DEPARTMENT OF LAW

LAW 232
LAW OF DELICT
CONTINUOUS ASSESSMENT TEST 2

1. Mahalo Mercy Montsho 202103337

2. Ndawana Jennifer Tawana 202101212
3. Goitseone Bontsi 202201613
4. France Kgalaletso Lorraine 202201375
5. Kono Mpopang 202205553
The issues discussed will be:
1. Whether or not a delict has been committed?
2. Whether or not spa can be held vicariously liable for the injuries suffered by Mogi?
3. Whether or not Mogi can be compensated?

The first issue is whether or not a delict has been committed?

In order for a Delict to be present, all five elements of a delict must be present, and if any of
those elements are missing, there can be no question of a delict raised. These elements apply
where are:
1. In order to constitute a delict, one person, (the doer or actor) must have caused
damage or harm to another person(the person suffering loss )by means of an act or
conduct.Conduct is therefore referred to as the voluntary human act or omission and
therefore it constitutes the damage causing event in a delict, it is the wilful action of
an individual. There are two types of conduct which are:
I. Commission-this is where an individual fails to act positively to prevent harm.
Ii. Omission- this is whereby an individual creates a potentially dangerous situation
and fails to prevent the harm, which then causes harm or loss to another.
2. In the case of Van der Walt and Midgley1 it was stated that omissions are merely
indications of legally deficient positive conduct. The failure to stop indicates
negligent or deficient positive conduct.There are certain requirements that should be
met in order to constitute an act to be a conduct. The conduct or act should be that of a
human being, it should be performed voluntarily and should either be a positive act or
an omission.Wrongfulness refers to an act that infringes on the right or breaches a
legal duty.This element is determined by first establishing whether there was an
infringement of rights and whether there was non-compliance with a legal duty that
was owed to an individual.
3. If it has been ascertained that a right has been infringed upon, legal norms must be
used to determine whether such an infringement occurred in a legally reprehensible
manner. That is to say that the infringement of the rights should be unreasonable in
accordance with the accepted norms of society. This has been clearly stated in the
case of Universiteit van Pretoria v Tommie Meyer films2 where it was clearly started

1
1997
2
1977 4 SA 276
 that each individual has subjective rights that have to be protected as well as being
respected by the other party. The test for wrongfulness is the ‘boni mores test’ which
is described as an objective, reasonableness test and looks at whether the harm was
caused in a legally reprehensible way. Wrongfulness can either be by breaching of a
legal duty or not complying with a legal duty to act.
4. In the case of Van Eaden v Minister of Safety and Security (Women’s Legal Centre
Trust)3 it was stated that an omission is wrongful if the defendant was under a legal
duty to act positively to prevent harm to the plaintiff.Another element that constitutes
a delict is fault which is defined as the blameworthy conduct of a defendant. First and
foremost, it has to be established whether a defendant can be held accountable.
5. In Kruger v Coetzee4 it was stated that an action for damages alleged have to have
caused by the defendant’s negligence,for purpose of liability,culpa only arises of a
diligens pater familias in the position of the defendant not only would have foreseen
the reasonable possibility of his conduct in injuring another in his person or property
and causing him patrimonial loss,but would also have taken reasonable steps to have
guarded against such occurrence and the defendant failed to take such steps. The test
for fault is the ‘reasonable man test’ which asks what the ‘reasonable person of
ordinary prudence’ would have done in the defendant’s situation.
Therefore in conclusion we can say that a delict has been committed as all five elements of a
delict have been met.With regards to conduct,the type of conduct present in this case is
omission.In this case the Spar employee spilt oil in the ground and despite knowing that she
had created a potentially dangerous environment as she did not wipe the oil away at once
hence , causing harm to another person who in this case is Mogi .
1 Neethling,Law of Delict 7 th edition, LexisNexis SA 12/1/14
2 Van der Walt and Midgley 1997
3 Kgopo v Keitsitlile [1988] B.L.R 283
4 Van Eaden v Minister of Safety and Security
5 Kruger v Coetzee [1966] 2 SA 428

Causation is understood to be the link between the conduct and the harm suffered by
someone as a result of that conduct. It is a two way enquiry in which the legal causation

