The Law of Delict in South Africa

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The Law of Delict in South Africa
ISBN 9780 1 90 41165 7
Typeset in Utopia Std 9.5 pt on 12 pt
Acknowledgements
Publisher: Penny Lane
Development editor: Alison Paulin
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Editor: Allison Lamb
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To Christine
Max Loubser
To Trish
Rob Midgley
Contents in brief
PART ONE INTRODUCTORY OVERVIEW

CHAPTER 1 INTRODUCTION
CHAPTER 2 DELICT AND THE CONSTITUTION
CHAPTER 3 DELICT IN A MULTI-CULTURAL SOCIETY
PART TWO GENERAL PRINCIPLES: PRIMARILY FACT-BASED ISSUES

CHAPTER 4 HARM
CHAPTER 5 CONDUCT
CHAPTER 6 FACTUAL CAUSATION
PART THREE GENERAL PRINCIPLES: PRIMARILY NORMATIVE ISSUES

CHAPTER 7 LEGAL CAUSATION
CHAPTER 8 FAULT
CHAPTER 9 WRONGFULNESS
CHAPTER 10 GROUNDS OF JUSTIFICATION: DEFENCES DIRECTED AT THE WRONGFULNESS ELEMENT
PART FOUR EXCLUSIONS

CHAPTER 11 LIABILITY IN CONTRACT EXCLUDING ACTION IN DELICT
CHAPTER 12 EXEMPTION CLAUSES
CHAPTER 13 PRESCRIPTION
PART FIVE SPECIAL FORMS OF LIABILITY INVOLVING PATRIMONIAL HARM, AND PAIN AND SUFFERING
CHAPTER 14 OMISSIONS
CHAPTER 15 NEGLIGENT MISSTATEMENTS
CHAPTER 16 PURE ECONOMIC HARM
CHAPTER 17 INTERFERENCE WITH CONTRACTUAL RELATIONS
CHAPTER 18 UNLAWFUL COMPETITION
CHAPTER 19 PRODUCT LIABILITY
CHAPTER 20 BREACH OF A STATUTORY DUTY
CHAPTER 21 PUBLIC AUTHORITIES
CHAPTER 22 PROFESSIONAL LIABILITY
CHAPTER 23 INJURY OR DEATH OF ANOTHER PERSON
PART SIX SPECIAL FORMS OF LIABILITY: PSYCHOLOGICAL OR EMOTIONAL HARM

CHAPTER 24 PAIN AND SUFFERING
CHAPTER 25 EMOTIONAL SHOCK
PART SEVEN SPECIAL FORMS OF LIABILITY: PERSONALITY INTERESTS

CHAPTER 26 INFRINGEMENTS OF BODILY INTEGRITY
CHAPTER 27 INFRINGEMENTS OF DIGNITY
CHAPTER 28 INFRINGEMENTS OF PRIVACY
CHAPTER 29 INFRINGEMENTS OF IDENTITY
CHAPTER 30 INFRINGEMENTS OF REPUTATION
CHAPTER 31 GROUNDS OF JUSTIFICATION ASSOCIATED WITH INFRINGEMENTS OF PERSONALITY INTERESTS
PART EIGHT STRICT AND VICARIOUS LIABILITY

CHAPTER 32 STRICT LIABILITY
CHAPTER 33 VICARIOUS LIABILITY
PART NINE REMEDIES AND APPORTIONMENT

CHAPTER 34 REMEDIES
CHAPTER 35 REDUCTION AND APPORTIONMENT OF DAMAGES

PART TEN STATUTORY FORMS OF COMPENSATION
CHAPTER 36 LEGAL AND PUBLIC POLICY CONSIDERATIONS THAT HAVE JUSTIFIED THE STATUTORY
DEVELOPMENT OF THE LAW OF DELICT
CHAPTER 37 THE COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT 130 OF 1993
CHAPTER 38 ROAD ACCIDENT FUND ACT 56 OF 1996
CHAPTER 39 STRICT LIABILITY FOR HARM CAUSED BY GOODS: SECTION 61 OF THE CONSUMER PROTECTION
ACT
Contents
Dedication
Contents in brief
List of authors
Preface
About the book
Permissions and acknowledgements
PART ONE INTRODUCTORY OVERVIEW
CHAPTER 1 INTRODUCTION
1.1 Introduction
1.2 The nature of the law of delict
1.2.1 Loss allocation and corrective justice
1.2.2 Regulatory framework
1.2.3 Morality and fairness
1.3 The premise
1.4 Definitions of a delict
1.5 The functions of the law of delict
1.5.1 Compensate for harm that has been suffered or an interest that has been infringed
1.5.2 Protect certain interests
1.5.3 Promote social order and cohesion
1.5.4 Educate and reinforce values
1.5.5 Provide socially acceptable compromises between conflicting moral views
1.5.6 Deter the injurer from behaving similarly in future and to warn and deter others from behaving
in a similar way
1.5.7 Reallocate and spread losses
1.6 Delict and insurance
1.7 Delict and technology
1.8 Remedies
1.9 Law of delict or law of delicts?
1.10 Protected interests
1.11 Essential elements where liability is based upon fault
1.12 Essential elements where liability is strict
1.13 A systematic approach to delictual problem-solving
1.13.1 Step 1: Identify the parties
1.13.2 Step 2: Primarily fact-based decisions
1.13.3 Step 3: Primarily normative decisions
1.13.4 Step 4: Determining the remedy
1.13.5 Step 5: Apportionment of damages
1.14 General principles modified for specific actions
1.14.1 The actio legis Aquiliae
1.14.2 The Germanic remedy for pain and suffering
1.14.3 The actio iniuriarum
1.14.4 The actio de pauperie
1.14.5 The actio de pastu
1.14.6 Vicarious liability
1.15 Conclusion
CHAPTER 2 DELICT AND THE CONSTITUTION

2.1 Introduction
2.2 The relationship between the Constitution and the law of delict
2.2.1 The constitutional remedy
2.2.2 Could constitutional damages constitute ‘appropriate relief’?
2.2.3 Does the infringement of a constitutional right amount to a delict?
2.2.4 Do delictual damages constitute ‘appropriate relief’ for the violation of a constitutional right?
2.3 Direct application and indirect application of the Constitution
2.3.1 Direct application
2.3.2 Indirect application
2.4 Constitutional values and norms
2.4.1 Foundational values that relate to dignity and equality
2.4.2 Foundational values associated with democracy and governance
2.4.3 Foundational values associated with freedom of expression
2.4.4 The values of non-violence and the protection of vulnerable people from violence and abuse
2.5 The Constitution’s areas of impact on the law of delict
2.5.1 Adjusting the way in which an established legal rule is applied
2.5.2 Changing an existing legal rule
2.5.3 Introduction of a new legal rule
2.5.4 Application of an established legal rule to a new set of facts
2.6 Conclusion
CHAPTER 3 DELICT IN A MULTI-CULTURAL SOCIETY

3.1 Introduction
3.2 The constitutional window
3.3 The influence of African culture and values
3.4 The influence of Muslim and Hindu culture and values
3.5 Specific instances
3.5.1 Dependants’ action
3.5.2 Defamation
3.5.3 Remedies
3.6 Conclusion
PART TWO GENERAL PRINCIPLES: PRIMARILY FACT-BASED ISSUES
CHAPTER 4 HARM
4.1 Introduction
4.2 Patrimonial and non-patrimonial harm
4.3 Pain and suffering
4.4 Infringement of a personality interest
4.4.1 Bodily integrity
4.4.2 Dignity
4.4.3 Privacy
4.4.4 Identity
4.4.5 Reputation
4.5 Personality rights and constitutional rights
4.6 Conclusion
CHAPTER 5 CONDUCT
5.1 Introduction
5.2 Human conduct
5.3 Voluntary conduct and the defence of automatism
5.4 Commission and omission
5.5 Animal behaviour
CHAPTER 6 FACTUAL CAUSATION

6.1 Introduction
6.2 Determining factual causation and the conditio sine qua non test
6.3 Critique of the conditio sine qua non test
6.3.1 The elimination/substitution process of reasoning is clumsy and circuitous
6.3.2 The conditio sine qua non test provides no answer in cases of multiple (or cumulative) causes
6.3.3 The conditio sine qua non test is not a true test for determining factual causation
6.4 Alternatives to the conditio sine qua non approach
6.4.1 Material contribution
6.4.2 Common sense
6.4.3 Human experience and knowledge
6.4.4 Increasing risk and creating opportunities for occurrence of harm
6.5 Alternative tests for multiple, cumulative and successive causes
6.6 The appropriate test for factual causation
6.7 Conclusion
PART THREE GENERAL PRINCIPLES: PRIMARILY NORMATIVE ISSUES

CHAPTER 7 LEGAL CAUSATION
7.1 Introduction
7.2 General test – The ‘flexible approach’
7.3 Subsidiary tests
7.3.1 Direct consequences
7.3.2 Reasonable foreseeability
7.3.3 Adequate cause
7.3.4 Intent
7.4 The talem qualem rule
7.5 Novus actus interveniens
7.6 Conclusion
CHAPTER 8 FAULT
8.1 Introduction
8.2 Accountability
8.2.1 Youth
8.2.2 Mental disease or illness and emotional distress
8.2.3 Intoxication
8.2.4 Provocation
8.3 Intention
8.3.1 Dolus directus or direct intention
8.3.2 Dolus indirectus or indirect intention
8.3.3 Dolus eventualis or intention by acceptance of foreseen result
8.3.4 First component of intention: Direction of will
8.3.5 Second component of intention: Consciousness of wrongfulness
8.3.6 Special cases: Intention comprising direction of will only
8.3.7 Difference between motive and intention
8.3.8 Proving intention
8.4 Defences that exclude intention
8.4.1 Mistake
8.4.2 Jest
8.4.3 Intoxication
8.4.4 Provocation
8.4.5 Emotional distress
8.5 Negligence
8.5.1 The concept of negligence
8.5.2 Characteristics of a reasonable person
8.5.3 The test for negligence
8.5.3.1 Foreseeability and preventability
8.5.3.2 Foreseeability of harm
8.5.3.3 Preventability of harm
8.5.4 Circumstances and factors that indicate the required standard of care
8.5.4.1 General practice
8.5.4.2 Legitimate assumption of reasonable conduct of others
8.5.4.3 Sudden emergency and error of judgement
8.5.4.4 Breach of statutory duty
8.5.4.5 Dealing with inherently dangerous things, persons or circumstances
8.5.4.6 Danger to children or people with disabilities or incapacities
8.5.5 Attributes of defendants that influence the standard of care required for reasonable conduct
8.5.5.1 Beginners
8.5.5.2 Experts
8.5.5.3 Children
8.5.6 Proving negligence
8.6 Conclusion
CHAPTER 9 WRONGFULNESS
9.1 Introduction
9.2 What is the role of wrongfulness in South African law?
9.3 When is the issue of wrongfulness likely to arise?
9.4 Wrongfulness – an attribute of conduct?
9.5 Wrongfulness presupposes both conduct and consequences, which do not necessarily occur
simultaneously
9.6 Wrongfulness – a matter of law
9.7 The general criteria for determining wrongfulness: Pathways to policy
9.8 Wrongfulness and the infringement of a right
9.9 Wrongfulness and breach of duty
9.10 Different concepts of ‘duty’
9.11 What is the content of the legal duty?
9.12 Policy considerations
9.13 Is wrongfulness determined with hindsight (ex post facto) or from the perspective of the defendant at
the time of the relevant conduct with foresight (ex ante)?
9.13.1 Involvement of a strictly ex post facto perspective and exclusion of an ex ante or actor-oriented
perspective
9.13.2 Determining wrongfulness or fault first
9.13.3 The nature of fault is in some cases relevant to wrongfulness
9.13.4 Wrongfulness and negligence are sometimes based on similar factors
9.14 Conclusion
CHAPTER 10 GROUNDS OF JUSTIFICATION: DEFENCES DIRECTED AT THE

WRONGFULNESS ELEMENT
10.1 Introduction
10.2 Consent
10.3 Consent by assumption of risk
10.4 Prior agreement not to claim (pactum de non petendo in anticipando)
10.5 Necessity
10.6 Self-defence (private defence)
10.7 Provocation
10.8 Statutory authority
10.9 Official capacity
10.10 Obedience to orders
10.11 Disciplinary powers
10.12 Impossibility
PART FOUR EXCLUSIONS
CHAPTER 11 LIABILITY IN CONTRACT EXCLUDING ACTION IN DELICT

11.1 Introduction
11.2 Why does concurrence of actions in contract and delict matter?
11.3 Exclusively delictual actions arising from a contractual relationship
11.3.1 Delictual actions arising from a pre-contractual context
11.3.2 Contractual duties giving rise to exclusively delictual actions
11.3.3 Delictual actions arising from contractual relationships
11.4 When is there concurrence, and when does liability in contract exclude an action in delict?
CHAPTER 12 EXEMPTION CLAUSES

12.1 Validity and effect
12.2 Interpretation
12.3 Exemption clauses and the Constitution of the Republic of South Africa, 1996
CHAPTER 13 PRESCRIPTION
13.1 Nature and effect of prescription
13.2 Prescription period applicable to delict
13.3 Beginning of prescription
13.4 Delay of prescription
13.5 Interruption of prescription by service of process
13.6 Interruption of prescription by acknowledgment of liability
13.7 Waiver of prescription
13.8 The Prescription Act and other legislation on prescription or limitation
13.9 Procedure
13.10 Onus
13.11 Prescription and the Constitution
13.12 Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002
13.13 Road Accident Fund Act 56 of 1996
13.14 Apportionment of Damages Act 34 of 1956
13.15 Compensation for Occupational Injuries and Diseases Act 130 of 1993
PART FIVE SPECIAL FORMS OF LIABILITY INVOLVING PATRIMONIAL HARM, AND PAIN AND SUFFERING
CHAPTER 14 OMISSIONS
14.1 Introduction
14.2 Wrongfulness
CHAPTER 15 NEGLIGENT MISSTATEMENTS

15.1 Introduction
15.2 Wrongfulness
CHAPTER 16 PURE ECONOMIC HARM

16.1 What is pure economic harm or loss, and why does it require special attention in the law of delict?
16.2 Pure economic harm – examples
16.3 Wrongfulness
CHAPTER 17 INTERFERENCE WITH CONTRACTUAL RELATIONS

17.1 Introduction
17.2 Negligent interference with contractual relations
17.3 Intentional interference with contractual relations
17.4 Conclusion
CHAPTER 18 UNLAWFUL COMPETITION

18.1 Aquilian liability for unlawful competition
18.2 Forms of unlawful competition
18.3 Fault
18.4 Interests protected
18.5 Wrongfulness
18.6 Damages
CHAPTER 19 PRODUCT LIABILITY

19.1 Introduction
19.2 Aquilian liability
19.3 Conclusion
CHAPTER 20 BREACH OF A STATUTORY DUTY

20.1 Liability for breach of a statutory duty: A question of statutory interpretation and wrongfulness
20.2 Typical factors that indicate wrongfulness
CHAPTER 21 PUBLIC AUTHORITIES

21.1 Introduction
21.2 Widening liability
21.3 General trends in South Africa: Effect of the Constitution
21.4 State Liability Act 20 of 1957
21.4.1 Section 1
21.4.2 Section 2
21.4.3 Section 3
21.4.4 Section 4
21.5 Section 35 of the General Law Amendment Act 62 of 1955
21.6 State liability for public schools
21.7 Local authorities
CHAPTER 22 PROFESSIONAL LIABILITY

22.1 Introduction
22.2 Medical practitioners
22.3 Legal practitioners
22.3.1 Attorneys
22.3.2 Advocates
22.4 Engineers, builders and architects
22.5 Accountants and auditors
22.6 Banks
CHAPTER 23 INJURY OR DEATH OF ANOTHER PERSON

23.1 No general right
23.2 Claims based on injury of a dependant
23.3 Claims by parents and employers for loss of services
23.4 Contracting parties
23.5 Claims by heirs and legatees for reduced inheritance
23.6 Claims by heirs or family members for funeral expenses
23.7 Claims by executor for funeral and other expenses
23.8 Claims based on death of support provider (action of dependants)
23.8.1 History
23.8.2 Nature of, and requirements for, the action
23.8.3 Who can sue?
23.8.4 Damages
23.9 Claims for loss of support based on injury to the support provider
PART SIX SPECIAL FORMS OF LIABILITY: PSYCHOLOGICAL OR EMOTIONAL HARM
CHAPTER 24 PAIN AND SUFFERING
CHAPTER 25 EMOTIONAL SHOCK

25.1 What constitutes psychological harm or emotional shock?
25.2 Why is it a problem area?
25.3 How did the law develop?
25.4 When will psychological harm justify an award of damages?
25.5 What can be the causes of psychological harm?
25.6 What is the appropriate action?
25.7 What is the appropriate criterion for liability?
PART SEVEN SPECIAL FORMS OF LIABILITY: PERSONALITY INTERESTS
CHAPTER 26 INFRINGEMENTS OF BODILY INTEGRITY

26.1 Introduction
26.2 Infringements of one’s corpus
26.2.1 Assault
26.2.2 Deprivation of personal freedom
26.2.3 Seduction
CHAPTER 27 INFRINGEMENTS OF DIGNITY

27.1 Introduction
27.2 Insult
27.3 Conclusion
CHAPTER 28 INFRINGEMENTS OF PRIVACY

28.1 Introduction
28.2 The common-law right to privacy
28.3 Juristic persons and the right to privacy
28.4 The constitutional right to privacy
28.5 Conclusion
CHAPTER 29 INFRINGEMENTS OF IDENTITY

29.1 Introduction
29.2 The common-law right to identity
29.3 Recent cases concerning the right to identity
29.4 Conclusion
CHAPTER 30 INFRINGEMENTS OF REPUTATION

30.1 Introduction
30.2 Who can sue for defamation?
30.3 Publication
30.3.1 Who is responsible?
30.3.2 The communication
30.3.3 Understanding
30.4 Defamatory matter
30.4.1 Step 1: Determining the meaning of the words or conduct
30.4.1.1 The primary or ordinary meaning
30.4.1.2 The secondary or hidden meaning – innuendo
30.4.1.3 Quasi-innuendo
30.4.1.4 The reasonable reader, listener or viewer
30.4.2 Step 2: Determining whether the meaning is defamatory
30.4.2.1 The benchmark
30.5 Reference to plaintiff
30.6 The presumptions
30.7 Wrongfulness
30.8 Animus iniuriandi
CHAPTER 31 GROUNDS OF JUSTIFICATION ASSOCIATED WITH INFRINGEMENTS

OF PERSONALITY INTERESTS
31.1 Introduction
31.2 Truth for public benefit
31.2.1 Truth
31.2.2 Public benefit
31.3 Fair comment
31.3.1 Comment or opinion and not a statement of fact
31.3.2 Based upon substantially true facts that are known
31.3.3 Related to a matter of public interest
31.3.4 The comment must be fair
31.4 Privileged occasion
31.4.1 Absolute privilege
31.4.2 Qualified privilege
31.5 The defence of reasonable publication
PART EIGHT STRICT AND VICARIOUS LIABILITY

CHAPTER 32 STRICT LIABILITY
32.1 Introduction
32.2 Why strict liability?
32.3 Liability for harm caused by animals
32.3.1 The actio de pauperie for harm caused by domestic and domesticated animals
32.3.1.1 Type of animal
32.3.1.2 Person who could be liable
32.3.1.3 Type of behaviour – the contra naturam test
32.3.1.4 Elements of the action
32.3.1.5 Defences
32.4 The actio de pastu for harm caused by grazing animals
32.5 The actio de effusis vel deiectis and the actio positis vel suspensis
32.6 Statutory instances of strict liability
32.6.1 Aviation
32.6.2 Damage to telecommunication lines and call boxes
32.6.3 Genetically modified organisms
CHAPTER 33 VICARIOUS LIABILITY

33.1 Introduction
33.2 General rule and justification for vicarious liability
33.3 Who qualifies as an employee?
33.4 An employment or akin-to-employment relationship must exist
33.5 Employee of two employers
33.6 Independent contractors
33.7 The delict must be committed by the employee while acting within the course and scope of employment
33.8 Intentional wrongdoing
33.9 Vicarious liability and the Protection of Personal Information Act 4 of 2013
PART NINE REMEDIES AND APPORTIONMENT
CHAPTER 34 REMEDIES
34.1 Introduction
34.2 Damages
34.2.1 Purpose of a damages award
34.2.2 Future loss and the once-and-for-all rule
34.2.3 Once-and-for-all rule
34.2.4 Exceptions to the once-and-for-all rule
34.2.4.1 Common-law exceptions
34.2.4.2 Statutory exceptions
34.2.5 Accounting for benefits and collateral sources
34.2.6 General factors that influence an award
34.2.6.1 Time with reference to which assessment is made
34.2.6.2 Taxation
34.2.6.3 Interest
34.2.6.4 Inflation
34.2.6.5 Currency
34.2.6.6 Contingencies
34.2.7 Lex Aquilia: Assessment and quantification of damages for patrimonial harm
34.2.7.1 Assessment of harm: General principles
34.2.7.2 Quantifying the damages: Damage to property
34.2.7.3 Quantifying the damages: Personal injury
34.2.7.4 Quantifying the damages: Expenses
34.2.7.5 Quantifying the damages: Loss of earnings and earning capacity
34.2.7.6 Quantifying the damages: Basic method for calculating loss of future income
34.2.7.7 Quantifying the damages: Illegal earnings
34.2.7.8 Quantifying the damages: Loss of support
34.2.7.9 Quantifying the damages: Mitigation of loss
34.2.8 Germanic remedy: Assessing reparation for infringements of physical-mental integrity
34.2.8.1 Introduction
34.2.8.2 Pain and suffering
34.2.8.3 Loss of amenities of life
34.2.9 Actio iniuriarum: Determining the amount that would provide appropriate satisfaction
34.2.9.1 Assault
34.2.9.2 Sexual abuse
34.2.9.3 Deprivation of liberty
34.2.9.4 Dignity, privacy, and identity
34.2.9.5 Defamation
34.3 Retraction and apology
34.4 Interdict
34.5 Conclusion
CHAPTER 35 REDUCTION AND APPORTIONMENT OF DAMAGES

35.1 Introduction
35.2 Apportionment between plaintiff and defendant: Contributory fault
35.2.1 The statutory provision
35.2.2 How are damages apportioned?
35.2.2.1 Approach 1
35.2.2.2 Approach 2
35.2.2.3 Approach 3
35.2.2.4 Approach 4
35.2.3 Contributory negligence or contributory fault?
35.2.4 Children’s contributory fault
35.2.5 Contributory fault and breach of contract
35.3 Apportionment between defendants: Joint wrongdoers
35.3.2 Spouses
35.3.3 Claims by dependants
35.3.4 Claims by breadwinners
35.4 Apportionment between more than one plaintiff and more than one defendant
35.5 Conclusion
PART TEN STATUTORY FORMS OF COMPENSATION
CHAPTER 36 LEGAL AND PUBLIC POLICY CONSIDERATIONS THAT HAVE

JUSTIFIED THE STATUTORY DEVELOPMENT OF THE LAW OF DELICT
36.1 Introduction
36.2 Legal and public policy considerations that have justified the statutory development of the law of delict
36.2.1 The need to combat the risk of receiving no compensation
36.2.2 The role of the Constitution and the promotion of the constitutional right to social security
36.2.3 The evidentiary difficulties with proving fault
36.2.4 General time and cost-related problems with the civil procedural system
36.2.5 The ability of the legislature to regulate liability more comprehensively than the judiciary
36.2.6 The need to prevent arbitrary outcomes
36.3 Conclusion
CHAPTER 37 THE COMPENSATION FOR OCCUPATIONAL INJURIES AND

DISEASES ACT 130 OF 1993
37.1 Introduction
37.2 Position under the COIDA
37.3 Section 35
CHAPTER 38 ROAD ACCIDENT FUND ACT 56 OF 1996

38.1 Introduction
38.2 Operation of the RAF Act
38.3 Scope of liability under the RAF Act
38.3.1 The Liability of the Fund
38.3.2 Limitations of the Fund’s liability under the RAF Act
38.3.3 Exclusions of the Fund’s liability under the RAF Act
38.4 Damages
38.5 Causation of harm, locality, ‘driving’ and ‘motor vehicle’
38.6 Liability fault-based
38.7 Delimitation of RAF claims
38.8 Prescription, procedure and right of recourse
38.9 The proposed RABS
CHAPTER 39 STRICT LIABILITY FOR HARM CAUSED BY GOODS: SECTION 61 OF

THE CONSUMER PROTECTION ACT
39.1 Introduction
39.2 What is the nature of the liability created by the Act?
39.3 Why should there be strict liability for defective products?
39.4 What are ‘goods’ for the purpose of strict liability?
39.4.1 Immovable property
39.4.2 Information products
39.4.3 Contaminated blood
39.5 Defectiveness of goods
39.5.1 Unsafe
39.5.2 Failure
39.5.3 Defect
39.5.4 Hazard
39.5.5 A puzzling interplay of definitions
39.6 Inadequate instructions or warnings provided to the consumer pertaining to any hazard
39.7 Who is a consumer?
39.8 Who is liable?
39.9 For what type of harm will liability be imposed?
39.10 Defences
39.10.1 Section 61(4)(a): Compliance with public regulation
39.10.2 Section 61(4)(b)(i): Absence of defect at time of supply
39.10.3 Section 61(4)(b)(ii): Compliance with instructions
39.10.4 Section 61(4)(c): Defects not reasonably discoverable by the distributor or retailer
39.10.5 Section 61(4)(d): Time limit for claims
39.11 Conclusion
Bibliography
Table of cases
Table of legislation
Index
List of authors
Professor Max Loubser (Editor)

BA LLB (Stellenbosch University) DPhil (University of Oxford)
Max Loubser is Professor Emeritus in the Department of Private Law at
Stellenbosch University, where he is currently a Research Associate. He is
an Attorney, Notary and Conveyancer of the High Court of South Africa,
and a director of a firm of attorneys. Previously, Professor Loubser has
presented courses in the law of delict at Stellenbosch University, and has
published research relating to the general principles of the law of delict,
prescription, third party compensation in motor vehicle accident
matters, and sports law.
Professor Rob Midgley (Editor)

BCom LLB (Rhodes University) PhD (University of Cape Town)
Rob Midgley is Vice-Chancellor of Walter Sisulu University, and Professor
Emeritus at Rhodes University. He is a member of the Academy of
Science of South Africa, and an Advocate of the High Court of South
Africa. He has held the positions of Deputy Vice-Chancellor at the
Universities of Fort Hare and Zululand, and is a former Dean of Law at
Rhodes University. Professor Midgley has published research relating to
the general principles of the law of delict, professional negligence, legal
education and dispute resolution.
Phumelele Jabavu
NDip Journalism (Walter Sisulu University) BTech (Tshwane University
of Technology) LLB (University of the Witwatersrand)
Phumelele Jabavu is a lecturer in the Faculty of Law at Rhodes University,
where he teaches the law of delict, legal interpretation and aspects of
commercial law. He is an Advocate of the High Court of South Africa and
prior to joining Rhodes he was articled to ENSafrica. Phumelele has also
practised as a journalist and taught journalism and media studies at the
Tshwane University of Technology. He is a member of the Young
International Council for Commercial Arbitration and an Associate
Member of the National Press Club of South Africa.
James Linscott
MA LLB (University of Natal) LLM (University of Cambridge)
James Linscott is a lecturer in Anglo-American law at Bucerius Law
School in Hamburg, Germany. He formerly lectured at the University of
KwaZulu-Natal, where he taught the law of delict and jurisprudence. He
has published research on the law of delict. He completed an LLM at St
John’s College, Cambridge as a Commonwealth Scholar. He is an
Attorney of the High Court of South Africa and practised law for several
years at a corporate law firm in South Africa.
Professor André Mukheibir

BMus BJuris LLB (University of Port Elizabeth) BA (Honours) HED
(University of South Africa) DIuris (University of Amsterdam)
André Mukheibir is a Professor at the Nelson Mandela Metropolitan
University. She has published research in the areas of the law of delict
and the law of damages. She is also an Advocate of the High Court of
South Africa.
Liezel Niesing
LLB (Stellenbosch University)
Liezel Niesing was a Senior Lecturer in the Faculty of Law at Rhodes
University, where she taught the law of delict, legal interpretation,
introduction to law, the law of agency and the law of insurance. She
conducted extensive research on the regulation of euthanasia and
physician-assisted suicide in South Africa, with particular regard to the
impact of constitutional rights and comparative law on the creation of
legal policy for such regulation. She is an Advocate of the High Court of
South Africa.
Devina Perumal
BA (Honours) MA (University of Durban-Westville, now University of
KwaZulu-Natal), LLB (University of Natal, now University of KwaZulu-
Natal)
Devina Perumal is a Senior Lecturer in the Faculty of Law at the
University of KwaZulu-Natal, where she teaches the law of delict, legal
diversity and gender justice and the law. She is an Advocate of the High
Court of South Africa and a board member of the Advice Desk for Abused
Women. She also serves on the Board of the KwaZulu-Natal Network on
Violence against Women, and the Board of Feminist Agenda Media
Network.
Priya P. Singh
BCom (summa cum laude) (University of Natal) LLB (summa cum laude)
(University of Natal) LLM (University of KwaZulu-Natal)
Priya P. Singh is an admitted attorney and notary, and is a lecturer in the
School of Law at the University of KwaZulu-Natal, where she teaches the
law of delict, the law of succession, maritime law and cyber law. She is
currently finalising her doctoral research into developing South African
law to cope with privacy infringements on social media networking sites.
Bernard Wessels
BA (Honours) LLB (Stellenbosch University) BCL (University of Oxford)
Bernard Wessels is a member of the Department of Private Law at
Stellenbosch University, where he teaches the law of delict. He is also an
Attorney of the High Court of South Africa.
Preface
This book is directed primarily at law students and law teachers, and is
intended to be a first reference work on the law of delict. We have of
course set out the legal principles, as other books do, but we also have a
pedagogical objective. We have tried to point out the underlying rationale
and thinking behind some of the concepts, in order to improve students’
understanding and to enhance their problem-solving skills. So, the book
aims to encourage students and lecturers not only to think about the
‘what?’ in the law of delict, but also the ‘why?’ and the ‘how?’ Naturally,
we suggest some answers, but hopefully we have resisted the temptation
to be overly dogmatic. The book should serve as a teaching tool and our
aim is to encourage independent thinking by also pointing to the views of
those who differ with our interpretations.
Even though the law of delict has for centuries been central to private
law, and even though some clear general rules have emerged, there is still
no consensus regarding its nature and purpose and the roles of some of
its core elements. The reason for this, in our view, is that the law of delict
has a strong normative content and tends to reflect the changing norms,
mores and legal convictions of society far more readily than other
branches of the law might. This makes delict a dynamic – and of course
interesting – branch of the law. Its rules are often wide and flexible, and
their application requires consideration of current norms and values, and
conflicting interests.
In this book, we have collated our experience in teaching the law of
delict and we have structured the work to illustrate the framework we
consider best for communicating and understanding delictual principles.
We believe that the law of delict is not only about content, but also about
process, and accordingly we offer a problem-solving process to assist
with the application of the rules to the infinite variety of factual situations
where delictual liability may arise.
The theoretical complexities that we have outlined also impacted on
the writing of this book. Authors with different backgrounds, experiences
and views on delict had to find a common understanding of what we
wanted to achieve with this work. Some theoretical differences might
surface on occasion, but we have hopefully been able to accommodate
everyone’s views. We would like to thank the contributors for their
willingness to accept and work towards our vision. So, the end result is a
team effort that reflects our collective views. The third edition reflects
important cases and statutory changes up to July 2017 and we also
effected some structural changes with the inclusion of a chapter on delict
in a multicultural society and a separate group of chapters at the end of
the book dealing with relevant statutory liability.
We acknowledge and thank Penny Lane, Alison Paulin, and Lindsay-
Jane Lücks who co-ordinated the preparation of the third edition of this
book, and Allison Lamb, the copy editor, who provided stylistic
coherence and consistency.
Max Loubser
Rob Midgley
September 2017
About the book
The Law of Delict in South Africa is a pedagogically rich learning

resource. This book is designed to form a strong foundation of
understanding, to develop the skills to engage independently and
judiciously with legal principles, and to create skilled and proficient
lawyers.
Brief description of features
Pause for reflection boxes: These boxes may consider the policy
ramifications of the law; how it works in practice, its logic and
consistency with other principles, possible alternatives, and other key
issues.
This feature instils a broader and deeper understanding of the
subject matter. It stimulates discussion, supports independent thinking,
and develops the ability to engage meaningfully with relevant issues.
Counterpoint boxes: These boxes highlight specific criticisms of the law

just described and identify reform options. They identify areas of
controversy, problems with current law and possible alternatives.
This feature supports the ability to think critically and flexibly. It
assists students to conceptualise legal issues from various perspectives,
develops skills in formulating legal argument, and builds an awareness of
various opinions about a particular principle.
Terminology boxes: These boxes contain explanations for the words and
phrases that constitute the jargon, or terms of art, which are particular to
the area of study covered in the book. Latin phrases and others are
explained and contextualised.
Diagrams: These provide overviews and explain key concepts visually.

This feature reinforces understanding, helps to clarify key concepts, and
shows more clearly the interrelationship between distinct legal concepts
and processes.
Tables: These are used to clarify and distinguish content, and to aid
conceptualisation where helpful.
Bibliography: A list of reference works appears at the end of the book.

The principal works are confined to South African sources (including
common-law authorities) and are the prominent works of which any
serious student ought to be aware. All works referred to are referenced in
the footnotes.
Permissions and acknowledgements
Chapter 1
Cane extracts: © Cane, P. 1997. The Anatomy of Tort Law. Oxford: Hart
Publishing. Used by permission of Bloomsbury Publishing Plc.
Deakin, Johnston and Markesinis extract: © Deakin, S, Johnston, A and
Markesinis, B. 2013. Markesinis and Deakin’s Tort Law, 7th ed. Oxford:
Clarendon Press. Used by permission of Oxford University Press.
Murphy and Whitting extracts: © Murphy, J and Whitting, C. 2012. Street
on Torts, 13th ed. Oxford, UK: Oxford University Press. Used by
permission of Oxford University Press.
Chapter 3
Nhlapo extracts: © Nhlapo, T. 2017. Customary Law in Post-Apartheid
South Africa: Constitutional Confrontations in Culture, Gender and
‘Living Law’. South African Journal on Human Rights 33(1):1. Reprinted
by permission of Taylor & Francis Ltd, http://www.tandfonline.com
Himonga and Nhlapo extracts: © Himonga, C and Nhlapo, T (Eds). 2014.
African Customary Law in South Africa: Post-Apartheid and Living Law
Perspectives. Cape Town: Oxford University Press Southern Africa.
Reproduced by permission of Oxford University Press Southern Africa
(Pty) Ltd.
Chapter 6
Trinidade and Cane extract: © Trinidade, F and Cane, P. 1999. The Law of
Torts in Australia, 3rd ed. Melbourne: Oxford University Press.
Chapter 9
Walker extract: © Walker, DM. 1981. The Law of Delict in Scotland, 2nd
ed. Edinburgh: Published under the auspices of the Scottish Universities
Law Institute [by] W. Green.
Chapter 33
Heuston and Buckley extract: © Heuston, RFV and Buckley, RA (Eds).
1996. Salmond and Heuston on the Law of Torts, 21st ed. London: Sweet
& Maxwell. Reproduced with permission of The Licensor through
PSLClear.
Chapter 34
McGregor extract: © McGregor, H. 2003. McGregor on Damages, 17th ed.
London: Sweet & Maxwell. Reproduced with permission of The Licensor
through PSLClear.
Chapter 36
Cane extract: © Cane, P. 2013. Atiyah’s Accidents, Compensation and the
Law, 8th ed. Cambridge; New York: Cambridge University Press.
Franklin extract: Republished by permission of Copyright Clearance
Center from Franklin, MA. 1967. Replacing the Negligence Lottery:
Compensation and Selective Reimbursement. Virginia Law Review
53(4):774. Permission conveyed through Copyright Clearance Center.
PART ONE
Introductory overview
CHAPTER 1 Introduction
CHAPTER 2 Delict and the Constitution
CHAPTER 3 Delict in a multi-cultural society

Chapter 1
Introduction
1.1 Introduction
1.2 The nature

of the law of delict
1.3 The premise

1.5.1 Compensate for harm that has been suffered or an interest that has been infringed
1.5.4 Educate and reinforce values
1.5.5 Provide socially acceptable compromises between conflicting moral views
1.5.6 Deter the injurer from behaving similarly in future and to warn and deter others from
behaving in a similar way

1.8 Remedies


1.15 Conclusion
1.1 Introduction
The South African law of delict is a true hybrid. Its genealogy stretches
from the Twelve Tables in Roman Law to the Bill of Rights in our
Constitution.1 At various stages in its history other legal systems have
influenced its principles; most notably, Roman-Dutch law and English
law. However, the influences have on occasion not been compatible with
our law’s Roman-Dutch core foundations, resulting in rules that are
sometimes unclear and contradictory. On the surface, the law of delict
provides a system for compensating those who have been wrongfully
harmed by the culpable conduct of others; but it also expresses society’s
views on what it considers acceptable behaviour, and what it does not. At
the heart of the delictual principles lie society’s legal convictions, or boni
mores, which embody legal and public policy considerations as well as
constitutional rights and norms. These views are not static and continue
to develop over time, and so past expressions of public policy (and also
policy in other jurisdictions) are not necessarily expressions of
contemporary acceptable behaviour in South Africa.
For students, the difficulty often lies not in identifying the principles
of delictual liability, but in applying these principles so that one can
reliably predict likely outcomes for a specific factual scenario. It is this
difficulty that causes some to lack confidence in their ability to resolve
delictual problems. On the other hand, the law of delict also traps the
unwary – those who either forget that delict is inherently a flexible set of
principles that embody social policy, or those who over-confidently and
mechanically apply rules that have been rotelearnt without proper
understanding. The best way to understand delict is to keep reading
cases, to stay abreast of the latest legal developments and to ensure that
the thought processes found in case law become ingrained.
This chapter focuses on:
• Introducing the law of delict
• The nature and purpose of the law of delict
• Issues that relate to the law of delict as an academic discipline, as
opposed to a set of rules for application in practice
• The social significance of delict
• Understanding delictual principles, and deciphering ‘the delict code’
– those mixed messages that unfortunately are found in cases and
textbooks.
The problem-solving process and the tools for isolating the core issues
are as important as the rules themselves. So, this chapter also sets out the
backbones of the various actions, which are expanded in later chapters,
providing a small picture of the bigger puzzle, which this book, hopefully,
will assist readers in building successfully.
1.2 The nature of the law of delict

The law of delict forms part of private law and is primarily concerned
with the circumstances in which a person can claim compensation from
another for harm that has been suffered. The Romans classed it as part of
the law of obligations, because when a delict has been committed,
someone is obliged to compensate another for the harm that has been
suffered.

The enquiry into whether or not a delict has occurred, is in fact a loss-
allocation exercise to determine whether or not the burden should shift
from the plaintiff to the defendant. This point was emphasised in an
earlier edition of Street on Torts:2
Tort is often described as centrally concerned with corrective justice – that is, the
circumstances in which a wronged party is able to obtain recompense or reparation
from a wrongdoer. In consequence, the law of torts is often judged by its success or
otherwise as a compensation system. In simple terms, since most tort actions have
as their objective monetary compensation for a loss inflicted on the claimant by the
defendant, the question that most often arises is ‘who should bear the relevant
cost?’ Should it lie where it falls on the unfortunate claimant; or is the conduct of
the defendant such that the law should shift the loss to him? In the tort of
negligence, and many other torts … , loss fixing is a core issue. Tort’s ‘success’ in
these areas must therefore be judged, at least in part, by its efficacy as a
compensation system.
TERMINOLOGY ‘Tort’ vis-à-vis ‘delict’

‘Tort’ is an Anglo-French word (with Latin origins) used by systems based
on the English common law that describes a civil wrong. Civil law
systems on the European Continent and those systems that retain a
strong link to Roman law, such as Scotland and South Africa, prefer the
term ‘delict’. Originally, this term included both civil and criminal
wrongs,3 but this is no longer the case.

The law of delict, like all other law, forms part of a regulatory framework
for society. Its purpose is also to set standards of behaviour for human
conduct. So, underlying the overt compensatory regime of delict is a
‘hidden agenda’: it also serves a normative purpose and it prescribes a set
of ethical rules and principles for social interaction. Boberg states this
‘hidden agenda’ quite openly in the next passage:4
Law … is a form of social engineering. This is particularly true of the law of delict,
which is close to the core problem of balancing individual freedom against
collective security … .

Underlying delict is a sense of morality and fairness. The law of delict
should give substance to these concepts, and sometimes it requires
judges to decide which conflicting moral principles should be given
practical effect when regulating behaviour in society. As Lord Atkin said
in M’Alister (or Donoghue) v Stevenson,5 possibly the most famous case
in the world:
The liability for (delict) … is no doubt based upon a general public sentiment of
moral wrongdoing for which the offender must pay. But acts or omissions which
any moral code would censure cannot in a practical world be treated so as to give a
right to every person injured by them to demand relief … . The rule that you are to
love your neighbour becomes in law: You must not injure your neighbour … .
The core moral principle upon which the South African system of
personal responsibility rests is that there can be no liability without fault.
There is also strict liability (that is, liability without fault) which expresses
a different morality; one in which society determines whether the nature
of the conduct, or the risk associated with the conduct, is such that a
person should compensate anyone who suffers harm as a result. Cane
concludes:6
Tort law, then, is a complex mixture of principles of personal responsibility for
conduct (whether intentional, reckless or negligent) and personal responsibility for
outcomes (strict liability). Different ethical imperatives underlie these two forms of
responsibility. That underlying conduct-responsibility is not to engage in the
liability-attracting conduct; and that underlying outcome-responsibility is to
compensate for adverse outcomes of the relevant activity. Viewed in this way, tort
liability based on outcome-responsibility is a sort of tax on activities which attract
such liability rather than a penalty for engaging in it. Liability based on conduct-
responsibility, by contrast, implies a disapproval of the liability-attracting conduct
which does not attach to outcome responsibility.
PAUSE FOR Fault liability

REFLECTION Writing from an English law perspective, Deakin, Johnston and Markesinis7 point
out that fault liability stems from the nineteenth-century notion that a person
committing a delict should not only be legally in the wrong but also morally
wrong. This notion corresponded with the moral, social and economic views at
the time. There was also a poorly developed insurance industry, and so
compensation came from the injurer. Therefore, the law of delict served to
compensate, show disapproval of unethical behaviour, and deter harm-causing
behaviour. Fault liability served to limit the scope of liability and ‘meant that
during the period of industrial expansion and increased industrial accidents, an
enterprise could be shielded against the costs of accidents’.8
However, different economic conditions and socio-political views prevail now,
with ideas moving from loss-shifting to loss-spreading functions. For example,
would no-fault regimes for product liability or road accident compensation not
better reflect current societal morality in welfare-orientated states? Would such
strict liability not be less arbitrary and more fair, given that all injured persons
would be compensated irrespective of whether someone else was at fault?
Would it not also be more fair on plaintiffs, who might well be bankrupted by
massive pay-outs?
Nonetheless, Linden and Feldthusen point out that the fault system ‘is
riddled with imperfections; it is costly, difficult to administer, denies
compensation to many injured people, and is replete with delays’; but the
authors also contend that ‘it is also a mark of nobility when a society directs its
members to conduct themselves reasonably in their relations with their fellow
citizens or pay for the consequences’.9
1.3 The premise

A famous American judge, Oliver Wendell Holmes, wrote that ‘sound
policy lets losses lie where they fall, except where a special reason can be
shown for interference’.10 Our courts adopt the same principle and when
considering whether delictual liability ought to be imposed, the starting
point is always that loss should lie where it falls.11 This means that as a
general rule, plaintiffs must suffer the infringement of their interests and
bear any financial loss associated with such infringements; unless they
can show that there is a special reason for shifting the burden of making
good any loss to someone else. The special reason for reallocating the
loss arises when a plaintiff proves all the elements of a delict. These
elements are discussed in more detail later in this chapter and in the rest
of the book.

Definitions of a delict vary according to authors’ views of the legal
framework governing the law of delict. Consider the following
definitions:
Van der Merwe and Olivier:12

A delict is understood to be a wrongful and culpable act that causes another harm
or infringes another’s personality interest. Within this realm of the law of delict
belong all the rules that determine the private-law liability of a person who has
caused harm or a personality infringement to another in a wrongful and culpable
way.13
Boberg:14
Van der Merwe and Olivier regard fault as an essential characteristic of delictual
liability, so that instances of no-fault liability (such as liability for damage caused by
animals and the vicarious responsibility of a master for the delicts of his servant)
are in their view not delictual, but arise ex variis causarum … . For the same reason
an interdict (which can be obtained without showing fault) does not seem to them a
delictual remedy … . There seems to be no warrant for this curtailment of the ambit
of delict … .
Neethling, Potgieter and Visser:15

Boberg … defines a delict as the ‘infringement of another’s interests’. This
description is, however, both incomplete and misleading. On the one hand there is
an omission to state fault as a general delictual requirement, and on the other hand
the erroneous impression is created that all individual interests, and not only those
that are legally recognised and protected, are relevant in this regard.
Van der Walt and Midgley:16

In general terms a delict can be defined as a civil wrong … . A narrower definition
considers a delict to be wrongful and blameworthy conduct which causes harm to a
person.
Although these authors define delict differently, these extracts show that
delict is part of civil, or private, law. (In fact, together with the law of
contract, it is one of the central features of the law of obligations.) It deals
with situations in which one person has wronged another, and sets the
rules for determining whether the person whose interests have been
infringed should have a remedy against the wrongdoer or another person
in respect of the harm caused. Only those infringements that the law
recognises as worthy of compensation will result in liability. In most
instances, the law insists that a wrongdoer or person from whom
compensation is sought should also be at fault. However, in some
instances, society considers fault not to be an element and liability is said
to be strict.
PAUSE FOR The definition of a delict

In these extracts, the authors appear to be talking past each other, with some
REFLECTION
talking about delict as a concept and others talking about the requirements of
delictual liability. If this duality of meaning is accepted, would Neethling,
Potgieter and Visser’s criticism of Boberg’s view still be valid?
Van der Merwe and Olivier equate delictual liability with fault liability and
treat instances of no-fault liability as exceptions to the rule. Others define delict
more broadly, to include instances of no-fault liability. Does this really matter?
Are these not merely differences of approach, which in practice have no bearing
on the outcome?
All these extracts also root delict in the common law. None of them refer to
statutory liability, for example, liability under the Electricity Regulation Act 4 of
2006, the National Nuclear Regulator Act 47 of 1999, or the dispensation set
out in the Road Accident Fund Act 56 of 1996, as part of the law of delict.
Should this be so? Is there a case for including at least some of these statutory
liability or regulatory regimes in the definition of delict?

According to Cane, the functions of delict ‘are those purposes or ends
which people seek to further or achieve through tort law’.17 However, in
isolating these purposes, it is worth remembering that the law is not static
and that ideas may fluctuate over time. Deakin, Johnston and Markesinis
note:18
The aims of the law of tort [delict] have changed throughout its history:
appeasement, justice, punishment, deterrence, compensation, and loss-spreading
can be counted amongst them. None of them has offered a complete justification
for the law … . Overall, however, it can be said with some measure of confidence
that at different stages of development of tort law one of its functions may have
been more prominent than the rest. Moreover, each in its historical setting reveals
something about the socio-economic and philosophical trends of the day.
From the information so far, one can isolate the following inherent
functions of the law of delict, some of which articulate wider social goals
and others that relate to those who are party to a specific action.
1.5.1 Compensate for harm that has been suffered or an

interest that has been infringed
Compensating for harm is the primary, but not the sole function of the
law of delict.19 At the same time, one should recognise that delict is not a
victim’s only source of compensation – insurance, social security and
statutory compensation schemes play a similar role – and one should not
over-estimate delict’s ability to serve as a compensatory mechanism,
especially since the civil proceedings are cumbersome, time-consuming
and costly.20 While compensation in the form of damages may be
significant, financial costs are high and only a small number of people
benefit from this system.
COUNTER Does delict provide the most appropriate compensatory mechanism?

Consider the following:
POINT
• The common law of torts in the United Kingdom has been criticised as
being ineffective in its principal aim of compensating harm especially in
cases arising from personal injury, disease and death.21 Dissatisfaction
with the operation of the tort system received widespread academic
attention during the 1960s and 1970s.22 During the same time, mass tort
litigation drew public attention to the clumsy, time-consuming and costly
nature of obtaining compensation by instituting civil proceedings.23
• Since 1972, New Zealand has had a statutory compensation scheme for
personal injuries,24 which partially replaced the common law with a
general compensation scheme providing compensation for harm resulting
from all accidents and some diseases.25 The rationale was that this would
address the concerns about the high transaction costs of the civil litigation
system.
• Against this background, Deakin, Johnston and Markesinis suggest26 that
tort claims represent only around 25% of all compensation paid out in the
United Kingdom. In other words, approximately 75% of victims’
compensation comes from other sources, for example, insurance, social
security and statutory compensation schemes.
• In a similar vein, Atiyah’s Accidents, Compensation and the Law,27 citing
figures contained in the Pearson Report,28 suggests that approximately
6,5% of injured persons in the United Kingdom receive compensation via
tort claims, although the payments amount to almost 50% of the total
compensation paid and account for about 40% of the total cost
(payments and administration).29
• Figures for South Africa are not known, but they are likely to show similar
trends.
Is it fair to say that delict is a ‘slow, cumbersome and expensive’ compensatory

mechanism? What other sources of compensation exist in South Africa? Are they
more efficient? Would a statutory compensation scheme similar to the one in
New Zealand be more efficient than the common law in providing compensation
for harm suffered?

Where activities take place in a common space and sometimes compete
with one another, social and business interactions can give rise to
tensions. These are usually tolerated, but where interests are impacted
upon, the law offers protection, but only where it is socially desirable to
do so. At first the law protected personal security and personal property,
and particular infringements of personality. In time, as society became
more sophisticated and demanding, and as our ability to understand
intangible interests improved, the scope of protected interests expanded
to include:
• Mental health in the form of pain and suffering in relation to physical
injury
• Mental health (psychiatric interests) generally
• Business interests, such as goodwill and customer bases
• Interests that are purely economic
• Personality interests such as privacy and identity.
However, the law of delict is not an exclusive vehicle for protecting

victims’ interests. In some instances, courts consider victims’ interests
secondary to the interests of defendants (for example, when recognised
defences such as self-defence or fair comment are present).30 In other
instances, society’s interest prevails, for example, when courts deny
claims because there is a need to limit the scope of delictual liability.
Delict protects personal and property interests by either holding or
threatening to hold people to account. It enables society to call upon
police and other government organs to be more responsible,
manufacturers to produce safer goods, and professionals to provide
quality services.

Delict promotes social order and cohesion by resolving particular types
of disputes, ensuring justice between the parties, keeping the peace and
preventing self-help. Initially, in Roman law, where the law of delict was
seen as a supplement to criminal law, the purpose of delict was to buy off
a victim’s vengeance rather than compensate.31 Delict has since lost its
quasicriminal function, yet it still aims to vindicate, satisfy and appease.
A delictual remedy, therefore, serves as a type of ‘ethical retribution’32 in
some instances; but one cannot apply such moral vindication where
liability is strict, or even in some instances of negligent conduct where
fault is more a statistical inevitability than a form of ‘immoral’ behaviour.
PAUSE FOR Punishment

Although it was a strong feature in Roman times, punishment is not listed here
REFLECTION
as a separate function of the law of delict. However, there is still some
controversy in modern law as to whether delict has a punitive function. There is
no doubt that both the lex Aquilia and actio iniuriarum of Roman law were penal
actions that prescribed penalties for wrongful conduct. In Roman-Dutch law, the
lex Aquilia became purely compensatory, but the penal features of the actio
iniuriarum remained. There is a view that this situation is still in place today and
it is possible to find older cases that awarded additional sentimental damages as
a penalty for conduct that was especially outrageous. More recent cases,
including some decided by the Constitutional Court,33 view such a purpose as
unjustifiable in a modern system of law. On this view, the function of delict is
primarily to compensate; and of criminal law, to punish.
Should this be the case? How does one explain the fact that courts award
larger sums in damages when the facts indicate that the delict committed is
more serious than in other instances? Would a punitive delictual system
withstand constitutional scrutiny? Note that in the American system, and to a
lesser extent in the English system, courts may award punitive damages over and
above compensatory damages. Should South Africa follow suit?
1.5.4 Educate and reinforce values34

Delict is a complex mixture of principles of personal responsibility for
conduct and outcomes. So, an important aim of the law of delict is to
articulate a set of normative rules of behaviour, to provide guidance to
individuals on how they ought to behave, and to express disapproval of
certain types of conduct. According to Linden and Feldthusen,35 the
‘fundamental goal is individual restraint and respect for one’s fellow
creatures, something which is required more than ever in mass urban
societies.’ Also, now more so than before, delict serves to uphold and
vindicate fundamental human rights.
1.5.5 Provide socially acceptable compromises between

conflicting moral views
There are often a number of morally acceptable approaches to a
particular issue, usually based on different points of departure. One
example is the conflict between maintaining a person’s dignity and
freedom of expression. The issue in such instances is not to prefer or to
deny either of these moral outcomes, but to resolve each particular
conflict by balancing these rights and freedoms in the circumstances in a
socially acceptable way.
1.5.6 Deter the injurer from behaving similarly in future

and to warn and deter others from behaving in a
similar way
While one of the functions of delict is to deter people from behaving in a
certain way, the extent to which delict achieves this objective is open to
doubt. For example, people probably think more carefully about what
they say about others because of the law of defamation, and the size of a
damages award, if publicised, might impact on the way others behave.
However, this would mainly be limited to intentional conduct and some
instances of negligent conduct, such as negligent misstatements, product
liability or professional negligence. Some drivers of motor vehicles might
drive more carefully, but one cannot say for sure whether it is delict or
criminal law, or both, that constitute the deterrent. In any event, the
extent of reckless and/or negligent driving, and driving under the
influence of alcohol that occurs on our roads might indicate that the
deterrent effect is a myth, or of a very low order.36 Also, for deterrence to
be considered an effective function, one would have to assume that
people consistently behave rationally, weighing up the potential
consequences of their conduct before proceeding.
PAUSE FOR Deterrence in delict

The vast majority of delict cases involve traffic accidents, most of which ‘result
REFLECTION
from regrettable, but statistically inevitable, lapses of attention’.37 What role
does deterrence play in such cases, and to what extent is this deterrent function
diluted when someone is very rich, or too poor to pay, or is covered by
insurance?

Reallocating losses from victim to injurer is a generally accepted function
of delict, but the idea that delict should also spread losses is
controversial, for then neither the victim nor the wrongdoer would bear
the responsibility for the harm if others have to share the responsibility of
repairing it. Nonetheless, there are instances of loss-spreading in the law
of delict. An oft-cited rationale for vicarious liability is that someone with
deeper pockets than the wrongdoer – for example, a person’s employer
who benefits from the employee’s services – is better placed to
compensate the victim.
PAUSE FOR Loss-spreading

An example of spreading loss is the compensation fund established under the
REFLECTION
Compensation for Occupational Injuries and Diseases Act 130 of 1993. In terms
of the Act, employers are statutorily obliged to contribute towards a statutory
compensation fund and the money in the fund is then used to compensate
employees who became injured or diseased during the course and scope of their
employment. Therefore, the loss of occupational injuries and diseases is spread
between employers generally who, in turn, are no longer required to compensate
employees who may become injured or diseased as a result of their culpable
wrongdoing.
Cane argues 38 that delict is primarily a system designed to ensure

personal responsibility for one’s conduct. Delict is not, he says, a social
welfare system, although he accepts that it partly serves to further
‘desirable human and social goals.’ For Cane, ‘the ability of a party to
spread losses by insurance or passing-on is not the basis of a principle of
personal responsibility’. 39 Linden and Feldthusen similarly argue 40 that
tort (delict) was not designed to undertake loss-spreading, and those who
advocate that all losses should be made good, move outside the realm of
delict and enter the domain of social welfare.
The advocates of loss-spreading as a delictual function use vicarious
liability to justify their view, pointing to its rationale that employers are
better placed to ensure against employees’ delicts. They also point to
strict liability regimes for product liability, where manufacturers are
better placed than individual consumers to spread losses by means of
insurance. Cane counters this by saying that one could equally find
justification for vicarious liability in the principle of personal
responsibility and argues that delict:
by reason of its structure, is not well-designed to perform this function … .41 If the
court were allowed to go beyond those two parties (the victim and the injurer), it
might identify a much better loss spreader than either of them.42
Linden and Feldthusen agree:43

[Tort recovery] is welcome enough if there is nothing else available, but if full and
swift compensation is the only task of tort law, it should be replaced by something
else less costly and less dilatory.
COUNTER What role should insurance play in determining delictual liability?

POINT The Australian High Court noted in Kars v Kars:44
[C]ompulsory insurance has for many years and in most litigated

motor vehicle injury cases, … substituted the deep pocket of an
insurer for what may be the empty pocket of the tortfeasor as the
source of the injured party’s recovery.45
Whether this holds true for South Africa is moot, for there is no clear evidence
that courts take a pro-plaintiff stance in Road Accident Fund cases, making delict
an instrument of a welfare-orientated state. However, outside the area of
compulsory insurance, it is clear that the existence of insurance, or the ability to
insure, is usually disregarded and so a person might conclude that loss-
spreading is not considered to be one of delict’s functions.
The question of whether our society has changed sufficiently over the years
to warrant loss-spreading as an additional purpose, still remains. The Supreme
Court of Appeal has, however, noted:46
It would be fair to say that there has been great expansion in recent
years of the use of independent contractors, and out-sourcing in the
place of employees. It is unlikely that vicarious liability for servants
would ever have developed if servants as a class had been capable of
paying damages and costs. The historical rationale for imputing
liability to a master, namely that they had deeper pockets hardly
applies, I daresay, to most modern contractors, who may in fact be
wealthier than their principals. Where both principal and independent
contractor are large firms or covered by insurance, the incidence of
liability may not matter much. But where the principal is an individual
without insurance, the imposition of liability upon him may cause
grave hardship. From the point of view of a plaintiff, the only case in
which the liability of a principal is advantageous is where the
independent contractor is unable to pay damages. Whether indeed
this situation is sufficiently frequent to warrant provision being made
for it must be open to doubt, particularly when it adds so greatly to
the difficulty of the law. Courts have to be pragmatic and realistic,
and have to take into account the wider implications of their findings
on matters such as these ….

People are able to insure against losses or harm that they might suffer,
including loss or harm caused by a delict. In theory, a victim of a delict
who has also taken out indemnity insurance, has both a delictual action
against the wrongdoer and a contractual claim against the insurer. The
insured person will be entitled to both the damages recovered from the
wrongdoer and the proceeds of the insurance claim. However, in the case
of indemnity insurance, an insured person who has instituted a delictual
claim against the wrongdoer and succeeded in recovering damages equal
to, or in excess of the insured amount, is obliged, in terms of the
indemnity insurance contract, to repay to the insurer any amount he or
she had received under the contract. This is done to prevent the insured
receiving double compensation.
The doctrine of subrogation, which seeks to prevent double
compensation and to ensure that wrongdoers take some form of legal
responsibility for the harm they have caused, is also relevant in this
context. In terms of this doctrine, an indemnity insurer may institute a
delictual action against a wrongdoer in the name of the insured person,
without cession of action; provided that the insured person has not
claimed damages from the wrongdoer. The doctrine also entitles an
insurer to limit or exclude liability by defending delictual claims in the
name of the insured person.
In Commercial Union Insurance Company of South Africa Ltd v
Lotter 47 the Supreme Court of Appeal described the operation of the
doctrine of subrogation as follows:
It is trite law that an insurer under a contract of indemnity insurance who has
satisfied the claim of the insured is entitled to be placed in the insured’s position in
respect of all rights and remedies against other parties which are vested in the
insured in relation to the subject-matter of the insurance. This is by virtue of the
doctrine of subrogation, which is part of our common law.
The doctrine of subrogation means that insurance companies in fact

conduct many delictual actions ostensibly instituted by the person who
suffered harm, or ostensibly defended by the wrongdoer. In many such
cases, a person would not have instituted delictual action if indemnity
insurance did not exist.
PAUSE FOR The effect of insurance on delict’s deterrence function

REFLECTION Linden and Feldthusen argue:48
The advent of liability insurance has removed some of [delict’s]

prophylactic power because the civil sanction is rarely applied
against the tortfeasors themselves. When a judgment against an
individual is paid by the individual’s insurer, whatever preventive
force tort law retains is further enfeebled.
• Does indemnity insurance reduce delict’s deterrent effect?

• Are all losses covered by insurance? Are there circumstances in which
insurance cover can be refused or forfeited and where delict would provide
the only compensatory recourse?
• Would insurance influence delict in instances of contributory negligence,
where compensation claims are not paid out in full? (The defendant might
be assisted, but the contributory negligent plaintiff would not be.)
• Are there ways in which insurance companies can influence their insured
persons to behave more carefully? What deterrent mechanisms are
available to insurers?

The internet and electronic revolutions have created novel opportunities
for people to commit wrongs against others. There is no statutory
provision regulating compensation for harm caused through the use of
electronic media and this begs the question as to whether or not
traditional delictual principles are appropriate for dealing with legal
issues associated with cyberspace. Courts are increasingly confronted
with ‘cyber-delicts’, where harmful material is found on websites,
Facebook, emails and SMS messages, primarily in the fields of
defamation49 and invasions of privacy and identity.50 However, it is only a
matter of time before courts are confronted with patrimonial harm issues
such as unfair competition, product liability and for causing pure
economic loss in the cyberspace arena.
Thus far, courts have found the common law sufficiently flexible in
dealing with cyberspecific delicts. In the same way as Roman and
Roman-Dutch law evolved to cope with demands emanating from the
industrial revolution, so too has there been no need to deviate from
standard principles in the technological era and courts are still able to
perform their loss reallocation and compensation functions satisfactorily.
In many of the chapters that follow, readers will find examples of
how courts have adapted the law to modern situations while still
remaining faithful to delict’s historical roots.
1.8 Remedies
The usual remedy when a delict has been committed is compensation,
that is, to claim damages for the harm that has been caused. Another
commonly sought remedy is the interdict, where a person seeks an order
to prevent existing harm from continuing, or to prevent threatened harm
from occurring. However, strictly speaking, an interdict is not a remedy in
terms of any of the actions, because when a person asks for an interdict,
that person is not seeking compensation, but is trying to prevent loss. So,
all the elements of delict, except the loss requirement, must be present
for courts to grant an interdict. More recently, courts have also explored
retraction and apology as a delictual remedy.
In Roman law there were a variety of separate civil wrongs, each with
its own rules. In time, almost all of these became subsumed under the
actio legis Aquiliae and the actio iniuriarum, causing McKerron to
declare:51
The result is that today the Aquilian action and the actio iniuriarum are the
foundation-stones of the law of delict – the former having become the general
remedy for wrongs to interests of substance, the latter, as in the old law, affording a
general remedy for wrongs to interests of personality.
This statement is not entirely accurate however, as it fails to mention the

Germanic remedy for pain and suffering that later became part of our
law. Therefore, it is better to say that in seeking remedy, one should
proceed with the actions set out in Table 1.1.
Table 1.1 Actions to keep in mind when seeking remedy
Form of harm Action taken
Patrimonial loss (damnum iniuria datum) Actio legis Aquiliae
Non-patrimonial harm in the form of pain and suffering or loss in the amenities of The Germanic action
life associated with bodily injury to the plaintiff and psychiatric injury for pain and suffering
Non-patrimonial harm in the form of an injury to a personality right (an iniuria) Actio iniuriarum
PAUSE FOR Union Government (Minister of Railways & Harbours) v Warneke52

REFLECTION Innes J said:53
That being so, it becomes necessary to consider the fundamental

features of this form of action which have a bearing upon the matter
before us. And we are at once faced with the fact that it was
essential to a claim under the lex Aquilia that there should have been
actual damnum in the sense of loss to the property of the injured
person by the act complained of … . In later Roman law property
came to mean the universitas of the plaintiff’s rights and duties, and
the object of the action was to recover the difference between that
universitas as it was after the act of damage, and as it would have
been if the act had not been committed … . Any element of
attachment or affection for the thing damaged was rigorously
excluded. And this principle was fully recognised by the law of
Holland. As pointed out by Professor De Villiers …, the compensation
recoverable under the lex Aquilia was only for patrimonial damages,
that is, loss in respect of property, business, or prospective gains. He
draws attention to the clear cut distinction between actions of injuria
(where intent was of the essence), and actions founded on culpa
alone. In the former case compensation might be awarded by way of
satisfaction for injured feelings. In the latter, all that could be
claimed was patrimonial damage, which had to be explicitly and
specifically proved. The difference between the two forms of relief is
emphasised by Voet …, who states that where one and the same act
gives ground for both actions, the receiving of satisfaction for the
injuria does not bar the claim for patrimonial loss resulting from the
culpa. The award of compensation for physical pain caused to a
person injured through negligence, which was recognised by the law
of Holland, constitutes a notable exception to the rule in question.
Professor De Villiers has some interesting remarks upon this position,
which was probably the result of the influence of Germanic upon
Roman law. But however that may be, there is no warrant for any
such exception in the case of mental distress or wounded feelings
causing no physical injury. Damages calculated on that basis were
wholly outside the scope of the Aquilian procedure.
Even though delict is based on the three pillars outlined in Table 1.1, there is
no need to specify which action one relies upon and to claim separately under
each of them. Common practice is to claim redress in a single composite action,
but only if the requirements of the action appropriate to the type of interest
infringed have been met.
COUNTER The modern law of delict

POINT Neethling, Potgieter and Visser:54
In contrast to the casuistic approach of the Roman law of delict, the

South African law of delict is based … on three pillars: the actio legis
Aquiliae, the actio iniuriarum and the action for pain and suffering.
Unlike the last-mentioned action which developed in Roman-Dutch
law, the first two remedies had already played an important role in
Roman law.
Van der Walt and Midgley:55
Delict lawyers can no longer focus purely on common-law principles

and treat the Constitution as an imposition, or at best an adjunct to
those principles. Mention was made in the ‘Preface to the Second
Edition’ that the Bill of Rights would in time become the fourth pillar
upon which our Law of Delict will rest. Recent decisions of both the
Constitutional Court and the Supreme Court of Appeal have shown
that constitutional principles and values are now an integral part of
the fabric of the law of delict and must find expression in the basic
principles of delict.
Is it correct to say that the Constitution ranks as a fourth pillar? Is the

Constitution a source of law, setting out rules of liability in the same way as the
Roman and Roman-Dutch actions do?
Consider the following extract from Street on Torts, with reference to English
law: 56
Tort law has always protected certain ‘human rights’. Indeed, tort
disputes are by definition about the competing claims of persons to
protected interests and we might well denominate the more
frequently upheld interests as ‘rights’… The enactment of the [United
Kingdom] Human Rights Act 1998 significantly ‘enhanced’ this
protection (most immediately with respect to actions of public
authorities) … Indeed, the Act’s passing prompted academics and
judges almost immediately to rethink the boundaries and substance
of tort law …
Are there parallels with the situation in South Africa following the adoption of the
Constitution? Does the passage in Street on Torts in any way support the notion
that one should consider the Bill of Rights as a source of delictual rules? Can
one say that the modern law of delict is merely an expression of age-old
concepts in a constitutional state?

Over the years, it became accepted that delictual liability in our law is
based upon a set of general principles derived from the Roman and
Roman-Dutch law actions: the actio legis Aquiliae, the actio iniuriarum
and the Germanic remedy for pain and suffering, with modifications as a
result of English law influence. Neethling, Potgieter and Visser refer to
this as a ‘generalising’ approach, whereby ‘general principles or
requirements regulate delictual liability’. 57
The Anglo-American common-law systems are different. While their
law also developed out of various actions, these actions did not lose their
identity. As a result, these systems contain a series of separate torts, each
with its own name, set of principles and technical distinctions, for
example, the tort of negligence and the tort of breach of a statutory duty.
Neethling, Potgieter and Visser refer to this as a ‘casuistic’ approach,
whereby liability arises only if the requirements of a specific delict are
satisfied.58
The civil law systems in European law also adopt the generalising
approach. Their civil codes contain a few general principles that courts
apply to particular factual situations,59 unlike in the common-law
countries, where facts need to fit technical requirements resembling
formulae.60 In such a system, precedents are not as important as in the
common law, for one can treat new situations on principle and do not
have to fit them into previously established categories.
The doctrinal untidiness that accompanies the casuistic approach
has caused common-law lawyers to reflect on whether it is better to have
a system of tort, instead of a system of torts. This is not a new debate –
over the years great scholars such as Williams, Salmond, Winfield and
Pollock have been involved – but, while the end is not in sight, the
casuistic system continues to find favour. So, for example, while Fleming
appears to be critical, he settles for the traditional approach because of
‘the futility of seeking to impose a spurious unity upon a very complex
congeries of problems’ where different interests with different social
values call for different methods of resolution.61 Cane, on the other hand,
sees the law of tort as ‘a system of ethical rules and principles of personal
responsibility for conduct’ and is more partisan.62 The law of tort, he says,
has both backward-looking functions (the resolution of disputes and
provision of remedies) and forward-looking functions (guiding citizens
on what behaviour the law allows and prohibits). A system of discrete
and disparate torts fails to provide a coherent ethical foundation for
personal responsibility and the necessary guidance for resolving future
disputes.63
COUNTER The South African approach

POINT The following statement, made in Perlman v Zoutendyk,64 has often been cited
as summing up the South African approach:
Roman Dutch Law approaches a new problem in the continental

rather than the English way, because in general all damage caused
unjustifiably (injuria) is actionable, whether caused intentionally
(dolo) or by negligence (culpa).
Is this statement a valid reflection of our approach? Consider the following:

• The actio legis Aquiliae, the Germanic remedy for pain and suffering, and
the actio iniuriarum have different requirements, particularly in respect of
the fault element, and there are also instances of strict liability.
• Specific rules for particular types of cases are emerging. Even though they
are all infringements of personality rights, the requirements for liability for
assault, deprivation of liberty, insult and defamation have evolved
differently, as have liability for psychiatric injury and unlawful competition
under the Aquilian action.
• The Supreme Court of Appeal appears to favour a view that fault is a
primary driver of the wrongfulness enquiry and that different rules should
apply where harm is caused negligently from those that apply when the
same type of harm is caused intentionally.65
• Should there be uniform general principles of Aquilian liability instead of
different rules for intentional and negligent delicts within the pillars?
Doctrinal fragmentation occurs when peculiar rules are devised for
particular situations. Although some differences are inevitable, it may be
preferable to strive for similar rules for all situations. Since a particular set
of facts (for example, a severe physical assault) can give rise to a claim
under any of the three delictual actions, perhaps one should seek
coherence across the broad spectrum of the law of delict. Additionally,
since the same set of facts might infringe separate rights to dignity,
privacy and reputation, should the principles under the actio iniuriarum
not be consistent, so that similar criteria can apply to similar situations?
Neethling, Potgieter and Visser may have the answer. They state:66
Supplementary to the generalising approach, it is, after all, a

secondary characteristic of our law of delict that specific forms of
delict with their own specific rules have evolved in order to promote
the practical utility of general principles in given fields of delictual
liability … . Here, the casuistry and detail of the ‘law of torts’ have
fulfilled an important and beneficial role. This blend of the ‘general’
and the ‘specific’ constitutes the hybrid character of our law of delict,
in which Roman-Dutch law and English ‘common law’ have been
merged into a harmonious unity … .
One could perhaps also have regard to criminal law, which is known to have a
set of general principles informing a series of disparate specific crimes. Is this
the direction in which South African law could be heading?
In this book, we adopt the view that a principled approach to the law of
delict best provides consistency and clarity in applying our law. This is
not only for the sake of doctrinal tidiness, but also because a proper
framework enables lawyers to predict potential outcomes better and
advise clients with a greater degree of certainty. Figure 1.1 sets out,
perhaps provocatively, a conceptual structure for the law of delict and the
interrelationship of the various loss-allocation components. Notice (a)
that the diagram shows that the law of delict is not limited to instances of
fault liability and (b) that other compensation regimes, although
relevant, and even crucial to an overall compensatory framework, fall
outside its ambit.
Figure 1.1 A conceptual structure for the law of delict and the interrelationship of the various loss-allocation
components

A persistent theme throughout this book is that it is the nature of the
plaintiff’s interest that has been infringed, and not the nature and quality
of the defendant’s fault, that sets the stage for the delictual problem-
solving process.67 Murphy, for example, notes: 68
In the first edition of this work, Street’s emphasis on the claimant’s interests as
opposed to the defendant’s wrongdoing was perceived as radical, even bizarre …
Certainly, no claim in tort can succeed, however morally reprehensible the
defendant’s conduct, unless the court first recognises some form of harm suffered
by the claimant that involves a violation of an interest sufficient to confer on the
claimant a legal right to protection of that interest.69
Although seemingly innocuous, this simple reality is not always

recognised and does not necessarily have universal favour.
However, delict is not only concerned with a plaintiff’s interests, as
Cane points out:70
Because of its correlative structure, tort law is concerned with the interests of
defendants as well as those of plaintiffs, just as it is concerned with the conduct of
both. Furthermore, because the rules and principles of tort law are of general
application, and because tort law is a publically enforceable set of ethical rules and
principles of personal responsibility, wider social interests are relevant to defining
the scope of tort liability.
So, the law of delict is concerned with protecting the interests of

plaintiffs, defendants and society in general, and where these interests
conflict, delict tries to reconcile them in an optimal way. It does so at a
variety of levels. For example:
• A decision to recognise a class of plaintiffs, and to give them title to
sue – for example, allowing juristic persons to sue for defamation
where financial prejudice might be suffered – is the result of a policy
decision to protect particular interests of such plaintiffs.
• Societal interests predominate when the nature of liability – fault in
the form of negligence or intention, or strict liability – is chosen for a
particular category of claims.
• Societal interests also predominate when courts restrict the ambit of
the law of delict by refusing concurrent claims where relief might be
sought in either delict or contract, or delict and administrative law.
All three categories of interests come into play when a decision is made
as to the type of harm that is actionable in delict, for example, deciding
whether:
• Grief and inconvenience should be compensated
• Conduct is wrongful or whether a ground of justification is available
to the defendant
• The conditions for factual and legal causation have been satisfied.
The fault requirement focuses more on the defendant’s interests,

although the standards that society sets and expects are inherent in the
decision. All three sets of interests feature strongly when deciding upon
the nature of the remedy available (punitive damages, retraction and
apology), the level of compensation to be paid, and how damages should
be apportioned.
Almost every milestone along the decision-making process involves
a decision that concerns whose interests, and which interests, ought to
predominate. The common theme is that in all instances, society’s
interest is the deciding factor. Sometimes these overlap with those of the
plaintiff, sometimes they fall towards the defendant’s side, while in a few
instances the policy decision is a systemic one made irrespective of the
parties’ interests.
The range of interests that are protected is vast, and includes both
existing and future interests. Delict protects one’s person and
personality, and one’s physical and non-physical property, such as
intellectual property interests. The range is not limited to those interests
that exist in one’s personal sphere: business, trading, and other economic
interests and consumer interests are similarly protected.
Irrespective of their nature or their origin, the types of interests that
the law of delict seeks to protect from invasion fall into the categories in
Table 1.2.
Table 1.2 The types of interests that the law of delict seeks to protect from invasion
Type of interest Method of protection
Property (including Provided that they result in some diminution of a person’s patrimony or estate,
physical and invasions of any corporeal or incorporeal property interests, whether existing or
intellectual anticipated, will be protected by the Aquilian action (actio legis Aquiliae). This means
property, that these interests receive strong protection, similar to bodily interests, against both
dependants’ negligent and intentional invasions.
maintenance
rights, current and Should a domesticated animal cause harm to property, the actio de pauperie provides
future profits, that the owner of the animal will be strictly liable for the loss. Plants, crops and
goodwill, and pastures are additionally protected against damage caused by trespassing
inheritances) domesticated animals, in which event the owner of such animals would be held strictly
liable in terms of the actio de pastu.
Person The importance of protecting persons against invasions of bodily integrity is reflected in
the fact that all the delictual actions focus in some way on protecting bodily integrity.
Compensation for financial expenditure incurred as a result of bodily harm is given the
widest scope for recovery in the fault-liability system. One can claim under the actio
legis Aquiliae in respect of both intentional and negligent invasions, and also under the
actio de pauperie for any such harm caused by domesticated animals, in which case
the owner is strictly liable.
One can also claim under the actio iniuriarum in instances where one has not suffered
financial harm, but only if the invasion of one’s bodily integrity was intentional. The
scope of protection in respect of an assault, for example, is therefore less when there is
no financial impact, i.e. no patrimonial harm. However, because of the value that
society places on people’s liberty, courts give greater protection in instances involving
unlawful deprivation of liberty. (The exact nature of such protection – whether liability is
strict or based on a variation of the intention element – will be raised later.)
Personality Mere invasions, provided that they are done intentionally, may result in compensation
(including dignity, under the actio iniuriarum. The scope of liability under the actio iniuriarum might be
privacy, identity broadened in future, however. There are indications that courts might favour liability
and reputation) based on negligence in privacy and defamation cases, in which event the plaintiff’s
personality interests would receive greater protection than before, on a par with those
patrimonial interests protected under the actio legis Aquiliae.
However, where such invasions also result in patrimonial harm, i.e. financial loss, one
can claim additional compensation under the actio legis Aquiliae. In the latter event,
one would be protected against both intentional and negligent invasions.
Psyche (including This category ranges from injury to a person’s nervous system, through to the physical
the entire pain experienced with physical injury, anxiety and mental distress, to the reduction in
spectrum of a enjoyment of life because of discomfort, inconvenience and humiliation. Where
person’s infringements of such interests result in financial harm, the actio legis Aquiliae offers
psychological the appropriate protection, while the Germanic remedy for pain and suffering is the
health and mental appropriate vehicle for compensating pain and suffering, and loss of a person’s full
tranquility) pleasure of living.
If the injury was caused intentionally, one could also institute a claim under the actio
iniuriarum for invasion of bodily integrity.
Always bear in mind, however, that delict also protects the interests of
defendants. Our society acknowledges that in some instances a person
can cause harm to another without having behaved unlawfully; for
example, when acting in self-defence or out of necessity, or when in an
emergency situation. Our society also values free enterprise and freedom
of speech, so any compensatory regime must protect the interests of
persons who exercise their rights within lawful bounds.
The law of delict needs to recognise and balance the interests of both
the plaintiffs and defendants, and so, one can also look at these
competing interests from another angle: the value that society ascribes to
them and the level of protection that society affords them. In short, the
more important society regards a plaintiff’s particular interest, or the
more important that interest is when compared to the interest of the
defendant or other members of society, the easier the rules are for
claiming protection. The most important policy decision in this regard
centres on the form of fault that should be required in protecting
particular interests. The nature of the fault depends upon moral, social
and economic considerations, and the value that society places on the
competing interests (for example, dignity versus freedom of expression),
but more particularly on the nature of the interest infringed.71 The policy-
making decision goes along the following lines:72
Where society believes that a plaintiff’s interest far outweighs that of the defendant
(or that society’s interest in protecting the plaintiff outweighs its interest in
protecting the defendant), strict liability is imposed. Where the balance is more
even, but the plaintiff’s interest in receiving protection is still considered to be more
important than the defendant’s interest, liability is fault based, and includes both
intention and negligence. In instances where the conflicting interests are closely
matched, liability is limited to deliberate or intentional invasions. In short, the
stronger the defendant’s, or society’s interest in supporting the defendant’s
situation, the narrower the fault element becomes.

In delict one finds five core ‘umbrella’ elements of liability (Figure 1.2),
irrespective of the common-law action that underpins a particular claim.
However, in delving deeper one finds that these concepts have been
modified to give expression to the purpose of each particular action, and
the nature of the interests that they are designed to protect. These
elements might be expressed differently to suit the particular action, but
they are always there.
Figure 1.2 The five core elements of liability found in delict
The passage also frames the elements of a delict differently from the way
in which they are generally conceived. This is done deliberately, to
introduce readers to the thought process required when problem-solving
delictual situations. The process is premised on the fact that the core
element is harm, for without harm, or threatened harm, to some interest,
a plaintiff has no cause of action.73 Our courts have endorsed this
approach. In First National Bank of SA Ltd v Duvenhage 74 the Supreme
Court of Appeal was favourably disposed towards the idea that harm is
the proper starting point for an enquiry into delictual liability, but the
Constitutional Court was more emphatic in H v Fetal Assessment
Centre:75
‘[H]arm-causing conduct’ is a prerequisite for the further enquiry into the other
elements of delict, namely wrongfulness and fault. Without harm-causing conduct
there is no conduct which can be found to be wrongful or committed with the
requisite degree of fault.
PAUSE FOR Must the elements of a delict arise contemporaneously?

For example, must the harm and the conduct element arise at the same time?
REFLECTION
Consider whether a delict has been committed in the following two situations:
• Andrew tells Susan that Michael is creditworthy. Two days later, Susan
lends Michael R1 000, to be returned on day 10. On day 10, Michael
defaults and tells her that he has no money and that Andrew knew of his
poor financial situation all along. Susan wishes to sue Andrew because of
the misrepresentation. Even though the harm occurred 12 days after the
conduct, Susan could institute a claim in delict against Andrew.
• Sbu is a parish priest and Bongi and Lunga are parishioners. Bongi tells
Lunga that Sbu is a mendacious person. Lunga does not know what the
word means and politely smiles at the comment. That evening he looks up
the word in a dictionary and finds that it means ‘lying, untruthful and given
to telling lies.’ When the statement was made there was no delict. All the
elements were present only when Lunga understood the meaning and
import of the word. Sbu, therefore, could have a claim against Bongi.

Strict liability means simply that liability arises independently of any fault
on the part of the defendant, and fault, whether in the form of intention
or negligence, is stripped out as an essential element. Liability in such
cases stems from social policy, and does not reflect the notion that
wrongdoers must make good any harm that results from their actions.
One can find instances of strict liability in both the common law and in
statutes.
One would naturally think that the requisites for liability should then
be those elements that remain when the fault element is eliminated. In
some instances, this has been done, as was the case when, for a while,
media defendants were held strictly liable for defamatory statements that
they had published. These days, media liability is based upon fault. The
Consumer Protection Act 68 of 200876 introduces strict liability in respect
of certain defectively manufactured products.
There are, however, remnants of strict liability actions at common
law, but different criteria have evolved for justifying liability in a way to
compensate for imposing liability without some moral condemnation of
the defendant’s behaviour. So, special rules have been devised for
instances of vicarious liability, where a particular type of relationship
between the defendant and the wrongdoer justifies liability, and liability
for harm caused by animals, where ownership serves as a justification.
Under the actio de pauperie and the actio de pastu, owners are held
liable, not because of any fault on their part, but purely because they own
the animal, provided that other elements have also been met. However,
these actions do not exclude the possibility of fault-based liability. In
some instances, where one can prove that the owner was at fault, it might
be possible, even more appropriate, to sue under the actio legis Aquiliae
instead, or in the alternative. Similarly, a person might be liable both
vicariously and under the lex Aquilia.
The elements of delict are used as devices to balance the various
countervailing interests of plaintiffs, defendants and society and to
provide a systematic approach for resolving delictual problems.

The first step is to identify the possible plaintiffs and possible defendants,
and how they would be linked to the action. Imagine that one is in an
attorney’s office. The client wishes to sue another person in delict. The
questions that the attorney should ask include:
• Is the client there because of harm suffered personally, or in a
representative capacity (for example, being the breadwinner), or
both?
• How many plaintiffs are possible, given the particular set of facts?
• Who are the possible defendants?
• Who (or what, if an animal is involved) committed the delict?
• Were others involved as well?
• Is there someone else (for example, an employer or owner of an
animal) who was not involved in the actual commission of the delict,
but who could be held liable nonetheless? In such instances, bear in
mind the principles of vicarious liability, and in the case of animals,
claims under the actio de pauperie or the actio de pastu against the
animal’s owner. (An important practical consideration when
selecting possible defendants is not only to look for the person who
committed the delict, but also for the person who has the deepest
pockets. There is no point in suing a person of no means.)

• Harm: There can be no delict without some legally recognised harm
being present, either realised harm or, for an interdict, potential
harm. Focusing on the harm clarifies who the plaintiff is and what he
or she is seeking compensation for. (There may of course be more
than one plaintiff.) The nature of the harm also determines the
nature of the action to use for seeking a remedy, and the peculiar
features of the other elements that must be proven, in particular, the
wrongfulness element and whether fault should take the form of
intention or negligence.
• Conduct: The conduct element identifies the possible defendants
and what they are supposed to have done to infringe the plaintiff’s
interests. This identification also serves as a preliminary step in
isolating policy considerations relevant to the wrongfulness enquiry.
• Factual causation: There must be a link between the plaintiff’s harm
and the defendant’s conduct. There cannot be an untargeted claim
against someone who was in no way involved in the situation.
Note that the three elements mentioned are part of what are essentially
fact-based enquiries. Courts determine the issue by looking at the
evidence presented and deciding whether the parties have presented
sufficient evidence to prove these elements. However, these elements
also have some normative features.

The following elements are more normative than factual; in other words,
the enquiries are more value-based and, although centred within the
factual matrix of each particular case, articulate a wider societal policy
perspective on whether there should be liability. These elements are not
proved directly through evidence. They amount to conclusions of law
drawn from the evidence that has been presented.
• Legal causation: It is not good enough merely to have a factual link
between the conduct and the harm. The link might be so tenuous
that society would say that even though there is a factual connection,
it is not strong enough; or that other events had an overriding
influence that rendered the connection too distant, or too remote for
liability to arise. So, society requires that the causal link between the
conduct and the harm should be sufficiently strong before liability
should ensue. The focus, then, is on the quality of the connection.
Both the factual and normative (legal) aspects of causation must be
satisfied for this element to be present.
• Fault: Although there are exceptions, a central feature of the law of
delict is that responsibility for harm caused will not shift to another
unless that person can be blamed in some way for the violation of
interest that occurred. This element has two sub-components: first,
determine whether the defendant has the capacity or mental
maturity to be blamed, and then, if the person can be blamed, look
for the nature of the fault, which can take the form of either intention
or negligence. In some instances, negligence is not sufficient. Society
requires that the violation must have been intentional before any
loss-shifting can take place. However, there are also instances where
the opposite is true, and where liability arises even though the
person was not to blame, and so liability is strict. Again, the decision
as to whether a person ought to be blamed involves a value-laden
judgement call.
• Wrongfulness: The crux of the wrongfulness enquiry has been
formulated in various ways: whether the plaintiff should be
compensated for the loss that the defendant has caused; whether it is
reasonable to impose liability; whether society should allow a claim
of this nature; whether such a claim against the defendant is
acceptable; or whether the violation of the plaintiff’s rights was
justified in some way. In this element, policy issues predominate and
it is the primary vehicle through which courts control the scope and
ambit of delictual liability.77 Although it is customary to talk about
wrongful conduct, the enquiry does not focus on the defendant’s
conduct alone. The enquiry also looks at the nature of the
defendant’s fault and the consequences, and it is a combination of
the nature of the fault, consequences and the nature of the conduct
that determines the policy factors to consider in reaching a
conclusion.
Once all five elements have been satisfied (factual and legal causation are
actually sub-components of one element), one can conclude that a delict
has been committed, and that circumstances are such that responsibility
for the plaintiff’s harm should shift to the defendant.

In the same way as a criminal trial moves on to the sentencing stage after
conviction, a delictual enquiry moves on to awarding the appropriate
remedy after determining liability. In most instances, the claim is for
damages, the nature and amount of which now have to be determined,
but remedies can also include an interdict or an apology.

Where the remedy takes the form of damages, a final step in the process
might have to be undertaken: that of apportioning the damages. The
issue here is whether the responsibility for the plaintiff’s harm should
shift to the defendant in its entirety, or whether such responsibility ought
to be shared in some way. In some instances, where there is contributory
negligence, fairness demands that the plaintiff should remain
responsible for at least a portion of his or her loss, while in other
instances, the loss might be shared among two or more defendants. It is
only when this stage is finalised that the delictual loss-allocation exercise
is complete.
This approach to resolving delictual problems is summarised in
Figure 1.3 on the next page.
PAUSE FOR Resolving delictual problems

Use the five problem-solving steps to determine whether the elements of a delict
REFLECTION
are present in the following instance:
Katlego is paralysed because he did not receive timeous medical treatment
after being injured in an accident that he caused by driving too fast. Nomalundi,
a medical doctor who was on holiday, had arrived on the scene but refused to
treat Katlego because she did not have any protective gloves with her. Katlego
can prove that had Nomalundi assisted him immediately, he would not have
been paralysed. Also, Katlego does not suffer from Aids and is not HIV-positive.

The general principles of liability set out so far are refined and expressed
differently when considering specific types of delictual liability. Below,
we describe the main requirements for liability under each of the actions
– the actio legis Aquiliae, the Germanic remedy for pain and suffering,
the actio iniuriarum, the actio de pauperie, the actio de pastu and
vicarious liability.

• Harm or loss: Patrimonial loss, which is financial harm arising from
physical damage to person or property, or loss that is purely
economic
• Conduct: Either a positive act, an omission, or a statement
• Causation: Factual causation, in that the conduct must have been a
conditio sine qua non of the loss, and legal causation, in that the link
between the defendant’s conduct and the plaintiff’s harm must not
be too tenuous
• Fault: Blameworthiness in the form of dolus (intention) or culpa
(negligence). However, to be blameworthy, people have to be
accountable for their conduct
• Wrongfulness: Wrongfulness deals with the question whether or not
the situation in which the defendant’s culpable conduct caused the
harm is legally reprehensible to the extent that liability should be
imposed on the defendant. To determine wrongfulness, the
circumstance is measured against the criterion of reasonableness: if
the culpable causing of harm is objectively unreasonable, or without
lawful justification (a valid defence justifies the infliction of harm),
then it is in the circumstances reasonable to impose liability. In
determining whether conduct is wrongful in the circumstances, all
the other elements (conduct, harm, causation and fault) are
considered.
Figure 1.3 Steps in resolving delictual problems

• Harm or loss: Intangible, non-patrimonial harm associated with
personal injury to the plaintiff, for example; actual pain, psychiatric
injury, loss of amenities of life and loss of life expectancy
• Conduct: Either a positive act, an omission, or a statement
• Causation: Factual causation, in that the conduct must have been a
conditio sine qua non of the loss, and legal causation, in that the link
between the defendant’s conduct and the plaintiff’s harm must not
be too tenuous
• Fault: Blameworthiness in the form of dolus (intention) or culpa
(negligence). However, to be blameworthy, people have to be
accountable for their conduct
• Wrongfulness: To determine wrongfulness, the circumstances are
measured against the criterion of reasonableness: if the culpable
causing of harm is objectively unreasonable, or without lawful
justification (a valid defence justifies the infliction of harm), then it is
in the circumstances reasonable to impose liability. In determining
whether conduct is wrongful in the circumstances, all the other
elements (conduct, harm, causation and fault) are considered.
PAUSE FOR The Germanic remedy for pain and suffering

A father and mother suffer enormous grief because their child has been killed by
REFLECTION
a drunken driver. The mother suffers a nervous breakdown after the funeral and is
hospitalised. Would both of them be able to claim damages for the emotional
grief and shock they have experienced?

