Topic 7, 8, 9: Fault

Accountability
 The Defendant (D) must be culpable and accountable for his wrongful conduct
 Before establishing whether a person acted intentionally or negligently, need to establish
that they have the necessary capacity to be at fault
 This is a subjective aspect bc looks at persons ability and maturity
 Ask i) does that person gave the capacity to distinguish right and wrong and ii) do they have
the maturity to then to act accordingly? (at the time when the delict was committed)
 Defences which exclude accountability:

Youth
 3 categories of youth which may exclude
1. Infantes (below 7); irrebuttably presumed to have no capacity and thus no accountability
2. 7- 14: rebuttable presumption of no capacity (ie no accountability unless proven
otherwise)
3. 14-18: legally accountable and liable unless proven otherwise

Weber v Santam

o Where the issue is whether or not a child is culpae capax, care should be taken not to place
"an old head on young shoulders".
o It would appear that it has thus far been too readily accepted, purely on the ground of a
child's training, that he has attained a sufficient degree of development and maturity to
control his irrational or impulsive acts.
o If the child's acts and omissions are to be measured against the standard of the adult, it must
be asked whether he is sufficiently mature in regard to the situation at issue to comply with
that standard. The question of the accountability of an infantia maior must be approached
subjectively by determining whether the child's emotional and intellectual capacity had, at the
relevant stage, developed to such a degree that he had sufficient discretion to distinguish
between permissible and impermissible conduct and to act accordingly.

o Where the accountability of the child has already been established, and negligence must be
established, only one abstract, objective standard applies, namely the Court's judgment as to
what is reasonable, because the Court places itself in the position of the diligens paterfamilias.
o
Semble: If it is found that the defendant was negligent, but that the child-plaintiff was
accountable and also negligent, then the question of the degree to which the child's damages
ought to be reduced arises. If the defendant should have realized that he had to take into
account the heedless conduct of a child, and if his negligence lies, inter alia , in his failure to
do so, it would follow that his degree of negligence must be higher than that of the child -
otherwise it would be paradoxical that the child must be penalised for precisely that conduct
which the defendant should have guarded against.
o
Quaere: The generally unsatisfactory results of the mathematical assessment of degrees of
negligence (as prescribed in Jones NO v Santam Bpk 1965 (2) SA 542 (A) ) in cases concerning
children vis-à-vis adults, must be ascribed to the fact that such an assessment is too inflexible.
An assessment of blameworthiness would more readily yield satisfactory results. Perhaps one
can still move in this direction. The decision in the South Eastern Cape Local Division in Weber
v Santamversekeringsmaatskappy Bpk reversed.

Eskom v Hendricks

o 11 years old 8 months, climbed 14 m up a high voltage power line and sustained injuries
o Alleged that appellant had been negligent who denied liability, alternatively claimed that J
had been contributory negligent
o Court a quo held that J had contributed (had culpae capax)
o On appeal considered capae incapax:
 Capacity enquiry is subjective and depends on the circs of the case
 Also held that the gender distinction was unjustifiable (girls at 12 and boys at 14);
more appropriate cut off is 14.
 May be able to distinguish R from W but that children might become so engrossed in
their play that they cannot appreciate the consequences of the danger
 Found that Eskom had failed to rebut the presumption that that J was culpae
incapax … thus he had NOT contributed to the negligence

Mental disease
 If at the time of delict, suffers from MI, disease or emotional distress which renders him
incapable of distinguishing right and wrong or being able to act in accordance with that.

Intoxication
 May sometimes render a person cupla incapax but not always – of consumes substance
before delict (ie while still accountable) then will be liable for the delict (eg drive drunk then
have an accident)

S v Chretien

o Whenever a person who commits an act is so drunk that he does not realise that what he has
done was unlawful or that his inhibitions have substantially disintegrated, he can be regarded
as not being criminally responsible. If there is a reasonable doubt, the accused ought to be
given the benefit thereof.
o
Someone who is dead drunk and is not conscious of what he is doing is not liable because a
muscular movement which is done in this condition is not a criminal act. If someone does an
act (more than an involuntarily muscular movement) but is so drunk that he does not realise
what he is doing or that he does not appreciate the unlawfulness of his act, he is not criminally
responsible. A court will only come to the conclusion, or have a reasonable doubt, on the
ground of evidence which justifies it, that, when someone indeed commits an act (or
omission) which is an offence, he was intoxicated to such an extent that he was not criminally
responsible.
o
The decision in the Durban and Coast Local Division in S v Chretien 1979 (4) SA 871 confirmed.

Provocation
 Where a person is provoked to such an extent that they lose control of the ability to act
responsibly or lacks the consciousness of his wrongfulness.
 S v Campher recognises it as an absolute defence excluding capacity
 In Bennett v Minister of Police the court held that verbal provocation cannot justify a
physical assault in retaliation and therefore cannot be used as a defence to exclude
WRONGFULNESS. But is the nature of the provocation necessary relevant to exclude
capacity? (ummmm, probably not)
Topic 8: Intention
 Subjective bc court must determine what the D actually had in mind at the time of
committing the delict
 Irrespective of what kind (3 below), the concept of intention has 2 aspects: i) the direction of
the will and ii) consciousness of wrongfulness (ie will is directed at a specific outcome,
knowing that what he is doing is wrongful (prohibited by law or convictions of soc)).

Direct (dolus directus)

 Primary aim is to achieve a particular consequence eg deliberately says something to hurt
the others feelings
 Foreseeability is irrelevant

Indirect (dolus indirectus)

 In effecting consequence A, the person foresees that consequence B (another harm) will
inevitably occur
 Eg want to steal the car radio (consequence A) but break the window to do it (consequence
B)

Intent by acceptance of foreseeable result (dolus eventualis)

 In executing a plan to cause harm, a person foresees a wrongful consequence that is not
desired but nevertheless reconciles himself with the possibility that it may arise and
continues to execute his plan to cause the harm. (reckless disregard)
 Eg If I want to throw a stone at Leanne but Courtney and Ross are standing next to her, I
foresee that it may hit R or C, because I have horrible stone throwing skills, but I do it
anyway…
 2 fold enquiry: i) subjectively foresee another harmful consequence? Ii) reconcile himself
with realisation but nonetheless continue with his actions?
 NOTE: if I thought my stone throwing skills were boss, and I thought I would not miss, then I
would not have reconciled ito (ii) and therefore would not have dolus eventualis (but I may
be negligent)

Component 1: Direction of will

 Aimed to achieve a certain result, or at least willing to produce or accept the consequences
of that result
 Determining the mental predisposition of the person obtaining a specific result
 3 ways of directing will: directly, indirectly or by accepting the possibility of harmful
consequences ensuing (outlined above)

Component 2: Consciousness of wrongfulness

 Must know that the consequences are contrary to law and the legal convictions of socirty
 If genuinely believe that you are acting in acc with law then you have not acted intentionally:
intended to behave lawfully but that conduct wasn’t actually lawful

Frankel Pollak Vinderine v Stanton

o
Knowledge by a defendant of a plaintiff's rights or claim to property of which the defendant
has disposed is an essential ingredient of liability, both for the actio ad exhibendum and the
actio legis Aquiliae. Knowledge at the time of acquisition results in liability if there is a
subsequent disposal or consumption or at least wilful destruction. If the defendant is bona
fide at the time of acquisition and thereafter disposes of or uses the property, she or he will be
liable if knowledge has been acquired of the plaintiff's claim or rights before this is done. The
knowledge which renders the defendant liable is guilty knowledge. If she or he knows of
another's claim or rights and does not believe that the transferor is authorised to dispose of
the property, there must have been an awareness of the fact that the owner is being
defrauded. There is no qualitative difference between the mental element which is required in
this instance and dolus.
o
The knowledge that fixes a defendant with liability in the case of the actio ad exhibendum,
also called mala fides, is a form of dolus and exists when the defendant's state of mind
constitutes dolus eventualis. In the absence of subjective knowledge, unless it was not
acquired because the defendant deliberately shut its eyes to the facts, there is not mala fides.
The test is whether the defendant subjectively foresaw the possibility of the disposer not
having title or authority but refrained from enquiring whether there was such a taint, reckless
as whether it was so. In other words, there must have been subjective foresight which, like
any other factual issue, may be proved by inference after thinking one's way through all the
facts, on a balance of probabilities.

