casse of
o reelattivee prrivillegge, tthe deffenddannt ennjoys onl
o ly prov
p visionaal or o coondditio on-
aal prot
p ectiionn. T Thiss prroteectiion fallls awway as so oon ass thhe pplaiintiiff proovess th d endant
hat thee defe
exceeedeed thee boounds of the t priivillegeed occo casion. A few w cate
c egorriess off this pprivvilege havve ddev vel-
oopedd inn ouur laaw. Thhey aree thhe fo
follo
owiing::
(aa) Disschargge oof a du uty or furrthheraancce of o an n in
nteresst This
T s caateggoryy iss prreseent whe
w ere a ppersson
hhas a lega
l al, moorall orr soociaal ddutyy orr a leggitim mate inte
i eresst inn mak
m kingg defaamaatoryy assea ertioons to
aanottherr peersoon wwho o has a coorreesponddingg dutyd y orr inttereest to llearrn of t asssertionns.1884 The
o the T qu ues-
tiion of whhethher succh a duutyy orr inttereest exists cau uses no prob
p blem t caase of a leegal duuty.185
ms in the
TThe exiisteencee off a socciall or mooral duuty or intterest mus m st, how
h wev ver, be asccerttainned objbjectiveely by
mmeaans of thet reaaso onabble perrson teest.186 187 It iis im mportaant to notte that
t t thee coomm moon laaw does not n
_______
_______________________
180 Succh ass meediaa privilege, poliiticaal prrivileege andd reaasonablee susspicion of shop s pliftiing (seee Neeethlling, Pootgieeter and
N hlingg on Perrsonnalityy Rig
Rooos Neeth ightss 2299í232 238)
2 ).
181 See, egg, Natio
N onal Meedia Ltdd v Bog goshhi 19998 4 S SA 11996 (S SCAA) 11204 4; Hard
H dakerr v Phiillipss 20005 4 S SA 515
(SCCA) 524–
5 –5255; Khum
K maloo v HoloH omisa 20002 5 SA A 4001 (CCC) 4144; Mthem
M mbi--Maahanyyelee v M Mail & Gua
G rdiaan L td 2004
6 SA A 3229 (SCA A) 350–351; Sayyed v Editor, Cape C e Tim mes 2004
2 4 1 SA 58 ((C) 61; 6 Mine
M ewoorkerrs In nvestmennt Co
C (P Pty) Ltdd
v Modib
M banee 20002 6 SA A 5112 (WW) 5520– –521; Burch
B hell Perrsonnalityy Rigghtss 207 7 ff.. In Boggoshhi 12 214 Hefe
H er JA A deeclarred:
“In ourr law w thee law
wfullnesss off a hharmmful act or omis
o ssion n is determ minedd by y thee appplicaationn off a gene
g eral crite
c erion n off
reassonaablennesss bassed on
o cons
c iderratio ons ofo faairneess, m
morralityy, poolicyy annd th
he Court
C t’s percep eptio on of
o thhe legal conv vic-
tionns off thee comm munitty. In
I acccorrdance withw thiss criiterion . . . it i is the taskk off thee Coourt to deter
d rminne inn eaach case
c
wheetherr puublicc annd leegall policyy req quirees thhe parti
p iculaar publi
p icatiion to be b regar
r rdedd ass law wfull . . . Acccorrdingly,
‘[w]]herre puublicc poolicyy so dem mandds, (the
( Couurt) would be entite tled to rreco ognisse new
n situuations in which
w h a ddefeend-
ant’’s coonduuct iin publiishinng defam
d mato ory matt
m ter isi laawfu ul’.” Seee alsso LLang ga v Hloophee 20009 4 SA A 3882 (SCA
( A) 396;3
SAU UK v O’Maalley 19777 3 SA A 3994 (A A) 402–
4 –4033; Arrguss Priintinng and a P Publishiing Co Ltd v In nkattha Free
F edom m Pa arty
19992 3 SA 5799 (A) 5888–5590; Maraiss v Richa R ard 19881 1 SA 11557 (A A) 1168 8; Unniveersityy off Preetoriia v Souuth A
Africcans
f the Abo
for A olitioon off Vivvisecctionn 20007 3 SA A 3995 (OO) 4499––401.
182 See in gene
g eral Neeethliing, Pottgietter anda Roo R os Neeth
Ne hling g on Perrsonnality ty Riightss 2117 fff; Brrandd 2017 LAW
L WSA 153 3 ff;
Vann derr Walt aand MidM dgleyy Deelictt 218 8 ff; Burrcheell P
Persoonallity Righ
R hts 2285 ff;
f Loub
L bser andd Miidgleey Delic D ct 4448 fff; cff
Faggan Und
U doingg Deelict 1766 ff.
183 See s 58(1)) (m memb berss of cabbinett and d thhe Natio
N onal Asssembbly)) andd s 71(1 1) (ddelegatees too thee Nationnal Couuncil off
Provvincces);; seee in gennerall Neeethlling, Pootgieeter andd Ro oos Neet
N thlinng oon Perso
P onallity Righ R hts 218;2 ; cf Pooovaliinga an v
Rajbbanssi 19992 1 SAS 283 2 (A).. See on n thee abbsoluute ppriviilegee off meembeers of
o prroviinciaal leegislaturres, s 117(1)) off the
Connstituution, 119966, annd on thhat oof munic
m cpall couunciil membber durin d ng ccoun ncil meeetinggs, s 28 of the t Loccal G Goveern-
M icipal Struccturees Act 117 of
mennt: Mun o 19998 (seee in ggeneeral Dikkoko v M Mokh hatlaa 20006 6 SA A 235 (CCC) 2455–2555).
184 Eg Ehm
E mke v Grruneewalld 19921 AD D 575 5 581; De
D Waal
W l v Zierv
Z vogeel 19938 A AD 1122 1211; Borgiin v De Villiers 19880 3 SA
5566 (A)) 5777; YYazb bek v Seeymoour 2001 3 SA 6955 (E E) 7001–7702; Nay J sen; Jannsen v Nayl
aylorr v Jans N lor 2006
2 63S SA 546
(SCCA) 554; NE EHA AWU T si 20006 6 SA
U v Tsats A 3227 (SCA
( A) 331;3 Kettler Inve
I estm mentss CC C t/aa Keetler Preesentatioons v Innter-
net Servvice Proovideers’’ Asssociaationn 20 014 2 SA A 5669 (G GJ) 591 (Marx in P Potgiieterr, Knnobeel annd Jaanseen (eeds) 3300).
185 Eg ther
t e is a legal dutyy to furnnish info ormaationn cooncerrninng ceertain crrimees (eg high treas
t son) to the t polic
p ce.
186 Eg De Waaal v Zieervoogel 19338 A AD 1122 1222–123; Mo oham med v Jassi
J iem 19996 1 SA A 6773 (A)( 710–711; B Byrn ne v
Massterss Sqquashh Prromotioons CC C 22010 0 1 SA 124 (GS SJ) 127; Kyyriaccou v Minis
M ster of o Safety
S ty an nd Secur
S rity 19999 3 SA
[conntinu
ued ]
408 Law of Delict
recognise the defence of qualified privilege between a newspaper and its readers. Although the
media has a duty to inform the public about certain matters, all readers of, for example, a
newspaper cannot be regarded as having a sufficient interest in the subject matter.188
If it is proved that both parties had a corresponding duty or interest (ie, that a privileged occasion
existed), then the defendant must further prove that he acted within the scope or limits of the
privilege. To do this, he must prove that the defamatory assertions were relevant to, or reason-
ably connected with the discharge of the duty or the furtherance of the interest.189 However, even
when the defendant has proved this, he still only enjoys provisional, in contrast to complete,
protection. The plaintiff may still show that the defendant in fact exceeded the limits of the
privilege because he acted with an improper motive (malice).190 191
(b) Judicial or quasi-judicial proceedings This category concerns defamatory statements
made during the course of judicial or quasi-judicial proceedings192 and applies to all partici-
pants193 therein. To enjoy provisional protection, the defendant need only prove that the
statements were relevant to the matter at issue.194 The plaintiff may then prove that, not-
withstanding their relevance, the statements were not supported by reasonable grounds.195 In the
absence of relevance or reasonable grounds, the defendant exceeds the limits of this privilege
________________________
278 (O) 289–290; O v O 1995 4 SA 482 (W) 486–488; Borgin v De Villiers 1980 3 SA 556 (A) 577; Vincent v
Long 1988 3 SA 45 (C) 47–48.
187 A particular relationship between the parties fulfils an important role with regard to this evaluation (Neethling,
Potgieter and Roos Neethling on Personality Rights 220 fn 195). Such relationships exist, eg, between a father and
his daughter with regard to the character of her fiancé (Fick v Watermeyer 1874 Buch 86); or between members of
a voluntary association with regard to the misconduct of one of the members (Kennel Union of Southern Africa v
Park 1981 1 SA 714 (C)); or between members of a church council (or even an ordinary member of the church and
members of the church council) with regard to the moral life of the minister (cf Ehmke v Grunewald 1921 AD 575;
De Waal v Ziervogel 1938 AD 112); or between a congregant and a priest concerning the sexual molestation of her
daughter by a family member (O v O 1995 4 SA 482 (W)); or between parents with regard to the competence of the
teacher who teaches their children (Jordaan v Van Biljon 1962 1 SA 286 (A)); or between employer and employee
with regard to the reasons for the employee’s dismissal (Byrne v Masters Squash Promotions CC 2010 1 SA 124
(GSJ) 127).
188 See Brand 2017 LAWSA 127; Neethling v Du Preez; Neethling v The Weekly Mail 1994 1 SA 708 (A) 777.
Nevertheless, in Neethling 780í781 broad propositions regarding the position of the media were made by Hoexter
JA (see Brand 2017 LAWSA para 127 fn 14 for a summary of these propositions; see also Neethling, Potgieter and
Roos Neethling on Personality Rights 220 fn 201).
189 Eg De Waal v Ziervogel 1938 AD 112 122; Borgin v De Villiers 1980 3 SA 556 (A) 578–579; Herselman v Botha
1994 1 SA 28 (A) 35–36; Naylor v Jansen; Jansen v Naylor 2006 3 SA 546 (SCA) 554; NEHAWU v Tsatsi 2006 6
SA 327 (SCA) 332; see in general Neethling, Potgieter and Roos Neethling on Personality Rights 221–222. Note
that even false statements may be regarded as relevant (Borgin v De Villiers 1980 3 SA 556 (A) 578–579;
Mohamed v Jassiem 1996 1 SA 673 (A) 710–711; Botha v Mthiyane 2002 1 SA 289 (W) 324–325; Yazbek v Sey-
mour 2001 3 SA 695 (E) 701–702; Baird v Pretorius 1996 2 SA 819 (O) 827; O v O 1995 4 SA 482 (W) 486–588;
McPhee v Hazelhurst 1989 4 SA 551 (N) 555 556–557; Naylor 555; NEHAWU 333; cf Vincent v Long 1988 3 SA
45 (C) 49. The inquiry into relevance is in essence a value judgement (NEHAWU at 332; Van der Berg v Coopers
& Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA) 254).
190 Eg Nydoo v Vengtas 1965 1 SA 1 (A) 21; Jordaan v Van Biljon 1962 1 SA 286 (A) 295–296; Tuch v Myerson 2010
2 SA 462 (SCA) 467–468; Jasat v Paruk 1983 4 SA 728 (N) 733; McPhee v Hazelhurst 1989 4 SA 551 (N) 555;
Botha v Mthiyane 2002 1 SA 289 (W) 327; Naylor v Jansen; Jansen v Naylor 2006 3 SA 546 (SCA) 555; cf
Couldridge v Eskom 1994 1 SA 91 (SE) 103–104 where improper motive was confused with animus iniuriandi.
191 Note that any motive that does not evolve from “a sense of duty or the desire to protect an interest” constitutes
malice (De Waal v Ziervogel 1938 AD 112 127). See in general concerning proof of a malicious motive, Neethling,
Potgieter and Roos Neethling on Personality Rights 222í223.
193 Eg witnesses, litigants, legal representatives (advocates and attorneys) and judicial officials (eg judges and
magistrates).
194 Eg Joubert v Venter 1985 1 SA 654 (A) 702 703–704; Hardaker v Phillips 2005 4 SA 515 (SCA) 525–526; Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA) 252–255; Zwiegelaar v Botha 1989 3 SA 351
(C) 356–359.
195 Ie, the evidence in or circumstances of the case (Joubert v Venter 1985 1 SA 654 (A) 702 704; May v Udwin 1981
1 SA 1 (A) 19–20; Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 1998 4 SA 890 (C) 907).
and acts wrongfully.196 If, however, it is found that the defendant’s assertions conform to these
two requirements, the plaintiff may nevertheless show that the defendant exceeded the limits
because he acted with an improper motive.197
(c) Privileged reports This category relates to defamation contained in the publication of the
proceedings of the courts, parliament and certain public bodies.198 To enjoy provisional
protection, the defendant must prove that the reporting was a fair and substantially accurate
account of the proceedings.199 However, as in the case of the previous two categories of
privilege, the provisional protection will fall away in this case if the plaintiff proves that the
defendant acted with an improper motive.200
3.2.2.3.2 Truth and public interest

The prima facie wrongfulness of the defendant’s conduct will be cancelled if he proves that the
defamatory remarks were true and in the public interest.201 The defendant need only prove that
the remarks are substantially – and not literally – true, ie, that the sting of the charge is true.202
What is in the public interest203 will depend on the convictions of the community (boni mores),
and in this regard “the time, the manner and the occasion of the publication” play an important
role.204 Past transgressions should, for example, not be raked up after a long lapse of time.205
________________________
196 The requirements of relevance and reasonable grounds do not apply to the defamatory remarks of the judicial
official. He exceeds the limits of the privilege only if he acts with malice in the execution of his functions (May v
Udwin 1981 1 SA 1 (A) 19–20).
197 Eg Joubert v Venter 1985 1 SA 654 (A) 702 704; Hardaker v Phillips 2005 4 SA 515 (SCA) 527; Van der Berg v
Coopers & Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA) 252; Zwiegelaar v Botha 1989 3 SA 351 (C) 356 358–
359. In Black v Joffe 2007 3 SA 171 (C) Dlodlo J held that a witness who gave evidence with malice, can incur
Aquilian liability for patrimonial loss against the unsuccessful litigant (for critical discussions see Scott 2007 TSAR
800 ff; Neethling 2008 THRHR 316 ff).
199 Eg De Flamingh v Pakendorf; De Flamingh v Lake 1979 3 SA 676 (T) 682; Argus Printing and Publishing Co Ltd
v Anastassiades 1954 1 SA 72 (W) 74. See further Neethling, Potgieter and Roos Neethling on Personality Rights
225–226 in respect of the principles that have already crystallised in this regard.
200 Eg Argus Printing and Publishing Co Ltd v Anastassiades 1954 1 SA 72 (W) 75.
201 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 226–229; Brand 2017 LAWSA 151–
152; Burchell Defanation 206 ff, Personality Rights 272–275; cf Fagan Undoing Delict 169 ff; see also Modiri v
Minister of Safety and Security 2011 6 SA 370 (SCA) 376–380; Manuel v Economic Freedom Fighters, Ndlozi and
Malema 2019 5 SA 210 (GJ) paras 54í56 (Neethling 2019 (2) LitNet Akademies 659í660); Gold Reef City Theme
Park (Pty) Ltd; Akane Egoli (Pty) Ltd v Electronic Media Network Ltd 2011 3 SA 208 (GSJ) 224–226; Du Plessis v
Media 24 t/a Daily Sun 2016 3 SA 178 (GP) 186–187; Media 24 Limited v Du Plessis (127/2016) [2017] ZASCA
33 (29 March 2017) para 22; Mostert v Nash [2018] 4 All SA 267 (GJ) paras 76–77; Yazbek v Seymour 2001 3 SA
695 (E) 701; Heroldt v Wills 2013 2 SA 530 (GSJ) 542; South African National Defence Union v Minister of
Defence 2012 4 SA 382 (GNP) 398; Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’
Association 2014 2 SA 569 (GJ) 583 ff (Marx in Potgieter, Knobel and Jansen (eds) 328–330).
202 Eg Smit v OVS Afrikaanse Pers Bpk 1956 1 SA 768 (O) 772–774; Johnson v Rand Daily Mails 1928 AD 190 205–
207; Kemp v Republican Press (Pty) Ltd 1994 4 SA 261 (E) 264–265; Manuel v Economic Freedom Fighters,
Ndlozi and Malema 2019 5 SA 210 (GJ) para 54; Waldis v Von Ulmenstein 2017 4 SA 503 (WCC) 513; see also
Loubser 2003 Stell LR 364 ff.
203 The term “public interest” is not so easy to define as it clearly constitutes a vague, uncertain and changing concept
(Burchell Defamation 210 214; cf also Modiri v Minister of Safety and Security 2011 6 SA 370 (SCA) 378–379;
Heroldt v Wills 2013 2 SA 530 (GSJ) 542; Tshabalala-Msimang v Makhanya 2008 6 SA 102 (W) 117). Sometimes
the term “public benefit” is used instead of public interest, but it seems that the concept of public benefit in the
sense that the public must benefit from it, can be interpreted too restrictively and that public interest is therefore to
be preferred (see Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association 2014 2
SA 569 (GJ) 585 (for criticism, see Marx in Potgieter, Knobel and Jansen (eds) 323 ff); Mahomed v Kassim 1973 2
SA 1 (RA) 10; cf Burchell Defamation 212–214; Van der Walt and Midgley Delict 215; Loubser and Midgley
Delict 441). The last two authors nevertheless opine that both phrases are intended to convey the notion of public
concern because it is important or relevant and that the public should be made aware of the information. See also
Neethling 2014 THRHR 109–110.
204 Patterson v Engelenburg and Wallach’s Ltd 1917 TPD 350 361. In Modiri v Minister of Safety and Security 2011 6
SA 370 (SCA) 376–380 the court emphasised that whether a statement was in the public interest, will depend on
[continued ]
410 Law of Delict
Character assassination should also not be committed for the mere sake of making a profit.206
Whether members of the public have an interest in the publication of defamatory facts of which
they are already aware will depend on the time, manner and occasion of publication.207 Unlike
the case of privilege,208 the limits of this defence are not exceeded if the defendant acted with
malice.209
3.2.2.3.3 Media privilege (reasonable publication of untruth)

This ground of justification concerns the reasonable publication of false or untrue defamatory
statements by the media.210 Because media privilege211 deals with the publication of untruths,212
this defence must be applied with caution.213 When determining the reasonableness of
publication, the legal convictions (boni mores) of the community of our country must be applied.
Several factors, that are not meant to be complete or decisive, can be considered in this
regard:214 the public interest, and not merely public interestedness (or inquisitiveness) in the
matter; the fact that the person is a polititian (public figure) who courted public attention and
________________________
the circumstances before it which may vary infinitely, and that courts should not restrict themselves to existing
rules or guidelines. Cf Independent Newspapers Holdings Limited v Suliman [2004] 3 All SA 137 (SCA) para 47;
see however Neethling 2014 THRHR 111–112.
205 Graham v Ker (1892) 9 SC 185 187; Kemp v Republican Press (Pty) Ltd 1994 4 SA 261 (E) 265–266.
206 Kemp v Republican Press (Pty) Ltd 1994 4 SA 261 (E) 266.
207 Allie v Foodworld Stores Distribution Centre (Pty) Ltd 2004 2 SA 433 (SCA) 445; Burchell Defamation 212–213;
contra Mahomed v Kassim 1973 2 SA 1 (RA) 9–10.
208 Supra 407–409.
209 Schourie v Afrikaanse Pers Publikasies 1966 1 PH J1 (W).
210 See National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1211–1213; Khumalo v Holomisa 2002 5 SA 401
(CC) 414–415; Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 349 ff; Manuel v Economic
Freedom Fighters, Ndlozi and Malema 2019 5 SA 210 (GJ) paras 61í64 (Neethling 2019 (2) LitNet Akademies
660); Malema v Rampede 2011 5 SA 631 (GSJ) 636; Sayed v Editor, Cape Times 2004 1 SA 58 (C) 61–62; Lieber-
thal v Primedia Broadcasting (Pty) Ltd 2003 5 SA 39 (W) 44–45; see also Neethling, Potgieter and Roos Neethling
on Personality Rights 229–231; Brand 2017 LAWSA 163; Van der Walt and Midgley Delict 221–222; Loubser and
Midgley Delict 452í454; Burchell Personality Rights 210 ff, 1999 SALJ 1 ff, in Potgieter, Knobel and Jansen (eds)
114 ff; Neethling 2007 CILSA 103 ff, 2005 THRHR 323–325, 1999 (2) TRW 109–113, 2002 SALJ 700 ff; Neethling
and Potgieter 1999 THRHR 444–447; Midgley 1999 SALJ 217–221. Brand JA’s remark in Modiri v Minister of
Safety and Security 2011 6 SA 370 (SCA) 379 that “a defamatory publication which is untrue or only partly true
can never be in the public interest, end of story” is therefore subject to criticism (see Neethling 2014 THRHR 111).
211 On the name “media privilege”, see Neethling, Potgieter and Roos Neethling on Personality Rights 229 fn 289.
Van der Walt and Midgley Delict 222–224 call the defence “public interest privilege”.
212 It is submitted that this defence should not be applied where the defamatory allegations made by the mass media
are substantially true, as seemed to be the case in both Sayed v Editor, Cape Times 2004 1 SA 58 (C) and Kgothule
v Majonga 2015 6 SA 389 (FB) 399. The appropriate defence is then rather truth and public interest. To apply the
Bogoshi defence generally to any instance of alleged defamatory statements is unacceptable because it will blur the
distinction between the recognised grounds of justification for defamation and lead to uncertainty. See however
213 As a rule, media reports should therefore be accurate and fair, and it must be borne in mind that untrue speech is
more readily dominated by contrary interests than true speech (Hamata v Chairperson, Peninsula Technikon Inter-
nal Disciplinary Committee 2000 4 SA 621 (C) 632). In National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA)
1212 Hefer AR formulates it as follows: “Ultimately there can be no justification for the publication of untruths,
and members of the press should not be given the impression that they have a license to lower the standards of care
which must be observed before defamatory matter is published in a newspaper.” See also Khumalo v Holomisa
2002 5 SA 401 (CC) 424; Manuel v Economic Freedom Fighters, Ndlozi and Malema 2019 5 SA 210 (GJ) paras
61í64; Lieberthal v Primedia Broadcasting (Pty) Ltd 2003 5 SA 39 (W) 50; Du Plessis v Media 24 t/a Daily Sun
2016 3 SA 178 (GP) 186–187; Neethling 2002 SALJ 708.
214 See National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1211–1213; Media 24 Limited v Du Plessis (127/2016)
[2017] ZASCA 33 (29 March 2017) paras 23í31; Gold Reef City Theme Park (Pty) Ltd; Akane Egoli (Pty) Ltd v
Electronic Media Network Ltd 2011 3 SA 208 (GSJ) 226–227; Khumalo v Holomisa 2002 5 SA 401 (CC) 414–415;
Sayed v Editor, Cape Times 2004 1 SA 58 (C) 61–62; Lieberthal v Primedia Broadcasting (Pty) Ltd 2003 5 SA 39
(W) 44–45; Marais v Groenewald 2001 1 SA 634 (T) 644–645; especially Midgley 1999 SALJ 218–219 for a thor-
ough exposition.
controversy;215 the nature,216 extent and tone217 of the allegations; the nature of the information
upon which the allegations were based; the nature of the mass medium used – television is
usually more far-reaching than the written word; the extent of distribution and the sector of the
public at which the publication is aimed; the reliability of the information; steps taken to verify
the information; the extent to which other material supports the allegations at the time of
publication; the opportunity given to the relevant person to react to the allegations; the necessity
or urgency to publish before the truth can be positively verified; the possibility that the same
objective could be reached in a less harmful manner; and, it must be added, the presence of a
malicious motive.
3.2.2.3.4 Political privilege
This defence is analogous to media privilege218 and entails the reasonable publication of (false or
untrue) defamatory allegations on the political terrain.219 The factors that can play a part here in
determining the reasonableness (or otherwise) of publication220 agree with those applicable to
media privilege, with one exception, ie that the publication must be made “with the reasonable
belief that the statements made are true”.221
3.2.2.3.5 Fair comment
The prima facie wrongfulness of a defamatory publication may further be set aside if the defend-
ant proves that the defamation forms part of a fair comment on facts that are true and in the
public interest.222 Thus there are four requirements:223
________________________
215 Malema v Rampede 2011 5 SA 631 (GSJ) 634–635; also see Neethling 2014 THRHR 112–113.
216 Greater latitude is usually allowed in the case of political discussion.
217 The tone in which an article is written, sometimes contains an additional and unnecessary sting.
218 Supra.
219 See Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 252 ff 356–358; Neethling 2005 THRHR
327–328. Before the decision in Mthembi-Mahanyele, the courts gave political reporters and speakers more latitude
and did not readily come to the conclusion that words were prima facie wrongful (see, eg, National Media Ltd v
Bogoshi 1998 4 SA 1196 (SCA) 1212 1217; Minister of Justice v SA Associated Newspapers Ltd 1979 3 SA 466
(C) 475; Marais v Groenewald 2001 1 SA 634 (T) 648; Selemela v Independent Newspaper Group Ltd 2001 4 SA
987 (NC) 1001; Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) 588; see also
Van der Merwe and Olivier 398; Neethling, Potgieter and Roos Neethling on Personality Rights 211 213í214).
This view was supported by the right to freedom of expression of the media under the Constitution, 1996 s 16.
Nevertheless political commentary also had its boundaries. In terms of Mthembi-Mahanyele the approach is now
quite different. To determine prima facie wrongfulness, political commentary is subjected to the ordinary reason-
able person test (supra 402–403) without giving the political commentator greater latitude. Once wrongfulness has
been established, political privilege can be raised as a defence where such latitude is allowed (Neethling, Potgieter
and Roos Neethling on Personality Rights 214 fn 141).
220 Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 356–358; see also Van der Walt and Midgley
Delict 222.
221 Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 356; Neethling 2005 THRHR 328. The creation
of a new defence is questionable (see also Neethling 2005 THRHR 328–329; Neethling, Potgieter and Roos Neeth-
ling on Personality Rights 232 fn 312; Milo 2005 SALJ 35–39). The defence of media privilege (supra 410) is cer-
tainly wide enough to also cover the political field. Indeed, in National Media Ltd v Bogoshi 1998 4 SA 1196
(SCA) 1211–1213 the fact that “greater latitude is usually allowed in respect of political discussion” (supra fn 216),
is expressly mentioned as one of the factors considered by a court in determining the reasonableness or otherwise
of an untrue publication. With one exception, the factors mentioned in Mthembi-Mahanyele 356–358 do not deviate
from the other factors that can play a part in the case of media privilege. The only additional factor, viz that the
publication must be made in a reasonable belief that the defamatory statement is true, should in any case not be rel-
evant to the inquiry into wrongfulness, but rather in respect of the inquiry into negligence (see Neethling 2005
THRHR 326–327). Viewed in this way, a special defence of political privilege is in principle unnecessary. The
minority judgment of Mthiyane JA in Mthembi-Mahanyele 371–371 accordingly deserves support.
222 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 232–234; Van der Walt and Midgley
Delict 216–217; Burchell Personality Rights 277 ff; Loubser and Midgley Delict 443 ff; cf Fagan Undoing Delict
173 ff.
223 Eg Marais v Richard 1981 1 SA 1157 (A) 1167–1168; Johnson v Beckett 1992 1 SA 762 (A) 778–779; Delta
Motor Corporation (Pty) Ltd v Van der Merwe 2004 6 SA 185 (SCA) 193–195; Hardaker v Phillips 2005 4 SA 515
(SCA) 528; The Citizen 1978 (Pty) Ltd v McBride 2010 4 SA 148 (SCA) 159; Heroldt v Wills 2013 2 SA 530 (GSJ)
[continued ]
412 Law of Delict
(a) The defamation must amount to comment and not to the assertion of an independent fact.
The test is that of the reasonable person.224
(b) The comment must be fair. What is fair is in general ascertained by reference to the
convictions of the community (boni mores).225 In particular, the comment must be relevant to
the facts involved and convey the honest and bona fide opinion of the defendant, no matter how
critical, exagerated, biased, ill-considered or unbalanced it is.226 If relevance and honesty are
present, the plaintiff may nevertheless prove that the defendant exceeded the limits of the
defence by reason of his improper motives.227
(c) The facts on which the comment is based must be substantially true.228
(d) These facts must be in the public interest.229
3.2.2.3.6 Private defence, provocation and consent230

3.2.2.3.7 Reasonable suspicion of shoplifting
It is trite that our law does not have a numerus clausus grounds of justification; new grounds
may be developed in accordance with the general criterion of reasonableness based on the legal
convictions of the community.231 Such a new ground of justification has indeed been developed
by Spilg J in Pieterse v Clicks Group Ltd.232 The court held that where a person is accused of
shoplifting, the accusation, depending on the circumstances, may be defamatory of and/or
insulting to that person; if so the accusation is prima facie wrongful and raises the presumption
of wrongfulness, which may be rebutted by the defence that the accusation was made on the
________________________
543; African National Congress v Democratic Alliance 2014 3 SA 608 (GJ) paras 45–46; African National Con-
gress v Democratic Alliance 2014 5 SA 44 (EC) para 18; cf Democratic Alliance v African National Congress 2015
3 BCLR 298 (CC) paras 64 ff; cf Moyse v Mujuru 1999 3 SA 39 (ZS) 47–49.
224 Ibid; The Citizen 1978 (Pty) Ltd v McBride 2010 4 SA 148 (SCA) 165; Waldis v Von Ulmenstein 2017 4 SA 503
(WCC) 513; Heard v Times Media Ltd 1993 2 SA 472 (C).
225 Ibid.
226 See Hardaker v Phillips 2005 4 SA 515 (SCA) 529–530; Delta Motor Corporation (Pty) Ltd v Van der Merwe
2004 6 SA 185 (SCA) 194; Crawford v Albu 1917 AD 102 115; Johnson v Beckett 1992 1 SA 762 (A) 780–781;
African National Congress v Democratic Alliance 2014 3 SA 608 (GJ) 620–621; Mostert v Nash [2018] 4 All SA
267 (GJ) paras 73–74. With regard to these cases where the comment can hardly be described as “fair”, Cameron J
concluded his discussion in The Citizen 1978 v McBride 2011 4 SA 191 (CC) 217í219 on this topic by stating:
“Perhaps it would be clearer, and helpful in the understanding of the law, if the defence were known rather as “pro-
tected comment” (see also ANC v DA 620–621; Brand 2017 LAWSA 161; Neethling, Potgieter and Roos Neethling
on Personality Rights 233; Burchell in Potgieter, Knobel and Jansen (eds) 116). In Manuel v Economic Freedom
Fighters, Ndlozi and Malema 2019 5 SA 210 (GJ) paras 72í75 the court accepted this approach (see Neethling
2019 (2) LitNet Akademies 660í661).
227 Marais v Richard 1981 1 SA 1157 (A) 1170. This also applies to a judge as plaintiff (see Esselen v Argus Printing
and Publishing Co Ltd 1992 3 SA 764 (T) 772–773).
228 See Brand 2017 LAWSA 161; Waldis v Von Ulmenstein 2017 4 SA 503 (WCC) 514; African National Congress v
Democratic Alliance 2014 3 SA 608 (GJ) 620.
229 Marais v Richard 1981 1 SA 1157 (A) 1167; Crawford v Albu 1917 AD 102 114; Waldis v Von Ulmenstein 2017 4
SA 503 (WCC) 514; cf Burchell Delict 178. In The Citizen 1978 (Pty) Ltd v McBride 2011 4 SA 191 (CC) (see
De Klerk 2011 De Jure 447 ff; Buthelezi 2011 De Jure 489 ff) the plaintiff (M) had a previous conviction for mur-
der which was expunged in terms of s 20(10) of the Promotion of National Unity and Reconciliation Act 34 of
1995. The court had to deal with, inter alia, the effect of the expungement on an alleged defamatory statement that
M was a convicted murderer. The judge (223) found that the Act did not render it untrue that M committed murder,
that it did not prohibit frank public discussion of his act as “murder”, nor him being described as a “criminal”.
However, this does not mean that M can forever and a day be called a murderer because the law of defamation pro-
tects his right to dignity and reputation. In casu the defence of fair comment was upheld, contrary to the SCA’s
decision in The Citizen 1978 (Pty) Ltd v McBride 2010 4 SA 148 (SCA). See further Neethling, Potgieter and Roos
Neethling on Personality Rights 235 fn 339.
230 See as to these grounds of justification generally supra 108 ff 127–128 128 ff, and in particular with regard to their
applicability to defamation, Neethling, Potgieter and Roos Neethling on Personality Rights 235–327.
231 See supra 107 406–407 fn 181.
232 2015 5 SA 317 (GJ); see Neethling and Potgieter 2018 THRHR 141 ff for a full discussion of this case.
ground that there was a reasonable suspicion that the person is guilty of shoplifting.233 In this
respect the right of the victim of shoplifting not to be deprived of property must be weighed
against the accused shoplifter’s rights to reputation, dignity, freedom and security of the person
and privacy. Where the defendant had a reasonable suspicion of shoplifting, his conduct towards
a suspected shoplifter must still be reasonable. If not, the defendant will exceed the bounds of
his ground of justification and his conduct will be branded as wrongful.
3.2.2.4 Fault
3.2.2.4.1 Animus iniuriandi
Initially, through the infiltration and acceptance of English law terminology at first, and later
also the principles of the English law of defamation, our courts234 incorrectly undermined
animus iniuriandi as a material requirement for defamation. However, from the beginning of the
1960s, the attitude of the courts began to change. The process started with the decision in Maisel
v Van Naeren235 and in its footsteps followed the well-known trilogy of the Appellate
Division.236 Today animus iniuriandi is, with a few exceptions,237 accepted as an essential
requirement for defamation.238 Negligence is as a rule therefore insufficient to render the
wrongdoer liable.239
Animus iniuriandi or the intent to defame means “the mental disposition to will the relevant
consequences, with the knowledge that the consequence will be wrongful”.240 If one of these
elements, ie, direction of the will and consciousness of wrongfulness, is absent, there is no
question of intent to defame.241 It is important to note that although the plaintiff must expressly
aver the existence of animus iniuriandi in his pleadings, he need not prove intent on the part of
the defendant. If it is certain that the publication is defamatory and that it relates to the plaintiff,
________________________
233 Also see Neethling, Potgieter and Roos Neethling on Personality Rights 238 for details.
234 Firstly, it was accepted that the plaintiff only had to prove that defamatory words concerning him were published.
As in English law, publication was thus the “gist of the action”. Secondly, it was accepted, again as in English law,
that the defendant could only escape liability by proving the existence of one of a closed number of defences. The
logical consequence of this view was that animus iniuriandi was no longer an essential requirement for defamation
and thus became a “hollow fiction” (Neethling, Potgieter and Roos Neethling on Personality Rights 239 fn 378).
235 1960 4 SA 836 (C).
236 Jordaan v Van Biljon 1962 1 SA 286 (A) 294–296; Graig v Voortrekkerpers Bpk 1963 1 SA 149 (A) 156–157;
Nydoo v Vengtas 1965 1 SA 1 (A) 13 20–21.
237 See infra 415.
238 Eg Moaki v Reckitt and Colman (Africa) Ltd 1968 3 SA 98 (A) 105; SAUK v O’Malley 1977 3 SA 394 (A) 401–
403 409; Hardaker v Phillips 2005 4 SA 515 (SCA) 524; Marais v Richard 1981 1 SA 1157 (A) 1166–1167;
Couldridge v Eskom 1994 1 SA 91 (SE) 103–105; McNally v M & G Media (Pty) Ltd 1997 4 SA 267 (W) 273;
Sayed v Editor, Cape Times 2004 1 SA 58 (C) 61–62; Kyriacou v Minister of Safety and Security 1999 3 SA 278
(O) 288–289 290–291; Majolica Pottery (Venda) (Pty) Ltd v Barrow & Coetzee 1999 1 SA 1166 (C) 1177–1181; cf
Marais v Groenewald 2001 1 SA 634 (T) 645; Burchell Personality Rights 303 ff.
239 SAUK v O’Malley 1977 3 SA 394 (A) 407; Marais v Groenewald 2001 1 SA 634 (T) 644. See, however, infra 415.
240 SAUK v O’Malley 1977 3 SA 394 (A) 403 (translation); Marais v Groenewald 2001 1 SA 634 (T) 644–645;
Pieterse v Clicks Group Ltd 2015 5 SA 317 (GJ) 338-339; Loubser and Midgley Delict 435–436. See also Le Roux
v Dey 2011 3 SA 274 (CC) 317–319 where the court fortunately did not confirm the viewpoint of the SCA in
Le Roux v Dey 2010 4 SA 210 (SCA) 219 ff that consciousness of wrongfulness should not be part of our law. See
Neethling 2010 Obiter 702 ff for a full discussion of the SCA’s decision; see also Neethling, Potgieter and Roos
Neethling on Personality Rights 85 fn 289; cf Knobel 2012 THRHR 484 ff.
241 In Modiri v Minister of Safety and Security 2011 6 SA 370 (SCA) 375 the court accepted that intent to injure must
be regarded as being established before turning to the element of wrongfulness, where it found that the defamation
was justified by truth and public interest. It is questionable whether this approach is appropriate because intent can
only be present if the defendants subjectively also had consciousness of wrongfulness, and this can only be the case
if the wrongfulness of the conduct had already been established in order for them to be aware thereof. Since wrong-
fulness was found to be absent in casu, the defendants obviously could not have had intent (see Neethling 2014
THRHR 110).
414 Law of Delict
there is, apart from the presumption of wrongfulness,242 also a presumption that the defamation
was committed intentionally. Thus the burden of rebutting the presumption is placed on the
defendant.243 This he may do by producing evidence which shows that either direction of the
will or consciousness of wrongfulness, or both, as essential elements of intent, are lacking on his
part;244 in other words that a ground excluding intent is present. Two of these grounds merit
closer attention: mistake and jest.
3.2.2.4.2 Grounds excluding intent
(a) Mistake245 If a person is unaware of the wrongfulness of his defamatory publication
because, for whatever reason, he bona fide thinks or believes that his conduct is lawful,246
consciousness of wrongfulness, which is an essential element of intent,247 and therefore also
intent, are absent as a result of his mistake.248 His mistake therefore rebuts the presumption of
animus iniuriandi and in this way becomes a ground excluding intent.249
The question of whether the defendant erred must, as in all cases where intent is required, be
determined subjectively.250 This means that the decisions which require absence of negligence or
reasonableness as a qualification for the defence of mistake to succeed are incorrect.251 In the
case of an unreasonable mistake, the defendant is held liable on the ground of his negligence.252
________________________
242 Supra 405.

243 The presumption of wrongfulness places a full onus of proof on the defendant (see Neethling v Du Preez; Neethling
v The Weekly Mail 1994 1 SA 708 (A) 767–769; supra fn 175), and it appears that the defendant now also bears a
full onus to rebut the presumption of animus iniuriandi (see the cases cited supra fn 175). For this reason, the
judgment in Raliphaswa v Mugivhi [2008] 3 All SA 92 (SCA) 96 is probably incorrect in placing only an eviden-
tiary burden on the defendant to rebut the presumption of animus iniuriandi. It must be noted that previously the
courts assumed incorrectly that all defences – thus also grounds of justification – rebut the presumption of animus
iniuriandi (see Van der Merwe and Olivier 403–407). However, the Appellate Division now correctly differentiates
between grounds that exclude fault and grounds of justification, and it is accepted that the latter rebut the presump-
tion of wrongfulness and not that of fault (see Neethling; SAUK v O’Malley 1977 3 SA 394 (A) 401–403; Borgin v
De Villiers 1980 3 SA 556 (A) 571; May v Udwin 1981 1 SA 1 (A) 10; Marais v Richard 1981 1 SA 1157 (A)
1166–1167; Herselman v Botha 1994 1 SA 28 (A) 35)). See further Neethling, Potgieter and Roos Neethling on
Personality Rights 240 fn 392; Burchell in Potgieter, Knobel and Jansen (eds) 116–118; fn 178 supra and the cases
referred to there.
244 Eg SAUK v O’Malley 1977 3 SA 394 (A) 403 409; see also Neethling, Potgieter and Roos Neethling on Personality
Rights 241 fn 394.
245 See in general on this defence Neethling, Potgieter and Roos Neethling on Personality Rights 241í242; Burchell
166; Brand 2017 LAWSA 164–165; Van der Walt and Midgley Delict 233í34; Loubser and Midgley Delict
435í436.
246 Eg where he is under the impression that there is a ground of justification for his defamatory publication. Such a
case came before the court in Maisel v Van Naeren 1960 4 SA 836 (C). The defendant, a flat-dweller, had written a
letter to the chairman of the Rents Board in which he complained that the plaintiff, who lived in the same block of
flats, was a nuisance. The defendant was under the false impression that he was, in terms of the Rents Act, entitled
to write such a letter. Had the flat building concerned been subject to the provisions of the Rents Act, this would
indeed have been a privileged occasion. The judge correctly decided that, according to the principles of Roman-
Dutch law, the defendant’s mistake rebutted the presumption of animus iniuriandi.
247 As pointed out (supra fn 240), in Le Roux v Dey 2010 4 SA 210 (SCA) Harms JA incorrectly held that knowledge
of wrongfulness is no longer part of our law, but fortunately in Le Roux v Dey 2011 3 SA 274 (CC) the matter was
expressly left open by the CC (cf Burchell in Potgieter, Knobel and Jansen (eds) 119, also for a proposal on how the
SCA’s decision in Le Roux should be approached if the matter of knowledge of unlawfulness again arises for decision).
248 Eg Maisel v Van Naeren 1960 4 SA 836 (C) 840 850–851; Nydoo v Vengtas 1965 1 SA 1 (A) 15; see also Minister
of Safety and Security v Kyriacou 2000 4 SA 337 (O) 341–342; cf however Neethling, Potgieter and Roos Neeth-
ling on Personality Rights 241 fn 400.
249 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 241.
250 Supra 159 ff.
251 In, eg, Hassen v Post Newspapers (Pty) Ltd 1965 3 SA 562 (W) the defendant mistakenly published a photograph
of the plaintiff instead of that of a notorious prisoner. Colman J accepted that animus iniuriandi is a requirement for
defamation and that a mistake in principle excludes animus iniuriandi. He was, however, of the opinion that mis-
take may only be accepted as a defence if the mistake was reasonable or not attributable to negligence. He found
that in casu the defendants were negligent, that they therefore could not rely on mistake and that they were liable.
[continued ]
(b) Jest253 If the defendant proves that he published the defamatory words in jest, in
circumstances where his will 254 was not directed at the infringement of the prejudiced person’s
right to good name, directing of the will as essential requirement of intent is absent and he
should be able to rebut the presumption of animus iniuriandi.
The courts, however, do not follow this approach. For a successful plea of jest, the courts require
that the (reasonable) bystander should also have regarded the words as a joke.255 If that is indeed
the case, the defendant is not liable; if not, the defendant is held liable, evidently irrespective of
the actual absence or presence of animus iniuriandi.
3.2.2.4.3 Negligence
Although animus iniuriandi is traditionally required for defamation, negligence has, over the
course of time, been accepted as the fault requirement for certain forms of defamation.256 In the
first place, liability based upon negligence has been recognised for distributors and sellers of
printed matter (for example, newpapers and magazines) containing defamatory matter.257
Secondly, there are judgments on the liability of the press for defamation recognising non-
intentional but negligent mistake as ground for liability.258 Thirdly, a general principle was
introduced in National Media Ltd v Bogoshi259 that negligence is sufficient for defamation by the
mass media.260 Finally, there is case law that wants negligence recognised for all instances of
actionable defamation, and not only in respect of the mass media.261
________________________
In this way the court incorrectly denied the subjective nature of the concept of intent since mistake, reasonable or
not, definitely excludes intent (cf however Neethling, Potgieter and Roos Neethling on Personality Rights 242 fn
407; Burchell in Potgieter, Knobel and Jansen (eds) 117). One may nevertheless agree with the result of this case in
light of the decision in National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1211 1214 (infra 415), where negli-
gence was recognised as the basis of the liability of the press for defamation.
252 SAUK v O’Malley 1977 3 SA 394 (A) 405–407; cf however National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA);
infra fn 260.
253 See generally on this Burchell Defamation 285–286; Brand 2017 LAWSA 164. Neethling, Potgieter and Roos
Neethling on Personality Rights 243í244; Van der Walt and Midgley Delict 234; Loubser and Midgley Delict 152.
254 Not even in the form of dolus indirectus or dolus eventualis (cf Van der Merwe and Olivier 438).
255 Eg Masch v Leask 1916 TPD 114 116 117. In Le Roux v Dey 2011 3 SA 274 (CC) 308 ff 314 the court held that a
reasonable observer would accept that jokes about teachers by their learners must not be taken too seriously, but
there is a line that may not be crossed because teachers are also entitled to the protection of their dignity and reputa-
tion. This will be the case where the joke belittled and reduced the plaintiff to ridicule; cf also Le Roux v Dey 2010
4 SA 210 (SCA) 224–225. See further Neethling, Potgieter and Roos Neethling on Personality Rights 243 fn 413;
Neethling and Potgieter 2011 Obiter 723–724.
256 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 88í89 244–246.
257 See, eg, Wilson v Halle 1903 TH 178 201; Trimble v Central News Agency Ltd 1933 WLD 88 91–92 (1934 AD 43
48); SAUK v O’Malley 1977 3 SA 394 (A) 407; see also Burchell Personality Rights 315–316.
258 Eg Hassen v Post Newspapers (Pty) Ltd 1965 3 SA 562 (W) 576 (supra fn 251); cf also Vorster v Strydpers Bpk
1973 3 SA 482 (T) 486–487 (Burchell Personality Rights 316–320).
259 1998 4 SA 1196 (SCA) 1210–1211; see also Khumalo v Holomisa 2002 5 SA 401 (CC) 415–416; Mthembi-
Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 349–350; Wells v Atoll Media (Pty) Ltd [2010] 4 All SA
548 (WCC) par 35–37; Neethling 2005 THRHR 325–326; Neethling, Potgieter and Roos Neethling on Personality
Rights 345; Burchell in Potgieter, Knobel and Jansen (eds) 114 ff; cf however Le Roux v Dey 2010 4 SA 210 (SCA)
223–224.
260 Before this change the courts followed a different approach, under influence of the English law, and replaced
animus iniuriandi with strict liability (see Pakendorf v De Flamingh 1982 3 SA 146 (A) 156–158; Williams v
Van der Merwe 1994 2 SA 60 (E) 63; Neethling, Potgieter and Roos Neethling on Personality Rights 244 fn 423).
In National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) 1210–1211 the court made a radical change, finding that
adoption of strict liability was clearly wrong, inter alia, because it was in conflict with the democratic imperative
that the public interest is best served by a free flow of information, and the role fulfilled by the mass media in this
respect. However, the court was not prepared to return to the common law position of liability based upon the ani-
mus iniuriandi, because it would then be too easy for the mass media to raise the absence of consciousness of
wrongfulness as a defence. Consequently the court decided to recognise negligence as the base of liability of the
mass media for defamation (Bogoshi 1214; see also Marais v Groenewald 2001 1 SA 634 (T) 644–646; Neethling
2005 THRHR 326; Burchell in Potgieter, Knobel and Jansen (eds) 115 ff who advances the argument that Bogoshi
estabilished both the defence of “reasonable publication” and the negligence fault criterion for defamation by the
[continued ]
416 Law of Delict
3.3 Malicious prosecution

In Roman law it was regarded an iniuria to summon someone before the courts vexandi
causa.262 The actio iniuriarum was available to a person acquitted of a criminal charge instituted
by someone with an improper motive. As a result of the influence of Germanic views,
uncertainty arose in Roman-Dutch law with regard to the nature and requirements for malicious
prosecution as an iniuria.263 As a result of this uncertainty, our case law initially took over the
English law of malicious prosecution almost holus-bolus. At present, the following requirements
must be met before a plaintiff may succeed with an action on the ground of malicious
prosecution:264 (a) the defendant must have instigated the proceedings; (b) the defendant must
have acted without reasonable and probable cause; (c) the defendant must have acted animo
iniuriandi; and (d) the prosecution must have failed.
(a) Instigation Since criminal proceedings are instituted mainly by the state, it is extremely
difficult to determine whether a defendant’s conduct complies with the requirement of
instigation. There are, however, practical criteria which have been developed by the courts to
assist in
________________________
media; however, see Van der Walt and Midgley Delict 230–232 where they (see further Midgley in Boezaart and
De Kock (eds) 185–199; cf Loubser and Midgley Delict 436), notwithstanding the unambiguous declaration in
Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) 350 that “the form of fault in defamation
actions against the press is negligence rather than intention to harm”, still maintain that intent (in “an attenuated
form”) is required). Liability based upon negligence deserves support because it effects a better balance between
the right to good name and the right to freedom of expression in this area of the law; moreover, it is in accordance
with the values underpinning the constitutional Bill of Rights (see Marais v Groenewald 2001 1 SA 634 (T) 646;
for details see Neethling, Potgieter and Roos Neethling on Personality Rights 245 fn 427; cf Knobel 2012 THRHR
484 ff). The opinion of Harms DP in Le Roux v Dey 2010 4 SA 210 (SCA) 223–224 that negligence, at least as far
as the media is concerned, should disappear from the picture and be replaced by the intention to injure, cannot be
supported. As seen, the negligence liability of the media which was adopted in Bogoshi was not only generally con-
firmed in subsequent case law but also, most significantly, by the CC in Khumalo v Holomisa 2002 5 SA 401 (CC)
415–416. Consequently, Harms DP’s decision regarding the media is not authoritative. Due to considerations of
policy, practice and equity, the onus of proof is on the media to show that they were not negligent (Bogoshi 1215;
see Neethling, Potgieter and Roos Neethling on Personality Rights 245 fn 429). The mass publication of a defama-
tory allegation therefore creates a presumption of negligence. See, however, Koziol in Potgieter, Knobel and Jansen
(eds) 259 ff who, despite Bogoshi, for various reasons, still prefers strict liability of the press and mass media.
261 See Marais v Groenewald 2001 1 SA 634 (T) 647. The court developed the common law in this respect to give
effect to the values underpinning the Constitution. It is submitted that this view be de lege ferenda accepted for
liability for defamation. This must nevertheless still be confirmed by the SCA and it is uncertain whether this will
happen (see Neethling, Potgieter and Roos Neethling on Personality Rights 89 246). See also Pieterse v Clicks
Group Ltd 2015 5 SA 317 (GJ) (see Neethling and Potgieter 2018 THRHR 141 ff; Neethling, Potgieter and Roos
Neethling on Personality Rights 89 246) where negligence has been accepted as a sufficient form of fault for liabil-
ity for defamation (as well as for insult and other forms of iniuria, such as violation of privacy) in the case of shop-
lifting. This extension of negligence liability in the field of the actio iniuriarum appears to be justified, especially
because liability could too easily be avoided by claiming absence of consciousness of wrongfulness (a component
of intent) if animus iniuriandi remains to be required for liability.
262 D 47 10 13 3.
263 Neethling, Potgieter and Roos Neethling on Personality Rights 250í251.
264 Eg Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 378; Woji v Minister of Police [2015] 1 All
SA 68 (SCA) paras 33í37; Minister for Justice and Constitutional Development v Moleko [2008] 3 All SA 47
(SCA) 50; Kruger v National Director of Public Prosecutions 2019 6 BCLR 703 (CC) para 48; Rudolph v Minister
of Safety and Security 2009 5 SA 94 (SCA) 100; Mdlalose v Minister of Police [2016] 4 All SA 950 (WCC) para
91; Lincoln v Minister of Justice and Constitutional Development [2019] 1 All SA 454 (WCC) para 37; Landman v
Minister of Police 1975 2 SA 155 (E) 155; Ramakulukusha v Commander, Venda National Force 1989 2 SA 813
(V) 837; Ochse v King William’s Town Municipality 1990 2 SA 855 (E) 857; Mthimkhulu v Minister of Law and
Order 1993 3 SA 432 (E) 438–439; Minister of Law and Order v Thusi 1994 2 SA 224 (N) 226–227; cf Heyns v
Venter 2004 3 SA 200 (T) 206; see also Neethling, Potgieter and Roos Neethling on Personality Rights 250 ff;
Burchell Personality Rights 356 ff; Van der Walt and Midgley Delict 183í186. Note that the institution of a civil
trial without reasonable grounds and animo iniuriandi, also constitutes an iniuria (see in this regard Neethling, Pot-
gieter and Roos Neethling on Personality Rights 262–263).
determining the content of this requirement.265 As a starting point, it may be stated that
instigation is present only if the prosecution in fact resulted from the defendant’s actions.266
Whether this is the case will depend on the circumstances.267 The defendant will, however, have to
do more than simply comply with his general obligation to give bona fide information to the
police.268 If he in addition gives active assistance and identifies himself personally with the
prosecution,269 or lays a definite charge against the plaintiff,270 or even withholds essential
relevant facts when furnishing information to the police,271 there will be strong indications of
instigation.
(b) Without reasonable and probable cause There is an absence of reasonable and probable
cause for the prosecution either (i) if there are, from an objective viewpoint, no reasonable
grounds for the prosecution, or (ii) if, where such grounds are in fact present, the defendant does
not, viewed subjectively, believe in the plaintiff ’s guilt.272 The defendant will thus be acquitted
if, on the one hand, reasonable grounds existed for the prosecution and, on the other hand, he
also believed in the plaintiff’s guilt.273
(i) The question of whether reasonable grounds exist may only be answered by reference to the
facts of each particular case.274 The facts must then reasonably, or according to the reasonable
person, indicate that the plaintiff probably committed the crime.275 This requirement, which was
adopted from English law, may be reconciled with our own legal principles on the following
basis:276 firstly, the requirement is sensible from a policy point of view;277 secondly, it is not
________________________
265 Two well-known formulations of instigation are the following: “Was the defendant, then, instrumental in making or
prosecuting this charge against the plaintiff . . . ? On all these authorities the test is whether the defendant did more
than tell the detective the facts and leave him to act on his own judgment” (Baker v Christiane 1920 WLD 14 16–
17); and “Where a person merely gives a fair statement of the facts to the police, and leaves it to the latter to take
such steps thereon as they deem fit, and does nothing more to identify himself with the prosecution, he is not re-
sponsible, in an action for malicious prosecution, to a person whom the police may charge. But if he goes further,
and actively assists and identifies himself with the prosecution, he may be held liable” (Waterhouse v Shields 1924
CPD 155 160). See also Heyns v Venter 2004 3 SA 200 (T) 206–207.
266 One is dealing here with factual causation (see Lederman v Moharal Investments (Pty) Ltd 1969 1 SA 190 (A)
197). In Madnitsky v Rosenberg 1949 1 PH J5 (W) the court applied the conditio sine qua non test in this regard: “I
think there can be no doubt that when an informer makes a statement to the police which is wilfully false in a mate-
rial particular, but for which false information no prosecution would have been undertaken, such informer ‘insti-
gates’ a prosecution” (emphasis added; see however supra 219 ff for criticism of this test). See further Heyns v
Venter 2004 3 SA 200 (T) 207–208 where the court referred to the difference between factual and legal causation in
connection with malicious prosecution (see Neethling, Potgieter and Roos Neethling on Personality Rights 253 esp
fns 500 503 for a more detailed discussion). In Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA)
379 Malan JA was unwilling to express an opinion on the concept of instigation which he considered as one of
some complexity (see Neethling 2008 TSAR 811).
268 Idem 252.
269 Waterhouse v Shields 1924 CPD 155; Moreno v Milner (1880) 1 EDC 145; Heyns v Venter 2004 3 SA 200 (T)
209–211. An example is if he assists with the arrest and sits next to the prosecutor during the trial.
270 Cf Kroomer v Lobascher (1903) 13 CTR 674 678.
271 Baker v Christiane 1920 WLD 14.
272 In Beckenstrater v Rottcher and Theunissen 1955 1 SA 129 (A) 136 it was formulated as follows: “When it is
alleged that a defendant had no reasonable cause for prosecuting, I understand this to mean that he did not have such
information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence
charged; if, despite his having such information, the defendant is shown not to have believed in the plaintiff ’s guilt,
a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable
cause” (see also Kruger v National Director of Public Prosecution 2019 6 BCLR 703 (CC) para 50; Lincoln v Min-
ister of Justice and Constitutional Development [2019] 1 All SA 454 (WCC) paras 42í43; Ochse v King William’s
Town Municipality 1990 2 SA 855 (E) 857; Mthimkhulu v Minister of Law and Order 1993 3 SA 432 (E) 439;
Landman v Minister of Police 1975 2 SA 155 (E) 156).
274 Lincoln v Minister of Justice and Constitutional Development [2019] 1 All SA 454 (WCC) para 43.
275 Supra fn 272; Van der Merwe v Strydom 1967 3 SA 460 (A) 467.
418 Law of Delict
unique to English law, since Roman-Dutch writers also mention it;278 and, thirdly, it is connected
with the element of wrongfulness for iniuria as a delict. 279 The criterion of reasonableness,
which is used in determining the wrongfulness of an act, is being dealt with here.280 The factual
infringement of the interests of personality (especially good name and dignity) of a person as a
result of his criminal prosecution is justified – and thus reasonable – because of the public
interest in prosecutions for which reasonable grounds exist (even if the accused is found not
guilty).281
(ii) The subjective belief of the defendant in the guilt of the plaintiff is a necessary element for
the existence of reasonable and probable cause. This means that even if the defendant clearly
acted on reasonable grounds, but nonetheless did not honestly believe in the plaintiff’s guilt,
reasonable and probable cause will still be absent.282 At first glance, this view would appear to
be incorrect. If, viewed objectively, there are in fact reasonable grounds, the defendant’s belief
or disbelief in the guilt of the plaintiff cannot affect this fact. Yet, from a theoretical perspective,
the result of this view may be justified. The fact that, despite the existence of reasonable grounds
justifying the prosecution, the defendant did not believe in the plaintiff ’s guilt necessitates the
conclusion that he in fact knew or realised that the plaintiff was innocent. On what other
grounds could he not believe in the guilt of the plaintiff? The existence of reasonable grounds
indicates precisely that the plaintiff in all probability committed the offence. The defendant’s
knowledge or realisation of the plaintiff’s innocence inevitably leads to the conclusion that, seen
from the defendant’s point of view, there were in fact no grounds for prosecution283 and that he
instigated the prosecution solely on the ground of an improper motive or animo nocendi. Seen in
this light, the defendant’s action is indeed unreasonable and consequently unlawful.284 Hence,
the approach adopted by the courts may be fully supported.
(c) Animus iniuriandi Although, under the influence of English law, most cases initially
required that the defendant should have acted with malice,285 it may be accepted in light
of authoritative dicta of the Appellate Division286 that animus iniuriandi, and not malice, is
________________________
277 In Beckenstrater v Rottcher and Theunissen 1955 1 SA 129 (A) 135 it was stated: “[T]he requirement of proof of
absence of reasonable and probable cause seems to be a most sensible one. For it is of importance to the community
that persons who have reasonable and probable cause for prosecution should not be deterred from setting the crim-
inal law in motion against those whom they believe to have committed offences, even if in so doing they are actu-
ated by indirect or improper motives.” See further Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375
(SCA) 382.
278 Neethling, Potgieter and Roos Neethling on Personality Righs 256.
279 In Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 382 Malan AJA daclared that “[w]here
reasonable and probable cause for an arrest or prosecution exists the conduct of the defendant instigating it is not
wrongful” (with reference to Neethling, Potgieter and Roos Neethling on Personality Rights 257); see further Min-
ister for Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA) 63.
280 Supra 39 ff.
281 Neethling, Potgieter and Roos Neethling on Personality Rights 257.
282 Idem 257–258.
283 Cf Van der Merwe v Strydom 1967 3 SA 460 (A) 468.
284 See supra 47–48 150–151 ff concerning the role of motive with regard to the question of wrongfulness.
286 Eg Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 378; Kruger v National Director of Public
Prosecutions 2019 6 BCLR 703 (CC) para 52; Minister for Justice and Constitutional Development v Moleko
[2008] 3 All SA 47 (SCA) 63–64; Rudolph v Minister of Safety and Security 2009 5 SA 94 (SCA) 100; Moaki v
Reckitt and Colman (Africa) Ltd 1968 3 SA 98 (A) 103–106; Lederman v Moharal Investments (Pty) Ltd 1969 1
SA 190 (A) 196; Prinsloo v Newman 1975 1 SA 481 (A) 492; see also Heyns v Venter 2004 3 SA 200 (T) 208;
Ochse v King William’s Town Municipality 1990 2 SA 855 (E) 857 859; Lincoln v Minister of Justice and Constitu-
tional Development [2019] 1 All SA 454 (WCC) para 39; Neethling, Potgieter and Roos Neethling on Personality
Rights 260–261.
required for malicious prosecution in our law.287 There is nevertheless case law in which animus
iniuriandi is replaced with gross negligence.288
(d) Failure The requirement that the prosecution must have failed is self-evident.289 A refusal
of the attorney-general to prosecute is also considered a failure of the prosecution.290
3.4 Attachment of property

Attachment of a person’s property is, strictly speaking, a form of defamation, as it primarily
infringes the good name of the person involved. Even in Roman law the attachment of property
dolo malo was regarded as an iniuria.291 Under the influence of English law a distinction is,
however, made between wrongful (illegal) and malicious attachment of property.292 This
distinction essentially lies in the fact that while the former takes place without any justification,
the latter is undertaken under the guise of a valid judicial process.
(a) Malicious attachment Given that malicious attachment is undertaken under the guise of a
valid judicial process,293 the defendant prima facie acts lawfully. Thus, the defendant may only
be liable if he instigated the legal process animo iniuriandi and without reasonable and probable
cause.294
(b) Wrongful attachment A defendant who, without any justification or judicial authority
whatsoever, attaches the plaintiff ’s property, is liable without further ado.295 Fault (intent or
negligence) is unnecessary to found liability296 – thus this is a case of liability without fault under
the actio iniuriarum.297 A causal link must nevertheless exist between the attachment of the
plaintiff’s property and his damage.298
________________________
287 Animus iniuriandi in this regard means that the defendant, while being aware of the absence of reasonable grounds
for the prosecution, directs his will to prosecuting the plaintiff. If no reasonable grounds exist but the defendant
honestly believes either that the plaintiff is guilty, or that reasonable grounds are present, the second element of
animus iniuriandi, ie, consciousness of wrongfulness, will be lacking. His mistake, reasonable or unreasonable,
thus excludes animus iniuriandi and consequently liability (see in this regard Minister for Justice and Constitu-
tional Development v Moleko [2008] 3 All SA 47 (SCA) 64; Kruger v National Director of Public Prosecutions
2019 6 BCLR 703 (CC) para 48; supra 414).
288 See Heyns v Venter 2004 3 SA 200 (T) 208–209 (see Neethling 2003 THRHR 688 ff). The court relied on the Bill
of Rights for justification of this development of the common law. The judgment is a step in the right direction, but
must further be extended to ordinary negligence (see Neethling, Potgieter and Roos Neethling on Personality
Rights 261). However, in Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) par 5 Malan JA was not
in favour of introducing negligence on the part of the defendant as a sufficient basis for a claim for malicious pros-
ecution (see also Rudolph v Minister of Safety and Security 2009 5 SA 94 (SCA) 100; Lincoln v Minister of Justice
and Constitutional Development [2019] 1 All SA 454 (WCC) para 39 fn 19).
289 Neethling, Potgieter and Roos Neethling on Personality Rights 261; however, see Rudolph v Minister of Safety and
Security 2009 5 SA 94 (SCA) 100.
290 Eg Lemue v Zwartbooi (1896) 13 SC 403 405; Els v Minister of Law and Order 1993 1 SA 12 (C) 14–15 18–19.
291 D 14 10 15 31; D 47 10 20.
292 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 264í267.
293 Eg a court order against the judgment debtor on the ground of which a warrant for attachment and execution of his
property is issued.
294 Eg RL Weir and Co v De Lange 1970 4 SA 25 (E) 28–29. These requirements are analogous to those set for
malicious prosecution. What has been stated in that regard, thus also applies here mutatis mutandis (supra 416 ff).
295 An example is where a messenger of the court attaches the wrong person’s property (eg Trust Bank van Afrika Bpk
v Geregsbode, Middelburg 1966 3 SA 391 (T)); see further Neethling, Potgieter and Roos Neethling on Personality
Rights 266.
296 Eg Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 393 (Neethling 1999 THRHR 636–637); Trust Bank van
Afrika Bpk v Geregsbode, Middelburg 1966 3 SA 391 (T) 393.
297 Eg Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 393–394; Minister of Finance v EBN Trading (Pty) Ltd 1998
2 SA 319 (N) 326–329 (see Neethling 1998 THRHR 706 ff, 1999 THRHR 636 ff, Mukheibir and Badenhorst 1998
Obiter 343 ff for discussions). Mistake can therefore not be raised as a defence (eg Ramsay v Minister van Polisie
1981 4 SA 802 (A) 818–819). Strict liability applies to both the actio iniuriarum and the Aquilian action (EBN
Trading 323–326 329; Meevis 393–394 (confirmed in Sheriff, Pretoria East v Meevis 2001 3 SA 454 (SCA) 460)).
[continued ]
420 Law of Delict
4 Rights relating to dignitas
4.1 The right to dignity

The right to dignity is recognised in our law as an independent personality right within the
concept of dignitas.299
A person’s dignity embraces his subjective feelings of dignity or self-respect. Infringement of a
person’s dignity accordingly consists of insulting that person.300 There are an infinite number of
ways in which a person may be insulted.301 Any insulting words302 or belittling or contemptuous
behaviour 303 may be included here.304 Since one is concerned with a person’s opinion of himself
________________________
Good reasons exist for strict liability, that can also be reconciled with our constitutional dispensation (see Neeth-
ling, Potgieter and Roos Neethling on Personality Rights 91 265 fn 633; EBN Trading 329).
298 Factual and legal causation must be present (see Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) 386–398
(Neethling 1999 THRHR 639–640); Minister of Finance v EBN Trading (Pty) Ltd 1998 2 SA 319 (N) 329; Neeth-
ling, Potgieter and Roos Neethling on Personality Rights 265 fn 634).
299 Neethling, Potgieter and Roos Neethling on Personality Rights 271 ff; Van der Walt and Midgley Delict 168–169;
Loubser and Midgley Delict 86–87 380–381; Jackson v NICRO 1976 3 SA 1 (A) 4; Minister of Police v Mbilini
1983 3 SA 705 (A) 715–716; Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) 366–
368. Note that the ordinary principles of the protection of the right to dignity are also applicable to insults on the
social media such as Facebook (Dutch Reformed Church Vergesig v Sooknunan 2012 6 SA 201 (GSJ); Neethling
2014 (1) LitNet Akademies 43í44). The right to human dignity is also recognised as a fundamental right in s 10 of
the Constitution, 1996 (see Neethling, Potgieter and Roos Neethling on Personality Rights 271; Scott in Potgieter,
Knobel and Jansen (eds) 431; supra 20 fn 152 for relevant case law).
300 Le Roux v Dey 2011 3 SA 274 (CC) 319; Jankielsohn v Booysen [2020] 1 All SA 214 (FB) para 44; Cele v Avusa
Media Limited [2013] 2 All SA 412 (GSJ) para 41; Greeff v Protection 4U h/a Protect International 2012 6 SA 393
(GNP) 408–409. See in general Neethling, Potgieter and Roos Neethling on Personality Rights 41–43; Loubser and
Midgley Delict 381; Du Bois 2019 Acta Juridica 264. The right to dignity must carefully be differentiated from the
dignitas and constitutional human dignity. Dignitas serves as a generic term for all personality rights (including the
right to dignity) except for the rights to bodily integrity and good name; human dignity in the constitutional sense is
the recognition of the intrinsic worth of the human being that includes the individual’s feelings of self-respect (S v
Makwanyane 1995 3 SA 391 (CC) par 328; Khumalo v Holomisa 2002 5 SA 401 (CC) 418–419) but covers an
even wider field than dignitas (Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) 366–
367; see also supra 20 fn 152).
301 Neethling, Potgieter and Roos Neethling’s Law of Personality 272–276.
302 Eg Ryan v Petrus 2010 1 SA 169 (ECG); Pieterse v Clicks Group Ltd 2015 5 SA 317 (GJ); Dutch Reformed
Church Vergesig v Sooknunan 2012 6 SA 201 (GSJ); Heroldt v Wills 2013 2 SA 530 (GSJ) (the last two cases were
concerned with insults on Facebook: cf Roos and Slabbert 2014 (6) PELJ 2848 ff); Bester v Calitz 1982 3 SA 864
(O) 871–874; Minister of Police v Mbilini 1983 3 SA 705 (A) 715–716; Mbatha v Van Staden 1982 2 SA 260 (N);
Brenner v Botha 1956 3 SA 257 (T); Sokhulu v New Africa Publications Ltd 2001 4 SA 1357 (W) 1360; Pretorius v
Masilela 1994 3 SA 167 (T).
303 Eg Raliphaswa v Mugivhi [2008] 3 All SA 92 (SCA); Innes v Visser 1936 WLD 44; Boswell v Union Club of SA
(Durban) 1985 2 SA 162 (D); Edwards v Hyde 1903 TS 381 385 387 388; Jockie v Meyer 1945 AD 354 367–368;
Jacobs v Waks 1992 1 SA 521 (A) 541–542; Greeff v Protection 4U h/a Protect International 2012 6 SA 393
(GNP) (see Neethling 2014 (1) LitNet Akademies 27 ff); Dendy v University of the Witwatersrand, Johannesburg
2005 5 SA 357 (W) 372–474; confirmed on appeal: 2007 5 SA 382 (SCA) 385 386 388–389; see further Neeth-
ling, Potgieter and Roos Neethling on Personality Rights 273–276.
304 Instances of insulting conduct occur frequently in the employer-employee situation. Eg, the victim of sexual harass-
ment at the workplace usually experiences an infringement of her dignity because she feels insulted and humiliated
by the perpetrator’s behaviour (see, eg, Campbell Scientific Africa (Pty) Ltd v Simmers (2016) 37 ILJ 116 (LAC)
126; PE v Ikwezi Municipality 2016 5 SA 114 (ECG) 132 (Scott 2017 TSAR 630 ff); Grobler v Naspers Bpk 2004 4
SA 220 (C) 298; Media 24 Ltd v Grobler 2005 6 SA 328 (SCA) 350: “The victims of harassment find it embarrass-
ing and humiliating.”). It should also be mentioned that the Labour Relations Act 66 of 1995 s 156 does not intend
to destroy alternative remedies, including delictual actions such as the actio iniuriarum based on insulting behav-
iour (see Chowan v Associated Motor Holdings (Pty) Ltd 2018 4 SA 145 (GJ) 164–165 168í170 – unfair racial and
gender discriminatory utterances in the workplace; Neethling, Potgieter and Roos Neethling on Personality Rights
274). Moreover, the Labour Relations Act ss 193 194 provides that an employee who is the victim of an unfair
labour practice, may claim compensation from the employer inter alia for non-patrimonial loss (usually also sola-
tium for the indignity, humiliation or insult which the employee suffers) within the constraints set by the Act (see
on this Neethling, Potgieter and Roos Neethling on Personality Rights 274í276).
and not with the opinion of others, as is the case with defamation,305 publication of the insulting
behaviour to third persons is unnecessary to constitute an iniuria; publication to the plaintiff
alone is sufficient.306
To be classified as wrongful (or as an infringement of the right to dignity), the behaviour must
not only infringe the subjective feelings of dignity (factual infringement of a legal object), but
must at the same time also be contra bonos mores (violation of a legal norm).307 Regarding the
latter, “the notional understanding and reaction of a person of ordinary intelligence and sensibil-
ities” are of paramount importance.308 If the plaintiff proves that he feels insulted in
circumstances where the reasonable person would also have felt insulted,309 a presumption of
wrongfulness arises, which the defendant may rebut by proving the existence of a ground of
justification for his conduct.310
If he does not succeed in doing this, wrongfulness is certain and a presumption of animus
iniuriandi arises. The onus is then on the defendant to rebut this presumption by proving a
ground excluding intent.311 If he fails to do this, an iniuria is proved.
4.2 The right to privacy

