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Contents Page

1. Cover Page……………………………………………………………………...………………..1

2. Contents Page………………………………………………………...………………………….2

3. Question 1…………………..………………………………………………………………….3-5

4. Question 2………………………………………………………………………………………6-7

5. Question 3………………………………………………………………………………….....8-12

6. Question 4……………………………………………………………………………………….13

7. Bibliography/Reference List………………………………………………………………..….14

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Question 1

Q.1.1

According to the facts of the case, Lihle suffered severe whiplash and broke her leg, requiring
surgery. She was unable to work for three weeks while recovering from a broken leg and was
placed on sick leave. Her car was damaged in the accident, but she was also severely traumatised
as a result of a viral video spiraling showing the bone in her leg protruding through her skin.

In light of the above, once Lihle has proven the elements of a delict, she is entitled to delictual
remedies. The overarching goal of these remedies is to either compensate for the harm endured
or to prevent more harm from occurring.1

The three main remedies available to the Lihle are as follows:

(a) Damages or compensation;

(b) Retraction and apology; and
(c) An interdict

Lihle may therefore recover damages by means of one or more of the following actions:

(a) The actio legis Aquilia for compensation for patrimonial loss.2
(b) The actio iniuriarum for satisfaction for infringements of personality rights.3
(c) The Germanic remedy for pain and suffering for claiming reparation for infringements of
physical-mental integrity.4
(d) The condictio furtiva by means of which a person with an interest in a thing, usually the
owner, seeks satisfaction for having been deprived of its possession.5
(e) The actio de pauperie and the actio pastu, which aim to compensate pauperies
(patrimonial loss, and pain and suffering caused by animals).6

It is important to note that harm is an aspect of a delict. Harm is sometimes known as 'loss' or
'damage.' However, the terms 'damage' and 'damages' must be distinguished. The former is a
component of delictual liability, while the latter is a remedy open to plaintiffs once liability has been
proven. The term 'damages' refers to the amount of money that courts award to the plaintiff to
compensate or fulfill the harm caused by delictual conduct.7

In law reports, the term 'damages' frequently includes things such as 'special' and 'general'
damages. These phrases are not usually used consistently by courts. Furthermore, instead of
referring to the amount to be awarded, courts frequently employ the terms 'general' and 'special'
damages to refer to the harm or loss.8

1
Loubser, M & Midgley, R (Eds) Jabavu, P Linscott, J Mukheibir, A Niesing, L Perumal, D Singh, P Wessels, B, The Law of Delict in
South Africa 3rd ed (2017) 486-487.
2
Loubser et al The Law of Delict in South Africa 486-487.
3
Loubser et al The Law of Delict in South Africa 486-487.
4
Loubser et al The Law of Delict in South Africa 486-487.
5
Loubser et al The Law of Delict in South Africa 486-487.
6
Loubser et al The Law of Delict in South Africa 486-487.
7
Loubser et al The Law of Delict in South Africa 486-487.
8
Loubser et al The Law of Delict in South Africa 486-487.

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Special damages are damages that are specifically argued and proven, in other words, losses
that can be specified, listed, and quantified. They may cover all types of patrimonial loss, both
past and future, but they usually do not cover expenses or earnings prior to the date of the trial.
Courts award general damages for both patrimonial and non-patrimonial loss for harm that occurs
as a natural and probable consequence of the conduct but has not materialised into a precise,
quantifiable amount as of the date of trial. In layperson's terms, courts are unable to describe or
detail such damage, thus they must normally estimate a lump sum.9 Damages for loss of future
earning capacity and future medical expenses are included in this category, as is compensation
for non-patrimonial loss, such as pain and suffering, emotional shock, loss of life amenities, and
compensation for infringement of personality rights (solatium) under the actio iniuriarum.10

The assessment of general damages is at the discretion of the court of first instance and is based
on the facts of each case. An appeal court is unlikely to overturn a trial court's decision unless
there is evidence of irregularity or misdirection.11