Dantex Investment Holdings

o Plaintiff company (the appellant herein) instituted action against the defendants (the
respondents herein), the joint provisional liquidators of an explosives company (herein
referred to as 'Natex' and with which the appellant company had had some business
relationship in the manufacture of explosives) for delictual damages, its particulars of claim
merely stating that it had, by reason of a written agreement of lease with a certain gold
mining company, been entitled to occupy such premises as from a certain date; that since
then the defendant had been in wrongful occupation thereof and despite demand had refused
to vacate same; and that, arising out of such wrongful occupation, it had suffered a certain
amount in damages and would continue to suffer damages at a certain rate until the
defendant vacated the premises.

o Defendants had excepted to the particulars of claim as lacking averments to sustain an action,
which was upheld in a Local Division. In an appeal from such decision it appeared that it was
common cause that plaintiff had never been in occupation of the leased premises.

o The plaintiff did not contend that it had a sufficient interest in the property to entitle it to
invoke the Aquilian action in respect of damage to its limited interest in the property. The
plaintiff relied on the alleged deliberate interference by defendants with its contractual rights
under the lease with intent to injure the plaintiff and that it had sufficiently averred that
defendants had acted dolo or intentionally. For this plaintiff relied on certain averments it had
 made in furnishing further particulars as sufficiently alleging all the elements of dolus as such
concept was understood in the law of delict, viz that the defendants had no right to occupy
the premises and that the defendants knew that G the premises had been leased to the
plaintiff.

o Moreover both parties were ad idem that, if such dolus had been pleaded, the pleading would
disclose a cause of action in delict. The averments relied on by plaintiff did not embrace all
that was meant by dolus: a plaintiff who based his claim for patrimonial loss on an intentional
wrongful act on the part of the defendant had to allege and prove, inter alia , that the
defendant intended to cause the plaintiff loss, whereas in this case all the plaintiff had alleged
was that the defendants had acted with knowledge of the plaintiff's rights and that the
plaintiff in fact suffered loss: the pleadings were therefore not inconsistent with a belief on
the part of the defendants that the plaintiff would not suffer damage by being kept out of the
leased premises, and a state of facts in which such a belief could arise could easily be
imagined.

o The Court in the present case was not concerned with an injuria but with a claim under the
extended lex Aquilia in which I the plaintiff relied upon fault in the form of dolus. It was now
accepted that dolus encompassed not only the intention to achieve a particular result, but also
the consciousness that such a result would be wrongful or unlawful. Even though there might
be policy considerations in cases falling under the extended lex Aquilia why a plaintiff who
relied on fault in the form of dolus should not be required to prove consciousness of
unlawfulness, in this type of interference with contractual rights with which the Court was
presently concerned this was not so: the plaintiffs should, therefore, have alleged
consciousness of unlawfulness on the part of the defendants.

o So far from alleging that the defendants were aware that their conduct was unlawful, the
pleadings were entirely consistent with the existence of an honest dispute about the
defendants' right to occupy the premises. As plaintiff had neither alleged intent or dolus in
express terms, nor had it sufficiently alleged the elements which went to make up this concept,
that the appeal should be dismissed with costs, including the costs of two counsel.

o Quaere: Whether culpa constituted a sufficient element of fault to ground liability for
damages for an unlawful interference with contractual relations.
o
The decision in the Witwatersrand Local Division in Dantex Investment Holdings (Pty) Ltd v
Brenner and Others NNO confirmed.

Maisel v Van Naeren

o
All liability for delict, including defamation, in our common law derives from the application of
the principles of the actio injuriarum and the actio legis Aquilia, as they have been developed
through the centuries; and in terms of these principles blameworthiness on the part of the
defendant, in the form of dolus or culpa as the case might be, is an essential in each case.
Thus, in an action for defamation, although a privileged occasion cannot be said to have
existed, the circumstances may nevertheless be such as to manifest an absence of animus
 injuriandi, and the onus is on the plaintiff to prove animus injuriandi. An erroneous belief in
the existence of a so-called 'privileged occasion' may, therefore, in fit circumstances, protect
the defendant.
o
Respondent had successfully sued appellant for ejectment and appellant had failed in a claim
in reconvention for defamation. In an appeal, it appeared that the alleged defamation was
contained in a letter written by respondent to the appellant stating that a copy thereof had
been sent to the chairman of the Rent Board. At the time respondent had been under the
impression that his premises, in respect of which he had sought an ejectment order against
appellant, were subject to the Rents Act, though he afterwards discovered they were not.
o
Held , that appellant had proved a sufficient probability of receipt by the chairman of the copy
and therefore of publication to the chairman, in the absence of negativing evidence or special
circumstances.
o
Held , further, however, though the occasion was in truth not privileged, that the appellant
had failed to prove animus injuriandi on the part of the respondent: the circumstances
effectively rebutted or excluded the presumption of animus injuriandi which would ordinarily
have arisen from the publication of the defamatory words.

Motive v intent
 Motive triggers the formulation of intent (which is why it is often used to prove intent)
 Motive may indicate whether consciousness of wrongfulness is present in that a good
motive might indicate a lack of consciousness of wrongfulness while a malicious motive
might indicate the intention to do harm

Proving intent
 Plaintiff bears onus of proving D’s intent but obviously only the D has knowledge of his exact
subjective state of mind at the time of the delict. Therefore courts look at the surrounding
circs and come to a reasonable conclusion about the D’s reprehensible state of mind
 In same cases, eg defamation, the onus shifts to the D to rebut the presumption of intent

Defences that exclude intent

 Once P has proven intention D might raise defences to exclude liability
 Generally aimed at either i) indicating that his will was not directed towards the harm ii) he
did not know that it was wrongful and iii) he did not direct his will, not did he know that the
conduct was wrongful

Mistake
 Bone fide mistake excludes intent (bc excludes the second element – consciousness of
wrongfulness)
 Maisel v Van Naeren

Jest
 Will was not directed at achieving the harmful consequence that ensued and also excluded
consciousness of wrongfulness
 Must show that it was genuinely meant as a joke
  Masch v Leask: auctioneer ‘joked’ with another auctioneer who sued him for defamation.
Court: Must genuinely mean it as a joke and others must understand it to be a joke
(introduces a slightly objective aspect to the otherwise subjective enquiry). This was not
proven.

Intoxication
 So intoxicated that they cannot develop an intention
 Chretien: normally used to exclude accountability but may also exclude intent if they are too
drunk to form an intention to direct their will or realise that their conduct is wrongful

Provocation
 Did not realise conduct was wrongful despite expressly directing their will

Emotional Distress
 Cannot develop intention; normally used to exclude accountability but if a court finds them
accountable then may use to exclude intention.

Negligence
 While intention relates to the law’s disapproval of the defendants state of mind, negligence
involves the law’s disapproval of the defendants conduct

Concept of negligence
 Enquiry into neg involves evaluating the D’s conduct according to a standard that is
acceptable to society
 Fictitious reasonable person: represents an objective standard that all legal subjects must
adhere to
 Differs from the test of wrongfulness in that the reasonable person is placed in the position
of the def. do not evaluate known and unknown circs, simply ask what the reasonable
person, put in the position of the def would have done
 If the D’s conduct does not conform with the standard of the reasonable person, the
conduct is blameworthy in law and the D will be at fault

Characteristics of a reasonable person

 Adequate and consistent level of care on the part of all legal subjects and must be sensitive
to the variety of subjects in society
 Ie it is a standard of the ordinary person who takes reasonable chances and reasonable
precautions to protect interests while expecting the same of others
 Expected within everyday life, therefore due to change in line with soc’s expectations
 Not that all harm would always be avoided completely, but rather that a person must act
appropriately in the circs and behave in the same way that a reasonable person in the same
set of circs would behave

Test
 In Sea Harvest Corporation v Duncan Dock Cold Storage the SCA reiterated the reasonable
person standard. Test articulated in Kruger v Coetzee provide guidelines to how a reasonable
person would act in the circs
Kruger v Coetzee

Facts:

o The car of the plaintiff (respondent) was damaged after colliding into the horses of the
defendant (appellant), which had stayed from a camp on the defendant’s property through an
open gate on to the public road on which the plaintiff was travelling.
o The gate had been put in the fence at an earlier stage by the local divisional council to afford
access through the defendant’s property to a construction site and was often left open with
people going in and out.
o The defendant had lodged complaints about this to the divisional council and the contractors,
however, he continued to keep the horses in the camp.
o The plaintiff based her claim on the defendant’s alleged negligence, first, in that he allowed
the horses to stray onto the road unattended, and secondly that the fate had remained open
and the defendant was unable to exercise proper control over them.
o The court held that the plaintiff had not succeeded in proving negligence on the defendant’s
part and accordingly dismissed the claim.

o Test for negligence – formulated by Holmes JA:

“For the purpose of liability culpa arises if –

(a) a diligens paterfamilias in the position of the defendant –

(i) would foresee the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.”

o This test has been constantly stated in our courts, although (a)(ii) is often overlooked.
o What steps would be reasonable depends on the circumstances of the case.

o In this case it is common cause that the reasonable person in the position of the defendant
would have foreseen the possibility of the horses straying into the main road and causing
damage and the defendant conceded that he was conscious of the possibility.
o Despite that the gate was being left open by people that the defendant had no control over,
he was aware of the fact and continued to graze his horses there., conscious of the danger to
motorists.
o Therefore if there was some precaution to be taken a reasonable person would have in these
circumstances, which the defendant attempted to do twice through his notification to the
divisional council and the contractors.
o The question is therefore the plaintiff’s onus to prove negligence:
o There was no evidence of an alternative grazing camp available to the defendant.
o There is no evidence as to the possibility/feasibility of the defendant fencing off the camp or a
portion of the existing one.
o There was no investigation of the possibility or cost of the defendant maintaining a team of
herds or of gate-keepers daily to prevent the animals going through as this would also be
impracticable.
o There was no investigation into the likely cost of building a cattle grid.
o The court doubted whether there were other reasonable steps apart from having complained
to the council and the contractors, which the defendant should have taken and therefore
negligence was not proved.

