1

A. SPECIAL FORMS OF LIABILITY INVOLVING PATRIMONIAL HARM,

PAIN AND SUFFERING

Outcomes for this section: -

- Distinguish between omissions, negligent misstatements, pure economic loss and injury/ death
to another.
- Understand the requirements and principles for proving such a type of claim
- Understand case law and its application to the principles

Omissions

1.1 Introduction

Liability based on omission is more restricted than liability based on commission, because of public policy.
It would be socially and economically unduly restrictive, and therefore undesirable, to enforce a wide and
general duty to prevent harm to others.

1.2 Wrongfulness

To determine liability for an omission, one enquires whether a legal duty to prevent harm exists. There is
no general right to be protected from harm by another, and conversely, there is no general legal duty to
act positively to protect others, or to prevent harm to others. Courts recognize a duty to act positively to
prevent harm for the purposes of delictual liability only where failing to act positively was unreasonable
according to the boni mores or the legal convictions of the community. The omission itself is not wrongful.
The focus is on the whole of the causal sequence beginning with failing to act and ending with the harmful
consequences that could have been prevented by positive action. Enquiring into wrongfulness involves

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 2

applying the general criterion of reasonableness. Courts must weigh up the interests of the persons
involved and also take into account the interests and convictions of the community at large.

In a line of cases before the decision of the Appellate Division in Minister van Polisie v Ewels courts
adhered to the view that they could impose liability for an omission only where the defendant’s prior
conduct created a risk of harm or a new source of danger and if the defendant then failed to prevent the
harm from occurring. The judgments in these cases often involved subtle distinctions between situations
in which the defendant simply failed to prevent harm, and situations where the creation of a risk of harm
or the introduction of a new source of danger preceded the failure. Eventually, the Appellate Division
broke away from this approach in the leading case of Minister van Polisie v Ewels. In this case, the Court
held that there can be delictual liability for a mere omission, in other words, where an omission was not
preceded by conduct that created a risk of harm or that introduced a new source of danger. In Ewels the
Court imposed liability in a situation where the plaintiff was assaulted by an off-duty policeman in a police
station in the presence of a more senior policeman, who had failed to prevent the assault.

The Appellate Division’s decision in the Ewels case has been of great significance, not only in respect of
liability for omissions, but also in respect of the criteria for assessing wrongfulness generally. The essential
question is whether a legal duty exists to prevent harm to others, based on reasonableness and public
policy. In terms of the wide and evaluative criteria used by courts in this regard, a legal duty exists where
failing to prevent harm not only evokes moral indignation, but is also regarded as so unreasonable,
according to the boni mores or legal convictions of the community, that liability should be imposed for
the loss suffered. In addition to these wide and general criteria, courts take into account the following:

•Policy considerations that indicate whether the law of delict should intervene (inter alia the social or
economic consequences of imposing liability, the availability of alternative remedies, and the need for
accountability of public bodies or officials)

•Relevant constitutional or other statutory rights and duties

•A grouping of factual circumstances that indicate a duty not to cause or to prevent harm in the particular
situation.

The ‘prior conduct’ approach to liability of local authorities for omissions was finally discarded in Cape

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 3

Town Municipality v Bakkerud.

In this case, the Court accepted the general criterion of reasonableness (the policy-based standard of
boni mores or the legal convictions of the community). The specific content of this general criterion is
determined by taking into account a grouping of factual considerations, such as the extent of the
danger, the period of time for which it existed, the resources of the public authority, and prior warning.
The need to prove both the existence of a legal duty to prevent harm and negligence, limits claims
against public authorities.

Mostert v Cape Town City Council

This case involved a damaging leak from the defendant’s water main, and it illustrates the factors that
are relevant in cases that involve local authorities. The Court weighed the technical evidence on the
risk of the pipeline collapsing against the high cost of replacing it, and judged that the council could
not reasonably have been expected to replace the pipe. The conduct of the city council was therefore
not negligent. Noting that ‘an unbending adherence to logic’ might dictate that wrongfulness is the
prior enquiry, and the reasonableness of requiring the council to replace the pipeline might also have
been dealt with under that heading, Schutz JA remarked that logic is one thing, utility sometimes
another. Both the requirements of wrongfulness and negligence must be met, and it does not matter
which of the two is determined first. One can determine wrongfulness on the assumption that
negligence will be proved, and vice versa. In many, if not most delicts that involve property damage
or injury, the issue of wrongfulness is uncontentious. This was such a case. The essential question was
whether the council was negligent in not preventing the pipe from bursting. The requirement of
wrongfulness (the general, policy-based criterion of reasonableness, or the community’s sense of what
the law ought to be) was not contentious. The council exercised sole control over the pipeline and
clearly had a legal duty to prevent harm to people living or doing business in the vicinity of the
pipeline.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 4

In omission cases that involve an alleged breach of a legal duty to act positively to prevent harm to others,
the reasoning of courts often involves one or more of the following considerations:

• Prior conduct: Did the defendant’s prior conduct create a risk of harm and therefore also the duty
to prevent such harm? Prior conduct that creates a risk of harm or a new source of danger is no
longer a requirement for liability based on an omission, as shown above. However, such prior
conduct is still an important factor that indicates whether a duty to act positively to prevent harm
exists.