3
2003 CA
4
[1966] 2 SA 428
(proxime cause)is required and the factual causation ( but for test). Distinction is to be
established between a factual and legal causation.
1. Lee v Minister , it was held that the point of departure is to have clarity of what
causation is. The liability arises when; factual inquiry into wether the negligent act is
linked to the harm sufficiently closely. There must be a nexus between an act and the
results which the but-for test is used as the test. In other words, the question asked is
‘but for the defendant’s actions, would the harm have occurred?’ If the answer to this
question is yes, then causation cannot be shown, and vice versa. This is stated in Cork
v Kirby MacLean Ltd
2. In the case above ‘’ if the damage would not have happened but for a particular fault,
then that fault is the cause of the damage; if it would have happened just the same,
fault or no fault, the fault is not the cause of the damage’’. In this case, the Spar
employee’s act of failing to clean up the floor after spilling oil led to Mogi sustaining
a knee injury by falling. Therefore, there is a causal link between the employee’s act
and the result that occurred thereof hence requirement for causation satisfied.The
general compensatory function of the law of delict implies that there must be some
loss or damage for which the law makes compensation available. Harm is the
detrimental impact upon any patrimonial, [non-patrimonial] or personality interest
deemed worthy of protection of the law, to restore the harmonious balance of
interests. For a delict to arise, there must be some actual or potential harm. By
pursuing a delictual remedy, a plaintiff seeks compensation or satisfaction for the
violation of their interest. In assessing the damages that may be awarded, the courts
are usually guided by a number of principles. Firstly the ‘once-and-for-all’ rule, which
requires a plaintiff to sue and claim as a lump sum, his losses, present, past and future
once and for all .
3. Next is the compensatory principle which and the mitigation of damage rule where
the plaintiff is to receive in money terms no more and no less than his actual loss and lastly
the mitigation rule where a plaintiff is not entitled to recover damages for avoidable loss 4 .
In the present case, Mogi, a race champion, suffered a broken knee after falling from an oil
spillage by a Spar employee and could therefore entitled to compensation for his injuries.
1 Lee v Minister of Correctional Services 2013 (2) SA 144 (CC)
2 Cork v Kirby MacLean Ltd [1952] 2 All ER 402
3 Fetter v Beale (1710) 1 LD Raym 339
4 Essack v Bamangwato Concessions Ltd [1983] BLR 307,
320.

The second legal issue is whether or not Spar can be held vicariously liable for the injuries
suffered by Mogi.Vicarious liability is when a supervisory party is liable for the negligent
actions of a third party for whom they are responsible.
1. This principle requires that a third party also has to carry a share of the
accountability. One of the conditions needed for vicarious liability to be employed is
that a relationship should exist between the employer and the person at fault so as to
make the employer to take responsibility for the conduct of the other party. In the case
of Crown Chickens v Rieck5 it was held that in order for vicarious liability to stand,
the employee must have been acting within the course and scope of their employment.
2. This basically means that there should be a connection between the employment and
the wrongful act in the sense that it should be proved that the wrongful act is related
to the conduct authorized by the employer. The scenario states that one of the
supermarket assistants spilled some cooking oil on the floor of the supermarket and
failed to clean it while Mogi was shopping, she accidentally stepped on the spilt oil
and fell. This resulted in her injuring her knee. From analysis of the facts of the
scenario, it is evident that the injury to Mogi’s knee was as a result of the negligence
of the shop assistant in the store. When negligence arose on the part of the shop
assistant, he was acting within the course and scope of their employment. With thus
being said Spar can be held vicariously liable for conduct of the shop assistant that led
to the injuries Mogi sustained. In the English case of Roe v Minister of health6 the
court held that a hospital was vicariously liable for the negligent acts of its employees,
which led to the plaintiff suffering paralysis due to a contaminated spinal anaesthetic.
3. The ruling established the employer’s responsibility for employee negligence in
providing adequate medical care. Similarly to this scenario, vicarious liability will
confer onto Spar as the employee because it assumes total responsibility for the shop
assistant’s negligence as an employee.
In conclusion, Spar can be held vicariously liable for the injuries sustained by Mogi.

1 Will Kenton: Investopedia, Vicarious Liability, 31 July 2023

5
20007 (2) SA 118
6
1954
2 Crown Chickens v Rieck
3 Roe v Minister of Health (1954)
Whether or not Mogi is entitled to Compensation by Spar for the Damages he suffered.

Mogi seeks to claim damages for pain and suffering and damages for loss of income. The
whole purpose of the law of delict is to afford people remedies for loss and harm suffered as a
result of another person is harmful and culpable conduct. Therefore where delictual liability
arises, a fair remedy is provided. With regards to pain and suffering compensation, in the case
of Reyneke v mutual and federal insurance co ltd7 the learned judge states that the
a subjective approach is used to award damages for pain and suffering. The subjective
approach awards damages depending on the extent to which the victim can subjectively feel
or experience pain. Furthermore, according to the case of Silas v Botswana Motor vehicle
insurance fund8 , the courts also consider the intensity and and the duration of the endurance
of pain and suffering.In the present case, it has been established above that Spar is in fact
delictually liable for Mogi’s pain and suffering. Therefore Mogi is entitled to compensation
for pain and suffering as long as she endures a certain intensity of pain. In the Silva case
mentioned above, when deciding the amount to be paid, a doctor gave a report on roughly
how long the injury is expected to be painful for, where he argued that pain was only
expected for a month and not the full duration of wearing the cast because it would just be
thereto facilitate healing. Likewise in the present case, a doctor would be needed to give a
report on the intensity and duration of the pain Mogi is to experience. And therefore Mogi is
entitled to pain and suffering compensation. However, it has also been established that Spar is
not liable for Mogi’s Loss of earnings. Therefore, Mogi is not entitled to compensation from
spar in that respect.

BIOGRAPHY

7
1991 (3) SA 412 (W),
8
1989 BLR 601 (HC)
BOOKS

Neethling,Law of Delict 7 th edition, LexisNexis SA 12/1/14

CASES

Crowns Chicken (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118
Kruger v Coetzee [1966] 2 SA 428
Reyneke v mutual and federal insurance co ltd 1991 (3) SA 412 (W),
Silas v Botswana Motor vehicle insurance fund 1989 BLR 601 (HC)
University of Pretoria v TommieMeyer Films 1977 4SA 376
Van der Walt and Midgley 1997

STATUTES