Conclusion:

o The reasonable man test for negligence is the admired test.

o The court points out that the second leg of the test being whether the loss is preventable by
taking reasonable steps, is oven overlooked.
o The diligens paterfamilias test is distinct from the duty of care argument and is considered the
authority for considering negligence.

 Four issues
i) Place the reasonable person in the position of the D
ii) Evaluate the situation to determine whether a reasonable person would have
foreseen the possibility of harm arising from the conduct
iii) Would a reasonable person have done anything to prevent the harm from occurring
(availability of alternative steps and whether they were reasonable and practical in
the circs; if the D DID take some steps then the P must show that those steps were
unreasonable or inadequate)
iv) Compare the D’s behaviour to the course of action that the court think s a
reasonable person would have taken in the circs (if the D did nothing, or less than
the standard required, then conduct is unreasonable and D is negligent.

Foreseeability and preventability

 Test for negligence stands on 2 pillars
1. The foreseeability of harm
2. The preventability of harm

Foreseeability
 Assess this by considering the surrounding circs (objective) and the qualities that the law
attributes to a reasonable person
= flexible concept
 Broad guidelines:
 Lomagundi Sheetmetal :
i) How real is the risk of harm?
ii) If the harm does eventuate, what is the extent of damage likely to be?
iii) What are the costs or difficulties involved in guarding against the risk?
(preventability leg)…
  Sea Harvest: applied Kruger v Coetzee as a guideline. Explains that ultimate analysis is
whether the conduct falls short of the reasonable person standard which requires flexibility

 Abstract (or absolute) approach:

o The question of whether someone acted negligently must be answered by
determining whether harm to others was in general reasonably foreseeable.
o i.e. the question is whether his conduct in general created an unreasonable risk of
harm.
o Here it is not a requirement for negligence that the extent of damage or a particular
consequence that actually occurred should have been reasonably foreseeable – if is
sufficient that in general, damage was reasonably foreseeable.
o Whether the defendant is liable for specific damages in terms of this approach is
answered with reference to legal causation rather than whether the defendant was
negligent in the specific consequences.
o This approach is, however, not widely supported.
 Concrete (or relative) approach:
o The test for foreseeability is based on the premise that a person’s conduct may only
be described as negligent in regard to specific consequence(s).
o It is a prerequisite for negligence that the occurrence of a particular consequence
must be reasonable foreseeable.
o A strict application of this approach obviates the need for an enquiry into legal
causation.
o This approach was followed in the case of Mukheiber v Raath and Sea Harvest
 Irrespective of approach, the result should be the same. The relative approach combines the
questions into a single enquiry whereas the abstract approach follows a 2 stage process.
The core issue in both is the reasonable foreseeability

Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another

o The plaintiffs (appellants) were the owners of goods that had been stored in the recently-built
cold-storage facility of the first defendant (respondent) in Table Bay harbour area.
o The cold store was gutted by fire caused by a distress flare fired to celebrate New Year of ’93.
o It had been constructed without an anti-fire sprinkler system, because the parties concerned
with its erection (the project engineer and port engineer) regarded the building as low risk.
o The plaintiff’s claim for damages from the owners of the store as well as Portnet, the
employer of the port engineer, alleging that there had been negligence in failing to install the
sprinklers.
o Common cause that the sprinklers would have extinguished the fire or served to contain it.
o The plaintiffs failed to prove negligence in the trial court and their appeal to the SCA was
rejected.

o In applying the negligence test, Scott JA leaned towards accepting the concrete approach by
not asking whether it was reasonably foreseeable that any fire would break out, but rather the
fire in question would emanate from an external source on the roof.
o He had to conclude that negligence was absent thus there was no need to determine legal
causation.
o Streicher JA leant toward the abstract approach concluding that the damage which resulted fr
the failure to install sprinklers was reasonably foreseeable in general.
o Therefore negligence was found to be present and legal causation to the consequences of the
omission in question too remote, therefore ultimately the defendants were not liable.
o It was stated that inflexible rules should not be adopted in determining negligence because of
the infinite variety of circumstances when it may arise making it impossible to formulate, in
advance, concrete standards of conduct for all conceivable situations.
o Therefore it was stressed that the determination of negligence can only be achieved by
introducing flexibility as an attribute of the test of negligence.

Lomagundi Sheetmetal and Engineering (Pty) Ltd v Basson

In the course of welding operations on the roof of a silo the servants of the defendant (appellant)
caused a quantity of bales of stover which had been against the silo to ignite.

o Through the risk of fire had not been very great under the circumstances, the court found the
servants to have been negligent because the damage which was likely to result from stover
being ignited would have been reasonably extensive (as was proved).
o The reasonable man would have taken steps to prevent an occurrence of this kind.

o The following important principles should be taken into account here with regard to the
application of the reasonable man test for negligence – with regard to foreseeabilty, it is not
expected that the bonus paterfamilias to foresee the probability of the relevant result
materialising, but only the real possibility of such occurrence.

PRINCIPLES OF LAW:

o There have been many cases dealing with culpability through negligence, many cases dealing
with what I may call the degree of foreseeability which must be established by a plaintiff
before a defendant can be held to be liable. There are various cases which I consider most
helpful in approaching this question of foreseeability in the present case these take note that:
'The essential attribute of the law of negligence is that it should be flexible so as to be capable
of providing an answer to the infinite variety of situations in which negligence is alleged. Once
inflexible rules are adopted as the test of the existence of negligence, either generally or in a
special type of case, a quite unwarranted inroad is made into the basic concept underlying the
law.'
o What a prudent man would or would not do, or would or would not foresee in any particular
case, must depend on a very wide variety of circumstances and few cases are ever identical in
the relevant circumstances.
THE SORT OF CIRCUMSTANCES, HOWEVER, WHICH THE COURTS OFTEN LOOK TO IN CASES SUCH AS
THIS IN DECIDING WHAT DEGREE OF FORESEEABILITY MUST BE PROVED BY THE PLAINTIFF BEFORE A
DEFENDANT CAN BE HELD RESPONSIBLE FOR THE RESULTANT DAMAGE ARE THESE:

1. how real is the risk of the harm eventuating?

2. if the harm does eventuate, what is the extent of the damage likely to be; and
3. what are the costs or difficulties involved in guarding against the risk?
o I give two examples to illustrate these points. If the risk of harm eventuating is very great
indeed amounting almost to a certainty, even though in such a case the damage which is likely
to result may only be very slight, and even though the costs of eliminating the risk might be
very great, a defendant would still be liable if he took that risk in those circumstances, as the
risk of harm eventuating was so great he should not have taken it at all.
o
What was the risk of the stover being ignited from this welding? From the evidence it would
appear that it was not very great, but nonetheless from the evidence of Jacobs it would
appear that it was a real possibility. What damage was likely to result if the harm did
eventuate? Here the damage which was likely to result from the stover being set on fire,
which in turn might set the veld on fire, was likely to be reasonable extensive, certainly not
minimal.

o What costs or difficulties were involved in guarding against this risk? On the facts, it is obvious
the difficulties were very slight indeed. All that was required to have made this operation
perfectly safe was to move the bales of stover back another 10 feet or so from the silo and to
have swept the space between the bales of stover and the silo clear of inflammable material.

o The court concluded on these facts that any prudent man, before commencing the welding
operations on which the defendant's servants embarked, would have taken the precaution
first of moving the bales of stover back and sweeping the space between the bales of stover
and the silo clear, so that there was no risk of molten metal falling from the welding
operations setting fire to the stover.
o
In these circumstances, therefore, I come to the conclusion that the magistrate was right in
finding that the defendant's servants were negligent and that the defendant was responsible
for the damage caused. The appeal must, therefore, be dismissed with costs.