• Harm or loss: Non-patrimonial harm in the form of a violation of a
personality interest, usually classified under the headings of corpus
(bodily integrity), dignitas (dignity) and fama (reputation)
• Conduct: Usually statements or positive conduct, seldom an
omission
• Causation: Normally not an issue, but may become one in some
instances, as in deprivation of liberty cases
• Fault in the form of intention (animus iniuriandi): This is a
controversial element as some contend that the action has
developed to include some instances (such as those involving
deprivation of liberty) where liability is strict, and others (such as
defamation involving the media) where liability is negligence based
• Wrongfulness: To determine wrongfulness, the circumstances are
measured against the criterion of reasonableness: if the culpable
causing of harm is objectively unreasonable, or without lawful
justification (a valid defence justifies the infliction of harm), then it is
in the circumstances reasonable to impose liability. In determining
whether conduct is wrongful in the circumstances, all the other
elements (conduct, harm, causation and fault) are considered.
COUNTER An action for iniuria

POINT Melius de Villiers notes78 three essential requisites to establish an action for
iniuria. They are:
1. An intention on the part of the offender to produce the effect of his act
2. An overt act, which the person doing is not legally competent to do, and
which at the same time is:
3. An aggression upon the right of another, by which aggression the other is
aggrieved and which constitutes an impairment of the person, dignity or
reputation of the other.
In Delange v Costa79 the Court commented on the elements of the actio

iniuriarum where a plaintiff’s dignity was alleged to have been impaired:
… Logically in an action for injuria one should commence by

enquiring into the existence of the second of these requisites, viz
whether there has been a wrongful overt act. (It is more common,
and probably juristically more correct, to speak of a ‘wrongful’ rather
than an ‘unlawful’ act.) A wrongful act, in relation to a verbal or
written communication, would be one of an offensive or insulting
nature. Once the wrongfulness of such act has been determined
animus injuriandi will be presumed … . It would be open to the
defendant to rebut such presumption by establishing one of the
recognised grounds of justification. If the defendant fails to do so,
the plaintiff, in order to succeed, would have to establish the further
requirement that he suffered an impairment of his dignity. This
involves a consideration of whether the plaintiff’s subjective feelings
have been violated, for the very essence of an injuria is that the
aggrieved person’s dignity must actually have been impaired. It is not
sufficient to show that the wrongful act was such that it would have
impaired the dignity of a person of ordinary sensitivities. Once all
three requisites have been established the aggrieved person would
be entitled to succeed in an action for damages, subject to the
principle of de minimis non curat lex.
This passage contradicts what we have postulated in this chapter in a number of

ways. First, it reverses the order of the enquiry, as we suggest that logically one
should start with ‘the very essence of an injuria’, whether the dignity has in fact
been subjectively impaired by the defendant’s conduct. It is only then that one
needs to determine objectively whether the culpable infliction of harm has been
wrongful. The principle of de minimis non curat lex is part of this second aspect
of the enquiry as it is an expression of social policy that indicates that trivial
infringements should not be considered wrongful. Lastly, a ground of justification
does not rebut the presumption of intention: it is a defence that serves to justify
a situation that would otherwise have been considered wrongful. There are
defences, such as mistake, that rebut the presumption of intention, but these do
not justify a person’s fault; they serve to eliminate fault altogether. One can avoid
these conceptual traps by adhering to the problem-solving approach described in
this chapter.

The requirements for liability under the actio de pauperie are:
• Pauperies (harm)
• Conduct on the part of a domesticated animal
• A causal link between the conduct and the harm
• Unnatural conduct, termed contra naturam sui generis, or conduct
that stems from inward excitement or vice (sponte feritate
commota), which amounts to a conclusion that society considers the
animal’s conduct to be actionable
• Ownership of the animal at the time of the injury.
A number of defences are normally associated with the actio. These

include:
• The plaintiff was to blame
• There was fault on the part of a third person
• There was fault on the part of the controller of the animal
• The conduct on the part of another animal
• Vis maior, outside influence, or an extraneous event not associated
with the conduct of any person
• Volenti non fit iniuria
• The plaintiff (or the injured animal) was not lawfully at the place of
injury.
These defences negate any conclusion that the animal’s conduct was
contra naturam sui generis.

The requirements for liability under the actio de pastu are:
• Harm in the form of damage to plants, crops or pastures through the
process of grazing
• Conduct in that a domesticated animal must have trespassed on the
plaintiff’s property and grazed on the plants
• The animal must have acted of its own volition
• Ownership of the animal at the time of the damage.
The defences include:

• The plaintiff was to blame
• Vis maior, outside influence, or an extraneous event not associated
with the conduct of any person
• Volenti non fit iniuria.

Vicarious liability arises where one person is indirectly liable, without
fault on his or her part, for the delict of another. Accordingly, this form of
liability is strict, and arises in addition to any personal liability that the
wrongdoer incurs. Three elements are usually required:
• A delict: Someone must have committed a delict, in that the delictual
elements set out have been met.
• A relationship: A relationship between the wrongdoer and the
defendant, which the law recognises as being of such a nature as to
warrant the imposition of liability. This relationship is usually an
employment relationship, but can also include other relationships
that could be said to be akin to that of employer and employee, for
example, mandate and partnership.
• Course and scope: The delictual conduct must fall within the ambit
of the defendant’s instructions, be for the defendant’s benefit, or fall
within the risk created by the defendant when establishing the
relationship with the wrongdoer.
So for liability to arise, there should be both a vertical link between the
defendant and the wrongdoer and a horizontal link between the
wrongdoer and the plaintiff (Figure 1.4).
Figure 1.4 Vicarious liability
1.15 Conclusion
In this chapter, we lay the foundation for what follows. The issues raised
in this chapter are largely taken for granted when applying principles to
factual situations. These are things we all are supposed to know, but
seldom openly confront. Nor do we pertinently assess, in every instance,
whether our application of principles is in line with our inherent
assumptions. So, when reading further, assess whether what follows
conforms to, or amplifies what has been expressed in this chapter, and,
as your knowledge of delictual principles deepens, question the
assumptions and conclusions that this chapter has drawn. Although the
fundamentals have been proven to stand the test of time, the principles
of delict, after all, are vibrant, living principles and should reflect
contemporary values.
1 Constitution of the Republic of South Africa, 1996 (hereafter ‘the Constitution’).

2 Murphy and Whitting Street on Torts 13 ed (2012) at 4–5.
3 McKerron The Law of Delict: A Treatise on the Principles of Liability for Civil Wrongs in the
Law of South Africa 7 ed (1971) at 1.
4 Boberg The Law of Delict, Vol 1: Aquilian Liability (1984) at 26–27.
5 [1932] AC 562; 1932 SC (HL) at 580.
6 Cane The Anatomy of Tort Law (1997) at 51–52.
7 Deakin, Johnston and Markesinis Markesinis and Deakin’s Tort Law 7 ed (2013) at 48–50.
8 Deakin, Johnston and Markesinis (2013) at 49.
9 Linden and Feldthusen Canadian Tort Law 9 ed (2011) at 15.
10 Holmes The Common Law (1923) at 50.
11 Herschel v Mrupe 1954 (3) SA 464 (A) at 494; Telematrix (Pty) Ltd t/a Matrix Vehicle
Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 12. See also Roux
v Hattingh 2012 (6) SA 428 (SCA) para 25; SA Hang & Paragliding Association v Bewick 2015
([2015] 2 All SA 581 (SCA); 2015 (3) SA 449 (SCA) paras 31–33; Home Talk Developments
(Pty) Ltd v Ekurhuleni Metropolitan Municipality [2017] 3 All SA 382 (SCA) para 1.
12 Van der Merwe and Olivier Die onregmatige daad in die Suid-Afrikaanse reg 6 ed (1989) at
1.
13 Our translation.
14 Boberg (1984) 16 at Notes.
15 Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 7 ed (2015) at 4 fn 8.
16 Van der Walt and Midgley Principles of Delict 4 ed (2016) para 2.
17 Cane Atiyah’s Accidents, Compensation and the Law 8 ed (2013) at 403–455.
19 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 17.
20 Cane (2013) at 461.
21 Cane (2013) at 461–496; Deakin, Johnston and Markesinis (2013) at 51–59.
22 Ison The Forensic Lottery (1967); Elliot and Street Road Accidents (1968); Atiyah Accidents,
Compensation and the Law (1970).
23 Cane (2013) at 459.
24 The Accident Compensation Act of 1972, which has since been replaced by the Accident
Compensation Act of 2001.
25 Cane (2013) at 459.
26 Deakin, Johnston and Markesinis (2013) at 3–14.
27 Cane (2013) at 15–16.
28 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury
(Cmnd 7054, 1978).
29 The discrepancy seems to lie in the definition: the former figures relate to delictual claims in
general, the latter to personal accident claims only.
30 Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
31 Stewart An Introduction to the Scots Law of Delict (1989) at 2.
33 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) and Dikoko v Mokhatla 2006 (6)
SA 235 (CC). See also Le Roux v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae) 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC) para 76 where
Yacoob J said that ‘It is not appropriate for civil claims to be brought to court to punish
children.’
34 Linden and Feldthusen Canadian Tort Law 9 ed (2011) at 13–16.
35 Linden and Feldthusen (2011) at 15.
38 Cane (1997) at 211.
39 Cane (1997) at 230.
41 Cane (1997) at 231.
42 Cane (1997) at 231.
44 (1996) 71 ALJR 107.
45 (1996) 71 ALJR 107 at 112.
46 Chartaprops 16 (Pty) Ltd v Silberman 2009 (1) SA 265 (SCA) para 37.
47 1999 (2) SA 147 (SCA) at 154.
49 Tsichlas v Touch Line Media (Pty) Ltd 2004 (2) SA 112 (W) (website); Delta Motor
Corporation (Pty) Ltd v Van der Merwe [2004] 4 All SA 365 (SCA), 2004 (6) SA 185 (SCA)
(email); Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as
Amici Curiae) 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC) (digital manipulation circulated
via mobile phone); Dutch Reformed Church Vergesig v Sooknunan 2012 (6) SA 201 (GSJ)
(website); Cele v Avusa Media Ltd [2013] 2 All SA 412 (GSJ) (digital manipulation in
newspaper); Heroldt v Wills 2013 (2) SA 530 (GSJ); [2013] 2 All SA 218 (GSJ) (Facebook);
Isparta v Richter 2013 (6) SA 529 (GNP) (Facebook); Ketler Investments CC t/a Ketler
Presentations v Internet Service Providers’ Association 2014 (2) SA 569 (GJ) (website);
African National Congress v Democratic Alliance 2014 (3) SA 608 (GJ) (SMS message); RM v
RB 2015 (1) SA 270 (KZP) (Facebook).
50 Protea Technology Ltd v Wainer [1997] 3 All SA 594 (W) (electronic monitoring).
51 McKerron (1971) at 10.
52 1911 AD 657.
53 At 665–666. (References omitted.)
54 Neethling and Potgieter (2015) at 8.
55 Van der Walt and Midgley Principles of Delict 4 ed (2016) at ix. (Preface to the third edition).
56 Murphy and Whitting Street on Torts 13 ed (2012) at 5–6.
57 Neethling and Potgieter (2015) a 4.
59 The German BGB para 823, for example, states:
A person who intentionally or negligently unlawfully injures the life, body, health,
freedom, property or another right of another person is liable to make
compensation to the other party for the damage arising from this.
Article 1382 of the French Code Civil states:
All human conduct of any kind which causes harm to another requires the person
by whose fault it occurred to redress it.
(Translations in Raymond Youngs English, French and German Comparative Law (1998) at
222–223.)
60 Cane (1997) at 9.
61 Fleming The Law of Torts 9 ed (1998) at 8.
62 Cane (1997) at 1.
63 Cane (1997) at 5.
64 Perlman v Zoutendyk 1934 CPD 151 at 155. See also Maisel v Van Naeren 1960 (4) SA 836
(C); Minister of Finance v EBN Trading (Pty) Ltd 1998 (2) SA 319 (N).
65 See, for example, Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006
(3) SA 138 (SCA) paras 10–12, where the Court emphasised negligence in formulating the
wrongfulness criterion. In such instances, the duty is a duty not to act negligently. Although
the Court did not expressly say so, it follows that where fault takes the form of intention the
duty would have to be reformulated, presumably, as a duty not to cause harm intentionally.
66 Neethling and Potgieter (2015) 4–5 fn 14 (references omitted).
67 See also section 1.11 below (‘Essential elements where liability is based upon fault’).
68 Murphy and Whitting (2012) at 5.
69 In an earlier edition (John Murphy Street on Torts 11 ed (2005) at 4) this passage was
followed by the following extract:
The starting point of any analysis of the law of torts must be a consideration of
those rights and interests which the law of tort protects. It is apparent that one of
the functions of the law of torts is the protection of what are popularly known as
human rights.
70 Cane (1997) at 66.
71 Midgley ‘Intention Remains the Fault Criterion under the Actio Injuriarum’ (2001) 118(3)
SALJ at 433. See also Van der Walt and Midgley Principles of Delict 4 ed (2016) para 27.
72 Midgley ‘Fault under the actio iniuriarum: Custer’s last stand?’ in Boezaart and de Kock Vita
Perit, Labor non Moritur, Liber Memorialis: PJ Visser (2008) 187 at 201.
73 … a wrong is called a tort only if the harm which has resulted, or is about to result from it, is
capable of being compensated in an action at law for damages, although other remedies
may also be available.
(Keeton (Ed) Prosser and Keeton on the Law of Torts 5 ed (1984) at 4.)
74 [2006] 4 All SA 541 (SCA); 2006 (5) SA 319 (SCA) para 1; Knobel ‘Die Samehang Tussen
Onregmatigheid en Skade’ (2005) 68(4) THRHR at 645. See also the comment on Street’s
approach to tort, quoted previously (at section 1.10 ‘Protected interests’).
75 2015 (2) BCLR 127 (CC); 2015 (2) SA 193 (CC) para 54. See also para 60.
76 Section 61.
77 Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality [2017] 3 All SA
382 (SCA) para 20.
78 De Villiers (1899) The Roman and Roman-Dutch Law of Injuries: A Translation of Book 47,
Title 10, of Voet’s Commentary on the Pandects at 27.
79 [1989] 2 All SA 267 (A); 1989 (2) SA 857 (A) at 861B–F.
Chapter 2
Delict and the Constitution
2.1 Introduction
2.2 The relationship between the Constitution and the law of delict
2.2.2 Could constitutional damages constitute ‘appropriate relief’?
2.2.3 Does the infringement of a constitutional right amount to a delict?
2.2.4 Do delictual damages constitute ‘appropriate relief’ for the violation of a constitutional
right?
2.3 Direct application and
2.3 Direct application and indirect application of the Constitution


2.4.1 Foundational values that relate to dignity and equality
2.4.2 Foundational values associated with democracy and governance
2.4.3 Foundational values associated with freedom of expression
2.4.4 The values of non-violence and the protection of vulnerable people from violence and
abuse
2.5 The Constitution’s areas of impact on the law of delict

2.5.1 Adjusting the way in which an established legal rule is applied
2.5.4 Application of an established legal rule to a new set of facts
2.6 Conclusion
2.1 Introduction
Constitutions play an important role in regulating public power, and so a
constitution is often thought of as a citizen’s shield against abuse of
governmental power. The Constitution of the Republic of South Africa,
1996 (‘the Constitution’), is more than that, however. Not only is it the
supreme law of the country, but it is central to our entire legal system. It
determines the validity of all of the country’s laws,1 including the law of
delict, and any delictual principle or application of a delictual principle
that does not conform to constitutional standards is invalid. When
looking at the relationship between the Constitution and the law of delict,
two key concepts stand out: the Constitution as a source of fundamental
rights, and the Constitution as a source of fundamental values. Although
both impact on the law of delict, it is the latter concept that has the
dominant influence.
In this chapter, we will examine the relationship between the
Constitution and the law of delict, the theoretical framework
underpinning the application of the Bill of Rights to delictual situations
and illustrate how the Constitution has influenced the law of delict. We
also examine some significant questions that arise from the relationship
between the Bill of Rights and the law of delict.
2.2 The relationship between the Constitution and the law

of delict

Generally, a threat to ‘or the infringement’ of a constitutional right
warrants a constitutional remedy in the form of ‘appropriate relief’. 2 The
Constitution is silent on the meaning of the term, but the Constitutional
Court has stated that, essentially, ‘appropriate relief’ denotes relief that is
required to effectively protect and enforce the Constitution, for ‘without
effective remedies for breach, the values underlying and the rights
entrenched in the Constitution cannot properly be upheld or enhanced’.
3
Determining what type of remedy may be deemed appropriate depends
on the circumstance of each particular case 4 and the object that ought to
be achieved.5
2.2.2 Could constitutional damages constitute

‘appropriate relief’?
Over and above the delictual damages which the plaintiff sought to be
awarded in Fose v Minister of Safety and Security,6 he also attempted to
recover constitutional damages – which included ‘an element of punitive
damages’. The Constitutional Court took great care to emphasise the
narrow ambit of the question that fell to be decided in that specific case,
namely: in addition to delictual damages claimed for the assaults, was the
plaintiff entitled to recover constitutional damages, which included an
element of punitive damages? 7
Although this question was answered in the negative, the Court held
that, in principle, constitutional damages may be awarded where it is
necessary to protect and enforce the Bill of Rights.8 Despite the Court’s
confirmation that constitutional damages could be awarded, awards in
subsequent cases have been infrequent. In Modderfontein Squatters,
Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA
and Legal Resources Centre, Amici Curiae); President of the Republic of
South Africa v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, Amici Curiae) 9 the Supreme Court of Appeal held that
the owner of a farm was entitled to constitutional damages for the loss of
the use of his land during the period in which it had been occupied by
squatters and that the State had failed to provide alternative land for the
occupiers. The Court emphasised that the return of the land was not a
feasible option and that, on the particular facts, no other remedy was
apparent.10 The Constitutional Court upheld this decision.
In MEC, Department of Welfare, Eastern Cape v Kate11 the
respondent sought payment of an outstanding amount of a social
disability grant that was awarded to her as well as the interest thereon.
The MEC ultimately paid the remaining outstanding R13 000 but
disputed liability in respect of the interest on the R13 000. The High Court
awarded her the interest as a measure of constitutional damages for the
department’s unreasonable delay in considering the application, which
had resulted in the respondent’s being deprived of her constitutional
right to receive a social grant during that time and for which she was
entitled to be recompensed. The Supreme Court of Appeal confirmed the
award, noting its appropriateness in the particular circumstances of the
case.
PAUSE FOR When is it appropriate to award constitutional damages?

REFLECTION In MEC, Department of Welfare, Eastern Cape v Kate,12 while considering
whether constitutional damages ought to be paid to the respondent, Nugent JA
remarked:13
The question that submission raises is not so much whether the

remedy that is now proposed is an appropriate one to remedy Kate’s
loss, but rather whether a constitutional remedy should be granted at
all. No doubt, the infusion of constitutional normative values into
delictual principles itself plays a role in protecting constitutional
rights, albeit indirectly. And, no doubt, delictual principles are
capable of being extended to encompass State liability for the
breach of constitutional obligations. But the relief that is permitted
by s 38 of the Constitution is not a remedy of last resort, to be
looked to only when there is no alternative and indirect means of
asserting and vindicating constitutional rights. While that possibility
is a consideration to be borne in mind in determining whether to
grant or to withhold a direct s 38 remedy, it is by no means decisive,
for there will be cases in which the direct assertion and vindication of
constitutional rights are required. Where that is so, the further
question is what form of remedy would be appropriate to remedy the
breach.
However, subsequently, in Minister of Police v Mboweni,14 the Court seems to

have taken a different view. In this case, the deceased, Mr Mahlati, was
assaulted by inmates following his arrest and detention, as a result of which he
eventually died. The mothers of Mahlati’s two daughters claimed damages from
the Minister of Police for the infringement of their children’s right to parental care
as encapsulated by section 28(1)(b) of the Constitution. The trial court found,
among other things, that a child whose parent had died because of unlawful
conduct of a third party, could claim constitutional damages for infringement of
the right to parental care.
The Supreme Court of Appeal overturned the judgment, however. It stated,
with reference to Fose v Minister of Safety and Security,15 that the preferred
approach in determining whether a court should award constitutional damages
should be:
• A court should first consider whether there is an existing remedy that
would adequately vindicate and protect the constitutional right.
• If the existing remedy appears to be inadequate, then it should consider
whether such deficiency can be remedied by a development of the
common law. The Court emphasised the flexible nature of the law of
delict, which makes it particularly susceptible for development in line with
the spirit, purport and objects of the Bill of Rights. A necessary
consideration in this regard is whether the infringement of the
constitutional right may be appropriately vindicated through resort to
public-law remedies.
• Lastly, in considering whether constitutional damages should be awarded
as appropriate relief, the broader societal implications which such
judgment may have should be taken into account. The Court said:16
[I]n determining a suitable remedy, the courts are obliged to take

into account not only the interests of parties whose rights are
violated, but also the interests of good government. These competing
interests need to be carefully weighed.
2.2.3 Does the infringement of a constitutional right

amount to a delict?
It is conceivable that an infringement of a fundamental right may also
amount to an infringement of a subjective right which the law of delict
recognises and seeks to protect.17 For example, when someone is
assaulted, the wrongdoer’s culpable conduct wrongfully causes an
infringement of the victim’s common-law right to personality (his or her
corpus, fama and dignitas) as well as the right to bodily and psychiatric
integrity. The victim may institute a variety of common-law remedies
against the wrongdoer, including the actio iniuriarum, the actio legis
Aquiliae and the action for pain and suffering. The wrongdoer’s assault at
the same time also violates the victim’s constitutional rights to dignity,
life, freedom and security of the person and privacy.
It should be noted, however, that, even though there might be
instances of overlap, a violation of a constitutional right does not in itself
simultaneously constitute a delict. For that to happen, the elements of a
delict should be satisfied independently.
Dendy v University of Witwatersrand18
Dendy had applied, unsuccessfully, for the appointment to a chair of law at the University of
Witwatersrand. He instituted two claims:
• The first was based on alleged procedural irregularities that took place during the process of making the
new appointment, which, he argued, had violated a variety of his constitutional rights and, as such,
infringed his right to dignity in terms of section 10 of the Constitution and/or the common law.19
• The second claim concerned the University’s alleged failure to furnish him with reasons for his
unsuccessful application and the selection committee’s minutes. This, he argued, also amounted to a
violation of some of his constitutional rights and, accordingly, infringed his right to dignity in terms of
section 10 of the Constitution and/or the common law.20
In other words, the plaintiff argued that the violation of his constitutional rights gave rise to an
infringement of his dignity which, in turn, entitled him to damages as an appropriate remedy. The
plaintiff’s claims were novel and he therefore requested the High Court to develop the common law so as
to afford him a remedy sounding in damages. To achieve this, he proposed, among other things, that the
Court should recognise all violations of constitutional rights as actionable infringements of dignity.21 The
Court responded:22
In effect, what is contended for is the creation of a constitutional delict. There are substantial
reasons not to afford recognition to such a delict. It is desirable that a clear distinction be
drawn between delictual and constitutional wrongs. Conceptual difficulties are bound to arise if
one were to equate all infringements of fundamental rights with an ordinary delict. There is the
problem of overlapping and possible conflict between fundamental rights entrenched in the
Constitution and private subjective rights protected by, or legal duties imposed by, the law of
delict. Where the infringement of a fundamental right overlaps with generally recognised areas
of delictual liability, an ordinary delictual claim will lie at the instance of an aggrieved person.
The problem lies with those infringements of fundamental rights that extend beyond the
recognised ambit of the law of delict and which do not meet the requirements of delictual
liability … To recognise all constitutional violations as infringements of dignity as suggested by
the plaintiff would be to confuse the wider concept of dignity under the Constitution with the
narrower concept of dignitas. Yet a further reason why all violations of fundamental rights ought
not to be regarded as actionable infringements of dignity, is that in many instances where the
violation of human dignity is offended the primary constitutional breach may be of a more
specific right in respect of which the Constitution affords a particular remedy or specific
protection. In these circumstances dignity serves merely as a flexible and residual right.
The Supreme Court of Appeal confirmed the High Court decision. The Court found for there to have been
a common-law violation of Dendy’s right to dignity, the violation of his interest had to be subjectively and
objectively insulting and humiliating, and that these requirements were not present on the facts of the
case.23
2.2.4 Do delictual damages constitute ‘appropriate relief’

for the violation of a constitutional right?
As indicated above, in some instances the remedy against individuals is a
constitutional one, but where there is an overlap between a fundamental
right and a private-law (subjective) right that the law of delict recognises,
a delictual remedy is possible. Courts are unlikely, except in extreme
cases in which it might be necessary to note judicial displeasure, to
award constitutional damages and delictual damages on the same facts.24
Where there is an overlap, a delictual remedy usually serves as a
constitutional remedy. For example, an award of damages for unlawful
arrest and detention not only assuages the infringement of a person’s
personality right, but it also provides the necessary relief in respect of the
infringement of a person’s fundamental right to freedom and security.25
Where there is no such overlap, courts may award damages as a
constitutional remedy, but not in delict.
Fose v Minister of Safety and Security26
Fose sued the Minister for damages arising out of a series of assaults perpetrated by police officers who
had acted within the course and scope of their employment. More particularly, the plaintiff instituted the
Aquilian action, the actio iniuriarum and the action for pain and suffering in respect of the past and
future medical expenses, contumelia, pain and suffering and loss in the amenities of life.
The Constitutional Court had to determine whether the assaults, which constituted a breach of certain
constitutional rights,27 could be vindicated by the delictual remedy of damages. The respondent Minister
argued that any person who applied to court for appropriate relief for an infringement of a fundamental
human right under the interim Constitution could not resort to a delictual remedy, because the applicant
was entitled only to a constitutional remedy.28 The Court held that, in principle, ‘appropriate relief’ was
aimed at protecting and enforcing the Bill of Rights and that there was no reason in principle why the
concept should not also include an award of damages where such an award was necessary to protect
and enforce constitutionally recognised fundamental rights. Specifically, the Court emphasised that the
law of delict was flexible and that, in many cases the common law would be broad enough to provide all
the relief that would be appropriate for a breach of constitutional rights.29 The Court found that the
delictual damages awarded to the applicant successfully protected, enforced and vindicated his
constitutional rights and that an additional award of constitutional damages would be inappropriate.
Since Fose, courts have continued to award delictual damages where a

plaintiff’s constitutional rights have been infringed, but typically, this
occurs where the plaintiff’s common-law rights have also been infringed.
2.3 Direct application and indirect application of the

Constitution
The Constitution differentiates between direct and indirect application of
the Bill of Rights. The direct application refers to a scenario in which a
plaintiff relies directly on the infringement of a fundamental right in the
Constitution when formulating his or her cause of action. Indirect
application denotes a situation where a plaintiff looks towards the
common law to protect the infringed right, but the latter is then
influenced by a fundamental right or an underlying constitutional value
when determining the nature of the common-law right or duty, or in
providing an effective remedy. Direct application is achieved via section
8(2) while indirect application occurs by virtue of section 39(2) of the
Constitution.
The distinction between the direct and indirect application of the
Constitution has had little practical effect when delictual disputes have
been adjudicated. Since delictual rules are primarily common-law based
and it is much easier to achieve harmony by developing the common law,
the indirect application predominates. In the main, courts have assessed
the law of delict ‘through the prism of the Constitution and in relation to
its values’30 and the approach has been that ‘where the common law
deviates from the spirit, purport and objects of the Bill of Rights, the
courts have an obligation to develop it by removing that deviation’.31
PAUSE FOR Direct and indirect application

Van der Walt and Midgley suggest that the difference between direct and indirect
REFLECTION
is predominantly philosophical in nature:32
[I]n following the direct application, one approaches the issue from
the point of view that the Constitution is supreme overall law, while
the indirect approach views the Constitution and the common law as
being complementary, the role of the Constitution being to nudge
and influence common-law principles rather than to override them.
While their description of the nature of the indirect application might be

apposite, is the authors’ distinction correct? Is the Constitution not in all
instances the ‘supreme overall law’?
The Constitution’s direct application to the law of delict is effected
primarily through the application of section 8, but sections 36(1) and
39(3) are also relevant in some instances. The Constitution explicitly
states that its provisions apply to the conduct of natural persons and
juristic persons in appropriate cases,33 and so the Bill of Rights also serves
to protect persons not only from infringements of their rights by the State,
but also in respect of infringements by private individuals.
Khumalo v Holomisa34
This case was decided in terms of the provisions of the interim Constitution. Subsequently the drafters of
the Constitution dealt with some of the issues raised in this case, but certain statements of principle in
this case remain relevant.
The applicant asserted that the constitutional right to freedom of expression set out in section 16 of
the interim Constitution was directly applicable to the dispute between two private individuals; and,
further, that it necessitated the common law of defamation to be developed so that a plaintiff in a
defamation action against a defendant, who is a member of the mass media, is required to plead and
prove that the defamatory statement made by the defendant was false. The Constitutional Court agreed
that the Bill of Rights had so-called direct horizontal application, but denied the applicant’s request to
develop the common law to give effect to section 16, because the common law relating to defamation
was already in line with constitutional requirements.
The Court provided some guidelines in respect of the potential future direct application of the Bill of
Rights:
• Section 8(2) bound natural and juristic persons to the extent that it is applicable, taking into account
the nature of the right and the nature of any duty imposed by the right. It added that, once it has been
determined that a natural person is bound by a particular provision of the Bill of Rights, section 8(3)
then provides that a court must apply and, if necessary, develop the common law to the extent that
legislation does not give effect to the right.35
• Development of the common law would be necessary if it was found that the common law is
inconsistent with the Constitution. This would be the case where, for example, the common law rule in
question amounts to an unjustifiable limitation of any right contained in the Bill of Rights. In determining
this issue, ‘sight must not be lost of other constitutional values and, in particular, the value of human
dignity’.36
• Rules of the common law may be developed so as to limit a right, as long as that limitation would be
consistent with the provisions of section 8(3)(b).37
• Some rights might not be capable of horizontal application.38
Unfortunately, it is not clear from this judgment exactly how the application of section 8(2) would differ
from the application of section 39(2), which also suggests that courts are required to develop the
common law in order to give effect to the spirit, purport and objectives of the Bill of Rights.
The question is to what extent a constitutional right is actionable in delict

in the sense that (a) it might form the basis of a plaintiff’s claim, or (b) it
should be given effect to when applying a delictual rule to the facts. A
second question is to what extent a constitutional right might protect a
defendant against a delictual claim.
We can reasonably easily find a delictual counterpart for the
following fundamental rights: human dignity (section 10), life (section
11), freedom and security of the person (section 12), privacy (section 14),
freedom of assembly, demonstration, picket and petition (section 17),
freedom of trade, occupation and profession (section 22), environment
(section 24), and property (section 25). In these instances, overlaps are
likely, and the fundamental rights confirm that an action in the law of
delict conforms to constitutional values. This adds weight to a contention
that the legal convictions of the community would lean towards granting
a remedy in delict. Of course, in particular instances there might be
countervailing rights that could point the other way, for example, dignity
(section 10), freedom of religion, belief and opinion (section 15), freedom
of expression (section 16), assembly, demonstration, picket and petition
(section 17), and freedom of association (section 18).
Some fundamental rights simply do not lend themselves to actions in
delict. Political rights, such as the right to vote (section 19) and the right
to citizenship (section 20) do not have private-law counterparts.
Similarly, a person is unlikely to have an action in delict if, for example,
that person’s right to housing (section 26), or rights to health care, food,
water and social security (section 27), is infringed, unless some other
fundamental right that has a subjective-right counterpart is also
infringed. Other such examples include the rights to education (section
29), language and culture (section 30), access to information (section 32),
and just administrative action (section 33).
Dendy v University of the Witwatersrand39
Dendy had applied, unsuccessfully, for a post of professor at the University of the Witwatersrand. He
claimed that the University had infringed his right to dignity in that there were a number of procedural
irregularities in the appointment process and, secondly, that the University had failed to provide reasons
for his lack of success and to furnish him with a copy of the selection committee’s minutes. This conduct
could obviously have infringed Dendy’s right to fair labour practices (section 23), and his right to
information (section 32), but since there is no private-law counterpart for these rights, his claim in delict
was not based on their infringement. Instead he alleged that the University had infringed his right to
dignity. The Court found that society would not consider such conduct to be insulting and so his claim
failed.40
There are some instances in which we cannot identify an existing private-

law right that corresponds to a fundamental right, but, a subjective right
could exist. Unless we can link the fundamental right to a recognised
subjective right – dignity, for example – a person cannot claim damages
for discrimination (a violation of the right to equality (section 9)), or for
having views censored (a violation of freedom of religion, belief and
opinion (section 15)), or for a violation of freedom of expression (section
16) or freedom of association (section 18). The law is not static and, in
time, courts might begin granting damages in delict for the mere
infringement of these rights. If this does happen, the effect would be that
courts will recognise new subjective rights.
Remember, however, that fundamental rights are not omnipotent,
and that the Constitution makes provision for their limitation in section
36. So, a fundamental right that coexists with a subjective right might
strengthen the delictual claim, but there may still be other rights or
values that prevent the claim’s success. There might be countervailing
rights that must be balanced against the rights supporting the claim. Also,
the traditional grounds for justification continue to play a role in possibly
defeating a plaintiff’s claim. In claims under the actio iniuriarum, there is
often a classic contest between two fundamental rights: on one side
either the plaintiff’s right to dignity or to privacy, and on the other, the
defendant’s right to freedom of expression. Neither the plaintiff’s nor the
defendant’s right is more important than the other, and so we cannot say
that one will automatically override the other in every instance. However,
the existence of one right (and the values that underpin that right)
naturally restricts the scope of the other. The extent of such restriction, or
even the extent to which one right might override the other, depends on
the facts of each case and what policy considerations apply to those facts.
In some instances, policy might dictate that the plaintiff’s right to dignity
should prevail; in other instances, the defendant’s right to freedom of
expression.

The indirect application of the Bill of Rights to the law of delict occurs by
virtue of section 39(2) of the Constitution which requires courts to
promote the spirit, purport and objects of the Bill of Rights when
interpreting any legislation or developing the common law.41 When
courts apply the Bill of Rights indirectly to the law of delict they generally
do not override the common-law rules or principles. Instead they respect
the common law, but mould the rules and principles to accord with
constitutional rights and values.
Courts have repeatedly emphasised that the Constitution embodies
a normative value system that underpins our law and provides the
backdrop against which we must develop the common law.42 Therefore,
the Constitution expresses society’s core values and sets basic criteria
against which we must test laws and conduct. The obligation to test and
develop the common law rests with every court. While they need not
actively check constitutionality in every instance, they should at least be
familiar with the obligation, and where circumstances necessitate,
ensure compatibility.43 In S v Thebus 44 the Constitutional Court indicated
when these circumstances might arise:
The first would be when a rule of the common law is inconsistent with a
constitutional provision. Repugnancy of this kind would compel an adaptation of
the common law to resolve the inconsistency. The second possibility arises even
when a rule of the common law is not inconsistent with a specific constitutional
provision but may fall short of its spirit, purport and objects. Then the common law
must be adapted so that it grows in harmony with the ‘objective normative value
system’ found in the Constitution.
In Dendy v University of the Witwatersrand 45 the Supreme Court of

Appeal considered whether the law relating to infringements of dignity
needed to be developed. The Court accepted that it had an obligation to
ensure that the common law is consistent with the Constitution, but also
noted that any development must be done within the common law’s
paradigm.46 The Thebus 47 test requires a court first to enquire whether
the existing common law should be developed. If the answer is no, then
that would be the end of the enquiry. Only if the answer is yes, should we
enquire what development should occur.48 In this instance, the Court
concluded that the common law had not been found wanting and was
not in need of reform. Dendy could have vindicated his rights ‘by the
remedies of review or a relatively simple application to compel
production of the documentation and the reasons sought’, but chose not
to do so, seeking instead to fashion a novel claim in delict.49
PAUSE FOR The difference between the two instances identified in S v Thebus50 that would
REFLECTION justify constitutional development of the common law is not self-evident. For
example, if a legal rule of the common law is inconsistent with the Constitution, it
must be taken that it also falls short of the spirit, purport and objectives of the
Bill of Rights, thereby placing it squarely in both categories that the Court
identified. Unless courts provide a clear indication of when a legal rule would ‘fall
short’ of the spirit, purport and objectives of the Bill of Rights while not being
inconsistent therewith, the distinction seems to have little practical meaning.
Each of the rights mentioned in the Bill of Rights expresses in some way
an aspect of the country’s legal culture, its norms and its values. For
example, the right to dignity articulates human dignity as a societal value,
as do the rights to privacy, and to freedom and security of the person. The
right to equality expresses both the core value of equality and that of
human dignity. However in grey areas, or in unfamiliar areas, where
courts have to exercise discretion or choose between conflicting courses
of conduct, courts articulate constitutional principles and in so doing,
express constitutional values. In this regard, section 39 of the
Constitution is clear. When interpreting the Bill of Rights, ‘the values that
underlie an open and democratic society based on human dignity,
equality and freedom’ must be upheld, and similarly, when interpreting
legislation or when developing the common law or customary law, ‘the
spirit, purport and objects of the Bill of Rights’ must be promoted. And
this, in essence, is the aim of indirectly applying the Constitution: the
ordinary common law is taken as the point of departure and courts then
ensure that the constitutional values permeate and radiate therein, not
only in expressing legal principles and rules, but also in applying them to
factual situations. So, the purpose of constitutional values is to influence
and guide the common law, not to override it.51
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 52
The Constitutional Court provided clarity regarding the approach that courts must adopt when requested
to develop the common law:
• A court should consider whether the existing common law, having regard to the objectives set out in
section 39(2), requires development in accordance with those objectives. If this question is answered
positively, then the court must concern itself with how such development is to take place in order to
meet the objectives of the Bill of Rights.53
• The ‘obligation of Courts to develop the common law, in the context of s 39(2) objectives, is not purely
discretionary’. They are under a ‘general obligation’ to develop the common law in an appropriate
manner, but this does ‘not mean to suggest that a court must, in each and every case where the
common law is involved, embark on an independent exercise as to whether the common law is in need
of development’.54
• Courts were cautioned against ‘overzealous judicial reform’.55 The legislature remains the ‘major engine
for law reform’.56
• The common law must be developed in a manner that not only gives effect to the constitutional
objectives, but also in a way most appropriate for the development of the common law within its own
paradigm.57 This is also in line with the general preference in accordance with which legal disputes
should preferably be decided in terms of the established common law legal rules and principles,
properly interpreted or developed to give effect to the Bill of Rights, as opposed to a complete overhaul
of the existing common-law legal framework.58
There are various ways in which the courts may practically give effect to
section 39(2) when developing the law of delict by indirectly applying the
Bill of Rights and examples of these are discussed in further detail in the
paragraphs below.

The Constitution embodies a normative value system that underpins our
law and provides the backdrop against which the common law is to be
developed. It expresses society’s core values and sets basic criteria
against which laws and conduct must be tested. So, what are the core
values that must permeate every aspect of our law of delict? From the
Constitution itself, and from judgments, we can generally identify the
following categories of norms.59
2.4.1 Foundational values that relate to dignity and

equality
Section 1 of the Constitution sets out the foundational values for the
country. These include ‘human dignity, the achievement of equality and
the advancement of human rights and freedoms’, and ‘non-racialism and
non-sexism’. These norms cannot be divorced from their historical
context and these foundational values serve a transformative purpose to
move from a society of inequality, disrespect and exclusion, to one that
respects human rights and freedoms. These values, especially human
dignity, underpin and support a number of sections in the Constitution,60
and have informed a number of judgments.61 So, for example, equality,
pluralism, religious freedom and tolerance have served to recognise
forms of marriage and life partnerships that were previously considered
unacceptable and accordingly, recognise claims arising from such
relationships.62
PAUSE FOR Equality as a foundational value

Section 9(1) of the Constitution guarantees a general right to equality and
REFLECTION
implies that any rule of common law or any legislation that differentiates between
persons must meet a minimum rationality requirement. In Prinsloo v Van der
Linde,63 a case dealing with legislation creating a presumption of negligence in
certain cases for the causing of veld fires, Ackerman J explained the application
of the minimum rationality standard as follows:
[T]he constitutional state is expected to act in a rational manner. It

should not regulate in an arbitrary manner or manifest naked
preferences that serve no legitimate governmental purpose, for that
would be inconsistent with the rule of law and the fundamental
premises of the constitutional state. The purpose of this aspect of
equality is, therefore, to ensure that the state is bound to function in
a rational manner. This has been said to promote the need for
governmental action to relate to a defensible vision of the public
good, as well as to enhance the coherence and integrity of
legislation.
In Harksen v Lane NO64 the Constitutional Court explained the standard set by
section 9(1) as a simple test: Does the provision differentiate between people or
categories of people? If so, does the differentiation bear a rational connection to
a legitimate government purpose? If it does not, then there is a violation of
section 9(1). Even if it does bear a rational connection, it might nevertheless
amount to unfair discrimination under sections 9(3) or 9(4). The Constitutional
Court in Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour
intervening),65 a case dealing with legislation replacing the common-law action
by an employee against his or her employer with a statutory claim, said the
following on the purpose of the rationality test:66
It is clear that the only purpose of rationality review is an inquiry into
whether the differentiation is arbitrary or irrational, or manifests
naked preference and it is irrelevant to this inquiry whether the
scheme chosen by the legislature could be improved in one respect
or another.
On application of the rationality test the courts have decided, for example, that
the limiting of claims for loss of income or loss of support under the Road
Accident Fund Act 56 of 1996 passed the rationality test,67 whereas the former
limit on claims by passengers did not.68
PAUSE FOR Human dignity as a foundational value

In The Citizen 1978 (Pty) Ltd v McBride (Johnstone and Others, Amici Curiae)
REFLECTION
Ngcobo CJ said:69
The Constitution proclaims human dignity to be one of the

foundational values of our constitutional democracy. Human dignity
is specifically mentioned in section 1 of the Constitution in order to
contradict our racist past. For this reason, the Constitution holds
human dignity up as not only a human right that is given
constitutional recognition, as with freedom of expression, but also as
a fundamental value upon which the legitimacy of the sovereign state
is based. The Republic was – ‘founded on’ the value of human
dignity, and failure to uphold that value is both a violation of a
constitutional right and a threat to a bedrock principle that underpins
the legitimacy of the state.
2.4.2 Foundational values associated with democracy and

governance
Section 1(d) of the Constitution mentions the need for democratic
government and ‘to ensure accountability, responsiveness and
openness’. 70 So, where public authorities are involved, courts should
ensure that their decisions promote governmental service delivery that
reflects these values. In Minister of Safety and Security v Van
Duivenboden71 the police had information showing that the person who
had shot Van Duivenboden was unfit to possess a firearm, but they failed
to investigate further. In holding the police liable for Van Duivenboden’s
injuries, the Court noted that public functionaries and public authorities
were not on the same level as ordinary citizens.72 With reference to the
norm of accountability the Supreme Court of Appeal said:73
When determining whether the law should recognise the existence of a legal duty in
any particular circumstances what is called for is not an intuitive reaction to a
collection of arbitrary factors but rather a balancing against one another of
identifiable norms. Where the conduct of the State, as represented by the persons
who perform functions on its behalf, is in conflict with its constitutional duty to
protect rights in the Bill of Rights, in my view, the norm of accountability must
necessarily assume an important role in determining whether a legal duty ought to
be recognised in any particular case. The norm of accountability, however, need
not always translate constitutional duties into private law duties enforceable by an
action for damages, for there will be cases in which other appropriate remedies are
available for holding the State to account. Where the conduct in issue relates to
questions of State policy, or where it affects a broad and indeterminate segment of
society, constitutional accountability might at times be appropriately secured
through the political process or through one of the variety of other remedies that
the courts are capable of granting.
A decision like this one, which calls upon police to improve the quality of
their services, clearly promotes the constitutional norm. In Fair Cape
Property Developers (Pty) Ltd v Premier of the Province of the Western
Cape 74 the Court indicated that an accountable government would be
promoted if citizens could obtain relief for harm caused to them
pursuant to operational decisions.
2.4.3 Foundational values associated with freedom of

expression
Freedom of expression has its roots in section 1 of the Constitution, and it
could also fall into either of the categories mentioned in 2.4.1 and 2.4.2.
The common law recognised, and substantially endorsed freedom of
expression, and so this is not a new value that was absent in the previous
era.75 The place of freedom of expression in our common law is slightly
different from other foundational values, and because of its prominence
as a value that supports defences against claims under the actio
iniuriarum, it is categorised separately.
But this special status does not mean that freedom of expression is more
important than other foundational values.76 Although important, there is
no hierarchy of rights77 and this freedom ‘must be construed in the
context of the other values enshrined in the Constitution’, particularly,
human dignity, equality and freedom.78 Freedom of expression partially
underpins freedom of assembly, demonstration and petition, and it has
always played an important role in justifying injurious statements.
Accordingly, the law recognises that a democracy requires free
expression in parliament and that persons should be entitled to voice
opinions on other privileged occasions, that fair comment is acceptable,
and that there should be no liability in respect of true statements made
for the public benefit. In each of these instances, courts are required to
balance plaintiffs’ constitutional and common-law entitlements to be
protected against violations of their personality, against similar
entitlements that defendants have in respect of freedom of expression.
This freedom dominates in the public domain. While freedom of
expression has a role in recognising parliamentary privilege, it is the core
value that determines the role of the media in our society. Not only are
the media the messengers and society’s eyes and ears with regard to
societal issues, but they also provide an important vehicle through which
members of society can exercise their roles as citizens. Although
arguments based on freedom of expression have not been sufficient to
convince courts to recognise a special privilege for the media, the value
was instrumental in overruling the controversial strict-liability regime for
the media, which placed a prior restraint on the media and so had a
‘chilling effect’ on their right to free expression.79
2.4.4 The values of non-violence and the protection of

vulnerable people from violence and abuse
These values, especially the protection of women and children from
violence and abuse, were considered in Van Eeden v Minister of Safety
and Security 80 and in Carmichele v Minister of Safety and Security.81 In
the former case, a serial rapist escaped from police cells and
subsequently assaulted, raped and robbed Van Eeden. In the latter,
Carmichele was attacked by a man with a record of violence, and who
had been granted bail. In light of the State’s constitutional duty to protect
persons from violence and to ensure people’s safety, the claims in both
instances succeeded. Although the majority in Le Roux v Dey 82 did not
decide the case on this basis, the rights of children was prominent in the
two minority judgments.83 Yacoob J noted in this case that ‘the violation
of the dignity of a relatively powerless and vulnerable person by a
powerful, strong person in authority’ would be more serious than the
other way around.84
2.5 The Constitution’s areas of impact on the law of

delict
We have seen so far that the impact of the Constitution can be both direct
and indirect. However, it is its indirect, developmental impact that is
likely to be more substantial. The manner of such influence, and its
scope, is multi-faceted, but fall into two broad categories in which:
1. The validity of rules and principles are tested for constitutional
compatibility
2. The application of rules and principles are tested for compatibility
with constitutional norms regarding social justice.
Constitutional issues often come to the fore under the wrongfulness

enquiry, when courts have to determine the nature of the community’s
legal convictions and give effect to constitutional values and norms.85
However, this is not the only area where they can apply. In addition:
• We can use the Constitution to test the delict system as a whole, for
example, whether a particular rule – fault or strict liability in
particular circumstances, or the test for wrongfulness – conforms to
the rights and values that society ascribes to.
• We can also use the Constitution to test the application of
(constitutionally valid) rules to particular facts. In this latter sense,
the outcome of a case must give effect to constitutional principles
and values. So, where we have to make a choice between two
legitimate courses of action, we should select the one that best gives
effect to constitutional principles.
• We can use the Constitution to create new delictual rules. For
example, we may now recognise rights that we previously did not
consider to be actionable, and we may find new remedies. In short,
the Constitution is relevant to every aspect of the law of delict and we
should not attempt to confine its influence in particular boxes.
2.5.1 Adjusting the way in which an established legal rule

is applied
In Carmichele v Minister of Safety and Security 86 the applicant brought a
delictual claim for damages against the Minister of Safety and Security
and the Minister of Justice for harm she had suffered as a result of being
assaulted by one Coetzee. Prior to the assault, Coetzee had already been
convicted on charges of housebreaking and indecent assault. He had also
been accused of rape and had appeared earlier before the magistrate’s
court on this charge. At this hearing he was released on his own
recognisance on the recommendation of the investigating officer.
Even though members of the public provided the investigating
officer with information that Coetzee posed a significant threat to their
safety and security, the officer advised the public prosecutor that there
was no reason to deny Coetzee bail and recommended that he be
released on warning. When Coetzee subsequently appeared before a
magistrate on the charge of rape, the prosecutor did not place before the
magistrate any information concerning Coetzee’s previous convictions,
nor did he oppose Coetzee’s release on his own recognisance. Following
his release, a concerned member of the community again approached
the police and requested Coetzee’s detention pending his trial. The
police officer in question advised her to discuss the matter with the
public prosecutor who, in turn, advised that nothing could be done
unless Coetzee committed another offence.
Shortly thereafter, Coetzee was re-arrested, but after pleading not
guilty on the charge of rape, he was re-released by the magistrate,
pending a decision by the Attorney-General as to whether the case
should be tried in the High Court or the regional court. The Attorney-
General, who had been in possession of the referral documents which
reflected the seriousness of the rape and the extent of Coetzee’s sexual
deviation, had not instructed the public prosecutor to oppose bail, with
the result that his release was not opposed.
Following Coetzee’s unopposed re-release, Carmichele was
assaulted. She then instituted a delictual claim against the Minister of
Safety and Security and the Minister of Justice, arguing that the members
of the police as well as the public prosecutors had owed her a legal duty
to prevent Coetzee from being released on bail, and that their negligent
failure to comply with this duty enabled him to cause her harm. The High
Court rejected the argument and ordered absolution from the instance
on the ground that such failure could not be considered wrongful.87 The
appeal to the Supreme Court of Appeal was dismissed. In accordance
with established precedent at the time, wrongfulness and the
concomitant enquiry into the existence of a legal duty fell to be
determined with reference to the boni mores or legal convictions of the
community. In denying the existence of a legal duty on the part of the
police and state prosecutors, the High Court and the Supreme Court of
Appeal had followed established precedent.88
Carmichele subsequently appealed to the Constitutional Court. The
Court held that the previous courts had overlooked the demands of the
Constitution and that the common law of delict had to be developed
beyond existing precedent. The Constitutional Court stressed the general
obligation that rested on courts to develop the common law to give effect
to the constitutional objectives 89 and referred the case back to the High
Court. This court, in its second judgment in the matter, allowed the
plaintiff’s claim.90 Following another appeal to the Supreme Court of
Appeal, the Ministers’ appeal was dismissed and the matter finally came
to conclusion.91
Subsequent to the Constitutional Court decision, but before the
Carmichele saga came to its full conclusion, the Supreme Court of Appeal
had an opportunity to illustrate the impact of the Constitution on the law
of delict, as per the Constitutional Court’s guidelines in its Carmichele
judgment. In Minister of Safety and Security v Van Duivenboden 92 the
plaintiff brought a claim in delict against the Minister of Safety and
Security after he had been shot by his neighbour, who proceeded to kill
his own wife and daughter. It was common cause that, prior to the
incident, police officers had information that the perpetrator, when
drunk, habitually threatened to use his firearms against himself and
others. Nonetheless, they had failed to take any steps to initiate an
enquiry in terms of the Arms and Ammunition Act 75 of 1969
empowering the Commissioner of Police to declare someone unfit to
possess a firearm and to seize it.
The Supreme Court of Appeal reiterated the common-law rule that
the negligent failure to act positively in preventing harm was not prima
facie wrongful.93 The Court therefore had to consider whether or not the
police officers had owed the plaintiff a legal duty to prevent his harm. The
majority restated the established common-law criterion as developed in
Minister van Polisie v Ewels 94 (the boni mores or legal convictions of the
community criterion)95 and noted that establishing wrongfulness
ultimately depended on a judicial determination of whether it would be
reasonable to impose liability on a defendant for the harm arising from
the defendant’s culpable conduct. Such a judicial determination would
in turn depend on considerations of public and legal policy, which,
importantly, now also included the norms and values of the society as
embodied in the Constitution.96 In this way, public and legal policy
became the gateway for the introduction of constitutional rights and
norms in the application of the traditional rules of the law of delict.97
The Court noted several public and legal policy considerations that
might weigh against the imposition of delictual liability upon the State:
• Public policy considerations, rooted in a laissez faire concept of
liberty, suggest that it might be an unreasonable infringement upon
someone’s personal autonomy to expect him or her to take positive
steps in order to avert harm to others.98
• The principle of equality might be infringed upon if liability is
imposed on one person where others might equally be faulted for
their failure in preventing the relevant harm.99 • The apparent utility
of allowing the State and its functionaries the freedom to provide
public services without the chilling effect of the threat of litigation
were they negligently fail to prevent harm.100
• The possibility of unlimited liability and its effect on potential
policing resources.
These concerns were outweighed by the following considerations:

• The obligation imposed on the State in terms of section 7 of the
Constitution not only to respect but also to ‘protect, promote and
fulfil the rights in the Bill of Rights’. 101
• Section 2 of the Constitution demanded that duties imposed by the
Constitution on the State must be fulfilled.102 (The relevant
constitutional rights which the Court had in mind may have
included the right to safety and security of the person, the right to life
and the right to human dignity.)
• Section 41(1) of the Constitution expressly stated that all spheres of
government and all state organs within such sphere must provide
government that is not only effective, transparent and coherent, but
also accountable.103
Ultimately, the Court attached considerable weight to the constitutional

norm of accountability,104 emphasising that, other than imposing
delictual liability on the State, there appeared to be no way of holding the
State accountable. The Court found that the relevant police officers’
harm-causing failure to act was indeed wrongful105 and, having also
determined that their failure was negligent106 and caused the victim’s
harm,107 it accordingly held that the State was vicariously liable.108
When the Carmichele matter came to the Supreme Court of Appeal
for the second time,109 the Court applied this reasoning in overturning its
initial decision, holding that, in view of the considerations outlined
above, the harm caused to the plaintiff by the negligent failure of the
police officers and public prosecutors was indeed wrongful.
Wrongfulness is a normative concept which is ultimately determined
by legal and public policy considerations and the Constitution now
informs this enquiry. This avenue of constitutional development does not
require amendment to the established legal rules and principles of the
common law, but does necessitate an adjustment in the way in which
these legal rules and principles have been applied in the past.110 It has
been particularly effective within the law of delict where its significant
impact is reflected in subsequent decisions regarding the imposition of
delictual liability.111

The common law is developed whenever an existing common-law rule is
changed. For instance, in Du Plessis v Road Accident Fund 112 the
appellant and the deceased were in a same-sex union when the deceased
was killed in a motor vehicle accident. On appeal, the primary question
was whether the appellant should be entitled to claim compensation for
loss of support from the respondent in terms of the Road Accident Fund
Act. After holding that the deceased owed the appellant a contractual
duty of support, the Constitutional Court had to determine whether the
common law should be developed to recognise the appellant’s right to
such support as being worthy of protection. The Court applied the
reasoning developed in Carmichele CC and Van Duivenboden and noted
that regard must be had to the spirit, purport and objects of the Bill of
Rights; and further, that the determination of wrongfulness had to occur
in the context of a constitutional state founded on dignity, equality and
freedom and in which the State had positive duties to promote such
values. The constitutional rights relevant to the development of this
sphere of the common law were those contained in sections 9 (equality)
and 10 (human dignity) of the Constitution.113 Ultimately, under the
indirect influence of the Constitution, the Court opted to develop the
common law and held that the appellant, as a same-sex partner of the
deceased in a permanent life relationship similar in other respects to
marriage and in which the deceased had undertaken a contractual duty
of support to him, is entitled to claim damages from the respondent for
loss of that support. Other courts have used this reasoning to extend
similar rights to dependent partners, children, and parents in customary-
law and Islamic relationships, gay and heterosexual co-habitation
relationships, adopted children, close family members and ex-
husbands.114
In Lee v Minister for Correctional Services 115 the plaintiff contracted
tuberculosis during his incarceration in the Pollsmoor Prison. He alleged
that the defendant had failed to implement a reasonable preventative
system to guard against the contagion of the disease, which failure was
not only negligent and wrongful, but also caused his infection.
Accordingly, he instituted a delictual claim for damages and the key legal
issue was whether factual causation had been proved.
The established common-law test for determining factual causation
is the so-called ‘but-for’ test,116 whereby a plaintiff is required to prove
that, but for the culpable act or omission of the defendant, the harmful
consequence in question would probably not have occurred.117 While the
High Court upheld the plaintiff’s claim, the Supreme Court of Appeal
dismissed it on the basis that it had not been shown that the defendant’s
wrongful and negligent failure to implement existing measures was the
factual cause of the plaintiff’s infection. The Court noted the peculiar
nature of a tuberculosis infection and the complexities in satisfying the
‘but-for’ test on the particular facts,118 but nonetheless, held that the
orthodox application of the established legal rule for determining factual
causation meant that the plaintiff could not be awarded a remedy in
delict.119
The Constitutional Court found that the Supreme Court of Appeal’s
application of the common law ‘but-for’ test had been too rigid.120
Although the Court, in a majority judgment, maintained that it was not
developing the common law of delict, it nevertheless repeatedly
emphasised the so-called flexibility of the ‘but-for’ test for factual
causation;121 and, by applying the established rule flexibly, the Court was
able to find the necessary factual link for the purposes of holding the
defendant delictually liable.122 Notwithstanding the fact that the
application of the so-called flexible approach enabled the Court to
establish the required factual link for the purposes of delictual liability,
Nkabinde J went further and argued that the orthodox ‘but-for’ test could
yield the same result.123 This conclusion was reached in the following
way: if reasonable conduct on the part of the prison authorities were to be
postulated, as is required in the application of the orthodox ‘but-for’ test,
the general risk of an infection would decrease and, on the basis of
inference, this also meant that the risk of an infection in respect of a
specific detainee (in this case, the plaintiff) would similarly decrease.124
Therefore, it is arguable that the majority of the Court did in fact develop
the common law in holding that factual causation could be established in
situations where the defendant’s conduct increased the risk of harm and
the harm in fact occurred.
PAUSE FOR It is arguable that, in departing from the orthodox understanding and application
of the established common-law rule for establishing the factual connection, by
REFLECTION
applying the so-called flexible test in circumstances where the defendant’s
conduct had increased the risk of harm, the majority of the Constitutional Court
changed the existing legal rule of the common law. The implications of this
approach are uncertain. The majority provided no guidelines or criteria for further
application of the so-called flexible approach. The new approach furthermore
undermines the constitutional principle of the rule of law, which is aimed at
providing legal certainty and making it easier to plan one’s affairs, to give reliable
legal advice and may result in an increase in costly, time-consuming and
undesirable litigation.125

In H v Fetal Assessment Centre 126 the plaintiff, a boy with Down’s
syndrome, instituted a delictual claim for the harm he had suffered from
the defendant’s alleged failure to warn his pregnant mother that there
was a high risk of him being born with the syndrome. The plaintiff alleged
that, if his mother had been informed of the risk, she would have
terminated the pregnancy. He claimed damages for past and future
medical expenses, for disability and for loss of amenities of life. The
defendant excepted to the claim on the basis that it failed to disclose a
cause of action, which was upheld by the High Court. The plaintiff
appealed directly to the Constitutional Court.
Our law recognises a parent’s claim in similar circumstances and at
issue was whether a child should also have a claim, which up to that
point our law had not recognised. The Constitutional Court had to
consider whether delictual liability should be expanded by recognising
the so-called claim for wrongful life. The Court found that the existing
authority barring the claim did not take sufficient account of the right of a
child in section 28(2) of the Constitution, nor other constitutional rights,
and that the common-law elements of delictual liability could
accommodate the claim.127 It accordingly referred the matter back to the
High Court to determine whether the claim should be allowed. If the
High Court follows the Constitutional Court’s lead and recognises the
new cause of action, it will amount to the introduction of a new legal rule.
2.5.4 Application of an established legal rule to a new set

of facts
In K v Minister of Safety and Security 128 three uniformed, on-duty police
officers raped the plaintiff after offering to give her a lift home. At issue
was whether the Minister of Safety and Security, as employer of the three
policemen, could be held vicariously liable for the wrongful and
intentional conduct of these employees. Previously the Supreme Court of
Appeal, in line with an earlier Constitutional Court decision, Phoebus
Apollo Aviation CC v Minister of Safety and Security,129 held that the test
for vicarious liability is constitutionally consistent and that the
application of the requirements for vicarious liability does not raise a
constitutional issue.130 However, on appeal the Constitutional Court
distinguished the Phoebus Apollo judgment. It found that the
requirements for vicarious liability, when applied to a new set of facts,
amounted to a development of the common law.131
Because the Constitutional Court interpreted the situation as a
development of the common law, such development was required to
occur in a manner that is consistent with constitutional rights and
values.132 Ultimately, by relying heavily on the plaintiff’s constitutional
rights to human dignity and safety and security, as well as the
constitutional norm of accountability, the Court developed the common-
law doctrine of vicarious liability by holding that the police officers were
acting in the course and scope of their employment when they
intentionally committed a violent crime.
COUNTER The Constitutional Court’s line of reasoning means in practice that the application
of any common-law rule or principle to a new set of facts will present
POINT
constitutional issues and call for the development of the common law. This may
place a heavy load on the already over-burdened courts to hear an inordinate
number of cases dealing with the constitutional development of the common law,
which in turn could be prejudicial to the administration of justice. In addition, it
could also undermine legal certainty pertaining to the existence and application
of established common-law rules, which, as mentioned above, may contribute to
the erosion of the constitutional principle of the rule of law.133
2.6 Conclusion
While its role is not always fully appreciated, the Constitution is core to
every aspect of the law of delict and delictual problems cannot be
resolved without the full understanding and acceptance that delict law
functions as part and parcel of a constitutional state. The Constitution
serves both an oversight and a supportive role. Delictual rules that run
contrary to constitutional rights and values must be made to comply,
while those that are compatible with the normative matrix that the
Constitution provides are supported and strengthened. Therefore, the
violation of a delictual interest ‘in the context of the violation of other
constitutional rights would ordinarily be regarded as more serious than
otherwise’,134 but similarly, a violation might not be as egregious if the
Constitution favours a plaintiff’s interest as well.
Carmichele v Minister of Safety and Security135
The facts of this case are set out in the text above.136 Because the case arguably illustrates most
dramatically the Constitution’s impact on the law of delict, we conclude this chapter by noting some of
the principles that this case highlights.
The High Court, and subsequently the Supreme Court of Appeal,137 dismissed the claim on the
grounds that neither the police nor prosecutors had acted wrongfully. These decisions reflected the
accepted delictual principles that applied at the time for determining the circumstances in which there is
a duty to act.
The issue in the Constitutional Court was whether to develop the law in light of Carmichele’s
contention that her rights to equality, life, human dignity, freedom of security and privacy had been
violated, as well as the constitutional provisions that relate to the functions of police. In particular, she
alleged that the State had a duty to protect women against violent crime and sexual abuse.
• The Constitutional Court reiterated that the Constitution is the supreme law and that the Bill of Rights
applies to all law, and when developing the common law, every court must promote the spirit, purport
and objects of the Bill of Rights, and where deviations are found to exist, remove that deviation.138 The
High Court and the Supreme Court had been requested to develop the common law and so these
principles applied. The constitutional obligation to develop the common law is not purely a discretionary
one, but a general one:139
We say a ‘general obligation’ because we do not mean to suggest that a court must, in each and
every case where the common law is involved, embark on an independent exercise as to whether the
common law is in need of development and, if so, how it is to be developed under section 39(2). At
the same time there might be circumstances where a court is obliged to raise the matter on its own
and require full argument from the parties.
The Court further noted:140

It was implicit in the applicant’s case that the common law had to be developed beyond existing
precedent. In such a situation there are two stages to the inquiry a court is obliged to undertake.
They cannot be hermetically separated from one another. The first stage is to consider whether the
existing common law, having regard to the section 39(2) objectives, requires development in
accordance with these objectives. This inquiry requires a reconsideration of the common law in the
light of section 39(2). If this inquiry leads to a positive answer, the second stage concerns itself with
how such development is to take place in order to meet the section 39(2) objectives.
• After noting the common-law test for wrongfulness in delict, and that it required courts to weigh and
strike a balance between the interests of parties and the conflicting interests of the community, the
Court commented:141
This is a proportionality exercise with liability depending upon the interplay of various factors.
Proportionality is consistent with the Bill of Rights, but that exercise must now be carried out in
accordance with the ‘spirit, purport and objects of the Bill of Rights’ and the relevant factors must
be weighed in the context of a constitutional state founded on dignity, equality and freedom and in
which government has positive duties to promote and uphold such values.
• The State is bound (directly) not to perform any act that infringes the rights to life, human dignity and
freedom and security of the person, and ‘(i)n some circumstances there would also be a positive
component which obliges the state and its organs to provide appropriate protection to everyone through
laws and structures designed to afford such protection’.142 The Court stressed that the Constitution ‘is
not merely a formal document regulating public power’, but ‘also embodies, like the German
Constitution, an objective, normative value system’ that provides a matrix within which the common law
must be developed.143
• The Court also provided an important caveat:
Not only must the common law be developed in a way which meets the section 39(2) objectives, but
it must be done in a way most appropriate for the development of the common law within its own
paradigm.144
• After referring to the principles that it set out earlier in Minister of Safety and Security v Van
Duivenboden,145 the Supreme Court of Appeal146 concluded that:
[S]omeone in the position of the plaintiff has no other effective remedy against the State, an action
for damages is the norm unless public policy considerations point in the other direction.147
The Court continued:148

Did the State owe a duty to the plaintiff? The answer lies in the recognition of the general norm of
accountability: the State is liable for the failure to perform the duties imposed upon it by the
Constitution unless it can be shown that there is compelling reason to deviate from that norm. In
Van Eeden,149 it is suggested that such a deviation might be warranted where it would not be in the
public interest to inhibit the police (and by parity of reasoning the prosecution) in the proper
performance of their duty. A deviation was not, however, considered to be necessary in that case.
Nor is there reason in this case to depart from the general principle that the State will be liable for
its failure to comply with its Constitutional duty to protect the plaintiff. On the contrary, the plaintiff
is pre-eminently a person who required the State’s protection. It was known by Klein, Hugo and
Louw that Coetzee resided in Noetzie with his mother. Noetzie is a small hamlet with a few houses.
Coetzee’s mother worked for Gosling in the house where the attack on the plaintiff occurred. She
regularly visited the house. She knew Coetzee. The attack took place within four months after his
release after the attack on Eurona Terblanche. The plaintiff was not simply a member of the public
whom the State had a duty to protect. She was a member of a class of people whom the State
would have foreseen as being potential victims of another attack by Coetzee. Proximity, while not an
independent requirement for wrongfulness, must surely reinforce the claim that the State should be
held liable for a culpable failure to comply with its duties. And foreseeability of harm is another
factor to be taken into account in determining wrongfulness. The greater the foreseeability, the
greater the possibility of a legal duty to prevent harm existing. This can be compared to the
development in English law in relation to the tort known as misfeasance by a public officer. An
element of this tort is, in our terms, dolus directus or eventualis: if a public officer knows that his
unlawful conduct will probably injure another or a class of persons, the State may be liable for the
consequences. (The question of foreseeability arises also, of course, when determining negligence:
but it may in appropriate cases play a role in determining whether the defendant should be held
liable for failure to perform a duty.)
1 Section 2.
2 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) paras 19 and 69.
5 Dendy v University of the Witwatersrand 2005 (5) SA 357 (W) para 19.
6 1997 (3) SA 786 para 1.
7 Para 66.
8 Para 60.
9 2004 (6) SA 40 (SCA). See also President of the Republic of South Africa v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2005 (5) SA 3 (CC).
10 Paras 42–43.
11 2006 (4) SA 478 (SCA).
12 2006 (4) SA 478 (SCA).
13 Para 27.
14 2014 (6) SA 256 (SCA).
15 1997 (3) SA 786 (CC) para 1.
16 Minister of Police v Mboweni 2014 (6) SA 256 (SCA) para 25.
17 Typically, personal rights, personality rights, immaterial property rights, real rights.
18 2005 (5) SA 357 (W); 2007 (5) SA 382 (SCA).
19 The plaintiff contended that his constitutional rights to equality, dignity, freedom of
conscience, freedom of expression, freedom of association, fair labour practices and just
administrative action had been violated.
20 Dendy contended that his constitutional rights to equality, dignity, fair labour practices,
access to information and just administrative action had been violated.
21 Para 15.
22 Paras 23–24.
23 Dendy v University of the Witwatersrand 2007 (5) SA 382 (SCA) paras 17–19.
24 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC). Also see President of the
Republic of South Africa v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources
Centre, Amici Curiae) 2005 (5) SA 3 (CC); MEC, Department of Welfare Eastern Cape v Kate
2006 (4) SA 478 (SCA); Dikoko v Mokhatla 2006 (6) SA 235 (CC); Zealand v Minister of
Justice and Constitutional Development 2008 (4) SA 458 (CC); 2008 (2) SACR 1 (CC).
25 Section 12 of the Constitution.
26 1997 (3) SA 786 para 1.
27 For example, the rights relating to life, human dignity and freedom and security of the
person.
28 Law Society of South Africa v Minister of Transport 2011 (1) SA 400 (CC) para 73.
29 Para 73.
30 Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici
Curiae) 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC) para 31.
31 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening)
2001 (4) SA 938 (CC) para 33.
32 Van der Walt and Midgley Principles of the Law of Delict 4 ed (2016) para 19.
33 Section 8(2).
34 2002 (5) SA 401 (CC) paras 30–31.
35 Para 31.
36 Para 41.
37 Para 31.
38 Para 32.
39 2007 (5) SA 382 (SCA).
40 Paras 17–19.
41 Section 39(2) of the Constitution.
2001 (4) SA 938 (CC) para 54; Minister of Safety and Security v Van Duivenboden 2002 (6) SA
431 (SCA) para 17; Van Eeden v Minister of Safety and Security (Women’s Legal Centre
Trust as Amicus Curiae) 2003 (1) SA 389 (SCA) para 12.
43 S v Thebus 2003 (6) SA 505 (CC) paras 34 and 39.
44 2003 (6) SA 505 (CC) para 28.
45 2007 (5) SA 382 (SCA).
46 Para 22. See also S v Thebus 2003 (6) SA 505 (CC) para 45.
47 S v Thebus 2003 (6) SA 505 (CC).
48 Para 23.
49 Para 24.
50 2003 (6) SA 505 (CC) para 28.
51 Van der Walt and Midgley (2016) paras 21 and 25.
52 2001 (4) SA 938 (CC).
53 Para 40.
54 Para 39.
55 Para 55.
56 Para 36.
57 Para 55.
58 Currie and De Waal Bill of Rights Handbook 6 ed (2013) at 56–66.
59 See in general, Van der Walt and Midgley (2016) paras 22–24 and 25. There are other ways of
grouping these values, of course. We have merely chosen a way that suits us here.
60 S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) para 41.
61 Including Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC); Van Eeden v Minister of Safety and Security (Women’s
Legal Centre Trust as Amicus Curiae) 2003 (1) SA 389 (SCA); Dendy v University of the
Witwatersrand 2007 (5) SA 382 (SCA); NM v Smith (Freedom of Expression Institute as
Amicus Curiae) 2007 (5) SA 250 (CC).
62 Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening) [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA); Du Plessis v Road Accident
Fund 2003 (11) BCLR 1220 (SCA); 2004 (1) SA 359 (SCA); Langemaat v Minister of Safety and
Security 1998 (3) SA 312 (T).
63 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC).
64 1998 (1) SA 300 (CC) para 53.
65 1999 (2) SA 1 (CC).
66 Para 17.
67 Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) paras 34–35.
68 Mvumvu v Minister of Transport [2011] 1 All SA 90 (WCC).
69 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC) para 143.
70 These values are repeated in section 195 in respect of public administration.
71 2002 (6) SA 431 (SCA).
72 Para 19.
73 Para 21. See also Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust
as Amicus Curiae) 2003 (1) SA 389 (SCA) and Carmichele v Minister of Safety and Security
(Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC).
74 [2003] 2 All SA 465 (SCA).
75 Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 58; Argus Printing & Publishing Co Ltd v
Esselen’s Estate 1994 (2) SA 1 (A) at 25B–E; Hix Networking Technologies v System
Publishers (Pty) Ltd 1997 (1) SA 391 (A) at 400.
76 S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) para 41:
With us the right to freedom of expression cannot be said automatically to trump
the right to human dignity. The right to dignity is at least as worthy of protection as
the right to freedom of expression. How these two rights are to be balanced, in
principle and in any particular set of circumstances, is not a question that can or
should be addressed here. What is clear though and must be stated, is that
freedom of expression does not enjoy superior status in our law. (See also para 37.)
77 The Citizen 1978 (Pty) Ltd v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191
(CC); 2011 (8) BCLR 816 (CC) para 148.
78 Khumalo v Holomisa 2002 (5) SA 401 (CC) para 25.
79 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) at 1209–1211; Holomisa v Argus
Newspapers Ltd 1996 (2) SA 588 (W). Freedom of expression also featured in The Citizen
1978 (Pty) Ltd v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC) ; 2011
(8) BCLR 816 (CC) paras 78 and 141–153, and Le Roux v Dey (Freedom of Expression
Institute and Restorative Justice Centre as Amicus Curiae) 2011 (3) SA 274 (CC) para 47.
80 2003 (1) SA 389 (SCA) para 13.
81 2001 (4) SA 938 (CC). See also Hoffmann v South African Airways 2001 (1) SA 1 (CC).
82 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC).
83 See, for example, paras 32–34, 46, 48–50, 53–57 and 210–215.
84 Para 46.
85 Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amicus
86 2001 (4) SA 938 (CC).
87 Carmichele v Minister of Safety and Security and Minister of Justice (11 November 1997,
CPD, unreported).
88 Carmichele v Minister of Safety and Security 2001 (1) SA 489 (SCA) at 494–497.
89 2001 (4) SA 938 (CC) para 39.
90 Carmichele v Minister of Safety and Security 2003 (2) SA 656 (C).
91 Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA).
92 2002 (6) SA 431 (SCA).
93 Paras 12–13.
94 1975 (3) SA 590 (A).
95 2002 (6) SA 431 (SCA) paras 12–13.
96 2002 (6) SA 431 (SCA) paras 16–18.
97 Brand ‘Influence of the Constitution on the Law of Delict’ (2014) 27(1) Advocate 42 at 42–43.
98 2002 (6) SA 431 (SCA) paras 16–18.
99 Para 19.
100 Paras 19–20.
101 Para 20.
102 Para 20.
103 Para 21.
104 See also section 41(1) of the Constitution, which expressly provides that all spheres of
government and all organs of state within such sphere must provide government that is not
only effective, transparent, and coherent, but also accountable.
105 Para 22.
106 Para 23.
107 Paras 24–30.
108 Para 22.
110 Brand (2014) at 43.
111 See, for example, Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust
as Amicus Curiae) 2003 (1) SA 389 (SCA); Minister of Safety and Security v Hamilton 2004
(2) SA 216 (SCA), Minister of Finance v Gore NO 2007 (1) SA 111 (SCA); Dendy v University
of the Witwatersrand 2007 (5) SA 382 (SCA); NM v Smith (Freedom of Expression Institute
as Amicus Curiae) 2007 (5) SA 250 (CC), Minister of Correctional Services v Lee 2012 (3) SA
617 (SCA).
112 2003 (11) BCLR 1220 (SCA); 2004 (1) SA 359 (SCA).
113 In particular sections 9(4) and 9(5), which provided that no person may unfairly
discriminate against anyone on the ground of sexual orientation and that discrimination on
this ground is presumed to be unfair.
114 Fosi v RAF 2008 (3) SA 560 (C); MB v NB 2010 (3) SA 220 (GSJ); Verheem v RAF 2012 (2) SA
409 (GNP); Paixão v Road Accident Fund 2012 (6) SA 377 (SCA); Mnguni v RAF 2015 JDR
1723 (GP); Osman v Road Accident Fund 2015 (6) SA 74 (GP); Seleka v RAF 2016 (4) SA 445
(GP). For more detail, see Chapter 23.
115 2013 (2) SA 144 (CC).
116 Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC) para 65; South
African Hang and Paragliding Association v Bewick 2015 (3) SA 449 (SCA) para 34.
117 Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA) para 46; Minister of Police v
Skosana 1977(1) SA 31 (A) at 35.
118 Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA) paras 1–10, 51–55 and 62–67;
Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) paras 82–87.
119 Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA) paras 44, 46–47, 56 and 61–67.
120 Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) paras 44–46.
121 Paras 44–50.
122 Paras 41, 43, 45, 47, 49, 50, 63 and 73.
123 Paras 58–70.
124 Paras 58–70.
125 See Wessels ‘Alternatiewe benaderings ten opsigte van feitelike kousaliteit in die deliktereg’
(2013) 10(3) Litnet Akademies (Regte); Price ‘Factual Causation after Lee’ (2014) 131(3)
SALJ at 491.
126 2015 (2) SA 193 (CC).
127 Paras 52 and 53.
128 K v Minister of Safety and Security 2005 (9) BCLR 835 (CC); 2005 (6) SA 419 (CC) at 432.
129 2003 (2) SA 34 (CC).
130 2005 (3) SA 179 (SCA) para 8.
131 Paras 16–20.
132 K v Minister of Safety and Security 2005 (9) BCLR 835 (CC); 2005 (6) SA 419 (CC) at 432.
133 See also Fagan ‘Reconsidering Carmichele’ (2008) 125(4) SALJ 659 at 672, who maintains
that the Constitutional Court has misinterpreted section 39(2) of the Constitution. He
submits that, properly interpreted, it does not impose a duty on courts to develop the
common law whenever that would promote human rights. He argues that it only obliges a
court which has decided to develop the common law for other reasons to ensure that this
independently justified development also promotes human rights, and the values
underlying it.
135 2001 (4) SA 938 (CC).
136 See section 2.5.1.
2001 (4) SA 938 (CC).
138 Para 33.
139 Para 39.
140 Para 40.
141 Para 43.
142 Para 44.
143 Para 54.
144 Para 55.
145 2002 (6) SA 431 (SCA) paras 21–22.
147 Para 38.
148 Paras 43–44.
149 Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust as Amicus Curiae)
2003 (1) SA 389 (SCA).
Chapter 3
Delict in a multi-cultural society
3.1 Introduction

3.5.2 Defamation
3.5.3 Remedies
3.6 Conclusion
3.1 Introduction
At the outset of this book we claim that the South African law of delict is a
hybrid system, grounded in Roman law, yet reflecting a variety of
influences from other legal systems. We note further that society’s legal
convictions, or boni mores must express society’s views on what it
considers acceptable behaviour, and what it considers not. Some would
argue, however, that the claim is not entirely accurate, in that our law of
delict reflects by and large imported legal cultures and values without
recognising and assimilating the rules and values of the country’s
indigenous peoples. The truth is that the customary law of delict
continues to operate as a distinct system which ‘lives side by side with the
common law’ 1 and its impact on the common law has been minimal.
Others will point out that, similarly, Islamic law, applicable to a well-
defined sector of our society, is not afforded sufficient recognition.
The purpose of this chapter is to document and explore the extent to
which the Constitution of the Republic of SA, 1996 has stimulated
internal transformation of our law of delict towards a situation where its
principles and rules could be considered a true amalgam that expresses
the values of the country’s entire population.2 Our aim is not to traverse
specific customary-law delicts. Instead, the focus in this chapter is on
how, if at all, principles and values of African, Muslim and Hindu cultures
have come to influence and enrich our common-law principles of delict.

The Constitution has created a window of opportunity for moulding an
inclusive, plural South African legal culture,3 which embraces and
respects the dignity of all its citizens.4 To be legitimate, the country’s legal
culture (including its boni mores) must therefore, in appropriate
circumstances, recognise and reflect some of the values that inform the
cultural practices of all its peoples.5 Yet, in reality, references to
indigenous customs and cultural values when applying delictual
principles have been scant.6
The Constitution obliges courts to apply customary law 7 provided
that it is consistent with the Bill of Rights and, further, that it has not been
changed by legislation that deals specifically with customary law.8 This
means that for those people who structure their lives according to
traditional culture,9 either completely or only in respect of certain
transactions,10 customary law 11 serves as a separate legal system, to be
applied to them in the first instance. However, being culture dependent,
there is no uniform system of customary law in our plural society and
there are no fixed criteria for determining when customary law is
applicable to a particular situation.12 Regarding delict specifically,
‘reference to the way parties live and thus their overall cultural
orientation, has had a strong influence on choice of law’. 13
Although they are also distinct systems, Islamic law and customs and
Hindu law and customs are not similarly recognised as systems that
receive priority in specific instances.
Their role, as with ‘living’ 14 or ‘unofficial’ African customs,15 is to inform
and enrich the normative base upon which judges make discretionary
value judgements in applying and developing the common law of delict.
The constitutional gateway for multi-cultural values to become
embedded in the law of delict is two-pronged:
• Section 9(3) protects persons from discrimination on cultural
grounds.
• Sections 30 and 31 entrench the right of cultural communities to
practise and enjoy their culture.
This means that an ‘ethos of tolerance, pluralism and religious freedom’,

different from that which in the past ‘informed the determination of the
boni mores of the community’ is now required.16 Customary law and
other cultural values must now be considered when courts develop the
law 17 and there is increasing evidence that courts are willing to consider
living customary law and other unofficial laws in resolving disputes.18
Fosi v RAF19
As part of an extensive discussion on the role of customary law, the Court said:20
We now live in a constitutional democracy. Customary law should not only be tolerated (as was
the position in the past) but it must be recognised, applied and married to the existing Roman-
Dutch legal system currently in place in this country.
It took the promulgation of an interim Constitution (The Constitution of the Republic of South
Africa Act 200 of 1993) that customary law became a matter of constitutional importance in
the legal history of this country. It was at this stage that it became apparent that customary law
was now being treated as a foundation of the South African legal system virtually on the same
terms as Roman-Dutch law. The position presently is that s 211(3) of the Constitution of the
Republic of South Africa, 1996, determines that all courts in South Africa must apply customary
law where appropriate, subject to the Constitution and legislation that deals in particular with
customary law. The Constitution is the supreme law in this country. Finally, full recognition has
been given to customary law. The courts are obligated to apply it in disputes where applicable.
Full recognition and the obligatory application of customary law in instances where it is indeed
applicable comes with an added obligation to the administrators of justice (magistrates and
judges) to actively engage in the development of customary law. I am thus constitutionally
enjoined to develop customary law and bring it to the same level reached by common law. The
plaintiff in this matter is an African (black) person. The deceased was a black person. I fail to
see why I should not apply customary law that governed them.
I have shown above that customarily the child who is financially able to do so is under an
obligation to maintain his needy parent. There is no reason, in my view, why consideration
should not be given to this portion of customary law in the determination of liability of the Road
Accident Fund towards a parent who has lost a child in a motor vehicle accident caused by the
negligent driving thereof. I hold therefore that, even on this consideration, the Road Accident
Fund cannot escape liability towards the plaintiff in this matter.
PAUSE FOR Should cultural values be imposed on others?

If the South African boni mores (the societal values that underpin legal policy
REFLECTION
decisions) are to reflect cultural values, would this not amount to cultural
practices being imposed upon persons who do not adhere to such practices? On
the other hand, could it not be argued that this is exactly what has been
happening all along in that a Western culture has been imposed on indigenous
people? Should any particular cultural dominance be curtailed? How?

According to Mqeke,21 African legal tradition exhibits the following
characteristics: customary and religious foundations, communal
traditions, collective responsibility, flexibility and reconciliation,
integration of law, religion and morality and symbolism in making the
law an effective instrument of social control. There is no clear distinction
between delict and criminal law.22 An essential feature of delictual
obligations in customary law is that they exist in a group context and are
manifested in group rights and group liability.23
Customary law delicts cover:
• A variety of sexual wrongs (seduction,24 impregnation of unmarried
women,25 adultery,26 as well as intercourse with an ukungena
partner,27 a widow, or a former customary law wife) 28
• Abduction of brides-to-be (ukuthwala) 29 and its associated bopha 30
claim
• Damage to movable or immovable property 31
• Assault 32
• Theft 33
• Defamation, in limited instances.34
The nature of these delicts and the circumstances in which they apply are
fully discussed elsewhere.35 Suffice it to say here that some of these delicts
might have to be reconsidered for compatibility with constitutional
principles and values, in the same way as the common law regarding
adultery and breach of promise have been re-examined; 36 and the
principles applicable to these delicts have not been considered when
courts deal with corresponding situations in terms of the common law.
PAUSE FOR Should customary law delicts influence the general principles of common
REFLECTION law?
Should customary law delicts, although part of a separate legal regime, influence
common-law general principles in overlapping circumstances? Consider, for
example:
• Passing references have been made to the fact that a kraalhead’s liability
is an indication that vicarious liability is found in both common law and
customary law.37
• Both systems accept the concept of young persons being doli incapax, in
that household heads do not incur liability where children who caused
harm lacked the ability to distinguish between right and wrong.38
Both customary law and common law recognise liability for damage caused by
animals to persons and to property, also damage to crops.39 Should the
principles applicable to the actio de pauperie and the actio de pastu be modified
in certain circumstances?
When courts apply or develop delictual principles, the role of customary

law is still in its infancy. Nonetheless, as will be seen in the rest of this
chapter, the value of ubuntu-botho has already been used to good effect.
TERMINOLOGY Ubuntu-botho
Mokgoro J described the concept in S v Makwanyane 1995 (3) SA 391
(CC), 1995 (6) BCLR 665 (CC) para 308:
Generally, ubuntu translates as ‘humaneness’. In its most

fundamental sense, it translates as personhood and ‘morality’.
Metaphorically, it expresses itself in umuntu ngumuntu ngabantu,
describing the significance of group solidarity on survival issues so
central to the survival of communities. While it envelops the key
values of group solidarity, compassion, respect, human dignity,
conformity to basic norms and collective unity, in its fundamental
sense it denotes humanity and morality. Its spirit emphasises respect
for human dignity, marking a shift from confrontation to conciliation.
In South Africa ubuntu has become a notion with particular resonance
in the building of a democracy. It is part of our rainbow heritage,
though it might have operated and still operates differently in diverse
community settings. In the Western cultural heritage, respect and the
value for life, manifested in the all-embracing concepts of ‘humanity’
and ‘menswaardigheid’ are also highly priced. It is values like these
that [Section 35 of the Constitution] requires to be promoted. They
give meaning and texture to the principles of a society based on
freedom and equality.
Botho is the Sesotho and Setswana equivalent of the Nguni languages’

expression ubuntu. It bears the same essential meaning.

Islamic law ‘comprises the ethos of religion, the precepts of ethics, the
tenets of the law and the bases of other disciplines’ moulded into a
system that governs ‘all aspects of human life’;40 and similarly, Hindu law
is a culture-specific system of law that interlinks ‘religion, social and
moral rules, ethics, justice and the principles of law’. 41 Thus far the only
area in delict in which Muslim and Hindu culture and values have been
given pertinent effect has been in respect of claims for loss of support.