• Control: Did the defendant have control over a dangerous or potentially dangerous object?
Control may be exercised, or the right, obligation or ability to exercise control may flow from
ownership or possession rights, or from an agreement or statutory provision. The actual exercise
of control, or the right, obligation or ability to exercise control, is not in itself conclusive. It is,
however, an important factor that indicates whether a legal duty in respect of a particular harm
occurring exists. One must determine the degree and scope of the control that is required based
on all the facts of the particular case, and the harm that occurred. The essential question is
whether one could reasonably and practicably expect the person or body in control to take
precautionary measures in respect of the harm that occurred

• State departments, public bodies and officials that exercise functions in the public interest: The
legal convictions of the community demand that hospitals and health-care practitioners provide
proficient health-care services to members of the public and be held liable for failure to provide
prompt and appropriate medical treatment.

• Obligation to act positively in terms of common law or statute law: Did the defendant have an
obligation, in terms of a rule of common law or statute law, to act positively to prevent harm to
others? For example, the owner of low-lying land is obliged to provide lateral support for the
higher land of his or her neighbour. A landowner is generally required to prevent harmful
substances from flowing or otherwise escaping from the property to neighbouring land.

• Special relationship: Did a special relationship between the parties give rise to a legal duty for the
defendant to prevent harm to the plaintiff? The mere fact of such a special relationship is not
conclusive, but it will be an important factor in indicating a legal duty to prevent harm, and courts

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 5

will consider it along with all the other circumstances of the case. A relationship of trust or
authority, or a long-standing business relationship can give rise to such a duty. A contractual
relationship can also give rise to a duty to prevent harm to the other party, to the contract, or to
a third party.

These policy considerations give specific content to the general criterion of reasonableness for
determining wrongfulness, providing guidelines and flexibility for further judicial development of the
law on liability for omissions.

Negligent misstatements

2.1 Introduction

Where the plaintiff acts upon incorrect information supplied by the defendant and suffers harm, liability
depends on whether the plaintiff had a right to be given correct information and the defendant a duty to
supply such information. If no contractual relationship between the parties existed, one cannot assume a
right to information from the outset and must therefore proceed from the duty side to assess
wrongfulness. The focus of the enquiry is whether the factual situation gives rise to policy considerations
indicating that a legal duty to provide correct information exists. Liability for negligent misstatements is
an important category of liability for pure economic harm.

The development of the law towards recognising liability for a negligent misstatement causing pure
economic harm has been described as follows:

It is clear that in our law Aquilian liability has long outgrown its earlier limitation to damages arising from
physical damage or personal injury. Thus, for instance,

in Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) this Court held that Aquilian
liability could in principle arise from negligent misstatements which caused pure financial loss, i.e. loss

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 6

which was caused without the interposition of a physical lesion or injury to a person or corporeal
property.

Courts follow a cautious approach to liability for statements

Administrateur, Natal v Trust Bank van Afrika Bpk

The Court applied the general criterion of reasonableness to determine whether a misstatement
causing harm is wrongful for the purposes of delictual liability. The Court accepted that the
criterion of reasonableness involves policy considerations and Rumpff CJ quoted the following
passage from Fleming’s Law of Torts as being correct also for South African law:

In short, recognition of a duty of care is the outcome of a value judgment that the plaintiff’s
invaded interest is deemed worthy of legal protection against negligent interference by conduct
of the kind alleged against the defendant. In the decision whether or not there is a duty, many
factors interplay: the hand of history, our ideas of morals and justice, the convenience of
administering the rule and our social ideas as to where the loss should fall. Hence, the incidence
and extent of duties are liable to adjustment in the light of the constant shifts and changes in
community attitudes.

In the Administrateur, Natal case, the defendant bank had acted on behalf of a person who
claimed compensation from the provincial authorities for expropriation of property. The
authorities eventually paid him compensation via the bank, but it turned out that he was not the
owner of the property concerned. The provincial authorities then claimed the amount that they
paid out as damages for alleged negligent misrepresentation by the bank. The action failed
because the provincial authorities themselves had initially identified the claimant as the owner of
the property. The Court held that the bank had no legal duty to verify the facts, and that the
plaintiff’s own mistake, therefore, caused the loss. However, liability for negligent

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 7

misrepresentation in instances where a duty to provide correct information existed, is now well
established.

2.2 Wrongfulness

Wrongfulness is often the main issue in determining liability for negligent misstatements, because causing
pure economic harm by negligent misstatement, is not prima facie wrongful. Although one generally
determines wrongfulness by looking at either the infringement of a right or the breach of a duty, in these
instances there is often no infringement of one of the settled categories of rights (real, personal,
personality, or intellectual property rights). Courts, therefore, ask whether the defendant had a legal duty
to provide correct information to the plaintiff, and whether fulfilling this duty would have prevented harm
to the plaintiff.