Preventability of harm
 Depends on facts of each case
 P must indicate exactly what steps D should have taken
 4 basic considerations (Ngubane):
i) The degree or extent of the risk created by the actors conduct
ii) The gravity of the possible consequences if the risk materialises
iii) The utility of the actors conduct
iv) The burden of eliminating the risk of harm
 For foreseeability: consider the magnitude of harm by weighing up likelihood of harm
occurring and the seriousness of that harm.
To determine preventability, we weigh up the magnitude of harm against the utility of the
conduct and the burden that will be imposed in implementing the preventative measures.
If the Magnitude outweighs the burden we conclude that a reasonable person would have
taken steps to prevent the harm occurring; but if the burden outweighs the magnitude,
the reasonable person is not expected to have taken measures.
Ngubane v South African Transport Services

o The appellant had suffered serious injury (a spinal fracture resulting in permanent partial
paralysis) when he fell off a train shortly after it had started moving to leave a station. In a civil
trial in an action in a Local Division against respondent, the owner and administrator of the
passenger rail services, for damages on the grounds of the negligence of the respondent or its
servants or both, it appeared that:
o the appellant had boarded a crowded third class coach on a morning train in order to go to
work;
o the coach was so crowded that he was obliged to stand close to the doorway of the coach
with his back to the centre post of the doorway, holding on the overhead strap nearest to the
doorway;
o while people were still 'pushing their way to get out' of the train and 'others were pushing in',
the train started with a jerk and continued moving forward; that passengers who still wished
to disembark or were in the act of doing so started screaming and pushing past and against
him, causing the appellant to lose his overhead hold and fall backwards out of the open
doorway of the coach and down between the platform and the train where he sustained the
spinal fracture.

o When a train stopped at a station, it was the duty of the ticket examiner, inter alia , to remain
on the platform until he was satisfied that it was safe and in order for the train to depart, ie he
had to make sure that all intending passengers had embarked on the train and that all
disembarking passengers had in fact done so. The guard had to satisfy himself that the ticket
examiner had boarded the train and, after the guard had entered the guard's van, it was his
duty to check again, by looking out of a window, that passengers were not entering or leaving
a coach before he operated the switch to close the doors of the coaches and giving the driver
the signal for the train to proceed.

o These procedures conformed to those laid down in the respondent's 'Interdepartmental

Working Instructions'. Evidence was adduced by the respondent as to the problem of crowd
control at stations and in trains, the difficulty of preventing overcrowding of coaches, the lack
of discipline of some passengers and the cost involved in introducing more ticket examiners
on each train and in using coaches with a door mechanism which could withstand the
malpractices of commuters.

o The Local Division had dismissed the appellant's claim, finding that the appellant had not
proved that the respondent had been negligent and had failed to prove that other reasonably
effective precautions could in the circumstances have been taken by the respondent to
prevent the appellant's fall from the train in the circumstances described by him and that the
respondent had proved that the risks to which the appellant had been exposed could not have
been eliminated or minimised without substantial difficulties, disadvantages and exorbitant
costs, such factors outweighing the magnitude of the risk so that the reasonable man would
not in the circumstances have taken steps to prevent the risk of harm.
o The Court a quo , although it dismissed the claim, indicated the amount it would have
awarded under the various heads of damages, had liability been proved. Amongst these
amounts were an award to cover the costs of purchasing and maintaining a motor car (it
having been proved that it was reasonable for the appellant to return to live at his home in
Kranskop in rural Natal), and a nominal award for future medical expenses on the basis that,
although the need for future medical services had been proved, a nominal sum was all that
appellant was entitled to in order to cater for the isolated and exceptional instances when he
would not be able to make use of State medical services.

o The appellant appealed against the dismissal of his claim, contending that it had been proved
that the respondent had been negligent in failing to ensure that it was safe for the train to
commence moving. The respondent successfully applied for leave to cross-appeal against the
'findings' of the trial Court in respect of damages.

o Held, further, approving the statement of the law appearing in Joubert (ed) The Law of South
Africa vol 8 sv 'Delict' para 43 at 78 that, once it has been established that a reasonable man
would have foreseen the possibility of harm', the answer to the question whether he would
have taken measures to prevent the occurrence of the foreseeable harm depended on the
circumstances of the case and that there were 'four basic considerations in each case which
influence the reaction of the reasonable man in a situation posing a foreseeable risk of harm
to others:
1. the degree or extent of the risk created by the actor's conduct;
2. the gravity of the possible consequences if the risk of harm materialises;
3. the utility of the actor's conduct; and
4. the burden of eliminating the risk of harm' that, on the evidence, it could hardly be contended
that considerations (1) and (2) would not have prompted a reasonable man to take steps to
prevent the occurrence: the risk - in fact the near certainty - of serious, if not fatal, injury
resulting from starting a train when persons were in the act of leaving or boarding a coach was
as obvious as could be.

o Held, further, that, on the facts of the case and having regard to the ground of negligence
which was pertinent and relied upon, factors (c) and (d) were not material: the evidence
amply demonstrated that the act complained of created a high risk of serious injury and to
have prevented its occurrence, by carrying out the procedures prescribed, would have
involved no extra cost to the respondent; nor could the delay involved therein, if it was at all
significant, possibly weigh against the other considerations requiring the necessary safety
precautions to be taken.

o Held, further, that the Court a quo's line of reasoning had missed the point: the 'effective
precautions' which would have prevented the occurrence were really unrelated to difficulties
of costs and requirements of public utility; the overcrowded coach in the vicinity of the
doorway may have played some part in the appellant being thrust from it, but the real cause
thereof was the conduct of the railway officials in ordering or allowing the train at that stage
to proceed.
o Held , accordingly, that it had been proved that the negligence of the respondent's servants
had caused the appellant's injuries. As to whether an award of damages to cover the cost of
purchasing and maintaining a motor car could be justified, that the evidence showed that in
the rural area where the appellant lived the roads were poor, there was no regular bus service
and buses were often crowded, it would be difficult for the appellant to board a bus and be
accommodated thereon in a wheelchair, there was no readily available taxi service, the bus
stop and taxi facilities were a considerable distance from his home, and after alighting he
would still have to find his way to his ultimate destination.

o Held , further, that the appellant would have to visit a hospital, probably in Durban, two or
three times a year to consult a urologist, he would have to pay monthly visits to a local
hospital to obtain medicines and for routine tests to be carried out on him and he would need
a physiotherapist from time to time.

o Held , accordingly, as it had been established that it would be reasonable for him to make his
home at Kranskop, the aforementioned considerations showed that he required a motor car,
and that an award for that purpose should be made.

o Appeal allowed. The decision in the Witwatersrand Local Division in Ngubane v South African
Transport Services reversed.

Cape Metropolitan council v Graham

Facts:

G suffered injury when a landslide of rock on Chapman’s Peak struck his vehicle. Sued Cape
metropolitan council claiming that they had been negligent in i) failing to warn people and ii) failing
to close the road

Court

Expert evidence showed that it was impossible to prevent the rock falls; but wet conditions
increased the risk. There were no polices re closure in these conditions. In deciding whether they
should have been taken, the court considered i) the degree of the risk created by the actors conduct
ii) the gravity of the possible consequences if the risk of harm materialises iii) the utility of the actors
conduct and iv) the burden of eliminating the risk of harm

The council had knowledge of the rock fall incidents and conditions where the harm was increased;
they were therefore in a position to decide whether or not to close the road. The council contended
that there were utility considerations (inconvenience re taking alternative routes because
commuters would have to travel an extra 14 km). The court weighed this against the serious risk of
harm emanating and found no justification.

Precautionary measures should have been taken and the council therefore acted unreasonably in
keeping the road open.
Enslin v Nhlapo

Facts:

2008 case with similar facts to Kruger v Coetzee: Nhapo collided with a cow which had strayed onto a
public road. Enslin decided where on the farm the herd was to graze. Sued him for negligence.

Court

Enslin admitted that they had strayed onto a public road before. Knew that this could endanger the
lives if road users. = foreseeability.

C then moved to preventablityL Enslin had taken some steps – gates and fences, told his employees
to keep them closed, but on the night in question they had been left open. Would a reasonable
person have taken further steps? YES. Eg Could have used a padlock. Failure to take such measures =
negligent.

(NOTE: in Kruger, the P did not establish that the D should have taken further steps)

“RAILROAD OPERATOR’S FAILURE TO PROTECT PASSENGER AGAINST ATTACK ON TRAIN NOT

NEGLIGENT – Shabalala v Metrorail”

Johan Scott 2009 (72) THRHR 156

INTRODUCTION

 The judgment of the case mentioned above is an appeal against a judgment of the JHB HC
where the plaintiff failed to claim damages against the defendant. Scott has written a casenote
on the matter in which he commented favourably on the judgment of Horn J noting that he
had applied the “elementological” method of establishing delictual liability correctly in coming
to the conclusion that the defendant should not be held liable.
 Therefore Scott agrees that the SCA did not overturn the judgment of the trial court. Scott
mentions at this point that Scott JA decided the case on different points than those mentioned
by Horn J and the question which now arises is whether the differences referred to are of a
minor nature, or whether they possess a significance beyond the immediate affect of the
judgment on the parties.

