CHAPTER 12

AQUILIAN FAULT

BACKGROUND
 For the fault (not the same as voluntariness) enquiry, the law requires questioning whether the
wrongdoer had capacity for fault. People have capacity for fault if they can distinguish
between right and wrong, then act in accordance with that appreciation. [Factors such as age,
mental health and intoxication can influence capacity]
 A person acts voluntarily if they can control their own bodily movements.
 After we establish whether a person has capacity for fault, we determine whether they were at
fault.
 Fault takes 2 forms: Intention and negligence.
o Intention (dolus) being conscious of the wrongfulness of one’s deed. There is dolus directus,
dolus indirectus and dolus eventualis. DE is where you subjectively foresee the possibility of
harm and recklessly proceed with the unlawful conduct. Intent delves into the subjective state
of mind of the wrongdoer. (DE is considered constructive intent)
o Negligence (culpa) wrongdoer acted carelessly even if not purposeful. Law requires us to not
harm intentionally and refrain from acting carelessly.

CAPACITY FOR FAULT

BROAD MEANING OF CAPACITY

1) Capacity is a prerequisite for fault.

a) Weber v Santam “capacity involves the psychological abilities of an actor.”
b) What affects capacity?
o Age related capacity, we follow the common law approach. Adults who are majors which is
18 years and older, capacity can be rebuttably presumed. Minors have 3 categories, infants,
impuberes (pre-teens) and puberes (teenagers)
o In following cases, when you prove that a child is a minor and therefore has no capacity, you
cannot say child acted negligently. There are cases however of contributory negligence, where
both the victim and wrongdoer were negligent, and this can sometimes reduce quantum.
o For example: if wrongdoer caused R100 000 of harm to victim and the wrongdoer was 70%
negligent whilst victim was 30% negligent then the wrongdoer will only be liable for 70% of
the harm, therefore R70 000.
o With children, legal teams prove children lack capacity therefore cannot have fault, quantum of
damages is the same and children’s rights fully vindicated.

 THE COMMON LAW POSITION ON AGE RELATED CAPACITY.

 INFANTS
o VAN OUDTSHOORN V NORTHERN ASSURANCE 1963.
o 6-year-old was driven over by a negligent driver, driver alleged child was contributorily
negligent.
o Court stated: There is an irrebuttable presumption that a child below the age of 7 is culpae
incapax, meaning their behavior that may have contributed cannot be used as a reproach or
raised by a defendant. Irrebuttable presumption of no capacity for infants.
 PRE TEENS
o Child becomes a pre-teen at age 7.
 o ESKOM V HENDRICKS 2005, 11-year-old boy raced his friends by climbing up an
electricity pylon belonging to Eskom. Boy got shocked by anti-climbing device, Eskom is
statutorily presumed to be negligent. [15-16 legal age] [17-23 application]
o Inquiry into capacity is subjective whilst inquiry into fault test is objective.
o Children under 7 = culpae incapax. Cut off point 14 years for both ages.
o Cannot hold a negligent child to an adult standard. Children may appreciate right and wrong
but may not know how to act in accordance. Court had considered the child’s age, whether
they what they were doing was dangerous, and all actions leading up to event.
o JONES NO V SANTAM 1965, a 9-year-old girl was driven over by a negligent driver, driver
alleged the little girl negligently contributed.
o WEBER V SANTAM 1983, 7-year-old knocked over by a negligent driver, driver alleged
contributorily negligent. Court said child’s ability to act in accordance with his insight into
right and wrong is obscured by weaknesses of youth, child’s schooling cannot be used as a
defence saying they are sufficiently matured.
o Teenagers and adults are treated in the same way, both are rebuttably presumed to have
capacity of fault.

 STATUTORY RULES ON CAPACITY

 Child justice Act 75 of 2008, changed the common law position, and law now distinguishes
between 3 age groups, 0-9, 10-13 and 14-18.
 Culpae incapax = child who has not completed 9th year.
 Rebuttable presumption that a child over the age of 9 and under 14 (impubes) lacks
accountability = culpa incapax until contrary is proven.
 After 9th year child MAY be accountable and held liable in delict. 14 -18 considered adults for
accountability.
 The wording however shows that this is applicable during criminal law cases NOT
DELICTUAL INSTANCES.