The dependants’ action is the area in which the most significant
transformative development has taken place and is the only sphere in
which African, Muslim and Hindu cultures have been integrated into
mainstream delictual principles.
The common-law position was that customary unions and Islamic
marriages, being potentially polygamous, were not valid marriages 42 and
so could not give rise to a legally recognised duty of support in respect of
partners to the relationship and between parents and children.43 Amod v
Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening) 44 provided the watershed. In that case, the
discriminatory effect of the common-law provision led to the
development of the law.45
Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening)46
A widow who had been married in terms of Islamic law claimed damages for loss of support. The
discriminatory effect of the common law on dependants of persons married in terms of Islamic law was a
key reason for recognising the widow’s claim.47 The Court noted:48
[I]t was common cause that the Islamic marriage between the appellant and the deceased was
a de facto monogamous marriage; that it was contracted according to the tenets of a major
religion; and that it involved ‘a very public ceremony, special formalities and onerous
obligations for both parents in terms of the relevant rules of Islamic law applicable’. The
insistence that the duty of support which such a serious de facto monogamous marriage
imposes on the husband is not worthy of protection can only be justified on the basis that the
only duty of support which the law will protect in such circumstances is a duty flowing from a
marriage solemnised and recognised by one faith or philosophy to the exclusion of others. This
is an untenable basis for the determination of the boni mores of society. It is inconsistent with
the new ethos of tolerance, pluralism and religious freedom which had consolidated itself in the
community even before the formal adoption of the interim Constitution on 22 December 1993.
I have no doubt that the boni mores of the community at the time when the cause of action
arose in the present proceedings would not support a conclusion which denies to a duty of
support arising from a de facto monogamous marriage solemnly entered into in accordance
with the Muslim faith any recognition in the common law for the purposes of the dependant’s
action; but which affords to the same duty of support arising from a similarly solemnised
marriage in accordance with the Christian faith full recognition in the same common law for the
same purpose; and which even affords to polygamous marriages solemnised in accordance with
African customary law exactly the same protection for the same purpose, (by virtue of the
provisions of section 31 of the Black Laws Amendment Act 76 of 1963 which reverses the
consequences of the Fondo judgment in respect of customary marriages). The inequality,
arbitrariness, intolerance and inequity inherent in such a conclusion would be inconsistent with
the new ethos which prevailed on 25 July 1993 when the cause of action in the present matter
commenced. The boni mores of the community would at that time support the approach which
gave to the duty of support following on a de facto monogamous marriage in terms of the
Islamic faith the same protection of the common law for the purposes of the dependant’s
action, as would be accorded to a monogamous marriage solemnised in terms of the Christian
faith.
The Court emphasised that its decision was based on the de facto monogamous nature of the marriage
in the case before it. It left open whether the same result would have obtained ‘if the deceased had been
party to a plurality of continuing unions’.49 That issue is still to be decided, but the Constitutional Court
has suggested that it might be similarly unfairly discriminatory if the right were not extended to
polygynous Muslim marriages.50
In line with this approach, courts have not shied away of granting a
remedy to dependent partners, children, and parents in customary-law 51
and Islamic 52 relationships. Significantly, however, courts have relied on
African, Muslim and Hindu norms to extend the dependants’ action to
co-habitation relationships (gay and heterosexual), adopted children,
close family members and ex-husbands.53 Underpinning this
development is the contention that society’s culture and morality should
determine whether there is a ‘duty worthy of protection’ 54 which can
arise voluntarily out of a sense of duty.55 In JT v RAF 56 the Court noted:
A duty of support between de facto family members is one of those areas in which
the law gives expression to the moral views of society.57
Fosi v RAF58
A parent sued for loss of support of a deceased child, one of the issues being whether the child had a
legal duty to support and maintain the parent. The Court said:59
African law obligates a child who is financially able to do so to provide maintenance to his/her
needy parents. When an African (black) provides support and education to his/her
son/daughter, he/she is not only under a duty to do so on the strength of the South African
legal system, but custom also obliges such a parent. In fact, in African tradition to bring up a
child is to make for oneself an investment in that when the child becomes a grown-up and is
able to participate in the labour market, that child will never simply forget about where he came
from. That child, without being told to do so, will make a determination (taking into account the
amount he/she earns, her travelling to and from work, food to sustain himself and personal
clothing, etc) of how much he must send home to the parents on a monthly basis. This duty is
inborn and the African child does not have to be told by anybody to honour that obligation. In
fact, that is the trend in almost all black families in rural areas including the so-called urban
black communities. In each family there would invariably be one or two sons or daughters who
is/are employed. Those children in employment provide their individual parental home with
hope in life in that they monthly and without fail send money to their parents so that basic
necessities of life are afforded by the latter. It is for this reason that the plaintiff was puzzled on
being asked in cross-examination why the deceased sent her money. Her answer was rather
telling: ‘Because the deceased knew where he was coming from’. The duty of a child to support
a needy and deserving parent is well known in indigenous/customary law. It is observed by such
children. There is always an expectation on the part of a parent that his child will honour this
duty.
In African law it is most certainly an actionable wrong on the part of the child who is financially
able not to provide support to his needy and deserving parents. Quite apart from it being an
actionable wrong, failure to maintain one’s parents by a child who is financially able to do so is,
in black traditional law, contrary to public policy (contra bonos mores). The parent can
successfully proceed civilly against such a child in traditional courts. It is also a morally
reprehensible act to fail to maintain one’s own parents who are in need of such maintenance. If
the parents were to decide not to lodge a complaint before the tribal court, but opt somehow to
alert members of the immediate family about this predicament, such a child would be
ostracised and be looked down upon as a person who has no ubuntu. The latter scenario is
rather rare because as stated above every African child is born with this duty consciousness
never to forget his/her roots. It is unacceptable to African traditional law that the death of a
child who is employed and who is conscious of his duty to support and sustain his parent,
should not entitle the parent who has lost such support as a result of the untimely death of
such a child consequent upon any wrongful act on the part of anybody including an accident
caused by a negligently driven motor vehicle (as in the instant matter) to claim that support.
Osman v Road Accident Fund60

The deceased’s mother claimed damages from the Road Accident Fund on the basis that she was
indigent and that, while alive, her son had supported her. (Even though her husband was still alive, they
were separated and he did not support her.) Her son had been married and she lived in the same house
as he did. At issue in this instance, was whether the Court should extend the common law so as to allow
the mother’s claim. In the course of doing so, the Court said:
There can be no doubt that in certain cultures such as Muslim or Hindu cultures, amongst
others, there is a similar duty upon children [as in customary law]61 to support their parents … .
In these communities the family is not restricted to the nuclear family but rather to the
extended family. It is not uncommon for grand-parents or even an aunt who is single to live with
the family. The deceased lived with his mother and wife in the same home. The plaintiff’s
evidence was that she never worked at all. It is clear that she was dependent upon him to the
same extent as a child, had there been one. In these societies there are hardly any old age
homes or places where old people can retire. This is not because these communities cannot
afford to build such institutions but rather because the societal mores scorns upon children who
do not take care of their aged parents.62
As in African culture and tradition there is a moral and social duty in Muslim and Hindu cultures
as well, which is family orientated in the sense of the extended family looking after its elders.
Elderly parents often reside with one or other child who supports them and caters for their
wellbeing. Old age homes are almost non-existent in these cultures. The social mores of such
societies dictate that parents and the elderly are cared for and where this is not done there is a
social stigma associated with it.63
The Court stated explicitly that it took it upon itself to extend the
common law. While it is not clear from the judgment, one can assume
that Ms Osman and her son lived within a Muslim and/or Hindu
community and shared those cultural values. Should this judgment be
read as extending the common law to litigants from that community
only? Or does the extension apply to all litigants, irrespective of their
cultural background? How would the values of equality and legal
pluralism require us to interpret this judgment? (Compare the views of
Dlodlo J in Fosi v RAF, 64 quoted in section 3.2 above, which appears to
restrict that judgment to a particular sector of society only.)
JT v RAF65
A grandmother had adopted her teenage granddaughter when she was seven years old. However, her
biological father maintained a father-daughter relationship with her and voluntarily continued to support
her until his death in a motor vehicle accident. On being sued, the Road Accident Fund contested liability
on the basis that the deceased’s legal obligation to support his child had been extinguished when the
child was adopted. After an extensive review of relevant case law, the Court said:66
It seems to me that these cases demonstrate that the common law has been developed to
recognise that a duty of support can arise, in a given case, from the fact-specific circumstances
of a proven relationship from which it is shown that a binding duty of support was assumed by
one person in favour of another. Moreover, a culturally imbedded notion of ‘family’, constituted
as being a network of relationships of reciprocal nurture and support, informs the common
law’s appetite to embrace, as worthy of protection, the assumption of duties of support and the
reciprocal right to claim support, by persons who are in relationships akin to that of a family.
This norm is not parochial but rather is likely to be universal, it certainly is consonant both with
norms derived from the Roman–Dutch tradition, as alluded to by Cachalia JA in Paixão v RAF
supra67 and, no less, from norms derived from African tradition, not least of all as exemplified
by the spirit of Ubuntu, as mentioned by Dlodlo J in Fosi v RAF supra.68
Society’s morality is a strong theme throughout this judgment as the Court sought to determine whether
there was a right worthy of protection. It is also clear that customary values played a central role in the
Court’s conclusion that the ‘common law ought to be developed to embrace’ the norm that a duty of
support exists between de facto family members’.69
3.5.2 Defamation
In Mogale v Seima70 the Supreme Court of Appeal noted:
[I]ndigenous law also does not in general allow damages claims for defamation
unless allegations of witchcraft are involved.71
As a result, the opportunities for influencing the general principles of

defamation were limited, where they did occur, courts for many years
followed a restrictive approach.
It has long been the law that the defamatory nature of material is
assessed through the eyes of right-thinking persons generally, which
meant that courts would not have regard to the views and opinions of a
particular segment of society.72 So, in Omarjee v Post Newspapers (Pty)
Ltd 73 the Court could not take into account that comments which were
not defamatory to women generally could be defamatory in respect of the
two Muslim women plaintiffs; and in HRH King Zwelithini of KwaZulu v
Mervis 74 the Court did not entertain the view that Zulu people might
regard the term ‘isoka’ (ladies man) to be defamatory when referring to
the King. In both these instances cultural values were not considered in
resolving the issues.
A sectoral approach does not suit a heterogeneous society 75 and so
in Mohamed v Jassiem 76 the Appellate Division modified the applicable
rule:77
[W]here the statement complained of is alleged to be defamatory only in the eyes of
a particular segment of society … it is the reaction of ‘right-thinking members of
that segment of society’ which becomes the yardstick rather than that of ‘right-
thinking’ members of society generally.
The rule change did not come about through any consideration of
cultural values, but rather through the recognition that the relevant
norms of Muslim society were not anti-social or contra bonos mores.78
The change to the common-law rule now allows courts greater freedom
to consider sectoral values in determining whether material ought to be
considered defamatory.
3.5.3 Remedies
Although not expressly stated in the judgment, tolerance of defamatory
conduct in customary law appears to have been one of the factors which
influenced the Court in Mogale v Seima79 to reduce the damages award.
There appears to be no other reported instance where this issue was
considered.
By far the most significant influence of customary values on the
common-law principles of delict relate to the remedy of retraction and
apology.
In Dikoko v Mokhatla 80 Sachs J said:81
In present day terms [ubuntu-botho] has an enduring and creative character,
representing the element of human solidarity that binds together liberty and
equality to create an affirmative and mutually supportive triad of central
constitutional values. It feeds pervasively into and enriches the fundamental rights
enshrined in the Constitution.
In that case, Mokgoro J and Sachs J relied on the restorative nature

inherent in ubuntu-botho to advocate for retraction and apology to be
recognised as an appropriate remedy for defamation.82 In particular,
Mokgoro J noted: 83
The primary purpose of a compensatory measure, after all, is to restore the dignity
of a plaintiff who has suffered the damage and not to punish a defendant. A remedy
based on the idea of ubuntu or botho could go much further in restoring human
dignity than an imposed monetary award in which the size of the victory is
measured by the quantum ordered and the parties are further estranged rather
than brought together by the legal process. It could indeed give better appreciation
and sensitise a defendant as to the hurtful impact of his or her unlawful actions,
similar to the emerging idea of restorative justice in our sentencing laws.
Although these were minority views, they did stimulate similar

sentiments in subsequent judgments. In Le Roux v Dey (Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae) 84 the
Constitutional Court confirmed that retraction and apology is an
appropriate remedy in certain instances. The Court noted that in this
regard customary law and tradition, and Roman-Dutch law had similar
roots which with ‘mature reflection and consideration’ could be melded
into a single system of law.85 It suggested that aspects of restorative justice
could be considered when the amount of damages is measured, but that
this should be done on a case-by-case basis.86
PAUSE FOR Should ubuntu-botho play a more prominent role in the law of delict?
REFLECTION Keep and Midgley suggest:87
While the emphasis thus far has been on using ubuntu-botho values
in finding an appropriate remedy, there is also scope for the
philosophy to permeate other areas in the law of delict – the
wrongfulness element, for example, an area where norms are
prominent and in which the Constitution has already had substantial
influence. In future one might possibly find ubuntu-botho being used,
not only in cases involving bodily integrity, dignity, privacy and
reputation, but also to reinforce responsibility – of the state and of
private persons – where vulnerable and marginalised sectors of
society are harmed.
They also ponder a more global role for ubuntu-botho:88
[I]f an emphasis on African values can shape and enhance human

rights jurisprudence in South Africa, and give dignity to ideas that
emanate from Africa without offending or eroding contributions of
other societies, why, in the spirit of ubuntu-botho, should African
values also not contribute more in the international domain? Already
restorative criminal justice expressing values similar to ubuntu-botho
has been espoused in a number of countries … and there are many
similarities between ubuntu-botho and the ‘poldermodel’ of The
Netherlands ... Such harmonisation might not be as daunting as it
may at first seem.
The authors believe that ubuntu-botho has a significant transformative role to

play within the South Afican law of delict. Is this view realistic?
3.6 Conclusion
We have not been concerned, in this chapter, with the nature of legal
pluralism.89 Our aim has been, more narrowly, to point to some of the
areas in which the common law has evolved, or is capable of evolving,
towards a law of delict that is more inclusive of cultural nuances than in
the past. Our contention is that, apart from the dependants’ action and to
a lesser extent, retraction and apology in defamation cases, progress has
been piecemeal and slow; and that courts have not had much cause to
grapple with these issues. The door is not closed, however, and there is
room for the emergence of a more inclusive and legitimate legal culture.
We agree with Nhlapo when he suggests:
Essentially, the proposal is to grasp more boldly the merits of infusing African
values into South Africa’s legal and moral arena. This necessitates in the first
instance an acknowledgement of the existence of African values, which display a
different emphasis from the Western world view, and an acceptance that these
values do have a positive contribution to make in creating the new South African
society.90
PAUSE FOR A decolonised and afro-centric law of delict?

Student protests since 2015 have not been only about free tertiary education. In
REFLECTION
addition, students have demanded decolonised and afro-centric education,
among other things. Nhlapo argues:91
[I]n 20 years of democracy both the legislature and the judiciary
have too often opted for the easy path, in contrast with the more
difficult path that requires us to take seriously the Constitution’s
attempt to infuse African values into the common culture of the new
South Africa, including its legal culture.
Our law of delict is steeped in the Roman-Dutch tradition. While there are signs
of some afro-centricism, has the infusion of a human rights culture contributed to
decolonising the law of delict? What else could realistically be done?
1 Gumede (born Shange) v President of the Republic of South Africa 2009 (3) SA 152 (CC);
2009 (3) BCLR 243 (CC) para 22. See also Mthembu v Letsela 1997 (2) SA 936 (T) at 936B–C.
2 This is in line with Nhlapo’s view that courts and lawmakers should accept that customary
values ‘have a positive contribution to make in creating the new South African society’
(Nhlapo ‘Customary law in post-apartheid South Africa: constitutional confrontations in
culture, gender and “living law”’(2017) 33(1) SAJHR 1 at 22.
3 Keep and Midgley ‘The Emerging Role of Ubuntu-botho in Developing a Consensual South
African Legal Culture’ (2007) 29 at 29–30.
4 The Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd In Re Hyundai Motor Distributors (Pty) Ltd v Smit No 2001 (1) SA 545 (CC); 2000
(10) BCLR 1079 (CC) para 21. See also Amod v Multilateral Motor Vehicle Accidents Fund
(Commission for Gender Equality Intervening) [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319
(SCA) para 22.
5 Keep and Midgley (2007), at 29 and 56, argue that there is a ‘real need in South Africa for
legitimating the legal system and to develop a legal culture that expresses values originating
in African societies’ and that a ‘break from past domination of one school of thought over
another needs to be emphasised’.
6 Van der Walt and Midgley Principles of Delict 4 ed (2016) paras 23 and 24.
7 Van der Walt and Midgley (2016) point out (para 23 fn 1) that a distinction is drawn between
‘official customary law’ (primarily the law found in the written sources of customary law)
and ‘living customary law’ (the law as evidenced by current practices in communities: Bhe v
Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v
Sithole; South African Human Rights Commission v President of the Republic of South
Africa 2005 (1) SA 580 (CC), 2005 (1) BCLR 1 (CC) paras 87 and 152). See, generally,
Himonga and Nhlapo (Eds) African Customary Law in South Africa (2014) at 23–39.
Although the traditions and practices of various cultural communities will differ, there
remain sufficient similarities and communalities to speak of an African legal tradition
(Mqeke Customary Law and the New Millennium (2003) at 16).
8 Section 211(3) of the Constitution of the Republic of SA, 1996. See also sections 31(2) and
39(3). Section 6 of the Recognition of Customary Marriages Act 120 of 1998, which gives a
customary law wife the right to sue and be sued, is an example of legislation that has altered
customary law. Although the Act has also ‘virtually abolished the custom of ukuthwala’
(Mqeke (2003) at 115), it is uncertain whether the right to claim compensation has similarly
fallen away.
9 Mthembu v Letsela 1997 (2) SA 936 (T) at 944.
10 For example, where persons who overtly live a modern urban lifestyle participate in the
payment of lobolo and its associated practices.
11 Defined in section 1 of the Recognition of Customary Marriage Act 120 of 1998 as ‘customs
and usages traditionally observed among the indigenous African peoples of South Africa
and which form part of the culture of those peoples’. See also Gumede (born Shange) v
President of the Republic of South Africa 2009 (3) SA 152 (CC); 2009 (3) BCLR 243 (CC) para
23.
12 Himonga and Nhlapo (2014) discuss some applicable factors at 83–87. See also Bennett
Customary Law in South Africa (2004) at 51–57.
13 Bennett (2004) at 55. See also Ramothata v Makhothe 1934 NAC (N&T) at 74.
14 ‘Living customary law is the law that is actually applied by indigenous people. This law often
conflicts with the official customary law that is applied by the State courts or entrenched in
legislation. The Constitutional Court increasingly takes cognisance of living customary law.’
(Rautenbach and Bekker (Eds) Introduction to Legal Pluralism in South Africa 4 ed (2014) 5
at fn 3. See also page 14.) See, generally, Himonga and Nhlapo (2014) at 23–39; Nhlapo
‘Customary law in post-apartheid South Africa: constitutional confrontations in culture,
gender and “living law”’ (2017) 33(1) SAJHR at 1–24.
15 ‘Living customary law is the law that is actually applied by indigenous people. This law often
conflicts with the official customary law that is applied by the State courts or entrenched in
legislation. The Constitutional Court increasingly takes cognisance of living customary law.’
(Rautenbach and Bekker (2014) at 5 fn 3). See, generally, Himonga and Nhlapo (2014) at 23–
39; Nhlapo (2017) 33(1) SAJHR at 1–24.
Intervening) [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA) paras 20 and 21.
17 S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) paras 365–383; Mthembu v
Letsela 1997 (2) SA 936 (T) at 944; Bennett Customary Law in South Africa (2004) at 43.
Intervening) [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA); Daniels v Campbell NO 2004
(7) BCLR 735 (CC); Hassam v Jacobs NO 2009 (5) SA 572 (CC); Rautenbach and Bekker
(2014) at 5 and 14.
19 2008 (3) SA 560 (C).
20 Paras 23–25.
21 Mqeke (2003) at 16–27.
22 Rautenbach and Bekker (2014) at 157.
23 Mqeke Basic Approaches to Problem Solving in Customary Law: A Study of Conciliation and
Consensus among the Cape Nguni (1997) at 157–159; Mqeke (2003) at 114–117; Himonga
and Nhlapo (2014) at 197.
24 Defloration of a virgin, according to Mqeke, is an infringement of a patrimonial right, for ‘an
unmarried girl represents to her family head the value of the lobolo he expects to receive for
her’ (Mqeke (1997) at 159 fn 10; Mqeke (2003) at 116). See also Rautenbach and Bekker
(2014) at 161–162.
26 ‘In customary law, adultery can contrary to the South African common law, in the first place
only be committed with the wife, not the husband of a customary marriage.’ (Rautenbach
and Bekker (2014) at 163–165); ‘… the violation of the family head’s right which “custom has
translated into pecuniary value’’ ’ (Mqeke (1997) at 159 fn 11; Mqeke (2003) at 116).
27 Ukungena is a custom ‘according to which a widow enters into a union with a brother or
half-brother of the deceased in order to raise seed for the deceased’ (Himonga and Nhlapo
(2014) at 294). See also Rautenbach and Bekker (2014) at 165.
28 Rautenbach and Bekker (2014) 163 at 165; Mqeke (1997) at 159; Mqeke (2003) at 116.
29 The ‘forcible seizure of an unmarried girl and her abduction without her parent’s consent
for the purpose of marrying her’ (Mqeke (1997) at 158 fn 8; Mqeke (2003) at 115). See also
Olivier, Church, Mqeke, Bekker, Mwambene, Rautenbach and Du Plessis LAWSA (2009)
Indigenous Law Vol 32 (2) paras 181–182; Rautenbach and Bekker (2014) at 165–166.
30 When marriage does not materialise after thwala, a beast is paid to assuage the thwalaed
girl’s wounded feelings (Mqeke (1997) at 158 fn 9).
31 Rautenbach and Bekker (2014) at 167. ‘A distinction is made between damage caused by
animals and that caused by humans’ (LAWSA (2009) Vol 32(2) para 174).
33 Rautenbach and Bekker (2014) at 167–168.
34 Originally, defamation was not considered to be a delict, except for allegations of witchcraft
(LAWSA paras 78 and 121–124); Mogale v Seima 2008 (5) SA 637 (SCA) para 9. The KwaZulu
and Natal Codes of Zulu Law widened the scope, however (Himonga and Nhlapo (2014) at
199–200). See LAWSA (2009) Vol 32(2) para 183; Rautenbach and Bekker (2014) at 166.
35 For example, Olivier, Church, Mqeke, Bekker, Mwambene, Rautenbach and Du Plessis
LAWSA (2009) Vol 32(2); Himonga and Nhlapo (2014) at 197–210; Rautenbach and Bekker
(2014) at 157–169.
36 Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) (breach of promise); DE v RH 2015 (5) SA 83
(CC) at 18 (adultery). See also Himonga and Nhlapo (2014) at 206 for views regarding the
constitutionality of the customary law delict of seduction.
37 K v Minister of Safety and Security 2005 (9) BCLR 835 (CC); 2005 (6) SA 419 (CC) para 24.
38 Skenjana v Geca 6 (1928) NAC 4; Bennett (2004) at 325.
39 LAWSA (2009) Vol 32(2) para 174ff; Rautenbach and Bekker (2014) at 167.
41 Rautenbach and Bekker at 259.
42 Ngqobela v Sihele (1892–1893) 10 SC 346 at 352, SANTAM Bpk v Fondo 1960 (2) SA 467 (A)
and Nkabinde v SA Motor & General Insurance Co Ltd 1961 (1) SA 302 (N) (in respect of
customary unions); and Seedat’s Executors v The Master (Natal) 1917 AD 302 and Ismail v
Ismail 1983 (1) SA 1006 (A) (in respect of Islamic marriages).
43 Subsequent statutory intervention (section 31 of the Black Laws Amendment Act 76 of 1963)
addressed the negative consequences in respect of customary marriages.
44 [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA).
45 Para 23.
46 [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA).
47 Paras 20 and 23.
48 Paras 20 and 23.
49 Para 24.
50 Hassam v Jacobs NO 2009 (11) BCLR 1148 (CC); 2009 (5) SA 572 (CC) para 39.
51 Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA 825 (ZS); Fosi v RAF 2008 (3) SA 560 (C);
Mnguni v RAF 2015 JDR 1723 (GP); Seleka v RAF 2016 (4) SA 445 (GP).
52 Osman v Road Accident Fund 2015 (6) SA 74 (GP).
53 Metiso v Padongelukfonds 2001 (3) SA 1142 (T); Du Plessis v Road Accident Fund 2003 (11)
BCLR 1220 (SCA); 2004 (1) SA 359 (SCA); MB v NB 2010 (3) SA 220 (GSJ); Paixão v Road
Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA); Verheem v RAF 2012 (2) SA
409 (GNP).
54 Du Plessis v Road Accident Fund 2003 (11) BCLR 1220 (SCA); 2004 (1) SA 359 (SCA) para 17;
Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA) para 12;
Verheem v RAF 2012 (2) SA 409 (GNP) para 12; JT v RAF 2015 (1) SA 609 (GJ) paras 19–22,
24, 26 and 29.
55 JT v RAF 2015 (1) SA 609 (GJ) paras 26 and 29; Jacobs v RAF 2010 (3) SA 263 (SE) para 7.
56 2015 (1) SA 609 (GJ).
57 JT v RAF 2015 (1) SA 609 (GJ) para 29. See also Mnguni v RAF 2015 JDR 1723 (GP) at 11.
58 2008 (3) SA 560 (C). See also Seleka v RAF 2016 (4) SA 445 (GP) at 454 where the Court
followed Fosi v RAF and held that in Tswana law and custom both sons and daughters had a
duty to maintain parents.
59 Paras 16–17.
60 2015 (6) SA 74 (GP).
61 See Fosi v RAF 2008 (3) SA 560 (C).
62 Paras 20–21.
63 Para 24.
64 2008 (3) SA 560 (C) at 24.
65 2015 (1) SA 609 (GJ).
66 Para 26. See also para 17.
67 Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA).
68 Fosi v RAF 2008 (3) SA 560 (C).
69 Paras 29 and 30.
70 2008 (5) SA 637 (SCA).
71 Para 9; Mqeke ‘The Customary Law of Defamation of Character with Specific Reference to
the Law of Xhosa-speaking Peoples of Transkei and Ciskei’ (1981) 44(3) THRHR at 425;
Burchell The Law of Defamation in South Africa (1985) at 22–23.
72 G A Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 at 9; Conroy v Nichol 1951 (1) SA
653 (A) at 662; Mohamed v Jassiem 1996 (1) SA 673 (A) at 704.
73 1967 (2) PH J33 (D).
74 1978 (2) SA 521 (W) at 528.
75 Mohamed v Jassiem 1996 (1) SA 673 (A) at 674; Van der Walt and Midgley (2016) para 106.
76 1996 (1) SA 673 (A).
77 At 704B–C.
78 At 703D.
79 2008 (5) SA 637 (SCA).
80 2006 (6) SA 235 (CC).
81 Para 113. See also Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC);
2004 (12) BCLR 1268 (CC) para 37.
82 Paras 68–69 and 112–121.
83 Para 68.
84 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) paras 199–203.
85 Para 200.
86 Para 202. But see The Citizen 1978 (Pty) Ltd v McBride (Johnstone and Others, Amici
Curiae) 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC) para 132 where the Court commented
as follows on Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre
as Amicus Curiae) 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC):
There this Court found that ordering an apology was an appropriate measure of
restorative justice in a case involving ruptured personal relationships, where the
defendants actionably impaired the dignity of the plaintiff.
87 Keep and Midgley (2007) at 47.
88 Keep and Midgley (2007) at 48 fn 121.
89 See, for example, Rautenbach and Bekker (2014) at 5–16.
90 Nhlapo (2017) 33(1) SAJHR 1 at 22.
91 Nhlapo (2017) 33(1) SAJHR 1 at 23.
PART TWO
General principles: Primarily fact-based

issues
CHAPTER 4 Harm
CHAPTER 5 Conduct
CHAPTER 6 Factual causation

Chapter 4
Harm
4.1 Introduction

4.4.2 Dignity
4.4.3 Privacy
4.4.4 Identity
4.4.5 Reputation
4.6 Conclusion
Figure 4.1 Harm as an element of a delict
4.1 Introduction
For a delict to arise, there must be some actual or potential harm. By
pursuing a delictual remedy, plaintiffs seek compensation or reparation
for damage to, or the loss or harm resulting from a violation of their
interests. When seeking an interdict, plaintiffs wish to prevent someone
from threatening their interests. So, the harm element is the cornerstone
of the law of delict, and the fundamental point of departure.1 At the
outset, therefore, one needs to determine whether the plaintiff has an
interest that the law of delict protects and, if so, whether that interest has
been violated in a negative way.
TERMINOLOGY Harm, loss, damage and damages

This element is described in various ways in literature and case law, for
example, damage, damages, loss, harm, right, interest, and injury. This
inconsistent use of terminology creates conceptual difficulties and might
lead to confusion between the element of a delict (harm, loss or
damage) and the delictual remedy (damages). Damages are what
plaintiffs claim when they have suffered damage, harm or loss. To avoid
possible confusion, we will not use the word ‘damage’ to describe the
element of a delict. Instead, we will use the words ‘harm’ or ‘loss’
interchangeably, according to the context. We will continue to describe
the remedy as ‘damages’. Occasionally, we will use the word ‘damage’ to
signify the factual disturbance of an interest to property, for example, ‘he
damaged the motor vehicle’, or ‘the harm element was satisfied because
there was damage to the plaintiff’s motor vehicle’.
On hearing that a person wishes to seek compensation, one’s first

reaction should be to ask, ‘What for?’ This question is important, for it
directs one’s mind towards the appropriate delictual action:
• If the harm is patrimonial, compensation will follow only if the
elements of the lex Aquilia are present.
• If one has experienced pain and suffering, the elements of the
Germanic remedy must be met.
• For a violation of a personality interest, the elements of the actio
iniuriarum must be satisfied.
In this way, one can determine the route to follow and which
requirements need to be met for any action to be successful.
The various actions are not mutually exclusive. It is possible for a
person to suffer various forms of harm at the same time, which means
that a person can simultaneously claim remedies under more than one
action. This commonly occurs when a person is injured in an accident:
the person suffers patrimonial loss when he or she is hospitalised and has
to pay the medical bills; and also suffers harm in the form of pain and
suffering in respect of the pain experienced and loss of amenities of life, if
any. An assault may similarly give rise to patrimonial loss and pain and
suffering; and in some instances, it might also constitute an iniuria.2
In Chapter 1 we indicated that one can broadly divide the elements
of a delict into two categories: those that are mainly factual and those that
are mainly normative. The harm element falls into the first category and
the plaintiff, therefore, has to produce evidence to prove that he or she
has suffered harm. However, this element is not solely factual. There are
normative or policy components to it. Not all factual violations of a
person’s interests, whether patrimonial or non-patrimonial, will
necessarily be actionable. In some instances, the law says: ‘You have
indeed suffered harm, but the law of delict does not recognise that as one
of the types of harm for which a person can be compensated. You might
have a remedy elsewhere, but not in delict.’ The decision whether or not
to recognise the type of harm is based on policy considerations, and so
has strong normative features.
The law is not static, however. Policy and generally accepted
standards of behaviour vary as society grows and the decisions that
reflected appropriate standards in the past may not necessarily reflect the
standards of today. For example, for many years the Aquilian action
compensated loss associated with physical injury to person or property,
but not psychiatric injury. Psychiatric injury was recognised as a form of
harm only towards the end of the nineteenth century, and initially only
where there had been a real apprehension of physical danger to the
person who suffered the shock. In time that requirement was watered
down, first to remove the personal danger requirement 3 and later to
include ‘hearsay cases’. 4 It is also only recently that post-traumatic stress
disorder was considered worthy of being accepted as a form of
psychiatric injury.5
Fourie v Naranjo6
A woman witnessed a dog (Bruno) attacking her domestic worker and savaging her husband who had
come to the worker’s assistance. For some time thereafter she could not sleep, ‘being haunted by the
picture in her mind of Bruno with blood and pieces of flesh in his mouth’.7 She developed a short-term
stutter and the incident also affected her ability to drive a motor vehicle. She had to obtain professional
help. Her emotional shock claim was instituted in terms of the actio de pauperie, which in the past had
been used only for claims where domesticated animals caused physical injury to plaintiffs. The defendant
contended that she was not entitled to do so.
The Court found no case law restricting pauperies to damages resulting from physical injuries. On the
contrary, in addition to claims for physical injury, past plaintiffs could claim ‘for subsequent physical
disorders caused by the nervous shock’; and where death ensued, dependants could claim loss of
support.8 Given these developments, the Court extended the scope of the actio de pauperie to include
claims resulting from emotional shock.
Conversely, policy changes do not always favour the extension of liability.

Courts continue to refuse to recognise loss of comfort and support of a
loved one, or grief associated with the loss of a loved one, as actionable
harm.9 Similarly, courts do not recognise mental distress or
inconvenience that is not associated with bodily injury.10 This does not
mean that these forms of harm might not be recognised in the future,
however. For example, for some time pain and suffering had to be
associated with a person’s own physical injury. There are signs, however,
that pain and suffering associated with another’s injury might now be
worthy of compensation.
Sometimes policy justifications for actions that could have been
brought in the past no longer exist, as happened with the action for
breach of promise. In Van Jaarsveld v Bridges 11 Harms DP said:
Courts have not only the right but also the duty to develop the common law, taking
into account the interests of justice and at the same time to promote the spirit,
purport and objects of the Bill of Rights. In this regard courts have regard to the
prevailing mores and public policy considerations … . I do believe that the time has
arrived to recognise that the historic approach to engagements is outdated and
does not recognise the mores of our time, and that public policy considerations
require that our courts must reassess the law relating to breach of promise.
The Court found that breach of promise did not in itself give rise to a
claim and that an action can lie only if the elements of the actio
iniuriarum are met, which means that the breach of promise has to be
accompanied by some insulting behaviour.12
From the discussion in this section we can see that the harm
element, as with all other elements of a delict, serves not only to fix
liability, but also to control its extent. It is for this reason that the enquiry
into harm is both factual and normative. As Neethling, Potgieter and
Visser point out:
… only harm in respect of legally recognised patrimonial and non-patrimonial
interests of a person qualifies as (harm).13
PAUSE FOR Recognising harm

What is the difference between the policy decision not to recognise harm and the
REFLECTION
policy decision made when the wrongfulness of an interest infringement is
determined?
When considering whether harm is actionable, the question to consider is
whether the person has suffered harm that is recognised in delict. For example, if
parents are claiming pain and suffering because their child is lying in a coma,
and the situation is unbearable for them, the law would say: ‘The law of delict
does not recognise that type of harm, because it is not associated with any
bodily injury to the people who wish to claim.’ However, the child’s claim for pain
and suffering is actionable.
When considering wrongfulness, the issue is whether the harm or violation of
an interest (which the law has already considered to be actionable harm) has
occurred in a legally reprehensible way. In other words, should the law entertain
and allow the plaintiff’s claim in this instance? In some instances, the bodily
injury that a plaintiff has suffered, which is actionable harm, is also caused
wrongfully. In other instances, that same category of actionable harm is not
wrongful, for example, if the defendant had acted in self-defence. In such a case,
the plaintiff would have proved that the harm element, but the action fails
because the wrongfulness requirement was not met.
Union Government (Minister of Railways and Harbours) v Warneke14

A woman died in a train accident, and her husband sued the Minister for loss of comfort and
companionship, and the loss of his wife’s assistance in caring for and bringing up their children.
The Court found that the lex Aquilia served to compensate only in respect of calculable pecuniary
harm. It could not attach such an economic value to the loss of his wife’s ‘comfort and society’, and so
the husband’s claim failed in that regard. De Villiers CJ said:15
The loss of the comfort and society of a wife does not appear to me to be a pecuniary loss at
all. It is a deprivation, which in many cases transcends, in the grief, distress and discomfort
which it occasions, any other loss which a man can sustain, but it is not a loss which, for
purposes of compensation, as distinct from retribution, is capable of being calculated in money.
However, the extent to which the husband could show that his deceased spouse had provided assistance
in caring for, and supporting and educating their children, he could claim compensation for any
expenditure incurred to provide care and assistance similar to that which his wife had given him during
her lifetime. Innes J said:16
[T]here is nothing inconsistent with the principles of our law in allowing a husband who can
show that his pecuniary expenditure in connection with the maintenance of his children has
been directly and necessarily increased owing to the death of this wife, to claim damages
against the person who has negligently caused her death. No Roman-Dutch authority goes so
far, but one is led to that conclusion by giving effect to principles well recognised by them all.
And there is no direct authority to the contrary.
This case involved two types of claim: one patrimonial and one non-patrimonial. The Court recognised the
patrimonial claim, but did not consider the non-patrimonial harm to be actionable under the lex Aquilia.
The Aquilian action was confined ‘to cases in which a calculable pecuniary loss has been actually
sustained’.
The Court also considered whether the actio iniuriarum applied, but found that since there was no
injury done to, or dishonour brought upon the husband, there was no cause to satisfy any injured
feelings.
In this judgment the normative component of the harm element comes clearly to the fore. The Court
had to decide whether the two types of harm were actionable in the absence of any previous authority.
Innes J also said:17
It is possible that the plaintiff may prove that after making allowance for the fact that he no
longer has to support his wife, the arrangements necessitated to replace her supervision and
assistance in the upbringing of the children entail a pecuniary loss.
So, in considering whether the husband had sustained patrimonial harm, both the savings and the
additional expenses arising from the wife’s death should be considered. If the savings exceed the
expenses, he would have suffered no harm (which is what in fact happened in Santam Insurance Co Ltd
v Fourie).18
• The first quotation above contains an indication of the purpose of

the lex Aquilia. Could the statement also apply to the law of delict in
general?
• It is implied in the text that the law might recognise inconvenience
related to actionable harm. How would it do this? Is there any reason
why a person should not be able to sue in delict for either the
inconvenience of not having a vehicle while his or her damaged
vehicle is being repaired, or the inconvenience associated with
having to change holiday plans?
PAUSE FOR The interplay between harm (‘damage’) and the remedy (‘damages’)
It is not always easy to confine delictual concepts into clear, separate categories,
REFLECTION
and there are often some overlaps or similarities in approach. For example, the
element (harm) and the remedy (damages) are related.
The harm element of a delict has been satisfied if:
• Harm was suffered (factual aspect)
• The harm is legally recognised, or actionable (normative aspect).
At this stage, when the element is being considered, only the question of whether
actionable harm has occurred is important, not the extent of harm. It is only once
all the elements of a delict are present that one enquires into the remedy and
when the extent of the harm, commonly referred to as the ‘quantum of damages’,
becomes important. In borderline instances, where the first bullet point is not
obviously satisfied, one would use the sum-formula approach to determine
whether harm has occurred. (See section 4.2 below.) The sum-formula is also a
fundamental device for determining quantum. The fact that the same
methodology is used does not make the concepts the same; it simply shows that
there is consistency in approach.

It is important to establish that the plaintiff’s harm also constitutes
actionable harm. In the law of delict, harm falls into one of two broad
categories: patrimonial harm and non-patrimonial harm. The latter is
further divided into two categories: pain and suffering, and infringement
of personality interests.
In short, patrimonial harm arises when a person’s patrimony is
affected in a negative way. The concept of patrimony, or financial estate,
is associated with what the Romans called the universitas, which includes
not only a person’s current assets and liabilities, but also financial
aspects associated with rights and obligations that might arise in the
future. To ascertain whether there has been harm, one must consider the
value of the plaintiff’s estate as a whole prior to the incident that
precipitated the claim and compare it to the plaintiff’s estate after the
event. If there is a negative impact, harm has occurred. This is known as
the ‘sum-formula’ approach. Exactly the same approach is used to
calculate the extent of the diminution of the estate and the amount of
damages to award. However, in practice this theoretical explanation to
ascertain whether patrimonial harm has occurred is seldom used. For
example, a doctor’s bill, or the cost of repairing a damaged motor vehicle,
is an expense that did not form part of the estate prior to the event and
clearly now renders the plaintiff poorer.
Patrimonial harm falls into three broad categories:
• Financial loss associated with personal injury
• Financial loss associated with damage to property
• Financial loss that is not associated with the plaintiff’s personal
injury or damage to property and is accordingly purely economic.
Jowell v Bramwell-Jones19
Jowell was a capital beneficiary of a testamentary trust established by his late father, Dr Jowell. Among
the defendants were a stockbroker, a chartered accountant, an attorney and a supplier of financial
services. The purpose of the trust was to provide for Dr Jowell’s wife until her death, whereupon the
capital would devolve upon the beneficiaries. Mrs Jowell sought and acted upon the defendants’ advice
on a financial scheme. No-one consulted the beneficiaries in this regard. The effect of the scheme was to
decrease the value of the plaintiff’s vested right by approximately R10m. Jowell then sued the
defendants, who excepted on the basis that the claim was for prospective loss alone. At issue was
whether a plaintiff could sue for loss that might arise in the future without having incurred any actual loss
by the time the action is brought.
Scott JA said the following about the harm element:20
The element of damage21 or loss is fundamental to the Aquilian action and the right of action is
incomplete until damage is caused to the plaintiff by reason of the defendant’s wrongful
conduct (see Oslo Land Corporation Ltd v The Union Government 1938 AD 584 at 590; Evins v
Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838H–839C). This applies no less to claims
arising from pure economic loss than it does to claims arising from bodily injury or damage to
property (see Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A) at
911B–D). Whether a plaintiff has suffered damage or not is a fact which, like any other element
of his cause of action and subject to what is said below, must be established on a balance of
probabilities. Once the damage or loss is established, a court will do its best to quantify that
loss even if this involves a degree of guesswork. (See Turkstra Ltd v Richards 1926 TPD 276 at
282–283.) However, a distinction must be drawn between accrued or past damage, or loss on
the one hand and prospective damage or loss on the other, the latter being damage or loss
which has not yet materialised. Delictual actions, which include claims for prospective loss, are
not uncommon, particularly in the case of actions arising out of bodily injuries where the
prospective loss is inevitably accompanied by some accrued or past loss. When dealing with
such claims, however, the courts have not required the plaintiff to prove on a preponderance of
probability that such a loss will occur or arise; instead they have made a contingency allowance
for the possibility of the loss. (See Blyth v Van den Heever 1980 (1) SA 191 (A) at 225E–226B
where Corbett JA cites with approval a passage in the judgment of Colman in Burger v Union
National South British Insurance Company 1975 (4) SA 72 (W) at 75D–G.) The underlying
reason for such an approach is probably the ‘once and for all’ rule, which compels a plaintiff
who has suffered accrued or past damage to institute action in order to avoid the running of
prescription; in other words he is precluded from waiting to see if the prospective loss will
occur. In Coetzee v SA Railways & Harbours 1933 CPD 565, it was held that a person cannot
sue solely for prospective damages. Gardiner JP, with whom Watermeyer J concurred, expressed
himself at 576 as follows:
The cases, as far as I have ascertained, go only to this extent, that if a person sues
for accrued damages, he must also claim prospective damages, or forfeit them. But I
know of no case which goes so far as to say that a person, who has as yet sustained
no damage, can sue for damages which may possibly be sustained in the future.
Prospective damages may be awarded as ancillary to accrued damages, but they
have no separate, independent force as ground of action.
This approach has been the subject of some criticism. Boberg, The Law of
Delict at 488, contends that there is no reason why a person cannot sue
solely for prospective loss provided he can establish the future loss on a
balance of probabilities, although not necessarily the quantum of his
claim.22 The advantage of the approach adopted in the Coetzee case is of
course the certainty it provides. If an action for loss which is prospective
is completed only when the loss actually occurs, prescription will not
commence to run until that date and a plaintiff will generally be in a
position to quantify his claim. To the extent there may be additional
prospective loss the court will make a contingency allowance for it. On
the other hand, if the completion of an action for prospective loss
entitling a person to sue is to depend not upon the loss occurring but
upon whether what will happen in the future can be established on a
balance of probabilities, it seems to me that the inevitable uncertainty
associated with such an approach is likely to prove impractical and result
in hardship to a plaintiff particularly in so far as the running of
prescription is concerned. However, it is unnecessary to finally decide
the point. As indicated above, the allegations contained in the particulars
of claim are incapable of supporting evidence that would discharge the
burden of proving on a balance of probabilities that there will be a loss on
the termination of the trust, nor could such allegations reasonably have
been made. Moreover, the argument advanced by counsel on both sides
proceeded on the premise that some form of past or accrued loss was an
essential element of the appellant’s cause of action.
The Court concluded23 that Jowell’s right to his share of the assets of
the trust was postponed until Mrs Jowell’s death and that Jowell had
suffered ‘no past or accrued loss’. The action was accordingly premature
because the harm element had not been satisfied and, ‘whether or not he
will indeed suffer a loss will only be known on some future date’.
• The Court’s use of the phrase ‘damage or loss’ illustrates the
terminological issue raised in section 4.1 above. The element is
‘harm or loss’, not ‘damage or loss’.
• Harm as an element must be proven as a fact, on a balance of
probabilities, otherwise a court cannot entertain a delictual claim.
Must the quantum of the claim also be proven as a fact? How would
a court assess quantum? Quantification of the harm is a separate
issue that follows after the harm element has been established. Is it
clear from this extract when to make such quantification? When
would be the best time to do this?
• The law distinguishes between past or accrued loss and prospective
loss, and recognises that a person can claim for prospective harm.
Why then, did the Court deny Jowell’s claim?
• What is the rationale for entertaining claims for prospective or future
harm? Does this rationale apply to all cases that involve prospective
harm?
• The Court did not decide whether someone should be able to claim
for future harm that could be proven to arise on a balance of
probabilities. The point was deliberately left open. If a court is to
decide this point in the future, which way would you advise the
Court to decide?
PAUSE FOR Should the following constitute legally recognised harm?

REFLECTION • An heir’s expectation of an inheritance that did not materialise because
the person who drew up the will did not have it properly attested. Has
there been a change in the beneficiary’s patrimony? Has the loss accrued
(has the asset vested in the beneficiary’s universitas? Is this not an
instance of lucrum cessans – where the deprived benefit would certainly
have accrued but for the failure to adhere to proper processes? Does the
decision relate to the factual or normative component of the harm
concept?
• A shareholder owns 2,5% of a company’s shares but performs all the
company’s business functions, claiming all his own expenses from the
company bank account as if it were his own personal account. He is
permanently disabled in a motor collision, rendering him unable to
perform his duties, save his managerial functions. The company now
employs another person to do so. Can he claim past and future medical
expenses? Past loss of earnings? Loss of earnings capacity (in respect of
future earnings)? Pain and suffering? Would your conclusions be different
were the shareholding to be 100% and not 2,5%? Do these decisions
relate to the factual or normative component of the harm concept?
• Police are called out to investigate a hoax call and incur unnecessary
costs in the form of fuel costs, motor vehicle wear-and-tear costs and
forensic-examination costs, and also pay wages in respect of the time
wasted in investigating the hoax. Does this relate to the factual or
normative component of the harm concept?
The definition of patrimonial harm also establishes what non-

patrimonial harm is. Non-patrimonial harm entails all forms of harm that
one cannot measure in monetary terms and so cannot include in a
person’s universitas. Pain, inconvenience, shock and insulting behaviour
are clearly not patrimonial, for these do not reduce the monetary value of
a person’s estate. However, expenses incurred for medical treatment to
diminish the pain, for example, or to pay for a psychiatrist’s services,
would constitute patrimonial loss.
Where the plaintiff has suffered patrimonial loss, the remedy lies in
the lex Aquilia. The Germanic remedy for pain and suffering and the
actio iniuriarum provide remedies for non-patrimonial harm.

Pain and suffering is a term of art. It consists of two concepts: pain and
suffering in a more literal sense, and loss of amenities of life. This
category of harm must be linked to some physical injury to the plaintiff. A
plaintiff cannot claim pain and suffering for the pain experienced by
seeing harm caused to someone or something else, for example, seeing
one’s child lying in a coma or one’s beloved pet being put out of its
misery. This harm and the remedial action associated with it, is therefore
to some extent a parasite concept. The harm must be associated with
physical injury to the plaintiff, and not someone else.
The first component, pain and suffering, relates to pain that has been
experienced and pain that will continue to be experienced in the future.
It has to be experienced subjectively. If a person has not felt any pain, he
or she has not suffered any harm, and also cannot claim future pain that
might be experienced in the absence of existing pain. However, pain and
suffering is not limited to physical pain alone. The concept includes
nervous shock, psychological harm, mental anguish or distress, and also
the fear, anxiety or trauma associated with the injury or situation. These,
too, must be experienced subjectively.
The second component, loss of amenities of life, has been crisply
defined as ‘a diminution in the full pleasure of living’ 24 and loss of
‘enjoyment of life’. 25 In Administrator-General, South West Africa v Kriel
26
Hoexter JA commented as follows:
The amenities of life may further be described, I consider, as those satisfactions in
one’s everyday existence which flow from the blessings of an unclouded mind, a
healthy body, and sound limbs. The amenities of life derive from such simple but
vital functions and faculties as the ability to walk and run; the ability to sit or stand
unaided; the ability to read and write unaided; the ability to bath, dress and feed
oneself unaided; and the ability to exercise control over one’s bladder and bowels.
Upon all such powers individual human self-sufficiency, happiness and dignity are
undoubtedly highly dependent.
This concept also includes general inconvenience, discomfort, loss of life

expectancy and the humiliation that arises from any disability or
disfigurement. Not all of these need necessarily be experienced, and so
the loss of amenities of life has both a subjective and an objective flavour.
Sigournay v Gilbanks27
The plaintiff, a keen sportsman, had sustained severe bodily injuries. He suffered brain damage, lost his
sight in one eye and fractured several bones. His brain injuries restricted his movement. For some time
after the accident, he had been in a coma.
In the course of assessing an appropriate amount of damages, Schreiner JA said:28
It seems to me that Henochsberg J failed to keep clear the distinction between pain actually
experienced, though possibly subsequently forgotten, and what would have been pain but for
anaesthesia. Whether that anaesthesia is induced intentionally by drugs, as when an operation
is performed, or is the chance result of a head injury can make no difference.
The fact is that most of what might have been excruciating pain was not pain for the plaintiff.
And compensation under this heading is given for pain, not for the seriousness of the injuries or
the risk to the plaintiff’s life. Injuries may leave after-effects and may cause mental anxiety but
they are not themselves pain. The learned Judge, in my view, misdirected himself on this part of
the enquiry with the result that he thought that the plaintiff, who certainly did suffer severely,
should be treated as having suffered more pain than he actually did.
These comments were made during the assessment of damages stage,

where the Court was trying to assess the extent of the pain, whether slight
or extensive. To summarise:
• The important issue here is that the plaintiff had subjectively
suffered some pain. The issue of its severity, or its duration, is a
question that is relevant to the assessment of the quantum of
damages.
• It does not matter if the plaintiff cannot later recall that he or she had
been in pain, provided that he or she had experienced it.29 However,
loss of amenities of life does not need to be experienced.30
• The passage distinguishes between pain and mental anxiety, which
forms part of the second aspect of pain and suffering, namely loss of
amenities of life.
In this instance, the amenities of life that were diminished included:

• He ‘now had to content himself with watching instead of partaking in
games’.
• While watching sport, he had on occasion broken down emotionally.
• There was a remote chance that he might suffer a more serious
breakdown later, when he realised fully the extent of his disability.
• His prospects of marriage had been lessened.
• He had lost sight in his right eye.
• He walked awkwardly, and for limited distances only.
Other forms of loss of amenities of life include lengthy periods of

hospitalisation,31 being restricted to a wheelchair, being deprived of
‘participating in sport, listening to music, learning a vocation, getting
married and having children’,32 and having to be tended to, or
supervised, for the rest of one’s life.33
PAUSE FOR Pain and suffering
REFLECTION 1. A person is lying in a comatose state. Is she experiencing harm that
could be compensated for under the Germanic remedy? In considering
the answer, refer to Botha v Minister of Transport 1956 (4) SA 375 (W),
Sigournay v Gilbanks 1960 (2) SA 552 (A), Gerke NO v Parity Insurance
Co Ltd 1966 (3) SA 484 (W), Southern Insurance Association Ltd v
Bailey NO 1984 (1) SA 98 (A), and Reyneke v Mutual and Federal
Insurance Co Ltd 1991 (3) SA 412 (W).
2. Assume that the person referred to above is a 10-year-old girl. Can her
father claim damages for pain and suffering? What principles inform your
decision?
3. When a person experiences shock, is the nature of the harm patrimonial,
non-patrimonial, or both? Would a person be able to claim damages
under the lex Aquilia as well as for pain and suffering?
4. Can a person who has suffered psychiatric injury claim pain and suffering
as well?
To obtain a remedy for pain and suffering, the elements of this Germanic
remedy must be met.34

Personality interests are traditionally associated with being human, and
until the 1980s one could safely say that artificial or juristic persons, such
as companies and universities, had no rights of personality. However,
towards the end of the twentieth century, a trend emerged recognising
that juristic persons could also have personality rights, albeit in a less
extensive way than natural persons. When the Bill of Rights was adopted,
this situation was confirmed. Artificial persons, therefore, have (artificial)
personality rights insofar as they are able to have such rights. This simply
means that juristic persons cannot have the more subjective personality
rights that are associated with a person’s physical existence, or with
human feelings, but they can have the more objective personality
interests, such as privacy or reputation.
From the beginning, our common law recognised the three classic
personality interests: corpus, dignitas and fama (bodily integrity, dignity
and reputation). Any factual violation of any of these interests would
constitute an iniuria, the harm element required under the actio
iniuriarum.
TERMINOLOGY Iniuria
The term ‘iniuria’ has three possible meanings:
• Anything contrary to justice and equity, that is, wrongfulness
(dictionary meaning); covering all delictual situations, irrespective
of whether the harm is patrimonial or non-patrimonial
• The wrongful and intentional impairment of a person’s personality
right: bodily integrity (corpus), dignity (dignitas) or reputation
(fama); covering only those situations that fall within the actio
iniuriarum
• Impairment of dignity in the form of an insult where contumelia is
present; covering only those situations that fall within the narrow
meaning of the dignity concept.

Bodily integrity is normally violated by an assault or deprivation of
liberty, such as arrest or imprisonment, but seduction also falls into this
category. Neethling, Potgieter and Visser note35 that a right to corpus also
includes psychological integrity and so the corpus violation occurs when
a person suffers a psychiatric injury or nervous shock. A violation of
bodily integrity may, but not necessarily, also be insulting and therefore
also an infringement of dignity.
4.4.2 Dignity
Dignity is a complex concept. The first point to clarify is its scope. At one
stage, and sometimes still now, dignity was used both in a narrow sense,
denoting self-esteem, and in an umbrella sense, covering a variety of
associated personality interests. To violate a plaintiff’s self-esteem
(dignity in the narrow sense), a defendant’s behaviour must have had
some degrading or insulting effect – what the Romans called contumelia
– for otherwise the plaintiff’s feelings would not have been wounded. The
insult must be established as a fact, and it is sufficient to show that the
plaintiff subjectively felt insulted by the defendant’s behaviour. The test,
therefore, is subjective and focuses on what the plaintiff actually
experienced. From this one can see that a juristic person, such as a
company, would not be capable of having this form of dignity. A juristic
person cannot have personal feelings to offend and so cannot suffer
contumelia.
PAUSE FOR Dignity

Consider the following questions:
REFLECTION
• Is dignity a purely subjective phenomenon?
• Is it entirely concerned with what one thinks of oneself?
• Is there not also an outward component to the concept?
For example, one can describe a person as a dignified person. The aura that this
person has is not reputation, but an outward manifestation of inner dignity. When
this aspect is violated, it surely does not require a subjective insult in the form of
contumelia, and it also does not require that there be publication to anyone.
However, if the plaintiff is not offended in any way, how would one assess
whether there had been a violation of dignity?
Consider also what Melius de Villiers said in his book, Injuries:36
It is clear from the Digest that the word dignitas must be understood
in a wide sense, and not as merely equivalent to the elevated public
position of the Roman citizen. Injuries against dignity evidently
comprise all those injuries which are not aggressions upon either the
person or the reputation; in fact, all such indignities are violations of
the respect due to a free man, as such (vide Huschke, Gaius p. 152).
Originally, the law classified personality rights as corpus, dignitas and

fama. Given this constraint, personality interests like privacy and identity
were for a long time grouped together under the dignity umbrella and
were not recognised as distinct personality interests. Of course, this line
of thinking accorded with the common-law position at the time.37
However, research has since shown that privacy and identity should be
treated as separate, self-standing personality interests, and that they
should not be subsumed under the dignity umbrella. Courts have
responded accordingly, recognising privacy and identity as separate, self-
standing personality rights. This is a step forward. Not only does it
indicate the dynamic nature of delict and its ability to respond to changes
in thinking and needs in society, but it also frees the law of trying to apply
rules that have evolved in respect of one set of interests to other interests
that are not entirely comparable. For insult, for example, there must be
some degrading or insulting behaviour (contumelia), but this aspect is
not a necessary element when a person’s privacy or identity is violated.
The separate recognition of these interests should rid the law of
convoluted thinking.
4.4.3 Privacy
The development of the law of privacy illustrates the tension that arises
between a system that seeks to develop within the constraints set by its
roots and precedent, and one that wishes to develop outside those
historical parameters. The right to privacy was not specifically recognised
in the actio iniuriarum, and so any attempt to protect a person’s privacy
had to be located within the dignity concept. Even towards the end of the
twentieth century one finds, for example, the Appellate Division
declaring: ‘The actio iniuriarum protects a person’s dignitas and dignitas
embraces privacy.’38
What is ‘privacy’? Famously, Warren and Brandeis said in 1890 that it
is the right ‘to be let alone’.39 Privacy protects a person’s interest to enjoy
personal space as well as peace and tranquility away from the public and
the glare of publicity. Every individual has the right to decide what to
keep private and the extent to which to interact with others. Hence, the
personal sphere is determined subjectively. Whether that determination
is a reasonable one, especially in communal interactions, is a question
more appropriate to the wrongfulness element.
The factual disturbance of privacy occurs when personal space and
peaceful existence are violated, usually in one of two ways: intrusion or
disclosure. However, the right is not infringed until a court determines
that the violation occurred in a legally unacceptable way. Van der Walt
and Midgley40 list the following examples of factual violations of privacy:
Examples of intrusion are searches and seizures by police and other authorities,
entry into private premises, the reading of private documents, listening in to private
conversations, monitoring and interception of electronic mail, including
bombardment of unwanted material, exposure to unwanted broadcasts (acoustic
privacy), peeping at someone, shadowing a person, uninvited obtaining of
information from a person, for example, filming a person’s activities or, obtaining
blood samples from a person. Disclosures can take the form of a disclosure of
private facts obtained by means of intrusion, disclosure of private facts generally,
disclosure of confidential facts, unwanted publication of photographs, and the
unauthorised extended publication of private information in circumstances where
the privacy expectation boundaries are circumscribed.
PAUSE FOR Privacy

REFLECTION 1. Is there a difference between personal facts and private facts? Does the
law of privacy cover both categories?
2. ‘As a corporate entity, Thint does not bear human dignity and thus its
rights of privacy are much attenuated compared with those of human
beings’ (Thint Holdings (Southern Africa) (Pty) Ltd v National Director of
Public Prosecutions; Zuma v National Director of Public Prosecutions).41
To what extent would a juristic person have a right to privacy? Can a
person intrude on a company’s personal space? Can a person disclose
private information belonging to a company, or a university, for example?
(In considering these questions, also refer to section 8 of the
Constitution, Financial Mail (Pty) Ltd v Sage Holdings Ltd,42 Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributers
(Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 43 and
South African Broadcasting Corporation v Avusa Ltd.)44
3. Does an organ of state have privacy?
4. Van der Walt and Midgley45 contend that, with electronic
communications, one should distinguish monitoring and disclosing
information about emails from monitoring and disclosing content of
emails; with the former being acceptable and the latter usually not.
Would you agree? In which instances, if any, would monitoring and
disclosing of content be acceptable? (In considering these questions,
also refer to section 8 of the Constitution, the Electronic Communications
and Transactions Act 25 of 2002; the Regulation of Interception of
Communications and Provision of Communication-related Information Act
70 of 2002 and Klein v Attorney-General, WLD,46 Protea Technology Ltd v
Wainer )47
5. Do the decisions in 1–4 above relate to the factual or normative
component of the harm concept?
O’Keefe v Argus Printing and Publishing Co Ltd48

The plaintiff had agreed to her photograph being published as part of a news article. However, the
photograph was used in an advertisement for a gun manufacturer. The plaintiff claimed that this violated
her personality interests, and in particular, violated her dignity. The Court phrased the issue as follows:
Can it reasonably be said (in the light of modern conditions)49 that a person has been
subjected to offensive, degrading and humiliating treatment if his photograph and name have,
without his consent, been used in the press for advertising purposes?50
After noting that insult was not necessarily ‘the essence of an iniuria’, the Court then answered the
question in the affirmative, holding that:
[T]o use a person’s photograph and name, without his consent, for advertising purposes may
reasonably constitute offensive conduct on the part of the user.51
• When referring to ‘the essence of an iniuria’, was the Court using the term in the wider or narrower
sense?
• What personality rights were involved in this instance?
• Compare this case with Grütter’s case, to which we refer in the next section. If O’Keefe were to be
decided today, would the Court’s reasoning be different? Why?
• Is misappropriation of image for advertising purposes a violation of identity, privacy or dignity?
4.4.4 Identity
Neethling, Potgieter and Visser 52 explain identity as follows:
Identity is that uniqueness which identifies each person as a particular individual
and as such distinguishes him from others. Identity manifests itself in various
indicia by which the person involved can be recognised: ie, facets of his personality
which are distinctive of or peculiar to him, eg his life history, his character, his
name, his creditworthiness, his voice, his handwriting, his outward shape, etc.
Identity is thus infringed if indicia thereof are used in a way that does not reflect the
person’s true (own) personality image.
The right to identity, therefore, is a right to a person’s image and aspects

associated with it. The integrity of a person’s image is similar to a
person’s bodily integrity and a factual violation of identity occurs when
aspects associated with a person’s particular image are used outside the
sphere or scope of that image. Therefore, the violation occurs as a fact,
and the necessary harm is suffered. However, one still needs to
determine whether the violation occurred in a legally acceptable or
legally unacceptable way. Only then can one say that a person’s
personality interest has been infringed. Points to note are:
• A factual violation of a person’s identity constitutes sufficient harm
for there to be a violation of a personality interest.
• As with cases that involve bodily integrity, the violation of identity
may, but not necessarily, be accompanied by contumelious conduct.
In the latter instance, there would be an additional infringement of
dignity.
• The factual violation of identity can be assessed objectively.
Grütter v Lombard53
Grütter and Lombard had been partners in an attorneys firm called ‘Grütter and Lombard’. When their
partnership terminated, Grütter began practising with another attorney as ‘Grütter and Grobbelaar’, while
Lombard continued to practise under the old partnership name. Grütter asked Lombard not to continue
using his name, but Lombard refused to do so. Grütter then sought a court order, which the Supreme
Court of Appeal granted. In doing so, the Court recognised identity as part of a variety of personal rights
that ‘are included in the concept of dignitas in the context of the actio injuriarum’ and concluded:54
The interest that a person has in preserving his or her identity against unauthorised exploitation
seems to me to be qualitatively indistinguishable and equally encompassed by that protectable
‘variety of personal rights’.55
• When referring to ‘the concept of dignitas’, was the Court using the term in the wider or narrower sense?
• What personality rights were involved in this instance?
• Compare this case with O’Keefe’s case. Has Grütter changed the common law in any way?
• The Court talked about ‘dignitas in the context of the actio injuriarum’. Are there any other contexts in
which we could use this concept? Would the concept then be used in a different sense?
• In the previous text, we said that courts are now recognising identity as a self-standing, separate right.
Would you agree with this statement?
In summary, irrespective of the way in which one views the concept,

dignitas is more than the narrow iniuria, so one can sometimes assess it
purely subjectively, and at other times less so, and even objectively.
While juristic persons would not be able to claim for injured feelings, or
for wrongful arrest, their identity and privacy interests are surely capable
of protection, for these interests are not closely associated with the
physical and emotional aspects of being human.
4.4.5 Reputation
The last right that falls within the original trilogy of personality rights,
reputation, is violated when one person lowers the public esteem in
which another is held. For this interest to be violated, there must have
been some publication of the defamatory material to someone other than
the plaintiff and the defendant. As a result of what is said or done, a
person, or people, would now think less of the plaintiff than previously.
Naturally, for a person’s public esteem to be violated, others must
become aware of what was said or done, so publication of defamatory
material is the core aspect of any violation of reputation. The effect of
such publication must be that it lowers a person’s esteem in the
estimation of right-thinking persons generally.56 Examples include:
• Imputations against moral character
• Imputations that arouse hatred, contempt and ridicule
• Impairments that cause shunning and avoiding
• Impairments of professional or business reputation.57
Other common violations of reputation include malicious proceedings,
such as malicious prosecution and malicious attachment of goods.
PAUSE FOR Protecting rights

What rights do wrongful arrest, malicious arrest, malicious prosecution and
REFLECTION
malicious attachment of goods protect? Is the classification of these rights
logical?
PAUSE FOR The violation of personality interest

One assesses the violation of a personality interest subjectively, or from the
REFLECTION
plaintiff’s point of view. It is sufficient merely to show that the violation occurred,
for example, that the plaintiff was assaulted or arrested, that the plaintiff felt
insulted, or that his or her reputation was lowered. Once established, this
satisfies the harm element for the actio iniuriarum. One does not assess any
other aspect, such as whether the harm was minor or substantial, or whether the
plaintiff was over-sensitive in the circumstances, under this heading. These
issues become relevant when one assesses the wrongfulness element.
In Delange v Costa 58 Delange felt deeply hurt by remarks that Costa had
made in a letter to him. (Note that because the remarks were not published to a
third party, there was no infringement of reputation.) The Court noted that
Delange needed to show that his dignity was impaired by these remarks:
This involves a consideration of whether the plaintiff’s subjective

feelings have been violated, for the very essence of an injuria is that
the aggrieved person’s dignity must actually have been impaired. It is
not sufficient to show that the wrongful act was such that it would
have impaired the dignity of a person of ordinary sensitivities.
(Note that the latter criterion, ‘whether the conduct would have impaired the
dignity of a person of ordinary sensibilities’, is an objective wrongfulness
criterion, which must be established in addition to the harm criterion. So, the
harm element is assessed subjectively and the wrongfulness element
objectively.)
PAUSE FOR Digital manipulation

In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre
REFLECTION
as Amici Curiae)59 two schoolchildren created a computer image in which the
faces of their school’s principal and deputy principal (Dey) were superimposed
onto an image of two naked men sitting in a sexually suggestive posture. In Cele
v Avusa Media Ltd60 a newspaper published two articles and a digitally altered
photograph of Cele, who at the time was the Member of the Executive Council in
KwaZulu-Natal responsible for Transport, Community Safety and Liaison. In the
photograph Cele’s head was superimposed onto an image of a person dressed
as a gun-carrying sheriff from the Wild West. The caption read: ‘Police must aim
for the head.’
Both Dey and Cele sued for defamation and infringement of dignity. Are
infringements of dignity and reputation the only possible forms of harm arising
from the manipulation of the images?
The remedy where harm takes the form of a personality interest is the
actio iniuriarum.

The second point that requires clarification (the first point was the scope
of the dignity concept) relates to the relationship between the common-
law concept of dignity and dignity as set out in the Constitution. Note that
the Constitution recognises the rights to dignity and privacy, but not the
right to reputation. Also, the right to identity is not pertinently recognised
either separately in the Bill of Rights or as part of the right to dignity. So,
at face value, the common-law concepts do not correspond with their
constitutional equivalents and some reconciliation needs to be made.
The obvious question to ask is whether the Constitution recognises
reputation as a human right, even though it is not mentioned in the Bill of
Rights. The answer is that it does, but it sees reputation as part of a
person’s human right to dignity. Unlike the common law, the
Constitution does not distinguish between a person’s personal feelings
and self-esteem, and a person’s esteem in the eyes of others. The
constitutional right to dignity is seen to cover both situations.
Does this then mean that there is a conflict between the Constitution
and the common law? Courts have consistently held no.61 Although many
common-law rights and interests easily translate into constitutional
rights,62 the common law does not have to mirror or replicate concepts
found in the Constitution. All that is required is that the common law
should not be incompatible with the Constitution. The common-law
concept of fama, or reputation, does not violate the constitutional right
and value of dignity.63 In fact, it gives effect to and protects human
dignity. Courts, therefore, say that there is no problem with the common-
law approach.
PAUSE FOR Khumalo v Holomisa64

REFLECTION In Khumalo v Holomisa65 O’Regan J commented on the interplay between the
delictual and constitutional rights:66
In the context of the actio injuriarum, our common law has separated
the causes of action for claims for injuries to reputation (fama) and
dignitas. Dignitas concerns the individual’s own sense of self-worth,
but included in the concept are a variety of personal rights including,
for example, privacy. In our new constitutional order, no sharp line
can be drawn between these injuries to personality rights. The value
of human dignity in our Constitution is not only concerned with an
individual’s sense of self-worth, but constitutes an affirmation of the
worth of human beings in our society. It includes the intrinsic worth
of human beings shared by all people as well as the individual
reputation of each person built upon his or her own individual
achievements. The value of human dignity in our Constitution
therefore values both the personal sense of self-worth as well as the
public’s estimation of the worth or value of an individual. It should
also be noted that there is a close link between human dignity and
privacy in our constitutional order. The right to privacy, entrenched in
section 14 of the Constitution, recognises that human beings have a
right to a sphere of intimacy and autonomy that should be protected
from invasion. This right serves to foster human dignity. No sharp
lines then can be drawn between reputation, dignitas and privacy in
giving effect to the value of human dignity in our Constitution. No
argument was addressed to this court on the relevance of the right to
privacy to this case and I shall not consider it further.
Note that the justice is referring to dignity as a value, not dignity as a right. Does
that make a difference?
• What are the similarities and differences between the constitutional rights
to bodily integrity, dignity, privacy and reputation, and those found in the
law of delict?
• What effect is the Constitution likely to have on the way personality rights
in the law of delict will be defined in future?
4.6 Conclusion
The harm element is the cornerstone of delictual problem-solving. Once
the nature of the harm is identified, it is possible to identify the nature of
the enquiry and elements that need to be proven. However, like all other
elements, the harm element serves not only to fix liability, but also to
limit it. This is where the normative aspects of the element come in, and
they serve to restrict delictual claims only to those where harm is
actionable, provided that one remembers that no delictual element exists
in isolation. From this chapter, one can see that there is an interplay
between the harm and wrongfulness elements. There is a similar
interaction between the way in which one determines harm and assesses
damages. So, for conceptual clarity, it is always important to remember
where one is along the problem-solving route towards the intended
destination.
Figure 4.2 The harm element
1 First National Bank of South Africa Ltd v Duvenhage 2006 (5) SA 319 (SCA); [2006] 4 All SA
541 (SCA) para 1. See also H v Fetal Assessment Centre 2015 (2) SA 193 (CC); 2015 (2) BCLR
127 (CC) paras 54 and 60.
2 Bennett v Minister of Police 1980 (3) SA 24 (C).
3 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A).
4 Barnard v Santam Bpk 1999 (1) SA 202 (SCA).
5 RAF v Sauls 2002 (2) SA 55 (SCA); Minister of Safety and Security v Sibili [2003] 4 All SA 451
(Tk).
6 [2007] 4 All SA 1152 (C); 2008 (1) SA 192 (C). See also section 4.3 below.
7 Para 22.
8 Para 23.
9 Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657; Jooste v
Botha 2000 (2) SA 199 (T).
10 Edouard v Administrator, Natal 1989 (2) SA 368 (D) at 391; Kellerman v SA Transport
Services 1993 (4) SA 872 (C) at 876–877.
11 2010 (4) SA 558 (SCA) para 3 (footnotes omitted).
12 Similarly, the Constitutional Court has ruled that adultery can no longer be considered
wrongful. In the past adultery was viewed as being automatically insulting towards the
innocent spouse (see, for example, Wiese v Moolman 2009 (3) SA 122 (T)), but in DE v RH
2015 (5) SA 83 (CC) the Court noted that public attitude towards adultery has softened (para
52) and that the potential infringement of dignity had to be balanced against the rights of
the adulterous spouse and the third party to privacy, freedom of association and security of
person (para 62).
13 Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 7 ed (2015) at 222.
14 1911 AD 657.
15 At 662.
16 At 669.
17 At 669.
18 1997 (1) SA 611 (A).
19 2000 (3) SA 274 (SCA).
20 Jowell v Bramwell-Jones; 2000 (3) SA 274 (SCA); [2000] 2 All SA 161 (A) para 22.
21 The element is ‘harm or loss’, not ‘damage or loss’. See section 4.1 above.
22 See also Corbett The Quantum of Damages Vol 1, 4 ed (Gauntlett) at 9 where the same
criticism is made.
23 Paras 24 and 25.
24 H West & Son Ltd v Shephard [1963] 2 All ER 625 (HL) at 636G–H.
25 Sigournay v Gilbanks 1960 (2) SA 552 (A) at 572B.
26 1998 (3) SA 275 (A) at 288E–F.
27 1960 (2) SA 552 (A).
28 At 571D–G.
29 Sigournay v Gilbanks 1960 (2) SA 552 (A) at 571B–C; Botha v Minister of Transport 1956 (4)
SA 375 (W); Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W).
30 Reyneke v Mutual and Federal Insurance Co Ltd 1991 (3) SA 412 (W) at 426B.
31 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
32 Reyneke v Mutual and Federal Insurance Co Ltd 1991 (3) SA 412 (W) at 429C–D.
33 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 120A.
34 See Chapter 25 below.
35 Neethling and Potgieter (2015) at 345 and 346.
36 De Villiers The Roman and Roman-Dutch Law of Injuries: A Translation of Book 47, Title 10
of Voet’s Commentary on the Pandects (1899) 24 fn 19.
37 O’Keefe v Argus Printing and Publishing Co Ltd 1954 (3) SA 244 (C).
38 Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) at 849 E–F.
39 Warren and Brandeis ‘The Right to Privacy’ (1890–1891) 4(5) Harvard Law Review 193 at
195.
40 Van der Walt and Midgley Principles of Delict 4 ed (2016) para 102 (footnotes omitted).
41 2009 (1) SA 141 (CC) para 76.
42 1993 (2) SA 451 (A).
43 2001 (1) SA 545 (CC).
44 2010 (1) SA 280 (GSJ) at 295.
45 Van der Walt and Midgley (2016) para 102.
46 1995 (3) SA 848 (W); [1995] 4 All SA 205 (W).
47 [1997] 3 All SA 594 (W); 1997 (9) BCLR 1225 (W).
48 1954 (3) SA 244 (C).
49 The Court added this aspect elsewhere in the judgment at 249A.
50 At 248A–B.
51 At 249A.
52 Neethling and Potgieter (2015) at 373–374 (footnotes omitted).
53 Grütter v Lombard 2007 (4) SA 89 (SCA).
54 Para 12.
55 A phrase used by O’Regan J in Khumalo v Holomisa 2002 (5) SA 401 (CC) para 27.
56 Sindani v Van der Merwe 2002 (2) SA 32 (SCA) para 15.
57 Burchell The Law of Defamation in South Africa (1985) at 103–126.
58 1989 (2) SA 857 (A) at 861D–E.
59 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC).
60 [2013] 2 All SA 412 (GSJ).
61 Khumalo v Holomisa 2002 (5) SA 401 (CC) para 28; The Citizen 1978 (Pty) Ltd v McBride
(Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC) para 79.
62 H v Fetal Assessment Centre 2015 (2) SA 193 (CC); 2015 (2) BCLR 127 (CC) paras 78–79.
(CC); 2011 (8) BCLR 816 (CC) para 79.
64 2002 (5) SA 401 (CC).
65 2002 (5) SA 401 (CC).
66 Para 27.
Chapter 5
Conduct
5.1 Introduction
5.2 Human conduct
5.1 Introduction
In the same way that there cannot be a delict without harm being
present, there cannot be a delict unless one can link the harm suffered to
the conduct of a person, or the behaviour of an animal. It is this conduct
or behaviour that sets the delictual sequence of events and consequences
in motion. As a general rule, delictual liability is based on voluntary
human conduct, and this is certainly true for any liability based upon
fault and some instances of strict liability. However, in a diagram in
Chapter 1,1 we suggested that damages claims based on animal
behaviour should also fall within the concept of delict, but as we describe
below, liability in such instances rests on a different principle.
The conduct element is another one of the factual elements referred
to in Chapter 1 which a plaintiff needs to prove by producing evidence.
The element requires the plaintiff to show that there was some overt
behaviour linked to the harm. Mere thoughts, without being manifested
in some way, cannot create delictual consequences. The overt behaviour
that could constitute and satisfy the conduct element includes:
• A positive physical act, such as driving your vehicle into a
neighbour’s wall; or manufacturing a product; or enticing a rival’s
staff member to join your business (a commission)
• A positive statement or comment, in writing or orally (which is also a
commission)
• A failure to do or say something, such as merely looking on while a
person is drowning without attempting a rescue; failing to repair
potholes in a road or to institute safety measures where these are
required; or failing to warn someone of the harmful effects of, for
example, a tablet (an omission).
The distinctions between positive conduct and omissions, and between
positive conduct and statements, are important because the nature of the
conduct is a crucial consideration when courts determine whether they
should consider the causing of harmful consequences to be wrongful,
and so to attract liability. For reasons of policy, courts are more readily
inclined to hold defendants liable in respect of consequences flowing
from positive acts, and less so in cases of omissions and statements. For
example, while it is usually socially and economically unacceptable to
cause others harm, it would be unduly restrictive, and therefore
undesirable, to enforce a wide and general duty to prevent harm to
others. It follows that there is no general duty to prevent harm to others.
In law, you are generally not compelled to be your brother’s keeper. The
same restrictive approach applies to conduct in an oral or written
statement. This is because the harmful effects of the spoken or written
word may be widespread and indeterminate. Therefore, courts impose
liability for the harmful effects of an omission or statement only in special
circumstances that indicate a duty to prevent harm. The existence of such
a legal duty, in respect of positive acts, omissions and statements, is
essentially a question of wrongfulness.
5.2 Human conduct

The conduct that forms the subject of a delictual enquiry is, as a rule, that
of a human being, and usually, defendants are natural persons. However,
juristic persons (for example, a company or a university) may also be
sued in delict. In such instances, it is the conduct of the juristic person’s
office bearers or organs that is attributed to that entity. In other words, a
juristic person acts through its organs, and so, for example, a decision of
a board of directors becomes a decision of the company.2
Human conduct will also be present where objects or animals are
used as instruments to cause harm, for example, where a person uses a
knife to stab someone, a motor vehicle strikes a pedestrian, a tape
recording contains a defamatory statement, or where a defendant incited
a dog to bite the plaintiff.3

The conduct must be voluntary, that is, subject to the actor’s will and
control. This implies that the person should have the ability to direct
muscular activity or to prevent such activity. In most definitions of
voluntary conduct, the particular act or omission is referred to as being
‘subject’ or ‘susceptible’ to the control of the actor’s conscious will.
Essentially, the voluntary nature of a defendant’s conduct refers to the
extent to which the defendant can make a decision to act or to refrain
from acting.
The term voluntary, as it is used in this context, has a special and
restricted meaning to determine the ability in law to act. It does not
necessarily correspond to a recognised psychological condition and the
term does not refer to what the defendant intended to do or should
reasonably have done. These are questions that concern intent or
negligence, which we deal with under the enquiry into fault. Even an
infant or a mentally disturbed person can act voluntarily, based on the
mental capacity to direct muscular activity. However, such people lack a
different kind of ‘voluntariness’ – accountability, or the capacity for fault
– and therefore courts will not hold them liable. Accountability requires a
mental capacity more advanced than simply being able to direct
muscular activity, namely the ability to distinguish between right and
wrong, and to act accordingly.
PAUSE FOR A person’s capacity to act versus a person’s capacity to be at fault

There is a distinction between a person’s capacity to act and one’s capacity to
REFLECTION
be at fault. In the first instance, the question is whether the person is able to
control his or her muscular movements towards a particular end. If the person is
unable to do so, then the conduct element has not been satisfied. In the second
instance, the question is whether the person has the ability to behave
responsibly, that is, whether he or she is able to distinguish between right and
wrong, and to act accordingly. If the person cannot distinguish between right and
wrong, or does not have the mental ability or maturity to resist the impulse to
commit the wrong, then the person is not at fault. In other words, one cannot be
blamed for acting because one lacks accountability. In the first instance, there is
no conduct. In the second, there is conduct, but no fault.
The defence of automatism occurs when a defendant asserts that he or

she behaved involuntarily or mechanically, or lacked the capacity to act
voluntarily. Such incapacity is usually linked to a known physical or
mental condition that can render a person unable to direct muscular
activity, but involuntary conduct may result from other instances as well.
Conduct will not be voluntary in the following instances:
• Compulsion (vis absoluta or absolute force): Snyman4 cites the
example of when someone is slicing an orange with a knife and a
stronger person grabs the hand holding the knife and forces the knife
into the chest of someone else. In such circumstances, we cannot say
that the person who was slicing the orange acted in stabbing the
third person.
• Reflex muscular movements: A person who damages an article
during a sneezing fit,5 or who kicks over an expensive vase when
tapped with a ruler on the knee, causing it to jerk upwards, does not
act voluntarily.
• Unconscious state: Included in this category is conduct occurring
during sleep,6 an epileptic fit,7 extreme intoxication8 or an extreme
emotional state.9
The defence will not succeed in the following instances:

• Impulsive or spontaneous acts: These are not purely reflexive acts
and are, therefore, regarded as voluntary; for example, where a
driver loses control of a vehicle when reacting to a bee sting or to a
burning match falling into his lap.10
• Intentional prior conduct: If the state of automatism is deliberately
induced to cause harm to another (actio in libera causa);11 for
example, where a person deliberately gets drunk to work up courage
to assault another person,12 liability is founded on voluntary conduct
that intentionally induces a state of automatism. The defendant
intentionally sets in motion a causal chain of events that results in a
harmful consequence.
• Negligent prior conduct: When a defendant voluntarily engages in a
course of conduct that leads up to a state of automatism, a court will
impose liability if the defendant could reasonably have foreseen the
possibility of causing harm in the state of automatism. So a court will
impose liability where a person negligently allows a state of
unconsciousness to develop, for example, falling asleep while
driving, or failing to prevent a reasonably foreseeable health-related
condition. In Wessels v Hall and Pickles (Coastal) (Pty) Ltd 13 the
defendant, a diabetic, suffered a hypoglycaemic attack and became
comatose while driving a vehicle. This resulted in an accident. The
defendant was aware of his diabetic condition and of the possibility
of sudden attacks and knew what precautionary measures (eating a
mid-morning snack) were necessary. He was held to have been
negligent for having failed to take reasonable precautions before
driving his car.
The enquiry as to whether an act is voluntary is a subjective one – it

concerns the defendant’s capacity to direct muscular activity at the
relevant time. On the other hand, the enquiry into negligence is objective
– it focuses on whether the defendant’s voluntary harm-causing conduct
conformed to the standard that can be expected of a reasonable person.
The issue of voluntariness, therefore, precedes and differs in principle
from the issue of negligence. Where a defendant voluntarily engages in a
course of conduct that leads to a state of automatism, the enquiry into
negligence should focus on the course of conduct that preceded the state
of automatism. Courts will impose liability if the possibility of causing
harm in the state of automatism was reasonably foreseeable. For
instance, a person who has forewarning of an impending heart attack will
be negligent if he or she nonetheless continues driving a vehicle.
When automatism is claimed, courts will scrutinise this defence
carefully, because it is difficult to verify the allegation of, for example, a
sudden ‘black-out’. They will take into account the circumstances at the
time of the voluntary conduct preceding the state of automatism to
determine whether the state of unconsciousness and any possible harm
to others were, at that time, reasonably foreseeable and preventable. In
doing so, courts do not merely rely on the defendant’s evidence, but form
an opinion using all the evidence presented to them and assessing the
probabilities of different scenarios arising from that evidence.
Molefe v Mahaeng14
The appellant (plaintiff) was involved in a motor collision with the respondent (defendant). The accident
occurred when two vehicles approached one another from opposite directions. The defendant’s car
swerved on to the incorrect side of the road, where it collided with the plaintiff’s vehicle. The defendant
gave evidence to the effect that he was overcome by a sudden, unforeseen and uncontrollable black-out;
that is, he raised the defence of automatism. He attributed this to a fall in a supermarket earlier on the
morning of the accident. There was evidence that he had been treated at a hospital after the fall, and
also that he appeared to have been in a daze after the accident. When the matter came before the
Appellate Division, the Court held that defences based on automatism had to be scrutinised with great
care but, as is the norm, the plaintiff still had the onus to establish the defendant’s conduct, which
included proof of a voluntary act.
The Court held that the plaintiff had not discharged the onus of proving that the defendant’s conduct
had been voluntary and that the defendant did not suffer a black-out. Despite shortcomings in the
defendant’s testimony, there was sufficient evidence showing that the defendant had had a fall shortly
before the collision; that he had lost consciousness; that he had received medical treatment. The black-
out had come upon the defendant unexpectedly and there was no evidence indicating that he had
appreciated the possibility of blacking-out; or that a reasonable person in his position would have been
aware of such a possibility. The plaintiff had, therefore, failed to prove, ‘as a matter of probability’ that
the defendant had been driving on the wrong side of the road ‘due to his voluntary act’.15

As pointed out earlier, a positive act is called a commission, while a
failure to act is called an omission. It is not always easy to distinguish
between commissions and omissions, especially where the activity is
continuous. So, the same conduct might at the same time constitute both
a positive act and an omission. The following examples indicate this
overlap and the difficulty it poses:
• Failing to stop at a stop sign and colliding with an oncoming vehicle
constitutes positive conduct (the act of driving), but some people
might also think that it is an omission (failing to stop). However, the
failure to stop is usually treated as deficient (negligent) positive
conduct. In such an instance, the failure to stop is not an omission,
but an act of negligent driving, in the same way as driving without
keeping a proper look-out (that is, failing to be observant) is not an
omission, but a way of saying that the person was driving negligently.
• Consider the case where a woman asks a policeman to take her
home and the policeman instead takes her to a secluded place and
rapes her. The act of rape constitutes positive conduct, but,
simultaneously, the policeman’s failure to comply with his duty to
protect citizens amounts to an omission.16 In this instance, the rape
is not a deficient way of executing the policeman’s duty to protect the
woman, but involves the breach of an entirely separate obligation.
The failure to protect the woman cannot be expressed as constituting
deficient (overlapping) positive conduct (the woman’s rape).

A delict can also be committed where animals cause harm without
human conduct being involved. For example, a pig owner may be liable if
the animals stray onto neighbouring land and destroy crops belonging to
a neighbour (actio de pastu), or a dog owner may be liable if the dog bites
a passer-by (actio de pauperie). In these cases, the owner’s liability is
based on a legal relationship concerning the animal (ownership) and not
on human conduct. Liability for the event that caused harm is
transferred, or imputed, to the owner. This situation is analogous to
vicarious liability, where liability for the delict of an employee is
transferred, or imputed, to the employer.
Figure 5.1 Conduct in the law of delict
1 Figure 1.1.
2 A company or other legal entity may also be vicariously liable for the act of an employee or
of a member of its senior management. In such an instance, however, it is not the company
that has acted, but its employee or manager, and liability is not based on the company’s
conduct.
3 Jooste NO v Minister of Police 1975 (1) SA 349 (E).
4 Snyman Criminal Law 6 ed (2014) at 54–55.
5 Snyman (2014) at 55.
6 R v Dlamini 1955 (1) SA 120 (T); R v Ngang 1960 (3) SA 363 (T).
7 R v Victor 1943 TPD 77; R v Mkize 1959 (2) SA 260 (N).
8 S v Chretien 1981 (1) SA 1097 (A) at 1104.
9 S v Arnold 1985 (3) SA 256 (C).
10 S v Smit 1963 (4) SA 824 (GW); S v Crockart 1971 (2) SA 496 (RA); S v Erwin 1974 (3) SA 438
(C).
11 The rule in full reads ‘actio non in se, sed tamen in sua causa libera’ meaning literally ‘an act
that was not in his power (at the time) but its (original) cause was in his power’.
12 S v Baartman 1983 (4) SA 395 (NC).
13 1985 (4) SA 153 (C).
14 1999 (1) SA 562 (SCA).
15 At 569F–G.
16 K v Minister of Safety and Security 2005 (9) BCLR 835 (CC); 2005 (6) SA 419 (CC).
Chapter 6
Factual causation
6.1 Introduction
6.2 Determining factual causation and the conditio sine qua non test

6.3.1 The elimination/substitution process of reasoning is clumsy and circuitous
6.3.2 The conditio sine qua non test provides no answer in cases of multiple (or cumulative)
causes
6.3.3 The conditio sine qua non test is not a true test for determining factual causation

6.4.2 Common sense
6.4.4 Increasing risk and creating opportunities for occurrence of harm
6.5 Alternative tests for multiple, cumulative and successive causes
6.7 Conclusion
6.1 Introduction
To find a defendant delictually liable, there has to be a causal connection
between the harm that the plaintiff suffered and the defendant’s conduct.
In other words, the defendant’s conduct must have caused the plaintiff’s
harm or loss. Without a causal connection between the harm and the
defendant’s conduct, there can be no delict.1
TERMINOLOGY Cause
In Minister of Police v Skosana,2 Corbett JA cited Prosser’s definition of
‘cause’:3
A cause is a necessary antecedent: in a very real and practical sense,

the term embraces all things which have so far contributed to the
result that without them it would not have occurred. It covers not only
positive acts and active physical forces, but also pre-existing passive
conditions which have played a material part in bringing about the
event. In particular, it covers the defendant’s omissions as well as his
acts.
A conclusion as to whether a causal link exists between the wrongdoer’s

conduct and the harm is drawn from the facts, the evidence before the
court, and the relevant probabilities in the circumstances. The important
question for purposes of this chapter is the approach to and the manner
in which one should draw this conclusion. In other words, what is the test
for factual causation? This enquiry consists of two parts, which was
expressed in Minister of Police v Skosana in the following terms:4
Causation in the law of delict gives rise to two rather distinct problems. The first is a
factual one and relates to the question as to whether the negligent act or omission
in question caused or materially contributed to … the harm giving rise to the claim.
If it did not, then no legal liability can arise and cadit quaestio. If it did, then the
second problem becomes relevant, viz whether the negligent act or omission is
linked to the harm sufficiently closely or directly for legal liability to ensue or
whether, as it is said, the harm is too remote. This is basically a juridical problem in
which considerations of legal policy may play a part.
This two-fold enquiry represents the two fundamental components of the

element of causation: factual causation and legal causation.5
PAUSE FOR The two-fold enquiry
REFLECTION 1. Factual causation requires a factual enquiry. This enquiry entails the
following:
◆ Did the defendant’s wrongful conduct cause, or materially contribute
to, the harm sustained by the plaintiff (Minister of Police v Skosana
6)?
◆ If the answer is no, the defendant is not liable and there is no delict.
◆ If the answer is yes, move to the second question/component.
2. Legal causation entails a juridical enquiry where legal policy and other
normative issues play a role. The enquiry entails the following:
◆ Is the factual link strong enough?
◆ Is the harm sufficiently closely connected to the conduct?
◆ Should the law confirm that the defendant caused the harm, or should
liability be limited?
In Chapter 1 we stated that one can divide the elements of a delict broadly
into factual issues and normative issues. The causation element has
components that fit into both these categories. The first component, factual
causation, comprises primarily a factual enquiry. The second component,
legal causation, falls in the category of normative issues. This chapter focuses
only on factual causation. The enquiry into legal causation requires value
judgements and policy considerations, which we discuss in the next chapter.
6.2 Determining factual causation and the conditio sine

qua non test
In South African courts, the main tool for determining factual causation
is the conditio sine qua non theory (or ‘but-for’ test).7 According to this
test, the defendant’s conduct must have been a necessary condition (a
conditio sine qua non) for the plaintiff’s harm to occur. The basis of the
conditio sine qua non test is that every event is the result of many
conditions or factors that are jointly sufficient to produce (or cause) that
event. Therefore, the defendant’s conduct can have caused the harmful
consequence only if it was a necessary condition (conditio sine qua non)
for that consequence to occur. To determine this, the so-called ‘but-for’
test is used as a tool for inferential reasoning: a defendant’s conduct
(either an act or an omission) is a necessary condition of the plaintiff’s
loss if, but for the particular conduct, the harmful consequence would
not have occurred.8 The plaintiff bears the onus of proving on a
preponderance of probabilities that the defendant’s conduct in fact
caused the harm.9
TERMINOLOGY The ‘but-for’ test

In International Shipping Co (Pty) Ltd v Bentley 10 the Appellate Division
articulated the test for factual causation as follows:
The enquiry as to factual causation is generally conducted by applying

the so-called ‘but-for’ test, which is designed to determine whether a
postulated cause can be identified as a causa sine qua non of the
loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened but
for the wrongful conduct of the defendant. This enquiry may involve
the mental elimination of the wrongful conduct and the substitution of
a hypothetical course of lawful conduct and the posing of the question
as to whether upon such a hypothesis the plaintiff’s loss would have
ensued or not. If it would in any event have ensued, then the wrongful
conduct was not a cause of the plaintiff’s loss; aliter, if it would not so
have ensued. If the wrongful act is shown in this way not to be a
causa sine qua non of the loss suffered, then no legal liability can
arise.
Applying the ‘but-for’ test requires a particular process of reasoning,

which differs according to whether the conduct is a positive act or an
omission.
• For positive conduct, one applies a process of mental elimination. In
this process, one mentally eliminates the defendant’s act from the
conditions that lead to the harm to determine whether the outcome
would have been the same. If the harm would not have occurred, the
defendant’s conduct was in fact a necessary condition (conditio sine
qua non) of the harm.11
• For omissions, one applies a process of hypothetical substitution. In
this process, one ‘thinks in’ a (hypothetical) lawful course of conduct
as a substitute for the omission. If the hypothetical act probably
would have prevented the loss from occurring, the wrongful
omission was a necessary condition (conditio sine qua non) of the
loss occurring and, therefore, was the cause of the loss. Hypothetical
substitution involves a retrospective analysis of what probably would
have occurred, based on the evidence, and what could be expected
to occur in the ordinary course of human endeavour.12
S v Van As13
The appellants were police officers who had arrested a man called Makwena. While the officers were
arresting Makwena, five young children who were in his company disappeared. They were scantily
dressed and of poor physique. The following morning, two of the children were found dead from exposure
to cold and rain. The police officers who had failed to search for the children were accused of culpable
homicide. The State contended that the circumstances of Makwena’s arrest had placed the appellant
policemen in a relationship with the children that placed a legal duty on them to take reasonable
precautions to ensure the children’s safety, which they had failed to do.
The question before the Court was whether there was a causal relationship between the officers’
failure to look for the children and the death of two of the children.
The Court concluded that the State had failed to prove a causal link between the officers’ omission
and the children’s death. In considering whether the children would probably have been found and
saved from death if the police had searched for them, the Court described the (hypothetical) course of
action that a reasonable person in the position of the police officers would have taken. The Court
decided that, on the evidence before the Court, a proper search would not have saved the children from
death. As a result, there was no factual link between the omission and the death of the children.
Minister of Police v Skosana14

Whilst under the influence of alcohol, the respondent’s husband, Timothy Skosana, was involved in a car
accident and sustained injuries. He was taken to the police station and, after being processed, taken to
the district surgeon who performed a clinical examination on him. At that point, the district surgeon did
not observe any serious injuries. When Timothy’s cell door was opened the next morning at 07:45, he
complained of severe abdominal pain. Two hours later, a constable walked with him to the rooms of the
district surgeon, who examined him and diagnosed him with an ‘acute abdomen’. The doctor wrote a
note for the hospital and instructed the constable to arrange to take Timothy there. After a two-hour delay
in summoning an ambulance, Timothy arrived at the hospital at 12:30. The doctors there found that his
condition was serious. He died shortly after an operation that had started at 16:25.
Timothy’s widow and children claimed damages from the Minister of Police based on the officers’
negligent failure to provide him with prompt medical help. Corbett JA expressed the applicable test as
follows:15
The negligent delay in furnishing the deceased with medical aid and treatment, for which Davel
and Mahela 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 enquiry into what would have happened had the delay
not occurred.
Using a hypothetical chain of events based on prompt and efficient conduct by the police, the Court
decided, by a majority, that the probable outcome would be that Timothy Skosana would not have died.
The police officers’ omission was therefore a necessary condition – and thus a factual cause – of
Timothy’s death.
mCubed International (Pty) Ltd v Singer NNO16

The respondents were trustees of the Leon John Singer Family Trust who wanted to invest R40m overseas
through various investment companies. They wished to invest R10m of the R40m through the appellants
(mCubed) by converting the R10m into US dollars. Employees of mCubed proposed an investment
structure and the funds were invested overseas. However, the investment structure proposed by mCubed
later proved to be unlawful and when the trustees learned about this, they terminated the investment
through the early withdrawal of the investment funds. However, they could not recover all the money
invested as there had been an unexpected strengthening of the rand against the dollar. The trustees then
instituted legal proceedings against mCubed to recover the balance of the invested funds.
The trustees alleged that, but for the misrepresentations made by mCubed, they would not have
invested the money through mCubed and they would have retained the money in rand. They also argued
that, but for the misrepresentations made by mCubed, they would have terminated the investment
immediately and would not have suffered the loss.
The Court confirmed the ‘but-for’ test as being the appropriate test to determine factual causation,
and in applying this test, it asked what mCubed should have done in the circumstances. The Court was
satisfied that, but for the misrepresentation by mCubed, the R10m would not have been invested with
mCubed at that stage.
The trustees contended that this was the end of the ‘but-for’ enquiry and that factual causation had
thus been established. The Court disagreed, having taken the following two aspects into consideration:
(i) the unpredicted strengthening of the rand against the US dollar, and (ii) that the evidence indicated
that, had the trustees known about the proposed investment structure’s illegality, the R10m would likely
have been converted to US dollars and invested through some other investment company.
The Court reasoned that, but for the unexpected strengthening of the rand against the dollar, the loss
would not have been sustained. If the rand–dollar exchange rate performed as predicted, the trust would
have made a profit despite the trustees’ dissatisfaction with mCubed and despite the early withdrawal of
investment funds. The Court furthermore took into account the fact that even if mCubed had acted as it
should have and the trustees accordingly did not invest the R10m with it, there was enough evidence to
indicate that the trustees would have invested the R10m, converted to US dollars, through other
investment companies where they could have sustained a similar loss due to the stronger rand. Thus,
the misrepresentation was not the cause of the loss; it was merely the cause of the investment through
mCubed. Therefore, factual causation was not established because, but for the misrepresentations made
by employees of mCubed, the trust would probably still have suffered the loss.
Note that causing an event that precipitates a loss (that is, the investment) does not necessarily
mean that the person also caused the harm (that is, the financial loss). The corollary is also true: a
person who has not caused the event (for example, an accident) could be held to have caused the harm
(for example, physical injury), if such harm is caused by some other conduct (for example, the failure to
wear a seat belt or a crash helmet).
Do you agree with the Court’s reasoning in this case? Should the Court not have considered that,
irrespective of where the money was to be invested, an early withdrawal would have been unlikely, but
for the misrepresentations, and the funds would probably have been left untouched until the rand–dollar
situation recovered? How much speculation can one allow in applying the ‘but-for’ test?
When postulating a possible causal scenario, a court may look at the

situation either subjectively or objectively. A subjective approach would
take into account what the specific person would actually have done in
the hypothetical situation. An objective approach would consider the
hypothetical sequence of events that would have arisen if the person
were to have acted reasonably in the circumstances. In the subjective
scenario, the person might have made choices that a reasonable person
would not have made, thus leading to a different result. Our law favours
the subjective approach.17
Minister of Safety and Security v Carmichele18
Coetzee had been charged with attempted rape and attempted murder, but was released on warning.
Subsequent to his release, Coetzee brutally attacked Carmichele and Carmichele sued the Minister of
Safety and Security and the Minister of Justice for damages. She contended that members of the police,
as well as the prosecutor in Coetzee’s case, had in the circumstances owed her a legal duty to prevent
her from being harmed and that they had failed to comply with that duty. The basis for her contention
was that the prosecutor had not opposed Coetzee’s application for his release when both the
investigating officer and the prosecutor had relevant information that they should have placed before the
Court. Carmichele submitted that their failure to disclose that information led to her injuries. The
magistrate, who had the ultimate responsibility of deciding whether to keep Coetzee in custody, testified
that because of the emphasis on personal freedom and the lenient approach to bail that prevailed at the
time, he would still have released Coetzee even if the information available to the investigating officer
had been placed before him for consideration.
To determine factual causation, and because this case involved an omission, the Court had to
postulate what the facts would have been, had the police officers and the prosecutor performed their
duties properly. Would the magistrate have released Coetzee if the police officers and the prosecutor
provided the magistrate with the relevant information?
Various judgments were delivered in this matter. The judgment of the Cape High Court was taken on
appeal to the Supreme Court of Appeal, after which it came before the Constitutional Court,19 where it
was referred back to the Cape High Court. The second High Court decision was again taken on appeal.
The second Supreme Court of Appeal judgment, which finally disposed of the matter, forms the basis of
this discussion.
The Court referred to a moot point that the Constitutional Court had raised:20
An intriguing aspect raised by [the Constitutional Court],21 but left for later decision, is whether
an objective or subjective test should be applied in determining causation. In the ordinary case
the question does not arise, but in this case, because one has to postulate a hypothetical
judgment by a judicial officer exercising a discretion, it does. An objective test would mean that
the Court has to determine what a reasonable magistrate, on the probabilities, would have
done. The subjective test requires the Court to establish what the relevant magistrate would
have done, something that would depend on the relevant magistrate’s evidence or evidence of
what he or she had done in similar cases in the past.
It responded as follows:22
Apart from the fact that the Constitutional Court did not, as I read its judgment, favour any
approach, I have difficulties in accepting the logic of the argument of the (CPD). The first leg of
causation, being a question of fact, cannot depend on policy considerations such as whether or
not a judicial officer should be called to testify. Causation in this type of case will then no
longer be a factual matter of what the effect of certain conduct on the probabilities ‘would’ have
been; it would then become a value judgment of what it ‘should’ have been. Factual issues
cannot be decided differently depending on the type of case. It has to be conceded, however,
that it would be inappropriate for a particular judicial officer to testify in relation to the
hypothetical question of how he or she would have decided a particular case. The problem
becomes more complicated if, depending on the organisation of a particular court or
hypothetical postponements and the like, the identity of the relevant magistrate cannot be
established with any measure of confidence.
The solution to the conundrum appears to be this: The inquiry is subjective in the sense that a
court has to determine what the relevant magistrate on the probabilities would have done had
the application for bail been opposed. In this regard, the ex post facto evidence of the
magistrate would generally amount to an inadmissible opinion as to what his or her state of
mind would have been at some time in the past. To the extent that the evidence is admissible it
would generally be unhelpful because it would be speculative.
Courts of appeal are often called upon to decide what a reasonable judicial officer should have
done and this they do by establishing what a reasonable judicial officer would have done. …
The proper inquiry is, thus, what the relevant judicial officer, who is factually assumed to make
decisions reasonably, would, on the probabilities, have done … .23
The Supreme Court of Appeal thus confirmed that one must use the ‘but-for’ test for determining factual
causation, whereby a person eliminates the actual scenario and replaces it with a hypothetical scenario
that would have arisen if the defendants had acted properly. Based on the facts and evidence, the Court
held that if the police and the prosecutor had acted properly, the magistrate would not have released
Coetzee. On a proper application of the sine qua non test, factual causation was established. In reaching
its conclusion, the Court used a combination of the subjective and objective approaches: it assumed
reasonable decision making on the part of judicial officers in general (an objective element), but
considered what the particular judicial officer probably would have done in such circumstances.
Lee v Minister for Correctional Services24

The applicant was imprisoned at Pollsmoor prison from 1999 to 2004, with the exception of a two-month
period in 2000 when he had been released on bail. The applicant did not have tuberculosis (TB) when
he entered prison in 1999 but contracted TB sometime before his release from prison in 2004. The
applicant sued the Minister of Correctional Services for damages arising from him contracting TB. The
Constitutional Court accepted that Pollsmoor prison was overcrowded and that the applicant had been
imprisoned and transported to and from court in very close confines with other prisoners. It was also
found that TB was rife in the prison and authorities did not follow an adequate system of confinement
and prevention of the disease.
The Supreme Court of Appeal25 found that the applicant had not proven factual causation in terms of
the but-for test, but on appeal the Constitutional Court (by a majority) overturned the decision. The
majority noted that the but-for test was not inflexible and where the use of this test resulted in injustice
our courts could utilise a more flexible approach to factual causation. This flexible approach had a long
history in our law and should be used when common sense had to carry the day.
The Constitutional Court stated:26
[T]he rule regarding the application of the test in positive acts and omission cases is not
inflexible. There are cases in which the strict application of the rule would result in an injustice,
hence a requirement for flexibility. The other reason is because it is not always easy to draw the
line between a positive act and an omission. Indeed there is no magic formula by which one
can generally establish a causal nexus. The existence of the nexus will be dependent on the
facts of a particular case.
As is evident from the statement of agreed facts, the applicant was not infected with TB when
he was admitted to Pollsmoor. It is common cause that, on the evidence on record, it is more
probable than not that Mr Lee contracted TB in prison, rather than outside it. The Supreme
Court of Appeal judgment proceeded on an acceptance of this probability, but it non-suited Mr
Lee on the basis that he failed to prove that reasonable systemic adequacy would have
‘altogether eliminated’ the risk of contagion; that he does not know the source of his infection;
and that had he known the source it is possible that he might have been able to establish a
causal link between his infection and the specific negligent conduct on the part of the
responsible authorities.
In my respectful view the Supreme Court of Appeal erred in adopting that approach. The
reasons for this are twofold. First, it was not necessary for the substitution of reasonable
alternative measures to determine factual causation because our law allows for a more flexible
approach. Second, even if the use of a reasonable alternative substitution were necessary in the
circumstances, our law does not require evidentiary proof of the alternative, but merely
substitution of a notional and hypothetical lawful, non-negligent alternative. The purpose of the
exercise is to evaluate the evidence presented by a plaintiff, not to require more evidence. If the
substitution exercise is done in this way, probable factual causation is established.
The majority held that nothing prevented a court from simply asking whether on the facts of the case the
wrongdoer’s omission probably caused the harm. The Court thus looked at the circumstances
surrounding the applicant’s imprisonment and asked whether these conditions were more probably the
cause of his contracting TB than any other situation. The majority found that to prove factual causation it
would be sufficient to show that the applicant’s risk of contracting TB would have been reduced had the
prison authorities instituted more stringent systemic measures to reduce infection. Factual causation was
found to be present.
PAUSE FOR Could the flexible approach make a difference?

