Assignment: 2

Unique number: 864721

“As a general rule, a person does not act wrongfully for the purposes of the law of
delict if he omits to prevent harm to another person”. Liability only follows if the
omission was in fact wrongful, this will only apply if there was legal duty rested on
the side of Eskom to act positively to prevent harm from occurring and they failed to
comply with that legal duty. (Neethling J, 2020, p. 64) 1

“The question of whether such a duty existed is answered with reference to the
criterion of the legal convictions of the community and legal policy”2. This question
deals with the wrongfulness of an omission. The question to determine whether an
omission is wrongful is whether a legal duty to act was present and was breached.
This is determined with reference to the legal convictions of the community, or the
boni mores.

Factors which may serve as indications that a legal duty rested on the defendant
include:

 Prior conduct (omissio per commissionem rule)

 Control of a dangerous object
 Rules of law
 A special relationship between the parties
 A particular office
 Contractual undertaking for the safety of a third party
 Creating of the impression that the interests of a third party will be protected.

A person acts prima facie wrongfully when he creates a new source of danger by
means of positive conduct and subsequently fails to eliminate that danger, with the
result that harm is caused to another person. Prior conduct in the form of a positive
act that creates a danger of harm may, in other words, be a strong indication that a
legal duty rested upon the defendant (Eskom) to take steps to prevent the damage
from materialising. Prior conduct is, however, not a necessary prerequisite for the
existence of such a legal duty. (Neethling J, 2020)

The view that prior conduct is an indispensable requirement for liability for omissions
prevailed in our law for a long time. This perspective was introduced by the Appellate
Division in (halliwell v johannesburg municipal council, 1912). The prior conduct
1
Neethling J, Potgieter JM Law of Delict 8 th ed (2020) chapter 3 page 64
2
Neethling J, Potgieter JM Law of Delict 8 th ed (2020) chapter 3 page 65
requirement was rejected by Steyn JA in a minority decision in ( Silva’s Fishing
Corporation (Pty) Ltd v Maweza, 1957) in favour of the preferred view that prior
conduct was but one of several considerations which might indicate the existence of
a legal duty. This more flexible approach was later accepted by the Appellate
Division in (Regal v African Superslate (Pty) Ltd , 1963)and confirmed in (Minister of
forest v quathlamba (pty), 1973) and eventually expressed by Rumpff CJ in (Minister
van Polisie v Ewels, 1975)as follows:

“Certain prior conduct or control of a dangerous object may be a factor in the total
matrix of circumstances of a particular case from which a conclusion of wrongfulness
may be drawn, but it is not an essential prerequisite for wrongfulness. The stage of
development appears to have been reached where an omission is seen as wrongful
conduct when the circumstances of the case are such that the omission does not
only elicit moral indignation, but the legal convictions of the community also require
the omission to be regarded as wrongful, and the resulting harm to be compensated
by the person who omitted to act in a positive manner.”3

Based on the given facts in scenario, the omission by the Eskom not to fix a reported
live cable was wrong. There was a legal duty on Eskom side in terms of the legal
convictions of the community to prevent this unfortunate event from happening.

3
Neethling J, Potgieter JM Law of Delict 8 th ed (2020),chapter 3 page68
References

Silva’s Fishing Corporation (Pty) Ltd v Maweza (1957).

halliwell v johannesburg municipal council (1912).

Minister of forest v quathlamba (pty) (1973).

Minister van Polisie v Ewels (1975).

Neethling J, P. J., 2020. Law of Delict. 8th ed. s.l.: LexisNexis Butterworths.

Regal v African Superslate (Pty) Ltd (1963).

DECLARATION OF AUTHENTICITY AND ACCURACY

I Cornelius Mamukhwana (Full name/s and surname)

Student number: 49803506 declare that I am the author of this assessment in

PVL3703. I further declare that the entire assessment is my own, original, correct
work and that where I used other information and resources, I did so in a responsible
manner. I did not plagiarize in any way, and I have referenced and acknowledged
any legal resources that I have consulted and used to complete this examination. By
signing this declaration, I

acknowledge that I am aware of what plagiarism is, and the consequences thereof.

Furthermore, I acknowledge that I am aware of UNISA’s policy on plagiarism and

understand that if there is evidence of plagiarism within this document, UNISA may
take the necessary action.

Date: 2023-04-014 Place: Pretoria

Signature: Mamukhwana C