The following factors are typical of what courts take into account when deciding whether a legal duty to
provide correct information to another person exists:

• Public office: Was the economic loss caused by a person holding a public office, such as a notary,
sworn appraiser or an auditor? Such a person has ‘a kind of patent of credibility and efficiency

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 8

conferred upon him or her by public authority’6 and members of the public are ‘invited and entitled
to repose confidence and trust in the acts of such persons performed in their respective capacities’.

• Professional knowledge and competence: Was the economic loss caused while providing
professional services, and was there a failure of professional competence or skill? Where the
defendant provides professional services and professes to possess special skills, special or exclusive
knowledge, or professional competence, courts will more readily accept that it is unreasonable to
cause economic loss to a person that depends on the defendant’s professional competence, or that
relies on the correctness of information furnished in a professional capacity.

EG Electric Co (Pty) Ltd v Franklin

A registered electrician, on instructions of the seller of a house, had supplied a certificate that the
electrical wiring of the house complied with municipal regulations. The Court held that a registered
electrician owed a legal duty to provide a certificate with correct information to the purchaser of
the house, who had relied on the correctness of the certificate and later had to incur costs to rectify
defective wiring.

Mukheiber v Raath

The parents of a healthy and normal child (their fourth) instituted action in delict against a
gynaecologist, alleging that he had negligently misrepresented to them that the wife had been
sterilised after the birth of their third child. Relying on this representation, they had failed to take
contraceptive measures, with the result that the fourth child was conceived and born. The parents
claimed damages from the doctor for pure economic loss, in the form of confinement costs and
maintenance of the child until he becomes self-supporting. The Supreme Court of Appeal held that the
doctor had a legal duty to stop making any representation on the matter of sterilisation until he had
taken reasonable steps to ensure the accuracy of his representation. The factual and policy
considerations indicating that such a duty existed were the following:

•The special relationship between the doctor and the parents who consulted him

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 9

•The material risk that the situation involved, that is, the risk of the conception and birth of an
unwanted child

•The fact that this risk should have been obvious to the doctor

•The fact that it should also have been obvious to the doctor that the parents would rely on what he
told them, that the correctness of the representation was of vital importance to them, and that they
could suffer serious damage if the representation was incorrect

•The fact that the representation related to technical matters concerning a surgical procedure about
which the parents would necessarily be ignorant and the doctor should be knowledgeable. As far as
public policy considerations are concerned, the Court held that the parents’ reasons for wanting the
sterilisation were socio-economic and family reasons, and that these reasons were socially acceptable
and not contra bonos mores. Recognising legal duty in this case would not impose too heavy a burden
on the doctor. Professional people must not act negligently and should not make unsolicited
misrepresentations. Through a misstatement, the doctor had wrongfully caused financial loss to the
parents

• Knowledge: Did the defendant know or foresee that the misstatement would cause harm, or did
the defendant have the motive to cause harm? Such knowledge or foresight of the possibility of
harm imposes a duty on the defendant not to cause the harm. Causing such harm is unreasonable
and therefore wrongful.

• Extent of possible liability and the economic or social consequences of imposing liability: Where
recognising a duty to prevent economic loss could lead to a situation of indeterminate liability or
‘one fraught with an overwhelming potential liability’ or to a ‘multiplicity of actions’ that could be
‘socially calamitous’, courts will be reluctant to accept that such a duty rested on the defendant

These factors give specific content to the flexible criterion of general reasonableness (boni mores). They
are the basis on which courts determine whether the plaintiff had a right to be given correct information,
and whether the defendant had a duty to supply such information. If misstatement by the defendant
These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 10

constitutes a breach of such a duty and causes harm to the plaintiff, the requirement of wrongfulness is
met. Courts will impose liability if the defendant acted negligently.

Pure economic loss

3.1 What is pure economic harm or loss, and why does it require special attention in the law of delict?

Pure economic harm means financial loss that is not connected to any physical injury or damage to
property of the plaintiff. The economic effects of harmful conduct can be much more widespread than
the physical effects. Economic effects are not subject to the natural laws of physics and can spread widely
and unpredictably, for example, where people react to incorrect information in a news report, or where
the malfunction of an electricity network causes shut-downs, expenses and loss of profits to businesses
that depend on electricity.

Courts try not to impose indeterminate liability for causing pure economic harm (‘opening the floodgates
of liability’). Instead, they seek to contain liability within reasonably predictable limits, so as not to stifle
initiative and enterprise. They do this mainly by means of the criterion of general reasonableness used to
determine wrongfulness.

3.2Wrongfulness
One generally determines wrongfulness by looking at the infringement of a right or the breach of a duty.
In cases of pure economic harm, there is often no infringement of one of the settled categories of rights
(real, personal, personality, or intellectual property rights). Therefore, courts ask whether the defendant
had a legal duty to prevent economic harm to the plaintiff. The following are typical factors that courts
take into account when deciding whether a legal duty to prevent pure economic harm to another person
exists:

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 11

•Knowledge: The fact that the defendant knew or subjectively foresaw that his or her conduct would
cause damage to the plaintiff is an important and often decisive factor. Such knowledge or foresight could
arise from the mere fact of a contractual relationship between the parties, or from the fact that one party
of necessity relies on the conduct, statement or information of the other.