REFLECTION Would the factual scenarios in S v Van As27 and Minister of Police v Skosana 28
produce the same results if the flexible approach advocated in Lee v Minister for
Correctional Services 29 were to be applied to them?
PAUSE FOR Nature and purpose of factual causation

Factual causation is one component of the element of causation that has to be
REFLECTION
satisfied before delictual liability can be established. The purpose of the factual
component is to establish a causal link between the defendant’s conduct and
the plaintiff’s harm or loss. The factual component is concerned with the
sequential progression of how one fact arises out of another. Courts do this using
a process of reasoning that involves a retrospective analysis of what probably
would have occurred, based on the evidence, and what one can expect to occur
in the ordinary course of human endeavour. Note, however, while the choice of
which test one has to apply does involve a policy, one cannot establish facts by
applying policy considerations. Facts are established by evidence. However, in
Lee’s case the Court held that the evidence does not have to be equivalent to ‘a
control sample in scientific investigation’.30 In addition, the law in omission
cases does not require the plaintiff to provide evidentiary proof of what likely
alternatives might have eventuated. A court’s role is merely to examine and
assess the evidence presented to it.

Although courts use the conditio sine qua non test to determine factual
causation, the test is not perfect. There are three main points of critique:
1. The process of reasoning – determining a hypothetical result by
eliminating or substituting conduct – is clumsy and circuitous.
2. The test provides no answer where there are multiple causes.
3. The conditio sine qua non is not a true test for determining factual
causation because it is merely a way of expressing a causal link that
has already been determined.
6.3.1 The elimination/substitution process of reasoning is

clumsy and circuitous
In instances that involve positive conduct, the conditio sine qua non test
requires that one eliminates the conduct. The criticism here is that in
applying the test judges are required to determine factual causation in an
indirect manner.31 This leads to a circuitous process, which provides no
answer. Judges must eliminate the conduct and imagine how the
sequence of events would have progressed in the absence of the conduct.
In this process, judges only have to eliminate the wrongful act, while
keeping the same all the other events and conditions that coexisted with
the wrongful act. In other words, judges are required to determine
whether these events and conditions caused the harm. Yet, to determine
this, they also have to eliminate these events and conditions in terms of
the conditio sine qua non test. The result is that, since the act in question
and the other events and conditions have been mentally eliminated, only
the harmful event remains and the process has to start all over again.
In instances that involve omissions, one uses the substitution
process. In these cases judges first substitute the omission with a positive
act that they consider would have been probable and reasonable in the
circumstances. They then imagine a sequence of events that would have
followed. In Minister of Safety and Security v Van Duivenboden 32 the
Supreme Court of Appeal uttered some cautionary words to those who
apply this process:
There are conceptual hurdles to be crossed when reasoning along those lines (as in
International Shipping Co (Pty) Ltd v Bentley) for once the conduct that actually
occurred is mentally eliminated and replaced by hypothetical conduct questions
will immediately arise as to the extent to which consequential events would have
been influenced by the changed circumstances. Inherent in that form of reasoning
is thus considerable scope for speculation which can only broaden as the distance
between the wrongful conduct and its alleged effect increases. No doubt a stage will
be reached at which the distance between cause and effect is so great that the
connection will become altogether too tenuous … .
Nevertheless, the Court was of the opinion that these ‘conceptual

hurdles’ should not be ‘unduly exaggerated’ since a plaintiff does not
have to establish factual causation with absolute certainty. However, the
plaintiff does have to prove that the conduct probably caused the harm
and that this entails a ‘sensible retrospective analysis of what would
probably have occurred, based upon the evidence and what can be
expected to occur in the ordinary course of human affairs’. 33
6.3.2 The conditio sine qua non test provides no answer in

cases of multiple (or cumulative) causes
Multiple (or cumulative) causation entails two independent acts that
simultaneously cause the same harmful event. For example, if A and B,
independently of each other, set fire to C’s house after which everything
C owns is destroyed in the fire, both acts caused C’s loss. However, the
conditio sine qua non test is not effective in determining the factual
cause of C’s loss, because when considered separately, neither A’s nor B’s
conduct would qualify as a necessary condition for C’s loss. If A’s conduct
is eliminated, C would still have suffered the loss because of B’s conduct.
So, according to the test, A’s conduct did not cause C’s loss. Similarly, if
one eliminates B’s conduct, C would still have suffered the loss because
A’s conduct is still part of the enquiry; and in applying the conditio sine
qua non test, B’s conduct would also not be the factual cause of C’s loss.
Clearly this outcome is untenable, because common sense, logic and the
tenets of justice clearly indicate that both A and B caused C’s loss. In an
American case, Summers v Tice,34 the plaintiff was injured when two
hunters simultaneously shot at a quail. If one applies the conditio sine
qua non test following the reasoning just outlined, one would conclude
that neither hunter caused the injury, despite common sense dictating
that either one of them, or both, was responsible.
6.3.3 The conditio sine qua non test is not a true test for
determining factual causation
The argument is that instead of the conditio sine qua non test
determining factual causation, it is actually an ex post facto way of
expressing a predetermined causal link. The gist of this critique is that
one can only apply the conditio sine qua non test if one already knows
the factual cause of the harm. Otherwise, how would one know which
event prior to the harm has to be eliminated?
Consider the following example: A is a terminally ill patient and in a lot of pain. Doctor B,
A’s attending physician, administers a dose of strong pain medication. Shortly thereafter A
dies. The conditio sine qua non test would be unable to indicate the factual cause of A’s
death without an investigation as to what caused A’s death: the illness or a too strong dose
of pain medication.
This means that the conditio sine qua non cannot be a test for
determining factual causation because the factual cause of the harm has
already been identified by human experience and knowledge. The
conditio sine qua non theory is thus merely a method of expressing:
a priori conclusion, based on knowledge and experience, regarding the existence of
factual causation in terms of the traditional ‘but-for’ formula.35
Given that the conditio sine qua non approach is unable to cater for all
situations, courts in other countries have considered other methods of
determining factual causation. They continue to accept and apply the
conditio sine qua non theory as the primary test, but they do not consider
it to be the only test for factual causation. Similarly, in some instances,
our courts have resorted to a common-sense standard in light of the
evidence, human experience and knowledge,36 and also to the material
contribution test.37 Other options, such as the increase in the risk of
harm, have also been offered.38
The following sections describe some of the possible alternatives to
the traditional conditio sine qua non approach.

The leading case in South Africa, Minister of Police v Skosana,39
confirmed the conditio sine qua non as the test for factual causation.
However, the Court explained that in determining factual causation, the
question is whether the defendant’s conduct ‘caused or materially
contributed to’ the plaintiff’s harm.
The material contribution test has been used in other jurisdictions,40
but South African courts have referred to it in a few cases only.41 A
possible reason for this is that the material contribution test denotes a
lesser standard of proof and so applying it has the potential to broaden
liability, especially where apportionment of fault is not possible.
Trindade and Cane42 point out:
The curiosity of this principle is that a defendant can be held liable for the whole of
a loss even though all that can be proved on the balance of probabilities is that (the
defendant) contributed to it. The principle allows the courts simply to ignore the
lack of evidence on the issue of which factor caused which part of the plaintiff’s loss.
However, the purpose of the element of factual causation is not to limit

liability. Its purpose is to determine whether the defendant’s conduct
‘caused or materially contributed to’ the harm. Limitation of liability falls
to the legal causation enquiry where policy and other considerations
come into play. The tempering effect of legal causation ensures that there
is a fair balance between the interests of the plaintiff, the defendant and
society at large.
6.4.2 Common sense

Strict adherence to and rigid application of the conditio sine qua non
theory has led to dissatisfying outcomes and consequent criticism of the
theory. In Minister of Safety and Security v Van Duivenboden 43 the
Supreme Court of Appeal recognised that plaintiffs do not have to
establish a factual link with certainty. Plaintiffs only have to establish that
the wrongful conduct was probably the cause of the harm. They do this
by ‘sensible retrospective analysis’ of what would probably have
occurred. In Minister of Finance v Gore NO 44 the Supreme Court of
Appeal noted that the ‘but-for’ test is a ‘matter of common sense, based
on the practical way in which the ordinary person’s mind works against
the background of everyday life experiences’. In Portwood v Svamvur 45
Beadle CJ noted that the conditio sine qua non approach would not lead
to an acceptable outcome on the facts before him, and so he instead
followed a ‘direct common-sense approach of the man in the street’. 46
Portwood v Svamvur47
The defendant’s dog had become entangled in a gate. In trying to release the dog, the plaintiff was bitten
several times. The plaintiff’s claim was based on the actio de pauperie and, in the alternative, on the lex
Aquilia. The Court found that any normal dog would have bitten a stranger in such circumstances and the
pauperien action was dismissed. The alternative claim was upheld on the ground that the defendant had
been negligent in allowing his dog, which he knew to have a savage nature, to be at large without a
muzzle. On appeal, it was found that the plaintiff’s injuries had been caused by two factors: the savage
nature of the dog, and the fact that it had got caught in the gate. In this case, the savage nature of the
dog was not a conditio sine qua non of the accident. Nevertheless, the Court found the proper approach
in the circumstances would be a common-sense approach and stated that by taking a ‘juryman’s view’ of
the situation, the savage nature of the dog did play a part in it biting the plaintiff. Based on this
approach, the Court found that there was a factual link between the savageness of the dog and the
plaintiff’s injury.
This judgment received criticism for stating that the nature of the dog caused the injury. In terms of
factual causation, the proper approach is to determine whether the defendant’s conduct caused the
harm.48
As a test for factual causation, one cannot accept the common-sense

approach, which has little specific to offer. First, there is no uniform
notion of common sense because notions of common sense vary from
person to person. Second, resorting to common sense as a test may avoid
properly explaining the reasons for arriving at the conclusion,49 which in
turn might suggest that ‘causal requirements are a matter of
incommunicable judicial instinct’,50 which they are not.
Therefore, although a common-sense approach to factual causation
may indicate the shortcomings of the conditio sine qua non approach, or
any other test for factual causation, it cannot in itself serve as a test to
determine a factual link. Instead, common sense should provide a
standard against which one judges the application of a test for factual
causation.
PAUSE FOR But-for ’ or ‘common sense’?

REFLECTION Consider the judgments in Minister of Finance v Gore NO 51 and Lee v Minister
for Correctional Services.52 Did the courts apply the ‘but-for’ test or did the judge
apply the common-sense approach as an alternative to the ‘but-for’ test?
Consider the usefulness of having common sense and human experience as
considerations in the articulation of the conditio sine qua non test, as opposed
to common sense being a test separate from the conditio sine qua non test.

Neethling, Potgieter and Visser would have us debunk the conditio sine
qua non test completely. They suggest that there is no need for a general
all-encompassing test for factual causation because the question of
factual causation does not present many problems. Courts usually
determine the factual link in light of the evidence and probabilities in the
circumstances: ‘(T)here are probably as many tests for factual causation
as there are causal links.’ 53 The basis of this approach is that factual
causation depends on the facts of a particular case. A causal link exists
where one fact arises out of another. The point that Neethling, Potgieter
and Visser argue54 stems mainly from the fact that factual causation
depends on the facts of each case and is not something that one can
apply to all factual scenarios. Therefore, in terms of this approach, one
should determine factual causation by human experience and
knowledge, based on the actual, and not hypothetical facts of the case.
So, where a defendant’s conduct has in any way contributed to the harm
suffered by the plaintiff, factual causation would usually be established.
COUNTER A variation of the common-sense approach

Midgley contends that an approach based on human experience and knowledge
POINT
is merely a variation of the common-sense approach, and thus subject to the
same criticism. He suggests that the criterion amounts to ‘intuition based on
facts’, which is essentially no different from a common-sense view based on
facts.55
Consider also whether the common-sense and human experience
approaches would differ from the material contribution approach. What is the
significance in this regard of the approach followed in Minister of Finance v Gore
NO?56
6.4.4 Increasing risk and creating opportunities for

occurrence of harm
Creating or increasing the risk of harm is not necessarily the same as
directly causing harm. In some instances of increasing risk, applying the
conditio sine qua non test can lead to the absence of factual causation.57
The rationale for this seems to be that the wrongdoer has not taken the
initiative of (positively) setting in motion the factual chain of events that
caused the harm to occur. However, in some instances there may be
sufficient grounds for deviating from the conditio sine qua non test where
a person has increased the risk of harm occurring. In the English case of
McGhee v National Coal Board 58 the plaintiff worked in a brick factory
and cycled home every day after work with brick dust still clinging to his
skin and clothes. He contracted dermatitis, and brick dust was a
recognised cause of the disease. The Court held the employer liable for
the plaintiff’s harm, in spite of the possibility of other factors that also
could have contributed to the disease. The grounds were that the
employer materially increased the risk of his employee contracting an
industrial disease. Based on the evidence, it was clear that if the employer
had provided showers for employees at the end of a working day, he
would have materially reduced the risk of contracting the disease. The
Court thus established factual causation.
When establishing factual causation, the difference between creating
the risk of harm occurring and directly causing the harm can be a very
fine line. For example, if someone starts a fire that causes harm to others,
he or she has directly caused harm. If one leaves the door to a house
unlocked and a thief enters the house through this door and steals
property, one has set in motion a chain of events that caused harm by
creating an opportunity for harm to occur. By using these examples, the
English writers Hart and Honoré 59 indicate that there is in fact no real
difference between making a material contribution to causing harm and
materially increasing the risk of harm.60 In their argument, the increase of
risk approach and the conditio sine qua non test do not exclude each
other because in both situations the conduct (starting the fire and leaving
the door unlocked) set in motion a chain of events that caused harm.
PAUSE FOR Is the increase of risk a necessary or appropriate deviation from the conditio sine
qua non test?
REFLECTION
The purpose of factual causation is to establish a link between the conduct of the
defendant and the harm suffered by the plaintiff. Therefore, if the defendant has
(materially) increased the risk of harm to the plaintiff, can one say that the
defendant’s conduct also materially contributed to, or caused the harm (as
required in Minister of Police v Skosana)61 and therefore satisfies the conditio
sine qua non test?
If the answer is yes, the conduct of the thief in the previous example could
be relevant when enquiring whether legal causation is present by considering the
foreseeability test or whether the thief’s conduct was a novus actus
interveniens.62
6.5 Alternative tests for multiple, cumulative and

successive causes
The conditio sine qua non test is not suitable for instances that involve
multiple causes. Therefore, these instances provide ideal opportunities to
explore the effect of appropriate alternative tests. For example, one could
easily resolve the causation issue in the example of A and B
simultaneously setting fire to C’s house by applying the material
contribution test. There is no need to go further.
However, multiple causes do not necessarily have to occur at the
exact same moment. They can also occur successively. The so-called
‘asbestosis cases’ described next illustrate the inadequacies of the
conditio sine qua non test in successive causation cases. Courts have
used other methods, such as material contribution, risk and common
sense, to avoid injustices that would otherwise result.
Fairchild v Glenhaven Funeral Services Ltd63
The deceased breadwinners had been employed by two employers, both of whom had exposed the
deceased to asbestos dust and fibres. The House of Lords had to decide whether the successive
employers had factually caused the breadwinners’ deaths. The difficulty in such cases is that the disease
develops through a complex process and scientists do not know the level of exposure to asbestos dust
and fibres that can be tolerated without significant risk of developing the disease. A single fibre or many
fibres could cause the disease. However, once the condition exists it can apparently not be aggravated
by further exposure. Accordingly, if a person is employed successively by employers A and B, that person
could have inhaled the asbestos dust and fibres that caused the condition at any time during either
employment period. The person could have developed the condition by inhaling a single fibre during
employment at A, which means that the exposure during employment at B would have had no effect on
his or her condition. Alternatively, the person could have developed the condition during employment at
B, in which case exposure at employer A would have had no effect on his or her condition. Therefore,
there is no way of identifying the source of the fibre or fibres that caused the disease. So, applying the
conditio sine qua non test would lead us to conclude that neither of the two employers is liable as one
could not prove that either of them caused the condition. However, Lord Bingham held that it was:
… just and in accordance with common sense to treat the conduct of A and B in exposing the
[breadwinners] to a risk to which [they] should not have been exposed as making a material
contribution to the contracting … of a condition against which it was the duty of A and B to
protect [them].64
Lord Hoffmann and Lord Rodger agreed with Lord Bingham but limited the application of this
approach to specific types of cases.65 Lord Nicholls based his conclusion on the exposure to risk as
long as the risk is not insignificant.66 Lord Hutton drew an inference of causation in instances where
defendants materially increase the risk, and reversed the onus of proof, with the proviso that one
employer can claim a contribution to the damages from the other employer.67
The importance of this case is that it illustrates that the conditio sine qua non test is not the exclusive
test for factual causation. Underlying enquiries into each and every aspect of delictual elements is the
overall objective of the law of delict ‘to define cases in which the law may justly hold one party liable to
compensate another’.68 So, the conditio sine qua non test should not be slavishly applied. Where it
would lead to an unjust result, it should make way for a test that would lead to a just result.
PAUSE FOR Cook v Lewis69

REFLECTION In this Canadian case, a single pellet had struck the plaintiff after two hunters
had simultaneously discharged their shotguns in his direction. Is this an instance
of multiple causation? Would the sine qua non test lead to an appropriate
result? Is this an instance in which one should apply an alternative test? Would
alternative tests not lead to the same conclusion as that reached when applying
the sine qua non test? Would a ‘basket of tests’ in which one looks at a
particular case from a variety of angles – necessary cause, risk, material
contribution, common sense and policy – not be a more satisfactory way of
determining factual causation?

Despite criticism, the ‘but-for’ test continues to be the preferred
approach to factual causation. However, the question arises whether, in
light of the flexible approach advocated in Lee v Minister for Correctional
Services,70 courts could follow a different approach in particular
circumstances; and if yes, under which circumstances?
The starting point for determining factual causation should be
Minister of Police v Skosana: 71 the conduct in question should have
caused (by being a conditio sine qua non) or materially contributed to
the harm. The Skosana approach should be applied in such a way that
the result conforms to common sense and produces a result that does not
offend our sense of justice. In most cases, this should not be difficult. In
the cases where the result might initially appear to be over-extensive in
its range, the legal causation element tempers its effect.72
In some instances the test will not be able to produce an appropriate
outcome. In these cases courts should consider all the relevant
circumstances and, in the light of relevant policy considerations,
determine whether to apply another test, and if so, which test. It is only
when the circumstances and policy factors justify a deviation from the
‘but-for’ test that one should relax the initial standard. Therefore, the
enquiry is whether the conduct materially contributed to the result. If one
follows this approach, common sense and policy are not tests for
determining factual causation. Instead, like constitutional norms and
values, they provide the context in which one applies the tests, and the
yardsticks against which the tests and their results are measured.73
COUNTER Factual causation: ‘but-for’, material contribution or common sense?

POINT In Minister of Police v Skosana 74 Corbett JA portrayed the test for factual
causation as one that entails both the ‘but-for’ test and an enquiry as to whether
the conduct of the defendant materially contributed to the plaintiff’s harm;75 and
furthermore, that there may be exceptions to the conditio sine qua non as the
(only) generally accepted test for factual causation.76
In International Shipping Co (Pty) Ltd v Bentley 77 Corbett JA focused purely
on the ‘but-for’ test, and did not mention material contribution as an alternative.
In Mukheiber v Raath 78 the Supreme Court of Appeal confirmed the
International Shipping Co (Pty) Ltd v Bentley 79 approach, stating that:
as far as factual causation is concerned, this Court follows the

conditio sine qua non – or ‘but-for’ – test.80
Has the material contribution test been discarded? Are there perhaps instances
in which the conditio sine qua non test would be inadequate and where the
material contribution test might nonetheless be more appropriate?
Consider also Minister of Finance v Gore NO 81 where Cameron JA stated
that the application of the ‘but-for’ test is not based on mathematics, pure
science or philosophy, but is rather a matter of common sense based on the
practical way in which an ordinary person’s mind works against the background
of every-day life experiences. The Constitutional Court appears to have endorsed
this approach in Lee v Minister for Correctional Services.82
Which view should hold sway? Is there room for all three approaches, or
would that lead to inconsistency?
6.7 Conclusion
It is important to remember that the purpose of establishing a factual link
between the defendant’s conduct and the plaintiff’s harm is to establish
factual liability on the part of the defendant. As indicated in the
introduction to this chapter, when determining whether conduct is the
factual cause of harm one needs to conduct a factual investigation into
how the harm came about. The normative question of whether the
(factually established) liability should also be recognised in law is a
question that is addressed in terms of the legal causation enquiry.
The prevailing test to determine factual causation is the conditio sine
qua non test, which should be the point of departure for any enquiry into
factual causation.83 However, in some instances this test is not
satisfactory and one can use other methods of establishing the factual
link. In deciding upon an alternative method, bear in mind that the ambit
of liability is not the main concern; it will be addressed when applying the
tests for legal causation. Nevertheless, any alternative method should
have some flexibility, because courts need to be able to make just and
equitable decisions in terms of the specific circumstances of each case.84
In other words, although one is concerned with factual issues (as
opposed to normative or policy issues) when determining factual
causation, one has to take into account some policy considerations when
deciding upon an alternative test for factual causation. Such policy
considerations are thus aids (or way-marks) in arriving at an appropriate
test for factual causation, in the same way that constitutional values
would inform our choice of an appropriate test.85
Figure 6.1 Factual causation

1 mCubed International (Pty) Ltd v Singer NNO 2009 (4) SA 471 (SCA); H v Fetal Assessment
Centre (2015) 2 BCLR 127 (CC), 2015 (2) SA 193 (CC) paras 54 and 60.
2 1977 (1) SA 31 (A).
3 Prosser (1971) Handbook of the Law of Torts 4 ed at 237.
4 Minister of Police v Skosana 1977 (1) SA 31 (A) at 34–35; see also International Shipping Co
(Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700.
5 See also International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) and mCubed
International (Pty) Ltd v Singer NNO 2009 (4) SA 471 (SCA).
6 1977 (1) SA 31 (A).
7 Minister of Police v Skosana 1977 (1) SA 31 (A); S v Van As 1967 (4) SA 594 (A); International
Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A); Minister of Safety and Security v
Carmichele 2004 (3) SA 305 (SCA) 327 et seq. However, as will be seen later in this chapter,
the conditio sine qua non test is not suitable in all instances. Depending on the
circumstances of each particular case, courts are sometimes required to deviate from the
traditional ‘but-for’ test to reach a just and reasonable outcome. These alternative methods
for determining factual causation are discussed in section 6.4.
8 Minister of Finance and others v Gore NO 2007 (1) SA 111 (SCA) para 32.
9 Minister of Finance and others v Gore NO 2007 (1) SA 111 (SCA) para 32.
10 1990 (1) SA 680 (A) at 700.
11 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700.
12 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 25.
13 1967 (4) SA 594 (A).
14 1977 (1) SA 31 (A).
15 At 35D–E.
16 2009 (4) SA 471 (SCA).
18 2004 (3) SA 305 (SCA).
2001 (4) SA 938 (CC).
20 2004 (3) SA 305 (SCA) paras 57–58.
21 Para 76.
22 Paras 59–61.
23 Our emphasis.
24 2013 (2) SA 144 (CC).
25 2012 (3) SA 617 (SCA).
26 2013 (2) SA 144 (CC) paras 41–43.
27 1967 (4) SA 594 (A).
28 1977 (1) SA 31 (A).
29 2013 (2) SA 144 (CC).
30 Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) para 56.
32 2002 (6) SA 431 (SCA) para 25.
33 2002 (6) SA 431 (SCA) para 25.
34 199 P 2d 1 (1948).
36 For example, Portwood v Svamvur 1970 (4) SA 8 (RAD) at 14–15; Thoroughbred Breeders’
Association v Price Waterhouse 2001 (4) SA 551 (SCA); Minister of Safety and Security v Van
Duivenboden 2002 (6) SA 431 (SCA) para 25 as quoted above; Ncoyo v Commissioner of
Police, Ciskei 1998 (1) SA 128 (CkS) at 137G.
37 Minister of Police v Skosana 1977 (1) SA 31 (A).
38 For a detailed discussion on possible alternatives, see Midgley ‘Revisiting factual causation’
(2006) at 288–302.
39 1977 (1) SA 31 (A) at 34F.
40 For example Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615 (HL); Athey v Leonati
1996 140 DLR (4th) 355.
41 See, for example, Kakamas Bestuursraad v Louw 1960 (2) SA 202 (A) at 222; Humphrys NO v
Barnes 2004 (2) SA 577 (C).
42 Trinidade and Cane The Law of Torts in Australia 3 ed (1999) at 478.
43 2002 (6) SA 431 (SCA) at 434F.
44 2007 (1) SA 111 (SCA) para 33.
45 1970 (4) SA 8 (RA).
46 At 15.
47 1970 (4) SA 8 (RA).
48 For example, see Boberg The Law of Delict, Vol 1: Aquilian Liability (1984) at 413–414.
49 Midgley (2006) at 293–294.
50 Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89; 2002 (3) All ER 305 (HL) para
53.
51 2007 (1) SA 111 (SCA).
52 2013 (2) SA 144 (CC).
54 Neethling and Potgieter (2015) at 185–187.
55 Midgley (2006) at 294–295.
56 2007 (1) SA 111 (SCA).
57 Midgley (2006) at 297–298.
58 1973 (1) WLR 1 (HL).
59 Hart and Honoré Causation in the Law 2 ed (1985) at 59 and 133.
60 See also Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89; [2002] 3 All ER 305
(HL) para 21 per Lord Bingham.
61 1977 (1) SA 31 (A).
62 See Sadomba v Unity Insurance Co Ltd 1978 (3) SA 1094 (R).
63 [2002] 3 WLR 89; [2002] 3 All ER 305 (HL).
64 Fairchild v Glenhaven Funeral Services Ltd; [2002] 3 WLR 89; [2002] 3 All ER 305 (HL) para
34.
65 Paras 108, 111, 117 (Lord Hoffmann) and para 170 (Lord Rodger).
66 Para 41.
67 Paras 61 and 71.
68 Para 9.
69 (1952) 1 DLR 1 (SCC).
70 2013 (2) SA 144 (CC).
71 1977 (1) SA 31 (A).
72 Midgley (2006) at 301–302.
73 Midgley (2006) at 302.
74 1977 (1) SA 31 (A).
75 At 35E.
76 At 35C–D.
77 1990 (1) SA 680 (A) at 700.
78 1999 (3) SA 1065 (SCA).
79 1990 (1) SA 680 (A).
80 Para 34.
81 2007 (1) SA 111 (SCA) para 33.
82 2013 (2) SA 144 (CC).
83 Midgley (2006) at 302.
84 Midgley (2006) at 302.
85 Midgley (2006) at 302.
PART THREE
General principles: Primarily normative

issues
CHAPTER 7 Legal causation
CHAPTER 8 Fault
CHAPTER 9 Wrongfulness
CHAPTER 10 Grounds of justification: Defences directed at the

wrongfulness element
Chapter 7
Legal causation
7.1 Introduction

7.3.4 Intent
7.6 Conclusion
7.1 Introduction
To hold a defendant delictually liable, there has to be a causal link
between the defendant’s conduct and the harm that the plaintiff suffered.
The causation element consists of two components: factual causation
and legal causation. The primary test for factual causation is the ‘but-for’
or the conditio sine qua non test. However, as was explained in
International Shipping Co (Pty) Ltd v Bentley:1
… demonstration that the wrongful act was a causa sine qua non of the loss does not
necessarily result in legal liability. The second enquiry then arises, viz whether the
wrongful act is linked sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This is basically a juridical
problem in the solution of which considerations of policy may play a part. This is
sometimes called ‘legal causation’.
A factual link between the defendant’s conduct and the harm is therefore
not enough to establish liability. No legal system will hold people
responsible for all the harmful consequences of their conduct. This
would not be fair and just. A person is liable only for the consequences
that are closely linked to his or her conduct, either directly or sufficiently
closely and this is where legal causation, the second component of the
causation enquiry, plays a role. Legal causation is used to limit any
liability to those consequences that one can fairly attribute to the
defendant. Where consequences are not linked closely enough to the
defendant’s conduct, or where the link for other reasons is not strong
enough, the link is insufficient to hold the defendant liable in law. In such
instances, courts sometimes say that there is no legal causation, while on
other occasions they say that the consequences are too remote.
Since the focus of the legal causation enquiry is on whether liability
should arise, this part of the causation enquiry is a normative one, often
involving the weighing up of different factors and policy considerations.
In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2 the
Court recognised the control function that the legal causation element
plays and also that the policy decision in this regard is not the same as
that in respect of wrongfulness:
Even where negligent conduct resulting in pure economic loss is for reasons of
policy found to be wrongful, the loss may therefore, for other reasons of policy, be
found to be too remote and therefore not recoverable.3
The following example from case law illustrates how legal causation
operates in practice:
International Shipping Co (Pty) Ltd v Bentley4
The respondent was the appointed auditor of the Deals Group of companies. International Shipping
carried out the business of financiers and shippers. Early in 1976, International Shipping agreed to make
certain financial facilities available to the Deals Group. In March 1979, Bentley issued group financial
statements as well as reports in respect of each of the companies in the Deals Group. These reports were
not qualified. Also, Bentley stated that he had examined the financial statements and that they fairly
represented the financial position of the Group as at 20 December 1978. International Shipping
continued to provide financial facilities until April 1981, when the Deals Group was liquidated.
International Shipping at this stage was owed R977 318, but managed to recover R593 826. This left
the company with a loss of R383 492. International Shipping then proceeded to claim damages from
Bentley on the basis that the financial statements he had prepared were materially false and misleading
in a number of respects. International Shipping alleged that had the 1978 financial statements fairly
presented the financial position of the Deals Group, its constituent companies and the results of their
operations, International Shipping would have terminated the facilities on receiving those statements. It
furthermore would have required the Deals Group to make good its indebtedness to International
Shipping. International Shipping contended that the loss it had sustained was a consequence of
Bentley’s conduct and that Bentley had to make good its loss.
The Appellate Division found that there was conduct, and that the conduct had been both wrongful
and negligent. The Court also found that the conduct was a conditio sine qua non for the loss suffered.
The question that remained was whether the factual connection between the conduct and the harm was
sufficiently close for the Court to attribute liability to Bentley.
The Court held that there were a number of factors that indicated that although the conduct was a
sine qua non of the harm, the harm could not be imputed to Bentley. Some of its reasons included:
• Two years had elapsed between the respondent’s financial reports and the loss.
• International Shipping had decided to provide a support programme for the Deals Group at a stage
when it already knew that the Group’s financial situation was fairly bleak.
• International Shipping had allowed the Deals Group’s indebtedness to escalate in an uncontrolled way.
• The relationship between International Shipping and the Group had changed in the meantime.
International Shipping had become involved in the Group’s administration and had greater insight into
the Group’s financial situation.
• An executive of Deals Group had deceived International Shipping, but International Shipping must have
been aware of, or at least suspected, his dishonesty.
• When drafting the financial statements, Bentley could not have foreseen that International Shipping
would enter into a support programme.
The Court found that the connection between the conduct and the loss was not close enough for liability
to arise. It dismissed International Shipping’s claim. This case illustrates a clear situation in which there
is factual causation, but the harm cannot be imputed to the perpetrator because the legal causation
component has not been satisfied.

For many years courts used a number of tests to determine whether the
harm that results factually from the wrongful conduct should be imputed
to the perpetrator. These tests include:
• The direct consequences test
• The reasonable foreseeability test
• The novus actus interveniens concept
• The adequate cause test.
At first the direct consequences test, and later the foreseeability test, were
favoured. However, as courts began to express ideas about the normative
nature of legal causation decisions and the policy considerations upon
which the decisions are based, other tests emerged. The criminal case of
S v Daniëls 5 illustrates this point clearly. Two perpetrators were charged
with murder. Perpetrator 1 had fired two shots into the victim’s back,
after which perpetrator 2 fired one shot to the victim’s head. An autopsy
revealed that it was the head wound that killed the victim, but that the
shots fired in the victim’s back would have been fatal if they had not
received immediate medical attention. The Court accepted that even if
the victim had not been shot in the head, he still would have died from
the shots in his back. The question that arose was which shot(s) had
caused the deceased’s death. Two of the judges investigated whether
there had been a novus actus interveniens, a third judge looked at the
matter from the point of view of adequate causation, and a fourth
adopted a common purpose approach. Jansen JA, who applied the
adequate cause theory, mentioned that policy considerations require a
limitation on liability, but he also stated that there was no agreement as
to what the criterion had to be.6
Eventually, in another criminal case, S v Mokgethi,7 the Appellate
Division adopted an ‘elastic test’ to encompass all the existing tests. In
this case, five people were accused of several crimes, including the
murder of a bank teller employed at the bank where the five accused had
committed an armed robbery. The deceased had been paralysed after
being shot in the spine by one of the five accused. As a result, he lost all
sensation in his lower body. After his discharge from hospital, he had to
avoid pressure sores from forming on his body and so could not sit still
for too long. However, because he had no sensation in his lower body, he
could not feel any pain from the pressure. Eventually he developed
pressure sores, which then became septic. This resulted in severe
septicaemia, which eventually affected his organs and caused him to die.
The question that arose in this case was whether the gunshot had caused
the man’s death. The Court held that the gunshot was a sine qua non for
his death, but not the legal cause.
The elastic, flexible, or supple test that the Court developed was
based on policy considerations based upon reasonableness, fairness and
justice. The Court also held that tests previously used to establish legal
causation would not be abolished, but could be used as subsidiary tests
depending on the circumstances of each case. Van Heerden JA described
the flexible test as follows: 8
I doubt then whether a legal system could get by without a dominant elastic
criterion for the establishing of legal causation. As is clear from the passages from
Skosana and Daniëls … policy considerations become relevant and the Court has to
be careful that the liability of the perpetrator does not exceed the boundaries of
reasonableness, fairness and justice. These considerations and concepts are not
capable of clear definition.
Regarding the different criteria it seems as if they are not more precise than a
criterion (the supple criterion) in terms of which it is determined whether or not a
sufficiently close connection exists between conduct and its consequence. I do not
say here that one or more of these criteria is not capable of useful application as a
subsidiary test in the case of a particular set of facts, but merely that none of the
criteria can be regarded as a more concrete criterion for limitation in the case of all
factual situations and for the purposes of imputing any form of liability.
Soon after this the Appellate Division, in International Shipping Co (Pty)

Ltd v Bentley,9 applied the Mokgethi approach to delictual liability.
So, as a matter of policy, in our law defendants should not be held
liable in respect of harm that is not closely connected to their conduct.
The test for legal causation is a flexible one whereby courts determine
whether the factual link is sufficiently strong and closely connected to the
conduct to say that it is fair, reasonable and just to hold the defendant
liable for damages. Courts draw the conclusions regarding fairness,
reasonableness and justice after considering the circumstances of the
case and relevant social policy.
PAUSE FOR The flexible approach

It is not entirely clear what the content of the flexible test is. In Mokgethi’s case
REFLECTION
Van Heerden JA wanted to develop a dominant elastic test, without replacing the
existing tests. However, when describing the flexible criterion, he noted that
concepts such as reasonableness, fairness and justice are not easily defined. In
relation to this, he referred to a statement from Blaikie and Others v The British
Transport Commission:10
The law has always had to come to some kind of compromise with
the doctrine of causation. The problem is a practical rather than an
intellectual one. It is easy and usual to bedevil it with subtleties, but
the attitude of the law is that expediency and good sense dictate that
for practical purposes a line has to be drawn somewhere, and that, in
drawing it, the court is to be guided by the practical experience of the
reasonable man rather than by the theoretical speculations of the
philosopher.
This suggests that courts should be guided by practical considerations of

‘common sense’ and ‘expediency’. So, one should use the specific tests only in
appropriate circumstances, while the flexible criterion acts as a conceptual
container within which all the other tests are accommodated and used when
appropriate.
Mokgethi (and thereafter International Shipping) did not abolish the

subsidiary tests. Any uncertainty in this regard, or regarding the
relationship between the flexible criterion and the subsidiary tests, was
clarified in Fourway Haulage SA (Pty) Ltd v SA National Roads Agency
Ltd. 11
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd12
SA National Roads Agency was authorised to collect toll fees at two toll plazas. Fourway Haulage was
transporting asbestos and one of their drivers caused an accident, which resulted in this highly toxic
substance spilling all over the road. The road was closed and traffic diverted to a non-toll road while the
spillage was being cleaned up. Because of this, the SA National Roads Agency lost money and sued
Fourway Haulage for damages. Regarding legal causation the Court noted:13
What Van Heerden JA said in that case (Mokgethi) is not that the ‘flexible’ or ‘supple’ test
supersedes all other tests such as foreseeability, proximity or direct consequences, which were
suggested and applied in the past, but merely that none of these tests can be used exclusively
and dogmatically as a measure of limitation in all types of factual situations. Stated somewhat
differently: the existing criteria of foreseeability, directness, et cetera, should not be applied
dogmatically, but in a flexible manner so as to avoid a result which is so unfair or unjust that it
is regarded as untenable. If the foreseeability test, for example, leads to a result which will be
acceptable to most right-minded people, that is the end of the matter ….
In this case it can, in my view, be accepted with confidence that any of the various criteria will
lead to the conclusion that the loss suffered by the Agency is not too remote. If, for example,
the direct consequences criterion is applied, it is clear that the loss followed directly from the
wrongful and negligent conduct of Fourway’s driver; there was no so-called novus actus
interveniens that broke the chain of events. If, on the other hand, one applies the foreseeability
test, it was in my view reasonably foreseeable that a collision could cause spillage and that,
because of the dangerous nature of the cargo, spillage could result in the closure of the toll
road which could lead to a revenue loss by the Agency.
The Court here set out the relationship between the flexible approach and the subsidiary tests. However,
it also cautioned against using concepts such as reasonableness, fairness and justice to determine legal
causation:14
Considerations of fairness and equity must inevitably depend on the view of the individual
judge. In considering the appropriate approach to wrongfulness, I said that any yardstick which
renders the outcome of a dispute dependent on the idiosyncratic view of individual judges is
unacceptable. The same principle must, in my view, apply with reference to remoteness. That is
why I believe we should resist the temptation of a response that remoteness depends on what
the judge regards as fair, reasonable and just in all the circumstances of that particular case.
Though it presents itself as a criterion of general validity, it is, in reality, no criterion at all.
These comments signal that in the future there may be another variation in the development of the
elastic test for legal causation. If, as the Court suggested, the test is stripped of these considerations as
criteria for determining legal causation, then the decision becomes one of policy in which ‘tests such as
foreseeability, proximity or direct consequences’ play a part. The flexible criterion would not replace these
tests, but they would be applied ‘in a flexible manner so as to avoid a result which is so unfair or unjust
that it is regarded as untenable’.15
Based on the facts, the Court found that the Road Agency’s loss was not too remote, for it was
reasonably foreseeable that an accident that involved a truck carrying hazardous cargo could lead to a
road closure, resulting in a loss of toll revenue.

Prior to the Appellate Division’s adoption of the flexible test, courts used
a number of tests to determine legal causation. There were two main tests
that they used: at first the direct consequences test, and later the test of
reasonable foreseeability. This section describes some of the tests that
have been used in the past.

The direct consequences theory, also known as the ‘proximate cause’
test, originated in the English case of In re Polemis and Furness, Withy &
Co Ltd 16 and dominated for about four decades. In the Polemis case the
defendant had hired a ship. Prior to this contract, petrol had leaked into
the ship’s hold, producing petrol fumes. One of the defendants’
employees dropped a plank into the hold, causing a spark, which in turn
started a fire that completely destroyed the ship. The defendants argued
that they could not be held liable because the damage that resulted could
not have been foreseen. The Court rejected this argument and held:17
If the act would or might probably cause damage, the fact that the damage it in fact
causes is not the exact kind of damage one would expect is immaterial, so long as
the damage is in fact directly traceable to the negligent act, and not due to the
operation of independent causes having no connection with the negligent act,
except that they could not avoid its results. Once the act is negligent, the fact that its
exact operation was not foreseen is immaterial.
According to this approach, persons are liable for all the direct
consequences of their conduct if they should have reasonably foreseen
that their conduct would have caused harm of some kind to the plaintiff.
However, liability is not limited to foreseeable or probable consequences:
as long as the consequences result directly from the conduct, they may be
imputed to the defendant. Only where a new intervening cause (a novus
actus interveniens) breaks the causal link will there be no legal causation
and therefore no liability.
The ‘proximate cause’ test can result in exceptionally wide liability.
As a result, courts tend to limit liability to direct physical consequences.
They also apply the policy of the foreseeable plaintiff, in which liability is
limited to the category of persons that could reasonably have been
foreseen as being likely to suffer harm as a result of the defendant’s
conduct.
The direct consequences test has not found much favour in South
African law. It was used in an old case, Frenkel & Co v Cadle,18 while in
other instances it was used together with the test for reasonable
foreseeability. For example, in Thandani v Minister of Law and Order,19
an unlawful arrest and detention case, the plaintiff had been arrested by
the South African Police and then handed over to the Ciskei security
police. Counsel for the defendant argued that while the defendant could
be held liable for the unlawful detention of the plaintiff by the South
African Police, he was not liable for the plaintiff’s detention by the Ciskei
Police, even though the arrest and detention by the South African Police
was the factual cause of the detention by the Ciskei Police. The Court
found that the legal causation criterion had been satisfied:20
As I see the position the unlawful handing over of the plaintiff to the Ciskei Security
Police was the cause of his being incarcerated in Ciskei. His incarceration in Ciskei
was not only a direct consequence of his being handed over to the Ciskei Security
Police, but was also a reasonably foreseeable and in fact an intended consequence
thereof.
The Thandani approach also illustrates the complementary manner in

which one can use the tests when applying the flexible criterion.

According to the foreseeability approach, the question is whether the
defendant should reasonably have foreseen the consequences that
resulted from his or her conduct. If the answer is ‘yes’, liability results.
The test was first used in English Law when the Privy Council, in
Overseas Tankship (UK) Ltd v Morts Docks & Engineering Co Ltd (The
Wagon Mound No 1),21 rejected the Polemis test on the basis that the
direct consequences approach could be unduly harsh on the defendant
in that case. In the Wagon Mound case the plaintiffs claimed damages for
harm suffered as a result of a fire. Workmen, who were employees of the
defendant’s company, had negligently allowed furnace oil to spill into the
Sydney harbour. The oil spillage thickly coated the water and drifted
underneath the wharf. Some hot metal fell into the water and onto some
cotton waste in the water. This ignited the oil and started a fire that
damaged the wharf and some equipment. The harm was clearly a direct
consequence of the oil spillage, but the Privy Council held that liability
should arise only in respect of harm that was reasonably foreseeable.
Viscount Simonds remarked: 22
Enough has been said to show that the authority of Polemis has been severely
shaken though lip-service has from time to time been paid to it. In their Lordships’
opinion it should no longer be regarded as good law. It is not probable that many
cases will for that reason have a different result, though it is hoped that the law will
be thereby simplified, and that in some cases, at least, palpable injustice will be
avoided. For it does not seem consonant with current ideas of justice or morality
that for an act of negligence, however slight or venial, which results in some trivial
foreseeable damage the actor should be liable for all consequences however
unforeseeable and however grave, so long as they can be said to be ‘direct’. It is a
principle of civil liability, subject only to qualifications which have no present
relevance, that a man must be considered to be responsible for the probable
consequences of his act. To demand more of him is too harsh a rule, to demand less
is to ignore that civilised order requires the observance of a minimum standard of
behaviour.
The reasonable forseeability test does not require that one foresees all the
harm or its full extent, or that one sees the specific harm. What is
required by this test is that one foresees the general type of harm that
occurred.23 It is also not necessary to have foreseen the precise way in
which the harm occurred.24 These points are well illustrated by the facts
of Smit v Abrahams 25 and the discussion of the foreseeability test in the
decisions of both the Appellate Division 26 and the Court a quo.27 The
plaintiff’s vehicle had been damaged in a collision caused by the
defendant. The plaintiff claimed damages for the repair costs of the
vehicle and also for loss of profits (the vehicle had been used as a delivery
truck). The defendant accepted liability in respect of the first claim, but
contested the second. The plaintiff argued that he had tried to mitigate
his loss by renting a replacement vehicle from an acquaintance because
the car rental agencies were too expensive. This contract ended after
three months, and because the plaintiff could not afford to either buy or
rent another vehicle, he suffered a loss of profit. Both courts held that the
plaintiff’s financial problems were reasonably foreseeable and
accordingly, the losses that he had suffered by being unable to replace his
vehicle had to be compensated.28

The adequate causation test originated in The Netherlands and in
Germany.29 In this approach, a consequence is imputed to a defendant if
it is adequately connected to his or her conduct. Whether something is
adequately connected depends on whether, according to human
experience, that consequence would follow the conduct in the normal
course of events; in other words, whether that conduct would have the
tendency to bring about that consequence.
The adequate cause theory has not been used pertinently in the
South African law of delict, although Jansen JA referred to it in the
criminal case of S v Daniëls: 30
Without the connection between the perpetrator’s conduct and the alleged
consequence there can generally be no liability. On the other hand it is also clear
that a perpetrator cannot be held liable for all the consequences of which his
conduct is a sine qua non – his liability would then be too wide and thus exceed the
boundaries of reasonableness, equity and justice. Policy considerations require
that liability should somehow be limited.
In the present case the conduct of the first appellant was a causa sine qua non of the
death of the deceased; if the first appellant had not taken out the gun and shot the
deceased in the back so that he fell down, the second appellant would not have shot
him in the head as it happened in this case … . The fault requirement has been met
and apparently also that of unlawfulness. The shots fired by the first appellant were
deadly and would in any event have resulted in death. According to human
experience the shots fired by the first appellant would in the ordinary course of
events have resulted in death as a result of a gun shot. These shots could … be
regarded as adequate regarding the death … .
PAUSE FOR The adequate cause test

Jansen JA included reasonableness, equity and justice among the policy
REFLECTION
considerations to be considered when deciding whether, according to human
experience, a consequence is adequately connected to the conduct. Is the
flexible Mokgethi criterion that now prevails in our law not merely the adequate
cause test in another guise?
7.3.4 Intent
Boberg, in line with a commonly held belief, contends that ‘intended
consequences, however strangely they may come about, can never be too
remote.’ 31
While we can agree with this view in most instances, intention
cannot be the determining limiting factor in all cases where intended
consequences arise. The question in each case is still a normative one,
and one should ask whether the link between conduct and the intended
consequences is sufficiently strong for liability to arise. While one can
fairly say that intended consequences are not too remote in the sense
that they were indeed foreseeable, liability might be denied because of
other policy factors. The determining test is the Mokgethi test and
intention, as with foreseeability, is a relevant but secondary means of
reaching a conclusion. In some instances, it might be fair, reasonable and
just to impose liability, as was the case in Groenewald v Groenewald.32 In
this case the plaintiff’s husband had assaulted her and he repeatedly
threatened to kill her, holding a knife to her throat. He had also called
various people to tell them that he intended to kill her. When the
defendant was out of the room, which was on the third floor of a building,
the plaintiff tried to escape by climbing out of the window onto a ledge,
from where she fell to the ground and sustained serious injuries. The
defendant denied that he had caused the injuries, contending that the
plaintiff’s attempt to lower herself from the ledge, which resulted in her
falling, constituted a novus actus interveniens. The Court disagreed. It
held that there were no policy considerations that militated against
liability and that it was reasonable, fair and just to hold the defendant
liable for the injuries that the plaintiff had sustained. In other cases,
however, courts have denied liability because the intended result came
about coincidentally and in a materially different way from what the
defendant had contemplated.33
Also, it is clear that a person cannot be liable only for intended
consequences and not for unintended ones. For example, in cases of
assault, a person could cause more harm than had been intended, and it
would be unreasonable to hold the person responsible only for the
intended consequences. In Brown v Hoffman 34 the Court noted that in
cases of negligent conduct, people are held liable for unintended
consequences. So it would be untenable, in cases where some harm was
intended, not to hold a person liable because he or she had not intended
the exact consequences that occurred.
PAUSE FOR Legal causation and wrongfulness

Legal causation and wrongfulness both limit liability and are normative enquiries.
REFLECTION
Also, in both elements, courts have to resort to policy considerations and have to
base their conclusions on concepts such as fairness, reasonableness and justice.
Is there a need for both elements?
This is what the Supreme Court of Appeal said in Fourway Haulage SA (Pty) Ltd v
SA National Roads Agency Ltd:35
In the final analysis, the issue of remoteness is again determined by

considerations of policy. Broadly speaking, wrongfulness – in the
case of omissions and pure economic loss – on the one hand, and
remoteness on the other, perform the same function. They are both
measures of control. They both serve as a ‘longstop’ where most
right-minded people, including judges, will regard the imposition of
liability in a particular case as untenable, despite the presence of all
other elements of delictual liability.
Since wrongfulness – in the context of omissions and pure economic

loss – and remoteness are both determined by considerations of
policy, a certain degree of overlapping is inevitable. However,
wrongfulness and remoteness are not the same. They involve two
different enquiries in respect of two different elements of delict, each
with its own characteristics and content … . Even where negligent
conduct resulting in pure economic loss is for reasons of policy found
to be wrongful, the loss may therefore, for other reasons of policy, be
found to be too remote and therefore not recoverable. An example of
a case where this happened is to be found in a decision of this court
in International Shipping Co (Pty) Ltd v Bentley (supra).
Would you agree?

In some cases a victim may suffer more serious harm than a perpetrator
intended, because of some prior weakness of the victim, which the
perpetrator may not have known about. This weakness may be physical,
psychological or financial. In terms of the talem qualem rule (also known
as the ‘thin skull’ or ‘egg skull’ rule), persons take their victims as they
find them. So where a perpetrator foresees some harm, but causes more
harm to a victim than what would normally be expected, because of a
pre-existing condition, the perpetrator will be liable for the full extent of
the harm. In the English case, Smith v Leech Brain and Co Ltd,36 the
plaintiff’s deceased husband had been struck on the lip by a piece of
metal, causing a burn. Three years later the burn became cancerous and
as a result, the husband died. Medical evidence established that he had
suffered from a prior physical condition that made him susceptible to
cancer. The Court held that the ‘thin skull’ rule applied, and that the
deceased’s employer, who had failed to provide him with protective
clothing, was liable to his widow in damages. Smit v Abrahams,37
discussed previously, is another example of how one can apply this rule.
In this regard, Boberg remarks:38
The so-called ‘weak heart’ and ‘thin skull’ cases … are sometimes regarded as
inimical to the application of the foreseeability test to the consequences of conduct.
For the defendant is held liable for unforeseeable additional harm suffered by the
plaintiff as a result of a pre-existing physical condition that renders him more
vulnerable to injury … . It is submitted that the rule pertains to the extent of the
harm suffered by the plaintiff, which need not be foreseeable, and therefore
coexists peacefully with the foreseeability test.
The final result of this rule is that where one foresees the general nature
of the harm (for example, that a failure to provide protective clothing
could result in bodily injury to a worker), one would be liable for all the
harm within that general category of harm (bodily injuries). This is true
irrespective of any pre-existing condition that might result in harm that
one would not normally expect from such conduct.

A novus actus interveniens is:
an independent, unconnected and extraneous factor or event which is not
foreseeable and which actively contributes to the occurrence of harm after the
defendant’s original conduct has occurred.39
The presence of such an intervening cause breaks the causal link

between the perpetrator’s conduct and the ensuing harm. To determine
this, courts now apply the flexible test for legal causation. The intervening
event could be the conduct of the victim, the conduct of another person,
or it could be due to other factors. In Mafesa v Parity
Versekeringsmaatskappy Bpk (In Likwidasie) 40 the plaintiff was involved
in a motor vehicle accident and suffered a fractured leg. He underwent
surgery to insert a steel plate. When the bone had set sufficiently, the
plaintiff was discharged and given crutches to help him walk. His leg was
still in a cast and he was told not to put unnecessary weight on it. While
walking on a smooth floor, the plaintiff slipped and fell because the
crutches did not have rubber tips. The plaintiff fractured his leg again in
this accident, which required a second operation on his leg. When the
plaintiff sued the insurer of the motor vehicle, the Court found that the
second incident constituted a new intervening cause because it had not
been reasonably foreseeable that the plaintiff, who had been warned of
the dangers, would recklessly attempt to walk on a slippery floor. Liability
was accordingly limited to those consequences that arose prior to the
second incident and the insurer was not liable for expenses arising from
the second incident, such as the costs of the second operation.
Mafesa’s case also illustrates another point: whether something is
regarded as a novus actus depends on whether that event was reasonably
foreseeable. If an event is reasonably foreseeable, it cannot be seen as an
independent act. In RAF v Russell 41 the wife of a man involved in a motor
vehicle accident claimed loss of support on behalf of the children. The
man had committed suicide after suffering serious injuries. The
defendant claimed that the suicide was a novus actus interveniens.
However, the Court found that the depression that caused him to take his
own life was due to brain damage that he had suffered as a consequence
of the accident. The suicide was not unrelated to the accident, and
because the suicide was a direct consequence of the injury, it did not
constitute a novus actus interveniens.
In Premier of the Western Cape Province v Loots NO 42 a botched
sterilisation led to Mrs Loots falling pregnant. She was offered the
opportunity to abort the baby, but declined for religious reasons.
Subsequent complications in the pregnancy led to her losing the baby
and suffering personal irreversible brain damage which left her almost
blind, unable to walk and talk, and suffering from dementia. The Western
Cape Government argued that the harm suffered by Mrs Loots was too
remote for legal causation to be present, and that her decision not to
abort the baby functioned as a novus actus interveniens. The Court held
that, for the decision to function as a novus actus, it would have to be an
unreasonable one, and that reasonable conduct cannot absolve the
wrongdoer of liability. The Court concluded that Mrs Loots’ decision not
to abort the baby was not unreasonable: her pregnancy appeared to be
normal and healthy, and there had been no indication that continuing
with her pregnancy would endanger either herself or her child. As to the
foreseeability of the complication which led to the baby’s death and Mrs
Loots’ harm, the Court held that, while the specific consequence had not
been foreseeable, it was foreseeable that any pregnancy could deliver
complications; and therefore harm of a general kind had been reasonably
foreseeable. Accordingly, the Court concluded that legal causation was
present.
7.6 Conclusion
For liability to arise, there has to be a causal connection that is strong
enough to be classified as a causal connection in law. The test for legal
causation limits liability in that harm factually linked to the perpetrator’s
conduct might not be imputed to the perpetrator, because the factual link
is not considered strong enough in law. So, there could be circumstances
in which a court finds a person to have acted both wrongfully and
negligently, and that the conduct factually caused the harm, but where in
all fairness the connection between the conduct and the harm is too
tenuous for liability to arise. The causation element in delict, therefore,
not only links the plaintiff’s harm to the perpetrator’s conduct, but also
restricts the extent of any liability that might result.
Figure 7.1Legal causation
In essence:
• To hold a perpetrator delictually liable, one has to establish a causal
link between the wrongful, culpable conduct and the loss that the
victim suffered.
• The fact that the conduct was a sine qua non (a factual cause) of the
loss is not enough to satisfy the requirement of causation. The
plaintiff must also establish that there was legal causation; in other
words, that the loss must not be too remote.
• Courts use a flexible test for legal causation. This test is based on the
policy considerations of reasonableness, fairness and justice.
• When the flexible test was introduced, courts did not abolish the
various tests they had used in the past; instead, the flexible test
accommodates all these other tests.
1 1990 (1) SA 680 (A) at 700H–I.

2 2009 (2) SA 150 (SCA).
3 Para 32.
4 1990 (1) SA 680 (A).
5 1983 (3) SA 275 (A).
6 At 331C–D.
7 1990 (1) SA 32 (A).
8 S v Mokgethi (16/1989) [1989] ZASCA 105; [1990] 1 All SA 320 (A) (18 September 1989). At
40–41 (our translation).
9 1990 (1) SA 680 (A).
10 1961 SC 44 at 49.
11 2009 (2) SA 150 (SCA).
12 2009 (2) SA 150 (SCA).
13 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) paras
34–35.
14 Para 33.
15 Para 34.
16 [1921] 3 KB 560.
17 At 577.
18 (1915) 36 NPD 173.
19 1991 (1) SA 702 (E).
20 At 705E–F.
21 (1961) AC 388.
22 At 422–423.
23 Overseas Tankship (UK) Ltd v Morts Docks & Engineering Co Ltd (The Wagon Mound No 1)
[1961] AC 388; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A)
at 768; Smit v Abrahams 1992 (3) SA 158 (C) at 164.
24 Da Silva v Coutinho 1971 (3) SA 123 (A) at 148; Smit v Abrahams 1992 (3) SA 158 (C) at 164.
25 Smit v Abrahams 1992 (3) SA 158 (C) at 163–165.
26 Smit v Abrahams 1994 (4) SA 1 (A) at 17–19.
27 Smit v Abrahams 1992 (3) SA 158 (C) at 163–165.
28 However, the Appellate Division differed from the Court a quo on the role of the
foreseeability test:
In the judgment of the Court a quo, the question of reasonable foreseeability of the
harm … was regarded as the single determining criterion for determining liability.
In the light of the decisions in Mokgethi (supra) and International Shipping Co
(supra) that approach was not correct. Reasonable foreseeability may well be used
as a subsidiary test in the application of the flexible test, but it cannot supersede it.
(Smit v Abrahams 1994 (4) SA 1 (A) at 17, our translation.)
29 In the Netherlands, it was initially applied to limit damages, but the Dutch Supreme Court
eventually rejected it in favour of the so-called ‘toerekeningsleer’, which considers a
multiplicity of factors. The New Civil Code has also adopted the ‘toerekeningsleer’
(Boonekamp, Art 98, aant. 2.5. in Bloembergen (Ed) Schadevergoeding (1992)).
30 1983 (3) SA 275 (A) at 331–332 (our translation).
31 Boberg The Law of Delict, Vol 1: Aquilian Liability (1984) at 440. See Thandani v Minister of
Law and Order 1991 (1) SA 702 (E).
32 1998 (2) SA 1106 (SCA) at 1114.
33 Jowell v Bramwell-Jones 1998 (1) SA 836 (W) at 884. See also Neethling and Potgieter
Neethling-Potgieter-Visser Law of Delict 7 ed (2015) at 208–209 where they cite an example
of a young man who persuades his aunt to undertake a journey, expecting her to have an
accident, which in fact does occur as a result of bad weather. They contend that her death
would not be imputed to the nephew in such circumstances.
34 1977 (2) SA 556 (NC).
35 2009 (2) SA 150 (SCA) at 31 and 32.
36 (1962) 2 QB 405.
37 1994 (4) SA 1 (A).
38 Boberg (1984) at 278–279.
40 1968 (2) SA 603 (O).
41 2001 (2) SA 34 (SCA).
42 2011 JDR 0250 (SCA).
Chapter 8
Fault
8.1 Introduction
8.2 Accountability
8.2.1 Youth
8.2.3 Intoxication
8.2.4 Provocation
8.3 Intention
8.3.3 Dolus eventualis or intention by acceptance of foreseen result
8.3.5 Second component of intention: Consciousness of wrongfulness
8.3.6 Special cases: Intention comprising direction of will only

8.4.1 Mistake
8.4.2 Jest
8.4.3 Intoxication
8.4.4 Provocation
8.5 Negligence
8.5.4 Circumstances and factors that indicate the required standard of care
8.5.4.2 Legitimate assumption of reasonable conduct of others
8.5.4.5 Dealing with inherently dangerous things, persons or circumstances 8.5.4.6
Danger to children or people with disabilities or incapacities
8.5.5 Attributes of defendants that influence the standard of care required for reasonable
conduct
8.5.5.1 Beginners
8.5.5.2 Experts
8.5.5.3 Children
8.6 Conclusion
8.1 Introduction
To establish delictual liability, it is not enough to show that the harm was
caused wrongfully. One must also show that the defendant was at fault.
The fault element has two components: (a) the person must have been
accountable at the time of causing the harm (that is, the person must
have had the capacity to be at fault), and (b) the person must have been
culpable or blameworthy (that is, the person must have acted either
intentionally or negligently).1 So, in this chapter, we first consider the
issue of a person’s legal capacity to be at fault and we set out the
requirements for establishing a person’s accountability. Thereafter we
discuss the nature of intention and negligence and the requirements that
need to be met before a person can be said to be culpable.
Accountability focuses on a person’s ability and maturity; culpability
focuses on a person’s mindset or conduct. So, in a sense these concepts
have a subjective aspect to them. In the next sections, we describe how
accountability and intention are both entirely subjective, in that one
must investigate the ability and maturity (accountability) and/or the state
of mind (intention) of the particular individual in question, and how
negligence involves a more objective assessment, in that one measures
the individual’s conduct against the standard set by society. However,
negligence also has subjective elements, because one assesses the
situation by placing the reasonable person in the position of the
defendant and considering the specific circumstances at the time.
TERMINOLOGY Fault
Fault, as an element of delictual liability, requires that one must be able
to blame and hold a person responsible for the harm that was wrongfully
caused to another. One is thus concerned with the question of whether
or not a person is blameworthy. The Latin term for fault is culpa in the
wide sense. Therefore, a person’s blameworthiness is referred to as a
person’s culpability. Fault generally takes two forms: intention (dolus)
and negligence (culpa in the narrow sense).
Dolus
The Latin term for intention is dolus. Under the actio iniuriarum, intention
is referred to as animus iniuriandi (translated as ‘the will to injure’). The
term ‘intention’ is a technical legal expression that describes a
wrongdoer’s will to achieve a specific wrongful consequence and refers
to a person’s state of mind regarding wrongful conduct and its
consequences. In Minister of Justice v Hofmeyr 2 the Court defined
intention as ‘a reflection of the will’. In contrast to negligence, the test for
intention is entirely subjective, because it involves evaluating a
defendant’s mindset (or will) in relation to the particular consequences
and whether the defendant actually knew that causing such
consequences would be wrongful.
Culpa
In this chapter we use culpa in the context of its narrow application of
denoting negligence as a form of fault. Culpa, or negligence, refers to a
situation where a person has not met the standard of conduct that
society deems appropriate in the circumstances. This means that one
evaluates a person’s conduct according to a general standard of care as
required by law. The standard is expressed with reference to a
‘reasonable person’. Therefore, negligence involves an objective
evaluation of a person’s conduct, because one measures the conduct
against a standard outside the particular person’s mindset.
Accountability
Accountability in the law of delict means the capacity to be blamed, or
the capacity to be at fault. Our law will not hold accountable someone
who does not have the ability, or sufficient maturity, to know the
difference between right and wrong and to act in accordance with such
knowledge. So, before one can enquire into whether a person is at fault,
either in the form of intention or negligence, one must establish whether
that person is capable of being blamed.
8.2 Accountability
Accountability is a prerequisite for finding a person blameworthy, or at
fault. The concept refers to a person’s capacity to distinguish between
right and wrong, and then to act in accordance with that distinction. If a
person is not legally accountable, one cannot impute blame, and the
element of fault is not satisfied. Culpability refers to the law’s judgement
of an accountable person’s state of mind (intention), or of the inadequate
quality of a person’s conduct as measured against society’s standards
(negligence). Therefore, to establish fault, the first step is to enquire into
the defendant’s accountability. Then, only when one has established
accountability, does one move on to the second step and evaluate the
defendant’s culpability. Accountability is, therefore, the basis for
blameworthiness to the extent that if a person lacks accountability, at the
time the delict was committed, there can be no fault on that person’s
part.
To assess whether a defendant is accountable, one must have an
affirmative answer to two questions.3 Did the defendant, at the time the
delict was committed:
1. Have the mental capacity to distinguish between right and wrong,
and appreciate the difference?
2. Have sufficient maturity to act in accordance with the appreciation
of a distinction between right and wrong?
When answering these two questions, it is important to keep in mind the

entirely subjective nature of the concept of accountability: one is
concerned with the defendant’s ability, at the time of the delict, to
distinguish between right and wrong, and to act accordingly.
PAUSE FOR Assessing accountability
When answering these two questions, there are four important aspects:
REFLECTION
1. Both questions must be answered in the affirmative to establish that a
defendant is accountable. So, if the first question is answered in the
negative, there is no need to proceed to the second question. If the first
question is answered affirmatively and the second question is answered
in the negative, there is still no accountability, and no blame can be
imputed.
2. Accountability is an entirely subjective concept where one assesses the
defendant’s ability to distinguish between right and wrong, and to act
accordingly. One does not assess the category of persons into which the
defendant might fall.
3. The ability to distinguish between right and wrong is based on both
knowledge and an appreciation of what is right and wrong.
4. The relevant moment for assessing accountability is the time when the
delict was committed.
There is a general presumption that persons (natural and juristic) are

accountable, or culpae capax, for harm that they have wrongfully caused.
However, the law recognises that certain personal attributes or
circumstances will either exclude accountability, or negate the
presumption of accountability. There is no closed list, but the following
are recognised categories where persons could be found to lack
accountability, or the capacity to be at fault:
• Youth
• Mental illness
• Intoxication or a similar condition induced by a drug
• Anger due to provocation.
The existence of these attributes or circumstances forms the grounds

upon which a defendant can show the absence of accountability. In other
words, these attributes can be used as defences to exclude accountability.
8.2.1 Youth
There are three categories where youth may exclude accountability:
1. Children who are younger than seven years (infantes): Children in
this category are irrebuttably presumed to be culpae incapax or
‘without legal capacity’. Therefore, irrespective of the child’s actual
mental capacity, children under seven years of age always lack legal
accountability.
2. Children between the ages of seven and fourteen: In these instances,
there is a rebuttable presumption that a child over the age of seven,
but under the age of fourteen is culpae incapax. Therefore, unless
proven otherwise in any particular case, children in this category are
regarded as legally incapable of being blamed.
3. Children between fourteen and eighteen years of age: Children in
this category are presumed to be culpae capax. Unless proven
otherwise, children in this category are legally accountable and liable
for their wrongful conduct.
Weber v Santam Versekeringsmaatskappy Bpk4
While playing in the sand in front of a block of flats, Marius Weber (seven years and two months old) was
run over by a motorist who was reversing from a parked position. The issue was whether Marius had been
contributorily negligent. For such a finding, the Court had to determine Marius’ capacity to be at fault.
Evidence indicated that Marius’ mother had on previous occasions told him to keep a lookout for cars,
and also that Marius had enough time to assess the situation and ensure he was playing out of harm’s
way.
The Appellate Division confirmed that the test for accountability is a subjective one where the focus
should be on Marius’ mental capacity at the time of the accident, with due regard to the child’s abilities
in the particular situation. It reiterated the cautionary rule in respect of children aged just over seven, as
well as the importance of presuming that children between seven and fourteen are culpae incapax.5 The
Court also warned against ‘placing an old head on young shoulders’,6 and so, in assessing Marius’
capacity it took into account the fact that he had only just turned seven, as well as his intellectual
development, maturity and impulsiveness. The Court found that, although Marius was aware of the
danger of cars, the ‘inherent weakness associated with tender age and the propensity of children’7
caused him to have a child-like preoccupation with making roads in the sand, which in turn deprived
him of a consciousness of the surrounding activities and his mother’s previous warnings. The Court
accordingly held that Marius was culpae incapax, not contributory negligent, and that he was entitled to
the full amount of his damages. In essence, therefore, while Marius might have understood the
difference between right and wrong, he lacked the maturity to act in accordance with such
understanding.
Eskom Holdings Ltd v Hendricks8

Hendricks’ son, Jacques (who was eleven years and eight months old), sustained serious injuries when
he went too close to a high-voltage power line that was suspended from one of Eskom’s pylons. To reach
the point where the accident occurred, Jacques had to climb to a height of 14 m above the ground after
first going through an anti-climbing device. Apparently Jacques, his younger brother, and a younger friend
were taking their dog for a walk when they challenged each other to see who could climb the highest. As
Jacques was climbing, he stopped to take a rest and the glass insulators, which he described as greenish
glass saucers, caught his eye. Out of curiosity, he climbed further out onto the cross-arm of the pylon to
feel their texture. According to an expert’s evidence, Jacques’ head came too close to the power line that
was suspended from the cross-arm immediately above him. The strong voltage caused the current to
jump across the space between the power line and Jacques’ head. The shock, from 66 000 V, flung the
boy from his perch. When Hendricks claimed damages, Eskom denied liability and also claimed
contributory negligence on Jacques’ part.
In assessing whether Jacques was indeed culpae capax at the time of the incident, the Court referred
to Weber v Santam Versekeringsmaatskappy Bpk 9 and reiterated that it needed to recognise the
inherent weakness in children to act irrationally and impulsively due to their tender age. Therefore,
although children can distinguish between right and wrong, they will often not be able to act in
accordance with that appreciation, because they can become so engrossed in their play that they
become oblivious of other considerations. The Supreme Court of Appeal had no doubt that Jacques had
appreciated that if he climbed past the anti-climbing device he ran the risk of falling and hurting himself.
However, while he was climbing, the glass insulators, which had nothing to do with why Jacques climbed
up the pylon, attracted his attention. His fascination by these glass saucers prompted him to climb
towards them so that he could touch them. The Court said that Jacques’ emotional and intellectual
maturity had to be assessed according to this particular conduct. On the evidence, the Court concluded
that Jacques’ conduct was typical of the impulsive behaviour in which children sometimes engage, and
that this was an instance where the warning against ‘placing an old head on young shoulders’ should be
heeded. The Court held that the conduct in question (that is, touching the insulators out of curiosity) was
indicative of Jacques’ inability to act in accordance with any appreciation he may have had of the
danger involved. Accordingly, the Court held that Eskom had failed to rebut the presumption that
Jacques was culpae incapax at the time of the accident, and so he had not been contributory negligent.

A wrongdoer is culpae incapax if, at the time of the alleged delict, he or
she suffers from any mental illness or disease, or emotional distress that
renders him or her incapable of distinguishing between right and wrong,
or of acting in accordance with an understanding of the distinction
between right and wrong. In S v Campher 10 the Appellate Division
confirmed that not only must a person have failed to control the impulse
to commit the act in issue, but the lack of control must have arisen from
an ‘infirmity of will for which he was not answerable’.
S v Campher11
The accused was charged with murdering her husband. Their marriage had been unhappy and the
deceased had been emotionally and physically abusive towards the accused and their children.
According to the evidence, the constant physical and emotional abuse that the accused suffered,
together with the fact that their children were also emotionally abused, had driven the accused to
breaking point. On the morning the accused shot and killed her husband, there had been yet another
occasion of abuse, and she grabbed a revolver to defend herself against the deceased who was
threatening her with a screwdriver. She did not shoot the deceased then, as he had grabbed her and
dragged her outside where he submitted her to further emotional abuse. The Court accepted the
accused’s testimony that she had felt as if she had descended into an emotional dark pit and all she
could think of was to get out of the situation in which she had found herself. The accused explained that
she had realised only after it had happened that she had shot the deceased. The Court accordingly found
that, at the critical moment, the accused had suffered from a severe, yet temporary, mental disturbance.
Even though the accused did not suffer from any mental disease, she was found not guilty.
8.2.3 Intoxication
Intoxication, whether while under the influence of alcohol or drugs, may
render a person culpae incapax. However, this is not true in all cases. For
example, if a person takes an intoxicating substance before committing
the delict, when still accountable, he or she may be liable for the prior
act. The basis for liability here is similar to the situation where an
epileptic person, who knows that fits can suddenly occur, still drives a
vehicle and causes an accident while having a fit. Even though at the
moment of the accident the person is not accountable for the harmful
result, liability still arises. Therefore, although a defendant may not have
been able to appreciate the harmful nature of the conduct at the time the
harm was inflicted, a court might still hold the defendant liable.12
S v Chretien13
After a party, and while under the influence of alcohol, Chretien drove a Volkswagen minibus into a crowd
of people standing on a pavement. One person died and five were injured. The Court could not find
beyond reasonable doubt that Chretien had deliberately driven into the crowd. He claimed that he had
thought that the people would disperse when they saw the minibus approaching. The Court a quo found
Chretien not guilty of attempted murder and of common assault, since he lacked the necessary intention,
and therefore the required elements of the crimes were not satisfied. The State appealed against the
finding and submitted that Chretien should at least be found guilty of common assault.
The Appellate Division identified two opposite ‘poles’ for describing degrees of intoxication. One
extreme is when a person is slightly intoxicated and there is some altered behaviour. In this case, the
intoxication would not be such that the person could not control himself or herself, and so would still be
accountable. The other extreme is when a person is so intoxicated that he or she passes out and the
only movements made are due to involuntary muscle spasms, in which event such involuntary
movements are not even categorised as conduct. Such a person is also culpae incapax. Between these
two poles, there are various degrees of intoxication. Some people can be intoxicated to such an extent
that others might describe them as ‘very drunk’, and yet they seem to conduct themselves in a
seemingly rational manner. In such an instance, the intoxicated person would be regarded as
accountable. Others might be ‘dead drunk’, and unable to know what they are doing. In such instances,
there is no intention and the question of accountability depends upon the evidence and the
circumstances of the case. The Court found that the Court a quo was correct in finding that intention was
lacking and accordingly dismissed the appeal.
Parliament subsequently enacted legislation that provides for a statutory crime where persons commit
a crime while in an intoxicated state. However, this legislation does not affect the law of delict, and
common-law principles enunciated in the Chretien judgment are, therefore, still applicable in this area of
law.
8.2.4 Provocation
Provocation may, in some instances, exclude the element of
wrongfulness.14 However, in circumstances where it does not do so, it
may, depending upon its effect on the defendant’s behaviour, exclude
either accountability or fault in the form of intention.15 A person can be
provoked to such an extent that the person loses control of his or her
ability to act responsibly or, if the provocation is not that extreme, to the
extent that a person lacks consciousness of the wrongfulness of his or her
actions. In effect, the rage reaction creates a moment of temporary
insanity not unlike that which occurred in S v Campher,16 noted
previously. The basis for this defence is that loss of temper due to
provocation may render the provoked person culpae incapax at the time
of inflicting harm.
PAUSE FOR The nature of the provoking conduct

REFLECTION In Bennet v Minister of Police17 the Court held that verbal prvocation cannot
justify a physicl assault in ‘retaliation’, and so does not exclude wrongfulness. For
the purposes of excluding accountability or intention, would the nature of the
provoking conduct similarly be relevant? What considerations might point
towards not recognising provocation as a reason for excluding accountability?
Figure 8.1Intention
8.3 Intention
A person will be at fault when he or she intends to cause another person
harm, knowing that it is wrong to do so. So, when a court concludes that a
defendant had intention, it demonstrates the law’s disapproval of a
defendant’s reprehensible state of mind. The enquiry into intention is
subjective, in that courts have to determine what the defendant actually
had in mind at the time of committing the delict.
There are principally three forms of intention:
• Dolus directus
• Dolus indirectus
• Dolus eventualis.
Irrespective of which form of intention is present, the concept has two

aspects: direction of will, and consciousness of wrongfulness.18 So, in law
a person acts intentionally only when that person’s will is directed at a
specific outcome, knowing that what he or she is doing is wrongful. If
either one of the two components is absent, or cannot be proved, there is
no intention.
Figure 8.2Intention

Direct intention exists where the wrongdoer’s primary aim is to achieve a
particular consequence, for example, if one person deliberately says
something in order to hurt another person’s feelings. It is irrelevant
whether the wrongdoer simply foresaw the desired outcome as a
possibility or as a certainty. The fact that the wrongdoer desired a certain
consequence and acted in a way to realise that consequence is enough to
establish direct intention. It also does not matter whether the result is
achieved in the exact manner foreseen or contemplated by the
wrongdoer.

Indirect intention exists where a person has direct intention in terms of a
certain consequence (consequence A). However, in effecting
consequence A, the person foresees that another harmful consequence
(consequence B) will inevitably also take place if consequence A is to be
realised. For example, Sam wishes to steal a car radio from a locked car,
and he realises and accepts that he will also have to break a window or
damage the car in some other way to get to the radio. The damage to the
car is not his main objective, but it is an inevitable consequence if he
wants to execute his main objective, that is, to steal the car radio. The
owner of the car will thus be able to sue Sam for damage to the car by
relying on dolus indirectus as form of fault.
8.3.3 Dolus eventualis or intention by acceptance of

foreseen result
Dolus eventualis exists where, in executing a plan to cause harm, a
person foresees a wrongful consequence that is not desired, but
nevertheless reconciles himself or herself with the possibility that it might
arise and continues to execute the plan to cause harm. For example, Sam
aims a large stone at Bheki, who is standing with two friends. Sam
foresees that he might hit one of the friends instead, but he nevertheless
proceeds to throw the stone at Bheki. He misses, and the stone hits and
injures one of the friends. Dolus eventualis is present, since Sam
subjectively foresaw that he might injure someone else and reconciled
himself with the fact that one of Bheki’s friends might get hurt. Dolus
eventualis entails a two-part enquiry:
1. Did the wrongdoer (Sam) subjectively foresee or realise that the
harmful consequence might ensue?
2. Did Sam reconcile himself with that realisation by nevertheless
continuing with his actions?
If Sam thought that he might hit one of the friends, but somehow
genuinely believed that it would not happen, he would not have acted
with dolus eventualis because, subjectively, he had not reconciled
himself with that consequence. The form of fault that is present in this
latter instance is luxuria or conscious negligence.19 Also, if Sam did not at
all foresee that he might hit someone else, there can be no intention, and
negligence would be the appropriate form of fault.
S v Humphreys20
Humphreys had been convicted in the High Court on ten counts of murder and four counts of attempted
murder, resulting from a collision caused when the minibus he was driving collided with a train. He had
entered a level crossing while the boom controls were down and the warning signals flashing. The
Supreme Court of Appeal agreed with the High Court that Humphreys had subjectively foreseen the
possibility of fatal injuries occurring as a result of his reckless actions. However, the Court disagreed in
respect of the second part of the enquiry, finding that Humphreys had not reconciled himself to the
possibility that his reckless actions could lead to the death of his passengers. If Humphreys had
reconciled himself to the possibility of the death of his passengers, this would have meant he had
reconciled himself to his own possible death. The evidence did not support this inference, as there was
no evidence he did not value his own life. Instead, the evidence showed that Humphreys had cleared the
level crossing in similar situations in the past and had thought he would be able to do the same on this
occasion, and that the foreseen risk would not materialise. Accordingly, since Humphreys had not
reconciled himself to the possibility of death or fatal injury, dolus eventualis was not established.
Director of Public Prosecutions, Gauteng v Pistorius21

Pistorius had shot and killed his girlfriend Reeva through a toilet cubicle door when he allegedly mistook
her for a thief. The Court a quo found Pistorius guilty of culpable homicide and held that he could not be
convicted of murder, as dolus had not been proved. On appeal, the Supreme Court of Appeal considered
especially whether dolus in the form of dolus eventualis had been present, for if it had been, Pistorius
should have been found guilty of murder instead of culpable homicide. It noted:22
In contrast to dolus directus, in a case of murder where the object and purpose of the
perpetrator is specifically to cause death, a person’s intention in the form of dolus eventualis
arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act
appreciating that death might well occur, therefore ‘gambling’ as it were with the life of the
person against whom the act is directed. It therefore consists of two parts: (1) foresight of the
possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second
element has been expressed in various ways. For example, it has been said that the person
must act ‘reckless as to the consequences’ (a phrase that has caused some confusion as some
have interpreted it to mean with gross negligence) or must have been ‘reconciled’ with the
foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not
have to foresee death as a probable consequence of his or her actions. It is sufficient that the
possibility of death is foreseen which, coupled with a disregard of that consequence, is
sufficient to constitute the necessary criminal intent.
Pistorius sought to deny the presence of dolus eventualis by insisting he did not have the necessary
intention to kill Reeva, as he had believed a thief, not Reeva, had been concealed in the toilet. In this
regard the Court said:23
… although a perpetrator’s intention to kill must relate to the person killed, this does not mean
that a perpetrator must know or appreciate the identity of the victim. A person who causes a
bomb to explode in a crowded place will probably be ignorant of the identity of his or her
victims, but will nevertheless have the intention to kill those who might die in the resultant
explosion.
The Court went on to say: 24
What was in issue, therefore, was not whether the accused had foreseen that Reeva might be in
the cubicle when he fired the fatal shots at the toilet door but whether there was a person
behind the door who might possibly be killed by his actions.
PAUSE FOR Summary of intention

REFLECTION • With direct intention, the wrongdoer desires a certain wrongful
consequence
• With indirect intention, the wrongful consequence is an inevitable wrongful
consequence while attempting to realise a desired consequence
• With dolus eventualis, the wrongful consequence is brought about by
reckless disregard for the possibility of that consequence ensuing.