The right to privacy is recognised as an independent personality right312 which the courts have
included within the concept of dignitas.313 314
________________________
305 Le Roux v Dey 2011 3 SA 274 (CC) 319; see also supra 401 fn 130.
306 Eg Whittington v Bowles 1934 EDL 142.
307 Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) para 41; Greeff v Protection 4U h/a Protect International
2012 6 SA 393 (GNP) 408–409; Neethling, Potgieter and Roos Neethling on Personality Rights 277í278; see also
supra 58 with regard to the infringement of a subjective right. In Delange v Costa 1989 2 SA 857 (A) 862 Smal-
berger JA said: “Because proof that the subjective feelings of an individual have been wounded, and his dignitas
thereby impaired, is necessary before an action for injuria can succeed, the concept of dignitas is a subjective one.
But before that stage is reached it is necessary to establish that there was a wrongful act . . . In determining whether
or not the act complained of is wrongful the Court applies the criterion of reasonableness – the ‘algemene rede-
likheidsmaatstaf ’ . . . This is an objective test. It requires the conduct complained of to be tested against the pre-
vailing norms of society (ie the current values and thinking of the community) in order to determine whether such
conduct can be classified as wrongful. To address the words to another which might wound his self-esteem but
which are not, objectively determined insulting (and therefore wrongful) cannot give rise to an action for injuria”
(Burchell in Potgieter, Knobel and Jansen (eds) 113–114). See also Le Roux v Dey 2011 3 SA 274 (CC) 321; Dendy
v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) 372 374 (confirmed on appeal: 2007 5 SA
382 (SCA) 385–386 388–389; see further Neethling 2006 TSAR 197 ff) where the court demonstrated convincingly
that the Delange test is in agreement with the values underpinning the Bill of Rights.
308 Jackson v NICRO 1976 3 SA 1 (A) 10; Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) para 42;
Fayd’herbe v Zammit 1977 3 SA 711 (D) 718.
309 In Minister of Police v Mbilini 1983 3 SA 705 (A) 716 it was stated as follows: “It was however conceded . . . that if
the ordinary decent right-thinking person would regard a threat . . . as an insult to his or her dignity, it would constitute
an injuria of which the law would take cognisance, provided that the particular individual addressed did in fact feel
insulted. This was to my mind a correct concession.” See also Le Roux v Dey 2011 3 SA 274 (CC) 321; Delange v
Costa 1989 2 SA 857 (A) 861–862; Dendy v University of Witwatersrand 2007 5 SA 382 (SCA) 388–389; Burchell
Personality Rights 328–329; Van der Walt and Midgley Delict 168–169; Loubser and Midgley Delict 381–384.
310 See in this regard Neethling, Potgieter and Roos Neethling on Personality Rights 279–280.
311 Idem 280í281.
312 Neethling, Potgieter and Roos Neethling on Personality Rights 48 describe an individual’s interest in privacy as
follows: “Privacy is an individual condition of life characterised by seclusion from the public and publicity. This
condition embraces all those personal facts which the person concerned has himself determined to be excluded
from the knowledge of outsiders and in respect of which he has the will that they be kept private.” This definition
has been accepted in, eg, National Media Ltd v Jooste 1996 3 SA 262 (A) 271 (1994 2 SA 634 (C) 645); Universi-
teit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 384; Swanepoel v Minister van Veiligheid
en Sekuriteit 1999 4 SA 549 (T) 553; Greeff v Protection 4U h/a Protect International 2012 6 SA 393 (GNP) 406;
cf Bernstein v Bester 1996 2 SA 751 (CC) 789. See for details on the recognition and protection of the right to priv-
acy in SA law, Neethling, Potgieter and Roos Neethling on Personality Rights 307 ff; Loubser and Midgley Delict
88–89 390–403; Van der Walt and Midgley Delict 171–172; McQuoid-Mason Privacy passim. The right to privacy
is also entrenched as a fundamental right in the Bill of Rights (Constitution, 1996 s 14; cf Okpaluba 2015 Acta Juridica
[continued ]
422 Law of Delict
Privacy is an individual condition of life characterised by seclusion from the public and publi-
city, the extent of which is determined by the individual himself.315 This implies an absence of
acquaintance with the individual or his personal affairs in this state. Accordingly, privacy can
only be infringed by unauthorised acquaintance by outsiders with the individual or his personal
affairs.
There are two ways in which such acquaintance may occur: firstly, when an outsider himself
becomes acquainted with the individual or his personal affairs (which may be described as an
instance of acquaintance or intrusion) and, secondly, where the outsider acquaints third parties
with the individual or his personal affairs which, although they are known to the outsider,
________________________
407 ff). It includes the right of persons not to have their person, home or property searched, their possessions seized, or
the privacy of their communications infringed (see with regard to s 13 of the interim Constitution, 1993, eg, Rudolph v
Commissioner for Inland Revenue 1994 3 SA 771 (W) 773–775; Park-Ross v Director: Office for Serious Offences
1995 2 SA 148 (C) 158 ff 166–167; Bernstein v Bester 1996 2 SA 751 (CC) 783–799; Case and Curtis v Minister of
Safety and Security 1996 2 SA 617 (CC) 656 ff; Harksen v Lane 1998 1 SA 300 (CC); Mistry v Interim Medical and
Dental Council of South Africa 1998 4 SA 1127 (CC) 1141–1142 1154–1156; see also, on s 14 of the Constitution,
1996, eg, National Coalition for Gay & Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC) 29–30 61–62;
President of the Republic of South Africa v South African Rugby Football Union 2000 1 SA 1 (CC) 82–83; Investigat-
ing Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distribu-
tors (Pty) Ltd v Smit 2001 1 SA 545 (CC) 556–558; Prinsloo v RCP Media Ltd t/a Rapport 2003 4 SA 456 (T) 468–
469; De Reuk v Director of Public Prosecutions, Witwatersrand Local Division 2004 1 SA 406 (CC) 431 440–441
Platinum Asset Management (Pty) Ltd; Anglo Rand Capital House (Pty) Ltd v Financial Services Board 2006 4 SA
73 (W) 79–81 105–108; Magajane v Chairperson, North West Gambling Board 2006 5 SA 250 (CC) 263 ff 274 ff;
Prince v Minister of Justice 2017 4 SA 299 (WCC) 311í313 (Neethling 2018 (2) LitNet Akademies 486 ff), con-
firmed in Minister of Justice and Constitutional Development v Prince [2018] ZACC 30; see also Neethling, Pot-
gieter and Roos Neethling on Personality Rights 51í52 310–311). It is clear that the constitutional instances of
protection of the right to privacy – so-called informational privacy rights which correspond to the common law
concept of privacy – do not constitute a numerus clausus but may be expanded to any other method of obtaining or
disclosing private information (see, eg, Bernstein; Investigating Directorate: Serious Economic Offences; Mistry;
Pretoria Portland Cement Co Ltd v Competition Commission 2003 2 SA 385 (SCA) 408–409 411; Harksen 332;
Nel v Le Roux 1996 3 SA 562 (CC) 568–571). Moreover, the courts have extended the right to privacy to so-called
substantive or personal autonomy privacy rights which enable persons to make decisions about such matters as
their family, home and sexual life (see, eg, Case and Curtis; National Coalition for Gay and Lesbian Equality;
De Reuck 431 440–44; Prince (WCC) 311–313; see also Neethling 2018 (2) LitNet Akademies 486 ff). Seen in this
light, the constitutional right to privacy is broader than the common law right since the former also includes auton-
omy (see Neethling, Potgieter and Roos Neethling on Personality Rights 51–52). See also Kruger in Potgieter,
Knobel and Jansen (eds) 269 ff who points out that, with a few notable exceptions, the statutory protection of a child’s
right to privacy in South Africa is strong.
313 Eg Jansen van Vuuren v Kruger 1993 4 SA 842 (A) 849; O’Keeffe v Argus Printing and Publishing Co Ltd 1954 3
SA 244 (C); Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 383–384 (cf also
1979 1 SA 441 (A) 455 ff); Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 462–463 (1991 2 SA
117 (W) 129–131); Nell v Nell 1990 3 SA 889 (T) 895–896. Note that the ordinary principles of the protection of
the right to privacy are also applicable to privacy infringements on the social media such as Facebook (Dutch
Reformed Church Vergesig v Sooknunan 2012 6 SA 201 (GSJ); Heroldt v Wills 2013 2 SA 530 (GSJ); see Roos
2012 SALJ 375 ff; Neethling 2014 (1) LitNet Akademies 40 ff).
314 The legal protection of personal information, which constitutes a very important subdivision of the right to privacy
(so-called data privacy law), is now comprehensively regulated by the Protection of Personal Information Act 4 of
2013 (POPIA). The provisions of POPIA do not fall within the ambit of this work (see on this Neethling, Potgieter
and Roos Neethling on Personality Rights 356 ff; Roos in Potgieter, Knobel and Jansen (eds) 395 ff).
315 In National Media Ltd v Jooste 1996 3 SA 262 (A) 271–272 Harms J stated that “a right to privacy encompasses
the competence to determine the destiny of private facts . . . The individual concerned is entitled to dictate the
ambit of disclosure, for example to a circle of friends, a professional adviser or the public . . . Similarly, I am of the
view that a person is entitled to decide when and under what conditions private facts may be made public”; see also
Greeff v Protection 4U h/a Protect International 2012 6 SA 393 (GNP) 406. This entails that a person may in prin-
ciple still have control over private facts that have previously been disclosed (see NM v Smith (Freedom of Expres-
sion Institute as amicus curiae) 2007 5 SA 250 (CC) 262–263; Greeff 415–416; Neethling 2008 SALJ 40–41;
Neethling 2014 (1) LitNet Akademies 29-30; Burchell in Potgieter, Knobel and Jansen (eds) 115–116).
remain private (which may be termed an instance of disclosure or revelation.)316 Moreover,

recording of private facts constitutes a threatening wrongful infringement of privacy.317 The
wrongfulness of a (factual) infringement of privacy is determined by means of the general test,
ie, the boni mores318 or reasonableness319 criterion.320 As in the case of other iniuriae, the
presence of a ground of justification excludes the wrongfulness of an invasion of privacy.321
________________________
316 Neethling, Potgieter and Roos Neethling on Personality Rights 49 311. See also National Media Ltd v Jooste 1996
3 SA 262 (A) 271; Greeff v Protection 4U h/a Protect International 2012 6 SA 393 (GNP) 406–407; Jooste v
National Media Ltd 1994 2 SA 634 (C) 645; Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4
SA 376 (T) 384; Bernstein v Bester 1996 2 SA 751 (CC) 789; Swanepoel v Minister van Veiligheid en Sekuriteit
1999 4 SA 549 (T) 553; cf also NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 5 SA 250
(CC) 262–263; Motor Industry Fund Administrators (Pty) Ltd v Janit 1994 3 SA 56 (W) at 60; Financial Mail (Pty)
Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 462; Currie 2008 TSAR 550. A person’s will or wish to maintain priv-
acy (“privaathoudingswil”) is an important component of privacy – if a will to maintain privacy is absent, there is
no interest in privacy worthy of protection (see Jooste (A) 271; Neethling, Potgieter and Roos Neethling on Per-
sonality Rights 47 fn 540).
317 Fixation means embodying private facts by, eg, photography, photocopying and tape recordings, in conflict with
the will of the holder of the right. Such fixation creates a threat to the right to privacy because the right is exposed
to the danger or risk of a wrongful act of intrusion or disclosure (cf Prinsloo v RCP Media Ltd t/a Rapport 2003 4
SA 456 (T) 468; see also NT v Kunene [2017] 4 All SA 865 (GJ) para 41). Fixation should in principle be wrongful
(cf La Grange v Schoeman 1980 1 SA 885 (E) 895; Prinsloo 468; Motor Industry Fund Administrators (Pty) Ltd v
Janit 1994 3 SA 56 (W) 63–64). The courts (eg Human v East London Daily Dispatch (Pty) Ltd 1975 2 PH J24 (E)
53; Tap Wine Trading CC v Cape Classic Wines (Western Cape) CC 1999 4 SA 194 (C); S v Kidson 1999 1 SACR
338 (W) 348) and legislature (Regulation of Interception of Communications and Provision of Communication-
related Information Act 70 of 2002 ss 4, 5) incorrectly took a different view in respect of participant electronic
surveillance (viz where one of the participants to a conversation agrees to the secret electronic recording of the
conversation). See for details on fixation, Neethling, Potgieter and Roos Neethling on Personality Rights 331–334.
318 Eg Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 462; Jansen van Vuuren v Kruger 1993 4 SA
842 (A) 850; National Media Ltd v Jooste 1996 3 SA 262 (A) 270; Heroldt v Wills 2013 2 SA 530 (GSJ) 543 547–
548; Greeff v Protection 4U h/a Protect International 2012 6 SA 393 (GNP) 408; O’Keeffe v Argus Printing and
Publishing Co Ltd 1954 3 SA 244 (C) 248; Motor Industry Fund Administrators (Pty) Ltd v Janit 1994 3 SA 56
(W) 60; S v A 1971 2 SA 293 (T) 299; Neethling, Potgieter and Roos Neethling on Personality Rights 311–312.
319 Eg Gosschalk v Rossouw 1966 2 SA 476 (C) 492. In Heroldt v Wills 2013 2 SA 530 (GSJ) 547 the court correctly
emphasised that every case should be decided in light of the boni mores and that, in matters relating to privacy, per-
sons must act reasonably.
320 To be branded wrongful, the acquaintance with private facts must not only be in conflict with the (subjective) will
of the holder of the right, but must also be (objectively) contra bonos mores (see also supra 58 on the infringement
of a subjective right). Because the test is also objective, it entails normal or reasonable sensitivity and not hypersen-
sitivity. Privacy will therefore not be protected in circumstances where its infringement does not cause psycho-
logical suffering to a person with normal feelings and sensitivity (NM v Smith (Freedom of Expression Institute as
amicus curiae) 20075SA 250 (CC) 262; National Media Ltd v Jooste 1996 3 SA 262 (A) 270). This subjective-
objective approach is similar to the approach of the CC, holding that the right to privacy is protected if the person
has a subjective expectation that is deemed objectively reasonable by the community (see, eg, Bernstein v Bester
1996 2 SA 751 (CC) 792; Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC) 557 (cf Okpaluba 2015 Acta
Juridica 407 ff)). According to the CC, the protection of the right to privacy – and consequently the question of
wrongfulness – are situated on a continuum, where the right to privacy becomes less worthy of protection the more
interaction a person has with the world (Hyundai 556–557). The continuum starts with the innermost being, moves
then to the seclusion of the home and the personal life, and ends in the public sphere where the right to privacy
enjoys only a limited degree of protection (see Mistry v Interim Medical and Dental Council of South Africa 1998 4
SA 1127 (CC) 1144–1145). Davis J confirmed in Prince v Minister of Justice 2017 4 SA 299 (WCC) 312 that “[i]t
has become established law, insofar as privacy is concerned, that this right becomes more powerful and deserving
of greater protection the more intimate the personal sphere of the life of a human being which comes into play”. For
this reason, an intrusion into the private sphere which is totally secluded from outsiders or limited to specific per-
sons only should, eg, be wrongful in principle, while the acquaintance with personal facts in a public place should
on the other hand be prima facie lawful (see Neethling, Potgieter and Roos Neethling on Personality Rights 312).
321 See Neethling, Potgieter and Roos Neethling on Personality 334–338 346–348 on the following grounds which
may justify an infringement of privacy: necessity, private defence, consent and the grounds also applicable to def-
amation. The most important ground is certainly the public interest in information that plays an important role with
regard to the publication of private facts by the mass media. In Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2
SA 451 (A) 462–463 Corbett CJ put it thus: “[I]n demarcating the boundary between lawfulness and unlawfulness
[continued ]
424 Law of Delict
Examples of wrongful invasions of privacy by intrusion which have been considered by our
courts322 are: entry into a private residence;323 secretly watching a person in closed quarters;324
reading private documents;325 listening in to private conversations;326 shadowing a person;327
taking unauthorised blood tests;328 searching a person;329 and the improper interrogation of a
person by the police.330
________________________
in this field [infringement of personal privacy], the Court must have regard to the particular facts of the case and
judge them in the light of contemporary boni mores and the general sense of justice of the community as perceived
by the Court . . . Often . . . a decision on the issue of unlawfulness will involve a consideration and a weighing of
competing interests . . . [I]n a case of publication in the press of private facts about a person, the person’s interest in
preventing the public disclosure of such facts must be weighed against the interest of the public, if any, to be
informed about such facts.” The following factors can facilitate a fair balancing outcome in this regard: the fact that
the plaintiff is a public figure, or was involved in a newsworthy event; the public interest, and not merely the public
interestedness (or curiosity), in the matter; the extent or intensity of the violating conduct; the fact that the plaintiff
exposes her privacy to the risk of violation; the motive, disposition or purpose with which the defendant acts; the
fact that the private facts were obtained by a wrongful act, either by intrusion or in breach of a confidential relation-
ship; the importance of the person involved and his or her status in society; the time span between the occurrence of
a newsworthy event and the publication thereof; the degree of identifiability of the person whose privacy is dis-
closed; the fact that the publication of private facts was contrary to a court order or statutory provision; and the fact
that the publication was coupled with breach of contract (see Neethling, Potgieter and Roos Neethling on Person-
ality Rights 341–345 for details; see also Burchell Personality Rights 432; Greeff v Protection 4U h/a Protect
International 2012 6 SA 393 (GNP) 408; Financial Mail 463). As to the publication of information about divorce
proceedings, in Johncom Media Investments Ltd v M 2009 4 SA 7 (CC) the court granted the media complete free-
dom to publish every particular of a divorce action, but subject to the qualification that the identity of any party or
child may not be disclosed except with the permission of a court in exceptional circumstances (see.Neethling 2010
SALJ 230 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 347 fn 288; Kruger in Potgieter,
Knobel and Jansen (eds) 277 ff). See McQuoid-Mason in Potgieter, Knobel and Jansen (eds) 333 ff who points out
that, although medical practitioners have general ethical and legal duties to respect the privacy and confindentiality of
their patients’ communications, sometimes statutes such as the Children’s Amendment Act 41 of 2007 and the Crim-
inal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 impose a positive duty on such practi-
tioners to breach confidentiality. He submits that where such disclosures may undermine the “best interests” of the
child provisions in the Constitution and the Children’s Act 38 of 2005, the “best interests” of the child must be the
overriding consideration.
323 Eg De Fourd v Town Council of Cape Town (1898) 15 SC 399; S v I 1976 1 SA 781 (RA); S v Boshoff 1981 1 SA
393 (T) 396; Pretoria Portland Cement Co Ltd v Competition Commission 2003 2 SA 385 (SCA) 408–409 411
(company premises); Minister of Safety and Security v Augustine 2017 2 SACR 332 (SCA); Estate Agency Affairs
Board v Auction Alliance (Pty Ltd 2014 3 SA 106 (CC) (Loubser and Midgley Delict 399).
324 Eg R v Holliday 1927 CPD 395; S v I 1976 1 SA 781 (RA); MEC for Health, Mpumalanga v M-Net 2002 6 SA 714
(T) 718–719 721 (Neethling 2003 TSAR 568 ff).
325 Reid-Daly v Hickman 1981 2 SA 315 (ZA) 323.
326 S v A 1971 2 SA 293 (T); cf Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 463; Motor Industry
Fund Administrators (Pty) Ltd v Janit 1994 3 SA 56 (W) 61 (1995 4 SA 293 (A) 303). Note also that the unauthor-
ised interception of telegraphic or telephonic communications is a crime (Regulation of Interception of Communi-
cations and Provision of Communication-related Information Act 70 of 2002 ss 2 4).
327 Epstein v Epstein 1906 TH 87; Huey Extreme Club v McDonald t/a Sport Helicopters 2005 1 SA 485 (C) 498–499
(Neethling 2005 THRHR 521 ff). In this regard note should be taken of the threat posed to the privacy of persons by
drones and the personal information that can be gathered by them (see Huneberg 2018 THRHR 263 ff, 2018
THRHR 263 ff; Neethling, Potgieter and Roos Neethling on Personality Rights 317 fn 77).
328 Seetal v Pravitha 1983 3 SA 827 (D) 861–862; Cape Town City v Kotzé 2017 1 SA 593 (WCC) 600 607; M v R
1989 1 SA 416 (O) 426–427; Nell v Nell 1990 3 SA 889 (T) 895–896; C v Minister of Correctional Services 1996 4
SA 292 (T); S v Orrie 2004 3 SA 584 (T) 589–590 591; cf VRM v Health Professions Council of South Africa 2002
ZAGPHC 4.
329 Raliphaswa v Mugivhi [2008] 3 All SA 92 (SCA) 96; see further Constitution 1996, s 14. See also Minister of
Police v Kunjana 2016 9 BCLR 1237 (CC), 2016 2 SACR 473 where the CC declared s 11(1)(a) and (g) of the
Drugs and Drug Trafficking Act 140 of 1992 unconstitutional and invalid. This section authorised warrantless
searches even where no urgency exists. The court held that such conduct constitutes an unjustifiable limitation on
the right to privacy. See also Du Toit 2014 TSAR 639 ff for a discussion, against the background of Yanta v Minis-
ter of Safety and Security 2013 JDR 1378 (ECG) and German and Dutch law, whether the intimate searching of an
[continued ]
Examples of violating the right to privacy by disclosure are the following:331 the disclosure of
private facts which have been acquired by a wrongful act of intrusion;332 the disclosure of
private facts contrary to the existence of a confidential relationship;333 and the publication of
private facts by the mass media,334 including the social media such as Facebook.335
If wrongfulness has been established, as in the case of insult, a presumption of animus iniuriandi
arises, which may be rebutted by the defendant.336 If he fails to do this, the actio iniuriarum is
available to the plaintiff.
4.3 The right to identity

The right to identity337 was recognised as an independent right of personality in GrĦtter v
Lombard.338
________________________
arrested person, in particular the physical examination of body cavities, is authorised by the Criminal Procedure
Act 51 of 1977.
330 Gosschalk v Rossouw 1966 2 SA 476 (C) 492.
332 Eg revealing the contents of stolen personal documents (Goodman v Von Moltke 1938 CPD 153), or publishing
information obtained from illegally tapping telephone conversations (Financial Mail (Pty) Ltd v Sage Holdings Ltd
1993 2 SA 451 (A) 463), or from stolen tape recordings of confidential conversations (Motor Industry Fund Admin-
istrators (Pty) Ltd v Janit 1994 3 SA 56 (W) 61 (1995 4 SA 293 (A) 303), or a concealed video camera (MEC for
Health, Mpumalanga v M-Net 2002 6 SA 714 (T)).
333 Eg doctor–patient (eg Jansen van Vuuren v Kruger 1993 4 SA 842 (A); Cape Town City v Kotzé 2017 1 SA 593
(WCC) 602; see also Van Wyk 1994 THRHR 141 ff)); religious advisor–church member (congregant) (O v O 1995
4 SA 482 (W) 490 492); banker–client (eg First Rand Bank Ltd v Chaucer Publications (Pty) Ltd 2008 2 SA 592
(C) 597–598); legal adviser–client (eg Sasol III (Edms) Bpk v Minister van Wet en Orde 1991 3 SA 766 (T) 786;
employer–employee (Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 463–465); policeman–
informant (Swanepoel v Minister van Veiligheid en Sekuriteit 1999 4 SA 549 (T); Neethling 2000 TSAR 761 ff;
Springbok rugby players–their management (Greeff v Protection 4U h/a Protect International 2012 6 SA 393
(GNP) 407; Neethling 2014 (1) LitNet Akademies 30–31). For details see Neethling, Potgieter and Roos Neethling
on Personality Rights 319–322. Cf Culverwell v Beira 1992 4 SA 490 (W) with regard to the taking and publication
of nude photographs of a mistress (Neethling, Potgieter and Visser Neethling’s Law of Personality 228 fn 95).
334 Examples from case law are the following: the publication of a woman’s photograph as part of an advertisement
without her consent (O’Keeffe v Argus Printing and Publishing Co Ltd 1954 3 SA 244 (C)); the publication of pho-
tographs of nurses in a newspaper without their consent (Kidson v SA Associated Newspapers Ltd 1957 3 SA 461
(W)); the publication of facts regarding an alleged romance between the plaintiff and a female singer (Mhlongo v
Bailey 1958 1 SA 370 (W)); the publication of facts concerning the petitioners’ secret abduction of children who
were placed under the custody of their former spouses (Rhodesian Printing and Publishing Co Ltd v Duggan 1975
1 SA 590 (RA)); the publication of photographs of the defendants in a criminal trial (La Grange v Schoeman 1980
1 SA 885 (E)); the publication of facts concerning the relationship between a well-known rugby player and his mis-
tress, and the child he allegedly fathered with her (National Media Ltd v Jooste 1996 3 SA 262 (A)); the publication
by a television broadcaster of video material that was obtained in a wrongful manner with a concealed camera,
about alleged abortion malpractices in a public hospital – the publication is wrongful in principle, but is justified by
the public interest in information (MEC for Health, Mpumalanga v M-Net 2002 6 SA 714 (T)); the publication of a
book revealing the plaintiffs’ names and HIV status (NM v Smith (Freedom of Expression Institute as amicus curi-
ae) 2007 5 SA 250 (CC)); the attempted marketing of a DVD made at the infamous “Kamp Staaldraad” training
camp for Springbok rugby players, revealing, inter alia, intimate private facts of the players (Greeff v Protection
4U h/a Protect International 2012 6 SA 393 (GNP)). For a discussion of these cases, see Neethling, Potgieter and
Roos Neethling on Personality Rights 325–330; Neethling 2008 SALJ 36 ff; Scott 2007 Stell LR 387 ff; Neethling
2014 (1) LitNet Akademies 27 ff.
335 Heroldt v Wills 2013 2 SA 530 (GSJ); Dutch Reformed Church Vergesig v Sooknunan 2012 6 SA 201 (GSJ).
336 See Jansen van Vuuren v Kruger 1993 4 SA 842 (A) 849; cf however C v Minister of Correctional Services 1996 4
SA 292 (T) 304–305 where strict liability was applied to the infringement of privacy of a prisoner; see in general
Neethling, Potgieter and Roos Neethling on Personality Rights 348í349.
337 For a definition of this personality interest, see Neethling, Potgieter and Roos Neethling on Personality Rights
53í56; see generally on the protection of identity, idem 351 ff; Van der Walt and Midgley Delict 174–175; Loubser
and Midgley Delict 404–410.
426 Law of Delict
Identity is that uniqueness which identifies each person as a particular individual and as such
distinguishes him from others. Identity manifests itself in various indicia by which the person
involved can be recognised: ie, facets of his personality which are distinctive of or peculiar to
him, for example his life history, his character, his name, his creditworthiness, his voice, his
handwriting, his outward shape, etc.339 Identity is thus infringed if indicia thereof are used in a
way that does not reflect the person’s true (own) personality image.340
Two forms of wrongful identity infringement, which have developed into two independent
“torts” in American law, are the public falsification of the personality image (“false light tort”)
and the economic misappropriation of identity indicia (especially for advertising purposes)
(“appropriation tort”).341 These “torts” can serve as guidelines for the development of
infringement of identity as an iniuria342 and, as a matter of fact, have been considered by our
courts,343 although under the guise of protection of privacy. As a general criterion for the
determination of
________________________
338 2007 4 SA 89 (SCA) (for discussions see Neethling 2007 TSAR 834 ff; Roos 2008 THRHR 515 ff; Neethling,
Potgieter and Roos Neethling on Personality Rights 351í352). In this case the applicant (G) sought an order against
the respondents (L and O) to prevent them from using G’s name in respect of their law firm. G and L had previous-
ly practiced together under the name “G and L”, but G had left the firm to practice with A under the name “G and
A”. In spite of this L continued with O under the old name of “G and L”. G was successful with his application to
stop the continued misleading use of his name by L and O on the basis that his (G’s) identity had been infringed.
See further on recognition of the right to identity Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk
1977 4 SA 376 (T) 386 (cf also 1979 1 SA 441 (A) 456); Wells v Atoll Media (Pty) Ltd [2010] 4 All SA 548
(WCC) paras 48–49.
339 See Coetser Identiteit 148; see in general as to identity as an interest of personality idem passim.
340 GrĦtter v Lombard 2007 4 SA 89 (SCA) 93, with reference to Neethling Persoonlikheidsreg (1998) 44–45.
Whereas infringement of identity often involves the publication of false facts, the infringement of privacy only oc-
curs where there is a disclosure of true facts (Kumalo v Cycle Lab (Pty) Ltd 2011-06-07 case no 31871/2008 (GSJ)
para 18; see also Neethling, Potgieter and Roos Neethling on Personality Rights 55; Neethling 2012 TSAR 350
355).
341 GrĦtter v Lombard 2007 4 SA 89 (SCA) 94–96; see Neethling, Potgieter and Roos Neethling on Personality
Rights 55 353–357. Burchell Personality Rights 411–414 follows the American approach in respect of the right to
privacy in this regard and consequently he incorrectly denies the independent existence of the right to identity (see
Neethling 2005 SALJ 23–25).
342 Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 386–387. In connection with the
appropriation tort it must be kept in mind that these instances cannot only qualify as infringements of identity if the
personality image of the person involved has in fact been falsified – this will, however, as a rule be the position be-
cause such an appropriation almost always creates the misrepresentation that the person consented to it, or that he
was compensated for it, or that he supports the particular product, service or business (see Neethling, Potgieter and
Roos Neethling on Personality Rights 54) – but also where no falisfication occurred. The mere use of indicia of
identity for commercial purposes should in principle infringe the right to identity (see Cornelius 2008 TSAR 645 ff;
Cornelius 2011 PELJ 182 ff). A clear example of such use for commercial purposes is Wells v Atoll Media (Pty)
Ltd [2010] 4 All SA 548 (WCC) where a pin-up photo of a 12-year-old girl was used without her consent in a surf-
ing magazine in order to boost the sales of this publication. However, where use of a person’s image or likeness has
not merely been for commercial purposes but in serving the public interest, this will not be wrongful (Cele v Avusa
Media Limited [2013] 2 All SA 412 (GSJ) paras 50 ff; see also Neethling 2014 (2) LitNet Akademies 122í123).
343 O’Keeffe v Argus Printing and Publishing Co Ltd 1954 3 SA 244 (C), where a photograph of a woman was
published without her consent as part of an advertisement for rifles, pistols and ammunition, was primarily con-
cerned with a case of appropriation (see also Kumalo v Cycle Lab (Pty) Ltd 2011-06-07 case no 31871/2008 (GSJ)
where a celebrity’s photo has been used without her consent in advertising a cycle shop; see Neethling 2012 TSAR
348 ff; Gowar and Visser 2012 THRHR 154 ff). In Kidson v SA Associated Newspapers Ltd 1957 3 SA 461 (W), on
the other hand, a false light case came before the court. The publication of the photograph of the nurses with the
misleading caption created a false image of the plaintiffs in the eyes of the public. (See in general in this regard
Neethling, Potgieter and Roos Neethling on Personality Rights 357.) See also Claridge v Francken 1885 2 SAR 66
(Coetser Identiteit 256) for an earlier decision on infringement of identity. In this case the name of an architect was
removed from the cornerstone of a church which he designed while the names of the building contractors were
kept. In this way the false impression was created that the architect was not connected with the building. See also
Buthelezi 2013 De Jure 783 ff as to the possible extension of the false light cases.
the wrongfulness of (factual) infringement of identity, the boni mores are, however, still of
prime importance.344 Naturally, wrongfulness is excluded if a ground of justification is present.345
The element of animus iniuriandi must be dealt with in the same manner as in the cases of
infringement of dignity and invasion of privacy.346
4.4 The right to feelings

Apart from feelings of dignity, a person has a wide variety of other spiritual-moral feelings or
inner perceptions on matters such as love, faith (religion), sentiment and chastity.347 Although
there are few indications at common law and in case law of the protection of feelings348 as an
independent personality interest, its existence has been expressly recognised by the
Constitutional Court.349 It is therefore important to examine specific forms of infringement of
the right to feelings, for example breach of promise, abduction, harbouring and enticement,
which have already crystallised into specific forms of iniuria in practice, more closely.
Although, in the past, adultery had also been recognised as an iniuria infringing feelings, it has
now been abrogated as a ground of action.350 Nevertheless, it is submitted that adultery remains
relevant where the circumstances surrounding the adultery were of such a nature that its injury to
feelings may still be regarded as an actionable iniuria.351
4.4.1 Breach of promise

It is established law that breach of promise (ie, the unlawful breach of the promise to marry)
may constitute an iniuria against the innocent party to the engagement contract.352 Breach of
________________________
344 Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) 387; see further GrĦtter v
Lombard 2007 4 SA 89 (SCA) 96 where the court took considerations of legal policy into account to establish
wrongfulness; see also Neethling, Potgieter and Roos Neethling on Personality Rights 359.
345 GrĦtter v Lombard 2007 4 SA 89 (SCA) 96. Apart from consent as a ground of justification, other traditional
grounds of justification, such as necessity and private defence, come into play only in highly exceptional circum-
stances in “false light” cases. Some of the grounds of justification which may be raised against a defamation action
can also justify an infringement of identity. In this regard the reasonable publication of untruth (media privilege) is
of particular importance (see supra 410). See in general Neethling, Potgieter and Roos Neethling on Personality
Rights 359–361.
346 Neethling, Potgieter and Roos Neethling on Personality Rights 361; cf supra 421 425.
347 See for a description of this right, Neethling, Potgieter and Roos Neethling on Personality Rights 43í45 and in
general on the protection of feelings in SA law, idem 283 ff; cf Du Bois 2019 Acta Juridica 260 ff.
348 Aspects of feelings may, of course, develop into independent interests of personality. Potgieter Godsdiensgevoel
passim has delimited the right to religious feelings as an independent personality right (see Neethling, Potgieter and
Roos Neethling on Personality Rights 44 286–289; cf Du Bois 2019 Acta Juridica 264; Venter in Potgieter, Knobel
and Jansen (eds) 519 ff). Cf, however, Descheemaeker 2013 SALJ 438 who says that “emotional tranquillity – the
interest protected through the redress of wounded feelings – does not stand on a par with the likes of corpus, digni-
tas and fama. Rather, it is their reverse side: it is through the violation of their reputation, dignity or body that plain-
tiffs will – ordinarily – be wounded in their feelings. They thus operate on a separate, and parallel, level.” However,
this state of affairs does not imply that the feelings may not be infringed directly without another protected interest
being involved, as is evident from the examples referred to in this chapter (cf Neethling, Potgieter and Roos Neeth-
ling on Personality Rights 44 fn 502).
349 In Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC) 253
Moseneke DP stated: “Besides bodily integrity, our law recognises and protects other personality interests such as
dignity, mental integrity, bodily freedom, reputation, privacy, feeling, and identity” (italics provided). See generally
Neethling, Potgieter and Roos Neethling on Personality Rights 283–286; see further Wiese v Moolman 2009 3 SA
122 (T) 124–125 126 on an express recognition of the right to feelings in respect of adultery; cf also Neethling
2015 (2) LitNet Akademies 397 ff; Potgieter 2016 TSAR 397–411.
350 See para 4.4.2 below.
351 Ibid.
352 See in general Neethling, Potgieter and Roos Neethling on Personality Rights 289 ff; Loubser and Midgley Delict
385–386; Du Bois 2019 Acta Juridica 266–274. Note that the contractual action for breach of promise will prob-
ably no longer be available (see Sepheri v Scanlan 2008 1 SA 322 (C) 330–331; Van Jaarsveld v Bridges 2010 4
[continued ]
428 Law of Delict
promise does not per se constitute an iniuria.353 An iniuria only arises if the innocent party
indeed suffers an actionable impairment of personality.354 It is self-evident that not every breach
of promise results in an impairment of personality and consequently in an iniuria.355 The
plaintiff should therefore only succeed in a claim based on iniuria if he can prove the
requirements necessary for the actio iniuriarum,356 especially wrongfulness and animus
iniuriandi.357
The personality interests that may be infringed by breach of promise358 are, apart from good
name and dignity,359 particularly feelings of piety.360
4.4.2 Adultery: legal relevance

Adultery, which usually consists of sexual intercourse between a married person and someone
other than his or her spouse, was regarded as an iniuria against the innocent spouse in Roman-
Dutch law. He or she could then have instituted the actio iniuriarum to claim satisfaction from
the adulterous third party.361 This view had been accepted by South African courts362 up to the
decision of Brand JA in the Supreme Court of Appeal in RH v DE,363 which was confirmed by
Madlanga J in the Constitutional Court in DE v RH.364 Both courts made a radical turnabout.365
On the basis that our courts have a constitutional duty to develop the common law in accordance
with the contemporary legal convictions of the community (boni mores) as delictual criterion for
________________________
SA 558 (SCA) 560–561; Cloete v Maritz 2013 5 SA 448 (WCC) 451). Cf also RH v DE 2014 6 SA 436 (SCA)
444 452; Loubser and Midgley Delict 387–389.
353 As incorrectly held in, eg, McCalman v Thorne 1934 NPD 86 91–92; Triegaardt v Van der Vyver 1910 EDL 44.
354 As decided in Guggenheim v Rosenbaum (2) 1961 4 SA 21 (W) 36; see also M v M 1991 4 SA 587 (D) 601–602.
355 See however Bull v Taylor 1965 4 SA 29 (A) 36–38; Neethling, Potgieter and Roos Neethling on Personality
Rights 290.
356 See Van Jaarsveld v Bridges 2010 4 SA 558 (SCA) 561; Cloete v Maritz 2013 5 SA 448 (WCC) 451 (see Geduld
and Dircksen 2013 De Jure 957).
357 Van Jaarsveld v Bridges 2010 4 SA 558 (SCA) 561 564 (for a discussion see Loubser and Midgley Delict 385–386;
Slabbert and Van der Westhuizen 2011 Obiter 204 ff).
359 Violation of dignity is present where the breach of promise is of an insulting (contumelious) nature (supra 420). To
succeed with the actio iniuriarum in this regard, the plaintiff must not only prove that his self-esteem has been
wounded, but also that it was, objectively determined, unreasonable or contra bonos mores (Van Jaarsveld v Bridges
2010 4 SA 558 (SCA) 564; cf supra 421 as to the right to dignity). Contumelia in the sense of insult must not,
however, be regarded as an essential requirement for the establishment of liability on the ground of iniuria in the
case of breach of promise (cf Van Jaarsveld 561; Sepheri v Scanlan 2008 1 SA 322 (C) 337; Cloete v Maritz 2013
5 SA 448 (WCC) 451). Such an approach would negate the independent existence of feelings (as a personality in-
terest) since insult has no part to play in the question of whether there has been an infringement of feelings (see
Neethling 2011 THRHR 331–332; Neethling, Potgieter and Roos Neethling on Personality Rights 43 291).
360 In this regard the courts definitely take cognisance of feelings as a personality interest. This emerges from the fact
that “the wounded feelings of the plaintiff” (McCalman v Thorne 1934 NPD 86 92) and the “moral suffering she
has undergone” (Triegaardt v Van der Vyver 1910 EDL 44 46) are taken into account in assessing the amount of
satisfaction to be awarded. Cf, however, Descheemaeker 2013 SALJ 438.
361 See Neethling, Potgieter and Roos Neethling on Personality Rights 293; Du Bois 2019 Acta Juridica 274–279.
362 See, eg, PV v AM 2015 3 SA 376 (ECP); DS v VW 2014-10-02 case no 12537/2012 (GP); Erasmus v Heine
2013-01-28 case no 39407/2010 (GP); KG v AG 2009-08-20 case no 270/2006 (KZP); Wiese v Moolman 2009 3
SA 122 (T) 125; Seroot v Pieterse 2005-06-13 case no 33377/2005 (T); Van der Westhuizen v Van der Westhuizen
1996 2 SA 850 (C); Godfrey v Campbell 1997 1 SA 570 (C).
363 2014 6 SA 436 (SCA).
364 2015 5 SA 83 (CC).
365 For summaries and discussions of these two decisions, see, eg, Neethling, Potgieter and Roos Neethling on
Personality Rights 294í295; Neethling 2015 (2) LitNet Akademies 397–415; Scott in Potgieter, Knobel and Jansen
(eds) 421–438 (very strong criticism of both decisions) and in Schlemmer and O’Brian (eds) 24–27; Carnelley 2015
(2) LitNet Akademies 333–346; Potgieter 2016 TSAR 397–411; Neethling and Potgieter 2019 TSAR 64–66.
wrongfulness366 and to promote the spirit, purport and objects of the Bill of Rights, the
conclusion was reached that in light of the changing mores of society, adultery can no longer be
regarded as delictually wrongful, and that it may accordingly no longer ground the actio
iniuriarum.
However, the fact that adultery is now lawful does not mean that it is irrelevant for our law of
personality í on the contrary. Before the abrogation of adultery as a cause of action, solatium
could be claimed from the adulterous third party for iniuria (contumelia) and loss of consortium.
Both grounds were concerned with the protection of personality rights,367 namely the right to
dignity violated by insult,368 and the right to feelings (particularly feelings of piety) infringed by
loss of consortium.369 In this regard it should be noted that even though adultery per se is no
longer actionable, the conduct of the third party and/or the adulterous spouse may still violate
the feelings of the innocent spouse to such a degree that it nevertheless constitutes an iniuria
against that spouse. Although the viewpoint can in general be supported that, notwithstanding
the fact that the innocent spouse’s dignity and feelings can subjectively be infringed by adultery,
such infringement is not wrongful as a reasonable person would not be insulted and hurt by the
adultery,370 it is not true of all instances of adultery. The circumstances in which an adultery
took place may be of such a nature that the reasonable person in the position of the innocent
spouse would indeed also feel insulted and hurt so that the alleged conduct should be branded as
wrongful. The conduct objected to can therefore in principle be regarded as an iniuria actionable
under the actio iniuriarum. There is no reason why, for example, insulting words or conduct in
these circumstances should be treated differently from any other case of infringement of a
person’s dignity.371 Clear examples from case law can serve as illustrations.372
An interesting question is whether an allegation that a person committed adultery, can constitute
actionable defamation in the light of the fact that adultery is no longer wrongful and the innocent
spouse may therefore not institute the actio iniuriarum against the adulterous third party. In SKJ
v PJ373 the court held that, given the present position, allegations of adultery cannot constitute
actionable defamation. However, the fact that adultery is no longer wrongful for the purposes of
the actio iniuriarum, does not mean, according to Brand JA in RH v DE,374 that it is condoned
legally or morally. It only means that the adulterers, notwithstanding possible moral
blameworthiness, are not legally liable for the adultery. In general, allegations that put a
person’s moral character or lifestyle in a bad light, for example that he is unchaste or immoral,
________________________
366 See RH v DE 2014 6 SA 436 (SCA) para 18; DE v RH 2015 5 SA 83 (CC) paras 16–19. See Barnard-Naudé 2016
SALJ 16 who criticises the SCA for finding it “unnecessary” (para 40) to ask whether the continued existence of the
action for adultery is in conflict with constitutional norms.
367 See Neethling, Potgieter and Roos Neethling on Personality Rights 295í296.
368 See supra 420.
369 There can be no doubt that the feelings of the innocent spouse can be seriously affected by adultery and that the
personality right to feelings is recognised in this regard (see Wiese v Moolman 2009 3 SA 122 (T) 124–125; Neeth-
ling, Potgieter and Roos Neethling on Personality Rights 295í296 and the references in fn 152). Seen in this light,
Brand JA’s opposition (see RH v DE 2014 6 SA 436 (SCA) para 3) to recognising the right to feelings cannot be
supported (see Neethling, Potgieter and Roos Neethling on Personality Rights 296í297; Potgieter 2016 TSAR
398 404 410).
370 RH v DE 2014 6 SA 436 (SCA) para 35.
371 See Neethling, Potgieter and Roos Neethling on Personality Rights 297í299. See also Potgieter 2016 TSAR
407í411; Neethling and Potgieter 2019 TSAR 68í71.
372 See, eg, DS v VW 2014-10-02 case no 12537/2012 (GP), KG v AG 2009-08-20 case no 270/2006 (KZP) and PV v
AM 2015 3 SA 376 (ECP); see Neethling, Potgieter and Roos Neethling on Personality Rights 298í299 for a dis-
cussion of these cases.
373 2016-7-22 case no 4918/2012 (KZND) paras 88 89; see Neethling and Potgieter 2017 (3) LitNet Akademies 927 ff;
Potgieter 2016 TSAR 408 ff.
374 2014 6 SA 436 (SCA) 451.
430 Law of Delict
are defamatory.375 Allegations of adultery clearly fall into this category and should in principle
found an action for defamation.
Finally, since our two highest courts held that adultery is no longer actionable and that the
innocent spouse may not claim solatium as a result of loss of consortium,376 the question remains
whether the Aquilian action for loss of consortium (to claim damages for patrimonial harm
occasioned by the loss of, for example, a spouse’s supervision over the household and children)
is still at the disposal of the innocent spouse. In RH v DE377 Brand JA did not wish to comment
on the continued existence of such a claim, but the view of the court that the innocent spouse
should still be able to institute the Aquilian action against the third party for such loss, can be
supported.378 It has already been held that “a spouse may proceed by means of the actio legis
Aquiliae to recover loss of ‘consortium’ of a patrimonial nature”.379
4.3 Abduction, enticement and harbouring

Unless spouses are separated, judicially or voluntarily, each is entitled to the consortium of the
other.380 In principle, an outsider who disrupts consortium renders himself liable to the innocent
spouse. Nowadays, the abduction, enticement and harbouring of someone’s spouse are regarded
as an actionable loss of consortium.
Abduction is the taking away or kidnapping of a spouse by a third party without his or her
consent.381 Harbouring means giving accommodation to a spouse who has left the matrimonial
home against the will of the other spouse.382 Enticement,383 by contrast, occurs if a third person,
by persuasion or inducement alienates one spouse from the other, and convinces him or her to
leave the matrimonial home.384 385
________________________
375 See, eg, K v T (1904) 21 SC 177 180; O v O 1995 4 SA 482 (W); Welken v Nasionale Koerante Bpk 1964 3 SA 87
(O) 90; Graham v Odendaal 1972 2 SA 611 (A) 614–615; see also Neethling, Potgieter and Roos Neethling on
Personality Rights 213 fn 137.
376 See supra 429.
377 2014 6 SA 436 (SCA) para 41; see also Neethling, Potgieter and Roos Neethling on Personality Rights 300í301;
Neethling and Potgieter 2019 TSAR 72í73.
378 Patrimonial loss is of course not limited to material damage as a result of loss of consortium, but also includes other
financial harm brought about by the adultery, such as medical costs for the plaintiff resulting from a nervous break-
down (see PV v AM 2015 3 SA 376 (ECP) paras 2 39 41; see also Neethling and Potgieter 2019 TSAR 73 fn 70).
379 Peter v Minister of Law and Order 1990 4 SA 6 (EC) 11.
380 Rosenbaum v Margolis 1944 WLD 147 151. Cf as to the meaning of the concept consortium Grobbelaar v
Havenga 1964 3 SA 522 (N) 525–526; Peter v Minister of Law and Order 1990 4 SA 6 (E) 9–10.
381 Neethling, Potgieter and Roos Neethling on Personality Rights 302 fn 205.
382 Eg Woodiwiss v Woodiwiss 1958 3 SA 609 (D) 616.
383 Eg Gower v Killian 1977 2 SA 393 (E) 395; Smit v Arthur 1976 3 SA 378 (A) 387; see in general Neethling,
Potgieter and Roos Neethling on Personality Rights 302.
384 An interesting question, to which there is not yet a clear answer, is whether a plaintiff has an action against a third
party where his or her spouse has not left the communal home, but where the third party nevertheless has caused
the feelings of love and affection for the plaintiff to cool (“alienation of affection”). It is submitted in principle that
there is no reason why “alienation of affection” could not constitute an independent cause of action. Indeed, there
have already been indications that the courts regard it as thus: cf Athanassiou v Schultz 1956 4 SA 357 (W); Peter v
Peter 1959 2 SA 347 (A); Hollard v Cullen 1956 2 SA 605 (D); Van der Westhuizen v Van der Westhuizen 1996 2
SA 850 (C) 852–853; cf also Gower v Killian 1977 2 SA 393 (E). However, if the plaintiff bases his or her claim on
loss of consortium, the claim will fail in all probability. The reason for this is that the courts regard consortium (of
which love between the spouses is merely one aspect) as an indivisible unity which can be infringed in its entirety
only and not merely in part (see Grobbelaar v Havenga 1964 3 SA 522 (N) 525–526). If only “alienation of affec-
tion” is present, an action for loss of consortium is therefore excluded. This undesirable situation can be corrected
only if the immaterial loss resulting from loss of consortium is reckoned as an infringement of feelings under the
actio iniuriarum. “Alienation of affection” will then be able to exist as an independent cause of action.
385 In RH v DE 2014 6 SA 436 (SCA) para 41 Brand JA did not wish to comment on the continued existence of these
three grounds of action after the abrogation of the action for adultery (see supra 428–429). Examined closely, it is
indeed the case that, as far as is known, a spouse has up to now never instituted an action on the ground of the
[continued ]
Although it is firmly established that abduction, enticement and harbouring are delicts, the
courts have seldom expressed themselves on the question of whether they constitute iniuriae.
The actions are generally based on loss of consortium and nothing more. Nevertheless, in RH v
DE386 the Supreme Court of Appeal accepted that the action for enticement is based on the actio
iniuriarum and by implication that enticement therefore constitutes an iniuria. It is nonetheless
evident, as in the case of adultery,387 that the loss of consortium constitutes an infringement of
the feelings of the innocent spouse.388 Therefore, all three delicts are in principle iniuriae and the
requirements for the actio iniuriarum – especially the requirements of wrongfulness389 and
animus iniuriandi390 – also apply here.
________________________
abduction of the other spouse against the abductor, and that the last case of an action on the ground of the harbour-
ing of a spouse came before the court in 1958 (more than 60 years ago) (see Woodiwiss v Woodiwiss 1958 3 SA
609 (D)). One could therefore argue that these two actions have probably been abrogated by disuse. This is, how-
ever, by no means the case with the enticement of a spouse by a third party. As is evident from the discussions of
DS v VW and KG v AG (see Neethling, Potgieter and Roos Neethling on Personality Rights 297í298), the attention
given by Brand JA to enticement in RH v DE (SCA) para 10, and the confirmation in Roberts v Van Schalkwyk and
Roberts 2017-3-16 case no 1984/2014 (FSB) (see Neethling 2017 (2) LitNet Akademies 747 ff) of the actionability
of enticement, this ground of action is still very much alive in our law; and rightly so since enticement is usually
accompanied by a severe humiliation and violation of the feelings of the other spouse (see Neethling, Potgieter and
Roos Neethling on Personality Rights 301; Neethling and Potgieter 2019 TSAR 67í68).
386 2014 6 SA 436 (SCA) 455; see also Roberts v Van Schalkwyk and Roberts 2017-3-16 case no 1984/2014 (FSB)
para 9; Peter v Minister of Law and Order 1990 4 SA 6 (E) 10.
387 Supra 429.
388 Eg Van den Berg v Jooste 1960 3 SA 71 (W) 73; see particularly Sonnekus Privaatregtelike Beskerming van die
Huwelik 239í242; see further Neethling, Potgieter and Roos Neethling on Personality Rights 303í304; Scott in
Potgieter, Knobel and Jansen (eds) 426–427; Potgieter 2016 TSAR 403 ff.
389 Note that apart from consent, particularly (private) defence and necessity as grounds of justification may also be
applicable here (Neethling, Potgieter and Roos Neethling on Personality Rights 304).
390 See in this regard idem 304.
Chapter 11
Forms of liability without fault
1
1 General
1.1 Dominance of the fault theory2

In the legal dogma of the previous century it was accepted as axiomatic that a wrongdoer who
caused damage could be delictually liable only if there was fault (intent or negligence) on his
part. This view of the basis of delictual liability is briefly referred to as the fault theory. Accord-
ing to the proponents of this theory, it is inconceivable that a wrongdoer should be held delic-
tually liable in the absence of fault. The absolute acceptance of fault as the only basis for
delictual liability culminated in the famous German jurist Von Jhering’s3 statement that the fault
theory is a “perpetual truth”. This view has traditionally also been accepted in South African law
where the law of delict is still firmly based on the principle of fault.4
1.2 Reaction to the fault theory5

The phenomenal industrial and technological development which commenced in the middle of
the last century brought about radical social and economic changes, and gave rise to a need to re-
evaluate the traditional basis of delictual liability. Increased mechanisation and expanding
technology in almost every facet of life, together with a corresponding and unprecedented
exposure of individuals to the risk of harm, drew attention to the inadequacy of the fault theory.
Electricity, nuclear power, motor vehicles, aeroplanes and the like have created potentially
dangerous situations for the individual in which he is virtually defenceless. The growing need to
protect the individual caused the development, in Continental and Anglo-American legal sys-
tems, of a field of liability without fault (risk, absolute or strict liability). Likewise in South
African law, certain instances of strict liability were imposed by legislation,6 while a growing
number of judges7 and other jurists8 began to stress the need for the development of a field of
delictual liability without fault over and above the traditional area of liability based on fault.
1.3 Justification for liability without fault

The increased liability which liability without fault entails for the defendant, is justified by
widely divergent factors,9 such as the creation of a high risk of damage; the advantages which
________________________
1 With regard to the outline as well as the content, this introduction is based mainly on Van der Walt’s research
(Risiko-aanspreeklikheid passim, 1968 CILSA 49).
2 See in this regard Van der Walt Risiko-aanspreeklikheid 13–24, 1968 CILSA 50–51.
3 Das Schuldmoment in römischen Privatrecht 40.
4 The three pillars of our law of delict, the actio legis Aquiliae, the actio iniuriarum and the action for pain and
suffering, all in principle require fault for liability (supra 5). See also Van der Walt and Midgley Delict 39í40.
5 Van der Walt Risiko-aanspreeklikheid 25 ff, 1968 CILSA 51–62.
6 Infra 456 ff.
7 Infra 444 ff.
8 Eg Van der Walt Risiko-aanspreeklikheid passim; Barlow Vicarious Liability 6–8 184–190; Scott Middellike
Aanspreeklikheid 31–53; Van der Merwe Skade veroorsaak deur Diere 260 ff; Neethling 2002 THRHR 574 ff;
9 See in this regard Van der Walt Risiko-aanspreeklikheid 192 ff.
433
434 Law of Delict
the creator of the risk draws from his products; the greater degree of care occasioned by an
increased liability; the possibility of transferring the risk by way of insurance to an insurer; the
fact that the wrongdoer exercises control over his enterprise, and thus also the risk it creates; and
considerations of fairness in general.
Jurists concentrated particularly on the first two of these factors in providing a more detailed and
theoretical basis for instances of strict liability.10
(a) Interest or profit theory According to this theory, where a person acts in his own interest,
and causes harm to another, he bears the burdens and disadvantages which his activities bring
about. Thus the proprietor of a factory – someone who is active in his own economic interests –
must, as a corollary of furthering his own interests, also bear responsibility for the harm that this
may cause to others. Therefore, he who reaps the benefits of an activity must also bear its losses.
This justification of strict liability is, as Van der Walt11 contends, unacceptable. In the first
place, there is almost no human activity which cannot in one way or another be interpreted as
being in the interests of the actor. This would mean that almost any conduct giving rise to
damage could form the basis of liability without fault. Secondly, if “interest” and “benefit” are
restrictively defined as economic advantage only, it would mean in practice that the victim’s
claim for compensation depends on whether the perpetrator’s activity, such as a railway under-
taking, is a profitable one or not – an absurd state of affairs.
(b) Risk or danger theory This means that where a person’s activities create a considerable
increase in the risk or danger of causing damage, ie, an increased potential for harm, there is
sufficient justification for holding him liable for damage even in the absence of fault. Whether
an increase in risk is “considerable” enough in a specific case is difficult to ascertain. For this
reason, the danger theory has been subject to much criticism.12 Van der Walt,13 however, points
out that the question of whether the potential of risk has been increased enough will depend
largely on the legal convictions of the community, as reflected in legislation or case law. This
theory provides a satisfactory explanation for most of the instances of strict liability which are
recognised in our law.14 Moreover, the utility and practical value of risk liability are emphasised
by the Supreme Court of Appeal in relevant cases.15 16
Nonetheless, a satisfactory and universally accepted scientific basis for every instance of liabil-
ity without fault has not yet been found,17 and will probably never be found. A flexible approach
is therefore necessary so that each specific case may be valued on its own merits and judged
accordingly.
________________________
10 Van der Walt 1968 CILSA 54–56; see also Van der Merwe and Olivier 563–564.
11 Risiko-aanspreeklikheid 203 ff.
12 Van der Merwe and Olivier 56; cf Van der Westhuizen v Burger 2018 2 SA 87 (SCA) para 25.
13 1968 CILSA 55.
14 See Neethling 2002 THRHR 590 fn 100. See also idem 591 for a tentative formulation of a general principle of risk
liability that may be considered for our law.
15 In Loriza Brahman v Dippenaar 2002 2 SA 477 (SCA) 485 Olivier JA stated in respect of the actio de pauperie
(infra 435) that the fact that “it constitutes strict liability, is as such no reason to reject it; the phenomenon of risk
liability expands in modern times and fulfils, in the relevant fields, a useful function. Liability for damage caused
by tamed animals is such a field . . . If one’s premise is that all ‘delictual’ liability should rest on the fault principle,
then the actio de pauperie naturally appears inelegant and an anomaly. On the other hand, if one’s premise is a
broader vision of ‘delictual’ liability, which includes meritorious instances of risk liability, then the question is only
whether the actio de pauperie can play a meritorious role from a practical point of view” (translation).
16 However, see Knobel 2002 THRHR 27–30.
17 Van der Walt Risiko-aanspreeklikheid 199; Van der Merwe and Olivier 565.
Chapter 11: Forms of liability without fault 435
1.4 General characteristics of liability without fault18

The most obvious characteristics, which are present in most instances of strict liability, are
briefly mentioned here:
(a) Fault is not required for liability in claims for compensation.
(b) Vis maior (act of God) and fault on the part of the prejudiced person are generally recog-
nised as defences.19
(c) Strict liability is usually imposed – either by legislation or judicial pronouncement – in cases
involving activities which as a rule create extraordinary increases in the risk of harm to the
community.
(d) In instances where strict liability has been imposed by legislation, the extent of the liability
is usually curtailed by fixing maximum amounts of compensation.20
(e) In most cases liability without fault is restricted to damage to life, limb and property21 (and
therefore does not include pure economic loss).22
In Continental systems, liability without fault originated primarily from legislation, while in
Anglo-American law, case law played the dominant role. In South Africa, both the legislature
and the courts have contributed to the development of liability without fault.
2 South African law
There are significant indications of the establishment and development of instances of strict
liability in our law, even though our law of delict remains largely dominated by the fault prin-
ciple. South African law still recognises some common law instances of strict liability; in addi-
tion, new instances are being created by the legislature,23 as well as by the courts.24
2.1 Common law and case law25

2.1.1 Damage caused by animals
2.1.1.1 Actio de pauperie
With this action, which originated in the Twelve Tables, the prejudiced person may claim
damages from the owner of a domestic animal which has caused damage.26 The most important
________________________
18 Van der Walt 1968 CILSA 62–63.

19 Cf however Black v Kokstad Town Council 1986 4 SA 500 (N) 502–503.
20 The wrongdoer is, eg, liable to a maximum of R50 000.
21 Ie, those interests which are directly threatened by the activity creating the danger.
22 See, eg, s 61(5) of the Consumer Protection Act 68 of 2008; infra 456.
23 See also Loubser and Midgley Delict 458 ff.
24 See also Telkom (SA) Ltd v Duncan 1995 3 SA 941 (W) 944–945.
25 Note that the principle of risk liability without fault, as formulated in the famous English decision in Rylands v
Fletcher 1868 LR 3 HL 330, has not been received into our law (Union Government (Minister of Railways) v Sykes
1913 AD 156 161; Botes v Potchefstroom Municipality 1941 TPD 149 152; Van der Walt and Midgley Delict 46).
The facts were as follows: the defendants erected a reservoir on their land. At the place where it had been erected
was an old mineshaft, which was connected by tunnels to a mine on the plaintiff’s land. The defendants were un-
aware of the shaft and tunnels. The water in the reservoir escaped from the shaft and tunnels, and flooded the plain-
tiff’s mine. The plaintiff claimed compensation. Although the defendants were not negligent, they were held liable
nevertheless, on the ground that “the person who, for his own purposes, brings on his land and collects and keeps
there anything likely to do mischief if it escapes, must keep it in at his peril; and, if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape” (339–340).
26 In Roman law it was a noxal action: if the owner refused to compensate the damage, he had to surrender the animal
to the prejudiced person (the surrendering was called noxae deditio). In our law noxae deditio has fallen into desue-
tude, and an owner cannot escape liability by surrendering the animal (O’Callaghan v Chaplin 1927 AD 310 360;
cf Van der Westhuizen v Burger 2018 2 SA 87 (SCA) para 24).
436 Law of Delict
characteristic of the actio is that fault on the part of the owner is not a requirement for liability.27
In other words, this action entails strict liability.28
After initial doubt about whether this action had fallen into disuse,29 the Appellate Division in
O’Callaghan v Chaplin30 decided that it is still part of our law. To succeed in bringing the actio
de pauperie, the following requirements must be met:31
(a) The defendant must be the owner of the animal when the damage is inflicted.32 Mere
control over the animal is thus insufficient for a successful claim under the actio de pauperie.33
(b) The animal must be a domestic animal.34 The concept “domestic animal” must not be in-
terpreted too strictly, because it may also include stock, horses, mules and even bees and meer-
kats. Other wild animals are, however, excluded.35
(c) The animal must act contra naturam sui generis when inflicting the damage.36 This
means that the animal involved must have acted, objectively seen, contrary to what may be
expected of a decent and well-behaved animal of its kind.37 A dog that bites, a horse that jumps
and an ox that butts, therefore, in principle, act contra naturam. However, this is qualified by the
requirement that the animal must have caused the damage spontaneously from “inward excite-
ment or vice” or sponte feritate commota.38 Therefore, as a rule, the animal does not act contra
naturam if it is reacting to external stimuli.39 This rule is, however, not consistently applied by
the courts.40
________________________
27 Van der Merwe Skade veroorsaak deur Diere 51 ff; Van der Merwe and Olivier 486–487; Van der Walt and
Midgley Delict 47–48; Loubser and Midgley Delict 458–464.
28 Walker v Redhouse [2007] 4 All SA 1217 (SCA) 1218. According to Van der Walt Risiko-aanspreeklikheid 360 ff
and Van der Merwe Skade veroorsaak deur Diere 260 ff, this form of liability without fault may be justified by the
fact that the keeping of animals creates a typical risk or danger of damage (see also Clark 1991 THRHR 161–162;
cf Van der Westhuizen v Burger 2018 2 SA 87 (SCA) para 25). Van der Merwe and Olivier 493, on the other hand,
are of the opinion that the actio de pauperie should be abolished and be replaced by the ordinary delictual actions
based on fault.
29 Parker v Reed (1904) 21 SC 496.
30 1927 AD 310; see also Loriza Brahman v Dippenaar 2002 2 SA 477 (SCA) 482–485 (Neethling and Potgieter
2003 TSAR 590 ff; Scott 2003 TSAR 194 ff) where the SCA, in the words of Ponnan JA in Van der Westhuizen v
Burger 2018 2 SA 87 (SCA) para 25, “refused to declare the remedy obsolete, holding that the actio de pau-
perie still served its purpose and that it was neither contra bonos mores, nor unconstitutional”.
31 See the summary of the relevant principles by De Villiers CJ in SAR & H v Edwards 1930 AD 3 9–10; cf Van der
Westhuizen v Burger 2018 2 SA 87 (SCA) para 24. Cf also Visser v Visser 2012 4 SA 74 (KZD) 76 fn 1; Van der
Walt and Midgley Delict 47 who list six requirements.
32 Eg O’Callaghan v Chaplin 1927 AD 310 330; Moubray v Syfret 1935 AD 199 (where the action failed against the
buyer in terms of a hire purchase agreement).
33 Maree v Diedericks 1962 1 SA 231 (T) 238; see in general further Van der Merwe and Olivier 488–489.
34 Eg O’Callaghan v Chaplin 1927 AD 310 337 370; see also Loriza Brahman v Dippenaar 2002 2 SA 477 (SCA)
482.
35 See in this regard Van der Merwe Skade veroorsaak deur Diere 65.
36 See in general, Van der Merwe and Olivier 489–491; Van der Merwe Skade veroorsaak deur Diere 91–93.
37 The test does not concern a particular species (such as a certain breed of cattle or dog) of a genus (cattle or dog),
but the normal behaviour of animals belonging to the relevant genus (Loriza Brahman v Dippenaar 2002 2 SA 477
(SCA) 485–486).
38 Loriza Brahman v Dippenaar 2002 2 SA 477 (SCA) 482 486–487.
39 Eg Da Silva v Otto 1986 3 SA 538 (T) 541–543; Lawrence v Kondotel Inns (Pty) Ltd 1989 1 SA 44 (D) 50–52; SAR
& H v Edwards 1930 AD 3 9–10; Solomon v De Waal 1972 1 SA 575 (A) 581; Swart v Honeyborne 1981 1 SA 974
(C) 975–976; Coetzee and Sons v Smit 1955 2 SA 553 (A) 558. Examples of external stimuli are where a harnessed
horse took to flight and caused damage after a beam had broken and hit him against the leg (Cowell v Friedman
and Co (1888) 5 HCG 22); where sheep rams broke through a fence and covered the neighbour’s ewes (Coetzee
and Sons v Smit 1955 2 SA 553 (A)); and where stock grazed on green grass (idem 558).
40 It has been stated that a horse that kicks after it has been stung by a horsefly (Cowell v Friedman and Co (1888) 5
HCG 22 42), or a dog that jumps up against a child who is putting food into her mouth (Brown v Laing 1940 EDL
75 78) , or a dog that bites a child during play (Thysse v Bekker 2007 3 SA 350 (E) 356–357; see Scott in Boezaart
and De Kock (eds) 104–110), reacts of its own volition and therefore acts contra naturam. See further Loriza
Brahman v Dippenaar 2002 2 SA 477 (SCA) 486–487; Van der Merwe Skade veroorsaak deur Diere 90.
Defences Important defences41 against the actio de pauperie have developed from the require-
ment of spontaneous conduct.42 They are vis maior,43 culpable or provocative conduct44 on the
part of the prejudiced person,45 culpable conduct on the part of an outsider46 and provocation by
another animal.47 All these cases have the effect of excluding liability, because the animal did
not act from “inward excitement or vice” and consequently did not act contra naturam sui
generis. Apart from these defences, the defence of volenti non fit iniuria in the form of voluntary
assumption of risk is also available to the defendant.48
(d) The prejudiced person or his property must be lawfully present at the location where
the damage is inflicted.49 The courts differ in their interpretation of this requirement. Some
cases require a “lawful purpose”50 and others a “legal right”51 on the part of the prejudiced
________________________
41 Van der Merwe Skade veroorsaak deur Diere 105–110; Van der Walt and Midgley Delict 47.
42 Cf Van der Merwe and Olivier 491–492.
43 Van der Merwe Skade veroorsaak deur Diere 106.
44 This conduct need not necessarily be accompanied by fault. Therefore, even the conduct of a child younger than
7 years (who is accordingly culpae and doli incapax: see supra 158) can provoke a dog sufficiently that it does not
act contra naturam sui generis if it bites the child (Green v Naidoo 2007 6 SA 372 (W) 378–379; see Scott in
Boezaart and De Kock (eds) 110–114; Knobel 2010 THRHR 172).
45 This is the case if the prejudiced person provoked the animal (by, eg, hitting a dog on the nose or pulling his tail:
Smith v Burger 1917 CPD 662 664, or by pulling a scab from a dog’s nose while it is eating: Green v Naidoo 2007
6 SA 372 (W) 379–381), or if there was “substantial negligence or imprudence” (O’Callaghan v Chaplin 1927 AD
310 329; Da Silva v Otto 1986 3 SA 538 (T) 540) on his part (eg where he strokes a mule knowing that the mule is
skittish: SAR & H v Edwards 1930 AD 3 10). However, if the prejudiced person provoked the animal lawfully – eg
where he hit a dog which had attacked his dog with a sjambok in order to ward off the attack, and was bitten in the
process by the attacker – it (the attacker) still acted contra naturam. According to Nestadt J in Da Silva v Otto 1986
3 SA 538 (T) 542, an objective test of the reasonable dog is applied. It is therefore expected that such a dog will
make a distinction between a lawful and unlawful attack on him. In the case of the former, he must submit to
human authority, in other words a lawful instigation does not negate the actio de pauperie. Because the court
applies an objective test, that has really been developed for people, to animals, “the animal is personified and the
reasonable man test becomes the test of the reasonable dog” (Thysse v Bekker 2007 3 SA 350 (E) 356–357; cf
Green v Naidoo 2007 6 SA 372 (W) 377–378; Fourie v Naranjo 2008 1 SA 192 (C) 197–198; Scott in Boezaart
and De Kock (eds) 95 ff; Knobel 2010 THRHR 172). In Kohl v Grobbelaar (4962/2017) [2018] ZAECGHC (22
Mei 2018) a child had been bitten by a watchdog while sitting on a boundary wall. The court held that the dog had
acted contra naturam sui generis in attacking the child, that the latter’s presence on the wall was not unlawful and
found in favour of the plaintiff (see Scott 2018 (3) LitNet Akademies 1244 ff for valid criticism, mainly because the
question of accountability of a victim of a dog attack was incorrectly regarded as a relevant factor in applying the
principles of the actio de pauperie). (For further examples of impermissible provocation, see Van der Merwe Skade
veroorsaak deur Diere 107–108.)
46 Where the animal is provoked by a third party by, eg, inciting or wounding it and the animal causes damage, the
owner is not liable (eg SAR & H v Edwards 1930 AD 3 10; Lever v Purdy 1993 3 SA 17 (A) 21 23). The same
applies where the damage may be attributed to the negligence of a third party provided – and this is an important
qualification – that the third party was in charge or control of the animal and by his negligent conduct failed to
prevent the animal from injuring the victim (Lever v Purdy 1993 3 SA 17 (A); the owner is therefore liable where a
negligent third party, who was not in control of the animal, enabled the animal to cause the harm (see Cloete v
Van Meyeren 2019 2 SA 490 (ECP)) (Scott 2019 THRHR 321 ff)). The ordinary delictual actions are, of course,
available against the third party in all these instances.
47 Where another animal provoked the damaging conduct of the animal involved (eg by starting a fight), the actio de
pauperie is also excluded (eg Cowell v Friedman and Co (1888) 5 HCG 22 43; cf Maree v Diedericks 1962 1 SA
231 (T)).
48 See, eg, Maartens v Pope 1992 4 SA 883 (N); Joubert v Combrinck 1980 3 SA 680 (T) 682; Lawrence v Kondotel
Inns (Pty) Ltd 1989 1 SA 44 (D) 55; Green v Naidoo 2007 6 SA 372 (W) 387–388; Fourie v Naranjo 2008 1 SA
192 (C) 198–200; cf Loriza Brahman v Dippenaar 2002 2 SA 477 (SCA) 487. The ordinary principles for volenti
non fit iniuria (consent) as a ground of justification (supra 128) are, of course, applicable here (eg Maartens v Pope
1992 4 SA 883 (N) 886–888; cf however Knobel 1993 THRHR 303–304).
49 See in this regard Van der Merwe Skade veroorsaak deur Diere 110–114; Van der Merwe and Olivier 492; see also
Drummond v Searle (1879) 9 Buch 8 9; O’Callaghan v Chaplin 1927 AD 310 328–329; Veiera v Van Rensburg
1953 3 SA 647 (T) 650–651; Green v Naidoo 2007 6 SA 372 (W) 376–377. Since the burden is on the defendant to
prove that the plaintiff or his property was lawfully present at the specific place, this is not, strictly speaking, a
requirement for the actio de pauperie, but a defence against it (Vermaak v Khoza 1979 1 SA 578 (N) 582; Van der
Merwe Skade veroorsaak deur Diere 110–115).
438 Law of Delict
person in order to establish a lawful presence at the location involved. The latter test is narrower
than the former, since a person who has a legitimate purpose may not necessarily have a right to
be at the place.52 The “legal right” approach is nevertheless preferable, because one cannot
always determine what the aim or purpose of property, being a lifeless object, is.53
Both patrimonial damages54 and satisfaction55 may be claimed with the actio de pauperie.56 The
extent of the defendant’s liability should be limited in accordance with the flexible criterion for
legal causation.57
2.1.1.2 Actio de pastu

With this action,58 which also originated in the Twelve Tables, damages are claimed from the
owner of an animal which caused loss by eating plants.59 As in the case of the actio de paupe-
rie,60 one is concerned with strict liability on the part of the owner.61
After initial doubt about whether the actio de pastu had fallen into disuse, it may now be accept-
ed that it is still part of our law.62 It appears that there are three requirements for a successful
claim under the actio de pastu:63
(a) The defendant must be the owner of the animal when the damage is caused.64
(b) The animal must cause damage by eating65 plants.66 67
(c) The animal must act of its own volition when causing the damage.68
________________________
50 Eg Fourie v Naranjo 2008 1 SA 192 (C) 201; Le Roux v Fick (1879) 9 Buch 29 42. According to this test all
persons who enter premises with a lawful purpose, such as to deliver milk or the post, to ask for directions, to beg
for food or to distribute advertisements are lawfully present at the place (Van der Merwe Skade veroorsaak deur
Diere 112).
51 Eg O’Callaghan v Chaplin 1927 AD 310 331; Veiera v Van Rensburg 1953 3 SA 647 (T) 650–651; Fourie v
Naranjo 2008 1 SA 192 (C) 201. According to this test only persons who are on the premises either with consent or
by invitation, have a “legal right” and are therefore lawfully there. Problems are experienced in this regard in decid-
ing when tacit consent is present (Van der Merwe Skade veroorsaak deur Diere 113–114 281).
52 Van der Merwe Skade veroorsaak deur Diere 112–113.
53 Idem 112; Van der Merwe and Olivier 492.
54 Eg damage to property or loss of maintenance.
55 For personal injuries and emotional shock (Fourie v Naranjo 2008 1 SA 192 (C) 201–202; cf Potgieter in Boezaart
and De Kock (eds) 210–213).
56 O’Callaghan v Chaplin 1927 AD 310; SAR & H v Edwards 1930 AD 3; Van der Merwe and Olivier 493.
57 Fourie v Naranjo 2008 1 SA 192 (C) 202; see in this regard Potgieter in Boezaart and De Kock (eds) 213–215;
supra 233 ff; cf however Van der Merwe and Olivier 493–494.
58 See in general Van der Merwe Skade veroorsaak deur Diere 121 ff; Van der Merwe and Olivier 494–497; Van der
Walt and Midgley Delict 48í49; Loubser and Midgley Delict 464.
59 Originally the actio de pastu had a noxal character (just like the actio de pauperie: supra fn 26). However, the
practice of noxae deditio (surrendering the animal to escape liability) has fallen into desuetude (Van der Merwe
Skade veroorsaak deur Diere 138–139).
60 Supra 435. The reason why the actio de pastu developed in addition to the actio de pauperie is self-evident – by
grazing the animal does not act contra naturam sui generis; the actio de pauperie is thus excluded.
61 Eg Van Zyl v Kotze 1961 4 SA 214 (T) 216; Vermaak v Du Plessis 1974 4 SA 353 (O) 358; Potgieter v Smit 1985 2
SA 690 (D) 695; Van Zyl v Van Biljon 1987 2 SA 372 (O) 375 413. In the last case (413) the liability without fault
of the owner is not only justified because of the benefit that the animal and its owner get from grazing on another’s
property, but also because of the fact that plant-eating animals are “dangerous” since they can cause damage to
others of their own volition without their owner’s involvement or knowledge.
62 Ibid; Van der Merwe and Olivier 494 ff.
64 See in this regard supra 436 under (a) of the actio de pauperie.
65 Not only grazing of plants, but also eating reaped grain is applicable here (Crous v Jaffe Bros 1921 OPD 2).
66 Plants include crops, grass and shrubs (eg Potgieter v Smit 1985 2 SA 690 (D) 695).
67 For the purpose of recovering damages, damage is not restricted to that caused by grazing or eating, but includes all
damage which is caused in the process of grazing (such as the trampling of crops and the breaking of branches)
(Vermaak v Du Plessis 1974 4 SA 353 (O) 359).
68 Van Zyl v Van Biljon 1987 2 SA 372 (O) 376 ff.
As in the case of the actio de pauperie, vis maior69 and fault on the part of the prejudiced per-
son70 constitute complete defences against the actio de pastu. However, culpable conduct on the
part of an outsider does not exclude the actio de pastu.71
The field of application of this action may overlap with that of the so-called pound statutes.72
2.1.1.3 Actio de feris
In terms of an edict of the aediles curules,73 the bringing of wild or dangerous animals onto or
into a public place was prohibited. If a person broke this rule and the animal caused damage to
someone, the offender – who need not have been the owner – was liable.74 As in the case of the
previous two actions, liability is not based on the fault of the person who is in control of the
animal.75 In Van der Westhuizen v Burger76 the Supreme Court of Appeal accepted that the
action is part of our law and is based on strict liability of the owner of the animal.77 Provocation
of the animal appears to be regarded as a defence.78
________________________
69 Idem 404 ff 411–412. Steyn J distinguished in this regard between instances where vis maior directly affected the
animals (eg cattle fleeing from a veld fire caused by lightning and then trampling down a fence) and instances of
indirect influence (eg where lightning caused an opening in a fence through which cattle later proceeded). Accord-
ing to the judge vis maior will succeed only in the first situation because it is only there, and not in the event of
indirect influence, that the animals did not act of their own volition (cf supra fn 68). This argument is, however,
artificial since in both instances the animals started grazing of their own volition (cf the judge’s justification (410)
for liability (infra fn 71) in cases where a third person chased an animal onto another’s land and the animal then
started grazing of its own volition). Seen in this light, vis maior should never apply as a defence. This result is,
however, unacceptable. It is suggested that – as with regard to the actio de pauperie – vis maior (direct as well as
indirect) and culpable conduct on the part of a third party should exclude liability. After all, these external factors
made it possible for the animal to graze on another’s land; the animal did not gain access to the land of its own voli-
tion. The fact that the animal then started to graze there of its own volition – which is usually the case – thus should
not play a part (see further Neethling 1988 THRHR 549–551; cf Van der Merwe and Olivier 496–497).
70 See Potgieter v Smit 1985 2 SA 690 (D) 695–696; Pieters v Botha 1989 3 SA 607 (T) 619–621.
71 In Vermaak v Du Plessis 1974 4 SA 353 (O) 359 it was stated that it is fair that the owner of stock who enjoys the
benefit of the crops grazed by his stock, must also be liable for the conduct of another person who chased the stock
onto the prejudiced person’s property (see however Heron v Skinner 1971 1 SA 399 (RA) and supra fn 69; see in
general further Van Zyl v Van Biljon 1987 2 SA 372 (O) 392–399 410–411).
72 See in this regard Van der Merwe Skade veroorsaak deur Diere 136–138; Van der Merwe and Olivier 497. See
Van der Merwe 2014 Stell LR 612 ff on recent developments on the concurrence of the remedies in terms of the
reformed pound legislation and the actio de pastu in light of the CC’s judgment in Zondi v MEC for Traditional
and Local Government Affairs 2005 3 SA 589 (CC).
73 See in this regard Van der Merwe Skade veroorsaak deur Diere 140 ff; Van der Merwe and Olivier 498; Van der
Walt and Midgley Delict 42.
74 The necessity of the existence of this action in addition to the actio de pauperie is evident from the fact that wild
animals do not act contra naturam sui generis when they cause damage. The actio de pauperie is thus not applic-
able (cf Van der Merwe and Olivier 490–491).
75 Van der Merwe Skade veroorsaak deur Diere 144. As pointed out by Ponnan JA in Van der Westhuizen v Burger
2018 2 SA 87 (SCA) paras 28 ff, the distinction in principle between the actio de pauperie and the actio de feris
has not always been kept in mind. Historically, the two actions were concurrent remedies (para 27) and it will
entirely depend on the circumstances of each case which of the two is the suitable remedy (para 28).
76 2018 2 SA 87 (SCA) (the plaintiff injured his Achilles tendon whilst fleeing from a wild ostrich). Prior to this
decision, it was uncertain whether this action is still part of our law (see O’Callaghan v Chaplin 1927 AD 310 325
330 367; cf Zietsman v Van Tonder 1989 2 SA 484 (T) 493; see however Le Roux v Fick (1879) 9 Buch 29 (“the
Aedilitian action is still part of our law”); Hanger v Regal 2015 3 SA 115 (FB); cf Van der Merwe Skade veroor-
saak deur Diere 157–160; Visser 2006 THRHR 303 ff). What is nevertheless clear from Hanger 117 is that, if strict
liability should be applicable, the owner of the wild animal would not be liable if the complainant either provoked
the attack or by her negligence contributed to her own injury (see Bristow v Lycett 1971 4 SA 223 (RA); Klem v
Boshoff 1931 CPD 188). In Van der Westhuizen Ponnan JA, after an insightful overview of the origin and devel-
opment of the action (paras 27 ff), was hesitant to pronounce on the possible obsolescence of the action but con-
cluded that, on his reading, “everything appears to point to an action based on the edict being unsuited to modern
conditions” (para 35).
77 Swain JA (para 3) stated: “The cause of action pleaded by the respondent was the actio de ferris in terms of which
the bringing of wild or dangerous animals on or into a public place, or a place to which members of the public have
access, was prohibited. The cause of action is based upon ownership and strict liability is imposed upon the owner
[continued ]
440 Law of Delict
2.1.1.4 Conclusion
The question of whether there is any merit in retaining three separate actions in South African
law (the actio de pauperie, the actio de pastu and the actio de feris), each with its own require-
ments for damage caused by animals, arises.79 In fact, it is only the contra naturam sui generis
requirement of the actio de pauperie that stands in the way of a single general action based on
strict liability for all damage caused by any animal. If this requirement were set aside, the actio
de pauperie would apply to those cases where damage is caused by wild animals or where an
animal eats or depastures vegetation; the fact that these cases are not considered as contra
naturam sui generis, therefore, would then not preclude the application of the actio de pauperie.
Such an adaptation of the law would be justified, because the abolition of the contra naturam
requirement is desirable for two reasons:80 In the first place, the requirement points to a personi-
fication or humanisation of the animal by means of the objective “reasonable animal” test – a
line of reasoning that is artificial and thus undesirable. Secondly, the requirement may be inter-
preted in such a wide variety of ways that it not only leads to legal uncertainty, but in the final
instance has the effect of classifying as contra naturam any harmful conduct by an animal which
for policy reasons, it is felt, should found an action for damages.81 This requirement should
therefore be abolished.
Van der Merwe82 and Van der Walt83 further suggest that the basis of strict liability for damage
cause by animals is (and should be) the risk principle.84 In terms of the risk principle, a person
who keeps or controls an animal in his own interest is liable without fault, because he creates an
increased risk of harm to the community.85 Liability should thus be based on possession or
physical control, not on ownership, as is presently the position with the actio de pauperie and
the actio de pastu. Ultimately we agree with Ponnan JA86 who said that there is much to recom-
mend Miller’s87 suggestion that the time has come for a comprehensive modern statute to
replace the existing rules relating to damage caused by animals which are largely historical in
origin and sometimes difficult to apply.
________________________
of the animal, for the consequences of the animal’s behavior. The victim is accordingly absolved from alleging and
proving negligence on the part of the owner, which is presumed.” See however Scott 2018 THRHR 516 ff for a
thorough critical discussion of the case.
78 Van der Westhuizen v Burger 2018 2 SA 87 (SCA) (the defence of provocation succeeded where the plaintiff had
provoked an ostrich into chasing him by throwing a stone at it (see paras 19–20 36–37) (see Scott 2018 THRHR
519–520)). Swain JA also found that causation was absent (para 21). For the defence of provocation in the case of
the actio de pauperie, see supra 437.
79 It should be borne in mind that, where the harm done by an animal (domestic or wild) falls outside the scope of
these three actions, the plaintiff may still base his claim for damages on one (or more) of the ordinary delictual
actions (Aquilian action, actio iniuriarum and action for pain and suffering) provided their requirements are met.
The requirement of fault (intent or negligence) on the part of the defendant (the owner or person in charge of the
animal) is of particular importance (see Knobel 2010 THRHR 172–175; cf in general McKerron Delict 256–258;
Van der Merwe and Olivier 498 fn 91; Knoetze and Hoctor 2000 Obiter 184 ff; Deysel v Karsten 1994 1 SA 447
(A) (1992 3 SA 290 (E)) 292 ff; Pieters v Botha 1989 3 SA 607 (T) 617–618; Zietsman v Van Tonder 1989 2 SA
484 (T) 492–493; Bristow v Lycett 1971 4 SA 223 (RA); Mbhele v Natal Parks, Game and Fish Preservation
Board 1980 4 SA 303 (D); Moubray v Syfret 1935 AD 199; Thysse v Bekker 2007 3 SA 350 (E) 353; Green v Nai-
doo 2007 6 SA 372 (W) 381 ff; Hanger v Regal 2015 3 SA 115 (FB) 117 ff).
80 See in general Van der Merwe Skade veroorsaak deur Diere 284 289–291; Knobel 2011 THRHR 633; Neethling
and Potgieter 2003 TSAR 593.
81 Cf Da Silva v Otto 1986 3 SA 538 (T) 541; see also Clark 1991 THRHR 162–163.
82 Skade veroorsaak deur Diere 260 ff.
83 Risiko-aanspreeklikheid 360 ff.
84 See in this regard supra 434; cf Van der Westhuizen v Burger 2018 2 SA 87 (SCA) para 25.
85 The animal occupies such an “unnatural” position in a mechanised, industrialised and densely populated world that
it necessarily brings about a further risk of causing harm.
86 Van der Westhuizen v Burger 2018 2 SA 87 (SCA) para 35.
87 1972 SALJ 175.
2.1.2 Damage caused by objects thrown, poured or falling out of or from a

building
In Roman law, the actio de effusis vel deiectis was available against the occupier of a building
for damage caused by throwing or pouring an object out of or from a building. Similarly, the
actio positi vel suspensi could be instituted against the occupier of a building to claim a criminal
fine if an object was placed in or hung from a building in such a way that it constituted a dan-
ger.88 In Roman-Dutch law, the latter action lost its criminal character, but damages could be
claimed under it if the object fell, causing damage or personal injuries.89 Both actions were
characterised by the fact that fault on the part of the occupier90 was not a requirement for liabil-
ity.91
These actions still apply in South African law.92 Their existence in modern law is, however,
open to doubt.93
2.1.3 Damage caused by loss of a stolen thing

If a stolen thing went missing, even in circumstances not attributable to the fault of the thief, the
owner, or any other person who had an interest in the thing, could in Roman-Dutch law institute
the condictio furtiva against the thief to claim damages. The thief simply bore the risk of loss of
the thing94 and was therefore strictly liable.95 This action applies unchanged in our law.96 Theft
has a wide meaning and includes furtum usus (the appropriation of the use of another’s thing).
The intention to appropriate a thing permanently is not a requirement of the condictio in in-
stances of furtum usus. The condictio will be available where, for example, the defendant with-
draws the thing from the possession of another or takes it and uses it while intending to restore
possession after use.97
2.1.4 Damage to goods stored during shipping and by inn- and stable-keepers
In terms of the Praetorian Edict de nautis, cauponibus et stabularis, still applicable in our law,
professional maritime carriers,98 innkeepers and stable-keepers99 are strictly liable for damage
________________________
88 See in this regard Van der Merwe and Olivier 499–550; Van der Walt Risiko-aanspreeklikheid 361–363; Van der
Walt and Midgley Delict 49; Loubser and Midgley Delict 465.
89 Bowden v Rudman 1964 4 SA 686 (N) 691–692.
90 An occupier includes the lessee of a room, house or storehouse and the habitans (permanent tenant) of a house or
room, but excludes a temporary guest or traveller or the builder of a building (Van der Merwe and Olivier 499).
91 Van der Walt Risiko-aanspreeklikheid 361–362; Bowden v Rudman 1964 4 SA 686 (N) 691–692.
92 Eg Colman v Dunbar 1933 AD 141; Bowden v Rudman 1964 4 SA 686 (N).
93 Van der Merwe and Olivier 500; Van der Walt Risiko-aanspreeklikheid 362–363. According to Van der Walt, the
original reasons for liability without fault in these cases (based on the risk principle: supra 434), ie, narrow streets,
bad sanitation and the difficulties concerning proof by the prejudiced person, have largely fallen away. But see
Koziol in Kuschke and Cornelius (eds) 74 ff on a comparison of South African and Austrian law in this regard.
94 Including money (John Bell & Co v Esselen 1954 1 SA 147 (A) 151; First National Bank of Southern Africa v East
Coast Design CC 2000 4 SA 137 (D) 144–146); cf Crots v Pretorius 2010 6 512 (SCA) 516 (Scott 2011 TSAR 383
ff); Living Hands (Pty) Ltd v Ditz 2013 2 SA 368 (GSJ) 383.
95 Van der Walt and Midgley Delict 49. In Clifford v Farinha 1988 4 SA 315 (W) 321 the court stated: “Since the
thief is considered always to be in default in restoring the owner’s property . . . the risk of accidental loss remains
on him. Such accidental loss lacks the element of causally related culpa required for Aquilian liability, and has
been referred to as ‘skuldlose deliktuele aanspreeklikheid’ [delictual liability without fault].” In Crots v Pretorius
2010 6 512 (SCA) 516 the court found that the defendant had dolus eventualis with regard to the theft of cattle.
Even so, fault is not a requirement for the condictio furtiva.
96 See Minister van Verdediging v Van Wyk 1976 1 SA 397 (T) 400–401; Clifford v Farinha 1988 4 SA 315 (W) 321.
This actio is an alternative – not cumulative – remedy to the rei vindicatio (Van der Walt and Midgley Delict 49).
97 Chetty v Italtile Ceramics Ltd 2013 3 374 (SCA) 378–379.
98 According to Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 3 SA 42 (A), the action against maritime
carriers is not available against carriers on land.
442 Law of Delict
caused to goods stored by them.100 The only defences against this action are vis maior, casus
fortuitus and damnum fatale.101
2.1.5 Damage caused by owners of neighbouring property: nuisance

Nuisance involves the unreasonable use of property – in any way whatsoever102 – by one neigh-
bour to the detriment of another.103 The basis of liability for damage caused by nuisance is a
moot point in our law.104
On the one hand, there is the contention, as stated in the leading case of Bloemfontein Town
Council v Richter,105 that actions for damages caused by nuisance are based on the fault prin-
ciple, although there is a presumption of fault. On the other hand, there are decisions (based on
English law)106 as well as common law authority107 that indicate that liability for nuisance is
strict.
________________________
99 In Essa v Divaris 1947 1 SA 753 (A) 755–756 the court was not prepared to extend the action against stable-
keepers to owners of parking garages.
100 See in general Bradfield in Du Bois (ed) 968–970; see further Davis v Lockstone 1921 AD 153; Roy v Basson NO
2007 5 SA 84 (C) in respect of an innkeeper (hotel owner). In Roy the plaintiff stored her goods in a hotel while she
went travelling. The hotel was destroyed by fire. Her claim was dismissed because the fire had been caused by vis
maior.
101 Roy v Basson NO 2007 5 SA 84 (C) 86; Bradfield in Du Bois (ed) 969. In Roy 86 the court found the following
description of these concepts in Wille’s Principles of South African Law (1991) 948 (now Hutchison and Du Bois
in Du Bois (ed) 849–850) helpful: “Vis major or superior force, is some force, power or agency which cannot be
resisted or controlled by the ordinary individual. The term is now used as including not only the acts of nature, vis
divina or ‘act of God’, but also the act of man. Casus fortuitus or inevitable accident, is a species of vis major and
imports something exceptional, extraordinary or unforeseen, and which human foresight cannot be expected to an-
ticipate, or, if it can be foreseen, it cannot be avoided by the exercise of reasonable care or caution.”
102 Examples are where suffocating smoke or unbearable noise or smell is caused by the neighbour, where leaves from
the neighbouring property block gutters or pollute sorghum and where slate is washed down from neighbouring
property (Van der Merwe and Olivier 506; supra 152–153).
103 See generally Van der Walt Neighbours passim and in respect of the term “unreasonable use” supra 147 ff under
abuse of right.
104 See in general Van der Walt Risiko-aanspreeklikheid 400 ff; Van der Merwe and Olivier 500 ff.
105 1938 AD 195; see also Moller v SAR & H 1969 3 SA 374 (N) 380; cf however Flax v Murphy 1991 4 SA 58 (W)
63–64 where the court, inter alia, on the basis of the Richter case 230 and Graham v Dittman and Son 1917 TPD
288, decided that liability for nuisance is strict: “[N]uisance caused by the owner of a property in occupation there-
of, whether he performed the act itself or whether he did it through an independent contractor, is actionable irre-
spective of any proof of negligence or intent.” (Cf Van der Walt 1993 THRHR 645.)
106 See Holland v Scott 2 EDC 307 which may be considered to be the origin of the view that our law and English law
– where liability without fault applies – are identical in the field of nuisance. (For later decisions see, eg, Flax v
Murphy 1991 4 SA 58 (W) (supra fn 105); Van der Merwe v Carnarvon Municipality 1948 3 SA 613 (C); Cosmos
(Pvt) Ltd v Phillipson 1968 3 SA 121 (R).) Moreover, it is accepted by the courts that a landowner has a right to the
lateral support of his property from the neighbouring property, and that the liability for the damage caused by the
disturbance of the lateral support is not based on fault, but strict (eg Dias v Petropulos 2018 6 SA 149 (WCC) paras
111 125 133 139; D & D Deliveries (Pty) Ltd v Pinetown Borough 1991 3 SA 250 (D) 253; John Newmark and Co
(Pty) Ltd v Durban City Council 1959 1 SA 169 (D); Gijzen v Verrinder 1965 1 SA 806 (D); see in general Van der
Walt Neighbours 131; Van der Walt Risiko-aanspreeklikheid 374–378). The right to lateral support is regarded as a
rule of neighbour law (see supra 147 153 248; Dias paras 23 28 31 33 44 48 and the authority cited there).
107 Van der Walt Risiko-aanspreeklikheid 402 ff points out that several common law remedies, which are available to
the owners of neighbouring property, are based on liability without fault. Two of these remedies which still apply
by name in our law are the actio aquae pluviae arcendae and the interdictum quod vi aut clam (idem 363 ff 404;
see also Van der Walt and Midgley Delict 50). These remedies are applicable to damage caused by the violation of
the prohibition against the interference by a landowner with the natural flow of water over his property (eg Cape
Town Council v Benning 1917 AD 315; Van Schalkwyk v Van der Wath 1963 3 SA 636 (A); Pappalardo v Hau
2010 2 SA 451 (SCA); Pietermaritzburg and District Council for the Care of the Aged v Redlands Development
Projects (Pty) Ltd 2018 4 SA 113 (SCA); Redelinghuis v Bazzoni 1976 1 SA 110 (T)). The function of the actio is
in the first place, as with the interdict, to prevent the landowner from erecting or allowing to be erected on his own
land, structures that will interfere with the natural flow of water; secondly, all damage suffered by a person after
litis contestatio is also recoverable in terms of this action. On the other hand, all damage which took place before
[continued ]
This ambivalence towards the basis of the liability for damage caused by the owners of neigh-
bouring property may nevertheless be justified. Although the fault principle of the actio legis
Aquiliae should be accepted as the starting point, there are108 certain acts109 which can be com-
mitted by the owners of neighbouring property which create such an unusually high risk of harm
that they justify the imposition of strict liability.110
2.1.6 Forms of iniuria