•Practical measures to avert the harm: Courts consider the probable success, relative ease and expense
of practical steps that the defendant could have taken to avert the harm.

• Professional knowledge and competence: Where the defendant provides professional services and
professes to possess special skills, knowledge and competence, courts will more readily accept that he or
she had a duty not to cause financial loss to others while providing professional services.

•Degree and extent of risk: A high degree of risk indicates that the defendant had the duty to take
preventative steps.

•Ability to protect oneself against liability or loss: Courts take into account the ability of the person who
suffered the loss to take protective measures against such loss. They also consider the ability of the
defendant to protect himself or herself against liability for such loss by, for example, obtaining a
contractual warranty or insurance cover.

•A special relationship: Courts will be inclined to accept that a relationship of trust or dependence, or a
fiduciary relationship, gives rise to a legal duty to prevent economic loss to others, for example, as
between an employer and employee, between a bank and its client and between an attorney and the
depositor of money into his or her trust account.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 12

Franschhoekse Wynkelder (Ko-operatief) Bpk v South African Railways and Harbours

The plaintiff, a wine-making cooperative, instituted an action for damages against the defendant,
whose employees has sprayed weedkiller on the undergrowth alongside one of its railway lines. The
weedkiller had contaminated the soil in the vineyards of farms next to the railway line. The owners of
these farms were members of the cooperative, and in terms of its constitution, the members were
obliged to deliver grapes to the plaintiff to make wine. The plaintiff alleged that vines growing on the
contaminated soil were destroyed or damaged and that, as a result, the plaintiff would not receive
grapes from these farms, causing the plaintiff harm, which the plaintiff alleged was foreseeable. The
defendant excepted to the claim on the ground, inter alia, that it was not in law liable to the plaintiff
for any harm, because the defendant’s conduct was not wrongful vis-à-vis the plaintiff. The Court held
that the plaintiff had not alleged that there was any special relationship between the parties, and that
no circumstances or facts alleged by the plaintiff suggested that the defendant had a legal duty to
prevent harm to the plaintiff. There were also no considerations of public policy that justified the
recognition of such a legal duty.

•Statutory duty: Was a duty to prevent economic loss provided for or implied by a statutory provision?
Courts will determine whether such a statutory duty exists by gauging the intention of the legislature as
it appears from the wording of the statutory provision.

Knop v Johannesburg City Council

The Court held that a local authority charged with implementing zoning provisions did not have a
duty to prevent economic loss to a person who incurred wasted costs when his application for
permission to subdivide property was granted, but it then later appeared that the permission was
in contravention of an existing zoning plan.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 13

Minister of Law and Order v Kadir

Policemen had investigated the scene of an accident that was caused by a package falling off a
delivery vehicle. The driver of the vehicle had driven on without stopping. The policemen failed to
obtain the names and addresses of possible witnesses before these people left the scene of the
accident. The Court held that the policemen did not have a legal duty towards the victim of the
accident, who was later unable to institute a civil claim for damages against the possibly negligent
and unknown driver of the vehicle. The police had a statutory duty in terms of section 5 of the
Police Act 7 of 1958 to deter crimes, track down criminals and protect the public against crimes.
However, Hefer JA stated:

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.

A statutory duty to provide correct information could indicate that the failure to provide information or
providing incorrect information is unlawful.

Policy considerations: In pure economic harm cases, the plaintiff must allege in the pleadings not only that
the harm was negligently and wrongfully caused, but must also allege and prove the facts relied upon to
substantiate the considerations of policy that give rise to a legal duty on the part of the defendant.

The first policy consideration is the law’s concern to avoid the imposition of liability in an
indeterminate amount for an indeterminate time to an indeterminate class.

Courts will consider whether recognising liability would impose an additional burden on the
defendant, which would be unwarranted or which would constitute an unjustified limitation of
the defendant’s activities.

Courts will more readily impose liability for a single loss, or loss that affects a single identifiable
plaintiff, or that occurs once, or that is unlikely to cause a large influx of actions

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 14

Extent of possible liability and economic or social consequences of imposing liability: Where
recognising a duty to prevent economic loss could lead to a situation of indeterminate liability or
‘one fraught with an overwhelming potential liability’, or to a ‘multiplicity of actions’ that could
be ‘socially calamitous’, courts will be reluctant to accept that such a duty rested on the
defendant.

Courts have not extended liability for negligent interference with a personal right or personal
claim to cases where the plaintiff suffers harm that results from death or injury of another person
with whom the plaintiff had a contractual relationship.

Union Government v Ocean Accident & Guarantee Corporation Ltd

the Court refused the government’s claim for loss suffered as a result of negligently inflicted
injury to a government employee (a magistrate), on the basis that recognising such a claim
would lead to a large increase in claims arising from relationships, contractual or other,
between the physically injured person and other persons who may indirectly suffer economic
harm as a result of the injury.

Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA36

The defendant’s employee caused damage to a mooring buoy in Durban harbour, which in turn
caused economic harm to the charterer of an oil tanker waiting outside the harbour, because
of the consequent delay in discharging the cargo and additional liability for charter fees. The
Court held that the defendant did not owe a legal duty to the plaintiff to prevent such
economic harm, because the plaintiff had not shown that the defendant should have foreseen
the possibility of such harm to the charterer specifically. The Court considered this type of harm
to be foreseeable only in relation to an undetermined class of potential victims, namely the
owners or charterers of all vessels intending to discharge at that particular mooring buoy. Only
insofar as the plaintiff charterer was a member of that undetermined class was his loss
reasonably foreseeable. The Court was therefore unwilling to recognise a legal duty on the part
of the defendant towards one of an unknown number of potential claimants.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 15

In contractual relationships between the parties:

Courts will enquire whether the plaintiff has a contractual remedy and whether there
is a need for a delictual remedy

Courts will enquire whether the plaintiff could have been protected by contractual
means, for example, by prior agreement that the defendant will bear the risk of harm

Injury or death of another person

4.1 No general right

There is no general right to recover damages for patrimonial harm suffered as a result of the injury or
death of another person. Here one is concerned with pure economic harm, and causing such harm is not
prima facie wrongful.

4.2 Claims based on injury of a dependant

A person with a duty of support may claim damages for patrimonial harm suffered as a result of the injury
of a dependant, such as a spouse or child. The harm may consist of actual medical expenses, prospective
future medical expenses, or the costs of increased duties of maintenance.3 Where the spouse or child is
partly responsible for the injury or death, he or she is treated as a joint wrongdoer under sections 2(1A)
and 2(1B) of the Apportionment of Damages Act 34 of 1956.

4.3 Contracting parties

There is no general claim in South African law for pure economic harm suffered as a result of negligent
interference with contractual relations, or what is sometimes called ‘contractual relational economic loss’.
These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 16

Courts do not recognise claims for damages by those who suffer harm as a result of the death or injury of
another person solely because of a contractual relationship with the injured or deceased person.

4.4 Claims based on death of support provider (action of dependants)

A delictual claim (actio legis Aquiliae) for the loss of support or maintenance arising from the culpable and
wrongful killing of a breadwinner (support provider) is recognised at common law as the dependants’
action.

In Fortuin v Road Accident Fund the Court held that:

[In] our law ‘maintenance’ or ‘support’ not only includes food, clothing and shelter, but also medical care
and, in respect of children, education.

This is a claim for patrimonial harm in the form of pure economic harm.

The claim by dependants for loss of support that results from the death of a breadwinner has a long
history and has been expanded in modern law. It is a claim often regarded as being in a category of its
own (sui generis), because the claimant (the dependant) derives the claim both from the death of the
breadwinner, negligently and wrongfully caused by the wrongdoer, and also independently, as a result
of personal harm suffered through loss of support.

Nature of, and requirements for, the action

The basic requirements for the action by dependants are the following:

•A legal duty of support on the part of the deceased

•A legal right to such support on the part of the dependant(s).

The action is a direct rather than a derivative action.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 17

Who can sue?

The dependants’ claim for loss of support from the wrongful and culpable causing of the death of a
breadwinner is founded in family law. The claim was historically restricted to cases where a duty of
support derives from a valid, civil marriage, mainly concerning spouses and their biological children.
However, courts have developed the scope of the action and extended the group of claimants, on the
basis of the constitutional imperative of non-discrimination, to include those whose right to support
derives from a relationship which is similar to marriage, but does not constitute a legally valid marriage
between a man and a woman. The action has been developed in the following cases:

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening)

The Supreme Court of Appeal had to determine whether the appellant, married to her deceased
husband in terms of Islamic law, could institute the dependants’ action for loss of support. The
Court held that the correct approach was not to ask whether the marriage was lawful at common
law, but to establish if the deceased had a legal duty to support the appellant during the
subsistence of the marriage and, if so, whether the right of the widow was in the circumstances a
right which deserved protection for the purposes of the dependants’ action. The Court required
the appellant to prove that the deceased had a legally enforceable duty to support her, that it was
a duty that arose from a solemn marriage in accordance with the tenets of a recognised and
accepted faith, and that it was a duty that deserved recognition and protection for the purposes
of the dependants’ action. The appellant was successful in proving these requirements and the
common law was developed accordingly.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 18

Du Plessis v Road Accident Fund

The question was whether the plaintiff, who had entered into a same-sex union with the deceased,
was entitled to claim damages for loss of support from the defendant. The Supreme Court of Appeal
followed the reasoning in Amod, and set out to determine whether the deceased had a legally
enforceable duty to support the plaintiff and, if so, whether the plaintiff’s right to such support was
worthy of legal protection. The Court answered both questions affirmatively and extended the
dependants’ action for loss of support to include partners in a same-sex permanent life relationship
that is similar in other respects to marriage, who had a contractual duty to support one another.

