Assignment Answer Sheet

Campus CLAREMONT Faculty COMMERCE AND LAW

Module Code LWDLA3 Module Name LAW OF DELICT
Student Name VINCENT MALINDI
Student Number TJCBTG9W3

Declaration
“I declare that this assignment is my own original work except for source material explicitly
acknowledged, and that the same or related material has not been previously, or is being
simultaneously, submitted for this or any other course. I also acknowledge that I am aware of the
Institution’s policy and regulations on honesty in academic work as set out in the Eduvos
Conditions of Enrolment, and of the disciplinary guidelines applicable to breaches of such policy
and regulations.”

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QUESTION 1
The law of delict is the body of law that governs cases of harmful acts toward a person’s integrity,
personality, or body by another person. Delict being defined as a wrongful conduct that causes
loss or damage to an individual by another individual needs to be governed by a set of laws to
minimize the occurrence of it, to compensate for damages and losses faced by a victim and to
prosecute/hold accountable the person that committed the delict. However, for delict to be
determined or proven, the law requires for all the five elements of delict to be present. These
elements are namely the act/conduct, wrongfulness , fault, causation, and damage. This is so
because in South African law we follow the generalizing approach which means that all the five
elements that determine a delict are considered in every situation rather than using the casuistic
approach which is used by providing different rules for every different situation. (Neethling, 2020)

The case at hand raises the question whether Jacob or Carlisle are liable for the loss of Edward
who a breadwinner to his family. In dealing with this scenario/question, the facts need to be
stated and analysed. On the 17th of October 2021, Jacob stepped on a banana peel that made
him slip and hit his head. He felt no pain and proceeded with his day as if nothing happened.
However, he lost consciousness as he was driving and hit Edward’s oncoming car and the
collision led to Edward being severely injured. Edward was later taken to a hospital where he
was operated on by a surgeon named Carlisle as he sustained a head injury. Unfortunately,
Carlisle had been drinking the previous night and had a hangover, and due to his exceptional
tiredness, he negligently operated on Edward which led to Edward’s demise.

As stated in the introduction, for a delict to be established, there must be five elements present in
the issue at hand. The elements are conduct, wrongfulness, fault , causation, and damage.
Jacob crashed his vehicle into Edward’s vehicle therefore establishing the element of conduct.
But if he was to be held liable for the damage caused by his conduct, he would use the defence
of automatism because he did not voluntarily or recklessly crash his car therefore establishing
the absence of mens rea (dictionary, 1860). Defined as an involuntary action that is performed in
a state of unconsciousness, Automatism has proven to be a working defence in many law cases.
It has been used particularly in criminal cases as a defence to show that a defendant was not in
a conscious mental state when they committed the crime therefore mens rea is not present
(Farlex, 2006). For example, In the case of R v Antoniuk (1995) The Times (UK), The defendant
was facing charges relating to the stabbing and wounding of her lover. The facts of the case
were that the defendant got drowsy after drinking excess alcohol when her lover found her