Liability without fault is the basis of two forms of iniuria, ie, wrongful deprivation of liberty and
wrongful attachment of property.111 The positive law position concerning these two forms has
already been discussed above.112 All that remains to be considered is the rationale for their strict
liability.113 At the outset, it must be stated that the disregard for the requirement of intent must
be attributed to the influence of English law; it is definitely not in accordance with the common
law basis of the actio iniuriarum. There is nevertheless a particular consideration in these cases
that justifies a deviation from the common law position. In most cases, public servants are
involved in unlawful attachment and deprivation of liberty. The relationship between the parties
involved is thus one of complete inequality: On the one hand, there is the powerful, faceless
state organisation with its overpowering compulsive measures and virtually unlimited financial
resources and, on the other hand, the almost defenceless individual – the unfortunate victim of
conduct which is undoubtedly wrongful on the part of the representatives of the state.114 Equity
________________________
litis contestatio may be recovered with the interdictum (Van der Walt Risiko-aanspreeklikheid 370; cf Van der
Merwe and Olivier 233–234). The latter claim for damages may be instituted by the owner of the damaged property
as well as any other person who had a legal interest (interesse) that damage should not have been caused and that it
should be restored (Baldric Farms (Pty) Ltd v Wessels 1994 3 SA 425 (A) 431). In the Pietermaritzburg case Wal-
lis JA expressed doubt as to the availability of the actio in relation to urban, as opposed to rural, properties
(para 30), stating that, as matters stand, it cannot be said with confidence that contiguity between the higher and
lower properties is not a requirement or, if it is not, what the relevant requirement of proximity would be (para 33);
and stressed that the element of unlawfulness is required for an action based on neighbour law (para 35 ff).
108 According to Van der Walt Risiko-aanspreeklikheid 404–405.
109 Such as the disturbance of the lateral support or the interference with the natural flow of water (supra 147 152–153
248 442; fns 106 107).
110 See in this regard supra 434.
111 See Neethling, Potgieter and Roos Neethling on Personality Rights 89–91; cf Van der Walt and Midgley Delict
162í163 164í165. It furthermore appears that the action for seduction (supra 394) and the infringement of person-
ality rights of prisoners (supra 394 fn 69; cf infra fn 114) also entail strict liability. Note that the strict liability of
the press for defamation has recently been changed to liability based on negligence (see supra 415).
112 Supra 396 ff 419 ff.
113 Neethling, Potgieter and Roos Neethling on Personality Rights 90í91; see also Meevis v Sheriff, Pretoria East
1999 2 SA 389 (T) 393; Minister of Finance v EBN Trading (Pty) Ltd 1998 2 SA 319 (N) 329; cf Van der Walt
Risiko-aanspreeklikheid 383.
114 In addition, the legal interest that is violated in cases of wrongful deprivation of liberty is one of the most valuable
for the individual except for his life, ie, his freedom, his physical-mental integrity (Shoba v Minister van Justisie
1982 2 SA 554 (C) 559). But there is a tendency in our courts to require negligence as a requirement for the liabil-
ity of prison authorities (see, eg, Lee v Minister of Correctional Services 2013 2 SA 144 (CC) 161; Jaftha v Hon-
ourable Minister of Correctional Services [2012] 2 All SA 286 (ECP) paras 19 ff; cf Alves v LOM Business
Solutions (Pty) Ltd [2011] 4 All SA 490 (GSJ)). This tendency is questionable. In Minister of Justice v Hofmeyr
1993 3 SA 131 (A) 156–157 it was held that the state is strictly liable for the violation of a prisoner’s right to phys-
ical-mental integrity. This view can be supported for the following reasons: As a result of the extremely unequal
relationship between the prison authorities and prisoners, the latter are largely at the mercy of their gaolers (see
Hofmeyr 140í141). Consequently, prisoners are amongst the most vulnerable members of our society with respect
to the failure of the state to protect their rights. This was emphasised by the SCA in Minister of Correctional Ser-
vices v Lee 2012 3 SA 617 (SCA) 624–625 where the court stated that a “person who is imprisoned is delivered in-
to the absolute power of the state and loses his or her autonomy. A civilised and humane society demands that
when the state takes away the autonomy of an individual by imprisonment it must assume the obligation to see to
the physical welfare of its prisoners”. This view was reiterated in Lee (CC) 170. Seen in this light, justice and
fairness demand that the state should be strictly liable and prisoners should not be burdened with the difficult onus
[continued ]
444 Law of Delict
and justice thus demand that the state, or the person who made use of the state machinery with-
out a valid judicial process, should be held liable, even if, as a result of a bona fide mistake,
there is no conscious wrongfulness115 (and thus no animus iniuriandi) on his part.116
2.1.7 Vicarious liability

2.1.7.1 Introduction
In general terms vicarious liability may be described as the strict liability of one person for the
delict of another. The former is thus indirectly or vicariously liable for the damage caused by the
latter. This liability applies where there is a particular relationship between two persons. Four
such relationships are important, ie, that of employer – employee, principal – agent, motor-car
owner – motor-car driver and state – public school.117
2.1.7.2 Employer – employee

Where an employee (servant) acting within the scope of his employment, commits a delict, his
employer (master)118 is fully liable for the damage.119 Fault is not required on the part of the
________________________
of proving negligence on the part of the prison authorities (see also Neethling 2014 TSAR 26 ff, 2013 TSAR
177í178 184; Neethling and Potgieter 2013 (2) LitNet Akademies 4–5, 2012 Obiter 390 ff, 2010 Obiter 471 ff).
115 According to Magid J in Minister of Finance v EBN Trading (Pty) Ltd 1998 2 SA 319 (N) 329, this view is also in
accordance with the Bill of Rights: “It seems to me to accord better with the human rights culture of the new South
Africa, which is stressed in both the interim and final Constitutions of the Republic, that in cases involving wrong-
ful imprisonment or the wrongful detention of goods that it should no longer be ‘necessary for the plaintiff to estab-
lish consciousness on the part of the wrongdoer of the wrongful character of his act’. Certainly I can see no
compelling grounds of public policy to differentiate between the wrongful detention of a person or his property.”
See also Minister of Correctional Services v Tobani 2003 5 SA 126 (E) 134–137; Neethling 2004 SALJ 714–715.
116 See supra 163 concerning intention.
117 See in general Scott Middellike Aanspreeklikheid passim; Wicke 1998 Stell LR 21 ff; Loubser and Midgley Delict
467 ff; Van der Walt and Midgley Delict 51 ff. See Calitz and De Villiers 2020 SALJ 72 ff on the vicarious liability
of education authorities for sexual abuse of pupils by teachers in South African schools. For further instances of
vicarious liability, see in general Scott Middellike Aanspreeklikheid 199 ff; see further on the vicarious liability of
one partner for the delict of another, Scott Middellike Aanspreeklikheid 273 ff; Wicke Vicarious Liability 239 ff;
Lindsay v Stofberg 1988 2 SA 462 (C); see also Van der Merwe and Olivier 529 ff on the vicarious liability of the
statutory insurer of a motor vehicle; idem 549–550 on the vicarious liability of the state (in terms of s 297A of the
Criminal Procedure Act 51 of 1977) for patrimonial damage which a person caused by means of a delict while he
was performing community service; Millard and Bascerano 2016 (19) PELJ 1 ff who point out that a person whose
privacy has been infringed upon through the unlawful, culpable processing of his or her personal information, can
sue the infringer’s employer based on vicarious liability, or institute action based on the Protection of Personal In-
formation Act 4 of 2013 (POPI) – s 99(1) of POPI provides that a person (a “data subject”) whose privacy has been
infringed upon, has the right to institute a civil action against the responsible party (see also Loubser and Midgley
Delict 480í481; infra 459); Wessels 2019 Stell LR 379 ff on other statutory mechanisms that could assist victims in
receiving compensation for harm suffered as a result of crime (in terms of, eg, s 297(1)(a)(i)(aa) and s 297(4) of the
Criminal Procedure Act 51 of 1977), but which he regards as unsatisfactory from a crime victim compensation per-
spective, suggesting rather the enactment of a statutory crime victim compensation scheme as an alternative method
to secure compensation for crime victims); Scott 2015 TSAR 623 ff for a discussion of cases on the possible liabil-
ity of the state for the conduct of a magistrate; Potgieter 2011 Obiter 189 ff, 2008 THRHR 331 ff on the possible
extension of vicarious liability to the parent-child relationship (and, related thereto, cf Van der Bijl 2018 (21) PELJ
1 ff on the criminal responsibility imposed upon parents for the delinquent acts of their children); Calitz 2014 (17)
PELJ 24 ff on the vicarious liability of churches for the sexual assault of children by priests.
118 The state is in the same position as other employers for the purposes of vicarious liability (see Wicke Vicarious
Liability 211 ff; Scott Middellike Aanspreeklikheid 199 ff; Van der Merwe and Olivier 512–513; Minister of Police
v Rabie 1986 1 SA 117 (A) 132; Masuku v Mdlalose 1998 1 SA 1 (A) 14–16). Juristic persons (such as companies)
and natural persons also receive equal treatment in this respect (see Wicke Vicarious Liability 233; Scott Middellike
Aanspreeklikheid 225–226). Note, however, that companies are directly – not vicariously – liable for delicts com-
mitted by persons in control of the company – the so-called “directing mind” or alter ego of the company (see
Wicke Vicarious Liability 233; Scott Middellike Aanspreeklikheid 226 ff; cf also Barkett v SA National Trust & In-
surance Co Ltd 1951 2 SA 353 (A) 362 (obiter); First National Bank of SA Ltd v Rosenblum 2001 4 SA 189 (SCA)
[continued ]
employer, and therefore this is a form of strict liability.120 This principle did not generally apply
in our common law but was received from English law.121
The rationale for, or basis of, the employer’s liability is controversial. Various theories have
been advanced. The best-known explanation is that the employer’s liability is founded on his
own fault (culpa in eligendo).122 Other theories are the interest or profit theory123 according to
which the employer must also bear the burden of the employee’s services as a corollary to the
benefits or potential benefits thereof; the identification theory according to which the employee
is merely the employer’s arm (if the employee acts, the employer, in fact, is acting); and the
solvency theory according to which the employer is liable because he is normally in a better
position financially than the employee. Although all these theories contain elements of truth,124
Scott125 argues convincingly that the risk or danger theory126 furnishes the true rationale for the
employer’s liability. The work entrusted to the employee creates certain risks of harm (the
commission of delicts) for which the employer should be held liable on the grounds of fairness
and justice as against injured third parties.127
There are three requirements for an employer’s vicarious liability for the delict of his em-
ployee:
(a) There must be an employer – employee relationship at the time when the delict is
committed. Normally, such a relationship is present when one person, in terms of an agreement,
makes his working capacity or energy available to another for remuneration in such a way that
the latter may exercise control (authority) over the former. Thus a contract of service (locatio
conductio operarum) must exist.128 The contract of mandate (locatio conductio operis) by
contrast, concerns an agreement in terms of which one person also undertakes to render services
to another for remuneration without, however, being subject to the control of the other.129 The
________________________
199). Apparently the directors of a company will usually qualify as its “directing mind” (see Wicke Vicarious Lia-
bility 233; cf further De Koker 2002 TSAR 18 ff).
119 See in this regard in general Van der Merwe and Olivier 508–519; Scott Middellike Aanspreeklikheid 69 ff; Wicke
Vicarious Liability 39 ff; Botha and Millard 2012 De Jure 225 ff; Burchell Delict 215–221; Van der Walt and
Midgley Delict 53–55; Loubser and Midgley Delict 468 ff. Note, however, that the employee does not cease to be
delictually liable because of his employer’s vicarious liability (Harnischfeger Corporation v Appleton 1993 4 SA
479 (W) 487).
120 See Stein v Rising Tide Productions CC 2002 5 SA 199 (C) 205.
121 Van der Merwe and Olivier 508–509; cf Masuku v Mdlalose 1998 1 SA 1 (A) 13–14 (Scott 2015 TSAR 624).
122 In Feldman (Pty) Ltd v Mall 1945 AD 733 738 the court correctly referred to culpa in eligendo (fault in the choice
of an employee) as a “hoary explanation” (see also Ables Groceries (Pty) Ltd v Di Ciccio 1966 1 SA 834 (T) 839).
In truth one is dealing with a fiction here: according to this theory there is an irrebuttable presumption that the mas-
ter has been negligent (he may therefore not prove the opposite) if his servant commits a delict.
123 Cf supra 434.
124 See in general Van der Walt 1967 THRHR 70–76; see also on the solvency theory De Welzim v Regering van
KwaZulu 1990 2 SA 915 (N) 921; and on the profit theory (combined with the risk theory) RH Johnson Crane Hire
(Pty) Ltd v Grotto Steel Construction (Pty) Ltd 1992 3 SA 907 (C) 908.
125 Middellike Aanspreeklikheid 30 ff 37 ff; cf however Minister of Law and Order v Ngobo 1992 4 SA 822 (A) 832–834;
Ess Kay Electronics Pty Ltd v First National Bank of Southern Africa Ltd 2001 1 SA 1215 (SCA) 1218–1219.
126 Cf supra 434.
127 Cf also Minister of Police v Rabie 1986 1 SA 117 (A) 134–135. According to Scott (Middellike Aanspreeklikheid
48 ff), an employer should, however, only be liable if the conduct (delict) of the employee was reasonably foresee-
able (see however Minister of Police v Mbilini 1983 3 SA 705 (A) 716–717).
128 Gibbins v Williams, Muller, Wright en Mostert Ingelyf 1987 2 SA 82 (T) 90; Van der Merwe and Olivier 510; Scott
Middellike Aanspreeklikheid 79 ff. Note that the term “servant” must be liberally interpreted in this regard. There
need, eg, not necessarily be a contract of service, nor any permanence in the relationship, nor any remuneration
payable (see, eg, McKerron Delict 94; Van der Merwe and Olivier 514; Boberg Delict 220). Therefore, even school
prefects can qualify as “servants” (Dowling v Diocesan College 1999 3 SA 847 (C) 851–852). See further Wagener
2014 SALJ 178 ff.
129 Van der Merwe and Olivier 510; see also Smit v Workmen’s Compensation Commissioner 1979 1 SA 51 (A); Stein
v Rising Tide Productions CC 2002 5 SA 199 (C) 205.
446 Law of Delict
contract of mandate, involving an independent contractor, therefore does not found vicarious
liability.130
The question of control (or authority), which does not mean factual control but the capacity
(power) or right of control,131 was considered to be the most important and therefore decisive
factor or indicium (test) in determining whether the wrongdoer is an employee or an independent
contractor.132 However, as a result of valid criticism of this test,133 it was in the course of time
eroded to an important, but no longer decisive, factor134 to be taken into account.135 First the
Appellate Division employed the “dominant-impression” test, ie, whether the dominant impres-
sion is that of a contract of service or a contract of mandate, in Smit v Workmen’s Compensation
Commissioner.136 Later, in Midway Two Engineering & Construction Services v Transnet Bpk137
it was held that in determining the relationship between the parties, a multi-faceted test should
be utilised, taking account of all relevant factors and the circumstances of the specific case.138
________________________
130 See infra 455.

131 In Rodrigues v Alves 1978 4 SA 834 (A) 842 the court expressed it as follows: “In this respect I must point out that
the requirement is not that there should be actual control. The requirement relates to the power or the right to con-
trol. When a person who has to perform a certain task is allowed a certain amount of discretion, that does not indi-
cate that he is not a servant” (emphasis added). See in general further Scott Middellike Aanspreeklikheid 82–83.
132 Eg Gibbins v Williams, Muller, Wright en Mostert Ingelyf 1987 2 SA 82 (T) 90; Colonial Mutual Life Assurance
Society Ltd v MacDonald 1931 AD 412 432–435 444–445; Lichaba v Shield Versekeringsmaatskappy Bpk 1977 4
SA 623 (O) 635; FPS Ltd v Trident Construction (Pty) Ltd 1989 3 SA 537 (A) 542–543; see further Scott Mid-
dellike Aanspreeklikheid 79 ff; Wicke Vicarious Liability 39 ff.
133 See Midway Two Engineering & Construction Services v Transnet Bpk 1998 3 SA 17 (SCA) 21–22. Nienaber JA,
inter alia, said that the so-called “control test” which is often employed as a yardstick to distinguish between an
employer and an independent contractor, has been discredited as outdated, simplistic and even as a fiction.
134 See Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA) 258.
135 See Midway Two Engineering & Construction Services v Transnet Bpk 1998 3 SA 17 (SCA) 22–23; Ongevalle-
kommissaris v Onderlinge Versekeringsgenootskap AVBOB 1976 4 SA 446 (A) 456–457; Smit v Workmen’s Com-
pensation Commissioner 1979 1 SA 51 (A) 62–63. In Metwa v Minister of Health 1989 3 SA 600 (D) 605 the court
declared: “Control is merely one of the indicia to determine whether or not a person is a servant or an independent
worker.” However, see MEC for Public Works, Eastern Cape v Faltein 2006 5 SA 532 (SCA) 536 where the court
still declared that the right to exercise control “is generally regarded as the most important consideration for the
purpose of deciding whether a person is a master at common law” (see Scott 2007 De Jure 182 ff). See Stein v Ris-
ing Tide Productions CC 2002 5 SA 199 (C) 206–207 for an overview of factors that have crystallised in case law.
Note that the duration (brief or lengthy) of the relationship plays no part in the question of whether an employer-
employee relationship exists (eg Mkize v Martens 1914 AD 382; Van der Merwe and Olivier 514).
136 1979 1 SA 51 (A) 62–63; see also Stein v Rising Tide Productions CC 2002 5 SA 199 (C) 206.
137 1998 3 SA 17 (SCA) 23; see also Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA) 258;
Stein v Rising Tide Productions CC 2002 5 SA 199 (C) 207; cf the cases supra fn 135 and in general Scott Mid-
dellike Aanspreeklikheid 84–88 114.
138 Note with regard to the question of control the following two cases. Firstly, where an employer (A) lends or leases
his employee to another person (B) – the employee thus has two employers simultaneously – and the employee
commits a delict while being so employed, then vicarious liability was founded by ascertaining who (A or B) had
the right of control over the employee at that stage; and the primary question is whether or not A transferred (eg by
agreement) his right of control to B (see in general Scott Middellike Aanspreeklikheid 110–115; Van der Merwe
and Olivier 513–514; Wicke Vicarious Liability 65 ff; Penrith v Stuttaford 1925 CPD 154 157 159–160; Stadsraad
van Pretoria v Pretoria Pools 1990 1 SA 1005 (T) 1009–1010; RH Johnson Crane Hire (Pty) Ltd v Grotto Steel
Construction (Pty) Ltd 1992 3 SA 907 (C) 908–910). However, in Midway Two Engineering & Construction Ser-
vices v Transnet Bpk 1998 3 SA 17 (SCA) 23, a new approach was implemented. Nienaber JA stated that all factors
must be taken into account to determine, as a matter of fairness and policy, which of two employers was the closest
involved in the creation of the dangerous activity. (Cf, however, Rofdo (Pty) Ltd t/a Castle Crane Hire v B & E
Quarries (Pty) Ltd 1999 3 SA 941 (SE) 949. The court distinguished Midway Two Engineering on the facts and
continued to ask whether a right of control had passed on to the lessee in casu. Interestingly enough the court de-
cided that the lessor had retained the right to control the manner in which the employee did his work, in spite of the
fact that “sole and absolute control” over the employee had been contractually transferred to the lessee.) Secondly,
where an employee allows a third party to do his work or to assist him with it and the third party commits a delict
in the process, the employer is only liable if he either by agreement with the third party obtained a right of control
over him (eg McMillan v Hubert Davies and Co Ltd 1940 WLD 256 261 262), or gave his employee a mandate,
[continued ]
The state is in the same position as other employers.139 The state may therefore only escape
liability by showing that the official involved was not pro hac vice (for this particular case) an
employee of the state at the time of the delict,140 and that will be so if the state did not have the
power to control the employee at that particular time.141
(b) The employee must commit a delict. This requirement implies that the employer may raise
any defence which is available to the employee.142 Given that the employee is also delictually
liable, the employer and employee are in principle regarded as joint wrongdoers as against the
prejudiced party. Clearly, however, a right of recourse is only available to the employer.143
(c) The employee must act within the scope of his employment when the delict is commit-
ted. The employee acts within the scope of his employment if he acts in the execution or fulfil-
ment of his duties in terms of the employment contract. However, he acts outside such scope if
he disengages himself completely from his employment and promotes his own objectives or
interests exclusively.144 The determination of whether he acts within the scope of his employ-
ment is, on the one hand, subjective, and, on the other, objective. In Minister of Police v Rabie145
the court explained this so-called standard test as follows:
________________________
expressly or tacitly, to employ the third person (eg Nconwya v Cantor 1984 2 SA 400 (SE) 405 ff; see in general
Scott Middellike Aanspreeklikheid 115–116; Van der Merwe and Olivier 514).
139 See s 1 of the State Liability Act 20 of 1957 which reads as follows: “Any claim against the State which would, if
that claim had arisen against a person, be the ground of an action in any competent court, shall be cognizable by
such court, whether the claim arises out of any contract lawfully entered into on behalf of the State or out of any
wrong committed by any servant of the State acting in his capacity and within the scope of his authority as such
servant.” See also Pauw 2019 TSAR 91 ff for a discussion of (and proposed amendments to) the State Liability
Amendment Bill (2018) (preceded by Issue Paper 33 of the the South African Law Reform Commission (20-05-
2017)) with the object, inter alia, as set out in the preamble, to amend the State Liability Act, 1957, “so as to pro-
vide for structured settlements for the satisfaction of claims against the State as a result of wrongful medical treat-
ment of persons by servants of the State” (see also Wessels and Wewege 2019 TSAR 484 ff for a comprehensive
discussion of the Bill). Cf Minister of Police v Rabie 1986 1 SA 117 (A) 132; Masuku v Mdlalose 1998 1 SA 1 (A)
14–16; see in general Neethling 2012 THRHR 622 ff, 2013 THRHR 115 ff 327 ff; Loubser and Midgley Delict
318–321; Okpaluba and Osode Government Liability passim; Van der Merwe and Olivier 512–513; Wessels 2019
Stell LR 361 ff; Calitz and De Villiers 2020 SALJ 72 ff; see also supra fn 118 281 fn 226. See also s 60(1) of the
South African Schools Act 84 of 1996, discussed infra 454.
140 In Minister of Police v Rabie 1986 1 SA 117 (A) 132, however, Jansen JA made the following remark concerning
police officers: “It would seem that instances of a policeman momentarily ceasing to be a servant pro hac vice be-
cause of, eg, an exercise of discretion, if they do occur at all, are now exceptional.” A case that deserves mention
here is Minister of Safety and Security v Luiters 2006 4 SA 160 (SCA) 165; 2007 2 SA 106 (CC) 115, in which it
was held that if police officials had been off duty, but had placed themselves on duty again, they were for the pur-
pose of vicarious liability in exactly the same legal position as police officials who were on duty in the usual
way (see Scott 2016 TSAR 336).
141 In Mhlongo v Minister of Police 1978 2 SA 551 (A) 568 the court declared: “The essential criterion is whether his
employer, the State, has the power to direct or control him in the execution of his duty or function, including the
exercise of the discretion, if any.” See also Minister van Polisie v Gamble 1979 4 SA 759 (A) 767; Minister of Po-
lice v Mbilini 1983 3 SA 705 (A); Union Government (Minister of Justice) v Thorne 1930 AD 47 53; Mtetwa v
Minister of Health 1989 3 SA 600 (D) 606; Scott Middellike Aanspreeklikheid 203–205.
142 See De Welzim v Regering van KwaZulu 1990 2 SA 915 (N) 921 ff; Van der Merwe and Olivier 519; Wicke
Vicarious Liability 76 ff.
143 Botes v Van Deventer 1966 3 SA 182 (A) 205–206; Van der Merwe and Olivier 519; Wicke Vicarious Liability 76
ff; cf also supra fn 119.
144 See in general Van der Merwe and Olivier 514 ff; Scott Middellike Aanspreeklikheid 135 ff; Wicke Vicarious
Liability 83 ff; Loubser and Midgley Delict 473–476. Cf also Obotseng v Lebone 1994 4 SA 88 (B) as to the onus
of proof.
145 1986 1 SA 117 (A) 134; see further K v Minister of Safety and Security 2005 6 SA 419 (CC) 435–436; Minister of
Safety and Security v Luiters 2006 4 SA 160 (SCA) 165; 2007 2 SA 106 (CC) 112–113 115; Minister of
Finance v Gore 2007 1 SA 111 (SCA) 123–124; Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation
BK 2002 5 SA 475 (SCA) 480–482; Minister van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors 2002 5
SA 649 (SCA) 658–662 (see Neethling and Potgieter 2003 THRHR 323 ff for a discussion of the last two cases);
Bezuidenhout v Eskom 2003 3 SA 83 (SCA) 94; ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 1 SA
[continued ]
448 Law of Delict
It seems clear that an act done by a servant solely for his own interests and purposes, although occa-
sioned by his employment, may fall outside the course or scope of his employment, and that in deciding
whether an act by the servant does so fall, some reference is to be made to the servant’s intention . . . The
test is in this regard subjective.146 On the other hand, if there is nevertheless a sufficiently close link
between the servant’s acts for his own interests and purposes and the business of his master, the master
may yet be liable.147 This is an objective test. And it may be useful to add that ‘. . . a master . . . is liable
even for acts which he has not authorized provided that they are so connected with acts which he has
authorized that they may rightly be regarded as modes – although improper modes – of doing them
. . .148
The employer may accordingly only escape vicarious liability if the employee, viewed subject-
ively, has not only exclusively promoted his own interests, but, viewed objectively, has also
completely disengaged himself from the duties of his contract of employment.149 In this respect,
it is particularly important that a sufficiently close connection did not exist between the employ-
ee’s conduct and his employment. The commission of a delict during the performance of a
forbidden act should also be seen in this light.150 If the forbidden act is connected to the general
character of the employee’s work and thus falls within the scope of his employment, the
employer will still be vicariously liable.151
________________________
372 (SCA) 378; Munengami v Minister of Defence 2007 2 SA 320 (ZH) 328–329; Witham v Minister of Home Af-
fairs 1989 1 SA 116 (ZH) 126.
146 Cf Estate Van der Byl v Swanepoel 1927 AD 141 150; Tshabalala v Lekoa City Council 1992 3 SA 21 (A) 28 31;
Smit v Minister van Polisie 1997 4 SA 893 (T) 905; Viljoen v Smith 1997 1 SA 309 (A) 317.
147 In Feldman (Pty) Ltd v Mall 1945 AD 733 742 it was in fact required that the actions of the employee must be
completely “unconnected with those of his master” to exculpate the employer.
148 Cf idem 774; Squire v Sasol Mynbou (Edms) Bpk 1993 3 SA 298 (T) 303–304; Smit v Minister van Polisie 1997 4
SA 893 (T) 905–907; Viljoen v Smith 1997 1 SA 309 (A) 315–316 318; Kasper v André Kemp Boerdery CC 2012 3
SA 20 (WCC) 28–29; Scott 2016 TSAR 333, for an analysis.
149 See Kasper v André Kemp Boerdery CC 2012 3 SA 20 (WCC) 27. The application of these principles is well
illustrated by the cases where an employee, during the execution of his duties with a service vehicle, deviates from
his route for his own purposes and then commits a delict (see in this regard, eg, Feldman (Pty) Ltd v Mall 1945 AD
733; African Guarantee and Indemnity Co Ltd v Minister of Justice 1959 2 SA 437 (A); also see in general Scott
Middellike Aanspreeklikheid 147 ff; Maxalanga v Mpela 1998 3 SA 970 (Tk)). In Feldman (Pty) Ltd v Mall an em-
ployee had to deliver parcels with a service vehicle and afterwards return it to his work premises. After the delivery
he, however, deviated from his route to a place where he drank alcohol. Thereafter he caused an accident during his
return journey and killed the plaintiffs’ breadwinner. In African Guarantee and Indemnity Co Ltd v Minister of Jus-
tice a policeman permitted his colleague, who had been prohibited from driving as a result of previous driving con-
traventions, to drive the police vehicle on patrol. While he was driving they got involved in a race with a sports car
and negligently caused damage to another car. In both cases the employer was held liable because the employee’s
deviation did not amount to a total dereliction of his duties in terms of his contract of service (see also Minister of
Safety and Security v Jordaan t/a Andre Jordaan Transport 2000 4 SA 21 (SCA) 24–25; cf Roux v Evcom 2002 2
SA 199 (T) 204–205). An interesting case in this connection is Viljoen v Smith 1997 1 SA 309 (A). An employee,
while busy with his work in his employer’s vineyard, climbed through a fence contrary to the instructions of his
employer, and relieved himself in the bushes on a neighbouring farm. There he attempted to light a cigarette but the
head of the match broke off and caused a fire which resulted in damage to the neighbouring farm. The court held
that the degree of digression of the employee from his work was not sufficiently material that it could rightly be
said that he temporarily abandoned his work and therefore did not act in the scope of his employment during his
excursion. The employer was accordingly held liable. See also PE v Ikwezi Municipality 2016 5 SA 114 (ECG) pa-
ras 45–56 (vicarious liability for sexual harassment in the workplace).
150 See in general Scott Middellike Aanspreeklikheid 141–144; Van der Merwe and Olivier 517–518.
151 Eg Feldman (Pty) Ltd v Mall 1945 AD 733 741 757 762–763; South African Railways and Harbours v Marais
1950 4 SA 610 (A); Bezuidenhout v Eskom 2003 3 SA 83 (SCA) 88 ff (see also the court a quo in Roux v Evcom
2002 2 SA 199 (T) 205–206); Ngubetole v Administrator, Cape 1975 3 SA 1 (A) 10 ff; General Tyre and Rubber
Co SA Ltd v Kleynhans 1963 1 SA 533 (N); Magage v Murray & Stewart (Edms) Bpk 1980 4 SA 294 (O); Viljoen v
Smith 1997 1 SA 309 (A); see Scott 2020 TSAR 177 who states that both the Bezuidenhout and Marais cases “are
clouded in controversy”; cf Van der Merwe and Olivier 517–518. In Kleynhans the driver of a tractor, contrary to
the express instructions of his employer, drove on a public road and negligently caused an accident. The employer
was held liable. In Magage, on the other hand, an employer (A) was absolved in circumstances where his employee, a
motor-car driver, transported a person, who was not an employee of A, as a passenger contrary to his direct instructions
and negligently caused him to be injured. These decisions deserve approval because the employee’s conduct in the first
[continued ]
Whether or not a sufficiently close connection exists between the servant’s acts for his own
purposes and the business of his master, is particularly problematic in instances of an employ-
ee’s intentional wrongdoing,152 since such conduct is the very antithesis of an act in the course
and scope of employment and therefore cannot be brought under the standard test.153 Conse-
quently, apart from a few exceptions,154 the traditional view was that vicarious liability for
intentional wrongdoing is excluded.155 However, a complete turnabout has been introduced by
the trend-setting judgment of the Constitutional Court in K v Minister of Safety and Security156
________________________
case was relevant to the general character of his work (tractor driver) but in the second case it was not (transport of
co-employees). See further Kasper v André Kemp Boerdery CC 2012 3 SA 20 (WCC) 28–29 (Scott 2012 De Jure
189 ff) where the court, with reference to Moghamat v Centre Guards CC [2004] 1 All SA 221 (C) 227, stated that
a distinction must be made between “a prohibition which limits the sphere of employment” and “one which only
deals with conduct within the sphere of employment”. In Kasper the employee’s conduct fell into the second cate-
gory. Here a farmworker had disobeyed his employer’s instructions to rake loose plant material and dump it in a
donga. Instead, he set fire to the material on the land which then flared up and spread to neighbouring land where it
caused damage. The farmer was held vicariously liable.
152 See, eg, Minister of Police v Rabie 1986 1 SA 117 (A) (malicious arrest, assault and unlawful deprivation of
liberty); K v Minister of Safety and Security 2005 6 SA 419 (CC) (rape); Minister of Safety and Security v F 2011 3
SA 487 (SCA) (see Neethling 2011 Obiter 428 ff); F v Minister of Safety and Security 2012 1 SA 536 (CC) (rape)
(see Linscott 2014 (6) PELJ 2916 ff); Minister of Defence v Von Benecke 2013 2 SA 361 (SCA) (theft) (see
Wagener 2015 SALJ 270; Scott 2016 TSAR 335); Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of
Safety and Security 2012 2 SA 137 (SCA) 150 (theft); Commissioner, SARS v TFN Diamond Cutting Works (Pty)
Ltd 2005 5 SA 113 (SCA) 117 (theft); PE v Ikwezi Municipality 2016 5 SA 114 (ECG) paras 45–46 (sexual har-
assment); Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank 1997 2
SA 591 (W) (fraud); Minister of Finance v Gore 2007 1 SA 111 (SCA) (fraud); cf South African Post Office v
De Lacy 2009 5 SA 255 (SCA) (fraud); Minister van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors
2002 5 SA 649 (SCA) (fraud); Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK 2002 5 SA 475
(SCA) (Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 2 SA 34 (CC)) (theft); Munengami v
Minister of Defence 2007 2 SA 320 (ZH) (assault); Twalo v The Minister of Safety and Security [2009] 2 All SA
491 (E) (killing of breadwinner); Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy 2003 4 SA
34 (SCA) (assault); Grobler v Naspers Bpk 2004 4 SA 220 (C) (sexual harassment); Naylor v Jansen; Jansen v
Naylor 2006 3 SA 546 (SCA) (defamation); see further Neethling 2013 THRHR 129–131; Neethling and Potgieter
1999 TSAR 776 ff, 2003 THRHR 323 ff, 2004 SA Merc LJ 488 ff, 2008 De Jure 654 ff; Scott 2011 TSAR 773 ff,
2007 TSAR 569 ff, 2000 Acta Juridica 278 ff; Loubser and Reid 2003 Juridical Review 143 ff; Okpaluba and
Osode Government Liability 346 ff; Loubser and Midgley Delict 476–480; Scott 2016 TSAR 332 ff (murder by
police official), 2020 TSAR 164 ff (a discussion of two noteworthy, as yet unreported, cases regarding intentional
police delicts: The Minister of Safety and Security v Koleka Nancy Msi case no CA17/2017 ECG (28-11-2017) and
Minister of Safety and Security v Msi 2019 ZASCA 26); Wessels 2019 Stell LR 361 ff 369.
153 See Minister of Finance v Gore 2007 1 SA 111 (SCA) 123.
154 See, eg, Commissioner, SARS v TFN Diamond Cutting Works (Pty) Ltd 2005 5 SA 113 (SCA) 117; Minister van
Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors 2002 5 SA 649 (SCA); Greater Johannesburg Transi-
tional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank 1997 2 SA 591 (W) 600; Minister of Police v Ra-
bie 1986 1 SA 117 (A) 134 135.
155 In Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 2 SA 34 (CC) 38 the court even opined that
the standard test is in conformity with the Bill of Rights.
156 2005 6 SA 419 (CC). The plaintiff, a young woman, became stranded late at night. Three police officials, dressed
in full uniform, offered to take her home in a police vehicle. On the way she was raped by all three of them. Contra-
ry to K v Minister of Safety and Security 2005 3 SA 179 (SCA), the CC held that the state is vicariously liable. The
court said that if the standard test as formulated in Minister of Police v Rabie 1986 1 SA 117 (A) 134 and informed
by the constitutional Bill of Rights was applied, a “sufficiently close connection” existed between the conduct of
the police and their work to hold their employer vicariously liable: there was a statutory duty on the policemen and
the state to prevent crime and to protect the members of public; the policemen offered to help the plaintiff and she
acted reasonably by accepting the offer and trusting them; and the conduct of the policemen consisted simultane-
ously of a commissio (the brutal rape) and an omissio (their failure to protect her against the rape). (See also Okpa-
luba and Osode Government Liability 39–43 381 ff; contra Fagan 2009 SALJ 156 ff; Wagener 2008 SALJ 673 ff;
Scott 2016 TSAR 332 ff, 2019 TSAR 150 ff, 2020 TSAR 165 ff; Wessels 2019 Stell LR 370 ff). An analogous police
rape case is F v Minister of Safety and Security 2012 1 SA 536 (CC) (see Scott 2012 TSAR 541 ff, 2016 TSAR 332,
2020 TSAR 165 ff; Wessels 2019 Stell LR 371 ff; Linscott 2014 (6) PELJ 2916 ff). The court (550–557) applied the
approach in K and found that a “sufficiently close connection” also existed between the rape and the perpetrator’s
work as a policeman on stand-by duty to hold the state vicariously liable. In addition to the factors mentioned
[continued ]
450 Law of Delict
where the court found the state vicariously liable for police rape. It is submitted that if a need
exists in future to extend vicarious liability for intentional wrongdoing, the basis upon which
this was done by the Constitutional Court in K, must in analogous cases receive due considera-
tion.157
Apart from the foregoing, there are indications in case law that the question of whether the
employee has acted within the scope of his employment, may be decided on the basis of the
creation of risk by the employer. It must be remembered that employers, to a greater or lesser
extent, create a risk that their employees may not be trustworthy (dishonest, criminal) and may
________________________
above in K, the court also took the following factors into account in order to arrive at its finding: the state’s consti-
tutional obligations to protect members of the public; the (level of) control of the state over police officials (cf also
Minister of Safety and Security v Luiters 2007 2 SA 106 (CC) 116; F v Minister of Safety and Security 2010 1 SA
606 (WCC) 620); enablement to commit the rape by the use of police equipment; and the creation of a risk by the
employment of an inefficient or untrustworthy policeman. (See for a full discussion of the K and F cases, Neethling
and Potgieter 2012 (2) LitNet Akademies 73 ff.) From these decisions it is clear that the state is in principle vicari-
ously liable for rape committed by police officials. Whether such liability exists in a particular case, depends on
whether a sufficiently close connection existed between the rape and the police official’s work. In general, constitu-
tional and statutory imperatives to protect the public – especially vulnerable groups such as women and girls –
against violent crimes, can signify the existence of such a connection. According to Scott 2016 TSAR 350 (after
discussing Morudu v Minister of Safety and Security case no 35474/2002 (unreported) (5-08-2013) and Minister of
Safety and Security v Morudu 2015 ZASCA 91), particularly two main factors can be deduced from case law that
indicate a sufficiently close connection in the context of state liability for intentional delicts: where the perpe-
trator’s employment relationship provides the opportunity to commit the intentional deed, and the creation of trust
on the part of the victim, misleading her to be less cautious (see also Wessels 2018 TSAR 868 ff on the role played
by trust in imposing vicarious liability on the state for the intentionally committed violent crimes of police
officers). However, in Booysen v Minister of Safety and Security 2018 6 SA 1 (CC) vicarious liability of the State
was ultimately adjudged by the CC to be absent. Here a police vehicle dropped a policeman (M) in uniform at the
home of his girlfriend (B) for dinner. After dinner, when they sat outside together, M drew his service pistol, shot B
in the face, turned the weapon on himself and committed suicide. B sued the Minister of Safety and Security,
claiming that the minister should be held vicariously liable for the damage caused by M’s act. The High Court
(Booysen v Minister of Safety and Security [2015] ZAECGHC 56) found for B, accepting that, although the estab-
lished factor of trust in the policeman did not arise in the case, it was not a prerequisite for vicarious liability but
one of the factors that may or may not be present. Amongst other factors, the risk created by the minister by issuing
the police firearm used to commit the delict, played a role in establishing the minister’s vicarious liability (para 25;
see also Pehlani v Minister of Police [2014] ZAWCHC 146). However, the minister’s appeal to the SCA (Minister
of Safety and Security v Booysen [2016] ZASCA 201 (see Scott 2017 TSAR 872 ff, cf 2019 TSAR 150 ff for a criti-
cal evaluation)) was successful, the majority holding that there was an insufficiently close link between M’s act and
his employment for vicarious liability because, amongst other things, the trust factor, which the court regarded as
essential for liability, was entirely absent here (paras 29–32; see Wessels 2018 TSAR 868 ff). B’s application to the
CC for leave to appeal to it was refused by the majority because it found that the court had no jurisdiction (pa-
ras 60–61) (see Scott 2019 TSAR 150 ff for a critical discussion). However, we prefer the minority view of Zondo
DCJ (who would have upheld the appeal) who found that misuse of trust was not a prerequisite for liability (pa-
ras 101 106) and that various other factors (paras 101 111 120) justified the conclusion that there was indeed a suf-
ficiently close link between M’s act (which was, incidentally, as in K, also both an omission and a commission
(para 103)) and his employment to find the minister vicariously liable (paras 120–122) (see also Scott 2019 TSAR
162 ff).
157 As was done in, eg, F v Minister of Safety and Security 2012 1 SA 536 (CC) 549 ff (for criticism of F, see Scott
2012 TSAR 546-547, 2016 TSAR 343-344, 2020 TSAR 169; see also Linscott 2014 (6) PELJ 2943 who claims that
the majority judgment would have been better aligned with K if the court had acknowledged “the weak factual
link” between the policeman’s delictual conduct and his employer’s business but justified its decision “primarily on
the basis of constitional norms and public policy”); Minister of Defence v Von Benecke 2013 2 SA 361 (SCA) 364–
367 (Scott 2013 TSAR 348 ff; Wagener 2015 SALJ 270 ff); Giesecke & Devrient Southern Africa (Pty) Ltd v Minis-
ter of Safety and Security 2012 2 SA 137 (SCA) 150; Minister of Safety and Security v Luiters 2006 4 SA 160
(SCA) 165 (2007 2 SA 106 (CC) 112–113 115); Minister of Finance v Gore 2007 1 SA 111 (SCA) 123–124;
Von Beneke v Minister of Defence 2012 5 SA 225 (GNP) 229–230; PE v Ikwezi Municipality 2016 5 SA 114 (ECG)
paras 45–56. According to Scott 2020 TSAR 179, the judgment of the SCA in Minister of Safety and Security v Msi
2019 ZASCA 26, in contrast to that of the court a quo (The Minister of Safety and Security v Koleka Nancy Msi
case no CA17/2017 ECG (28-11-2017)), displays a reluctance to give full effect to the new approach to the applica-
tion of the standard test established in the K judgment. See further Loubser and Midgley Delict 478–479.
exploit the employment situation for their own benefit.158 The pioneering judgment was Minister
of Police v Rabie159 where Jansen JA declared:
By approaching the problem whether [an employee’s] acts were done ‘within the course or scope of his
employment’ from the angle of creation of risk, the emphasis is shifted from the precise nature of his
intention and the precise nature of the link between his acts and [his] work, to the dominant question of
whether those acts fall within the risk created by [his employer].
Jansen JA declined to express an opinion on the limits of liability based on the creation of
risk.160 However, in later judgments the Appellate Division161 was unwilling to develop risk
creation as an independent basis of vicarious liability. Instead, the courts emphasise that risk
creation is directly relevant to the inquiry whether the employee acted within the scope of
employment, and is therefore a factor to be taken into account there. Therefore it does not
replace the standard test.162 In Ess Kay Electronics Pte Ltd v First National Bank of Southern
Africa Ltd163 the court goes even further by declaring that the risk theory is merely an
explanation of the principle of vicarious liability and not the formulation of the principle it-
self.164 The judgment of Nel J in Grobler v Naspers Bpk165 is in direct contrast to this approach.
In respect of sexual harassment in the workplace, the court correctly took risk-creation into
account in finding that the employee acted within the scope of his employment and that the
employer was vicariously liable.166 It is submitted that risk creation must at least be considered
________________________
158 In Feldman (Pty) Ltd v Mall 1945 AD 733 741 the court explained liability on the ground of the creation of risk as
follows: “[A] master who does his work by the hand of a servant creates a risk of harm to others if the servant
should prove to be negligent or inefficient or untrustworthy; that, because he has created this risk for his own ends
he is under a duty to ensure that no one is injured by the servant’s improper conduct or negligence in carrying on
his work” (see also Minister of Police v Rabie 1986 1 SA 117 (A) 134–135; Boka Enterprises (Pvt) Ltd v Manatse
1990 3 SA 626 (ZH) 628–629; Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd 1992 3 SA 643 (D)
648; Dithipe v Ikageng Town Council 1992 4 SA 748 (T) 751; cf Commissioner, SARS v TFN Diamond Cutting
Works (Pty) Ltd 2005 5 SA 113 (SCA) 117; see in general Neethling 2007 THRHR 527 ff).
159 1986 1 SA 117 (A) 134 (for critical discussions of this case, see Martin 1989 THRHR 273 ff; Van der Walt 1988
THRHR 515 ff; see also Minister van Wet en Orde v Wilson 1992 3 SA 920 (A) 927–928; Macala v Maokeng Town
Council 1993 1 SA 434 (A) 440–441; Dithipe v Ikageng Town Council 1992 4 SA 748 (T) 751; Romansrivier
Koöperatiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd 1993 2 SA 358 (C) 364–366; Munengami v
Minister of Defence 2007 2 SA 320 (ZH) 331–332 333; cf Minister of Law and Order v Ngobo 1992 4 SA 822 (A)
831–834).
160 Rabie 135. In Minister van Wet en Orde v Wilson 1992 3 SA 920 (A) 927–928 the court held on the facts that the
conduct of the wrongdoer was so far removed from any risk created by his appointment as a policeman that no vi-
carious liability could attach to the state.
161 Minister of Law and Order v Ngobo 1992 4 SA 822 (A) 828–834; see also Macala v Maokeng Town Council 1993 1
SA 434 (A) 441; Romansrivier Koöperatiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd 1993 2 SA 358
(C) 365.
162 See also Neethling and Potgieter 2003 THRHR 327, 2004 SA Merc LJ 492–493; Scott 2000 Acta Juridica 279; for
criticism see Ebersöhn and Jansen 2000 (2) TRW 166.
163 2001 1 SA 1215 (SCA) 129.
164 See also Loubser and Reid 2003 Juridical Review 156.
165 2004 4 SA 220 (C). See further Loots 2008 Stell LR 143 ff.
166 According to the court (297) a number of factors create or enlarge an inherent risk of sexual harassment in an
employment milieu, particularly between a manager and his secretary. Grobler can be hailed as a milestone in our
law in respect of vicarious liability of employers for sexual harassment of employees. The case broke away from
the strict application of the standard test that could produce the unacceptable result that sexually harassed persons
are without remedy against their employers (see Neethling and Potgieter 2004 SA Merc LJ 491–492; Calitz 2005
TSAR 215 ff; Scott 2017 TSAR 630 ff and sources cited there; Calitz and De Villiers 2020 SALJ 72 ff on the vicari-
ous liability of education authorities for sexual abuse of pupils by teachers in schools). On appeal (Media 24 Ltd v
Grobler 2005 6 SA 328 (SCA) 349 ff) the court unfortunately did not express itself on vicarious liability, but found
that the employer was directly liable for the plaintiff’s damage on account of his own wrongful and negligent fail-
ure to protect her against the harassment. In PE v Ikwezi Municipality 2016 5 SA 114 (ECG) paras 57–58 Pickering
J pointed out that there has in recent years been a growing realisation of and appreciation for the prevalence and
devastating effects of sexual harassment in the workplace, both in South Africa and in other jurisdictions. In this
case, the court had to decide whether the common law should be developed to hold an employer (M) vicariously
liable in circumstances where one of its employees (PE) is subjected to sexual harassment by a direct supervisor
(X) (para 70). (The judge stressed that this case is not concerned with the situation where the perpetrator of the sexual
[continued ]
452 Law of Delict
as a factor in answering the question of whether the employee acted in the scope of his employ-
ment.167 168 This approach has now been confirmed in Stallion Security v Van Staden169
________________________
harassment is a co-worker and not a superior, where different considerations may apply (para 70).) Coming to the
conclusion that M was vicariously liable for X’s sexual harassment of PE, the judge took the following factors into
account: (a) X, by his gross actions and in creating an offensive and intimidating work environment, infringed PE’s
rights to dignity and to security of the person, including her right to bodily and psychological integrity, enshrined in
the Bill of Rights (para 75); (b) because of the nature of their employment relationship the opportunity presented
itself to X, who was PE’s superior, to abuse his authority and to take advantage of the vulnerability of the plaintiff
in the course of carrying out his duties during his hours of work at his employer’s facilities (cf Grobler) (para 76);
(c) M placed X in the position where he was able to act as he did and facilitated his actions (para 77); (d) there is a
new understanding of the prevalence of sexual harassment in the workplace and of its devastating effects on the
victim (para 78). Holding the employer vicariously liable for cases involving sexual harassment in the workplace
may encourage the employer to take preventive and protective steps such as having in place a Code of Good Prac-
tice on Sexual Harassment, which was absent in the present case (para 79). Factors (b) and (c) above are also indic-
ative of the risk created by the employer for the possibility of sexual harassment, a factor which was directly
identified in Minister of Police v Rabie 1986 1 SA 117 (A) 134 and taken into account by Nel J in Grobler 297 in
finding that the employee acted within the scope of his employment and that the employer was vicariously liable
(see also Neethling and Potgieter 2016 Annual Survey 783–786; Scott 2017 TSAR 630 ff for a discussion).
167 This approach should be considered in instances of intentional wrongdoing by an employee (see supra fn 156;
Neethling 2007 THRHR 537–538; Neethling 2019 (3) LitNet Akademies 827í828), particularly in those cases
where the employer is held liable for the employee’s “improper modes” of doing his work. Risk creation is a better
explanation of such liability. As a general guideline, we submit that an employer should be liable for an (intention-
al) delict of his employee if his appointment and work conditions enabled him to commit the delict (and hence cre-
ated a heightened risk of prejudice) in such a manner that it should be imputed to the employer on grounds of
reasonableness, fairness and justice (however, cf Ess Kay Electronics Pte Ltd v First National Bank of Southern
Africa Ltd 2001 1 SA 1215 (SCA) 1219). Such a heightened risk of prejudice is in particular present where em-
ployees have been placed in a position of trust or authority, creating the possibility of abuse (cf Loubser and Reid
2003 Juridical Review 156–157 158; see Wessels 2018 TSAR 868 ff on the trust factor). In this respect the fact that
the employee was on duty when the delict was committed, should be prima facie indicative of liability. This factor
should be of increasing weight the more the employee used the “trappings” of his work while committing a delict
on duty (see Neethling 2007 THRHR 537 ff; Neethling and Potgieter 2004 SA Merc LJ 488 ff; Loubser and
Midgley Delict 478; Loubser and Reid 2003 Juridical Review 158; cf also Romansrivier Koöperatiewe Wynkelder
Bpk v Chemserve Manufacturing (Pty) Ltd 1993 2 SA 358 (C) 366).
168 The courts have continued to emphasise that risk creation is directly relevant to the inquiry whether the employee
acted within the scope of his employment (see, eg, Macala v Maokeng Town Council 1993 1 SA 434 (A) 441; F v
Minister of Safety and Security 2010 1 SA 606 (WCC) 625–626; Scott 2011 TSAR 135 ff, 2020 TSAR 338 ff;
Neethling 2011 TSAR 186 ff). In Minister of Safety and Security v F 2011 3 SA 487 (SCA) 503 the court accepted
that this idea is far from dead, as was apparant from the foreign cases the court had cited (see also Neethling 2007
THRHR 535–537; Loubser and Midgley Delict 479; Neethling and Potgieter 2012 (2) LitNet Akademies 88–89;
Neethling 2013 THRHR 131 fn 169). In Minister of Law and Order v Ngobo 1992 4 SA 822 (A) 832 the court opined
that “direct liability may in certain circumstances attach to an employer as a result of a risk created by him” (see
also F (SCA) 503–504). In F v Minister of Safety and Security 2012 1 SA 536 (CC) 564 ff Froneman J, in a minori-
ty judgment, also advocated direct liability of the state. Without detracting from the trend-setting decision of the
CC in K v Minister of Safety and Security 2005 6 SA 419 (CC) which dealt persuasively with state liability for po-
lice rape on a vicarious basis (see supra fn 156), the wrongfulness element of direct liability provides a possible al-
ternative for state liability in order to avoid overextending the criterion of a sufficiently close connection,
particularly since the factors pointing to such a connection could also be applied to the wrongfulness element (see
Neethling and Potgieter 2012 (2) LitNet Akademies 78–80; Neethling 2012 THRHR 629–631; see also Scott 2012
TSAR 541 ff, 2016 TSAR 335; Boonzaier 2013 SALJ 330 ff; Botha and Millard 2012 De Jure 249–252; cf Linscott
2014 (6) PELJ 2916 ff).
169 2020 1 SA 64 (SCA). Here the applicant was a company which provided security services at a certain building. For
this purpose, it employed both guards and a manager. One evening the manager surreptitiously entered the building,
located the respondent’s husband where he was working in his office, robbed and forced him out of the building
and into the husband’s vehicle, and forced him to drive them out of the premises. Later the manager ordered the
husband to stop and he then shot and killed him. The core question was whether the company could be held vicari-
ously liable for the employee’s murder. Van der Merwe JA (69í70) emphasised the importance of the decision in K
v Minister of Safety and Security 2005 6 SA 419 (CC) (discussed supra 449), especially the court’s development of
the basis of the common law of vicarious liability, which had been laid in Minister of Police v Rabie 1986 1 SA 117
(A) (discussed supra 447). The judge continued (70): “The purpose of the development of the law in Rabie and K
was to provide redress to a victim against an employer even though the wrongful act did not in any manner consti-
tute the exercise of the duties or authorised acts of the employee, if it was objectively sufficiently linked to the
business or enterprise of the employer. Thus, references to a link with the duties, authorised acts or employment of
[continued ]
where the Supreme Court of Appeal developed the common law with regard to the vicarious
liability of employers by recognising that the creation of risk of harm by an employer may, in an
appropriate case, constitute a relevant consideration in giving rise to a sufficiently close link
between the harm caused by the employee and the business of the employer. This view is fully
supported, has been propagated for more than 25 years170 and constitutes an important milestone
in the development of our law concerning the vicarious liability of employers.
2.1.7.3 Principal – agent

When an agent (ie, someone who is authorised to perform a legal act – usually concluding a
contract171 – on behalf of his principal) acting in the execution of his authority commits a delict,
his principal is fully liable for the damage.172 As with an employer,173 the risk theory provides
the most acceptable explanation for the principal’s liability,174 and analogous to the position of
an employer, there are also three requirements for the vicarious liability of a principal for the
delict of his agent: there must be a principal – agent relationship when the delict is committed;
the agent must commit a delict; and the agent must act within the scope of his authority when the
delict is committed. Since the authority, mandate or power (capacity) to represent is normally
granted for the purposes of concluding a contract, the delict generally consists of a misrepresen-
tation to a third party made by the agent.175
2.1.7.4 Motor car owner – motor car driver

Where a motor car owner allows someone else (who is not his employee) to drive his car and the
driver negligently causes an accident, the owner is fully liable for the loss provided that the
following three requirements are met:176 (a) the owner must request the driver to drive the
________________________
the employee should in this context be avoided.” The court (72) critisised the negative view in Minister of Law and
Order v Ngobo 1992 4 SA 822 (A) 831 of the approach in Rabie, and also stated that there is no reason why creation
of risk cannot be the policy consideration as well as the criterion for the application of this principle (unlike as was
by implication averred in Ess Kay Electronics Pte Ltd v First National Bank of Southern Africa Ltd 2001 1 SA
1215 (SCA) 1219). With reference to leading judgments in Canada and the United Kindom, Van der Merwe JA
(72í74) declared that it is now firmly established that creation of risk is an important consideration in determining
vicarious liability under the “close connection” test. According to him, the reasoning in these judgments are com-
pelling and provides valuable guidelines for the development of our law in this field. This approach is also support-
ed by leading academic commentators. For these reasons our law, as was established in Rabie and K, should be
further developed “to recognise that the creation of risk of harm by an employer may, in an appropriate case, con-
stitute a relevant consideration in giving rise to a sufficiently close link between the harm caused by the employee
and the business of the employer”. The court held that the company was liable for the manager’s murder. See
Neethling 2019 (3) LitNet Akademies 820 ff and Scott 2020 TSAR 338 ff for full discussions of Stallion.
170 See Neethling and Potgieter 1993 THRHR 500 ff.
171 Cf however Barclays National Bank Ltd v Traub and Kalk 1981 4 SA 291 (W) 298; Van der Merwe and Olivier
520 fn 34.
172 See in general Scott Middellike Aanspreeklikheid 254 ff; Van der Merwe and Olivier 520; Van der Walt and
Midgley Delict 57; Wicke Vicarious Liability 155 ff, 1998 THRHR 609 ff.
173 Supra 434.
174 Scott Middellike Aanspreeklikheid 268–270. In Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 4 SA
363 (A) 372 Steyn CJ stated: “It is reasonable that the principal who elects his representative and presents him as a
reliable person, and not the other party who had no say in the election, should bear the risk of his possible dishonest
representations or concealments” (translation).
175 See in general Scott Middellike Aanspreeklikheid 256 ff 270–271; Van der Merwe and Olivier 520. For examples
from case law, see Ravene Plantations Ltd v Estate Abrey 1928 AD 143; Colonial Mutual Life Assurance Society
Ltd v MacDonald 1931 AD 412; Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 4 SA 363 (A).
176 Roman v Pietersen 1990 3 SA 350 (C) 354; Labuschagne v Cloete 1987 3 SA 638 (T) 644; Du Plessis v Faul 1985
2 SA 85 (NC) 92; Boucher v Du Toit 1978 3 SA 965 (O) 971–975; Braamfontein Food Centre v Blake 1982 3 SA
248 (T) 251; South African General Investment and Trust Co Ltd v Mavaneni 1963 4 SA 89 (D) 91; Paton v Cale-
donian Insurance Co 1962 2 SA 691 (D); also see in general Scott Middellike Aanspreeklikheid 239–246; Van der
Walt and Midgley Delict 57í58; Wicke Vicarious Liability 170 ff; cf however Van der Merwe and Olivier 523 ff
for a critical view. In exceptional circumstances even a person who is not owner of the motor car but who has the
[continued ]
454 Law of Delict
vehicle or supervise his driving;177 (b) the vehicle must be driven in the interest of the owner;178
and (c) the owner must retain a right (power) of control over the manner in which the vehicle is
driven.179 As in the previous two cases, vicarious liability may be explained with reference to the
risk theory.180
2.1.7.5 State – public school

Statutory vicarious liability is created by section 60(1) of the South African Schools Act 84 of
1996, which provides that the state is “liable for any damage or loss caused as a result of any act
or omission in connection with any educational activity conducted by a public school and for
which such public school would have been liable but for the provisions of this section”.181 The
state is therefore exclusively liable for damage caused by any delict (for example, by teachers or
learners) that is associated with an educational activity of a public school.182 However, the state
is not in terms of section 60(1) liable for claims based on breach of contract against the
school.183 Section 60(1) does not exclude claims a person may have against the state on other
grounds, such as because of the negligence of the state.184
________________________
right to control it can be vicariously liable (Van Blommenstein v Reynolds 1934 CPD 265 269; H Mohammed & As-
sociates v Buyeye 2005 3 SA 122 (C) 131–132)
177 According to Roman v Pietersen 1990 3 SA 350 (C) 354–355 the emphasis should fall on the express or implied
consent of the owner.
178 The “interest” that is required includes not only the owner’s patrimonial interests, but also a purely social interest
(Messina Associated Carriers v Kleinhaus 2001 3 SA 868 (SCA) 875; Roman v Pietersen 1990 3 SA 350 (C) 355;
Du Plessis v Faul 1985 2 SA 85 (NC) 93; cf also Paton v Caledonian Insurance Co 1962 2 SA 691 (D) 693; South
African General Investment and Trust Co Ltd v Mavaneni 1963 4 SA 89 (D)). Furthermore, the trip need not be
mainly or exclusively in the interest of the owner; a trip that is undertaken only partially in his interest, is sufficient
(Roman v Pietersen 1990 3 SA 350 (C) 355; Du Plessis v Faul 1985 2 SA 85 (NC) 93; cf also South African Gen-
eral Investment and Trust Co Ltd v Mavaneni 1963 4 SA 89 (D) 94; Scott Middellike Aanspreeklikheid 243–245
246).
179 In Messina Associated Carriers v Kleinhaus 2001 3 SA 868 (SCA) 875 Scott JA formulated the position as
follows: “Ultimately the true inquiry is whether the relationship between the owner and the driver and the interest
of the former in the driving of the latter is sufficiently analogous to the case of an employee driving in the course
and scope of his employment to justify the negligence of the driver being attributed to the owner. The answer will
depend not only on a careful analysis of the facts of each case but also on considerations of policy. As I have indi-
cated, depending upon the circumstances the presence or otherwise of the owner in the vehicle may prove to be a
determinative factor, but not necessarily so.” The “right” of control apparently does not mean factual control: an
owner who is present in his vehicle that is driven at his request and in his interest, not only has a right, but also a
duty to exercise control over the manner in which the vehicle is driven. Therefore, this requirement is still complied
with in principle if the owner falls asleep or as a result of the intake of alcohol is unable (factually) to exercise con-
trol any more. The legal convictions of the community require that vicarious liability should still follow as a result
of neglecting the “duty to control” (Roman v Pietersen 1990 3 SA 350 (C) 356; Du Plessis v Faul 1985 2 SA 85
(NC) 93–94; Manickum v Lupke 1963 2 SA 344 (N) 348; cf Gerber 1995 THRHR 340–341). Negligent dereliction
of duty can nevertheless be the basis of direct or personal liability (see Kleinhaus 874; H Mohammed & Associates
v Buyeye 2005 3 SA 122 (C) 131–132). According to Wicke Vicarious Liability 188–189, non-compliance with the
relevant duty indicates wrongful conduct on the part of the owner.
180 In, eg, Paton v Caledonian Insurance Co 1962 2 SA 691 (D) 695 Henning J stated: “It appears to me that the owner
of a potentially dangerous thing, such as a motor vehicle, who retains control of it, although he allows another to
handle it, is vicariously responsible to others for the harm caused to them by such handling” (emphasis added).
181 In Parktown High School for Girls v Emeran 2019 4 SA 188 (SCA) the court held that a fashion show organised by
learners was a school activity and not an enterprise or business in terms of s 60(4) of the Act, which would have
exempted the state from liability as contended by the injured boy and his father (paras 7 8 10 11 15 18). Their claim
against the school was therefore dismissed as they should have instituted their action against the state (para 21).
182 Louw v LUR vir Onderwys en Kultuur, Vrystaat 2005 6 SA 78 (O) 85; confirmed in 2006 1 SA 192 (SCA); Visser
2006 THRHR 523 ff; see in general Visser 2004 THRHR 98 ff; Potgieter 2005 De Jure 1 ff; cf Calitz and De Vil-
liers 2020 SALJ 72 ff.
183 Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School 2008 5 SA 1 (SCA) 12–13.
This conclusion is according to the court (ibid) supported by s 20(10) of the Act, that provides that the state is not
liable for any act at a public school that flows from its contractual responsibilities as employer against its staff (see
[continued ]
2.1.8 Independent contractors

As indicated,185 the contract of mandate concerns an agreement in terms of which one person
undertakes to render services to another for remuneration without being subject to the control of
the other.186 This type of contract, involving an independent contractor, does not found vicarious
liability. The mandator is only liable for damage caused by the mandatory if the former himself
also committed a delict.187 According to Van der Merwe and Olivier,188 this is the case: (i) where
the unlawful infliction of damage occurred at the order of the mandator;189 (ii) where the causing
of damage was the result of imprecise instructions by the mandator to the mandatory, or because
he appointed an incompetent mandatory; (iii) where the causing of damage resulted from an act
which the mandatory executed on the instructions of the mandator and which the latter himself
was not competent to perform;190 and (iv) where there was a danger of inflicting damage to third
parties involved in the mandatory’s task and the mandator negligently failed to ward off the
danger.191 Danger is nonetheless only one of the factors that must be taken into account when
determining whether the mandator acted negligently.192 Whether this is the case, must, according
to Goldstone AJA,193 be answered by reference to the following three questions: “(1) Would a
reasonable man have foreseen the risk of danger in consequence of the work he employed the
contractor to perform? If so, (2) would a reasonable man have taken steps to guard against the
danger? If so, (3) were such steps duly taken in the case in question? Only where the answer to
the first two questions is in the affirmative does a legal duty arise, the failure to comply with
which can form the basis of liability.”194 The duty to act is determined with reference to the
following factors, which do not constitute an exhaustive list:195 “[T]he nature of the danger; the
context in which the danger may arise; the degree of expertise available to the employer and the
independent contractor respectively; and the means available to the employer to avert the
________________________
further Louw v LUR vir Onderwys en Kultuur, Vrystaat 2006 1 SA 192 (SCA) 195–197; cf Visser 2006 THRHR
523 ff).
184 MEC for Education, Western Cape Province v Strauss 2008 2 SA 366 (SCA) 369.
185 Supra 445.
186 Van der Merwe and Olivier 510; see also Smit v Workmen’s Compensation Commissioner 1979 1 SA 51 (A); Stein
v Rising Tide Productions CC 2002 5 SA 199 (C) 205.
187 See Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 1 SA 1 (A) 7 ff (see supra 74 for the facts);
Pienaar v Brown 2010 6 SA 365 (SCA) 368–369 371–372; Saayman v Visser 2008 5 SA 312 (SCA) 317–318;
Chartaprops 16 (Pty) Ltd v Silberman 2009 1 SA 265 (SCA) 284 (see for discussion of the previous two cases,
Scott 2009 THRHR 667 ff; Neethling and Potgieter 2009 THRHR 661 ff); Skead v Melco Elevator (South Africa)
(Pty) Ltd [2010] 3 All SA 445 (GSJ) 460–461; Stein v Rising Tide Productions CC 2002 5 SA 199 (C) 207–209;
Minister of Community Development v Koch 1991 3 SA 751 (A) 762–764; De Jager v Taaf Hamman Holdings
(Edms) Bpk 1993 1 SA 281 (O) 291– 292; Johannesburg City Council v Television & Electrical Distributors (Pty)
Ltd 1997 1 SA 157 (A) 173–174; see also Loubser and Midgley Delict 470–473; Van der Walt and Midgley Delict
59.
188 521–522; see also McKerron Delict 87–89; Wicke Vicarious Liability 130 ff.
189 See, eg, Carter and Co (Pty) Ltd v McDonald 1955 1 SA 202 (A) 210; Eksteen v Van Schalkwyk 1991 2 SA 39 (T)
43–44.
190 Cf Minister of Posts and Telegraphs v Johannesburg Consolidated lnvestment Co Ltd 1918 TPD 253 257.
191 Cf Eksteen v Van Schalkwyk 1991 2 SA 39 (T) 45–46.
192 See Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 1 SA 1 (A) 9–13 18; Saayman v Visser 2008 5
SA 312 (SCA) 318; Stein v Rising Tide Productions CC 2002 5 SA 199 (C) 207.
193 In Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 1 SA 1 (A)11–12; see further Pienaar v Brown
2010 6 SA 365 (SCA) 368–369; Saayman v Visser 2008 5 SA 312 (SCA) 319; Minister of Community Develop-
ment v Koch 1991 3 SA 751 (A) 761–762; Stein v Rising Tide Productions CC 2002 5 SA 199 (C) 207–208; Kriel v
Premier, Vrystaat 2003 5 SA 66 (O) 70; De Jager v Taaf Hamman Holdings (Edms) Bpk 1993 1 SA 281 (O) 291–
292; Burchell Delict 227–232.
194 In other words, the negligence test (see Chartaprops 16 (Pty) Ltd v Silberman 2009 1 SA 265 (SCA) 284;
supra 164 ff).
195 Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 1 SA 1 (A) 13; see further Saayman v Visser 2008
5 SA 312 (SCA) 319; Chartaprops 16 (Pty) Ltd v Silberman 2009 1 SA 265 (SCA) 284; Minister of Community
Development v Koch 1991 3 SA 751 (A) 762; Stein v Rising Tide Productions CC 2002 5 SA 199 (C) 208.
456 Law of Delict
danger”. However, on closer examination this approach makes the mandator’s liability only
dependent on his negligence without also pertinently answering the question as to the wrongful-
ness of his conduct. In this regard the legal duty approach in connection with liability for an
omission is relevant where the boni mores criterion is applied and where factors such as the
relationship between the parties, control over a dangerous situation and the fact that the manda-
tor knew about the dangerous situation play a role in determining the legal duty.196 Seen in this
light, the minority judgment of Botha JA197 is preferable since the application of the reasonable
person test for negligence, according to him, depends on whether the mandator had knowledge of
the dangerous situation,198 that is, on the wrongfulness question of whether there was a legal
duty on the mandator to act positively at all.199 This approach was by implication also followed
by Kriegler AJA200 in so far as he succeeded in reconciling the judgment of Botha JA in Langley
Fox (the knowledge approach) with that of Goldstone AJA (the reasonable person approach).201
In this context we submit de lege ferenda that, according to the boni mores, mandators have a
legal duty to appoint only independent contractors who are suited to a task with an inherent
danger or risk of which the mandator is (reasonably) aware. If this has indeed been done, the
mandator is not under an obligation to take any further steps to eliminate the risk unless, and this
is most important, he is aware or has knowledge of the “actual existence of a dangerous situation
at the very time when harm befalls a third party”,202 or if such danger is reasonably foreseeable.
If this is the case, the mandator has a legal duty according to the boni mores to prevent harm.203
2.2 Legislation
2.2.1 Consumer Protection Act 68 of 2008 (product liability)
As stated,204 liability for damage caused by defective products was restricted to the fault-based
Aquilian action until the commencement of the Consumer Protection Act (CPA).205 The CPA206
introduces radical and comprehensive law reform, since, among others, the manufacturer207 of
goods is held liable for harm208 caused209 to consumers210 by unsafe or defective211 goods,212
irrespective of the presence or absence of negligence. Strict liability is thus introduced.
________________________
196 See supra 73.

197 In Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 1 SA 1 (A) 16–20
198 Cf Stein v Rising Tide Productions CC 2002 5 SA 199 (C) 208.
199 Cf supra 197 on the difference between wrongfulness and negligence in connection with liability for an omission;
see in general Knobel 1991 THRHR 661 ff.
200 In Minister of Community Development v Koch 1991 3 SA 751 (A) 761–762.
201 See Neethling and Potgieter 1992 THRHR 311–313 for a detailed discussion; see further supra 74.
202 Minister of Community Development v Koch 1991 3 SA 751 (A) 761–762.
203 As in Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 1 SA 1 (A). This approach was implicitly
followed in Skead v Melco Elevator (South Africa) (Pty) Ltd [2010] 3 All SA 445 (GSJ).
204 Supra 382 ff.
205 68 of 2008 s 61. See generally Loubser and Reid Product Liability 56 ff; Loubser and Midgley Delict 565 ff;
Jacobs, Stoop and Van Niekerk 2010 (3) PELJ 301 ff; Neethling 2011 TSAR 812–815; Gowar 2011 Obiter 521 ff;
Katzew and Mushariwa 2012 SA Merc LJ 1 ff.
206 S 61(1).
207 As well as the importer, distributor or retailer. A supplier of services associated with goods, is regarded as a
supplier of those goods for the purpose of s 61 (s 61(2)). See also Loubser and Midgley Delict 573; Loubser and
Reid Product Liability 119 ff; Neethling 2011 TSAR 812–813.
208 Harm includes death, injury or illness of a natural person, damage to property, and economic loss resulting from the
aforementioned instances of harm (s 61(5)). Pure economic loss (see supra 349) is thus not covered by the Act
(contra, however, Loubser and Reid Product Liability 93, but see Neethling and Potgieter 2014 THRHR 506–508).
See for a discussion of this subsection Loubser and Midgley Delict 573; Loubser and Reid Product Liability
93–100; Neethling 2011 TSAR 813. An important implication of the fact that pure economic loss is not actionable
under the CPA, is that the common law on product liability for such loss is applicable, as was the case in Freddy
Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA). Likewise, in terms of s 5(2)(b) the CPA is
not applicable to juristic persons as consumers “whose asset value or annual turnover, at the time of the transaction,
[continued ]
The following defences may be raised by a person against liability in terms of the CPA:213 (i) the
defect in a product that results in harm, is wholly attributable to compliance with a public
regulation; (ii) the alleged defect was not present in the product at the time it was supplied by the
defendant to another person alleged to be held liable; or if the alleged defect is wholly attribut-
able to compliance of the defendant with instructions given to him by the supplier of the goods,
in which case the defence just mentioned is not applicable; (iii) it is unreasonable to expect the
distributor or retailer (defendants) to have discovered the defect in the product, having regard to
another person’s role in marketing the goods to consumers; or (iv) a claim for damages for
death, injury, illness, damage to property or resultant economic loss214 caused by a defective
product, is brought more than three years after the death or injury of a person, or more than three
years after the earliest time at which a person had knowledge of the material facts about his
illness or the damage to his property, or more than three years after the last date on which a
person suffered resultant economic loss.
If, in a particular case, more than one person is liable in terms of the CPA, their liability is joint
and several215 – they are thus regarded as joint wrongdoers.216 A court217 has the authority to
________________________
equals or exceeds the threshold value determined by the Minister in terms of section 6” (at present, R2 million).
Common law product liability will therefore apply in cases where this threshold has been equalled or exceeded. In
view of this fact, the remark of Nugent JA in AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) 620 regarding
common law product liability in respect of juristic persons, should be approached with circumspection (see Neeth-
ling and Potgieter 2014 THRHR 508).
209 Since the CPA does not define causation, the common law principles as to factual and legal causation can be
utilised in this regard (see Neethling 2011 TSAR 814–815; supra 215 ff). See generally Loubser and Reid Product
Liability 102 ff.
210 In terms of s 1 of the CPA, a consumer includes not only a person to whom the goods or services are sold or
supplied, but also the user of goods or services, who was not a party to the transaction for the supply of the goods
or services (see Neethling 2011 TSAR 813; Loubser and Midgley Delict 572–573). In Eskom Holdings Ltd v Hal-
stead-Cleak 2017 1 SA 333 (SCA) the plaintiff suffered burns when he cycled into a low-hanging live power line
under Eskom’s control. He instituted a claim for damages against Eskom, relying on delict and product liability.
Schoeman AJA held that, as the CPA’s purpose was to protect consumers, there had to be a supplier/consumer rela-
tionship for strict liability to ensue (paras 21 22). In the present case, the plaintiff was not a consumer vis-à-vis
Eskom because (a) he did not enter into any transaction with Eskom as a supplier or producer of electricity in the
ordinary course of Eskom’s business; and (b) was not at the time utilising the electricity, nor was he a recipient or
beneficiary thereof (paras 22 23). Consequently, because the plaintiff was not a consumer, he was not entitled to the
protection of the CPA (para 25) (see however Loubser and Reid Product Liability 93í94; Van Heerden and Bar-
nard 2019 THRHR 444 ff who are in favour of extending the protection of the CPA under s 61 to innocent bystand-
ers).
211 Including product failure, a hazard in the product, or inadequate warnings or instructions about any danger posed
by the goods (cf further s 58; see also Neethling 2011 TSAR 813–814; Loubser and Midgley Delict 253–255;
Loubser and Reid Product Liability 56 ff). The criterion used by the CPA for the determination of a defect is the
reasonable expectations of consumers (see s 53(1)(a)). This criterion appears to be analogous to the test proposed
for determining whether a product is defective under the common law (see supra 383–384; Neethling 2011 TSAR
813–814; cf Loubser and Midgley Delict 254–255).
212 The CPA (s 1) defines “goods” very widely as anything marketed for human consumption, any tangible object or
intangible product, any interest in land or immovable property as well as gas, water and electricity (see further
Neethling 2011 TSAR 813; Loubser and Midgley Delict 252; Loubser and Reid Product Liability 81 ff). See
Loubser and Midgley Delict 252–253 as to problems that may arise in regard to defects in immovable property, or
the provision of false information and contaminated blood.
213 S 61(4). See Neethling 2011 TSAR 814–815; Loubser and Midgley Delict 256–258; Loubser and Reid Product
Liability 130 ff.
215 S 61(3); see Neethling 2011 TSAR 815.
216 See supra 319.
217 S 61(6). Before a consumer may approach a court for damages (see, inter alia, ss 76 and 115(2)), he must first
attempt to enforce his claim by other procedures before various bodies (such as the commission, tribunal, ombud,
consumer court or alternative dispute resolution agent) for which the CPA makes provision (see, inter alia, s 69).
458 Law of Delict
assess whether any harm has been proved and adequately mitigated;218 to determine the extent
and monetary value of the damages, including economic loss;219 and to apportion liability among
persons who are jointly and severally liable.220 221
2.2.2 National Nuclear Regulator Act 47 of 1999

Liability for nuclear damage has been regulated by legislation since 1963222 and is currently
regulated by the National Nuclear Regulator Act.223 In terms of this Act224 the holder of a nu-
clear installation licence is strictly liable225 for all nuclear damage caused during his period of
responsibility.226 Although the licence holder may not raise fault (intent or negligence) on the
part of a third party or the negligence of the plaintiff as a defence,227 the following defences are
nevertheless at his disposal:228 that the damage is attributable to the unauthorised presence of the
plaintiff or his property at or in the nuclear installation, or on the site of that installation, or close
to radioactive nuclear material; and intent on the part of the prejudiced person.229
2.2.3 Civil Aviation Act 13 of 2009

In 1923, the legislature introduced strict liability for damage caused by aircraft.230 This position
is confirmed in the present Civil Aviation Act231 in almost identical words. However, the owner
may raise the fault (intent or negligence) of the prejudiced person as a defence.232
________________________
218 See supra 266 ff 279.