FACTS AND JUDGMENT

 The appellant, who was travelling as a passenger on a train operated by the respondent, was
shot and seriously injured during a robbery by unknown assailants. This type on incident
occurred on a daily basis when no security was deployed by the respondent: at the entrances
 to the railway platforms to ensure only legitimate ticket-holders boarded; nor in the train
coach, to protect commuters during their journey.
 Evidence did not show whether the assailants were on the coach already or boarded at the
same time as the appellant’s group who got on at an unattended station entrance.
 The attack was a complete surprise to the appellant as there were no prior suspicions/
indications – the group that boarded with the appellant all looked like normal commuters.
 Due to the fact that the ID’s of the assailants were never established, the appellant instituted
a claim for damages against the respondent due to the latter’s causing pure economic loss to
the former by its negligent failure to exercise its alleged duty towards taking adequate steps to
protect the appellant, in his capacity as a commuter, against criminal attacks on its premises
and trains.
 Therefore the main basis = negligence.

 Scott JA noted that the character of negligence is contained in the following discussion:
 The grounds for negligence are of a general nature relating to a systematic failure due to an
omission of a general nature on the part of the respondent to put in place measures that
would ensure the safety of commuters travelling.
 Court a quo, Horn J dismissed the appellant’s claim.
 Assuming that the respondent’s omission was wrongful, the court is based its judgment on the
simple reason that the respondent failed to establish factual nexus between the appellant’s
loss and the respondent’s wrongful conduct.
 Logically this failure made assessing negligence unnecessary and in fact impossible, if you keep
in mind that our case law overwhelmingly adheres to the “concrete” approach to the
foreseeability test wrt negligence.
 Horn J went further to hold that even if the respondent’s conduct would have been proved to
be negligent, the absence of the factual causation element on the latter’s part would still be
fatal to the appellant’s successful damages claim.
 Scott JA delivered a unanimous judgment in the SCA and based his rejection of the appeal on
the sole absence of proof of negligence on the respondent’s part, but still altered the order of
the court a quo to granting absolution from the instance and not pure dismissal.

CRITICAL EVALUATION

 The judgment of the SCA might seem remarkable, but on a closer look the basis of the
decision of the court a quo was the absence of factual causation, which was never mentioned
or even decided upon. Therefore it leaves the question – why did the SCA amend the original
order? Even assuming the appellant could not adduce evidence that would enable the court to
make a finding of negligence (when finding negligence would ex necessitate have to be based
on the “abstract” approach to the foreseeability test, where the question would be whether
the reasonable person in the respondent’s position would have foreseen the harm in general)
on the respondent’s part, how would the trial court be able to come to another conclusion in
respect of the appellant’s non-liability when they’d already decided factual causation was
lacking?

THE COURT’S APPROACH TO THE APPLICATION OF GENERAL PRINCIPLES OF WRONGFULNESS AND

NEGLIGENCE:
 Of course the judgment is unpopular.
 Therefore the Scott’s ratio decidendi is important:
“It is now well established that a negligent omission, unless wrongful, will not give rise to
delictual liability. The failure to take reasonable steps to prevent foreseeable harm to another
will result in liability only if the failure is wrongful. It is the reasonableness or otherwise of
imposing liability for such a negligent failure that will determine whether it is to be regarded
as

wrongful.”

 This statement was made in reference to the recent Trustees, Two Oceans Aquarium Trust v
Kantley & Templer (Pty) Ltd case, which has also been criticised from a theoretical perspective.
It also highlights the emerging trend of the SCA of the treatment of wrongfulness and
negligence and their relationship to each other. The SCA statements directly conflict with the
theory in respect of wrongfulness and negligence by academics. The communis opinio, which
has emerged from textbooks, is that the reasonableness test for wrongfulness falls logically
conducted in an ex post facto manner (diagnostically), before the diligens paterfamilias test
for negligence applied ex ante facto (prognostically).

 Presently there is an ongoing debate between Neethling and Potgieter on the one hand,
basing their arguments strictly on theory that has evolved through decades of academia and
which has generously, but gradually, attracted judicial recognition, and on the other hand,
Fagan, who has built the main thrust of his arguments on the existing case law which have
statements that do not accord with the standard academic view. Fagan is obviously more
bound by stare decisis.

 Looking at Scott JA’s quote, the first sentence asserts that both wrongfulness and negligence
are indispensable elements of delict (this fact is something that there is no general
consensus). This would mean that one can label an omission as negligence before establishing
wrongfulness, which presents theoretical difficulties. It can be conceded that the generally
accepted definition of negligence in Kruger v Coetzee does not suggest the existence of
wrongfulness before negligence is determined, but that negligence (as a form of fault) points
to blameworthiness, which is a logical indication that wrongfulness should be determined
before negligence. The argument by Scott is that surely, how can someone be blamed in law
for something that is lawful?

HE MAKES REFERENCE TO A QUOTE BY VAN DER WALT AND MIDGLEY:

 “The Supreme Court of Appeal appears to be vacillating on the issue as to whether wrongful
conduct on the part of the defendant is logically an indispensable prerequisite for the existence
of fault. Knowledge of the lawful nature of the conduct is implicit in a reasonable person’s
behaviour, and a reasonable person will not act lawfully. So, if a reasonable person is someone
who obeys the law at all times, then wrongfulness must be anterior to negligence. In our view,
wrongful conduct on the part of the defendant is logically and indispensably a prerequisite for
the existence of fault.”
 This statement again illustrates the standard academic view founded on the premise that
there is definite degree in difference in the reasonableness test for wrongfulness and
negligence. Scott states this premise has earned “blind faith” in their own preconceived
opinions rather than strictly following the SCA in its recent development of a basis for
determining wrongfulness and fault.

 Knobel in another THRHR article concedes that considerations of utility may sometimes favour
an approach where one can test negligence before establishing wrongfulness, but he
nevertheless argues that on a proper understanding of the elements of wrongfulness and
negligence, wrongfulness is in principle always a prerequisite for fault.

 Viewed from another angle, Scott JA’s first sentence may be compatible with the standard
view by accepting that “negligence” refers:
 not to a delictual element of “causal negligence” (as understood if you adhere to the concrete
or relative approach to foreseeability); but
 to conduct which is unreasonable in general and does not have a bearing on the specific
harmful in general, which would be more in conformity with the abstract approach; or even
 to conduct which can in technical or lay terms be branded “negligent” where he or she acts in
a certain way – e.g. driving at speed past a group of children without even in causing harm is
“in the air” negligent.

 This kind of argument can be found in Van der Walt and Midgley’s criticism of an aspect of the
judgment in Minister of Safety & Security v Van Duivenboden where the courts expressed the
opinion negligence is in itself not inherently unlawful, but that “it is unlawful, and thus
actionable, only if it occurs in circumstances that the law recognises as making lawful.”

 Van der Walt and Midgley state:

“The statement is acceptable if it is intended to mean that negligence does not ‘presuppose’
the material existence of wrongfulness (and therefore that wrongfulness must be established
independently in advance). However, if it postulates a situation where a person could be
negligent without the conduct being wrongful, then the approach is logically and theoretically
untenable.”

 It is suggested that the recent assertions by Neethling and Potgetier that principles pertaining
to the tort of negligence in UK law and the doctrine of “duty of care” have exercised an
influence on recent judgments and are above criticism. But, the courts have warned to be
cautious to avoid introducing English law rules relating to the tort of negligence into our law.

The second sentence in Scott JA’s quote is commendable for event he academics. Here the
conduct includes all three components of the dilignes parterfamilias test ((a) failure to take
reasonable steps; (b) to prevent; (c) reasonably foreseeable harm) to describe negligence
which “will result in liability only if the failure is wrongful. This is the classic formulation on the
basis which wrongfulness is considered prior to negligence.

 The third sentence suggests “reasonableness or otherwise of imposing liability for such a
negligent failure” as a determining factor of wrongfulness in the first instance is then
 contradictory to the second sentence. Secondly the court now seems determined to continue
the trend which emerged in Telematrix by Harms JA – dealt with liability for negligent causing
of economic loss and declared “conduct is wrongful of public policy considerations demand
that in the circustmance the plaintiff has to be compensated for the loss caused by the
negligence.”

 Scott JA also observed that:

“In this court counsel were agreed that the respondent was indeed obliged to act without
negligence. In other words, given the foreseeability of harm to commuters resulting from
criminal activity, it was agreed that the respondent owed commuters a legal duty to take such
steps as were reasonable to provide for their safety and that the failure to take such steps
would render it liable in delict.”

 Therefore Scott JA expressed the wrongfulness of the respondent’s failure to supply security
as the fact that it would be “liable in delict”. This method is also described by Nugent JA in
Crown Chickens.

 Scott concludes that one gains the uneasy impression that the modern English law of
negligence has impacted strongly on the SCA and the English literature on this field is
overwhelming, and which our law libraries have in stock. If sources are available they will be
used if it offers the path of least resistance and given the work load of practitioners and
judges, is welcomed. But this trend to think link the English had attracted adverse criticism.

