Question 1

Conduct is a voluntary human act or omission. By Voluntary means that the person
must have controlled his/her muscular movements at their own will. The act of must
be voluntary to give rise to delictual liability. To raise the defence of automatism, a
defendant must prove that he didn’t act. The Defendant may argue that the conduct
he is being blamed of do not meet the requirement of voluntariness.

John may rely on the defence of automatism because he acted involuntarily. There
are medical Conditions that may cause a person to act involuntarily because they
make people incapable of controlling their bodily movements. Condition like absolute
compulsion, sleep, unconsciousness, serious intoxication, blackout, reflex
movements, strong emotional pressure, mental disease, hypnosis, and a heart
attack. In the case of Molefe vs Mahaeng it was said that the defendant does not
bear the onus to prove that he was in a state of sane automatism. The onus is on the
plaintiff to prove that the defendant acted voluntarily. In Du Plessis case, x was
charged with negligent driving as he had injured a pedestrian; He experienced a
blackout due to low-blood pressure and was not found guilty.

Based on the given scenario, john did not act voluntarily when the two aeroplanes
collided because he did not give the pilots the correct instructions as he was
unconscious. But the situation will definitely change if john had been receiving
medical treatment for a diagnosed condition of low blood pressure, then failed to
take his prescribed blood pressure medication when the incident occurred. A person
cannot depend on automatism if he/she intentionally placed himself in an unfortunate
state.

If the defendant purposefully created the circumstance in which he or she behaves

unconsciously in order to hurt another, the automatism defence will not be
successful. John will be held accountable for his responsible actions that led to the
automatism that caused harm to the plaintiff. When John was careless with his
automatic behaviour, he may not be able to properly depend on the automatism
defence.

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In the Victor case, X was convicted of negligent driving despite causing the accident
during an epileptic fit, as he’d been suffering from fit for 13 years and the reasonable
man would’ve foreseen the possibility of causing harm while in a state of
automatism. In this case, X knew he may suffer an epileptic fit and still drove a motor
vehicle. Automatisms do not mean that there is no voluntary act by the defendant
who caused the damage, it only mean that the conduct in question was not done
voluntary.

A person cannot rely on automatism if he/she negligently placed himself/herself in an

unfortunate state. John was perhaps negligent, or maybe had intention in the form of
dolus eventualis. Therefore, a reliance on automatism would fail in this case.

Question 2

In The given scenario is based on the wrongfulness of an omission. Firstly we must

check if whether an omission is wrongful and if there was a legal duty to act and was
breached. We do this with reference to the legal convictions of the community, or the
boni mores. Elements which may serve as signs that a legal duty rested on the
defendant include, a special relationship between the parties, prior conduct control
of a dangerous object, particular office, rules of law, contractual undertaking for the
safety of a third party and creating of an impression that the interests of a third
person will be protected.

The conduct of the police and prosecutor takes the form of an omission. Ever since
Halliwell decision, courts maintained that an omission could not be wrongful on its
own, but had to be followed by positive conduct creating a new source of danger
rule was known as omission per commissionem rule or the prior conduct rule. Rule
was applied in several cases in which municipalities were the defendants of the so
called municipality cases. In Regal v African Super slate the court held that prior
conduct was not necessary for an omission to be wrongful. In Minister van Polisie v
Ewels the court declared that prior conduct was not a prerequisite for an omission to
be wrongful. The question whether the alleged wrongdoer had a legal duty to act,
and whether such a legal duty existed or not, had to be determined with reference to
the legal convictions of the community. Prior conduct could be a factor pointing
towards the presence of a legal duty, but it was not an entire requisite for the

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existence of a legal duty. In Van der Merwe, the judgment in the Ewels case was
applied to a municipality.

in applying the discussed principles and case law to the given facts, a legal duty
rested on the police and the prosecutor to make sure that chad does not go out and
make sure that he does not by any chance get to assault Anna. The omission by
police and prosecutor was wrongful.

Question 3

Question 4

Fault occurs in a form of intention or neglect.