219 See supra 266 ff 282 ff.
220 S 61(6). Loubser and Reid Product Liability 146–147.
221 Initially an electrical undertaking was strictly liable for damage caused by electricity. Thereafter, strict liability of
the undertaker was replaced by the creation of a rebuttable presumption of negligence on its side (s 25 of the Elec-
tricity Regulation Act 4 of 2006). Now strict liability applies again, since electricity also qualifies as “goods” in
terms of s 1 of the CPA (see supra fn 212; Neethling 2011 TSAR 813; and generally Loubser and Midgley Delict
252; Loubser and Reid Product Liability 84–85).
222 S 5 of the (repealed) Act on Nuclear Installations (Licensing and Security) 43 of 1963.
223 47 of 1999, which replaced the Nuclear Energy Act 131 of 1993.
224 S 30(1).
225 Although the Afrikaans text of s 30(1), viz that the holder is liable “hetsy daar opset of nalatigheid aan die kant van
die houer is”, may cause doubt whether the legislature really wanted to create strict liability, the English text states
clearly that the holder is liable “whether or not there is intent or negligence on the part of the holder” (cf Neethling
2003 SALJ 91 fn 12). Strict liability is justified by the extreme potential of harm nuclear energy poses to the indi-
vidual.
226 Strict liability for nuclear damage also applies in respect of any person who executes any act for which a licence is
required without having a licence (s 30(8)).
227 Because these defences are not mentioned in the Act, it is clear that the legislature wished to regulate liability for
nuclear damage completely in the Act – outside of general principles of delict. Therefore only a limited number of
defences mentioned expressly in the Act (see s 30(6)) are at the disposal of the licence holder (see also Neethling
2003 SALJ 91–92). The licence holder nevertheless retains a right of recourse or contribution against a third person
in terms of s 30(7) – probably on the basis of delictual principles – for damage for which the licence holder is liable
under s 30(1).
228 Unlike s 5(3) of the repealed Nuclear Installations (Licencing and Security) Act 43 of 1963, vis maior is not
mentioned in the current Act and does not therefore apply as a defence (cf Black v Kokstad Town Council 1986 4
SA 500 (N) 502).
229 S 30(6).
230 S 9 of the Aviation Act 16 of 1923.
231 13 of 2009. S 8(2) reads as follows: “Where material damage or loss is caused by – (a) an aircraft in flight, taking
off or landing; (b) any person in any such aircraft; or (c) any article falling from any such aircraft, to any person or
property on land or water, damages may be recovered from the registered owner of the aircraft in respect of such
damage or loss, without proof of negligence or intention or other cause of action as though such damage or loss
had been caused by his or her wilful act, neglect or default” (emphasis added). Liability without fault is thus intro-
duced by assuming fault on the part of the owner (cf as to the similar s 11(2) of the repealed Aviation Act 74 of
1962, Van der Walt Risiko-aanspreeklikheid 427; Van der Merwe and Olivier 562).
232 S 8(3) of Act 13 of 2009.
2.2.4 Post and Telecommunication-Related Matters Act 44 of 1958

This Act233 creates strict liability234 for any person who directly or indirectly injures or destroys
telecommunications lines or call-office cabinets. The telecommunications company has a discre-
tion, in instances where the company considers it justified, to release the wrongdoer wholly or
partially from his liability. If the wrongdoer also acts negligently in causing the damage, he is, in
addition, guilty of a criminal offence.235
2.2.5 Genetically Modified Organisms Act 15 of 1997

In terms of section 17(2) of this Act, the liability for damage caused by activities relating to a
genetically modified organism is borne by the user concerned. Since the Act does not make
provision for fault on the part of the user as a requirement for liability for damages, liability
appears to be strict.236 But when such an organism was in the possession of an inspector, the user
concerned shall not be held liable for any damage unless he foresaw or should have foreseen the
damage and could or should have prevented it, but failed to take reasonable preventive steps.
2.2.6 Protection of Personal Information Act 4 of 2013 (POPI Act)

Section 99(1) of this Act237 provides that a data subject may institute a civil action against a
responsible party for interference with the protection of personal information of the data subject.
The responsible party is strictly liable238 and the data subject therefore need not prove intent or
negligence on the part of the responsible party.239 The defences normally available to a defend-
ant who is held strictly liable are available to the responsible party, namely vis maior, consent of
the plaintiff and fault on the part of the plaintiff. It is also a defence that compliance was not
reasonably practical in the circumstances, or that the Regulator has granted an exemption in
________________________
233 44 of 1958.
234 See Telkom (SA) Ltd v Duncan 1995 3 SA 941 (W) 943–945; Esterhuizen v Minister van Pos- en Telekommu-
nikasiewese 1978 2 SA 227 (T) 229; Knobel and Steynberg 1998 THRHR 148–149; cf Du Toit v Minister of Posts
and Telegraphs 1936 TPD 248.
235 S 108 which reads as follows: “Any person who, either directly or by means of an animal, vehicle or other thing
owned by him or in his custody or under his control, destroys or injures any telecommunications line or call office
cabinet of the telecommunications company, shall be liable to pay to the telecommunications company such ex-
penses as may be incurred in making good the destruction or injury, and if the destruction or injury be occasioned
by negligence on the part of any person, that person shall in addition be guilty of an offence . . . Provided that in
any case where in the opinion of the telecommunications company it is justified, the telecommunications company
may bear the whole or any part of the said expenses.” According to Telkom (SA) Ltd v Duncan 1995 3 SA 941 (W)
943–944 945-947 (see also Esterhuizen v Minister van Pos- en Telekommunikasiewese 1978 2 SA 227 (T) 229–
231), strict liability is, inter alia, based on the mere ownership of the thing (such as an animal or vehicle) that
caused the damage (cf the wording of s 108 supra). Zulman J said in this regard (Telkom 944): “The fact that one
can conceive of bizarre hypothetical situations where it might be iniquitous to hold a mere owner of property liable
for damage caused by such property where, eg, his property has been stolen by a thief unknown to such person,
does not, in my view, entitle a Court in an appropriate case to disregard the clear and unambiguous provisions of a
statute or ‘to invent fancied ambiguities’.” See however Knobel and Steynberg 1998 THRHR 149–150 who argue
convincingly that mere ownership should not suffice but that there should at least be an act on the part of the
owner.
236 See Loubser and Midgley Delict 466.
237 See generally Neethling, Potgieter and Roos Neethling on Personality Rights 411í412; Loubser and Midgley
Delict 480í481; cf 444 fn 117 supra.
238 The collection and use of personal data (especially by means of electronic data banks) pose such a serious threat to
a data subject’s personality that it is fair and justifiable to hold a responsible party liable even where intention or
negligence is not present (see Neethling, Potgieter and Roos Neethling on Personality Rights 411 fn 449; Neethling
2002 THRHR 584, 1980 THRHR 151–152; see also Roos Data (Privacy) Protection 627–631).
239 S 99(1). The responsible party will be held vicariously liable for the actions of the persons or institutions who
actually do the processing, be it an employee or an operator see (see Loubser and Midgley Delict 480í481; supra
444 fn 117; see however Millard and Bascerano 2016 (19) PELJ 1 ff, Neethling, Potgieter and Roos Neethling on
Personality Rights 412 fn 450).
460 Law of Delict
terms of section 37.240 The Regulator may also institute the action on behalf of the data subject if
the latter requests it.241 The data subject (or Regulator on behalf of the data subject) may claim
compensation for patrimonial and non-patrimonial damages suffered as a result of the respon-
sible party’s interference. Aggravated damages may also be claimed. The amount awarded as
aggravated damages is left to the discretion of the court.242
________________________
240 S 99(2).
241 S 99(1).
242 S 99(3). Aggravated damages should be distinguished from punitive damages. Whereas punitive damages are
awarded to punish the defendant, aggravated damages may basically only be compensatory damages. Aggravated
damages may include punitive damages (cf supra 7 fn 31).
Bibliography
Ahmed R “Contributory Intent as a Defence Excluding Delictual Liability” 2014 SALJ 88.
Ahmed R “‘Contributory Intent’ as a Defence Limiting Delictual Liability” 2014 (4) PELJ 1517.
Ahmed R Contributory Intent as a Defence Limiting or Excluding Delictual Liability (2011).
Ahmed R “The Defence of Contributory Intent (Voluntary Assumption of Risk)” 2010 THRHR 697.
Amed R The Explicit and Implicit Influence of Reasonableness on the Elements of Delictual Liability
(2018).
Ahmed R “The Historical Development of the Concept ‘Reasonableness’ in the Law of Delict” 2019
THRHR 257.
Ahmed R “The Influence of ‘Reasonableness’ on the Element of Conduct in Delictual or Tort Liability –
Comparative Conclusions 2019 (22) PELJ 1.
Ahmed R “The Influence of Reasonableness on the Elements of Delictual Liability” in Potgieter JM,
Knobel J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir Johann Neethling (2015) 49.
Ahmed R “The Origins of the Recent New Approach to Determining Wrongfulness in the South African
Law of Delict” 2019 THRHR 136.
Ahmed R “‘Reasonableness’ and Related Jurisprudential Concepts in the Law of Delict” 2019 THRHR 381.
Ahmed R “Voluntary Assumption of Risk as a Defence, Excluding Delictual Liability with Regard to
Sports Injuries” 2012 Obiter 414.
Ahmed R and Steynberg L “Claims for Emotional Shock Arising out of the Death of a Passenger who is
Subject to Section 18(1) of the Road Accident Fund Act 56 of 1996” 2014 THRHR 306.
Ahmed R and Steynberg L “Claims for ‘Emotional Shock’ Suffered by Primary and Secondary Victims”
2015 THRHR 181.
Amerasinghe CF “The Protection of Corpus in Roman-Dutch Law” 1967 SALJ 56 194 331.
Amicus Curiae “The Actionable Omission – Another View of Ewels’s Case” 1976 SALJ 85.
Badenhorst PJ and Mukheibir A “Liability for Escape of Polluted Water From a Mine” 1998 De Jure 169.
Barlow TB The South African Law of Vicarious Liability in Delict (1939).
Barnard-Naudé J “The Pedigree of the Common Law and the ‘Unnecessary’ Constitution: A Discussion of
the Supreme Court of Appeal’s Decision in RH v DE” 2016 SALJ 16.
Basson DA “Die Nalatige Veroorsaking van Suiwer Ekonomiese Verlies” 1983 1 Codicillus 8.
Basson J and Loubser M (eds) Sport and the Law in South Africa (2009).
Bekker PM “Die Aksie op grond van Troubreuk” 1974 THRHR 403, 1975 THRHR 52.
Bekker PM Die Aksie weens Seduksie (1977).
Bhana D and Samaradiwakera-Wijesundara C “Delictual Interference with a Contractual Relationship:
Country Cloud Trading CC v MEC, Department of Infrastructure Development (CC)” 2018 Stell LR 430.
Blackbeard M “Actions for Wrongful Birth and Wrongful Life” 1996 THRHR 711.
Blommaert AK “Booysen v Shield Insurance Co Ltd 1980 3 SA 1211 (SOK)” 1981 TSAR 176.
Boberg PQR “The Apportionment of Damages Amendment Act 58 of 1971” 1971 SALJ 423.
Boberg PQR “Damages for Prospective Loss of Support” 1964 SALJ 147.
Boberg PQR “Law of Delict” 1969 Annual Survey 153.
Boberg PQR The Law of Delict: Vol I Aquilian Liability (1984).
Boberg PQR “The Role of Fault in Determining the Lawfulness of Competition” 1991 THRHR 43.
Boberg PQR “The Wrongfulness of an Omission” 1975 SALJ 361.
Boezaart T “Finding the Perfect Balance: The Challenge for Contemporary Private Law” in Boezaart T and
De Kock P (eds) Vita Perit, Labor Non Moritur – Liber Memorialis: PJ Visser (2008) 145.
Boezaart T “Mediese Nalatigheid, ’n Kind met Gestremdheid en Onregmatige Lyding in die Suid-Afri-
kaanse Reg” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir
Johann Neethling (2015) 93.
Boezaart T “Toerekeningsvatbaarheid van Kinders in die Suid-Afrikaanse Deliktereg” in Schlemmer EC
and O’Brien PH (eds) Liber Amicorum JC Sonnekus (2017) (2017 5 TSAR) 68.
Boezaart T “‘Wrongful Life’ – the Constitutional Court Paved the Way for Law Reform” 2015 Stell LR 399.
461
462 Law of Delict
Bonthuys E “A Duty of Support for All South African Unmarried Intimate Partners Part 1: The Limits of
the Cohabitation and Marriage Based Models” 2018 (21) PELJ 1.
Bonthuys E “A Duty of Support for All South African Unmarried Intimate Partners Part 2: Developing
Customary and Common Law and Circumventing the Volks Judgment” 2018 (21) PELJ 1.
Boonzaier L “State Liability in South Africa: A More Direct Approach” 2013 SALJ 330.
Botha DA “Culpa – A Form of Mens Rea or Mode of Conduct?” 1977 SALJ 29.
Botha MFT “Private Defence in the South African Law of Delict: Rethinking the Rethinker” 2013 SALJ 154.
Botha MM and Millard D “The Past, Present and Future of Vicarious Liability in South Africa” 2012
De Jure 225.
Botha P Die Verdeling van die Skadedragingslas by die Onregmatige Daad (1993).
Botha R and Visser J “Forceful Arrests: an Overview of Section 49 of the Criminal Procedure Act 51 of
1977 and Its Recent Amendments” 2012 (2) PELJ 345.
Bradfield G “Carriage” in Du Bois F (ed) Wille’s Principles of South African Law (2007) 967.
Brand FDJ “Aspects of Wrongfulness: A Series of Lectures” 2014 Stell LR 451.
Brand FDJ “The Contribution of Louis Harms in the Sphere of Aquilian Liability for Pure Economic Loss”
in Essays in Honour of Louis Harms 2013 THRHR 57.
Brand FDJ “Defamation” 2017 LAWSA 131.
Brand FDJ “Factual Causation in Delict in the Wake of Lee” in Visser C and Pretorius JT (eds) Essays in
Honour of Frans Malan (2014) 43.
Brand FDJ “Reflections on Wrongfulness in the Law of Delict” 2007 SALJ 76
Britz TG and Slabbert M “Wrongful Suffering: A Life that Should Never Have Been” 2015 THRHR 577.
Broodryk T “Individual Issues and the Class-Action Mechanism: Determining Damages in Single-Accident
Mass Personal Injury Class Actions” 2017 SALJ 821.
Broodryk T “The South African Class Action vs Group Action as an Appropriate Procedural Device” 2019
Stell LR 6.
Buchanan JL “Compensation for Pain and Suffering: Value of Money to Individual Plaintiff ” 1959 SALJ 457.
Buchanan JL “Prospective Damages in Actions for Damages for Bodily Injury” 1960 SALJ 187.
Burchell EM and Hunt PMA South African Criminal Law and Procedure (vol 1) (1983).
Burchell JM “An Encouraging Prognosis for Claims for Damages for Negligently Inflicted Psychological
Harm” 1999 SALJ 697.
Burchell JM “Balancing ‘Equality of Respect’ with Freedom of Expression: The Actio Iniuriarum and Hate
Speech” 2019 Acta Juridica 203.
Burchell JM “Beyond the Glass Bead Game: Human Dignity in the Law of Delict” 1988 SAJHR 1.
Burchell JM “Delict in a Bill of Rights Era II” 1991 BML 175.
Burchell JM “Duress and Intentional Killing” 1977 SALJ 282.
Burchell JM “Finding the Snail in our Actio Iniuriarum Bottle” in Potgieter JM, Knobel J and Jansen R-M
(eds) Essays in Honour of /Huldigingsbundel vir Johann Neethling (2015) 106.
Burchell JM The Law of Defamation in South Africa (1985).
Burchell JM “Law of Delict” 1979 Annual Survey 211.
Burchell JM “Law of Delict” 1982 Annual Survey 184.
Burchell JM “Media Freedom of Expression Scores as Strict Liability Receives the Red Card: National
Media Ltd v Bogoshi” 1999 SALJ 1.
Burchell JM “Mistake or Ignorance as to the Causal Sequence – A New Aspect of Intention” 1990 SALJ 168.
Burchell JM “Onus of Proof in the Aquilian Action: A Wrong Turning” 1999 SALJ 729.
Burchell JM Personality Rights and Freedom of Expression. The Modern Actio Iniuriarum (1998).
Burchell JM Principles of Delict (1993).
Burchell JM “The Role of the Police: Public Protector or Criminal Investigator?” 1995 SALJ 211.
Buthelezi MC “The Action of Dependants Revisited in the Light of Brooks v The Minister of Safety and
Security” 2011 SALJ 642.
Buthelezi MC “In Dissent: a Critical Review of the Minority Judgment of Yacoob J Le Roux v Dey 2011
(3) SA 274 (CC)” 2012 Obiter 719.
Buthelezi MC “Is There Still Defamation Based on Adultery under South African Law? A Critical Review”
2017 Obiter 431.
Buthelezi MC “Let False Light (Publicity) Shine Forth in South African Law” 2013 De Jure 783.
Buthelezi MC “Like Pontius Pilate of Old, the Constitutional Court Washed Its Hands of My Human Dignity:
a Critical Review of The Citizen 1978 (Pty) Ltd v McBride 2011 4 SA 191 (CC)” 2011 De Jure 489.
Bibliography 463
Caiger A “The Reasonable Man and the Child” 1992 THRHR 330.
Calitz K “The Close Connection Test for Vicarious Liability” 2007 Stell LR 451.
Calitz K “The Vicarious Liability of Churches for the Historical Sexual Assault of Children by Priests”
2014 (17) PELJ 24.
Calitz K “Vicarious Liability of Employers: Reconsidering Risk as the Basis for Liability” 2005 TSAR 215.
Calitz K and De Villiers C “Sexual Abuse of Pupils by Teachers in South African Schools: The Vicarious
Liability of Education Authorities” 2020 SALJ 72.
Cameron A “Measuring Delictual Damages for Fraudulent Misrepresentation” 1982 SALJ 99.
Carnelley M “Die Doodskoot vir of slegs die Verwonding van die Eis teen die Derdepartyegbreker?” 2015
(2) LitNet Akademies 333.
Carnelly M and Mamashela M “The Duty to Support the Indigent Elderly in South Africa: A Public or
Private Duty?” 2016 Obiter 293.
Carpenter G “The Carmichele Legacy: Enhanced Curial Protection of the Right to Safety: A Note on
Carmichele v Minister of Safety and Security; Minister of Safety and Security v Van Duivenboden; and
Van Eeden v Minister of Safety and Security” 2003 SAPL 252.
Carpenter G “The Right to Physical Safety as a Constitutionally Protected Human Right” in Carpenter G
(ed) Suprema Lex: Essays on the Constitution presented to Marinus Wiechers (1998) 139.
Carstens P “Judicial Recognition of the Application of the Maxim Res Ipsa Loquitur to a Case of Medical
Negligence” 2013 Obiter 548.
Carstens P “Private Defence in Context of the Battered Wife Who Kills Her Abusive Husband/Partner: Ann
Elizabeth Steyn v The State (Reported as S v Steyn 2010 1 SACR 411 (SCA))” 2010 Obiter 478.
Carstens P “Revisiting the Maxim Imperitia Culpae Adnumeratur in Context of Medical Negligence – Can
the Maxim be Extended to Include the Application of Luxuria?” 2017 Obiter 613.
Carstens PA “Die Aanspreeklikheid van die Narkotiseur op Grond van Nalatigheid” 2002 Stell LR 98.
Carstens PA “Die Toepassing van Res Ipsa Loquitur in Gevalle van Mediese Nalatigheid” 1999 De Jure 19.
Church J and Church J “Nuisance” 19 LAWSA (2006) 115.
Chürr C “A Delictual Claim Based on ‘Wrongful Life’: Is it Possible?” 2009 THRHR 168.
Chürr C “Wrongful Life Claims under South African Law: An Overview of the Legal Framework” 2015
Obiter 745.
Claasen JY “Skadevergoeding weens die Verlies aan Toekomstige Verdienste of Onderhoud, en Onreg-
matige Bedrywighede in die Verlede” 1984 THRHR 439.
Claasen JY “Weer eens Skadevergoeding weens die Verlies van Toekomstige Verdienste of Onderhoud, en
Onwettige Inkomste in die Verlede” 1986 THRHR 343.
Claasen JY and Oelofse AN “Berekening van Skadevergoeding by Verlies van Verdienvermoë” 1979
De Rebus 588.
Clark B “A Bolting Horse – Who Bears the Risk?” 1991 THRHR 157.
Clark B “‘Why Can’t I Discipline my Child Properly?’ Banning Corporal Punishment and its Conse-
quences” 2020 SALJ 335.
Coetser PPJ Die Reg op Identiteit (1986).
Coetzee LC “Onregmatigheid in die Afwesigheid van Belange-aantasting” 2004 THRHR 661.
Corbett MM “Aspects of the Role of Policy in the Evolution of our Common Law” 1987 SALJ 52.
Corbett MM and Buchanan JL The Quantum of Damages in Bodily and Fatal Injury Cases (1985) (cited as
Corbett and Buchanan); (1964) (cited as Corbett and Buchanan I); (1979) (cited as Corbett and
Buchanan II).
Corbett MM and Honey DP The Quantum of Damages (vol IV) (1992) (cited as Corbett and Honey
Quantum of Damages).
Corbett MM and Honey DP The Quantum of Damages in Bodily and Fatal Injury Cases (vol IV) (2002).
Corbett MM and Honey DP The Quantum of Damages in Bodily and Fatal Injury Cases (vol V) (2002).
Cornelius S “Aanspreeklikheid vir Sportbeserings” 2012 TSAR 574.
Cornelius S “Commercial Appropriation of a Person’s Image” 2011 (2) PELJ 182.
Cornelius S “Die Reg op Identiteit en die Kommersiɺle Ontginning van die Individu se Openbare Beeld”
2008 TSAR 645.
Cornelius S “Wat die Drome nie Genees nie: Kan Toestemming tot Benadeling steeds Aanspreeklikheid
Weens Sportbeserings Uitsluit?” 2015 (3) LitNet Akademies 756.
Couzens M “Le Roux v Dey and Children’s Rights Approaches to Judging” 2018 (21) PELJ 1.
Currie I “The Concept of Privacy in the South African Constitution: Reprise” 2008 TSAR 549.
464 Law of Delict
Davel CJ “The Standard of Care Applicable to Educators: The Reasonable Educator” 2003 (3) De Jure 405.
Davel T “Greenfields Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N)”
1979 THRHR 214.
Davel T Skadevergoeding aan Afhanklikes (1987).
De Groot H Inleiding tot de Hollandsche Rechtsgeleerdheid (1767).
De Jager FJ “Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd
1972 4 SA 185 (T) en A Gibb and Son (Pty) Ltd v Taylor and Mitchell Timber Supply Co (Pty) Ltd 1975
2 SA 457 (W)” 1976 TSAR 108.
De Jager FJ Die Deliktuele Aanspreeklikheid van die Vervaardiger teenoor die Verbruiker vir Skade Ver-
oorsaak deur middel van ’n Defekte Produk (1977).
De Jager FJ “Die Grondslae van Produkte-aanspreeklikheid ex delicto in die Suid-Afrikaanse Reg” 1978
THRHR 347.
De Klerk W “Defamation – the Defence of ‘Fair’ Comment and Media Defendants” 2011 De Jure 447.
De Koker L “Die Aanspreeklikheid van Direkteure vir Delikte Gepleeg in Ampsverband” 2002 TSAR 18.
Dendy M “Case Book on the Law of Delict/Vonnisbundel oor die Deliktereg by J Neethling, JM Potgieter
and TJ Scott” 1993 SALJ 179.
Dendy M “Claims for Damages for Loss of Support: Dependants’ or Breadwinner’s Actions?” 1990
SALJ 155.
Dendy M “Clarity and Confusion on the Duty of Care” 1988 SALJ 395.
Dendy M “Damages for Loss of Support out of Illegally Earned Income: Visiting the Sins of the Fathers”
1987 SALJ 243.
Dendy M “Illegal Income and Remunerative Loss – I: Claims by Income-Earners in Southern African
Law” 1998 THRHR 564.
Dendy M “Illegal Income and Remunerative Loss – II: Claims by Dependants in Southern African Law”
1999 THRHR 34.
Dendy M “Illegal Income and Remunerative Loss – III: Loss of Lawful Earning Capacity” 1999 THRHR 169.
Dendy M “Law of Delict” 1988 Annual Survey 181.
Dendy M “Neethling’s Law of Personality” 1996 De Rebus 604.
Dendy M “The Negligent Collection of Cheques: Is Anything Claimable from the Collecting Banker?”
1998 THRHR 512.
Dendy M “Of Case Books and Criticism, Misreadings and Misrepresentations: A Reply to Professors
Neethling, Potgieter and Scott” 1993 SALJ 629.
Dendy M “Wrongful Arrest and Loss of Earning: A Case of Causation Gone Awry?” 1998 SALJ 583.
Dendy M “Wrongs to the Pocket – IV” 1990 BML 11.
Descheemaeker E “Old and New Learning in the Law of Amende Honorable” 2015 SALJ 909.
Descheemaeker E “Three Keys to Defamation: Media 24 in a Comparative Perspective” 2013 SALJ 435.
De Villiers M The Roman and Roman-Dutch Law of Injuries (1899).
De Villiers WP “Does Remand in Custody by a Court Following an Unlawful Arrest Render the Subse-
quent Detention Lawful?” 2016 THRHR 302.
De Villiers WP “The Interdictum de Homine Libero Exhibendo and the Question Whether it is Incumbent
on a Peace Officer to Consider Less Invasive Means to Secure Attendance at Court Before Effecting an
Arrest” 2014 THRHR 492.
De Wet JC “Die Onregmatige Daad in die Suid-Afrikaanse Reg deur NJ van der Merwe en PJJ Olivier”
1970 THRHR 68.
De Wet JC “Opmerkings oor die Vraagstuk van Veroorsaking” 1941 THRHR 126.
De Wet JC and Swanepoel HL Strafreg (1985).
De Wet JC and Yeats JP Kontraktereg en Handelsreg (1978).
Dirix E “Tort Law and Legal Culture” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour
of/Huldigingsbundel vir Johann Neethling (2015) 141.
Ditsela LJ “Time Heals All Wounds – The Law of Prescription in Medical Negligence” 2017 (Jan/Feb) De
Rebus 30.
Dreyer L “Redelike Dokter versus Redelike Pasiënt” 1995 THRHR 532.
Du Bois F “Punishment, Reparation and the Evolution of Private Law: The Actio Iniuriarum in a Changing
World” 2019 Acta Juridica 229.
Du Plessis I “Die Onvoorsiene Wyse waarop ’n Voorsiene Gevolg kan Intree en ander Strafreg-Weten-
skaplike Raaisels” 1989 TSAR 268.
Bibliography 465
Du Plessis I “ ’n Nuwe Elastiese Benadering tot Juridiese Kousaliteit” 1990 TSAR 748.
Du Plessis JR “Skirmishes on the Strafregwetenskaplike Front: Some Recent Decisions” 1985 SALJ 394.
Du Plessis JR “Wavering Fortunes on the Strafregwetenskaplike Front – Some Recent Decisions” 1986
SALJ 1.
Du Plessis M “Alternative Approaches to Factual Causation in Cases involving Gradual-onset Psychiatric
Diseases in the Workplace” 2010 THRHR 550.
Du Toit P “Arrests Without Warrant: The SCA Brings Clarity” 2011 Obiter 473.
Du Toit P “Die Toelaatbaarheid van Intieme Visentering van die Liggaam van ’n Gearresteerde Persoon”
2014 TSAR 639.
Ebersöhn GJ and Jansen R-M “Middellike Aanspreeklikheid in die Deliktereg – Die Risiko-Faktor” 2000
(2) TRW 166.
Erasmus HJ “Aspects of the History of the South African Law of Damages” 1975 THRHR 104 268 362.
Erasmus HJ “Genoegdoening vir Verlies aan Lewensgenietinge” 1976 TSAR 238.
Erasmus HJ “New York Times v Sullivan and South African Law” 1997 THRHR 665.
Erasmus HJ “Wills: The Price of Negligence” 1980 De Rebus 391.
Erasmus HJ, Gauntlett JJ and Visser PJ “Damages” 2005 7 LAWSA.
European Group on Tort Law Principles of European Tort Law: Text and Commentary (2005).
Evans R “Misappropriation of a Rival’s Performance: Is it Lawful, Unlawful or Merely ‘Unfair’?” 1997
THRHR 724.
Fagan A “Aquilian Liability for Negligently Caused Pure Economic Loss – Its History and Doctrinal
Accommodation” 2014 SALJ 288.
Fagan A Aquilian Liability in the South African Law of Delict – A Textbook for Students (2019).
Fagan A “Blind Faith: A Response to Professors Neethling and Potgieter” 2007 SALJ 285.
Fagan A “Causation in the Constitutional Court: Lee v Minister of Correctional Services” 2014 Constitu-
tional Court Review 104.
Fagan A “Causation in the Constitutional Court: Lee v Minister of Correctional Services” in Fagan
Undoing Delict 216.
Fagan A “The Confusions of K” 2009 SALJ 156.
Fagan A “The Constitutional Court Loses Its (and Our) Sense of Humour” 2011 SALJ 395.
Fagan A “Further Reflections on Wrongfulness in the Law of Delict” 2018 SALJ 18.
Fagan A “Reconsidering Carmichele” 2008 SALJ 659.
Fagan A “Rethinking Wrongfulness in the Law of Delict” 2005 SALJ 90.
Fagan A “Rethinking Wrongfulness in the Law of Delict” in Fagan Undoing Delict 1.
Fagan A “The Secondary Role of the Spirit, Purport, and Objects of the Bill of Rights in the Common
Law’s Development” 2010 SALJ 611.
Fagan A Undoing Delict – The South African Law of Delict under the Constitution (2018).
Fagan A “Why Intention Matters and How it Does” 2019 Acta Juridica 283.
Faure M “Multiple Tortfeasors: A Legal and Economic Approach” in Potgieter JM, Knobel J and Jansen R-
M (eds) Essays in Honour of/Huldigingsbundel vir Johann Neethling (2015) 151.
Fick S “Fischer v Unlawful Occupiers & others (WCC): Difficulties in Seeking Damages for a Failure by
the Police to Prevent Unlawful Occupation” 2019 SALJ 676
Fleming JG The Law of Torts (1998).
Gabriel P “The Protection of Personal Information Act 4 of 2013 and Children’s Right to Privacy in the
Context of Social Media” 2019 THRHR 605.
Gauntlett JJ “Santam Insurance Co Ltd v Vorster 1973 4 SA 764 (A)” 1974 THRHR 195.
Geduld A and Dircksen M “The Right to Say ‘I Don’t’: The Reception of the Action for Breach of
Promise” 2013 De Jure 957.
Gerber HJ “Middellike Aanspreeklikheid van die Motorvoertuigeienaar: Terugkeer na die Tradisionele Be-
skouing?” 1995 THRHR 337.
Gericke SB “Revisiting the Liability of Trade Unions and/or Their Members during Strikes: Lessons to be
Learnt from Case Law” 2012 THRHR 566.
Giesen I “Of Wrongful Birth, Wrongful Life, Comparative Law and the Politics of Tort Law Systems”
2009 THRHR 257.
Gordon GH Criminal Law of Scotland (1978).
Gough IP “Ghering v Union Nasionaal Suid-Britse Versekeringsmaatskappy Bpk 1988 2 SA 266 (C);
Krugell v Shield Versekeringsmaatskappy Bpk 1982 4 SA 95 (T)” 1983 THRHR 474.
Gowar C “Product Liability: A Changing Playing Field?” 2011 Obiter 521.
Gowar C “Wrongfulness – Still Getting it Wrong?” 2011 THRHR 682.
466 Law of Delict
Gowar C and Visser CJ “Actio Iniuriarum – One Action, but Only One Iniuria” 2013 THRHR 490.
Gowar C and Visser CJ “Determining the Meaning of an Innuendo: Can the Context be Separated from the
Words?” 2011 Obiter 411.
Gowar C and Visser CJ “Distinguishing between Dignity, Identity and Privacy: Is It Really Necessary?”
2012 THRHR 154.
Green MD “Delict and Proportional Liability: Some Preliminary Comparative Thoughts” in Potgieter JM,
Greenfield S, Karstens K, Osborn G and Rossouw JP “Reconceptualising the Standard of Care in Sport:
The Case of Youth Rugby in England and South Africa” 2015 (6) PELJ 2183.
Groenewegen S Tractatus de Legibus Abrogatis (1669).
Hakime SA and Steynberg L “The Delictual Liability of a Union for Advice Given to its Members” 2002
THRHR 446.
Hart HLA and Honore AM Causation in the Law (1959).
Havenga PH “Contractual Claims and Contributory Negligence” 2001 THRHR 124.
Heaton J “Die Tugbevoegdheid ten opsigte van Kinders” 1987 THRHR 398.
Heaton J and Kruger H South African Family Law (2015).
Hoctor S “Negligence ‘In the Air’ or on the Road?” 2016 Obiter 392.
Hosten WJ “Concursus Actionum of Keuse van Aksies” 1960 THRHR 251.
Human S and Mills L “The Immeasurable Wrongfulness of Being: The Denial of the Claim for Wrongful
Life” 2010 Stell LR 67.
Hurter E “Civil and Constitutional Procedure and Jurisdiction” 2013 Annual Survey 102.
Hurter E “Civil and Constitutional Procedure and Jurisdiction” 2016 Annual Survey 102.
Huneberg S “On Drones, New Risk and Insurance” 2017 THRHR 586.
Huneberg S “The Rise of the Drone: Privacy Concerns” 2018 THRHR 263.
Hunt PMA South African Criminal Law and Procedure (vol II) (1982).
Hutchison D “The Disappointed Beneficiary Smiles at Last” 2000 SALJ 186.
Hutchison D, Pretorius CJ (eds), Du Plessis J, Eiselen S, Floyd T, Hawthorne L, Kuschke B, Maxwell C
and Naudé T The Law of Contract in South Africa (2009).
Hutchison D and Du Bois F “Contract in General” in Du Bois F (ed) Wille’s Principles of South African
Law (2007) 733.
Jacobs L and Neethling J “Die Sorgsame Ondernemingsreddingspraktisyn: ’n Ondersoek na die Gepaste
Maatstaf’ 2016 (3) LitNet Akademies 773.
Jacobs W, Stoop P and Van Niekerk R “Fundamental Consumer Rights under the Consumer Protection Act
68 of 2008: A Critical Overview and Analysis” 2010 (3) PELJ 301.
Jansen R-M “Professionele Aanspreeklikheid van Oftalmoloë wat Verband Hou met Retinopatie van
Prematuriteit” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel
vir Johann Neethling (2015) 211.
Jansen R-M and Neethling J “Delictual Capacity and (Contributory) Negligence of Minors” 2017 THRHR
474.
Jooste R “The Spectre of Indeterminate Liability Raises its Head” 2006 SALJ 563.
Jordaan L “S v Goosen 1989 4 SA 1013 (A)” 1990 SACJ 208.
Joubert DJ General Principles of the Law of Contract (1987).
Joubert WA Grondslae van die Persoonlikheidsreg (1953).
Joubert WA “Om der Vrouwen Zwakheid” 1961 THRHR 278.
Joubert WA “Oorsaaklikheid: Feit of Norm?” 1965 1 Codicillus 6.
Joubert WA “Pinchin v Santam Insurance Co 1963 2 SA 254 (W)” 1963 THRHR 295.
Joubert WA “ ’n Realistiese Benadering van die Subjektiewe Reg” 1958 THRHR 12 98.
Kemp KJ Delictual Liability for Omissions (1979).
Keeton WP (ed) Prosser and Keeton on the Law of Torts (1984).
Kleyn D and Zitzke E “The Omissions in Oppelt” in Kuschke B and Cornelius S (eds) Ars Docendi et
Scribendi. Essays in Honour of Johan Scott (2018) 21.
Klopper HB Die Beskerming van Kredietwaardigheid in die Suid-Afrikaanse Reg (1986).
Klopper HB Damages (2017).
Klopper HB Derdepartyvergoedingsreg (1991).
Klopper HB The Law of Third Party Compensation (2008).
Kloppers DF and Kloppers HJ “Kan ’n Trust ’n Lastereis Instel? ’n Verkennende Ondersoek” 2018 (3) Lit-
Net Akademies 1211.
Knobel JC “Aanspreeklikheid weens ’n Late in die Geval van ’n Munisipaliteit” 1987 THRHR 480.
Bibliography 467
Knobel JC “Die Actio de Pauperie en Aanspreeklikheid Gebaseer op Nalatigheid” 2010 THRHR 172.
Knobel JC “The Apparent Tautology of the Tests for Wrongfulness and Negligence in Instances of
Liability for Omission” 2020 THRHR 203.
Knobel JC “Die Beskerming van Handelsgeheime in die Deliktereg” 1990 THRHR 488.
Knobel JC “Deliktuele Aanspreeklikheid vir Skade aangerig deur ’n Onafhanklike Subkontrakteur” 1991
THRHR 661.
Knobel JC “The Feasibility of the Co-existence of Concrete Negligence and Legal Causation” 2006 SALJ 579.
Knobel JC “HIV-toetse, Toestemming en Onregmatigheidsbewussyn” 1997 THRHR 533.
Knobel JC “Inbreukmaking op die Estetiese as Oorlas” 2003 THRHR 500.
Knobel JC “Nalatigheid, Juridiese Kousaliteit en die Ontsnapping van Aangehoudenes” 2005 THRHR 493.
Knobel JC “Nalatige Persoonlikheidskrenking” 2002 THRHR 24.
Knobel JC “Novus Actus Interveniens and Causation in the Law of Delict: A Reappraisal in Anticipation of
New Legislation” 2004 THRHR 409.
Knobel JC “Reasonableness, Wrongfulness amd Fault” in Potgieter JM, Knobel J and Jansen R-M (eds)
Essays in Honour of/Huldigingsbundel vir Johann Neethling (2015) 229.
Knobel JC “Remnants of Blameworthiness in the Actio de Pauperie” 2011 THRHR 633.
Knobel JC The Right to the Trade Secret (1996).
Knobel JC “Die Samehang tussen Onregmatigheid en Skade” 2005 THRHR 645.
Knobel JC “Thoughts on Intention, Consciousness of Wrongfulness and Negligence in Delict” 2012
THRHR 484.
Knobel JC “Thoughts on the Functions and Application of the Elements of a Delict” 2008 THRHR 650.
Knobel JC “Die Volgorde waarin die Delikselemente Onregmatigheid en Skuld bepaal moet word” 2008
THRHR 1.
Knobel JC “Vrywillige Aanvaarding van Risiko: Toestemming tot Benadeling, Medewerkende Skuld en
die Actio de Pauperie” 1993 THRHR 302.
Knobel JC “Wrongfulness and Intention” 2010 THRHR 115.
Knobel JC “Wrongfulness: Derailed or on Track?’ in Kuschke B and Cornelius S (eds) Ars Docendi et
Scribendi. Essays in Honour of Johan Scott (2018) 49.
Knobel JC and Kruger H “The Nasciturus Fiction and Delictual Liability for Pre-Natal Injuries” 2006
THRHR 517.
Knobel JC and Steynberg L “Skuldlose Aanspreeklikheid in die Afwesigheid van ’n Willekeurige Han-
deling” 1998 THRHR 148.
Knobel JC and Steynberg L “Vrywillige aanvaarding van risiko en medewerkende opset” 2003
THRHR 695.
Knoetze E and Hoctor SV “Liability for Damage Caused by and to Wild Animals” 2000 Obiter 177.
Koch B and Koziol H “Comparative Conclusions” in Koch B and Koziol H (eds) Unification of Tort Law:
Strict Liability (2002).
Koch RJ “Aquilian Damages for Personal Injury and Death” 1989 THRHR 66 203.
Koch RJ Damages for Lost Income (1984).
Koch RJ “Discounting to Date of Delict: Fair or Unfair?” 1987 THRHR 105.
Koch RJ The Reduced Utility of a Life Plan as Basis for the Assessment of Damages for Personal Injury
and Death (1993).
Koziol H “Die Actio de Deiectis vel Effusis in Züdafrika und Österreich” in Kuschke B and Cornelius S
(eds) Ars Docendi et Scribendi. Essays in Honour of Johan Scott (2018) 74.
Koziol H “Comparative Conclusions” in Koziol H (ed) Basic Questions of Tort Law from a Comparative
Perspective (2015) 685.
Koziol H “Incorrect Advice to Investors and the Liability of Banks” 2011 THRHR 1.
Koziol H “Reflections on Media Privilege” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in
Honour of/Huldigingsbundel vir Johann Neethling (2015) 259.
Krause S “Killing in Defence of Property: A Constitutional Approach” 2012 TSAR 469.
Kruger H “Protection of a Child’s Right to Privacy in South African Law” in Potgieter JM, Knobel J and
Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir Johann Neethling (2015) 269.
Labuschagne JMT “Aanspreeklikheid vir ’n Besering in die Loop van ’n Gholfspel, of -oefening of -ver-
toning Opgedoen” 2001 THRHR 46.
Labuschagne JMT “Ouerlike Tugbevoegdheid” 1991 THRHR 307.
Labuschagne JMT “Regsobjekte sonder Ekonomiese Waarde en die Irrasionele by Regsdenke” 1990
THRHR 557.
Labuschagne JMT “Straf- en Delikteregtelike Aanspreeklikheid vir Sportbeserings” 1998 Stell LR 72.
468 Law of Delict
Labuschagne JMT “Tugtiging van Kinders: ’n Strafregtelik Prinsipiële Evaluasie” 1991 De Jure 23.
Labuschagne JMT and Davel CJ “Metiso v Padongelukfonds 2001 3 SA 1142 (T)” 2002 De Jure 181.
Labuschagne P “‘Violence’ in Sport and the Volenti non Fit Iniuria Defence: A Perspective on the Death of
the Cricket Player Phil Hughes” 2018 (21) PELJ 1.
Leinius B and Midgley JR “The Impact of the Constitution on the Law of Delict” 2002 SALJ 17.
Lenta P “Corporal Punishment and the Costs of Judicial Minimalism” 2020 SALJ 185.
Lenta P “The ‘Reasonable Corporal Punishment’ Defence Struck Down: YG v S” 2018 SALJ 205.
Le Roux JA “Deliktuele Eise: Die Verrekening van Kollaterale Voordele” 1980 De Rebus 483.
Le Roux J and Moolman LADT “Polisie-optrede Tydens Arrestasie” 2001 THRHR 97.
Lewis C “Damages for Negligent Misrepresentation – The Appellate Division Leaps Forward” 1992
SALJ 381.
Linscott JA “A Critical Analysis of the Majority Judgment in F v Minister of Safety and Security 2012 1
SA 536 (CC)” 2014 (6) PELJ 2916.
Loots BE “Sexual Harassment and Vicarious Liability: A Warning to Political Parties” 2008 Stell LR 143.
Lötz DJ “Die Vermindering van Kontraktuele Skadevergoeding” 1996 TSAR 170.
Lotz JG “Berekening van Skadevergoeding by Dolus Incidens” 1988 THRHR 92.
Lotz JG “The Sandown Park Case” 1986 SALJ 704.
Loubser M and Midgley R (eds), Jabavu P, Linscott J, Mukheibir A, Niesing L, Perumal D, Singh P and
Wessels B The Law of Delict in South Africa (2017).
Loubser M and Reid E Product Liability in South Africa (2012).
Loubser M and Reid E “Vicarious Liability for Intentional Wrongdoing: After Lister and Dubai Allumin-
ium in Scotland and South Africa” 2003 Juridical Review 143.
Loubser MM “Criminal Law: General Principles” 6 LAWSA 20.
Loubser MM Extinctive Prescription (1996)
Loubser MM “Laster: Waarheid en Bewyslas” 2003 Stell LR 364.
Loubser MM “Towards a Theory of Extinctive Prescription” 1988 SALJ 34.
Loubser MM “Unlawfulness in the South African Law of Delict: Focus Areas in the Debate” in Boezaart T
and De Kock P (eds) Vita Perit, Labor Non Moritur – Liber Memorialis: PJ Visser (2008) 117.
Loubser MM and Rabie A “Defining Dolus Eventualis: A Voluntative Element?” 1988 SACJ 415.
Louw DF “S v Ngubane 1985 3 SA 677 (A)” 1987 De Jure 173.
Lubbe G and Van der Merwe SJ “Apportionment of Loss in Contractual Claims for Damages at Common
Law” 1999 Stell LR 142.
Luntz H “Damages in Cases of Brain Injury” 1965 SALJ 6.
Luntz H “Damages in Cases of Brain Injury – Some Developments” 1967 SALJ 6.
Mahery P “Pursuing the Crafting of a Legislative Ban on Corporal Punishment in the Home” 2018 Stell LR
124.
Mailula D “Is the Causa of Damages a Requirement for their Exclusion from the Joint Estate in terms of
Section 18(a) of the Matrimonial Property Act?” 2005 THRHR 308.
Maimela C “Professional Medical Malpractice: Legal Liability of the Plastic Surgeon” 2013 THRHR 589.
Maithufi IP “Vicarious Liability of the State for Wrongful and Culpable Acts of its Employee Teachers”
2012 THRHR 139.
Malan FR and Pretorius JT “Medewerkende Opset en die Invorderingsbank” 1997 THRHR 155.
Martin BSC “State Liability for the Delicts of the Police” 1989 THRHR 273.
Marx FE “Defamation: The Naming and Shaming of Spammers – Ketler Investments CC t/a Ketler
Presentations v Internet Service Providers’ Association 2014 (4) SA 569 (GJ)” in Potgieter JM, Knobel
J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir Johann Neethling (2015) 345.
Matthaeus A De Criminibus (1672).
McKerron RG The Law of Delict (1971).
McQuoid-Mason DJ The Law of Privacy in South Africa (1978).
McQuoid-Mason DJ “Some Reflections on the Application of the Law of Privacy to Selected Medical
Confidentiality Issues” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldi-
gingsbundel vir Johann Neethling (2015) 333.
Midgley JR “The Attenuated form of Intention: A Constitutionally Acceptable Alternative to Strict Liabil-
ity for the Media” 1996 THRHR 635.
Midgley JR “Concurrence of Actions” 1998 SALJ 273.
Bibliography 469
Midgley JR “Fault Under the Actio Iniuriarum: Custer’s Last Stand?” in Boezaart T and De Kock P (eds)
Vita Perit, Labor Non Moritur – Liber Memorialis: PJ Visser (2008) 187.
Midgley JR “Law of Delict” 2006 Annual Survey 301.
Midgley JR Lawyers’ Professional Liability (1992).
Midgley JR “Media Liability for Defamation” 1999 SALJ 211.
Midgley JR “Retraction, Apology and Right to Reply” 1995 THRHR 288.
Midgley JR “The Role of Foreseeability in Psychiatric Injury Cases” 1992 THRHR 441.
Millard D “For Whom the Bell Tolls … Interplay Between Law of Delict and Social Security Law in Three
Modern Compensation Systems” 2010 TSAR 532.
Millard D “Neethling, Potgieter and Visser’s Law of Delict” 2012 TSAR 382.
Millard D and Bascerano EG “Employers’ Statutory Vicarious Liability in Terms of the Protection of
Personal Information Act” 2016 (19) PELJ 1.
Miller DLC “Damage by Wild Animals – Choice of Touchstone” 1972 SALJ 175.
Millner MA Negligence in Modern Law (1967).
Mills L “Failing Children: The Courts' Disregard of the Best Interests of the Child in Le Roux v Dey” 2014
SALJ 847.
Milo D “The Cabinet Minister, the Mail & Guardian, and the Report Card: The Supreme Court of Appeal’s
Decision in the Mthembi-Mahanyele Case” 2005 SALJ 28.
Milton JRL “The Law of Neighbours in South Africa” 1969 Acta Juridica 123.
Mofokeng N “Delict as an Alternative Ground for Liability in a Bank-Customer Relationship” 1999
THRHR 120.
Mogridge GL “The Reasonable Man: Negligence and Criminal Capacity” 1980 SALJ 267.
Msaule PR “Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA)” 2015 De Jure 243.
Mukheibir A “Comparing the Casuistry of Compensating Advantages and Collateral Sources” 2002
Obiter 328.
Mukheibir A “A Judicial Niche for Necessity – Is it Really Necessary?” 2007 Obiter 154.
Mukheibir A “Limitless Liability – Tokoloshe or Real Danger? Country Cloud Trading CC v MEC,
Department of Infrastructure Development” 2015 SALJ 22.
Mukheibir A “(Mis)understanding the Once-and-for-All Rule” 2019 Obiter 252.
Mukheibir A “The Nasciturus Fiction and Delictual Claims” 2006 Obiter 188.
Mukheibir A “Road Accident Fund v Timis – Child Support Grants not Res Inter Alios Acta” 2011 SALJ 246.
Mukheibir A “Ubuntu and the Amende Honorable – A Marriage between African Values and Mediaeval
Canon Law” 2007 Obiter 583.
Mukheibir A “Wrongful Life Claims in South Africa and the Netherlands – Similarities and Differences” in
JM Potgieter, JC Knobel and R-M Jansen (eds) Essays in Honour of/Huldigingsbundel vir Johann
Neethling (2015) 345.
Mukheibir A and Badenhorst PJ “Iniuria Giving Rise to Aquilian Liability” 1998 Obiter 343.
Mukheibir A and Mitchell G “The Price of Sadness: Comparison between the Netherlands and South
Africa” 2019 (22) PELJ 1.
Munkman J Damages for Personal Injury and Death (1973).
Neels JL “Die Onderskeid Tussen Oorlas en die Oorskryding van Eiendomsreg op Onroerende Goedere”
2000 De Jure 19 197.
Neels JL Tussen Regmatigheid en Onregmatigheid (1998).
Neels JL “Tussen Regmatigheid en Onregmatigheid: Die Leerstuk van Oorskryding van Regte en Be-
voegdhede” 1999 TSAR 63, 2000 TSAR 317 469 643.
Neethling J “AA Mutual Insurance Association Ltd v Nomeka 1976 3 SA 45 (A)” 1976 THRHR 412.
Neethling J “Aanranding en Vryheidsberowing as Selfstandige Eisoorsake en die Toepaslikheid van die
Actio Legis Aquiliae, Aksie weens Pyn en Lyding en Actio Iniuriarum” 1997 THRHR 705.
Neethling J “Die Aanspreeklikheid van Getuies in Hofverhore” 2008 THRHR 316.
Neethling J “Aanspreeklikheid vir ‘Nuwe’ Risiko’s: Moontlikhede en Beperkinge van die Suid-Afrikaanse
Deliktereg” 2002 THRHR 574.
Neethling J “Aanspreeklikheid weens ’n Late: Versoening tussen die Tradisionele en Nuwe Toets vir
Deliktuele Onregmatigheid, of nie?” 2015 (3) LitNet Akademies 810.
Neethling J “Actio ad Exhibendum: Deliksaksie Sui Generis of Actio Legis Aquiliae?” 2000 Acta
Juridica 215.
Neethling J “Die Actio de Pastu” 1988 THRHR 547.
470 Law of Delict
Neethling J “Die Actio Iniuriarum en Bestraffende Genoegdoening” in Boezaart T and De Kock P (eds)
Vita Perit, Labor Non Moritur – Liber Memorialis: PJ Visser (2008) 173.
Neethling J “Action of Dependants: Basis and Wrongfulness vis-à-vis Third Parties” 2009 THRHR 296.
Neethling J “Afwysing van ’n Regsplig op Polisiebeamptes om die Reg op die Fisies-Psigiese Integriteit en
Sekerheid van die Persoon Buiteom Misdaadsituasies te Beskerm: Die Hoop Beskaam” 2006 Obiter 369.
Neethling J “Aksie van Afhanklikes: Bemoeiing met ’n Kontraktuele Onderhoudsreg” 2002 TSAR 156.
Neethling J “Die Amende Honorable (Terugtrekking en Apologie) as Remedie by Laster – Resente
Ontwikkelinge in die Regspraak” 2009 De Jure 286.
Neethling J “Amptelike Bevoegdheid: Die Aanspreeklikheid van ’n Regterlike Beampte vir Onregmatige
Vryheidsberowing” 1989 THRHR 466.
Neethling J “Arrestasie Sonder ’n Lasbrief en die Grondwet” in Mostert H and De Waal MJ (eds) Essays in
Honour of CG van der Merwe (2011) 37.
Neethling J “Arrest Without a Warrant and Abuse of Right” 2010 TSAR 821.
Neethling J “Aspects of Delictual Liability for Acts of Terrorism” 2003 SALJ 90.
Neethling J “The Basis of Provocation as a Defence Against the Actio Iniuriarum” 1989 SALJ 694.
Neethling J “Belastering van Openbare Figuur” 2019 (2) LitNet Akademies 630.
Neethling J “Beskaduwing (‘Shadowing’) as Onregmatige Privaatheidskending” 2005 THRHR 521.
Neethling J “Die Beskerming van die Persoonlikheidsreg op Identiteit teen Kommersiële Uitbuiting” 2012
TSAR 348.
Neethling J “Die Beskikbaarheid van die Actio Iniuriarum weens Aantasting van die Reg op die Eer deur
middel van die Inwerking op Grondwetlik-Verskanste Fundamentele Regte” 2006 TSAR 197.
Neethling J “Die Betekenis en Beskerming van die Eer, Dignitas en Menswaardigheid in Gemeenregtelike
en Grondwetlike Sin” in Nagel CJ (ed) Gedenkbundel vir JMT Labuschagne (2006) 85.
Neethling J “Blacklisting of Debtor as Credit Risk – Infringement of Debtor’s Rights to Creditworthiness
and Earning Capacity as Personal Immaterial Property Rights” 2006 SA Merc LJ 376.
Neethling J “Die Carmichele-Sage Kom tot ’n Gelukkige Einde” 2005 TSAR 402.
Neethling J “The Case of the Three Hunters, or Delictual Liability for Alternative Causes” 2003 SALJ 263.
Neethling J “Causal Uncertainty and Proportional Liability in South Africa” in Gilead I et al (eds)
Proportional Liability: Analytical and Comparative Perspectives (2013) 283.
Neethling J “Comparison of the Individual and Corporate Personality Right to Identity: A South African
Perspective” in Van Schouenburg C (ed) Over Grenzen: Liber Amicorum Herman Cousy (2012) 1003.
Neethling J “The Concept of Privacy in South African Law” 2005 SALJ 18.
Neethling J “The Conflation of Wrongfulness and Negligence: Is it Always such a Bad Thing for the Law
of Delict?” 2006 SALJ 204.
Neethling J “Constitutional Compatibility of the Common Law of Wrongful and Malicious Deprivation of
Liberty as Iniuriae” 2004 SALJ 711.
Neethling J “The Constitutional Court Affirms the Potential Existence of an Action for Wrongful Suffering
as a Result of Disability (Wrongful Life) in South African Law” 2016 THRHR 533.
Neethling J “The Constitutional Court gives the Green Light to the Common Law of Defamation” 2002
SALJ 700.
Neethling J “Deelnemende Elektroniese Waarneming as Dreigend-onregmatige Privaatheidskending” 2001
THRHR 131.
Neethling J “Delictual Actions Between Spouses” 2010 THRHR 105.
Neethling J “Delictual Liability for an Omission: The Tragic Fishpond Incident” 2016 TSAR 798.
Neethling J “Delictual Liability of a Security Firm for the Theft of a Vehicle Guarded by Its Employee”
2011 THRHR 169.
Neethling J “Delictual Liability of Prison Authorities for Contagious Diseases amongst Inmates” 2013
TSAR 177.
Neethling J “Delictual Protection of the Right to Bodily Integrity and Security of the Person against
Omissions by the State” 2005 SALJ 558.
Neethling J “Delikseis deur Derde Party weens Kontrakbreuk” 2015 TSAR 188.
Neethling J “Die Deliktuele Aanspreeklikheid van Ouditeurs teenoor Derde Partye” 2007 De Jure 174.
Neethling J “Deliktuele Aanspreeklikheid Weens die Veroorsaking van Psigiese Letsels” 2000 TSAR 1.
Neethling J “Deliktuele Aanspreeklikheid Weens ’n Late: Is die Ondernemer sy Klant se Hoeder?” 2009
Obiter 749.
Neethling J “Die Deliktuele Klas- of Groepaksie in Suid-Afrika” 2020 (2) LitNet Akademies 732–743.
Bibliography 471
Neethling J “Deliktuele Mededaderskap: Toepaslikheid op Persone wat Opsetlik of Nalatig Dieselfde

Skade Veroorsaak” 1998 THRHR 518.
Neethling J “Deliktuele Vergoeding weens Verlies (“Bereavement”) as gevolg van ’n Sterfgeval in die
Familie” 2020 (1) LitNet Akademies 527.
Neethling J “Direct Adoption of a Rival’s Product as Unlawful Competition” 2003 SA Merc LJ 452.
Neethling J “Dogmatiese Verkenning van die Reg op Privaatheid kry Verdere Erkenning in die Regspraak”
2014 (1) LitNet Akademies 27.
Neethling J “Extinctive Prescription of a Delictual Cause of Action” 2020 TSAR 182.
Neethling J “Facebook en Persoonlikheidsbeskerming” 2014 (1) LitNet Akademies 40.
Neethling J “Foto’s en Privaatheidsbeskerming” 1993 THRHR 270.
Neethling J “Gedingsvatbaarheid van Senuskok weens die Verneem van ’n Kind se Dood” 1998 THRHR 335.
Neethling J “Gien v Gien 1979 2 SA 1113 (T)” 1979 THRHR 448.
Neethling J “Growwe Nalatigheid as Aanspreeklikheidsvereiste vir Kwaadwillige Vervolging as Iniuria”
2003 THRHR 688.
Neethling J “Die Handelingselement by Nalatige Wanvoorstelling” 2001 TSAR 814.
Neethling J “Handhawing en Miskenning deur die Regspraak van die Onderskeid tussen die Regte op
Privaatheid en die Liggaam (inbegrepe Fisies-sinlike Gevoelens) as Selfstandige Persoonlikheidsregte”
2005 THRHR 344.
Neethling J “Die Hoogste Hof van Appèl Bevestig die Onderskeid tussen en Vereistes vir Onregmatige
Arrestasie en Kwaadwillige Vervolging” 2008 TSAR 809.
Neethling J “Die Hoogste Hof van Appèl Bevestig die Uitdyende Verantwoordelikheid van die Staat om
die Reg op die Fisies-Psigiese Integriteit in die lig van die Grondwet te Beskerm” 2003 TSAR 783.
Neethling J “Die Hoogste Hof van Appơl verleen Erkenning aan die Reg op Identiteit as Persoonlikheids-
en Fundamentele Reg” 2007 TSAR 834.
Neethling J “Identical Duplication of a Rival’s Product as Unlawful Competition” 2005 SA Merc LJ 234.
Neethling J “Indringing in Privaatheid en die Openbare Inligtingsbelang” 2003 TSAR 568.
Neethling J “Laster: Relevansie tot Relatiewe Privilegie, en Verantwoordelikheid vir Herpublikasie” 2007
De Jure 193.
Neethling J “Die Lasterreg, die Grondwet en National Media Ltd v Bogoshi” 1999 (2) TRW 104.
Neethling J “The Law of Delict and Punitive Damages” 2008 Obiter 238.
Neethling J “The Law of Delict (Vol I): PQR Boberg” 1985 THRHR 245.
Neethling J “The Law of Unlawful Competition (Misappropriation of a Rival’s Product) and its Constitu-
tional Compatibility: Phumelela Gaming and Leisure Ltd v Gründlingh” 2008 SA Merc LJ 414.
Neethling J “Liablity for Damage caused by Veld, Forest and Mountain Fires” 2011 SALJ 223.
Neethling J “Liability of State for Psychiatric Injury of Parents Caused by Death of Baby at Day-Care
Centre” 2019 TSAR 773.
Neethling J “Liability of the State for Rape by a Policeman: The Saga Takes a New Direction” 2011 Obiter
428.
Neethling J “Die locus standi van ’n Kabinetsminister om vir Laster te Eis, en die Verweer van Redelike
Publikasie van Onwaarheid op Politieke Terrein” 2005 THRHR 321.
Neethling J “Die Nasciturus-fiksie Verdwyn van die Delikteregtoneel” 2006 THRHR 511.
Neethling J “Nogmaals ‘Duty of Care’ – Onregmatigheid en Nalatigheid by Aanspreeklikheid weens ’n
Late” 1997 THRHR 730.
Neethling J “Noodtoestand en Noodweer – Regverdigingsgronde by Onregmatige Vryheidsontneming as
Iniuria” 1998 THRHR 160.
Neethling J “Onregmatige Arrestasie en Daaropvolgende Gevangehouding: Die Kousaliteitskwessie” 2019
Neethling J “Onregmatige Beslaglegging op Goed: Die Actio Iniuriarum en Strikte Aanspreeklikheid”
1998 THRHR 706.
Neethling J “Onregmatige Beslaglegging op Goed: Die Actio Legis Aquiliae, Kousaliteit en Strikte Aan-
spreeklikheid” 1999 THRHR 636.
Neethling J “Onregmatige Mededinging: Prestasieaanklamping en die Rol van Motief ” 1992 THRHR 134.
Neethling J “Onregmatigheid, Nalatigheid; Regsplig, ‘Duty of Care’; en die Rol van Redelike Voorsien-
baarheid: Praat die Appèlhof uit Twee Monde?” 1996 THRHR 682.
Neethling J “Onregmatigheidsbewussyn as Element van Animus Iniuriandi by Iniuria” 2010 Obiter 702.
472 Law of Delict
Neethling J “Die Onregmatigheidsvereiste by Deliktuele Aanspreeklikheid weens die Nalatige Veroor-

saking van Suiwer Ekonomiese Verlies” 1983 THRHR 203.
Neethling J “Openbare Figuur: Laster, Belediging en Identiteitskending” 2014 (2) LitNet Akademies 116.
Neethling J “Owerspel as Gedingsvatbare Aksiegrond” 2015 (2) LitNet Akademies 397.
Neethling J “Owerspel as Onregmatige Daad – Die Suid-Afrikaanse Reg in Lynregte Teenstelling met die
Nederlandse Reg” 2010 THRHR 343.
Neethling J “Owerspel, die Vervreemding van Gevoelens en die Erkenning van die Reg op die Gevoels-
lewe as Persoonlikheids- en Mensereg” 2006 THRHR 342.
Neethling J “Persoonlike Immaterieelgoedereregte: ’n Nuwe Kategorie Subjektiewe Regte?” 1987 THRHR
316.
Neethling J Persoonlikheidsreg (1998).
Neethling J “Persoonlikheidsregtelike Beskerming van Staatsgevangenes” 2014 TSAR 26.
Neethling J “Privaatheidsbeskerming: Die Vertroulike Verhouding Tussen die Misdaadberiggewer en die
Polisie” 2000 TSAR 761.
Neethling J “Professionele Aanspreeklikheid teenoor Derdes” 1996 THRHR 191.
Neethling J “The Protection of False Defamatory Publications by the Mass Media: Recent Developments in
South Africa Against the Background of Australian, New Zealand and English Law” 2007 CILSA 103.
Neethling J “Die Reg aangaande Onregmatige Mededinging sedert 1983” 1991 THRHR 204 554.
Neethling J “Die Reg op die Verdienvermoë en die Reg op die Korrekte Inligting as Selfstandige Sub-
jektiewe Regte” 1990 THRHR 101.
Neethling J “Die Reg op Privaatheid en die Konstitusionele Hof: Die Noodsaaklikheid vir Duidelike
Begripsvorming” 1997 THRHR 137.
Neethling J “Die Reg op Privaatheid en die Staat as Regspersoon” 2011 THRHR 456.
Neethling J “Die Reg op Privaatheid en Outonomie” 2018 (2) LitNet Akademies 486.
Neethling J “Die Regsplig van die Polisie om die Reg op die Fisies-psigiese Integriteit te Beskerm” 2000
THRHR 150.
Neethling J “Die Regsplig van die Staat om die Reg op die Fisies-psigiese Integriteit te Beskerm: Die
Korrekte Benadering tot Onregmatigheid, Nalatigheid en Juridiese Kousaliteit” 2001 THRHR 489.
Neethling J “Die Regspraak Bevestig die Gedingsvatbaarheid van Afrokkeling as Iniuria” 2017 (2) LitNet
Akademies 747.
Neethling J “Reputation and Passing off – The View from Zimbabwe” 2002 SA Merc LJ 115.
Neethling J “Constitutional Compatibility of the Common Law of Wrongful and Malicious Deprivation of
Liberty as Iniuriae” 2004 SALJ 711.
Neethling J “Requirements for the Protection of Confidential Information or Trade Secrets” 2003 SALJ 472.
Neethling J “The Right to Privacy and Divorce Trials” 2010 SALJ 230.
Neethling J “The Right to Privacy, HIV-AIDS and Media Defendants” 2008 SALJ 36.
Neethling J “Risikoskepping en die Middellike Aanspreeklikheid van Werkgewers: ’n Belangrike Ontwik-
keling” 2019 (3) LitNet Akademies 820.
Neethling J “Risk-creation and the Vicarious Liability of Employers” 2007 THRHR 527.
Neethling J “Die Rol van die Openbare Belang by Laster en Privaatheidskending” 2014 THRHR 109.
Neethling J “S v Pretorius 1975 2 SA 85 (SWA)” 1975 THRHR 302.
Neethling J “Sameloop van die Aquiliese en Kontrakaksie by Suiwer Ekonomiese Verlies” 2009 TSAR 573.
Neethling J “Self-Defence: The ‘Unreasonable’ Reasonable Man” 2002 SALJ 283.
Neethling J “Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 3 SA 653 (D)”
1981 THRHR 78.
Neethling J “South Africa” in Henning-Bodewig F (ed) International Handbook on Unfair Competition
(2013) 456.
Neethling J “State (Public Authority) Liability Ex Delicto (1)” 2012 THRHR 622.
Neethling J “Strikte Aanspreeklikheid vir Defekte Produkte” 2011 TSAR 808.
Neethling J “Suiwer Ekonomiese Verlies: Onregmatigheid en Juridiese Kousaliteit onder die Soeklig” 2010
TSAR 169.
Neethling J “The Supreme Court of Appeal Pronounces upon Arrest without a Warrant and the Bill of
Rights” 2011 THRHR 660.
Bibliography 473
Neethling J “Tort Law in South Africa – The Mixing of the General and the Particular” in Smits J (ed) The
Contribution of Mixed Legal Systems to European Private Law (2001) 81.
Neethling J “Troubreuk (‘Breach of Promise’) en die Actio Iniuriarum” 2011 THRHR 328.
Neethling J “Unlawful Competition: Inducement of a Rival’s Clients to Breach of Contract; Motive to
Cripple or Eliminate a Rival; and False Disparagement of a Rival’s Business” 2002 SA Merc LJ 825.
Neethling J Van Heerden-Neethling Unlawful Competition (2008).
Neethling J “’n Vergelyking tussen die Individuele en Korporatiewe Persoonlikheidsreg op Identiteit” 2011
TSAR 62.
Neethling J “Vertroue op die Skynverwekking van Beveiliging: ’n Faktor by Aanspreeklikheid Weens ’n
Late?” 1999 THRHR 144.
Neethling J “Vicarious Liability of the State for Rape by a Police Official” 2011 TSAR 186.
Neethling J “Vryheid van (Media-)Spraak en die Beskerming van Persoonlikheidsregte” 2009 TGW 43.
Neethling J and Le Roux PAK “Positiefregtelike Erkenning van die Reg op die Verdienvermoë of ‘The
Right to Exercise a Chosen Calling’ ” 1987 Industrial LJ 719.
Neethling J and Potgieter JM “Aanspreeklikheid Ex Delicto weens ’n Late: Harmonieuse Vervlegting van
Uiteenlopende Benaderings” in Schlemmer EC and O’Brian PH (eds) Liber Amicorum JC Sonnekus
(2017) 97 (2017 5 TSAR 97).
Neethling J and Potgieter JM “Aanspreeklikheid van die Staat vir Tuberkulose in die Gevangenis” 2013 (2)
LitNet Akademies 1.
Neethling J and Potgieter JM “Accusation of Shoplifting: Actionable Defamation or Iniuria?” 2018
THRHR 141.
Neethling J and Potgieter JM “Die Aksie van Afhanklikes: Die Hoogste Hof van Appèl gee ’n Teleurstel-
lende Terugwaartse Stap” 2009 Obiter 404.
Neethling J and Potgieter JM “Die Aksie van die Teleurgestelde Begunstigde kry Stukrag” 2003 THRHR 318.
Neethling J and Potgieter JM “Aksie Weens Onregmatige Lyding Vanweë Gestremdheid (Wrongful Llife)”
2015 (2) LitNet Akademies 364.
Neethling J and Potgieter JM “Amptelike Bevel en Noodtoestand: Regmatigheid van die Uitoefening van
’n Onregmatige Bevel” 1991 THRHR 651.
Neethling J and Potgieter JM “Aquiliese Aksie van ’n Kind vir Mediese Koste weens Persoonlike
Beserings” 1992 THRHR 480.
Neethling J and Potgieter JM “Artikel 49 van die Strafproseswet 51 van 1977 – Regverdiging van Gebruik
van Geweld by Inhegtenisneming” 2003 THRHR 152.
Neethling J and Potgieter JM “Aspekte van Aanspreeklikheid weens ’n Late en Suiwer Ekonomiese
Verlies” 1993 TSAR 525.
Neethling J and Potgieter JM “Aspekte van die Delikselemente Nalatigheid, Feitelike en Juridiese Kousali-
teit (Insluitend die Sogenaamde Eierskedelgevalle)” 1993 THRHR 157.
Neethling J and Potgieter JM “Aspekte van die Lasterreg in die Lig van die Grondwet” 1995 THRHR 709.
Neethling J and Potgieter JM “Aspekte van die Reg op Privaatheid” 1994 THRHR 703.
Neethling J and Potgieter JM “Beheer oor ’n Gevaarlike Voorwerp: Die Toepaslikheid van die Deliks-
elemente Handeling, Onregmatigheid en Nalatigheid” 1989 THRHR 263.
Neethling J and Potgieter JM “Belastering van ’n Politieke Opponent: Prima Facie Onregmatigheid, Reg-
verdigingsgronde en Opset” 1992 THRHR 507.
Neethling J and Potgieter JM “Bemoeiing met ’n Kontraktuele Verhouding en Onregmatige Mededinging”
in Roestoff M and Brits R (eds) De Serie Legenda: Developments in Commercial Law, Volume I: Law of
Specific Contracts and Banking Law (2019) 141.
Neethling J and Potgieter JM “Bemoeiing met ’n Kontraktuele Verhouding as Deliktuele Skuldoorsaak”
1994 THRHR 674.
Neethling J and Potgieter JM “Bemoeiing met ’n Uitsluitende Kontraktuele Verhouding Getroef deur Vrye
Mededinging” 2017 (1) LitNet Akademies 374.
Neethling J and Potgieter JM “Bewerings van Owerspel: Gedingsvatbare Laster?” 2017 (3) LitNet Akade-
mies 927.
Neethling J and Potgieter JM “Borderline between the Law of Contract and the Law of Delict” 2012
THRHR 107.
Neethling J and Potgieter JM “Breach of Contract and Delictual Liability to Third Parties” 2015 THRHR 711.
Neethling J and Potgieter JM “Bydraende Opset en die Wet op Verdeling van Skadevergoeding 34 van
1956” 1992 THRHR 658.
474 Law of Delict
Neethling J and Potgieter JM “Concurrence of Contractual and Aquilian Claims: Recent Cases” 2014
THRHR 287.
Neethling J and Potgieter JM “The Continued Importance of Common Law Product Liability Ex Delicto”
2014 THRHR 502.
Neethling J and Potgieter JM “Defamation of a Corporation: Aquilian Action for Patrimonial (Special)
Damages and Actio Iniuriarum for Non-Patrimonial (General) Damages” 2012 THRHR 304.
Neethling J and Potgieter JM “Defamation of School Teachers by Learners” 2011 Obiter 721.
Neethling J and Potgieter JM “Delictual Liability for Loss of Property” 2010 THRHR 486.
Neethling J and Potgieter JM “Delictual Liability of Employer (Mandator) for Damage Caused by
Independent Contractor” 2009 THRHR 661.
Neethling J and Potgieter JM “Delictual Liability for an Omission and Statutory Authority as Ground of
Justification” 2015 TSAR 856.
Neethling J and Potgieter JM “Delictual Liability for Negligent Interference with a Contractual Relation-
ship” 2015 THRHR 162.
Neethling J and Potgieter JM “Delictual Liability of a Municipality for the Rape of a Mentally Disabled
Woman” 2018 THRHR 325.
Neethling J and Potgieter JM “Deliksvereistes vir Polisie-aanspreeklikheid weens Versuim om die Fisies-
psigiese Integriteit te Beskerm” 2004 THRHR 501.
Neethling J and Potgieter JM “Deliktuele Aanspreeklikheid by die Lasgewer-Lashebber-Verhouding” 1992
THRHR 309.
Neethling J and Potgieter JM “Deliktuele Aanspreeklikheid in Skoolverband” 2011 De Jure 161.
Neethling J and Potgieter JM “Deliktuele Aanspreeklikheid weens Bevrugting as Gevolg van ’n Nalatige
Wanvoorstelling: Die Funksies van Onregmatigheid, Nalatigheid en Juridiese Kousaliteit” 2000
THRHR 162.
Neethling J and Potgieter JM “Deliktuele Aanspreeklikheid weens ’n Late: ’n Nuwe Riglyn vir die
Regsplig om Positief op te tree?” 1990 TSAR 763.
Neethling J and Potgieter JM “Deliktuele Aanspreeklikheid weens ’n Late: Onregmatigheid en Nalatig-
heid” 2016 (1) LitNet Akademies 491.
Neethling J and Potgieter JM “Deliktuele Onregmatigheid by die Nie-nakoming van ’n Statutêre Voor-
skrif ” 1995 THRHR 528.
Neethling J and Potgieter JM “Deliktuele Staatsaanspreeklikheid weens Polisieverkragting” 2012 (2) LitNet
Akademies 73.
Neethling J and Potgieter JM “Emosionele Skok, Juridiese Kousaliteit en Bydraende Nalatigheid” 1997
THRHR 548.
Neethling J and Potgieter JM “Foreseeability: Wrongfulness and Negligence of Omissions in Delict – The
Debate goes on” 2018 JJS 145.
Neethling J and Potgieter JM “Die Handves van Regte en Deliktuele Aanspreeklikheid weens Verbreking
van ’n Statutêre Voorskrif” 2002 TSAR 381.
Neethling J and Potgieter JM “Herlewing van die Amende Honorable as Remedie by Laster” 2003
THRHR 329.
Neethling J and Potgieter JM “Die Hoogste Hof van Appèl Bevestig die Bestaansreg van die Actio de
Pauperie” 2003 TSAR 590.
Neethling J and Potgieter JM “Die Hoogste Hof van Appèl gee Hoop vir die Teleurgestelde Begunstigde
(‘Disappointed Beneficiary’)” 2002 THRHR 473.
Neethling J and Potgieter JM “Die Hoogste Hof van Appèl laat die Deur oop vir Strikte Vervaardigers-
aanspreeklikheid” 2002 TSAR 582.
Neethling J and Potgieter JM “In (Self-)defence of the Distinction Between Wrongfulness and Negligence”
2007 SALJ 280.
Neethling J and Potgieter JM “Juridiese Kousaliteit bereik Volle Wasdom” 1995 THRHR 343.
Neethling J and Potgieter JM “Laster: Die Bewyslas, Media-privilegie en die Invloed van die Nuwe Grond-
wet” 1994 THRHR 513.
Neethling J and Potgieter JM “Die Lasterreg en die Media: Strikte Aanspreeklikheid Word ten Gunste van
Nalatigheid Verwerp en ’n Verweer van Media-Privilegie Gevestig” 1999 THRHR 442.
Neethling J and Potgieter JM “The Law of Delict” 2016 Annual Survey 793.
Neethling J and Potgieter JM “Liability for an Omission: Control over a Dangerous Object” 2011 THRHR
689.
Bibliography 475
Neethling J and Potgieter JM “Mededaders en Bydraende Nalatigheid aan die Kant van die Eiser” 2008
TSAR 354.
Neethling J and Potgieter JM “Middellike Aanspreeklikheid van die Staat vir Verkragting deur Polisie-
beamptes” 2005 TSAR 595.
Neethling J and Potgieter JM “Middellike Aanspreeklikheid van ’n Werkgewer vir die Opsetlike Deliks-
pleging (Diefstal, Bedrog) van ’n Werknemer 1999 TSAR 772.
Neethling J and Potgieter JM “Middellike Aanspreeklikheid vir Aanranding deur Soldate” 2008 De Jure 654.
Neethling J and Potgieter JM “Middellike Aanspreeklikheid vir ’n Opsetlike Delik” 2007 TSAR 616.
Neethling J and Potgieter JM “Nalatige Wanvoorstelling as Deliktuele Aksiegrond” 1980 De Rebus 179.
Neethling J and Potgieter JM “Nalatige Wanvoorstelling: Kousaliteit en Res Ipsa Loquitur by Vervaardi-
gersaanspreeklikheid” 1990 De Jure 372.
Neethling J and Potgieter JM “Noodtoestand en die Aksie van Afhanklikes” 2011 (1) JJS 105.
Neethling J and Potgieter JM “Noodtoestand: Regverdigings- en Skulduitsluitingsgrond” 2007 THRHR 669.
Neethling J and Potgieter JM “Onregmatige Vryheidsberowing: Juridiese Kousaliteit as Selfstandige
Delikselement by Skuldlose Aanspreeklikheid” 1991 TSAR 496.
Neethling J and Potgieter JM “Onregmatigheid as die Redelikheid om ’n Verweerder Aanspreeklik te Stel
– ’n Nuwe Variasie vir die Toets van Deliktuele Onregmatigheid” 2009 THRHR 455.
Neethling J and Potgieter JM “Onsekerheid in die Hoogste Hof van Appèl oor Middellike Aanspreeklik-
heid vir Oneerlike Werknemers” 2003 THRHR 323.
Neethling J and Potgieter JM “Openbare Belang as Verweer by Laster” 1993 THRHR 323.
Neethling J and Potgieter JM “Persoonlikheidsregte van ’n Regspersoon” 1991 THRHR 120.
Neethling J and Potgieter JM “Regsonsekerheid in die Lasterreg in die Lig van die Grondwet – Die Pad
Vorentoe?” 1996 THRHR 706.
Neethling J and Potgieter JM “Regsplig by ’n Late en die Berekening van Bydraende Nalatigheid” 1992
TSAR 321.
Neethling J and Potgieter JM “Regsplig van Polisie om Suiwer Ekonomiese Verlies te Voorkom” 1996
THRHR 333.
Neethling J and Potgieter JM “Die Regsplig van die Staat om die Reg op die Fisies-psigiese Integriteit teen
Aantasting deur Derdes te Beskerm: Twee Teenstrydige Beslissings” 2002 THRHR 273.
Neethling J and Potgieter JM “Die Regsoortuiging van die Gemeenskap as Selfstandige Onregmatigheids-
kriterium” 2006 TSAR 609.
Neethling J and Potgieter JM “Die Regsrelevansie van Owerspel: Quo Vadis?” 2019 TSAR 63.
Neethling J and Potgieter JM “Risikoskepping by Middellike Aanspreeklikheid” 1993 THRHR 500.
Neethling J and Potgieter JM “Die Rol van Opset by Onregmatige Mededinging” 1991 SALJ 33.
Neethling J and Potgieter JM “Section 49 of the Criminal Procedure Act 51 of 1977, Private Defence and
Putative Private Defence” 2004 TSAR 602.
Neethling J and Potgieter JM “Seksuele Teistering en Gedingsvatbare Psigiese Letsels: ’n Mylpaal vir die
Suid-Afrikaanse Reg” 2004 SA Merc LJ 488.
Neethling J and Potgieter JM “Sorgsaamheidsplig van Ouers teenoor Kinders” 2018 (2) LitNet Akademies
496.
Neethling J and Potgieter JM “’n Spesiale Verhouding tussen die Polisie en Misdaadslagoffers: ’n Onont-
beerlike Faktor vir die Bestaan van ’n Regsplig op die Polisie om Misdaadslagoffers te Beskerm?” 2004
THRHR 490.
Neethling J and Potgieter JM “Statutêre Bevoegdheid: Die Rol van Redelike Voorsienbaarheid by Onreg-
matigheid en Nalatigheid” 2004 Obiter 477.
Neethling J and Potgieter JM “Swembaddens, Visdamme, ander Waterpoele en Kinderslagoffers – Delik-
tuele Aanspreeklikheid” 2017 (1) LitNet Akademies 389.
Neethling J and Potgieter JM “Toepassing van die Grondwet op die Deliktereg” 2002 THRHR 265.
Neethling J and Potgieter JM “Die Toets vir Deliktuele Nalatigheid Onder die Soeklig” 2001 THRHR 476.
Neethling J and Potgieter JM “Uitbreiding van die Toepassingsgebied van die Aksie van Afhanklikes”
2001 THRHR 484.
Neethling J and Potgieter JM “Unlawful Arrest and Unlawful Detention: Separate Grounds of Action and
Punitive Damages” 2010 Obiter 471.
Neethling J and Potgieter JM “Unlawful Detention: A Disappointing Judgment” 2012 Obiter 390.
Neethling J and Potgieter JM “Vitoria v Union National South British Insurance Co Ltd 1980 4 SA 406
(T)” 1981 THRHR 204.
476 Law of Delict
Neethling J and Potgieter JM “Volenti Non Fit Iniuria and Rugby Injuries” 2012 THRHR 675.
Neethling J and Potgieter JM “‘Vulnerability to Risk’ as a Factor Determining Delictual Liability for Pure
Economic Loss” 2015 THRHR 635.
Neethling J and Potgieter JM “Wrongfulness and Delictual Liability for Rugby Injuries: Roux v Hattingh
(SCA)” 2014 SALJ 244.
Neethling J and Potgieter JM “Wrongfulness and Legal Causation as Separate Elements of a Delict:
Confusion Reigns” 2014 TSAR 889.
Neethling J and Potgieter JM “Wrongfulness and Negligence in the Law of Delict: A Babylonian
Confusion?” 2007 THRHR 120.
Neethling J and Potgieter JM “Wrongfulness in Delict: A Response to Brand JA” 2014 THRHR 116.
Neethling J, Potgieter JM and Roos A Neethling on Personality Rights (2019).
Neethling J, Potgieter JM and Scott TJ Workbook for the Law of Delict (1997).
Neethling J and Rutherford B “Competition” 2003 (2) LAWSA 195.
Neethling J and Van Aswegen A “Aspekte van Aanspreeklikheid weens Suiwer Ekonomiese Verlies:
Bemoeiing met ’n Kontraktuele Verhouding en die Rol van Beleidsoorwegings” 1989 THRHR 607.
Neethling J and Van Rensburg ADJ “Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 (A)” 1973
THRHR 427.
Newdigate HJ and Honey DP MVA Handbook (1985).
Nienaber AG and Van der Nest D “An Exploration of the Impact of a Claimant’s HIV/AIDS Status on a
Personal Injury Claim” 2002 TSAR 290.
Nkosi T “Knowledge of the Existence of Discretionary Powers is an Implied Precondition to the Proper
Exercise of a Discretion to Arrest without a Warrant” 2016 Obiter 147.
Nkosi T “Where Ignorance is Bliss tis Folly to Arrest, or Is It?” 2015 TSAR 662.
Nkosi T “Wrongful Deprivation of Liberty – It is not just about the Warrant: Domingo v Minister of Safety
and Security” 2015 SALJ 15.
Nugent RW “Yes, it is Always a Bad Thing for the Law: A Reply to Professor Neethling” 2006 SALJ 557.
Ogus AI The Law of Damages (1973).
Okpaluba C “Constitutional Protection of the Right to Privacy: The Contribution of Chief Justice Langa to
the Law of Search and Seizure” 2015 Acta Juridica 407.
Okpaluba C and Budeli-Nemakonde M “Quantification of Damages for Wrongful Arrest, Detention and
Malicious Prosecution: A Contextual Analysis of Contemporary Appellate-Court Awards in South
Africa (Part 1)” 2017 TSAR 526.
Okpaluba C and Budeli-Nemakonde M “Quantification of Damages for Wrongful Arrest, Detention and
Malicious Prosecution: A Contextual Analysis of Contemporary Appellate-Court Awards in South
Africa (Part 2)” 2017 TSAR 792.
Okpaluba C and Osode PC Government Liability: South Africa and the Commonwealth (2010).
Oliver L “Delictual Liability of the South African Revenue Service: The Wrongfulness Element” 2009
TSAR 740.
Olmesdahl MCJ “Corporal Punishment in Schools” 1984 SALJ 527.
Paizes A “Dolus Eventualis Reconsidered” 1988 SALJ 636.
Paizes A “Factual Causation: Which ‘Conditio’ must be a ‘Sine Qua Non’? A Critical Discussion of the
Decision in Lee v Minister for Correctional Services” 2014 SALJ 500.
Parker J and Zaal FN “Damages for Deprivation of Parental Care: Initiating a Groundbreaking New
Remedy for Children” 2015 Obiter 164.
Parker J and Zaal FN “Small Comfort for Bereaved Children, A Cautious Response to Loss of Parental
Care Claims” 2016 THRHR 146.
Parmanand SK Sport Injuries in the Civil Law (1987).
Pauw P “Alternative Relief in Delictual Claims?” 2017 TSAR 846.
Pauw P “Alternative Relief in Delictual Claims – A Step in the Right Direction” 2018 TSAR 176.
Pauw P “Alternative Relief in Medical Malpractice Claims – Further Developments” 2019 TSAR 91.
Pauw P “Aspects of the Origin of the Action for Pain, Suffering and Disfigurement” 1977 TSAR 248.
Pauw P “Dippenaar v Shield Insurance Co Ltd 1979 2 SA 904 (A)” 1979 TSAR 256.
Pauw P Persoonlikheidskrenking en Skuld in die Suid-Afrikaanse Privaatreg – ’n Regshistoriese en Regs-
vergelykende Ondersoek (1976).
Pauw P “The Supreme Court of Appeal Goes with the Flow” 2018 TSAR 939.
Pauw P “Weer eens Nalatige Wanvoorstelling” 1978 THRHR 53.
Bibliography 477
Pearson F “Liability for So-called Wrongful Pregnancy, Wrongful Birth and Wrongful Life” 1997 SALJ 91.
Pienaar G “Diskriminasieverbod en Religieusgerigte Onderwys – Wat hou die Toekoms in?” 1993
THRHR 210.
Pienaar L “Investigating the Reasons behind the Increase in Medical Negligence Claims” 2016 (19) PELJ 1.
Pieterse M “The Right to be Free from Public or Private Violence after Carmichele” 2002 SALJ 27.
Pont D “Vergoeding van Skade op Grond van ‘Loss of Expectation of Life’” 1942 THRHR 12.
Potgieter JM “Aanspreeklikheid van Ouers vir Skade Veroorsaak deur hul Minderjarige Kinders” 2008
THRHR 331.
Potgieter JM Aspekte van die Juridiese Beskerming van die Godsdiensgevoel (1987).
Potgieter JM “Delictual Liability of the State for Sexual Harassment in South African Public Schools”
2005 De Jure 1.
Potgieter JM “Deliktuele Aanspreeklikheid vir Onvoorsienbare Gevolge van Mediese Nalatigheid” 2017
Potgieter JM “Emotional Shock” 9 LAWSA 1.
Potgieter JM “Feitelike en Juridiese Kousaliteit” 1990 THRHR 267.
Potgieter JM “Die Hoogste Hof van Appèl brei die Aksie vir Emosionele Skok en Psigiatriese Letsel tot
Verloofdes Uit” 2004 Obiter 497.
Potgieter JM “Is ’n Dief van Tjeks en die Nalatige Invorderingsbank Mededaders Ingevolge die Wet op
Verdeling van Skadevergoeding 34 van 1956?”1998 THRHR 731.
Potgieter JM “Die Nuwe Onregmatigheidstoets: ’n Trojaanse Perd wat Delikteregbeginsels Bedreig?” 2017
Potgieter JM “Preliminary Thoughts on Whether Vicarious Liability Should Be Extended to the Parent-
Child Relationship” 2011 Obiter 189.
Potgieter JM “Die Reg op die Gevoelslewe (en die Moontlike Relevansie daarvan by ’n Aksie weens
Owerspel” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir
Johann Neethling (2015) 371 (2016 TSAR 397).
Potgieter JM “Skuldlose Aanspreeklikheid vir Psigiatriese Besering en Gedagtes oor die Rol van Beleid by
Deliktuele Aanspreeklikheid” in Boezaart T and De Kock P (eds) Vita Perit, Labor Non Moritur – Liber
Memorialis: PJ Visser (2008) 209; 2009 Obiter 518.
Potgieter JM “Steeds Meningsverskil oor die deliktuele-nalatigheid-toets vir Onderwysers” 2013 (2) LitNet
Akademies 13.
Potgieter JM “Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T)” 1978
THRHR 327.
Potgieter JM “Verfyning van die Onregmatigheidstoets by Laster en by Krenking van die Godsdiens-
gevoel” 1997 THRHR 719.
Potgieter JM “Verkeer die Soepel Maatstaf vir Juridiese Kousaliteit in Gevaar?” 2010 Obiter 746.
Potgieter JM and Van Rensburg ADJ “Die Toerekening van Gevolge aan ’n Delikspleger” 1977
THRHR 379.
Potgieter JM, Steynberg L and Floyd TB Visser & Potgieter Law of Damages (2012).
Pretorius C-J “Damages in Delict for Prospective Loss of Profit” 2006 TSAR 385.
Pretorius JT Aanspreeklikheid van Maatskappy Ouditeure teenoor Derdes op grond van Wanvoorstelling in
die Finansiële State (1985).
Pretorius JT “Professionele Aanspreeklikheid, die Invorderingsbank en Regshervorming” 1987 MBL 56.
Price A “Aquilian Liability for Negligence and Proximity Considerations” 2019 Acta Juridica 315.
Price A “The Contract/Delict Interface in the Constitutional Court” 2014 Stell LR 501.
Price A “Factual Causation After Lee” 2014 SALJ 491.
Prinsloo MW “Liability in Sport and Recreation” 1990 TSAR 42.
Rabie M “Die Eis om Onregmatige Lewe: Bestaanbaar in die Deliktereg of word die Gemenereg Buite sy
Perke Gestrek?” 2016 (1) LitNet Akademies 502.
Ratz M “Flying into New Heights – Damages Claims Arising from Contraventions of the Competition Act”
(2017) Jan/Feb De Rebus 34.
Rautenbach IM “The Liability of Organisers for Damage Caused in the Course of Violent Demonstrations
as a Limitation of the Right to Freedom of Assembly” 2013 TSAR 151.
Reid E “Traditional Delictual Principles and Reproductive Rights: New Directions for the Law of
Personality?” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir
478 Law of Delict
Reinecke MFB “Die Elemente van die Begrip Skade” 1976 TSAR 26.
Reinecke MFB “Herstelkoste as Skadevergoeding op grond van Kontrakbreuk” 1990 TSAR 773.
Reinecke MFB “Nabetragtinge oor die Skadeleer en Voordeeltoerekening” 1988 De Jure 221.
Reinecke MFB UP Ongepubliseerde Klasdiktaat vir LLM kursus (1990).
Reinecke MFB and Van der Merwe SWJ “Verdere Wanbeskouinge oor Wanvoorstelling” 1966 THRHR 66.
Rens A “Tsichlas v Touch Line Media (Pty) Ltd” 2005 SALJ 740.
Robinson JA “S v Mogohlwane 1982 2 SA 587 (T)” 1983 THRHR 97.
Robinson JA and Prinsloo R “The Right of the Child to Care and Constitutional Damages for the Loss of
Parental Care: Some Thoughts on M v Minister of Police and Minister of Police v Mboweni” 2015 (5)
PELJ 1670.
Robinson R “The Legal Nature of the Embryo: Legal Subject or Legal Object?” 2018 (21) PELJ 1.
Roederer CJ “Case Book on the Law of Delict/Vonnisbundel oor die Deliktereg by J Neethling, JM Pot-
gieter and TJ Scott” 2000 SALJ 640.
Roederer CJ “Wrongly Conceiving Wrongful Conception: Distributive vs Corrective Justice” 2001 SALJ 347.
Roos A “Grondbeginsels van Databeskerming in Suid-Afrika: ’n Beskouing van die Wet op die Besker-
ming van Persoonlike Inligting 4 van 2013 en die Bydrae wat Johann Neethling Gemaak Het” in Pot-
gieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir Johann Neethling
(2015) 395.
Roos A The Law of Data (Privacy) Protection: A Comparative and Theoretical Study (2003).
Roos A “Privacy in the Facebook Era: A South African Perspective” 2012 SALJ 375.
Roos A “The Right to Identity Recognised for the First Time by the Supreme Court of Appeal” 2008
THRHR 515.
Roos A and Slabbert M “Defamation on Facebook: Isparta v Richter 2013 6 SA 529 (GP)” 2014 (6) PELJ
2845.
Roos J and Clark B “The Law of Delict and the Illegal Breadwinner” 1987 THRHR 91.
Rossouw JP and Engelbrecht W “Deliktuele Aanspreeklikheid van die Afrigter in Skolesport – ’n Sekuri-
teitsaangeleentheid” 2011 (6) PELJ 2.
Saner JS “Prescription” 2010 LAWSA 123.
Schoeman E “Die Nalatige Veroorsaking van Suiwer Ekonomiese Verlies – Aanspreeklikheidsbegrensing”
1986 THRHR 287.
Schulze WG “Delictual Liability of a Bank Towards its Client: A New Prominence Given to the Element
of Causation” 2006 TSAR 834.
Scott H “Liability for the Mass Publication of Private Information in South African Law” 2007 Stell
LR 387.
Scott SJ “Nalatige Wanvoorstelling as Aksiegrond in die Suid-Afrikaanse Reg” 1976 THRHR 347, 1977
THRHR 58 165.
Scott TJ “The Actio de Feris ņ Phoenix from the Ashes or Vain Chimera?’ 2018 THRHR 510.
Scott TJ “Die Actio de Pauperie Oorleef ’n Woeste Aanslag” 2003 TSAR 194.
Scott TJ “Afskaffing van Voorkoms en Persoonlikheid as Faktore by Skadebepaling van ’n Weduwee se
Vordering weens die Dood van Haar Broodwinner” 2018 TSAR 428.
Scott TJ “Die Aksie van Afhanklikes weens die Dood van hul Broodwinner: Veel Lawaai en Weinig
Wol?” 2016 (3) LitNet Akademies 827.
Scott TJ “Aquiliese Aanspreeklikheid vir Suiwer Ekonomiese Verlies – Die Hoogste Hof van Appèl Draai
Briek Aan” 2014 TSAR 826.
Scott TJ “Aspekte van die Oorerflikheid van Genoegdoeningseise” 1978 THRHR 131.
Scott TJ “Boelie Kry op sy Baadjie: Moes die Skool Gered Het?” 2019 (3) LitNet Akademies 779.
Scott TJ “The Boni Mores Take a Strange Turn” 2019 TSAR 798.
Scott TJ “The Cape Metropolitan Council v Graham case no 157/99 (C)” 2001 De Jure 198.
Scott TJ “Cape Town Municipality v Butters 1996 1 SA 473 (K)” 1996 De Jure 379.
Scott TJ “Die Condictio Furtiva: Gepaste Remedie of Deus ex Machina?” 2011 TSAR 383.
Scott TJ “Conduct of a Third Party as a Defence Against a Claim Based on the Actio de Pauperie
Rejected” 2019 THRHR 321.
Scott TJ “Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA)” 2007
De Jure 391.
Scott TJ “Damage(s): Reflections on the Misuse of Legal Terminology” 2016 SALJ 715.
Bibliography 479
Scott TJ “A Decision on Exclusion Clauses Avoided by Recourse to Delictual Principles on Wrongfulness”