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unconscious on her living-room floor. The lover then dragged her to bed with her head banging
on the stairs as she dragged her along and raped her when she finally got to the room. The
defendant(the rape victim) later went to the kitchen and returned with a knife which she used to
stab her lover. In court, she argued that she was not responsible for her actions as she had been
suffering from automatism from the shock of being raped by the lover. The trial judge held that "If
her amnesia is real, because of automatism, then she is not to be convicted". The jury therefore
found her not guilty of wounding charges (R v Antoniuk .The Times, 1995). But according to the
facts, the defendant was intoxicated, and her actions could be subjected to self-induced
automatism because one should be aware that excessively drinking alcohol could lead to
involuntary actions. Based on the self-induced automatism argument, she could be found guilty
of assault. This is because the law has a rule that the defendant cannot use the defence of
automatism if he/she has brought the automatic state by being reckless. Which is to say If the
self-induced state of automatism is caused by an alcoholic drink, psychoactive drugs or any other
intoxicating substance, the defendant cannot use the defence of automatism (law, 2014).
However, the other facts need to be considered as well. Yes, she was intoxicated, but the
banging of her head on the stairs caused by the lover might have tampered with her brain
therefore affecting her conscious mind. Also, the prime factor of amnesia leading to her defence
of automatism can be proven to be valid. It can be argued that in a state of shock from rape, a
young woman can involuntarily act in the manner that the defendant did. An article in the TIMES
magazine by James Hopper who is an independent consultant and Instructor in Psychology at
Harvard Medical School supports the fact that rape or trauma survivors don’t really recall the
details of the traumatic event. James writes “First, let’s consider the prefrontal cortex. This part of
our brain is responsible for executive functions, including focusing attention where we choose,
rational thought processes and inhibiting impulses. You are using your prefrontal cortex right
now to read this article and absorb what we’ve written, rather than getting distracted by other
thoughts in your head or things going on around you. But in states of high stress, fear or terror
like combat and sexual assault, the prefrontal cortex is impaired, sometimes even effectively
shut down by a surge of stress chemicals…. When the executive centre of our brain goes offline,
we are less able to wilfully control what we pay attention to, less able to make sense of what we
are experiencing, and therefore less able to recall our experience in an orderly way (James
Hopper, 2014).” Based on this medical information, I can argue that the jury had made the right
decision in the case. The defendant might have been so shocked that she didn’t have full control
of her brain and therefore automatically defensively stabbed the rapist.

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Going back to Jacob’s case, it can be proven that he indeed fell and hit his head which might
have impaired his ability to maintain consciousness therefore leading to the accident. Here the
conduct was involuntary, there was no specific intent to injure Edward. Although it may be
argued that he was at fault for not immediately going to the hospital after he hit his head which
would have avoided the accident, Jacob did not know the extent of his head injury therefore
would have not foreseen losing consciousness while driving. The test of negligence comes into
play in this situation, and the fact that he wouldn’t have predicted the consequence of his injury
as it was minor and he didn’t feel any pain, passes the test as there was no reasonable
foreseeability as well reasonable preventability because slipping and falling is highly unlikely to
stop a person from going about with their day. This therefore erases fault and wrongfulness
which in a nutshell concludes that Jacob cannot be held liable for delict as three elements
constituting a delict are missing. Carlise on the other hand was the person tasked to operate on
Edward but because of his negligence made mistakes during the procedure that led to Edward’s
death. Can he be held accountable?
With the given facts, the conduct/act was performed by Jacob therefore removing the element of
act from Carlise’s accountability test. However, because Jacob cannot be held accountable as he
acted involuntarily, the concept of Novus Actus Interveniens can be considered. The term Novus
actus interveniens is a Latin term that translates to “A new intervening act”. This is when an act
or event breaks the relation between a wrong committed by the accused and the consequences
incurred which therefore dismisses the wrongdoer from responsibility for the damages. In tort
law, this chain of causation can be broken by either the plaintiff or defendant according to the
nature of the case or environmental and biological events (Oxford, 2022). Carlise operated on
Edward negligently which led to his death, therefore, the intervening act is a starting point to see
if Carlise can be held responsible for Edward’s death therefore liable for delict. The consequence
here, which was death, was not caused by Jacob. Jacob may have acted, but Edward would’ve
survived if Carlise had operated without negligence which means at the arrival at the hospital, the
onus was in the surgeons’ hands to assist Edward. Using the fault theory, Carlise acted
negligently as he would have foreseen the outcome of his state while doing his job. The
reasonable person should be aware of how fatigue can impair their skills and focus when doing a
particular task. Negligence is a form of fault according to the Aquilian action and action for pain
and suffering. The fundamental question is whether the defendant acted negligently and
failed to meet the basic standard of how a reasonable person would’ve handled the matter if they
stood in the wrongdoer’s shoes. In the case of Kruger v Coetzee, it was held that negligence
arises when in the position of the defendant, a reasonable person would (a)foresee the
reasonable possibility of his conduct causing harm and (b)take reasonable steps to guard

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against such an occurrence (Kruger v Coetzee 1966 (2) SA 428 (A), 1966). In this instance,
Harm must have been practically foreseeable, and in relation to Carlise’s case, The reasonable
person would have foreseen the extent of operating while tired because surgery needs precise
focus and would have therefore taken preventive measures. Carlise had the option to request for
a competent colleague to operate on Edward, but he instead chose to do the task regardless.