MENTAL HEALTH
 Majors are rebuttably presumed to have necessary capacity to act with fault.
 However, people who have capacity in terms of age can lack capacity for another reason.
 If a person suffers with a psychological disability, they might be able to escape liability. This
person however must show they lacked the ability to distinguish between right and wrong
OR the ability to act in accordance with that appreciation.
 A person filled with rage cannot claim lack of capacity.

INTOXICATION
 When dead drunk considered a state of automatism.
 If wrongdoer got himself into the state of automatism on purpose, we use action in libera causa
(antecedent liability).
 Person could be sober enough to act voluntarily but drunk enough to lack capacity (appreciating
wrong and right.)
 Criminal act states that you can escape the main charge but will be guilty of s1.
 In terms of negligence we ask whether the harm was reasonably foreseeable and
reasonable steps could have been taken. Reasonable step would be to drink less, organize a
life and not drive a vehicle etc.
 INTENTION

 After acknowledging wrongdoer capacity, must determine whether the form of fault is intention
or negligence. Intention (dolus) harder to prove as you need to get into the head of the
wrongdoer. Some delictual matters require dolus such as property harms.
 WHAT IS INTENTION? DANTEX INVESTMENT HOLDINGS V BRENNER, Dantex
sued a company for intentional contractual inference, Dantex was supposed to take occupation
of a premisis and a third party company took occupation instead. Court said that intention means
the wrongdoer must intend to cause the victim a loss. You cannot say defendant acted with
knowledge of plaintiff’s rights.
 Intention requires not only achieving a particular result but knowing that result is
wrongful / unlawful.
 DIRECTOR OF PUBLIC PROSECUTIONS V PISTORIUS 2016. Oscar Pistorius thought
that an intruder was in his bathroom one night and then shot and killed the person behind the
closed door. In reality it was his girlfriend Reeva Steenkamp. For Pistorius to be guilty of
murder, the State had to show intention on Pistorius’s part. Alternatively, for him to be guilty of
culpable homicide, the State had to show negligence on Pistorius’s part.
 TO PROVE DOLUS EVENTUALIS. This case reaffirms the different forms of dolus. DE
foresight of possibility of death occurring and reconciliation with that foreseen possibility. You
need to have intention to cause an unlawful consequence.

NEGLIGENCE

 We weigh the conduct of wrongdoer against the standard of diligens paterfamilias, a reasonable
person.
 First part, reasonable foreseeability of the conduct causing patrimonial harm. Second, relates to
reasonable preventability, lastly whether alleged wrongdoer took those steps or not. If they did,
they are not negligent, because wrongdoer did what was legally expected.

THE REASONABLE PERSON IN THE POSITION OF THE DEFENDANT

 Abstract standard in which we test a wrongdoer’s conduct. [Weber]

 Once a child has capacity then we hold them to an objective adult standard. [Obiter dictam of
Weber case]
 There are cases whether the reasonable standard test bar is raised in cases of professionals or
lowered in cases of uneducated people. We expect a higher degree of care and skill from those
who profess to be more skilled. [Paine]
 CASE LAW
 DURR V ABSA BANK 1997
 An investment manager had given horrible advice (said investing in abc was safe and very
secure) and cost a client to lose a large sum of money. This is a case of negligent
misstatements. Do we hold the banker to the standard of an average person.
 Professionals are bound to employ reasonable skill and care, court will consider the general level
of skill and diligence possessed by members of the branch of the profession.
 The court in this case had consulted with professionals in the same field as the defendant to
inquire what was expected of them.
 The standard that is held must be that of the exact profession of the defendant and not an
average professional.
 AK V MINISTER OF POLICE 2022
 Woman went missing at a beach and was being held captive by a rapist. The police went to
search for her but stopped the search after a few meters. Onus of proof is on the defendant
(person who the standard is being tested against) to prove that they took the reasonable
and appropriate measures available to them.
 If you are fulfilling a statutory or constitutional function, you are regarded as an organ of state.
 BLYTH V VAN DEN HEEVER 1980
 Blyth went for an arm operation and post operation his arm became infected, leaving him with a
claw like arm. Was the doctor negligent in not providing post operative care, what standard
should be used for a doctor in a negligence enquiry?
 Doctors are held to a reasonably skilled and careful medical practitioner standard.
 MICHAEL V LINKSFIELD 2001
 Michael went into cardiac arrect during an operation, he alleged the anaesthetist either used the
wrong cocktail of medication or failed to have a working defibrillator. Blythe shows how we
raise the standard for doctors.
 South African cases USUALLY use the governing test for professional negligence is the
standard of conduct of the reasonable practitioner in the particular profession field.
However, this is not always helpful criteria, must establish the conduct of a professional
without a collective opinion.
 Whatever standard it must be reasonable and can override a body of opinion.