2016 TSAR 754.
Scott TJ “The Definition of Delictual Negligence Revisited: Three Recent Judgments of the Supreme Court
of Appeal” 2000 De Jure 358.
Scott TJ “Delictual Liability for Adultery: A Healthy Remedy’s Road to Perdition” in Potgieter JM, Knobel
J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir Johann Neethling (2015) 421.
Scott TJ “Delictual Liability for Disturbing the Airwaves – A Good Example of Delict Moving into the
21st Century” 2014 THRHR 686.
Scott TJ “Delictual Liability for Omissions” 1999 De Jure 340.
Scott TJ “Delictual Liability of the Police Flowing from Non-Compliance with the Domestic Violence
Act” 2012 THRHR 288.
Scott TJ “Deliktereg 1985 – ’n Besinning oor Teorie, Praktyk en Onderrig” 1985 De Jure 122.
Scott TJ “Deliktuele Vorderings teen die Polisie: Nienakoming van ’n Statutêre Vervaltermyn en Noodweers-
oorskryding” 2007 TSAR 188.
Scott TJ “Determination of Constitutional Nature of Contractual and Delictual Claims – Strict Contractual
Liability of Security Company – Vicarious Liability of Security Company for Wrongful and Negligent
Conduct of Employee” 2014 De Jure 374.
Scott TJ “Determining the Wrongfulness in Delict of a Positive Breach of a Public Duty” 2017 TSAR 379.
Scott TJ “Enkele Gedagtes oor die Onsekerheid van Gevestigde Gemeenregtelike Reëls: Resente Voor-
beelde van die Hof in Wetgewende Rol” in Schlemmer EC and O’Brien PH (eds) Liber Amicorum
JC Sonnekus (2017) 21; 2017 5 TSAR 21.
Scott TJ “Enkele Opmerkings oor Volenti Non Fit Iniuria as ’n Regverdigingsgrond in die Privaatreg”
1976 De Jure 218.
Scott TJ “Erkenning van Deliktuele Vordering van Deelgenoot aan Permanente Heteroseksuele Verhou-
ding weens Doodslag van Ander Deelgenoot” 2013 TSAR 777.
Scott TJ “Erkenning van Meineed as Skuldoorsaak in die Deliktereg” 2007 TSAR 800.
Scott TJ “Eskom Holdings v Hendricks 2005 5 SA 503 (SCA)” 2006 De Jure 213.
Scott TJ “Failure by Passenger to Hold Railroad Operator Liable for Damage Occasioned by Robbery on
Train” 2008 THRHR 324.
Scott TJ Die Geskiedenis van die Oorerflikheid van Aksies op grond van Onregmatige Daad in die Suid-
Afrikaanse Reg (1976).
Scott TJ “Die Grense van Middellike Staatsaanspreeklikheid vir Opsetsdelikte van Polisiebeamptes” 2016
TSAR 332.
Scott TJ “Die Hoogste Hof van Appèl Smoor Heilsame Regsontwikkeling” 2011 TSAR 773.
Scott TJ “How Safe Should a Sidewalk Be? The Evergreen Question of a Municipality’s Liability for
Negligent Omissions” 2013 TSAR 164.
Scott TJ “Intentional Delicts of Police Officers: A Hiccup from the Supreme Court of Appeal” 2017 TSAR
872.
Scott TJ “Intentional Delicts of Police Officers: The Majority of the Constitutional Court Fails to Come to
the Table” 2019 TSAR 150.
Scott TJ “K v Minister of Safety and Security 2005 6 SA 419 (CC)” 2006 De Jure 471.
Scott TJ “Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W)” 2002 De Jure 342.
Scott TJ “Die Kriterium vir Berekening van Bydraende Nalatigheid – Enkele Gedagtes” 1995 TSAR 127.
Scott TJ “Legal Causation in the Law of Delict” 1998 De Jure 179.
Scott TJ “Limits of Private Defence in the Law of Delict” 1998 THRHR 318.
Scott TJ “McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (K)” 1995 TSAR 778.
Scott TJ “MEC for Public Works, Eastern Cape v Faltein 2006 5 SA 532 (SCA)” 2007 De Jure 182.
Scott TJ “Middellike Aanspreeklikheid – Mistastings oor Gevestigde Regsbeginsels” 2015 TSAR 623.
Scott TJ “Middellike Aanspreeklikheid – Nalatige Veroorsaking van Vermoënskade deur Werknemer –
Gevolge van Afwyking deur Werknemer van Werkgewersopdrag – Toepassing van Standaardtoets”
2012 De Jure 189.
Scott TJ “Middellike Aanspreeklikheid van die Staat vir Misdadige Polisie Optrede: Die Heilsame Ontwik-
keling Duur Voort” 2011 TSAR 135.
Scott TJ “Middellike Aanspreeklikheid van die Staat weens Manipulasie van ’n Tenderproses” 2007
TSAR 569.
480 Law of Delict
Scott TJ “Middellike Werkgewersaanspreeklikheid Weens Seksuele Teistering deur ’n Werknemer” 2017