In conclusion, Edward’s family can hold Carlise liable for the loss of a breadwinner as it caused
pain and suffering but also patrimonial loss as Edward was the sole provider of the family’s
necessities.

Question 2
PEARSON HARDMAN ATTORNEYS

2nd November 2022

Mrs Khosa
20C Corsair Road, Milnerton
7441

Dear Mrs Khosa,

RE: LEGAL OPINION TO ASCERTAIN IF CLAIM CAN BE HELD AGAINST THE MINISTER
OF DEFENCE WITH REGARDS TO THE DEATH OF MR KHOSA.

I have been tasked under the Pearson Hardman law firm to condense this legal Opinion in
accordance with your inquiry on whether you can claim damages against the Minister of defence
for the loss of your husband at the hands of two SANDF members on the 10 th of April 2020.

To begin with, the law of delict has fundamental rights that are relevant to its practice. These
fundamental rights are namely Right to freedom of expression, right to freedom and security of
person ,right to human dignity, right to equality, right to property, right to freedom of religion,
belief, and opinion, right to assembly, demonstration, picket, petition, right to freedom of
association and the right to freedom of trade, occupation, and profession. All these rights play a
pivotal role in protecting the individual private interests in our society and prevents or combats
delict. Our primary focus for your case based on the fundamental rights relevant to the law of
delict will be the right to freedom and security of a person. Section 12(1) of Chapter 2 of the

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constitution broadens the right as it states “Everyone has the right to freedom and security of the
person, which includes the right–
a. not to be deprived of freedom arbitrarily or without just cause.
b. not to be detained without trial.
c. to be free from all forms of violence from either public or private sources.
d. not to be tortured in any way; and
e. not to be treated or punished in a cruel, inhuman, or degrading way K4.
According to the bill of rights, it is very clear that Mr Khosa’s right to freedom and security was
violated by the SANDF members, and this stands out in the claims against the minister. In a
similar case of a claim against the minister, Carmichele v Minister of Safety and Security, the
constitutional court declared that “where the common law deviates from the spirit, purport and
objects of the Bill of rights (which includes the fundamental rights), the courts have a general
duty to develop the common law to eliminate the deviation” (Carmichele v Minister of Safety and
Security, 2022). In such cases, Chapter 2 of the constitution plays a big role in governing the
matters at hand as it is applicable to all law. It is therefore interpreted by the courts in two ways,
The direct vertical application, and the direct horizontal application.

The direct vertical approach is applied in the sense that the state is required to respect the
fundamental rights and not overstep or disregard them, however, an exception is made when
such an infringement is a reasonable infringement under the limitation clause in section 36 of the
constitution (Africa). Furthermore, the direct horizontal application demands that the courts give
light to fundamental rights by applying common law when the legislation fails to give effect to
those rights only if it is reasonable and justifiable to develop the common law to limit the right in
accordance with the limitation clause. It therefore is self-explanatory that the Bill of Rights or
chapter 2 of the constitution binds the government. Section 8 further states that it binds the
executive, judiciary, and all organs of the state. This means means everyone under the state
from the president, ministers, soldiers to the police is binded by this section of the constitution. It
should therefore be considered that the soldiers that attacked Mr Khosa were under duty to
protect Mr Khosa’s fundamental right to freedom and security. In Hoffman v SAA, it was held that
Transnet is a statutory body under the control of the state that has the power to
perform public functions rendering to the public interest. It was therefore determined that SAA
(the respondent in the case) is a business unit of Transnet and is therefore an organ of state
which means it is bound by the provisions of the Bill of Rights in terms of section 8(1) of the
Constitution. Henceforth, the SAA was expressly prohibited from discriminating anyone unfairly
(Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1, 2000). Similarly,