Direction of will, the first component of intention, requires that a person
must have aimed to achieve a certain result, or at least must have been
willing to produce or accept the consequences that might result. This
involves determining the mental predisposition of the person obtaining a
specific result.25 There are three ways in which a person can direct his or
her will:
• Directly (resulting in dolus directus)

• Indirectly (resulting in dolus indirectus)
• By accepting the possibility of other harmful consequences ensuing
(resulting in dolus eventualis).
8.3.5 Second component of intention: Consciousness of

wrongfulness
Consciousness of wrongfulness was first recognised in defamation cases,
but courts now accept it generally as a component of intention.26 The
second component requires that when a person directs his or her will
towards achieving a desired consequence, that person must know that
the conduct and the ensuing consequences are contrary to law and the
legal convictions of society. Therefore, if someone genuinely believes that
he or she is acting in accordance with the law, he or she has not acted
intentionally for purposes of the law.27 For example, where a person
believes that his or her conduct is justified, even if it is not, that person
has not acted intentionally because he or she intended to behave
lawfully, and not wrongfully. This example also illustrates how the
subjective nature of intention comes to the fore when we assess the
knowledge of the wrongdoer.
Maisel v Van Naeren28
Maisel had fallen into arrears with his rent and he was also allegedly a nuisance to his fellow tenants.
The owner of the block of flats (Van Naeren) wrote to him on these issues and sent a copy of the letter to
the chairperson of the Rent Board in the bona fide, but mistaken, belief that the block of flats and the
issue at hand fell within the ambit of the Rental Housing Act 50 of 1999, which required that he send
such copy to the chairperson.
Because he sent the defamatory letter to the chairperson of the Rent Board, it amounted to
publication of defamatory information. Maisel claimed damages under the actio iniuriarum for
defamation, but the Court held Van Naeren not liable for lack of intention, because he was unaware that
his conduct was wrongful. Van Naeren had genuinely believed that sending the letter to the chairperson
of the Rent Board was the lawful thing to do. Therefore, although he had directed his will, in that he had
desired to send the letter to the chairperson of the Rent Board and had done so, he had been unaware
he was acting wrongfully. There was accordingly no animus iniuriandi on Van Naeren’s part.
In Le Roux v Dey 29 Harms DP analysed the background and implications

of the requirement of consciousness of wrongfulness (‘coloured intent’),
and decided that intention for the purposes of the actio iniuriarum does
not require consciousness of wrongfulness. However, on appeal the
Constitutional Court decided that, since it had been unnecessary for the
Supreme Court of Appeal to decide this issue, it was also unnecessary for
the Constitutional Court to do so.30
8.3.6 Special cases: Intention comprising direction of will

only
Under the actio iniuriarum there are specific forms of iniuria – wrongful
deprivation of liberty, wrongful attachment of goods, and possibly
seduction – where policy dictates that the usual rules for establishing
intention should be modified, and that intention should comprise one
aspect only: the direction of will. A plaintiff may, therefore, establish
intention even though the defendant had no knowledge of the
wrongfulness of his or her actions. So, in these cases it is not full animus
iniuriandi that is required, but an attenuated version. The resultant effect
is that a defendant is unable to exclude fault by pleading a defence aimed
at negating consciousness of wrongfulness, such as mistake. For
example, police officers who incorrectly believe that valid warrants of
arrest exist and then unlawfully arrest persons will be found to have
intended to effect the arrests, even though, subjectively, they had thought
that they were acting lawfully.31 Similarly, courts say a man’s ignorance of
a girl’s virginity will not suffice as a defence to exclude intention in
seduction cases.32
Minister of Justice v Hofmeyr33
Hofmeyr claimed damages under actio iniuriarum for unlawful detention. He had been kept in solitary
confinement during his imprisonment of five months, except for two brief periods of about eight days
each. The Minister relied on statutory justification as defence. The Prison Emergency Regulations
provided that detainees could be ‘segregated’ from other detainees when the head of the prison deemed
it ‘practicable’. However, the head of the prison had misunderstood the nature of the discretion conferred
on him, particularly in terms of the meaning of ‘segregation’ in the context of the regulations.
In deciding whether the defence of statutory justification could succeed, the Court held that the head
of the prison had erroneously believed the segregation provided for in the regulations had a punitive
purpose. There had been no basis for this belief, since the regulation had been enacted primarily in the
interests of the detainees themselves. Therefore, the detention had been wrongful.
It was nonetheless argued that there had been no animus iniuriandi, since consciousness of
wrongfulness had been absent. The Court acknowledged that consciousness of wrongfulness had been
absent, but noted that there are certain instances, particularly those that involve wrongful deprivation of
liberty, where consciousness of wrongfulness is not required. Although not based on Roman and Roman-
Dutch principles, legal policy required that these instances be recognised according to what is sensible
and just.
It is clear that without dolus the action for an iniuria would lie neither in Roman law nor in
Roman-Dutch law. … It is equally clear, however, that in a limited class of iniuriae the current of
precedent has in modern times flowed strongly in a different direction. In this limited class of
delicts dolus remains an ingredient of the cause of action, but in a somewhat attenuated form,
in the sense that it is no longer necessary for the plaintiff to establish consciousness [of
wrongfulness] on the part of the wrongdoer of the wrongful character of his act. Included in this
limited class are cases involving false imprisonment and the wrongful attachment of goods.34
Direction of will alone, without consciousness of wrongfulness, was therefore sufficient indication of
intention and the Minister of Justice was accordingly held vicariously liable for the improper and unlawful
manner in which Hofmeyr was treated while detained.
It is uncertain whether the attenuated form of intention also applies to

the Aquilian action,35 but the Appellate Division has left open the
possibility of this doctrinal modification, should policy considerations
require that a limited form of intention be recognised in a particular
instance.36

The term ‘intention’ is a technical, legal expression that describes a
person’s reprehensible state of mind. ‘Motive’, on the other hand, is the
reason that triggered the formation of intention, or the ‘actuating impulse
preceding intention’. 37 Motive represents the mental aspect that leads to
the formation of intention, which is why courts often use it to prove
intention. For example, Thandi, who has substantial gambling debts,
stands to inherit a great deal of money from her uncle. She decides to kill
her uncle so that she can pay off the debts with her inheritance. Thandi’s
motive, or reason for committing the crime, is to acquire the inheritance
to pay off her debts, while her intention is to kill her uncle.
Motive may also indicate whether consciousness of wrongfulness is
present, in that a good motive may sometimes indicate a lack of
consciousness of wrongfulness, while a malicious motive might indicate
the intention to do harm. However, a good motive will not save a person
who knows that what he or she is doing is wrongful. For example, a
doctor who was treating his dying father decided to relieve his father’s
pain and suffering by giving him a lethal injection. The doctor knew that
the deliberate hastening of death was wrongful and so, even though he
had a good motive, he still had the intention to commit murder.38

The plaintiff bears the onus of proving the defendant’s intention.39 It is
obviously unlikely that anyone other than the defendant would actually
know what the defendant subjectively thought at the time of the incident.
So, courts often draw the conclusion by means of inferential reasoning –
by looking at the nature of the alleged delict and all the surrounding
circumstances of the case, and concluding that, based on the facts, the
only reasonable conclusion that can be reached is that the defendant
must have had a reprehensible state of mind. A general rule when
drawing inferences is that a person intends all the necessary
consequences of his or her conduct.
Under the actio iniuriarum, for example, in defamation cases, the
plaintiff is assisted by a rebuttable presumption of animus iniuriandi.
This usually means that, once the plaintiff has shown that a personality
right has been infringed, a court can assume that intention is present,
unless the defendant can show otherwise. So, the onus of proof shifts to
the defendant, who must then provide sufficient evidence to rebut the
presumption.
PAUSE FOR Inference
An inference is not a presumption. An inference is a final conclusion drawn from
REFLECTION
the facts. A presumption is a device that allows courts to draw a preliminary
conclusion, and which then shifts the onus of proof from one party to another.
So, the notion that a person intends all the necessary consequences of his or her
conduct is not a presumption, but a general expression of the process according
to which the inference of intention is drawn.
However, the law treats different iniuriae differently regarding the

presumption of intention. For example, when plaintiffs prove
infringement of their reputation or fama, two rebuttable presumptions
arise: that both wrongfulness and intention are presumed.40 However,
with other iniuriae, only a rebuttable presumption of intention arises
when plaintiffs prove infringement of their personality aspects.41
PAUSE FOR Should all iniuriaebe treated the same?

REFLECTION Van der Walt and Midgley42 argue that courts should reconcile the different
approaches and treat all iniuriae similarly when it comes to the presumptions of
wrongfulness and intention. In all instances, plaintiffs should prove, on a balance
of probabilities, that their personality interests have been infringed. Once they
have proved this, two rebuttable presumptions, of wrongfulness and intention,
should arise, which the defendants would have to rebut. The reason the authors
give is that the different ways of handling iniuriae could create problems when
claims are made in the alternative, or where more than one personality aspect
has been infringed simultaneously (for example, infringement of both dignitas
and fama). Why would there be problems in these instances?

Once a plaintiff has proved intention, the defendant (who a court has
found to be accountable) can raise various defences to escape liability.
Defences that exclude intention can be aimed at any one or both of the
elements for intention. In other words, the defences can be used to:
• Indicate that the defendant did not direct his or her will towards
effecting the harm-causing event
• Indicate that the defendant did not know that his or her conduct was
wrongful
• Indicate that the defendant neither directed his or her will towards
effecting the harm-causing event nor knew that the conduct was
wrongful.
8.4.1 Mistake
Intention involves subjectively evaluating the defendant’s state of mind
when the delict was committed. Therefore, a bona fide mistake regarding
any aspect of the case, including the lawfulness of a person’s actions, will
exclude intention.43 The defence of mistake often turns on the absence of
the second element of intention, the consciousness of wrongfulness.
However, mistake may also negate the direction of a person’s will – for
example, accidentally pressing a button that sends a defamatory email
message. In principle, it does not matter whether the mistake is one of
fact or one of law, or whether it is reasonable or unreasonable. The
subjective nature of the test for intention simply requires that in the mind
of the wrongdoer there was genuine belief that the conduct at issue was
indeed lawful. However, when media defendants are sued for defamation
or infringements of privacy, only reasonable mistakes can rebut the
presumption of intention.44
Maisel v Van Naeren45
Van Naeren sent a copy of a letter to the chairperson of the Rent Board in the bona fide, but mistaken,
belief that the Rental Housing Act was applicable. Although he had directed his will in sending the letter,
he lacked consciousness of the wrongfulness of his conduct, in that he had genuinely believed sending
the letter to the chairperson of the Rent Board was the lawful thing to do. There was accordingly no
animus iniuriandi.
8.4.2 Jest
The basis of jest as a defence is usually that the defendant’s will was not
directed at achieving the particular consequence that ensued, but it may
also exclude consciousness of wrongfulness. However, the defendant
must be able to show that the conduct was bona fide and genuinely
meant as a joke.
Masch v Leask46
Leask, an auctioneer, told participants in an auction that he would be holding other sales, the details of
which appeared in yellow flyers he had distributed among them. Another auctioneer, Masch, who was
standing in the crowd, shouted to Leask that he was lying and that the yellow flyers did not mean
anything. Leask sued Masch for defamation, in that Masch had publicly made Leask out to be a liar and
an untrustworthy person. Masch raised the defence of jest, claiming that he had simply been joking.
The Court found that Masch had not proven that he had acted in jest, or that the bystanders had
perceived his words as a joke. On the authority of this case, the defence of jest can only succeed if the
words spoken were genuinely meant as a joke and if others also understood them to be a joke.
How compatible is the requirement that others must have understood the comment to be a joke with
the subjective nature of intention? Does this introduce an objective aspect, similar to that which is now
required when a media defendant makes a mistake?
8.4.3 Intoxication
In exceptional instances, people may be so intoxicated that they cannot
develop an intention. Intoxication is generally used as a ground to
exclude accountability. However, a person can also use it to exclude
either one of the two elements of intention in cases where a court finds a
defendant accountable. In Chretien’s case47 the Court found that when
persons are so drunk that they cannot properly direct their will, or they
do not realise that their conduct is wrongful, there is no intention on their
part. Of course, it would still be possible to find that they have acted
negligently and base liability on negligence as a form of fault.
PAUSE FOR Should voluntary intoxication be a defence?

Could one argue that there are policy considerations that would cause the
REFLECTION
intoxication defence to fail when people voluntarily create the state of
intoxication? What would these policy considerations be?
8.4.4 Provocation
A person can raise provocation as a defence to exclude intention.
Although a provoked person may still have directed his or her will to
injure the person doing the provoking, courts can exclude intention
where the provoked person did not realise that his or her conduct was
wrongful.

In certain instances, people can suffer from such severe emotional
distress that they cannot develop an intention. While a person can
generally use emotional distress as a ground to exclude accountability, a
person can also use it to exclude either one of the two elements of
intention in cases where a court finds a defendant accountable.
PAUSE FOR Excluding accountability and intention

Emotional distress, provocation and intoxication are defences that can exclude
REFLECTION
both accountability and intention. How are the requirements for each defence
applied differently to exclude accountability on one hand and intention on the
other?
Provocation can be used as a defence to exclude wrongfulness, but the
requirements of such a defence are different. What are these differences?
8.5 Negligence
Unlike intention as a form of fault, negligence is not concerned with the
law’s disapproval of a defendant’s state of mind. With negligence, liability
is based on the law’s disapproval of a defendant’s conduct. The following
sections discuss the concept of negligence, the test for negligence and the
various circumstances and attributes that play a role in establishing the
standard of care that the law expects of persons.

An enquiry into negligence involves evaluating a defendant’s conduct
according to a standard that is acceptable to society. This standard is
expressed with reference to a fictitious ‘reasonable person’ that
represents society’s expectations of adequate and reasonable conduct. It
represents an objective standard that all legal subjects must adhere to by
paying sufficient attention to ensure that their conduct is in line with the
standard of care that society expects. The test for negligence differs from
the test for wrongfulness, in that the reasonable person is placed in the
position of the defendant. Therefore, we do not evaluate all the
circumstances (both known and unknown to the defendant) of the harm-
causing conduct, as is done in the wrongfulness enquiry. To determine
whether a defendant was negligent, we simply ask what the reasonable
person, put in the same position as the defendant, would have done.
If a defendant’s conduct does not conform to the standard of a
reasonable person, the conduct is blameworthy in law and the defendant
will be considered to be at fault.

The reasonable person is a fictitious or abstract concept that expresses
the standard according to which one measures the reasonableness of a
defendant’s conduct.48 Therefore, the reasonable-person standard
requires an adequate and consistent level of care on the part of all legal
subjects, and it must also be sensitive to a society where people have
various skills and levels of intellect, and are of different ages. A
reasonable person, therefore, does not represent a standard of
exceptional skill, giftedness or care, but it also does not represent a
standard of underdeveloped skills, recklessness or thoughtlessness. It is a
standard of the ordinary individual who takes reasonable chances and
reasonable precautions to protect interests, while expecting the same
conduct from others.49
The reasonable-person criterion is an expression of what society
expects of its members in their everyday life. The criterion, and the
behaviour expected from a reasonable person, will change according to
the changes in society’s expectations. For example, where crime and
threats to personal safety are more prominent, a reasonable person
might act with more nervousness and fright than a reasonable person
would where such threats are not prominent. Leaving a security gate
unlocked would probably be regarded as highly negligent in a society
with high crime levels, but as reasonable conduct in a society in which
housebreaking was a very rare occurrence.
A point to remember is that the standard is not that the harm must
have been avoided at all costs and that no harm must have ensued.
Rather, reasonable conduct means that a person must have acted
appropriately in the circumstances, and behaved in the same way that a
reasonable person would have behaved in the same circumstances.
Should harm arise despite a person’s reasonable behaviour, that fact
does not affect the standard. The behaviour remains reasonable and that
person would not be at fault.

In Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty)
Ltd 50 the Supreme Court of Appeal reiterated that the benchmark for
negligence is what a reasonable person would have done in the same
circumstances as the defendant. Courts have developed tests, and the
most often quoted is the one set out in Kruger v Coetzee.51 However,
these tests are still no more than guidelines or approaches for assessing
how a reasonable person would have acted in the circumstances. Any
conclusion reached after applying one of these tests should articulate the
benchmark standard of reasonable behaviour.
Kruger v Coetzee52
Coetzee’s car was damaged in a collision with Kruger’s horse, which had strayed from Kruger’s property
through an open gate and onto a public road. The local divisional council had put in the gate to give
construction workers access to a construction site via Kruger’s property. Drivers of the construction
vehicles frequently left the gate open. Kruger had lodged complaints about such conduct with both the
divisional council and the building contractors, but continued to keep his horses on that land.
Coetzee alleged, firstly, that Kruger had negligently allowed his horses to stray onto a public road
unattended, and, secondly, that in leaving the gate open Kruger had been unable to exercise control of
the horses. The Court articulated the test for negligence as follows:53
For the purposes 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.
The Court noted that requirement (a)(ii) is often overlooked, and that there must be an indication as to
what reasonable steps a diligens paterfamilias in the position of the defendant would have taken.
Assessing such steps depends on the circumstances of each case, and there is no generally applicable
basis for constituting reasonable precautions for all situations.
In this instance, it was common cause that a reasonable person in Kruger’s position would have
foreseen the possibility of his horses straying through the open gate onto the main road, and causing
damage to motor cars that might collide with them. In fact, Kruger conceded that he was aware of the
possibility. Kruger further conceded that he had been aware that the gate was often left open. Yet, he
continued to keep his horses on the property. The Court held that in such circumstances, a reasonable
person would not have ‘shrugged his shoulders in unconcern’, and if there were reasonable steps that
could have been taken, a reasonable person would have taken them. The defendant did in fact take
some steps to prevent the gate from being left open. He went to the divisional council twice to complain
about its employees leaving the gate open. He also complained to the construction managers. So, the
question that remained was whether there were any other steps that Kruger should have taken. The
Court found that insufficient evidence was presented of any other reasonable measures that Kruger
should have taken, and accordingly found that Coetzee had not proved that Kruger had been negligent.
The test articulated in Kruger v Coetzee 54 points to four important issues

that one must assess when determining whether the defendant’s conduct
was reasonable or unreasonable (and therefore blameworthy for
purposes of the law):
1. The first is to place a reasonable person in the same position as the
defendant.
2. The second is to evaluate the situation and circumstances to see
whether a reasonable person in the defendant’s position would have
foreseen the possibility of harm arising from the conduct. If a
reasonable person would have foreseen that the relevant conduct
might cause harm, then one can move on to the next issue.
3. The third issue raises the question of whether a reasonable person
would have done anything to prevent the harm from occurring if the
conduct continued. To answer this question, one must assess what
steps were available to the defendant in the particular circumstances.
This is done by assessing the availability of alternative steps that
would have prevented harm, and whether they were reasonable and
practical in the circumstances. If the defendant did in fact take some
measures to prevent the harm, the plaintiff must show that such
measures were either unreasonable or inadequate, with reference to
what a reasonable person would have done in the circumstances. In
Kruger v Coetzee 55 the Court noted that one must first determine
what steps were available before one can assess whether a
reasonable person would have taken any other steps.
4. In the fourth instance, one compares the defendant’s conduct to the
course of action that the court thinks a reasonable person would
have taken in the circumstances. If it appears that the defendant did
nothing, or did less than what a reasonable person would have, the
defendant’s conduct was ‘sub-standard’ and unreasonable, and
therefore negligent.
PAUSE FOR Foreseeing harmful consequences

REFLECTION When assessing whether a reasonable person would have foreseen the harmful
consequences, one should avoid applying the objective reasonableness criterion
that is used for determining wrongfulness. The Supreme Court of Appeal
addressed this problem in Minister of Safety and Security v Carmichele:56
In considering this question [what was reasonably foreseenable], one

must guard against what Williamson JA called ‘the insidious
subconscious influence of ex post facto knowledge’… Negligence is
not established by showing merely that the occurrence happened
(unless the case is one where res ipsa loquitur)57 or by showing after
it happened how it could have been prevented. The diligens
paterfamilias does not have a ‘prophetic foresight’. … ‘After the
event, even a fool is wise. But it is not the hindsight of a fool; it is the
foresight of the reasonable man which alone can determine
responsibility’.

The test for negligence stands on two pillars:
1.The foreseeability of harm
2.The preventability of harm.
It is not adequate simply to state that the defendant was negligent. There
must be a concrete and practical argument as to why and how the
defendant was negligent in the circumstances. So, the application of both
the foreseeability test and the preventability test is the foundation for
practically evaluating the defendant’s conduct.

One cannot establish negligence unless one can prove that the harm
arising from the defendant’s conduct was reasonably foreseeable. This is
assessed after considering the surrounding (or objective) circumstances,
as well as the qualities the law attributes to a reasonable person.
Therefore, reasonable foreseeability is a flexible concept because it
depends on the circumstances of each case, and a juridical evaluation of
the risk in those particular circumstances. There are no hard-and-fast
rules to help us determine whether harm is reasonably foreseeable, but
courts have identified some broad guidelines that should be applied
flexibly.
Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson58
Basson contracted Lomagundi to build a roof on top of a silo. Basson’s bales of stover were stacked up
against the silo and, while Lomagundi’s employees were busy welding, some sparks ignited the bales.
When Basson sued Lomagundi, the Court had to determine the issue of negligence. The Court identified
the following broad and flexible guidelines for evaluating whether harm was reasonably foreseeable:
• How real is the risk of the harm eventuating?
• If the harm does eventuate, what is the extent of the damage likely to be?
• What are the costs or difficulties involved in guarding against the risk eventuating?
From the evidence, it appeared that the risk of the stover igniting was not great, but it was nonetheless a
real possibility. The damage that a fire might cause was, in the circumstances, quite extensive.
Furthermore, the cost or difficulty involved in preventing the risk from eventuating was very slight. All that
was required was to move the bales a small distance back from the silo and to sweep the space between
the bales and the silo to remove flammable material.
The Court found that any ‘prudent man’, before commencing the welding operations, would have
foreseen the risk of fire and would have moved the bales and cleared the space between the bales and
the silo to reduce the risk of the flammable material catching fire. The real possibility of the bales
igniting from welding sparks, weighed against the possible extent of the damage and the relative ease
with which the ordeal could have been prevented, meant that the Court found that there was indeed
negligence on the part of Lomagundi’s employees.
The questions that one has to answer are:
• Was it, in the specific circumstances, reasonably foreseeable that harm to others would occur as a
consequence of the defendant’s chosen conduct?
• Having due regard to the specific circumstances of the case, what would the general nature of the harm
be and how would it generally occur?
There are, in principle, two diverging views to the application of the

foreseeability test: the abstract or absolute approach, and the concrete or
relative approach. In the abstract approach, the question of foreseeability
depends only on whether the defendant foresaw that, in general, harm
could occur. The exact type of harm, and the extent of that harm, is not
relevant in this approach. In the relative approach, we can only regard a
defendant’s conduct as negligent if the specific harmful consequences
were reasonably foreseeable.59 So, we can only say that the defendant
acted negligently if a reasonable person in the defendant’s position
would have foreseen the specific harm that the plaintiff is claiming for.
In terms of the abstract or absolute approach, legal causation is the
element that is used to determine whether defendants are liable for the
specific harmful consequences that occurred as a result of their conduct.
Foreseeability of harm becomes a factor that could indicate whether or
not the harm is too remote. However, when the relative approach is
followed, the application of the test of foreseeability of the specific
harmful consequences as part of the test for negligence renders the legal
causation enquiry superfluous.
PAUSE FOR Abstract or absolute approach

Is harm, that is, any harmful consequence(s), foreseeable?
REFLECTION
See Herschel v Mrupe 1954 (3) SA 464 (A); Kruger v Coetzee; minority
judgment in Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty)
Ltd 2000 (1) SA 827 (SCA).
Concrete or relative approach

Are the general nature and the general manner of occurrence of the
consequences that actually eventuated reasonably foreseeable?
See Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 (3) SA 531 (E);
Mukheiber v Raath 1999 (3) SA 1065 (SCA); majority judgments in Sea Harvest
Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827
(SCA); Premier of the Western Cape Province v Loots 2011 JDR 0250 (SCA) at
13.
It appears that our law favours the relative approach, but in a hybrid form
where legal causation remains a tool for limiting liability, in addition to
the negligence enquiry.60 Boberg 61 explains this preference by pointing
out that an enquiry into how a reasonable person would have acted in a
meaningful manner can be conducted only by referring to the
consequences that were indeed reasonably foreseeable. According to
Boberg, if only ‘harm in general’ is foreseen, there is no sensible way in
which we can assess what a reasonable person’s course of action would
have been. In Premier of the Western Cape Province v Loots NO 62 the
Court accepted the relative approach to negligence:
According to this approach it cannot be said that someone acted negligently
because harm to others in general was reasonably foreseeable. A person’s conduct
can only be described as negligent with reference to specific consequences. Yet, the
relative approach does not require that the precise nature and extent of the actual
harm which occurred was reasonably foreseeable. Nor does it require reasonable
foreseeability of the exact manner in which the harm actually occurred. What it
requires is that the general nature of the harm that occurred and the general
manner in which it occurred was reasonably foreseeable. At some earlier stage
there was a debate as to whether our courts should follow the relative approach as
opposed to the so-called abstract or absolute approach to negligence. But it now
appears to be widely accepted by academic writers, on good authority, that our
courts have adopted the relative approach to negligence as a broad guideline,
without applying that approach in all its ramifications.63
It is important to note, as pointed out in the above passage, that the

relative approach does not require that the reasonable person should
have foreseen the exact or precise manner in which the harm was caused.
So, although the specific consequences must have been reasonably
foreseeable, the exact manner in which the consequences actually came
about need not be.
PAUSE FOR The relative approach to negligence

Some advocates of the relative approach have argued that applying it prevents
REFLECTION
the need for any enquiry into legal causation, because the relative approach
uses foreseeability to fix liability and to limit it. Strictly speaking, this view is
correct. However, courts tend to use both the relative approach and legal
causation, often in combination. See Smit v Abrahams,64 where the Court noted
that legal causation is part of our law, and Sea Harvest Corporation (Pty) Ltd v
Duncan Dock Cold Storage (Pty) Ltd,65 where the Court applied the relative
approach and yet legal causation played an important role.
Does it really matter which theory is adhered to? Irrespective of the
approach, the result should be the same. The relative approach combines the
questions into a single enquiry, whereas the abstract approach follows a two-
stage process. The core issue in each is whether there was reasonable
foreseeability of the general type of harm that occurred.
Irrespective of the approach that is followed, the fundamental factor is

the nature or magnitude of the risk. When assessing the magnitude of the
risk of harm, two questions arise:
1. How strong is the possibility that the harm will occur?
2. How serious will the damage be if the risk materialises?
Magnitude of risk is the outcome of an interrelationship between

foreseeability of harm and the possibility of that harm eventuating. If the
likelihood of the harm occurring is great, the harm is normally
foreseeable.66 However, where the risk of harm is very small, the
conclusion might be that harm is not foreseeable at all,67 unless the harm
that might eventuate is potentially serious. Where there is a likelihood of
serious harm, as in Lomagundi Sheetmetal and Engineering (Pvt) Ltd v
Basson,68 harm will probably be foreseeable. The circumstances of each
case will determine the result.69
Stratton v Spoornet70
An eight-year-old boy and his friend walked to the railway line to watch for trains. To see whether a train
was approaching, the boy climbed to the top of a railway pylon, where he received a serious electric
shock. The boy’s father (Stratton) sued Spoornet for all medical expenses related to the accident and at
issue was whether Spoornet had been negligent.
Stratton had to prove that:
• A reasonable person in Spoornet’s position would have foreseen the reasonable possibility of injury to
others.
• A reasonable person would have taken reasonable preventative measures.
• Spoornet failed to take such measures.
The Court defined ‘reasonable possibility’ as a possibility that would not be ‘too remote or fanciful’, while
keeping in mind the particular facts of the case.71 The Court found that, while a reasonable person would
indeed have foreseen that children might be injured in a collision with a train, it was not reasonably
foreseeable that a child might be injured due to an electrical shock. Therefore, even though the possible
harm from an electrical shock was of a serious nature, the circumstances indicated that a reasonable
person would not have foreseen the risk as it eventuated.72
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd73
Sea Harvest Corporation owned goods that were stored in a newly built cold store in the Table Bay
harbour area that was owned by Duncan Dock Cold Storage. During New Year’s Eve celebrations,
someone fired a distress flare that landed on the store’s roof and set fire to the roof guttering. The
resultant fire destroyed the store. There was no anti-fire sprinkler system in the roof because the experts
who were involved in the store’s construction considered the building to have a low fire risk. The building
had been constructed with non-combustible material and the guttering material could only ignite from a
very high intensity heat source. Sea Harvest sued Duncan Dock and Portnet (the employer of the port
engineer) for damages, alleging that Duncan Dock had been negligent in not installing an anti-fire
sprinkler system and also in that the managing engineer of the cold store had not remained on site
during the midnight celebration to make sure that there were no incidents. The evidence showed that a
sprinkler system would either have extinguished the fire, or at least have contained it. The claim against
Portnet was based on the port engineer’s negligent failure to warn of the danger posed by distress flares
fired over New Year.
Scott JA (for the majority) considered the test for negligence as developed in Kruger v Coetzee,74 and
as redeveloped in Mukheiber v Raath:75
(a) A reasonable person in the position of the defendant:
(i) Would foresee harm of the general type that actually occurred
(ii) Would foresee the general type of causal sequence by which that harm occurred
(iii) Would have taken steps to guard against it.
(b) The defendant failed to take those steps.
Scott JA reiterated that dividing the negligence enquiry into stages (as described) is only a guideline in
resolving the issue. The ultimate analysis for determining negligence is whether, in the particular
circumstances, the conduct complained of falls short of the standard of a reasonable person. When
applying the formula as set out in Kruger and Mukheiber, there must always be some measure of
flexibility to provide for grey area cases, since there is not one universally applicable formula that can
cater for every case. The present case involves a grey area because the result (destruction by fire) was
readily foreseeable, but the cause (fire originating from an outside source with sufficient intensity to
ignite roof guttering) was not. A too-rigid approach in borderline cases, where culpability and remoteness
of damage queries are so closely linked, can lead to attributing culpability in a manner that has been
termed negligence ‘in the air’. Therefore, judicial judgement plays an important role while paying due
regard to the facts of each case.76
On the facts, the general possibility of fire was foreseeable and indeed foreseen, and there was
sufficient fire-fighting equipment inside the building. However, the manner in which the fire started was
very different from what was foreseeable. The question is whether a reasonable person would have
foreseen the danger of fire on the roof originating from an external source with sufficient intensity to
ignite the guttering.
Due to the low-risk material of which the building was made, and based on the specific
circumstances of this case, the majority held that a reasonable person would not have foreseen the
manner in which the harm had occurred. Thus, neither Duncan Dock nor Portnet was held liable.
Since the harm was not reasonably foreseeable, there was no need to discuss the matter of
preventability.
Streicher JA (for the minority) agreed that the appeal should be dismissed, but he based his finding on
different grounds, choosing to follow the abstract approach. In his view, fault would be established:
if a reasonable person in the position of the defendant would have realised that harm to the
plaintiff might be caused by (his) conduct even if he would not have realised that the
consequences of that conduct would be to cause the plaintiff the very harm she actually
suffered or harm of that general nature.77
The failure to install a sprinkler system was negligent according to the abstract approach, but the Judge
found that there was no causation because the harm had been too remote.

Once it is established that harm was indeed reasonably foreseeable, one
can then enquire whether that harm was also reasonably preventable.
However, in some instances78 the possibility of (serious) harm resulting
may be so slight that the reasonable person would not have taken
preventative measures. In such instances applying the negligence test
does not go further than the question of foreseeability.
Whether a reasonable person would have taken measures to prevent
the harm from occurring depends on the circumstances of each
particular case. However, it is not enough merely to indicate that a
reasonable person would have taken some measures to prevent the
harm. The plaintiff also has to indicate which reasonable measures the
defendant should have taken in the circumstances to prevent the harm
from occurring.79
City of Salisbury v King80
King sued the City for damages after she had slipped on vegetable matter at a City vegetable market.
However, she failed to prove that the City was negligent because there was no evidence to establish that
the City had a reasonable opportunity to remove the vegetable matter as it fell on the floor. Although it
was reasonably foreseeable that vegetable matter would fall to the floor, the Court recognised that the
standard of care imposed on the City involves acknowledging the practical difficulties in keeping the floor
free of vegetable matter at all times. The size of the market area, and the practical circumstances
indicated that no reasonable precautionary measures could have ensured that there would be no
vegetable matter on the floor. The City was not liable for consequences that were reasonably foreseeable,
but which could not reasonably be prevented.81
When assessing whether a defendant would have taken steps to guard

against the harm, there are four basic considerations in each case that
influence the reaction of the reasonable person regarding the
preventability of harm: 82
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 (social usefulness) of the actor’s conduct
4. The burden of eliminating the risk of harm.
To establish negligence, one must prove that the harm was reasonably
foreseeable and reasonably preventable. To determine reasonable
foreseeability of harm, one first determines the magnitude of harm by
weighing the likelihood of the harm occurring against the seriousness of
that harm. To determine preventability, one weighs the magnitude of the
harm against the utility of the conduct and the burden that might be
imposed in implementing the preventative measures. If the magnitude
outweighs the utility and burden, the conclusion is that a reasonable
person would have taken steps to prevent the harm, and so the
defendant’s conduct must be measured against what a reasonable
person would have done in the circumstances. If the utility and burden
outweigh the magnitude of the harm, the reasonable person would not
have taken preventative steps, and so the defendant also did not have to
take preventative measures.83
The basis for these assumptions is the standard of care that a
reasonable person would adhere to.
Ngubane v South African Transport Services84
Ngubane had been standing close to the doorway in a crowded train coach while holding onto an
overhead strap. People were still pushing to get in and out of the coach when the train started with a jerk
and moved forward. Disembarking passengers pushed against Ngubane, causing him to lose his hold
and fall backwards out of the open doorway, and down between the platform and the train. He suffered a
spinal fracture that resulted in permanent partial paralysis.
The evidence showed that the ticket examiner’s role was to remain on the platform until he was
satisfied that it was safe for the train to depart. He had to ensure that all passengers had embarked and
disembarked. In turn, the guard had to ensure that the ticket examiner had boarded the train and then
the guard should have operated the switch to close the doors. The guard should have signalled to the
driver to proceed only after he had entered the guard’s van and checked from the window that there
were no more passengers entering or leaving the train. These procedures were part of the defendant’s
‘Interdepartmental Working Instructions’.
South African Transport Services argued that crowd control was a big problem at stations and in
trains, and that it was too expensive to employ more ticket examiners on each train and to introduce a
door mechanism in each coach that could withstand the malpractices of often undisciplined commuters.
The Supreme Court of Appeal held that a reasonable person would have foreseen the possibility of
harm. In the circumstances of the case, the Court identified four basic considerations for determining the
reaction of a reasonable person in a particular situation:
2. The gravity of the possible consequences if the risk of harm materialise
3. The utility of the actor’s conduct
The Court held that the considerations in points (1) and (2) would have prompted a reasonable person
to take steps to prevent the harm. The risk, according to the Court, of the near certainty of serious or fatal
injury due to the train starting when persons were still boarding and leaving coaches was ‘as obvious as
could be’,85 and the evidence demonstrated clearly that the conduct complained of created a high risk of
serious injury. To have carried out the existing prescribed procedures would have involved no extra cost to
the defendant. Issues of delayed departure could, according to the Court, not be weighed against the
other considerations that required the necessary safety precautions to be taken. Therefore, factors (3)
and (4) did not outweigh factors (1) and (2), which meant that a reasonable person would have taken
steps to guard against the foreseeable harm. So, the failure of the South African Transport Services’
employees to take steps to prevent the harm rendered their conduct negligent.
Cape Metropolitan Council v Graham86

Graham suffered serious injuries when a landslide from above a rock cut along Chapman’s Peak Drive in
the Cape Peninsula struck his vehicle. He sued the Cape Metropolitan Council, the local government
body responsible for the management and maintenance of the road, for delictual damages and alleged
that the Council had been negligent in, firstly, failing to warn the road users of the risk of harm from
falling earth and rock, the contention being that two ‘falling rocks’ signs were inadequate, and, secondly,
failing to close the road temporarily prior to the accident.
According to expert evidence, the unstable nature of much of the rock, the height and slope of the
rock cuts, and the steepness and inaccessibility of the mountainside above, rendered it virtually
impossible to prevent rockfalls and so ensure the safety of the road users. The relevant slope failure had
occurred during or after a rainstorm. Experts agreed that, although rockfalls on this road were
unpredictable and could occur in both wet and dry periods, the risk of rockfalls and landslides
associated with the characteristics of the slope was greatly increased in wet conditions. The decision
whether to close the road was left to the assistant maintenance superintendent in charge of roads in the
area. There was no policy regarding when he should close the road, and there were no guidelines to help
him make this decision. All indications were that he would only take steps to close the road once a
rockfall or landslide had already rendered it unusable.
The Supreme Court of Appeal held that the circumstances of each particular case indicate the
precautionary measures that reasonably should have been taken. Assessing these circumstances entails
a value judgement in determining whether the precautions would be reasonable in the circumstances or
not. The Court listed the following four considerations to take into account when making such an
assessment:
2. The gravity of the possible consequences if the risk of harm materialises
3. The utility of the actor’s conduct
The Court decided that, since the Council had knowledge of the particular problems associated with the
road, it had, or ought to have had, knowledge of previous landslides and major rockfalls in wet weather.
Moreover, the rainfall figures were readily available from the Hout Bay Weather Centre for the Council’s
perusal. The Council also had knowledge of other incidents in which people had suffered injuries as a
result of rockfalls. The Court concluded that there would be times when the appellant would know, or
ought to know, that there is an increased risk of landslides and rockfalls in wet weather. This increase in
risk was such that the road signs warning of falling rocks were no longer adequate to convey to motorists
the true extent of the risk, which would then place the Council in a position to decide whether the road
ought to be closed.
The Council contended that there were utility considerations to take into account in deciding whether
to close the road. If Chapman’s Peak Drive is closed, commuters must take an alternative route, which
increases their travelling distance by 14 km, and commuters often complain about this. However, the
Court was of the opinion that this difficulty amounted to a mere inconvenience, which did not weigh up
against the great likelihood of serious harm eventuating. There was accordingly no justification for
keeping the road open in circumstances when it should be closed.
The Court reiterated that to establish whether the Council was liable, it had to ask whether, in the
circumstances, the Council’s failure to close the road prior to the accident had been unreasonable. In
answering this question, the Court took into account the following considerations:
• The rainfall figures for the week preceding the accident and the forecast of further heavy rain during the
weekend
• The major rockfall during the same month in the previous year had occurred at virtually the same point
during or after a rainstorm, resulting in the road being closed for a lengthy period of time
• On the day before the accident, as well as on the morning of the accident, the assistant maintenance
superintendent had been called out to remove rocks that had fallen onto the road.
In light of these considerations, the Court found that there could be no doubt that the risk of slope
failures had greatly increased, and that the Council ought to have known this from its officials who had
knowledge of the particular problems associated with the road. Accordingly, the Court found that the risk
of major slope failure and of harm to road users had increased to such an extent that it outweighed the
alleged utility of keeping the road open. In the circumstances, the Council had been negligent in failing to
close the road.
Enslin v Nhlapo87
One evening at 7pm, Nhlapo was driving his motor vehicle on a road alongside a farm and came across
a small herd of cattle. Nhlapo was unable to avoid the cattle and collided with a young Brahman bull. He
sued Enslin, the owner of the farm, for damages. Evidence showed that the cattle did not belong to
Enslin, but Enslin had the power to decide where on his farm the cattle could graze, and therefore had
control over the cattle. The alleged grounds of negligence were that Enslin had failed to ensure that the
cattle were properly fenced in, had failed to prevent the cattle from straying onto a public road, and
finally had failed to warn approaching motorists of the presence of cattle on the public road although he
could have done so.
Enslin admitted that the cattle had strayed onto the public road on a prior occasion. The Court found
that Enslin must have been aware that if the cattle on his farm, and in his grazing camps, were to stray
onto the adjoining public road, they could endanger the lives of road users. So the foreseeability aspect
of the enquiry had been satisfied.
The Court found that a reasonable person in Enslin’s position would have taken steps to prevent the
cattle from straying onto the public road, particularly at night. It was common cause that Enslin had
taken some steps, in that a fence and gates separated the grazing camp from an access road that ran
from the public road to a neighbouring property. He had also told his employees that the gates had to
be kept closed. Yet, on the night in question, the gates were left open by an unknown person. So, the
next question was whether a reasonable person in Enslin’s position would have taken further steps to
prevent the cattle from straying onto the public road. In this regard, the Court found that a reasonable
person would indeed have taken more precautions. According to the Court, a padlock to secure the steel
gate that separated the access road and the public road, or installing a cattle grid on the access road
shortly before it joined the public road, are easy, inexpensive and effective measures to prevent the
cattle from straying onto the public road. Therefore, Enslin’s failure to take either of these precautions
established that he had been negligent. The appeal was accordingly dismissed.
Note the essential difference between Enslin v Nhlapo 88 and Kruger v

Coetzee.89 In Enslin, the plaintiff managed to show that there were
additional alternative steps that a reasonable person would have taken.
In Kruger, the plaintiff did not do so. Hence the different outcomes in
substantially similar circumstances.
Shabalala v Metrorail90
Shabalala boarded one of Metrorail’s trains one evening on a line that ran from Dunswart to Benoni.
Almost immediately after the train pulled away, three men stood up from among the passengers. One
man approached Shabalala and demanded money at gunpoint. Shabalala replied that he did not have
any money, after which the man shot him three times in the legs and arm. When Shabalala fell to the
floor, the assailant proceeded to search his pockets and took R130 and a train ticket from his wallet.
When the train stopped at the Benoni station, Shabalala managed to get off the train and called out to
two security officers who stood on the platform. He reported what had happened and pointed out the
assailants, who were still on the train. The officers did not take action against the robbers since they were
more concerned with Shabalala, who was injured and bleeding profusely. Shabalala was taken to
hospital and remained there for one week.
In his pleadings, Shabalala stated that he did not see any security officials on the train or on the
platform before the train left the station that evening. There were no security officials that evening to
check the authenticity of train tickets and control who boards the trains. He furthermore testified that
there were about eleven other people on the platform waiting to board the train and none of them
looked suspicious. Also, nothing about the robbers’ appearance was untoward. Shabalala was unable to
indicate whether the robbers were in the group of people on the station platform or whether they were on
the train already. He was also unable to indicate what steps Metrorail should have taken in order to
prevent the attack from occurring.
The Supreme Court of Appeal noted that the grounds of negligence that Shabalala relied on were of a
general nature and ‘relate to a systemic failure on the part of the respondent’. In other words, the
alleged failure did not relate to a failure on the part of an individual employee to act in a specific
manner in relation to the incident in question, but to a general failure on Metrorail’s part to put
measures in place that would ensure the safety of commuters.
It was evident that Metrorail had adopted measures to minimise or prevent crime on the trains by
employing security guards on the trains and on the station platforms. Therefore, the question in this
instance was whether Shabalala had discharged the burden of establishing that those measures were
unreasonable in the circumstances, and that, had such measures been taken, the harm would not have
occurred.
The Court emphasised that this did not mean, simply because the foreseeable harm occurred, that
the precautionary steps taken were necessarily unreasonable. Such an approach would lead to the
untenable situation where Metrorail would have had to provide an absolute guarantee against harm from
criminal activities on its trains. Based on the facts, it appeared that avoiding the attack would have
required at least one security guard on each coach, especially in light of the assailants’ willingness to
use their guns and frequent armed attacks on security guards. Moreover, assuming that the presence of
a security guard in the coach would have prevented the harm from occurring, the question then arises of
whether Metrorail could reasonably be required to employ a guard on every coach on every train. The
Court found that such a requirement would be unreasonable because of the large number of coaches
involved, and in terms of the cost and effort. It might have been reasonable to require security guards on
every coach where lines have been identified as being particularly vulnerable to criminal activities, but
no evidence to this effect had been tendered. In the absence of adequate evidence that a security guard
should be employed on every coach and that such action would have prevented or minimised the harm,
an inference of negligence could not be drawn. The Court therefore dismissed the appeal.
So, to establish negligence, there are two requirements that must be met:
• Reasonable foreseeability of harm
• Taking reasonable precautionary measures where harm was
reasonably foreseeable.
In certain situations, such as in City of Salisbury v King,91 harm might be

reasonably foreseeable, but a reasonable person in the same situation as
the defendant would not have taken preventative measures. It is
important to keep in mind that a plaintiff must indicate what (other)
reasonable measures were available to the defendant in the
circumstances (as indicated in Kruger v Coetzee 92 and seen in Enslin v
Nhlapo).93 However, reasonable precautionary measures are not
necessarily those that prevent or minimise the harm. Sometimes, as in
Shabalala v Metrorail,94 the harm occurs despite a person having taken
reasonable measures. Then, it is not a question of prevention, but rather
a question of whether the defendant conformed to the standard of a
reasonable person by taking the steps that a reasonable person would
have taken. If a reasonable person would have taken precautions that the
defendant did not take, even if these precautions might not actually have
prevented the harm from occurring, the defendant’s conduct would
nevertheless be unreasonable, but causation would be an issue.
8.5.4 Circumstances and factors that indicate the

required standard of care
In applying the test for negligence as set out in Kruger v Coetzee 95 and
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty)
Ltd,96 the following circumstances play a role in assessing the standard of
care against which we should measure a defendant’s conduct.

A defendant who follows general practice in a particular set of
circumstances will usually comply with accepted precautionary
measures, provided that a reasonable person would similarly have
followed that general practice. General practice usually sets out the
standard of reasonable behaviour, especially the precautionary measures
to apply in particular situations. It also indicates what society would
regard as reasonable conduct or practices.97 Therefore, a defendant can
escape liability by showing that the conduct conforms with normal or
general practice. If it did not, the defendant is considered to have been
negligent.
However, general practice is not always decisive, because a
reasonable person would not follow practices that are out of date or
unreasonable for any other reason. Common practice on its own cannot
determine negligence, because this would mean that people, or groups of
people, would be able to develop their own standards of what is
acceptable, even if they amount to careless practices.98 The ultimate basis
for determining negligence is still whether a reasonable person in the
same circumstances would have acted differently.
8.5.4.2 Legitimate assumption of reasonable conduct of

others
People who act according to an assumption that others would reasonably
comply with the standard of a reasonable person, normally act
reasonably. In other words, a reasonable person would expect other
people to be reasonable persons also. One can therefore assume that
other motorists will obey the road safety rules,99 or that lifts,100
pavements101 and shop floors102 are in a good condition and safe for use.
However, if one realises that the assumption is not justified, one should
adjust one’s conduct accordingly. Usually pedestrians will not be
negligent when they assume that drivers will stop at stop signs or
pedestrian crossings. However, should they be aware that drivers
generally fail to do so, or where they see that an oncoming driver will not
obey the traffic rules, the previous assumption is no longer legitimate,
and they must do what a reasonable person would do in the
circumstances and take the necessary precautions to avoid harm. So, if
the conduct of a driver (even if reckless or grossly negligent) is reasonably
foreseeable, a person will be negligent if he or she fails to take reasonable
steps to avoid a collision.103

The so-called ‘doctrine of sudden emergency’ is based on the premise
that the law cannot expect a person who has to act quickly in the face of
imminent danger to exercise the same standard of care as a person who
does not have to act under these circumstances. In a sudden emergency
situation, one does not have the opportunity to consider rationally all the
consequences of one’s actions. Meeting the following three requirements
will indicate compliance with the reasonable-person standard:
• The situation must have been one of imminent peril.104
• The situation of imminent peril must not have been caused by the
defendant’s own negligence.105
• The defendant must not have acted unreasonably in the
circumstances.106
PAUSE FOR Common practice entailing dangerous measures

Where common practice entails dangerous measures, for example, in the
REFLECTION
building industry, one must evaluate the likely danger in terms of the ordinary
experience of those in the building industry who constantly deal with such likely
dangers. This ordinary experience might indicate that the practices resorted to
are not unreasonable and that it does not create an unreasonable risk of
danger.107
Courts will take into account that some activities require a degree of skill
and experience to cope with dangerous situations that might arise during
such activities.108 For example, motorists must have the skill and ability to
cope with the possibility of road accidents, which usually occur suddenly.
However, the ultimate test is still that of reasonableness and how a
reasonable person in the same situation would have acted when faced
with the sudden danger.
Although justified error of judgement is often present in instances of
sudden emergency, errors of judgement may also occur in normal or
ordinary circumstances. The question is fundamentally whether a
reasonable person in the same situation would have made a similar error
of judgement. In other words, the error of judgement must have been
bona fide and it must have been reasonable in the circumstances.109 An
error of judgement due to a lack of the required skill, knowledge and
prudence is negligent, because a reasonable person would either have
possessed the necessary knowledge and would have exercised the
necessary skill to avoid making such an error,110 or would have refrained
from acting due to the fact that the requisite skill and knowledge is
lacking.111
The legislature can prescribe the appropriate standard of behaviour for
some situations. Courts prefer the approach that breach of statutory duty
is merely an indication of negligence.112 This is in accordance with the
fundamental principle that we must determine negligence in terms of the
reasonable-person standard.113 Breach of a statutory duty is merely a
factor that we take into account when determining negligence. So a
breach of statutory duty does not necessarily constitute negligence, and,
similarly, compliance with a statutory duty is not necessarily conclusive
in establishing absence of negligence. The ultimate determinant will be
whether a reasonable person in the same situation would have complied
with the statutory duty.
8.5.4.5 Dealing with inherently dangerous things, persons

or circumstances
Where a person deals with an inherently dangerous thing, or is in control
of a dangerous situation, that person is required to act with greater care.
Examples of dangerous things or situations include handling loaded
firearms, transporting dangerous criminals,114 slippery floors in
supermarkets115 and swimming pools in the vicinity of young children.
8.5.4.6 Danger to children or people with disabilities or

incapacities
Society expects people to exercise greater care and vigilance when it is
likely that children, people with disabilities, such as blind persons, or
people with a limited capacity to direct their actions, such as intoxicated
persons, are in the vicinity.116 Children, especially, are known to act
impulsively and unpredictably, and a reasonable person would consider
this and take precautions against injuring a child.117 The question
whether a reasonable person would have foreseen the presence of
children or persons with disabilities or incapacities depends on the
circumstances of each case.118 The following factors are relevant when
determining reasonable behaviour where children are seen or
anticipated:
• Visibility of the child
• The child’s apparent age
• The child’s proximity to the road, the path of the vehicle and the
width of the road
• The child’s mobility or liveliness
• Indications that the child intends to cross the road
• Extent of supervision by a responsible person
• The child’s apparent awareness of the danger or of the approaching
vehicle
• Motorists’ ability to stop the vehicle in the situation.
Santam Insurance Co Ltd v Nkosi119
Just before lunchtime on a Sunday afternoon, a toddler (almost three years old), Elizabeth Ngwenya, was
knocked down by a car and injured. An action for damages was instituted against the vehicle insurer.
The road where the accident occurred was a narrow strip of tarmac with a T-junction at one end. The
driver of the vehicle, Maseko, was driving on the left-hand side of the road towards the T-junction at a
speed of approximately 30–40 km/h. A car was parked on the edge of the tarmac on the right-hand side
of the road in a manner that caused its rear to protrude into the street. As Maseko approached the car,
he saw an elderly man standing on its far side. Just as he reached the car, Elizabeth emerged from
behind the car and ran in front of his vehicle. Maseko applied his brakes but the right front of his vehicle
struck the child. The vehicle stopped within a distance of 4,5 m. Under cross-examination, Maseko
conceded that he knew the area well and that there were a lot of children in the neighbourhood. He also
conceded that it was common for children to play in the street, on its verges, and on the grassy areas
next to the street.
The Court reiterated that there was a special duty of vigilance and care on motorists when they drive
near young children. The Court acknowledged that Elizabeth was out of Maseko’s sight and would have
been completely out of sight to any reasonable driver. The issue then was whether the special duty also
applies in instances where children are hidden from a motorist’s view. If there is a duty regarding hidden
children, there would be a greater demand for care and vigilance.
The Court held that the ultimate test in any such situation is to consider whether a reasonable person
in the motorist’s position would foresee the possible presence of hidden children. Based on the
circumstances of the case (at lunchtime, a person would expect children to be at home having lunch),
and given that Maseko had, for a brief moment, an unimpeded view of the area where the car was
parked, the Court found that a reasonable person in Maseko’s position would not have anticipated a
young child to be behind the parked car. Alternatively, even if a reasonable person would have
anticipated that a young child was behind the car, the surrounding circumstances meant that a
reasonable person would not have regarded it as a real possibility that required immediate preventative
precautions. Accordingly, the Court found that Maseko had not been negligent.
8.5.5 Attributes of defendants that influence the standard

of care required for reasonable conduct
Courts have recognised certain characteristics that affect the reasonable-
person standard, and so have adapted the standard to establish a realistic
expectation of what is reasonable in the circumstances. These instances
include situations where defendants are beginners or experts. Society
does not expect the same of people in these categories as it would expect
of the ‘average’ person. For example, if the defendant is a highly skilled
medical specialist, applying the reasonable-person test would be
inadequate, because the special knowledge and skill of the defendant
represent a higher standard of care than one can attribute to an average
person in society.
8.5.5.1 Beginners
Where beginners of particular activities expose other persons to a risk of
harm, the question arises whether one should take into account their
‘beginner status’ when assessing negligence. Although novices are
required to demonstrate some skill and care, one cannot expect them to
demonstrate the same skill and experience of a reasonably experienced
person. Nevertheless, where the conduct of a novice creates the risk of
serious harm to others, there should be no lenience regarding the lack of
experience. The seriousness of the possible harm is therefore a
fundamental factor that must be taken into account. For example, an
inexperienced person who is overseeing the burning of fire-belts cannot
escape liability because of that inexperience, because the severity of the
foreseeable harm to surrounding properties is such that one would
expect the inexperienced to act with similar proficiency as an
experienced person.120 Similarly, courts will find negligence where a
person undertakes an activity for which expert knowledge is required,
even though that person knows, or reasonably ought to know, that he or
she lacks the required skill or knowledge and should not attempt the
activity in question.
African Flying Services (Pty) Ltd v Gildenhuys121
A flying instructor allowed his pupil to fly his aeroplane, which the pupil crashed, and the instructor
claimed damages from the pupil. The accident did not cause harm to anyone else. In assessing whether
the pupil had been negligent, Tindall JA in a separate judgment122 indicated that because the instructor
knowingly entrusted his interests to his inexperienced pupil, the standard against which the pupil’s
conduct had to be measured needed to be adjusted downwards to take into account the risks inherent in
the lack of skill and experience of a pupil.
Van der Walt and Midgley point out123 that if there had been injury to third parties in the African
Flying Services case, the Court would have assessed the pupil’s conduct according to the standard of
care expected from an experienced pilot. Why?
Would the conduct of a newcomer to a sport such as golf124 be treated differently to a person who is
a learner driver? Why?
8.5.5.2 Experts
Where a defendant possesses a skill or competence gained by training
and experience, we can expect a higher standard of care. For example,
courts assess the conduct of a medical doctor according to the standards
that a reasonable medical doctor would have adhered to in the same
circumstances.125
Although one can say that the diligens paterfamilias or reasonable
person is ‘replaced’ by the reasonable expert in the specific field in
question, the reasonable expert is similar in all respects to the reasonable
person, except that one attributes a measure of the relevant expertise to
the reasonable person. The reasonable expert criterion does not require
the highest skill and expertise, but courts use it to assess the ‘general level
of skill and diligence possessed and exercised at the time by members of
the branch of the profession to which the practitioner belongs.’ 126
Therefore, one can take into account the specific branch of an area of
expertise when determining negligence. For example, a medical
practitioner who is a specialist will be required to exercise a greater
degree of skill than a medical practitioner who is a general practitioner,
due to the difference in their levels of specialisation and skill.
Although courts pay close attention to the opinions expressed by
experts in a particular field of expertise, the Court in Van Wyk v Lewis 127
reiterated that it is ultimately for courts to decide what is reasonable
under the circumstances. In other words, while courts have due regard to
expert opinions, courts do not have to follow these expert opinions.
Therefore, the specific circumstances of each case play a pertinent role in
how courts approach the standard of care in cases of experts, and also in
how courts decide on what society would regard as reasonable for the
expert’s conduct. This approach conforms with the notion in our law that
deviation from the general practice in a particular field of expertise
constitutes only prima facie negligence. Based on all the circumstances
and evidence, courts must be satisfied that an expert opinion of the
general practice of that particular field of expertise has a logical basis,
and that the relevant risks and benefits were considered.128
Van Wyk v Lewis129
Lewis was a surgeon who performed an urgent and difficult abdominal operation on Van Wyk. When the
operation was done, a swab that Lewis used was overlooked and it remained in Van Wyk’s body for
about one year. Evidence showed that it was general practice that the attending nursing sister was
responsible for checking and counting swabs. Also, Lewis submitted that after the operation he had
conducted as thorough a search as was allowed by the patient’s critical condition and he, as well as the
nursing sister, believed that all the swabs were accounted for. The Court found that the mere fact that the
accident happened was not adequate proof of negligence on the part of Lewis. Although Lewis was
bound to exercise all reasonable care and skill associated with his profession, the general practice that
the attending nursing sister carried the responsibility to ensure all used swabs are accounted for was
indeed reasonable and proper, and Lewis was accordingly not negligent in complying with this general
practice.
The Court measured the reasonableness of Lewis’ conduct against the standard of expertise required
of a reasonable surgeon. The question was whether a reasonable surgeon in the same situation would
have acted differently and, if so, whether that reasonable surgeon would have taken more (or other)
precautionary measures than Lewis did. The general practice of surgery indicates the required standard
of care normally expected of theatre personnel. Based on this general practice, the Court found that
Lewis acted as a reasonable surgeon would have done, and was therefore not negligent.
8.5.5.3 Children
Before 1965, the test for negligence of children in some cases was taken to
be that of ‘the reasonable child of the child defendant’s age and
intellectual development’. 130 In 1965, the Appellate Division held in
Jones, NO v Santam Bpk 131 that the test for negligence is always objective.
In other words, once a court has established that a child is accountable in
law, the fact that we are dealing with a child becomes irrelevant for
purposes of establishing negligence, and the negligence of a child is
determined according to the reasonable-person test. Courts, therefore,
treat a child defendant in the same way as an adult defendant.
The harshness of this approach is lessened somewhat by the rules
that relate to accountability. As indicated earlier, courts use a subjective
test to determine whether a defendant was accountable at the time that
the delict occurred, and so courts take into account a child’s age and
emotional and mental maturity during the accountability enquiry. Only
once a court has found a child to be (subjectively) accountable will it
apply the objective test. In assessing accountability, the Court in Weber v
Santam Versekeringsmaatskappy Bpk 132 said that one should give
sufficient weight to the impulsiveness of children due to their lack of
maturity.
PAUSE FOR The reasonable-person standard and the negligent child

Although the reasonable-person standard leaves scope for sensitivity regarding
REFLECTION
various levels of intellect and skill, there is no sensitivity regarding the negligent
child. Should our law recognise a reasonable-child test?
Haffejee v South African Railways and Harbours133

The plaintiff claimed damages on behalf of his son, Ahmed, who was injured by a train when he was ten
years old. The plaintiff’s house was about 150 m from a railway line, and the street they lived in crossed
the railway line. This crossing was also a pedestrian crossing. Ahmed had been playing ball with friends
when an older boy came along and ran off with the ball. Ahmed chased after the older boy. They ran
along a footpath towards the pedestrian level crossing and ran blindly in front of a moving train. Ahmed
was ‘pulled along’ by the train and flung into the bushes.
The Court first assessed whether Ahmed was accountable at the time of the accident. The Court found
that, despite the fact that Ahmed sometimes acted like a child of seven, he had the capacity to
appreciate the dangers associated with railway lines and trains, and that he had the ability to adjust his
actions accordingly. Having found that Ahmed was indeed accountable, the Court had to assess his
negligence on the same basis as if he were an adult. Since Ahmed was aware of the dangers and able
to act according to that awareness, and since he ‘ran blindly into the train’ with his mind set on
retrieving his ball, his conduct was, on an objective assessment, negligent and it was the cause of his
injuries. Once they had established negligence, the Court addressed the issue of contributory
negligence134 on the part of the defendant. The Court considered factors such as the dense vegetation
around the railway line, which may have meant that Ahmed did not see the train approaching, the fact
that there was no warning mechanism such as a light to warn people crossing the line, as well as the
fact that the railway line ran through a densely populated area and the presence of children ought to
have been foreseen, especially with the special duty of care that arises with regard to children. The Court
decided that damages should be shared equally between the plaintiff and defendant.
COUNTER The accountability of children

Compare the Haffejee case with the Hendricks case discussed under
POINT
accountability. In Haffejee, the child was ten years old at the time of the injury. In
Hendricks, the child was eleven years and eight months old. Yet in Haffejee the
child who ran in pursuit of his ‘stolen’ ball was found to be accountable and 50%
contributorily negligent. In Hendricks, the child was found not to be accountable
due to a child-like fascination with glass insulators and therefore no liability
could be attributed to the child. Both cases deal with the child-like
preoccupation with the situation that the children found themselves in, yet the
outcomes of the two cases are dramatically different. The pressing question here
is whether the law should extend the recognition of youthful weakness to the
question of culpability by perhaps recognising a ‘reasonable child’ standard.

The plaintiff bears the onus of proving, on a balance of probabilities, that
the defendant acted negligently.135 In cases where there is a statutory
presumption of negligence, the defendant bears the burden of rebutting
that presumption.136
In some instances the facts of the case are such that one can draw an
inference of negligence. Here, the maxim res ipsa loquitur, translated as
‘the matter speaks for itself’, applies. For example, this maxim will apply
when someone is driving on the wrong side of the road. Such a situation
normally would not occur without negligence. The res ipsa loquitur
maxim does not create a presumption of negligence, since the plaintiff
still bears the onus of proof.137 The plaintiff can rely on this maxim to
convince the court of the defendant’s negligence. Where more than one
reasonable possibility can be inferred from the facts, the decision will
depend on the probabilities of the case, and the court will normally hear
evidence to indicate the most probable possibility.138
Sometimes a plaintiff cannot produce sufficient evidence of
negligence, but the matter at hand is peculiarly in the knowledge of the
defendant. In such cases, less evidence is necessary to make a prima facie
case, because once the plaintiff has put forward all available evidence,
the defendant bears an evidentiary burden to indicate that the conduct in
question complied with the necessary standard of care.139
An irrebuttable presumption of negligence exists where, for example,
a defendant keeps a wild animal in captivity.140
Figure 8.3Fault
8.6 Conclusion
The general term ‘fault’ denotes both intention and negligence, and
proof of fault is concerned with blameworthiness on the part of
defendants. However, before blameworthiness can be established, there
must be capacity for fault on the part of a defendant. Therefore, the first
step towards establishing fault is to determine whether the defendant is
accountable.
Blameworthiness of plaintiffs, who contributed to their own loss due
to intention or negligence on their own part, involves an enquiry into
contributory fault that could lead to a reduction of the plaintiff’s
damages.141
1 Intention and negligence have the same meaning in delict as in criminal law.
2 1993 (3) SA 131 (A) at 154D.
3 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 403.
4 1983 (1) SA 381 (A).
5 At 399H–400A.
6 At 400E–G.
7 At 400B–E (our translation).
8 2005 (5) SA 503 (SCA).
9 1983 (1) SA 381 (A).
10 1987 (1) SA 940 (A) at 958G–I.
11 1987 (1) SA 940 (A).
12 R v Victor 1943 TPD 77.
13 1981 (1) SA 1097 (A).
14 See Chapter 10.
15 15 Winterbach v Masters 1989 (1) SA 922 (E) at 925H.
16 1987 (1) SA 940 (A).
17 1980 (3) SA 24 (C).
18 Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A); Minister of Justice v
Hofmeyr 1993 (3) SA 131 (A).
19 Luxuria, or conscious negligence, is purely a form of negligence because it is assessed in
terms of an objective test where the wrongdoer’s conduct is measured against the standard
of a reasonable person. The question in luxuria cases would be whether the reasonable
person, in the same situation as the defendant, would have proceeded to act when realising
that another harmful consequence might occur. See the discussion of the test for
negligence.
20 S v Humphreys 2015 (1) SA 491 (SCA).
21 2016 (2) SA 317 (SCA).
22 Para 26.
23 Para 31.
24 Para 32.
25 Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) at 403C.
26 Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A) at 396.
27 Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A); Maisel v Van Naeren
1960 (4) SA 836 (C).
28 1960 (4) SA 836 (C).
29 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC) para 39.
31 Minister of Justice v Hofmeyer 1993 (3) SA 131 (A).
32 Pauw Persoonlikheidskrenking en Skuld in die Suid-Afrikaanse Privaatreg – ‘n
Regshistoriese en Regsvergelykende Ondersoek (1976) at 194–196.
33 1993 (3) SA 131 (A).
34 At 154H–I.
35 Du Bois (Ed) Wille’s Principles of South African Law 9 ed (2009 revised impression) at 1129.
37 Gluckman v Schneider 1936 AD 151 at 159.
38 S v Hartmann 1975 (3) SA 532 (C).
40 See, for example, Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) at 401–
402.
41 See, for example, Delange v Costa 1989 (2) SA 857 (A) at 861.
42 Van der Walt and Midgley Principles of Delict 4 ed (2016) para 147, fn 6.
43 Minister van Veiligheid en Sekuriteit v Kyriacou 2000 (4) SA 337 (O) at 341J–342C; S v
Motsepe 2015 (5) SA 126 (GP) para 21.
44 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).
45 1960 (4) SA 836 (C).
46 1916 TPD 114.
47 S v Chretien 1981 (1) SA 1097 (A).
48 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 410–411.
49 Herschel v Mrupe 1954 (3) SA 464 (A) at 490.
50 2000 (1) SA 827 (SCA).
51 1966 (2) SA 428 (A). This test was reformulated in Mukheiber v Raath 1999 (3) SA 1065
(SCA).
52 1966 (2) SA 428 (A).
53 At 430.
54 1966 (2) SA 428 (A).
55 1966 (2) SA 428 (A).
56 2004 (3) SA 305 (SCA) at 325E–G.
57 Res ipsa loquitur can be translated as ‘the matter speaks for itself’. It is relevant in proving
negligence. See the discussion at the end of this chapter on proving negligence.
58 1973 (4) SA 523 (RA).
59 Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827
(SCA) para 23.
60 Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A).
61 Boberg The Law of Delict, Vol 1: Aquilian Liability (1984) at 276–277.
62 2011 JDR 0250 (SCA).
63 Para 13 (footnotes omitted).
64 1992 (3) SA 158 (C) at 163.
65 2000 (1) SA 827 (SCA).
66 Lomagundi Sheetmetal and Engineering Co (Pvt) Ltd v Basson 1973 (4) SA 523 (RA) at 525;
Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) paras 62–63; Jacobs v
Transnet Ltd t/a Metrorail 2015 (1) SA 139 (SCA) paras 6–9; Minister of Justice and
Constitutional Development v X [2014] 4 All SA 586 (SCA); 2015 (1) SA 25 (SCA) para 34.
67 Bolton v Stone [1951] AC 850.
68 1973 (4) SA 523 (RA).
69 Green v Naidoo 2007 (6) SA 372 (W) paras 38–44.
70 1994 (1) SA 803 (T).
71 At 809H.
72 At 810F–G.
73 2000 (1) SA 827 (SCA).
74 1966 (2) SA 428 (A).
75 1999 (3) SA 1065 (SCA). This formulation is a classic exposition of the relative approach to
negligence.
76 Paras 22 and 25.
77 As quoted by Streicher JA at 845 para 3 from Groenewald v Groenewald 1998 (2) SA 1106
(SCA) at 1112I–J.
78 Ngubane v South African Transport Services 1991 (1) SA 756 (A); Shabalala v Metrorail 2008
(3) SA 142 (SCA).
79 Kruger v Coetzee 1966 (2) SA 428 (A) at 431G-432D.
80 1970 (2) SA 528 (RA).
81 See also Kruger v Coetzee 1966 (2) SA 428 (A) where the Court held that the plaintiff had the
onus of proving negligence, which includes the burden of indicating which reasonable
precautions the defendant should have taken. See also Avonmore Supermarket CC v Venter
2014 (5) 399 (SCA) para 20.
82 Ngubane v South African Transport Services 1991 (1) SA 756 (A); Cape Metropolitan Council
v Graham 2001 (1) SA 1197 (SCA).
83 Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson 1973 (4) SA 523 (RA).
84 1991 (1) SA 756 (A).
85 At 758I–J.
86 2001 (1) SA 1197 (SCA).
87 2008 (5) SA 146 (SCA).
88 2008 (5) SA 146 (SCA).
89 1966 (2) SA 428 (A).
90 2008 (3) SA 142 (SCA).
91 1970 (2) SA 528 (RA).
92 1966 (2) SA 428 (A).
93 2008 (5) SA 146 (SCA).
94 2008 (3) SA 142 (SCA).
95 1966 (2) SA 428 (A).
96 See section 8.5.3.
97 See, for example, Colman v Dunbar 1933 AD 141 at 157.
99 Moore v Minister of Posts and Telegraphs 1949 (1) SA 815 (A); Van As v Road Accident Fund
2012 (1) SA 387 (SCA).
100 Faiga v Body Corporate of Dumbarton Oakes 1997 (2) SA 651 (W).
101 Stewart v City Council of Johannesburg 1947 (4) SA 179 (W).
102 Swart v Department of Economic Affairs, Environment and Tourism (Eastern Cape) [2001] 2
All SA 357 (E).
103 Van der Walt and Midgley (2016) para 165; Neethling and Potgieter Neethling-Potgieter-
Visser Law of Delict 7 ed (2015) at 143.
104 Msutu v Protea Assurance Co Ltd 1991 (1) SA 583 (C).
105 Brown v Hunt 1953 (2) SA 540 (A).
106 Bonthuys v Visagie 1931 CPD 75.
107 Colman v Dunbar 1933 AD 141.
109 Neethling v President Insurance Co Ltd 1978 (2) SA 744 (T) at 745; Pringle v Administrator,
Transvaal 1990 (2) SA 379 (W) at 395–396.
110 Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A).
111 See section 8.5.5.1.
112 Van der Walt and Midgley (2016) para 164; Neethling and Potgieter (2015) at 157–158.
113 Clairwood Motor Transport Co (Pty) Ltd v Akal & Sons 1959 (1) SA 183 (N); Bekker v Du Toit
1974 (3) SA 248 (O).
114 Van der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE).
115 Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (E); Checkers Supermarket v Lindsay
(123/08) [2009] ZASCA 26; 2009 (4) SA 459 (SCA); [2009] 3 All SA 487 (SCA) (27 March 2009).
116 Roelse v Commercial Union Assurance Co of SA Ltd 1981 (1) SA 1126 (A).
117 Santam Insurance Co Ltd v Nkosi 1978 (2) SA 784 (A); Knouwds v Administrateur, Kaap 1981
(1) SA 544 (C).
118 Road Accident Fund v Landman 2003 (1) SA 610 (C).
119 1978 (2) SA 784 (A).
120 Simon’s Town Municipality v Dews 1993 (1) SA 191 (A).
121 1941 AD 230.
122 At 245.
124 Clarke v Welsh 1975 (4) SA 469 (W).
125 Van Wyk v Lewis 1924 AD 438; Castell v De Greeff1993 (3) SA 501 (C); Mukheiber v Raath
1999 (3) SA 1065 (SCA).
126 Van Wyk v Lewis 1924 AD 438 at 444.
127 At 460.
128 Van der Walt and Midgley (2016) para 171, fn 38.
129 1924 AD 438.
130 Lentzner NO v Friedmann 1919 OPD 20.
131 1965 (2) SA 542 (A).
132 1983 (1) SA 381 (A).
133 1981 (3) SA 1062 (W).
134 We discuss contributory negligence in Chapter 35.
135 Ntsala v Mutual & Federal Insurance Co Ltd 1996 (2) SA 184 (T) at 190.
136 Gouda Boerdery BK v Transnet Ltd 2005 (5) SA 490 (SCA); see also Eskom Holdings Ltd v
Hendricks 2005 (5) SA 503 (SCA) where Eskom did not succeed in rebutting the
presumption of negligence.
137 Stacey v Kent 1995 (3) SA 344 (E) at 352.
139 Jamneck v Wagener 1993 (2) SA 54 (C) at 65.
140 Zietsman v Van Tonder 1989 (2) SA 484 (T) at 492.
141 See Chapter 35, where the issue of the consequences of a plaintiff’s contributory fault is
addressed.
Chapter 9
Wrongfulness
9.1 Introduction
9.5 Wrongfulness presupposes both conduct and consequences, which do not necessarily occur
simultaneously
9.7 The general criteria for determining wrongfulness: Pathways to policy
9.13 Is wrongfulness determined with hindsight (ex post facto) or from the perspective of the
defendant at the time of the relevant conduct with foresight (ex ante)?
9.13.1 Involvement of a strictly ex post facto perspective and exclusion of an ex ante or actor-
oriented perspective
9.13.3 The nature of fault is in some cases relevant to wrongfulness
9.13.4 Wrongfulness and negligence are sometimes based on similar factors
9.14 Conclusion
9.1 Introduction
Wrongfulness is closely linked to the central idea of the law of delict,
which is that liability is imposed when a person unreasonably causes
harm to another.
TERMINOLOGY Wrongfulness and unlawfulness

The terms ‘wrongfulness’ and ‘unlawfulness’ are interchangeable. In the
law of delict, both these terms have a special, technical meaning. They
indicate that causing harm to another person is sufficiently unreasonable
or unacceptable for the law of delict to impose liability, as long as the
other requirements for such liability are also met. In this book, we use
the terms ‘wrongful’ and ‘wrongfulness’, but they are interchangeable
with the terms ‘unlawful’ and ‘unlawfulness’. If the term ‘unlawful’ is
more commonly used, as in the case of the delict of ‘unlawful
competition’, one uses this expression, although technically, ‘wrongful
competition’ would also be correct.
Some of the aspects of wrongfulness that we discuss in this chapter have

been hotly debated. These include the relationship between
wrongfulness and negligence, whether wrongfulness is determined with
hindsight, and the nature of the duty that is often the subject matter of
the enquiry into wrongfulness.1
In most legal systems the concept of wrongfulness exists, but there is
no uniformity in how to use the expression. In a broad sense,
wrongfulness indicates the infringement of an interest worthy of legal
protection. However, this description is so wide that it could refer to the
concept of delictual liability generally.
In South Africa, wrongfulness is a requirement for delictual liability, in
addition to the following other requirements for liability in delict:
• The conduct requirement is used to establish the presence of human
conduct in the form of positive conduct or an omission. An omission
involves enquiring whether a duty not to cause harm exists. This is a
wrongfulness issue: The question is whether the harm fell within the
defendant’s scope of responsibility, so that society would regard
failure to prevent the harm as wrongful.
• The harm requirement deals with the effects of the infringement of a
right or interest. However, it does not explain what interests the law
of delict will protect or to what extent it will protect these interests.
Physical integrity and tangible property are generally recognised as
fully protected interests, and the infringement of these interests by
positive conduct can be said to be prima facie wrongful. Boberg2 says
in this regard:
… it is settled law that all harm to person or property caused by a positive act is prima facie
wrongful.
• However, in the case of pure financial loss, privacy, reputation and

mental distress, the extent of protection is often a question of
wrongfulness.
• The requirements of conduct, causation, harm and fault do not
adequately deal with balancing conflicting rights or interests, for
example, reputation versus free speech, enjoyment of property
versus harm to a neighbour, freedom of competition versus harm to
trading goodwill, and freedom of action versus a duty to protect.
Balancing these rights or interests is a wrongfulness issue.
• The conclusion that the defendant’s conduct culpably (negligently or
intentionally) caused the plaintiff’s harm is not sufficient for liability.
This is because one could in certain circumstances justify causing
harm that would otherwise be wrongful, for example, on the basis of
defence, necessity, consent or statutory authority. Justification is a
question of wrongfulness.
• The requirement of fault (negligence or intent) generally deals with
the blameworthiness of the defendant’s conduct, but not with the
weight given to intent or reprehensible motive of the defendant.
Also, fault does not deal with the effects of mistakes made by the
defendant, for example, in cases of putative justification. Intent,
awareness of the possibility of harm, a reprehensible motive and
conscious negligence (recklessness) can be indicators of
wrongfulness.
• The requirements of conduct, causation, harm and fault do not leave
sufficient scope for policy considerations relating to, for example,
guarding against indeterminate liability, guarding against
hampering or disrupting public administration, the availability of an
alternative remedy, or the maintenance of free competition. Rights
and duties in delict reflect the range of protection that the law
affords. The ‘right’ to this protection is linked to the ‘duty’ of a person
to not cause loss. However, the content of both the ‘right’ and the
‘duty’ reflect a value judgement on the appropriate extent of
protection, as judicially determined. This value judgement forms
part of the enquiry into wrongfulness.
• Under a fault-based system, the requirement of either negligence or
intent acts as an important filter in evaluating whether a court
should impose liability. Where liability is strict, eliminating the fault
requirement does not mean that all risk of harm is indiscriminately
transferred to the defendant who caused the harm. Strict liability
does not mean absolute liability. It still requires wrongfulness based
on reasonableness and policy.
In Le Roux v Dey 3 Brand AJ described wrongfulness as follows:

In the more recent past our courts have come to recognise, however, that in the
context of the law of delict: (a) the criterion of wrongfulness ultimately depends on
a judicial determination of whether – assuming all the other elements of delictual
liability to be present – it would be reasonable to impose liability on a defendant for
the damages flowing from specific conduct; and (b) that the judicial determination
of that reasonableness would in turn depend on considerations of public and legal
policy in accordance with constitutional norms. Incidentally, to avoid confusion it
should be borne in mind that, what is meant by reasonableness in the context of
wrongfulness has nothing to do with the reasonableness of the defendant’s conduct,
but it concerns the reasonableness of imposing liability on the defendant for the
harm resulting from that conduct.
In Country Cloud Trading CC v MEC Department of Infrastructure
Development Gauteng 4 Khampepe J explained the function of
wrongfulness as follows:
Wrongfulness is an element of delictual liability. It functions to determine whether
the infliction of culpably caused harm demands the imposition of liability or,
conversely, whether ‘the social, economic and other costs are just too high to justify
the use of the law of delict for the resolution of the particular issue’. Wrongfulness
typically acts as a brake on liability, particularly in areas of the law of delict where it
is undesirable and overly burdensome to impose liability.
In summary, wrongfulness involves the scope of protection that the law

affords to various interests, the scope of a person’s responsibility to act
and the policy considerations that relate to whether the law of delict
should intervene. The fundamental questions in this enquiry are:
• Should a court, as a matter of policy, impose liability on the
defendant in these circumstances?
• Is it reasonable to compensate the plaintiff for the loss, and for the
defendant to bear the loss?
For a more detailed examination of the criteria for wrongfulness one
must look more closely at situations where the issue of wrongfulness
arises.

Wrongfulness does not usually cause problems in cases that involve
positive conduct causing bodily injury or damage to property. In law, all
harm to person or property caused by a positive act is prima facie
wrongful. Wrongfulness usually causes problems in cases where the
conduct is an omission or a statement, where the harm is pure economic
loss or psychiatric injury, or where there is a conflict of rights. In these
instances, courts generally use wrongfulness to determine whether the
infringement of an interest is worthy of legal protection and whether the
harm caused falls within the defendant’s scope of responsibility. In
instances that involve a conflict of rights, determining wrongfulness
requires a value judgement on the question of which right should yield to
the other.
In contentious cases, wrongfulness involves applying wide and
general criteria. The general criteria for determining wrongfulness are:
• Reasonableness (sometimes referred to as ‘general reasonableness’)
• The legal convictions prevailing in the community
• Society’s boni mores.
Applying these criteria in the final instance involves public policy, as we

explain more fully in section 9.7.

Wrongfulness is not an attribute of conduct alone. It characterises the
outcome of a sequence that involves conduct and the harm caused by the
conduct. Without harmful consequences, there is no wrongfulness and
no delict, however reprehensible the conduct in question may be. For
example, driving at high speed down a busy street is reckless and
reprehensible conduct, but if a person causes no harm by doing this,
there is no wrongfulness and accordingly no delict.
PAUSE FOR Wrongfulness and conduct

REFLECTION Walker, commenting on the law of Scotland, writes:5
The act or omission by itself is not wrongful or delictual unless it

brings about as an immediate consequence some harm to a legally
protected interest of another person. The law of delict is concerned
with harms, with wrongs to, or infringements of, the interests of
others, not with the bare conduct whereby those harms come about.
In this respect the law of delict differs from criminal law. In criminal law,
a particular act is sometimes prohibited and therefore characterised as
wrongful, for example, driving dangerously or possessing a prohibited
substance. Where a crime is mainly defined in terms of a particular
causal sequence, for example, culpable homicide, involving negligently
causing the death of a human being, wrongfulness characterises the
outcome of this sequence, which involves conduct and the harm it
causes, as in the case of delict.
In Cape Empowerment Trust Limited v Fisher Hoffman Sithole 6
Brand JA confirmed that wrongfulness in delict indicates the
reasonableness of imposing liability:
… it should be borne in mind that, what is meant by reasonableness in the context
of wrongfulness has nothing to do with reasonableness of the defendant’s conduct
[which is part of the element of negligence], but it concerns the reasonableness of
imposing liability on the defendant for the harm resulting from that conduct.
Wrongfulness is therefore not only an attribute of conduct. The

misconception that wrongfulness is an attribute of conduct is reflected in
expressions such as ‘wrongful conduct’ or ‘a wrongful act’. Increasingly
the use of these expressions reflects looseness or inaccuracy of
terminology, rather than attempts to convey the meaning that
wrongfulness is only an attribute of conduct.
9.5 Wrongfulness presupposes both conduct and

consequences, which do not necessarily occur
simultaneously
Wrongfulness takes into account both the defendant’s conduct and the
consequences of this conduct. The conduct and its consequences may
not happen at the same time or the same place. For example, an assault
may cause immediate injury, whereas the effects of building an unsafe
wall may not be seen until much later, when the wall collapses. In RAF v
Mtati 7 negligent driving caused an accident in which a pregnant woman
was injured. She later gave birth to a child with brain damage. The
Supreme Court of Appeal decided that the harm occurred when the child
was born with injuries. The completed causal sequence at that time was
characterised as wrongful.

Wrongfulness is a matter of law.8 Courts usually do not hear evidence on
the issue of wrongfulness. The onus is on the plaintiff to make and prove
factual allegations from which wrongfulness, which is a matter for
judicial determination, can be deduced.9
A defendant who relies on justification for causing harm bears the
onus to allege and eventually present factual evidence that would enable
one to draw an inference of such a justification. Justification is part of the
enquiry into wrongfulness and is a conclusion of law.
PAUSE FOR Wrongfulness must be pleaded

The plaintiff in a delict action must allege the following in the particulars of the
REFLECTION
claim:
• Wrongfulness
• Facts that indicate that the harm caused is wrongful
• Facts that substantiate the relevant policy considerations.10
If the plaintiff does not make these allegations, the defendant can raise an
exception on the basis that the pleadings do not disclose a cause of action. A
court must then decide whether the allegations of fact, if proved, would establish
that the defendant wrongfully caused harm. When deciding wrongfulness in
exception proceedings, courts assume that the other elements of the delict, such
as causation and negligence, are present, as alleged.11
The following are examples of cases where the issue of wrongfulness was
decided by way of exception:
• Engineers negligently failed to carry out their professional duties in terms
of a contract for building a glass factory. This meant that expensive
additional work had to be done on the factory. The Court decided that the
facts alleged did not indicate wrongful causing of harm for the purposes of
delict. The factory owner (plaintiff) could only sue the engineers in
contract. 12
• A civil engineering contractor, who negligently cut a cable supplying
electricity to a brick factory, caused harm in the form of loss of production
to the factory owner. The contractor cut the cable during excavation work
and the factory owner (plaintiff) alleged that the contractor knew where
the cable was, and also knew that the factory would lose production if he
cut the cable. The Court decided that the facts alleged indicated wrongful
causing of harm.13
• Engineers negligently recommended an inadequate system of
waterproofing for aquarium tanks. The result was that later expensive
additional work had to be done on the aquarium. The alleged negligence
of the engineers occurred before the parties entered into a detailed
contract. The contract could have provided for liability arising from the pre-
contractual work, but it did not. The aquarium owners, therefore, sued in
delict, but the Court decided that the causing of harm in the pre-
contractual phase was not wrongful for the purposes of delict.14
9.7 The general criteria for determining wrongfulness:
Pathways to policy
Applying the general criteria or standards for determining wrongfulness
(general reasonableness, the legal convictions prevailing in the
community and the boni mores) in the final instance involves public
policy and a value judgement. A number of judgments acknowledge that
the decisions in them were determined or influenced by policy
considerations.
The legal policy makers of the community, such as the legislature
and judges must take on board the legal convictions of the community.
There is constant interplay between the legal concept of wrongfulness
and the fundamental values of society. The general criteria, or standards,
for determining wrongfulness are of a legal rather than a social, moral,
ethical or religious nature, but the criteria do reflect societal values. In
applying the legal convictions of the community, a court is concerned
with whether the community should regard the harm caused in a
particular case as wrongful for the purposes of delictual liability. It is not
concerned with what the community regards as socially, morally,
ethically or religiously right or wrong. However, sometimes, this involves
a choice between two moral concepts, neither of which is wrong, for
example, between the two concepts that one should respect the privacy
of others, and that one should speak out on matters of public interest. In
such instances a court has to decide which concept, based on the
particular set of facts, should be given preference when it comes to legal
protection.
When enquiring into wrongfulness, one can either focus on the
infringement of a right or on the breach of a legal duty. In the final
analysis, the decision involves an assessment of reasonableness and
public policy. A court must weigh up the interests of the people involved,
and also take into account the interests and convictions of the
community. The personal views of the judge, the parties, or a segment of
the community are not the measure of what one should regard as lawful
or wrongful.
The meaning of general reasonableness, boni mores and the legal
convictions of the community should agree with the norms and values in
the Constitution.
PAUSE FOR Constitutional norms

Consider how the constitutional norms of equality, non-discrimination, personal
REFLECTION
security, and accountability of public officials have contributed to the
assessment of wrongfulness in the cases in Table 9.1.
Table 9.1 Constitutional norms contribute to the assessment of wrongfulness
Case Details Assessment
Du Plessis v Road Accident The right to support between partners in a same-sex Wrongful
Fund relationship can form the basis of a claim for loss of causing of
support against the person who negligently caused the harm by
death of one partner infringement of
right
Carmichele v Minister of Police and prosecutors failed to oppose the release of a Wrongful
Safety and Security (Centre person with a prior conviction for violence, while awaiting causing of
for Applied Legal Studies trial on a new charge harm by
Intervening) breach of duty
Minister of Safety and The police failed to deprive a person of his firearms and Wrongful
Security v Van Duivenboden licence, although they knew that he was prone to violence causing of
when drunk harm by
breach of duty
Minister of Safety and The police failed to enquire into the psychological fitness of Wrongful
Security v Hamilton an applicant for a firearm licence causing of
harm by
breach of duty
Van Eeden v Minister of Police allowed a prisoner with a history of violent crime to Wrongful
Safety and Security escape, resulting in a further assault on the plaintiff causing of
harm by
breach of duty
The concepts of the legal convictions of the community and boni mores
indicate objective and normative standards for determining
wrongfulness. Courts do not hear evidence on the content of the legal
convictions of the community or the boni mores. These are general
guidelines for the value judgement required of a court when assessing
wrongfulness. These general criteria provide courts with ‘a legal standard
firm enough to afford guidance to the Court, yet flexible enough to permit
the influence of an inherent sense of fair play’, and this standard is based
on ‘the general sense of justice of the community, the boni mores,
manifested in public opinion’.15
However, conclusions on wrongfulness based only on the general
standards risk being vague and difficult to analyse. Applying these
general standards requires an open and structured process of reasoning,
with reference, inter alia, to:
• The specific rights and interests involved
• The relationship between the parties
• Relevant provisions of the Constitution and of other legislation
• Relevant policy considerations.

The enquiry into wrongfulness can focus either on the infringement of a
right, or on the breach of a duty. One can look at wrongfulness from
either of these two angles and it does not really matter which angle one
prefers or starts off with. This is because rights and duties are related, and
a breach of a duty will, at the same time, constitute an infringement of a
right. The choice of which to use depends upon the facts and whether it is
easier to recognise the right or the duty.
Rights to person and property are settled and easy to recognise.
Courts work from the premise that causing harm by infringing these
rights is wrongful, without finding it necessary to refer to the general
criterion of reasonableness, the boni mores, the legal convictions of the
community or concomitant policy considerations. It is settled law that
harm to person or property caused by a positive act is prima facie
wrongful. In the absence of some form of justification, such as self
defence or necessity, the infringement of such rights is wrongful.
The rights-based approach to wrongfulness mostly involves the
following settled categories of rights:
• Real rights in respect of movable or immovable property
• Personal rights in respect of an act or performance required from
another person, such as payment of a debt
• Personality rights in respect of aspects of human personality, such as
bodily integrity, dignity or reputation
• Immaterial property rights in respect of intangible products of the
human mind, such as patents, trademarks or copyright.
There is no closed list of protected rights, however, and one can also add
sub-categories or new categories of rights to these settled categories,
such as:
• Personal immaterial property rights in the form of the right to

earning capacity or personal goodwill
• The right to information
• The rights to privacy, identity, goodwill and trade secrets.
Infringement of a right involves disturbing or limiting the holder of the

right to enjoy, use or dispose of the interest that is the object of the right.
Examples of infringements of rights include:
• Damaging or appropriating property that belongs to another

• Causing a breach of privacy or damage to reputation
• Appropriating a patented process or a trademark.
Factual disturbance or limitation, however, is not enough. The

infringement must be unreasonable in terms of general criteria or
standards based on boni mores, the legal convictions of the community
and public policy. One often needs to apply these general criteria to
balance conflicting rights or interests, such as reputation versus free
speech, and enjoyment of property versus harm to a neighbour.
Figure 9.1 Wrongfulness and Infringement of a right

The enquiry into wrongfulness often focuses on whether a duty exists,
especially in cases where it is not easy to identify a right. It is easier to
look at the issue from a duty point of view. This occurs where the
defendant is blamed for an omission (failure to prevent harm to another
person), for causing financial loss by misstatement or unsound advice, or
where breach of a statutory duty is involved. Breach of a legal duty to
another person also involves infringement of their right not to be
harmed, because to every obligation there is a right and a duty side, and a
legal duty is the converse of a right. Assessing wrongfulness from the duty
side simply involves a difference in the initial focus of the enquiry. The
general criterion for determining wrongfulness remains the same:
whether the defendant unreasonably, or contrary to the boni mores or
the legal convictions of the community, failed to prevent harm to the
plaintiff.
The breach-of-legal-duty cases involve situations in which one
cannot say that the harm is prima facie wrongful, as there is no clear right
to be protected from such harm or loss.16 The focus is on the existence of
a duty. Prominent examples of such cases are liability for an omission
and liability for causing financial loss. In these cases, the enquiry often
turns on responsibility and relationship issues. Typical are claims:
• By a resident against a local authority for failing to repair a public
facility or warn of danger17
• By a member of the public against the police for failing to provide
protection18
• By a customer against a bank for furnishing incorrect information or
making an incorrect payment19
• By a client against a financial advisor for carelessly handling
investments20
• By a patient against a doctor for inadequate professional services.21
In these cases the concept of duty ties in with the general function of the
enquiry into wrongfulness. The general function is to determine whether
the affected interest of the plaintiff (judged either on its own or in balance
with a conflicting interest of the defendant) deserves protection from the
defendant’s action or lack of action, so that the burden of bearing the loss
should be shifted from plaintiff to defendant.
Figure 9.2 Wrongfulness and breach of a duty

In this section we examine how the courts’ approach to the concept of
‘duty’ has developed over time, and how the modern concept of ‘legal
duty’ for determining wrongfulness differs from the concept of a ‘duty of
care’ as used in earlier South African cases, influenced by English law.
PAUSE FOR The concept of ‘duty of care’ in English law

REFLECTION This concept is described by Van der Walt and Midgley22 as:
Under the influence of the classic English doctrine of ‘duty to take

care’, courts have customarily described the duty as a duty to take
reasonable care, or to conform to a certain standard of conduct.
However, such an approach is not tenable in terms of a theoretical
structure of delict which requires a distinction between the elements
of wrongfulness and fault. The duty to take care, or to act reasonably,
or not to act negligently, is a separate and independent duty,
concerned with establishing whether or not the defendant was at
fault, and which arises only after it has been established that the
defendant was in breach of a legal duty not to harm the plaintiff. It is
therefore incorrect to express the legal duty in terms of a standard of
care and furthermore confusing to formulate of the standard of care
required in the particular case in terms of duty – for example, [that a
defendant has a legal duty to act without negligence, or] that the
motorist was under a duty to stop at a stop-street.
In some earlier South African cases courts dealt with questions of

wrongfulness by following the ‘duty of care’ approach of English law.
Their view was that harm is not actionable unless the defendant has a
‘duty of care’ not to cause harm, and that the duty of care is essentially
based on foreseeability. Boberg said that this contentious approach
‘brought trouble and strife’,23 and the approach has attracted criticism on
the basis that the concept of a ‘duty of care’ is an unnecessary and
misleading import from English law, which confuses negligence and
wrongfulness.
A typical example of the earlier ‘duty of care’ approach of our courts
is that of Schreiner JA in Union Government v Ocean Accident &
Guarantee Corporation Ltd.24 In this case, the Court refused the claim of
an employer for economic loss that resulted from the defendant
negligently injuring an employee. Schreiner JA said the following:
The expression ‘duty of care’ has sometimes been criticised as introducing an
unnecessary complication into the law of negligence, but, apart from the fact that it
is endorsed by considerable authority in this Court, it is so convenient a way of
saying that it is the plaintiff himself and no other, whose right must have been
invaded by the careless defendant, that the complication seems rather to be
introduced by the effort to avoid its use. The duty of care is in our case law rested
upon foreseeability and this gives rise to a measure of artificiality. But this is really
unavoidable for, if there is to be control over the range of persons who may sue, the
test must be that of the reasonable man; what he would have foreseen and what
action he would have taken may not be calculable according to the actual weighing
of probabilities, but the device of reasoning on these lines helps to avoid the
impression of delivering an unreasoned moral judgment ex cathedra as to how the
injurer should have behaved. The duty of care fits conveniently into the reasoning
process and even if it is no more than a manner of speaking it is a very useful one.
The ‘duty of care’ approach as set out in the Union Government case is
based on the test of the reasonable person. The test asks if harm was
reasonably foreseeable and what action a reasonable person would have
taken to prevent harm. This enquiry into ‘duty’ is very similar to the test
for negligence. It uses the flexible concept of foreseeability, which,
although it ‘may not be calculable according to the actual weighing of
probabilities’, allows courts to avoid ‘an unreasoned moral judgment ex
cathedra’. This approach combines wrongfulness and negligence, and
uses the flexible concept of foreseeability to cover value judgements and
policy considerations that often remain unexpressed.
In later cases courts moved away from applying the concept of a
‘duty of care’ in the context of wrongfulness. Instead, they focused the
enquiry on whether a ‘legal duty’ existed. However, the current ‘legal
duty’ terminology has not produced a uniform approach concerning the
role of foreseeability of harm in the enquiry into wrongfulness.
Foreseeability of harm is a concept that is central to negligence, and
central to the ‘duty of care’ concept of English law. Using this concept to
determine wrongfulness tends to blur the distinction between these two
elements of delict.
The judgment of Lewis JA in Premier, Western Cape v Faircape
Property Developers (Pty) Ltd 25 is a more recent example of using
foreseeability as a determinant of wrongfulness: 26
The foreseeability of harm to the plaintiff is also ‘a relevant consideration in the
determination of lawfulness’ … . Accordingly, even if it were to be found that the
Minister’s conduct had been negligent, this would not entail, necessarily, a finding
that it was also wrongful. One must ask whether it was wrongful … . In answering
that question one must consider also, therefore, whether the Minister should have
foreseen that his conduct might cause prejudice or loss … .
One of the enquiries, then, for determining whether the Minister was under a legal
duty to prevent harm … is whether the Minister should have foreseen that his
conduct ‘might endanger or prejudice others in regard to their legally protected
interests’. A similar question is inevitably repeated when one is determining the
issue of negligence. In the context of determining wrongfulness, the question
relates only to whether there should be a legal duty imposed on the Minister not to
infringe a legal interest of an applicant. And it is but one of several enquiries that
must be pursued in order to determine whether, as a matter of legal policy, an
official or member of government should be visited with liability for damages.
Would a reasonable Minister have foreseen that an applicant for the removal of
restrictions would be prejudiced or would suffer loss if the application were
granted? Again, the answer must be no.
According to Lewis JA, the question of foreseeability is ‘inevitably

repeated’ in the enquiries into wrongfulness and negligence. For
wrongfulness, ‘it is but one of several enquiries that must be pursued’ to
determine whether, as a matter of legal policy, liability for damages
should be imposed. She does not explain why foreseeability must be
determined twice. Perhaps it is the same question that is asked twice, or a
‘similar question’, or the same question is asked with a different purpose
in mind. She also does not explain how wrongfulness can properly
indicate in which cases of negligently caused harm liability should be
imposed, if it shares a central attribute with negligence.
Another example of the foreseeability-based approach to
wrongfulness is this passage in the judgment of Scott JA in Gouda
Boerdery BK v Transnet Ltd: 27
… Where the element of wrongfulness gains importance is in relation to liability for
omissions and pure economic loss. The inquiry as to wrongfulness will then involve
a determination of the existence or otherwise of a legal duty owed by the defendant
to the plaintiff to act without negligence: in other words to avoid negligently causing
the plaintiff harm. This will be a matter for judicial judgment involving criteria of
reasonableness, policy and, where appropriate, constitutional norms. If a legal duty
is found to have existed, the next inquiry will be whether the defendant was
negligent … . The courts have in the past sometimes determined the issue of
foreseeability as part of the inquiry into wrongfulness and, after finding that there
was a legal duty to act reasonably, proceeded to determine the second leg of the
negligence inquiry, the first (being foreseeability) having already been decided. If
this approach is adopted, it is important not to overlook the distinction between
negligence and wrongfulness.
According to Scott JA, the question of foreseeability is ‘sometimes’

determined as part of the enquiry into wrongfulness. If the court finds
there was a legal duty to act reasonably, the second part of the negligence
enquiry follows (the first part was deciding foreseeability). This seems to
indicate a split enquiry into negligence: the first part of the enquiry is
combined with the enquiry into wrongfulness, and the second part
stands on its own. Scott JA does not explain why this makes sense
logically or what the practical benefits are.
In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA28 Harms JA said the following in this regard:
But the fact that an act is negligent does not make it wrongful, although
foreseeability of damage may be a factor in establishing whether or not a particular
act was wrongful. To elevate negligence to the determining factor confuses
wrongfulness with negligence and leads to the absorption of the English law tort of
negligence into our law, thereby distorting it.
It appears from the extracts quoted that although the wrongfulness

terminology has substantially changed from ‘duty of care’ to ‘legal duty’,
courts still sometimes regard reasonable foreseeability as an indicator of
a legal duty, and thus of wrongfulness. If reasonable foreseeability is a
shared attribute of wrongfulness and negligence, then these two
elements of delict are at least partly combined. However, this
combination is denied in the judgments mentioned so far, which say that
although the elements of wrongfulness and negligence are intertwined,
they are distinct. It seems that the best explanation for this potentially
confusing approach is that foreseeability is seen as a factor that may be
relevant in the wrongfulness enquiry, and as one of two core factors one
must consider in the negligence enquiry (the other being preventability).
While foreseeability of harm is a requirement for negligence, it might not
be decisive in the wrongfulness enquiry and other factors might override
it. In some cases, foreseeability might add weight to the wrongfulness
decision.