 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd , Lord Denning MR:
“The more I think abut these cases, the more difficult I find it to put each into its proper
pigeon-hole. Sometimes I say: “There was no duty”. In others I say: “The damage was too
remote”. So must so that I think that the time has come to discard these tests which have
proved elusive. It seems to me better to consider the particular relationship in hand, and see
whether or not, as a matter of policy, economic loss should be recoverable, or not.”

 Moseneke DCJ in Steenkamp NO v Provincial Tender Board, Eastern Cape described

wrongfulness in the context of an omission as “the failure to fulfil a duty to prevent harm to
another”, which duty should be ascertained by applying “the common convictions of society”.

 Scott is of the opinion that one cannot imagine a description of the general test for
wrongfulness being more in conformity with the standard approach and, furthermore, coming
from our highest tribunal.

THE COURT’S FINDING ON NEGLIGENCE (AND IGNORING OF THE FACTUAL CAUSATION ISSUE)

 Despite that the court a quo had in essence dismissed the appellant’s claim on the basis that
the latter failed to prove causal nexus, Scott JA delivered the court’s judgment on the sole
basis of the issue of the presence of absence of negligence on the respondent’s part,
proceedings as follows:
“The question in issue is therefore whether the appellant discharged the burden of establishing
 on a balance of probabilities that those measures were unreasonable in the circumstances and
that had reasonable measures been taken the attack would not have occurred.”

 The court declared that the fact that a reasonable person would have foreseen the
consequences does not necessarily imply that the steps taken by the respondent were
inadequate. This just means that in addition to foreseeability of the normal diligens
parterfamilias, preventability should follow in assessing the conduct. Scott JA: “a failure to
observe this would be to impose on the respondent a burden of providing an absolute
guarantee against the consequences of criminal activity on its trains.” This conclusion is in
conformity with the warning by Horn J in the trial court, that the CC finding in another case
that Metrorail owed commuters a duty of protection did not imply that the latter would now
be strictly liable in delict for damages suffered to commuters where security was absent,
because this would “lead to a serious erosion of the settled legal principles of delict”. The
current writer comments that Horn J was a bit too optimistic in assuming that our law of delict
has such settled principles in cases like the present.

 As in the court a quo Scott JA found that the appellant had proved no security was present in
his coach and that nothing about the other commuters appeared suspicious. But, it was found
that the appellant had failed to prove that there was a lack of security on the train in other
coaches. In addition, assuming the presence of security in the appellant’s coach would have
been sufficient to prevent the attack, a factual causal nexus had thus been proved, which is a
different conclusion from what the trial court decided in that factual causation was not
proved. Therefore Scott JA could look into the issue of preventability.
 “No doubt in particular circumstances it may be reasonable to expect the respondent,
regardless of the cost, to place armed security in each and every coach of a train travelling on
a particular line. The need for special precautions could arise if a particular lone had been
identified as being particularly dangerous on account of repeated criminal activity. But there
was no evidence to suggest that this was so in the case of the line from Dunswart to Benoni
(which the appellant travelled on)… In the absence of further evidence to justify the need for a
security guard in each coach, the failure on the part of the respondent to ensure that there
was such security guard present in each coach does not give rise to an inference of
negligence.”

Suggests that the SCA moved from:

 Initial stance – acute awareness of the issue of factual causation; to

 A position of assuming a sufficient causal link; to
 A total acceptance that factual causation had been established.

 This shows the absorption of the element of factual causation through the issue of
preventability and therefore by that of negligence. This constitutes a deviation from even the
most recent judgments of the same court where causation is mentioned as one of the basic
elements. Therefore there is the question – what happens if the appellant can adduce further
evidence that the circumstances had justified, through applying the principles of
reasonableness, placing security in each coach. It would seem then that negligence would be
proved, because of the failure to take reasonable precautions. Would this imply the
respondent’s liability? No because causation was not proved in accordance with the
 established rules. On if the new evidence will also provide proof causation will there be
liability.

 Minister of Police v Skosana: “The negligent delay in furnishing the deceased with medical aid
and treatment, for which Davel and Mahela [the policemen under whose supervision he fell]
were responsible, can only be regarded as having caused or materially contributed to his
death if the deceased would have survived but for the delay. This is the crucial question and it
necessarily involves a hypothetical inquiry into what would have happened had the delay not
ocured.”

 Scott is of the opinion that it is inexplicable that the issue of factual causation just fell by the
wayside in the Shabalala case.

CONCLUSION

 The importance of the differences between the judgments of the trial court and the SCA is
insignificant.
 It is hoped that the SCA did not consciously establish a new method of dispensing with the
independent delictual element of factual causation by absorbing it into the preventability
stage of the traditional diligens parterfamilias test for negligence. Scott is of the opinion that
the total disregard for the terminology attaching to the test for factual causation was not the
courts intention.

 For those academics who still have faith in the standard formulation of the law of delict will no
doubt be disappointed by the Shabalala judgment as it is being further tainted by the English
tort of negligence and the concept of “duty of care”.

 It is suggested that one should be very careful, when developing the theoretical foundations
of our modern law of delict, not to utilise the argument that one’s opinions are in perfect
conformity with the latest judgments of the courts. Often in proposing a new doctrine or in
interpreting existing rules and principles, the court is led by the particular facts and the
arguments of counsel.

 On a whole it would appear that the judiciary are sometimes reluctant to refer to modern
academic writers at home, opting rather to quote foreign academics. However, the recent
dialogue between the SCA and academics on the topic of wrongfulness and negligence, truly
constitutes a wholesome development which can ultimately only benefit the overall
development of our law in general and delict in particular.

IT SHOULD BE NOTED THAT THE SOMETIMES THE GAP BETWEEN ACADEMICS AND THE JUDICIARY IS
MADE MORE EVIDENT BY AN ABSENCE OF DEBATE WHICH CAN BE AGGRAVATED BY THREE
FACTORS:

1. Academics are too quick to accept judicial utterances on a particular subject.

2. Academic criticism is rarely read unless it is published in literally one or two journals that most
judges read, otherwise they are unlikely to come to the attention of judges, unless counsel
puts the work before the court.
3. The insights that judges and academics have into the law are very different. Judges’ vision of
law tends to be fragmented and is likely to be influenced by facts. Jurists adopt a much
broader approach, concerned not so must with the decision of a particular case, but rather
with the place of each decision in the law as a whole.

Standard of care
 The following circs play a role in assessing the standard of care against which we should
measure a defendants conduct:

GENERAL PRACTICE

 A D who follows general practice in particular set of circs will usually comply with the
accepted precautionary measures, provided that a reasonable person would similarly have
followed that general practice
 D can escape liability if he can show that his conduct conforms with the normal or general
practice but ultimate basis is still reasonable person test
 general practice is not always decisive bc a reasonable person would not follow practices
which are out of date or unreasonable

Colman v Dunbar

 “It is quite true… that the practice of builders is not conclusive, for if they adopt a
dangerous practice that will not absolve them from liability even if it be a widespread
practice of the trade… But then we must first determine that there was a likely danger in
what was done, and in order to do so we are entitled to look at the common practice of
those who constantly deal with such circumstances. Therefore the general practice of the
trade is good evidence to show that in the ordinary experience of men no danger results
from what has been done.

LEGITIMATE ASSUMPTION OF REASONABLE CONDUCT OF OTHERS

 a reasonable person expects others to behave reasonably too; eg road safety rules
 but if you can see that the other person is not going to behave as expected, then you must
adjust your behaviour accordingly

SUDDEN EMERGENCY AND ERROR OF JUDGEMENT

 law cannot expect a person who has to act quickly to exercise the same standard of care;
doctrine of sudden emergency – when we don’t have the opportunity to consider rationally
all the consequences of our actions
 must meet the following requirements
- situation must be one of imminent peril
- the situation of imminent peril must not have been caused by the D’s own negligence
 - the D must not have acted unreasonably in the circs
 error in judgment common in emergency but can also occur in ordinary circs; question
remains, would a reasonable person have made a similar error in judgement in that
situation?
 SAR v Symington
 “When men have to make up their minds how to act in a second or in a fraction of a second,
one may think this course the better whilst another may prefer that. It is undoubtedly the
duty of every person to avoid an accident, but if it he acts reasonably, even if by a justifiable
error of judgement he does not choose the very best course to avoid the accident as events
afterwards show, then he is not on that account to be held liable for culpa.”

Breach of a statutory duty

 leg may prescribe a standard of care
 when courts consider negligence, statutory breach is only one consideration (ie does not
immediately amount to negligence). Question: would a reasonable person have complied
with the statutory duty?