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the SANDF soldiers are under an organ of the state, and they report to the Minister of security,
Therefore, they are obliged to perform the duty of protecting the fundamental right of freedom

and security. The Constitution permits courts to award appropriate relief where rights in the Bill of
rights have been violated. In another case, Fose v Minister of Safety and Security [1997] ZACC
where claims for constitutional damages were pointed out, included an element of punitive
damages that arose from a series of alleged assaults by the police that violated the right not to
be tortured or subjected to cruel, inhuman and degrading treatment (Fose v Minister of Safety
and Security [1997] ZACC 6, 1997). Because the punitive damages were present, it was held
that the courts need to consider the circumstances of each case to govern the appropriate relief
that will protect the rights protected in the Constitution of south Africa and if necessary, create
new remedies for relief (Eduvos, 2022).
The Constitution can meet the needs of the law of delict. It is however not always the case as the
constitution also empowers the courts to introduce case laws when dealing with delict. Case laws
are usually likely to go in favor of any party in a dispute so as much as the constitution has a
huge influence on the law of delict, there is many factors that may limit the meeting of all the
needs of the law of delict.

In conclusion, the law of delict is a complex body of the law and will usually have many
intervening rules that may not meet all the needs of delict. It is therefore advisable to make sure
that a case of delict is well analyzed and confirmed to have all elements pertaining a delict before
taking it to court. These elements are namely conduct, wrongfulness, fault, causation, and
damage. In your case however, the element of “Wrongfulness” stands out because the soldiers
that attacked Mr Khosa failed to exercise their duty therefore establishing the burden of
wrongfulness on the Minister of Safety and security. My opinion would be to proceed with the
claims to court. Please note that this opinion is merely an opinion, and it does not state facts on
the other cases used as references that were already held. This opinion is also provided to your
benefit and not to anyone else as cases always vary.
I have further attached references to all the cases I referred to for your ease of access if you
need to read further into the matter.
I hereby discourse and advise.

Respectfully,
Vincent Malindi
Pearson Hardman Attorneys

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c.c. (to Mrs Khosa) (LLP & J.D, 2022)

References
Africa, C. C. o. S., n.d. Constitutional Court of South Africa. [Online]
Available at: https://www.concourt.org.za/index.php/59-the-bill-of-rights/the-limitation-clause
[Accessed 1 November 2022].
Africa, T. c. o. S., n.d. My constitution. [Online]
Available at: https://myconstitution.co.za/en/02.html
[Accessed 1 November 2022].
Carmichele v Minister of Safety and Security (2022) Department of Justice.
dictionary, L., 1860. Legal dictionary. [Online]
Available at: https://legaldictionary.net/mens-rea/
[Accessed 1 November 2022].
Eduvos, 2022. Introduction (Slides), Cape Town: Eduvos.
Farlex, 2006. The free dictionary by Farlex. [Online]
Available at: https://legal-dictionary.thefreedictionary.com/automatism
[Accessed 29 October 2022].
Fose v Minister of Safety and Security [1997] ZACC 6 (1997) The constitutional court of South
Africa.
Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1 (2000) South
African constitutional court.
James Hopper, P. D. L. P., 2014. Why Rape and Trauma Survivors Have Fragmented and
Incomplete Memories. TIME.
Kruger v Coetzee 1966 (2) SA 428 (A) (1966) Unuversity of Pretoria.
law, C., 2014. Collage law. [Online]
Available at: https://www.collegelaw.co.uk/criminal-law/defence_of_automatism/index.html
[Accessed 29 October 2022].
LLP, K. S. & J.D, 2022. Sheria na Jamii. [Online]
Available at: https://sherianajamii.com/2020/02/legal-opinion-letter.html
[Accessed 1 November 2022].
Neethling, J. a. P. J., 2020. Introduction to law of delict. In: Law of Delict. 8th Edition. Durban:
Lexis Nexis.
Oxford, 2022. Oxford reference. [Online]
Available at: https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100240793
[Accessed 31 October 2022].

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R v Antoniuk .The Times (1995) Kingston Court.

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