The action for dependants was further extended in Santam Bpk v Henery when the Supreme Court of
Appeal extended the action to divorced women who have a right to support under a court order dealing
with maintenance after dissolution of the marriage, and whose former husbands were wrongfully and
negligently killed

In Engela v Road Accident Fund

The Court decided that the legal duty to support also applied to the relationship between a daughter
(plaintiff) and her mother’s ex-husband, who was not her biological father. The deceased had been
divorced from the plaintiff’s mother, but, following a reconciliation, had been in a permanent
heterosexual relationship with the plaintiff’s mother. The Court decided that the relationship between
them was ‘unquestionably akin to marriage’ and that there existed a tacit agreement in terms of which
the deceased assumed a legal duty to support the plaintiff as his own child.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 19

JT v Road Accident Fund

The plaintiff was the mother of the deceased, who had adopted his biological daughter (her
granddaughter) and instituted a claim for her granddaughter’s loss of support. Despite her adoption by
her grandmother, her father had nevertheless voluntarily continued to support her. The Court decided
that the deceased’s legal duty to support his child had not been extinguished by the adoption and his
voluntary assumption of the duty to support his daughter conferred on her an enforceable right
correlative to his duty of support.

Fortuin v Road Accident Fund

the Court held that a foster mother, acting on behalf of her foster child, may claim damages for the
child’s loss of support as a result of the death of her foster father. The Court decided that the
deceased owed the foster child a legally enforceable duty of support worthy of the law’s protection.
Customary unions enjoy statutory protection and, ‘subject to compliance with certain statutory
formalities, found a claim for loss of support arising out of the unlawful killing of a partner’

Chitima v Road Accident Fund

The Court held that the surviving partner in an unregistered customary marriage concluded in
Zimbabwe has a delictual claim in South Africa against the Road Accident Fund for loss of support arising
out of the wrongful death of her partner in a motor vehicle accident.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 20

The recent development of the dependant’s action highlights the flexibility of the remedy as well as the
courts’ willingness to adapt it to modern conditions. The rationale for the remedy is to afford relief to
those whom the deceased had a legal duty to support, even if the duty arose out of natural law.

Spouses and both minor and major children can claim for loss of support to which they had a right. The
duty of support is shared by both parents, and so, depending on their means, a child can claim damages
in respect of a mother’s death even if the father is still alive provided that the child has suffered loss.
Spouses have a duty to support each other by either earning income or providing support services.

Children also have a duty to support their indigent parents. Indigence is a question of fact, which depends
on the circumstances of each case. It is not enough to prove that a person is poor, or lives on very little.
There has to be an extreme need, or want for the basic necessities of life. What constitutes the basic
necessities of life will in turn depend on the individual parent’s station in life.

African law obligates a child who is financially able to do so to provide maintenance to his/her needy
parents. When an African (black) provides support and education to his/her son/daughter, he/she is not
only under a duty to do so on the strength of the South African legal system, but custom also obliges such
a parent. In fact, in African tradition to bring up a child is to make for oneself an investment in that when
the child becomes a grown-up and is able to participate in the labour market, that child will never simply
forget about where he came from. That child, without being told to do so, will make a determination
(taking into account the amount he/she earns, her travelling to and from work, food to sustain himself
and personal clothing, etc) of how much he must send home to the parents on a monthly basis. This duty
is inborn and the African child does not have to be told by anybody to honour that obligation. In fact, that
is the trend in almost all black families in rural areas including the so-called urban black communities. In
each family there would invariably be one or two sons or daughters who is/are employed. The duty of a
child to support a needy and deserving parent is well known in indigenous/ customary law. It is observed
by such children. There is always an expectation on the part of a parent that his child will honour this duty.

In African law it is most certainly an actionable wrong on the part of the child who is financially able not
to provide support to his needy and deserving parents. Quite apart from it being an actionable wrong,
failure to maintain one’s parents by a child who is financially able to do so is, in black traditional law,
contrary to public policy (contra bonos mores). The parent can successfully proceed civilly against such a
child in traditional courts. It is also a morally reprehensible act to fail to maintain one’s own parents who
These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 21

are in need of such maintenance. If the parents were to decide not to lodge a complaint before the tribal
court, but opt somehow to alert members of the immediate family about this predicament, such a child
would be ostracised and be looked down upon as a person who has no ubuntu. The latter scenario is
rather rare because as stated above every African child is born with this duty consciousness never to forget
his/her roots. It is unacceptable to African traditional law that the death of a child who is employed and
who is conscious of his duty to support and sustain his parent, should not entitle the parent who has lost
such support as a result of the untimely death of such a child consequent upon any wrongful act on the
part of anybody including an accident caused by a negligently driven motor vehicle (as in the instant
matter) to claim that support.

Grandchildren may also have a duty to support their grandparents, but not if there are children alive who
can do so.

Damages

Dependants are entitled to be placed in the position they would have been in had the breadwinner not
died. Compensation is for patrimonial harm only – the dependants cannot claim a solatium for loss of
companionship or grief. They have to establish that they have suffered patrimonial harm, once they
have taken both losses and benefits (such as accelerated inheritance) into account. For example, a claim
by a husband based on the death of his wife will fail if the deceased earned less than the benefits she
had derived from her and her husband’s pooled income.

