LAW OF DELICT

SUBJECT: LADE7111 LECTURER: MR G.A RAMSDEN [LU 2]

PRESCRIBED READING

• Textbook: Chapters 5 & 14 [NB. Read chapters]

• Case Law: See MO [NB. Read mentioned cases]
LEARNING UNIT 3: CONDUCT
Introduction
Without the conduct of a person or the behaviour of an
animal, there can be no delict.
The conduct (or behaviour) sets the delictual sequence of
events and consequences in motion.
Plaintiff bears the onus of proving the element of conduct.
Mere thoughts does not constitute conduct.
LEARNING UNIT 3: CONDUCT
Conduct for purposes of a delict comprises:
 A positive physical act [a commission] - e.g. driving your vehicle
into neighbour’s wall or manufacturing a defective product;
 A positive statement or comment, in writing or orally [also a
commission] – e.g. publishing something defamatory about someone
in a newspaper or an attorney giving a client wrong advice; or
 A failure to do something [an omission] – e.g. failure by an
attendant at a train crossing to lower the boom for cars when a
train is approaching or a pharmacist failing to warn someone about
the harmful effects of a tablet.
LEARNING UNIT 3: CONDUCT
Distinction between a commission and an omission is important when
determining wrongfulness (see discussion later) – public policy casts the
net of liability wider for commissions than omissions.
Human conduct
• The conduct is usually by a human being, but can also be by a juristic
person (e.g. a company – the conduct of its office bears or organs is
attributed to it).
• Human conduct will also be present where objects or animals are used
as instruments to cause harm e.g. where a person uses a knife to stab
someone; or a motor vehicle strikes someone; or a person incites a dog
to bite someone.
LEARNING UNIT 3: CONDUCT
Voluntary conduct & the defence of automatism
• The conduct must be voluntary (i.e. subject to the actor’s conscious
will and control).
• This means the actor must be able to direct his/her muscular activity
or to prevent such activity (i.e. voluntarily make a decision to act or not
to act).
• Voluntary has a special meaning in delict: it is not enough just to be
able to act voluntarily (even a toddler can do so) – must also be able
to distinguish between right and wrong [capacity to be at fault],
and to act accordingly [capacity to act].
LEARNING UNIT 3: CONDUCT
A person’s capacity to act vs. a person’s capacity to be at
fault
Capacity to act- the question here is whether the person is
able to control his/her muscular movements towards a
particular end. If not, there is no conduct.
Capacity to be at fault – the question here is whether he or
she is able to distinguish between right and wrong. If not,
there is no fault.
LEARNING UNIT 3: CONDUCT
Automatism
• It’s a defence that excludes voluntariness and hence negates the
element of conduct.
• It is used as a defence when a defendant asserts that he/she behaved
involuntarily or lacks the capacity to act voluntarily. Such incapacity is
usually linked to a known physical or mental condition that renders
a person unable to direct muscular activity. Involuntary conduct can
also result from other instances such as:
LEARNING UNIT 3: CONDUCT
 Compulsion e.g. you are slicing an orange and a stronger
person takes your hand and stabs someone with the knife.
 Reflex muscular movements e.g. you know something off
a shelf and damage it during a sneezing fit.
 Unconscious state e.g. harm caused during sleep;
epileptic fit; extreme intoxication; extreme emotional
state.
LEARNING UNIT 3: CONDUCT
The defence of automatism does not cover:
 Impulsive or spontaneous acts - these are not purely reflective acts and are therefore
regarded as voluntary acts e.g. a driver losing control of a vehicle when reacting to a bee
sting or to a burning match falling on his lap.
 Intentional prior conduct – if the state of automatism is intentionally induced to cause
harm to another (actio in libera causa) e.g. intentionally getting drunk to muster up ‘Dutch
courage’ to assault someone – the defence of automatism will not apply. In this case,
liability is founded on the prior voluntary conduct that intentionally induces the state of
automatism. The defendant intentionally sets in motion a causal change of events that
results in harm.
 Negligent prior conduct – if the defendant engages in a course of conduct that leads up to
the state of automatism, and same was reasonably foreseeable by him e.g. falling asleep
when driving after working a nightshift or taking medication that can cause drowsiness.
The defendant negligently sets in motion a causal chain of events that results in harm.
LEARNING UNIT 3: CONDUCT
• The enquiry whether conduct is involuntary is generally a subjective one – it
concerns the defendant’s actual capacity to direct muscular activity at the relevant
time.
• However, when considering the element of prior negligent conduct, the enquiry
becomes an objective one viz. that the onset of the state of automatism was
reasonably foreseeable e.g. A the conduct of a person who has forewarning of an
impending heart attack, but nevertheless continues driving until he causes a
collision, will have acted voluntarily based on his prior negligent conduct i.e. he
could reasonably have foreseen the heart attack and the ensuing collision.
• Courts take into account not only the defendant’s evidence, but all the surrounding
circumstance.
LEARNING UNIT 3: CONDUCT
Relevance of distinction between a commission (positive act) and an omission
Positive act = commission
Failure to act = omission