In the case of Minister of Safety and Security (Now Minister of Police) v Scott, Scott, a professional
hunter, and his company sued the Minister for damages resulting from his alleged unlawful arrest
and detention. Scott was arrested after he and his friends assaulted someone outside a pub, and
as a result, he was unable to take an American group on a hunting trip to his ranch. Due to his
failure to conduct the hunting trip, an American magazine terminated its contracts with Scott and
his company. The magazine would no longer run Scotto's advertisements, and it would no longer
bring its own clients to Scott's ranch. The High Court awarded Scott R75 000 in general damages
for the unlawful arrest and detention, as well as R577 610 to Scotto for wasted advertisement
costs and loss of contractual income and profits. The Minister filed an appeal against both
awards.12

Scotto's damages were overturned on appeal on the grounds that there had been no intentional
interference in the contractual relationship. In determining whether the award to Scott was
appropriate, the Court emphasised that while an appeal court is generally reluctant to interfere
with a trial court's award, it will do so if the appeal court believes that there is no sound basis for
the initial award or if there is a significant disparity between the award and the award that the
appeal court believes should have been made. After reviewing similar cases, the Court
determined that the High Court's award was excessive and instead awarded R30 000 in general
damages.13

The primary goal of a monetary award is to compensate an injured party. In the case of damages
claimed under the actio legis Aquilia, a court will, to the greatest extent possible, place the injured
party in the position he or she would have been in if the delict had not been committed. The
damages award in the case of actio iniuriarum serves to provide satisfaction.14 Insofar as money
can, although some argue that the actio iniuriarum retains an element of punishment. The goal of
the Germanic action is to make the plaintiff feel happier. Neethling and Potgieter refer to it as

9
Loubser et al The Law of Delict in South Africa 486-487.
10
Loubser et al The Law of Delict in South Africa 486-487.
11
Loubser et al The Law of Delict in South Africa 486-487.
12
Loubser et al The Law of Delict in South Africa 487-488.
13
Loubser et al The Law of Delict in South Africa 487-488.
14
Loubser et al The Law of Delict in South Africa 487-488.

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imperfect compensation, whereas Van der Walt and Midgley refer to it as reparation. What is clear
is that pain and suffering cannot be measured monetary terms, and the amount of damages paid
does not compensate in the sense of restoring the pre-delict situation.15

Q.1.2

The once-and-for-all rule has its origins in English law. This rule states that a person must seek
compensation for all losses, both past and future, patrimonial and non-patrimonial, in a single
action if the harm is the result of a single cause of action. This means that the plaintiff will seek
compensation for harm that has not yet occurred but will almost certainly occur in the future. The
effect of this rule is that courts award lump sum damages even when some of the harm has not
yet occurred, such as a plaintiff who suffers severe injuries as a result of an accident and will incur
ongoing medical expenses in the future of the trial date. At the trial, a court will award
compensation for that harm, even if the harm (the cost of future medical treatment) will occur in
the future.16

However, it is important to note that damages must be calculated in two steps. First, one must
assess the harm by identifying and establishing the kind and extent of the harm sustained.17 For
example, a plaintiff has already paid R10 000 in medical expenditures and is expected to pay
another R30 000 in the future. Once the injury has been identified, the following step is to quantify
the harm. This is the procedure through which courts decide the amount of damages to be
awarded and if any adjustments need to be made to the amount. In our example of medical
expenses, inflation may have an impact on the case, and courts must also examine the fact that
the plaintiff, by obtaining the money sooner than needed, would receive interest that is not strictly
owed to him or her. Courts often consider contingencies, or the likelihood that the plaintiff will not
experience the alleged expense in the future. To account for these extraneous circumstances,
the final sum that a court grants for future expenses in this example might be increased to R20
000. The line between these steps is not always apparent, but they are always followed in some
form or another.18

In light of the above discussion, Lihle is therefore not entitled to a claim for the additional surgery.
As previously stated, Lihle must seek compensation for losses in a single action if the harm is
solely the result of a single action. The accident caused Lihle's broken leg; however, the additional
surgery required was caused by Lihle herself because she did not listen to her doctor's advice to
rest her leg. As a result, Lihle may not be entitled to claim for the additional surgery.

15
Loubser et al The Law of Delict in South Africa 487-488.
16
Loubser et al The Law of Delict in South Africa 492.
17
Loubser et al The Law of Delict in South Africa 486-487.
18
Loubser et al The Law of Delict in South Africa 486-487.