 Whilst holding the wrongdoer to an objective standard, the standard can be subjectivised to
consider the professed skill of the wrongdoer.
 The bar can also be lowered when people are required to make quick decisions in emergency
situations, sudden emergency.
 BROWN V HUNT 1953
 A petrol attendant filled overfilled a car’s petrol tank, leading the petrol to leak and combust, the
attendant poured water onto the fire and the fire spread to the car. The car caught alight, the
attendant raised the defence of sudden emergency.

REASONABLE FORESEEABILITY
 Would a reasonable person in those circumstances foresee a reasonable possibility of his
conduct injuring another person / property causing patrimonial loss.
 HARVEST CORPORATION V DUNCAN DOCK COLD STORAGE 2000
 Duncan dock cold storage was built and stated it would be a low fire risk by an engineer. One-
night general citizens fired a flare gun which fell onto the store and caught alight, destroying
tons of frozen foods.
 Sea harvest contended the owners of the building and engineers were negligent in their failure to
install sprinklers. Was there reasonable foreseeability of harm?
‘
REASONABLE PREVENTABILITY
 What was the reasonable preventative steps. There are 4 factors that courts consider:
a) The degree or extent of the risk created by the actor’s conduct.
b) The gravity of possible consequences if the risk of harm materializes.
c) The utility of the actor’s conduct
d) The burden of eliminating the risk of harm. [Ngubane]

Factor Case Principle Illustration in the

(explanation or case
definition of factor)
Extent of risk Graham If the evidence Historical evidence
shows that the risk showed that after
of harm was heavy rainfall,
generally high or rockfalls on
increasing leading Chapman’s Peak
up to the damage drive were common.
causing event, it is In the week prior to
likely that the rockfall on
preventative steps Graham’s car there
should have been was heavy rainfall,
taken. Court held that City
should have closed
There was no the road to prevent
contributory harm.
negligence.
Dependent on
appellants
discretion.
Gravity of Ngubane case Court stated that In this case it was
consequences taking reasonable due to the workers
steps does not mean on the train ordering
that any foreseeable / allowing the train
harm would not to proceed even
occur at all under though all
any circumstances. passengers were not
seated properly and
For there to be crowded. The gravity
contributory of the risk is that
negligence, the remote risks aren’t
victim must always easy to see
understand the risk. and can be ignored
with good reason.
The seriousness of But here the risk
the harm and was large.
chances of it
happening.
Utility of actor’s Minister of safety Would a reasonable Court believed the
 conduct and security v police officer in the police officer was
Mohofe position of accused acting quickly and
would have made a trying to protect the
choice on the best public from robbery.
steps to take? How else would he
have stopped the
criminals.
Burden / cost Mostert case Municipality case. Venter case – the
Council should have cleaner should have
Venter case considered the costs taken steps to make
their ratepayers sure the floor was
would undergo due dry before moving
to the burst pipes. on, as it was an
obvious risk that a
wet floor could
Does accounting for cause harm during
risks/ harm cause a busy hours.
burden on In this case, it does
defendant? not place a burden
on supervisor to
check if floors were
damp as it is part of
routine cleaning.

Quiz
Based on the case of Graham, the higher the risk of harm the more likely it would be that
reasonable preventative steps would be required.

Based on the case of Ngubane, if there is a good chance that serious bodily injury is likely to
occur on account of the wrongdoer's conduct, then it becomes more likely that reasonable
preventative steps ought to be taken

The case of Mohofe stands for the proposition that if the wrongdoer's conduct serves a greater
social good, we should allow that conduct even if it has other potentially harmful
consequences.

In the case of Avonmore it was held that if the cost/burn of reasonable preventative steps is
minimal (like putting up a sign), such steps should generally be taken.

It would be a correct application of the court's reasoning in Ngubane to say, in this case, that
the risk of harm was high and the potential harm to victims was huge. As such, the utility and
cost of reasonable preventative steps take a backseat. Even if socialising is important, and
even if erecting a fence would be quite expensive, the owners/managers of the flats ought to
take reasonable steps to prevent the harm.