The concept of legal duty in case law is not uniform and its descriptions
vary, for example, as a duty not to cause harm, a duty to prevent harm
and a duty to act reasonably. Some judgments and academic comments
say that where a breach of legal duty renders the negligent causing of
harm wrongful, the legal duty is a duty to act without negligence, or a
duty not to be negligent. However, to say that ‘where the breach of legal
duty renders negligent conduct wrongful, the duty is a duty to act without
negligence’ is puzzling, because breach of a duty not to be negligent is
nothing other than negligence. The statement, in effect, says that
negligence renders negligent conduct wrongful.
While it is true that liability based on negligence depends on an
obligation not to be negligent, duty is an indicator of wrongfulness in its
fullest sense and is not confined to negligence. If liability for negligence is
in issue, the legal duty owed by the defendant to the plaintiff to act
without negligence means a legal duty to avoid negligently causing the
plaintiff harm. Wrongfulness assumes that all the other requirements for
liability either have been met, or will be met. It seems that the best way to
describe the legal duty required for wrongfulness in its full sense is ‘the
legal duty not to cause harm negligently or intentionally’, or, in the case
of strict liability, simply ‘not to cause harm’.

It is public policy that determines whether a legal duty for purposes of
wrongfulness exists. In some cases this involves considering the broad
social and economic impact of imposing liability, and in others, a more
limited focus on legal and factual aspects of the relationship between the
parties. In each case, the question is whether it is reasonable for the law
of delict to shift the burden of harm from the plaintiff to the defendant.
The policy considerations that the courts take into account include the
following (with illustrative cases):
• The social or economic consequences of imposing liability – in
particular potential indeterminate liability (‘opening the
floodgates’):
◆ Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama
SA:29 The Court was unwilling to recognise a legal duty towards
the charterer of an oil tanker, who was one of an indeterminate
number of similarly placed potential claimants who suffered a
loss when there was a delay in offloading their cargo after the
defendant had negligently damaged a mooring buoy.
• The availability of alternative remedies – in particular a contractual
remedy:
♦ Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)
(Pty) Ltd:30 The Appellate Division held that a legal duty in delict
did not fit comfortably into a detailed business contract for
professional services, inter alia, because recognising an action
in delict could mean contractual terms being avoided and could
create ‘a trap for the unwary’ within the contractual
relationship. The denial of this action was limited to the case
where the alleged negligence consists of a breach of contract.
♦ Pinshaw v Nexus Securities (Pty) Ltd:31 The Court held that the
contract between an asset management company and its client
did not rule out a legal duty in delict on the part of the
company’s employee towards the client.
♦ Holtzhausen v ABSA Bank Ltd:32 The Court held that an action is
maintainable in delict for a negligent misstatement causing pure
pecuniary loss, even if a concurrent action is available in
contract.
♦ Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd:33 The Court held that public policy does not require
extension of the Aquilian action to rescue a plaintiff who should
have avoided risk of harm by contractual means, but did not.
♦ Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd:34 The
Court held that the plaintiff had an alternative claim in delict for
economic loss caused by delivery to it of spices containing a
banned colourant. The Court accepted that the same facts may
give rise to a claim for damages ex contractu and alternatively ex
delicto, but also that the breach of a contractual duty is not per
se wrongful for the purposes of Aquilian liability.35 The negligent
causing of pure economic loss is not prima facie wrongful, but in
this case, policy considerations, such as knowledge of the
potential harm, the fact that the loss was single and determinate,
and the manufacturer’s general duty to take reasonable steps to
ensure that defective products do not reach the market,
indicated wrongfulness for the purposes of delictual liability.
• The need for accountability of state departments, public bodies and
officials, which also requires considering that potential liability could
hamper persons or bodies in exercising functions in the public
interest, as in the case of tender boards or administrative tribunals:
♦ Steenkamp NO v The Provincial Tender Board of the Eastern
Cape:36 The Court refused to recognise a legal duty on the part of
the tender board towards a successful tenderer, whose tender
award was later set aside because of negligence in the process of
awarding the tender. The Court took into account, inter alia,
whether imposing liability for damages would have a ‘chilling
effect’ on the performance of administrative or statutory
functions by members of the board.
♦ Olitzki Property Holdings v State Tender Board:37 In this case,
the claim of an unsuccessful tenderer also failed. However, the
result may be different if there is fraud in the process of
awarding a tender.
♦ Minister of Finance v Gore NO:38 The Court held that negligent
conduct that caused pure economic loss was wrongful only if, as
a matter of legal and public policy, a legal duty existed,39 and
that there were no public or legal policy considerations that
dictated that the State should not be liable for the provincial
officials’ fraudulent conduct in processing a public tender.
♦ Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA:40 The Court held that the Advertising
Standards Authority of SA (the ASA) did not owe a legal duty
towards an advertiser who had suffered a loss because of an
incorrect decision by one of the ASA organs. The relevant policy
consideration is the protection of the independence of persons
or bodies with an adjudicative function to serve the public
interest, which imposes on them a duty to act impartially. These
persons or bodies (including the judiciary, arbitrators and other
administrative tribunals) should be able to adjudicate fearlessly.
The threat of an action for damages could interfere with their
prompt dealings of litigation and disputes. Although both the
person harmed and the loss suffered due to an incorrect
decision are foreseeable, negligently causing harm is not
considered wrongful.
♦ South African Hang and Paragliding Association v Bewick: 41 The
respondent was seriously injured while taking a tandem
paragliding flight. She settled claims against the pilot and his
employer, leaving the Court to decide her claims against the two
appellants, the South African Hang and Paragliding Association
and the South African Civil Aviation Authority, who exercised
direction and control over paragliding in South Africa. Tandem
paragliding for reward is illegal and the two appellants were
aware that such illegal activity was going on. The question was
whether the appellants were under a legal duty to take
reasonable steps to terminate and prevent this illegal activity,
but had negligently and wrongfully failed to do so. The question
of wrongfulness depended on whether it would be reasonable to
impose legal liability on the appellants. The Court decided it
would not be, referring to the following factors:
(a) The appellants were obliged by statute to ensure and promote the safety of civil
aviation, but it would not be reasonable to impose liability upon them for an omission
which had no direct impact on aviation safety;
(b) Identification of offending pilots would require widespread control and investigation by
inspectors appointed by the appellants, but there was insufficient evidence on available
resources, and inherent probabilities indicated that these extensive measures of control
would be unaffordable;
(c) Courts do not extend the scope of the Aquilian action to new situations unless there are
positive policy considerations which favour an extension;
(d) Courts avoid imposing liability if there is the apprehension of boundless liability; and
(e) The plaintiff had an alternative remedy: she could and did sue the pilot and his
employer.
♦ Oppelt v Department of Health, Western Cape: 42 The plaintiff
sustained a spinal cord injury during a rugby match. Over the
few hours following the injury he was treated at three hospitals
under the control of the Department of Health. Eventually he
was left paralysed below his neck, and medically classified as
quadriplegic. He claimed damages for negligence arising from
the medical treatment. His claim was based on the failure of the
three hospitals to provide him with prompt and appropriate
medical treatment. On wrongfulness the Court held that the
legal convictions of the community demanded that hospitals
and health-care practitioners must provide proficient health-
care services to members of the public. Those convictions also
demanded that those who failed to do so must incur liability.
Proficient health-care entailed providing urgent and
appropriate emergency treatment whenever a medical
condition required it.
♦ Country Cloud Trading CC v MEC, Department of Infrastructure
Development: 43 The Department of Infrastructure Development
entered into a building contract with iLima. When the project
ran into difficulties iLima borrowed R12 million from Country
Cloud. The loan agreement was subject to the condition that the
Department would repay Country Cloud's R12 million out of the
amount payable by the Department to iLima in terms of the
building contract. The Department later cancelled the building
contract, thereby committing breach of contract, and this
resulted in iLima’s liquidation and a loss to Country Cloud, who
then sued the Department in delict. The central issue was
whether the Department wrongfully caused harm to Country
Cloud. Country Cloud's claim was for pure economic harm, and
Country Cloud could not show that the Department had
wrongfully infringed its rights or had a legal duty not to cause it
economic harm. Country Cloud relied on state accountability,
but this consideration does not always give rise to a private-law
duty, particularly if, as in this case, the Department did not act
dishonestly or corruptly. Also, Country Cloud could have
attempted to take steps to protect itself against non-payment by
iLima, by claiming repayment from iLima's liquidator under the
loan agreement, or taking cession of iLima's claim for breach of
contract against the Department, or by calling for payment from
a surety.
• Constitutional rights may, in the context of the law of delict, imply a
legal duty not to cause harm or to prevent harm to another person.
Rights that may imply such a duty include the sanctity of life, the
rights to freedom and security of the person, the right to privacy, and
the right to freedom of expression. Duties may be imposed on state
officials to protect these constitutional rights:
♦ Carmichele v Minister of Safety and Security: 44 The Court based
liability on the duties of the police and prosecutors who released
a person, on his own recognisance, with a prior conviction for
violence. This person assaulted the plaintiff while he was
awaiting trial on a new charge.45
♦ Minister of Safety and Security v Van Duivenboden: 46 The Court
held that the police failed in their duty to withdraw the firearm
licence of a person prone to violence when drunk.
♦ Minister of Safety and Security v Hamilton: 47 The Court held the
police liable for failing to enquire into the psychological fitness
of the applicant for a firearm licence.
♦ Van Eeden v Minister of Safety and Security: 48 The Court held
the police liable for allowing a prisoner with a history of violent
crime to escape, who subsequently injured the plaintiff.
♦ Loureiro v iMvula Quality Protection (Pty) Ltd: 49 A private
security firm, iMvula, was held liable in delict for whatever
damages might be proved, because one of their security guards
allowed robbers masquerading as policemen to enter premises,
where they robbed the plaintiffs. Wrongfulness in delict is
determined according to the legal convictions of the
community, by weighing competing norms and interests. The
convictions of the community are underpinned and informed by
the norms and values of society, embodied in the Constitution.
The Court had to determine the convictions of a community
plagued by crime, on the issues of respect for the police and
their role and interaction with the ever-growing private security
industry. The case posed questions about the interpretation and
development of the common law and thus raised constitutional
issues concerning the public role that security companies play
in giving effect to fundamental rights. In this regard Van der
Westhuizen J concluded:50
There are ample public-policy reasons in favour of imposing liability.
The constitutional rights to personal safety and protection from theft of
or damage to one’s property are compelling normative considerations.
There is a great public interest in making sure that private security
companies and their guards, in assuming the role of crime prevention
for remuneration, succeed in thwarting avoidable harm. If they are too
easily insulated from claims for these harms because of mistakes on
their side, they would have little incentive to conduct themselves in a
way that avoids causing harm. And policy objectives (such as the
deterrent effect of liability) underpin one of the purposes of imposing
delictual liability. The convictions of the community as to policy and
law clearly motivate for liability to be imposed.
• Certain factual circumstances may indicate a duty not to cause harm

or to prevent harm, including: proportionality of the risk of harm and
the cost of prevention, control over a dangerous object or situation,
awareness of danger, prior conduct creating danger, a relationship
imposing responsibility, and professional knowledge.
♦ Administrateur, Transvaal v Van der Merwe: 51 This case
illustrates the process or reasoning involved where liability for
an omission is in issue. The Court determined whether there
was a legal duty to prevent harm by enquiring into the
proportionality of the risk of harm and the cost of prevention.
The question was whether provincial authorities had a duty, in
respect of a minor road, to make firebreaks or to take other
precautionary measures against fires breaking out and
spreading to adjoining land. The Court held that to determine
whether a positive act or an omission is wrongful, it should
weigh up, inter alia, the different interests of the parties, their
relationship with one another and the social consequences of
imposing liability in the type of case in question. Factors that
play an important role in this process are, inter alia, the
probable or possible extent of prejudice to others, the degree of
risk of such prejudice occurring, the interests that the defendant
or the community, or both have in the act or omission in issue,
whether there were reasonable measures with which the
defendant could avoid the prejudice, what the chances were of
the measures being successful, and whether the cost involved in
taking such measures was reasonably proportional to the
damage that the plaintiff could suffer. One should consider the
affordability and proportionality between the potential damage
and the potential cost of prevention when deciding the question
of wrongfulness. On applying this proportionality test, the Court
found that the Administrator’s control and supervision over all
public roads was only of a permissive nature. This meant that
under the applicable legislation, the Administrator was not
obliged to make firebreaks or take other precautionary
measures against veld fires breaking out and spreading to
adjoining land. Given the nature of the road in question, the fact
that it was seldom used, and the cost of preventative measures,
the mere fact that the Administrator exercised control and
supervision over all public roads did not in itself create a duty
for purposes of delictual liability. Without a positive danger-
creating act, being in control of property and failing to exercise
this control, resulting in prejudice to another, is not per se
wrongful. The crucial issue is whether the precautionary
measures that the controller should, according to the aggrieved
party, have taken to prevent the prejudice can in the
circumstances be reasonably and practicably required of him.
The underlying philosophy is that a consequence is only
wrongful if, after considering all circumstances, the defendant
can be reasonably expected to act.
♦ Za v Smith:52 This case involved a claim by dependents of a
person who slipped on a snow-covered mountain slope and fell
over a sheer precipice to his death. The incident occurred on a
farm owned by the first respondent, where the second
respondent conducted the business of a private nature reserve
for gain. In substance, the claim was based on delictual liability
arising from the wrongful and negligent failure by the first and
second respondents to take reasonable steps to avoid the
incident that led to the death of the deceased.
♦ On the issue of wrongfulness, Brand JA concluded:53
…In determining wrongfulness, the other elements of delictual liability
are usually assumed. Hence the enquiry is whether – on the assumption
(a) that the respondents in this case could have prevented the deceased
from slipping and falling to his death; and (b) that he had died because
of their negligent failure to do so – it would be reasonable to impose
delictual liability upon them for the loss that his dependants had
suffered through their negligence. While denying, of course, that these
assumptions could validly be made, Counsel for the respondent
conceded that, if they were true, the answer to the question posed must
be ‘yes’. I believe that this concession was rightly and fairly made. Apart
from the fact that both respondents were in control of a property, which
held a risk of danger for visitors, the second respondent, with the
knowledge and consent of the first respondent, as owner of the
property, allowed members of the public, for a fee, to make use of a
four-wheel drive route, designed to lead directly to the area which
proved to be extremely dangerous.
• The nature of the defendant’s conduct is taken into account. Causing

harm by positive conduct is more often regarded as wrongful
compared to causing harm by omission (taking into account the
context in which the conduct occurred):
♦ BOE Bank Ltd v Ries: 54 The Supreme Court of Appeal refused to
recognise an insurance broker’s legal duty towards an intended
beneficiary under a life insurance policy. The broker did not
make sure that the policy holder signed the necessary form to
nominate the beneficiary. The Court took into account that the
broker’s conduct was not an assumption of any professional
responsibility regarding signing the form. The broker had
become involved in the process in passing, by doing a favour for
a colleague. In effect, he acted as a messenger, without
undertaking any professional responsibility. Although it was
foreseeable that the intended beneficiary would not benefit
from the policy if the holder failed to sign the necessary
nomination form before he died, foreseeability of loss was not in
itself enough to indicate a legal duty.
• The nature of the interest to be protected is taken into account.
Courts more readily recognise a duty in respect of physical injury
and damage to property than a duty in respect of pure economic
loss:
♦ Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)
(Pty) Ltd: 55 The Appellate Division held that a legal duty in delict
did not fit comfortably into a detailed business contract for
professional services, inter alia, because the harm caused by the
negligent performance of the services was pure economic loss.
Table 9.2 Categories of policy factors relevant to wrongfulness
Category Factors
Factors that are • Plaintiff’s interests

always present • Defendant’s interests
• Nature of the conduct
• Nature of the loss
◆ Any reasons of policy why a remedy should not be granted in the
circumstances, for example, availability of other remedies in contract or
administrative law, and protection of independent decision-makers
Factors that • The seriousness of the injury and the size of the claim
depend on the • Foreseeability of any harm
nature of the • Expert knowledge
facts • Social consequences
• Whether reasonably practical measures were available to the defendant to avoid the
loss and the chances of their success
◆ Administrative convenience
◆ Multiplicity of actions
◆ Direct and finite loss
◆ Relationship between parties
◆ Society’s ideas of morals and justice
• The extent of the prejudice to either of the parties and the risk thereof
• The costs involved in taking preventative steps and whether or not they were
proportionate to the loss incurred
•The nature of the defendant’s fault and state of mind (motive) is taken
into account. Courts more readily consider intentional harm-causing
to be wrongful than negligent harm-causing. A motive to cause harm
will indicate wrongfulness.56 We deal with these matters in the next
section on wrongfulness and fault:
♦ Minister of Finance v Gore NO: 57 The Court held that fraudulent
conduct in processing a public tender that caused pure
economic loss was wrongful, whereas negligent causing of harm
would not necessarily be wrongful.
9.13 Is wrongfulness determined with hindsight (ex post

facto) or from the perspective of the defendant at
the time of the relevant conduct with foresight (ex
ante)?
It is somewhat contentious whether the enquiry into wrongfulness
involves:
• A strictly ex post facto perspective and excludes an ex ante or actor-

oriented perspective
• That courts should determine wrongfulness or fault first
• That the reasonableness of conduct is a factor relevant to
wrongfulness.
9.13.1 Involvement of a strictly ex post facto perspective

and exclusion of an ex ante or actor-oriented
perspective
We contend that both wrongfulness and fault are determined ex post
facto. Since the events have already occurred, the requirements for both
these elements of the delict are determined from the perspective of
hindsight, but with a different focus. The wrongfulness enquiry
necessitates that issues also be considered that were not known to the
defendant at the time, whereas the essence of the negligence enquiry is to
assess the conduct bearing in mind the defendant’s circumstances at the
time.
The focus of wrongfulness is wide and includes all the other
elements of liability (conduct, causation, affected interest, harm and
fault), and finally it involves policy considerations and a value
judgement. Therefore, courts reach the final value judgement on whether
the plaintiff’s affected interest deserves protection from the defendant’s
action or lack of action with an overall ex post facto perspective.
Fault is mainly concerned with the blameworthiness of the conduct
of the actor. The question asked is whether the defendant intended to
cause the harm knowing that it was wrong to cause the harm (intent), or,
if there was no intention to harm the plaintiff, did the defendant behave
reasonably, and at that point, was the harm from the perspective of the
actor, reasonably foreseeable and preventable (negligence)? This enquiry
requires an ex ante perspective.

There is no rule on whether to determine wrongfulness or fault first.
Occasionally courts deal with negligence first and a finding that the
defendant was not negligent means that an enquiry into wrongfulness is
unnecessary. This process does not mean that either wrongfulness or
fault logically precedes the other. Both enquiries require the decision-
maker to assume that the other element must also be proven before
liability can be imposed. One can determine fault after establishing or by
assuming that the defendant has wrongfully caused harm. If this
assumption is unfounded, either because the defendant did not cause
the harm or because the harm caused was reasonable and therefore not
wrongful, the ‘fault’ is simply irrelevant or ‘legally neutral’. Likewise,
courts can determine wrongfulness on the assumption that there is fault
or a particular form of fault, simply because they find it convenient to
deal with the wrongfulness issue first. If fault is a requirement for liability,
and it turns out there is no fault, assessing wrongfulness then becomes
irrelevant. In Local Transitional Council of Delmas v Boshoff 58 the Court
said the following about the order and manner of enquiry into the
elements of wrongfulness and fault:
Depending on the circumstances it may be appropriate to enquire first into the
question of wrongfulness, in which event it may be convenient to assume
negligence for the purpose of the inquiry … . On the other hand, it may be
convenient to assume wrongfulness and then consider the question of negligence …
.
9.13.3 The nature of fault is in some cases relevant to

wrongfulness
The nature of the fault (in particular intent) and fault-related factors (in
particular a motive to cause harm) may be relevant to wrongfulness.
Intentionally causing harm is usually not of value to society, and is
therefore likely to be wrongful.59 The wrongfulness of harm-causing
misrepresentation, for example, can depend on whether this occurred
intentionally or negligently. In Minister of Finance v Gore NO 60 the Court
said:61
We do not think that it can be stated as a general rule that, in the context of delictual
liability, state of mind has nothing to do with wrongfulness. Clear instances of the
contrary are those cases where intent, as opposed to mere negligence, is itself an
essential element of wrongfulness. These include intentional interference with
contractual rights … and unlawful competition … .
Intentionally causing harm to others will not always be wrongful, for

example, where justified criticism harms the reputation of another, or fair
competition causes financial loss to a trade competitor. However,
everything depends on the circumstances and intent does not necessarily
indicate wrongfulness.
PAUSE FOR Intentional causing of harm

Consider a passenger on a bus who knowingly offers bad investment advice to
REFLECTION
other passengers, who are complete strangers to him. Will the advisor be liable if
his bad advice is followed with harmful effect? Does he owe a duty towards his
fellowpassengers in the area of investment advice? Does the intentional causing
of harm indicate wrongfulness in this case? On what grounds would you argue
that the advisor owes no duty to his fellow passengers?
An improper motive to cause harm to another in itself does not

necessarily make causing the harm wrongful. However, courts may take
into account motive, together with other circumstances, when assessing
wrongfulness. For example, when a landowner exercises his or her rights
of ownership in a way meant to cause extensive harm to a neighbour,
with little benefit to himself or herself, the motive to harm may influence
a court to decide that the harm was caused wrongfully. In Gien v Gien 62
the Court considered causing excessive noise to deter animals and birds
from damaging crops, with a motive to annoy a neighbour, to be
wrongful. In Kirsh v Pincus 63 the Court also deemed it wrongful to plant
deciduous trees along a boundary so that falling leaves harmed a
neighbour. In the area of unlawful competition, courts also take into
account a motive to harm rather than to compete, when determining
wrongfulness.64 The exercise of rights which causes harm to another can
be a wrongful abuse of a rights if the sole or predominant intention was to
harm another and the act did not advance any appreciable or legitimate
interest of the actor.65 These examples all indicate some form of abuse of
rights. In other words, behaviour that one would normally consider
reasonable becomes unreasonable because the person exercised the
right for what society considers an unacceptable purpose.
In another category of cases – malicious detention and malicious
prosecution – an improper or malicious motive is a prerequisite for a
wrongfulness finding. In such instances, society considers infringing
another’s interest wrongful only if the defendant behaved maliciously.
So, causing harm by a careless detention or institution of a prosecution
will not be wrongful, which is yet another instance of where society
protects the independence of a public functionary.
In Cape Empowerment Trust Limited v Fisher Hoffman Sithole 66 the
purchaser of a business relied on a certificate issued by the seller’s
auditor, confirming that the business had made a profit of R10 million. It
turned out that this was entirely untrue and that the auditor had been
grossly negligent. On the issue whether the auditor owed a legal duty to
the purchaser and had wrongfully caused the purchaser’s economic loss,
the Court decided that it was impermissible to take into account the
auditor’s gross negligence as a policy consideration indicating a legal
duty and wrongfulness. This would telescope the tests for wrongfulness
and negligence into one. In the law of delict in general and in the context
of negligent misstatements in particular, the element of wrongfulness
introduces a measure of control. It serves to exclude liability in situations
where most right-minded people, including judges, would regard the
imposition of liability as untenable, despite the presence of all other
elements of liability, including gross negligence.
Blameworthiness of conduct indicated by intent or a motive to harm
is part of the mix of factors that one takes into account when determining
the question of wrongfulness.
9.13.4 Wrongfulness and negligence are sometimes based

on similar factors
Cases of liability for an omission, where there is negligent failure to
prevent harm, illustrate that the elements of wrongfulness and
negligence often involve considering similar factors. If the question is
whether a local authority is liable for harm caused by, or related to public
property, for example, a hole in a pavement injuring a pedestrian,67 a
broken merry-go-round injuring a child,68 a shop-owner’s loss due to
flooding from a burst pipe,69 or a land-owner’s losses due to an informal
settlement being established next to his or her land,70 the wrongfulness
and the negligence issues both require us to consider the extent of the
risk and the possible harm, the cost of repair or prevention, and the
resources available to the local authority. If the pavement, merry-go-
round, pipe or settlement was under the control of the local authority,
with concomitant responsibility to maintain or administer it, the legal
duty not to cause harm (wrongfulness) will generally not be contentious.
However, courts will not impose liability if the local authority was
unaware of the state of disrepair and could not reasonably have foreseen
it. This could be due to the informational and organisational constraints
under which it operates, or if the costs of preventative measures would be
out of all proportion to the harm. In these circumstances, failing to repair
or to prevent harm is not negligent. If the issue is whether the public
authority had the duty to exercise control, rather than the extent of the
control or preventative measures required, courts will likely treat it as an
issue of wrongfulness rather than an issue of negligence.
Therefore, it appears that there is some overlap between
wrongfulness and fault. This does not indicate a logical grey area or lack
of clear definition of the elements of delict. Courts must determine
liability rationally and consistently, and a certain amount of overlap does
not in itself detract from either rationality or consistency. The aim is not
to develop a theory of delict that is made up of elements that fit into
perfectly separate compartments. Wrongfulness and fault have broadly
different focus areas (in the case of fault: blameworthiness of conduct,
and in the case of wrongfulness: overall balance of interests and the
scope of responsibility), but there are also common areas. Both these
elements of delict are based on reasonableness and involve value
judgements.
9.14 Conclusion
Wrongfulness is a matter of law. Courts do not hear evidence on the issue
of wrongfulness. However, the onus is on the plaintiff to make factual
allegations and eventually present evidence that indicates wrongfulness,
which is a matter for judicial determination.
It is generally accepted that applying the general criterion or
standard for determining wrongfulness (alternatively referred to as
general reasonableness, the legal convictions prevailing in the
community or the boni mores) in the final instance involves public policy
and a value judgement. When applying this general criterion, one can
reduce judicial reasoning to the following factors, which are often
interrelated:
• Policy considerations that indicate whether the law of delict should
intervene in respect of the type of harm-causing (inter alia the social
or economic consequences of imposing liability – in particular
potential indeterminate liability (‘opening the floodgates’), the
availability of alternative remedies, and the need for accountability
of public bodies or officials)
• Consideration of relevant constitutional or other statutory rights and
duties (inter alia the right to freedom and security of the person, the
right to privacy and the right to freedom of expression)
• A grouping of factual circumstances that indicate a duty not to cause
or to prevent harm in the particular situation (inter alia the
proportionality of the risk of harm and the cost of prevention, control
over a dangerous object or situation, awareness of danger, prior
conduct creating danger, a relationship imposing responsibility and
professional knowledge)
• The nature of the defendant’s conduct (courts usually consider
harm-causing by positive conduct more wrongful than harm-
causing by omission, and physical harm-causing more wrongful
than harm-causing by speech)
• The nature of the defendant’s fault and state of mind (courts usually
consider intentional harm-causing more wrongful than negligent
harm-causing, and that a motive to harm is indicative of
wrongfulness)
• The nature of the interest to be protected or the consequences that
resulted (causing physical injury and damage to property is prima
facie wrongful, while causing pure economic loss or emotional
distress is not, and in the case of certain forms of harm, such as
nuisance and damage to reputation, courts judge wrongfulness by
balancing conflicting interests).
The prevailing modern view is that wrongfulness is not only an attribute

of conduct, but characterises the outcome of a causal sequence that
involves conduct and causing harm.
An enquiry into wrongfulness can focus either on the infringement of
a right, or on the breach of a duty. This is a matter of approach or
methodology, and whatever approach one follows, the conclusion often
involves public policy and a value judgement. Breaching a legal duty to
another also involves infringing the right of the other person not to be
harmed. To every obligation there is a right and a duty side, and a legal
duty is the converse of a right. The best description of the legal duty that
indicates wrongfulness in its full sense is the legal duty not to cause harm
negligently, intentionally, or without fault (in cases of strict liability).
Although the wrongfulness terminology has changed from the
negligence-related ‘duty of care’ to ‘legal duty’, courts still regard
reasonable foreseeability of harm as one of the factors that may indicate
whether a legal duty for the purposes of wrongfulness exists. It seems that
the best explanation for this potentially confusing approach is that
foreseeability is seen as a factor that one may consider in the
wrongfulness enquiry, together with other relevant factors, but it is one of
two core factors that one must consider in the negligence enquiry (the
other being preventability). While foreseeability of harm is a requirement
for negligence, it might not be decisive in the wrongfulness enquiry and
other factors might override it. In some cases, foreseeability might add
weight to the wrongfulness decision.
There is no rule on whether one should determine wrongfulness or
fault first. Occasionally, courts deal with negligence first, and finding that
the defendant was not negligent means that enquiry into wrongfulness is
unnecessary. This order does not mean that either wrongfulness or fault
logically precedes the other. One can determine fault after proving, or
assuming, that the defendant has wrongfully caused harm. Likewise,
courts can determine wrongfulness on the assumption that there is fault
or a particular form of fault, simply because they find it convenient to
deal with the wrongfulness issue first.
Figure 9.3 Wrongfulness
Wrongfulness supplements the other elements of delict, adding a further

value, or a policy-based dimension to the enquiry into liability, and
requires judicial discretion. With all the other elements of liability
(conduct, causation, harm and fault) proved or assumed to be present,
wrongfulness involves a value judgement on whether the affected interest
of the plaintiff should prevail over a conflicting interest of the defendant,
or deserves protection from the defendant’s action or lack of it, so that
the burden of damage should be shifted from plaintiff to defendant.
Wrongfulness is thus essentially concerned with the scope of protection
afforded to various rights and interests, the scope of responsibility to act,
and overall policy considerations that relate to the question of whether
the law of delict should intervene.
1 See Fagan ‘Rethinking wrongfulness in the law of delict’ (2005) 122(1) SALJ at 90; Neethling
‘The conflation of wrongfulness and negligence: Is it always such a bad thing for the law of
delict?’ (2006) 123(2) SALJ at 204; Nugent ‘Yes, it is always a bad thing for the law: A reply to
Professor Neethling’ (2006) 123(4) SALJ 557 at 560; Neethling and Potgieter ‘Wrongfulness
and negligence in the law of delict: A Babylonian confusion?’ (2007) 70(1) THRHR at 120.
2 Boberg The Law of Delict, Vol 1: Aquilian Liability (1984) at 32.
3 Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amicus
Curiae) 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC) para 122 (footnotes omitted).
4 2015 (1) SA 1 (CC) paras 20–21.
5 Walker The Law of Delict in Scotland 2 ed (1981) at 33.
6 2013 (5) SA 183 (SCA) para 23. See also Mukheiber v Raath 1999 (3) SA 1065 (SCA) para 25.
7 2005 (6) SA 215 (SCA).
2001 (4) SA 938 (CC) para 7; Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA)
paras 14–17; Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para
16.
9 Sanlam Capital Markets (Pty) Ltd v Mettle Manco (Pty) Ltd [2014] 3 All SA 454 (GJ).
10 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) paras
13–15.
11 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA)
paras 5 and 10.
12 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at
498.
13 Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D).
14 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA).
15 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 188.
16 Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1
(CC) para 22.
17 Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA).
18 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
19 Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA).
20 Pinshaw v Nexus Securities (Pty) Ltd 2002 (2) SA 510 (C).
21 Van Wyk v Lewis 1924 AD 438.
22 See, generally, Van der Walt and Midgley (2005) para 63; Van der Walt and Midgley
Principles of delict 3rd ed. 2005. Lexis Nexis. Reprinted by kind permission of Lexis Nexis.
23 Boberg (1984) at 30–31.
24 1956 (1) SA 577 (A) at 585B–D.
25 2003 (6) SA 13 (SCA).
26 Paras 42 and 46 (footnotes omitted).
27 2005 (5) SA 490 (SCA) para 12 (footnotes omitted).
28 2006 (1) SA 461 (SCA) para 12.
29 1980 (3) SA 653 (D).
30 1985 (1) SA 475 (A).
31 2002 (2) SA 510 (C).
32 2008 (5) SA 630 (SCA).
33 2006 (3) SA 138 (SCA).
34 2011 (4) SA 276 (SCA).
35 Para 33.
36 2007 (3) SA 121 (CC).
37 2001 (3) SA 1247 (SCA).
38 2007 (1) SA 111 (SCA).
39 Para 82.
40 2006 (1) SA 461 (SCA) para 12.
41 2015 (3) SA 449 (SCA).
42 2016 (1) SA 325 (CC).
43 2015 (1) SA 1 (CC).
44 2004 (3) SA 305 (SCA) at 311.
45 See also Minister of Justice and Constitutional Development v X [2014] 4 All SA 586 (SCA);
2015 (1) SA 25 (SCA)..
46 2002 (6) SA 431 (SCA).
47 2004 (2) SA 216 (SCA).
48 2003 (1) SA 389 (SCA).
49 2014 (5) BCLR 511 (CC).
51 1994 (4) SA 347 (A) at 361H–362A/B and 363C.
52 2015 (4) SA 574 (SCA).
53 Para 21.
54 2002 (2) SA 39 (SCA) paras 13–26.
55 1985 (1) SA 475 (A).
56 Minister of Finance v Gore NO 2007 (1) SA 111 (SCA) para 86.
57 2007 (1) SA 111 (SCA).
58 2005 (5) SA 514 (SCA) para 20.
(CC) para 40.
60 2007 (1) SA 111 (SCA).
62 1979 (2) SA 1113 (T) at 1121.
63 1927 TPD 199.
64 See Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 (2) SA 455 (W).
65 Koukoudis v Abrina 1772 (Pty) Ltd 2016 (5) SA 352 (SCA) para 31.
66 2013 (5) SA 183 (SCA) paras 24–25.
67 Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA).
68 Cape Town Municipality v April 1982 (1) SA 259 (C).
69 Mostert v Cape Town City Council 2001 (1) SA 105 (SCA).
70 Local Transitional Council of Delmas v Boshoff 2005 (5) SA 514 (SCA).
Chapter 10
Grounds of justification: Defences

directed at the wrongfulness element
10.1 Introduction
10.2 Consent
10.4 Prior agreement not to claim (pactum de non petendo in anticipando)
10.5 Necessity
10.7 Provocation
10.12 Impossibility
10.1 Introduction
Grounds of justification are special circumstances that make the factual
violation of a right or breach of a duty, reasonable and therefore lawful.1
The violation or breach would be wrongful without these special
circumstances. Grounds of justification are simply applications of the
general criterion of reasonableness to certain typical situations. For
example, if one defends oneself against a wrongful attack on one’s person
or property, and in the process one injures the attacker, the injury may be
justified on the ground of private defence. In Clarke v Hurst NO, 2
grounds of justification were described as follows:
The stereotyped grounds of justification are specific grounds of justification of
otherwise wrongful conduct which with the passage of time have become
crystallised, with their own rules limiting the scope of their application.
Grounds of justification deal with certain stereotyped situations where

applying the general criterion of reasonableness has become so
standardised that certain sub-rules, or a framework for applying the
general criterion, have developed. There is no closed list of grounds of
justification, because these grounds merely represent applications of the
general criterion of reasonableness, which justify an infringement of a
right or breach of duty that would otherwise be wrongful.
The onus of proving that the violation or breach is not wrongful is on
the defendant, who has caused harm by what appears to be an
infringement of a right or breach of a duty. Therefore, the defendant
needs to justify causing such harm.3
The most common grounds of justification are: consent, private
defence, necessity, provocation, statutory authority, public authority,
official command, disciplinary authority and impossibility. We discuss
each one of these in the following sections.
10.2 Consent
Where a person capable of expressing his or her will indicates to another
person that he or she is willing to suffer some harm or to run the risk of
suffering some harm, for a lawful purpose, then the causing of such harm
by the other person is justified. Consent is a ground of justification based
on one of two arguments:
1. It involves a waiver of rights in respect of the harm concerned.
2. The causing of harm is reasonable in terms of the boni mores or the
legal convictions of the community where the person affected has
indicated consent or willingness to suffer harm for a lawful purpose.
One could also say that consent is a ground of justification because a

legal duty not to cause harm does not arise when the harm has been
consented to.
In Roman and Roman-Dutch law the principle that consent can
justify causing harm was expressed in the maxim volenti non fit iniuria.
South African law continues to apply this maxim and its principle not
only to intentionally causing specific harm for a lawful purpose, as in the
case of a medical operation, but also to accepting a risk of harm that may
be negligently caused in the course of a dangerous activity, such as taking
part in a contact sport.4 In the latter case, consent is also sometimes
referred to as voluntary assumption or acceptance of risk.
Voluntarily taking part in a dangerous activity does not necessarily
constitute consent to suffer harm resulting from the negligence of others
who also take part in the dangerous activity. However, it may
nevertheless constitute contributory negligence in respect of the
resultant harm. Consent on the part of a plaintiff is a ground of
justification, and therefore a complete defence, which excludes liability
on the part of the defendant who caused the harm. However,
contributory negligence on the part of the plaintiff tends to reduce the
damages to which the plaintiff is entitled as a result of the harm caused
by both the plaintiff’s and the defendant’s negligent conduct.5
Consent to the intentional causing of harm for a lawful purpose, as in
the case of a medical operation, involves a willingness to suffer specific
harm. An example is the willingness that a surgeon remove part of an
organ because of cancer, together with acceptance of the pain and
inconvenience that accompany such an operation. Consent to the risk of
harm is less specific. It involves a willingness to risk suffering some harm
during a dangerous activity, such as a sport that involves the risk of
injury.6 A particular situation may give rise to both forms of consent – for
example, a medical operation that involves not only some pain and
inconvenience, but also the risk of complications, or even death.7 A
patient who is adequately informed of the risks and nevertheless decides
to undergo the operation, consents to the pain and inconvenience that
will inevitably occur, but also to the possibility of complications or death
that may occur, but which hopefully will not.
The following is a well-known extract from the judgment of Innes CJ
in Waring & Gillow Ltd v Sherborne,8 which sums up the nature and
requirements of the defence of volenti non fit injuria:
The maxim volenti non fit injuria embodies a principle which, when confined
within right limits, is both just and equitable. A man who consents to suffer an
injury can as a general rule have no right to complain. He who, knowing and
realising a danger, voluntarily agrees to undergo it, has only himself to thank for the
consequences. But like so many other maxims, the one under consideration needs
to be employed cautiously and with circumspection. The principle is clear; the
difficulty lies in the application of it – in deciding, in other words, under the
circumstances of each particular case whether the injured man was volens to
undertake the risk. A consideration of the grounds upon which the doctrine rests,
and of the cases in which its scope has been discussed, leads to the conclusion that
in order to render the maxim applicable it must be clearly shown that the risk was
known, that it was realised, and that it was voluntarily undertaken. Knowledge,
appreciation, consent – these are the essential elements; but knowledge does not
invariably imply appreciation, and both together are not necessarily equivalent to
consent …
The characteristics of, and requirements for, valid consent are:

• The plaintiff has to indicate that he or she is willing to suffer harm or
run the risk of some harm. An agreement or contract between the
plaintiff and defendant is not required. The defendant who caused
harm to the plaintiff, who had indicated willingness to suffer the
harm, can rely on consent as a defence. The defendant does not have
to prove that there was an agreement of willingness between the
parties. Where there was an agreement between the parties that one
person will not hold the other liable for harm that may ensue
(pactum de non petendo), the practical effect is the same as consent.
Consent involves only the conduct of the plaintiff who can revoke the
consent at any stage prior to the defendant causing the harm. For
example, a person who has consented to an article being published
about his or her private life can revoke this consent before
publication, and the publication would then be a wrongful invasion
of privacy.9
• The consenting party must have indicated consent in an obvious
manner. If there was no external sign of consent, for example, if the
plaintiff remained quiet and passive when the harm occurred, the
plaintiff could of course simply deny that he or she had consented
and the defendant would not be able to prove the contrary.
• A person can give consent verbally, either expressly or by
implication, or tacitly by conduct. Encouragement or invitation to
cause harm does indicate consent, but mere acquiescence or
knowledge that harm will ensue is not enough to constitute consent.
PAUSE FOR Consent

REFLECTION In Jordaan v Delarey10 the plaintiff asked the defendant to repeat defamatory
words in the presence of two policemen, which the defendant did. The Court held
that this request amounted to consent. However, in such circumstances, the
request can also be interpreted as a challenge to the defendant, for the plaintiff
to obtain evidence in order to vindicate his rights in court.
• Consent must be given before the harm occurs. As consent is a

ground of justification that involves a waiver of rights in respect of
the harm concerned, causing the harm prior to giving the consent
will be wrongful. However, the person who suffers the harm may of
course afterwards also waive the right to claim damages, either
unilaterally, or by way of an agreement not to claim (pactum de non
petendo).
• Consent must be given by a person capable of expressing his or her
will, and who is the person who will suffer the harm. This does not
mean that majority or full legal capacity is required for consent.
However, the person who consents must have the mental ability to
appreciate the implications of his or her actions, to distinguish
between right and wrong, and to act accordingly. Courts will
consider all the circumstances of the case to determine whether the
necessary capacity existed, including the nature and value of the
interest affected, and the age, intelligence, knowledge and
experience of the person who is alleged to have consented. As
consent by a minor in respect of a patrimonial interest amounts to
the alienation of such an interest, courts will tend to require full legal
capacity for such consent. However, they follow a less strict
approach in respect of a minor’s consent to conduct that affects
personality interests such as privacy or bodily integrity. If a person is
not capable of expressing his or her will, such as a young child,
someone who can lawfully express a will on behalf of this person,
such as a parent or guardian, may give consent. Where parents
refuse to consent to an operation a physician considers necessary, or
where the parents are deceased or incapacitated, the responsible
Minister can give the necessary consent.11 In an emergency, the
medical superintendent of a hospital may consent to the medical
treatment of a child.12 Consent to medical treatment of mentally ill
persons is regulated by the Mental Health Act 18 of 1973. The
consent of a parent on behalf of a child must be reasonable and in
the interests of the child. For example, consent that the child may
participate in a dangerous activity that is of no value or benefit to the
child will be unreasonable and invalid.
• Consent must be given freely and voluntarily. Courts will not regard
as valid consent to suffer or risk harm from a person who was under
moral, social or economic pressure, for example, in a situation where
an employee undertakes dangerous work in the course of his or her
employment,13 or submits to physical punishment.14
• Full prior knowledge of the nature and extent of the harm or the risk
of harm is required. To be valid, the consenting party must have had
information on the material aspects of the harm or the risk of harm
that is involved, so that the consent is informed. This is particularly
important in medical treatment. In Castell v De Greef 15 the Court
reviewed the South African law in this regard and set out the
requirements for informed consent in the context of medical
treatment. For consent to operate as a defence:
◆ The consenting party must have had knowledge and been aware
of the nature and extent of the harm or risk.
◆ The consenting party must have appreciated and understood the
nature and extent of the harm or risk.
◆ The consenting party must have consented to the harm or
assumed risk.
◆ The consent must be comprehensive, that is, extend to the entire
transaction, inclusive of its consequences.16
• In the context of medical treatment and its consequences, for a
patient’s consent to constitute a justification that excludes
wrongfulness, the doctor is obliged to warn a patient of a material
risk in the proposed treatment. A risk is material if, in the
circumstances of the particular case, (a) a reasonable person in the
patient’s position, if warned of the risk, would attach significance to
it, or (b) the medical practitioner is, or should reasonably be aware
that the particular patient, if warned of the risk, would attach
significance to it.17 However, this obligation is subject to the so-
called ‘therapeutic privilege’. The ‘privilege’ allows medical
practitioners to withhold information, which in their opinion would
be detrimental to the patient in question, regardless of the negative
impact that this has on the patient’s freedom or independence.18
Although expert medical evidence is relevant in determining what
the inherent risks of treatment (surgical or otherwise) are, and might
also have a bearing on their materiality, this is not a question that
courts should answer on the basis of expert medical evidence alone.
The ultimate question is whether the defendant’s conduct conforms
to the standard of reasonable care demanded by the law. That is a
question for courts to decide, and they cannot delegate the duty of
deciding it to any profession or group in the community.19
• The consenting party must have been willing to suffer the harm, both
where the harm is certain to occur through intentional conduct, as in
the case of a medical operation, and where there is a risk of harm
resulting from a dangerous activity. Waring and Gillow Ltd v
Sherborne 20 states this requirement as:
Knowledge, appreciation, consent – these are the essential elements, but knowledge does not
invariably imply appreciation, and both together are not necessarily equivalent to consent.
• The consent must be lawful, that is, be permitted in terms of the

general standard of reasonableness, in accordance with the boni
mores or the legal convictions of the community. Even if all the
requirements for consent as set out in the previous bulleted
paragraphs have been met, the consent will not be valid if
consenting to the causing of harm offends the boni mores, the legal
convictions of the community, or contravenes a statute. Examples of
this include where a person consents to disfigurement or some other
form of assault, where a minor younger than the statutory age of
consent agrees to sexual intercourse, where a woman agrees to
sexual intercourse in circumstances that amount to seduction, and
‘grooming’.21 Arguably, consent to the risk of injury during a
hazardous activity that has no redeeming social value, such as a
dangerous car race on a country road,22 or a ride with a drunken
driver,23 could be regarded as contra bonos mores and therefore
invalid. One could also regard the injured person’s voluntary
exposure to such a risk as contributory negligence,24 rather than as
consent.
PAUSE FOR Consent

The growth in the use of smartphones and social media apps has led to an
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unexpected growth of ‘sexting’. ‘Sexting’ is the sending of sexually explicit or
suggestive photos or other material via electronic media. By sending the explicit
material, the sender can be taken to have consented to share it with the
intended recipient. However, problems may arise where the recipient then shares
the material with other users, which the sender did not necessarily consent to. In
National Media Ltd v Jooste25 the Court held that an individual has the right to
decide on the scope of disclosure of private facts, and to decide the conditions
under which such private facts may be made public. Accordingly, if the recipient
of sexually explicit material shares this with third-party users without the consent
of the first sender, this could be wrongful invasion of the privacy of the first
sender.

Where there is express consent it is a matter of construction to determine
what exactly was consented to. In the case of assumption of a risk, the
requirement of subjective willingness to suffer harm presents some
difficulty. Mere knowledge of the possibility of harm is not enough to
constitute consent. The maxim is volenti non fit iniuria, and not scienti
non fit iniuria.26 Where the contention is that there was an assumption of
a risk, the question is whether the person could foresee the harm that
eventually occurred and accepted it as falling within the ambit of the risk.
The enquiry is subjective and foresight of the possible harm is a key
feature.
Lampert v Hefer NO27
The plaintiff was a passenger in the sidecar of a motor cycle and was injured in an accident caused by
the driver’s negligence. The driver was killed in the accident. The plaintiff claimed damages from the
driver’s executor and the Court upheld the defence of volenti non fit iniuria on the ground that when the
plaintiff entered the sidecar at the beginning of the journey, the plaintiff knew that the driver was highly
intoxicated. The plaintiff’s application for leave to appeal in forma pauperis against the judgment of the
Court was refused by the Appellate Division. In delivering the main judgment, Fagan JA stated that
‘serious intoxication of the driver of a motor-vehicle must always involve a risk of accident’,28 and
concluded that the plaintiff, who had previously also travelled with the driver while he was intoxicated,
must have or should have appreciated the risk of an accident and injury, even though she had been
fortunate before. Her assumption of the risk on this occasion could therefore be relied upon as a
complete defence by the defendant.
Fagan JA held that the defences of consent and contributory negligence may often overlap. This case
was decided before the Apportionment of Damages Act 34 of 1956 was in force, and the all-or-nothing
rule of the common law still applied in respect of contributory negligence. Therefore, at the time, both
consent and contributory negligence were all-or-nothing defences. So, to make a decision in the Lampert
case, it was not vital to categorise the defence of assumption of risk as either consent or contributory
negligence, as either one was a complete defence. In terms of the Apportionment of Damages Act,
contributory negligence on the part of a plaintiff is no longer a complete defence, but leads to a
reduction of the damages that the plaintiff is entitled to.29
Since contributory negligence is no longer a complete defence and it has
become possible to produce a fair result by apportionment of damages,
courts have been reluctant to recognise consent in assumption of risk
cases where there was negligence on the part of the defendant. In most
cases where the defence of consent in the form of assumption of risk has
been raised, it has failed. Courts recognise this defence in principle, but
find that the plaintiff did not consent to the defendant causing harm and
that the voluntary exposure to risk amounts to contributory negligence.
Only in exceptional circumstances will courts find that a person
consented to run the risk of another person’s negligence.30
Santam Insurance Co Ltd v Vorster31
This is the leading case on consent in the assumption of risk where the plaintiff was a passenger in one
of two cars that were being driven in a race on a country road. The drivers and passengers had placed
bets on the outcome of the race. There was a collision when one driver attempted to overtake the other
on a bend in the road. The plaintiff was severely injured and claimed damages on account of the
negligent conduct of both drivers. The defences of consent and contributory negligence were raised, on
the basis that the plaintiff had known the risks of the race and had voluntarily exposed himself to those
risks. It was held that, in addition to knowledge and appreciation of danger, the plaintiff must have
foreseen the particular risk that culminated in the harm. The Court held that it is inherently difficult to
determine such foresight because of its subjective nature. Therefore, courts must determine consent in
the form of assumption of risk by analysing the proved facts. The evidence of the plaintiff himself carries
little weight. Based on the relevant facts, courts must determine what the inherent risks of the particular
hazardous activity were and whether the risk that culminated in the harm fell within the ambit of these
risks. Therefore, the essential question is whether the plaintiff must have foreseen the particular risk that
culminated in the harm as part of the inherent risks of the activity, and should therefore be held to have
consented to these risks.32
Consent by assumption of risk is important in sport-related injuries.

Taking part in sport often involves certain inherent risks of injury as a
result of the conduct of the other participants. A participant normally
consents to the risk of injuries that occur reasonably within the normal
course of a game or event. The fact that the injury-causing conduct of one
player broke the rules of the sport will not necessarily mean that the
injury falls outside the ambit of another player’s consent. A late tackle, or
running into an opponent in a dangerous manner, may break the rules of
a sport, but it is nevertheless foreseeable in the normal course of a game.
However, where the injury is caused by gross contravention of the rules
or deliberately dangerous conduct, the position is different.33 To
determine whether the injury occurred reasonably within the normal
course of the game, and therefore within the ambit of a participant’s
consent, courts take all the circumstances into account.
Boshoff v Boshoff34
The plaintiff began action for damages for injuries sustained when he was hit by his opponent’s racket
during a game of squash. The defence of consent was raised. The Court held that injuries of this nature
are reasonably to be expected in a social game of squash between amateurs. Although the plaintiff had
not admitted that he had accepted the risk of injury, the Court found that, had the plaintiff (an advocate)
been asked before the match whether he consented to this risk of injury, he would have answered in the
affirmative. It was, therefore, the ‘will’ of the plaintiff to run the risk of injury. Every intelligent person is, to
a certain extent at least, master of his own fate. It is not contra bonos mores for a person who can
express a will to consent to sustaining an injury or to run the risk of an injury in the course of lawful sport
or physical recreation. A bona fide sportsman, who causes injury to a fellow player in a reasonable
manner, as may be expected in the normal course of a game, can rely on the defence of consent. The
defence is based on the fact that the players know and accept the risk of injury in the normal course of
the game. In this regard, the concept of will does not require a positive desire to be injured. It requires a
legal ‘will’ or acceptance of injury or the risk of injury. The Court said:35
If the conduct is deliberately intended to injure someone whose presence is known, or is
reckless and in disregard of all safety of others so that it is a departure from the standards
which might reasonably be expected in anyone pursuing the competition or game, then the
performer might well be held liable for any injury his act caused. There would, I think, be a
difference, for instance, in assessing blame which is actionable between an injury caused by a
tennis ball hit or a racket accidentally thrown in the course of play into the spectators at
Wimbledon and a ball hit or a racket thrown into the stands in temper or annoyance when play
was not in progress.
Therefore, the defence of consent succeeded.
In sports injury cases defendants can also rely on defences other than
consent by assumption of risk. An example of such a defence is the
absence of fault, that is, the injury was not caused intentionally or
negligently. In Clark v Welsh,36 the Court held that a person who hit a
wayward golf shot from a tee and struck a fellow player, who was
standing slightly in front of the tee, was not negligent in the
circumstances of the case. The Court could also have argued that the
injury was caused lawfully because it was reasonable to cause such injury
in the normal course of the game. In Boshoff v Boshoff, 37 the Court held
that, even if the plaintiff had not consented, causing an injury in the
normal course of a game of sport is not regarded as wrongful in terms of
the general standard of reasonableness. The Court also alluded to the
possible absence of fault.
Roux v Hattingh38
Hattingh suffered serious injuries in the course of a rugby match when a scrum collapsed as a result of
an illegal and extremely dangerous manoeuvre that Roux had initiated. The Supreme Court of Appeal
noted that the mere fact that the manoeuvre contravened the rules of the game did not mean that the
act was wrongful and required the imposition of delictual liability.39 However, a blatant flouting of the
rules which was intended to cause serious injury was not reasonably foreseeable and would attract
delictual liability.40 On the issue of voluntary assumption of risk, the Court said:41
The egregious nature of Alex’s conduct places it beyond the pale. Public and legal policy, I have
no doubt, require such conduct to be stigmatised as wrongful. I also take the view, along with
Fourie J in the court below, that because this conduct amounted to such a serious violation of
the rules, it is not normally associated with the game of rugby and is extremely dangerous, it
would ‘not have constituted conduct which rugby players would accept as part and parcel of the
normal risks inherent to their participation in a game of rugby’. In the result, the conduct is
wrongful and the justification of consent cannot avail Alex.
The existence of consent is a question of fact and the onus of proving

these facts, lies with the defendant.42 Courts do not readily accept that
there was consent to harm, and so approach the defence of consent with
care.43 Where the defendant mistakenly thought that consent had been
given, the causing of the harm will still be wrongful, but the defendant
may escape liability because of absence of fault, that is, absence of the
knowledge of wrongfulness as an element of intention.
Consent to the risk of death by a breadwinner, for example, when
taking part in a hazardous activity that may result in injury or even death,
is not a defence against a claim by dependants for loss of support, if the
death of the breadwinner was caused by another person’s negligence.
PAUSE FOR Loss of support

A claim for loss of support by dependants is based on the infringement of their
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right to support. There is no basis in law for accepting that the breadwinner can,
by consent, deprive dependants of their claim for loss of support. It is in any
event difficult to imagine this situation arising. The breadwinner is not likely to
consent to the risk that the negligent conduct of another person may cause his
death, and the person who acted negligently will therefore almost never be able
to prove consent. If there was no negligence on the part of another person, there
will in any event be no liability. Even if the breadwinner did consent to the risk
that the negligent conduct of another person may cause his death, courts will
probably regard such consent as contra bonos mores and therefore invalid. An
agreement by the breadwinner that no claim will be made in the event of injury or
death (pactum de non petendo), even if it binds his estate and his dependants,
will also not affect the right of his dependants to claim compensation for loss of
support in the event of his death. As the Court decided in Jameson’s Minors v
Central South African Railways,44 dependants are not bound by such an
agreement, because they are not parties to it, and the breadwinner cannot
contract on behalf of his dependants to their detriment. (This is discussed in
more detail in the section on contractual exemption clauses.)
10.4 Prior agreement not to claim (pactum de non petendo

in anticipando)
A prior agreement not to claim damages should the conduct of another
person cause harm (pactum de non petendo in anticipando), is
contractual. Therefore, it differs from consent, which involves the
conduct of only the person consenting to suffer harm or run the risk of
some harm. The effects of these two legal phenomena are different, in
that consent justifies causing harm, whereas a pactum de non petendo in
anticipando merely excludes the recovery of damages for wrongfully
caused harm. However, the practical effect of a pactum de non petendo
in anticipando is the same as that of consent, in that it provides a
complete defence against a claim for damages as a result of anticipated
and later realised harm. In certain circumstances, the conclusion of such
an agreement could, at the same time, indicate a willingness to suffer
harm or to run the risk of harm, and could therefore also constitute
consent, for example, where the parties informally agree, before taking
part in a dangerous activity, that their involvement is at their own risk
and that liability for damages is excluded. The requirements for a valid
pactum de non petendo in anticipando are the same as for any other
contract. One person cannot conclude a pactum de non petendo in
anticipando on behalf of another without authorisation. As was decided
in Jameson’s Minors v Central South African Railways,45 an agreement by
a breadwinner that no claim will be made in the event of his injury or
death, even if it binds his estate and his dependants, will not affect the
right of his dependants to claim compensation for loss of support in the
event of his death.
Courts accept that a parent or guardian can validly conclude a
pactum de non petendo in anticipando on behalf of a minor child, for
example, where a school or sports club requires this undertaking from
the parent or guardian to allow the child to participate in an educational
activity or sport. In Minister of Education and Culture (House of
Delegates) v Azel 46 the Court decided that the undertaking by a parent,
which limited the school’s liability for damage to property or personal
injury of the child, did not have effect where there was negligence on the
part of a responsible teacher. In Durban’s Water Wonderland (Pty) Ltd v
Botha 47 the Court decided that a parent had agreed, on behalf of a child,
to conditions that excluded the liability of an amusement park owner for
injury to the child while using the park’s facilities.
PAUSE FOR Prior agreement not to claim on behalf of a child

Arguably, a pactum de non petendo in anticipando agreed to by a parent, on
REFLECTION
behalf of a minor child, is not to the benefit of the child, who should be entitled
to restitutio in integrum, to have the effects of the agreement set aside.
The effect of a pactum de non petendo in anticipando depends on the

precise ambit of the agreement. Courts tend to interpret such agreements
restrictively. An agreement to exclude liability for harm caused
intentionally will not be valid, but an agreement that excludes liability for
harm caused by negligence is regarded as valid.48 An agreement
excluding liability for gross negligence is void if the Consumer Protection
Act 68 of 2008 is applicable.49
10.5 Necessity
Necessity can justify the infringement of the interests of an innocent
person (that is, someone not causing or threatening to cause harm
wrongfully). This occurs in a situation where the infringement is the only
reasonable way of protecting one’s own interest or that of another person
against danger created by natural phenomena or human conduct.50 For
example, a person may be justified in breaking a window to enter another
person’s house to telephone for help in the event of injury, or to rescue
someone trapped inside the house. In such a case, necessity justifies
damaging the house.
An attack by an animal and danger created by forces of nature are
natural phenomena that do not cause harm wrongfully. Wrongfulness is
an attribute of the outcome of a causal sequence set in motion by human
conduct. Therefore, defensive conduct when being attacked by an animal
or when faced with danger from forces of nature does not constitute
private defence, but can be justified on the ground of necessity.
The main difference between necessity and private defence is that
necessity justifies causing harm to an innocent person (that is someone
who is not causing or threatening to cause harm wrongfully), whereas
private defence justifies causing harm to a person who is causing or
threatening to cause harm wrongfully. So, the requirements of private
defence and necessity differ accordingly. Necessity requires
proportionality between the protected interest and the infringed interest.
Necessity, as a ground of justification, simply involves applying the
general criterion of reasonableness or boni mores. To justify that the
infringement of the interest was lawful, the person relying on necessity
must prove that protecting a legally recognised interest against danger
created by natural phenomena or human conduct was, in terms of the
proportionality of the interests involved and the nature and extent of the
danger and the means of protection, acceptable in terms of the boni
mores or the legal convictions of the community. Reliance on necessity
requires the following:
• There must have been actual danger to a legally recognised interest.
In accordance with the general approach to assessing wrongfulness,
the existence and extent of the danger must be determined
objectively. This must be on the basis of the actual circumstances,
and not on the perception or reaction of the person who relies on the
state of necessity. However, as in the case of private defence, courts
have sometimes adopted a qualified objective approach. They do
this by determining whether the person who is said to have acted in
necessity reacted to the situation reasonably,51 instead of taking into
account all the facts of the situation that become known after the
event. The following case study illustrates this approach.
S v Pretorius52
Necessity was raised as a defence against a charge of speeding. A parent had rushed to hospital with his
child after the child had taken a number of tablets. The parent believed that his child’s life was in danger.
It turned out that the child had taken pain tablets and would have at most suffered from an upset
stomach. Nevertheless, the Court held that the parent had acted reasonably in a situation of necessity,
and therefore set aside the conviction for speeding.
There are two possible approaches to the situation encountered in the Pretorius case. The court may
reach either of the following conclusions:
• The person relying on necessity had overreacted and therefore wrongfully exceeded the bounds of
necessity. However, the person lacked fault, because a reasonable person would have reacted in the
same way, and therefore liability cannot be imposed for causing the harm.
• The person relying on necessity had acted as a reasonable person would have under the circumstances,
and therefore acted lawfully within the bounds of necessity, and so cannot be held liable for causing
harm.
In principle, the first approach is preferable. It is consistent with the accepted view that wrongfulness is
determined on the basis of general reasonableness and policy considerations, rather than by applying
the criterion of the reasonable person, which is central to the enquiry into negligence.
• The endangered interest can be that of the defendant’s or of another

person. For example, where a child’s life is in danger, a parent may
take protective measures that may infringe the interests of another
person. This necessity-induced conduct may both benefit and
disadvantage the same person, for example, where a physician needs
to perform an emergency operation on an unconscious patient, who
then suffers the pain and discomfort of an operation, but gains a
health benefit.
Petersen v Minister of Safety and Security53
In this case, the police attempted to seize a number of bags of illegally harvested perlemoen (abalone) in
an area infamous for perlemoen poaching. A belligerent crowd gathered and began stoning the police,
forcing their retreat. That allowed the crowd to make off with most of the perlemoen. The police
attempted to stave off the attack by firing rubber bullets into the crowd and, when they ran out of rubber
bullets, shooting into the ground near the crowd with sharp point ammunition. The plaintiff claimed
damages for injuries sustained by her son in the shooting. The police alleged that the shooting was
justified by necessity. The plea of necessity was upheld on appeal. The Court decided that the defence of
necessity does not require the harmful action to be directed at a person engaged in a wrongful attack.
There was no need for the police to establish that the injured boy was himself part of the attacking
crowd. They had to prove that danger existed, or was imminent, that there was no other reasonable
means of averting the danger, and that the means used and measures taken to avert the danger of harm
were not excessive, having regard to all the circumstances of the case, including that, at the stage when
the police started to fire live ammunition, their attackers simply did not allow them to flee. The causing of
the injuries by the police was therefore not wrongful, but justified by necessity.
• Any legally recognised interest may be protected on the ground of

necessity, for example, life or physical integrity and property. Subject
to the principle of proportionality, the necessity-induced conduct
may also infringe any type of interest, for example, life or physical
integrity, and honour or freedom.
• The danger can be created by any natural phenomenon, such as fire
or flood, or by human conduct, such as duress. There are conflicting
views on whether defendants can rely on necessity in situations
where they themselves created a situation of danger and then, while
protecting their own interests or that of others from such danger,
caused harm to others.
PAUSE FOR Using necessity

In criminal cases courts have on the one hand held that a defendant cannot rely
REFLECTION
on necessity to escape the consequences of a situation that he or she personally
had created,54 while on the other hand, the Appellate Division has accepted that
defensive conduct may be justified where a dangerous situation resulted from
prior wrongful conduct by the defendant.55 A person may start a sequence of
events that creates danger and then, while protecting his or her own interests or
that of others from such danger, cause harm to others. In this situation, the
enquiry into wrongfulness should not be restricted to the part of the sequence of
events that involved a situation of necessity. To assess wrongfulness courts must
take into account the entire sequence of events. For example, a parent has
started a fire that endangers the life of his or her child and then, while saving the
child, causes damage to a third party. In this situation the parent clearly had a
duty to save the child, but when taking into account the entire sequence of
events, the conclusion should be that he or she wrongfully caused damage to the
third party. The same applies in the case of a person who hides in a shop after
closing hours and then needs to break a window to get out.
• The danger must be present or imminent. As in the case of private

defence, anticipatory defensive conduct is not justified on the
ground of necessity. Where a person expects a dangerous situation to
develop, it is not justified for that person to cause harm to others
while protecting his or her interests in anticipation of the danger. A
declaratory order or interdict may be the appropriate remedy where
future danger is expected as a result of another person’s conduct, or
where danger is expected from a natural phenomenon such as a
flood, and reasonable measures to avert harm will affect the interests
or require the cooperation of another person. Where the danger is
imminent, although not yet present, a person may reasonably
protect his or her interests without having to wait until the danger
has actually arrived. Where the danger has already ceased a person
cannot rely on necessity, for example, if a neighbour’s dog bites a
child, the parent of the child cannot follow the dog and shoot it.
• A person wishing to rely on necessity must not be legally obliged to
endure the consequences of the dangerous situation. For example,
the owner of a low-lying property must receive run-off water from an
adjacent higher property, even if it damages his or her property. He
or she may not take preventative steps that are harmful to the other
landowner on the ground of necessity.
• There must be proportionality between the protected interest and
the interest infringed by the protective conduct. Because necessity
justifies causing harm to an innocent person, it is unreasonable if the
harm caused to the innocent person outweighs the harm prevented
by the protective conduct. However, even if the protected interest
outweighs the infringed interest, protective conduct will not
necessarily be justified. Without a special duty or relationship it is
generally unreasonable to force a person against his or her will to
sacrifice his or her interests to protect the endangered interests of
another person. For example, a person cannot be forced to donate
blood to save the life of a critically ill person, and a person wearing
an expensive leather jacket cannot take an umbrella from a person
wearing an inexpensive garment if it suddenly starts to rain. The
general test of reasonableness applies, and courts must take into
account all the surrounding circumstances when assessing whether
protective conduct is justified.
• In terms of the general test of reasonableness the necessity-induced
conduct must have been necessary, or the only reasonable means of
protecting the interests concerned. If the defendant could have
escaped from the dangerous situation by taking flight, he or she
should have done so.56
R v Dudley & Stevens57
The issue of proportionality of interests gives rise to the question of whether protecting a life in a situation
of necessity can justify taking another life. Taking one life to save another is not regarded as justifiable in
English law. This case dealt with the situation of people adrift in a small boat for 21 days after their ship
sank. After they had spent eight days without food, two of them killed and ate a cabin boy, who was the
weakest of the persons on the boat. They were later rescued, subsequently charged with murder, and
raised the plea of necessity. The Court held that necessity can never justify killing an innocent person.
This is also the view of courts in other European jurisdictions, on the basis that one cannot regard one life
as more valuable than another.
Before 1972, South African courts also refused to recognise necessity as a defence on a charge of
murder. However, in S v Goliath,58 the Appellate Division changed course and held that necessity, in the
form of compulsion or duress, can be a complete defence to a charge of murder. It was emphasised
though, that the success of this defence depends on the particular circumstances of each case, and that
such a defence will be considered with the utmost care. In this instance, the accused A, was forced by
accused B, to take part in killing an innocent person C. B threatened to kill A if he did not assist in killing
C. A, fearing for his life, complied. In a key passage of the majority judgment, Rumpff JA held that an
ordinary person regards his own life as more important than the life of another, and that only a person
with qualities of heroism will sacrifice his own life for that of another. The law does not require that a
person acting under duress should conform to a higher standard than that of the average person.
Therefore, compulsion or duress can be a complete defence to a charge of murder.
In terms of the general test of reasonableness, the effect of the majority judgment in the Goliath case
is that the boni mores or legal convictions of the community only require that the person acting under
duress acts as the average or reasonable person would under the circumstances. Courts will be very
cautious in recognising necessity as a defence where an innocent person has lost his life. The standard
will be that of an ordinary, average or reasonable person. There is no basis for suggesting that courts will
apply a different standard in a civil case. Consequently, the dependants of the victim in the Goliath case
would not have succeeded with a claim for loss of support against the accused.

Private defence justifies protecting a legally recognised interest against
actual or imminent wrongful attack. The policy considerations that
underlie private defence were formulated as follows in Ntsomi v Minister
of Law and Order: 59
The principle that right does not have to yield to wrong has been a touchstone of
civilised legal systems through the ages. The victim of an unlawful attack has been
entitled to defend his person or property by virtue of a rule of law which has existed
in all familiar legal systems for many centuries.
The requirements for relying on private defence are the following: 60

• There must have been a wrongful attack. The attacker’s conduct
must have wrongfully caused, or threatened to cause, the
infringement of an interest. Private defence is not justified against a
lawful infringement of an interest, for example, against a lawful
arrest. The fact that a person who has committed a crime for which
he may be arrested without a warrant is running away from the scene
of his crime pursued by those who saw him do it, does not change
him into a threatened innocent with the right to use violence against
those who are trying to arrest him.61 As we noted in the context of
necessity,62 attacks by animals and danger created by forces of
nature are natural phenomena that do not cause harm wrongfully.
Wrongfulness is an attribute of a causal sequence set in motion by
human conduct. Therefore, danger created by animals or forces of
nature does not constitute a wrongful attack. However, for the
purposes of private defence, defensive conduct in the face of such
danger can be justified on the ground of necessity. Although, where a
person uses an animal as an instrument of attack, for instance
inciting a dog to bite, there can be private defence against the human
conduct causing or threatening infringement of a right. In most cases
private defence involves an attack in the form of positive conduct.
However, an omission can also give rise to private defence, for
example, where a salesman refuses to leave another person’s house,
or where a fireman refuses to extinguish a fire on request of a house-
owner. Some measure of coercion may be reasonable in such cases,
but South African courts have not decided on this question.
• The attack must be directed against a legally recognised interest.
People usually rely on private defence in cases of attacks on life or
bodily integrity. However, defence of other interests such as honour
63
or property 64 can also be justified. There is no closed list of
protectable interests, and in principle, a wrongful attack on any
legally recognised interest can give rise to a plea of private defence.
• The attack must have commenced or must be threatening.
Anticipatory defence is not justified. Where a person expects another
person to attack a legally recognised interest some time in the future,
it is not justified to use force against the attacker in anticipation.65 In
such a case, an interdict may be the appropriate remedy. Where an
attack is threatening, the defender does not need to wait until the
attack has actually begun.66 Where a harmful attack has already
stopped, the person who suffered the harm cannot rely on private
defence to justify retaliation.67
• The attacker does not have to be at fault. Private defence justifies
warding off harm caused wrongfully, regardless of whether the
causing of the harm is intentional, negligent or without fault. Private
defence is therefore also justified against an attack by a person
incapable of fault, such as an infans or a mentally disturbed person.68
• The attack does not have to be directed at the defender. A person
may defend another’s person or property against wrongful attack.
For instance, one policeman may be justified in using force to ward
off an attack on a fellow policeman,69 and a husband may prevent an
infringement of his wife’s honour.70 As private defence is based on
the policy consideration that right should not yield to wrong, a
person can defend the interests of another person against wrongful
attack for purely altruistic reasons. There does not have to be any
special relationship between the defender and the person whose
interests are wrongfully infringed or threatened.
• The defence must be directed at the attacker. Private defence
justifies causing only the harm that is reasonably necessary to ward
off a wrongful attack. It does not justify causing harm to a person
other than the attacker.
• The means of defence must be necessary and reasonable to prevent
the threatened harm. It is lawful for a person to use a reasonable
degree of force to protect himself or another person against any
wrongful attack. However, a harmful means of defence is not
justified when the threat could have been avoided in some non-
harmful or less harmful way.71 Causing harm in the course of private
defence is not justified if the harm is either unnecessary, that is, if the
infringement of interest could have been prevented in some other
way, or is disproportionate to the protected interest.72 The issues of
necessity and proportionality raise several further questions.
• The defence against the attack must be necessary. Could the
defender have taken flight? Courts have accepted that the victim of
an attack is not expected to flee from an assailant if flight would be
dangerous or if it would amount to a dereliction of duty.73
PAUSE FOR Proportionality between defence and attack

The question of proportionality between defence and attack is often the most
REFLECTION
difficult part of the inquiry into private defence. The means used, and the harm
caused by the defender must not be out of proportion to the threatened harm.74
In a number of cases, courts have taken into account what the person who acted
in private defence could reasonably have known, or how he or she could
reasonably be expected to react to the situation, instead of taking into account
all the facts of the situation that were known after the event. Van Winsen AJ
formulated this approach in Ntanjana v Vorster and Minister of Justice:75
The very objectivity of the test, however, demands that when the
Court comes to decide whether there was a necessity to act in self-
defence it must place itself in the position of the person claiming to
have acted in self-defence and consider all the surrounding factors
operating on his mind at the time he acted. The Court must be
careful to avoid the role of the armchair critic wise after the event,
weighing the matter in the secluded security of the courtroom… .
Furthermore, in judging the matter it must be ever present to the
mind of the Judge that, at any rate in the particular circumstances of
this case, the person claiming to act in self-defence does so in an
emergency, the creation of which is the work of the person unlawfully
attacking. The self-defender is accordingly entitled to have extended
to him that degree of indulgence usually accorded by the law when
judging the conduct of a person acting in a situation of imminent
peril. ‘Men faced in moments of crisis with a choice of alternatives
are not to be judged as if they had had both time and opportunity to
weigh the pros and cons’, per Innes JA in Union Government (Minister
of Railways & Harbours) v Buur.76
In this approach the defender may be judged to have acted reasonably even if it
appears with hindsight that he was not really in danger, or that he caused more
harm in defence than was required to ward off the attack.77
The cases in effect indicate that the boni mores or legal convictions of the
community only require that the defender acts as a normal reasonable person
would under the circumstances. For example, an armed policeman using force
when faced with a threat of violence will be judged according to the norm of a
reasonable policeman.78
There is a strong dissent from the reasonableness-of-conduct approach to
mistaken (putative) defence in Kgaleng v Minister of Safety and Security.79 The
Court said:
The defendants may yet escape liability on the basis that the second
defendant’s bona fide (although erroneous) belief that his conduct
was justified, excluded consciousness of wrongfulness – and thus
fault in the form of dolus – on his part, and provided a reasonable
man would not have reacted differently to the way in which the
second defendant reacted under the circumstances – thereby
excluding fault in the form of culpa.80
However, in Mugwena v Minister of Safety and Security 81 the Supreme Court of

Appeal also applied the test of a reasonable person to determine whether the
causing of injury was justified by defence.82 The two approaches will usually
produce the same result. One could argue on one hand that the defender used
disproportionate force and therefore wrongfully exceeded the bounds of private
defence, but that he lacked fault because he acted as any reasonable man
would have under the circumstances. The other point of view is that the defender
caused harm lawfully in the course of private defence, according to the standard
of a reasonable person in the particular circumstances.
• The interest that the defender protects need not be commensurate

with or similar in character to the attacker’s interest that is infringed
by the defence.83 The interest threatened by the attack and the
interest affected by the defence are often different in nature and of
unequal value. On the basis that right should not yield to wrong, the
attacker who wrongfully causes or threatens harm should not have a
cause of action against the defender for causing more harm in
defence than he or she would have suffered as a result of the attack.84
However, an extreme imbalance, for instance where the defender
kills the attacker to prevent a petty theft, indicates that the protective
steps were unreasonable.85
Ex Parte Minister van Justisie: In re S v Van Wyk86
This is a well-known instance of private defence that involves an imbalance of interests. A shop-owner set
up a gun in his shop to protect his property against thieves. His shop had been the target of repeated
burglaries, and other protective measures such as burglar-proofing, night-watchmen and watchdogs had
not worked. He set up the gun with a trip-wire, so that an intruder setting off the wire would be hit in the
legs. He also put up a notice on the door of the shop, warning people that there was a gun inside the
shop. An intruder set off the gun, was wounded in the hip, and later died as a result of the wound. The
shop-owner was prosecuted for murder and eventually the Appellate Division had to decide whether:
1. A person can, in principle, rely on private defence where defence of property had resulted in injury or
death
2. The bounds of defence were exceeded in this particular case.
All the judges answered the first question affirmatively, holding in essence that killing in defence of
property, where the defender was in no personal danger, can be justified in particular circumstances.
However, the judges’ opinions on the second question differed. The majority held that, in view of the
repeated burglaries and the failure of other methods of protection, setting up the gun was a reasonable
method of defence. In his dissenting judgment Rumpff JA held that the Court should determine the
reasonableness of setting up a gun that killed the intruder as if the shop-owner himself had fired the gun.
This is because what is wrongful in the form of direct conduct cannot be lawful in the form of indirect
conduct.87 However, this argument does not take into consideration that the shop-owner could not
reasonably have protected his shop by guarding it himself every night and therefore needed to employ
indirect protection, the reasonableness of which was in issue.
PAUSE FOR Private defence today

Given the constitutional protection of the right to life, it is likely that the Van Wyk
REFLECTION
case would be decided differently today. The decision would be based on the
fact that there is an inherent disproportionality or imbalance in weighing up the
protection of property against taking a human life. In cases where the
proportionality of the defence is in issue, courts will consider all the surrounding
circumstances, including factors such as the means of defence at the disposal of
the defender, the nature and the danger of the attack, and a possible imbalance
of interests, assessed in the light of the Constitution.
10.7 Provocation
There is authority in South African law that provocation, in the form of
inciting words or conduct, can be a complete defence to a claim for
compensation based on alleged infringement of personality rights. For
example, where the provocative words or conduct of A causes B to insult
A, B can rely on provocation if A claims compensation for the
infringement of his or her personality rights.88
Provocation differs from private defence and necessity in that the
person acting in response to provocation does not anticipate or prevent
harm. The person responds to it and retaliates. Courts are cautious to
recognise provocation as a complete defence, because no-one should be
encouraged to take the law into his or her own hands.89
There are different views on the nature of provocation as a complete
defence:
• Provocation can exclude fault on the part of the person who

responded to the provocation. This is either because the provoked
person did not have the capacity to form intent 90 or because mental
capacity to decide between right and wrong and to act accordingly
may have been affected by the provocation and the person may
therefore lack the capacity for fault.91
• Provocation merely affects the amount of compensation that the
person who acts provocatively is entitled to for the consequent
infringement of his or her personality rights. He or she may be
entitled to less compensation or may forfeit the right to
compensation entirely.92 Courts may even deny the right to
compensation altogether in terms of this approach.
• The third view is that provocation can be a ground of justification. In
other words, courts may regard the person who caused the
infringement of personality rights in response to provocation as
having acted reasonably and therefore lawfully.93
COUNTER Self-control
POINT Boberg 94 argues, with reference to Blou v Rose Innes,95 that self-control should
be displayed in the face of provocation and that an aggressive response is
‘natural, but it is against the law’.
Bester v Calitz96
The Court in this case adopted the view that provocation can be a ground of justification. This is the case
that has so far dealt most comprehensively with the theoretical basis for recognising provocation as a
defence. The case dealt with a claim for damages that arose from insulting remarks made in anger and
elicited by prior provocative conduct, and an insult of a similar nature. The Court held that in such
circumstances, the elicited response is not wrongful. The traditional justification grounds are merely clear
expressions of the application of the general criterion of wrongfulness, and should not be regarded as a
numerus clausus of defences. Where one cannot apply the traditional justification grounds, but it still
appears that the person’s conduct who responded to provocation was reasonable, one should not
impose liability. One determines wrongfulness according to the general criterion of reasonableness, which
is an objective standard based on the boni mores or legal convictions of the community. When applying
this standard, the approach should not be idealistic. One needs to take account of human weaknesses
and the average person’s inclination to respond angrily to insult or other forms of provocation. According
to the legal convictions of the community, one must regard reacting angrily and swearing at a person
whose conduct was provocative, as reasonable and not wrongful.
The Court enquired whether the person who was incited by provocation reacted as a normal
reasonable person would. This is instead of adopting the idealistic approach that an aggressive
response to provocation is unnecessary and pointless once one has all the facts of the situation after
the event, and that self-control is required in the face of provocation. The Bester case provides a good
theoretical basis for recognising provocation as a complete defence by applying the general criterion of
reasonableness according to the boni mores or legal convictions of the community. Reasonableness in
this case is equated to the reaction of a normal reasonable person.
Relying on provocation as a ground of justification requires the following:

• The provocation must be of such a nature that one can regard the
conduct in reaction to it, whether by way of insult, defamation or
even physical assault, as reasonable.97 The general standard for
determining wrongfulness in this case involves the question of
whether a reasonable person in the position of the defendant would
have been similarly provoked.
• The reaction to the provocation must be ‘an immediate and
reasonable retaliation’. 98 One may regard an immediate,
spontaneous reaction in the heat of the moment as reasonable,
whereas a deliberate or pre-meditated later retaliation may not be
reasonable.
• The nature of the conduct in reaction to the provocation must be
reasonably in proportion to the provocation.99 Courts will assess the
proportionality objectively, considering all the circumstances of the
case, including the value and nature of the interests affected by the
provocative and retaliatory conduct respectively. As a rule, verbal
provocation will not justify physical assault, even if the verbal
provocation was gravely insulting or defamatory.100 Physical
provocation may justify a retaliatory assault, provided that the
retaliation is proportionate to the provocation.101 Both physical
provocation and verbal provocation may justify insulting or
defamatory remarks in retaliation.102 Where the retaliatory conduct
was disproportionate to the provocative conduct, the defence of
provocation will not succeed as a complete defence. However, the
damages of the claimant who provoked the retaliation may be
reduced.103

A statutory provision can justify causing harm that would otherwise be
wrongful.104 The effect of a statutory provision is to authorise the
infringement of certain rights and correspondingly to restrict the rights of
the persons affected. The person who claims statutory authority must not
exceed the limits of that authority. That person also bears the onus of
proving that the causing of harm was within the bounds of the statutory
authority.105
The question of whether the causing of harm was authorised by a
statutory provision is one of interpretation, and the normal rules of
statutory interpretation apply. However, courts have also adopted certain
guidelines and presumptions to determine whether the causing of harm
in a particular instance is authorised by statute. Courts use the guidelines
and presumptions described below to help them in the interpretation
process, but they are not conclusive.106
• The general rule is that the intention of the legislature will determine
whether causing harm in a particular instance is authorised. Courts
determine the intention of the legislature according to the normal
rules of statutory interpretation.107
• If the statute is directory in respect of an action that involves the
infringement of private interests, and does not provide for
compensation, this indicates that the infringement of rights and
consequent harm is justified.108
• If the statute is merely permissive and general in respect of an action
that involves the infringement of private interests, and does not
provide for compensation, courts presume that the infringement of
rights and consequent harm is not justified. However, there is no
such presumption where a public body is permitted to act in the
public interest or where the permission to act is localised or
specific.109
• In the case of certain empowering statutes, the intrinsic physical
nature of the works or acts authorised is such that their execution
involves disturbing private rights.110 In Johannesburg Municipality v
African Realty Trust Ltd 111 the Court held that it was impossible to
exercise the power conferred (constructing streets and drains)
without increasing the flow of water onto the plaintiff’s land. In
Breede River (Robertson) Irrigation Board v Brink 112 the Court held
that it was impossible to build miles of irrigation canal across the
countryside without interfering with the natural flow of surface
drainage water. In Bloemfontein Town Council v Richter 113 the
evidence proved that removing silt from the dam would inevitably
cause some damage to the plaintiff’s adjacent property. In
Germiston City Council v Chubb & Sons Lock and Safe Co (SA) (Pty)
Ltd 114 the Court held that constructing roads on sloping ground
would inevitably interfere with the rights of adjoining landowners by
changing the natural drainage in that location.
• Courts will apply the general criterion of reasonableness to
determine whether the bounds of statutory authority have been
exceeded. For example, where alleged statutory authority for the
infringement of property rights is concerned, the question is whether
there has been unreasonable interference with the rights of the
plaintiffs to enjoy their property.115 In earlier cases, courts referred in
this regard to the question of whether the statutory powers have
been negligently exceeded.116 However, subsequently courts have
recognised that the question is one of wrongfulness, not fault.117
Courts will take into account the extent to which it was reasonably
possible to avoid the infringement of private interests or to minimise
harm resulting from the exercise of statutory powers. The statutory
power must be exercised diligently to avoid harm to another. In this
regard, the cost and effectiveness of measures to prevent harm are
relevant.118 In cases of alleged wrongful arrest or excessive use of
force when making an arrest, courts take into account the possibility
of an alternative or less harmful conduct.119

Certain public officials, such as judges, magistrates, prosecutors and
members of statutory licensing boards, are authorised to perform
functions that may negatively affect the interests of other persons – for
example, where a judgment by a judge or magistrate contains negative
comments about the credibility of a witness. The infringement of
personality or other interests due to the reasonable performance of
official duties is justified in the public interest.120 In many cases, official
authority is conferred by statute – for example, the authority of the police
to make arrests and conduct searches, as well as the rules of statutory
authority set out in section 10.8 in this book, will apply. Where official
duties involve discretion and are not defined in detail by statutory
provisions, the question is whether the performance of such duties was
reasonable and within the bounds of official authority.121 If a prosecutor
at a bail application negligently fails to place all relevant information
before the court, and the accused is released and then commits a violent
sexual crime, there is no prosecutorial immunity and the State may be
liable for harm suffered by victims. 122 An official who performs official
duties with an ulterior motive, malice or dishonesty acts unreasonably
and outside the bounds of authority (or, in the context of defamation,
outside the ambit of a privileged occasion), and the resulting
infringement of private interests is accordingly wrongful.123

Obedience to orders as a ground of justification has so far only been
raised in criminal cases. However, it could also arise as a defence in a
civil action, for example, where a policeman is given a wrongful order by
a superior officer to shoot at a person running away. The question is to
what extent causing injury or death by the junior policeman is justified by
obedience to orders. In S v Banda124 the Court held that obedience to a
wrongful order can be a ground of justification in the following
circumstances:
• The order must come from a person in a position of lawful authority
over the accused.
This requirement involves a question of fact.
• There must be a duty on the accused to obey the order given. This
involves the question of when a duty to obey a wrongful order exists,
or when obedience to a wrongful order can be a ground of
justification for causing harm. Courts have accepted that there is no
absolute or blind duty to obey orders.125 According to some
decisions, there can never be a duty to obey a wrongful order,126
whereas others hold that only the execution of a deliberately
wrongful order is itself wrongful.127 Courts must then determine
whether an order is deliberately wrongful according to the
judgement of a reasonable person.128 This approach is in line with
the approach of the Appellate Division in S v Goliath,129 where the
Court held that the law does not require that a person acting under
duress conforms to a higher standard than that of the average
person. So, compulsion or duress can be a complete defence, even to
a charge of murder. A person who is under pressure to obey an order
from a superior and who needs to decide at the same time whether
the order is lawful or not, is acting under compulsion or duress.
Rumpff JA held the terms of the general criterion of reasonableness,
which agrees with the boni mores or legal convictions of the
community, three years after Goliath in the Ewels case.130 The person
acting under compulsion or duress only has to act as the average or
reasonable person would under the circumstances.
• The defendant must have caused no more harm than was necessary
to carry out the order. This requirement again involves the general
criterion of reasonableness. Courts must take into account all the
circumstances of the case when determining whether it was possible
to avoid harm or to cause less harm.