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Question 2

Q.2.1

In the case of Lee v Minister of Correctional Services,19 from 1999 to 2004, the applicant was
incarcerated in the admission section of the maximum security prison at Pollsmoor, but was
released on bail for approximately two months in 2000. He appeared in court on no less than 70
occasions. Inmates were crammed into vans like sardines when they were transported to court.
At court, they were crammed into overcrowded cells. Those who appeared in regional court were
taken to a separate, smaller cell that wasn't overcrowded.20

For the majority of his incarceration, Mr Lee was housed in the E-section of Pollsmoor Maximum
Security Prison, in a cell designed for one person but shared with two other inmates. At one point,
inmates from E-Section, including the applicant, were transferred to Medium B prison and held in
a communal cell with about 25 other inmates for a period of time. When he was transferred back
to E-Section, he was held in a communal cell until he was placed in a single cell again.21

According to the Statement of Agreed Factual Findings, the applicant was not infected with
tuberculosis when he arrived at Pollsmoor, and the responsible authorities were "acutely aware
of the risk" of inmates contracting tuberculosis. TB is an airborne communicable disease that
spreads easily, particularly in confined, poorly ventilated, and overcrowded environments;
Pollsmoor is notoriously congested, and inmates are confined to close contact for up to 23 hours
every day - providing ideal conditions for transmission; on occasion, the lock-up total was as much
as 3052 inmates, and single cells regularly housed three inmates; communal cells were filled with
double and sometimes triple bunks; the responsible authorities relied on inmates self-reporting
their symptoms upon admission and during incarceration; and TB control at Pollsmoor is
dependent on effective screening of incoming inmates, isolation of infectious patients, and proper
administration of the necessary medication over the prescribed period of time.22

During his incarceration, the applicant was subjected to sputum tests on a regular basis, the
results of which were negative until June 2003. After three years in prison, he was diagnosed with
tuberculosis. Despite this diagnosis and the possibility that he would be contagious for at least
another two weeks, the applicant was returned to his cell and held for up to 23 hours with at least
one other person. Following his release in 2004, the applicant filed a damages action against the
respondent in the High Court.23

Q.2.2

The Constitutional Court acknowledged that Pollsmoor prison was overcrowded and that the
applicant had been imprisoned and transported to and from court in close quarters with other
prisoners. It was also discovered that tuberculosis was rampant in the prison, and authorities
failed to implement an adequate system of confinement and disease prevention.24

19
2013 2 SA 144 (CC).
20
2013 2 SA 144 (CC) para 5-10.
21
2013 2 SA 144 (CC) para 5-10.
22
2013 2 SA 144 (CC) para 5-10.
23
2013 2 SA 144 (CC) para 5-10.
24
Loubser et al The Law of Delict in South Africa 108-109.

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The Supreme Court of Appeal determined that the applicant had not established factual causation
under the but-for test, but on appeal, the Constitutional Court (by a majority) reversed the decision.
The majority observed that the but-for test was not flexible, and that where its application resulted
in injustice, our courts could use a more flexible approach to factual causation. This adaptable
approach has a long history in our legal system and should be used when common sense is
required.25

According to the Constitutional Court, the rule governing the application of the test in positive acts
and omission cases is flexible. In some cases, strict application of the rule would result in an
injustice, necessitating flexibility. Another reason is that distinguishing between a positive act and
an omission is not always easy. There is no magic formula for establishing a causal nexus in
general. The existence of the nexus will be determined by the facts of each individual case.26

The applicant was not infected with tuberculosis when he was admitted to Pollsmoor, as
evidenced by the statement of agreed facts. According to the evidence, it is more likely than not
that Mr. Lee contracted tuberculosis in prison rather than outside of it.27 The Supreme Court of
Appeal decision proceeded on the basis of this probability, but it did not suit Mr. Lee because he
failed to prove that reasonable systematic adequacy would have entirely eliminated the risk of
contagion; he does not know the source of his infection; and if he had known the source, he might
have been able to establish a causal link between his infection and the specific negligent conduct
on the part of the responsible party.28