Sometimes overlap e.g.:

• Failing to stop at a stop sign and colliding with an oncoming car – positive act
(act of driving), but some may think of it as an omission (failing to stop).
However, failure to stop is generally treated as a deficient positive act (culpa in
faciendo) i.e. an act of negligent driving. In the same way, driving without keeping
a proper look-out is not an omission, but an act performed negligently.
• A policeman who rapes a stranded woman. Both an act and an omission – rape is
the act and the failure to protect her is an omission.
LEARNING UNIT 3: CONDUCT
Animal behaviour
Two scenarios where animals are involved –
 Where animals cause harm with human intervention e.g. a policeman sets his
dog loose on a fleeing suspect. Conduct is that of the policeman who used the dog
as an instrument to cause the harm, similar to the use of a knife or gun;
 Where animals cause harm without human intervention e.g. the situations
contemplated in the actio de pauperie and actio de pastu (see earlier slides). In
these cases liability is not based on human conduct but by virtue of owning the
dog. Liability for the harm is imputed to the owner. Quasi vicarious liability
(employer/employee).
LEARNING UNIT 3: CONDUCT
Problem-type question
X is involved in an accident while driving his car. When he regains
consciousness, he has no recollection of how the accident took place. He
is hospitalised and during treatment for head injuries, the doctors
determine that he suffered an epileptic fit at the time of the accident.
The car of Y, the other person involved in the accident, is badly damaged.
Can it be said that it was an act on the part of X that damaged Y’s car?
 Will it make a difference to your answer if X had been receiving
treatment for epilepsy before the accident, but had failed to take his
medicine for several days before the accident took place?
LEARNING UNIT 3: CONDUCT
Answer:
Conduct is defined as a voluntary human act or omission.
“Voluntary” means that the person must be able to control
his/her muscular movements by means of his/her will. Body
movements need not be willed to be voluntary, nor do they
need to be rational or explicable. The defence of automatism
excludes voluntariness, and this means that the relevant
movements were mechanical and the person could not
control them by his/her will. Factors that can induce a state of
automatism include blackout and epileptic fit.
LEARNING UNIT 3: CONDUCT
According Molefe v Mahaeng, the defendant does not bear the onus to prove that he
was in a state of so-called sane automatism. The onus is on the plaintiff to prove that
the defendant acted voluntarily. If we apply these principles to the facts supplied in
the question, we can conclude that X did not in fact act voluntarily when the damage
to the car was caused.
However, the situation will indeed change if X had been receiving medical treatment
for diagnosed epilepsy, but failed to take his medication on that particular occasion.
A person cannot rely on automatism if he/she intentionally placed himself/herself in
a state automatism; this is known as the actio libera in causa. Furthermore, a person
cannot rely on automatism if he/she negligently placed him/herself in a mechanical
state.
In the adapted facts, X was probably negligent, or could even have had intention in
the form of dolus eventualis. A reliance on automatism would fail in that case.