Persons who exercise lawful authority over children, such as parents131
and persons in loco parentis, for example, guardians and teachers,132 may
in terms of such authority lawfully punish the children for education and
correction.
The authority to discipline of persons in loco parentis is an original
authority and does not derive from delegation by parents,133 although a
parent or guardian may delegate disciplinary powers to another person.
Delegated authority to discipline cannot be wider or more
comprehensive than the original authority.134 It involves discretion,135
which must be exercised reasonably and not in an unpredictable way.136
Section 10 of the South African Schools Act 84 of 1996 prohibits
corporal punishment in public as well as independent (private) schools,
by school principals, teachers and persons in charge of school hostels.
The implication of this section is also that parents may not delegate the
power to administer corporal punishment to a person in a public or
private school.
The authority to discipline must be exercised moderately and
reasonably,137 and in accordance with the general criterion of
reasonableness. The purpose of the punishment must be either to correct
behaviour or be educational.138 Repeating a punishment that has not
worked139 and malice or improper motive140 indicates unreasonableness.
Punishment that may be regarded as cruel, inhumane or degrading is
unreasonable and wrongful.141
Courts take the following factors into account when determining the
reasonableness of the punishment:142
• The nature and seriousness of the transgression
• The means and degree of punishment or force used
• The physical and mental condition of the child
• The gender and age of the child
• The physical disposition of the child
• The purpose and motive of the person inflicting the punishment.
Punishment by a person in a position of lawful authority is presumed to

be reasonable and without malice.143 The person who alleges the
opposite bears the onus of proving that the punishment was
unreasonable.144
10.12 Impossibility
The law will not enforce impossibility. Where the circumstances indicate
that there was a duty to act positively to prevent harm to another person,
but it was impossible for the defendant to act, the failure to prevent harm
will not be wrongful. For example, a strong swimmer who would
normally be able to save a person from drowning may not be able to
because of a cramp in his or her leg. One could say that impossibility is a
ground of justification in such a case, because in the circumstances the
defendant’s failure to prevent harm is reasonable and in accordance with
the boni mores or the legal convictions of the community. One could also
say that a duty to act positively does not arise at all in such
circumstances, because it is not unreasonable for the defendant,
according to the boni mores or the legal convictions of the community, to
fail to rescue the swimmer. In theory, impossibility can be a separate
ground of justification. However, courts also take into account physical
or economic impossibility when applying the general criterion of
reasonableness.145
Figure 10.1 Grounds for justification: Defences directed at the wrongfulness element
2 1992 (4) SA 630 (D) at 650J.
3 Mabaso v Felix 1981 (3) SA 865 (A).
4 See, for example, Roux v Hattingh 2012 (6) SA 428 (SCA).
5 See Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) at 778.
6 See Clark v Welsh 1976 (3) SA 484 (A) (golf); Boshoff v Boshoff 1987 (2) SA 694 (O) (squash);
Roux v Hattingh 2012 (6) SA 428 (SCA) (rugby).
7 See Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T); Castell v De Greeff 1994 (4)
SA 408 (C); Broude v McIntosh 1998 (3) SA 60 (SCA).
8 1904 TS 340 at 344.
9 National Media Ltd v Jooste 1996 (3) SA 262 (A). In Ketler Investments CC t/a Ketler
Presentations v Internet Service Providers’ Association 2014 (2) SA 569 (GJ) the Court held
that the defendant’s post-publication withdrawal of consent was irrelevant.
10 1958 (1) SA 638 (T).
11 Section 129(7) of the Children’s Act 38 of 2005.
12 Section 129(6) of the Children’s Act 38 of 2005.
13 Waring & Gillow Ltd v Sherborne 1904 TS 340.
14 R v McCoy 1953 (2) SA 4 (SR); S v Collett 1978 (3) SA 206 (RA).
15 1994 (4) SA 408 (C).
16 At 425I.
17 At 426G.
18 At 426H.
19 At 426I–J.
20 Waring & Gillow Ltd v Sherborne 1904 TS 340 at 344.
21 S v SM 2013 (2) SACR 111 (SCA). Also see the judgment of the Court a quo in S v M 2007 (2)
SACR 60 (W) paras 35–37.
22 Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A); Plumridge v Road Accident Fund
2012 JDR 1309 (ECP).
23 Lampert v Hefer NO 1955 (2) SA 507 (A).
24 Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) at 778.
25 1996 (3) SA 262 (A) at 271–272.
27 1955 (2) SA 507 (A).
28 At 514H.
29 Section 1(1)(a).
31 1973 (4) SA 764 (A).
32 At 779–781.
33 Roux v Hattingh 2012 (6) SA 428 (SCA) para 43.
34 1987 (2) SA 694 (O).
35 At 702.
36 1976 (3) SA 484 (A).
37 1987 (2) SA 694 (O).
38 Roux v Hattingh 2012 (6) SA 428 (SCA).
39 Para 42.
40 Para 43.
41 Para 28.
44 1908 TS 575.
45 1908 TS 575.
46 1995 (1) SA 30 (A).
47 1999 (1) SA 982 (SCA).
48 Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2)
SA 794 (A) at 807.
49 Section 51(1)(c)(i) and 51(3). See also the discussion of exemption clauses in section 12.3
below.
50 See Maimela v Makhado Municipality 2011 (6) SA 533 (SCA) para 16.
51 Maimela v Makhado Municipality 2011 (6) SA 533 (SCA) para 19.
52 1975 (2) SA 85 (SWA).
53 [2010] 1 All SA 19 (SCA).
54 S v Kibi 1978 (4) SA 173 (E) at 179; S v Bradbury 1967 (1) SA 387 (A) at 393 and 404 (in this
case, the view was expressed that a person who voluntarily joins a violent gang cannot rely
on a situation of necessity if he is later forced by the gang to commit murder).
55 R v Mahomed 1938 AD 30, where the accused had kidnapped a girl and was later attacked
by a group of people who wanted to free the girl.
56 See S v Bradbury 1967 (1) SA 387 (A) at 390–393 and 404.
57 (1884) 14 QBD 273 DC.
58 1972 (3) SA 1 (A).
59 1990 (1) SA 512 (C) at 526D–E.
60 See Ntsomi v Minister of Law and Order 1990 (1) SA 512 (C) at 526–527.
61 R v Ndara 1955 (4) SA 182 (A).
62 See section 10.5.
63 R v Van Vuuren 1961 (3) SA 305 (E).
64 Ntai v Vereeniging Town Council 1953 (4) SA 579 (A); Ex Parte Die Minister van Justisie: In
re S v Van Wyk 1967 (1) SA 488 (A); S v Mogohlwane 1982 (2) SA 587 (T).
65 S v Mogohlwane 1982 (2) SA 587 (T); S v Kibi 1978 (4) SA 173 (E).
66 R v Patel 1959 (3) SA 121 (A).
67 S v Mogohlwane 1982 (2) SA 587 (T).
68 Cf R v K 1956 (3) SA 353 (A).
69 Ntanjana v Vorster and Minister of Justice 1950 (4) SA 398 (C).
70 R v Van Vuuren 1961 (3) SA 305 (E).
71 Chetty v Minister of Police 1976 (2) SA 450 (N) at 455–456; Thabethe v Minister of Police
1981 (3) SA 569 (D) at 573.
72 Ntsomi v Minister of Law and Order 1990 (1) SA 512 (C) at 527–528.
73 See R v Zikalala 1953 (2) SA 568 (A); R v Molife 1940 AD 202; R v Patel 1959 (3) SA 121 (A);
Ntsomi v Minister of Law and Order 1990 (1) SA 512 (C) at 530.
74 Ex Parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A) at 501; Ntsomi v
Minister of Law and Order 1990 (1) SA 512 (C) at 526.
75 1950 (4) SA 398 (C) at 406A–D. See also S v Ntuli 1975 (1) SA 429 (A) at 437E, and Ntsomi v
Minister of Law and Order 1990 (1) SA 512 (C) at 527–528.
76 1914 AD 273 at 286.
77 Cf Ntanjana v Vorster and Minister of Justice 1950 (4) SA 398 (C) at 406A–D; S v Ntuli 1975
(1) SA 429 (A) at 437E; Ntsomi v Minister of Law and Order 1990 (1) SA 512 (C) at 526–527.
78 Ntanjana v Vorster and Minister of Justice 1950 (4) SA 398 (C); Ntsomi v Minister of Law and
Order 1990 (1) SA 512 (C) at 527–528.
79 2001 (4) SA 854 (W).
80 Para 16.
81 2006 (4) SA 150 (SCA).
82 2006 (4) SA 150 (SCA) at 158–159.
83 Ex Parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A) at 496–497.
84 Ex Parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A) at 497.
85 Ex Parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A) at 498.
86 1967 (1) SA 488 (A) at 498.
87 At 504–505.
88 According to D 48.5.22.3 a father, A, will not be liable for assaulting a man whom he catches
having intercourse with his (A’s) daughter. Voet, as translated by Gane, Commentary on the
Pandects XLVII.10.20 (vii), states as follows:
It is not unlike this (self-defence) when on being provoked a person has retaliated
with a wrong, since wrongs appear in that way to have been set off in so far as a
civil action could have been brought. The retaliation of a wrong does not involve a
wrong, since to suffer what you have done is no wrong, and he who has meant on
being challenged to avenge himself is to be pardoned.
In the following cases, provocation was accepted as a defence: Powell v Jonker 1959 (4) SA
443 (T) at 445–446; Dzvairo v Mudoti 1973 (3) SA 287 (RA); Bennett v Minister of Police 1980
(3) SA 24 (C); Bester v Calitz 1982 (3) SA 864 (O) at 875 and 880–881; Wapnick v Durban City
Garage 1984 (2) SA 414 (D) at 419–420.
89 Bester v Calitz 1982 (3) SA 864 (O) at 876–877.
90 Jeftha v Williams 1981 (3) SA 678 (C).
91 Powell v Jonker 1959 (4) SA 443 (T); Wessels v Pretorius NO 1974 (3) SA 299 (NC) at 301;
Winterbach v Masters 1989 (1) SA 922 (E) at 925.
92 Powell v Jonker 1959 (4) SA 443 (T) at 444–445; Winterbach v Masters 1989 (1) SA 922 (E) at
925.
93 Mordt v Smith 1968 (4) SA 750 (RA); Dzvairo v Mudoti 1973 (3) SA 287 (RA); Bester v Calitz
1982 (3) SA 864 (O) at 875 and 878–881; Wapnick v Durban City Garage 1984 (2) SA 414 (D)
at 419–420.
95 1914 TPD 102 at 104.
96 1982 (3) SA 864 (O) at 880.
97 Bester v Calitz 1982 (3) SA 864 (O) at 875 and 878–881.
98 Powell v Jonker 1959 (4) SA 443 (T) at 445; Dzvairo v Mudoti 1973 (3) SA 287 (RA).
99 Powell v Jonker 1959 (4) SA 443 (T) at 446; Bennett v Minister of Police 1980 (3) SA 24 (C) at
31–32.
100 Blou v Rose Innes 1914 TPD 102; Bantjes v Rosenberg 1957 (2) SA 118 (T); Bennett v Minister
of Police 1980 (3) SA 24 (C) at 31–32, but see D 48.522.3, stating that a father, A, will not be
liable for assaulting a man whom he catches having intercourse with his (A’s) daughter.
101 Powell v Jonker 1959 (4) SA 443 (T) at 446; Bennett v Minister of Police 1980 (3) SA 24 (C) at
31–32.
102 Kernick v Fitzpatrick 1907 TS 389 at 394; Kirkpatrick v Bezuidenhout 1934 TPD 155 at 158–
159. Cf also Jeftha v Williams 1981 (3) SA 678 (C) at 683, where Grosskopf J stated:
My own sense of what is reasonable leads me to consider that it should not be
lawful for a person to publish defamatory matter about another merely because he
loses his temper, whatever the provocation may be.
In this case, it was held that provocation can exclude fault in the form of intention rather
than wrongfulness.
103 Mulvullha v Steenkamp 1917 CPD 571 at 573; Powell v Jonker 1959 (4) SA 443 (T) at 446.
104 Union Government (Minister of Railways) v Sykes 1913 AD 156; Johannesburg Municipality
v African Realty Trust Ltd 1927 AD 163; East London Western Districts Farmers’ Association
v Minister of Education and Development Aid 1989 (2) SA 63 (A); Simon’s Town
Municipality v Dews 1993 (1) SA 191 (A); Government of the Republic of South Africa v
Basdeo 1996 (1) SA 355 (A).
105 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 175; Sambo v Milns
1973 (4) SA 312 (T) at 320; During NO v Boesak 1990 (3) SA 661 (A) at 673.
106 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 172–173; East London
Western Districts Farmers’ Association v Minister of Education and Development Aid 1989
(2) SA 63 (A) at 70.
107 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163, at 172; Simon’s Town
Municipality v Dews 1993 (1) SA 191 (A) at 195–196.
108 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 171–172.
109 See Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 172–173; Breede
River (Robertson) Irrigation Board v Brink 1936 AD 359 at 366.
110 East London Western Districts Farmers’ Association v Minister of Education and
Development Aid 1989 (2) SA 63 (A) at 72.
111 1927 AD 163.
112 1936 AD 359.
113 1938 AD 195.
114 1957 (1) SA 312 (A).
115 See East London Western Districts Farmers’ Association v Minister of Education and
Development Aid 1989 (2) SA 63 (A) at 68.
116 See Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 172–173;
Bloemfontein Town Council v Richter 1938 AD 195 at 231.
117 Simon’s Town Municipality v Dews 1993 (1) SA 191 (A) at 196.
118 Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 172–173; Breede River
(Robertson) Irrigation Board v Brink 1936 AD 359 at 366.
119 Matlou v Makhubedu 1978 (1) SA 946 (A) at 958; Govender v Minister of Safety and Security
2001 (4) SA 273 (SCA); Ex Parte Minister of Safety & Security: In re S v Walters 2002 (4) SA
613 (CC).
120 See May v Udwin 1981 (1) SA 1 (A) at 18, where it was held that public policy and sound
administration of justice require that a magistrate, in discharging his judicial duties ‘should
be able to speak his mind freely without fear of incurring liability for damages for
defamation’.
121 See, generally, Basner v Trigger 1945 AD 22; Ingram v Minister of Justice 1962 (3) SA 225 (W);
May v Udwin 1981 (1) SA 1 (A); Moeketsi v Minister van Justisie 1988 (4) SA 707 (T).
122 Minister of Justice and Constitutional Development v X [2014] 4 All SA 586 (SCA); 2015 (1)
SA 25 (SCA) paras 39–53.
123 See Moeketsi v Minister van Justisie 1988 (4) SA 707 (T) at 713; May v Udwin 1981 (1) SA 1
(A) at 19.
124 1990 (3) SA 466 (BG) at 480.
125 R v Smith (1900) 17 SC 561 at 567; S v Banda 1990 (3) SA 466 (BG) at 480.
126 R v Arlow 1960 (2) SA 449 (T) at 452; R v Van Vuuren 1944 OPD 35 at 38.
127 R v Smith (1900) 17 SC 561 at 567; S v Mule 1990 (1) SACR 517 (SWA); S v Banda 1990 (3) SA
466 (BG) at 480.
128 S v Banda 1990 (3) SA 466 (BG) at 496.
129 1972 (3) SA 1 (A).
130 Minister van Polisie v Ewels 1975 (3) SA 590 (A).
131 R v Janke and Janke 1913 TPD 382 at 385 and 392; Tshabalala v Jacobs 1942 TPD 310 at 313;
Du Preez v Conradie 1990 (4) SA 46 (BG) at 51.
132 R v Scheepers 1915 AD 337 at 338; R v Schoombee 1924 TPD 481; R v Le Maitre and Avenant
1947 (4) SA 616 (C); R v Muller 1948 (4) SA 848 (O); Hiltonian Society v Crofton 1952 (3) SA
130 (A); Du Preez v Conradie 1990 (4) SA 46 (BG) at 51.
133 R v Muller 1948 (4) SA 848 (O) at 860.
134 Du Preez v Conradie 1990 (4) SA 46 (BG) at 53.
135 R v Le Maitre and Avenant 1947 (4) SA 616 (C) at 621–622.
136 S v Lekgathe 1982 (3) SA 104 (B) at 109.
137 R v Scheepers 1915 AD 337 at 338; R v Roux 1932 OPD 59 at 61; R v Jacobs 1941 OPD 7 at 9
and 10; Du Preez v Conradie 1990 (4) SA 46 (BG) at 53.
138 R v Janke and Janke 1913 TPD 382 at 385; Du Preez v Conradie 1990 (4) SA 46 (BG) at 51–52.
139 R v Janke and Janke 1913 TPD 382 at 388.
141 Section 12(1)(e) of the Constitution of the Republic of South Africa Act 108 of 1996.
142 See, generally, R v Janke and Janke 1913 TPD 382 at 385–386; Du Preez v Conradie 1990 (4)
SA 46 (BG) at 51–52.
144 Hiltonian Society v Crofton 1952 (3) SA 130 (A).
145 For instance, where it is physically possible to prevent harm, but so costly that it would be
unreasonable in terms of the legal convictions of the community to expect preventative
conduct, as in Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A).
PART FOUR
Exclusions
CHAPTER 11 Liability in contract excluding action in delict
CHAPTER 12 Exemption clauses
CHAPTER 13 Prescription
Chapter 11
Liability in contract excluding action

in delict
11.1 Introduction
11.2 Why does concurrence of actions in contract and delict matter?
11.3 Exclusively delictual actions arising from a contractual relationship

11.3.1 Delictual actions arising from a pre-contractual context
11.3.2 Contractual duties giving rise to exclusively delictual actions
11.3.3 Delictual actions arising from contractual relationships
11.4 When is there concurrence, and when does liability in contract exclude an action in delict?
11.1 Introduction
A delict may be described as the culpable and wrongful causation of
harm to another, while breach of contract is regarded as the wrongful
causation of harm through the breach of a contractual duty. As discussed
in further detail below, the same conduct may constitute a breach of
contract as well as a delict. In Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd 1 the Court referred to the possibility of
the concurrence of actions as follows:
Roman law recognized the possibility of a concursus actionum, ie the possibility
that different actions could arise from the same set of facts. … The same principles
were accepted and applied in Roman-Dutch law. … In modern South African law we
are of course no longer bound by the formal actiones of Roman law, but our law
also acknowledges that the same facts may give rise to a claim for damages ex
delicto as well as one ex contractu, and allows the plaintiff to choose which he
wishes to pursue.
It follows that a plaintiff may be presented with a choice between

instituting a delictual or a contractual remedy. As the Court stated,
Roman law recognised a concursus actionum between contract and
delict in several instances. However, the consequences of such
concurrence were never mapped out clearly and the Roman lawyers did
not identify a principled basis upon which to choose between the
different remedies.
As is evident from case law, the concurrence of contractual and
delictual actions in modern South African law is particularly relevant in
cases that involve liability for the negligent performance of professional
services. The contractual relationship between a professional person and
his or her client generally involves an implied duty to act with reasonable
care and skill. For instance, a medical practitioner has, at least, an
implied contractual duty to provide his or her professional services with
the necessary skill, diligence and care that is expected of someone in that
profession. At the same time, however, it may be said that a medical
practitioner owes his or her patient a similar legal duty not to cause him
or her any bodily harm in an unjustifiable manner. In the event that a
medical practitioner culpably and wrongfully infringes his or her
patient’s bodily integrity, it would therefore constitute a breach of his or
her contractual duty as well as a delict. Against this background, the
following questions require consideration:
• Why does concurrence of actions in contract and delict matter?
• When does an exclusively delictual action arise from a contractual
relationship?
• When is there concurrence, and when does the existence of an
action in contract exclude an action in delict?
TERMINOLOGY In the broadest sense of the word, concurrency refers to the notion that
the same factual circumstances may give rise to two or more obligations
at the same time. However, it may be helpful to remember that the
concept may also be given different, narrower meanings. A distinction
may be drawn between the concurrency of remedies and the concurrency
of liability. For instance, a plaintiff may have a concurrency of remedies
when, in the same factual scenario, one specific wrongdoer’s culpable
causation of harm results in a breach of contract as well as a delict. For
instance, where a doctor negligently and wrongfully causes harm to a
patient during the course of a medical operation. A plaintiff may also
have more than one remedy available to him or her, which he or she may
institute against two or more defendants. Seen from the side of the
defendant, concurrency of liability refers to a situation where one
defendant’s wrongful and culpable causation of harm may expose him or
her to both contractual and delictual liability with regards to one, specific
plaintiff. This would be the case in the event that a medical practitioner
negligently performs a medical operation. Of course, the defendant may
also incur delictual and contractual liability with regards to more than
one plaintiff, that is, one plaintiff may elect to institute a delictual
remedy against him or her whereas another plaintiff may opt for a
contractual remedy.
11.2 Why does concurrence of actions in contract and

delict matter?
The fact that a plaintiff may have an action in delict as an alternative to a
contractual action is a matter of practical significance, because of the
following important differences between actions for breach of contract
and actions in delict:
• The purpose of remedies based on breach of contract is either to
enforce the contract or to obtain compensation for the non-
fulfillment of its terms. The purpose of a remedy based on delict is to
obtain compensation for harm caused by the infringement of a right
or breach of a duty.
• In delict, there is a right of recovery for patrimonial or non-
patrimonial harm (such as pain and suffering, or injury to
reputation), whereas in contract there is no right of recovery for non-
patrimonial harm.2
• Fault is generally a requirement for delictual liability, whereas
liability for breach of contract is generally not based on fault. For
example, fault is irrelevant to liability for breach of warranty.
• The Apportionment of Damages Act 34 of 1956 applies where the
action for damages is based on delict, but not where it is based on
contract.3 Nowadays contracts for professional work often
incorporate the Apportionment of Damages Act by agreement, so
that contributory negligence is also taken into account in the event of
a contractual claim for damages.
Thoroughbred Breeders’ Association v Price Waterhouse4
This case concerned the contractual liability of auditors for negligently failing to discover that the financial
manager of a company (their client) was involved in large-scale theft from the company. It appeared that
the company itself was careless in failing to properly supervise the activities of the financial manager,
despite being aware that the manager had previously been convicted of theft. Both forms of negligence
contributed to the company’s loss, but the Court held that the company’s fault was comparatively
negligible, and that the Apportionment of Damages Act does not apply to contractual claims for
damages. The concepts of contributory negligence or prevalence of fault historically relate to the law of
delict, and the Apportionment of Damages Act was intended to remedy the all-or-nothing approach in
delictual actions. Therefore, the auditors were liable in full.
• The time when the extent of the harm is calculated for awarding for
breach of contract damages may be different from the time when the
harm occurred for the purposes of delict.
• Claims in delict and contract may be subject to the jurisdiction of
different courts.
• The extent of vicarious liability in delict is different from that in
contract.
• Claims in delict and contract are subject to different rules of private
international law.
• Contractual claims are actively transmissible, whereas some
delictual claims are not.
• Where actions in both contract and delict are available based on the
same facts, the onus of proving or disproving negligence may differ
according to the choice of action, for example, damage done to
goods left with another person.
• There is also an important difference between the values that
underlie contract and delict. Contract law is mainly based on the
notion that people should be free to agree on the details of their
commercial relationship, with the result that a contracting party also
accepts the risks of the contract. The law of delict, on the other hand,
imposes liability on the basis of standards imposed by operation of
law. Failing to act as a reasonable person would have done in the
circumstances can result in liability for negligence. One can regard
the reasonable-person standard as the symbolic point at which the
law of delict limits freedom of action.5 Whereas the law of contract
largely deals with voluntarily assumed obligations, the law of delict
imposes obligations in accordance with the general societal norm of
reasonableness.
11.3 Exclusively delictual actions arising from a

contractual relationship
In some instances, the existence of a contractual relationship can give
rise to an exclusively delictual action. This may occur in a pre-contractual
context, where one person makes certain representations to another with
the view to inducing the latter to conclude the contract. Or, when a
contract has already been concluded, it may be the case that one party
negligently performs his or her contractual duty to the other, which
conduct may provide the basis for delictual liability. Lastly, a contractual
relationship between two parties may also give rise to a delictual action,
without the contract having been breached by either party.
11.3.1 Delictual actions arising from a pre-contractual

context
Pre-contractual liability in delict can arise where a party to a potential
contract in the pre-contractual phase negligently misrepresents facts
inducing another party to enter into the contract.6 This is not a ‘true’
concurrence of contract and delict. This is because the delictual liability
for harm occurs in the pre-contractual phase and is not an alternative to
contractual liability, unless the representation is reinforced in the form of
a contractual warranty.
In 1991, the Appeal Court recognised in Bayer South Africa (Pty) Ltd
v Frost 7 that a negligent misstatement that results in a contract can give
rise to a delictual claim for damages. In this case, the plaintiff purchased
a new type of herbicide spray to use in his vineyards. An agent of the
seller recommended that the plaintiff spray the herbicide by helicopter
and undertook to supervise the spraying operations. During spraying the
herbicide drifted to adjacent lands and caused extensive damage to
crops. The seller was held liable in delict for his negligent misstatement
that wrongfully caused the plaintiff’s harm. The Court held that negligent
misrepresentation is a recognised delictual cause of action, which can
also arise where the parties are in a contractual relationship.
11.3.2 Contractual duties giving rise to exclusively

delictual actions
The negligent performance of contractual duties that causes harm to a
person not involved in the contractual relationship may give rise to a
delictual action by this person, for example:
• Where compliance with electrical wiring regulations is incorrectly
certified in terms of a contract with the owner or seller of the
property.8
• An incorrect sworn valuation provided to the property owner is
presented to a lender to apply for a mortgage loan.9
• A retaining wall is defectively designed, causing loss for a later
owner.10
• A ‘disappointed beneficiary’ does not inherit under a will, because
the testator’s legal adviser had negligently failed to ensure that the
will was properly signed.11
• Negligent performance under a contract to provide security services
may give rise to liability towards a third party for loss of or damage to
property.12
These are examples of purely delictual actions that arise from a

contractual relationship. Concurrence of contract and delict is not in
issue.
11.3.3 Delictual actions arising from contractual
relationships
A contractual relationship, such as that between an employer and
employee, may also give rise to a legal duty not to cause financial loss,
even though no breach of contract is involved. Joubert v Impala Platinum
Ltd 13 is an example of this type of situation. The case involved the
administrative duties of an employer in respect of a master insurance
policy entered into between the employer and an insurance company.
The policy was to provide cover for the employer’s employees. In terms of
the policy, the employer had a contractual duty towards the insurer to
give notice of an employee’s claim as soon as possible after an accident
and to send the claim to the insurer as soon as possible. The employer
failed to send the claim and as a result, the employee forfeited
compensation. The Court held that the employer was liable in delict
towards the employee for negligent omission to fulfill a legal duty
towards the employee.
11.4 When is there concurrence, and when does liability

in contract exclude an action in delict?
In some cases there is concurrence of contract and delict, which allows
the plaintiff a choice of action. This choice is influenced by the
differences between the two actions, referred to in the previous section.
The following cases have recognised concurrence:
• In a contract between lessor and lessee, the lessor can claim for
property damage in either contract or delict.14
• In a contract between doctor and patient, the patient can claim in
delict for alleged negligent performance of professional services that
caused physical harm.15
• In a contract between attorney and client, the client can claim in
delict where negligent performance of professional services caused
pure economic loss to the client.16 However, it is important to note
that in the leading case concerning an attorney’s professional
liability to a client, the client’s action was treated as contractual.17
• In a contract between owner and builder, the Supreme Court of
Appeal has recognised that the builder can be liable in delict to the
owner.18
• The Supreme Court of Appeal has recognised delictual liability for a
negligent misstatement by a bank manager. The bank manager
incorrectly informed a client that a certain amount of money had
been deposited in his account, inducing the client to part with
diamonds, under the impression that he had been paid for them.19
• A financial services company can be liable to a client in delict for the
grossly negligent advice of an employee, on the basis of vicarious
liability. This is despite the existence of a contractual relationship
between the company and the client.20
• An employer owes a common-law duty to its employees to take
reasonable care of their safety. This includes a duty to protect them
from psychological harm caused by, for example, sexual harassment
by co-workers. Legal and public policy considerations require that
an employer takes reasonable steps to prevent sexual harassment of
its employees in the workplace and to compensate the victim for any
harm caused in this regard should it negligently fail to do so. The fact
that there was a contractual relationship between the employee and
the employer does not alter the position. Delictual and contractual
actions that arise from the same set of facts can concur.21
• Where one company bought spices from another for use in its food
business, the Court held that the plaintiff had an alternative claim in
delict for pure economic loss caused by delivery to it of spices
containing a banned colourant.22 The Court accepted that the same
facts may give rise to a claim for damages ex contractu and
alternatively ex delicto, but also that the breach of a contractual duty
is not per se wrongful for the purposes of Aquilian liability.23 The
negligent causing of pure economic loss is not prima facie wrongful,
but in this case, policy considerations, such as knowledge of the
potential harm, the fact that the loss was single and determinate, and
the manufacturer’s general duty to take reasonable steps to ensure
that defective products do not reach the market, indicated
wrongfulness for the purposes of delictual liability.
• If a financial investment institution, tasked with the responsibility of
investing a trust’s funds, releases the trust funds to a third party
under circumstances where it should have suspected fraud on the
part of the latter, the trustees of the trust’s delictual claim will be
sustainable in law.24 The loss of trust funds was triggered by the
conclusion and execution of a sale of shares agreement in terms of
which several of the trust’s shareholders sold their shareholding in
the trust to Fidentia Holdings Ltd. Following the conclusion of the
agreement, Fidentia’s directors were appointed as the new board of
directors of the trust. As the new management, the board requested
the financial institution to transfer the funds to the trust which, in
turn, would transfer the funds to Fidentia. This was eventually done,
whereafter, through maladministration and misappropriation, the
funds were depleted. Prior to the sale of shares agreement being
concluded, the financial institution and the trustees of the trust
entered into two contracts. The Court held that the contractual
relationship between the financial institution and the trust did not
bar the trustees from instituting a delictual claim for the pure
economic loss which it had suffered. Instead, the contractual
relationship was the basis for the application of legislation which
imposed certain legal duties on the financial institution. The Court
thus held that the breach of these statutory duties amounted to the
wrongful and culpable causation of the trust’s pure economic loss
and that the trustees’ delictual claim was good in law.
Courts, therefore, recognise an overlap of delict and breach of contract in

cases of property damage or bodily harm. Courts may also recognise this
overlap in some cases of pure economic loss, where the delictual action is
based on a general duty to prevent loss, as opposed to a duty deriving
from a specific term of a contract. However, in some cases, contract
‘trumps’ delict, so that the existence of a contract between the parties is a
defence to an action in delict.
Two important cases where the Supreme Court of Appeal refused to
recognise actions in delict within a contractual setting are discussed
below.
Lillicrap, Wassenaar and Partners v Pilkington Bros (SA) (Pty) Ltd25
The plaintiff, Lillicrap, was a firm of structural engineers. The defendant, Pilkington, was a manufacturer of
glass products. In mid-1975, Pilkington formally appointed Lillicrap as consulting engineers to design
and supervise the construction of a glass plant on a particular site. Salanc Contractors (Pty) Ltd was
employed as the building contractor to construct the plant. In mid-1976, Pilkington assigned its contract
with Lillicrap to Salanc. As a result of the assignment, there was no longer any direct contractual
relationship between Pilkington and Lillicrap. Instead, Lillicrap’s status was changed to that of a
subcontractor for Salanc. When the completed plant was put into operation, it became apparent,
because of soil instability on the site, that there were slight movements between crucial components in
the plant. These movements rendered the plant unsuitable for manufacturing glass. Pilkington sought to
recover the cost of fixing these defects from Lillicrap, on the basis that the defects resulted from its
professional negligence in designing and supervising the construction of the plant. Two scenarios arose
from these facts:
• At first there was a direct contractual nexus between the parties.
• Later there was no such direct contractual relationship between them.
The question was whether policy considerations favoured an extension of Aquilian liability in either case.
Grosskopf AJA, writing for the majority, held that there was no need for such extension. Recognising an
action in delict in a commercial context, where the parties had chosen to govern their relationship in
terms of a contract, could create ‘a trap for the unwary’. It could also lead to avoidance of specific
contractual terms relating to, for example, arbitration of disputes and limitation of liability. Additionally, it
could create uncertainty regarding the standard of care required (a contractual or delictual standard). A
key consideration was that this case did not involve an infringement of rights of property or person, but
only the infringement of a contractual duty to perform specific professional work with due diligence. There
was no ‘independent’ duty for the purposes of delictual liability. In the view of most commentators, this
judgment implies that only a contractual remedy is available where pure economic loss (as opposed to
physical damage or personal injury) is caused by negligent performance of a contractual duty, notably in
the relationship between a client and a professional practitioner.26
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd27
The appellants were trustees of a trust that leased and operated an aquarium. They claimed damages in
delict for pure economic loss that resulted from the negligent design by the respondent structural
engineers of the exhibit tanks at the aquarium. They alleged that the respondent’s negligence began
before the contract between them was concluded, but that even at that stage, the respondent was under
a legal duty to act without negligence when deciding on an appropriate design for the tanks. The
respondent excepted to the appellants’ particulars of claim on the basis that the facts pleaded failed to
establish that the alleged legal duty existed. The facts pleaded were that:
• Prior to the trust forming, a joint venture agreement had been concluded by two potential investors in
the aquarium project with the object of investigating the feasibility of the project.
• The project was contemplated by all concerned, including the joint venture and the respondent.
• The aquarium would be developed and operated by a trust, which was yet to be formed.
• The respondent agreed to assist in investigating the feasibility of the project with a view to its formal
appointment in the event of the project’s going ahead.
The Court held that negligently causing pure economic loss was wrongful, and therefore actionable, only
where the defendant had been under a legal duty not to act negligently. The Court determined whether
such a legal duty existed by considering relevant public or legal policy considerations that were
consistent with constitutional norms. The appellants were asking the Court to accept that a legal duty
existed that up until then was not recognised by our law. Therefore, they were asking the Court to extend
the limits of delictual liability. Whether the Court would oblige depended upon whether there were any
considerations of public or legal policy that required the extension. The approach of our courts is not to
extend the scope of the Aquilian action to new situations unless there are positive policy considerations
that favour the extension. However, in this case, there was no need for the extension sought because:
• It was intended from the outset that if the project proceeded at all, it would be governed by a
contractual relationship that would be created once the trust was formed.
• It was foreseen from the outset that the trust could not possibly suffer any damages through the
negligent conduct of the respondent before the contract was concluded.
The trust could have protected itself against this risk of harm by inserting, either in the agreement
between the joint venture and the respondent, or in the contract of formal appointment of the
respondent, appropriate contractual stipulations that covered conduct occurring before the trust was
formed. There was no reason to extend the Aquilian action to rescue a plaintiff who could have avoided
the risk of harm by contractual means, but who failed to do so.
In Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions,28

the plaintiff concluded a contract with the defendant for the provision of
cellphone related services. One of the defendant’s outlets issued a
duplicate SIM card to an unknown person, who continued to use the card
to fraudulently transfer a substantial amount of money out of the
plaintiff’s bank account through a series of internet banking transactions.
The plaintiff argued that, in doing so, the defendant ‘failed to adhere to
the duty of care that it owed to the plaintiff by virtue of the contractual
relationship’ insofar as it had failed to verify that the person to whom the
card was issued was the rightful possessor of all rights to the cellphone
number that was connected to the SIM card.29 The Court followed the
reasoning in Lillicrap and held that the:
defendant would not have owed the plaintiff any duty of care if it did not have a
cellphone contractual relationship with the plaintiff.
Furthermore, it also held that the manner in which the cause of action
was couched demonstrates:
clearly that the delictual claim derives from a failure to adhere to a duty of care that
is owed by reason of a contractual relationship between the parties that is of full
force and effect … It is thus clear that the facts of this case fall more readily into the
Lillicrap than into the Holtzhausen divide.30
Similarly, in Nortje v Fakie 31 the appellant and respondent had entered

into a sale agreement in terms of which certain immovable property was
sold to the respondent. The Court had to consider the validity of the
notice given by the appellant’s attorney in terms of which the appellant
attempted to place the respondent in mora. Further, the Court was asked
to determine whether the appellant’s alternative delictual claim was
sustainable in law. On this point, the Court adopted the reasoning of
Grosskopf AJA in Lillicrap and held that the recognition of such claim
would ‘have the effect of eliminating provisions, in the agreement, which
the parties considered necessary or desirable for their own protection.’32
One can draw the following conclusions from these and other cases
on the question of when one can raise an action in contract as a defence,
excluding an action in delict:
• Where property damage or bodily injury is concerned, as opposed to
pure economic loss, concurrence of contractual and delictual
actions is allowed.
• The question of whether there is a legal duty for delictual liability
within a contractual relationship is one of wrongfulness. The general
criteria of reasonableness, boni mores, or ‘legal convictions of the
community’, apply. In the final instance it is a question of policy.
• An important policy consideration is whether an action in delict
within the contractual setting is needed, as an alternative to a
contractual action.
• Courts will not grant a delictual action if its effect is to avoid specific
contractual terms relating to, for example, arbitration of disputes
and limitation of liability.
• Courts will not grant a delictual action if its effect is to create
uncertainty regarding the standard of care required (a contractual or
delictual standard).
• Courts will not grant a delictual action unless there was an
‘independent duty’ for the purposes of delictual liability. This
‘independent delict test’ does not mean that one should ignore the
contractual relationship, but it indicates that one can infer the duty
without relying on a specific term of the contract. In the Holtzhausen
case 33 the Court interpreted the Lillicrap case as follows:
Lillicrap decided that no claim is maintainable in delict where the negligence relied on consists
in the breach of a term in a contract.
• The Court should be satisfied that the plaintiff could not have
protected against the harm in question by appropriate contractual
stipulations. Courts will not extend the Aquilian action to rescue a
plaintiff who could have avoided the risk by contractual means, but
who failed to do so. This consideration is particularly important
where the parties failed to govern a particular aspect or phase of
their transaction by contract, as in the Trustees, Two Oceans
Aquarium Trust case. However, one cannot apply this consideration
too widely, as illustrated by the example of delictual liability for pre-
contractual misrepresentation, in which case, the action in delict is
not excluded because the party who was misled failed to reinforce
the pre-contractual representation in the form of a contractual
warranty.
1 1985 (1) SA 475 (A) at 496D–G.

2 Administrator, Natal v Edouard 1990 (3) SA 581 (A) at 595–596.
3 Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA).
4 2001 (4) SA 551 (SCA).
5 Galligan Jr ‘Contortions along the boundary between contracts and torts’ (1994–1995) 69(2)
in Tulane Law Review 457 at 460.
6 Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 570; Thatcher v Katz 2006 (6) SA
407 (C) para 16. See also NSC Carriers & Forwarding CC v Hyprop Investments Ltd 2013 (1)
SA 340 (GSJ), which confirms that a delictual claim will lie where someone’s fraudulent
misrepresentation induces another to enter into a contract and it results in harm for the
latter.
7 1991 (4) SA 559 (A).
8 EG Electric Co (Pty) Ltd v Franklin 1979 (2) SA 702 (E).
9 Perlman v Zoutendyk 1934 CPD 151.
10 Tsimatakopoulos v Hemingway, Isaacs & Coetzee CC 1993 (4) SA 428 (C).
11 Pretorius v McCallum 2002 (2) SA 423 (C).
12 Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W); Longueira v
Securitas of South Africa (Pty) Ltd 1998 (4) SA 258 (W). In Viv’s Tippers (Edms) Bpk v Pha
Phama Staff Services (Edms) Bpk t/a Pha Phama Security 2010 (4) SA 455 (SCA); [2011] 1 All
SA 34 (SCA) the Supreme Court of Appeal refused to recognise a legal duty on the part of the
provider of security services towards the owner of a vehicle stolen from premises protected
by the security company, inter alia on account of exclusion of liability in the service contract
(to which the owner of the vehicle was not a party).
13 1998 (1) SA 463 (BH).
14 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at
496E–F.
16 Rampal (Pty) Ltd v Brett Wills and Partners 1981 (4) SA 360 (D).
17 Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A); and see also Bouwer v Harding 1997 (4)
SA 1023 (SE), where the liability of an attorney to a client was the subject of an action for
breach of contract, and the attorney was found to be in breach of his contractual duties by
negligently failing to advise the client correctly on the tax implications of structuring a sale
of property in a particular manner. See also Mlenzana v Goodrick & Franklin Inc 2012 (2) SA
433 (FB), where an attorney’s failure to obtain the requisite information and timeously
lodge the plaintiff’s claim against the Road Accident Fund, which resulted in the
prescription of the client’s claim, was regarded as a negligent breach of the attorney’s
contract of mandate. See also Steyn NO v Ronald Bobroff & Partners 2013 (2) SA 311 (SCA).
18 SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd 2000 (4) SA 1019 (SCA) para 7.
19 Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA) para 6.
21 Media 24 Ltd v Grobler 2005 (6) SA 328 (SCA) para 69.
22 Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 (4) SA 276 (SCA).
23 Para 33.
24 Living Hands (Pty) Ltd v Ditz 2013 (2) SA 368 (GSJ).
25 1985 (1) SA 475 (A).
26 Midgley ‘The nature of the inquiry into concurrence of actions’ (1990) 107(4) SALJ at 621;
Van Aswegen ‘Die Toets vir die Bestaan van ’n “Onafhanklike Delik” in die Geval van
Kontrakbreuk’ (1992) 55(2) THRHR 271 at 273–274.
27 2006 (3) SA 138 (SCA).
28 2012 (1) SA 615 (GSJ).
29 2012 (1) SA 615 (GSJ) para 16.
30 2012 (1) SA 615 (GSJ) paras 27–28.
31 2013 (1) SA 577 (KZP).
32 2013 (1) SA 577 (KZP) para 13.
33 Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA) para 6.
Chapter 12
Exemption clauses
12.2 Interpretation
12.3 Exemption clauses and the Constitution of the Republic of South Africa, 1996

A prior agreement not to claim damages if another person’s conduct
causes harm (pactum de non petendo in anticipando) can exclude the
recovery of damages. Such an agreement or exemption clause in an
agreement can provide a person with a complete defence against a claim
for damages as a result of anticipated harm that is later realised. This
excludes liability for negligence in breach of contract as well as delict.1 If
the defendant had contractually excluded liability for negligently caused
harm, the plaintiff cannot evade this by suing in delict. However, this is
only the case if the defendant discharges the onus of proving that the
terms of the exemption exclude liability in the particular circumstances.2
The Consumer Protection Act 68 of 2008 now limits the scope of
contractual exemption clauses. For instance, section 51(1)(c) of the Act
prohibits the exemption of a supplier of goods or services from liability
for any loss directly or indirectly attributable to gross negligence of the
supplier or any person acting for or controlled by the supplier.
The requirements for a valid agreement to exclude liability are the
same as for any other contract. The requirement of authorisation to
contract on behalf of another person applies. This means that one person
cannot conclude such an exemption contract on behalf of another
without authorisation. So, for example, a prior agreement by a
breadwinner that no claim will be made in the event of his or her
negligently caused injury or death, even if such an agreement binds his or
her estate and dependants, will not exclude the right of his or her
dependants to claim compensation for loss of support in the event of his
or her death.3 An exemption clause that would have been effective
against a deceased person is not necessarily effective against his or her
dependants. It is also questionable whether courts will consider an
exemption from liability for causing death as valid.4
Courts appear to accept that a parent or guardian can conclude a
pactum de non petendo in anticipando on behalf of a minor child, for
example, where a school or sports club requires this from the parent or
guardian to allow the child to take part in an educational activity or
sport,5 or where the terms for entry into an amusement park excludes
liability.6 Although participation in an educational activity or sport is to
the child’s benefit, an agreement that excludes liability for negligently
caused injury to the child is not. In this case, the child should be entitled
to restitutio in integrum, to have the effects of the agreement set aside.7
The effect of such an agreement will depend on the precise ambit of the
agreement and courts tend to interpret such agreements restrictively.8
Courts regard an agreement to exclude liability for harm caused
intentionally as invalid, but regard an agreement to exclude liability for
harm caused by negligence, or even gross negligence, as valid.9
Courts enforce exemption clauses even where the effect appears to
undermine a basic purpose of the contract, such as to be treated with due
care in a hospital,10 or to store valuables safely in a bank vault,11 or to
provide security services.12
PAUSE FOR In Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk t/a Pha
REFLECTION Phama Security13 the plaintiff concluded a lease agreement with Lone Rock, a
construction company, in terms of which it leased several of its trucks to Lone
Rock. Subsequent to the conclusion of the lease agreement, and on the
insistence of the plaintiff, Lone Rock entered into an agreement with the
defendant, a security services company, according to which the defendant was
obliged to provide security services at Lone Rock’s construction site. The
agreement included an exclusion clause in terms of which Lone Rock indemnified
the defendant ‘against any claims from loss or damage or any other claim which
may arise out of the provision of [the defendant’s] services in terms of the
[agreement]’.14 Following the theft of one of its trucks from the premises, the
plaintiff instituted a delictual claim for damages against the defendant.
The Supreme Court of Appeal regarded the theft of the truck as pure
economic loss and thus had to determine wrongfulness.15 The Court overruled
earlier High Court decisions to the effect that an exclusion clause is ‘totally
irrelevant’ in establishing the delictual liability of a contracting party towards a
non-contracting third party.16 In contrast, Lewis JA held that an exclusion clause
is a relevant policy consideration for determining wrongfulness:17
How can the contractual arrangement between the owner of the

premises and the security provider be irrelevant to the question
whether a duty should be imposed on the security provider to third
parties whose property is stolen? … The terms of that contract must,
in my view, play a role in assessing what the convictions of the
community would be in relation to affording a claim for
compensation to a non-contracting party.
The alarming effect of the Court’s ruling is that a contractual relationship between
two contracting parties may negatively affect the rights of an independent third
party.
• Is such a clause, which is concluded at the expense of a third party,
intelligible or desirable in law?
• What role should an exclusion clause play when a contracting party’s
delictual liability towards non-contracting parties are placed in question?
12.2 Interpretation
Where a defendant raises a contractual term as a defence to a claim
founded in delict, the defendant bears the onus of establishing the terms
of the contract.18 The defendant also bears the onus to establish that it did
everything reasonably necessary to bring the term to the attention of the
plaintiff.19 The extent of the exclusion or limitation of liability depends on
the interpretation of the exemption clause. General principles of
interpretation apply, but courts will scrutinise such clauses carefully. In
Van der Westhuizen v Arnold 20 Lewis AJA said the following in this
regard:
There does not, therefore, appear to be any clear authority for a general principle
that exemption clauses should be construed differently from other provisions in a
contract. But that does not mean that courts are not, or should not be, wary of
contractual exclusions, since they do deprive parties of rights that they would
otherwise have had at common law. In the absence of legislation regulating unfair
contract terms, and where a provision does not offend public policy or
considerations of good faith, a careful construction of the contract itself should
ensure the protection of the party whose rights have been limited, but also give
effect to the principle that the other party should be able to protect himself or
herself against liability insofar as it is legally permissible. The very fact, however,
that an exclusion clause limits or ousts common law rights should make a court
consider with great care the meaning of the clause, especially if it is very general in
its application. This requires a consideration of the background circumstances …
and a resort to surrounding circumstances if there be any doubt as to the
application of the exclusion.
If there is no specific reference to negligence in the exemption clause, for

example, in the case of a so-called ‘owner’s risk’ clause, courts must
consider whether the words are extensive enough in their ordinary
meaning to cover negligence on the part of the defendant. If fault in the
form of negligence is a requirement for liability, either in the case of
delict or breach of contract (where the contract expressly or by
implication provides that negligence will constitute breach of contract),
courts will interpret an exclusionary clause (for example, an ‘owner’s risk’
clause) as providing no defence against liability for which negligence is a
requirement. This is, of course, unless the clause expressly states that
such liability will also be excluded.21 In case of doubt, courts will decide
the issue against the party relying on the exemption, as the person
considered responsible for drafting the contract (that is, against the
proferens).22 If the words are extensive enough in meaning to cover
negligence, courts must consider the possibility of another ground of
action that does not require proof of negligence, for example, strict
liability of the owner of an animal or a common carrier.23 It must be clear
that the parties intended the cause of action in issue to be covered by the
exemption.24
12.3 Exemption clauses and the Constitution of the

Republic of South Africa, 1996
Exemption clauses, like other contractual clauses, are subject to the
broad principle of legality, and will be unenforceable if they do not agree
with public policy. The values enshrined in the Constitution reflect public
policy and are therefore relevant to the validity of exemption clauses.
Afrox Healthcare Bpk v Strydom25
This case considered the effect of the Constitution on exemption clauses. The plaintiff had been admitted
to a hospital that the defendant owned, for an operation and post-operative treatment. Upon admission,
the plaintiff signed an agreement that contained an exemption clause, providing that the patient:
… absolved the hospital and/or its employees and/or agents from all liability and indemnified
them from any claim instituted by any person (including a dependant of the patient) for
damages or loss of whatever nature (including consequential damages or special damages of
any nature) flowing directly or indirectly from any injury (including fatal injury) suffered by or
damage caused to the patient or any illness (including terminal illness) contracted by the
patient whatever the cause/causes are, except only with the exclusion of intentional omission
by the hospital, its employees or agents.
The plaintiff alleged that it was also an unspoken term of this agreement that the defendant’s nursing
staff would treat him in a professional manner and with reasonable care. After the operation, certain
negligent conduct by a nurse led to complications setting in, which caused the plaintiff to suffer
damages. The plaintiff argued that the negligent conduct of the nurse had constituted a breach of
contract by the defendant and instituted an action for damages suffered. The defendant relied on the
exemption clause to avoid liability.
The plaintiff contended that the exemption clause was contrary to the public interest, that it was in
conflict with the principles of good faith or bona fides, and that the admission clerk had had a legal duty
to draw his attention to the relevant clause, which he had not done. The public policy grounds that the
plaintiff used for his attack on the validity of the exemption clause were:
• The alleged unequal bargaining positions of the parties
• The fact that the defendant provided medical services, which involved the duty to provide medical
treatment in a professional and caring manner
• The wide ambit of the exemption, which could encompass even gross negligence on the part of the
nursing staff.
The plaintiff also relied on section 39(2) of the Constitution, which obliges every court, when developing
the common law, to promote the spirit, purport and object of the Bill of Rights, to take into account the
fundamental rights contained in the Constitution. The plaintiff’s argument in this regard was that the
exemption clause conflicted with the spirit, purport and object of section 27(1) (a) of the Constitution,
which guaranteed each person’s right to medical care. It was, therefore, in conflict with the public
interest, or alternatively, it was unreasonable, unfair and in conflict with the principle of bona fides or
good faith.
The Court noted that exclusionary and indemnity clauses should be interpreted restrictively. Specific
exclusionary clauses could be declared contrary to public policy and as such unenforceable. The relevant
considerations of public policy were no different from those that apply to other contractual terms. There
was no evidence that indicated that the plaintiff had occupied a weaker bargaining position than the
defendant during the conclusion of the contract. The plaintiff had not relied on gross negligence by the
nursing staff. So, the question of whether the contractual exclusion of a hospital’s liability for damages
caused by the gross negligence of its nursing staff was in conflict with the public interest, was
accordingly not relevant. Even if that were the case, it would not mean the automatic invalidity of the
relevant clause. The provisions would probably rather have been restricted to exclude gross negligence.
With regard to the constitutional argument – that a court first had to decide whether section 39(2) of
the Constitution empowered and obliged – the Court considered constitutional provisions that were not
yet in operation when the contract between the parties began. For the purposes of the judgment, the
Court accepted in favour of the respondent that the provisions of section 27(1)(a) of the Constitution
had to be taken into account. However, the exemption clause did not conflict with that right, and the
elementary and basic general principle was that it was in the public interest that courts enforce contracts
freely entered into and seriously by parties with the necessary capacity. The contention that the
exemption clause was contrary to the public interest therefore failed.
Johannesburg Country Club v Stott26

The Court considered an exemption clause to exclude any liability on the part of the Club for personal
injury or harm to its members or their children whilst on the club premises, however caused. One of the
members of the Club was killed by lightning whilst playing golf and his wife instituted a dependant’s
action in which she sought damages for loss of support and funeral costs. The Court issued a directive
requesting that the legal representatives of the parties provide argument on whether the exemption
clause should be unenforceable on the grounds that it violates public policy, because it is inconsistent
with the constitutionally entrenched right to life. However, despite the directive that it issued, the Court
found that it could decide the matter without having to resort to a constitutional enquiry. The Court held
that the terms of the exemption clause did not cover liability for loss of support as claimed by the
plaintiff.
Regulation 44(3)(a) of the Consumer Protection Act now states that a

clause that excludes or limit the liability of the supplier for death or
personal injury caused to the consumer though an act or omission of that
supplier will be presumed to be unfair, subject to the provisions
contained in section 61 of the Act, which is discussed in detail in Chapter
37.
Barkhuizen v Napier27
The Constitutional Court considered the constitutional validity of exemption and limitation clauses. The
case involved a constitutional challenge to a time limitation clause in a short-term insurance contract.
The clause in question required the claimant to institute court proceedings within ninety days after the
insurance company had rejected the claim.
The majority of the Court held that the proper approach to a constitutional challenge is to determine
whether the time limitation clause is contrary to public policy based on constitutional values, in
particular, those in the Bill of Rights. The question was whether the time limitation clause was contrary to
public policy, and whether it allowed an adequate and fair opportunity to seek the assistance of a court.
The period of ninety days was not inadequate or unfair. At the beginning of the ninety-day period, the
plaintiff had all the information he needed to sue the insurance company as he had already lodged his
claim with the insurance company, which they had rejected. Also, there was no evidence that the
contract was not freely concluded between persons with equal bargaining power or that the insured was
not aware of the clause. The insured waited for two years to sue after being told of the rejection of his
claim. However, he did not provide any reasons for not observing the clause. In the circumstances, the
Court found that the clause was not unfair or unreasonable.
In a minority judgment Sachs J held that considerations of public policy, based on the Constitution,
dictated that the time-bar clause, which limited access to courts, should not be enforced. This was not
merely because it was in small print, or because it was harsh on the insured, but because the clause
was in a standard form document, and generally failed to comply with standards of notice and fairness,
which contemporary notions of consumer protection required in open and democratic societies. In
another minority judgment Moseneke DCJ, with whom Mokgoro J concurred, agreed with Sachs J that the
clause was against public policy and should be unenforceable. According to this judgment, the proper
approach was whether the clause clashed with public norms and whether the contractual term was so
unreasonable that it was against public policy. Moseneke DCJ held that the time clause was, based on
the facts of this case, unreasonably short and inflexible, with the result that it precluded a reasonable
and adequate opportunity to seek legal redress.
Naidoo v Birchwood Hotel28

Naidoo checked into the Birchwood Hotel and signed a registration card which contained a clause that
exempted the hotel from harm arising from a guest’s injury, ‘whether arising from fire, theft or any cause,
and by whomsoever caused or arising from the negligence (gross or otherwise) or wrongful acts of any
person in the employment of the Hotel’.29 On the morning of his departure, the plaintiff suffered serious
bodily injuries after a heavy steel gate fell on top of him.
Having found that the hotel was negligent, the Court had to determine whether the exemption clause
was contractually binding on the plaintiff. In this regard, the Court adopted the reasoning in Barkhuizen v
Napier,30 to the effect that a court may first examine whether a term in a contract is objectively
reasonable and, if it finds that it is, decide whether to enforce the term in the particular
circumstances.31 Heaton-Nicholls J said:32
In my view exemption clauses that exclude liability for bodily harm in hotels and other public
places have the effect, generally, of denying a claimant judicial redress. As this question was
not argued before me I make no finding on the first enquiry. This court is, however, equipped to
consider whether in the particular circumstances of this case the exemption clause should be
enforced, even if the relevant exemption clause is not contrary to public policy. I now proceed to
deal with the circumstances of this case. Naidoo was a guest in a hotel. To enter and egress
was an integral component of his stay. A guest in a hotel does not take his life in his hands
when he exits through the hotel gates. To deny him judicial redress for injuries he suffered in
doing so, which came about as a result of the negligent conduct of the hotel, offends against
notions of justice and fairness.
In summary, the Court did not make a finding on the general, objective validity of clauses that exclude
liability for negligently caused bodily injuries or death, but rather held that, in the particular
circumstances, the enforcement of the exclusion clause would be unfair and unjust.33 As noted above,
regulation 44(3)(a) of the Consumer Protection Act states that a clause that excludes or limits the
liability of the supplier for death or personal injury caused to the consumer through an act or omission of
that supplier (such as the one in Naidoo) will be presumed to be unfair, subject to the provisions
contained in section 61 of the Act.
In each of these cases, specific exemption clauses were examined in

specific circumstances. Further constitutional challenges to such clauses
may follow, in particular where they are found in standard contracts and
where personal injury is involved. The focus is likely to be on the impact
of such clauses on the right to access of courts, as guaranteed in section
34 of the Constitution. The Consumer Protection Act also further limits
the scope of contractual exemption clauses in transactions where the Act
applies.34
SA 794 (A) at 807.
2 Durban’s Water Wonderland (Pty) Ltd v Botha 1999 (1) SA 982 (SCA) at 991B–C.
3 Jameson’s Minors v Central South African Railways 1908 TS 575; and see also Payne v
Minister of Transport 1995 (4) SA 153 (C).
4 Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA) paras 6, 9, 12 and 14–17.
5 See Minister of Education and Culture (House of Delegates) v Azel 1995 (1) SA 30 (A), where
the Court decided that the undertaking by a parent, which limited the school’s liability for
damage to property or personal injury of the child, did not have effect where there was
negligence on the part of the responsible teacher.
6 See Durban’s Water Wonderland (Pty) Ltd v Botha 1999 (1) SA 982 (SCA), where it was held
that a parent had agreed on behalf of a child to conditions that excluded an amusement
park owner’s liability for injury to a person using the park’s facilities.
7 See Boberg The Law of Delict, Vol 1: Aquilian Liability (1984) at 732.
8 Minister of Education and Culture (House of Delegates) v Azel 1995 (1) SA 30 (A).
SA 794 (A) at 807; Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 15; First National Bank of SA
Ltd v Rosenblum 2001 (4) SA 189 (SCA); Land and Agricultural Development Bank of SA v
Ryton Estates (Pty) Ltd 2013 (6) SA 319 (SCA). As noted above, section 51(1)(c) (i) of the
Consumer Protection Act prohibits an agreement exempting a supplier of goods or services
from liability for any loss directly or indirectly attributable to gross negligence of the
supplier or any person acting for or controlled by the supplier.
10 Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA).
11 First National Bank of SA Ltd v Rosenblum 2001 (4) SA 189 (SCA); ABSA Bank Ltd v Fouche
[2002] 4 All SA 245; 2003 (1) SA 176 (SCA).
12 Viv’s Tippers (Edms) Bpk v Pha Phama StaffServices (Edms) Bpk t/a Pha Phama Security
2010 (4) SA 455 (SCA); [2011] 1 All SA 34 (SCA). See further Mercurius Motors v Lopez 2008
(3) SA 572 (SCA) para 33:
An exemption clause … that undermines the very essence of the contract … should
be clearly and pertinently brought to the attention of a [contracting party].
13 2010 (4) SA 455 (SCA); [2011] 1 All SA 34 (SCA).
14 Para 14.
15 Para 5.
16 Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W) at 529H–
530F. See also Longueira v Securitas of South Africa (Pty) Ltd 1998 (4) SA 258 (W).
17 Paras 11 and 13.
18 See Durban’s Water Wonderland (Pty) Ltd v Botha 1999 (1) SA 982 (SCA) at 991B–C:
The respondents’ claims were founded in delict. The appellant relied on a contract
in terms of which liability for negligence was excluded. It accordingly bore the
onus of establishing the terms of the contract. (The position would have been
otherwise had the respondents sued in contract. See Stocks & Stocks (Pty) Ltd v T.
J. Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 762E–767C.).
19 Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ) para 7; Motowest Bikes & ATVS v Calvern
Financial Services (138/13) [2013] ZASCA 196 para 10; Mercurius Motors v Lopez 2008 (3)
SA 572 (SCA) para 33; Durban’s Water Wonderland (Pty) Ltd v Botha 1999 (1) SA 982 (SCA)
at 991D–J. See also section 49(1) of the Consumer Protection Act 68 of 2008.
20 (414/2000) [2002] ZASCA 82; [2002] 4 All SA 331 (SCA) (29 August 2002) para 21.
21 Essa v Divaris 1947 (1) SA 753 (A) at 763–764 and 766–767; Hughes NO v SA Fumigation Co
(Pty) Ltd 1961 (4) SA 799 (C) at 805; Bristow v Lycett 1971 (4) SA 223 (RA) at 236.
22 Durban’s Water Wonderland (Pty) Ltd v Botha 1999 (1) SA 982 (SCA) at 989G–I:
Against this background it is convenient to consider first the proper construction
to be placed on the disclaimer. The correct approach is well established. If the
language of a disclaimer or exemption clause is such that it exempts the proferens
from liability in express and unambiguous terms, effect must be given to that
meaning. If there is ambiguity, the language must be construed against the
proferens. (See Government of the Republic of South Africa v Fibre Spinners &
Weavers (Pty) Ltd 1978 (2) SA 794 (A) at 804C.) But the alternative meaning upon
which reliance is placed to demonstrate the ambiguity must be one to which the
language is fairly susceptible; it must not be ‘fanciful’ or ‘remote’ (cf Canada
Steamship Lines Ltd v Regem [1952] 1 All ER 305 (PC) at 310C–D). See also section
4(4) of the Consumer Protection Act 68 of 2008.
23 Essa v Divaris 1947 (1) SA 753 (A) at 763–764 and 766–767; Government of the Republic of
South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A) at 807.
24 Bristow v Lycett 1971 (4) SA 223 (RA) at 235–240; Government of the Republic of South
Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A) at 803–806; Lawrence v
Kondotel Inns (Pty) Ltd 1989 (1) SA 44 (D) at 53–54.
25 2002 (6) SA 21 (SCA) at 26–27. See also, on a non-variation clause in a lease, Brisley v
Drotsky 2002 (4) SA 1 (SCA).
26 2004 (5) SA 511 (SCA).
27 2007 (5) SA 323 (CC).
28 2012 (6) SA 170 (GSJ).
29 Para 37.
30 2007 (5) SA 323 (CC).
31 Paras 52–54.
32 Paras 52–53.
33 Para 54. See also Deacon v Planet Fitness Holdings (Pty) Ltd 2016 (2) SA 236 (GP), where the
Court discusses the legal position relating to exclusion clauses in a constitutional
dispensation. Because it was held that the plaintiff did not prove wrongfulness, these
remarks were merely obiter dicta.
34 Section 51.
Chapter 13
Prescription
13.6 Interruption of prescription by acknowledgment of liability
13.8 The Prescription Act and other legislation on prescription or limitation
13.9 Procedure
13.10 Onus
13.12 Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002

13.15 Compensation for Occupational Injuries and Diseases Act 130 of 1993

Prescription deals with the effect of the passage of time on obligations,
including obligations arising from delict. After a certain period, it is no
longer possible to enforce an obligation or debt arising from a delict. The
debt is then ‘extinct’, and this effect of time on the enforceability of a debt
is commonly referred to as ‘extinctive prescription’. The Prescription Act
68 of 1969 provides for prescription periods in respect of different types of
‘debt’. The concept of a ‘debt’ is not defined in the Act, but courts have
stated that the concept should be understood in a wide and general
sense, to include any duty side of an obligation.1 The concept ‘debt’
includes the liability that arises from a delict, and in the context of delict
it refers to the obligation to pay damages for the harm caused by the
delict.
The courts have emphasised the difference between a ‘debt’ and a
‘cause of action’ in a number of cases.2 A ‘cause of action’ is the factual
basis or set of material facts that ‘begets’ the plaintiff’s right of action and
its correlative, the defendant’s debt.3
PAUSE FOR The prescription period

In terms of section 10 of the Prescription Act, the ending of the applicable
REFLECTION
prescription period extinguishes a debt. However, two principles embodied in the
Act qualify the notion that prescription extinguishes a debt:
• Payment can discharge a debt after prescription has taken effect.
• Courts do not take note of prescription unless the debtor raises it as a
defence.4
Arguably, therefore, the ending of the prescription period does not extinguish the
debt, but rather allows the debtor to raise a complete defence against the
creditor’s claim.5

Different prescription periods apply to different types of debt, as set out
in section 11 of the Act. For any debt, there is a prescription period of
three years, unless a specific other period is provided for by section 11 or
by any other Act of Parliament. Debts that arise from delict fall within this
general three-year category, unless another period is provided for by an
Act of Parliament.

Prescription, in respect of a debt, begins to run as soon as the debt is
due.6 A debt that arises from delict is due as soon as it comes into being,
when all the elements of the delict are present, or when it is ‘owing and
immediately payable’, ‘immediately claimable’, ‘immediately exigible at
the will of the creditor’, or ‘enforceable’.7 In The Master v IL Back & Co
Ltd 8 the Court decide that the words ‘debt is due’ in section 12(1) mean
that there must be money due, which the creditor can claim, for which an
action can be brought against the debtor. Harm is one of the elements of
delict, and only after harm has occurred is the cause of action complete
and the prescription period begins to run.9 This means that the injured
party is in a position to claim payment immediately, and that the
perpetrator of the delict does not have a defence to the claim for
immediate payment. In Truter v Deysel 10 the Court held that for
purposes of prescription ‘cause of action’ meant every fact that the
plaintiff had to prove in order to succeed in his claim. It did not comprise
every piece of evidence that was necessary to prove those facts.11
In terms of the ‘once-and-for-all’ rule, a person has to claim for all
damages that arise from a delict that constitutes a single cause of action
at the same time, including future or prospective damage. Therefore,
prescription, in respect of the debt that arises from such a delict, begins
to run as soon as some harm is caused. However, in the case of a
continuing wrong that causes continuing harm, courts recognise that the
cause of action continually exists (and the debt to pay damages remains
due) over the period of time during which the harm occurs. They do this
so that the claimant can recover damages for the harm that occurred
within the applicable prescription or limitation period.12
Slomowitz v Vereeniging Town Council13
The plaintiff claimed damages for business losses suffered as a result of the unlawful closing of a road,
from February 1960 until 17 December 1963. Summons had been served on 24 March 1964. A
limitation period applicable in this case required that the claimant bring the action within six months of
the cause of action arising. The Appellate Division held that, based on the damage caused by the
unlawful closing of the road, the claimant had a cause of action against the defendant throughout the
period that the road remained closed. However, in view of the six-month limitation period, the plaintiff
was only entitled to the damages that he could prove he sustained during the period six months before
the serving of the summons on the defendant. This was for the period 25 September to 17 December,
1963.
The Act provides, in section 12(2), that if the debtor wilfully prevents the
creditor from knowing that the debt exists, prescription will not begin to
run until the creditor becomes aware that the debt exists. Courts have
held that the word ‘wilfully’ in this subsection means ‘deliberately’ or
‘intentionally’; it does not mean ‘fraudulently’.14
In terms of section 12(3) of the Act, a debt is not deemed to be due
until the creditor has, or ought to have had knowledge of who the debtor
is, and of the facts from which the debt arises.15 This provision applies to
debts that arise from delict or any other source of obligation.16 The
provisions of section 12(3) only require that a creditor do what could
reasonably be expected in the circumstances of a reasonable person.17
Courts will judge that a creditor has knowledge of the debtor, and the
facts from which the debt arose, if he or she could have acquired it by
exercising reasonable care. The debtordefendant must allege and prove
that the creditor had, or ought to have had the required knowledge on a
particular date. On the question of when the identity of a debtor can be
said to be established, Diemont JA in Gericke v Sack 18 held as follows:
In common parlance I apprehend that the identity of an individual can be said to be determined
when one or more of his characteristics is established so that he is definitively recognisable or
known … . It may be that in some cases the debtor is so distinguished, or notorious, that no
address is necessary, or in other cases that his name is so commonplace that a detailed address
is called for. Regard will have to be had to the particular circumstances of each case, but for
practical purposes it seems to me that there should be sufficient information for the process-
server to be able to identify the debtor by name and address.
Van Zijl v Hoogenhout19

This case concerned a claim by the adult survivor of child abuse. The abuse occurred between 1958 and
1967, and the plaintiff attained majority in 1973. The Court found that the abuse affected the plaintiff’s
ability to attribute blame to the abuser. The plaintiff did not acquire ‘meaningful’ knowledge of the wrongs
against her for the purposes of prescription until what the Court described as a:
progressive course of self-discovery finally removed the blindfold she had worn since the malign
influences … took over her psyche.
The defendant failed to establish, on a balance of probability, that knowledge of the facts from which the
claim arose was acquired by the plaintiff, and so prescription commenced to run, before 1997.
Truter v Deysel20
The plaintiff had undergone eye surgery in 1993, but it was only in 2000 that he managed to secure
medical opinion to the effect that the procedure was performed negligently. For that reason, he instituted
the claim only in April 2000. The question was when had the plaintiff acquired knowledge of the facts
from which the debt arose. The Court held that in a delictual claim, the requirements of fault and
unlawfulness were not factual ingredients of the cause of action, but were legal conclusions to be drawn
from the facts.21 For purposes of prescription, ‘cause of action’ meant every fact that the plaintiff had to
prove to succeed in his claim. It did not comprise every piece of evidence that was necessary to prove
those facts.22 The expert opinion that indicated negligence in the performance of the medical procedure
was not itself a fact, but instead, evidence.23 The presence or absence of negligence is not a fact; it is a
conclusion of law that the Court draws based on all the circumstances of the specific case. Section
12(3) of the Prescription Act requires knowledge only of the material facts from which the debt arises for
the prescriptive period to begin running. The subsection does not require knowledge of the relevant legal
conclusions, that is, that the known facts constitute negligence, or of the fact that an expert opinion
which supports such conclusions, exists.24

In terms of section 13(1) of the Act, the ending of extinctive prescription
will be delayed in certain circumstances. Where such circumstances or
‘impediments’ exist, the completion of prescription is delayed. Such a
delay occurs if the applicable period of prescription would have been
completed before, or on, or within one year after the day on which the
relevant impediment has ceased to exist. Then, the period of prescription
will not be completed before a year has elapsed after the day on which
the relevant impediment has ceased to exist.25
The ending, or completion, of prescription will be delayed if:
• The creditor is a minor, is a mentally disturbed person, is a person
under curatorship, or is prevented by superior force, including any
law or any order of court, from interrupting the running of
prescription as contemplated in section 15(1) 26
• The debtor is outside the Republic 27
• The creditor and the debtor are married to each other 28
• The creditor and the debtor are partners and the debt is one that
arose out of the partnership relationship 29
• The creditor is a juristic person and the debtor is a member of the
governing body of this juristic person30
• The debt is the object of a dispute subjected to arbitration31
• The debt is the object of a claim filed against the estate of a debtor
who is deceased, against the insolvent estate of a debtor, or against
the company in liquidation
• The creditor or the debtor is deceased and an executor of the estate
in question has not yet been appointed.32
The Supreme Court of Appeal in ABP 4×4 Motor Dealers (Pty) Ltd v IGI
Insurance Co Ltd 33 considered the implications of section 13. The Court
indicated that if a three-year extinctive prescription period has started to
run against a creditor, and one of the ‘impediments’ listed in section 13
comes into being after two-and-a-half years, but ceases to exist after the
three years have run, the creditor will have one more year (calculated
from the date when the impediment ceased to exist) within which to sue.
If the impediment ceases to exist on the day when three years have run,
the same applies. If the impediment ceases to exist when two-and-three-
quarter years have run, the result is the same. In all three instances, the
creditor will have another year (calculated from the date when the
impediment ceased to exist) within which to sue. However, if the
impediment comes into being after six months of the prescription period
have run, and ceases to exist six months later, when two years of the
original prescription period still remain, the creditor is not given any
additional time in which to sue.
For example, in Jonker v Rondalia Assurance Corporation of SA Ltd34
the Court held that in respect of a minor, prescription begins running
during minority, but where the relevant period of prescription has ended
before the minor attains majority, prescription will not take effect before
a year has elapsed after the attaining of majority.
Figure 13.1 Prescription in action: Beginning, taking effect within a three-year period, and
delay

The Prescription Act provides for two types of interruption of
prescription:
• Judicial interruption by service of process on the debtor
• Interruption by acknowledgment of liability.
Section 15(1) of the Act provides for judicial interruption of extinctive

prescription ‘by the service on the debtor of any process whereby the
creditor claims payment of the debt’. The requirements for effective
judicial interruption are set out in subsections 15(2)–(6) of the Act.
For interruption of prescription to occur, the service of process on
the debtor must be legally effective. Mere issue of such process out of
court is not sufficient. The service of process on the debtor must also
begin proceedings against the debtor in a legally effective manner. Where
service of the process is premature in terms of a statutory provision, for
example, legal proceedings have not begun, prescription will not be
interrupted.35 Service of process in an action instituted by, or on behalf of
a person without locus standi, for example, by a minor without the
assistance of his guardian, by a company in liquidation prior to the
appointment of a liquidator, or by or on behalf of a person who is not
compos mentis, does not start proceedings against the debtor in a legally
effective manner, and will therefore not interrupt prescription in terms of
section 15(1), unless such an action is ratified by the court. A summons
served timeously may interrupt the running of prescription even if it
discloses no cause of action or is otherwise excipiable, because the defect
can be rectified.36
Where two separate causes of action exist between a creditor and a
debtor, there is a separate debt corresponding to each cause of action.
Service of summons on the debtor will interrupt prescription of both
debts only if the summons is an effective method of starting legal
proceedings in respect of both debts.37
In a situation where a plaintiff wishes to amend his or her claim for
damages, the defendant could rely on prescription if the new claim
relates to a new debt, and the relevant prescriptive period has run.
However, this is not possible if the new claim relates to the same debt,
and merely represents a fresh quantification of the original claim by the
addition of a further item of damages.38
For the purposes of interruption, ‘any process whereby the creditor
claims payment of the debt’ includes a petition, a notice of motion, a rule
nisi, a pleading in reconvention, a third party notice referred to in any
rule of court, and any document that begin legal proceedings.39 In Cape
Town Municipality v Allianz Insurance Co Ltd 40 the Court held that the
service of process in which the creditor claims a declaration that a debtor
is liable to indemnify the creditor, interrupts prescription in terms of
section 15(1).
The rules on interrupting prescription as set out above are subject to
section 15(2) of the Act. This states that the interruption of prescription
will lapse, and courts will deem the prescription not interrupted, if the
creditor does not successfully prosecute the claim to final judgment
‘under the process in question’,41 ‘abandons the judgment’, or if ‘the
judgment is set aside’.42 For example, should absolution be granted
against a plaintiff at the end of the case, or should an exception against
the summons succeed so that the plaintiff has to issue a fresh summons,
the original ‘process in question’ is deemed not to have interrupted
prescription.43
If the running of prescription is interrupted by service of a process
and the creditor successfully prosecutes the claim to final judgment and
does not abandon the judgment, or if the judgment is not set aside,
prescription starts to run afresh on the day on which the judgment of the
court becomes executable.44
If the running of prescription is interrupted by the service of process
under section 15(1) and the debtor then acknowledges liability,
prescription commences to run afresh from the day on which the debtor
acknowledges liability.45 If at the time when the debtor acknowledges
liability, or at any time thereafter, the parties postpone the due date of the
debt, prescription commences to run afresh from the date upon which
the debt again becomes due.46
If the running of prescription is interrupted, and the creditor
successfully prosecutes the claim under the process to final judgment,
and further, if the interruption does not lapse in terms of section 15(2),
prescription starts to run afresh on the day on which the judgment of the
court becomes executable.47
13.6 Interruption of prescription by acknowledgment of

liability
Extinctive prescription is interrupted by the debtor expressly or tacitly
acknowledging liability. ‘Acknowledgment of liability’ is not defined in
section 14(1) of the Prescription Act, and in deciding whether there has
been an acknowledgement of liability interrupting prescription, the
enquiry will be factual with regard to the intention of the debtor.48 It must
be clear that the debtor intended to acknowledge that he or she had
incurred the obligation, that the debt existed, and that he or she was
liable for it.49
In Road Accident Fund v Mothupi 50 the Court set out the key
elements of acknowledgement of liability: an acknowledgment of liability
is a matter of fact, not a matter of law, and the intention of the debtor is
an important factor; to interrupt prescription an acknowledgment by the
debtor must amount to both an admission that the debt is in existence
and of liability; the admission must cover at least every element of the
debt and exclude any defence as to its existence; and one must be able to
say when the acknowledgment of liability was made, otherwise it would
not be possible to say from what day prescription commenced to run de
novo.
The debtor must make the acknowledgment of liability in person or
through an authorised agent, and it must be made it to the creditor in
person or to his or her agent.51

Whether and how a debtor can renounce the right to rely on prescription,
wholly or partially, involve questions of public policy. Courts will be
reluctant to give effect to a term in a standard form contract whereby a
debtor renounces the right to rely on prescription in advance.52 However,
if the parties specifically negotiate such a renunciation, on the basis of
particular circumstances or commercial considerations, the renunciation
could be valid.53
13.8 The Prescription Act and other legislation on

prescription or limitation
The provisions of Chapter III of the Prescription Act apply to any debt
that arises after the Act came into effect.54 However, in terms of section
16(1) of the Act, the provisions that relate to extinctive prescription only
apply in that they are not inconsistent with the provisions of other
legislation that prescribes a specified period within which a claim is to be
made or an action is to be instituted in respect of a debt, or which
imposes conditions on the institution of an action for the recovery of a
debt.55
The provisions of the Act bind the State.56
13.9 Procedure
A court may not of its own accord take notice of prescription.57
A party to litigation who invokes prescription must do so in a
document filed of record in the proceedings, and in an action the issue of
prescription is raised by way of a special plea.58 The word ‘proceedings’
has a wide meaning, as has the reference to a party to litigation, so that a
person may rely on prescription in any proceedings, not only in an
action.59
13.10 Onus
The onus is on the party that invokes prescription to plead and prove the
facts that indicate that prescription has taken effect.60 This includes the
date of the start of the prescription period.61 However, the onus changes if
the creditor alleges ignorance of either the identity of the debtor or the
facts from which the debt arises, or of both, in terms of section 12(3). In
such instances the onus is on the debtor to show when the creditor knew
or is deemed to have known of the debtor’s identity and the facts; and
this burden of proof does not change merely because the facts happen to
be within the knowledge of the creditor.62
The creditor bears the onus to allege and prove that the completion
of prescription was delayed under the circumstances set out in section 13
of the Prescription Act,63 and also that the running of prescription was
interrupted through either an express or tacit acknowledgement of
liability by the debtor,64 or by service of a legal process.65

Applying special notice and limitation periods was an important feature
of actions against the State and certain state organs before a new
constitution was introduced in South Africa in the last decade of the
twentieth century. Once the interim Constitution Act 200 of 1993 and the
final Constitution had come into operation, the constitutionality of these
short and onerous notice and limitation periods was challenged, in terms
of the constitutional guarantees of equality and access to courts.
In Mohlomi v Minister of Defence 66 the Constitutional Court
declared the notice and limitation provisions in section 113(1) of the
Defence Act 44 of 1957 invalid, on the basis of inconsistency with the
constitutionally guaranteed right of access to courts. In Hans v Minister
van Wet en Orde 67 the Court reached the same conclusion in respect of
the validity of provisions similar to section 32(1) of the Police Act 7 of
1958.
The Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002 subsequently reformed the law on notice and limitation
periods of actions against the State and organs of state.
13.12 Institution of Legal Proceedings against Certain
Organs of State Act 40 of 2002
This Act was introduced to regulate and harmonise the prescription
periods of debts for which certain organs of state are liable, notably by
the repeal or amendment of a large number of statutes, as listed in the
schedule to the Act. In terms of this Act, prescription periods for actions
for recovery of ‘debts’ from ‘organs of state’ as defined in section 1 have
been brought in line with the provisions of the Prescription Act.
The Act also provides for a uniform notice period and procedure for
intended legal proceedings against organs of state for recovering debts.68
Section 3(2) of the Act requires notice to be given within six months
of the date on which the cause of action against the organ of state arises,
but section 3(4) allows a court to condone the failure to give notice.69

The Road Accident Fund Act provides for the transfer of certain forms of
liability to the Road Accident Fund that would otherwise arise for the
negligent driver or owner of a motor vehicle in terms of common law.
The Road Accident Fund is liable in cases of loss or damage that result
from bodily injury or death, according to certain requirements as set out
in section 17 of the Act. Claims against the Fund are subject to
prescription provisions in section 23 of the Act, which provides as
follows:
23 Prescription of claim
(1) Notwithstanding anything to the contrary in any law contained, but subject to subsections (2)
and (3), the right to claim compensation under section 17 from the Fund or an agent in
respect of loss or damage arising from the driving of a motor vehicle in the case where the
identity of either the driver or the owner thereof has been established, shall become
prescribed upon the expiry of a period of three years from the date upon which the cause of
action arose.
(2) Prescription of a claim for compensation referred to in subsection (1) shall not run against-
(a) a minor;
(b) any person detained as a patient in terms of any mental health legislation; or
(c) a person under curatorship.
(3) Notwithstanding subsection (1), no claim which has been lodged in terms of section 17 (4)(a)
or 24 shall prescribe before the expiry of a period of five years from the date on which the
cause of action arose.
Section 23 provides for a two-tier prescription system. A three-year
prescription period, calculated from the date upon which the cause of
action arose, applies for lodging a claim against the Fund in terms of
section 24 of the Act. If a claim is not lodged within this three-year period,
prescription takes effect and the claim is lost.70 If the claim is properly
lodged within the three-year period, the second tier of the prescription
system comes into operation. To enforce the claim, if the Fund denies
liability or makes an offer unacceptable to the claimant, for example, the
claimant must start action by having a summons served on the Fund
before the expiration of five years from the date on which the cause of
action arose, in terms of section 23(3).
In terms of section 23(2), prescription does not run against a minor, a
person detained under mental health legislation, or a person under
curatorship. The subsection does not mention other grounds for
suspending the running of prescription on the basis of incapacity, such as
unconsciousness, but common law recognises such grounds.
Figure 13.2 Prescription of claim under Road Accident Fund Act

In terms of the Apportionment of Damages Act, the period of extinctive
prescription in respect of a claim for a contribution against and between
joint and several wrongdoers is twelve months. This is calculated from
the date of the judgment in respect of which a contribution is claimed or,
where an appeal is made against such judgment, the date of the final
judgment on appeal.
The plaintiff or any joint wrongdoer who is not sued in that action
may give notice of any action, any time before the close of pleadings in
such an action. Such a joint wrongdoer may thereupon intervene as a
defendant in that action.71 A plaintiff who fails to give such notice may
not proceed against the joint wrongdoer, except with permission from a
court based on showing good cause as to why such notice was not
given.72
13.15 Compensation for Occupational Injuries and

Diseases Act 130 of 1993
A claim for compensation in terms of the Compensation for
Occupational Injuries and Diseases Act must be lodged by or on behalf of
the claimant, in the prescribed manner, with the commissioner, the
employer, or the mutual association concerned, within twelve months
after the date of the accident or, in the case of death, within twelve
months after the death.73
1 See, generally, Loubser Extinctive Prescription (1996) at 26–31; CGU Insurance Ltd v
Rumdel Construction (Pty) Ltd 2004 (2) SA 622 (SCA) para 6I; Oertel v Direkteur van
Plaaslike Bestuur 1983 (1) SA 354 (A) at 369C–D. The courts have limited this wide concept
of ‘debt’ in a few cases: in Makate v Vodacom (Pty) Ltd [2016] ZACC 13 the Court decided
that ‘debt’ implies a duty in the restricted sense of an obligation to pay money, deliver goods
or render services, and that earlier judgments indicating that the duty can relate to any kind
of performance due under a contract were wrong, with the result that a reciprocal obligation
to negotiate in good faith, which could not be discharged by unilateral action, but would
require the active participation of both parties, is not a ‘debt’ subject to prescription; and in
Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4) SA 237 (CC) para 42, the
Constitutional Court expressed doubt that prescription could legitimately be invoked if the
‘debt’ is an obligation to pay a social grant, because the right to a social grant is a
constitutional right; and in ABSA Bank Ltd v Keet 2015 (4) SA 474 (SCA) the Court decided
that a ‘debt’ in the form of a duty to restore property, correlative to a vindicatory claim, is
not subject to extinctive prescription.
2 CGU Insurance Ltd v Rumdel Construction (Pty) Ltd 2004 (2) SA 622 (SCA) para 6, and the
cases cited there.
3 CGU Insurance Ltd v Rumdel Construction (Pty) Ltd 2004 (2) SA 622 (SCA) para 6.
4 Section 17 of the Act.
5 Loubser (1996), Chapter 1.
6 Section 12(1) of the Act.
7 See, generally, Loubser (1996) at 51–52; Deloitte Haskins & Sells Consultants (Pty) Ltd v
Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A) at 532H; Kotzé v
Ongeskiktheidsfonds van die Universiteit van Stellenbosch 1996 (3) SA 252 (C) at 258H–
262C.
8 1983 (1) SA 986 (A).
9 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 839C–G. In Oslo Land Corporation
Ltd v The Union Government 1938 AD 584, the spraying of excessively strong locust poison
by a government agency caused the death of cattle over the next three years, but it was held
that prescription began to run when the first harm occurred. In John Newmark and Co (Pty)
Ltd v Durban City Council 1959 (1) SA 169 (N), a case concerning harm that occurred when
excavations alongside a wall caused it to collapse later, the Court held that prescription
began to run when the first subsidence occurred. In Beira v Vallet [2005] JOL 13588 (W) the
Court accepted that prescription in respect of a delictual debt for damages does not begin to
run from the date of the culpable act or omission, if no loss or harm has yet occurred (injuria
sine damno). The delict does not become actionable without loss or harm. It is only when
loss or harm is suffered that the plaintiff’s cause of action becomes complete and
prescription begins to run.
10 2006 (4) SA 168 (SCA).
11 Para 19 at 174H–175A.
12 On the concept of a continuing act causing continuing harm, see, generally, Loubser (1996)
at 92–96; Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A).
13 1966 (3) SA 317 (A).
14 Jacobs v Adonis 1996 (4) SA 246 (C) at 250J–251B.
15 In Geldenhuys NO v Diedericks 2002 (3) SA 674 (O) the claim arose from the collision
between a car driven by the defendant and the plaintiff’s bull, which died as a result. The
plaintiff had been on holiday when the accident occurred, but the defendant had contacted
him telephonically about the accident. The defendant, at the request of the plaintiff, sent a
letter to the plaintiff setting out the details of the collision and the damage, for the plaintiff to
hand over to his insurers. The defendant also invited the plaintiff to contact him should he
require any further information. The words ‘facts from which the debt arose’ in section 12(3)
do not mean every allegation made in the particulars of claim, such as the grounds of
negligence, but merely indicate the facts from which the right to institute action arose.
16 In Minister of Finance v Gore NO 2007 (1) SA 111 (SCA) paras 18–19, where knowledge of
tender fraud was in issue, Cameron JA and Brand JA stated that a mere opinion or
supposition is not enough: there must be justified, true belief. Belief, on its own, is
insufficient. Belief that happens to be true is also insufficient. For there to be knowledge, the
belief must be justified. The following propositions are well established in our law: (a)
Knowledge is not confined to the mental state of awareness of facts that is produced by
personally witnessing or participating in events, or by being the direct recipient of first-hand
evidence about them. (b) Knowledge includes a conviction or belief that is engendered by
or inferred from attendant circumstances. (c) Mere suspicion not amounting to conviction
or belief justifiably inferred from attendant circumstances does not amount to knowledge.
17 Gericke v Sack 1978 (1) SA 821 (A) at 832; Brand v Williams 1988 (3) SA 908 (C); Dube v
Banana 1999 (1) BCLR 44 (ZH).
18 Gericke v Sack 1978 (1) SA 821 (A) at 829G–830A.
19 2005 (2) SA 93 (SCA).
20 2006 (4) SA 168 (SCA).
21 Para 17.
22 Para 19.
23 Para 20.
24 The Court referred in this regard to Loubser (1996) at 80 and the authorities cited there, in
particular Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838H–839A.
25 See, generally, ABP 4×4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd 1999 (3) SA 924
(SCA) at 930B.
26 Hartman v Minister van Polisie 1983 (2) SA 489 (A).
27 Dithaba Platinum (Pty) Ltd v Erconovaal Ltd 1985 (4) SA 615 (T).
28 Section 13(1)(c).
29 On section 13(1)(d) see Laconian Maritime Enterprises Ltd v Agromar Lineas Ltd 1986 (3)
SA 509 (D) at 513A–F; Van staden v Venter 1992 (1) SA 552 (A).
30 Section 13(1)(e).
31 On section 13(1)(f) see Kilroe-Daley v Barclays National Bank Ltd 1984 (4) SA 609 (A).
32 Section 13(1)(h).
33 1999 (3) SA 924 (SCA) at 930 D.
34 1976 (2) SA 334 (E) at 336B–E.
35 Abrahamse & Sons v South African Railways and Harbours 1933 CPD 626 at 637.
36 Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A); Rooskrans v Minister van
Polisie 1973 (1) SA 273 (T) at 274G–H; Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) at 15H–
16B.
37 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 842F–G; Park Finance Corporation
(Pty) Ltd v Van Niekerk 1956 (1) SA 669 (T) at 673A–C; Erasmus v Grunow 1978 (4) SA 233
(O) at 245E.
38 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 836C–E.
39 Section 15(6).
40 1990 (1) SA 311 (C). See also Desai NO v Desai 1996 (1) SA 141 (A) at 147H–I.
41 In Chauke v President Insurance Co Ltd 1978 (2) SA 947 (W) it was held that the words
‘under the process in question’ in section 15(2) meant ‘in terms of the Rules of Court’
governing the question (at 950E–G). See also Kuhn v Kerbel 1957 (3) SA 525 (A) at 534A;
Sieberhagen v Grunow 1957 (3) SA 485 (C) at 488–489.
42 See Van der Merwe v Protea Insurance Co Ltd 1982 (1) SA 770 (E) at 773C–E.
43 Titus v Union & SWA Insurance Co Ltd 1980 (2) SA 701 (Tks) at 704C–E; Union & SWA
Insurance Co Ltd v Hoosein 1982 (2) SA 481 (W) at 484A–E.
44 Section 15(4).
45 Section 15(3).
46 Section 15(3).
47 Section 15(4).
48 Agnew v Union & South West African Insurance Co Ltd 1977 (1) SA 617 (A) at 623A–C.
49 Estate Allie v Cape Town Municipality 1980 (1) SA 265 (C) at 268D; Eerste Nasionale Bank
van Suidelike Afrika Bpk v Vermeulen 1997 (1) SA 498 (O) at 503G–I.
50 2000 (4) SA 38 (SCA) paras 36–39.
51 Pentz v Government of the RSA 1983 (3) SA 584 (A); Markham v SA Finance & Industrial Co
Ltd 1962 (3) SA 669 (A) at 676F.
52 Ryland v Edros 1997 (2) SA 690 (C) at 713H–I. The Court disagreed with the decision in
Nedfin Bank Bpk v Meisenheimer 1989 (4) SA 701 (T). See also Friederich Kling GmbH v
Continental Jewellery Manufacturers, Speidel GmbH v Continental Jewellery Manufacturers
1995 (4) SA 966 (C); ABSA Bank h/a Bankfin v Louw 1997 (3) SA 1085 (C) at 1090A–C.
53 See, generally, Loubser (1996) Chapter 8.
54 Section 16(1).
55 Meintjies NO v Administrasieraad van Sentraal-Transvaal 1980 (1) SA 283 (T) at 289B–D;
Hartman v Minister van Polisie 1981 (2) SA 149 (O) at 152A–E.
56 Section 19.
57 Section 17(1).
58 Section 17(2). See Grindrod (Pty) Ltd v Seaman 1998 (2) SA 347 (C) at 350I–J.
59 Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C) at 431B–E; Rand Staple-Machine
Leasing (Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W) at 201H.
60 Gericke v Sack 1978 (1) SA 821 (A) at 827 and 828C.
61 Gericke v Sack 1978 (1) SA 821 (A) at 827H–828A; Santam Ltd v Ethwar [1999] 1 All SA 252
(A); 1999 (2) SA 244 (SCA) at 256G–H.
62 Gericke v Sack 1978 (1) SA 821 (A); Mulungu v Bowring Barclays & Associates (Pty) Ltd 1990
(3) SA 694 (SWA); Mokoena v Kraamwinkel NO [2009] JOL 24524 (GNP); Securefin Ltd v
Sanlam Insurance Ltd [2006] JOL 18522 (C).
63 Regering van die Republiek van Suid-Afrika v South African Eagle Versekeringsmaatskappy
Bpk 1985 (2) SA 42 (O) at 47G; Kapeller v Rondalia Versekeringskorporasie van Suid-Afrika
Bpk 1964 (4) SA 722 (T) at 728A; Naidoo NO v Naidoo 2010 (5) SA 514 (KZP).
64 Section 14. See Pentz v Government of the RSA 1983 (3) SA 584 (A); Benson v Walters 1984
(1) SA 73 (A).
65 Du Bruyn v Joubert 1982 (4) SA 691 (W) at 695–696A.
66 1996 (12) BCLR 1559 (CC); 1997 (1) SA 124 (CC).
67 1995 (12) BCLR 1693 (C).
68 Sections 3–5.
69 Madinda v Minister of Safety & Security 2008 (4) SA 312 (SCA); Minister of Safety and
Security v De Witt 2009 (1) SA 457 (SCA).
70 Krischke v Road Accident Fund 2004 (4) SA 358 (W).
71 Sections 2(2)(a) and (b); and see Commercial Union Assurance Co Ltd v Pearl Assurance Co
Ltd 1962 (3) SA 856 (E).
72 Section 2(4)(a).
73 Section 43(1)(a).
PART FIVE
Special forms of liability involving

patrimonial harm, and pain and suffering
CHAPTER 14 Omissions
CHAPTER 15 Negligent misstatements
CHAPTER 16 Pure economic harm
CHAPTER 17 Interference with contractual relations
CHAPTER 18 Unlawful competition
CHAPTER 19 Product liability
CHAPTER 20 Breach of a statutory duty
CHAPTER 21 Public authorities
CHAPTER 22 Professional liability
CHAPTER 23 Injury or death of another person

Chapter 14
Omissions
14.1 Introduction
14.2 Wrongfulness
14.1 Introduction
Liability based on omission is more restricted than liability based on
commission, because of public policy. It would be socially and
economically unduly restrictive, and therefore undesirable, to enforce a
wide and general duty to prevent harm to others. This approach could
also involve potentially indeterminate delictual liability, which would be
against public interest.
14.2 Wrongfulness
To determine liability for an omission, one enquires whether a legal duty
to prevent harm exists. There is no general right to be protected from
harm by another, and conversely, there is no general legal duty to act
positively to protect others, or to prevent harm to others. Courts
recognise a duty to act positively to prevent harm for the purposes of
delictual liability only where failing to act positively was unreasonable
according to the boni mores or the legal convictions of the community.
The omission itself is not wrongful. The focus is on the whole of the
causal sequence beginning with failing to act and ending with the
harmful consequences that could have been prevented by positive
action. Enquiring into wrongfulness involves applying the general
criterion of reasonableness. Courts must weigh up the interests of the
persons involved and also take into account the interests and convictions
of the community at large.
In a line of cases before the decision of the Appellate Division in
Minister van Polisie v Ewels 1 courts adhered to the view that they could
impose liability for an omission only where the defendant’s prior conduct
created a risk of harm or a new source of danger and if the defendant
then failed to prevent the harm from occurring. Many of these cases dealt
with a local authority’s liability for injury to a person using a public road
or other amenity (hence the reference to these cases as ‘municipality
cases’). The judgments in these cases often involved subtle distinctions
between situations in which the defendant simply failed to prevent harm,
and situations where the creation of a risk of harm or the introduction of
a new source of danger preceded the failure. Eventually, the Appellate
Division broke away from this approach in the leading case of Minister
van Polisie v Ewels.2 In this case, the Court held that there can be
delictual liability for a mere omission, in other words, where an omission
was not preceded by conduct that created a risk of harm or that
introduced a new source of danger. In Ewels the Court imposed liability
in a situation where the plaintiff was assaulted by an off-duty policeman
in a police station in the presence of a more senior policeman, who had
failed to prevent the assault.
The Appellate Division’s decision in the Ewels case has been of great
significance, not only in respect of liability for omissions, but also in
respect of the criteria for assessing wrongfulness generally. The essential
question is whether a legal duty exists to prevent harm to others, based
on reasonableness and public policy. In terms of the wide and evaluative
criteria used by courts in this regard, a legal duty exists where failing to
prevent harm not only evokes moral indignation, but is also regarded as
so unreasonable, according to the boni mores or legal convictions of the
community, that liability should be imposed for the loss suffered. In
addition to these wide and general criteria, courts take into account the
following:
• Policy considerations that indicate whether the law of delict should
intervene (inter alia the social or economic consequences of
imposing liability, the availability of alternative remedies, and the
need for accountability of public bodies or officials)
• Relevant constitutional or other statutory rights and duties
• A grouping of factual circumstances that indicate a duty not to cause
or to prevent harm in the particular situation.
The ‘prior conduct’ approach to liability of local authorities for omissions

was finally discarded in Cape Town Municipality v Bakkerud.3 In this
case, the Court accepted the general criterion of reasonableness (the
policy-based standard of boni mores or the legal convictions of the
community). The specific content of this general criterion is determined
by taking into account a grouping of factual considerations, such as the
extent of the danger, the period of time for which it existed, the resources
of the public authority, and prior warning. The need to prove both the
existence of a legal duty to prevent harm and negligence, limits claims
against public authorities.
Mostert v Cape Town City Council 4
This case involved a damaging leak from the defendant’s water main, and it illustrates the factors that
are relevant in cases that involve local authorities. The Court weighed the technical evidence on the risk
of the pipeline collapsing against the high cost of replacing it, and judged that the council could not
reasonably have been expected to replace the pipe. The conduct of the city council was therefore not
negligent. Noting that ‘an unbending adherence to logic’ might dictate that wrongfulness is the prior
enquiry, and the reasonableness of requiring the council to replace the pipeline might also have been
dealt with under that heading, Schutz JA remarked that logic is one thing, utility sometimes another. Both
the requirements of wrongfulness and negligence must be met, and it does not matter which of the two is
determined first. One can determine wrongfulness on the assumption that negligence will be proved, and
vice versa. In many, if not most delicts that involve property damage or injury, the issue of wrongfulness
is uncontentious. This was such a case. The essential question was whether the council was negligent in
not preventing the pipe from bursting. The requirement of wrongfulness (the general, policy-based
criterion of reasonableness, or the community’s sense of what the law ought to be) was not contentious.
The council exercised sole control over the pipeline and clearly had a legal duty to prevent harm to
people living or doing business in the vicinity of the pipeline.
PAUSE FOR Wrongfulness

REFLECTION In Mostert v Cape Town City Council 5 Schutz JA said:
If the council was negligent in not preventing the 1990 burst I have
no doubt that the community’s sense of what the law ought to be
would demand that liability be imposed upon the council … . After
all, the council leads across densely populated land a large volume
of water under pressure, and then exercises exclusive control over it.
Whatever its contrasted social utility, this is the equivalent of walking
one’s tiger across the forum.
Consider what the Judge means in this extract with regard to (a) the order of
determining wrongfulness and negligence, and (b) the grounds for accepting
wrongfulness.
In omission cases that involve an alleged breach of a legal duty to act

positively to prevent harm to others, the reasoning of courts often
involves one or more of the following considerations:
• Prior conduct: Did the defendant’s prior conduct create a risk of
harm and therefore also the duty to prevent such harm? Prior
conduct that creates a risk of harm or a new source of danger is no
longer a requirement for liability based on an omission, as shown
above. However, such prior conduct is still an important factor that
indicates whether a duty to act positively to prevent harm exists.6
• Control: Did the defendant have control over a dangerous or
potentially dangerous object? Control may be actually exercised, or
the right, obligation or ability to exercise control may flow from
ownership or possession rights, or from an agreement or statutory
provision. For example, the fact that a provincial administration
exercises control and supervision over all public roads in the
province, in terms of a statutory provision, is an important factor in
determining whether the administration had a legal duty to prevent
a fire spreading that had started on the side of a minor public road.7
The actual exercise of control, or the right, obligation or ability to
exercise control, is not in itself conclusive. It is, however, an
important factor that indicates whether a legal duty in respect of a
particular harm occurring exists.8 One must determine the degree
and scope of the control that is required based on all the facts of the
particular case, and the harm that occurred. The essential question
is whether one could reasonably and practicably expect the person
or body in control to take precautionary measures in respect of the
harm that occurred.9 The owner, occupier or person in control of
property, generally, has a duty to control fire on the property and to
prevent injury to persons,10 even trespassers on the property. The
same applies to the owner or person in control of a firearm11 or an
animal.12 Both the owner of a farm and a business entity that
manages a private nature reserve on the farm are in control of the
property and have a legal duty to take reasonable steps to avoid
harm to members of the public who are allowed, for a fee, to use
four-wheel drive routes that lead to dangerous areas on the
property.13 Teachers in charge of schoolchildren on an excursion
have a duty to ensure that bunk-beds in a bungalow with a cement
floor are safe for young children to sleep in.14
• State departments, public bodies and officials that exercise functions
in the public interest: The South African Hang and Paragliding
Association and the South African Civil Aviation Authority exercise
direction and control over paragliding in South Africa and are
obliged to ensure and promote the safety of paragliding, but it would
not be reasonable to impose liability upon them for an omission
which had no direct impact on aviation safety.15 The legal
convictions of the community demand that hospitals and health-
care practitioners provide proficient health-care services to
members of the public and be held liable for failure to provide
prompt and appropriate medical treatment to a person who has
suffered a spinal injury in a rugby match.16
• Obligation to act positively in terms of common law or statute law:
Did the defendant have an obligation, in terms of a rule of common
law or statute law, to act positively to prevent harm to others? For
example, the owner of low-lying land is obliged to provide lateral
support for the higher land of his or her neighbour.17 A landowner is
generally required to prevent harmful substances from flowing or
otherwise escaping from the property to neighbouring land.18 The
existence of a statutory duty is determined according to the normal
rules of statutory interpretation as it appears from the wording of the
statutory provision.19 For instance, a statutory duty to provide correct
information could indicate that the failure to provide information is
wrongful for the purposes of the law of delict.20
• Special relationship: Did a special relationship between the parties
give rise to a legal duty for the defendant to prevent harm to the
plaintiff? The mere fact of such a special relationship is not
conclusive, but it will be an important factor in indicating a legal
duty to prevent harm, and courts will consider it along with all the
other circumstances of the case. A relationship of trust or authority,
or a long-standing business relationship can give rise to such a
duty.21 A contractual relationship can also give rise to a duty to
prevent harm to the other party, to the contract, or to a third party.22
Other examples include the relationship between a policeman and a
member of the public,23 a prison officer and a prisoner,24 and an
employer and his or her employee.25
• Creating an expectation: Did the defendant create the expectation
that he or she would protect the interests of the plaintiff? For
example, a security firm that provides security services for an office
building or parking garage, in terms of a contract with the owner,
may have a legal duty toward third parties who rely on the security
services for protection of their person or property.26 Creating such an
expectation is not conclusive, and courts will take into account
whether the plaintiff could reasonably have relied on the security
services for protection, and also all the other circumstances of the
case.27
• Knowledge: Did the defendant know or foresee that the omission
would cause harm, or did the defendant have the motive to cause
harm? Knowledge or foresight of the possibility of harm makes
causing such harm unreasonable and therefore wrongful.28
• Practical measures to avert harm: What practical measures could be
taken to avert the harm? Courts consider the probable success and
the relative ease and expense of practical steps that the defendant
could have taken to avert the loss. Courts also take into account the
plaintiff’s ability or lack of ability to protect himself or herself against
liability, as in the case of Indac Electronics (Pty) Ltd v Volkskas Bank
Ltd,29 where the liability of a collecting bank towards the true owner
of a cheque was in issue. The Court considered the ability of the bank
to protect itself against liability by obtaining insurance cover.
• Professional duty: Did the failure to prevent harm occur while
rendering professional services (for example as an attorney,
engineer, or a doctor), and was there a failure of professional
competence or skill? 30
• Public office: Did a person holding a public office, such as a notary,
sworn appraiser or an auditor, fail to prevent harm in the course of
his or her official duties? 31
• Social and economic implications: What are the legal, social and
economic implications of imposing liability for the infringement? 32
For example, would imposing liability on a policeman for dereliction
of duty result in a large influx of similar claims, so that substantial
time, expense and diversion of police manpower would be required
to defend such claims? 33
These policy considerations give specific content to the general criterion

of reasonableness for determining wrongfulness, providing guidelines
and flexibility for further judicial development of the law on liability for
omissions.
1 1975 (3) SA 590 (A).