According to the Court, the Supreme Court of Appeal made a mistake in taking that approach.
There are two reasons for this. First, the substitution of reasonable alternative measures to
determine factual causation was unnecessary because our law allows for a more flexible
approach. Second, even if the use of a reasonable alternative substitution were required in the
circumstances, our law requires only the substitution of a notional and hypothetical lawful, non-
negligent alternative. The exercise's purpose is to evaluate the evidence presented by a plaintiff,
not to require additional evidence. By performing the substitution exercise in this manner,
probable factual causation is established.29

The majority held that nothing prevented a court from simply asking whether the wrongdoer's
omission caused the harm based on the facts of the case. Thus, the Court considered the
circumstances surrounding the applicant's imprisonment and asked whether these conditions
were more likely than any other situation to be the cause of his contracting tuberculosis. The
majority determined that demonstrating that the applicant's risk of contracting TB would have
been reduced had the prison authorities implemented more stringent systematic measures to
reduce infection would be sufficient to establish factual causation. Factual causation was
discovered to exist.30

25
Loubser et al The Law of Delict in South Africa 108-109.
26
Loubser et al The Law of Delict in South Africa 108-109.
27
Loubser et al The Law of Delict in South Africa 108-109.
28
Loubser et al The Law of Delict in South Africa 108-109.
29
Loubser et al The Law of Delict in South Africa 108-109.
30
Loubser et al The Law of Delict in South Africa 108-109.

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Question 3

Q.3.1

Having regards to the facts of the case, Ashwin, a cardiologist, was frequently called upon to
perform heart bypasses on his patients, which entails removing a section of a major artery in the
patient's leg and inserting it into the heart to replace deteriorated arteries. During one of the
bypass surgeries, Ashwin decided that because he was tired, he would shorten the procedure by
removing the artery in the leg and installing it in the heart first, before closing the opened artery
in the leg properly. Unfortunately, Ashwin took too long to place the artery in the heart, and his
patient died as a result.

In light of the above, a person will be at fault if he or she intends to cause harm to another person
while knowing that doing so is wrong. When a court concludes that a defendant had intent, it
demonstrates the law's disapproval of the defendant's reprehensible mental state. The inquiry
into intent is subjective in the sense that courts must determine what the defendant was thinking
at the time of committing the delict.31

There are principally three forms of intention:

(1) Dolus directus;32

(2) Dolus indirectus;33 and
(3) Dolus eventualis.34

In light of the above discussion, the third type of intent, the dolus eventualis, is present on Ashwin's
part. Dolus eventualis exists when a person foresees a wrongful consequence that is not desired
while carrying out a plan to cause harm, but reconciles himself or herself with the possibility that
it will occur and continues to carry out the plan to cause harm.35 Sam, for example, throws a large
stone at Bheki, who is surrounded by two friends. Sam anticipates that he will hit one of his friends
instead, but he still throws the stone at Bheki. He misses, and the stone strikes one of the friends,
injuring him. Dolus eventualis is present because Sam subjectively foresaw injuring someone else
and reconciled himself with the possibility of injuring one of Bheki's friends.36

Dolus eventualis entails a two-part inquiry:

1. Did the wrongdoer (Sam) subjectively anticipate or recognise the negative outcome?37
2. Did Sam reconcile himself with that realisation by continuing with his actions?38

In light of the above and surrounding circumstances, if Ashwin subjectively foresaw that his
actions might lead to his patient's death and still proceeded with his surgery, dolus eventualis is
present, because Ashwin subjectively foresaw that his actions might lead to his patient's death
and reconciled himself with the fact that his patient might die.

31
Loubser et al The Law of Delict in South Africa 144-145.
32
Loubser et al The Law of Delict in South Africa 144-145.
33
Loubser et al The Law of Delict in South Africa 144-145.
34
Loubser et al The Law of Delict in South Africa 144-145.
35
Loubser et al The Law of Delict in South Africa 146.
36
Loubser et al The Law of Delict in South Africa 146.
37
Loubser et al The Law of Delict in South Africa 146.
38
Loubser et al The Law of Delict in South Africa 146.