TSAR 620.
Scott TJ “Minister of Police v Skosana 1977 1 SA 31 (A)” 1977 De Jure 186.
Scott TJ “Ncoyo v Commissioner of Police 1998 1 SA 128 (CkSC)” 1998 De Jure 179.
Scott TJ “Noodweer (oordadigheid) in Deliktereg nie Suiwer Objektief ex post facto Getoets” 1991
THRHR 299.
Scott TJ “Die Onregmatigheidstoets in die Deliktereg in die geval van ’n Late” 1995 De Jure 234.
Scott TJ “Owerheidsaanspreeklikheid vir Skade Veroorsaak deur Slaggate in Openbare Paaie” 2009 TSAR
392.
Scott TJ “The Possibility of a Principal’s Liability for the Delict of an Independent Contractor” 2009
THRHR 667.
Scott TJ “Purported Extension of the Dependants’ Action: Much Ado about Nothing” 2016 THRHR 678.
Scott TJ “Railroad Operator’s Failure to Protect Passenger Against Attack on Train not Negligent” 2009
THRHR 156.
Scott TJ “Die Reël Imperitia Culpae Adnumeratur as Grondslag vir die Nalatigheidstoets vir Deskundiges
in die Deliktereg” in Joubert DJ (ed) Petere Fontes: LC Steyn-Gedenkbundel 124.
Scott TJ “Die Regsplig by ’n Late en die Veroorsaking van Suiwer Ekonomiese Verlies” 1995 De Jure 158.
Scott TJ “’n Resente Toepassing van die Nuwe Onregmatigheidstoets vir Deliktuele Aanspreeklikheid –
Gewens of Afkeurenswaardig?” 2018 TSAR 906.
Scott TJ “Revisiting the Elements of Delict – The Mashongwa Judgments” 2016 THRHR 551.
Scott TJ “Rooftogte: In meer as Een Opsig ’n Winkelier se Nagmerrie” 2009 TSAR 758.
Scott TJ “Smit v Suid-Afrikaanse Vervoerdienste 1984 1 SA 246 (K)” 1984 THRHR 342.
Scott TJ “Some Reflections on Section l(l)(a) of the Apportionment of Damages Act 1956 and Contribu-
tory Intent” in Van der Westhuizen J et al (eds) Huldigingsbundel Paul van Warmelo (1984) 166.
Scott TJ “Some Reflections on Vicarious Liability and Dishonest Employees” 2000 Acta Juridica 265.
Scott TJ “Staatsaanspreeklikheid vir Opsetsdelikte van die Polisie – Die Hoogste Hof van Appèl Kry
Nogmaals Bloedneus” 2012 TSAR 541.
Scott TJ “The Sting of an Ancient Remedy in Present Times: Caveant Dog Owners!” in Boezaart T and
De Kock P (eds) Vita Perit, Labor Non Moritur – Liber Memorialis: PJ Visser (2008) 95.
Scott TJ “Uiteindelik Regsekerheid oor die Ware Grondslag van die Deliktuele Vordering van ’n Kind
weens Voorgeboortelike Beserings” 2006 TSAR 617.
Scott TJ “An Unsuccessful Long Shot Aimed at Effecting Liability for Causing Pure Economic loss” 2017
THRHR 483.
Scott TJ “Die Vasstelling van Nalatigheid tydens Optrede in ’n Situasie van Skielike Gevaar” 2008 TSAR 358.
Scott TJ “Vicarious Liability for Intentional Delicts – the Constitutional Factor Clinches Liability” 2013
TSAR 348.
Scott TJ “Vicarious Liability: A Positive Development in Resolving Deviation Cases” 2020 TSAR 338.
Scott TJ “Vicarious Liability of the State for Intentional Police Delicts: A Noteworthy ‘Concealed’
Deviation Case” 2020 TSAR 164.
Scott TJ “Waaksame Waghonde en Waagmoedige Kinders – ’n Wanklank uit die Oos-Kaap” 2018 (3)
Litnet Akademies 1244.
Scott TJ “Wrongful Arrest: A Brief Survey of the Impact of the Constitution in Recent Case Law” 2009
Obiter 724.
Scott WE Middellike Aanspreeklikheid in die Suid-Afrikaanse Reg (1983).
Sharp K and Zaal FN “Narrowing the Scope for Breach of Promise Actions” 2011 THRHR 333.
Sibanda OS “The Statutory Right of Reply in South African Law of Defamation – A Right Fallaciously
Denied” 2001 Stell LR 285.
Singh PP “Social Media and the Actio Iniuriarum in South Africa – an Exploration of New Challenges on
the Online Area” 2014 Obiter 616.
Slabbert M and Van der Westhuizen C “Geen Seks, Geen Skadevergoeding” 2011 Obiter 204.
Smith B and Heaton J “Extension of the Dependants’ Action to Heterosexual Life Partners after Volks v
Robinson and the Coming into Operation of the Civil Union Act – Thus Far and no Further?” 2012
THRHR 472.
Smits JM “Does the Law of Delict Have a Future? On Neuroscience and Liability” in Potgieter JM,
Bibliography 481
Smits JM Europees Privaatrecht in Wording – Naar een Ius Commune Europaeum als Gemengd Rechts-
stelsel (1999).
Snyman CR Criminal Law (2014).
Snyman CR “Geregverdigde Doodslag by Inhegtenisneming: Die Bepalings van die Nuwe Artikel 49 van
die Strafprosedure” 2004 Stell LR 536.
Snyman CR” “Private Defence in Criminal Law – an Unwarranted Raising of the Test of Reasonableness”
2004 THRHR 325.
Snyman CR “Is there such a Defence in our Criminal Law as ‘Emotional Stress’?” 1985 SALJ 240.
Snyman PCA “Products Liability in Modern Roman-Dutch Law” 1980 CILSA 177.
Sonnekus JC “Aanspreeklikheid vir Nadeel weens Regmatige Owerheidshandelinge – Rus die Skade Maar
Waar dit Val?” 2017 TSAR 225.
Sonnekus JC “Hoe Ordinêr Moet die Redelike Persoon Wees?” 2015 TSAR 804.
Sonnekus JC “Inhoudelike Objektivering van die Nalatigheidstoets by Deliktuele Vorderings – Geen Luk-
rake Raaiwerk Nie” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldi-
gingsbundel vir Johann Neethling (2015) 459.
Sonnekus JC “Kinders se Onderhoudsverpligting Jeens Hul Ouers” 2018 TSAR 882.
Sonnekus JC Die Privaatregtelike Beskerming van die Huwelik (1976).
Sonnekus JC “Skadevergoedingseise by Huwelike in Gemeenskap van Goed” 2006 TSAR 848.
Sonnekus JC “Tshabalala v Tshabalala 1980 1 SA 134 (O) en Philip v The Master 1980 2 SA 934 (D)”
1981 TSAR 172.
Sonnekus JC “Voortdurende Inbreukmaking op ’n Watergebruiksreg – Verjaring, maar van Welke
Remedie?” 2019 TSAR 575.
Sonnekus JC “ ’n Vordering om Skadevergoeding teen ’n Nalatige Testamentsverlyer en Algehele Testeer-
vryheid in Spanning” in Liber Amicorum: Tijdschrift voor Privaatrecht en Marcel Storme 2004 TPR 623.
Stevens RA “The Legal Nature of the Duty of Care and Skill: Contract or Delict?” 2017 (20) PELJ 1.
Steyn L “Damages for Negligent Non-disclosure by One Contracting Party to the Other: The Requirements
for Liability” 2003 SALJ 465.
Steynberg L Gebeurlikhede in die Deliktuele Skadevergoedingreg (2006)
Steynberg L “Repartnering as Contingency Deduction in Claims for Loss of Support – Comparing South
African and Australian Law” 2007 (3) PELJ 121.
Steynberg L and Millard D “Distinguishing between Private Law and Social Security Law in Deducting
Benefits from Claims for Loss of Support” 2011 (4) PELJ 260.
Steynberg L and Mokotong M “The Common Law Duty of Support” 2005 THRHR 330.
Stoll H and Visser PJ “Some Thoughts on Delictual Damages for the Loss of the Use of Property in terms
of South African and German Law” 1990 De Jure 347.
Stoop BC “Qui habet commoda ferre debet onera (You cannot have your cake and eat it). The Relevance
of Fault in Breach of Contract” 1998 THRHR 11.
Strauss PMS, Jansen RM and Lubbe DS “Professionele Aanspreeklikheid van Ouditeure teenoor Derdes op
Grond van Nalatigheid” 2004 TRW 91.
Strauss SA Aspekte van die Begrip ‘Toestemming’ in die Strafreg en die Deliktereg (1963).
Strauss SA “Bodily Injury and the Defence of Consent” 1964 SALJ 179 332.
Strauss SA Doctor, Patient and the Law: A Selection of Practical Issues (1991).
Strauss SA “Privaatheidskending en die Toestemmingsvereiste by Bloedtoetse” 1996 THRHR 492.
Strauss SA “Toestemming deur ’n Jeugdige” 1964 THRHR 116.
Strauss SA Toestemming tot Benadeling as Verweer in die Strafreg en die Deliktereg (1961).
Taitz JL “Euthanasia and the ‘Legal Convictions of Society’ in a South African Context” 1993 SALJ 440.
Thomas PHJ and Boraine A “Ownership of Money and the Actio Pauliana” 1994 THRHR 678.
Townsend B and Thaldar D “Informed Consent in Medical Malpractice Suits: An Analysis of Beukes v
Smith” 2020 SALJ 13.
Trengove W “New Remedies for Defamation” 2013 THRHR 70.
Van Apeldoorn LJ Inleiding tot de Studie van het Nederlandse Recht (1985).
Van Aswegen A “Bester v Calitz 1982 3 SA 864 (O)” 1982 De Jure 368.
Van Aswegen A “Concurrence of Contractual and Delictual Claims and the Determination of Delictual
Wrongfulness” 1994 THRHR 147.
Van Aswegen A “The Future of South African Contract Law” 1994 THRHR 448.
Van Aswegen A “The Implication of a Bill of Rights for the Law of Contract and Delict” 1995 SAJHR 50.
482 Law of Delict
Van Aswegen A “Policy Considerations in the Law of Delict” 1993 THRHR 171.
Van Aswegen A Die Sameloop van Eise om Skadevergoeding uit Kontrakbreuk en Delik (1991).
Van Aswegen A and Knobel JC “Sportbeserings en Toestemming” 1989 THRHR 586.
Van den Heever FP Aquilian Damages in South African Law (1944).
Van den Heever FP Breach of Promise and Seduction in South African Law (1954).
Van den Heever P and Carstens P Res Ipsa Loquitur and Medical Negligence: A Comparative Study (2011).
Van der Bijl C “Parental Criminal Responsibility for the Misconduct of Their Children: A Consideration”
2018 (21) PELJ 1.
Van der Linden J Regtsgeleerd, Practicaal en Koopmans Handboek (1806).
Van der Merwe A “Noodtoestand of Dwang: Onderskeibare Begrippe as Verweer by Moord” 1989
THRHR 453.
Van der Merwe CG “Reflections on the Concurrence of the Remedies in terms of the Reformed Pound
Legislation and the Actio de Pastu” 2014 Stell LR 612.
Van der Merwe CG Skuldlose Aanspreeklikheid vir Skade Veroorsaak deur Diere (1970).
Van der Merwe D Oorlas in die Suid-Afrikaanse Reg (1982).
Van der Merwe DP “Informele Strafvermindering by Moord” 1982 THRHR 140.
Van der Merwe J “Letting Time Fly – Common Law and the Waiver of Prescription” 2017 (Jan/Feb)
De Rebus 32.
Van der Merwe NJ Die Beskerming van Vorderingsregte uit Kontrak teen Aantasting deur Derdes (1959).
Van der Merwe NJ “Gerke NO v Parity Insurance Co Ltd 1966 3 SA 484 (W)” 1966 THRHR 381.
Van der Merwe NJ “Die Verband tussen Mens Rea en Skuld” 1976 SALJ 280.
Van der Merwe NJ and Olivier PJJ Die Onregmatige Daad in die Suid-Afrikaanse Reg (1989).
Van der Merwe SWJ and De Jager FJ “Products Liability: A Recent Unreported Case” 1980 SALJ 83.
Van der Schyff E “Die Prokureur, sy Regsplig en die Teleurgestelde Bevoordeeldes – ’n Nuwe Benade-
ring” 2002 Stell LR 454.
Van der Vyver JD “The Doctrine of Private-law Rights” in Strausss SA (ed) Huldigingsbundel vir
WA Joubert (1988) 201.
Van der Vyver JD “Constitutional Free Speech and the Law of Defamation” 1995 SALJ 572.
Van der Vyver JD “Regsubjektiwiteit" 1973 THRHR 266.
Van der Vyver JD and Joubert DJ Persone- en Familiereg (1991).
Van der Walt AJ The Law of Neighbours (2010).
Van der Walt AJ “Sport and Nuisance Law” 2010 SALJ 274.
Van der Walt CFC “ ’n Aantekening by ’n Stelling in Roux v Santam 1977 3 SA 261 (T)” 1978 THRHR 309.
Van der Walt CFC “ ’n Aantekening op ’n Aantekening na Aanleiding van Santam v Roux 1978 2 SA 856
(A)” 1979 THRHR 197.
Van der Walt CFC “Deliktereg deur J Neethling, JM Potgieter en PJ Visser” 1990 THRHR 140.
Van der Walt CFC “Deliktuele Aanspreeklikheid weens Nadeel deur Onbekende Lede van ’n Groep Toe-
gebring I: Probleemstelling, die Regsvergelykende Metode, Sekere Gebruikte Begrippe en die Menings
van Suid-Afrikaanse Skrywers” 1995 THRHR 421.
Van der Walt CFC “Hoe is die Aksie van Afhanklikes Afhanklik? – ’n Besinning na Aanleiding van ’n
Stelling in Masiba v Constantia Insurance Co Ltd 1982 4 SA 333 (K)” 1983 THRHR 436.
Van der Walt CFC Die Sommeskadeleer en die “once and for all”-Reël (1977).
Van der Walt CFC “Die Voordeeltoerekeningsreël – Knooppunt van Uiteenlopende Teorieë oor die Oog-
merk met Skadevergoeding” 1980 THRHR 1.
Van der Walt CFC “Wat word van die Nadeelvereiste by Bedrog en by Estoppel?” 1973 THRHR 386.
Van der Walt JC “Botes v Van Deventer 1966 3 SA 182 (A)” 1967 THRHR 70.
Van der Walt JC Delict: Principles and Cases (1979).
Van der Walt JC “Die Deliktuele Aanspreeklikheid van die Vervaardiger vir Skade Berokken deur middel
van sy Defekte Produk” 1972 THRHR 224.
Van der Walt JC “Minister van Polisie v Ewels 1975 3 SA 590 (A)” 1976 TSAR 101.
Van der Walt JC “Omissio: Die Munisipaliteit se Defekte Verkeersligte” 1993 TSAR 747.
Van der Walt JC “Oorlas: Grondslag van Aanspreeklikheid?” 1993 THRHR 645.
Van der Walt JC RAU Studiehandleiding: Onregmatige Daad (1983).
Van der Walt JC “Regsplig: Die Moeilike Vraag” 1991 TSAR 692.
Van der Walt JC Risiko-aanspreeklikheid uit Onregmatige Daad (1974).
Bibliography 483
Van der Walt JC “Skoktoediening: Wie sal die Aftreksom Maak?” in Strauss SA (ed) Huldigingsbundel vir
WA Joubert (1988) 247.
Van der Walt JC “Die Staat se Aanspreeklikheid vir Onregmatige Polisie-optrede” 1988 THRHR 515.
Van der Walt JC “Strict Liability in the South African Law of Delict” 1968 CILSA 49.
Van der Walt JC “Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 3 SA 394 (A)” 1978 THRHR 79.
Van der Walt JC “Van den Bergh v Parity Insurance Co Ltd 1966 2 SA 621 (W)” 1966 THRHR 244.
Van der Walt JC and Midgley JR Principles of Delict (2016).
Van der Walt JWG “Currency Fluctuation, Inflation and the Date with Regard to Which Delictual Damage
Must be Assessed – Towards a Clearer Understanding of the Issues Involved” 2002 SALJ 649.
Van der Walt JWG “Freedom of Expression and Defamation: A Reflection on Recent Developments” 1998
TSAR 198.
Van der Walt JWG “Skerwe uit ‘die’ Geschichte van die Leerstuk van Subjektiewe Regte” 1996
TSAR 521 626.
Van der Walt JWG “Truth and Public Interest in German Defamation Litigation against the Media” 1998
TSAR 483.
Van der Walt T “’n Grondwetlike Oorsig oor die Gebruik van Geweld tydens Arrestasie deur die Suid-
Afrikaanse Polisiediens” 2007 TSAR 96.
Van der Westhuizen JV Noodtoestand as Regverdigingsgrond in die Strafreg (1979).
Van der Westhuizen JV “S v Motleleni 1976 1 SA 403 (A); Chetty v Minister of Police 1976 2 SA 450 (N)”
1976 De Jure 371.
Van Heerden CM and Barnard J “Narrowing the Reach of the Strict Liability Provisions in Section 61 of
the Consumer Protection Act 68 0f 2008: Eskom Holdings Ltd v Halstead-Cleak 2017 1 SA 333 (SCA)”
2019 THRHR 444.
Van Heerden D “Die Invloed van die Grondwet op die Bewyslas in die Lasterreg: ’n Sivielprosesregtelike
Oorsig” 1996 TSAR 775.
Van Heerden HJO “Die Mededingingsprinsiep en die Boni Mores as Onregmatigheidsnorme by Onreg-
matige Mededinging” 1990 THRHR 155.
Van Heerden HJO “Skadevergoeding en Belastingpligtigheid” in Gauntlett JJ (ed) JC Noster: ’n Fees-
bundel (1979) 1.
Van Loggerenberg A “An Alternative Approach to Informed Consent” 2018 SALJ 55.
Van Loggerenberg A “The Tenability of the Constitutional Court’s Arguments in Support of the Possible
Recognition of Wrongful-Life Claims in South Africa” 2017 SALJ 162.
Van Niekerk C “Wrongful Life Claims: a Failure to Develop the Common Law?” 2012 Stell LR 527.
Van Oosten FFW “Die Aard en Rol van die Stelreël lex non cogit ad impossibilia in die Strafreg” 1986
THRHR 375.
Van Oosten FFW “Castell v De Greeff and the Doctrine of Informed Consent: Medical Paternalism ousted
in Favour of Patient Autonomy” 1995 De Jure 164.
Van Oosten FFW The Doctrine of Informed Consent in Medical Law (1989).
Van Oosten FFW “Dwaling ten Opsigte van die Kousale Verloop: Veroorsaking of Skuld?” 1976 De Jure 65.
Van Oosten FFW “Gevolgsveroorsaking en Gevolgsaanspreeklikheidsbegrensing in die Duitse Strafreg”
1983 THRHR 383, 1984 THRHR 57, De Jure 4 239, 1983 De Jure 36.
Van Oosten FFW Oorsaaklikheid by Moord en Strafbare Manslag (1981).
Van Oosten FFW “The Psychological Fault Concept Versus the Normative Fault Concept: Quo Vadis
South African Criminal Law?” 1995 THRHR 361 568.
Van Rensburg ADJ Juridiese Kousaliteit en Aspekte van Aanspreeklikheidsbegrensing by die Onregmatige
Daad (1970).
Van Rensburg ADJ “ ’n Kritiese Beskouing van die Conditio Sine Qua Non-Oorsaaklikheidsteorie soos
Uiteengesit deur ons Suid-Afrikaanse Skrywers” in Van Warmelo P (ed) Huldigingsbundel Daniel Pont
(1970) 384.
Van Rensburg ADJ “Minister van Polisie v Ewels 1975 3 SA 590 (A)” 1976 THRHR 175.
Van Rensburg ADJ “Nog Eens Conditio Sine Qua Non” 1977 TSAR 101.
Van Rensburg ADJ Normatiewe Voorsienbaarheid as Aanspreeklikheidsbegrensingsmaatstaf in die Pri-
vaatreg (1972).
Van Rensburg ADJ “Regsubjektiwiteit en die Regsubjek se Kompetensies” 1974 THRHR 94.
Van Wyk AJ “Die Bewys van Boni Mores” 1975 THRHR 383.
484 Law of Delict
Van Wyk C “Staatsaanspreeklikheid vir die Oordrag van Middelweerstandige Tuberkulose Buite die
Gevangenisopset” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldigings-
bundel vir Johann Neethling (2015) 497.
Van Wyk CW “Die Regte van Gevangenes met HIV” 1997 THRHR 699.
Van Wyk CW “Vigs, Boni Mores en Vertroulikheid” 1992 THRHR 116.
Van Zyl PR “S v Bailey 1982 4 SA 772 (A)” 1982 THRHR 437.
Van Zyl PR “S v Daniëls 1983 3 SA 275 (A)” 1983 THRHR 340.
Van Zyl PR “S v Zoko (AR 72/82 van 1982-09-30 NPA)” 1983 THRHR 100.
Venter F “Godsdienstige Oortuigings as Persoonlikheidseienskap: Kan die Staat Daarteenoor Neutraal
Staan?” in Potgieter JM, Knobel J and Jansen R-M (eds) Essays in Honour of/Huldigingsbundel vir
Venter N “Nalatige Veroorsaking van Serebrale Gestremdheid – ’n Regsmediese Kwessie” 2014 THRHR 263.
Verheij AJ “Compensation of Pretium Affectionis – a Constitutional Necessity?” 2004 THRHR 394.
Viljoen E The Legal Implications of Rugby Injuries (2003).
Visser CJ “The Revival of the Amende Honorable as Applied to Defamation by the Media” 2011 SALJ 327.
Visser CJ and Kennedy-Good C “The Emergence of a ‘Flexible’ Conditio Sine Qua Non Test to Factual
Causation?” 2015 Obiter 150.
Visser DP “Delict” in Du Bois F (ed) Wille’s Principles of South African Law (2007) 1091.
Visser DP “The Future of the Law of Delict” in Van Aswegen A (ed) Die Toekoms van die Suid-Afrikaanse
Privaatreg/The Future of South African Private Law (1994) 26.
Visser DP “Taming the Chimera: The Treatment of ‘Wrongfulness’ in South African Delict Scholarship?”
in Kuschke B and Cornelius S (eds) Ars Docendi et Scribendi. Essays in Honour of Johan Scott (2018) 194.
Visser PJ “Die Aard van Persoonlikheidsnadeel by Skending van die Fisies-psigiese Integriteit” 1981
THRHR 120.
Visser PJ “Action for Damages – Date of Arising of Cause of Action” 2003 THRHR 660.
Visser PJ “Aspects of the ‘Once and for All’ Rule in a Contractual Claim” 2002 THRHR 649.
Visser PJ “Conditio sine qua non” 1989 THRHR 558.
Visser PJ “Damages – Wrongful Arrest and Detention – Quantum of Damages” 2008 THRHR 172.
Visser PJ “Delictual Liability in Respect of Unlawful Initiation Practices at a Public School: When is the
State Liable?” 2004 THRHR 98.
Visser PJ “Denkmodelle oor Deliktuele Aanspreeklikheid” 1977 De Jure 382.
Visser PJ “Drittwirkung – Ideas on Some Differences between Germany and South Africa” 1997 Obiter 99.
Visser PJ “Dwaling in die Kousale Verloop by Opset” 1991 THRHR 601.
Visser PJ “Enkele Beginsels en Gedagtes oor die Horisontale Werking van die Nuwe Grondwet” 1997
THRHR 297.
Visser PJ “Enkele Gedagtes oor Deliktuele Eisoorsake en Toekomstige Skade” 2003 TSAR 723.
Visser PJ “Enkele Gedagtes oor die Moontlike Invloed van Fundamentele Regte ten aansien van die Fisies-
psigiese Integriteit op Deliktuele Remedies” 1997 THRHR 495.
Visser PJ “Enkele Gedagtes oor die Uitbreiding van die Vermoënsbegrip in die Skadevergoedingsreg”
2003 THRHR 652.
Visser PJ “Die Gebruik van Vorige Beslissings in Kwantumbepaling by die Vergoeding van Liggaamlike
Beserings” 1986 De Jure 207.
Visser PJ “Gedagtes oor Feitelike Kousaliteit in die Deliktereg” 2006 TSAR 581.
Visser PJ “Gedagtes oor Voordeeltoerekening by Nie-vermoënskade” 1994 THRHR 98.
Visser PJ “Geen Afsonderlike Eis om ‘Grondwetlike Skadevergoeding’ nie” 1996 THRHR 695.
Visser PJ “Geen Vergoeding vir Bewustelose Eiseres” 1996 THRHR 179.
Visser PJ “Genoegdoening in die Deliktereg” 1988 THRHR 468.
Visser PJ “Genoegdoening met Betrekking tot Nie-vermoënskade” 1983 TSAR 54.
Visser PJ “Geweld en Doodslag by Inhegtenisneming” 1987 De Jure 123.
Visser PJ “Gibson v Berkowitz 1996 4 SA 1024 (W)” 1997 De Jure 169.
Visser PJ “Jefta v Williams 1981 3 SA 678 (C)” 1981 THRHR 437.
Visser PJ Kompensasie en Genoegdoening volgens die Aksie weens Pyn en Leed (1980).
Visser PJ “Kompensasie van Nie-vermoënskade” 1983 THRHR 43.
Visser PJ “Kwantifisering van Skadevergoeding by Liggaamlike Beserings – Algemene Skade of Persoon-
likheidsnadeel (Nie-vermoɺnskade)” 2006 THRHR 692.
Visser PJ “Mabaso v Felix 1981 3 SA 865 (A)” 1982 THRHR 81.
Bibliography 485
Visser PJ “Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (HHA)” 2005 De Jure 183.
Visser PJ “Die Moontlike Toepassing van die Actio de Feris ten opsigte van die Oordrag van ‘Snotsiekte’
deur Blouwildebeeste” 2006 THRHR 303.
Visser PJ “Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1998 1 SA 657 (ZSC)” 1998 De Jure 175.
Visser PJ “A Note on Some Aspects of Prospective Damage and Factual Causation” 2004 Speculum
Juris 137.
Visser PJ “Rudman v Road Accident Fund 2003 2 SA 234 (HHA)” 2004 De Jure 378.
Visser PJ “Some Basic Principles on the Application of the Bill of Rights to the Law of Delict” 1998
De Jure 143.
Visser PJ “Some Remarks on the Relevance of the Bill of Rights in the Field of Delict” 1998 TSAR 529.
Visser PJ “Some Thoughts on Corporal Punishment (and the Lawful Use of Force) at Schools” 1999
THRHR 435.
Visser PJ “Some Thoughts on the Meaning of the Concepts ‘School’ and ‘Public School’ for the Purposes
of the Prohibition of Corporal Punishment and Unlawful Initiation Practices” 2007 TSAR 384.
Visser PJ “Staatsaanspreeklikheid weens Nalatige Optrede deur Peroneellid in Diens van Openbare Skool”
2006 THRHR 523.
Visser PJ “Toekenning van ‘Exemplary Damages’ in Geval van Laster” 1998 THRHR 150.
Visser PJ “Transnet Ltd v Sechaba Photoscan (Pty) Ltd 2005 1 SA 299 (HHA)” 2005 THRHR 510.
Visser PJ “Die Vergoedingsbedrag vir Pyn en Leed by Liggaamlike Beserings” 1981 De Rebus 438 476
523 579.
Visser PJ “Voordeeltoerekening by Pensioenvoordeel en by Ongeskiktheidspolis” 1997 THRHR 536.
Visser PJ “Voordeeltoerekening by Verlies van Verdienvermoɺ en Mediese Koste” 2007 THRHR 663.
Visser PJ “Voordele en Nadele weens die Dood van ’n Medebroodwinner” 1997 THRHR 715.
Visser PJ “Vrywillige Dronkenskap en Deliktuele Aanspreeklikheid in die Lig van S v Chretien 1981 1
SA 1097 (A)” 1981 THRHR 423.
Visser PJ “Zysset v Santam Ltd 1996 1 SA 273 (C)” 1996 De Jure 184.
Visser PJ and Potgieter JM Law of Damages through the Cases (2004).
Visser PJ and Potgieter JM “Skadevergoeding vir Gebruiksverlies: ’n Welkome Nuwe Ontwikkeling” 1994
THRHR 312.
Voet J Commentarius ad Pandectas (1698).
Von Jhering R Das Schuldmoment in römischen Privatrecht (1867).
Vorster JP “Actio libera in causa en Dronkenskap” 1984 TSAR 89.
Vorster JP “Misrepresentation” 17 LAWSA 261.
Vorster JP “Verwere gebaseer op Onwettige Gedrag van ’n Deliktuele Eiser” 1985 De Jure 1.
Wagener S “The Abandonment-Mismanagement Rule: Vicarious Liability for an Employee’s Simulta-
neous Commission and Omission” 2015 SALJ 270.
Wagener S “K v Minister of Safety and Security and the Increasing Blurred Line between Personal and
Vicarious Liability” 2008 SALJ 673.
Wagener S “The Relationship(s) Giving Rise to Vicarious Liability in South African Law” 2014 SALJ 178.
Wallis MJD “Revel Without a Cause – Delictual Liability after Lee?” 2019 SALJ 165.
Watney M “Dolus Eventualis Mik in die Verkeerde Rigting” 2016 TSAR 769.
Watney M “Die Grondwetlikheid van Inhegtenisneming Sonder Lasbrief onder die Soeklig” 2013 TSAR
576.
Watney M “’n Klemverskuiwing by Inhegtenisneming Sonder Lasbrief” 2009 TSAR 733.
Wessels AB “Alternatiewe Benaderings ten opsigte van Feitelike Kousaliteit in die Deliktereg” 2013 (3)
LitNet Akademies 68.
Wessels AB “The Expansion of the State’s Liability for Harm Arising from Medical Malpractice:
Underlying Reasons, Deleterious Consequences and Potential Reform” 2019 TSAR 1.
Wessels AB “Reconsidering the State’s Liability for Harm Arising from Crime: The Potential Develop-
ment of the Law of Delict” 2019 Stell LR 361.
Wessels AB “Reconsidering the Legal Position of Victims of Violent Crime: DN v MEC for Health 2014
(3) SA 49 (FB); MEC for Health v DN 2015 (1) SA 182 (SCA)” 2015 Obiter 539.
Wessels AB “The Role Played by Trust in Imposing Vicarious Liability on the State for the Intentionally
Committed Violent Crimes of Police Officers” 2018 TSAR 868.
Wessels AB “Wrongfulness in Pure Economic Loss Cases: The ‘Traditional Approach’ and the ‘New
Approach’” 2020 THRHR 151.
486 Law of Delict
Wessels AB and Wewege J “The State Liability Amendment Bill – Further Evaluation and Commentary”
2019 TSAR 484.
Wicke H “Vicarious Liability for Agents and the Distinctions Between Employees, Agents and Independ-
ent Contractors” 1998 THRHR 609.
Wicke H Vicarious Liability in Modern South African Law (1997).
Wicke H “Vicarious Liability: Not Simply a Matter of Legal Policy” 1998 Stell LR 21.
Wiehahn NE Boikot as Onregmatige Daad (1973).
Woolman S “Defamation, Application, and the Interim Constitution: An Unqualified and Direct Analysis
of Holomisa v Argus Newspapers Ltd ” 1996 SALJ 428.
Wunsh B “The Disappointed Beneficiary Revisited: The Decision of the House of Lords in White v Jones”
1996 SALJ 46.
Wunsh B “Aspects of the Contractual and Delictual Liability of Attorneys” 1988 TSAR 1.
Zimmermann R The Law of Obligations (1990).
Zitzke E “Constitutional Heedlessness and Over-Excitement in the Common Law of Delict’s Develop-
ment” 2015 Constitutional Court Rev 259.
Zitzke E “Critiquing the Komape Decision” 2019 TSAR 814.
Zitzke E “Realist Evolutionary Functionalism and Extra-constitutional Grounds for Developing the Com-
mon Law of Delict: A Critical Analysis of Heroldt v Wills 2013 2 SA 530 (GSJ)” 2016 THRHR 103.
Table of Cases
Page
A
A Becker and Co (Pty) Ltd v Becker .......................................................................................................... 375
A Gibb and Son (Pty) Ltd v Taylor and Mitchell Timber Supply Co (Pty) Ltd 1975 2 SA 457 (W) ..383, 385
A Neumann CC v Beauty Without Cruelty International 1986 4 SA 675 (C) .....................................389, 405
AA Mutual Insurance Association Ltd v Manjani 1982 1 SA 790 (A) ...............................................167, 169
AA Mutual Insurance Association Ltd v Nomeka 1976 3 SA 45 (A) .........................................202, 203, 204
AAIL (SA) v Muslim Judicial Council (Cape) 1983 4 SA 855 (C) ....................................................389, 405
Aaron’s Whale Rock Trust v Murray and Roberts Ltd 1992 1 S 652 (C) .................................................. 287
AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) ................... 12, 66, 93, 315, 316, 351, 356, 370, 457
Abakor Ltd v Crafcor Farming (Pty) Ltd t/a Riversdale Feedlot 2000 1 SA 973 (N) ................................ 381
Abbott v Bergman 1922 AD 53 ...........................................................................................................335, 341
Ables Groceries (Pty) Ltd v Di Ciccio 1966 1 SA 834 (T) ........................................................................ 445
Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 3 SA 531 (E) ....................................... 72, 73, 177, 179
ABSA Bank Bpk v ONS Beleggings BK 2000 4 SA 27 (SCA) ................................................................. 354
ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 1 SA 372 (SCA)................ 212, 320, 354, 448
ABSA Bank Ltd v Fouche 2003 1 SA 176 (SCA) ................................................ 11, 360, 362, 363, 367, 368
ABSA Bank Ltd v Mutual & Federal Insurance Co Ltd 2003 1 SA 635 (W) .....................................174, 354
Absa Brokers (Pty) Ltd v RMB Financial Services 2009 6 SA 549 (SCA) ............................................... 321
Ackermann v Loubser 1918 OPD 31.......................................................................................................... 274
Adams v Sunshine Bakeries 1939 CPD 72 ................................................................................................. 171
Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd 1977 4 SA 434 (W) ............................................. 378
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) .......................... 12, 35, 39, 42, 188,
233, 357, 359, 360, 361, 364, 365, 368
Administrateur, Transvaal v Van der Merwe 1994 4 SA 347 (A) ...................... 39, 40, 41, 42, 65, 66, 69, 70,
71, 73, 76, 88, 156, 195, 196
Administrator, Natal v Bijo 1978 2 SA 256 (N) ......................................................................................... 361
Administrator, Natal v Edouard 1990 3 SA 581 (A) ....................................................... 6, 7, 17, 80, 259, 312
Administrator-General SWA v Kriel 1988 3 SA 275 (A) ...........................................................284, 292, 301
Advtech Resourcing (Pty) Ltd t/a Communicate Personnel Group v Kuhn 2008 2 SA 375 (C) ................ 380
Aetiology Today CC t/a Somerset Schools v Van Aswegen 1992 1 SA 807 (W) ................ 48, 368, 375, 376,
377, 380, 381
Africa v Boothan 1958 2 SA 459 (A) ......................................................................................................... 136
Afrika v Metzler 1997 4 SA 531 (Nm) ..............................................................................................8, 21, 302
African Banking Corp v Goldbard 4 OR 402 ............................................................................................. 359
African Guarantee and Indemnity Co Ltd v Minister of Justice 1959 2 SA 437 (A) ................................. 448
African Life Assurance Co Ltd v NBS Bank Ltd 2001 1 SA 432 (W) ................................ 156, 174, 351, 354
African Life Assurance Society Ltd; African Guarantee and Indemnity Ltd; African Consolidated
Investment Corp Ltd v Robinson and Co Ltd and Central News Agency Ltd 1938 NPD 277 ............... 401
African National Congress v Democratic Alliance 2014 3 SA 608 (GJ) ............................................405, 412
African National Congress v Democratic Alliance 2014 5 SA 44 (EC) ..................................................... 412
Afriforum v Pienaar 2017 1 SA 388 (WCC) .......................................................................................403, 405
Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA) ......................................................................317, 318
Agriplas (Pty) Ltd v Andrag and Sons (Pty) Ltd 1981 4 SA 873 (C) ......................................................... 380
Albertus v Jacobs 1975 3 SA 836 (W) ....................................................................................................... 283
487
488 Law of Delict
Page
Alex v Noeske 1988 2 SA PH J23 (SWA) ................................................................................................. 177
Alfa Laval Agri (Pty) Ltd v Ferreira 2004 2 SA 68 (O) ............................................................................. 314
Allaclas Investments (Pty) Ltd v Milnerton Golf Club 2008 3 SA 134 (SCA) ...................................152, 153
Alliance Building Society v Deretitch 1941 TPD 203.........................................................................359, 365
Allie v Foodworld Stores Distribution Centre (Pty) Ltd 2004 2 SA 433 (SCA) ........................................ 410
Alston v Marine and Trade Insurance Co Ltd 1964 4 SA 112 (W) ............................. 229, 232, 242, 251, 252
Alves v LOM Business Solutions (Pty) Ltd [2011] 4 All SA 490 (GSJ);
2012 1 SA 399 (GSJ) ...............................................................................................................389, 397, 443
Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening)
1999 4 SA 1319 (SCA) ................................................................ 24, 44, 330, 332, 333, 334, 335, 337, 372
AN v MEC for Health, Eastern Cape [2019] 4 All SA 1 (SCA) .........................................................173, 226
Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 3 SA 42 (A) ....................................................... 441
Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 2 SA 363 (SCA) ............................................. 153
Anthony v Cape Town Municipality 1967 4 SA 445 (A) ........................................................................... 336
Appalsamy v Appalsamy 1977 3 SA 1082 (D) .......................................................................................... 378
April v Minister of Safety and Security [2008] 3 All SA 270 (SE) .....................................................141, 311
Areff v Minister van Polisie 1977 2 SA 900 (A) ........................................................................................ 396
Arendse v Roode 1989 1 SA 763 (C) ......................................................................................................... 394
Argus Printing and Publishing Co Ltd v Anastassiades 1954 1 SA 72 (W) ............................................... 409
Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 2 SA 1 (A) .......................................... 7, 400
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) .......... 44, 301, 390, 403,
405, 406, 407, 411
Arthur E Abrahams and Gross v Cohen 1991 2 SA 301 (C) ............................... 349, 351, 352, 353, 355, 357
Arthur v Bezuidenhout and Mieny 1962 2 SA 566 (A) .............................................................................. 191
Aruba Construction (Pty) Ltd v Aruba Holdings (Pty) Ltd 2003 2 SA 155 (C) ..........................308, 376, 380
Asinovsky v Asinovsky 1943 CPD 131 ..................................................................................................... 101
Athanassiou v Schultz 1956 4 SA 357 (W) ................................................................................................ 430
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T)...........5, 39, 368, 369,
373, 374, 375, 380, 381
Attorneys Fidelity Fund Board of Control v Intibane Mediates 2016 6 SA 415 (GP) ........................359, 367
Atwealth (Pty) Ltd v Kernick 2019 4 SA 420 (SCA) ..................................................................165, 175, 176
Aucamp v University of Stellenbosch 2002 4 SA 544 (C) .................. 156, 350, 351, 352, 357, 361, 362, 363
Autorama (Pvt) Ltd v Farm Equipment Auctions (Pvt) Ltd 1984 3 SA 483 (ZH) ..................................... 367
Aviation Insurance Co Ltd v Bates and Lloyd Aviation (Pty) Ltd 1982 4 SA 838 (T) .............................. 175
Avonmore Supermarket CC v Venter 2014 5 SA 399 (SCA) .......................................................71, 165, 181
Axiam Holdings Ltd v Deloitte & Touche 2006 1 SA 237 (SCA) ......................................................366, 367
Aymac CC v Widgerow 2009 6 SA 433 (W) ............................................................................................. 405
B
B v Minister of Correctional Services 1997 2 All SA 574 (C) ........................................................79, 86, 389
Baird v Pretorius 1996 2 SA 819 (O) ......................................................................................................... 408
Baker v Christiane 1920 WLD 14 .............................................................................................................. 417
Bakharia v Mia 1918 TPD 56 ..................................................................................................................... 112
Baldric Farms (Pty) Ltd v Wessels 1994 3 SA 425 (A) ............................................................................. 443
Bane v D’Ambrosi 2010 2 SA 539 (SCA) ..........................................................................................277, 285
Bank of Credit and Commerce Zimbabwe Ltd v UDC Ltd 1991 4 SA 82 (ZS) ......................................... 216
Bantjes v Rosenberg 1957 2 SA 118 (T) .................................................................................................... 125
Barclay v Road Accident Fund 2012 3 SA 94 (WCC) ................................................................275, 277, 285
Barclays Bank DCO v Straw 1965 2 SA 93 (O)......................................................................................... 207
Barclays National Bank Ltd v Traub and Kalk 1981 4 SA 291 (W) .......................................................... 453
Barkett v SA National Trust & Insurance Co Ltd 1951 2 SA 353 (A) ....................................................... 444
Barley v Moore [2017] 3 All SA 799 (WCC) ....................................................................... 75, 104, 321, 227
Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Mpy v Lebos 1985 4 SA 341 (T) ......................188, 350
Barnard v Minister of Police [2019] 3 All SA 481 (ECG) ..................................................................138, 139
Table of Cases 489
Page
Barnard v Santam Bank Bpk 1997 4 SA 1032 (T) ...................................................... 245, 247, 345, 347, 348
Barnard v Santam Bpk 1999 1 SA 202 (SCA) ........................................... 165, 180, 233, 246, 247, 342, 343,
345, 346, 347, 348
Barnard v Union and SWA Insurance Co Ltd 1971 1 SA 537 (E) ......................................................276, 336
Barry v SAR 1941 AD 168......................................................................................................................... 204
Basner v Trigger 1945 AD 22 .............................................................................................................143, 404
Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School
2008 5 SA 1 (SCA)................................................................................................................................. 454
Batohi v Roux [2019] 1 All SA 390 (KZD) ........................................................................................132, 227
Bay Passenger Transport v Franzen 1975 1 SA 269 (A) ............................................................................ 300
Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) ....... 11, 79, 313, 314, 359, 362, 363, 364, 367, 368
Bayer South Africa (Pty) Ltd v Viljoen 1990 2 SA 647 (A) ............... 192, 217, 229, 358, 359, 365, 383, 385
Beckenstrater v Rottcher and Theunissen 1955 1 SA 129 (A) ............................................................417, 418
Bedford v Suid-Kaapse Voogdy Bpk 1968 1 SA 226 (C) ............................................................................ 80
Bedfordview Town Council v Mansyn Seven (Pty) Ltd 1989 4 SA 599 (W) .............................................. 92
Bee v Road Accident Fund 2018 4 SA 366 (SCA).............................................. 264, 266, 269, 275, 283, 287
Beesham v Solidarity Party 1991 3 SA 889 (N) ......................................................................................... 402
Beiersdorf AG v Koni Multinational Brands (Pty) Ltd 2019 4 SA 553 (GJ) ............................................. 378
Bekker v Constantia Insurance Co Ltd 1983 1 PH J13 (E) ........................................................................ 217
Bekker v Du Toit 1974 3 SA 248 (O)......................................................................................................... 187
Bellstedt v SAR & H 1936 CPD 397.......................................................................................................... 171
Bellville Pharmacy CC v T Nortje (Pty) Ltd 2004 6 SA 442 (C) ............................................................... 380
Bennett v Minister of Police 1980 3 SA 24 (C) ................................................................... 124, 125, 126, 393
Bensimon v Barton 1919 AD 13 .........................................................................................................394, 395
Benson v De Beers Consolidated Mines Ltd 1988 1 SA 834 (NC) .....................................................188, 217
Bentley v McPherson 1999 3 SA 854 (E)................................................................................................... 397
Bergrivier Municipality v Van Ryn Beck 2019 4 SA 127 (SCA) ........... 35, 39, 65, 84, 87, 89, 106, 156, 165
Bernstein v Bester 1996 2 SA 751 (CC) ........................................................................ 22, 392, 421, 422, 423
Bester v Calitz 1982 3 SA 864 (O) ......................................................................... 36, 59, 124, 125, 126, 127,
128, 394, 404, 420
Bester v Commercial Union Versekeringsmaatskappy van SA Bpk
1973 1 SA 769 (A) ..................................................................................... 10, 17, 248, 291, 331, 342, 344,
345, 346, 347, 348
Beukes v Smith 2020 4 SA 51 (SCA) ................................................................................... 128, 132, 13, 173
Beurain h/a Toptrans Transport v Regering van die Republiek van Suid-Afrika
2001 4 SA 921 (O) ...................................................................................................... 75, 76, 181, 217, 229
Beverley v Mutual and Federal Insurance Co Ltd 1988 2 SA 267 (D)....................................................... 268
Bezuidenhout v AA Mutual Insurance Association 1978 1 SA 703 (A) .................................................... 174
Bezuidenhout v Eskom 2003 3 SA 83 (SCA)............................................................................................. 448
Bhayroo v Van Aswegen 1915 TPD 195.................................................................................................... 152
Bibi v Variawa 1965 4 SA 675 (N) ............................................................................................................ 394
Bickle v Joint Ministers of Law and Order 1980 2 SA 764 (R) ................................................................. 168
Birch v Johannesburg City Council 1949 1 SA 231 (T) ......................................................................396, 397
Bitou Municipality v Booysen 2011 5 SA 31 (WCC) ................................................................................ 390
Black v Joffe 2007 3 SA 171 (C)................................................................... 4, 41, 48, 51, 156, 160, 217, 409
Black v Joseph 1931 AD 132 ..............................................................................................................301, 303
Black v Kokstad Town Council 1986 4 SA 500 (N) ...........................................................................435, 458
Blackwell v Port Elizabeth Municipality 1978 2 SA 168 (SE)............................................................... 67, 76
Bloemfontein Town Council v Richter 1938 AD 195 .................................................................136, 442, 448
Blore v Standard General Insurance Co Ltd 1972 2 SA 89 (O) ................................................................... 82
Blou v Rose Innes 1914 TPD 102 .............................................................................................................. 125
Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd 2001 3 SA 884 (SCA) ................................... 378
Blumenthal v Shore 1948 3 SA 671 (A) ..................................................................................................... 404
Blyth v Van den Heever 1980 1 SA 191 (A) ....................................................................... 173, 175, 269, 291
BOE Bank Ltd v Ries 2002 2 SA 39 (SCA) .......................................................... 11, 349, 350, 351, 353, 357
Bogoshi v National Media Ltd 1996 3 SA 78 (W) .......................................... 20, 21, 399, 407, 410, 415, 416
Boka Enterprises (Pvt) Ltd v Manatse 1990 3 SA 626 (ZH) ............................................... 390, 391, 392, 451
490 Law of Delict
Page
Boland Bank Bpk v Bellville Munisipaliteit 1981 2 SA 437 (C) ............................................................... 397
Bolton v Stone 1951 AC 850 ...................................................................................................................... 179
Bond Equipment (Pretoria) (Pty) Ltd v ABSA Bank Ltd 1999 2 SA 63 (W)............................................. 354
Bonitas Medical Aid Fund v Volkskas Bank Ltd 1992 2 SA 42 (W) ..................................................231, 234
Bonthuys v Visagie 1931 CPD 75 .............................................................................................................. 186
Boots Co (Pty) Ltd v Somerset West Municipality 1990 3 SA 216 (C) ..................................................... 371
Booysen v Minister of Home Affairs 2001 4 SA 485 (CC).......................................................................... 22
Booysen v Minister of Safety and Security [2015] ZAECGHC 56 ............................................................ 450
Booysen v Minister of Safety and Security 2018 6 SA 1 (CC) .................................................................. 450
Bophuthatswana Transport Holdings (Edms) Bpk v Matthysen Busvervoer (Edms) Bpk
1996 2 SA 166 (A) ................................................................................................................................. 380
Borgin v De Villiers 1980 3 SA 556 (A) ..................................................................... 405, 406, 407, 408, 414
Bosch v Parity lnsurance Co Ltd 1964 2 SA 449 (W) ................................................................................ 275
Boshoff v Boshoff 1987 2 SA 694 (O) ..........................................................................................95, 129, 134
Boshoff v Prinsloo 1973 1 PH J16 (T) ....................................................................................................... 175
Boswell v Minister of Police 1978 3 SA 268 (E) ........................................ 253, 291, 300, 342, 345, 348, 393
Boswell v Union Club of SA (Durban) 1985 2 SA 162 (D) ..........................................................15, 163, 420
Botes v Potchefstroom Municipality 1941 TPD 149 .................................................................................. 435
Botes v Van Deventer 1966 3 SA 182 (A) ..................................................................................177, 183, 447
Botha v Andrade 2009 1 SA 259 (SCA) .................................................................................................... 153
Botha v Lues 1981 1 SA 687 (O) ........................................................................................................138, 396
Botha v Lues 1983 4 SA 496 (A) ............................................................................................................... 138
Botha v Marais 1974 1 SA 44 (A) .......................................................................................................402, 403
Botha v Minister of Transport 1956 4 SA 375 (W) .................................................................................... 291
Botha v Minister van Veiligheid en Sekuriteit 2003 6 SA 568 (T) ..................... 21, 77, 78, 85, 174, 187, 224
Botha v Mthiyane 2002 1 SA 289 (W) ................................................................................ 399, 400, 405, 408
Botha v Pretoria Printing Works Ltd 1906 TS 710..................................................................................... 393
Botha v Rondalia Versekeringskorporasie van SA Bpk 1978 1 SA 996 (T) ...............................274, 283, 371
Boucher v Du Toit 1978 3 SA 965 (O)....................................................................................................... 453
Bouttell v Road Accident Fund 2018 5 SA 99 (SCA) ................................................................................ 285
Bowden v Rudman 1964 4 SA 686 (N) ...................................................................................................... 441
Bowkers Park Komga Cooperative Ltd v SAR and H 1980 1 SA 91 (E) ................................................... 205
Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 2 SA 393 (T) ................ 42, 46, 189, 350, 351,
352, 353, 359, 360
Braamfontein Food Centre v Blake 1982 3 SA 248 (T) ............................................................................. 453
Brandon v Minister of Law and Order 1997 3 SA 68 (C) .............................................................17, 311, 396
Brauns v Shoprite Checkers (Pty) Ltd 2004 6 SA 211 (E) .................................................. 180, 183, 184, 201
Bredell v Pienaar 1924 CPD 203 ................................................................................................................ 388
Breede River (Robertson) Irrigation Board v Brink 1936 AD 359............................................................. 136
Brenner v Botha 1956 3 SA 257 (T) ..................................................................................................8, 15, 420
Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 2 SA 455 (W) ......... 47, 48, 148,
150, 375, 376, 377, 380
Brian Boswell Circus (Pty) Ltd v Boswell-Wilkie Circus (Pty) Ltd 1985 4 SA 466 (A) ........................... 379
Bridgman NO v Witzenberg Municipality 2017 3 SA 435 (WCC) ......... 65, 70, 106, 181, 227, 303, 325, 393
Bristow v Lycett 1971 4 SA 223 (RA) ..........................................................................................72, 439, 440
British Transport Commission v Gourley 1956 AC 185 (HL) ................................................................... 276
Broderick Properties (Pty) Ltd v Rood 1964 2 SA 310 (T) ........................................................................ 174
Brooks v Minister of Safety and Security 2009 2 SA 94 (SCA) ............. 42, 93, 325, 332, 333, 336, 342, 351
Brooks v The Minister of Safety and Security [2007] 4 All SA 1389 (C);
2008 2 SA 397 (C) ............................................................................................... 51, 66, 333, 335, 351, 353
Broude v McIntosh 1998 3 SA 60 (SCA) ................................................................................................... 190
Brouze v Wenneni Investments (Pty) Ltd [2015] 4 All SA 543 (SCA)................... 39, 65, 106, 356, 360, 367
Brown v Director of Public Prosecutions 2009 1 SACR 218 (C) ........................................................142, 149
Brown v Hoffman 1977 2 SA 556 (NC) .............................................................................. 243, 244, 248, 250
Brown v Hunt 1953 2 SA 540 (A) .............................................................................................................. 186
Brown v Laing 1940 EDL 75 ..................................................................................................................... 436
Bruwer v Joubert 1966 3 SA 334 (A) ............................................................................................................. 7
Table of Cases 491
Page
BS v MS 2015 6 SA 356 (GP) ................................................................................................... 40, 70, 72, 106
Bull v Taylor 1965 4 SA 29 (A) ..................................................................................................311, 394, 428
Buls v Tsatsarolakis 1976 2 SA 891 (T) ..................................................................................................... 175
Burger v Administateur, Kaap 1990 1 SA 483 (C)..................................................................................... 134
Burger v President Versekeringsmaatskappy Bpk 1994 3 SA 68 (T)......................................................... 274
Burger v Union National South British Insurance Co Ltd 1975 4 SA 72 (W) ........................................... 269
Burns v National Employers General Insurance Co Ltd 1988 3 SA 355 (C) ............................................. 257
Buthelezi v Ndaba 2013 5 SA 437 (SCA) ...........................................................................................173, 191
Buthelezi v Poorter 1975 4 SA 608 (W) ................................................................................................. 8, 302
Butise v City of Johannesburg 2011 6 SA 196 (GSJ) ............................................................ 67, 68, 69, 74, 80
Butler v Durban Corporation 1936 NPD 139 ......................................................................................279, 280
Butters v Cape Town Municipality 1993 3 SA 521 (C) ...................................................... 179, 181, 186, 203
Butters v Cape Town Municipality 1996 1 SA 473 (C) ............................................................................... 74
Byrne v Masters Squash Promotions CC 2010 1 SA 124 (GSJ) .........................................................407, 408
C
C v C 1958 3 SA 547 (SR) ......................................................................................................................... 323
C v Minister of Correctional Services 1996 4 SA 292 (T) .......................................... 133, 163, 394, 424, 425
CA v GS [2016] 4 All SA 386 (WCC) .................................................................. 70, 165, 181, 182, 183, 207
Campbell Scientific Africa (Pty) Ltd v Simmers (2016) 37 ILJ 116 (LAC) .............................................. 420
Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA) ......... 11, 39, 41, 46, 93,
97, 100, 174, 194, 196, 234, 236, 239, 240,
247, 248, 251, 356, 361, 362, 363, 366
Cape Metropolitan Council v Graham 2001 1 SA 1197 (SCA) ............................................................62, 156
Cape Town City v Kotzé 2017 1 SA 593 (WCC)........................................................................393, 424, 425
Cape Town Council v Benning 1917 AD 315 ............................................................................................ 442
Cape Town Council v Jacobs 1917 AD 615 ............................................................................................... 270
Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) .............. 39, 40, 44, 45, 46, 53, 64, 66, 67, 69,
75, 76, 156, 165, 168, 195, 196
Cape Town Municipality v Butters 1996 1 SA 473 (C) .......................................... 68, 72, 179, 181, 183, 184
Cape Town Municipality v Paine 1923 AD 207..................................................................................169, 188
Capital Assurance Co Ltd v Richter 1963 4 SA 901 (A) ............................................................................ 291
Capital Estate and General Agencies (Pty) Ltd v Holiday Inns Inc 1977 2 SA 916 (A) .....................378, 379
Card v Sparg 1984 4 SA 667 (E) .................................................................................................129, 394, 395
Carelse v City of Cape Town [2019] 2 All SA 125 (WCC) ............................................................61, 65, 166
Carelse v Estate De Vries (1906) 23 SC 532 .......................................................................................394, 395
Carelse v Van der Schyff 1928 CPD 91 ....................................................................................................... 15
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening)
2001 4 SA 938 (CC) ................................................................................. 18, 19, 23, 24, 42, 43, 45, 65, 66,
76, 85, 86, 87, 225
Carmichele v Minister of Safety and Security 2001 1 SA 489 (SCA).......................................................... 76
Carmichele v Minister of Safety and Security 2003 2 SA 656 (C)............................................................... 76
Carter and Co (Pty) Ltd v McDonald 1955 1 SA 202 (A) .......................................................................... 455
Case and Curtis v Minister of Safety and Security 1996 2 SA 617 (CC) ................................................... 422
Casely v Minister of Defence 1973 1 SA 630 (A) ...............................................................................259, 271
Castell v De Greef 1993 3 SA 501 (C) ....................................................................................................... 173
Castell v De Greef 1994 4 SA 408 (C) ................................................................................................132, 133
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 3 SA 938 (SCA) ........................... 378
Cathkin Park Hotel v JD Makesch Architects 1993 2 SA 98 (W) .........................................................79, 313
Caxton Ltd v Reeva Forman (Pty) Ltd 1990 3 SA 547 (A) ................................................. 285, 381, 388, 390
Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) ................... 400, 402, 403, 404, 405, 420, 421, 426
Cele v Minister of Safety and Security [2007] 3 All SA 365 (D) ................................................................. 50
Central South African Railways v Adlington & Co 1906 TS 964 .............................................................. 168
Chadwick v Faku (1890) 11 NLR 174 ....................................................................................................... 401
Charewa v Road Accident Fund 2018 6 SA 551 (GJ) .................................................................184, 187, 188
Charles v Minister of Safety and Security 2007 2 SACR 137 (W) .............................................139, 142, 149
492 Law of Delict
Page
Chartaprops 16 (Pty) Ltd v Silberman 2009 1 SA 265 (SCA)........................................... 71, 74, 82, 189, 455
Chawanda v Zimnat Insurance Co Ltd 1990 1 SA 1019 (ZH) ................................................................... 334
Checkers Supermarket v Lindsay 2009 4 SA 459 (SCA) ......................................................................71, 165
Chetcuti v Van der Wilt 1993 4 SA 397 (Tk) ......................................................................................... 8, 302
Chetty v Italtile Ceramics Ltd 2013 3 374 (SCA) ...................................................................................... 441
Chetty v Minister of Police 1976 2 SA 450 (N) ............................................................................27, 108, 113
Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd 2013 2 SA 213 (SCA) ............................23, 308
Chowan v Associated Motor Holdings 2018 4 SA 145 (GJ) ....... 75, 90, 91, 92, 351, 355, 356, 357, 404, 420
Christian Education SA v Minister of Education 1999 4 SA 1092 (SE) .............................................145, 146
Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) ...................................... 146
Christian Lawyers Association of SA v Minister of Health 1998 4 SA 1102 (W) ....................................... 19
Church of Scientology in SA Incorporated Association not for gain v Reader’s Digest
Association SA (Pty) Ltd 1980 4 SA 313 (C) ........................................................................................ 389
Churchill v Premier, Mpumalanga 2020 2 SA 309 (MN) .......................................................................... 305
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 2 SA 447 (SCA) .....................................383, 384, 386
City of Salisbury v King 1970 2 SA 528 (RA) ........................................................................................... 183
Claassen v Minister of Justice and Constitutional Development 2010 6 SA 399 (WCC) ...................143, 397
Claassen v Van der Watt 1969 3 SA 68 (T) ............................................................................................... 394
Clair v Port Elizabeth Harbour Board 1884–1887 EDC 311 ...................................................................... 300
Clairwood Motor Transport Co (Pty) Ltd v Akal & Sons 1959 1 SA 183 (N) ........................................... 187
Clan Syndicate (Pty) Ltd v Peattie 1986 2 SA 791 (A) .............................................................................. 190
Claridge v Francken 1885 2 SAR 66 .......................................................................................................... 426
Clark v Welsh 1975 4 SA 469 (W) ............................................................................................................. 170
Clarke v Hurst 1992 4 SA 630 (D) ..................................................................... 39, 42, 44, 45, 46, 55, 58, 59,
65, 107, 231, 233, 234
Clifford v Farinha 1988 4 SA 315 (T) .................................................................................................160, 441
Clinton-Parker and Dawkins v Administrator, Transvaal 1996 2 SA 37 (W) ............ 231, 233, 234, 235, 236,
248, 249, 251, 253, 291, 343,
345, 346, 347, 348
Cloete v Edel Investments (Pty) Ltd 2019 5 SA 486 (WCC) ..................................................................... 284
Cloete v Maritz 2013 5 SA 448 (WCC) ..............................................................................................311, 428
Cloete v Van Meyeren 2019 2 SA 490 (ECP) ............................................................................................ 437
Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd [2015] 2 All SA 162 (GJ) ................... 379
Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd 2016 6 SA 1 (SCA) .....................378, 379
Coetzee and Sons v Smit 1955 2 SA 553 (A) ............................................................................................. 436
Coetzee v ABSA Bank Bpk 1997 4 SA 85 (T)........................................................................................... 354
Coetzee v Fick 1926 TPD 213 ...................................................................................................................... 92
Coetzee v Fourie 2004 6 SA 485 (SCA) .....................................................................................110, 166, 201
Coetzee v Guardian National Insurance Co Ltd 1993 3 SA 388 (W) ......................................................... 281
Coetzee v National Commissioner of Police 2011 2 SA 227 (GNP) .......................................................... 142
Coetzee v SAR & H 1933 CPD 565 ........................................................................................................... 269
Coetzer v AA Onderlinge Assuransie Assosiasie 1983 3 SA 774 (A) ....................................................... 169
Cohen v Benjamin (1885) 4 SC 99 ............................................................................................................. 397
Cole’s Estate v Oliver 1938 CPD 464 ........................................................................................................ 398
Collins v Administrator, Cape 1995 4 SA 73 (C) .................................................... 7, 294, 295, 296, 298, 302
Colman v Dunbar 1933 AD 141 ..........................................................................................................187, 441
Colonial Mutual Life Assurance Society Ltd v MacDonald 1931 AD 412 .........................................446, 453
Columbus Joint Venture v ABSA Bank Ltd 2000 2 SA 491 (W) ....................... 156, 174, 200, 204, 209, 354
Columbus Joint Venture v ABSA Bank Ltd 2002 1 SA 90 (SCA) ............................................................ 354
Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd
1972 4 SA 185 (T) ..................................................................................................... 11, 349, 383, 385, 386
Combrink v Koch 1946 NPD 512 .............................................................................................................. 311
Commercial Union Assurance Co of SA Ltd v Mirkin 1989 2 SA 584 (C) ............................................... 331
Commissioner of Customs and Excise v Bank of Lisbon International 1994 1 SA 205 (N) ...................... 307
Commissioner, SARS v TFN Diamond Cutting Works (Pty) Ltd 2005 5 SA 113 (SCA) ..................449, 451
Commissioner, South African Revenue Service v ABSA Bank Ltd
2003 2 SA 96 (W)............................................................................................ 307, 351, 353, 354, 355, 356
Table of Cases 493
Page
Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 2 SA 520 (W) ....................40, 82, 83, 188
Concord Insurance Co Ltd v Oelofsen 1992 4 SA 669 (A) ........................................................................ 234
Constantia Versekeringsmaatskappy Bpk v Victor 1986 1 SA 601 (A) ......................................275, 334, 335
Cooper and Nephews v Visser 1920 AD 111 ............................................................................................. 383
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) ...................11, 39, 40,
41, 42, 49, 52, 59, 188, 349, 350, 351,
352, 353, 354, 355, 369
Correira v Berwind 1986 4 SA 60 (ZH) ..................................................................................................... 313
Cosmos (Pvt) Ltd v Phillipson 1968 3 SA 121 (R) .................................................................................... 442
Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy 2003 4 SA 34 (SCA)................... 449
Coughlan NO v Road Accident Fund 2015 4 SA 1 (CC) ........................................................................... 276
Couldridge v Eskom 1994 1 SA 91 (SE) .............................................................................................408, 413
Coulson v Rapport Uitgewers (Edms) Bpk 1979 3 SA 286 (A) ................................................................. 404
Country Cloud Trading CC v MEC, Department of Infrastructure Development
2014 2 SA 214 (SCA)............................................................... 39, 41, 42, 48, 49, 73, 93, 95, 99, 102, 105,
161, 189, 194, 356, 359, 368, 373
Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng
2015 1 SA 1 (CC) ............................................................................... 12, 39, 48, 19, 86, 87, 104, 161, 194,
232, 313, 314, 351, 355, 356, 368, 369, 372, 373
Cowell v Friedman and Co (1888) 5 HCG 22 .....................................................................................436, 437
Crafford v SANRAL Ltd (215/2012) [2013] SASCA 8 ............................................................................. 193
Crawford v Albu 1917 AD 102 ...........................................................................................................405, 412
Credé v Standard Bank of SA Ltd 1988 4 SA 786 (E) ................................................................217, 364, 365
Cremer v Afdelingsraad, Vryburg 1974 3 SA 252 (NC) .............................................................................. 75
Creydt-Ridgeway v Hoppert 1930 TPD 664 .......................................................................................342, 343
Crots v Pretorius 2010 6 512 (SCA) ........................................................................................................... 441
Crous v Jaffe Bros 1921 OPD 2 ................................................................................................................. 438
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) ........... 93, 98, 99, 117, 118,
119, 120, 121, 122, 182, 195
CS v Smit 1963 4 SA 824 (G) ...................................................................................................................... 30
Cuba NO v Holoquin Global (Pty) Ltd [2016] 4 All SA 77 (GJ) ........................................................367, 368
Culverwell v Beira 1992 4 SA 490 (W) ..................................................................................................... 425
Currie Motors (Pretoria) (Pty) Ltd v Motor Union Ins Co Ltd 1961 3 SA 872 (T) .................................... 362
Custom Credit Corporation (Pty) Ltd v Shembe 1972 3 SA 462 (A) ......................................................... 270
D
D & D Deliveries (Pty) Ltd v Pinetown Borough 1991 3 SA 250 (D) ................................................271, 442
D’Ambrosi v Bane 2006 5 SA 121 (C) ...............................................................................................274, 277
D’Oliveira v Road Accident Fund 2019 2 SA 247 (WCC) ................................................. 277, 282, 284, 285
Da Silva v Coutinho 1971 3 SA 123 (A) ......................................................................... 91, 92, 217, 233, 279
Da Silva v Otto 1986 3 SA 538 (T) ............................................................................................. 436, 437, 440
Damba v AA Mutual Insurance Association Ltd 1981 3 SA 740 (E) ......................................................... 158
Daniels v Minister of Defence 2016 6 SA 561 (WCC) ................................................... 78, 85, 173, 175, 215
Dantex Investment Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A) ................................. 12, 102, 159, 160,
162, 163, 369, 370, 372
Darson Construction (Pty) Ltd v City of Cape Town 2007 4 SA 488 (C) .......................................22, 78, 144
Davel v Swanepoel 1954 1 SA 383 (A)...................................................................................................... 395
Davies v Crossling 1935 WLD 107 ............................................................................................................ 300
Davies v Mann (1842) 10 M & W 546 ....................................................................................................... 199
Davis v Lockstone 1921 AD 153................................................................................................................ 442
Dawood; Shalabi; Thomas v Minister of Home Affairs 2000 3 SA 936 (CC) ............................................. 20
De Beer v Sergeant 1976 1 SA 246 (T) ........................................................................................................ 79
De Bruyn v Minister van Vervoer 1960 3 SA 820 (O) ................................................................158, 184, 301
De Charmoy v Day Star Hatchery (Pty) Ltd 1967 4 SA 188 (D) ............................................................... 152
De Flamingh v Pakendorf; De Flamingh v Lake 1979 3 SA 676 (T) ......................................................... 409
De Fourd v Town Council of Cape Town (1898) 15 SC 399 ..................................................................... 424
494 Law of Delict
Page
De Freitas v Jonopro (Pty) Ltd 2017 2 SA 450 (GJ) .................................................................................. 378
De Harde v Protea Assurance Co Ltd 1974 2 SA 109 (E) ...................................................................335, 342
De Jager v Grunder 1964 1 SA 446 (A) 449 .............................................................................................. 267
De Jager v Taaf Hamman Holdings (Edms) Bpk 1993 1 SA 281 (O) .................................................181, 455
De Jongh v Du Pisanie NO 2005 5 SA 457 (SCA) ..................................................... 269, 284, 298, 299, 300
De Klerk v ABSA Bank Ltd 2003 4 SA 315 (SCA)....................................................................262, 269, 287
De Klerk v Du Plessis 1995 2 SA 40 (T).........................................................................................19, 21, 399
De Klerk v Minister of Justice 2018 2 SACR 28 (SCA) .....................................................................137, 397
De Klerk v Minister of Police 2019 12 BCLR 1425 (CC) ..................................... 50, 97, 137, 216, 217, 232,
234, 240, 248, 319, 397
De Kock v Gafney 1914 CPD 377 ............................................................................................................. 359
De La Rey’s Transport (Edms) Bpk v Lewis 1978 1 SA 797 (A) .............................................................. 287
De Lange v Minister of Water and Environmental Affairs 2019 4 SA 445 (SCA) .................................... 318
De Maayer v Serebro; Serebro v Road Accident Fund 2005 5 SA 588 (SCA) ...................................179, 192
De Pinto v Rensea lnvestments (Pty) Ltd 1977 4 SA 529 (A) .................................................................... 279
De Reuk v Director of Public Prosecutions, Witwatersrand Local Division 2004 1 SA 406 (CC) ............ 422
De Stadler v Cramer 1922 CPD 16............................................................................................................. 395
DE v RH 2015 5 SA 83 (CC) ......................................................................................................8, 16, 39, 428
De Vaal v Messing 1938 TPD 34 ........................................................................................................325, 342
De Vos v SA Eagle Versekeringsmaatskappy Bpk 1984 1 SA 724 (O) ..................................................... 267
De Vos v SA Eagle Versekeringsmaatskappy Bpk 1985 3 SA 447 (A) ......................................257, 266, 330
De Waal v Ziervogel 1938 AD 112 .....................................................................................................407, 408
De Welzim v Regering van KwaZulu 1990 2 SA 915 (N) ..................................................................445, 447
Deacon v Planet Fitness Holdings (Pty) Ltd 2016 2 SA 236 (GP) .......................................... 39, 98, 196, 318
Deedat v Muslim Digest 1980 2 SA 922 (D).............................................................................................. 404
Delange v Costa 1989 2 SA 857 (A) ...................................................................................................405, 421
Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar 2010 5 SA 499 (SCA) ..............11, 66, 93,
354, 355, 356, 361, 362, 363
Delport v Mutual and Federal Ins Co Ltd 1984 3 SA 191 (D) ................................................................... 323
Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 6 SA 185 (SCA)............. 390, 403, 405, 411, 412
Demmers v Wyllie 1980 1 SA 835 (A) ...................................................................................................... 403
Democratic Alliance v African National Congress 2015 3 BCLR 298 (CC) ............................................. 412
Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) .................... 16, 18, 20, 22, 23,
101, 255, 420, 421
Dendy v University of Witwatersrand 2007 5 SA 382 (SCA) .............................................................101, 421
Deneys Reitz v SA Commercial, Catering and Allied Workers Union
1991 2 SA 685 (W)............................................................................................... 41, 44, 46, 148, 149, 150,
377, 381, 382, 393
Department of Health: Western Cape v Oppelt (238/2013) [2014] ZASCA 135 ....................................... 227
Derry v Peek (1889) 14 AC 337 ..........................................................................................................358, 367
Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T)...................... 41, 45, 46, 49, 77, 79, 86,
156, 195, 358, 360, 361, 362
Dews v Simon’s Town Municipality 1991 4 SA 479 (C) ...................................................... 72, 135, 136, 176
Deysel v Karsten 1994 1 SA 447 (A) .................................................................................. 179, 181, 183, 440
Deysel v Santam Insurance Co Ltd: Corbett and Buchanan I..................................................................... 299
Deysel v Truter 2005 5 SA 598 (C) ............................................................................................................ 173
Dhlamini v MMF 1992 1 SA 802 (T) ..................................................................................................286, 287
Dhlamini v Protea Assurance Co Ltd 1974 4 SA 906 (A) ...................................................................261, 286
Dhlamini v Protea Furnishers (Natal) (Pty) Ltd 1982 2 SA 50 (N) ............................................................ 371
Dhlomo v Natal Newspapers (Pty) Ltd 1988 4 SA 63 (D) ..............................................................5, 389, 390
Diageo North America Inc v DGB (Pty) Ltd [2006] 2 All SA 529 (T) ...................................................... 378
Dias v Petropulos 2018 6 SA 149 (WCC) ........................................................... 153, 219, 226, 227, 248, 442
Dickens v Lake (1906) 23 SC 201 .............................................................................................................. 123
Dickinson v Galante 1949 3 SA 1034 (A) .................................................................................................. 301
Dickson and Co v Levy 11 SC 33 .............................................................................................................. 359
Die Bergkelder v Delheim Wines (Pty) Ltd 1980 3 SA 1171 (C) .......................................................378, 379
Table of Cases 495
Page
Die Minister van Justisie: In re S v Van Wyk, Ex parte 1967 1 SA 488 (A)..............................109, 111, 113,
114, 115, 116, 122
Die Spoorbond v SAR; Van Heerden v SAR 1946 AD 999....................................................................... 390
Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 3 SA 159 (T) ............................. 153
Dikoko v Mokhatla 2006 6 SA 235 (CC) ................................................................ 7, 301, 302, 303, 308, 407
Dippenaar v Shield Insurance Co Ltd 1979 2 SA 904 (A) .......................................... 266, 269, 274, 276, 285
Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ) ................................................ 19, 21, 374, 375, 380
Dithipe v Ikageng Town Council 1992 4 SA 748 (T) ................................................................................ 451
Dladla v Minister of Defence 1988 3 SA 743 (W) ..................................................................................... 271
DN v MEC for Health, Free State 2014 3 SA 48 (FB) ............................................................................... 305
Dodd v Estate Cloete 1971 1 SA 376 (E) ................................................................................................... 175
Domingo v Minister of Safety and Security [2013] ZAECGHC 54 ....................................................138, 397
Donono v Minister of Prisons 1973 4 SA 259 (C) ..................................................................................... 398
Doornbult Boerdery (Edms) Bpk v Bayer South Africa (Edms) Bpk en Ciba-Geigy (Edms) Bpk
case no 1 5452/1976 (T) ......................................................................................................................... 383
Dorland v Smits 2002 5 SA 374 (C) ............................................................................................148, 152, 153
Dowling v Diocesan College 1999 3 SA 847 (C) ....................................................................................... 445
Drake Flemmer & Orsmond Inc v Gajjar NO 2018 3 SA 353 (SCA) .................................................267, 268
Drifters Adventure Tours CC v Hircock 2007 2 SA 83 (SCA) .................................................................. 317
Drummond v Searle (1879) 9 Buch 8 ......................................................................................................... 437
DS v VW 2014-10-02 case no 12537/2012 (GP) ........................................................................428, 429, 431
Du Bois v MVA Fund 1992 4 SA 368 (T) ..................................................................................292, 301, 330
Du Pisanie v Rent-a-Sign (Pty) Ltd 2001 2 SA 894 (SCA) .................................................................166, 180
Du Plessis v De Klerk 1996 3 SA 850 (CC) ....................................................................................42, 44, 399
Du Plessis v Faul 1985 2 SA 85 (NC) .................................................................................................453, 454
Du Plessis v Media 24 t/a Daily Sun 2016 3 SA 178 (GP).......................... 302, 303, 400, 404, 405, 409, 410
Du Plessis v Nel 1961 2 SA 97 (GW) ........................................................................................................ 283
Du Plessis v Road Accident Fund 2004 1 SA 359 (SCA) ............................................... 20, 24, 333, 338, 372
Du Plessis v Semmelink 1976 2 SA 500 (T) .............................................................................................. 367
Du Plessis v Van Aswegen 1931 TPD 332..........................................................................................118, 120
Du Plooy v Venter Joubert Inc 2013 2 SA 522 (NCK) .............................................................................. 268
Du Preez v Conradie 1990 4 SA 46 (BG)............................................................................................145, 146
Du Preez v Swiegers 2008 4 SA 627 (SCA) ........................................... 63, 98, 165, 174, 315, 350, 354, 356
Du Toit v General Accident Insurance Co of SA Ltd 1988 3 SA 75 (D) ................................................... 274
Du Toit v Minister of Posts and Telegraphs 1936 TPD 248....................................................................... 459
Dukhi v Culverwell 1903 NLR 21.............................................................................................................. 117
Dulieu v White and Sons 1901 2 KB 669................................................................................................... 253
Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd
1968 1 SA 209 (C) ........................................................................................................... 368, 374, 375, 380
Duncan v Minister of Law and Order 1986 2 SA 805 (A) .................................................. 138, 139, 142, 398
Durban’s Water Wonderland (Pty) Ltd v Botha 1997 3 SA 245 (N).......................................................... 183
Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA) ..................................................... 317
During v Boesak 1990 3 SA 661 (A).......................................................................................................... 135
Durr v ABSA Bank Ltd 1997 3 SA 448 (SCA) ...........................................................................169, 175, 176
Dutch Reformed Church Vergesig v Sooknunan 2012 6 SA 201 (GSJ) ..................... 308, 400, 420, 422, 425
Dyssel v Shield Insurance Co Ltd 1982 3 SA 1084 (C) ............................................................................. 277
Dzvairo v Mudoti 1973 3 SA 287 (RA) ..............................................................................................124, 126
E
East London Western Districts Farmers’ Association v Minister of Education and Development Aid
1989 2 SA 63 (A) ............................................................................................................ 135, 136, 149, 150
Easyfind International (SA) (Pty) Ltd v Instaplan Holdings 1983 3 SA 917 (W) ...................................... 380
eBotswana (Pty) Ltd v Sentech (Pty) Ltd 2013 6 SA 327 (GSJ) ................................. 35, 36, 39, 41, 194, 355
Ebrahim t/a Broadway Fisheries v MER Products CC 1994 4 SA 121 (C) ................................................ 381
Ebrahim v Minister of Law and Order 1993 2 SA 559 (T).................................. 231, 234, 248, 251, 252, 397
Ebrahim v Twala 1951 2 SA 490 (W) ........................................................................................................ 382
496 Law of Delict
Page
ECA (SA) v BlFSA (SA) 1980 2 SA 506 (W) ........................................................................................... 381
Edouard v Administrator, Natal 1989 2 SA 368 (D) ............................................................... 5, 288, 311, 312
Edwards v Hyde 1903 TS 381 .................................................................................................................... 420
Eeden v Pienaar 2001 1 SA 158 (W) .......................................................................................................... 268
EG Electric Co (Pty) Ltd v Franklin 1979 2 SA 702 (E) ....................................... 11, 358, 359, 360, 362, 363
Eggeling v Law Union and Rock Insurance Co Ltd 1958 3 SA 592 (D).................................................... 292
Ehmke v Grunewald 1921 AD 575 .....................................................................................................407, 408
Eksteen v Van Schalkwyk 1991 2 SA 39 (T) ............................................................................................. 455
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd 1988 2 SA 350 (W) ...................................39, 375, 378
Ellis v Vickerman 1954 3 SA 1001 (C) ........................................................................................................ 91
Els E v Bruce; Els J v Bruce 1922 EDL 295 .......................................................................................342, 393
Els v Minister of Law and Order 1993 1 SA 12 (C) ................................................................................... 419
Energy Measurements (Pty) Ltd v First National Bank of SA Ltd 2001 3 SA 132 (W) .............174, 351, 354
Engela v Road Accident Fund 2016 1 SA 214 (GJ) ................................................................................... 339
Enslin v Nhlapo 2008 5 SA 146 (SCA) ...................................................................................................... 183
Epstein v Epstein 1906 TH 87 .................................................................................................................... 424
ER24 Holdings v Smith NO [2007] 4 All SA 679 (SCA) .......................................................................... 317
Erasmus Ferreira & Ackermann v Francis 2010 2 SA 228 (SCA) ..............................................274, 278, 279
Erasmus v Davis 1969 2 SA 1 (A).............................................................................................................. 283
Erasmus v Heine 2013-01-28 case no 39407/2010 (GP) ............................................................................ 428
Erasmus v Inch 1997 4 SA 584 (W) ............................................................................................313, 314, 360
Erdmann v Santam Insurance Co Ltd 1985 3 SA 402 (C) ...........................................................331, 335, 341
Escherich Development (Pty) Ltd v Andrew Mentis Steel Sales (Pty) Ltd 1983 3 SA 810 (W) ................ 378
Eskom Holdings Ltd v Halstead-Cleak 2017 1 SA 333 (SCA) .................................................................. 457
Eskom Holdings Ltd v Hendricks 2005 5 SA 503 (SCA) ........................... 158, 172, 173, 179, 181, 190, 195
Ess Kay Electronics Pte Ltd v First National Bank of Southern Africa Ltd
2001 1 SA 1215 (SCA).................................................................................................... 445, 451, 452, 453
Essa v Divaris 1947 1 SA 753 (A).............................................................................................................. 442
Esselen v Argus Printing and Publishing Co Ltd 1992 3 SA 764 (T) ..................................... 7, 302, 400, 412
Esso Standard SA (Pty) Ltd v Katz 1981 1 SA 964 (A) ............................................................................. 287
Estate Agency Affairs Board v Auction Alliance (Pty Ltd 2014 3 SA 106 (CC) ....................................... 424
Estate Van der Byl v Swanepoel 1927 AD 141 .......................................................................................... 448
Esterhuizen v Administrator, Transvaal 1957 3 SA 710 (T) ............................... 128, 132, 163, 173, 291, 394
Esterhuizen v Minister van Pos- en Telekommunikasiewese 1978 2 SA 227 (T) ...................................... 459
Esterhuizen v Road Accident Fund 2017 4 SA 461 (GP) ....................................................................275, 335
Everett v Marian Heights (Pty) Ltd 1970 1 SA 198 (C) ............................................................................. 280
Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A) .................................................. 259, 270, 271, 272, 333
F
F v Minister of Safety and Security 2010 1 SA 606 (WCC) ...............................................................450, 452
F v Minister of Safety and Security 2012 1 SA 536 (CC) ................................. 39, 61, 94, 393, 449, 450, 452
F v Minister of Safety and Security 2014 6 SA 44 (WCC) .................................................................303, 393
Faiga v Body Corporate of Dumbarton Oaks 1997 2 SA 651 (W) ........................ 37, 69, 71, 82, 83, 190, 198
Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 2 SA 54 (C) .......... 42, 43, 75, 91, 92
Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2002 6 SA 180 (C) ........................75, 223
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 ....................................... 227
Fairhaven Country Estate (Pty) Ltd v Harris 2015 5 SA 540 (WCC) ........................................................ 379
Farmer v Robinson Gold Mining Co Ltd 1917 AD 501 ............................................................................. 169
Fayd’herbe v Zammit 1977 3 SA 711 (D) .....................................................................................16, 120, 421
Faynaz Import and Export Enterprises CC v Commisioner of Customs and Excise
[2009] 2 All SA 358 (T) ....................................................................................................................50, 307
Federation Internationale de Football v Bartlett 1994 4 SA 722 (T) .......................................................... 379
Fedgen Insurance Ltd v Bankorp Ltd 1994 2 SA 399 (W) .......................................... 174, 350, 351, 352, 354
Feldman (Pty) Ltd v Mall 1945 AD 733 .....................................................................................445, 448, 451
Feni v Kondzani [2007] 4 All SA 762 (EC) ................................................................ 108, 109, 113, 114, 401
Table of Cases 497
Page
Ferguson v Santam Insurance Ltd 1985 1 SA 207 (C) ............................................................................... 286
Ferreira v Grant 1941 WLD 186 ................................................................................................................ 152
Ferreira v Ntshingila 1990 4 SA 271 (A) ................................................................................................... 107
Fick v Watermeyer 1874 Buch 86 .............................................................................................................. 408
Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) ................... 5, 41, 392, 422, 423, 424, 425
Finlay v Kutoane 1993 4 SA 675 (W) ........................................................................................................ 330
First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd 1995 3 SA 556 (A) ............................... 354
First National Bank of SA Ltd v Rosenblum 2001 4 SA 189 (SCA) ............................................28, 317, 445
First National Bank of South Africa Ltd v Duvenhage
2006 5 SA 319 (SCA).................................................................................... 4, 93, 156, 196, 215, 219, 230
First National Bank of Southern Africa v East Coast Design CC 2000 4 SA 137 (D) ............................... 441
First Rand Bank Ltd v Chaucer Publications (Pty) Ltd 2008 2 SA 592 (C) ............................................... 425
Fischbach v Pretoria City Council 1969 2 SA 693 (T) ........................................................................248, 253
Fischer v Unlawful Occupiers 2018 2 SA 228 (WCC)............................................................................... 284
Flax v Murphy 1991 4 SA 58 (W) ............................................................................................... 150, 153, 442
Ford v Allen 1925 TPD 5 ........................................................................................................................... 336
Fortuin v Commercial Union Assurance Co of SA Ltd 1983 2 SA 444 (C) .............................................. 287
Fortuin v Road Accident Fund 2015 5 SA 532 (GP) .................................................................................. 337
Fose v Minister of Safety and Security 1996 2 BCLR 232 (W) ................................................................... 22
Fose v Minister of Safety and Security 1997 3 SA 786 (CC) ..............................................................7, 22, 23
Fosi v Road Accident Fund 2008 3 SA 560 (C) ..................................................................................334, 336
Foulds v Smith 1950 1 SA 1 (A) .................................................................................................................. 16
Fourie v Hansen 2001 2 SA 823 (W) ..................................................................................................229, 251
Fourie v Naranjo 2008 1 SA 192 (C)................................................................................... 247, 343, 437, 438
Fourie v Ronald Bobroff & Partners Incorporated [2015] 2 All SA 210 (GJ)............................................ 174
Fourie v Santam Insurance Ltd 1996 1 SA 63 (T) ...................................................................................... 335
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
2009 2 SA 150 (SCA)................................................................. 11, 41, 42, 46, 49, 52, 66, 84, 93, 95, 101,
194, 217, 231, 232, 234, 236, 239, 240, 248, 251,
349, 350, 351, 352, 353, 355, 356
FPS Ltd v Trident Construction (Pty) Ltd 1989 3 SA 537 (A) ................................................................... 446
Fradd v Jaquelin (1882) 3 NLR 144 ....................................................................................................127, 159
Frankel Pollak Vinderene Inc v Stanton 2000 1 SA 425 (W) ..............................................................161, 307
Franschhoekse Wynkelder (Ko-operatief) Bpk v SAR & H
1981 3 SA 36 (C) ....................................................................................... 42, 349, 350, 352, 355, 369, 370
Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2010 1 SA 8 (GSJ) .....................................384, 385
Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) ................. 6, 11, 50, 84, 236,
239, 240, 248, 314, 315, 317, 349,
351, 355, 356, 383, 384, 386, 456
Freedom of Religion South Africa v Minister of Justice and Constitutional Development
2020 1 SA 1 (CC). .................................................................................................................................. 147
Frenkel & Co v Cadle 1915 NPD 173 ........................................................................................................ 240
Friedman v Glicksman 1996 1 SA 1134 (W) ............................................................................................... 81
Fulane v Road Accident Fund 2003 3 SA 461 (W) .................................................................................... 283
Fulton v Road Accident Fund 2012 3 SA 255 (GSJ)...................................................................275, 282, 285
FW Woolworth and Co (Zimbabwe) (Pvt) Ltd v Sunray Stores (Pvt) Ltd t/a “The W Store”
1999 2 SA 887 (ZH) ........................................................................................................ 373, 375, 378, 379
G
GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 ............................................... 381, 388, 390, 391
Gabuza v Road Acccident Fund 2020 2 SA 228 (GP)................................................................................ 318
Galante v Dickinson 1950 2 SA 460 (A) .................................................................................................... 192
Gardener v Whitaker 1995 2 SA 672 (E) ............................................................ 19, 20, 21, 22, 399, 400, 406
GDC Hauliers (Pvt) Ltd v Chirundu Valley Motel (1988) (Pvt) Ltd 1999 3 SA 51 (ZSC) ........................ 287
Geary and Son (Pty) Ltd v Gove 1964 1 SA 434 (A) ............................................ 11, 358, 373, 374, 378, 381
498 Law of Delict
Page
Gehring v Unie Nasionaal Suid-Britse Versekeringsmaatskappy Bpk 1983 2 SA 266 (C)........................ 274
Gelb v Hawkins 1960 3 SA 687 (A) ....................................................................................................... 8, 302
Geldenhuys v SAR & H 1964 2 SA 230 (C) .......................................................................................295, 299
General Accident Insurance Co SA Ltd v Summers/ Nhlumayo; Southern Versekeringsassosiasie
Bpk v Carstens 1987 3 SA 577 (A) .........................................................................................267, 269, 277
General Accident Versekeringsmaatskappy SA Bpk v Uijs 1993 4 SA 228 (A) ................ 200, 202, 203, 205
General Tyre and Rubber Co SA Ltd v Kleynhans 1963 1 SA 533 (N) ..................................................... 448
Genwest Batteries (Pty) Ltd v Van der Heyden 1991 1 SA 727 (T)....................................................368, 380
George v Minister of Law and Order 1987 4 SA 222 (SE) ........................................................................ 141
Gerke v Parity Insurance Co Ltd 1966 3 SA 484 (W) ......................................................... 294, 295, 296, 299
Geyser v Pont 1968 4 SA 67 (W) ................................................................................................127, 302, 303
Gibbins v Williams, Muller, Wright en Mostert Ingelyf 1987 2 SA 82 (T) ........................................445, 446
Gibbons v SA Railways and Harbours 1933 CPD 521............................................................................... 152
Gibson v Berkowitz 1996 4 SA 1029 (W) ................................... 208, 231, 234, 251, 252, 253, 346, 347, 348
Gien v Gien 1979 2 SA 1113 (T)......................................................................... 148, 149, 150, 151, 152, 153
Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security
2012 2 SA 137 (SCA)......................................................................................................................449, 450
Gijzen v Verrinder 1965 1 SA 806 (D) .........................................................................................27, 271, 442
Gluckman v Schneider 1936 AD 151 ......................................................................................................... 143
Godfrey v Campbell 1997 1 SA 570 (C) .................................................................................................... 428
Gold Reef City Theme Park (Pty) Ltd; Akane Egoli (Pty) Ltd v Electronic Media Network Ltd
2011 3 SA 208 (GSJ) ............................................................................................... 388, 390, 405, 409, 410
Goldberg v Minister of Prisons 1979 1 SA 14 (A) ..................................................................................... 389
Goldie v City Council of Johannesburg 1948 2 SA 913 (W) ..................................................................... 292
Goldstein v Cathkin Park Hotel 2000 4 SA 1019 (SCA)............................................................................ 156
Goliath v MEC for Health, Eastern Cape 2015 2 SA 97 (SCA) ..................................................173, 175, 191
Goodall v Hoogendoorn Ltd 1926 AD 11 .................................................................................................. 388
Goodall v President Insurance Co Ltd 1978 1 SA 389 (W)........................................................................ 282
Goodman v Von Moltke 1938 CPD 153 .................................................................................................... 425
Gora v Kings College 2019 4 SA 162 (ECG) ...................................................................... 166, 168, 174, 180
Gordon Lloyd Page and Associates v Rivera 2001 1 SA 88 (SCA) ........................................................... 374
Gordon v Da Mata 1969 3 SA 285 (A)................................................................................................169, 183
Gore v Saficon Industrial (Pty) Ltd 1994 4 SA 536 (W) ............................................................................ 307
Gorris v Scott (1874) LR 9 Ex 125 ............................................................................................................... 92
Goss v Crookes 1998 2 SA 946 (N) ........................................................................................................... 203
Gosschalk v Rossouw 1966 2 SA 476 (C).....................................................................................16, 423, 425
Gouda Boerdery BK v Transnet 2005 5 SA 490 (SCA) ................................... 35, 41, 50, 61, 63, 65, 98, 156,
181, 190, 194, 195, 351, 353
Govan v Skidmore 1952 1 SA 732 (N) ...................................................................................................... 192
Govender v Minister of Safety and Security 2001 4 SA 273 (SCA) ...................................................135, 141
Govender v Salgados Fruiters t/a Lyndhurst Fruit Basket 2009 1 SA 500 (W)............................................ 72
Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A) .............. 37, 40, 46, 47, 135, 140,
190, 194, 195, 197
Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd
1978 2 SA 794 (A) ................................................................................................................................. 317
Government of the Republic of South Africa v Ngubane 1972 2 SA 601 (A) ......................................17, 297
Gower v Killian 1977 2 SA 393 (E) ........................................................................................................... 430
GQ v Yedwa 1996 2 SA 437 (Tk) .......................................................................................................311, 393
Graham v Cape Metropolitan Council 1999 3 SA 356 (C) .................................................................... 40, 69
Graham v Dittman and Son 1917 TPD 288 .........................................................................................152, 442
Graham v Ker (1892) 9 SC 185 .................................................................................................................. 410
Graham v Odendaal 1972 2 SA 611 (A) .............................................................................................303, 430
Graig v Voortrekkerpers Bpk 1963 1 SA 149 (A) ...................................................................................... 413
Gray v Poutsma 1914 TPD 203 .............................................................................................................. 7, 302
Gray v Protea Versekeringsmaatskappy Bpk 1990 3 SA 823 (O) .............................................................. 186
Great Karoo Eco Investments (Edms) Bpk h/a Grobbelaarskraal Boerdery v ABSA Bank Ltd
2003 1 SA 222 (W)......................................................................................................... 174, 354, 359, 360,
362, 364, 365
Table of Cases 499
Page
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank
1997 2 SA 591 (W).................................................................................. 201, 209, 212, 320, 340, 354, 449
Greeff v Protection 4U h/a Protect International 2012 6 SA 393 (GNP)........................ 39, 97, 400, 420, 421,
422, 423, 424, 425
Greeff v Raubenheimer 1976 3 SA 37 (A) ................................................................................................. 403
Green v Coetzer 1958 2 SA 697 (W)...................................................................................................270, 272
Green v Naidoo 2007 6 SA 372 (W) ...................................................................................................437, 440
Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd
1978 4 SA 901 (N) ...................................................................................... 11, 79, 313, 349, 353, 355, 363
Greenshields v SAR & H 1917 CPD 209 ................................................................................................... 300
Greydt-Ridgeway v Hoppert 930 TPD 664 ................................................................................................ 347
Greyvenstein v Hattingh 1911 AD 358 ...................................................................................................... 123
Griffiths v Mutual & Federal Insurance Co Ltd 1994 1 SA 535 (A) ...................................................269, 285
Griffiths v Netherlands Insurance Co of SA Ltd 1976 4 SA 691 (A) ......................................................... 186
Grobbelaar v Havenga 1964 3 SA 522 (N)................................................................................................. 430
Grobler v Naspers Bpk 2004 4 SA 220 (C) ......................................... 291, 342, 343, 345, 393, 420, 449, 451
Grobler v Santam Versekering Bpk 1996 2 SA 643 (T) ......................................................................183, 217
Groenewald v Groenewald 1998 2 SA 1106 (SCA) .................................................... 177, 217, 233, 251, 252
Groenewald v Minister van Justisie 1973 3 SA 877 (A) .....................................................................138, 142
Groenewald v Snyders 1966 3 SA 237 (A) ................................................................................................ 335
Groenewald v Swanepoel 2002 6 SA 724 (E) ............................................................................................ 333
Grootboom v Graaff-Reinet Municipality 2001 3 SA 373 (E) ............................................................179, 181
Grove v Ellis 1977 3 SA 388 (C).........................................................................................................322, 323
GrĦndlingh v Phumelela Gaming and Leisure Ltd 2005 6 SA 502 (SCA) ..................................375, 376, 380
GrĦtter v Lombard 2007 4 SA 89 (SCA)....................................................................... 20, 391, 425, 426, 427
Guardian National Insurance Co Ltd v Engelbrecht 1989 4 SA 908 (T) .................................................... 203
Guardian National Insurance Co Ltd v Saal 1993 2 SA 161 (C) ................................................................ 203
Guardian National Insurance Co Ltd v Van Gool 1992 1 SA 191 (W) ...................................................... 331
Guardian National Insurance Co Ltd v Van Gool 1992 4 SA 61 (A) ............................ 17, 272, 259, 265, 331
Guardian National Insurance Co Ltd v Weyers 1988 1 SA 255 (A) .......................................................... 174
Guggenheim v Rosenbaum (2) 1961 4 SA 21 (W) ..............................................................................311, 428
Gush v Pretoria Assurance: Corbett and Buchanan II 348 ......................................................................... 299
H
H Mohammed & Associates v Buyeye 2005 3 SA 122 (C)...................................................................28, 454
H v Fetal Assessment Centre 2015 2 SA 193 (CC) ..................................................... 38, 39, 52, 80, 102, 104
Hall v Welz 1996 4 SA 1070 (C)...................................................................................................21, 399, 406
Halliwell v Johannesburg Municipal Council 1912 AD 659 ........................................................................ 67
Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee 2000 4 SA 621 (C) ......... 410
Hambrook v Stokes Bros 1925 1 KB 141 ...........................................................................................238, 342
Hamman v Moolman 1968 4 SA 340 (A)................................................................................................... 367
Hanekom v Zuma [2019] 4 All SA 425 (KZD) ...........................................................................400, 402, 405
Hanger v Regal 2015 3 SA 115 (FB)...................................................................................................439, 440
Hardaker v Phillips 2005 4 SA 515 (SCA) .......................................... 405, 406, 407, 408, 409, 411, 412, 413
Harksen v Lane 1998 1 SA 300 (CC) ......................................................................................................... 422
Harmsworth v Smith 1928 NPD 174 .......................................................................................................... 298
Harnischfeger Corporation v Appleton 1993 4 SA 479 (W) ...................................................................... 445
Harrington NO v Transnet (Ltd) 2007 2 SA 228 (C)......................................... 41, 50, 63, 194, 207, 217, 320
Harrington v Transnet Ltd t/a Metrorail 2010 2 SA 479 (SCA) .............................................. 61, 98, 170, 201
Harris v Federated Employers’ Insurance Co Ltd: Corbett and Buchanan II 817 ...................................... 298
Harris v Williams 1998 2 SA 263 (W) ....................................................................................................... 153
Hassen v Post Newspapers (Pty) Ltd 1965 3 SA 562 (W) ..........................................................163, 414, 415
Hattingh v Roux NO 2011 5 SA 135 (WCC) .......................................................................... 39, 40, 131, 134
Hauman v Malmesbury Divisional Council 1916 CPD 216 ................................................................342, 344
Havenga v Minister of Police 1981 2 SA 344 (T) ...................................................................................... 184
Hawekwa Youth Camp v Byrne 2010 6 SA 83 (SCA) .............. 49, 50, 61, 65, 71, 93, 98, 156, 165, 174, 189
500 Law of Delict
Page
Hawker v Life Offices Association of South Africa 1987 3 SA 777 (C) .............. 39, 41, 47, 55, 57, 308, 381
Hay or Bourhill v Young 1943 AC 92.........................................................................................238, 239, 253
Heard v Times Media Ltd 1993 2 SA 472 (C) ........................................................................................... 412
Heese NO v Road Accident Fund 2014 1 SA 357 (WCC) ......................................................................... 286
Heese obo Peters v Road Accident Fund 2012 6 SA 496 (WCC) .............................................................. 286
Heilbron v Blignault 1931 WLD 167 ......................................................................................................... 309
Helios Ltd v Letraset Graphic Art Products (Pty) Ltd 1973 4 SA 81 (T) ................................................... 381
Hendricks v President Insurance Co Ltd 1993 3 SA 158 (C) ..................................................................... 335
Henning v South British Insurance Co Ltd 1963 1 SA 272 (O) ................................................................. 275
Hentiq 1320 (Pty) Ltd v Mediterranean Shipping Co 2012 6 SA 88 (SCA) .............................................. 255
Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd [2017] 2 All SA 347 (SCA) ..............309, 378, 379
Herbst v Dittmar 1970 1 SA 238 (T) ............................................................................................................ 91
Heroldt v Wills 2013 2 SA 530 (GSJ) ...................................................... 36, 39, 97, 100, 308, 309, 400, 402,
403, 409, 412, 420, 422, 423, 425
Herrington v Johannesburg Municipality 1909 TH 179 ............................................................................. 152
Herschel v Mrupe 1954 3 SA 464 (A) ................................................... 35, 169, 177, 181, 358, 361, 362, 383
Herselman v Botha 1994 1 SA 28 (A) ................................................................................. 405, 406, 408, 414
Heyneman v Waterfront Marine CC [2005] 2 All SA 382 (C) ............................ 373, 374, 375, 378, 379, 380
Heyns v SA Eagle Versekeringsmaatskappy Bpk 1988-07-11 case no 13468/86 (T) ................................ 274
Heyns v Venter 2004 3 SA 200 (T) ................................................................. 21, 24, 168, 416, 417, 418, 419
Heystek v Heystek [2002] 2 All SA 401 (T) .............................................................................................. 337
Hickman v Cape Jewish Orphanage 1936 CPD 548 .................................................................................. 312
Hiltonian Society v Crofton 1952 3 SA 130 (A) .................................................................................145, 146
Hing v Road Accident Fund 2014 3 SA 350 (WCC)........................... 233, 253, 269, 292, 333, 342, 343, 348
Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd 1992 3 SA 643 (D) ................................. 451
Hirschowitz Flionis v Bartlett 2006 3 SA 575 (SCA) .......................................... 41, 63, 93, 98, 99, 194, 315,
350, 351, 353, 354, 356
Hix Networking Technologies v System Publishers (Pty) Ltd 1997 1 SA 391 (A).............................309, 399
HL&H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd
2001 4 SA 814 (SCA).......................................................................................................... 69, 70, 190, 193
Hlela v Commercial Union Assurance Co of South Africa Ltd 1990 2 SA 503 (N) .................................. 337
Hockly v Multilateral Motor Vehicle Accident Fund 2000 2 SA 246 (SE)................................................ 285
Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 2 SA 944 (C) ......................... 17, 291, 297, 305
Hoffmann v South African Airways 2001 1 SA 1 (CC) ............................................................................... 23
Hofmeyr v Minister of Justice 1993 3 SA 131 (A)....................................................................................... 15
Hoho v S [2009] 1 All SA 103 (SCA) ........................................................................................................ 400
Holland v Scott 2 EDC 307 ........................................................................................................................ 442
Hollard v Cullen 1956 2 SA 605 (D) .......................................................................................................... 430
Holm v Sonland Ontwikkeling (Mpumalanga) (Edms) Bpk 2010 6 SA 342 (GNP) ..................61, 67, 68, 69,
93, 98, 166
Holomisa v Argus Newspapers Ltd 1996 2 SA 588 (W)................................................. 20, 21, 399, 400, 406
Holscher v ABSA Bank 1994 2 SA 667 (T) ........................................................................ 267, 283, 321, 354
Holtzhausen v ABSA Bank Ltd 2008 5 SA 630 (SCA) .............................. 314, 315, 356, 360, 361, 362, 363
Holtzhauzen v Cenprop Real Estate (Pty) Ltd [2020] 1 All SA 767 (WCC) ............................................... 71
Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality
[2017] 3 All SA 382 (SCA); 2018 1 SA 391 (SCA)............................................... 5, 63, 75, 76, 90, 91, 92,
94, 143, 189, 216, 232, 235, 236, 255, 262, 282, 287
Honda (SA) (Pty) Ltd v Hoffmann International (Pty) Ltd 2007-05-22 case no 04/5858 (W) .................. 378
Hope v R 1917 NPD 145 ............................................................................................................................ 111
Horwowitz v Brock 1988 2 SA 160 (A) ..................................................................................................... 270
Huey Extreme Club v McDonald t/a Sport Helicopters 2005 1 SA 485 (C) .......................................392, 424
Hughes v Minister van Wet en Orde 1992 1 SACR 338 (A) ...................................................................... 140
Hugo v Page 1944 CPD 119 ....................................................................................................................... 123
Hulley v Cox 1923 AD 234 ........................................................................................................................ 277
Human v East London Daily Dispatch (Pty) Ltd 1975 2 PH J24 (E) ......................................................... 423
Humphrys v Barnes 2004 2 SA 577 (C) ..............................................................................................313, 317
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd 1997 4 SA 399 (SCA) ............................................................... 382
Table of Cases 501
Page
I
IIR South Africa BV (Incorporated in the Netherlands) t/a Institute for International Research v Hall
(aka Baghas) 2004 4 SA 174 (W) ........................................................................................................... 380
Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) ....................... 41, 50, 78, 93, 94, 165,
169, 175, 178, 179, 194, 349
Incledon Cape (Pty) Ltd v DPI Plastics (Pty) Ltd [2010] JOL 24748 (WCC)............................................ 378
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) ........................... 11, 63, 350, 351, 352,
353, 354, 355, 356
Independent Newspapers Holdings Limited v Suliman [2004] 3 All SA 137 (SCA)................................. 410
Ingram v Minister of Justice 1962 3 SA 225 (W)..........................................................................50, 143, 397
Innes v Visser 1936 WLD 44 ................................................................................................................. 7, 420
Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home Affairs
2010 5 SA 367 (WCC) ...................................................................................................... 97, 148, 153, 308
Interflora African Areas Ltd v Sandton Florist 1995 4 SA 841 (T) .............................................374, 375, 380
International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) ................... 216, 217, 219, 220, 224, 225,
231, 233, 234, 236, 360, 361, 363, 364, 365
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd 1955 2 SA 1 (W) ......................... 381
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd:
In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC) ......................... 20, 392, 422, 423
Isaacman v Miller 1922 TPD 56................................................................................................................. 368
Ismail v General Accident Insurance Co of SA Ltd 1989 2 SA 468 (D) .............................................334, 335
Isparta v Richter 2013 6 SA 529 (GNP) .............................................................................. 300, 303, 308, 400
Itzikowitz v ABSA Bank Ltd 2016 4 SA 432 (SCA) .................................................. 106, 351, 354, 355, 357
J
Jackson v NICRO 1976 3 SA 1 (A)......................................................................................... 15, 16, 420, 421
Jacobs v Cape Town Municipality 1935 CPD 474 ..............................................................................270, 337
Jacobs v Chairman, Governing Body, Rhodes High School 2011 1 SA 160 (WCC) .................39, 61, 72, 94,
166, 202, 224, 234, 298
Jacobs v Hylton Grange (Pty) Ltd [2020] 2 All SA 89 (WCC) .................................................................. 152
Jacobs v MacDonald 1909 TS 442 ............................................................................................................. 387
Jacobs v Road Accident Fund 2010 3 SA 263 (SE) ............................................................................334, 336
Jacobs v Road Accident Fund 2019 2 SA 275 (GP) ................................................................................... 338
Jacobs v Transnet Ltd t/a Metrorail 2015 1 SA 139 (SCA) .................................................................165, 181
Jacobs v Waks 1992 1 SA 521 (A) ........................................................................................................20, 420
Jaffit v Garlicke & Bousfield Inc 2012 2 SA 562 (KZP) .......................................... 39, 93, 98, 353, 356, 360
Jaftha v Honourable Minister of Correctional Services [2012] 2 All SA 286 (ECP) .............. 79, 86, 178, 443
Jameson’s Minors v CSAR 1908 TS 575 ....................................................................................134, 333, 340
Jamneck v Wagener 1993 2 SA 54 (C) ...................................................................................................... 191
Janeke v Ras 1965 4 SA 583 (T) .........................................................................................................266, 283
Janit v Motor Industry Fund Administrators (Pty) Ltd 1995 4 SA 293 (A) ............................................... 392
Jankielsohn v Booysen [2020] 1 All SA 214 (FB) .............................. 301, 302, 399, 400, 401, 402, 405, 420
Jansen v Pienaar (1881) 1 SC 276 .............................................................................................................. 368
Jansen van Vuuren v Kruger 1993 4 SA 842 (A) .................................................................... 5, 422, 423, 425
Jasat v Paruk 1983 4 SA 728 (N).........................................................................................................303, 408
Jayber v Miller 1980 4 SA 280 (W) ........................................................................................................... 280
Jeftha v Williams 1981 3 SA 678 (C) .......................................................................................... 127, 302, 303
Jockie v Meyer 1945 AD 354 ..............................................................................................................312, 420
Joffe & Co Ltd v Hoskins 1941 AD 431 .................................................................................................... 169
Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd 1997 1 SA 157 (A) ......169, 455
Johannesburg Consolidated Investment Co Ltd v Langleigh Construction (Pty) Ltd
1991 1 SA 576 (A) ................................................................................................................................. 179
Johannesburg Country Club v Stott 2004 5 SA 511 (SCA).................................................................317, 318
502 Law of Delict
Page
Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 ................................................135, 136
John Bell & Co v Esselen 1954 1 SA 147 (A)............................................................................................ 441
John Newmark and Co (Pty) Ltd v Durban City Council 1959 1 SA 169 (D) ........................................... 442
Johncom Media Investments Ltd v M 2009 4 SA 7 (CC) .......................................................................... 424
Johnson v Beckett 1992 1 SA 762 (A) ........................................................................................403, 411, 412
Johnson v Rand Daily Mails 1928 AD 190 .........................................................................................404, 409
Jones NO v Santam Bpk 1965 2 SA 542 (A) ...................................... 158, 165, 166, 171, 201, 202, 203, 206
Jonker v Schultz 2002 2 SA 360 (O) ...................................................................................................301, 303
Jonnes v Anglo-African Shipping Co (1936) Ltd 1972 2 SA 827 (A) ....................................................... 264
Jooste v Minister of Police 1975 1 SA 349 (E) ............................................................................................ 27
Jooste v National Media Ltd 1994 2 SA 634 (C) ................................................................................130, 423
Jordaan v Bloemfontein Transitional Local Authority 2004 3 SA 371 (SCA) ........................................... 192
Jordaan v Delarey 1958 1 SA 638 (T) ........................................................................................................ 130
Jordaan v Smith 1915 EDL 166.................................................................................................................... 92
Jordaan v Van Biljon 1962 1 SA 286 (A) ............................................................................................408, 413
Joubert v Bekker 1952 3 SA 245 (T) .......................................................................................................... 186
Joubert v Combrinck 1980 3 SA 680 (T) ................................................................................................... 437
Joubert v Impala Platinum Ltd 1998 1 SA 463 (B) ................................. 12, 79, 189, 350, 351, 352, 353, 355
Joubert v Meyer [2017] 3 All SA 878 (GP).........................................................................................173, 175
Joubert v Venter 1985 1 SA 654 (A) ........................................................................................... 405, 408, 409
Jowell v Bramwell-Jones 1998 1 SA 836 (W) .................................... 270, 350, 351, 353, 355, 356, 357, 363
Jowell v Bramwell-Jones 2000 3 SA 274 (SCA) ................................................................................255, 269
JT v Road Accident Fund 2015 1 SA 609 (GJ) .......................................................................................... 336
Jurgens v Editor, Sunday Times Newspaper 1995 2 SA 52 (W) ...........................................................21, 399
K
K v Minister of Safety and Security 2005 3 SA 179 (SCA) ....................................................................... 449
K v Minister of Safety and Security 2005 6 SA 419 (CC) .................................. 393, 447, 449, 450, 452, 453
K v Minister of Safety and Security [2019] 1 All SA 415 (ECP) ............ 35, 86, 156, 174, 180, 216, 217, 227
K v T (1904) 21 SC 177 ......................................................................................................................404, 430
Kadir v Minister of Law and Order 1992 3 SA 737 (C) ...................................... 12, 53, 65, 77, 350, 353, 355
Kahn v Kahn 1971 2 SA 499 (RA) ......................................................................................................... 8, 302
Kakamas Bestuursraad v Louw 1960 2 SA 202 (A) ................................................................................... 226
Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) ........................... 12, 63, 208, 224, 232, 251,
267, 360, 361, 362, 363
Kapp v Protea Assurance Co Ltd 1981 3 SA 168 (A) ................................................................................ 322
Kasper v André Kemp Boerdery CC 2012 3 SA 20 (WCC) ...............................................................448, 449
Kassel v Thompson Reuters (Markets) SA 2019 1 SA 251 (GJ)................................................................ 402
Kawa v Minister of Safety and Security [2019] 1 All SA 415 (ECP) ...................................................85, 166
Kellerman v South African Transport Services 1993 4 SA 872 (C) ....................................................264, 284
Kellogg Co v Bokomo Co-operative Ltd 1997 2 SA 725 (C) ............................................. 375, 376, 377, 378
Kemp v Republican Press (Pty) Ltd 1994 4 SA 261 (E) .....................................................................409, 410
Kennel Union of Southern Africa v Park 1981 1 SA 714 (C) .................................................................... 408
Keown v Ned-Equity Versekeringsmaatskappy Bpk 1984 1 SA 656 (A) .................................................. 184
Kern Trust (Edms) Bpk v Hurter 1981 3 SA 607 (C) ................................................................................. 367
Kernick v Fitzpatrick 1907 TS 389 ............................................................................................................ 127
Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association
2014 2 SA 569 (GJ) ................................................................................. 131, 390, 400, 403, 404, 407, 409
Kewana v Santam Insurance Co Ltd 1993 4 SA 771 (Tk)...................................................................335, 337
Keyzer v Marais (1910) 20 CTR 839 ......................................................................................................... 125
KG v AG 2009-08-20 case no 270/2006 (KZP) ..........................................................................428, 429, 431
Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) ................................ 107, 108, 110, 111, 118,
159, 162, 167, 195, 197
Kgothule v Majonga 2015 6 SA 389 (FB) ...................................................................................400, 405, 410
Khoza v MEC for Health and Social Development, Gauteng 2015 3 SA 266 (GJ) ................................... 191
Table of Cases 503
Page
Khumalo v Holomisa 2002 5 SA 401 (CC) ...................................................... 16, 20, 21, 399, 400, 405, 406,
407, 410, 415, 416, 420
Khupa v SA Transport Services 1990 2 SA 627 (W) ..........................................................................182, 183
Kidson v SA Associated Newspapers Ltd 1957 3 SA 461 (W) .....................................................15, 425, 426
King v Arlington Court (Muizenberg) (Pty) Ltd 1952 2 SA 23 (C) ....................................................... 72, 73
King v Pearl Insurance Co Ltd 1970 1 SA 462 (W) ................................................................................... 205
Kinnear v Transvaal Provincial Administration 1928 TPD 133 ................................................................. 298
Kirkpatrick v Bezuidenhout 1934 TPD 155 ............................................................................................... 127
Kirsch v Pincus 1927 TPD 199 ..................................................................................... 48, 148, 150, 151, 152
Klassen v Blue Lagoon Hotel and Conference Centre [2015] 2 All SA 482 (ECG) .................................... 71
Kleinhans v African Guarantee and Indemnity Co Ltd 1959 2 SA 619 (E) ............................................... 322
Kleinhans v Road Accident Fund [2016] 3 All SA 850 (GP) ..................................................................... 269
Klem v Boshoff 1931 CPD 188 .................................................................................................................. 439
Klimax Manufacturing Ltd v Van Rensburg 2005 4 SA 445 (O) ............................................................... 378
Klingman v Lowell 1913 WLD 186 ........................................................................................................... 275
Klipriver Licensing Board v Ebrahim 1911 AD 458 .................................................................................. 142
Klopper v Volkskas Bpk 1964 2 SA 421 (T).............................................................................................. 312
Knop v Johannesburg City Council 1995 2 SA 1 (A) .................................. 22, 35, 75, 91, 92, 101, 188, 189,
349, 350, 351, 352, 356
Knouwds v Administrateur, Kaap 1981 1 SA 544 (C) ............................................................................... 180
Knox D’Arcy Ltd v Jamieson 1992 3 SA 520 (W) .................................................................................... 380
Kohl v Grobbelaar (4962/2017) [2018] ZAECGHC .................................................................................. 437
Kohler Flexible Packaging (Pinetown) (Pty) Ltd v Marianhill Mission Institute
2000 1 SA 141 (D) ..................................................................................................................312, 313, 320
Komape v Minister of Basic Education 2018 ZALMPPHC 1 .................................................................... 343
Komape v Minister of Basic Education 2020 2 SA 347 (SCA)...................................................343, 344, 345
Koukoudis v Abrina 1772 (Pty) Ltd 2016 5 SA 352 (SCA) ................................................ 147, 148, 149, 355
Kriel v Premier, Vrystaat 2003 5 SA 67 (O) ...............................................................................179, 201, 455
Kritzinger v Perskorporasie van SA (Edms) Bpk 1981 2 SA 373 (O)........................................................ 302
Kritzinger v Steyn 1997 3 SA 686 (C) .............................................................................. 69, 72, 73, 179, 193
Kroomer v Lobascher (1903) 13 CTR 674 ................................................................................................. 417
Krugell v Shield Versekeringsmaatskappy Bpk 1982 4 SA 95 (T) ............................................................ 274
Kruger v Carlton Paper of SA (Pty) Ltd 2002 2 SA 335 (SCA) .......................................... 165, 179, 180, 186
Kruger v Coetzee 1966 2 SA 428 (A) ........................................................... 72, 118, 169, 177, 178, 183, 189
Kruger v National Director of Public Prosecutions 2019 6 BCLR 703 (CC) ...................... 416, 417, 418, 419
Kruger v Strydom 1969 4 SA 304 (NC) ..................................................................................................... 370
Kruger v Van der Merwe 1966 2 SA 266 (A) .....................................................................................177, 248
Kumalo v Cycle Lab (Pty) Ltd 2011-06-07 case no 31871/2008 (GSJ) ..................................................... 426
Kuzzulo v Kuzzulo 1908 TS 1030.............................................................................................................. 401
Kwamashu Bakery Ltd v Standard Bank of South Africa Ltd 1995 1 SA 377 (D) ............. 174, 183, 353, 354
Kyriacou v Minister of Safety and Security 1999 3 SA 278 (O) ......................................... 401, 403, 408, 413
L
La Grange v Schoeman 1980 1 SA 885 (E).........................................................................................423, 425
Labuschagne v Cloete 1987 3 SA 638 (T) ...................................................................................322, 323, 453
Lambrakis v Santam Ltd 2000 3 SA 1098 (W) ...........................................................................285, 332, 333
Lampert v Hefer 1955 2 SA 507 (A) ................................................................................... 133, 209, 210, 340
Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) ..........................12, 39, 284,
369, 370, 372, 380
Landman v Minister of Police 1975 2 SA 155 (E) ..............................................................................416, 417
Langa v Hlophe 2009 4 SA 382 (SCA) ...............................................................................................400, 407
Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 1 SA 1 (A) ...............................74, 455, 456
Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd 1997 4 SA 578 (W) ........................ 90, 91
Laskey v Showzone CC 2007 2 SA 48 (C) ...........................................................................................92, 152
Latham v Sher 1974 4 SA 687 (W) .......................................................................................................12, 367
Laubscher v Duplan 2017 2 SA 264 (CC) .................................................................................................. 339
504 Law of Delict
Page
Lawrence v Kondotel Inns (Pty) Ltd 1989 1 SA 44 (D) ...................................................... 314, 331, 436, 437
Layton and Layton v Wilcox and Higginson 1944 SR 48 ...................................................................342, 345
LC Welding Works (Pty) Ltd v Carey 1932 CPD 256 ............................................................................... 382
Le Roux v Dey 2010 4 SA 210 (SCA) ................................................ 301, 302, 402, 403, 413, 414, 415, 416
Le Roux v Dey 2011 3 SA 274 (CC) ........................................................................ 93, 98, 99, 102, 103, 301,
303, 308, 400, 401, 402, 404,
405, 406, 413, 414, 415, 420, 421
Le Roux v Fick (1879) 9 Buch 29 .......................................................................................................438, 439
Le Roux v Minister of Safety and Security 2009 4 SA 491 (N) ............................................ 50, 142, 149, 397
Lean v Van der Mescht 1972 2 SA 100 (O) ............................................................................................... 371
Leask v Road Accident Fund 2015 5 SA 20 (GJ)....................................................................................... 334
Lebona v President Versekeringsmaatskappy Bpk 1991 3 SA 395 (W) .................................................... 287
Lebowa Development Corporation Ltd, Ex parte 1989 3 SA 71 (T) .......................................................... 175
Lederman v Moharal Investments (Pty) Ltd 1969 1 SA 190 (A) ........................................................417, 418
Lee v Minister of Correctional Services 2011 6 SA 564 (WCC) ............................................................... 226
Lee v Minister of Correctional Services 2013 2 SA 144 (CC) ................................. 19, 36, 39, 61, 65, 79, 86,
94, 99, 193, 219, 224, 225,
226, 227, 228, 231, 443
Legal Insurance Co Ltd v Botes 1963 1 SA 608 (A) ........................................................... 277, 332, 333, 335
Lehmbeckers Transport (Pty) Ltd v Rennies Finance (Pty) Ltd 1994 3 SA 727 (C) ...........................274, 371
Lemue v Zwartbooi (1896) 13 SC 403 ....................................................................................................... 419
Lenco Holdings Ltd v Eckstein 1996 2 SA 693 (N) ................................................................................... 375
Lennon Ltd v BSA Company 1914 AD 1 .................................................................................................. 383
Lentzner v Friedmann 1919 OPD 20 .......................................................................................................... 171
Leon Bekaert Southern Africa (Pty) Ltd v Rauties Transport (Pty) Ltd 1984 1 SA 814 (W) .............189, 191
Lever v Purdy 1993 3 SA 17 (A) ................................................................................................................ 437
Levy v Rondalia Assurance Corp of SA Ltd 1971 2 SA 598 (A) ........................................................169, 184
LF Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 2 SA 256 (C) ................................... 309
Lichaba v Shield Versekeringsmaatskappy Bpk 1977 4 SA 623 (O) ......................................................... 446
Lieberthal v Primedia Broadcasting (Pty) Ltd 2003 5 SA 39 (W).......................................................399, 410
Life Healthcare Group (Pty) Ltd v Suliman 2019 2 SA 185 (SCA) ..............................................79, 227, 321
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985 1 SA 475 (A) .............................................................. 12, 35, 101, 175, 313, 314, 315, 356, 360, 363
Lincoln v Minister of Justice and Constitutional Development
[2019] 1 All SA 454 (WCC)............................................................................................ 416, 417, 418, 419
Lindsay v Checkers Supermarket 2008 4 SA 634 (N) ...........................................................................71, 183
Lindsay v Stofberg 1988 2 SA 462 (C) ...............................................................................................330, 444
Link Estates (Pty) Ltd v Rink Estates (Pty) Ltd 1979 2 SA 276 (E) .......................................................... 374
Links v Department of Health, Northern Cape Province 2016 4 SA 414 (CC) .......................................... 318
Lipman v Myhill Garage (Pty) Ltd 1948 3 SA 565 (D) ............................................................................. 378
Living Hands (Pty) Ltd v Ditz 2013 2 SA 368 (GSJ) .................................. 12, 39, 93, 98, 315, 351, 355, 441
Lloyd-Gray Lithographers (Pty) Ltd v Nedcor Bank Ltd t/a Nedbank
1998 2 SA 667 (W).................................................................................................. 212, 319, 320, 321, 354
LN v Minister of Safety and Security 2011 5 SA 512 (KZP) ..................................................................... 292
Local Transitional Council of Delmas v Boshoff 2005 5 SA 514 (SCA) ................. 36, 45, 50, 51, 61, 63, 95,
98, 105, 156, 189, 195, 351
Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 3 SA 295 (A) .... 329, 330, 332, 342
Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson 1973 4 SA 523 (RA) ............................179, 182
Lombo v ANC 2002 5 SA 668 (SCA) .................................................................................................273, 397
Long John International Ltd v Stellenbosch Wine Trust (Pty) Ltd 1990 4 SA 136 (D) ..............308, 374, 378
Longueira v Securitas of South Africa (Pty) Ltd 1998 4 SA 258 (W)........................... 5, 68, 82, 83, 189, 190
Loni v MEC for Health, Eastern Cape (Bhisho) 2018 3 SA 335 (CC) ....................................................... 318
Lorimar Productions Incorporated v Sterling Clothing Manufacturers (Pty) Ltd
1981 3 SA 1129 (T) .................................................................................................................373, 375, 379
Loriza Brahman v Dippenaar 2002 2 SA 477 (SCA) ..................................................................434, 436, 437
Table of Cases 505
Page
Loureiro v Imvula Quality Protection (Pty) Ltd 2014 3 SA 394 (CC) ................... 39, 41, 42, 48, 50, 99, 102,
104, 105, 155, 165, 175, 179, 181, 313
Louw v Long 1990 3 SA 45 (E) ................................................................................................................. 190
Louw v LUR vir Onderwys en Kultuur, Vrystaat 2005 6 SA 78 (O) ......................................................... 454
Louw v LUR vir Onderwys en Kultuur, Vrystaat 2006 1 SA 192 (SCA) .................................................. 455
Louw v Minister of Safety and Security 2006 2 SACR 178 (T)..................................................139, 140, 142
Louwrens v Oldwage [2006] 1 All SA 197 (SCA) .............................................................. 132, 133, 173, 175
Lubbe v Louw [2006] 4 All SA 341 (SCA).................................................................................................. 72
Lubbe v Robinsky 1923 CPD 110 .............................................................................................................. 401
Lutzkie v SAR & H 1974 4 SA 396 (W) ..................................................................... 292, 300, 342, 345, 348
Lymbery v Jeffries 1925 AD 236 ............................................................................................................... 173
Lynch v Agnew 1929 TPD 974 ...................................................................................................................... 7
M
M v M 1991 4 SA 587 (D) ..........................................................................................................311, 394, 428
M v Minister of Police 2013 5 SA 622 (GNP) ......................................................................................22, 336
M v N 1981 1 SA 136 (Tk)......................................................................................................................... 393
M v R 1989 1 SA 416 (O) .......................................................................................................................... 424
Maartens v Pope 1992 4 SA 883 (N) ........................................................................... 129, 133, 134, 210, 437
Maasberg v Hunt, Leuchars & Hepburn Ltd 1944 WLD 2 ........................................................................ 277
Mabaso v Felix 1981 3 SA 865 (A) ............................................................................. 107, 108, 200, 340, 392
Mabona v Minister of Law and Order 1988 2 SA 654 (SE) ................................................................142, 393
Macadamia Finance Ltd v De Wet 1991 4 SA 273 (T) ................................................... 39, 64, 65, 74, 78, 81
Macala v Maokeng Town Council 1993 1 SA 434 (A) .......................................................................451, 452
MacDonald v Road Accident Fund [2012] 4 All SA 15 (SCA) ................................................................. 285
Machewane v Road Accident Fund 2005 6 SA 72 (T) ............................................................................... 190
Macleod v Rens 1997 3 SA 1039 (E) ......................................................................................................... 191
Macu v Du Toit 1983 3 SA 629 (A) ....................................................................................................140, 141
Madnitsky v Rosenberg 1949 1 PH J5 (W) ................................................................................................ 417
Madyibi v Minister of Safety and Security 2006-12-08 case no 1034/2004 (Tk) ........................................ 52
Madyosi v SA Eagle Insurance Co Ltd 1989 3 SA 178 (C) ....................................................................... 191
Mafesa v Parity Versekeringsmaatskappy Bpk 1968 2 SA 603 (O) .................... 232, 242, 246, 248, 251, 252
Magage v Murray & Stewart (Edms) Bpk 1980 4 SA 294 (O) .................................................................. 448
Magajane v Chairperson, North West Gambling Board 2006 5 SA 250 (CC) ........................................... 422
Magqabi v Mafundityala 1979 4 SA 106 (E) ......................................................................................311, 393
Mahlangu v Minister of Police [2020] 2 All SA 656 (SCA) ............................................... 137, 138, 397, 398
Mahomed v Kassim 1973 2 SA 1 (RA) ...............................................................................................409, 410
Mahomed v Silanda 1993 1 SA 59 (ZH) .................................................................................................... 146
Mahongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) .....................................71, 89, 90
Maimela v Makhado Municipality 2011 6 SA 533 (SCA) .......................... 100, 117, 118, 119, 120, 122, 339
Maisel v Van Naeren 1960 4 SA 836 (C) ....................................................................................163, 413, 414
Majiet v Santam Ltd [1997] 4 All SA 555 (C) .................................... 234, 342, 343, 344, 345, 346, 347, 348
Majolica Pottery (Venda) (Pty) Ltd v Barrow & Coetzee 1999 1 SA 1166 (C) ..................................390, 413
Makulu Plastics & Packaging CC v Born Free Investments 128 (Pty) Ltd 2013 1 SA 377 (GSJ) ............. 369
Malahe v Minister of Safety and Security 1999 1 SA 528 (SCA) ................................... 50, 51, 106, 107, 140
Malema v Rampede 2011 5 SA 631 (GSJ) ..................................................................................405, 410, 411
Malherbe v Ceres Municipality 1951 4 SA 510 (A) ................................................................................... 152
Malherbe v Eskom 2002 4 SA 497 (O) ...............................................................................................191, 211
Mali v Shield Insurance Co Ltd 1984 2 SA 798 (SE)................................................................................. 175
Manamela v Minister of Justice 1960 2 SA 395 (A) .................................................................................. 141
Manase v Minister of Safety and Security 2003 1 SA 567 (Ck)..................................................142, 303, 398
Mandela v Falati 1995 1 SA 251 (W) ..............................................................................................20, 21, 399
Manderson v Century Insurance Co Ltd 1951 1 SA 533 (A) ..................................................................... 184
Mangope v Asmal 1997 4 SA 277 (T)...........................................................................................21, 399, 402
Manickum v Lupke 1963 2 SA 344 (N) ..................................................................................................... 454
Mankayi v Anglogold Ashanti Ltd [2010] 3 All SA 606 (SCA) ................................................................ 305
506 Law of Delict
Page
Mankayi v AngloGold Ashanti Ltd 2011 3 SA 237 (CC) .......................................................................... 305
Mankebe v AA Mutual Insurance Association Ltd 1986 2 SA 196 (D) ......................................287, 332, 335
Mann v Mann 1918 CPD 89 ....................................................................................................................... 323
Manousakis v Renpal Entertainment CC 1997 4 SA 552 (C)..............................................................375, 376
Manuel v African Guarantee and Indemnity Co Ltd 1967 2 SA 417 (R) ................................................... 336
Manuel v Economic Freedom Fighters, Ndlozi and Malema 2019 5 SA 210 (GJ) ....................302, 402, 405,
409, 410, 412
Manuel v SA Eagle Insurance Co Ltd 1982 4 SA 352 (C) ......................................................................... 203
Maphiri v Road Accident Fund 2002 6 SA 383 (W) .................................................................................. 276
Maphosa v Wilke 1990 3 SA 789 (T) ..........................................................................................203, 320, 321
Marais v Groenewald 2001 1 SA 634 (T)................................ 5, 15, 20, 21, 24, 399, 410, 411, 413, 415, 416
Marais v Richard 1981 1 SA 1157 (A) ...................................... 39, 40, 59, 405, 406, 407, 411, 412, 413, 414
Maraisburg Divisional Council v Wagenaar 1923 CPD 94 ........................................................................ 370
Maree v Diedericks 1962 1 SA 231 (T)...............................................................................................436, 437
Margalit v Standard Bank of South Africa Ltd 2013 2 SA 466 (SCA) ...................................................... 174
Marine and Trade Insurance Co Ltd v Katz 1979 4 SA 961 (A) ................................. 271, 294, 295, 299, 301
Marruchi v Harris 1943 OPD 15 ................................................................................................................ 389
Marshall v Southern Insurance Association Ltd 1950 2 PH J6 (D) .....................................................291, 298
Masawi v Chabata 1991 4 SA 764 (ZH) .........................................................................................7, 396, 397
Masch v Leask 1916 TPD 114 ................................................................................................................... 415
Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC) ...................... 64, 78, 80, 84, 86,
87, 97, 102, 104, 105, 165, 174,
216, 217, 226, 227, 247
Masiba v Constantia Insurance Co Ltd 1982 4 SA 333 (C)......................... 231, 240, 253, 342, 345, 347, 348
Masiba; Mulder v South British Insurance Co Ltd 1957 2 SA 444 (W)..................................................... 342
Masstores (Pty) Ltd v Murray & Roberts Construction (Pty) Ltd 2008 6 SA 654 (SCA) .......................... 317
Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2016 2 SA 586 (SCA)............ 39, 51, 60, 105, 106, 369
Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 1 SA 613 (CC) .......................... 99, 104, 369, 376
Masuku v Mdlalose 1998 1 SA 1 (A) ..........................................................................................444, 445, 447
Masureik (t/a Lotus Corporation) v Welkom Municipality 1995 4 SA 745 (O)..................................186, 190
Mathe v Minister of Police [2017] 4 All SA 130 (GJ) ............................................................................... 303
Matlou v Makuhubedu 1978 1 SA 946 (A) ................................................................................................ 141
Matthews v Young 1922 AD 492 ............................................................................................ 10, 15, 375, 388
May v Parity Insurance Co Ltd 1967 1 SA 644 (D) ................................................................................... 275
May v Udwin 1981 1 SA 1 (A) ........................................................................... 143, 405, 406, 408, 409, 414
Maylett v Du Toit 1989 1 SA 90 (T) ............................................................................................................ 72
Mba v Southern Insurance Association Ltd 1981 1 SA 122 (Tk) ............................................................... 287
Mbhele v MEC for Health for the Gauteng Province (355/2015) [2016] ZASCA 166 .............................. 343
Mbhele v Natal Parks, Game and Fish Preservation Board 1980 4 SA 303 (D) ........................................ 440
McCalman v Thorne 1934 NPD 86 .....................................................................................................311, 428
McCann v Goodall Group Operations (Pty) Ltd 1995 2 SA 718 (C) .................... 65, 359, 360, 362, 364, 367
McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel
2012 6 SA 551 (GNP) ........................................................................... 39, 50, 61, 166, 179, 216, 236, 349
McDonald v Wroe [2006] 3 All SA 656 (C) .............................................................................................. 173
McIntosh v Premier, KwaZulu-Natal 2008 6 SA 1 (SCA) .............. 42, 49, 63, 75, 93, 98, 165, 181, 182, 189
McKelvey v Cowan 1980 4 SA 525 (Z) ..................................................................................................... 335
McKenzie v SA Taxi Cab 1910 WLD 232 ................................................................................................. 274
McKriel v Keely 1 SC 32 ........................................................................................................................... 368
McLelland v Hulett 1992 1 SA 456 (D) .............................................................. 350, 352, 353, 354, 355, 356
McMillan v Hubert Davies and Co Ltd 1940 WLD 256 ............................................................................ 447
McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N).................................................... 12, 39, 40, 47, 51, 52, 53
McNally v M & G Media (Pty) Ltd 1997 4 SA 267 (W) ........................................................ 20, 21, 399, 413
McPhee v Hazelhurst 1989 4 SA 551 (N) .................................................................................................. 408
mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA) ................... 11, 48, 215, 217, 232, 233, 236,
239, 248, 251, 351, 364, 365
Mdlalose v Minister of Police [2016] 4 All SA 950 (WCC) ...............................................................142, 416
Mdletshe v Litye 1994 3 SA 874 (E) .......................................................................................................... 320
Table of Cases 507
Page
MEC for Education, Western Cape Province v Strauss 2008 2 SA 366 (SCA) ......................................... 455
MEC for Health and Social Development, Gauteng Provincial Government v Zulu
[2016] ZASCA (30 November 2016) ..................................................................................................... 281
MEC for Health and Social Development, Gauteng v DZ 2018 1 SA 335 (CC)........................18, 23, 43, 87,
270, 281, 285
MEC for Health, Free State v DN 2015 1 SA 182 (SCA) .......................................................................... 305
MEC for Health, Mpumalanga v M-Net 2002 6 SA 714 (T) ...............................................................424, 425
MEC for Public Works, Eastern Cape v Faltein 2006 5 SA 532 (SCA) ..................................................... 446
Media 24 Limited v Du Plessis (127/2016) [2017] ZASCA 33 .......................................... 302, 403, 409, 410
Media 24 Ltd v Grobler 2005 6 SA 328 (SCA) ................................................... 342, 343, 345, 393, 420, 451
Media 24 Ltd v SA Taxi Securitisation 2011 5 SA 329 (SCA) ....................... 48, 50, 308, 381, 388, 390, 391
Media24 Bpk v Ramsay, Son & Parker (Edms) Bpk 2006 5 SA 204 (C) ...........................................378, 379
Medi-Clinic v Vermeulen 2015 1 SA 241 (SCA)................................................................................173, 187
Mediterranean Shipping Co (Pty) Ltd v Tebe Trading (Pty) Ltd
[2007] 2 All SA 489 (SCA) .............................................................................. 48, 50, 61, 63, 98, 101, 313,
315, 350, 351, 356
Mediterranean Shipping Co Ltd v Speedwill Shipping Co Ltd 1989 1 SA 164 (D)................................... 217
Meechan v VGA Chartered Accountants Partnership t/a PKF (VGA) Chartered Accountants
[2020] 2 All SA 510 (GJ) ............................................................................ 3, 351, 356, 360, 361, 364, 366
Meevis v Sheriff, Pretoria East 1999 2 SA 389 (T) ............................................ 216, 217, 218, 219, 231, 234,
235, 248, 252, 253, 419, 420, 443
Mehnert v Schlemmer (1908) 18 CTR 783 ................................................................................................ 124
Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ
2017 12 BCLR 1528 (CC) ...................................................................................................................... 279
Mentor v Union Government 1927 CPD 11 ............................................................................................... 394
Mercurius Motors v Lopez [2008] 3 All SA 238 (SCA) ............................................................................ 165
Merryweather v Scholtz 2020 3 SA 230 (WCC) ........................................................................................ 107
Messina Associated Carriers v Kleinhaus 2001 3 SA 868 (SCA) .............................................................. 454
Meter Systems Holdings Ltd v Venter 1993 1 SA 409 (W) ............................................................5, 374, 380
Metiso v Padongelukkefonds 2001 3 SA 1142 (T)..............................................................................333, 338
Metro Western Cape v Ross 1986 3 SA 181 (A) ........................................................................................ 286
Metwa v Minister of Health 1989 3 SA 600 (D) ........................................................................................ 446
Meyer v Van Niekerk 1976 1 SA 252 (T) .................................................................................................. 387
Meyers v MEC, Department of Health, EC 2020 3 SA 337 (SCA) ....................................................165, 173
Mfihlo v Port Elizabeth Municipal Council 1976 3 SA 183 (SE) .............................................................. 185
Mhlongo v Bailey 1958 1 SA 370 (W) ..............................................................................................8, 15, 425
Mhlongo v Minister of Police 1978 2 SA 551 (A) ..............................................................................137, 447
Michael v Linksfield Park Clinic (Pty) Ltd 2001 3 SA 1188 (SCA) .......................................................... 215
Midway Two Engineering & Construction Services v Transnet Bpk 1998 3 SA 17 (SCA) ...................... 446
Millward v Glaser 1949 4 SA 931 (A) ........................................................................................148, 150, 269
Milne v Shield Insurance Co Ltd 1969 3 SA 352 (A) ................................................................................ 299
Milns v Protea Assurance Co Ltd 1978 3 SA 1006 (C) .............................................................................. 277
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 6 SA 512 (W) ............ 303, 308, 399, 403, 405, 407
Minister for Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA) .............159, 161,
416, 418, 419
Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA);
2014 6 SA 1 (SCA)............................................................................... 12, 39, 61, 231, 233, 234, 236, 349,
350, 351, 352, 368, 370, 371, 372
Minister of Agriculture v Federal Theological Seminary 1979 4 SA 162 (E) ............................................ 389
Minister of Communications and Public Works v Renown Food Products 1988 4 SA 151 (C) ................ 319
Minister of Community Development v Koch 1991 3 SA 751 (A) ....................... 74, 100, 135, 136, 455, 456
Minister of Correctional Services v KwaKwa 2002 4 SA 455 (SCA) ........................................................ 389
Minister of Correctional Services v Lee 2012 3 SA 617 (SCA) ................................... 63, 79, 86, 93, 98, 165,
193, 226, 389, 443
Minister of Correctional Services v Tobani 2003 5 SA 126 (E) .......................................... 303, 397, 398, 444
Minister of Defence v Jackson 1991 4 SA 23 (ZS) .................................................................................... 277
508 Law of Delict
Page
Minister of Defence v Von Benecke 2013 2 SA 361 (SCA) ...............................................................449, 450
Minister of Education and Culture (House of Delegates) v Azal 1995 1 SA 30 (A) .................................. 317
Minister of Education v Wynkwart 2004 3 SA 577 (C) ......................................................................180, 181
Minister of Finance v EBN Trading (Pty) Ltd 1998 2 SA 319 (N) ...................................... 17, 163, 234, 248,
388, 419, 420, 443, 444
Minister of Finance v Gore 2007 1 SA 111 (SCA) .............................. 11, 42, 48, 78, 93, 102, 143, 224, 225,
226, 350, 351, 372, 447, 449, 450
Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 (A) ......................................... 68, 70, 72, 73, 198
Minister of Health, Western Cape v Goliath 2009 2 SA 248 (C) ............................................................... 396
Minister of Home Affairs v Rahim 2016 3 SA 218 (CC) ...................................................... 78, 137, 303, 397
Minister of Home Affairs v Watchenuka 2004 4 SA 326 (SCA) ................................................................. 20
Minister of Justice and Constitutional Development v Prince [2018] ZACC 30........................................ 422
Minister of Justice and Constitutional Development v X 2015 1 SA 25 (SCA) ................... 39, 42, 43, 61, 86,
166, 216, 303, 343, 345, 393
Minister of Justice v Hofmeyr 1993 3 SA 131 (A) ........................................... 4, 50, 163, 343, 344, 389, 392,
393, 394, 396, 397, 398, 443
Minister of Justice v SA Associated Newspapers Ltd 1979 3 SA 466 (C) ................................................. 411
Minister of Law and Order v Hurley 1986 3 SA 568 (A) ............................................................138, 142, 397
Minister of Law and Order v Kadir 1995 1 SA 303 (A) .............. 11, 40, 45, 64, 77, 86, 90, 95, 350, 352, 356
Minister of Law and Order v Milne 1998 1 SA 289 (W) ....................................................................108, 109
Minister of Law and Order v Monty 1995 1 SA 35 (A) ............................................................................. 392
Minister of Law and Order v Ngobo 1992 4 SA 822 (A) .................................................... 445, 451, 452, 453
Minister of Law and Order v Thusi 1994 2 SA 224 (N) ............................................................................. 416
Minister of Police v Du Plessis 2014 1 SACR 217 (SCA) ......................................................................... 137
Minister of Police v K (case no 403/2019) [2020] ZASCA 50 (6 May 2020);
2020 2 SACR 1 (SCA) ................................................................ 86, 89, 165, 180, 216, 217, 227, 234, 248
Minister of Police v Kunjana 2016 9 BCLR 1237 (CC), 2016 2 SACR .............................................136, 424
Minister of Police v Mbilini 1983 3 SA 705 (A) ................................................................. 420, 421, 445, 447
Minister of Police v Mboweni 2014 6 SA 256 (SCA) .................................................................................. 22
Minister of Police v Mthalane 1978 3 SA 542 (N) ..................................................................................... 140
Minister of Police v Rabie 1986 1 SA 117 (A)............................................ 444, 445, 447, 449, 451, 452, 453
Minister of Police v Skosana 1977 1 SA 31 (A).................................................. 193, 216, 217, 218, 224, 231
Minister of Posts and Telegraphs v Johannesburg Consolidated lnvestment Co Ltd 1918 TPD 253 ......... 455
Minister of Safety and Security: In re State v Walters, Ex parte 2002 4 SA 613 (CC) ...............139, 141, 142
Minister of Safety and Security v Augustine 2017 2 SACR 332 (SCA) .................................................... 424
Minister of Safety and Security v Booysen [2016] ZASCA 201 ................................................................ 450
Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA)...................... 22, 33, 36, 41, 76, 79, 80,
85, 86, 88, 89, 156, 165, 166, 174, 178, 179,
187, 194, 216, 217, 223, 224, 225, 230, 231, 353
Minister of Safety and Security v Craig [2010] 1 All SA 126 (SCA) .............................................79, 86, 165
Minister of Safety and Security v De Lima 2005 5 SA 575 (SCA) .......................................................77, 180
Minister of Safety and Security v F 2011 3 SA 487 (SCA).................................................................449, 452
Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA) ................... 22, 33, 36, 42, 45, 46, 61, 65,
77, 78, 85, 87, 89, 156, 165, 174,
216, 217, 224, 230, 231, 392
Minister of Safety and Security v Howard 2009 5 SA 201 (SG) ...........................................................39, 358
Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport 2000 4 SA 21 (SCA) .................. 448
Minister of Safety and Security v Kyriacou 2000 4 SA 337 (O) ................................................................ 414
Minister of Safety and Security v Luiters 2006 4 SA 160 (SCA); 2007 2 SA 106 (CC) .....................447, 450
Minister of Safety and Security v Madyibi 2010 2 SA 356 (SCA) ....................................... 77, 325, 336, 342
Minister of Safety and Security v Mohofe 2007 4 SA 215 (SCA) .......................... 50, 51, 165, 174, 182, 195
Minister of Safety and Security v Morudu 2015 ZASCA 91 ..................................................................... 450
Minister of Safety and Security v Msi 2019 ZASCA 26 .....................................................................449, 450
Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA) .................................. 36, 61, 65, 66, 77, 86,
156, 165, 166, 176, 319, 392
Minister of Safety and Security v Sekhoto 2011 5 SA 367 (SCA) .............. 137, 138, 139, 140, 142, 397, 398
Minister of Safety and Security v Seymour 2006 6 SA 320 (SCA).......................................................21, 303
Table of Cases 509
Page
Minister of Safety and Security v Tyokwana 2015 1 SACR 597 (SCA) .................................................... 137
Minister of Safety and Security v Tyulu 2009 5 SA 85 (SCA) ...................................................138, 303, 397
Minister of Safety and Security v Van der Walt [2015] 1 All SA 658 (SCA) .............................143, 397, 398
Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) ................. 18, 22, 33, 42, 65, 66,
77, 85, 86, 87, 89, 101, 156, 165, 166,
174, 180, 197, 216, 217, 219, 223,
224, 227, 228, 230, 231
Minister of Safety and Security v Van Niekerk 2008 1 SACR 56 (CC)..............................................139, 140
Minister of Safety and Security v Venter 2011 2 SACR 67 (SCA) ...............................................78, 202, 224
Minister of Safety and Security v WH 2009 4 SA 213 (E).................................................... 88, 217, 224, 231
Minister of Safety and Security v Xhego [2003] 2 All SA 269 (Ck).......................................................... 142
Minister of Transport NO v Du Toit 2007 1 SA 322 (SCA) ...................................................................... 203
Minister of Water Affairs v Durr [2007] 1 All SA 337 (SCA) ................................ 63, 70, 72, 73, 93, 98, 190
Minister van Polisie en Binnelandse Sake v Van Aswegen 1974 2 SA 101 (A) ........................................ 177
Minister van Polisie v Ewels 1975 3 SA 590 (A) ............................. 33, 39, 40, 41, 45, 53, 54, 59, 60, 61, 62,
64, 65, 66, 67, 68, 69, 77, 79, 88,
89, 94, 95, 105, 198, 351
Minister van Polisie v Gamble 1979 4 SA 759 (A) .................................................................................... 447
Minister van Polisie v Goldschagg 1981 1 SA 37 (A)................................................................................ 138
Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 1 SA 515 (SCA).................. 33, 42, 65, 79, 86, 87,
156, 174, 216, 217, 223, 224,
225, 230, 231, 262
Minister van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors
2002 5 SA 649 (SCA).............................................................................................. 217, 223, 277, 447, 449
Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK 2002 5 SA 475 (SCA) ...........447, 449
Minister van Verdediging v Van Wyk 1976 1 SA 397 (T)......................................................................... 441
Minister van Wet en Orde v Jacobs 1999 1 SA 944 (O) ............................................................................ 291
Minister van Wet en Orde v Ntsane 1993 1 SA 560 (A) .....................................................................200, 320
Minister van Wet en Orde v Wilson 1992 3 SA 920 (A)............................................................................ 451
Mistry v Interim Medical and Dental Council of South Africa 1998 4 SA 1127 (CC) .......................422, 423
Mitchell v Dixon 1914 AD 519 .................................................................................................................. 175
Mkhatswa v Minister of Defence 2000 1 SA 1004 (SCA) .................................................. 156, 166, 177, 178
Mkhize v Media 24 Ltd [2008] 4 All SA 267 (N) ...............................................................................302, 303
Mkhwanazi v Van der Walt 1995 4 SA 589 (A) .........................................................................165, 169, 183
Mkize v Martens 1914 AD 382 .................................................................................................................. 446
Mkize v South British Insurance Co Ltd 1948 4 SA 33 (D) ....................................................................... 299
Mkwanasi v Van der Merwe 1970 1 SA 609 (A) ................................................................................287, 319
Mlenzana v Goodrick & Franklin Inc 2012 2 SA 433 (FB) ....................................................................... 174
Mlilo v Minister of Police [2018] 3 All SA 240 (GP) .................................................................137, 300, 303
Mntambo v Road Accident Fund 2008 1 SA 313 (W) ........................................................................... 4, 271
Moaki v Reckitt and Colman (Africa) Ltd 1968 1 SA 702 (W) ............................................ 16, 161, 413, 418
Moatshe v Commercial Union Assurance Co of SA Ltd 1991 4 SA 372 (W) ........................................... 174
Modderfontein Squatters, Greater Benoni City Council; President of the Republic of
South Africa v Modderklip Boerdery (Pty) Ltd (AGRI SA and Legal Resources Centre,
Amici Curiae) 2004 6 SA 40 (SCA) ......................................................................................................... 22
Modimogale v Zweni 1990 4 SA 122 (B) ........................................................................... 253, 279, 280, 382
Modiri v Minister of Safety and Security 2011 6 SA 370 (SCA) ........................................ 406, 409, 410, 413
Moehlen v National Employers’ Mutual General Insurance Association Ltd 1959 2 SA 317 (R) ............. 233
Moeketsi v Minister van Justisie 1988 4 SA 707 (T) ................................................................................. 143
Mogale v Seima 2008 5 SA 637 (SCA)................................................................................... 7, 301, 302, 303
Moghamat v Centre Guards CC [2004] 1 All SA 221 (C) ......................................................................... 449
Mograbi v Miller 1956 4 SA 239 (T) ......................................................................................................... 302
Mohamed v Jassiem 1996 1 SA 673 (A) ..................................................................... 400, 404, 405, 407, 408
Mohamed v President of the Republic of South Africa 2001 3 SA 893 (CC) ............................................ 393
Mohan v Road Accident Fund 2008 5 SA 305 (D) .................................................................................... 285
Mokone v Tassos Properties CC 2017 5 SA 456 (CC) ............................................................................... 282
Mokwena v Laub 1943 WLD 63 ................................................................................................................ 334
510 Law of Delict
Page
Molefe v Mahaeng 1999 1 SA 562 (SCA) ........................................................................................29, 30, 31
Moller v SAR & H 1969 3 SA 374 (N) ...............................................................................................149, 442
Molotlegi v Mokwalase [2010] 4 All SA 258 (SCA) ................................................................................. 404
Moniel Holdings (Pty) Ltd v Premier of Limpopo Province [2007] 3 All SA 410 (T) ..... 22, 63, 78, 144, 350
Monteoli v Woolworths (Pty) Ltd 2000 4 SA 735 (W) .........................................................................71, 191
Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 2 SA 111 (C) ....................................256, 280, 284
Moodley v Bondcrete (Pty) Ltd 1969 2 SA 370 (N) .................................................................................. 371
Moore v Minister of Posts and Telegraphs 1949 1 SA 815 (A) ................................................................. 186
Mordt v Smith 1968 4 SA 750 (RA) ...................................................................................................124, 126
Moreno v Milner (1880) 1 EDC 145 .......................................................................................................... 417
Morris v African Guarantee & Indemnity Co Ltd 1964 4 SA 747 (W) ...................................................... 275
Morudu v Minister of Safety and Security case no 35474/2002 (unreported) (5-08-2013)........................ 450
Mosala v Santam Insurance Co Ltd 1986 1 SA 808 (O) ............................................................................ 174
Moseneke v The Master 2001 2 SA 18 (CC).......................................................................................... 20, 22
Moses v Minister of Law and Order 1995 2 SA 518 (C).............................................................393, 394, 398
Moses v Minister of Safety and Security 2000 3 SA 106 (C)....................... 33, 65, 66, 85, 86, 156, 174, 195,
198, 216, 217, 218, 219, 224, 225, 231
Moshole v PUTCO (Pty) Ltd 2011 5 SA 38 (GNP) ................................................................................... 320
Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 3 SA 896 (T) ............................. 153
Mostert v Cape Town City Council 2001 1 SA 105 (SCA) ................................................ 156, 166, 181, 191
Mostert v Nash [2018] 4 All SA 267 (GJ) ........................................................................... 399, 400, 409, 412
Motabatshindi v Minister of Police case nr A 3017/2014 (unreported)...................................................... 142
Motan v Joosub 1930 AD 61 ...................................................................................................................... 336
Motor Industry Fund Administrators (Pty) Ltd v Janit 1994 3 SA 56 (W).......................... 392, 423, 424, 425
Moubray v Syfret 1935 AD 199 .......................................................................................... 169, 184, 436, 440
Moulang v Port Elizabeth Municipality 1958 2 SA 518 (A) ........................................................................ 67
Mouton v Die Mynwerkersunie 1977 1 SA 119 (A) ...........................................................................174, 281
Moyse v Mujuru 1999 3 SA 39 (ZS) .......................................................................................................... 412
Mphosi v Central Board for Co-operative Insurance Ltd 1974 4 SA 633 (A) ............................................ 258
Mpongwana v Minister of Safety and Security 1999 2 SA 794 (C) ............ 42, 74, 77, 78, 79, 85, 88, 89, 195
Mrasi v Minister of Safety and Security 2015 2 SACR 28 (ECG) ............................................................. 393
MS v Road Accident Fund [2019] 3 All SA 626 (GJ) ................................................................................ 227
MSM obo KBM v Member of the Executive Council for Health, Gauteng Provincial Government
2020 2 SA 567 (GJ) .........................................................................................................................281, 282
Msutu v Protea Assurance Co Ltd 1991 1 SA 583 (C) ............................................................................... 185
Mtati v Minister of Justice 1958 1 SA 221 (A) ...................................................................................... 79, 88
Mtetwa v Minister of Health 1989 3 SA 600 (D) ....................................................................................... 447
Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) ............................ 20, 21, 390, 399, 403,
404, 405, 407, 410, 411, 415, 416
Mthimkhulu v Minister of Law and Order 1993 3 SA 432 (E) ...........................................................416, 417
Mthimunye v RCP Media 2012 1 SA 199 (T) .............................................................................302, 303, 403
MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA) ....................................... 4, 36, 41, 49, 69, 73, 97,
103, 104, 189, 194, 195, 353
Mtshayi v Roxa: Corbett and Buchanan II 381 .......................................................................................... 298
Mtyhopo v South African Municipal Workers Union National Provident Fund
2015 11 BCLR 1393 (CC) ...................................................................................................................... 404
Mugwena v Minister of Safety and Security 2006 4 SA 150 (SCA) ................................... 100, 108, 110, 113
Mukheiber v Raath 1999 3 SA 1065 (SCA) ............................................... 36, 51, 80, 81, 156, 166, 173, 177,
178, 217, 234, 240, 241, 248, 313, 315,
331, 358, 359, 360, 362, 363, 364, 365
Mulder v South British Insurance Co Ltd 1957 2 SA 444 (W) .................................................................. 344
Muller v Government of the Republic of South Africa 1980 3 SA 970 (T) ................................................. 74
Multiplan Insurance Brokers (Pty) Ltd v Van Blerk 1985 3 SA 164 (D) ................................................... 389
Mulvullha v Steenkamp 1917 CPD 57 ....................................................................................................... 127
Munarin v Peri-Urban Areas Health Board 1965 1 SA 545 (W) ................................................................ 333
Munengami v Minister of Defence 2007 2 SA 320 (ZH) ............................................................448, 449, 451
Table of Cases 511
Page
Municipality v Bridgman NO [2019] ZASCA 189 (3 Des 2019)............................................................... 178
Murdoch v Bullough 1923 TPD 495 .......................................................................................................... 381
Murray v McLean 1970 1 SA 133 (R)........................................................................................................ 367
Mutual and Federal Insurance Co Ltd v Swanepoel 1987 3 SA 399 (W)................................................... 275
Mutual and Federal Insurance Co Ltd v Swanepoel 1988 2 SA 1 (A) ........................................259, 275, 276
Mutual Life and Citizens’ Assurance Co Ltd v Evatt 1971 1 All ER 150 .................................................. 361
Muzik v Canzone del Mare 1980 3 SA 470 (C) ..........................................................................291, 292, 345
MV Lina: Union Shipping and Managing Co SA v Lina Maritime Ltd 1998 4 SA 633 (N) ..................... 380
MV Stella Tingas Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas 2003 2 SA 473 (SCA) ..... 168
Myburg v Hanekom 1966 2 SA 157 (GW)................................................................................................. 283
N
N v T 1994 1 SA 862 (C) ............................................................................................ 311, 343, 345, 348, 393
Naicker v Moodley 2011 2 SA 502 (KZD) ................................................................................................ 186
Naidoo v Minister of Police [2015] 4 All SA 609 (SCA)..............................................................78, 139, 165
Naidoo v Vengtas 1965 1 SA 1 (A) ............................................................................................................ 163
Naidu v Minister of Correctional Services [2017] 2 All SA 651 (WCC) ................................................... 187
Nandutu v Minister of Home Affairs 2019 5 SA 325 (CC) .......................................................................... 20
Napier v Collett 1995 3 SA 140 (A) ............................................................................ 230, 231, 233, 236, 251
Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions
2012 1 SA 615 (GSJ) ......................................................................................................... 94, 234, 248, 315
Nasionale Pers Bpkt v Long 1930 AD 87............................................................................................160, 161
Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 4 SA 749 (N) .............12, 39, 40, 41
National Coalition for Gay & Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC) .....................20, 422
National Employers’ General lnsurance Co Ltd v Sullivan 1988 1 SA 27 (A) .......................................... 169
National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA) ................................... 20, 21, 44, 190, 399, 400, 405,
406, 407, 410, 411, 415
National Media Ltd v Jooste 1996 3 SA 262 (A) ............................................................ 5, 421, 422, 423, 425
Nationwide Airlines (Pty) Ltd (in liquidation) v South African Airways (Pty) Ltd
2016 6 SA 19 (GJ) ........................................................................................................... 267, 284, 287, 374
Naude and Du Plessis v Mercier 1917 AD 32 ............................................................................................ 109
Naylor v Jansen; Jansen v Naylor 2006 3 SA 546 (SCA) ................................... 303, 405, 406, 407, 408, 449
Nconwya v Cantor 1984 2 SA 400 (SE) ..................................................................................................... 447
Ncoyo v Commissioner of Police, Ciskei 1998 1 SA 128 (Ck) ................... 218, 221, 231, 234, 235, 248, 397
Ncubu v National Employers General Insurance Co Ltd 1988 2 SA 190 (N) ............................................ 334
Ndaba v Purchase 1991 3 SA 640 (N) ........................................................................................................ 204
Ndamse v University College of Fort Hare 1966 4 SA 137 (E) ................................................................. 312
Ndlovu v AA Mutual Insurance Association Ltd 1991 3 SA 655 (E) .................................................172, 185
Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd
2000 4 SA 916 (SCA).............................................................................................. 212, 319, 320, 321, 354
Neethling v Du Preez; Neethling v The Weekly Mail 1994 1 SA 708 (A) .................................405, 408, 414
Neethling v Oosthuizen 2009 5 SA 376 (WCC)......................................................... 165, 166, 211, 216, 224,
225, 231, 234, 240
NEHAWU v Tsatsi 2006 6 SA 327 (SCA).......................................................................... 402, 403, 407, 408
Nel v Le Roux 1996 3 SA 562 (CC)........................................................................................................... 422
Nell v Nell 1990 3 SA 889 (T) ............................................................................................ 392, 393, 422, 424
Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 2 SA 81 (SE)................................. 153
Netherlands Insurance Co of SA Ltd v Van der Vyver 1968 1 SA 412 (A) ........................................200, 210
Neuhaus v Bastion Insurance Co Ltd 1967 4 SA 275 (W) ......................................................................... 331
New Kleinfontein Co Ltd v Superintendent of Labourers 1906 TS 241 .................................................... 369
New Media Publishing (Pty) Ltd v Eating Out Web Services CC 2005 5 SA 388 (C) .......................378, 379
Newman v Prinsloo 1973 1 SA 125 (W) .................................................................................................... 398
Ngcobo v Santam Insurance Co Ltd 1994 2 SA 478 (T) ............................................................................ 276
Ngcobo v Shembe 1983 4 SA 66 (D) ..................................................................................................403, 404
Ngomane v Johannesburg (City) 2020 1 SA 52 (SCA) .........................................................................22, 255
Ngubane v South African Transport Services 1991 1 SA 756 (A) .............. 165, 169, 181, 182, 183, 195, 279
512 Law of Delict
Page
Ngubetole v Administrator, Cape 1975 3 SA 1 (A).................................................................................... 448
Nieuwenhuizen v Union and National Insurance Co Ltd 1962 1 SA 760 (W) ....................................158, 331
Nino’s Coffee Bar & Restaurant CC v Nino’s Italian Coffee & Sandwich Bar CC 1998 3 SA 656 (C).... 378
Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1998 1 SA 657 (ZSC) ...................................................... 267
NK v MEC for Health, Gauteng 2018 4 SA 454 (SCA) .............................. 282, 291, 294, 295, 299, 300, 301
Nkabinde v SA Motor and General Insurance Co Ltd 1961 1 SA 302 (N) .................................330, 334, 370
Nkala v Harmony Gold Mining Company Ltd (Treatment Action Campaign NPC as Amici Curiae)
2016 5 SA 240 (GJ) ................................................................................................. 8, 18, 23, 306, 307, 308
Nkumbi v Minister of Law and Order 1991 3 SA 29 (E) ............................................................64, 65, 77, 88
NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 5 SA 250 (CC) ..........15, 35, 65, 195,
196, 303, 422, 423, 425
NM v Smith 2005-05-13 case no 02/24948 (W) ........................................................................................ 308
Nortje v Attorney-General, Cape 1995 2 SA 460 (C) .................................................................................. 42
Nortje v Fakie 2013 1 SA 577 (KZP) ......................................................................................................... 314
Norton v Ginsberg 1953 4 SA 537 (A) ................................................................................................163, 301
NSC Carriers & Forwarding CC v Hyprop Investments Ltd 2013 1 SA 340 (GSJ)................................... 315
NT v Kunene [2017] 4 All SA 865 (GJ)..................................................................................................... 423
Ntai v Vereeniging Town Council 1953 4 SA 579 (A) .............................................................................. 109
Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk) ......... 19, 24, 43, 100, 107, 112, 113, 114, 115
Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C) .......... 108, 109, 112, 113, 115, 116, 117, 122
Ntsala v Mutual & Federal Insurance Co Ltd 1996 2 SA 184 (T) .......................................................186, 190
Ntsele v MEC for Health, Gauteng Provincial Government [2013] 2 All SA 356 (GSJ)..............78, 173, 192
Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) .................................................. 100, 108, 109, 110,
112, 113, 115, 117
Ntwenteni v Allianz lns Co Ltd 1992 2 SA 713 (Ck) ................................................................................. 286
Nydoo v Vengtas 1965 1 SA 1 (A) .............................................................................................. 408, 413, 414
Nzimande v MEC for Health, Gauteng 2015 6 SA 192 (GP) ..................................................................... 191
O
O v O 1995 4 SA 482 (W) ............................................................................................. 21, 399, 408, 425, 430
O’Callaghan v Chaplin 1927 AD 310 ......................................................................... 435, 436, 437, 438, 439
O’Keeffe v Argus Printing and Publishing Co Ltd 1954 3 SA 244 (C) ........................ 16, 422, 423, 425, 426
Obotseng v Lebone 1994 4 SA 88 (B)........................................................................................................ 447
Ocean Accident and Guarantee Corporation Ltd v Koch 1963 4 SA 147 (A) .............................215, 229, 248
Ochse v King William’s Town Municipality 1990 2 SA 855 (E) ....................................... 396, 416, 417, 418
Odendaal v Road Accident Fund 2002 3 SA 70 (W)...........................................................................187, 218
Odinfin (Pty) Ltd v Reynecke 2018 1 SA 153 (SCA) ............................................. 42, 65, 66, 91, 92, 97, 106
Oelofsen v Cigna Insurance Co of SA Ltd 1991 1 SA 74 (T) .................................................................... 217
OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA 688 (SCA)......... 11, 207, 208, 217,
219, 223, 231, 233, 252,
364, 365, 367
OK Bazaars (1929) Ltd v Stern and Ekermans 1976 2 SA 521 (C) ........................................................... 207
Oliphant v RAF [2008] 4 All SA 239 (SCA) ......................................................................................165, 179
Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA)...................... 22, 24, 42, 75, 78, 90,
91, 101, 143, 255
Olivier v Minister of Safety and Security 2009 3 SA 432 (W)......................................................50, 303, 397
Omega Africa Plastics v Swisstool Manufacturing Co (Pty) Ltd 1978 3 SA 465 (A) ................................ 275
Ongevallekommissaris v Onderlinge Versekeringsgenootskap AVBOB 1976 4 SA 446 (A) ................... 446
Ongevallekommissaris v Santam Bpk 1999 1 SA 251 (SCA) ............................................. 275, 276, 279, 332
Online Lottery Services (Pty) Ltd v National Lotteries Board [2007] 1 All SA 618 (T) ....................378, 379
Oosthuizen v Homegas (Pty) Ltd 1992 3 SA 463 (O) ...........................................................................72, 275
Oosthuizen v Stanley 1938 AD 322 ....................................................................................................334, 336
Oosthuizen v Van Heerden t/a Bush Africa Safaris 2014 6 SA 423 (GP) .......................................40, 41, 182
Oppelt v Department of Health, Western Cape 2016 1 SA 325 (CC) ................ 42, 78, 79, 93, 104, 156, 165,
173, 215, 217, 226, 231
Oslo Land Co Ltd v Union Government 1938 AD 584 ....................................................... 267, 270, 271, 273
Table of Cases 513
Page
Osman v Road Accident Fund 2015 6 SA 74 (GP) .................................................................................... 334
Otto v Santam Versekering Bpk 1992 3 SA 615 (O).................................................................................. 313
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Wagon Mound No 1)
[1961] 1 All ER 404 (PC) ..................................................................................................................37, 239
Overseas Tankship (UK) v The Miller Steamship Company 1967 1 AC 617 ............................................ 182
Owens v Liverpool Corporation 1939 1 KB 394 ........................................................................................ 238
Owners of Dredger Liesbosch v Owners of Steamship Edison 1933 AC 449............................................ 239
P
Page v First National Bank Ltd 2009 4 SA 484 (E) ............................................................................175, 353
Page v Malcomess 1922 EDL 284.............................................................................................................. 284
Paixão v Road Accident Fund 2012 6 SA 377 (SCA) ............................................... 36, 39, 44, 334, 338, 339
Pakendorf v De Flamingh 1982 3 SA 146 (A) ........................................................................................... 415
Pappalardo v Hau 2010 2 SA 451 (SCA) ................................................................................................... 442
Parity Insurance Co Ltd v Hill: Corbett and Buchanan I 680 ..................................................................... 299
Parker v Reed (1904) 21 SC 496 ................................................................................................................ 436
Parker v Scott (1894) 14 NLR 218 ............................................................................................................. 125
Park-Ross v Director: Office for Serious Offences 1995 2 SA 148 (C) ..................................................... 422
Parktown High School for Girls v Emeran 2019 4 SA 188 (SCA)............................................................. 454
Parry v Cleaver 1970 AC 1......................................................................................................................... 278
Pasela v Rondalia Versekeringskorporasie van SA Bpk 1967 1 SA 339 (T) ............................................. 337
Passenger Rail Agency of South Africa v Moabelo [2017] 4 All SA 648 (SCA) ........................................ 86
Paton v Caledonian Insurance Co 1962 2 SA 691 (D) ............................................................................... 454
Paton v Santam Insurance 1965 2 PH J25 .................................................................................................. 274
Patterson v Engelenburg and Wallach’s Ltd 1917 TPD 350 ...................................................................... 409
Patz v Greene and Co 1907 TS 427 ......................................................................................... 91, 92, 309, 380
Pauw v African Guarantee and Indemnity Co Ltd 1950 2 SA 132 (SWA) ............................. 8, 292, 301, 302
Payen Components SA Ltd v Bovic Gaskets CC 1994 2 SA 464 (W) ................................ 375, 375, 376, 380
Payne v Minister of Transport 1995 4 SA 153 (C) ......................................................................133, 134, 203
PE v Ikwezi Municipality 2016 5 SA 114 (ECG) ....................................... 343, 393, 420, 448, 449, 450, 451
Pehlani v Minister of Police [2014] ZAWCHC 146 ................................................................................... 450
Penrice v Dickinson 1945 AD 6 ................................................................................................................. 143
Penrith v Stuttaford 1925 CPD 154 ............................................................................................................ 446
Pepsico Inc v United Tobacco Co Ltd 1988 2 SA 334 (W) .................................................................374, 378
Peri-Urban Areas Health Board v Munarin 1965 3 SA 367 (A) ..........................................................275, 276
Perlman v Zoutendyk 1934 CPD 151 ............................................................................ 4, 5, 11, 358, 362, 365
Peter v Minister of Law and Order 1990 4 SA 6 (E) ...................................................................335, 430, 431
Peter v Peter 1959 2 SA 347 (A) ................................................................................................................ 430
Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) ............... 100, 117, 118, 119, 120, 122
Pexmart CC v H Mocke Construction (Pty) Ltd 2019 3 SA 117 (SCA) .................................................... 380
PGB Boerdery Beleggings (Edms) Bpk v Sommerville 62 (Edms) Bpk
2008 2 SA 428 (SCA)..............................................................................................................148, 152, 153
Philip Morris Inc v Marlboro Shirt Co SA Ltd 1991 2 SA 720 (A) ........................................................... 379
Philotex (Pty) Ltd v Snyman; Braitex (Pty) Ltd v Snyman 1998 2 SA 138 (SCA) .................................... 168
Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 2 SA 34 (CC)................................ 449
Phumelela Gaming and Leisure Ltd v GrĦndlingh 2007 6 SA 350 (CC) .................... 11, 19, 22, 39, 375, 376
Picbel Groep Voorsorgfonds (in liquidation) v Somerville, and related matters
2013 5 SA 496 (SCA)............................................................................................................................. 321
Pick ’n Pay Retailers (Pty) Ltd v Liberty Group Ltd 2015 4 SA 241 (GP) ................................................ 369
Pickitup Johannesburg SCO Ltd v Nair 2019 5 SA 540 (GJ) ..........................................................8, 319, 321
Pienaar v Argus Printing and Publishing Co Ltd 1956 4 SA 310 (T) ......................................................... 405
Pienaar v Brown 2010 6 SA 365 (SCA) ..............................................................................................175, 455
514 Law of Delict
Page
Pienaar v Pretoria Printing Works, Reno and Stent 1906 TS 805 .............................................................. 303
Pierce v Hau Mon 1944 AD 175 ................................................................................................................ 200
Pietermaritzburg and District Council for the Care of the Aged v Redlands Development
Projects (Pty) Ltd 2018 4 SA 113 (SCA) ................................................................................307, 442, 443
Pieters v Botha 1989 3 SA 607 (T) ......................................................................................................439, 440
Pietersburg Municipality v Rautenbach 1917 TPD 252 ............................................................................. 248
Pieterse v Clicks Group Ltd 2015 5 SA 317 (GJ)................................................ 303, 403, 412, 413, 416, 420
Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807 ................................................................. 238
Pike v Minister of Defence 1996 3 SA 127 (Ck) ................................................. 325, 330, 332, 334, 336, 370
Pillai v New India Assurance Co Ltd 1961 2 SA 70 (N) ............................................................................ 291
Pillai v Pillai 1963 1 SA 542 (D) ................................................................................................................ 394
Pinchin v Santam Insurance Co Ltd 1963 2 SA 254 (W) ............................................................................. 37
Pinshaw v Nexus Securities (Pty) Ltd 2002 2 SA 510 (C) ....................................................................28, 314
Pitt v Economic Insurance Co Ltd 1957 3 SA 284 (D) ...................................................................... 276, 299
Platinum Asset Management (Pty) Ltd; Anglo Rand Capital House (Pty) Ltd v Financial
Services Board 2006 4 SA 73 (W) ......................................................................................................... 422
Plotkin v Western Assurance Co Ltd 1955 2 SA 385 (W) ..................................................................335, 341
Plumridge v Road Accident Fund 2012-05-08 case no 265/2009 (ECP) ................................................... 131
Polemis and Furness, Withy & Co Ltd, In re 1921 3 KB 560 .............................................................238, 239
Pont v Geyser 1968 2 SA 545 (A) .............................................................................................................. 302
Poovalingan v Rajbansi 1992 1 SA 283 (A) ............................................................................................... 407
Portwood v Svamvur 1970 4 SA 8 (RA) .............................................................................................218, 221
Post and Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 3 SA 1114 (ZS) .......... 390
Post Newspapers (Pty) Ltd v World Printing and Publishing Co Ltd 1970 1 SA 454 (W) ........................ 381
Potgieter v Kilian 1995 11 BCLR 1498 (N) ............................................................................ 20, 21, 399, 406
Potgieter v Potgieter 1959 1 SA 194 (W) ....................................................................................................... 7
Potgieter v Rondalia Assurance Corporation of SA Ltd 1970 1 SA 705 (N) ......................................240, 253
Potgieter v Smit 1985 2 SA 690 (D) ....................................................................................................438, 439
Potgieter v Sustein (Edms) Bpk 1990 2 SA 15 (T)..................................................................................... 305
Potgieter v University of Stellenbosch [2017] 1 All SA 282 (WCC) .................. 3, 69, 99, 104, 181, 187, 194
Powell v ABSA Bank Ltd t/a Volkskas Bank 1998 2 SA 807 (SE) ........................................................... 354
Powell v Jonker 1959 4 SA 443 (T) ............................................................................................ 124, 126, 127
Premier Hangers CC v Polyoack (Pty) Ltd 1997 1 SA 416 (A) ............................................................11, 380
Premier of the Western Cape Province v Loots NO [2011] JOL 27067 (SCA) ..................................177, 249
Premier Trading Co (Pty) Ltd v Sporttopia (Pty) Ltd 2000 3 SA 259 (SCA) .....................................378, 379
Premier, KwaZulu-Natal v Sonny 2011 3 SA 424 (SCA) ....................................................... 80, 81, 173, 331
Premier, Western Cape v Faircape Property Developers (Pty) Ltd
2003 6 SA 13 (SCA)......................................................................... 22, 24, 33, 35, 36, 37, 42, 75, 92, 101,
135, 156, 165, 166, 176, 190, 195
Premier, Western Cape v Kiewitz 2017 4 SA 202 (SCA) ...........................................................279, 280, 281
President Insurance Co Ltd v Mathews 1992 1 SA 1 (A)....................................................................269, 285
President Insurance Co Ltd v Retsos 1988 1 SA 276 (A)........................................................................... 174
President of the Republic of South Africa v South African Rugby Football Union
2000 1 SA 1 (CC) ................................................................................................................................... 422
Pretoria City Council v De Jager 1997 2 SA 46 (A)......................................................................73, 169, 181
Pretoria Municipality v Esterhuizen 1928 TPD 678 ................................................................................... 322
Pretoria Portland Cement Co Ltd v Competition Commission 2003 2 SA 385 (SCA) ...............392, 422, 424
Pretorius v Masilela 1994 3 SA 167 (T) ..................................................................................................... 420
Pretorius v McCallum 2002 2 SA 423 (C) ................................................................................................. 357
Pretorius v Minister of Correctional Services 2004 2 SA 658 (T).......................................................389, 393
Pretorius v Niehaus 1960 3 SA 109 (O) ..............................................................................................401, 402
Pretorius v Transnet Bpk 1995 2 SA 309 (A) ......................................................................................275, 276
Prince v Minister of Justice 2017 4 SA 299 (WCC) ............................................................................422, 423
Prince v Minister of Law and Order 1987 4 SA 231 (E) .....................................................................141, 179
Pringle v Administrator Transvaal 1990 2 SA 379 (W) ..............................................................173, 175, 192
Prinsloo v Newman 1975 1 SA 481 (A) ..................................................................................................... 418
Prinsloo v RCP Media Ltd t/a Rapport 2003 4 SA 456 (T) .................................................................422, 423
Table of Cases 515
Page
Prinsloo v Road Accident Fund 2009 5 SA 406 (SE) ..........................................................................266, 285
Prinsloo v Road Accident Fund 2015 6 SA 91 (WCC) ...............................................................250, 253, 274
Prinsloo v Shaw 1938 AD 570 ............................................................................................................153, 309
Prinsloo v Van der Linde 1997 6 BCLR 759 (CC)..................................................................................... 190
Pro Tempo Akademie CC v Van der Merwe 2018 1 SA 181 (SCA) .................. 49, 67, 71, 73, 78, 96, 98, 99
Probst v Pick ’n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W) .................................................7, 183, 201
Prok Africa (Pty) Ltd v NTH (Pty) Ltd 1980 3 SA 687 (W) ...................................................................... 380
Protea Assurance Co Ltd v Lamb 1971 1 SA 530 (A) ............................................................................... 300
Protea Assurance Co Ltd v LTA Building SWA Ltd 1988 1 SA 303 (A) .................................................. 216
Publication Control Board v Gallo Africa Ltd 1975 3 SA 665 (A) .............................................................. 44
PV v AM 2015 3 SA 376 (ECP).................................................................................................. 428, 429, 430
Q
Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) .......................................................................... 22
Quantana v Union and SWA Insurance Co Ltd: Corbett and Buchanan II 680.......................................... 295
Qunta v Bay Passenger Transport: Corbett and Buchanan II 368 .............................................................. 295
Qunta v Minister of Police 2013 ZAECGHC 53 ........................................................................................ 142
R
R and I Laboratories (Pty) Ltd v Beauty Without Cruelty International (South African Branch)
1990 3 SA 746 (C) ...........................................................................................................................308, 381
R v Ahmed 1959 3 SA 776 (W) ................................................................................................................... 29
R v Arlow 1960 2 SA 499 (T) .................................................................................................................... 144
R v Chipo 1953 4 SA 573 (A) ...................................................................................................................... 15
R v Cilliers 1903 ORC l ............................................................................................................................. 144
R v Dhlamini 1955 1 SA 120 (T) ........................................................................................................... 29, 31
R v Du Plessis 1950 1 SA 297 (O) ............................................................................................................... 29
R v Dudley and Stephens (1884) 14 QBD 273 ........................................................................................... 121
R v Eustace (2) 1948 3 SA 859 (T) ........................................................................................................ 72, 73
R v Garnsworthy 1923 WLD 17................................................................................................................. 121
R v Holliday 1927 CPD 395 ....................................................................................................................... 424
R v Jack 1908 TS 131 ................................................................................................................................. 393
R v Jacobs 1941 OPD 7 .............................................................................................................................. 146
R v Janke and Janke 1913 TPD 382 ....................................................................................................145, 146
R v Jolly 1923 AD 176 ............................................................................................................................... 160
R v K 1956 3 SA 353 (A) ........................................................................................................................... 112
R v Kumalo 1952 1 SA 381 (A) ..........................................................................................................144, 393
R v Le Maitre and Avenant 1947 4 SA 616 (C) ......................................................................................... 145
R v Liebenberg 1917 OPD 67 .................................................................................................................... 145
R v Loubser 1953 2 PH H190 (W) ..............................................................................................237, 238, 252
R v Louw (1904) 21 SC 36 ......................................................................................................................... 144
R v M 1953 4 SA 393 (A) .......................................................................................................................... 130
R v Mabole 1968 4 SA 811 (R) .................................................................................................................. 252
R v Mahomed 1938 AD 30..........................................................................................................119, 120, 122
R v Mahomed, Goolam and Suliman (1906) 27 NLR 396 ..................................................................113, 115
R v Makali 1950 1 SA 340 (N)................................................................................................................... 220
R v Makeke; R v Makona 1942 SR 47 ....................................................................................................... 130
R v McCoy 1953 2 SA 4 (SR) .................................................................................................................... 131
R v Mkize 1959 2 SA 260 (N) ...................................................................................................................... 29
R v Molife 1940 AD 202 .....................................................................................................................113, 114
R v Moloy 1953 3 SA 659 (T) .................................................................................................................... 110
R v Motomane 1961 4 SA 569 (W) ............................................................................................................ 252
R v Mtetwa 1921 TPD 227 ......................................................................................................................... 121
R v Muller 1948 4 SA 848 (O) ................................................................................................................... 145
R v Mutswasi 1931 SALJ 343 .................................................................................................................... 115
516 Law of Delict
Page
R v Ndara 1955 4 SA 182 (A) .................................................................................................................... 109
R v Netcare (Pty) Ltd t/a Umhlanga Hospital [2016] 4 All SA 195 (KZP) ................................................ 285
R v Ngang 1960 3 SA 363 (T) ...................................................................................................................... 29
R v Nhete 1941 SR 1 .................................................................................................................................... 29
R v Nomahleki 1928 GWL 8 ...................................................................................................................... 109
R v Patel 1959 3 SA 121 (A) ............................................................................................... 111, 112, 113, 116
R v Peverett 1940 AD 213 .......................................................................................................................... 160
R v Rossouw 1960 3 SA 326 (T) .................................................................................................................. 29
R v Roux 1932 OPD 59 .............................................................................................................................. 146
R v Sagaye 1932 NPD 236 ......................................................................................................................... 131
R v Scheepers 1915 AD 337................................................................................................................145, 146
R v Schoombee 1924 TPD 481 .................................................................................................................. 145
R v Schoonwinkel 1953 3 SA 136 (C) ................................................................................................... 29, 31
R v Schultz 1942 OPD 56....................................................................................................................109, 115
R v Smith (1900) 17 SC 561 ...............................................................................................................144, 145
R v Soga Mgikela (1893) 10 SC 240 .......................................................................................................... 145
R v Swiggelaar 1950 1 PH H61 (A) ........................................................................................................... 130
R v Taylor 1927 CPD 16 .............................................................................................................128, 130, 131
R v Umfaan 1908 TS 62 ........................................................................................................................15, 393
R v Van Vuuren 1944 OPD 35 ................................................................................................................... 144
R v Van Vuuren 1961 3 SA 305 (E) ............................................................................................109, 125, 393
R v Victor 1943 TPD 77 ......................................................................................................................... 29, 31
R v Webb 1934 AD 493 ............................................................................................................................... 45
R v Werner 1947 2 SA 828 (A) ...........................................................................................................121, 144
R v Zikalala 1953 2 SA 568 (A) ..........................................................................................................113, 117
Raath v Nel 2012 5 SA 273 (SCA) ............................................................................................................. 264
Rabie v Kimberley Munisipaliteit 1991 4 SA 243 (NC) ..................................................... 68, 69, 73, 74, 203
Radebe v Hough 1949 1 SA 380 (A) ..................................................................................... 11, 291, 298, 299
Radell v Multilateral Motor Vehicle Accidents Fund 1995 4 SA 24 (A) ................................................... 281
Rademeyer v Western Districts Council 1998 3 SA 1011 (SE) ..........................................................149, 153
Raduvha v Minister of Safety and Security (Centre for Child Law as amicus curiae)
2016 10 BCLR 1326 (CC) ...................................................................................................................... 138
RAF v Coughlan 2014 6 SA 376 (SCA) .................................................................................................... 276
RAF v M obo M [2005] 3 All SA 340 (SCA) .............................................................................................. 38
RAF v Timis [2010] JOL 25244 (SCA) ..................................................................................................... 276
Rahim v Minister of Home Affairs 2016 4 SA 433 (SCA) ........................................................................ 137
Rail Commuter Action Group v Transnet Ltd t/a Metrorail 2003 5 SA 518 (C) .................................... 85, 86
Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 2 SA 359 (CC) .....................22, 85, 86, 87
Ralekwa v Minister of Safety and Security 2004 1 SACR 131 (T) ............................................................ 139
Raliphaswa v Mugivhi [2008] 3 All SA 92 (SCA) ...................................... 136, 302, 303, 406, 414, 420, 424
Ramakulukusha v Commander, Venda National Force 1989 2 SA 813 (V) ...............................301, 393, 416
Rampal (Pty) Ltd v Brett, Wills and Partners 1981 4 SA 360 (D) ............................................................. 174
Ramphal v Minister of Safety and Security 2009 1 SACR 211 (E) ....................................................139, 142
Ramsay v Minister van Polisie 1981 4 SA 802 (A) .....................................................................100, 398, 419
Rand Water Board v Lane 1909 TH 4; Randfontein Estates Gold Mining Co
Witwatersrand Ltd v Sacks 1945 CPD 101 ............................................................................................ 389
Rand Waterraad v Bothma 1997 3 SA 120 (O) ................................................................... 148, 149, 150, 151
Randaree v Dixon 1983 2 SA 1 (A)............................................................................................................ 175
Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 4 SA 363 (A) ............................................ 453
Randbond Investments (Pty) Ltd v FPS (Northern Region) (Pty) Ltd 1992 2 SA 608 (W) ................212, 320
Raqa v Hofman 2010 1 SA 302 (WCC) ..................................................................................................... 371
Rautenbach v Licences and General lnsurance: Corbett and Buchanan I ................................................... 300
Ravene Plantations Ltd v Estate Abrey 1928 AD 143 ................................................................................ 453
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 2 SA 307 (A) ...................378, 381
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1995 1 SA 725 (T) ........................... 378
Reddy v Durban Corporation 1939 AD 293 ............................................................................................... 136
Redelinghuis v Bazzoni 1976 1 SA 110 (T) ............................................................................................... 442
Table of Cases 517
Page
Redelinghuys v Parity Insurance Co Ltd: Corbett and Buchanan I ............................................................ 298
Refrigerated Transport (Edms) Bpk v Mainline Carriers (Edms) Bpk 1983 3 SA 121 (A)........................ 370
Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) .............................................. 67, 70, 123, 148, 151,
150, 152, 198, 309
Reid v SAR & H 1965 2 SA 181 (N) ......................................................................................................... 277
Reid-Daly v Hickman 1981 2 SA 315 (ZA) ............................................................................................... 424
Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) .................... 397, 398, 416, 417, 418, 419
Retief v Groenewald (1896) 10 EDC 140 .................................................................................................. 248
Revelas v Tobias 1999 2 SA 440 (W) ........................................................................................................ 284
Reyneke v Mutual and Federal Insurance Co Ltd 1991 3 SA 412 (W) ............... 288, 292, 294, 295, 296, 297
RH Johnson Crane Hire (Pty) Ltd v Grotto Steel Construction (Pty) Ltd
1992 3 SA 907 (C) ...........................................................................................................................445, 446
RH v DE 2014 6 SA 436 (SCA) .............................................................. 39, 93, 101, 103, 428, 429, 430, 431
Rhodesian Printing and Publishing Co Ltd v Duggan 1975 1 SA 590 (RA) .............................................. 425
Ries v Boland Bank PKS Ltd 2000 4 SA 955 (C) ........................................ 42, 44, 45, 65, 66, 166, 349, 350,
351,352, 353, 355, 356, 357
Rini v Carr 1921 EDL 239 ......................................................................................................................... 397
Rivett-Carnac v Wiggins 1997 3 SA 80 (C) .................................................... 21, 43, 399, 401, 403, 404, 406
Rizla International BV v L Suzman Distributors (Pty) Ltd 1996 2 SA 527 (C) ......................................... 379
RK v Minister of Basic Education [2019] ZASCA 192 ............................................................................... 22
RL Weir and Co v De Lange 1970 4 SA 25 (E) ......................................................................................... 419
Road Accident Fund v Delport NO 2006 3 SA 172 (SCA) ........................................................................ 290
Road Accident Fund v Grobler 2007 6 SA 230 (SCA) .............................................................................. 185
Road Accident Fund v Guedes 2006 5 SA 583 (SCA) ........................................................................282, 290
Road Accident Fund v Kerridge 2019 2 SA 233 (SCA) ......................................................................283, 285
Road Accident Fund v Krawa 2012 2 SA 346 (ECG) .................................................................3, 4, 255, 334
Road Accident Fund v Landman 2003 1 SA 610 (C) ..................................................................180, 185, 223
Road Accident Fund v Maphiri 2004 2 SA 258 (SCA) .............................................................................. 276
Road Accident Fund v Marunga 2003 4 SA 164 (SCA) .....................................................................291, 298
Road Accident Fund v Mehlomakulu 2009 5 SA 390 (E) .......................................................................... 191
Road Accident Fund v Mohohlo 2018 2 SA 65 (SCA) ....................................................... 279, 334, 336, 337
Road Accident Fund v Monani 2009 4 SA 327 (SCA) .............................................................................. 285
Road Accident Fund v Mongalo; Nkabinde v Road Accident Fund 2003 3 SA 119 (SCA) ...................... 337
Road Accident Fund v Mtati 2005 6 SA 215 (SCA) .....................................................................38, 190, 195
Road Accident Fund v Myhill NO 2013 5 SA 426 (SCA) ......................................................................... 204
Road Accident Fund v Odendaal 2004 1 SA 515 (W).................................................................180, 187, 223
Road Accident Fund v Russell 2001 2 SA 34 (SCA) .......................................................... 216, 233, 250, 252
Road Accident Fund v Sauls 2002 2 SA 55 (SCA) .................................................... 231, 233, 291, 342, 343,
345, 346, 347, 348
Road Accident Fund v Van Rhyn [2007] 3 All SA 689 (E) ....................................................................... 290
Robbertse v Minister van Veiligheid en Sekuriteit 1997 4 SA 168 (T) ...............................................108, 118
Roberts v Northern Assurance Co Ltd 1964 4 SA 531 (D) .................................................................277, 294
Roberts v Van Schalkwyk and Roberts 2017-3-16 case no 1984/2014 (FSB) ........................................... 431
Robinson v Roseman 1964 1 SA 710 (T) ................................................................................................... 298
Rodrigues v Alves 1978 4 SA 834 (A) ....................................................................................................... 446
Roe v Ministry of Health [1954] 2 All ER 131 (CA) ................................................................................. 187
Roestoff v Cliffe Dekker Hofmeyr Inc 2013 1 SA 12 (GNP) .................................................................... 174
Rofdo (Pty) Ltd t/a Castle Crane Hire v B & E Quarries (Pty) Ltd 1999 3 SA 941 (SE) ........................... 446
Rohloff v Ocean Accident and Guarantee Corp Ltd 1960 2 SA 291 (A) ................................................... 323
Roman v Pietersen 1990 3 SA 350 (C) ................................................................................................453, 454
Romansrivier Koöperatiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd
1993 2 SA 358 (C) ...................................................................................................................283, 451, 452
Rondalia Assurance Corporation of SA Ltd v Britz 1976 3 SA 243 (T) .................................................... 330
Rosen v Pretorius 1970 2 PH J32 (N) ......................................................................................................... 322
Rosenbaum v Margolis 1944 WLD 147 ..................................................................................................... 430
Rosenthal v Marks 1944 TPD 172.............................................................................................................. 168
518 Law of Delict
Page
Rossouw v Sachs 1964 2 SA 551 (A) ......................................................................................................... 389
Rostrar (Pvt) Ltd v Netherlands Bank of Rhodesia Ltd 1972 2 SA 703 (R) .............................................. 354
Roux v Evcom 2002 2 SA 199 (T) ............................................................................................................. 448
Roux v Hattingh 2012 6 SA 428 (SCA) ............................................................................. 35, 47, 48, 93, 100,
134, 160, 196, 394
Rowan v Minister of Safety and Security NO [2011] 3 All SA 443 (GSJ) .................................140, 142, 303
Roy v Basson NO 2007 5 SA 84 (C) .......................................................................................................... 442
Royal Beech-nut (Pty) Ltd t/a Manhattan Confectioners v United Tobacco Co Ltd t/a Willard Foods
1992 4 SA 118 (A) ..........................................................................................................................373, 379
Rozny v Mornul (1969) 43 111 2d, 250 NE 2d .......................................................................................... 355
Rudman v Road Accident Fund 2003 2 SA 234 (SCA) .............................................. 263, 264, 266, 269, 285
Rudolph v Commissioner for Inland Revenue 1994 3 SA 771 (W) ........................................................... 422
Rudolph v Minister of Safety and Security 2009 5 SA 94 (SCA) ....................... 138, 161, 303, 416, 418, 419
Ryan v Petrus 2010 1 SA 169 (ECG) ..................................................................................................303, 420
Ryland v Edros 1997 2 SA 690 (C) ........................................................................................................ 43, 44
Rylands v Fletcher 1868 LR 3 HL 330 ....................................................................................................... 435
S
S v A 1971 2 SA 293 (T) ......................................................................................................... 15, 16, 423, 424
S v Adams, S v Werner 1981 1 SA 187 (A) ............................................................................................... 117
S v Alexander 1982 4 SA 701 (T) .............................................................................................................. 167
S v Arnold 1985 3 SA 256 (C) ..................................................................................................................... 30
S v Baartman 1983 4 SA 395 (NC) .............................................................................................................. 30
S v Bailey 1982 3 SA 772 (A) ............................................................................................. 117, 121, 155, 197
S v Banda 1990 3 SA 466 (B) .............................................................................................................144, 145
S v Bernardus 1965 3 SA 287 (A) .......................................................................................................244, 253
S v Bester 1971 4 SA 28 (T)....................................................................................................................... 393
S v Beukes 1988 1 SA 511 (A)............................................................................................................160, 161
S v Bezuidenhout 1964 2 SA 651 (A) .......................................................................................................... 30
S v Bochris Investments (Pty) Ltd 1988 1 SA 861 (A) .............................................................................. 179
S v Boshoff 1981 1 SA 393 (T) .................................................................................................................. 424
S v Bradbury 1967 1 SA 387 (A) ........................................................................................................120, 122
S v Burger 1975 4 SA 877 (A) ................................................................................................................... 169
S v Chipinge Rural Council 1989 2 SA 342 (ZS).................................................................. 82, 184, 217, 224
S v Chretien 1981 1 SA 1097 (A)..........................................................................................................29, 159
S v Claasen 1962 3 SA 308 (O) .................................................................................................................. 186
S v Collett 1978 3 SA 206 (RA) ..................................................................................................131, 133, 134
S v Counter 2003 1 SACR 143 (SCA) ................................................................................................218, 223
S v Crockart 1971 2 SA 496 (RA) .........................................................................................................30, 186
S v Daniëls 1983 3 SA 275 (A) ........................................................................................... 217, 218, 237, 238
S v De Blom 1977 3 SA 513 (A) .........................................................................................................160, 163
S v De Bruyn 1968 4 SA 498 (A) ............................................................................................................... 160
S v De Oliviera 1993 2 SACR 59 (A) ........................................................................................................ 111
S v De Vries 1989 1 PH H37 (NC)............................................................................................................. 158
S v Dhlamini 1988 2 SA 302 (A) ............................................................................................................... 168
S v Dladla 1980 1 SA 1 (A) ........................................................................................................................ 161
S v Dougherty 2003 4 SA 229 (W) .....................................................................................................111, 197
S v Du Preez 1972 4 SA 584 (A) ................................................................................................................ 160
S v Edward 1992 2 SA SACR 429 (ZH) ...................................................................................................... 30
S v Els 1993 1 SACR 723 (O) ...................................................................................................................... 29
S v Erwin 1974 3 SA 438 (C) ................................................................................................................30, 186
S v Fernandez 1966 2 SA 259 (A) .......................................................................................................... 72, 73
S v Gesualdo 1997 2 SACR 68 (W) ........................................................................................................... 159
S v Goliath 1972 3 SA 1 (A) ......................................................... 29, 44, 47, 55, 90, 120, 121, 122, 145, 197
S v Goosen 1989 4 SA 1013 (A) .........................................................................................................160, 164
S v I 1976 1 SA 781 (RA) .......................................................................................................................... 424
Table of Cases 519
Page
S v Jansen 1983 3 SA 534 (NC) ................................................................................................................. 110
S v Johnson 1969 1 SA 201 (A) ........................................................................................................28, 29, 30
S v Kibi 1978 4 SA 173 (E) .........................................................................................................109, 111, 122
S v Kidson 1999 1 SACR 338 (W) ............................................................................................................. 423
S v Kramer 1987 1 SA 887 (W) ................................................................................................................. 173
S v Lombard 1964 4 SA 346 (T) .................................................................................................................. 30
S v Lubbe 1963 4 SA 459 (W) ..................................................................................................................... 30
S v Lungile 1999 2 SACR 597 (SCA) ........................................................................................................ 164
S v M 2008 3 SA 232 (CC) .......................................................................................................................... 70
S v MacDonald 1963 2 SA 431 (C) ............................................................................................................ 337
S v Mahlinza 1967 1 SA 408 (A) ................................................................................................................. 30
S v Makwanazi 1967 2 SA 593 (N) ............................................................................................................ 182
S v Makwanyane 1995 3 SA 391 (CC) ......................................................................... 20, 113, 114, 116, 420
S v Malik 1987 2 SA 813 (A) ..................................................................................................................... 186
S v Malinga 1963 1 SA 692 (A) ................................................................................................................. 160
S v Marx 1962 1 SA 848 (N) ...............................................................................................................132, 393
S v Masilela 1968 2 SA 558 (A)................................................................................................................. 164
S v Matsemela 1988 2 SA 254 (T) ............................................................................................................... 46
S v Meyer 1972 2 PH H(S) 62 (R) ............................................................................................................. 175
S v Mienies 1978 4 SA 560 (A) ................................................................................................................. 161
S v Mini 1963 3 SA 188 (A)....................................................................................................................... 160
S v Mkhwanazi 1988 4 SA 30 (W) ............................................................................................................. 217
S v Mneke 1961 2 SA 240 (N) ................................................................................................................... 121
S v Mogohlwane 1982 2 SA 587 (T) ...................................................................................................109, 111
S v Mokgethi 1990 1 SA 32 (A) ........................................................................... 96, 217, 222, 229, 231, 233,
234, 235, 236, 241, 244, 252
S v Mokoena 1976 4 SA 162 (O) ............................................................................................................... 115
S v Mokoena 1979 1 PH H13 (A) .............................................................................................................. 217
S v Moller 1971 4 SA 327 (T) .................................................................................................................... 118
S v Motleleni 1976 1 SA 403 (A) ............................................................................................................... 112
S v Mule 1990 1 SACR 517 (SWA) ........................................................................................................... 144
S v Naidoo 1974 4 SA 574 (N)................................................................................................................... 167
S v Naidoo 2003 1 SACR 347 (SCA) .........................................................................................160, 164, 179
S v Nair 1993 1 SACR 452 (A) .................................................................................................................. 164
S v Ncube 1978 1 SA 1178 (R) .................................................................................................................... 29
S v Ndlangisa 1969 4 SA 324 (E) ............................................................................................................... 109
S v Ngema 1992 2 SACR 651 (D).............................................................................................................. 173
S v Ngubane 1985 3 SA 677 (A) ......................................................................................... 155, 160, 161, 168
S v Nkombani 1963 4 SA 877 (A).............................................................................................................. 161
S v Ntuli 1975 1 SA 429 (A) ...................................................................................................................... 115
S v Orrie 2004 3 SA 584 (C) .......................................................................................................392, 393, 424
S v P 1972 3 SA 412 (A) ............................................................................................................................ 160
S v Pietersen 1983 4 SA 904 (E) ................................................................................................................ 158
S v Potgieter 1994 1 SACR 61 (A) ............................................................................................................... 29
S v Pretorius 1975 2 SA 85 (SWA) ............................................................................................. 119, 122, 196
S v Ramagaga 1965 4 SA 254 (O)................................................................................................................ 30
S v Robson; S v Hattingh 1991 3 SA 322 (W) ........................................................................................... 195
S v Russell 1967 3 SA 739 (N)............................................................................................................... 28, 90
S v Sam 1980 4 SA 289 (T) ........................................................................................................................ 163
S v September 1972 3 SA 389 (C).............................................................................................................. 167
S v Sigwahla 1967 4 SA 566 (A).................................................................................................160, 161, 167
S v Smith 1973 3 SA 217 (T) ..................................................................................................................... 168
S v Smith 1981 4 SA 140 (C) ..................................................................................................................... 167
S v Speedy 1985 2 SA 782 (A)................................................................................................................... 163
S v Stellmacher 1983 2 SA 181 (SWA) ....................................................................................................... 30
S v Trickett 1973 3 SA 526 (T) .........................................................................................................29, 30, 31
S v V 1979 2 SA 656 (A) ........................................................................................................................... 160
520 Law of Delict
Page
S v Van As 1967 4 SA 594 (A) ...................................................................................................217, 224, 230
S v Van As 1976 2 SA 921 (A) ................................................................................... 165, 169, 170, 244, 253
S v Van Dyk 1969 1 SA 601 (C) ................................................................................................................ 158
S v Van Rensburg 1987 3 SA 35 (T) ............................................................................................................ 30
S v Van Zyl 1969 1 SA 553 (A) ..........................................................................................................161, 168
S v Van Zyl 1984 1 PH H13 (A) .................................................................................................................. 28
S v Volschenk 1968 2 PH H283 (D) .......................................................................................................... 130
S v Wiid 1990 1 SACR 561 (A) ................................................................................................................... 29
S v Williams 1986 4 SA 1188 (A) .............................................................................................................. 229
S v Zoko 1983 1 SA 871 (N) ...................................................................................................................... 167
SA Associated Newspapers Ltd v Estate Pelser 1975 4 SA 797 (A) ...................................................390, 405
SA Associated Newspapers Ltd v Samuels 1980 1 SA 24 (A) ............................................................302, 403
SA Associated Newspapers Ltd v Schoeman 1962 2 SA 613 (A).......................................................387, 403
SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) ....................................................8, 53, 302, 403
SA Eagle Insurance Co Ltd v Hartley 1990 4 SA 333 (A) ......................................................................... 268
SA Eagle Versekeringsmaatskappy Bpk v Harford 1992 2 SA 786 (A) .................................................... 169
SA Onderlinge Brand- en Algemene Versekeringsmpy Bpk v Van den Berg 1976 1 SA 602 (A) ............ 323
SA Transport and Allied Workers Union v Garvis [2011] 4 All SA 475 (SCA) ........................................ 166
Saaiman v Minister of Safety and Security 2003 3 SA 496 (O) ........................................... 64, 65, 66, 79, 80,
85, 88, 89, 188, 231
Saayman v RAF [2011] 1 All SA 581 (SCA) ............................................................................................. 285
Saayman v Visser 2008 5 SA 312 (SCA) ......................................................................................74, 189, 455
Sachs v Werkerspers Uitgewersmaatskappy (Edms) Bpk 1952 2 SA 261 (W) .......................................... 303
Sager v Bezuidenhout 1980 3 SA 1005 (O) ............................................................................................... 394
Saget v Bataillou (1868) 1 Buch 32 ............................................................................................................ 125
Saitowitz v Provincial Insurance Co Ltd 1962 3 SA 443 (W) .....................................................265, 325, 331
Salzmann v Holmes 1914 AD 471 ......................................................................................................... 7, 302
Sambo v Milns 1973 4 SA 312 (T) ............................................................................................................. 135
Samson v Winn 1977 1 SA 761 (C) ........................................................................................................... 185
Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 ...................................................... 287, 291, 298, 299
Sandown Park (Pty) Ltd v Hunter 1985 1 SA 248 (W) .............................................................................. 275
Sanlam Capital Markets (Pty) Ltd v Mettle Manco (Pty) Ltd) [2014] 3 All SA 454 (GJ) ......................... 367
Santam Bpk v Fondo 1960 2 SA 467 (A) ............................................................................ 332, 333, 334, 337
Santam Bpk v Henery 1999 3 SA 421 (SCA) .................................................................... 332, 333, 334, 337,
338, 349, 351, 352
Santam Insurance Co Ltd v Ferguson 1985 4 SA 843 (A) ......................................................................... 287
Santam Insurance Co Ltd v Fourie 1997 1 SA 611 (A) .......................................................................257, 335
Santam Insurance Co Ltd v Gouws 1985 2 SA 629 (A) ......................................................................169, 186
Santam Insurance Co Ltd v Leal 1968 4 SA 645 (A) ................................................................................. 169
Santam Insurance Co Ltd v Nkosi 1978 2 SA 784 (A)............................................................................... 184
Santam Insurance Co Ltd v Vorster 1973 4 SA 764 (A) ............................. 129, 132, 133, 134, 206, 210, 211
Santam Insurance Ltd v Meredith 1990 4 SA 265 (Tk).......................................................................332, 335
Santam Ltd v Gerdes 1991 SA 693 (SCA) ................................................................................................. 274
Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 2 SA 146 (A) .............. 267, 269, 273, 275, 278, 285
Santam Versekeringsmaatskappy Bpk v Letlojane 1982 3 SA 318 (A) ..................................................... 203
Santam Versekeringsmaatskappy Bpk v Swart 1987 4 SA 816 (A) ........................................................... 165
SAR & H v Edwards 1930 AD 3 .................................................................................................436, 437, 438
SAR & H v Estate Saunders 1931 AD 276 .................................................................................................. 82
SAR & H v Lyle Shipping Co Ltd 1958 3 SA 416 (A) .............................................................................. 317
Sardi v Standard & General Insurance Co Ltd 1977 3 SA 776 (A) ............................................................ 191
SAS & H v Reed 1965 3 SA 439 (A) ......................................................................................................... 186
Sasol III (Edms) Bpk v Minister van Wet en Orde 1991 3 SA 766 (T) ...................................................... 425
Sasol Synthetic Fuels v Lambert 2002 2 SA 21 (SCA) .......................................................................274, 276
SATAWU v Garvas 2013 1 SA 83 (CC) .............................................................................................166, 319
SAUK v O’Malley 1977 3 SA 394 (A) ................................................. 15, 403, 405, 406, 407, 413, 414, 415
Sauls v Hendrickse 1992 3 SA 912 (A) ...................................................................................................... 405
Savage and Lovemore Mining (Pty) Ltd v International Shipping Co (Pty) Ltd 1987 2 SA 149 (W) ....... 176
Table of Cases 521
Page
Sayed v Editor, Cape Times 2004 1 SA 58 (C) ............................................. 43, 399, 400, 405, 407, 410, 413
Scheepers v African Guarantee and Indemnity Co Ltd 1962 3 SA 657 (E) ............................................... 294
Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 1 SA 398 (D) ...................................................................... 283
Schmidt v Road Accident Fund [2007] 2 All SA 338 (W) ......................................................................... 299
Schnellen v Rondalia Assurance Corp of SA Ltd 1969 1 SA 517 (W) .......................................271, 272, 331
Schoeman v Unie en SWA Versekeringsmaatskappy Bpk 1989 4 SA 721 (C) ......................................... 204
Schourie v Afrikaanse Pers Publikasies 1966 1 PH J1 (W)........................................................................ 410
Schultz v Butt 1986 3 SA 667 (A) ............................................................... 11, 39, 40, 46, 373, 374, 375, 380
Scott and Leisure Research and Design (Pty) Ltd v Watermaid (Pty) Ltd 1985 1 SA 211 (C) .................. 375
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
2000 1 SA 827 (SCA)...................................................................................................... 156, 166, 177, 178
Sea Harvest Corporation (Pty) Ltd v Irvin and Johnson Ltd 1985 2 SA 355 (C) ................................379, 380
Searles Industrials (Pty) Ltd v International Power Marketing (Pty) Ltd 1982 4 SA 123 (T) .................... 378
Seema v Lid van die Uitvoerende Raad vir Gesondheid, Gauteng 2002 1 SA 771 (T) .....................69, 87, 88
Seetal v Pravitha 1983 3 SA 827 (D).......................................................................................................... 424
Seevnarayan v Garlicke and Bousfield Inc [2015] 2 All SA 503 (KZD) ................................................... 174
Seleka v Road Accident Fund 2016 4 SA 445 (GP) ................................................................................... 336
Selemela v Independent Newspaper Group Ltd 2001 4 SA 987 (NC) ................................ 399, 404, 406, 411
Senior v National Employers General Insurance Co Ltd 1989 2 SA 136 (W) ............................275, 334, 335
Sentrachem Bpk v Wenhold 1995 4 SA 312 (A)........................................................................................ 280
Sepheri v Scanlan 2008 1 SA 322 (C) .................................................................................................311, 428
September v Subramoney NO [2019] 4 All SA 927 (WCC) ........................................................................ 20
Serfontein v Smith 1941 WLD 195 ............................................................................................................ 186
Seria v Minister of Safety and Security 2005 5 SA 130 (C) ................................................................303, 397
Seroot v Pieterse 2005-06-13 case no 33377/2005 (T) ..........................................................................20, 428
Serumela v SA Eagle Insurance Co Ltd 1981 1 SA 391 (T) ...................................................................... 276
Seti v Multilateral Motor Vehicle Accidents Fund 1999 1 SA 1035 (SCA) ...............................173, 185, 193
Setlogelo v Setlogelo 1914 AD 221 ........................................................................................................... 309
Sex Worker Education and Advocacy Task Force (SWEAT) v Minister of Safety and Security
2009 6 SA 513 (WCC) ........................................................................................................................... 142
Seymour v Minister of Safety and Security 2006 5 SA 495 (W) ........................................................... 7, 302
Shabalala v Metrorail 2007 3 SA 167 (W) ......................................................................................86, 87, 224
Shabalala v Metrorail 2008 3 SA 142 (SCA) ...................................................................... 63, 86, 93, 98, 180
Sheffield Electro-Plating and Enamelling Works Ltd v Metal Signs and Nameplates (Ply) Ltd
1949 1 SA 1034 (W)............................................................................................................................... 381
Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA
1980 3 SA 653 (D) ............................................................................................................. 37, 42, 349, 350,
352, 353, 370, 371
Sheriff, Pretoria East v Meevis 2001 3 SA 454 (SCA)........................................................................163, 420
Shidiack v Union Government (Minister of the Interior) 1912 AD 642..................................................... 142
Shield Insurance Co Ltd v Booysen 1979 3 SA 953 (A); 1980 3 SA l211 (SE)......................................... 287
Shoba v Minister van Justisie 1982 2 SA 554 (C) .......................................................................397, 398, 443
Shoprite Checkers (Pty) Ltd v Masstores (Pty) Ltd [2016] 3 All SA 926 (ECG)....................................... 369
Shrog v Valentine 1949 3 SA 1228 (T) .......................................................................................279, 280, 284
Sibisi NO v Maitin 2014 6 SA 533 (SCA) ................................................................................................. 132
Sievers v Bonthuys 1911 EDL 525 ............................................................................................................ 396
Signature Design Workshop CC v Eskom Pension and Provident Fund 2002 2 SA 488 (C)..................... 272
Sigournay v Gillbanks 1960 2 SA 552 (A) .......................................................... 268, 275, 291, 293, 294, 300
Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 2 SA 256 (A).................................................... 67, 79
Silver Crystal Trading (Pty) Ltd v Namibia Diamond Corporation (Pty) Ltd
1983 4 SA 884 (D) ..................................................................................................................374, 375, 380
Silver v Premier, Gauteng Provincial Government 1998 4 SA 569 (W) ..................... 217, 218, 219, 221, 222
Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 2 SA 888 (A) .................. 169, 216, 217, 218, 220
221, 224, 226, 231, 359, 360, 362, 364
Simon’s Town Municipality v Dews 1993 1 SA 191 (A) ................................... 135, 136, 169, 176, 188, 190
Simpson v Williams 1975 4 SA 312 (N) .................................................................................................... 303
522 Law of Delict
Page
Sindani v Van der Merwe 2000 3 SA 494 (W)....................................................................................403, 404
Singh v Ebrahim (1) [2010] 3 All SA 187 (D) ....................................................................................284, 331
Sizani v Minister of Police 1980 3 SA 1205 (SE) ...................................................................................... 392
Skead v Melco Elevator (South Africa) (Pty) Ltd [2010] 3 All SA 445 (GSJ) ...........................165, 455, 456
SKJ v PJ 2016-7-22 case no 4918/2012 (KZND)................................................................................401, 429
Slomowitz v Vereeniging Town Council 1966 3 SA 317 (A) .............................................................270, 271
SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd
2000 4 SA 1019 (SCA) .............................................................................................. 37, 39, 40, 42, 46, 175
SM Goldstein v Gerber 1979 4 SA 930 (A) ............................................................................................... 284
Smit v Abrahams 1992 3 SA 158 (C) ................................................................. 178, 216, 217, 231, 237, 239,
240, 245, 248, 249, 250, 253
Smit v Abrahams 1994 4 SA 1 (A) ...................................................... 229, 231, 233, 234, 235, 249, 254, 264
Smit v Arthur 1976 3 SA 378 (A) .............................................................................................................. 430
Smit v General Accident Fire and Life Assurance Corporation Ltd 1964 3 SA 739 (C) ........................... 233
Smit v Meyerton Outfitters 1971 1 SA 137 (T) .......................................................................................... 398
Smit v Minister van Polisie 1997 4 SA 893 (T) ......................................................................................... 448
Smit v OVS Afrikaanse Pers Bpk 1956 1 SA 768 (O) ............................................................................... 409
Smit v Saipem 1974 4 SA 918 (A) ........................................................................................ 12, 283, 370, 371
Smit v Standard General Versekeringsmaatskappy Bpk 1979 4 SA 624 (O) ....................................29, 30, 31
Smit v Suid-Afrikaanse Vervoerdienste 1984 1 SA 246 (C) .........................................................68, 189, 202
Smit v Workmen’s Compensation Commissioner 1979 1 SA 51 (A) .........................................445, 446, 455
Smith and Lardner-Burke v Wonesayi 1972 3 SA 289 (RA) ..................................................................... 163
Smith v Burger 1917 CPD 662 ................................................................................................................... 437
Smith v Die Republikein (Edms) Bpk 1989 3 SA 872 (SWA) ................................................................... 302
Smith v London & South Western Ry Co 1870 LR 6 CP 14 ..................................................................... 238
Smith v Mutual & Federal Insurance Co Ltd 1998 4 SA 626 (C) .......................................................334, 336
Smith v Road Accident Fund 2006 4 SA 590 (SCA) ................................................................................. 320
Smith v SA Eagle Insurance Co Ltd 1986 2 SA 314 (SE).......................................................................... 203
Snyders v Groenewald 1966 3 SA 785 (C)................................................................................................. 335
Socout Ally v R 1907 TS 336 ..................................................................................................................... 131
Sokhulu v New Africa Publications Ltd 2001 4 SA 1357 (W) ....................................................403, 404, 420
Solomon v De Waal 1972 1 SA 575 (A) .....................................................................................292, 301, 436
Solomon v Du Preez 1920 CPD 401 .......................................................................................................... 368
Sonny v Premier, KwaZulu-Natal 2010 1 SA 427 (KZP) .....................................................................80, 165
Soobramoney v Minister of Health, KwaZulu-Natal 1998 1 SA 765 (CC) .................................................. 78
South African Broadcasting Corporation v Avusa Ltd 2010 1 SA 280 (GSJ)............................................ 390
South African General Investment and Trust Co Ltd v Mavaneni 1963 4 SA 89 (D) .........................453, 454
South African Hang and Paragliding Association v Bewick 2015 3 SA 449 (SCA) ................. 12, 75, 84, 103
South African Municipal Workers Union v Jada 2003 6 SA 294 (W) ....................................................... 128
South African National Defence Union v Minister of Defence 2012 4 SA 382 (GNP) .....................300, 301,
302, 390, 403, 409
South African Post Office v De Lacy 2009 5 SA 255 (SCA) .................................... 48, 78, 92, 143, 351, 449
South African Railways and Harbours v Marais 1950 4 SA 610 (A) ......................................................... 448
South British Insurance Co Ltd v Smit 1962 3 SA 826 (A) ........................................................158, 201, 202
Southern Insurance Association Ltd v Bailey 1984 1 SA 98 (A) ................................ 282, 293, 294, 295, 299
Southern Insurance Association Ltd v Danneberg 1976 3 SA 253 (A) ...................................................... 186
Spar Group Ltd v FirstRand Bank Ltd [2016] 4 All SA 646 (GP) .................... 60, 61, 62, 318, 350, 354, 355
Spendiff v East London Daily Dispatch Ltd 1929 EDL 113 ...................................................................... 387
Spinner Communications v Argus Newspapers Ltd 1996 4 SA 637 (W)................................................... 378
Spolander v Ward 1940 CPD 24 ................................................................................................................ 370
Spur Steak Ranches Ltd v Saddles Steak Ranch, Claremont 1996 3 SA 706 (C) ...............................375, 380
Squire v Sasol Mynbou (Edms) Bpk 1993 3 SA 298 (T) ....................................................................203, 448
SS v Road Accident Fund [2016] 3 All SA 637 (GP) ...................................................................38, 215, 226
St Augustine’s Hospital (Pty) Ltd v Le Breton 1975 2 SA 530 (D) ........................................................... 173
Stacey v Kent 1992 4 SA 495 (C) .............................................................................................................. 191
Stacey v Kent 1995 3 SA 344 (E) ............................................................................................................... 191
Stadsraad van Pretoria v Pretoria Pools 1990 1 SA 1005 (T) ..................................................................... 446
Table of Cases 523
Page
Stallion Security v Van Staden 2020 1 SA 64 (SCA) ................................................................................. 452
Standard Bank of SA Ltd v Harris (JA du Toit Inc Intervening) 2003 2 SA 23 (SCA) ............................. 354
Standard Bank of South Africa Ltd v Coetsee 1981 1 SA 1131 (A) ........................... 216, 231, 240, 358, 365
Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 4 SA 382 (W).................39, 49, 79, 156,
231, 234, 359, 360, 362,
363, 364, 365, 368
Standard Bank of South Africa Ltd v Supa Quick Auto Centre 2006 4 SA 65 (N) .............................358, 381
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A)................. 169, 174, 178, 222,
231, 233, 234, 235, 251, 281,
358, 359, 360, 362, 363, 364, 365
Standard General Insurance Co Ltd v Dugmore 1997 1 SA 33 (A) ........................................................... 276
Stanfield v Minister of Correctional Services 2004 4 SA 43 (C) ............................................................... 389
Stedall v Aspeling 2018 2 SA 75 (SCA) .................................................................. 35, 41, 64, 65, 70, 72, 73,
78, 95, 169, 189, 194
Steele v Minister of Safety and Security 2009-02-27 case no 10767/2005 (C) .............................................. 7
Steenberg v De Kaap Timber (Pty) Ltd 1992 2 SA 169 (A)..................................................................72, 169
Steenkamp NO v Provincial Tender Board, Eastern Cape
2006 3 SA 151 (SCA) ........................................................................................... 12, 41, 63, 75, 78, 91, 93,
101, 143, 189, 194, 351, 353
Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) ........... 35, 36, 39, 40, 42, 78,
92, 98, 101, 118, 143, 351
Steenkamp v Minister of Justice 1961 1 PH J9 26 (O) ............................................................................... 294
Stein v Rising Tide Productions CC 2002 5 SA 199 (C) ..................................................... 445, 446, 455, 456
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1972 3 SA 152 (C) ....................................375, 379
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 2 SA 221 (C) ........................................... 378
Stern v Podbrey 1947 1 SA 350 (C) ........................................................................................................... 396
Stewart v Botha 2008 6 SA 310 (SCA) ............................................. 41, 42, 49, 61, 63, 81, 93, 102, 173, 194
Stoffberg v Elliott 1923 CPD 148 ....................................................................... 120, 130, 132, 393, 394, 396
Stolp v Kruger 1976 2 SA 477 (T) ............................................................................................................. 371
Stols v Garlicke & Bousfield Inc 2012 4 SA 415 (KZP) ................... 39, 41, 65, 67, 85, 93, 98, 353, 355, 360
Stratton v Spoornet 1994 1 SA 803 (T) ...............................................................................................179, 185
Strydom v ABSA Bank Bpk 2001 3 SA 185 (T) ........................................................................................ 354
Strydom v Fenner-Solomon 1953 1 SA 519 (E)......................................................................................... 128
STT Sales (Pty) Ltd v Fourie 2010 6 SA 272 (GSJ)................................................................................... 380
Sueltz v Bolttler 1914 EDL 176 ................................................................................................................. 342
Suid-Afrikaanse Bantoetrust v Ross en Jacobz 1977 3 SA 184 (T) ....................................................359, 360
Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy Bpk v Louw & Collins Afslaers Edms)
Bpk 1997 1 SA 592 (A) ...................................................................................................................217, 364
Sutter v Brown 1926 AD 155 ......................................................................................................302, 303, 402
Swanee’s Cartage (Pty) Ltd v SH Jansen & Sons 1988 1 PH J8 (E) .......................................................... 191
Swanepoel v Minister van Veiligheid en Sekuriteit 1999 4 SA 549 (T) .....................................421, 423, 425
Swart v Honeyborne 1981 1 SA 974 (C) .................................................................................................... 436
Swart v Provincial Insurance Co Ltd 1963 2 SA 630 (A) .......................................................................... 279
Swart v Santam Versekeringsmaatskappy Bpk 1986 2 SA 377 (T) ........................................................... 203
Swartbooi v Road Accident Fund [2012] 3 All SA 593 (WCC) ................. 292, 298, 342, 343, 345, 346, 348
Swartz v Minister of Police: Corbett and Buchanan II 353 ........................................................................ 291
Swinburne v Newbee Investments (Pty) Ltd 2010 5 SA 296 (KZD) ........................................61, 66, 70, 317
Symmonds v Rhodesia Railways Ltd 1917 AD 582 .................................................................................. 271
T
Tap Wine Trading CC v Cape Classic Wines (Western Cape) CC [1998] 4 All SA 86 (C);
1999 4 SA 194 (C) ...........................................................................................................................400, 423
Tarmacadam Services (SA) (Pty) Ltd v Minister of Defence 1980 2 SA 689 (T) .................................12, 371
Taylor and Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 1 SA 412 (A) ..................................... 11, 375, 377, 380
Taylor v SAR & H 1958 1 SA 139 (N) ...................................................................................................... 301
524 Law of Delict
Page
Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development
2014 2 SA 168 (CC) ............................................................................................................................... 388
Telefund Raisers CC v Isaacs 1998 1 SA 521 (C) ...................................................................................... 380
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
2006 1 SA 461 (SCA) ....................................................................... 3, 4, 11, 12, 41, 48, 50, 54, 61, 63, 66,
91, 93, 94, 96, 98, 101, 102, 142,
143,189, 194, 197, 349, 351, 353
Telkom (SA) Ltd v Duncan 1995 3 SA 941 (W) .................................................................................435, 459
Tenza v Putco Ltd 1998 2 SA 330 (N) ................................................................................................180, 217
Teper v McGees Motors 1956 1 SA 738 (C) .............................................................................................. 274
Terblanche v Minister of Safety and Security [2009] 2 All SA 211 (C) ....................... 50, 142, 149, 396, 397
Terblanche v Minister of Safety and Security 2016 2 SA 109 (SCA) .........................................264, 269, 285
Thabethe v Minister of Police 1981 3 SA 569 (D) ..............................................................................108, 113
Thandani v Minister of Law and Order 1991 1 SA 702 (E) ....................................... 217, 234, 239, 240, 241,
242, 247, 248, 250, 397
Thandroyen v Sister Annuncia 1959 4 SA 632 (N) .................................................................................... 145
Thatcher v Katz 2006 6 SA 407 (C) .................................................................................... 314, 315, 367, 368
The Cape of Good Hope Bank v Fischer (1886) 4 SC 368 ...............................................................10, 74, 81
The Citizen 1978 (Pty) Ltd v McBride 2010 4 SA 148 (SCA)....................................................405, 411, 412
The Citizen 1978 (Pty) Ltd v McBride 2011 4 SA 191 (CC) ..................................................................... 412
The Concept Factory v Heyl 1994 2 SA 105 (T) .................................................................................375, 380
The Government v Marine and Trade Insurance Co Ltd 1973 3 SA 797 (D)......................................... 29, 31
The Minister of Safety and Security v Koleka Nancy Msi case no CA17/2017 ECG
(28-11-2017) ....................................................................................................................................449, 450
The Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA) ............................................. 397
The Oil Rig South Seas Driller Sheriff of Cape Town v Pride Foramer SA 2001 3 SA 841 (C) ........350, 355
The Oropesa [1943] 1 All ER 215 .............................................................................................................. 250
The Tie Rack plc v Tie Rack Stores (Pty) Ltd 1989 4 SA 427 (T) ............................................................. 378
Thibela v Minister van Wet en Orde 1995 3 SA 147 (T) ........................................................................... 337
Thomas v BMW South Africa (Pty) Ltd 1996 2 SA 106 (C) ..........................................................36, 37, 260
Thomas v Minister of Defence (506/2013) [2014] ZASCA 109 ................................................................ 305
Thompson v Minister of Police 1971 1 SA 371 (E) ................................................................................... 399
Thomson v Thomson 2002 5 SA 541 (W) .................................................................................................. 274
Thornton v Fismer 1928 AD 398................................................................................................................ 185
Thoroughbred Breeders’ Association of South Africa v Price Waterhouse
2001 4 SA 551 (SCA)..............................................................................................................207, 208, 316
Thorpe v South African Reserve Bank 1992 3 SA 208 (T) ........................................................................ 352
Thurogood v Van den Berghs & Jurgens LD 1951 2 KB 537 .................................................................... 239
Thysse v Bekker 2007 3 SA 350 (E) ...........................................................................................436, 437, 440
Tiffen v Woods NO [2007] 3 All SA 454 (C) ............................................................................................ 153
Times Media Ltd v SABC 1990 4 SA 604 (W) ...................................................................................375, 381
Tobacco Finance (Pvt) Ltd v Zimnat Ins Co Ltd 1982 3 SA 55 (ZH) .........................................350, 352, 355
Tödt v Ipser 1993 3 SA 577 (A) ..................................................................................................396, 397, 398
Tolgaz Southern Africa; Easigas (Pty) Ltd v Solgas (Pty) Ltd 2009 4 SA 37 (W) .............................375, 376
Tomlin v London and Lancashire Insurance Co Ltd 1962 2 SA 30 (D) ..................................................... 322
Toptrans Transport v Regering van die Republiek van SA 2001 4 SA 921 (O) ..................................156, 190
Tothill v Gordon 1930 WLD 99 ..........................................................................................................148, 381
Townsend Productions (Pty) Ltd v Leech 2001 4 SA 33 (C) ..................................................................... 380
Transnet Ltd t/a Metro Rail v Tshabalala [2006] 2 All SA 583 (SCA) ...................................................... 200
Transnet Ltd t/a Metrorail v Rail Commuter Action Group 2003 6 SA 349 (SCA) ..........................85, 86, 89
Transnet Ltd v Sechaba Photoscan (Pty) Ltd 2005 1 SA 299 (SCA) .................................. 265, 266, 269, 284
Transnet t/a Metrorail v Witter 2008 6 SA 549 (SCA) ........................................................................165, 203
Transvaal and Rhodesian Estates Ltd v Golding 1917 AD 18 ................................................................... 169
Transvaal Provincial Administration v Coley 1925 AD 24 ...................................................................73, 169
Treatment Action Campaign v Rath 2007 4 SA 563 (C) .....................................................................390, 403
Trencor Services (Edms) Bpk v Loots & Loots 2001 1 SA 324 (NC) ....................................................... 188
Table of Cases 525
Page
Triegaardt v Van der Vyver 1910 EDL 44 ................................................................................................. 428
Trimble v Central News Agency Ltd 1933 WLD 88 .................................................................................. 415
Trio Engineered Products Inc v Pilot Crushtec International (Pty) Ltd
2019 3 SA 580 (GJ) ......................................................................................................... 313, 314, 315, 373
Troos Transport t/a Ekonoliner Luxury Coach Lines v Abrahams 1999 2 SA 142 (C).............................. 284
Truck and Car Co Ltd v Kar-N-Truk Auctions 1954 4 SA 552 (A) ....................................................378, 379
Trust Bank van Afrika Bpk v Eksteen 1964 3 SA 402 (A)............................................................................. 5
Trust Bank van Afrika Bpk v Geregsbode, Middelburg 1966 3 SA 391 (T) .............................................. 419
Trustees, BKA Besigheidstrust v Enco Produkte en Dienste 1990 2 SA 102 (T) ...................................... 380
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006 3 SA 138 (SCA)............................................................................. 12, 42, 49, 60, 61, 63, 93, 98, 101,
189, 193, 315, 350, 351, 356
Truter v Deysel 2006 4 SA 168 (SCA) ........................................................................................................... 4
Truth Verification Testing Centre v PSE Truth Detection CC 1998 2 SA 689 (W) ................................... 378
TS v Life Healthcare Group (Pty) Ltd 2017 4 SA 580 (KZD) ............................................................105, 321
Tsedu v Lekota 2009 4 SA 372 (SCA) ............................................................................ 7, 300, 302, 303, 403
Tshabalala v Jacobs 1942 TPD 310 ............................................................................................................ 145
Tshabalala v Lekoa City Council 1992 3 SA 21 (A) .................................................................................. 448
Tshabalala-Msimang v Makhanya 2008 6 SA 102 (W) ............................................................................. 409
Tsichlas v Touch Line Media (Pty) Ltd 2004 2 SA 112 (W) ..................................................................... 401
Tsimatakopoulos v Hemmingway, Isaacs & Coetzee CC 1993 4 SA 428 (C) ....................................175, 313
Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan 2006 6 SA 537 (SCA) .......................... 72, 93, 165, 217, 235
Tsose v Minister of Justice 1951 3 SA 10 (A) ..................................................... 138, 139, 140, 142, 151, 398
Tuch v Myerson 2010 2 SA 462 (SCA) ......................................................................................302, 405, 408
Tuck v Commissioner for Inland Revenue 1988 3 SA 819 (A)...................................................216, 217, 230
Turkstra Ltd v Richards 1926 TPD 276 ..................................................................................................... 152
Twalo v The Minister of Safety and Security [2009] 2 All SA 491 (E) ..................................................... 449
U
UDC Ltd v Bank of Credit and Commerce Zimbabwe Ltd 1990 3 SA 529 (Z) ..................................350, 354
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 2 SA 986 (T) ................................ 307
Union Government (Minister of Justice) v Thorne 1930 AD 47 ................................................................ 447
Union Government (Minister of Railways and Harbours) v Marais 1920 AD 240 .....................148, 150, 151
Union Government (Minister of Railways and Harbours) v Matthee 1917 AD 688 .............................73, 130
Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657...................12, 256, 259,
263, 264, 266, 280, 334, 335
Union Government (Minister of Railways) v Sykes 1913 AD 156 .....................................................135, 435
Union Government v Bolstridge 1929 AD 240 .......................................................................................... 139
Union Government v Lee 1927 AD 202.............................................................................. 199, 332, 333, 341
Union Government v National Bank of South Africa Ltd 1921 AD 121 ................................................... 169
Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 1 SA 577 (A)..........11, 37, 102,
329, 330, 332, 369, 370,
371, 372, 373
Union National South British Insurance Co Ltd v SAR&H 1979 1 SA 1 (A)............................................ 133
Union National South British Insurance Co Ltd v Vitoria 1982 1 SA 444 (A) ...........................182, 203, 205
Union Wine Ltd v E Snell and Co Ltd 1990 2 SA 189 (C) .................................................................378, 379
United Dairies Co-op Ltd v Searle 1974 4 SA 117 (E) ................................................................................ 92
Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T) ...................36, 39, 41, 42,
44, 52, 53, 55, 56, 57, 388, 389,
421, 422, 423, 426, 427
Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1979 1 SA 441 (A) ........... 389, 390, 391, 392
University of Pretoria v South Africans for the Abolition of Vivisection
2007 3 SA 395 (O) .............................................................................................................. 5, 308, 400, 407
V
Vaaltyn v Minister of Police [2018] 4 All SA 534 (ECP) ...................................................................138, 397
526 Law of Delict
Page
Van Almelo v Shield Insurance Co Ltd 1980 2 SA 411 (C)................................................................279, 280
Van As v Kotze [2019] 3 SA 284 (NCK) ............................................................................................174, 356
Van As v Road Accident Fund 2012 1 SA (SCA) ...................................................................................... 180
Van Aswegen v Volkskas Bpk 1960 3 SA 81 (T) ...................................................................................... 312
Van Blommenstein v Reynolds 1934 CPD 265.......................................................................................... 454
Van Castricum v Theunissen 1993 2 SA 726 (T) ................................................................................374, 380
Van den Berg v Jooste 1960 3 SA 71 (W).................................................................................................. 431
Van den Berg v Van den Berg 2003 6 SA 229 (T) ..................................................................................... 323
Van den Berg; Schoeman v Unie en Suidwes-Afrika Versekeringsmaatskappy Bpk
1989 4 SA 721 (C) .................................................................................................................................... 92
Van den Bergh v Parity Insurance Co Ltd 1966 2 SA 621 (W).................................................................. 248
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 1998 4 SA 890 (C) ................................................... 408
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd 2001 2 SA 242 (SCA) ... 20, 21, 399, 405, 408, 409, 446
Van der Bijl v Featherbrooke Estate Home Owners’ Association (NPC)
2019 1 SA 642 (GJ) ......................................................................................................... 61, 66, 79, 84, 106
Van der Bijl v Richter 1921 CPD 316 .................................................................................................118, 120
Van der Eecken v Salvation Army Property Co 2008 4 SA 28 (T) ............................... 41, 50, 63, 70, 74, 190
Van der Merwe Burger v Munisipaliteit van Warrenton 1987 1 SA 899 (NC) .................................68, 69, 73
Van der Merwe v Carnarvon Municipality 1948 3 SA 613 (C).................................................................. 442
Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae)
2006 4 SA 230 (CC) ................................................................................. 16, 256, 259, 260, 265, 280, 282,
288, 290, 291, 323, 427
Van der Merwe v Road Accident Fund 2007 1 SA 176 (C) ....................................................................... 323
Van der Merwe v Strydom 1967 3 SA 460 (A) ...................................................................................417, 418
Van der Plaats v SA Mutual Fire and General Insurance Co Ltd 1980 3 SA 105 (A)................................ 276
Van der Spuy v Minister of Correctional Services 2004 2 SA 463 (SE) .............................. 69, 176, 177, 216,
217, 224, 231, 232, 234, 241,
245, 246, 249, 253
Van der Walt v De Beer 2005 5 SA 151 (C) .............................................................................................. 173
Van der Walt v Van der Walt 2009-03-26 case no 08/42736 (SG) ............................................................ 323
Van der Watt v Humansdorp Marketing CC 1993 4 SA 779 (SE) ......................................................378, 379
Van der Westhuizen v Arnold 2002 6 SA 453 (SCA) ................................................................................ 317
Van der Westhuizen v Burger 2018 2 SA 87 (SCA) ................................................... 434, 435, 436, 439, 440
Van der Westhuizen v Du Preez 1928 TPD 45 .......................................................................................... 291
Van der Westhuizen v Scholtz 1992 4 SA 866 (O) .................................................................................... 376
Van der Westhuizen v Van der Westhuizen 1996 2 SA 850 (C) .........................................................428, 430
Van Dyk v Cordier 1965 3 SA 723 (O) ...................................................................................................... 274
Van Eck & Van Rensburg v Etna Stores 1947 2 SA 984 (A) ..................................................................... 148
Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae)
2003 1 SA 389 (SCA)........................................................................... 4, 18, 21, 24, 33, 36, 42, 43, 45, 46,
49, 61, 62, 65, 66, 69, 78, 80, 85,
86, 87, 88, 89, 97, 156, 195, 393
Van Heerden v African Guarantee & Indemnity Co Ltd 1951 3 SA 730 (C) ............................................. 275
Van Heerden v SA Pulp & Paper Industry 1946 AD 382........................................................................... 187
Van Jaarsveld v Bridges 2010 4 SA 558 (SCA) ............................................................................39, 311, 428
Van Oudtshoorn v Northern Assurance Co Ltd 1963 2 SA 642 (A) ...................................................158, 300
Van Rensburg v The City of Johannesburg [2008] 1 All SA 645 (W) ....................................................... 303
Van Schalkwyk v Folscher 1974 4 SA 967 (NC) ....................................................................................... 322
Van Schalkwyk v The State 2016 ZASCA 49 ............................................................................................ 161
Van Schalkwyk v Van der Wath 1963 3 SA 636 (A) ................................................................................. 442
Van Staden v May 1940 WLD 198 ............................................................................................................ 186
Van Vliet’s Collection Agency v Schreuder 1939 TPD 265 ...............................................................401, 402
Van Vuuren v Ethekwini Municipality 2018 1 SA 189 (SCA) .......................... 42, 49, 50, 61, 67, 70, 71, 78,
88, 98, 129, 130, 156, 165, 204
Van Wyk v Lewis 1924 AD 438 ................................................................................. 173, 175, 191, 312, 313
Van Wyk v Santam Bpk 1998 4 SA 731 (C) .......................................................................................276, 279
Van Wyk v Van der Merwe 1957 1 SA 181 (A) ........................................................................................ 145
Table of Cases 527
Page
Van Zyl v African Theaters Ltd 1931 CPD 61 ....................................................................................160, 388
Van Zyl v Gracie 1964 2 SA 434 (T) ......................................................................................................... 322
Van Zyl v Jonathan Ball Publications (Pty) Ltd 1999 4 SA 571 (W) ..............................................20, 21, 399
Van Zyl v Kotze 1961 4 SA 214 (T) .......................................................................................................... 438
Van Zyl v Van Biljon 1987 2 SA 372 (O) ...........................................................................................438, 439
Vanston v Frost 1930 NPD 121 .................................................................................................................. 151
Vaughan v SA National Trust and Assurance Co Ltd 1954 3 SA 667 (C) ..........................................336, 337
Veiera v Van Rensburg 1953 3 SA 647 (T)...................................................................................72, 437, 438
Vengtas v Nydoo (5) 1963 4 SA 358 (D) ............................................................................................302, 402
Venter v Nel 1997 4 SA 1014 (D) ............................................................................................... 291, 292, 393
Verheem v Road Accident Fund 2012 2 SA 409 (GNP) ............................................................................ 338
Vermaak v Du Plessis 1974 4 SA 353 (O) ..........................................................................................438, 439
Vermaak v Khoza 1979 1 SA 578 (N)........................................................................................................ 437
Vermaak v Van der Merwe 1981 3 SA 78 (N) ........................................................................................... 401
Versfeld v SA Citrus Farms Ltd 1930 AD 452 .......................................................................................... 287
Victor v Constantia Ins Co Ltd 1985 1 SA 118 (C) .................................................................................... 332
Victoria & Alfred Waterfront (Pty) Ltd v Police Commissioner, Western Cape
(Legal Resources Centre as amicus curiae) 2004 4 SA 444 (C) ............................................................. 396
Victoria East Divisional Council v Pieterse 1926 EDL 38 ........................................................................... 75
Vigario v Afrox Ltd 1996 3 SA 450 (W)............................................................. 219, 231, 234, 248, 249, 251
Viljoen v Nketoana Municipality 2003 24 ILJ (LC) .................................................................................. 312
Viljoen v Smith 1997 1 SA 309 (A) ........................................................................................................... 448
Vincent v Long 1988 3 SA 45 (C) .............................................................................................................. 408
Visser v Visser 2012 4 SA 74 (KZD) ..................................................................................................291, 436
Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security
2010 4 SA 455 (SCA) .................................................................................................... 50, 82, 83, 313, 349
Volks v Robinson 2005 5 BCLR 446 (CC) ................................................................................................ 339
Volkskas Bank Ltd v Bonitas Medical Aid Fund 1993 3 SA 779 (A) ........................................................ 354
Von Beneke v Minister of Defence 2012 5 SA 225 (GNP) ........................................................................ 450
Von Moltke v Costa Areosa (Pty) Ltd 1975 1 SA 255 (C) ........................................................................... 92
Vorster v AA Mutual Insurance Association Ltd 1982 1 SA 145 (T) .................................................182, 205
Vorster v Santam Insurance Co Ltd 1973 2 SA 186 (W) ....................................................................206, 207
Vorster v Strydpers Bpk 1973 3 SA 482 (T) .............................................................................................. 415
Vosloo v Sentraboer Koöperatief Bpk 1993 1 SA 722 (C) ........................................................................ 174
VRM v Health Professions Council of South Africa 2002 ZAGPHC 4 ..................................................... 424
W
Wade v Santam 1985 1 PH J3 (C) .............................................................................................................. 281
Wagener and Cuttings v Pharmacare Ltd [2002] 1 All SA 66 (C) ......................................................383, 384
Wagener and Cuttings v Pharmacare Ltd 2003 4 SA 285 (SCA) ................................................383, 384, 386
Waldis v Von Ulmenstein 2017 4 SA 503 (WCC) ...................................... 106, 399, 400, 402, 403, 409, 412
Walker v Redhouse [2007] 4 All SA 1217 (SCA)...............................................................................317, 436
Walker v Stadsraad van Pretoria 1997 4 SA 189 (T).................................................................................... 23
Walker v Van Wezel 1940 WLD 66............................................................................................................. 15
Walpole v Santam Insurance Co Ltd 1973 1 SA 357 (T) ........................................................................... 186
Wapnick v Durban City Garage 1984 2 SA 414 (D) .................................................. 124, 200, 209, 321, 340,
Waring and Gillow Ltd v Sherborne 1904 TS 340 .............................................................. 130, 133, 342, 348
Wassenaar v Jameson 1969 2 SA 349 (W) ................................................................................................. 101
Wasserman v Union Government 1934 AD 228 .................................................................................169, 181
Waste Products Utilisation (Pty) Ltd v Wilkes 2003 2 SA 515 (W) ................................... 373, 374, 375, 380
Waterhouse v Shields 1924 CPD 155 ......................................................................................................... 417
Waterson v Maybery 1934 TPD 210 .......................................................................................................... 334
Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A)................... 157, 158, 165, 170, 172, 204
Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1990 2 SA 718 (T) ................................... 5, 374
Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1992 2 SA 489 (A) ...............................378, 379
Welken v Nasionale Koerante Bpk 1964 3 SA 87 (O) ............................................................................... 430
528 Law of Delict
Page
Welkom Municipality v Masureik and Herman t/a Lotus Corporation 1997 3 SA 363 (SCA) ...........169, 193
Wells v Atoll Media (Pty) Ltd [2010] 4 All SA 548 (WCC) ....................................... 302, 303, 404, 415, 426
Wellworths Bazaars Ltd v Chandlers Ltd 1948 3 SA 348 (W) .................................................................. 313
Wentzel v SA Yster en Staalbedryfsvereniging, Wentzel v Blanke Motorwerkersvereniging
1967 3 SA 91 (T) .................................................................................................................................... 406
Wessels v Hall and Pickles (Coastal) (Pty) Ltd 1985 4 SA 153 (C) ............................................................. 30
Wessels v Pretorius 1974 3 SA 299 (NC)....................................................................................107, 124, 159
Wessels v Pretorius [2008] 1 All SA 131 (SCA)........................................................................................ 185
West Rand Steam Laundry Ltd v Waks 1954 2 SA 394 (T)....................................................................... 283
Western Alarm System (Pty) Ltd v Coini and Co 1944 CPD 271 .............................................................. 362
Western Cape Department of Social Development v Barley 2019 3 SA 235 (SCA) ....................75, 194, 343
Whitfield v Phillips 1957 3 SA 318 (A) ..................................................................................................... 275
Whittaker v Roos and Bateman; Morant v Roos and Bateman 1912 AD 92 ...............................388, 389, 394
Whittington v Bowles 1934 EDL 142 .................................................................................................401, 421
Wiese v Moolman 2009 3 SA 122 (T)........................................................................... 20, 101, 427, 428, 429
Wiesner v Molomo 1983 3 SA 151 (A)...............................................................................................138, 141
William Grant and Sons Ltd v Cape Wine and Distillers Ltd 1990 3 SA 897 (C) ..............................374, 378
Williams t/a Jenifer Williams & Associates v Life Line Southern Transvaal 1996 3 SA 408 (A) ......378, 380
Williams v Oosthuizen 1981 4 SA 182 (C) ................................................................................................ 279
Williams v Van der Merwe 1994 2 SA 60 (E) ....................................................................................405, 415
Willmers v Cape Provincial Administration 1992 1 SA 310 (E) ................................................................ 179
Wilson v Birt (Pty) Ltd 1963 2 SA 508 (D) ........................................................................................240, 253
Wilson v Halle 1903 TH 178 ...................................................................................................................... 415
Wingaardt v Grobler 2010 6 SA 148 (ECG) ...................................................................................39, 97, 153
Winterbach v Masters 1989 1 SA 922 (E) ...........................................................................................124, 126
Witham v Minister of Home Affairs 1989 1 SA 116 (ZH).................................................. 330, 335, 352, 448
Witwatersrand Native Labour Association Ltd v Robinson 1907 TS 264.................................................. 389
Witzenberg Municipality v Bridgman NO [2019] ZASCA 189 ..................................................106, 181, 393
Woji v Minister of Police [2015] 1 All SA 68 (SCA) ......................................................... 138, 303, 398, 416
Wolff v Foto Helga (Pty) Ltd 1986 1 SA 816 (O) .................................................................................. 72, 73
Wolmarans v ABSA Bank Ltd 2005 6 SA 551 (C) ...........................................................................41, 56, 57
Woodiwiss v Woodiwiss 1958 3 SA 609 (D) ......................................................................................430, 431
Woodlands Dairy (Pty) Ltd v Parmalat SA (Pty) Ltd 2002 2 SA 268 (E) ................... 374, 375, 377, 380, 381
Worcester Advice Office v First National Bank of Southern Africa Ltd 1990 4 SA 811 (C) .................... 354
Workmen’s Compensation Commissioner v De Villiers 1949 1 SA 474 (C) .....................................188, 248
Wright v Cockin 2004 4 SA 207 (E) .......................................................................................................... 153
Wright v Medi-Clinic Ltd 2007 4 SA 327 (C)............................................................................................ 319
Wynberg Municipality v Dreyer 1920 AD 439 ...................................................................................256, 280
Wynkwart v Minister of Education 2002 6 SA 564 (C) ............................................................................. 180
X
Xatula v Minister of Police, Transkei 1993 4 SA 344 (Tk) ........................................................................ 287
Y
Yanta v Minister of Safety and Security 2013 JDR 1378 (ECG) ............................................................... 424
Yazbek v Seymour 2001 3 SA 695 (E) ............................................................................... 405, 407, 408, 409
Yellow Cabs of SA Ltd v Ginsberg 1930 WLD 205 .................................................................................. 378
YG v S 2018 1 SACR 64 (GJ) .................................................................................................................... 146
Young v Shaikh 2004 3 SA 46 (C) ......................................................................................................303, 308
Z
Za v Smith 2015 4 SA 574 (SCA) ................................................................................... 69, 93, 103, 182, 227
Zealand v Minister of Justice and Constitutional Development 2008 4 SA 458 (CC) .......... 50, 137, 396, 397
Zietsman v Van Tonder 1989 2 SA 484 (T) ..................................................................................72, 439, 440
Zimbabwe Banking Corp Ltd v Pyramid Motor Corp (Pvt) Ltd 1985 4 SA 553 (ZS) ................350, 352, 354
Table of Cases 529
Page
Zimnat Insurance Co Ltd v Chawanda 1991 2 SA 825 (ZS) ........................................... 12, 46, 333, 334, 355
Zondi v MEC for Traditional and Local Government Affairs 2005 3 SA 589 (CC) .................................. 439
Zweni v Modimogale 1993 2 SA 192 (BA) ........................................................................................253, 280
Zwiegelaar v Botha 1989 3 SA 351 (C) ..............................................................................................408, 409
Zysset v Santam Ltd 1996 1 SA 273 (C) .............................................................................................276, 277
Table of statutes
Page Page
A Child Justice Act 75 of 2008 ............................. 158
Apportionment of Damages s 7(1) ............................................................. 158
Act 34 of 1956...... 172, 198, 199, 200, 206, 207, s 7(2) ............................................................. 158
208, 209, 258, 317, 318, 319, 320, 321, 322, 323, Child Justice Amendment Act 28 of 2019 ..............
324, 325, 326, 331, 332, 333, 340, 341, 342, 371 s 129(6)–(9) .................................................. 110
s 1 .......................................................... 199, 200 Children’s Act 38 of 2005 .......................................
s 1(1)(a) ........................ 199, 200, 201, 202, 203, 22, 75, 130, 158, 336, 337, 388, 424
204, 205, 208, 212, 322, 340 s 2(b)(iv) ....................................................... 388
s 1(1)(b) ................................................. 199, 200 s 9.................................................................. 388
s 1(3) ............................................................. 206 s 17 ................................................................ 158
s 2 .......................................................... 318, 319 s 129(6)–(9) .................................................. 130
s 2(1) ............................................. 319, 320, 321 s 188 .............................................................. 337
s 2(2) ............................................................. 321 ss 228–273 ..........................................................
s 2(3) ............................................................. 321 s 242 .............................................................. 337
s 2(4) ............................................................. 321
s 2(4)(b) ......................................................... 321 Children’s Amendment Act 41 of 2007 ............ 424
s 2(5) ............................................................. 321 Civil Aviation Act 13 of 2009 ....................284, 458
s 2(6) ............................................................. 320 s 8(2) ............................................................. 284
s 2(6)(a) ................................................. 321, 324 Civil Union Act 17 of 2006 ............................... 335
s 2(7) ..................................................... 320, 321 s 13 ................................................................ 335
s 2(8) ............................................................. 321
s 2(8)(a) ......................................................... 320 Community Development Act 3 of 1966 .......... 136
s 2(10) ........................................................... 320 Companies Act 78 of 2008
s 2(12) ........................................................... 321 s 222 .............................................................. 168
s 2(13) ........................................................... 321 Compensation for Occupational Injuries
s 2(1A) .......................................... 321, 323, 331 and Diseases Act 130 of 1993 .......258, 274, 276,
s 2(1B) ....321, 324, 325, 326, 331, 332, 333, 341 305, 318
Apportionment of Damages Amendment s 35 ................................................................ 305
Act 58 of 1971 .............................. 199, 321, 324 s 35(1) ........................................................... 305
Assessment of Damages Act 9 of 1969 ..... 274, 376 s 36 .........................................................274, 276
s 1 .......................................................... 274, 376 s 43 ................................................................ 318
Auditing Profession Act 26 of 2005 .......... 174, 366 Compulsory Motor Vehicle Insurance
s 44(3) ........................................................... 366 Act 56 of 1972 ............................................. 320
s 46(2) ................................................... 174, 366 s 21(1) ........................................................... 320
s 46(3) ................................................... 174, 366 Constitution of the Republic of South Africa,
s 46(3)(b) ....................................................... 366 1993 ......................... 18, 20, 21, 22, 44, 399, 406
Aviation Act 16 of 1923 .................................... 458 s 13 ................................................................ 422
s 9 .................................................................. 458 s 15 ................................................................ 399
s 15(1) ........................................................... 406
Aviation Act 74 of 1962 s 33(1) ........................................................... 114
s 11(2) ........................................................... 458 s 215 ................................................................ 76
B Constitution of the Republic of South Africa,
Black Laws Amendment Act 76 of 1963 1996 ........................................ 17, 18, 19, 20, 21,
s 31 ................................................................ 337 42, 43, 65, 66, 75, 78, 85, 86,
87, 90, 104, 116, 122, 136,
C 137, 146, 334, 337, 398, 399,
Child Care Act 74 of 1983 ................................... 75 400, 403, 407, 416, 424
531
532 Law of Delict
Page Page
Constitution of the Republic of South Africa, Consumer Protection Act
1996 (continued) 68 of 2008 ......................................384, 456, 457
s 1(a)................................................................ 20 s 1...........................................................457, 458
s 2 .................................................................... 85 s 2(10) ........................................................... 386
s 7(1) ............................................................... 20 s 5(2)(b) ........................................................ 456
s 7(2) ......................................................... 85, 87 s 24 .......................................................... 92, 380
s 8(1) ................................................... 18, 22, 42 s 53(1)(a)....................................................... 457
s 8(3) ............................................................... 19 s 61 ................................................................ 457
s 8(3)(a) ........................................................... 43 s 61(1) ........................................................... 386
s 8(4) ....................................................... 18, 389 s 61(5) ........................................................... 435
s 9 ............................................ 20, 306, 394, 403 s 61(6) ........................................................... 457
s 9(1) ............................................................. 388 s 76 ................................................................ 457
s 9(2) ............................................................. 388 s 115(2) ......................................................... 457
s 10 .................................................. 20, 399, 420 Copyright Act 98 of 1978 ..................................... 4
s 11 ............................................................ 19, 43
s 12 .................................................... 19, 87, 392 Criminal Law (Sexual Offences and Related
s 12(1) ........................................................... 396 Matters) Amendment Act 32 of 2007 ........... 424
s 12(1)(a) ....................................................... 398 Criminal Procedure Act 56 of 1955
s 12(2) ..................................................... 85, 345 s 37 ................................................................ 141
s 12(2)(b) ....................................................... 395 Criminal Procedure Act 51 of 1977 .................. 425
s 13 .................................................................. 20 s 22 ................................................................ 136
s 14 .................................................. 20, 422, 424 s 29 ................................................................ 136
s 15 .................................................................. 21
s 39 ................................................................ 137
s 16 .......................................................... 21, 411
s 39(1) ........................................................... 137
s 16(1)(a) ............................................... 399, 406
s 17 .................................................................. 21 s 39(2) ........................................................... 137
s 18 .................................................................. 21 s 40 ................................................................ 138
s 21 .......................................................... 20, 396 s 40(1)(a)....................................................... 138
s 22 .................................................................. 21 s 40(1)(b) ...............................................138, 140
s 24 .................................................................. 20 s 40(1)(c)–(q) ................................................ 138
s 25(1) ............................................................. 19 s 41 ................................................................ 138
s 27 .................................................................. 78 s 42 ................................................................ 138
s 27(1) ............................................................. 20 s 43(1) ........................................................... 138
s 28 ............................................ 22, 23, 336, 388 s 45(1) ........................................................... 137
s 28(1)(b) ................................................... 71, 78 s 49 ................................................................ 140
s 28(1)(d) ......................................................... 20 s 49(1) ........................................................... 140
s 28(2) ......................................... 70, 78, 81, 138 s 49(1)(a)....................................................... 140
s 35 (1)(e)–(f) ................................................ 137 s 49(1)(b) ...................................................... 140
s 35(2)(e) ......................................................... 86 s 50(1)(a)....................................................... 137
s 36 ................................................................ 146 s 297(1)(a)(i)(aa) .......................................... 444
s 36(1) ................................. 18, 19, 23, 114, 135 s 297(4) ......................................................... 444
s 37 .................................................................. 18 s 297A ........................................................... 444
s 38 .......................................................... 22, 308 s 331 .............................................................. 138
s 39(1) ................................................. 18, 23, 44
s 39(2) ........................................... 18, 43, 76, 87 D
s 39(3) ............................................................. 20 Deeds Registries Act 47 of 1937
s 41(1)(c) ......................................................... 86 s 99 .................................................................. 81
s 58(1) ........................................................... 407 Drugs and Drug Trafficking Act 140 of 1992 ... 136
s 71(1) ........................................................... 407 s 11(1)(a)....................................................... 424
s 117(1) ......................................................... 407
s 11(1)(b) ...................................................... 424
s 173 .......................................... 18, 43, 281, 379
s 179(4) ........................................................... 86 E
s 187 ................................................................ 78
Electricity Act 41 of 1987
s 199(6) ......................................................... 144
s 26 ................................................................ 190
s 205(3) ..................................................... 77, 85
s 211(3) ......................................................... 337 Electricity Regulation Act 4 of 2006 ................. 284
Ch 2 ........................................................... 18, 42 s 25 .................................................190, 193, 458
Table of Statutes 533
Page Page
F National Veld and Forest Fire Act 101 of 1998
Forest Act 122 of 1984 s 12 .................................................................. 74
s 84 ........................................................ 190, 193 s 34(1) ........................................................... 190
Forestry Act 72 of 1968 Nuclear Energy Act 131 of 1993....................... 458
s 23 ................................................................ 190 Nuclear Installations (Licensing and Security)
Act 43 of 1963
G s 5.................................................................. 458
Genetically Modified Organisms Act s 5(3) ............................................................. 458
15 of 1997 ..................................................... 459 P
I Patents Act 57 of 1978 .......................................... 4
Immigration Act 13 of 2002 Police Act 7 of 1958
s 34(1) ........................................................... 137 s 5.......................................................76, 77, 356
Institution of Legal Proceedings against Certain Post and Telecommunication-Related Matters Act
Organs of State Act 40 of 2002 ..................... 318 44 of 1958 ..................................................... 459
s 108 .............................................................. 459
J
Prescribed Rate of Interest Act 55 of 1975
Judicial Matters Second Amendment Act s 2A ............................................................... 268
122 of 1998 ................................................... 140
Prescription Act 68 of 1969 .............................. 318
K s 12 ................................................................ 318
KwaZulu-Natal Provincial Roads Act 4 of 2001 s 12(3) ........................................................... 318
s 9(3) ............................................................... 75 s 13 ................................................................ 318
s 14 ................................................................ 318
L s 15 ................................................................ 318
Local Government: Municipal Structures Act Promotion of National Unity and Reconciliation
117 of 1998
Act 34 of 1995
s 28 ................................................................ 407
s 20(10) ......................................................... 412
M Protection of Personal Information
Maintenance of Surviving Spouses Act Act 4 of 2013 .........................................422, 459
27 of 1990 s 99(1) ........................................................... 444
s 2 .................................................................. 335 Public Accountants’ and Auditors’ Act
Marriage Act 25 of 1961 ................................... 334 80 of 1991
Matrimonial Property Act 88 of 1984 ....... 321, 324 s 20(9) ........................................................... 366
s 18(a)............................................................ 323 s 20(9)(b)(ii).................................................. 366
s 18(b) ........................................................... 323 R
s 19 ................................................................ 323 Recognition of Customary Marriages
s 33 ................................................................ 323 Act 120 of 1998 ............................................ 335
Mental Health Care Act 17 of 2002 ................... 131 Regulation of Gatherings Act 205 of 1993 ......... 77
Merchandise Marks Act 17 of 1941 .................... 92 s 9(1)(f) ........................................................... 78
s 6 .................................................................. 381 s 11 ................................................................ 166
s 7 .................................................................. 381 Regulation of Inception of Communications
Military Pensions Act 84 of 1976 ...................... 275 and Provision of Communication-related
Multilateral Motor Vehicle Accident Funds Information Act 70 of 2002
Act 93 of 1989 s 2.................................................................. 424
s 40 ........................................................ 217, 258 s 4...........................................................423, 424
s 5.................................................................. 423
N
Rents Act 43 of 1950......................................... 414
National Nuclear Regulator
Act 47 of 1999............................................... 458 Road Accident Fund
s 30 ................................................................ 284 Act 56 of 1996 ....................... 258, 271, 272, 284
s 30(1) ........................................................... 458 s 17 ................................................................ 281
s 30(6) ........................................................... 458 s 23 ................................................................ 318
s 30(7) ........................................................... 458 Road Traffic Act 29 of 1989
s 30(8) ........................................................... 458 s 91(A) .......................................................... 188
534 Law of Delict
Page Page
S T
Social Assistance Act 59 of 1992 ...................... 276 Transvaal Road Ordinance 22 of 1957
Social Assistance Act 13 of 2004 ...................... 276 s 4.............................................................. 71, 76
South African Police Service
Act 68 of 1995................................................. 76 W
s 13 ............................................................ 77, 85 Weapons and Ammunition Act
South African Schools Act 84 of 1996 75 of 1969
s 10 ................................................................ 146 s 11 .................................................................. 77
s 20(10) ......................................................... 454 Workmen’s Compensation
s 60(1) ................................................... 447, 454 Act 30 of 1941 .............................................. 258
State Liability Act 20 of 1957 ........................... 281
s 1 .................................................................. 447
Index
A actio legis Aquiliae (continued)