Precise calculation of an award for the loss of future support is not possible, but courts recognise that a
calculation on an annuity basis is an appropriate guide, based on assumptions indicated as reasonable
by the available evidence. The accuracy of the calculation depends on the soundness of the
assumptions, and these may vary from the strongly probable to the speculative. The purpose of the
award is to provide the dependant with a lump sum that will provide a periodic income for the period of
expected dependency, at the end of which there will be no capital left.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 22

Loss of support that derived from income unlawfully earned by the deceased may not be recoverable.
This rule applies when the income was derived from transactions that are void and unenforceable.
Included in this category are criminal activities, whether morally colourless or not, and any other activity
that is contrary to good morals or public policy. However, evidence that indicates a reasonable possibility
that the earning capacity could in the future have been employed lawfully, is a sufficient basis for awarding
damages to dependants, even if past earnings were illegal. Arguably, a more flexible approach would be
appropriate for dependants’ claims for loss of support. In such cases, an award should depend on what
the deceased could legally have earned, even if the deceased probably would have continued to earn
income illegally. This is because the focus should be on the dependants’ loss of a right to support.
However, courts have on occasion refused to award any damages to dependants in such cases.
Alternatively, courts should at least take into account the possibility of lawful future income; a source
which was illegal in the past may become legal in future.

References
The contents of Part A of the student notes are derived from , Mukheibir, A., Perumal, D., Niesing, L., Wessels, B., Linscott, J., Jabavu, P., The
Law of Delict in South Africa 3Ed, Oxford Publishers, Chapters 14;15;16;23

Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597; Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 349; Local Transitional
Council of Delmas v Boshoff 2005 (5) SA 514 (SCA); Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) paras 25–26.

Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A).

Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 359 and 360; Local Transitional Council of Delmas v Boshoff 2005 (5) SA 514
(SCA).

Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 359–360.

See Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A); Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A); Dews v Simon’s
Town Municipality 1991 (4) SA 479 (C) at 485; Gouda Boerdery BK v Transnet Ltd 2005 (5) SA 490 (SCA) para 13; Minister of Water Affairs and
Forestry v Durr 2006 (6) SA 587 (SCA) paras 12–13 and 17; Potgieter v University of Stellenbosch [2017] 1 All SA 282 (WCC).

Maylett v Du Toit 1989 (1) SA 90 (T).

Kruger v Coetzee 1966 (2) SA 428 (A); S v Fernandez 1966 (2) SA 259 (A); R v Eustace (2) 1948 (3) SA 859 (T); Bristow v Lycett 1971 (4) SA 223
(RA); Zietsman v Van Tonder 1989 (2) SA 484 (T).

Za v Smith 2015 (4) SA 574 (SCA).

Hawekwa Youth Camp v Byrne [2010] 2 All SA 312 (SCA)

South African Hang and Paragliding Association v Bewick 2015 (3) SA 449 (SCA).

Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC).

17D and D Deliveries (Pty) Ltd v Pinetown Borough 1991 (3) SA 250 (D) at 253; John Newmark and Co (Pty) Ltd v Durban City Council 1959 (1)
SA 169 (N); Gijzen v Verrinder 1965 (1) SA 806 (D).

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 109.

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 23

Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 595–596; Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A); Knop v
Johannesburg City Council 1995 (2) SA 1 (A); Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 319.

Herschel v Mrupe 1954 (3) SA 464 (A) at 490; Da Silva v Coutinho 1971 (3) SA 123 (A) at 140; International Shipping Co (Pty) Ltd v Bentley 1990
(1) SA 680 (A) at 694.

Jowell v Bramwell-Jones 1998 (1) SA 836 (W) (trustees); Arthur E Abrahams and Gross v Cohen 1991 (2) SA 301 (C) at 311 (professional
administrators of a deceased estate); Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 (2) SA 393 (T) (parties to a long-standing
business relationship).

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); Cathkin Park Hotel v JD Makesch Architects 1993 (2) SA 98 (W) at 100; McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C)
at 726 and 727; Joubert v Impala Platinum Ltd 1998 (1) SA 463 (BH).

Minister van Polisie v Ewels 1975 (3) SA 590 (A).

Mtati v Minister of Justice 1958 (1) SA 221 (A).

Joubert v Impala Platinum Ltd 1998 (1) SA 463 (BH).

Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W).

Longueira v Securitas of South Africa (Pty) Ltd 1998 (4) SA 258 (W) at 261–262.

Van der Merwe Burger v Munisipaliteit van Warrenton 1987 (1) SA 899 (NC) at 908; Rabie v Kimberley Munisipaliteit 1991 (4) SA 243 (NC);
Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A).

Arthur E Abrahams and Gross v Cohen 1991 (2) SA 301 (C); Jowell v Bramwell-Jones 1998 (1) SA 836 (W); Mukheiber v Raath 1999 (3) SA 1065
(SCA).

The Cape of Good Hope Bank v Fischer (1885–1886) 4 SC 368; Macadamia Finance Ltd v De Wet 1991 (4) SA 273 (T).

Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 (3) SA 653 (D) at 659–660; Franschhoekse Wynkelder (Ko-operatief)
Bpk v South African Railways and Harbours 1981 (3) SA 36 (C); Mpongwana v Minister of Safety and Security 1999 (2) SA 794 (C) at 802–803;
Mukheiber v Raath 1999 (3) SA 1065 (SCA) para 28.

Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 595–596; Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 319.

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 13; Fourway Haulage SA
(Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) para 12.

Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27; Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 832H–833A.

Herschel v Mrupe 1954 (3) SA 464 (A) at 488

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 694; Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 575;
Mukheiber v Raath 1999 (3) SA 1065 (SCA) at 1076.

Mukheiber v Raath 1999 (3) SA 1065 (SCA) para 51.

Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA) paras 29–30.

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 799.

Mukheiber v Raath 1999 (3) SA 1065 (SCA).

Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA).

Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 569C–D.

1nternational Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 694.

Pinshaw v Nexus Securities (Pty) Ltd 2002 (2) SA 510 (C).

Pretorius v McCallum 2002 (2) SA 423 (C).

Aucamp v University of Stellenbosch 2002 (4) SA 544 (C).

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 24

Joubert v Impala Platinum Ltd 1998 (1) SA 463 (BH).

Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA).

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 837–838.

Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 (3) SA 653 (D). In Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services
(Edms) Bpk t/a Pha Phama Security 2010 (4) SA 455 (SCA); [2011] 1 All SA 34 (SCA) the Supreme Court of Appeal regarded the claim for loss
suffered by the owner of a vehicle stolen from the premises protected by a security company as a claim for pure economic loss. Arguably, this
is rather a case of physical loss of property.

SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A) at 836; Ngubane v South African Transport Services 1991 (1) SA 756 (A) at 781.

Smit v Abrahams 1994 (4) SA 1 (A).

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) para 12; Country Cloud Trading CC v MEC, Department of
Infrastructure Development 2015 (1) SA 1 (CC) para 22.

Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27; Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 832H–833A.

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 799; International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at
694; Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 575; Mukheiber v Raath 1999 (3) SA 1065 (SCA) at 1076.

Delphisure Group Insurance Brokers Cape (Pty) Ltd v Kotzé [2011] 1 All SA 109 (SCA) paras 23–26.

Itzikowitz v Absa Bank Ltd 2016 (4) SA 432 (SCA).

Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 384; Arthur E Abrahams and Gross v Cohen 1991 (2) SA
301 (C) at 312.

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 799; Mukheiber v Raath 1999 (3) SA 1065 (SCA); Viv’s Tippers (Edms) Bpk
v Pha Phama Staff Services (Edms) Bpk t/a Pha Phama Security 2010 (4) SA 455 (SCA); [2011] 1 All SA 34 (SCA) paras 8 and 21; Holtzhausen v
ABSA Bank Ltd 2008 (5) SA 630 (SCA).

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 799.

Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA) paras 29–30.

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 799.

Mukheiber v Raath 1999 (3) SA 1065 (SCA).

Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA).

Hirschowitz Flionis v Bartlett and Another 2006 (3) SA 575 (SCA)

De Groot Inleidinge tot de Hollandsche Rechts-geleerdheid 2 ed III (1965) 34 (3).

Pike v Minister of Defence 1996 (3) SA 127 (CkS).

See, generally, Hutchison ‘Relational economic loss (or interference with contractual relations): the last hurdle’ in Scott and Visser (Eds)
Developing Delict: Essays in honour of Robert Feenstra (2001) at 133ff.

Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 (3) SA 295 (A) at 304.

Pretorius v McCallum 2002 (2) SA 423 (C).

Commercial Union Assurance Co of SA Ltd v Mirkin 1989 (2) SA 584 (C); Hendricks v President Insurance Co Ltd 1993 (3) SA 158 (C).

Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 (3) SA 295 (A) at 304.

Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA).

Barnes v Union and SWA Insurance Co Ltd 1977 (3) SA 502 (E).

Petersen v Maintenance Officer, Simon’s Town Maintenance Court 2004 (2) SA 56 (C).

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg
 25

Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614; Groenewald v Snyders 1966 (3) SA 237 (A) at 246; Constantia
Versekeringsmaatskappy Bpk v Victor NO 1986 (1) SA 601 (A) at 611; Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA) para 12; Paixão v Road
Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA) para 12.

Santam Insurance Co Ltd v Fourie 1997 (1) SA 611 (A).

Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA) para 19; and see Mqolomba v RAF [2002] 4 All SA 214 (Tk), where the benefits of a trust fund
were taken into account in assessing whether harm had been suffered.

Chitima v Road Accident Fund [2012] 2 All SA 632 (WCC)

Fortuin v Road Accident Fund 2015 (5) SA 532 (GP)

Engela v Road Accident Fund 2016 (1) SA 214

Du Plessis v Road Accident Fund 2003 (11) BCLR 1220 (SCA); 2004 (1) SA 359 (SCA)

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319
(SCA)

These lecture notes are intended for the sole use of LLB students registered for the Law of Delict module aforementioned during the second
semester of 2020, and their tutor. These notes are not intended for publication or distribution external to the University of Johannesburg