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Q.3.2

If Ashwin had thought he might kill his patient by rushing the surgery, but genuinely believed it
would not happen, he would not have acted with dolus eventualis because he had not subjectively
reconciled that outcome. The type of fault present in this case is luxuria, or conscience negligence.
It is also worth noting that there is no intention if Ashwin had no idea he was going to kill his
patient, and negligence would be the appropriate form of fault.39

In the case of Gauteng Director of Public Prosecutions v Pistorius, Pistorius shot and killed his
girlfriend Reeva through a toilet cubicle door after mistaking her for a thief. The Court a quo ruled
that Pistorius was guilty of culpable homicide but could not be convicted of murder because dolus
had not been proven. On appeal, the Supreme Court of Appeal focused on whether dolus in the
form of dolus eventualis was present, because if it was, Pistorius should have been found guilty
of murder rather than culpable homicide.40

It was stated that, in contrast to dolus directus, in a case of murder where the perpetrator's object
and purpose is specifically to cause death, a person's intention in the form of dolus eventualis
arises if the perpetrator foresees the risk of death occurring, thus 'gambling' with the life of the
person against whom the act is directed. It thus consists of two parts: (1) anticipating the possibility
of death and (2) reconciling with that anticipated possibility. This second component has been
expressed in a variety of ways.41 For example, it has been stated that the person must have acted
'reckless as to the consequences' (a phrase that has caused some consternation because some
have interpreted it to mean with gross negligence) or must have 'reconciled' with the foreseeable
outcome. Aside from terminology, it is important to note that the wrongdoer does not have to
anticipate death as a possible outcome of his or her actions. It is sufficient that the possibility of
death is anticipated, which, when combined with a disregard for that consequence, constitutes
the necessary criminal intent.42

Pistorius attempted to deny the presence of dolus eventualis by claiming he lacked the necessary
intent to kill Reeva because he believed a thief, not Reeva, was hidden in the toilet.43

In this regard, the Court stated that, while a perpetrator's intent to kill must be related to the person
killed, this does not imply that the perpetrator must know or appreciate the victim's identity. A
person who blows up a bomb in a crowded area will most likely be unaware of the identities of his
or her victims, but will intend to kill those who may be killed in the resulting explosion.44

The Court went on to say that the question was not whether the accused had anticipated that
Reeva might be in the cubicle when he fired the fatal shots at the toilet door, but whether there
was someone behind the door who might be killed as a result of his actions.45

Another example is found in the case of S v Humphreys. Humphreys was convicted in the High
Court on ten counts of murder and four counts of attempted murder following a collision caused

39
Loubser et al The Law of Delict in South Africa 146-147.
40
Loubser et al The Law of Delict in South Africa 146-147.
41
Loubser et al The Law of Delict in South Africa 146-147.
42
Loubser et al The Law of Delict in South Africa 146-147.
43
Loubser et al The Law of Delict in South Africa 146-147.
44
Loubser et al The Law of Delict in South Africa 146-147.
45
Loubser et al The Law of Delict in South Africa 146-147.

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when the minibus he was driving collided with a train. He had approached a level crossing with
the boom controls down and the warning lights flashing.46 The Supreme Court of Appeal agreed
with the High Court that Humphreys had subjectively predicted that his reckless actions would
result in fatal injuries. However, the Court disagreed with Humphreys on the second part of the
investigation, finding that he had not accepted the possibility that his reckless actions would result
in the death of his passengers.47 If Humphrey had accepted the possibility of his passengers'
deaths, he would have also accepted the possibility of his own death. There was no evidence that
he did not value his own life, so the evidence did not support this inference. Instead, the evidence
showed that Humphreys had cleared the level crossing in similar situations in the past and
believed he would be able to do so again, and that the risk he anticipated would not materialise.
As a result, because Humphreys had not accepted the possibility of death or fatal injury, dolus
eventualis was not established.48

Subsequently, if the court is unable to establish intent on Ashwin's part, his actions will be
considered as normal negligence.

Q.3.3

In Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd, the Supreme Court
of Appeal reiterated that the standard for negligence is what a reasonable person would have
done in the defendant's situation. Courts have developed tests, the most frequently cited of which
is, the one set out in Kruger v Coetzee. These tests, however, are merely guidelines or
approaches for determining how a reasonable person would have acted in the circumstances.
Any conclusion reached following the application of one of these tests should articulate the
benchmark standard of reasonable behaviour.49

Kruger v Coetzee involved a collision between Coetzee's car and Kruger's horse, which had
strayed from Kruger's property through an open gate and onto a public road. The gate was
installed by the local divisional council to allow construction workers access to a construction site
via Kruger's property. The construction vehicle drivers frequently left the gate open. Kruger had
complained about such behavior to both the divisional council and the building contractors, but
he continued to keep his horses on the property.50