abduction 430–431 concurrence with other delictual actions 310–311
absolute compulsion 29 fault element 157
abstract approach to negligence 176–177 245 patrimonial loss see patrimonial loss
abstract theory 293–294 Roman-Dutch law 10
abuse of right 147–151 Roman law 9–10
application beyond neighbour law 149n South African development 10–12
ground of justification 147–149 transmissibility 305–307
improper motive 150–151 when applicable 5
neighbour law principles 149–151 actio libera in causa 30
nuisance, in English law 149n actio Pauliana 307n
objective test 148 actio positi vel suspensi 307 441
reasonableness criterion 148–149 actio quod metus causa 307
statutory right 149 action for pain and suffering 16–17
accountability 157–159 concurrence with contractual action 312
child or young person 158 concurrence with other delictual actions 310–311
effect of diminished accountability 157n fault element 157
generally 157 object of damages 290
intoxication 159 non-patrimonial loss see non-patrimonial loss
mental illness 159 physical-mental injury covered 16–17 291–293
provocation 159 Roman-Dutch law 16–17
accountable government Roman law 16
duty to provide 86
South African development 17
accountant
transmissibility 305–307
negligent misrepresentation 366–367
reasonable accountant test 174 when applicable 5–6 17
actio ad exhibendum 307 adequate causation theory 237–238
actio aquae pluviae arcendae 307 adoption
actio de effuses vel deiectis 307 441 collateral source rule 275
actio de feris 307 439 dependant’s action for loss of support 337 338
actio de pastu 6n 307 438–439 adultery 428–430
actio de pauperie 6n 307 434n 435–438 assessment of damages 285
actio doli 307 358 claim against third party 101n 430
actio in factum 9n constitutional considerations 23n 428–429
actio iniuriarum 13–16 defamatory allegation 429–430
Aquilian action distinguished 5 iniuria 429
concurrence with contractual action 311–312 legal relevance 428–430
concurrence with other delictual actions 310–311 loss of consortium 429 430
fault element 157 no longer delictual wrong 428–429
iniuria see iniuria advertising
object of damages 290 301 misappropriation of identity 426
Roman-Dutch law 14–15 prohibition of publication of advertisement 54
Roman law 13–14 age of plaintiff 298
South African development 15–16 agent
transmissibility 305–307 principal’s vicarious liability 453
when applicable 5 301–302 aggravated damages 7–8n 460
actio legis Aquiliae 9–12 aircraft
actio iniuriarum distinguished 5 pilot’s lack of expertise 176
concurrence with contractual action 312–317 strict liability for damage 458
535
536 Law of Delict
ambulance arrest (continued)