Dealing with dangerous things, persons and circumstances

 eg handling loaded firearms, transporting dangerous criminals, slippery floors etc = required
to act with greater care

Danger to Children or people with disabilities or incapacities

 reasonable person should consider that eg a child will act impulsively therefore they should
take extra precautions
 foreseeability depends on facts of each case
 Santam Insurance v Nkosi
- A toddler was knocked down and injured; action for damages against driver
- Special duty of vigilance and care on motorists when they drive near young children
- Found the driver not to be negligent because he had acted reasonably

Attributes of defendant that influences standard of care

 To establish what is a realistic expectation of what is reasonable
 Includes where Ds are experts (eg applying the reasonable person test would be inadequate
if the D was a medical expert because they have more knowledge than the average
reasonable person)

Beginners
 Do you take into account their beginner status when assessing negligence?
 Seriousness of the harm is considered; when serious, beginner status should not be an
excuse
 American Flying Services
- A flying instructor allowed his pupil to fly his aeroplane and the pupil crashed
- In determining whether the pupil had been negligent: the instructor knowingly entrusted his
interests to his inexperienced pupil; the standard of care therefore had to be adjusted
 downward to take into account the risks inherent in the lack of skill and experience of the
pupil.

Simons Town Municipality v Dews

o It must be emphasised that the seriousness of harm is a fundamental factor. During 1988
certain employees of the appellant, acting within the course and scope of their employment,
undertook the clearing of a fire belt on vacant land owned by the appellant and situated
within its municipal area. The burning operation was commenced on a virtually windless day
and progressed without any untoward event until about 14:30 when the fire suddenly spread
to the open veld above the fire belt, got out of control and, fanned by the wind which had in
the meantime come up, reached a built-up area nearby and in the process caused extensive
damage to houses and other buildings, including those belonging to the two respondents.

o The latter jointly instituted an action in a Provincial Division in which each claimed damages
for the loss suffered by reason of the fire. The respondents alleged, inter alia , that the spread
of the fire to their properties was caused by the negligence of the appellant's employees
engaged in the clearing of the fire belt. The appellant denied negligence on the part of its
employees and also raised the defence that it was absolved from liability by s 87 of the Forest
Act 122 of 1984. The Court a quo gave judgment in favour of the respondents, holding that
they had established negligence on the part of appellant's servants, which negligence had
caused damage to the respondents' properties and that the appellant did not enjoy any
immunity from liability by reason of s 87 of the Act.
o The Court on appeal held that the trial Judge's finding to the effect that the appellant's
employee in charge of the burning operation had not taken adequate precautions to ensure
that the fire did not spread, was fully justified. As regards s 87 of the Act, which provided that
no person was liable in respect of anything done in good faith in the exercise of a power or the
carrying out of a duty conferred or imposed by or under the Act, the appellant had contended
that it created a legal immunity in favour of a person who in good faith exercised a power
conferred by or under the Act even in cases where the person concerned was negligent, in the
sense that in exercising the power he fails to take reasonable precautions to eliminate or
minimise the risk of injury which his actions may cause to others.

o The Court on appeal held that this was a far-reaching proposition with potentially devastating
consequences and that it required clear language to establish such a legislative intent, and
that s 87, while being reasonably clear, did not mean what the appellant contended that it did.
The Court held that even where a statute authorised interference with the rights of others,
the person or authority vested with the power was under a duty, when exercising the power,
to use due care and to take all reasonable precautions to avoid or minimise injury to others,
and that where the repository of the power failed to take such precautions, he exceeded the
limits of his authority and accordingly acted unlawfully. The Court further held that s 87
postulated two requirements for legal immunity, namely
1. That the act in question must have been done in good faith and
2. The act in question must have been done in the exercise of a power or duty under the Act.
o In the instant case, the finding that the appellant's employees failed to take adequate
precautions to ensure that the fire did not break out and spread, meant that they had
exceeded their statutory power and acted without authority. The Court accordingly held that
 the appellant had failed to satisfy requirement (b) and that its reliance on s 87 had to fail.
Appeal dismissed.

Experts
 Eg reasonable in the circs will depend if D is eg a medical doctor
 Reasonable person is Replaced with a “reasonable expert”
 Courts pay attention to opinions expressed in that area of expertise
 NB that like statutory breach it is only prima facie negligent and it is still up to the courts
discretion to decide
 Van Wyk v Lewis
- Lewis (surgeon) performed an urgent and difficult operation on Van Wyk; left a swab inside
him for a year; nursing sister was responsible for checking and counting swabs
- He and the sister believed that all swabs were accounted for
- Would a reasonable surgeon in that position have acted differently? No. General practice for
the nursing sister to have checked, therefore he was not negligent

Mukheiber v Raath

o The respondents, husband and wife, relying on an alleged misrepresentation by the appellant,
a gynaecologist, that he had sterilised the wife, had desisted from contraception, as a result of
which a child was conceived and born. The respondents claimed compensation from the
appellant under two heads of pure economic loss, viz for the costs of confinement of the wife
and for the maintenance of the child until it became self-supporting. A Provincial Division
found on the facts that the respondent had failed to prove that the appellant had made the
alleged misrepresentation. A Full Bench upheld an appeal by the respondents. The appellant
then obtained special leave to appeal to the Supreme Court of Appeal. The Court, after
pointing out that the ever-present danger of limitless liability in cases of negligent
misrepresentation such as the present could be was given to the dictates of public policy, set
out the requirements of Aquilian liability and proceeded to deal with each of them in the
context of the facts of the present case.
o
It had been proved on a balance of probabilities that the appellant had made the alleged
misrepresentation. As to unlawfulness, that tortious liability was founded not upon the act
performed by the defendant but upon the consequences of that act. Thus, unlawfulness
consisted in the violation of the rights of the person suffering damage as a consequence of the
act complained of. Whether or not there had been such a violation (or the converse, a
dereliction of a duty by the defendant), depended on a number of considerations including
public policy. The question of unlawfulness in the context of misrepresentation was whether
the representation in question had resulted in an invasion of the rights of the claimant or,
conversely, whether there had been a legal duty on the defendant to take reasonable steps.

o As to causation, that there were two main approaches to limiting a defendant's liability for the
factual consequences of his or her conduct: the 'relative approach', in terms of which
wrongfulness was determined by applying the criterion of objective reasonableness ex post
 facto to the actual harm and the manner of its causation and culpability was satisfied only
where the defendant in the particular circumstances intended or reasonably ought to have
foreseen and guarded against harm of the kind that actually occurred (thereby according the
requirements of wrongfulness and fault an active role in the limitation of liability); and the
'legal causation' test, in terms of which limitation is achieved by postulating a further
requirement for liability, namely that the plaintiff's damage should not have been 'too remote'
o
Although South African Courts have on occasions followed the relative approach, the
Appellate Division (and subsequently the Supreme Court of Appeal) had in recent times on
several occasions applied the legal causation test. Because public policy played a decisive role
in the limitation of liability in both approaches, they did not differ in substance and would
generally yield the same result.
o
The element of factual causation was not in issue in the present case: but for the appellant's
misrepresentation, the respondents would have taken contraceptive measures and the child
would probably not have been conceived and born. What remained in dispute was whether
public policy excluded or limited the liability of the appellant.
o
That the policy considerations underlying the judgment in Administrator, Natal v Edouard
1990 (3) SA 581 (A) (in which a claim for 'wrongful conception' based on breach of contract
was upheld) were applicable in the instant case inasmuch as there was but one test for
wrongfulness (based as it was on considerations of public policy), and that these
considerations did not stand in the way of allowing the respondents' action.
o
There was no reason for limiting claims such as those under discussion to requests made only
by married couples, or where the husband had given his consent, or where the request was
made for socio-economic reasons only (as in the present case).
o
As to the problem of the danger of imposing a too heavy burden on the doctor, that the
answer was that professional people should not act negligently by, for example, making
unsolicited misrepresentations.
o
As to how far the appellant's liability had to go, that both confinement and maintenance costs
were reasonably foreseeable, but that the appellant's liability for the maintenance of the child
had to be limited to that which rested on the parents to maintain the child according to their
means and station in life, and lapsed when it was reasonably able to support itself.
o
Considerations of public policy did not militate against holding the appellant liable for
compensating the respondents for the damages claimed by them. Appeal dismissed.
o
The decision of the Full Bench of the Cape Provincial Division in Raath and Another v
Mukheiber confirmed.