Coetzee claimed that Kruger had negligently allowed his horse to stray onto a public road
unattended, and that by leaving the gate open, Kruger had lost control of the horses. The following
is how the Court defined negligence:

Culpa arises for the purpose of liability if:

(a) A diligens paterfamilias in the defendant's position:

(i) would foresee the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss;51 and

46
Loubser et al The Law of Delict in South Africa 146-147.
47
Loubser et al The Law of Delict in South Africa 146-147.
48
Loubser et al The Law of Delict in South Africa 146-147.
49
Loubser et al The Law of Delict in South Africa 154-156.
50
Loubser et al The Law of Delict in South Africa 154-156.
51
Loubser et al The Law of Delict in South Africa 154-156.

10 | P a g e
 (ii) would take reasonable steps to guard against such occurrence;52 and
(b) The defendant failed to take such steps.53

The Court observed that requirement (a)(ii) is frequently overlooked, and that there must be an
indication of what reasonable steps a diligens paterfamilias in the defendant's position would have
taken. Assessing such steps is dependent on the facts of each case, and there is no universally
applicable standard for determining what constitutes reasonable precautions in all situations.54

It was common-cause in this case that a reasonable person in Kruger's position would have
anticipated his horses straying through the open gate onto the main road and causing damage to
motor vehicles that might collide with them. Kruger admitted that he was aware of the possibility.
Kruger also alleged that he was unaware that the gate was frequently left open. Nonetheless, he
kept his horses on the property.55 The Court determined that in such circumstances, a reasonable
person would not have shrugged his shoulders in unconcern, and that if reasonable steps could
have been taken, a reasonable person would have taken them. The defendant did, in fact, take
some precautions to ensure that the gate was not left open. He complained twice to the divisional
council about its employees leaving the gate open. He also complained to the managers. So the
question that remained was whether Kruger should have taken any additional steps. The Court
determined that there was insufficient evidence of any other reasonable measures that Kruger
should have taken, and thus determined that Coetzee had failed to prove that Kruger was
negligent.56

The Kruger v Coetzee test identifies four critical issues to consider when determining whether the
defendant's conduct was reasonable or unreasonable, and thus blameworthy under the law:57

1. The first is to put a reasonable person in the defendant's shoes.58

2. The second step is to assess the situation and circumstances to determine whether a
reasonable person in the defendant's position would have anticipated the possibility of
harm from the defendant's conduct. If a reasonable person would have predicted that the
relevant conduct would cause harm, then the next issue can be addressed.59
3. The third issue concerns whether a reasonable person would have done anything to avoid
the harm if the conduct had continued. To answer this question, one must consider what
options were available to the defendant under the circumstances. This is accomplished
by determining whether alternative steps that would have prevented harm were available
and whether they were reasonable and practical in the circumstances. If the defendant did
take some steps to prevent the harm, the plaintiff must demonstrate that the steps were
either unreasonable or inadequate in comparison to what a reasonable person would have
done in the circumstances. In Kruger v Coetzee, the court stated that before determining

52
Loubser et al The Law of Delict in South Africa 154-156.
53
Loubser et al The Law of Delict in South Africa 154-156.
54
Loubser et al The Law of Delict in South Africa 154-156.
55
Loubser et al The Law of Delict in South Africa 154-156.
56
Loubser et al The Law of Delict in South Africa 154-156.
57
Loubser et al The Law of Delict in South Africa 154-156.
58
Loubser et al The Law of Delict in South Africa 154-156.
59
Loubser et al The Law of Delict in South Africa 154-156.