involved in accident 242n without warrant 138–140
speeding 182n wrongful arrest 50n 110n 396–398
amende honorable 10n 14–15 303n 308 391n asbestos exposure 227n
amende profitable 10n 14 assault
amenities of life, loss of 292 home owners’ association liability 66n 79n
animals invalid consent, 133n
acting contra naturam sui generis 436 440 occupier’s liability 72n
actio de feris 307 439 police omission to prevent 33 68n 76n 84 85n
actio de pastu 6n 307 438–439 88n
actio de pauperie 6n 307 434n 435–438 private defence see private defence
control of dangerous animal 72 73n provocation defence 125–127
dog bite 211n 247 attachment of property
domestic animal, damage caused by 435–438 malicious attachment 419
horses roaming on public road 183n wrongful attachment 419 443–444
human using, as instrument of attack 27 109 attorney
necessity defence 118 pure economic loss 315n
plants, damage to 438–439 reasonable attorney test 173–174
private defence 109 auditor
strict liability 6n 434n 435–440 breach of contract, and apportionment of
transmitting disease to neighbouring farm 153 damages 207–208
wild animal, damage caused by 439 negligent misrepresentation 361n 366–367
animus iniuriandi reasonable auditor test 174
defamation 413–414 automatism 28–32
dignity infringement 421
identity infringement 427 B
invasion of privacy 425
malicious prosecution 418–419 bad faith see mala fides
animus vicino nocendi 150–151 banker
apportionment of damages dishonouring cheque 312
breach of contract 207–208 liability for cheque fraud see cheque fraud
causal nexus 201–202 reasonable banker test 174
common law 198–199 Bill of Rights see fundamental rights
determining degrees of negligence 201–204 black-out 29
fairness and equity 203–204 blind person
intentional harm 200–201 reasonable person test 170
joint wrongdoers 206–207 blood tests 424
principles of apportionment 201–204 bodily freedom see physical liberty
reduction, not apportionment 201 bodily injury see physical-mental integrity
statutory provisions 199–200 bodily integrity, right to 20 85
strict liability cases 201 bodily searches 424
appropriation tort 426 boni mores test 39–55
Aquilian action see actio legis Aquiliae adjudicator’s role 46–47
architect balancing of interests 41–44
reasonable architect test 174–175 boni mores: definition 40n
arrest constitutional values 42–43
causing bodily injury to suspect 140–142 criminal law 45n
court appearance following 137 delictual criterion 44–45
detention of arrested person 137n existing legal norms and doctrines 51–52
exercise of discretionary power 142 factors to be considered 41–42
formal requirements 137 factual infringement of interests 49–51
improper motive 398 negligent misrepresentation 360–361
issue of arrest warrant 138 objective test 40 46–49
Louw principle 139–140 omission 40
reasonable suspicion of committing offence 138 prima facie wrongfulness 49–51
resisting arrest 47 109 140–142 pure economic loss 351–357
statutory authority 137–140 reconciling reasonableness of imposing liability
use of deadly force 141 144 test with 102–106
Index 537
boni mores test (continued) cheque fraud

subjective factors, relevance of 47–49 contributory intent 212
supplementary test 52–55 pure economic loss 349n 354n
unlawful competition 375–377 child
wrongfulness 39–40 accountability 258
bonus paterfamilias see reasonable person test best interests 388
boxing injury 110n 132n capacity to consent 131n
brain injury 294–298 claim for loss of support see dependant’s action
breach of contract for loss of support
apportionment of damages 207–208 consent to medical treatment 130n 131n
concurrent contractual and delictual actions constitutional damages for loss of support 22n
311–317 contributory negligence 204
delict distinguished 6–7 280 day-care centre 75
interference by third party inducing 370–371 fundamental rights 20n
breach of legal duty 60–63 greater standard of care 184–185
duty not to act negligently 62–63 joint wrongdoer 325
omission 60–62 64–66 motorist’s precautions 184n
pure economic loss 60–62 350–351 parent’s claim for increased duty of support 331
wrongfulness test 60–63 parent’s duty to prevent harm 79
breach of promise 311 427–428 personality rights 388
breach of statutory duty 90–93 playground supervision 70n
breadwinner power to discipline 145–147
death or injury see dependant’s action for loss of reasonable person test 171–173
support running into the road 184n
“but for” test see conditio sine qua non unborn child, harm to 38
unlicensed driver, parent’s negligence 185n
C wrongful birth 80
capacity to be held accountable see accountability wrongful conception 80
capacity to consent 131–132 wrongful life 80–81
carrier’s liability 71 78 80 84n 86 child-support grant
cash in transit robbery 88n collateral source rule 276
casuistic approach 4–5 civil union
casus fortuitus 442 dependant’s action for loss of support 335
causation 215–254 class action
conditio sine qua non see conditio sine qua non transmissibility 306–307
cumulative causation 220–221 227 collateral benefits see collateral source rule
damage and 262–263 collateral source rule 273–279
egg-skull cases 235n 240n 253–254 benefits not reducing damages 274–276
element of delict 215–216 benefits reducing damages 276–277
expert evidence 215n example of compensating advantage 273
factual causation 216–230 theoretical explanations 277–279
flexible approach 226–227 233–236 colonus partiarius 9n 370
legal causation 230–254 commissio 28 32–33
negligent misrepresentation 364–365 company
novus actus interveniens 250–253 defamation 389–391
question of fact 215 delictual liability 27–28
theories 215 personality rights 389–392
cause of action privacy or identity, infringement of 391–392
date when arising 271 compensatio
examples, re once and for all rule 272–273 defamation and insult 127–128
facta probanda approach 271–272 compensation
single cause theory 271–272 non-patrimonial loss see damages for non-
cedability of actions 305–307 patrimonial loss
changed personality occupational injuries see occupational injuries,
assessment of damages 294–298 statutory compensation
Chapman’s Peak Drive 69n compensatory function of law of delict 3–4
cheque 255–256
bank dishonouring 312 competition see unlawful competition
538 Law of Delict
compulsion consent to harm (continued)

excluding voluntariness of consent, 131n unilateral act 129–130
excluding wrongfulness or negligence 197 volenti non fit iniuria 128–129
killing innocent person 121 consent to medical treatment
necessity defence 55 another doctor operating 134n
concrete approach to negligence 177–178 240–241 child 130n 131n
245 duty to inform patient of risks 132n
concrete concept of damage 267 emergency treatment 120n 130n
concurrent remedies 309–317 informed consent 132n
contractual and delictual actions 311–317 mentally ill person 131n
delictual actions 310–311 necessity defence 120n
generally 309–310 revocation of consent 129n
concurrent wrongdoers 319 consequential loss 265
condictio furtiva 307 387 441 Constitution of South Africa
conditio sine qua non 218–227 Bill of Rights see fundamental rights
“but for” test 218 supremacy 17
criticism of test 219–223 vertical and horizontal application 18
factual causation test 217–218 constitutional damages
flexible application 226–227 generally 255n
formulation of test 218–219 loss of support 22n
omission 223–226 constitutional delict 22–23
positive conduct 218–219 constitutional wrong 22–23
conduct 27–33 contingencies 268n 282n 285n
definition 27 continuing wrong
act or omission 28 32–33 exception to once and for all rule 271
animal as instrument 27 continuous course of conduct 32–33
automatism defence 28–32 contract
element of delict 27 beneficial contract, collateral source rule 275
human conduct 27–28 breach see breach of contract
juristic person 27–28 dependant’s action for loss of support 337–339
voluntariness 28 interference with see interference with
consciousness of wrongfulness 162–163 contractual relationship
consent to harm 128–135 liability for omission 79
negligent misrepresentation inducing 367–368
acquiescence distinguished 130
non-dependant’s action for death or injury
apparent or manifest consent 130
329–330
appreciation of risk 133
undertaking for safety of third party 81–82
approval following harm 130
contributory fault 198–213
before harm 130 definition 198
capacity to consent 131–132 apportionment of damages see apportionment of
compulsion 131n damages
contra bonos mores 133–134 breach of contract 207–208
contributory negligence distinguished 129n breadwinner, dependant’s action for loss of
express or tacit consent 130 support 206 340–341
free and voluntary consent 131 child 204
full knowledge of harm 132 common law 198–199
ground of justification 128 consent to harm distinguished 129n
informed consent 132n contributory negligence: terminology 204
legal act 130 damage or damage-causing event 205
on behalf of another 130 failure to wear crash helmet 205
onus of proof 131n failure to wear seat belt 205
pactum de non petendo 134–135 hire-purchaser 371
permitted by legal order 133–134 joint wrongdoers 206–207
requirements for valid defence 131–134 legal causation distinguished 208
revocation of consent 129–130 onus of proof 204
risk of injury 128–129 pleading 204
specific harm 128 rescue cases 212–213
subjective consent 133 third party 204
timing 130 voluntary assumption of risk and 208–212
Index 539
control of dangerous object 69–73 184 damages (continued)

control test 445–446 patrimonial loss see damages for patrimonial
contumelia 14 15–16 429 loss
corporal punishment 146–147 punitive damages 8n 460n
corporation damages for non-patrimonial loss
delictual liability 27–28 applicability of general principles 289–290
corpus 13 14 15 392–394 defamation 302–303
court reports fairness and conservatism 299
defamation, privilege 409 iniuria 301–303
crash helmet lump sum awards 281
failure to wear 205 object of damages 290, 299
creditworthiness 57n physical-mental injury 298–300
cricket previous awards in comparable cases 300
ball hit out of field 179n damages for patrimonial loss
consent to injury 134n adultery 285
motive to injure 48n assessment of quantum 282–285
crime collateral source rule and compensating
boni mores test 45n advantages 273–279
delict distinguished 7–8 comparative approach 267
culpa 155 contingencies 282n
culpa in eligendo 445 damage to property 283–284
culpae capax 157 defamation 285
culpae incapax 157 destruction, theft or alienation of property 284
culture of plaintiff 299 discounting or capitalising 282
cumulative causation 220–221 227 duress 284
customary union expressed in money not in kind 281
dependant’s action for loss of support 337 fraud and negligent misrepresentation 284
funeral costs 284
D illegal income or support 285–287
infringement of immaterial property rights 284
damage 255–303 loss of earning capacity 284
definition 256 loss of income 284
compensatory function of law of delict 3–4 loss of profit see loss of profit
255–256 loss of services 285
damage rests where it falls 3 loss of support 284–285
element of delict 255 lump sum award 281
extent of concept 256–259 medical expenses 284
factual causation and 262–263 mitigation of loss 279–280
mitigation of loss 279–280 nominal damages 280
non-patrimonial loss see non-patrimonial loss nuisance 284
patrimonial loss see patrimonial loss object of 280
prospective loss see prospective loss once and for all rule 270–273
uncertain event 257 onus of proof 287
wrongfulness and 260–262 prescription period 270
damages prospective loss see prospective loss
definition 255–256 280 statutory actions 284
compensatory function of law of delict 3–4 sum-formula approach 266
255–256 time for assessing 267
constitutional damages 22n 255n unlawful competition 284
contingencies 268n 282 285n unlawful or malicious imprisonment 285
criminal sanctions distinguished 7–8 damnum emergens 265
delictual and contractual damages distinguished damnum fatale 442
7 280 damnum iniuria datum
law of damages 255n Aquilian action see actio legis Aquiliae
lump sum awards 281 patrimonial loss see patrimonial loss
mitigation of loss 279–280 Roman law 9–10
non-patrimonial loss see damages for non- specific forms 6 329
patrimonial loss dangerous animal see animals
540 Law of Delict
dangerous object 69–73 184 defamation (continued)

date of commission of delict 267 strict liability 399n 415n
death or injury of another teacher 402n
dependant’s action see dependant’s action for verbal abuse 404
loss of support wrongfulness 402–405
non-dependant’s action see non-dependant’s defective product see product liability
action delict 3–6
debt definition 4
patrimonial loss 264 265 breach of contract distinguished 6–7 280
defamation 400–415 casuistic approach 4–5
definition 400 crime distinguished 7–8
adultery 429–430 elements see elements of delict
aggravating circumstances 302 generalising approach 4–6
animus iniuriandi 413–414 remedies see remedies
apology 303 specific forms 5–6
assessment of damages 284 302–303 three main delictual actions 5–6 8
boni mores test 53–54 delict, law of
compensatio 127–128 compensatory function 3–4 255–256
constitutional considerations 399n Constitution and fundamental rights 17–24
court and parliamentary reports 409 English law of torts distinguished 4–5
defamatory meaning 404 historical development 8–17
delay in instituting action 303 place in private law 4
discharge of duty or furtherance of interest purpose 3
407–408 dentist
elements of iniuria 400 reasonable dentist test 173
grounds excluding intent 414–415 dependant’s action for loss of support 332–342
jest 415 adopted child 337 338
mistake 414 blood relations 335–337
grounds of justification 405–414 child’s claim 335
fair comment 411–412 civil union 335
generally 405–407 collateral benefits see collateral source rule
media privilege 399n 410–411 consent, as defence 339
political privilege 411 contractual claim to support 337–339
privilege or privileged occasion 407–409 contributory intent or negligence on part of
reasonable suspicion of shoplifting 412–413 breadwinner 206 340–341
truth and public interest 409–410 customary union 337
improper motive or malice 48n 302 death of breadwinner 332–341
innuendo 404 defences 339–341
judicial officer’s immunity 143n delict against breadwinner, as basis 332–333
judicial or quasi-judicial proceedings 408–409 divorced woman 337
juristic person 389–391 duty of support 333–334
marital status 403n foster relations 337
mass media 415 illegal income or support 287
mitigating circumstances 303 injury to breadwinner 341–342
negligence 413 415 joint wrongdoers 324–326
non-trading corporation 390 legal marriage 334–335
onus of proof 405–406 413–414 life partner 338–339
press liability 399n Muslim marriage 338
privilege see grounds of justification above parent’s claim 335
provocation defence 127–128 prescription 272n
public figure 405 remarriage possibility 275 276 335n
publication 400–402 requirements for claim 333–334
reasonable foreseeability 401 right to support 334
reasonable person test 403–405 same-sex partner 338
repeating, confirming or drawing attention to self-defence 339
402 spouses’ reciprocal duty of support 335
social media 400n step-parent or child 337
spouses, communication between 401 theoretical basis 332–333
Index 541
detention see wrongful detention electrical shock

dicing 134n 206n 211n child climbing pylon 173 179n
dignitas 13 14 15–16 420 contributory intent/voluntary assumption of risk
dignity 420–421 211
boni mores test 53–54 electrified fence 153
dignitas distinguished 42n elements of delict
fundamental right 19–20 420–241 causation see causation
diligens paterfamilias see reasonable person test conduct see conduct
direct consequences test 238–240 damage see damage
direct intent 160 fault see fault
direct loss 265 generally 4
disability wrongfulness see wrongfulness
greater standard of care 184–185 emotional pressure 29
loss of amenities of life 292 emotional shock 342–348
reasonable person test 170 definition 342n
wrongful birth 80 examples 342n
wrongful life 80–81 foreseeable plaintiff 239n
form of injury 291–292
disappointed beneficiary 357
grief and bereavement 343
discipline 145–147
hearsay cases 348n
corporal punishment 146–147
negligence and legal causation 345–348
ground of justification 145–147
personal danger not required 344 345–346
power to discipline 145–146
physical injury not required 344–345
disfigurement 292 psychological lesions 342–344
divorce reasonable foreseeability 345–348
dependant’s action for loss of support 337 thin skull rule 348
doctor see medical negligence wrongfulness 344–345
doctrine of notice 307n employee
dog bite 211n 247 identifying employment relationship 445–447
dolus determinatus 162 indignity or humiliation 420n
dolus directus 160 sexual harassment 420n 448n 449n 451–452
dolus eventualis 161–162 wrongful dismissal 312
dolus indeterminatus 162 employer
dolus indirectus 160 legal duty to prevent harm 79
domestic servant no claim for death or injury to employee 330
joint wrongdoer 325 vicarious liability 444–453
master’s action for injury 10 332 engineer
dominant-impression test, employer-employee 446 reasonable engineer test 174–175
donations enticement 430–431
collateral source rule 275 epileptic fit 29 31
drones 424n equality, right to 20 388
drowning evidence, expert see expert evidence
artificial respiration 86n 176n ex gratia benefits
liability for omission 33 53 89–90 collateral source rule 275
drug use see intoxication excavation on land 27n
drunkenness see intoxication exclusion clause 82 317–318
duel 110 execution of official command 144–145
duress executor
assessment of damages 284 claim against wrongdoer 330
duty of care, English doctrine expert activity
negligence 188–190 pure economic loss 353
reasonable person test 173–176
wrongfulness 60–63 100–101 103 105–106
expert evidence 47n 77n 191n 215 229 287n
causation 215n
E
earning capacity F
loss of see loss of earning capacity Facebook see social media
personal immaterial property right 57n facta probanda
egg-skull cases 235n 240n 253–254 348 approach to cause of action 271–272
542 Law of Delict
factual causation 216–230 freedom of association 21

definition 228 freedom of expression 20 399n
conditio sine qua non see conditio sine qua non fundamental rights 17–24
damage and 262–263 assembly, demonstration, picket and petition 20
flexible approach 226–227 balancing conflicting rights 21–22
generally 216–218 boni mores and 42–43
legal causation distinguished 215–216 230n
court duty to promote Bill of Rights 87
medical and legal view distinguished 229
method for determining 228–230 development of common law 18–19
fainting fit 29 dignity 19–20 420–421
fair comment direct application 19–23
defamation defence 411–412 equality 20 388
fair procedures freedom and security of the person 19
breach of 91 freedom of association 21
false light tort 426 freedom of expression 20 399n
fama 13 14 15 399–400 freedom of religion, belief and opinion 20
fault 155–213 indirect application 23–24
definition 155n interpretation 18
actio iniuriarum 157 liberty 19 396
action for pain and suffering 157
life 19
Aquilian action 157
capacity to be held accountable 157–159 limitation of rights 18
contributory fault see contributory fault privacy 19 421–425
element of delict 155–157 property 19
impossibility excluding 124 remedy for infringement 21–23
intention (dolus) see intention trade, occupation and profession 21
legal causation criterion 240–241 vertical and horizontal application 18
moral and legal blameworthiness distinguished funeral costs
157n as damage 257n
negligence (culpa) see negligence assessment of damages 284
subjective state of mind 155 executor’s claim, 330
whether determined before or after wrongfulness heir or family member’s claim 330
155–157
furtum usus 441
fault theory, delictual liability 433
feelings 427–431 future loss see prospective loss
abduction, enticement and harbouring 430–431
adultery 428–430 G
breach of promise 311 427–428 gender of plaintiff 298
personality interest 288–289 292–293 298–299
general damage 265–266 289
427
financial services provider generalising approach, delictual liability 4–6
reasonable financial service provider test 174 genetically modified organisms
fire strict liability for damage 459
liability for 32–33 68n 69 70 71n 72 74 76n good name 399–419
190n 198 attachment of property 419
firearm defamation see defamation
incompetent owner, police liability 77n malicious prosecution 416–419
mistake as to causal chain of events 164n personality interest 399–400
police shooting see police goodwill, infringement
trap gun protecting property 111n 113 boni mores test 50–51
floodlight 152 conduct prohibited by statute 91 92–93n
foreseeability see reasonable foreseeability
goodwill as protectable property interest 5 19n
foreseeable plaintiff 239
foster child grant motive 48n
collateral source rule 276 pure economic loss 350
foster relations right to freedom of trade, occupation and
dependant’s action for loss of support 337 profession 21n
fraud unlawful competition see unlawful competition
assessment of damages 284 grief and bereavement
freedom and security of the person 19 delictual liability 343
Index 543
gross negligence 161 168 impossibility excluding liability

grounds of justification 106–147 conduct impossible 123
consent 128–135 fault excluded 124
defamation see defamation wrongfulness excluded 123
dependant’s action for loss of support 339–341 improper motive
execution of official command 144–145 abuse of right 150–151
generally 106–107 defamation 302
necessity 117–124 neighbour law 48 150–151
no numerus clausus 107 income, loss of see loss of income
official capacity 142–143 income tax savings
onus of proof 107 collateral source rule 275 276
power to discipline 145–147 independent contractor
private defence 108–117 mandator’s liability 391–392
provocation 124–128 indirect intent 160
statutory authority 135–142 inheritance
gun see firearm disappointed beneficiary 357
heritability of delictual actions 305–307
H iniuria
definition 15
harbouring 430–431 action for see actio iniuriarum
hearsay cases assessment of damages 301–303
emotional shock 348n direct or indirect 387–388
heart attack 29 non-patrimonial loss see non-patrimonial loss
heir or legatee Roman-Dutch law 14–15
funeral expenses, claim for 330 Roman law 13–14
no claim against wrongdoer 330 South African development 15–16
heritability of actions 305–307 specific forms 6
hire-purchaser iniuria per consequentias 387–388
action for damage to property 370 injurious falsehood 374n 381 391n
contributory negligence 371 innkeeper
home owners’ association damage to goods stored by 307 441–442
liability for assault 66n 79n innuendo 404
liability for robbery 79n insulting words or behaviour 420–421
hospital insurance benefits
consent to emergency medical treatment 130n collateral source rule 274 277
escape of dangerous patient 88n intention 159–164
negligent treatment see medical negligence definition 159–160
speeding to 119n 122n 182n consciousness of wrongfulness 162–163
hotel reservation contributory intent see contributory fault
owner disregarding 312 definite and indefinite intent 162
human dignity see dignity direct intent 160
human rights see fundamental rights direction of the will 160–162
hypnosis 29 dolus eventualis 161–162
fault element 155
I improper motive distinguished 48n
indirect intent 160
identification theory, employer-employee 445 legal causation criterion 241–244
identity infringement 425–427 mistake as to causal chain of events 164
appropriation tort 426 mistake excluding 162–163
false light tort 426 motive distinguished 163–164
juristic person 391–392 overlap with negligence 167–168
right to identity 425–426 whether determined before or after wrongfulness
wrongfulness 426–427 155–157
illegal income or support 261–262 285–287 intention of the legislature 135–136
immaterial property rights interdict 308–309
assessment of damages 284 delictual action distinguished 255n 308
nature of 56–57 new test for wrongfulness 97
impecuniosity of plaintiff 229n 234n 253n 254n prohibitory or mandatory 308
imperitia culpae adnumeratur 176 requirements for grant 309
544 Law of Delict
interdictum quod vi aut clam 307 leaves, nuisance 152

interest or profit theory, strict liability 434 445 legal causation 230–254
interference with contractual relationship 368–373 adequate causation 237–238
Aquilian action 11–12 contributory negligence distinguished 208
cause of action 368 direct consequences test 238–240
contracting party’s liability to third party 373 egg-skull cases 235n 240n 253–254
contributory negligence 371 emotional shock 345–348
hire-purchaser’s action 370 factual causation distinguished 215–216 230n
historic instances 370 fault in relation to the loss 240–241
lessee’s action 370 flexible approach 233–236
negligent interference 370–371 intention as criterion 241–244
seller’s action 370 mathematical degree of probability 238n
specific instances 368–369 means of limiting liability 230–233
unlawful competition 376n 380 negligence as criterion 245–248
wrongfulness 372 negligent misrepresentation 365
interpretation of statutes 75 135–136 novus actus interveniens 250–253
intoxication public policy as limiting criterion 241n
accountability, effect on 159 reasonable foreseeability 248–250
automatism 29 30 remoteness of damage 231
passenger’s consent to risk/contributory fault strict liability 247–248
209–210 theories 233
investment broker legal convictions of the community 39–55
reasonable broker test 175–176 legatee see heir or legatee
lessee
J action for damage to property 370
libertas 14 396
jest life
defamation defence 414 fundamental right 19
joint and several liability 319–321 life partner
joint wrongdoers 206–207 319–326 dependant’s action for loss of support 338–339
definition 319 lifesaver 82
apportionment of damages 206–207 lifestyle of plaintiff 299
deceased estate 324
limitless liability
dependant child 325
danger of 84
domestic servant 325
legal causation as limiting mechanism 230–233
injured breadwinner 325–326
liquidator 81
intentional wrongdoing 320n
joint and several liability 319–321 listening to private conversations 424
right of recourse 319n 321 litis contestatio
spouse and third party 322–324 transmissibility of actions 305–307
judicial officer living expenses, savings on
immunity 142–143 collateral source rule 277
judicial proceedings loss of amenities of life 292
defamation, privilege 408–409 loss of consortium 335n 429 430 431
juristic person loss of earning capacity
defamation 389–391 assessment of damages 284
delictual liability 27–28 illegal activities 285–287
privacy or identity, infringement of 391–392 loss of income
personality rights 389–392 assessment of damages 284
executor’s claim 330
illegal income 261–262 285–287
L patrimonial loss see patrimonial loss
last opportunity rule 199 201 206 324 341 loss of profit
lateral support consequential loss 265
action for disturbance 307 constitutional damages 255n
common law duty 74 damage to property used to generate income 284
failure to provide, wrongfulness 147n 153 lucrum cessans 265
legal causation 248n pure economic loss 50n
strict liability 442n sum-formula approach 266 267
law of obligations 4 unlawful competition 267n
Index 545
loss of support medical treatment

assessment of damages 284–285 consent issues see consent to medical treatment
dependant’s action see dependant’s action for free treatment, collateral source rule 276
loss of support negligence see medical negligence
illegal support 261–262 285–287 prisoner 86 87n
lucrum cessans 265 268–270 mental disease or illness
lump sum award of damages 281 accountability, effect on 159
luxuria 161 167n 168n 176n automatism 29 31
consent to medical treatment 131n
M escape of dangerous patient 88n
mala fides 48n 76n 91n 143n 164 307n mental injury see physical-mental integrity
malice see improper motive mesothelioma 227n
malicious attachment of property 419 military pension
malicious deprivation of liberty 398–399 collateral source rule 275
malicious prosecution 416–419 minor see child
animus iniuriandi 418–419 misrepresentation see negligent misrepresentation
elements of iniuria 416 mistake
failure of prosecution 419 causal chain of events 164
gross negligence 419 defamation defence 414
instigation 416–417 excluding intent 162–163
without reasonable and probable cause 417–418 mitigation of loss 279–280
manufacturer’s liability see product liability motive
market value of property 283 improper see improper motive
marriage see also spouse intention distinguished 163–164
breach of promise 311 427–428 motor vehicle accident
in community of property 322–323 cause of action, re once and for all rule 272
legality 334–335 child running into the road 184n
Muslim marriage see Muslim marriage contributory negligence 205
out of community of property 323–324 dicing 134n 206n 211n
remarriage possibility 275 276 335n direct and consequential loss 265
mass media factual causation 216n
media privilege 399n 410–411 failure to stop at red light/stop street 32 187n
negligent defamation 415 failure to wear crash helmet 205
privacy infringement 425 failure to wear seat-belt 182n 205
material deviation from causal nexus 164 impecuniosity preventing purchase of
media privilege replacement vehicle 229n 234n 253n 254n
defamation defence 399n 410–411 infringement of statutory provision 187n
medical expenses intoxicated driver 159 209–210
assessment of damages 284 joint wrongdoers 320n
executor’s claim 330 owner’s vicarious liability 453–454
future medical expenses 281n passenger’s consent to risk/contributory fault
general and special damage 266 134n 209–210
Road Accident Fund claim 271 pure economic loss 350n
medical negligence RAF claim see Road Accident Fund claim
acting in accordance with normal practices 187 relevance of negligence 192–193
concurrent contractual and delictual actions reliance on other road users acting reasonably
312–313 186–187
doctor-patient relationship 79 res ipsa loquitur 191–192
failed sterilisation procedure 249n sudden emergency 185–186
reasonable expert test 173–176 unlicensed young driver, parent’s negligence
res ipsa loquitur 191 185n
wrongful birth 80 motor vehicle theft
wrongful conception 80 incorrect information supplied by police 77n
wrongful life 80–81 police collusion 277n
medical scheme benefits security firm’s liability 82
collateral source rule 274 276 municipal liability 67 69 73–74 79–80
546 Law of Delict
Muslim marriage negligence (continued)

dependant’s action for loss of support 335n 338 misrepresentation see negligent
duty of support 44n misrepresentation
objective test 164
N omission distinguished 168–169
onus of proof 190
nasciturus fiction 38 overlap with intention 167–168
necessity 117–124 preventability of harm 166 180–184
definition 117 proof of 190–192
act necessary to protect threatened interest 120 reasonable foreseeability of harm 176–179
attack by animal 118 reasonable person test 164–166 169–176
bodily integrity threatened 119 relevance of 192–193 225n
burning house 117 reliance on others acting reasonably 186–187
compulsion 55 121 res ipsa loquitur 191–192
emergency medical treatment 120n statutory presumption, rebuttal, 190
existing or imminent state 119 sudden emergency 185–186
fear 119 surrounding circumstances 184–187
feelings threatened 120 uneducated person 164n
fleeing instead 120 whether determined before or after wrongfulness
freedom threatened 120 155–157 196
gang member 122n wrongfulness distinguished 193–198
ground of justification 117–118 negligent misrepresentation 357–368
honour threatened 120 accountants and auditors 361n 366–367
identity threatened 120 Aquilian action 11–12 357–358
impossibility distinguished 123–124 assessment of damages 284
interests protected 119–120 causation 364–365
killing innocent person 121–122 conduct 360n
legal duty to endure danger 123 contract concluded 11n
life threatened 119 duty to furnish correct information 361–363
objective test 119 examples 358n
privacy threatened 120 inducing contract 367–368
private defence distinguished 118 materiality 363
property threatened 119–120 123 negligence 364
proportionality of act 120–122 omission, in form of non-disclosure 359
putative necessity 119 197 pure economic loss 358–368
reasonableness of act 120–122 third party 365–366
requirements for valid defence 119–123 wrongfulness 53n 62n 360–363
self-induced state 122 negotiorum gestio 120n
vis maior 117 neighbour
whether excluding wrongfulness or negligence abuse of right 147–151
117–118 improper motive 48 150–151
negligence 164–198 lateral support 74 147 153 248 268 442n
definition 165n liability for omissions 61n 67n
child, test for negligence 171–173 necessity defence 123
contributory negligence see contributory fault nuisance 152–153 442–443
culpable homicide 164n 167–168 nervous shock see emotional shock
customs, usages and opinions of the community noise 152
187 nominal damages 280
defamation 413 415 non-dependant’s action 329–332
defective product 384–386 contracting party 329–330
duty of care, English doctrine 188–190 executor 330
emotional shock 345–348 funeral expenses 330
ex ante determination 195–196 heir or legatee 330
expert, test for negligence 173–176 master-domestic servant 332
fault element 155 164–167 persons having duty of support 331
gross negligence 161 168 non-patrimonial loss 288–303
infringement of statutory provision 187 definition 288
legal causation criterion 245–248 actio iniuriarum 13–16
Index 547
non-patrimonial loss (continued) omission 32–33 64–90

action for pain and suffering 16–17 as conduct 28 32–33
age of plaintiff 298 breach of legal duty to act 60–62 64–66
assessment of damages see damages for non- conditio sine qua non 223–226
patrimonial loss constitutional considerations 85–89
assessment of extent of damage 289–290 continuous course of conduct 32–33
disfigurement 292 contractual undertaking for safety of third party
element of delict 257–259 81–82
emotional shock 291–292 control of dangerous object 69–73
forms of physical-mental injury 291–293 creating impression that third party interests
gender of plaintiff 298 protected 83–84
general damage 266 289 danger of limitless liability 84
general nature 288–289 drowning 33 53
interests of personality 288 general wrongfulness criterion 89–90
loss of amenities of life 292 interplay of factors 84–89
objective element 288, 289 knowledge or foresight of possible harm 73–74
pain and suffering 291 legal convictions of the community 40 65–66
patrimonial loss distinguished 259–260 liability generally 64–66
physical-mental injury 291–294 municipal liability 67 69 73–74
shortened life expectancy 292 negligence distinguished 168–169
status, culture and lifestyle of plaintiff 299 negligent misrepresentation 359
subjective element 288–289 omissio per commissionem 67–69
theories re nature of physical-mental injury particular office 81
293–294 police liability 33 49n 68n 69n 72 74 76–78, 79
84–86 88n 89n
unconsciousness and changed personality
294–298 prior conduct 67–69 82n
rules of law 74–78
non-trading corporation
special relationship between parties 79–81
defamation 390
state liability 84–89
novus actus interveniens 250–253
vulnerability to risk of damage 84
noxae deditio 435n 438n
wrongfulness 60–62 64–66 89–90 94–95
nuclear damage
wrongfulness and negligence distinguished 198
strict liability 458
“once and for all” rule 270–273
nuisance 152–153 442–443 causes of action 271–273
definition 442 exceptions 270–271
assessment of damages 284 formulation and implications 270
English law term 149n overhanging branches, nuisance 153
examples 152–153
exception to once and for all rule 270–271
P
neighbour 152–153
strict liability 442–443 pactum de non petendo 129n 130 134–135
339–340
O pain and suffering
action for see action for pain and suffering
object poured, thrown or falling from building 307 compensation claimable 291
441 paragliding accident 84
occupational injuries, statutory compensation parliamentary reports
collateral source rule 276 defamation, privilege 409
damages: definition 258n parstellin 232n 242n 252n
delictual claim instead 305n passing off 378
prescription period 318n patrimonial loss 263–287
occupier’s liability 72 definition 263
odour, nuisance 152 Aquilian action 9–12
official capacity assessment of extent of damage 282
ground of justification 142–143 concrete concept of damage 267
official command damage to property 264 265
ground of justification 144–145 damages for see damages for patrimonial loss
omissio per commissionem 67–69 damnum emergens 265
548 Law of Delict
patrimonial loss (continued) police liability

debt creation or increase 264 265 acting in official capacity 142–143
direct and consequential loss 265 execution of official command 144–145
element of delict 257–259 improper interrogation 424
expectation of benefit 264 omissions 33 49n 68n 69n 72 74 76–78, 79
expectation of debt 264 265 84–86 88n 89n
forms of 265–266 private defence 114n
general and special damage 265–266 pure economic loss 350n
loss of expectation 264 rape by police officer 449–450
loss of possession 264 reasonable police officer test 174
mitigation 279–280 search and investigation 180n 224
negative elements of patrimony 264 shooting fleeing suspect 141 144
non-patrimonial loss distinguished 259–260 shooting member of public 114n
onus of proof 287 wrongful arrest see arrest
patrimony, concept 263–264 wrongful detention 137n
positive elements of patrimony 264 political privilege
prescription period 270 defamation defence 411
prospective loss see prospective loss post-traumatic stress disorder see emotional shock
pure economic loss 265 pothole 69n 75n 201n
reduction in value 264–265 pound statutes 439
time for assessing 267 Praetorian Edict de nautis, cauponibus et
ways in which loss caused 264–265 stabularis 441–442
pecuniary loss see patrimonial loss precautionary measures see preventability of harm
penalty clause 316 prescription period
pension fund benefits claim for damages 270
compensation for occupational injuries and
collateral source rule 274 276
diseases 318n
periodic payment of damages 281n
delictual debt 318
personal functional theory 293–294
dependant’s action for loss of support 272n
personal immaterial property rights 56–57
recovery of debt from organ of state 318n
personal rights 56–57
suspension or interruption 318
personal theory, nature of physical-mental injury third party claim 318n
293–294
press see mass media
personality infringement preventability of harm 180–184
action for see actio iniuriarum burden of eliminating risk 182–183
forms of iniuria see iniuria degree or extent of risk 181
patrimonial damage 388 gravity of possible consequences 182
personality rights negligence test 166 180–181
children 388 utility of actor’s conduct 182
juristic persons 389–392 prior conduct
prisoners 389 liability for omission 67–69 82n
types of rights 56–57 prisoner
physical handicap see disability control of dangerous prisoners 49n 69n 72
physical liberty 396–399 escape 49n 69n 72 88n
actio iniuriarum 396 HIV testing 133n
fundamental right 19 396 medical treatment 86 87n
malicious deprivation of liberty 398–399 personality rights 389
wrongful deprivation of liberty 396–398 physical-mental integrity 443n
443–444 release on parole 187n
physical-mental integrity 291–298 392–394 TB infection 193n 226n
actio iniuriarum 13–16 393–394 unlawful imprisonment 50n 285 396–398
action for pain and suffering 16–17 443–444
assessment of damages 298–300 privacy infringement 421–425
forms of injury 291–293 302–393 actio iniuriarum 425
fundamental right 19 85 392–393 disclosure, by 425
theories re nature of injury 293–294 fundamental right to privacy 19 421
picketing 20 intrusion, by 424
police dog 27n juristic person 391–392
Index 549
privacy infringement (continued) privilege (continued)

modes of infringement 422–423 media privilege 399n 410–411
publication of private facts 424n political privilege 411
recording (fixation) of private facts 423 product liability 382–386
social media 422n 425 Aquilian action 382–383
wrongfulness 423 Consumer Protection Act 68 of 2008 384n 386
private defence 108–117 456–458
definition 108 defences 457
attack by animal 109 examples 382
attack commenced or imminent, but not yet joint wrongdoers 457–458
ceased 111 negligence 384–386
attack directed at third party 112 pure economic loss 384n 386 456n
attack must be human act 109 res ipsa loquitur 385–386
bodily integrity threatened 109 strict liability 384n 386 456
boni mores test 54–55 wrongfulness 383–384
boxing 110n professional negligence
defence directed at aggressor 112 medical profession see medical negligence
defence not more harmful than necessary reasonable expert test 173–176
113–117 profit, loss of see loss of profit
duel 110 property
ejectment of lessee 113n damage to see patrimonial loss
ex ante determination 108 fundamental right 19
fault on part of aggressor not required 111–112 malicious or wrongful attachment 419 443–444
ground of justification 108 market value 283
honour threatened 109 necessity defence 119–120 123
interests need not be similar in character private defence 109 113 115–116
115–116 trap gun protecting 111n 113
interests protected 109 prosecutor
killing attacker 115–116 reasonable prosecutor test 174
life threatened 109 prospective loss
means of defence need not be similar to attack definition 268
116–117 as damage 257
necessary to protect threatened right 112–113 forms of 269
necessity distinguished 118 generally 268
objective test 110–111 112n lucrum cessans 265
only reasonable alternative 112–113 nature 268–269
police shooting member of public 114n requirements for recovery of damages 269–270
property or possessions threatened 109 113 protected disclosures of employee
115–116 occupational detriment 91 357n
proportionality of defence 113–117 protection of personal information
provocation distinguished 125 strict liability for interference with information
putative or imagined defence 110–111 459–460
reasonableness of defence 54–55 113–117 provocation 124–128
requirements for valid defence 112–117 definition 124
resisting arrest 109–110 accountability, effect on 159
self-defence too narrow a term 108n bodily integrity threatened 125
taking flight instead 113 boni mores test 124
threatened attack 111 defamation and insult 127–128
trap for thief 111n 113 ground of justification 124–125
value of interests may differ 115 honour threatened 125
wrongfulness of attack 109–111 objective test 124
private law physical assault 125–127
law of delict 4 private defence distinguished 125
public law distinguished 7–8 reputation threatened 125
privilege whether excluding wrongfulness or fault 124
absolute and relative privilege 407 psychological integrity, right to 20 85
defamation defence 407–409 psychological lesion see emotional shock
550 Law of Delict
public figure reasonable foreseeability (continued)

defamation 405 defamation 401
public interest defective product 384–385
defamation defence 409–410 degree of probability of manifestation of harm
public law 179
private law distinguished 7–8 emotional shock 345–348
publication legal causation 248–250
element of defamation 400–402 negligence 176–179
private facts 424n pure economic loss 353
punitive damages 8n 460n wrongfulness, irrelevance to 36n 49n 193–194n
pure economic loss 349–357 reasonable person test 164–166 169–176
definition 349–350 characteristics of the reasonable person 169–170
Aquilian action 11, 349 child 171–173
boni mores 351–357 defamation 403–405
breach of legal duty 60–62 350–351
expert 173–176
breach of statutory duty 92n
gender 170
concurrent delictual and contractual actions
313–317 negligence test 164–166 169–170
defective product 384n 386 456n physical handicap 170
disappointed beneficiary 357 reasonableness of imposing liability 93–102
examples 349n criticism of test 94–102
extent of loss 354–355 new test for wrongfulness 93–94
extent of risk 354 reconciling boni mores test with 102–106
insurance cover 356 recklessness
knowledge that conduct would cause loss 352 dolus eventualis 161
multiplicity of actions 354–355 reflex movements, conduct 29
negligent misrepresentation 358–368 religion, belief and opinion, right to freedom of 20
patrimonial loss 265 remarriage of widow
police liability 350n collateral source rule 275 276
practical measures to prevent 353 factors to consider 335n
professional skill and competence 353 remedies 305–318
reasonable foreseeability 353 concurrence 309–317
requirements for liability 350 delictual actions 305
statutory provision 356 exclusion clauses 317–318
unsuccessful tender 78 143 interdict 308–309
vulnerability to risk of loss 356 prescription 318
wrongfulness 60–62 98 350–357 transmissibility of actions 305–307
remoteness of damage
Q emotional shock 345–348
quantum of damages legal causation 231
non-patrimonial loss see damages for non- repair costs 283
patrimonial loss res inter alios acta 273–279
patrimonial loss see damages for patrimonial res ipsa loquitur
loss defective product 385–386
generally 191–192
R motor vehicle accident 191–192
railway liability res perit domino 3
free pass excluding liability 134–135 340 rescue cases 212–213
generally 71 78 80 84n 86 restitutio in integrum 267n
passenger pushed out of moving train 182n 183n risk liability 434 435n
unscheduled train 207n risk or danger theory, strict liability 434 445
real rights 56–57 Road Accident Fund claim
reasonable foreseeability 176–179 248–250 exception to once and for all rule 271
abstract (absolute) approach 176–177 245 joint wrongdoers 320n
concrete (relative) approach 177–178 240–241 prescription period 318n
245 road maintenance 67n 69 75
Index 551
Roman-Dutch law slippery floor 71 82 180n 183n 201n

actio iniuriarum 14–15 smoke and gas emissions, nuisance 152
action for pain and suffering 16–17 social media
Aquilian action 10 children’s right to privacy 388n
generalising approach 4n defamation 400n
Roman law dignity, right to 420n
actio iniuriarum 13–14 interdicting personality infringements 308n
action for pain and suffering 16 privacy infringements 422n 425
Aquilian action 9–10 social welfare payments
casuistic approach 4 8 collateral source rule 276 277
rugby injury 48n 100n 128 134n solatium
actio iniuriarum 5 8n 301 388 390–391
S adultery 429–430
collateral source rule 276 278n
same-sex partner soldier
dependant’s action for loss of support 338 execution of official command 144n
sane automatism, conduct 31 solvency theory, employer’s liability 445
satisfaction South African Revenue Service 87n
definition 256 special damage 265–266
actio iniuriarum 290 301 special relationship between parties
school liability for omission 79–81
playground, hazardous feature 67n 71n 78n 96n sports injury 128–129 134
180n spouse see also marriage
sexual abuse of pupils by teachers 444n 451n claim for increased duty of support 331
state’s vicarious liability for public schools 454 communication of defamatory words 401
seat-belt death or injury see dependant’s action for loss of
failure to wear 182n 205 support
security firm joint wrongdoer 322–324
liability for loss of property 83–84 reciprocal duty of support 335
seduction 394–394 stable-keeper
self-defence see private defence damage to goods stored by 307 441–442
seller state liability
action for damage to property 371 as employer 447
sentimental damages omissions 84–89
actio iniuriarum 5 390–391 public schools 454
nuisance claim 152n status of plaintiff 299
sentimental loss see non-patrimonial loss statutory authority 135–142
sentimental value of property 58n arrest 137–140
septicaemia 222n 229n 234n 252n boundaries of authorisation 136–137
sexual abuse causing bodily injury during arrest 140–142
pupils by teachers 444n 451n directory statute 135
sexual harassment ground of justification 135–137
employment context 420n 448n 449n 451–452 intention of the legislature 135–136
stress disorder 291n 343n 345n 393n onus of proof 135n
shadowing a person 424 permissive statute 135
shipping reasonableness criterion 136–137
damage to goods stored during 307 441–442 statutory duty
shock see emotional shock breach of, 90–93
shoplifting statutory negligence 187
reasonable suspicion 412–413 stolen thing see theft
shortened life expectancy 292 strict liability 433–460
sick leave aircraft, damage caused by 458
collateral source rule 274 276 animals, damage caused by 6n 434n 435–440
single cause theory, cause of action 271–272 Apportionment of Damages Act not applicable
slate washing downriver 201
impossibility of remedying 123 damage to goods stored during shipping
nuisance 67n 152 441–442
sleep and sleepwalking, conduct 29 30–31 defamation 399n 415n
552 Law of Delict
strict liability (continued) temporary interdict 309

fault theory and 433 tender process
general characteristics 435 irregularities 78 143
genetically modified organisms 459 theft
independent contractor 455–456 actio ad exhibendum 307
inn- and stable-keepers, damage to goods stored assessment of damages 284
by 441–442 condictio furtiva 307 441
interest or profit theory 434 445 creation of impression that third party interests
justification 433–434 will be protected 83–84
legal causation 247–248 furtum usus 441
loss of stolen thing 441 motor vehicle theft 77n 82 277n
nuclear damage 458 private defence 115n
nuisance 442–443 property damage, as 50n 349n
object poured, thrown or falling from building security firm’s liability 82 83
441 thin skull rule 348
product liability 384n 386 456 third party
protection of personal information 459–460 contractual undertaking for safety of 81–82
risk or danger theory 434 445 contributory negligence 204
telecommunications lines etc, damage to 459 creation of impression that interests will be
theoretical basis 434 protected 83–84
vicarious liability 143 444–454 exclusion of liability towards 82
vis maior defence 435 interference with contractual relationship see
wrongful attachment of property 443–444 interference with contractual relationship
wrongful deprivation of liberty 4n 15n 398 negligent misrepresentation 365–366
443–444 time bomb 162
subjective rights 55–59 time for assessing damage 267
boni mores test 59 tort
categories 56–57 English law 4–5
determining whether infringement wrongful European Group on Tort Law 100n
58–59 trade, occupation and profession, right to 21
development of new rights, 57–58 trade union
doctrine 55–56 defamation 390n
origin 58 liability for damage 166n 319n
subsidence transmissibility of actions 305–307
conduct causing 27n transport services’ liability 71 78 80 84n 86
exception to once and for all rule 271 trap gun protecting property 111n 113
sudden emergency 185–186 trespasser
suicide 77n 238n 250n 252n 336n 450n occupier’s liability 72
sum-formula approach to damage 266 use of force against 112n
support, loss of see loss of support truth and public interest
swimmer defamation defence 409–410
liability for omission 33 53 89–90 Twelve Tables 13
swimming pool
municipal liability 70n 78n 88n 130n U
occupier’s liability 70 72
unborn child
damage to, wrongfulness 38
T unconsciousness
talem qualem rule 253–254 348 assessment of damages 294–298
taxi war 74 automatism 29
teacher cabbage cases 294
control of dangerous object 71 twilight cases 294
control of dangerous learner 72 universitas
prank defaming 402n personality rights 389
power to discipline 145–147 unlawful competition 373–382
reasonable teacher test 164 definition 373
telecommunications lines, etc airlines 267n 374n
strict liability for damage 459 Aquilian action 11 373–374
Index 553
unlawful competition (continued) volenti non fit iniuria 128–129

assessment of damages 284 voluntariness of conduct 28
boni mores test 375–377 voluntary assumption of risk
boycott 381 breadwinner, dependant’s action for loss of
breach of statutory duty 380 support 340
bribery 379 consent to injury or risk of injury 128–129
cheap foreign labour 92n contributory intent and 129 208–212
competition principle 376–377 rescue cases 212–213
disparaging statement 381 use of term 129
factual disturbance 375
vulnerability to risk of damage 84
fairness and honesty test 375–376
fault 374n
improper motive 48 W
infringement of other subjective right 382 wall
infringement of right to goodwill destabilising 152–153
direct infringement 381–382 impossibility of building, to avert nuisance 123
generally 374–377
watching a person 424
indirect infringement 377–380
water
interference with contractual relationship 376n
380 nuisance 152
leaning on 379 welding operations 182n
misleading the public 378 whistleblower see protected disclosures
motive 377 wrongful attachment of property 419
passing off 378 wrongful birth 80
physical or psychological pressure 382 wrongful conception 80
supermarkets 376n wrongful deprivation of liberty 396–398
trade secrets or confidential information 380 wrongful detention 396–398
undue influence 379 after court appearance 137n
wrongfulness 374–377 assessment of damages 303n
utility value of patrimony 282 causation 239n 247–248 251n
elements of iniuria 396–398
V joint wrongdoers 319n
veld fire previous awards in comparable cases 300n
presumption of negligence 190n strict liability 398 443–444
vicarious liability 444–454 wrongful dismissal 312
definition 143 444 wrongful life 80–81
employer–employee 444–453 wrongfulness 35–153
dominant impression test 446 abuse of right 147–151
employee acting within scope of employment act and consequence 36–38
447–453 boni mores test 39–55
employment relationship 445–447 breach of legal duty 60–63
intentional wrongdoing 449–450 breach of statutory duty 90–92
joint wrongdoers 447 consciousness of wrongfulness, aspect of intent
rape by police officer 449–450 162–163
risk creation 450–453 control of dangerous object 69–73
sexual harassment 451–452 damage and 260–262
state as employee 447
defamation 402–405
theoretical basis of liability 445
motor-car owner–driver 453–454 defective product 383–384
other forms 444n dual investigation 36
principal–agent 453 duty of care, English doctrine 60–63 100–101
state–public schools 454 103 105–106
strict liability 143 444 element of delict 35–36
view emotional shock 344–345
obstruction of 148n ex post facto objective inquiry 35
vis maior foreseeability irrelevant 36n 49n 193–194n
defence to damage caused by animals 437 439 grounds of justification see grounds of
necessity defence see necessity justification
strict liability defence 435 impossibility excluding 123
554 Law of Delict
wrongfulness (continued) wrongfulness (continued)

infringement of subjective right 55–59 pure economic loss 60–62 98 350–357
interference with contractual relationship 372 reasonableness of imposing liability 93–102
legal convictions of the community 39–55 reconciling boni mores test and reasonableness
negligence distinguished 193–198 of imposing liability test 102–106
negligent misrepresentation 53n 62n 360–363 subjective factors, relevance of 47–49
nuisance 152–153 unborn child 38
omission see Omission unlawful competition 374–377
prima facie wrongfulness 49–51 whether determined before or after fault 155–157
197

Delict 8 TH

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Delict 8 TH

Uploaded by

Copyright:

Available Formats

Law of Delict

Law of Delict is intended to be a comprehensive introduction to the general principles of delic-

4 Fault (and contributory fault)

11 Forms of liability without fault

1 Delict: general nature and place in the legal system

wrongful and negligent (or intentional) impairment of bodily or physical-mental integrity is

2 Delict and breach of contract

3 Delict and crime

4 Historical development of delictual liability

4.2 Actio legis Aquiliae37

60 1934 CPD 151 155; see also supra fn 14.

4.3 Actio iniuriarum76

4.4 Action for pain and suffering

110 See also Joubert Grondslae 93–94.

5 The law of delict, the Constitution and fundamental (human)

163 See infra 39 ff.

2 Nature and characteristics of conduct

3 The defence of automatism

4 Commission (commissio) and omission (omissio)50

As previously stated, conduct may be in the form of a commission or an omission.51 Although

2 Act and consequence

3 The legal convictions of the community (boni mores) as the

The general norm or criterion to be employed in determining whether a particular infringement

3.1 The balancing of interests

3.2 A delictual criterion

3.3 An objective criterion

3.4 Practical application of the boni mores criterion

4 Wrongfulness as infringement of a right

4.1 The doctrine of subjective rights98

95 Potgieter and Van Rensburg 1977 THRHR 382–383.

4.2 The nature of a subjective right

4.3 Further development of the doctrine of subjective rights

4.4 Origin of subjective rights

4.5 Infringement of a subjective right: requirements

110 Neethling Van Heerden-Neethling Unlawful Competition 105 ff 213–219.

5 Wrongfulness as breach of a legal duty124

5.2 Liability for an omission149

5.2.1 Prior conduct (the omissio per commissionem rule)165

5.2.2 Control of a dangerous object181

5.2.3 Knowledge and foresight of possible harm205

5.2.4 Rules of law214

5.2.5 A special relationship between the parties240

247 Butise v City of Johannesburg 2011 6 SA 196 (GSJ) 202.

5.2.6 A particular office259

5.2.7 Contractual undertaking for the safety of a third party

5.2.9 Danger of limitless liability

5.2.10 Vulnerability to risk of damage

5.2.11 Interplay of factors

state;308 knowledge or foreseeability of the prejudice or threatening prejudice by the state;309 a

5.2.12 The general wrongfulness criterion

5.3 Breach of a statutory duty322

326 1907 TS 427.

6 Wrongfulness as the reasonableness of imposing liability

As seen above, it is generally accepted that wrongfulness is constituted by the infringement of a

366 See further Knobel 2008 THRHR 651.

As pointed out earlier,415 in Country Cloud Trading CC v MEC, Department of Infrastructure

8.2 Private defence457

8.2.2 Requirements for the attack

8.2.3 Requirements for the defence

8.3.2 Requirements for necessity

be protected in necessity. (Conversely, any interest, such as honour,550 privacy,551 identity,552

8.3.3 Necessity and impossibility578

preceding wrongful act (infra 215).