Children
 AD held in Jones, NO v Santam that the test for negligence is always objective; once a court
has established that a child is accountable in law, the fact that the person is a child becomes
irrelevant to establishing negligence. Ie reasonable person test still applies
 This may seem harsh but remember that accountability is subjective and takes into account
the child’s age etc
  Haffejee v SA Railways
- Ahmed ran in front of a train because someone stole his ball (dumbass), got pulled by the
train and flung into the bushes
- Found that he was aware of the danger and WAS accountable
- Damages to be shares equally between P and D because Ahmed contributed to the
negligence
(NOTE: debate re reasonable child standard)

Weber v Santam Versekeringsmaatskappy Bpk

o In this case the AD recognised the harshness of the approach to apportionment that was
taken in the above Jones case. The unsatisfactory results are to some extent alleviated in cases
where the adult defendant ought to have realised that children would be affected by the
wrongful conduct. In such instances the defendant’s degree of negligence would be greater
than that of the child.

o Where the issue is whether or not a child is culpae capax, care should be taken not to place
"an old head on young shoulders". It would appear that it has thus far been too readily
accepted, purely on the ground of a child's training, that he has attained a sufficient degree of
development and maturity to control his irrational or impulsive acts. If the child's acts and
omissions are to be measured against the standard of the adult, it must be asked whether he
is sufficiently mature in regard to the situation at issue to comply with that standard. The
question of the accountability of an infantia maior must be approached subjectively by
determining whether the child's emotional and intellectual capacity had, at the relevant stage,
developed to such a degree that he had sufficient discretion to distinguish between
permissible and impermissible conduct and to act accordingly.

o Where the accountability of the child has already been established, and negligence must be
established, only one abstract, objective standard applies, namely the Court's judgment as to
what is reasonable, because the Court places itself in the position of the diligens paterfamilias.

o Semble: If it is found that the defendant was negligent, but that the child-plaintiff was
accountable and also negligent, then the question of the degree to which the child's damages
ought to be reduced arises. If the defendant should have realized that he had to take into
account the heedless conduct of a child, and if his negligence lies, inter alia, in his failure to do
so, it would follow that his degree of negligence must be higher than that of the child -
otherwise it would be paradoxical that the child must be penalised for precisely that conduct
which the defendant should have guarded against.

o Quaere: The generally unsatisfactory results of the mathematical assessment of degrees of

negligence (as prescribed in Jones NO v Santam Bpk 1965 (2) SA 542 (A) ) in cases concerning
children vis-à-vis adults, must be ascribed to the fact that such an assessment is too inflexible.
An assessment of blameworthiness would more readily yield satisfactory results. Perhaps one
can still move in this direction. The decision in the South Eastern Cape Local Division in Weber
v Santamversekeringsmaatskappy Bpk reversed.
o Where the issue is whether or not a child is culpae capax, care should be taken not to place
"an old head on young shoulders". It would appear that it has thus far been too readily
accepted, purely on the ground of a child's training, that he has attained a sufficient degree of
development and maturity to control his irrational or impulsive acts. If the child's acts and
omissions are to be measured against the standard of the adult, it must be asked whether he
is sufficiently mature in regard to the situation at issue to comply with that standard. The
question of the accountability of an infantia maior must be approached subjectively by
determining whether the child's emotional and intellectual capacity had, at the relevant stage,
developed to such a degree that he had sufficient discretion to distinguish between
permissible and impermissible conduct and to act accordingly.
o
Where the accountability of the child has already been established, and negligence must be
established, only one abstract, objective standard applies, namely the Court's judgment as to
what is reasonable, because the Court places itself in the position of the diligens paterfamilias.
o
Semble: If it is found that the defendant was negligent, but that the child-plaintiff was
accountable and also negligent, then the question of the degree to which the child's damages
ought to be reduced arises. If the defendant should have realized that he had to take into
account the heedless conduct of a child, and if his negligence lies, inter alia, in his failure to do
so, it would follow that his degree of negligence must be higher than that of the child -
otherwise it would be paradoxical that the child must be penalised for precisely that conduct
which the defendant should have guarded against.

o Quaere: The generally unsatisfactory results of the mathematical assessment of degrees of

negligence (as prescribed in Jones NO v Santam Bpk 1965 (2) SA 542 (A) ) in cases concerning
children vis-à-vis adults, must be ascribed to the fact that such an assessment is too inflexible.
An assessment of blameworthiness would more readily yield satisfactory results. Perhaps one
can still move in this direction. The decision in the South Eastern Cape Local Division in Weber
v Santamversekeringsmaatskappy Bpk reversed.

Eskom Holdings v Hendricks 2005 (5) SA 503 (SCA)

o The respondent's minor son (J), who was then 11 years and eight months old, sustained
serious injuries when he ventured too close to a high voltage power line suspended from one
of the appellant's pylons. To reach the point where the incident occurred J had to climb G to a
height of approximately 14 metres above the ground and in doing so pass through an anti-
climbing device. The power line carried a voltage of some 66 000 volts. The shock caused J to
be flung from his perch. The respondent, on behalf of J instituted proceedings for damages
against the appellant alleging that it had been negligent in various respects. The appellant
denied liability and in the alternative alleged contributory negligence on the part of J.
o The Court a quo held that both the appellant and J had been negligent and that the latter had
been culpae capax at the time, and apportioned liability on the basis that the appellant was
two-thirds to blame and J one-third. On appeal and cross-appeal against these findings,
o
Although formidable in appearance, the anti-climbing device in reality did not constitute an
effective barrier and in the circumstances, could not be regarded as having 'adequately'
protected the pylon within the meaning of the applicable regulations. It followed, therefore,
that the appellant had failed to rebut the presumption of negligence contained in s 26 of the
Electricity Act 41 of 1987, and that the appellant's appeal had to fail.

o As to the cross-appeal, that it was necessary to draw a distinction between, on the one hand,
the issue of capacity on the part of a child to commit a wrong and, on the other, the issue of
fault. The first enquiry, as to capacity, was subjective, while the second, as to fault, was
objective. In other words, once a child was found to have the necessary capacity, its
negligence or otherwise was to be determined in accordance with the standard of the
ordinary reasonable person. The criticism of judging the negligence of a child by the
application of an adult standard was to some extent overcome by the emphasis on the
subjective nature of the enquiry into the element of capacity. That was an enquiry of fact. In
each case it had to be determined whether the child in question had developed the emotional
and intellectual maturity to appreciate the particular danger to be avoided and, if so, to act
accordingly. Overemphasis of the intelligence and schooling of the child, as opposed to the
inherent weaknesses associated with tender age and the propensity of children, however
well-schooled, to commit irrational and impulsive acts, had to be avoided. Although children
might be able to distinguish between right and wrong, they would often not be able to act in
accordance with that appreciation. It was necessary to avoid the mistake of 'placing an old
head on young shoulders'.
o
Infantes, i.e. children under seven years of age, are culpae incapax, while children between
the ages of seven and puberty were presumed to lack capacity until the contrary was proved
by the party alleging negligence. For the purposes of this presumption, the gender-based
distinction between boys and girls, namely, that girls reached puberty at the age of 12 and
boys at the age of 14, could well be unjustifiable. The more appropriate cut-off point would
seem to be 14 years for children of both sexes, as would appear to be the case in criminal law.
o
An analysis of the facts revealed that J's conduct giving rise to his injuries was typical of the
impulsive behaviour in which children of tender age sometimes engage. The very conduct in
question was indicative of an inability on the part of J to act in accordance with any
appreciation he may have had of the danger involved and the appellant had not succeeded in
rebutting the presumption that J was culpae incapax at the time of the incident. It followed
that the cross-appeal had to succeed.

Haffejee v South African Rail Ways and Harbours 1981 (3) SA 1062 (W)

CONTRAST THIS CASE TO ESKOM V HENDRICKS.

o Plaintiff sued the defendant for damages resulting from his minor son, 10 years old at the
time, having been injured by a train. The boy had been pursuing an older boy who made off
with his ball. They had run along a footpath towards a pedestrian level crossing and run in
front of a moving train, the cowcatcher having caught plaintiff's son. About 200 yards before
the pedestrian crossing there had been a vehicular traffic crossing for which the train driver
had whistled in accordance with regulations. The footpath passed through fairly dense
vegetation to a few simply constructed steps, the bottom step being about three paces from
the nearest rail. After an analysis of the evidence the Court found that the defendant had
discharged the onus on it of proving that the boy was culpae capax ie that he had had the
capacity to apprehend intelligently the caution required when approaching the line at the
pedestrian crossing.
o As the boy had, with his mind set on retrieving the ball, run blindly into the train, that,
objectively, his conduct had been clearly negligent and had been a cause of his injuries.
However, that the defendant had invited pedestrians to cross at that point and, having regard
to the fact that the railway line there passed through a built-up and densely populated
residential area, the defendant should reasonably have foreseen that children might use the
crossing: therefore there rested on the defendant that "special duty to take care" referred to
in relation to the motorist's duty towards children on a highway.
o
The defendant had likewise been negligent: at the very least the defendant should have
required a siren to be sounded as the train approached this crossing and not to have relied
thereon that the sound of the siren intended for motorists and others using the vehicular
crossing could probably be heard by persons about to cross the lines at the pedestrian
crossing. A flashing light would appear to be the most efficacious warning to users of the
pedestrian crossing, including children. The boy and the defendant had been equally at fault in
relation to the damages suffered both by the boy and by the plaintiff in his personal capacity.
Proving negligence
 The P bears the onus of proving, on a balance of probabilities that D acted negligently
 EXCEPT: where statutory presumption of negligence then the D must rebut that
presumption
 Res ipsa loquitur sometimes applies (‘the matter speaks for itself’) – will automatically
assume negligence – eg driving on the wrong side of the road
 Irrebuttable presumption of negligence exists when the D keeps a wild animal in captivity

Summary