11 | P a g e
 whether a reasonable person would have taken any other steps, one must first determine
what steps were available.60
4. In the fourth instance, the defendant's conduct is compared to the course of action that
the court believes a reasonable person would have taken in the circumstances. If the
defendant appears to have done nothing or did less than what a reasonable person would
have done, the defendant's conduct was 'sub-standard' and unreasonable, and thus
negligent.61

It is noteworthy to state that the test for negligence stands on two pillars:

1. The foreseeability of harm.62

2. The preventability of harm.63

Simply stating that the defendant was negligent is insufficient. A concrete and practical argument
must be made as to why and how the defendant was negligent in the circumstances. As a result,
applying both the foreseeability and preventability tests is the foundation for practically evaluating
the defendant's conduct.64

In terms of the foreseeability of harm, one cannot establish negligence unless the harm caused
by the defendant's conduct was reasonably foreseeable. This is determined after taking into
account the surrounding circumstances as well as the characteristics that the law attributes to a
reasonable person. As a result, reasonable foreseeability is a flexible concept because it is
determined by the facts of each case and a legal assessment of the risk in those facts. There are
no hard and fast rules for determining whether harm is reasonably foreseeable, but courts have
established some broad guidelines that should be applied flexibly.65

In terms of the preventability of harm, once it is established that harm was reasonably foreseeable,
the question of whether that harm was also reasonably preventable can be asked. However, in
some cases, the possibility of serious harm is so remote that a reasonable person would not have
taken precautions. In such cases, applying the negligence test only addresses the issue of
foreseeability.66

The question of whether a reasonable person would have taken precautions to avoid the harm
depends on the facts of each individual case. However, simply indicating that a reasonable person
would have taken some precautions to avoid the harm is insufficient. The plaintiff must also
specify which reasonable measures the defendant should have taken in the circumstances to
avoid the harm.67

60
Loubser et al The Law of Delict in South Africa 154-156.
61
Loubser et al The Law of Delict in South Africa 154-156.
62
Loubser et al The Law of Delict in South Africa 157-162.
63
Loubser et al The Law of Delict in South Africa 157-162.
64
Loubser et al The Law of Delict in South Africa 157-162.
65
Loubser et al The Law of Delict in South Africa 157-162.
66
Loubser et al The Law of Delict in South Africa 157-162.
67
Loubser et al The Law of Delict in South Africa 157-162.

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Question 4

Q.4.1

An interdict is a court order that allows a plaintiff to prevent harmful conduct from occurring or to
prevent the continuation of harmful conduct that has already begun.68

Q.4.2

Interdicts can be mandatory or prohibitory. A mandatory interdict requires the wrongdoer to take
positive action, such as destroying a consignment of counterfeit goods sold under a well-known
brand name. A prohibitory interdict, on the other hand, requires the wrongdoer to cease wrongful
conduct or to proceed wrongful conduct. For example, a person can obtain a prohibitory interdict
against a newspaper to prevent it from printing a potentially defamatory article or from continuing
with a particular story.69

Q.4.3

The requirements for an interdict are:

(1) Respondent conduct: This conduct can be either a positive act or an omission. The
behavior must have begun or be threatening.70
(2) The conduct will cause or threaten to cause irreparable harm: The applicant must
demonstrate that the respondent's conduct threatens or infringes a so-called "clear right."
This "clear right" refers to a recognised subjective right. In the absence of such a right, an
interdict can also exist in the case of non-compliance with a legal duty, such as in the case
of pure economic loss.71
(3) The harm must be wrongful: this requirement is linked to the previous requirement of
actual or threatened infringement of a clear right. In this case, the usual wrongfulness test
is applied.72
(4) The applicant has no other available remedy.73

It is not necessary to establish fault on the part of the respondent because harm has not yet
occurred. The goal of an interdict is typically to prevent harm rather than to redistribute loss that
has already occurred. As a result, the cornerstone for redistribution, fault, is not a necessary
requirement.74

68
Loubser et al The Law of Delict in South Africa 525.
69
Loubser et al The Law of Delict in South Africa 525.
70
Loubser et al The Law of Delict in South Africa 526.
71
Loubser et al The Law of Delict in South Africa 526.
72
Loubser et al The Law of Delict in South Africa 526.
73
Loubser et al The Law of Delict in South Africa 526.
74
Loubser et al The Law of Delict in South Africa 526.

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Bibliography/ Reference List

Cases

Lee v Minister of Correctional Services 2013 2 SA 144 (CC).

Book

Loubser, M & Midgley, R (Eds) Jabavu, P Linscott, J Mukheibir, A Niesing, L Perumal, D Singh,
P Wessels, B. The Law of Delict in South Africa 3rd ed (2017) Penny Lane: Cape Town.

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