To determine if a person is at fault, one must first see if he/she is accountable for
his/her actions. A person is accountable if he/she has the necessary mental ability to
differentiate between right and wrong and that he/she can act in accordance with
such appreciation, he/she must have the required mental ability at the time of the act
.if he/she lacks accountability at the relevant time then there will be no fault on
his/her part.

john was at fault because his conduct infringed Tom real right to his property and
the act occurred in an unreasonable manner. Defence John may raise the defence of
necessity as a ground of justification and may succeed in this defence.

Necessity is when the defendant is placed in a position by superior force (vis major)
that he is able to protect his interests or those of someone else, only by reasonably
violating the interests of an innocent third party.

In determining necessity:

An actual state of necessity must exist, The possible existence of a state of

necessity must be determined objectively, The state of necessity must be present or
imminent, Defendant need not only protect his own interests, but can protect the
interests of another, Not only life or physical integrity but other interests like prop
may be protected out of necessity, A person cannot rely on necessity where he is
legally compelled to endure danger, The interests which are sacrificed must be more

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valuable than the interest which is protected, The act of necessity must be the only
reasonable possible means of escaping from the danger.

Question 5

Based on the given facts, both parties have been negligent. Therefore we must
consider whether contributory negligence existed. Contributory negligence is
negligence on the part of the plaintiff, and it is a defence that the defendant can
raise. The Apportionment of Damages Act 34 of 1956 is applicable This Act provides
that a contributorily negligent plaintiff’s damages be apportioned.

The court will determine the degree of deviation from the reasonable person
standard shown by the conduct of both the defendant and the plaintiff, express the
deviation as percentages, and use these percentages as a basis for the
apportionment. in the Smit and Nomeka cases, the percentages of negligence
attributed to the defendant and plaintiff respectively will always add up to a 100%. In
the case Jones NO v Santam Bpk, it was said that percentages must be assessed
independently.

In King v Pearl Insurance Co Ltd it was said that a defence of contributory

negligence could not succeed where the plaintiff had omitted to wear a crash helmet
while driving a scooter, but had not been negligent in respect of causing the
accident. In Bowkers Park Komga Cooperative Ltd v SAR and H the court held that
contributory negligence didn’t refer to negligence in respect of the damage causing
event, such as a motorcar accident, but to negligence in respect of the damage itself.
failure to wear a safety helmet would constitute contributory negligence if it
contributed to the plaintiff’s damage

Question 6

The test for legal causation is flexible approach, as already expressed in S v

Mokgethi and International Shipping Co (Pty) Ltd v Bentley. In Mokgethi, a bank
robber shot a teller; The teller was rendered a paraplegic and was discharged from
hospital in a wheelchair. Subsequently, the paraplegic man failed to shift his body
position in the chair frequently and developed pressure sores, eventually dying from
complications. In that the question was asked as to whether the shot fired by the
robber was the legal cause of the teller’s death.

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The leading question in respect of legal causation is whether there is a link between
the offender’s conduct and its consequence for such consequence to be assigned to
the offender in view of policy concerns based on reasonableness, fairness and
justice. Few other legal causation theories exist, such as adequate causation, direct
consequences, foreseeability and novus actus interveniens.

None of these standards can be used in all circumstances but may, be used as
supplementary aids when employing the flexible approach. In the Mokgethi case, the
court held that the shot was not a legal cause of the death. If these principles are
applied to the facts in the question, the assumption is most likely that Roy
pneumonia was too far off and Rob should not be blamed for it. It could also be
argued that a novus actus interveniens was created by a nurse leaving the windows
open.

In the end there is no legal causal link between Rob`s conduct and Roy`s
pneumonia.

Question 7

7.1 A plaintiff may not recover damages for a loss which is the factual result of the
defendant’s conduct but which could have been prevented if the plaintiff had
taken reasonable steps.

7.2

 Defamation
 Adultery
 Invasion of Privacy

7.3 Action:The actio de pauperie

Requirements to be met:

 The defendant must be the owner of the animal when the damage is
inflicted.
 The animal must be a domestic animal
 The animal must act contrary to its own nature when inflicting damage
as a rule an animal doesn’t act contrary to its own nature if it’s reacting

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 to external stimuli –defences: vis major, culpable conduct on the part
of the prejudiced person and provocation.
 The prejudiced person or his property must be lawfully present at the
location when the damage is inflicted