2 1975 (3) SA 590 (A).
3 2000 (3) SA 1049 (SCA).
4 2001 (1) SA 105 (SCA).
5 2001 (1) SA 105 (SCA) para 43.
6 Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597; Administrateur, Transvaal v Van der
Merwe 1994 (4) SA 347 (A) at 349; Local Transitional Council of Delmas v Boshoff 2005 (5)
SA 514 (SCA); Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) paras 25–26.
7 Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A).
8 Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 359 and 360; Local
Transitional Council of Delmas v Boshoff 2005 (5) SA 514 (SCA).
9 Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 359–360.
10 See Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A); Steenberg v De Kaap
Timber (Pty) Ltd 1992 (2) SA 169 (A); Dews v Simon’s Town Municipality 1991 (4) SA 479 (C)
at 485; Gouda Boerdery BK v Transnet Ltd 2005 (5) SA 490 (SCA) para 13; Minister of Water
Affairs and Forestry v Durr 2006 (6) SA 587 (SCA) paras 12–13 and 17; Potgieter v University
of Stellenbosch [2017] 1 All SA 282 (WCC).
11 Maylett v Du Toit 1989 (1) SA 90 (T).
12 Kruger v Coetzee 1966 (2) SA 428 (A); S v Fernandez 1966 (2) SA 259 (A); R v Eustace (2) 1948
(3) SA 859 (T); Bristow v Lycett 1971 (4) SA 223 (RA); Zietsman v Van Tonder 1989 (2) SA 484
(T).
13 Za v Smith 2015 (4) SA 574 (SCA).
14 Hawekwa Youth Camp v Byrne [2010] 2 All SA 312 (SCA)
15 South African Hang and Paragliding Association v Bewick 2015 (3) SA 449 (SCA).
16 Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC).
17 D and D Deliveries (Pty) Ltd v Pinetown Borough 1991 (3) SA 250 (D) at 253; John Newmark
and Co (Pty) Ltd v Durban City Council 1959 (1) SA 169 (N); Gijzen v Verrinder 1965 (1) SA
806 (D).
18 Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 109.
19 Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 595–596; Administrateur, Transvaal v Van
der Merwe 1994 (4) SA 347 (A); Knop v Johannesburg City Council 1995 (2) SA 1 (A);
Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 319.
20 Herschel v Mrupe 1954 (3) SA 464 (A) at 490; Da Silva v Coutinho 1971 (3) SA 123 (A) at 140;
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 694.
21 Jowell v Bramwell-Jones 1998 (1) SA 836 (W) (trustees); Arthur E Abrahams and Gross v
Cohen 1991 (2) SA 301 (C) at 311 (professional administrators of a deceased estate); Bowley
Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 (2) SA 393 (T) (parties to a long-standing
business relationship).
22 Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N);
Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A); Cathkin Park Hotel v JD Makesch
Architects 1993 (2) SA 98 (W) at 100; McCann v Goodall Group Operations (Pty) Ltd 1995 (2)
SA 718 (C) at 726 and 727; Joubert v Impala Platinum Ltd 1998 (1) SA 463 (BH).
23 Minister van Polisie v Ewels 1975 (3) SA 590 (A).
24 Mtati v Minister of Justice 1958 (1) SA 221 (A).
25 Joubert v Impala Platinum Ltd 1998 (1) SA 463 (BH).
26 Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W).
27 Longueira v Securitas of South Africa (Pty) Ltd 1998 (4) SA 258 (W) at 261–262.
28 Van der Merwe Burger v Munisipaliteit van Warrenton 1987 (1) SA 899 (NC) at 908; Rabie v
Kimberley Munisipaliteit 1991 (4) SA 243 (NC); Langley Fox Building Partnership (Pty) Ltd v
De Valence 1991 (1) SA 1 (A).
29 1992 (1) SA 783 (A) at 799.
30 Arthur E Abrahams and Gross v Cohen 1991 (2) SA 301 (C); Jowell v Bramwell-Jones 1998
(1) SA 836 (W); Mukheiber v Raath 1999 (3) SA 1065 (SCA).
31 The Cape of Good Hope Bank v Fischer (1885–1886) 4 SC 368; Macadamia Finance Ltd v De
Wet 1991 (4) SA 273 (T).
32 Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 (3) SA 653 (D) at
659–660; Franschhoekse Wynkelder (Ko-operatief) Bpk v South African Railways and
Harbours 1981 (3) SA 36 (C); Mpongwana v Minister of Safety and Security 1999 (2) SA 794
(C) at 802–803; Mukheiber v Raath 1999 (3) SA 1065 (SCA) para 28.
33 Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 595–596; Minister of Law and Order v
Kadir 1995 (1) SA 303 (A) at 319.
Chapter 15
Negligent misstatements
15.1 Introduction
15.2 Wrongfulness
15.1 Introduction
Where the plaintiff acts upon incorrect information supplied by the
defendant and suffers harm, liability depends on whether the plaintiff
had a right to be given correct information and the defendant a duty to
supply such information. If no contractual relationship between the
parties existed, one cannot assume a right to information from the outset
and must therefore proceed from the duty side to assess wrongfulness.
The focus of the enquiry is whether the factual situation gives rise to
policy considerations indicating that a legal duty to provide correct
information exists. Liability for negligent misstatements is an important
category of liability for pure economic harm.
The development of the law towards recognising liability for a
negligent misstatement causing pure economic harm has been described
as follows:1
It is clear that in our law Aquilian liability has long outgrown its earlier limitation to
damages arising from physical damage or personal injury. Thus, for instance, in
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) this Court
held that Aquilian liability could in principle arise from negligent misstatements
which caused pure financial loss, i.e. loss which was caused without the
interposition of a physical lesion or injury to a person or corporeal property.
Courts follow a cautious approach to liability for statements, as reflected

in the following extract from the judgment of the House of Lords in the
well-known English case of Hedley Byrne & Co Ltd v Heller & Partners
Ltd: 2
Words are more volatile than deeds. They travel fast and far afield. They are used
without being expended and take effect in combination with innumerable facts and
other words.
Administrateur, Natal v Trust Bank van Afrika Bpk3

The Court applied the general criterion of reasonableness to determine whether a misstatement causing
harm is wrongful for the purposes of delictual liability. The Court accepted that the criterion of
reasonableness involves policy considerations and Rumpff CJ quoted the following passage from
Fleming’s Law of Torts as being correct also for South African law:
In short, recognition of a duty of care is the outcome of a value judgment that the plaintiff’s
invaded interest is deemed worthy of legal protection against negligent interference by conduct
of the kind alleged against the defendant. In the decision whether or not there is a duty, many
factors interplay: the hand of history, our ideas of morals and justice, the convenience of
administering the rule and our social ideas as to where the loss should fall. Hence, the
incidence and extent of duties are liable to adjustment in the light of the constant shifts and
changes in community attitudes.
In the Administrateur, Natal case, the defendant bank had acted on behalf of a person who claimed
compensation from the provincial authorities for expropriation of property. The authorities eventually paid
him compensation via the bank, but it turned out that he was not the owner of the property concerned.
The provincial authorities then claimed the amount that they paid out as damages for alleged negligent
misrepresentation by the bank. The action failed because the provincial authorities themselves had
initially identified the claimant as the owner of the property. The Court held that the bank had no legal
duty to verify the facts, and that the plaintiff’s own mistake, therefore, caused the loss. However, liability
for negligent misrepresentation in instances where a duty to provide correct information existed, is now
well established.
15.2 Wrongfulness
Wrongfulness is often the main issue in determining liability for negligent
misstatements, because causing pure economic harm by negligent
misstatement, is not prima facie wrongful.4 Although one generally
determines wrongfulness by looking at either the infringement of a right
or the breach of a duty, in these instances there is often no infringement
of one of the settled categories of rights (real, personal, personality, or
intellectual property rights). Courts, therefore, ask whether the defendant
had a legal duty to provide correct information to the plaintiff, and
whether fulfilling this duty would have prevented harm to the plaintiff.5
The following factors are typical of what courts take into account
when deciding whether a legal duty to provide correct information to
another person exists:
• Public office: Was the economic loss caused by a person holding a
public office, such as a notary, sworn appraiser or an auditor? Such a
person has ‘a kind of patent of credibility and efficiency conferred
upon him or her by public authority’6 and members of the public are
‘invited and entitled to repose confidence and trust in the acts of
such persons performed in their respective capacities’.7
• Professional knowledge and competence: Was the economic loss
caused while providing professional services, and was there a failure
of professional competence or skill? Where the defendant provides
professional services and professes to possess special skills, special
or exclusive knowledge, or professional competence, courts will
more readily accept that it is unreasonable to cause economic loss to
a person that depends on the defendant’s professional competence,
or that relies on the correctness of information furnished in a
professional capacity.
EG Electric Co (Pty) Ltd v Franklin8
A registered electrician, on instructions of the seller of a house, had supplied a certificate that the
electrical wiring of the house complied with municipal regulations. The Court held that a registered
electrician owed a legal duty to provide a certificate with correct information to the purchaser of the
house, who had relied on the correctness of the certificate and later had to incur costs to rectify defective
wiring.
Mukheiber v Raath9
The parents of a healthy and normal child (their fourth) instituted action in delict against a gynaecologist,
alleging that he had negligently misrepresented to them that the wife had been sterilised after the birth of
their third child. Relying on this representation, they had failed to take contraceptive measures, with the
result that the fourth child was conceived and born. The parents claimed damages from the doctor for
pure economic loss, in the form of confinement costs and maintenance of the child until he becomes
self-supporting. The Supreme Court of Appeal held that the doctor had a legal duty to stop making any
representation on the matter of sterilisation until he had taken reasonable steps to ensure the accuracy
of his representation. The factual and policy considerations indicating that such a duty existed were the
following:
• The special relationship between the doctor and the parents who consulted him
• The material risk that the situation involved, that is, the risk of the conception and birth of an unwanted
child
• The fact that this risk should have been obvious to the doctor
• The fact that it should also have been obvious to the doctor that the parents would rely on what he told
them, that the correctness of the representation was of vital importance to them, and that they could
suffer serious damage if the representation was incorrect
• The fact that the representation related to technical matters concerning a surgical procedure about
which the parents would necessarily be ignorant and the doctor should be knowledgeable.
As far as public policy considerations are concerned, the Court held that the parents’ reasons for wanting
the sterilisation were socio-economic and family reasons, and that these reasons were socially
acceptable and not contra bonos mores. Recognising legal duty in this case would not impose too heavy
a burden on the doctor. Professional people must not act negligently and should not make unsolicited
misrepresentations. Through a misstatement, the doctor had wrongfully caused financial loss to the
parents.
Axiam Holdings Ltd v Deloitte & Touche10

The plaintiffs sued auditors for misstatement of an audited company’s financial position, which caused
the plaintiffs loss after they had purchased shares in the company. The auditors excepted to the claim on
the grounds (1) that they did not owe the plaintiffs a duty in law and (2) that their failure to warn the
plaintiffs did not constitute representation in terms of section 20(9)(b)(ii) of the Public Accountants’ and
Auditors’ Act 80 of 1991. Regarding (1), the Court declined to decide at exception stage that it was
inconceivable that the auditors who knew of the misstatement and who knew that purchasers of shares
in the audited company would rely on the correctness of their statements, would not have a duty to
speak. As to (2), the Court found that actionable misrepresentation by silence or inaction is possible
where a duty to speak or act exists. Wrongfulness must be determined in light of the nature, context and
purpose of the statement and the relationship between parties. A court may conclude at the trial that a
reasonable person would not have kept silent, but would have expressed reservations as to the reliability
of the financial information. It was, therefore, not possible to decide on exception (that is, without
evidence) that the alleged misstatement by omission was not wrongful.
Cape Empowerment Trust Limited v Fisher Hoffman Sithole11

The purchaser of a business relied on a certificate issued by the seller’s auditor, confirming that the
business had made a profit of R10 million. It turned out that this was entirely untrue and that the auditor
had been grossly negligent. On the issue whether the auditor owed a legal duty to the purchaser (who
was not his client) and had wrongfully caused the purchaser’s economic loss, the Court decided that it
was impermissible to take into account the auditor’s gross negligence as a policy consideration
indicating a legal duty and wrongfulness. This would telescope the tests for wrongfulness and negligence
into one. In the context of negligent misstatements the element of wrongfulness can exclude liability,
despite the presence of all other elements of liability, including gross negligence. In this case, the Court
took into account the following factors to determine wrongfulness:
(1) Was the representation made in a business context and in response to a serious request? (yes)
(2) Was the plaintiff dependent on the defendant to provide the information or advice? (no)
(3) Was the correct information available to the plaintiff from another source? (yes, the purchaser
could have undertaken a comprehensive due diligence investigation of the business, as provided
for in the contract of sale; and the terse, unmotivated profit statement by the defendant auditor
could not be regarded as a substitute for the protection that a comprehensive due diligence
investigation by the plaintiff’s own auditors would provide)
(4) What was the extent of the plaintiff’s ‘vulnerability to risk’ – could the plaintiff reasonably have
avoided the risk of harm by other means? (yes, the plaintiff covered itself against the risk that the
business may not have attained the profit represented by the sellers, by procuring an express
warranty from the sellers, which corresponded exactly with the representation by the seller’s auditor
– this profit warranty effectively shielded the purchaser from any adverse consequence of a
misstatement of profit by anybody, including the seller’s auditor; and yet the plaintiff, through its
own conduct in allowing the agreement to lapse, had deprived itself of this contractual remedy).
The Court weighed up these factors and decided not to impose liability on the auditor for the grossly
negligent misstatement.
• Knowledge: Did the defendant know or foresee that the

misstatement would cause harm, or did the defendant have the
motive to cause harm? Such knowledge or foresight of the possibility
of harm imposes a duty on the defendant not to cause the harm.
Causing such harm is unreasonable and therefore wrongful.12
• Extent of possible liability and the economic or social consequences
of imposing liability: Where recognising a duty to prevent economic
loss could lead to a situation of indeterminate liability or ‘one fraught
with an overwhelming potential liability’ or to a ‘multiplicity of
actions’ that could be ‘socially calamitous’, courts will be reluctant to
accept that such a duty rested on the defendant.13
• Ability to protect oneself against liability or loss: Courts can take into
account the ability of the person who suffered the loss to take
protective measures against such loss, for example, by verifying the
information received. Courts also take into account the ability of the
defendant to protect himself or herself against liability for such loss,
for example, by obtaining a contractual warranty14 or insurance
cover.15
• A special relationship: Courts will be inclined to accept that a
relationship of trust or dependence, or a fiduciary relationship, gives
rise to a legal duty to provide correct information, as between an
employer and employee,16 and between a bank and its client.17
• Pre-contractual negotiations: A person in pre-contractual
negotiations with another has a legal duty not to make a
misstatement about a material aspect of the contract. The breach of
this duty can lead to delictual liability for the economic loss caused
by a negligent misstatement.18
• Statutory duty: Was a duty to provide correct information provided
for or implied by a statutory provision?19
These factors give specific content to the flexible criterion of general

reasonableness (boni mores). They are the basis on which courts
determine whether the plaintiff had a right to be given correct
information, and whether the defendant had a duty to supply such
information. If misstatement by the defendant constitutes a breach of
such a duty and causes harm to the plaintiff, the requirement of
wrongfulness is met. Courts will impose liability if the defendant acted
negligently.
1 By Grosskopf in Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985
(1) SA 475 (A) at 498.
2 1964 AC 465 (HL) at 534.
3 1979 (3) SA 824 (A) at 833–834.
4 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006
(1) SA 461 (SCA) para 13; Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
2009 (2) SA 150 (SCA) para 12.
5 Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27; Administrateur, Natal v Trust
Bank van Afrika Bpk 1979 (3) SA 824 (A) at 832H–833A.
8 1979 (2) SA 702 (E).
9 1999 (3) SA 1065 (SCA).
10 2006 (1) SA 237 (SCA).
11 2013 (5) SA 183 (SCA) paras 24–25.
12 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 694; Bayer South Africa
(Pty) Ltd v Frost 1991 (4) SA 559 (A) at 575; Mukheiber v Raath 1999 (3) SA 1065 (SCA) at
1076.
13 Mukheiber v Raath 1999 (3) SA 1065 (SCA) para 51.
14 Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA) paras 29–30.
15 Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 799.
16 Mukheiber v Raath 1999 (3) SA 1065 (SCA).
18 Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 569C–D.
19 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 694.
Chapter 16
Pure economic harm
16.1 What is pure economic harm or loss, and why does it require special attention in the law of
delict?
16.3 Wrongfulness
16.1 What is pure economic harm or loss, and why does it

require special attention in the law of delict?
Pure economic harm means financial loss that is not connected to any
physical injury or damage to property of the plaintiff. It requires special
attention in the law of delict mainly because it poses a limitation
problem. The economic effects of harmful conduct can be much more
widespread than the physical effects. Economic effects are not subject to
the natural laws of physics and can spread widely and unpredictably, for
example, where people react to incorrect information in a news report, or
where the malfunction of an electricity network causes shut-downs,
expenses and loss of profits to businesses that depend on electricity.
Courts try not to impose indeterminate liability for causing pure
economic harm (‘opening the floodgates of liability’). Instead, they seek
to contain liability within reasonably predictable limits, so as not to stifle
initiative and enterprise. They do this mainly by means of the criterion of
general reasonableness used to determine wrongfulness. However, in
some cases, they apply the criterion of reasonable foreseeability used to
determine negligence, and also use a flexible standard for determining
legal causation that involves considering reasonableness, directness and
fairness.

Situations where courts impose liability for causing pure economic harm
include the following:
• A negligent misstatement that causes the plaintiff to incur additional
expenses
• Where the relationship between the parties, such as a professional or
employment relationship, involves a duty to look after the financial
affairs of someone else, for example in the following cases:
◆ A financial adviser negligently invests a client’s money in high-
risk ventures1
◆ An attorney negligently fails to ensure that a will is validly
executed, so that the named beneficiaries derive no benefit from
the will 2
◆ An employer negligently fails to advise its employee on a group
life insurance scheme, so that the employee’s dependants suffer
loss upon his death 3
◆ An employer negligently fails to process an injury compensation
claim on behalf of an employee, so that the employee forfeits the
benefit 4
◆ A bank furnishes incorrect information to its client.5
• Where someone else’s physical injury or property damage has an
adverse economic effect for the plaintiff, for example, where
negligently causing the death of a breadwinner results in the
plaintiff’s loss of support,6 or where negligently causing physical
damage to a facility owned by someone else, and used by the
plaintiff, results in the plaintiff having to incur additional expenses.7
A person can suffer economic harm as a derivative of physical harm, for

example, when injury causes loss of earnings,8 or when damage to a
vehicle makes it necessary to incur the expense of hiring a substitute
vehicle.9 In such cases, the primary focus is on the bodily injury or the
property damage, which courts regard as prima facie wrongful. Courts
take into account the resulting economic harm as an additional item of
recoverable damages.
16.3 Wrongfulness
Causing pure economic harm is not prima facie wrongful.10 In Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority
SA11 Harms JA said the following in this regard:12
When dealing with the negligent causation of pure economic loss it is well to
remember that the act or omission is not prima facie wrongful (‘unlawful’ is the
synonym and is less of a euphemism) and that more is needed. Policy
considerations must dictate that the plaintiff should be entitled to be recompensed
by the defendant for the loss suffered (and not the converse as Goldstone J once
implied unless it is a case of prima facie wrongfulness, such as where the loss was
due to damage caused to the person or property of the plaintiff). In other words,
conduct is wrongful if public policy considerations demand that in the
circumstances the plaintiff has to be compensated for the loss caused by the
negligent act or omission of the defendant. It is then that it can be said that the legal
convictions of society regard the conduct as wrongful … .
One generally determines wrongfulness by looking at the infringement of

a right or the breach of a duty. In cases of pure economic harm, there is
often no infringement of one of the settled categories of rights (real,
personal, personality, or intellectual property rights). Therefore, courts
ask whether the defendant had a legal duty to prevent economic harm to
the plaintiff.13 The following are typical factors that courts take into
account when deciding whether a legal duty to prevent pure economic
harm to another person exists:
• Knowledge: The fact that the defendant knew or subjectively foresaw
that his or her conduct would cause damage to the plaintiff is an
important and often decisive factor.14 Such knowledge or foresight
could arise from the mere fact of a contractual relationship between
the parties, or from the fact that one party of necessity relies on the
conduct, statement or information of the other, for example, where
incorrect crop insurance information is provided by an insurance
broker to a specific group of farmers.15 Knowledge that lawful steps
to liquidate a company will cause harm to its shareholders and to
other shareholders a few shareholding levels removed from the
company does not establish a duty to prevent economic harm.16
• Practical measures to avert the harm: Courts consider the probable
success, relative ease and expense of practical steps that the
defendant could have taken to avert the harm.17 • Professional
knowledge and competence: Where the defendant provides
professional services and professes to possess special skills,
knowledge and competence, courts will more readily accept that he
or she had a duty not to cause financial loss to others while providing
professional services.18
• Degree and extent of risk: A high degree of risk indicates that the
defendant had the duty to take preventative steps.19
• Ability to protect oneself against liability or loss: Courts take into
account the ability of the person who suffered the loss to take
protective measures against such loss. They also consider the ability
of the defendant to protect himself or herself against liability for such
loss by, for example, obtaining a contractual warranty 20 or insurance
cover.21
• A special relationship: Courts will be inclined to accept that a
relationship of trust or dependence, or a fiduciary relationship, gives
rise to a legal duty to prevent economic loss to others, for example,
as between an employer and employee,22 between a bank and its
client 23 and between an attorney and the depositor of money into his
or her trust account.24
Franschhoekse Wynkelder (Ko-operatief) Bpk v South African Railways and Harbours25
The plaintiff, a wine-making cooperative, instituted an action for damages against the defendant, whose
employees has sprayed weedkiller on the undergrowth alongside one of its railway lines. The weedkiller
had contaminated the soil in the vineyards of farms next to the railway line. The owners of these farms
were members of the cooperative, and in terms of its constitution, the members were obliged to deliver
grapes to the plaintiff to make wine. The plaintiff alleged that vines growing on the contaminated soil
were destroyed or damaged and that, as a result, the plaintiff would not receive grapes from these farms,
causing the plaintiff harm, which the plaintiff alleged was foreseeable. The defendant excepted to the
claim on the ground, inter alia, that it was not in law liable to the plaintiff for any harm, because the
defendant’s conduct was not wrongful vis-à-vis the plaintiff. The Court held that the plaintiff had not
alleged that there was any special relationship between the parties, and that no circumstances or facts
alleged by the plaintiff suggested that the defendant had a legal duty to prevent harm to the plaintiff.
There were also no considerations of public policy that justified the recognition of such a legal duty.
• Statutory duty: Was a duty to prevent economic loss provided for or

implied by a statutory provision? Courts will determine whether such
a statutory duty exists by gauging the intention of the legislature as it
appears from the wording of the statutory provision.
Knop v Johannesburg City Council 26
The Court held that a local authority charged with implementing zoning provisions did not have a duty to
prevent economic loss to a person who incurred wasted costs when his application for permission to
subdivide property was granted, but it then later appeared that the permission was in contravention of an
existing zoning plan.
Minister of Law and Order v Kadir 27

Policemen had investigated the scene of an accident that was caused by a package falling off a delivery
vehicle. The driver of the vehicle had driven on without stopping. The policemen failed to obtain the
names and addresses of possible witnesses before these people left the scene of the accident. The Court
held that the policemen did not have a legal duty towards the victim of the accident, who was later
unable to institute a civil claim for damages against the possibly negligent and unknown driver of the
vehicle. The police had a statutory duty in terms of section 5 of the Police Act 7 of 1958 to deter crimes,
track down criminals and protect the public against crimes. However, Hefer JA stated:28
Viewing the matter objectively, society will take account of the fact that the functions of the
police relate in terms of the Act to criminal matters and were not designed for the purpose of
assisting civil litigants.
A statutory duty to provide correct information could indicate that the failure to provide
information or providing incorrect information is unlawful.
• Fraud or dishonesty: Where one person furthers his or her own

interests at the cost of harm to another, the existence of fraud or
dishonesty makes causing the harm more unreasonable. In Minister
of Finance v Gore NO 29 the Court said:
In the language of the more recent formulations of the criterion for wrongfulness: in cases of
pure economic loss the question will always be whether considerations of public or legal policy
dictate that delictual liability should be extended to loss resulting from the conduct at issue.
Thus understood, it is hard to think of any reason why the fact, that the loss was caused by
dishonest (as opposed to bona fide negligent) conduct, should be ignored in deciding the
question. We do not say that dishonest conduct will always be wrongful for the purposes of
imposing liability, but it is difficult to think of an example where it will not be so.
• Policy considerations: In pure economic harm cases, the plaintiff

must allege in the pleadings not only that the harm was negligently
and wrongfully caused, but must also allege and prove the facts
relied upon to substantiate the considerations of policy that give rise
to a legal duty on the part of the defendant.30
◆ The first policy consideration is the law’s concern to avoid the
imposition of liability in an indeterminate amount for an
indeterminate time to an indeterminate class.31
◆ Courts will consider whether recognising liability would impose
an additional burden on the defendant, which would be
unwarranted or which would constitute an unjustified limitation
of the defendant’s activities.32
◆ Courts will more readily impose liability for a single loss, or loss
that affects a single identifiable plaintiff, or that occurs once, or
that is unlikely to cause a large influx of actions.33
◆ Extent of possible liability and economic or social consequences
of imposing liability: Where recognising a duty to prevent
economic loss could lead to a situation of indeterminate liability
or ‘one fraught with an overwhelming potential liability’, or to a
‘multiplicity of actions’ that could be ‘socially calamitous’,
courts will be reluctant to accept that such a duty rested on the
defendant.34
◆ Courts have not extended liability for negligent interference with
a personal right or personal claim to cases where the plaintiff
suffers harm that results from death or injury of another person
with whom the plaintiff had a contractual relationship. In Union
Government v Ocean Accident & Guarantee Corporation Ltd 35
the Court refused the government’s claim for loss suffered as a
result of negligently inflicted injury to a government employee
(a magistrate), on the basis that recognising such a claim would
lead to a large increase in claims arising from relationships,
contractual or other, between the physically injured person and
other persons who may indirectly suffer economic harm as a
result of the injury.
Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA36
The defendant’s employee caused damage to a mooring buoy in Durban harbour, which in turn caused
economic harm to the charterer of an oil tanker waiting outside the harbour, because of the consequent
delay in discharging the cargo and additional liability for charter fees. The Court held that the defendant
did not owe a legal duty to the plaintiff to prevent such economic harm, because the plaintiff had not
shown that the defendant should have foreseen the possibility of such harm to the charterer specifically.
The Court considered this type of harm to be foreseeable only in relation to an undetermined class of
potential victims, namely the owners or charterers of all vessels intending to discharge at that particular
mooring buoy. Only insofar as the plaintiffcharterer was a member of that undetermined class was his
loss reasonably foreseeable. The Court was therefore unwilling to recognise a legal duty on the part of the
defendant towards one of an unknown number of potential claimants.
• In contractual relationships between the parties:
◆ Courts will enquire whether the plaintiff has a contractual remedy and whether there is a need for a
delictual remedy
◆ Courts will enquire whether the plaintiff could have been protected by contractual means, for
example, by prior agreement that the defendant will bear the risk of harm.37
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 38

A big truck carrying asbestos dust was on its way to Durban harbour from a mine in Zimbabwe. The driver
negligently caused a collision on a toll road. The truck overturned and spilled its cargo on and around the
road. Because of the hazardous nature of asbestos powder, the spillage required an extensive cleaning-
up and decontamination operation. As a result, the toll road had to be closed for 24 hours, and the
Roads Agency lost the revenue that would otherwise have been collected at two nearby toll plazas. The
Roads Agency instituted an action in delict against the driver and his employer (Fourway Haulage), for
damage suffered in the form of lost toll revenue for 24 hours.
Consider the following questions and the manner they were dealt with in this case:
• Did this case involve pure economic harm?
• Did this case raise the possibility of boundless liability, involving ‘the law’s concern to avoid the
imposition of liability in an indeterminate amount for an indeterminate time to an indeterminate class’?
• Did this case involve a single loss that affected a single identifiable plaintiff, and that occurred once (a
loss unlikely to bring a large influx of actions)?
• Could the plaintiff have protected itself by contractual means, for example, by prior agreement that the
defendant will bear the risk of harm? Was the Roads Agency ‘vulnerable’ to the risk of the loss, because
it could not readily protect itself against that risk by concluding a contract with every user of the toll
road?
• Would imposing liability unreasonably interfere with the defendant’s commercial freedom, or,
conversely, was there no such unreasonable interference, because the defendant was already under a
duty to the world at large to take reasonable care in transporting the cargo?
• Would it have been more appropriate to regard this as a case where the risk of loss could have been
spread among all the road users by an increase in toll fees, instead of burdening the defendant with the
Road Agency’s loss?
• Was it relevant to the question of wrongfulness that the defendant’s employee was transporting an
extremely dangerous cargo? Would the situation have been different if the truck had contained an
innocuous substance like sand?
Country Cloud Trading CC v MEC, Department of Infrastructure Development39

The Department of Infrastructure Development entered into a building contract with iLima. When the
project ran into difficulties iLima borrowed R12 million from Country Cloud. The loan agreement was
subject to the condition that the Department would repay Country Cloud’s R12 million out of the amount
payable by the Department to iLima in terms of the building contract. The Department later cancelled the
building contract, thereby committing breach of contract, and this resulted in iLima’s liquidation and a
loss to Country Cloud, who then sued the Department in delict. The central issue was whether the
Department had wrongfully caused harm to Country Cloud. Country Cloud’s claim was for pure economic
harm and it could not show that the Department had wrongfully infringed its rights or had a legal duty not
to cause it economic harm. Country Cloud relied on state accountability, but this consideration does not
always give rise to a private-law duty, particularly if, as in this case, the Department did not act
dishonestly or corruptly. Also, Country Cloud could have attempted to take steps to protect itself against
non-payment by iLima, by claiming repayment from iLima’s liquidator under the loan agreement, or
taking cession of iLima’s claim for breach of contract against the Department, or by calling for payment
from a surety.

3 Aucamp v University of Stellenbosch 2002 (4) SA 544 (C).
4 Joubert v Impala Platinum Ltd 1998 (1) SA 463 (BH).
6 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 837–838.
7 Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 (3) SA 653 (D).
In Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk t/a Pha Phama Security
2010 (4) SA 455 (SCA); [2011] 1 All SA 34 (SCA) the Supreme Court of Appeal regarded the
claim for loss suffered by the owner of a vehicle stolen from the premises protected by a
security company as a claim for pure economic loss. Arguably, this is rather a case of
physical loss of property.
8 SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A) at 836; Ngubane v South African
Transport Services 1991 (1) SA 756 (A) at 781.
9 Smit v Abrahams 1994 (4) SA 1 (A).
10 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) para
12; Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1)
SA 1 (CC) para 22.
11 SA 2006 (1) SA 461 (SCA).
13 Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27; Administrateur, Natal v Trust
Bank van Afrika Bpk 1979 (3) SA 824 (A) at 832H–833A.
14 Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 799; International
Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 694; Bayer South Africa (Pty) Ltd v
Frost 1991 (4) SA 559 (A) at 575; Mukheiber v Raath 1999 (3) SA 1065 (SCA) at 1076.
15 Delphisure Group Insurance Brokers Cape (Pty) Ltd v Kotzé [2011] 1 All SA 109 (SCA) paras
23–26.
16 Itzikowitz v Absa Bank Ltd 2016 (4) SA 432 (SCA).
17 Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 384;
Arthur E Abrahams and Gross v Cohen 1991 (2) SA 301 (C) at 312.
18 Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 799; Mukheiber v
Raath 1999 (3) SA 1065 (SCA); Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms)
Bpk t/a Pha Phama Security 2010 (4) SA 455 (SCA); [2011] 1 All SA 34 (SCA) paras 8 and 21;
Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA).
20 Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA) paras 29–30.
22 Mukheiber v Raath 1999 (3) SA 1065 (SCA).
24 Hirschowitz Flionis v Bartlett and Another 2006 (3) SA 575 (SCA).
25 1981 (3) SA 36 (C).
26 1995 (2) SA 1 (A).
27 1995 (1) SA 303 (A) at 319.
28 Para 321H.
29 2007 (1) SA 111 (SCA) para 87.
30 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA).
23.
26.
24.
23; Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at
383–384 and 386–387; Arthur E Abrahams and Gross v Cohen 1991 (2) SA 301 (C) at 312;
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 798.
35 1956 (1) SA 577 (A) at 585B–D.
36 1980 (3) SA 653 (D).
25.
38 2009 (2) SA 150 (SCA).
39 2015 (1) SA 1 (CC).
Chapter 17
Interference with contractual

relations
17.1 Introduction
17.4 Conclusion
17.1 Introduction
The interference with contractual relations amounts to the causation of
pure economic loss and therefore the plaintiff is required to institute the
Aquilian action to recover the patrimonial harm which he or she has
suffered from the wrongdoer.1 To be successful, the plaintiff must prove
all of the elements of delictual liability and, because this is an instance of
pure economic loss, the plaintiff will generally have to establish that the
loss was caused wrongfully.
Courts have approached the interference with contractual relations
differently, depending on whether it occurred negligently or
intentionally.

Generally speaking, courts have been consistent in their refusal to
impose delictual liability for the causation of pure economic loss through
negligently interfering with another person’s contractual rights.2 This
approach may be traced back to Union Government v Ocean Accident &
Guarantee Corporation Ltd,3 where the government’s claim for loss
suffered as a result of a negligently inflicted injury to a government
employee (a magistrate) was refused. The Court refused the claim on the
basis that recognising it would lead to an unlimited number of claims
arising from other relationships, contractual or other, between the
physically injured person and other persons who may indirectly suffer
economic harm as a result of the injury.4
The Court thus adopted a conservative approach and declined to expand
Aquilian liability for negligently interfering with contractual relations.
Schreiner JA described the dangers inherent in such expansion as
follows: 5
Once one goes beyond physical proximity and considers the possibilities that may
arise out of the relationships, contractual or other, between the physically injured
person and other persons who may suffer indirectly, though materially, through his
incapacitation, one is immediately met with the prospects of an unmanageable
situation. It is easy to imagine the absurdities that would arise if all persons
contractually linked to the injured person could sue the careless injurer for the loss
suffered by them. The case was put to us of the injured building contractor who in
consequence of his injury has to discontinue his contract, so that his employees and
the building owner and the architect and his sub-contractors and their employees
are all put to some loss. Insurance companies would also be a wide class of plaintiffs
who could bring actions when persons insured by them were negligently injured or,
presumably, killed, if the extension of liability contended for were recognised. In
fact it would be a rare accident that did not give occasion for a crop of actions at the
suit of persons who had made contracts with the injured party. The question
whether in any particular case there is a liability under the lex Aquilia towards a
particular person cannot be satisfactorily answered by any such wide proposition
as that contended for on behalf of the Government.
In a subsequent case, Dantex Investment Holdings (Pty) Ltd v Brenner,6
the Appellate Division did not reject the possibility of imposing delictual
liability for the negligent interference with a contractual relationship and
left open the possibility of future expansion of liability.7 In Minister of
Safety and Security v Scott 8 the Supreme Court of Appeal indicated that it
would, in principle, be willing to consider expanding delictual liability to
negligent interference with a contractual relationship in future.
Minister of Safety and Security v Scott9
In this case, the first respondent, Scott, was a professional hunter and conducted big game hunting
enterprises. He was also the chief executive officer of Scottco, the second respondent, which owned a
game ranch and conducted hunting safaris. Scottco contracted to advertise its safaris in an American
hunting magazine (Field & Stream) from February 2004. The parties further agreed that Scottco would
host hunting trips for American hunters, co-ordinated by the publisher of the Field & Stream. The first
American hunting party arrived in South Africa in June 2004. On the night they arrived, Scott was
arrested for handling a firearm while under the influence of alcohol and consequently detained by the
police. Scott argued that the arrest and detention was wrongful because he had not ‘handled’ the firearm
for the purposes of the then applicable Arms and Ammunition Act 75 of 1969 and therefore did not
commit a statutory offence under the Act. As a result of his detention, he was unable to manage the
hunting party and the entire hunting trip was ruined.
Consequently Field & Stream cancelled its contract with Scottco. Scott and Scottco then instituted
delictual claims against the Minister of Safety and Security. While Scott attempted to hold the Minister
vicariously liable for his alleged unlawful arrest and detention, Scottco sued the Minister in delict,
alleging that the Minister’s employees had culpably and wrongfully caused it pure economic loss of
contractual income and profits. This claim was based on the employees’ alleged negligent interference
with the contract between Scottco and Field & Stream.
Both claims were successful in the High Court, but the Supreme Court of Appeal rejected Scottco’s
claim based on the negligent interference with the advertising and safari contract. The Court held that
this was not a case of intentional interference and, because ‘the kind of liability now sought to be
imposed does not fall within historically recognised instances’,10 the claim should fail. However, noting
the argument that the current approach to negligent interference with contractual relations is perhaps
too restrictive, it suggested that any negligent conduct by a third party that involves the infringement of a
contractual right or the increase of contractual obligations ought on principle to be a basis for Aquilian
liability.11 The Court added that the fear of unlimited liability could be allayed by the correct application
of the elements of delictual liability.12 Assuming that Scottco’s claim was actionable under South
African law, the Court nevertheless did not impose liability, because it did not regard the causing of pure
economic loss in this case to be wrongful, and also considered the loss to be too remote from the harm-
causing conduct to satisfy the requirements of legal causation.13
With regard to wrongfulness, the Court confirmed that the police officers had relied on a technically
wrong basis for Scott’s arrest, thereby rendering the arrest and detention wrongful. Nevertheless, the
officers could lawfully have arrested Scott for assault with intent to do grievous bodily harm. The
technically incorrect arrest and detention paled in comparison with Scott’s reprehensible behaviour the
night of his arrest. Against this background, the Court held that it would be unreasonable to impose
delictual liability on the Minister, especially because this was likely to create an ‘unascertainable class
of potential claimants’.14
On legal causation, the Court emphasised that there was no evidence to find that the ‘police officers
knew of the contract between Scottco and Field & Stream magazine’ and further that there ‘was no
evidence that the police officers knew, let alone foresaw, that Scott’s detention would have any impact
on the planned elephant hunt, lead to the cancellation of the contract between the respondents and
Field & Stream magazine and cause financial loss to Scottco’.15
Notwithstanding the general denial of delictual liability for the negligent

interference with contractual relations, there are some exceptions where
courts have recognised liability in this context; for instance, where the
defendant negligently interferes with the plaintiff’s contractual right to
property.16 However, this is applicable only in cases where, together with
the contractual right and economic interest in the property, the holder of
the right is also physically in possession of the property and bears the risk
of damage; for example, the instalment-purchaser of a motor vehicle,17
the instalment-purchaser of land,18 or the borrower of a motor vehicle.19
PAUSE FOR Negligent interference with the personal right to support: the dependent’s
REFLECTION claim for loss of support
Other than the exceptional situations where liability is imposed for the negligent
interference with contractual relations, the South African law of delict also
recognises Aquilian liability for the negligent interference with a personal right in
the form of negligently causing the death of a breadwinner. Dependants may
institute a claim for loss of support arising from the death of the breadwinner
caused culpably and wrongfully by the wrongdoer. This type of delictual liability is
based on family law principles and the claim for loss of support was historically
restricted to cases where a duty of support derives from a valid marriage, mainly
concerning spouses and children. However, as we will discuss further in Chapter
23, courts have extended the group of claimants to include those whose right to
support derives from a relationship akin to marriage, but may not be a legally
valid marriage; for example, ‘a solemn marriage in accordance with recognised
and accepted faith’,20 a same-sex permanent life relationship similar in other
respects to marriage,21 or the right to support of a divorced person under a court
order dealing with maintenance after dissolution of the marriage.22
We emphasise that courts have not yet extended delictual liability for
negligent interference with a personal right to support to cases where the right of
support is based on a contract between the plaintiff and the person whose death
or injury causes harm to the plaintiff.
While the courts generally deny liability for negligently interfering with
contractual relations, the position is different when the interference with
contractual relations occurs intentionally. Intentional interference with a
contractual relationship by a third party may give rise to delictual liability
towards the contracting party who suffered loss.23 In Dun and Bradstreet
(Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 24 the
Court described this category of delictual liability as follows:
Moreover, incorporeal property, such as a personal right flowing from contract,
also enjoys a measure of protection in that a delictual remedy is available to a party
to a contract who complains that a third party has intentionally and without lawful
justification invaded his enjoyment of such property by inducing the other party to
the contract to commit a breach thereof … .
The courts have imposed delictual liability for the intentional

interference with contractual relations in the following circumstances:
• Where the defendant induced a party to a contract to breach that
contract, the courts have awarded a delictual claim to the other
contracting party (the plaintiff).25 In Atlas Organic Fertilizers (Pty)
Ltd v Pikkewyn Ghwano (Pty) Ltd,26 where the managing director of a
company enticed some of the employees of a competing company to
leave their respective positions, take up employment at the
competing company and sell the competitor’s product, the Court
held that a ‘delictual remedy is available to a party to a contract who
complains that a third party has intentionally and without lawful
justification induced another party to the contract to commit a
breach thereof.’27 The Court stated that the causation of pure
economic loss in this context may be regarded as wrongful if the aim
‘is not to benefit from their services but to cripple or eliminate the
business competitor’. 28 The Constitutional Court has held that these
types of cases ‘may arguably be prima facie wrongful’. 29 However, it
also sought to emphasise that ‘the wrongfulness enquiry is “based on
the duty” not to cause harm – indeed to respect rights – and
questions the reasonableness of imposing liability’ 30 and stated that
the ‘[i]nducement without harm to or infringement of the right to
goodwill, will not usually be wrongful.’ 31 Therefore, whether or not a
plaintiff would have to prove wrongfulness in a so-called
inducement case will depend on the particular circumstances of the
case.
• Where the defendant interferes with the contractual relationship
between the plaintiff and another person with the result that the
plaintiff does not obtain the performance to which he or she is
entitled in terms of the contract, even if there is neither breach of
contract nor conduct by the defendant that amounts to enticement
or inducement to breach of contract. In Country Cloud Trading CC v
MEC, Department of Infrastructure Development 32 the
Constitutional Court referred to this category of delictual liability as
follows:
◆ The delict of intentional interference with contractual relations
may be brought by a party to a contract who asserts that a third
party – a stranger to the contract – has intentionally deprived it of
benefits it would otherwise have gained from performance in
terms of the contract.
◆ For example, where a defendant intentionally continues to occupy
premises which the plaintiff has leased from the owner of the
premises, well knowing that the incumbent lessee is thereby
deprived of its contractual rights under the lease.33 Two of these
so-called holding-over cases, in which the courts have sought to
clarify and expand on the requirements for a delictual claim in
this context, are discussed below. The Constitutional Court has
characterised this category of cases as cases where the defendant
does not ‘simply cause the plaintiff to lose its right to occupy
premises’, 34 but rather ‘usurp[s] that right, appropriating it for
itself’. 35
PAUSE FOR Frustrating the conclusion of a contract

REFLECTION In Makulu Plastics & Packaging CC v Born Free Investments 128 (Pty) Ltd,36 the
respondent, the owner and landlord of a building, concluded a lease agreement
with the appellant. The respondent had requested the municipality to terminate
the electricity supply to the leased premises on the ground that the previous
occupier had been liquidated, without mentioning that a new tenant (the
appellant) was occupying the premises. When the appellant subsequently sought
to contract with the municipality for services, the latter refused to do so on the
basis that the respondent had denied any contractual relationship with the
appellant. The Court held that the conduct of the respondent may be regarded as
the intentional interference with a contractual relationship between the appellant
and the municipality. Therefore, it granted the appellant an order interdicting the
respondent from preventing the appellant from entering into an agreement with
the municipality for the provision of municipal services.37 In effect the Court held
that the respondent’s conduct, which was aimed at frustrating the contract
between the plaintiff and the municipality, may be regarded as the intentional
interference with a contract.
To date, this judgment has not been confirmed or applied by either the
Supreme Court of Appeal or Constitutional Court. Do you agree with the Court’s
decision in Makulu?
Dantex Investment Holdings (Pty) Ltd v Brenner38

In this holding-over case the plaintiff (appellant) instituted a delictual claim against the defendants
(respondents) on the basis that the defendants had intentionally and wrongfully interfered with the
plaintiff’s lease agreement with a third party. In its particulars of claim the plaintiff stated that it had
entered into a written lease agreement with a third party in terms of which it became entitled to occupy
the leased premises as from a certain date and that, since then, the defendants had been in wrongful
occupation thereof. Furthermore, the particulars stated that, despite being so demanded, the defendants
had refused to vacate the premises and that, arising from such wrongful occupation, the plaintiff had
suffered pure economic loss and would continue to suffer such harm until the defendants vacated the
premises. The defendants excepted to the plaintiff’s claim, which was upheld by the Court a quo.
On appeal, the Appellate Division accepted that the interference with contractual rights can, under
certain circumstances, constitute a delict, but noted that it was not certain what the requirements for
delictual liability are in this context.39 Both parties had accepted that intent (dolus) is a requirement for
liability in this context and the Court assumed without deciding, for the purposes of the case, that the
attitude of the parties was correct in respect of the requirement of intent. However, Grosskopf JA noted
that:
… the question whether culpa might not constitute a sufficient element of fault to ground
liability for damages for an unlawful interference with contractual relations was not raised or
debated in argument. Since there was in any event no allegation of culpa in the pleadings I
need say no more about this possibility.40
The Court held that, when claiming patrimonial loss based on the intentional and wrongful act of another,
the plaintiff is required to allege and prove that the defendant intended to cause the plaintiff’s loss.41
However, in the present case, the plaintiff failed to do so because it merely alleged that the defendants
acted with knowledge of the plaintiff’s rights and that the plaintiff had suffered a loss.
The defendants’ exception that the pleadings of the plaintiff did not disclose a cause of action
because it did not allege the requisite intent on the part of the defendants was therefore upheld. In other
words, the Court held that the plaintiff’s allegations did not embrace all that was meant by intent
(dolus). In fact, it held that the plaintiff’s pleadings were not inconsistent with the defendants’ belief that
the plaintiff would not suffer harm by being kept out of the leased premises, and it is easy to imagine a
situation in which this belief arose. For instance, the defendants might believe that the plaintiff required
the premises only for future expansion, or that the plaintiff has, since entering into the lease, acquired
more suitable premises and would prefer not to take occupation under the lease.42
The Court further held that it was accepted that intent encompassed not only the intention to achieve
a particular result, but also the consciousness that such a result would be wrongful.43 Although there
might be policy considerations that could explain why a plaintiff who relied on fault in the form of intent
should not have to prove consciousness of wrongfulness, such considerations did not apply in this
case.44 The plaintiff should therefore have alleged consciousness of wrongfulness on the part of the
defendants, but also failed to do so.45
Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 46

The plaintiff concluded a lease agreement with the owner of business premises on 14 December 1989 in
terms of which it was to take occupation on 1 February 1990. The defendant was at that time the tenant
of the premises in terms of a lease agreement which was due to expire on 31 December 1989. The
defendant failed to vacate the premises on that date, and the plaintiff could consequently only take
occupation of the premises on 2 April 1990. It was this holding over by the defendant which the plaintiff
argued constituted an intentional and wrongful interference with its lease agreement and caused it to
suffer pure economic loss.
The evidence indicated that, from at least early December 1989, the defendant had been aware that
the plaintiff was negotiating a lease for the relevant premises with its owner. The defendant’s reaction
had been to send a ‘rental’ cheque for January 1990 to the owner and, when that was rejected and
returned, he had instructed his attorneys to assert in writing (for the first time) that in October 1989 he
and the owner’s representative had concluded an oral agreement in terms of which the defendant’s
lease would be extended beyond 31 December 1989 and in any event until the premises to which it
hoped to move were ready for occupation.
The plaintiff instituted the Aquilian action for damages which it suffered as a result of the defendant’s
wrongful and intentional interference with its contractual relationship with the owner of the premises. In
considering the plaintiff’s claim, the Court confirmed that a party to a contract who seeks to recover
delictual damages from a third party for interfering with his contractual relationship has to prove the
causing of harm by wrongful and culpable interference. As far as culpability is concerned, it is clear that
the action was based on intent, and the Court therefore did not decide as to whether negligence will also
suffice. As to the interference itself, it is neither necessary that the interference should result in a breach
of the contract, nor that the interference should consist of an incentive by the defendant upon the party
to the contract to commit the breach. Nonetheless, inducement and breach are significant factors that
courts should consider when determining if the particular interference in a contractual relationship is
wrongful.
On the facts, the Court found this declaration of an oral lease to be untrue and that the attempt to
send a ‘rental’ cheque for the period in dispute had been a dishonest and mischievous attempt to
support the untruthful declaration. The Court found that the defendant had been aware that, should he
fail to vacate the premises, the plaintiff would suffer losses. The Court decided that:
• The defendant’s failure to vacate the premises had interfered with the plaintiff’s contractual relationship.
• The defendant had the necessary intent.
• Even though the defendant’s conduct did not constitute inducement of a breach of contract, it had
wrongfully caused the plaintiff’s harm.
Country Cloud Trading CC v MEC, Department of Infrastructure Development47

The respondent, the MEC, had contracted with a third party, iLima, for the latter to build a hospital. To
comply with its obligations under the contract iLima had borrowed R12 million from the appellant,
Country Cloud. This loan agreement was subject to the condition that Tau Pride, the MEC’s managing
agent for the building contract, would repay Country Cloud the R12 million out of the amount payable by
the MEC to iLima. Further, one Lupepe, the chief executive officer of iLima, was listed as a party to the
loan agreement and stood as surety and co-principal debtor for the loan. The MEC subsequently
cancelled its contract with iLima on the basis that iLima had made certain misrepresentations. This
resulted in the eventual liquidation of iLima, because it was relying on the money from the construction
contract. Due to iLima’s precarious financial position, it failed to repay Country Cloud the money it had
borrowed.
Country Cloud then instituted a delictual claim against the MEC for the pure economic loss it had
suffered, on the basis that the MEC had unjustifiably cancelled the contract with iLima in circumstances
where it had foreseen that Country Cloud would suffer harm as a result. The MEC contended that Country
Cloud had failed to establish the element of wrongfulness.
The facts of this case differ from the situations described in Atlas Organic Fertilizers, Dantex and
Lanco, because there was no inducement to breach a contract or holding over. This was a novel case of
interference with contractual relations, where a stranger to a contract had suffered economic loss as a
result of the intentional repudiation of the contract by one of the contracting parties.48
The Supreme Court of Appeal dismissed the plaintiff’s claim. It held that the case did not fall under
the established categories of intentional interference with contractual relations. It also held that there
were insufficient policy-based considerations justifying a finding of wrongfulness for the purposes of
expanding delictual liability in this context.49 On appeal, the Constitutional Court followed the line of
reasoning adopted by the Supreme Court of Appeal. The Court said the following:50
I cannot quibble with Country Cloud’s contention that, loosely speaking, the department
intentionally ‘interfered’ with Country Cloud’s contractual relations with iLima by causing it to
lose contractual benefits to which it was entitled. But that fact does not in itself render conduct
prima facie wrongful.
The legal category is narrower. The cases where conduct may arguably be prima facie wrongful
are limited. They involve a situation where a third party, A, the defendant, intentionally induces
a contracting party, B, to breach his contract with the claimant, C, without lawful justification
for doing so. But the department did not induce iLima’s breach in the relevant sense. In these
circumstances this would require an act of persuasion directed at iLima with the intent that it
dishonour its agreement with Country Cloud. The defendant wrongdoer thereby becomes an
accessory to the primary wrong: the breach of contract. The act of persuasion, paired with
intent, establishes this accessory liability. [… However,] iLima’s breach of the loan agreement
with Country Cloud was simply a consequence of the department’s conduct in cancelling the
completion contract. There was no act of persuasion.
Liability has also been established in cases where A refuses to vacate premises owned by B,
which interferes with the lease agreement between B and her tenant, C, causing C loss. Both
Dantex and Lanco involved these circumstances. While the plaintiff’s claim in Dantex failed
because fault was not alleged, the plaintiff in Lanco succeeded. But that case is different from
Country Cloud’s. The act of interference in Lanco involved the holding over of leased premises.
The defendant there did not simply cause the plaintiff to lose its right to occupy the premises.
The defendant usurped that right, appropriating it for itself. It also did so in a manifestly
‘dishonest and mischievous’ way. The factual matrix in this case — where the defendant’s
supposed act of interference is the cancellation of an entirely different contract — is thus
distinguishable from that which confronted the court in Lanco. The department’s responsibility
for Country Cloud’s loss is very different.
The Court found that Country Cloud’s claim was not on a par with the
cases previously considered to amount to intentional interference with
contractual relationships. It further refused to extend delictual liability to
what was recognised as a novel situation, because the MEC’s causing of
pure economic loss to Country Cloud was not considered wrongful. The
main policy-based reasons for the Court’s stance was that, although the
MEC had foreseen Country Cloud’s loss and could be regarded as having
caused it intentionally, and although imposing liability for a foreseen and
intended loss would not open the floodgates to limitless liability, Country
Cloud was not vulnerable to the risk of harm.51 Country Cloud could have
claimed repayment from iLima in terms of the loan agreement, could
have taken cession of iLima’s claim against the MEC, or could have called
up Mr Lupepe’s suretyship obligation.52 The MEC’s reliance on state
accountability was also unsuccessful, inter alia because there was no
corruption or fraud. The Court also held that the imposition of delictual
liability would interfere with the contractual relationship that existed
between Tau Pride and Country Cloud.53
Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd54
In this case, the Court was once again requested to impose delictual liability in a novel situation.
Masstores had concluded a lease agreement with the owner of a mall, Hyprop, in terms of which it was
agreed that Masstores was not allowed to trade as a general food supermarket. The mall owner also
entered into a separate lease agreement with Pick ’n Pay, which secured for Pick ’n Pay a right of
exclusivity by providing that the lessor would not permit any other supermarket to be operated in the
mall. When Masstores decided to launch its Foodco concept at its store, Pick ’n Pay argued that it was
operating a general food supermarket and launched an interdict application against Masstores to restrain
it from interfering with the lease agreement between Pick ’n Pay and the owner of the mall.
The Supreme Court of Appeal confirmed the requirements for delictual liability in this context:
an unlawful act which constitutes an interference in the contractual relationship and which is
committed with some form of dolus.55
The Court concluded that, in trading in competition with Pick ’n Pay, contrary to its contractual restraint,
after it was made aware of Pick ’n Pay’s right to exclusivity, Masstores had acted wrongfully.56
Furthermore, it held that that Pick ’n Pay’s claim was based on the intentional deprivation of a benefit
that a contracting party would otherwise have obtained from performance under a contract, more
specifically the right to exclusivity in operating a supermarket at the mall.57 The Supreme Court of Appeal
held that the Constitutional Court had recognised this category of delictual liability for intentional
interference with contractual relationships in Country Cloud58 and therefore Masstores was not required
to prove wrongfulness.59 After confirming that Masstores’s conduct had been intentional, the Court
concluded that Pick ’n Pay had proven the requirements for an action in delict.60
On appeal, the Constitutional Court held that the Supreme Court of Appeal’s interpretation of the
Country Cloud judgment had been incorrect:
This Court’s judgment in Country Cloud is no authority for the proposition that the deprivation of
contractual rights in delictual claims for interference with contractual relations is prima facie
unlawful.61
It also concluded that this case, like Country Cloud, did not resemble holding-over cases where the
defendants not only deprived the plaintiffs of their contractual rights, but also usurped those rights.
Instead, the defendant could simply be said to have deprived the plaintiff of its right.62 As a result,
Masstores was required to prove wrongfulness.63
On the facts, the Court held that there was no wrongfulness. It emphasised the need for free
competition as a policy consideration and held that, generally, there is no legal duty on third parties not
to infringe contractually based exclusive rights to trade.64 Furthermore, the Court distinguished this case
from Lanco 65 insofar as the nature of the interest protected by the contractual right differed. In Lanco,
the protected contractual right was a property right which operated against the whole world, while in this
case the protection sought did not operate in the same manner.66 The Court also followed its reasoning
in Country Cloud and pointed to Pick ’n Pay’s alternative contractual remedies that were available
against the mall owner.67 It approved the statement in Country Cloud that:
the law should hesitate before scrubbing out the lines [contracting parties] have laid down by
superimposing delictual liability [because this] could subvert their autonomous dealings.68
The fact that Pick ’n Pay could have taken alternative steps to protect itself from avoiding loss was a
further important consideration against a finding of wrongfulness.69 Drawing on English law, the Court
emphasised that, merely because Masstores’s breach of its own lease with Hyprop may have been
wrongful, does not automatically entail wrongfulness in delict against Pick ’n Pay.70 Finally, the fact that
Pick ’n Pay had an alternative remedy also meant that one of the requirements for an interdict had not
been proven.71
COUNTER The categorisation of different types of interference cases

POINT • In Country Cloud the Supreme Court of Appeal distinguished the facts
before it from cases such as Lanco and Dantex:
In those cases a delictual remedy is afforded to a party to a contract

who complains that a third party — who is a stranger to the contract
— has intentionally deprived him or her of the benefits he or she
would otherwise have obtained from performance under the contract.
Examples include preventing a lessee from taking occupation of the
leased property in terms of the lease (Dantex); and enticing another
person’s employees to breach their contract (Atlas Organic Fertilizers
(Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd).72
• On appeal the Constitutional Court held that, although it may be said that
the Department intentionally ‘interfered’ with Country Cloud’s contractual
relations with iLima in a loose sense, it did not fit within the established
categories of delictual liability, namely holding over or inducement, and
the Court ultimately denied liability.73 The Court seems to suggest that the
holding-over and inducement-to-breach cases may be regarded as
established categories of delictual liability and therefore prima facie
wrongful. The Court noted the following:
Country Cloud was unable to bring its claim within the established
ambit of the delict of unlawful interference in a contract. Had Country
Cloud succeeded in doing so, the department’s conduct would have
been regarded as prima facie wrongful.74
• In Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd75 the Supreme
Court of Appeal identified two instances where a defendant may be held
delictually liable for intentionally interfering with a contract: 76 the first
instance ‘results in the contracting party not obtaining the performance to
which it is entitled on the contract’77 and the second scenario entails ‘a
contracting party’s obligations under the contract [being] increased’.78 The
Court held that the first instance was concerned with the infringement of
personal right and that it included holding-over cases as well as situations
where employees are induced to breach their contracts.79 The Court stated
that the claim was based on the ‘intentional deprivation of a benefit a
contracting party would otherwise have obtained from performance under
a contract’80 and held that the Constitutional Court had referred to this
type of case as the ‘usurpation of [a] right’ in Country Cloud.81 It
concluded that there ‘are therefore two types of delictual action in
interference cases, namely those where inducement or enticement feature
and others where there is a breach of a legal duty or the infringement of a
subjective right.’82
• On appeal, the Constitutional Court rejected this categorisation. It
confirmed that its judgment in Country Cloud:
did not equate the ‘usurpation of rights’ with a ‘deprivation of

interest’. [The Constitutional Court] did not use the latter phrase, but
more importantly it characterised the Lanco decision as one that
involved both the loss of the right to use the premises and the taking
over of that right, not as similar or alternative losses. Whatever the
merits of a pure ‘deprivation’ case may be, this Court’s decision in
Country Cloud cannot serve as authority that it is a case where
wrongfulness does not need to be established positively but can be
presumed.83 It also held that the Supreme Court of Appeal’s attempt
to make a twofold classification of delictual interference with
contractual relations cases, as consisting of one category where only
inducement is required and others where a breach of a duty or
infringement of a subjective right is involved, was ‘unfortunate and
wrong’.84
Do these attempts to categorise the different instances of intentional interference

with contractual relations contribute meaningfully towards simplifying the issues?
The Constitutional Court notably reaffirmed that the law of delict:
is not a law of separate and distinct torts; it is one where all forms of
delict must conform to the general requirements of Aquilian
liability.85
Would it not, therefore, be more useful to approach the interference with

contractual relations as simply another instance of pure economic loss? It would
then follow that the primary question is whether the defendant’s causation of
pure economic loss may be regarded as wrongful. In this regard, the following
reasoning is pertinent:86
[W]rongfulness in the context of delictual liability for pure economic

loss is ultimately dependent on an evaluation based on
considerations of legal and public policy. The enquiry is thus: do
these policy considerations require that harm-causing conduct should
be declared wrongful and consequently render the defendant liable
for the loss, or do they require that harm should remain where it fell,
ie with the plaintiff?
In this context the policy considerations outlined in Chapters 9 and 16 are

relevant.
17.4 Conclusion
The legal position relating to the delictual liability for interference with
contractual relations can be summarised as follows:
• Apart from a few exceptional situations, there is generally speaking

no delictual liability for the negligent interference with contractual
relations. Although the Supreme Court of Appeal has recognised its
willingness to impose delictual liability in this context, courts have
not yet done so.
• Courts have imposed delictual liability for the intentional
interference with contractual relations, where such interference
occurs wrongfully.
• The intentional interference with contractual relations typically
takes the form of inducing a breach of contract or holding over.
• Because the interference with contractual relations is an instance of
causing pure economic loss, wrongfulness ultimately falls to be
determined by reference to legal and public policy considerations as
well as constitutional norms.
• As far as intentional interference with contractual relations is
concerned, plaintiffs are required to prove both direction of will as
well as consciousness of wrongfulness in order to prove intent
(dolus).
1 See Minister of Safety and Security v Scott 2014 (6) SA 1 (SCA) para 25.
2 See, generally, Hutchison ‘Relational economic loss (or interference with contractual
relations): the last hurdle’ in Scott and Visser (Eds) Developing Delict: Essays in Honour of
Robert Feenstra (2001) at 133ff; first published as Acta Juridica 2000, Juta: Cape Town.
3 1956 (1) SA 577 (A) at 585B–D.
4 At 585–586.
5 At 585–586.
6 1989 (1) SA 390 (A) at 395.
7 See also Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378 (D) at
380–381 and section 17.3 below.
8 2014 (6) SA 1 SCA.
9 2014 (6) SA 1 SCA.
10 Para 31.
11 Para 31. See also Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 7 ed
(2015) at 326.
12 Para 31; Neethling and Potgieter (2015) at 326.
13 Paras 32–40.
14 Para 36.
15 Para 39.
16 Maraisburg Divisional Council v Wagenaar 1923 CPD 94; Refrigerated Transport (Edms)
Bpk v Mainline Carriers (Edms) Bok 1983 (3) SA 121 (A); Spolander v Ward 1940 CPD 24. See
also Van der Merwe Die beskerming van vorderingsregte uit kontrak teen aantasting deur
derdes (1959).
17 Lean v Van der Mescht 1972 (2) SA 100 (O).
18 Smit v Saipem 1974 (4) SA 918 (A).
19 Spolander v Ward 1940 CPD 24.
Intervening) [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA).
21 Du Plessis v Road Accident Fund 2003 (11) BCLR 1220 (SCA); 2004 (1) SA 359 (SCA).
22 Santam Bpk v Henery 1999 (3) SA 421 (SCA).
23 See Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1)
SA 1 (CC); Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC).
24 1968 (1) SA 209 (C) at 215G–H. See also Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn
Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 202.
25 See Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) paras 15–26;
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1
(CC) paras 27–32.
26 1981 (2) SA 173 (T).
27 At 202.
28 At 200–201.
(CC) para 30.
30 Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) para 20; Country
Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC)
para 21. See also Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC) para
53.
31 Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) para 21.
32 2015 (1) SA 1 (CC) para 27.
33 Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2016 (2) SA 586 (SCA) para 8.
(CC) para 31.
(CC) para 31.
36 2013 (1) SA 377 (GSJ).
37 Paras 20–22.
38 1989 (1) SA 390 (A).
39 At 395.
40 At 395.
41 At 396. See also Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A) at 441D.
42 At 396.
43 At 396.
44 At 396.
45 At 396–397.
46 1993 (4) SA 378 (D).
47 2015 (1) SA 1 (CC). See also Country Cloud Trading CC v MEC, Department of Infrastructure
Development 2014 (2) SA 214 (SCA).
(CC) paras 16 and 27.
49 Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA
214 (SCA) paras 26–27.
(CC) paras 29–31.
51 Paras 33–43 and 51–61.
52 Paras 51–55.
53 Paras 44–50 and 62–66.
54 2017 (1) SA 613 (CC). See also Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2016 (2)
SA 586 (SCA).
56 Para 20.
57 Paras 21–22.
(CC) para 22.
59 2017 (1) SA 613 (CC) para 18.
61 2017 (1) SA 613 (CC) para 24.
62 Para 25.
63 Paras 30–53.
64 Paras 33 and 36.
65 Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378 (D).
66 Paras 37–38.
67 Paras 42–43.
68 Para 42.
69 Para 44.
70 Para 46.
71 Para 43.
72 2014 (2) SA 214 (SCA) para 26 (references omitted).
73 Paras 29–32.
74 Paras 28–30.
75 2016 (2) SA 586 (SCA) para 8.
76 Instead of ‘intentional interference’ the Court referred to ‘knowingly deprives a person of
his rights under a contract’ – see further para 8.
77 Para 8.
78 Para 8.
79 Para 8.
80 Para 22.
81 Para 22.
82 Para 22.
83 Para 18.
84 Para 19.
85 Para 21.
86 Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA
214 (SCA) para 18. See also Le Roux v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae) 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC) para 122.
Chapter 18
Unlawful competition
18.3 Fault
18.5 Wrongfulness
18.6 Damages

Remedies for patrimonial loss as a result of unlawful competition or
unlawful trading are based on the actio legis Aquiliae. The accepted
position is that there is a modern general Aquilian action for unlawful
competition or unlawful trading in South African law.1
The Appellate Division recognised Aquilian liability for the causing
of harm by unlawful competition as early as 1922. In Matthews v Young 2
the Court stated:
In the absence of special legal restriction a person is without doubt entitled to the
free exercise of his trade, procession or calling … . But he cannot claim an absolute
right to do so without interference from another. Competition often brings about
interference in one way or another about which rivals cannot legitimately
complain. But the competition … must itself remain within lawful bounds. All a
person can, therefore, claim is the right to exercise his calling without unlawful
interference from others. Such an interference would constitute an injuria for
which an action under the lex Aquilia lies if it has directly resulted in loss.
In Geary & Son (Pty) Ltd v Gove 3 the essence of the delict was
characterised as ‘the wrongful interference by a competitor with its rights
as a trader’. In Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano
(Pty) Ltd 4 Van Dijkhorst J stated:
that the law of South Africa recognises and grants a general action in the case of
unlawful competition, based on the principles of the lex Aquilia.5
Courts have applied the general principles of Aquilian liability to many of

the forms of unlawful competition that are recognised in South African
law, for example, passing off, 6 misrepresentation of a rival’s own
performance,7 acquisition and use of a competitor’s trade secrets,8
copying and adopting a rival’s performance,9 competition in conflict with
statutory provisions,10 and boycott.11
An important implication of recognising Aquilian liability in the
context of unlawful competition is that courts may develop new forms of
protection against unlawful competition within the ambit of the
principles of the Aquilian action, even in the absence of a direct
precedent in case law. It is not necessary for an aggrieved competitor to
bring his action within the framework of one of the recognised forms of
unlawful competition or another particular form of delict.12 The Appellate
Division in Schultz v Butt 13 confirmed this approach, which means that
courts should reconcile the influence of English law, in particular with
regard to developing passing off 14 and protecting trade secrets and
confidential information,15 with Aquilian principles.16
Courts have endorsed the general application of Aquilian principles
to cases of unreasonable competitive or trading conduct, but the
tendency has been, nevertheless, to fit the cases into one of the
established categories of unlawful competition. In Payen Components SA
Ltd v Bovic CC 17 Schutz JA said:
Unlawful competition should not be added as a ragbag and often forlorn final
alternative to every trade mark, copyright, design or passing off action. In most
such cases it is one of the established categories or nothing.
Courts have developed the general principles of Aquilian liability into

detailed sub-rules within the established categories of unlawful
competition. The Supreme Court of Appeal in Caterham Car Sales &
Coachworks Ltd v Birkin Cars (Pty) Ltd 18 set out the sub-rules concerning
passing off in detail. The essence of passing off is the misrepresentation
that a particular business or product is the same as, or connected to a
business or product with an established reputation, belonging to the
complainant. This misrepresentation concerning the trade source, or
connection of a product or service has the potential to cause customers
to move from the complainant’s established product or service to the
offender’s rival product or service.

The following forms of unlawful competition occur often:
• Perhaps the most common form of unlawful competition is passing
off. This is when persons represent to others that their business or
product is the same as, or connected to that of another.19
• Unlawful competition can involve misappropriation of confidential
information or trade secrets. This is using or disclosing information
that has commercial value, which was imparted or received in
confidence, often in a fiduciary or employment relationships.20
Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd21
Corbett J held a company liable in damages for knowingly expanding its business with credit information
compiled by its competitor who had collected it using skill and labour. The competitor distributed this
information on a confidential basis to clients. Corbett J quoted with approval from the judgment of the
United States Supreme Court in International News Service v Associated Press,22 where copying and
commercially using news material was held to constitute unfair competition and where it was held that:
… defendant’s conduct differs from the ordinary case of unfair competition in trade principally
in this that, instead of selling its own goods as those of complainant, it substitutes
misappropriation in the place of misrepresentation, and sells complainant’s goods as its own.
The offending conduct in the Dun and Bradstreet case was misappropriation of the credit information, by
unlawfully ‘obtaining’ and ‘using’ it.
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd23

Van Dijkhorst J, with reference to a number of earlier cases, accepted that it is wrongful to appropriate
knowingly confidential information of a rival who has by the exercise of his skill and labour compiled it.
He also accepted that the law will not permit a person who has obtained knowledge of a production
method evolved by the intellectual effort of another to by-pass this intellectual effort as his own and to
use the method as a springboard to obtain an unfair advantage for himself.
• Another form of unlawful competition, sometimes categorised under

the rubric ‘leaning on’ (aanleuning),24 involves misappropriating an
established competitor’s name or label,25 or advertising image.26
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd; Oude Meester Group Ltd v Stellenbosch Wine
Trust Ltd
27 Diemont J accepted that misappropriating a secret or confidential label design that had been
developed by the skill and industry of a competitor, and using that label to the detriment of the
competitor constituted unlawful interference with the trade of another. In this regard he said the
following:28
His conduct amounts to deliberate misappropriation of a business asset which was acquired by
another’s skill and industry. It is difficult to appreciate how this conduct differs in principle from
the conduct of a man who steals goods from the shelves of a rival’s shop.
The Court here recognised that appropriating the label design was unlawful misappropriation or unlawful
interference with the trade of another, ‘within the principles of the lex Aquilia’. In other cases too, courts
have held competitive or trading conduct to be unlawful if it essentially amounts to ‘stealing from the
shelves of another’, that is, misappropriation in the form of copying or otherwise exploiting the product of
another’s creative abilities.
Union Wine Ltd v Edward Snell & Co Ltd29

The Court accepted in respect of the wine Bellingham Johannisberger that the Johannisberger component
of the name had become distinctive of the wine over a period of more than 30 years and that this
component of the name attracted goodwill.30 The Court further accepted that the producers of this wine
would suffer loss of custom as a result of the marketing by a competitor of a wine called Edward Snell
Johannisberger.31 Yet, because passing off could not be proved (the bottles and labels were substantially
different), protection against the appropriation of the Johannisberger component of the name was not
afforded.
• Wrongful trading conduct can occur outside the sphere of

competition, for example, in cases of misappropriating, for
advertising purposes, the personal image of a celebrity,32 or
misappropriation for a different use of another’s trade name.33
Capital Estate and General Agencies (Pty) Ltd v Holiday Inns Inc34
A well-known hotel group sought to restrain a property developer from using its trade name for a
shopping centre and a complex of duplex flats. The parties were engaged in dissimilar trading activities,
but the Court held that the use of the Holiday Inn name constituted passing off, because there was the
likelihood that members of the public would be deceived or confused by the misrepresentation that the
activities of the parties were associated. As there was no common field of activity, and therefore no
potential diversion of custom between the parties, this was not passing off in its established form. The
offending conduct involved misappropriating the Holiday Inn trade name, which involved harm or
potential harm in the form of diluting the commercial value and impact of its trade name and potential
harm to its reputation.
• Wrongful misappropriation in the course of trade can also involve

using the advertising value of a fictional character created by
another.35
Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd36
The Court refused the application of the producers of the Dallas television series to restrain the
respondents from using characters, names and logos from the series to market a restaurant, items of
clothing and other products. The Court held that the respondents’ appropriation of such characters,
names and logos from the series did not constitute passing off, because the parties were not in
competition in respect of the restaurant business or clothing sales. Therefore, the applicant suffered no
loss as a result of a diversion of custom. The alternative basis for the applicant’s case was unlawful
competition, in that the respondents had foreclosed on the applicant’s opportunities to merchandise the
characters, names and logos themselves. The Court held that the important factors in assessing
unlawfulness were that the parties were not in competition with one another,37 and that the applicant
could have obtained protection in terms of trademark legislation, but failed to do so.38 The conduct of
the respondents was not considered to be wrongful misappropriation.
This case essentially involved the respondents’ unauthorised appropriation of the merchandising
value of characters created by the applicant. If the applicant had proved that it had incurred loss as a
result of such appropriation, in the form of foreclosed merchandising opportunities or harm to reputation
through the public associating products of inferior quality with the applicant, the requirements of
Aquilian liability were present. The commercial phenomenon of ‘character merchandising’ was not
proved in this case, but later accepted in Federation Internationale de Football v Bartlett.39 Character
merchandising involves the causing of economic loss where a trader has appropriated, for its own
commercial use, the fictional characters created by another for its own commercial benefit.
• In cases of ‘misappropriation of performance’ (prestasie-

aanklamping)40 the competitor copies, or makes use of a product or
process developed by another.
Schultz v Butt41
The applicant, Butt, the designer of a twin-hulled fibre-glass boat named Butt-Cat, sought to interdict a
competitor, Schultz, from manufacturing and marketing a boat with an identical hull design. Years of
experience, expertise and effort, and substantial costs had gone into the Butt-Cat hull design and the
venture was a financial success. Schultz got hold of a Butt-Cat hull and used it to construct a mould and
then used the mould to manufacture replica hulls for a boat named Supercat, which was sold in
competition with the Butt-Cat. Schultz went further and registered the hull as a model with the Registrar
of Designs. Butt applied for an interdict against Schultz and an order for cancellation of the registration of
the design, on the basis, inter alia, of unlawful competition. The issue was essentially whether the
infringement by Schultz of Butt’s unregistered rights in respect of the design was unlawful.
The Court held that competitive conduct may fall within ‘a category of clearly recognised illegality’,42
as in the case of trading in contravention of an express statutory prohibition, fraudulent
misrepresentation that concerns one’s own product, passing off one’s product as that of a competitor,
and injurious falsehoods that concern a competitor’s product. However, unlawfulness in competition is
not limited to these categories, and one can also determine unlawfulness by criteria such as fairness
and honesty in competition.43 In this case, the question was whether it can be unlawful to copy a design
that is in the public domain and not protected by copyright, patent or design legislation. In applying the
criteria of fairness and honesty, the Court considered, on the one hand, that the design was in the public
domain and that imitation is the life blood of competition, and on the other hand, that it may be
intolerable to allow one manufacturer to appropriate the product of another’s invention and development
without license or compensation. In this case, Schultz used one of Butt’s hulls, with a shape that was
developed over a long period, with considerable expenditure of time, labour and money. Schultz used
the hull to make a mould with which to make boats in competition with Butt. Furthermore, he ‘added
impudence to dishonesty’ by obtaining a design registration in his own name for the hull designed by
Butt.44 The Court considered this conduct unlawful competition.
The offending conduct in the Schultz case was essentially misappropriating the hull design, by
‘obtaining’, ‘copying’ and ‘using’ it unlawfully.
• Unlawful competition can also involve disparaging the good name of

a business or entrepreneur,45 organising a boycott (instigating others
to exclude someone from a certain commercial activity),46
comparative advertising,47 refusing to do business48 and parallel
importing. In respect of parallel importing, courts have decided that
a trader who has an exclusive contractual right to distribute goods in
South Africa cannot succeed with an Aquilian action against a rival
trader who engages in parallel importation of the same goods, with
the same name, mark and get-up.49 However, where the importer or
distributor adds his or her own get-up or distinctive mark to the
product, thereby establishing his or her own reputation for the
product, a parallel importer who imitates the get-up or mark may be
liable on the basis of passing off.50 In Taylor & Horne (Pty) Ltd v
Dentall (Pty) Ltd 51 the Court refused to afford a monopoly to an
exclusive agent on the basis of his exclusive contractual rights.
• In specific circumstances wrongfully interfering with or depriving a
competitor of the benefits of a contractual right may also be unlawful
competition.
Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd52
In this case Masstores and the owner of a mall, Hyprop, were parties to a lease agreement which
stipulated that Masstores was not allowed to trade in the mall as a general food supermarket. The mall
owner also entered into a separate lease agreement with Pick ’n Pay, which secured for Pick ’n Pay a
right of exclusivity as a general food supermarket, stipulating that Hyprop would not permit any other
supermarket to operate in the mall. When Masstores launched its Foodco concept at its store, Pick ’n Pay
applied for an interdict against Masstores, alleging that it was operating a general food supermarket and
asking the court to restrain it from interfering with the lease agreement between Pick ’n Pay and Hyprop.
The Supreme Court of Appeal stated the requirements for delictual liability in this context as follows:
an unlawful act which constitutes an interference in the contractual relationship and which is
committed with some form of dolus.53
The Court concluded that, by trading in competition with Pick ’n Pay, contrary to its own contractual
restraint, after it was made aware of Pick ’n Pay’s right to exclusivity, Masstores had wrongfully and
intentionally deprived Pick ’n Pay of its benefit of exclusivity under its lease with Hyprop.54 The Supreme
Court of Appeal held this category of delictual liability for intentional interference with contractual
relationships was recognised by the Constitutional Court in Country Cloud Trading CC v MEC, Department
of Infrastructure Development55 and therefore Masstores did not have to prove wrongfulness.56
On appeal, the Constitutional Court held that the Supreme Court of Appeal’s interpretation of the
Country Cloud judgment was incorrect:
[t]his Court’s judgment in Country Cloud is no authority for the proposition that the deprivation
of contractual rights in delictual claims for interference with contractual relations is prima facie
unlawful.57
It also concluded that this case, like Country Cloud, was unlike the holding-over cases, which involved a
defendant not only depriving the plaintiff of its contractual right but also usurping that right, whereas in
the present case the defendant could simply be said to deprive the plaintiff of its right.58 As a result,
Masstores was required to prove wrongfulness.59
On the facts, the Court held that there was no wrongfulness for purposes of delict. In this regard the
Court emphasised the need for free competition as a policy consideration and held that, generally, there
is no legal duty on third parties not to infringe contractually based exclusive rights to trade.60
Furthermore, the Court distinguished this case from Lanco Engineering CC v Aris Box Manufacturers (Pty)
Ltd,61 because in Lanco the protected contractual right was a property right which operated against the
whole world, whereas in this case the right sought to be protected was purely contractual.62 The Court
followed its reasoning in Country Cloud and took into account that Pick ’n Pay had alternative
contractual remedies against the mall owner, Hyprop.63 It approved the statement in Country Cloud that:
the law should hesitate before scrubbing out the lines [contracting parties] have laid down by
superimposing delictual liability [because this] could subvert their autonomous dealings.64
The fact that Pick ’n Pay could have taken alternative steps to protect itself from avoiding loss was a
further important consideration against a finding of wrongfulness.65 The Court emphasised that, merely
because Masstores’s breach of its own lease with Hyprop may have been wrongful, this does not
automatically entail wrongfulness in delict against Pick ’n Pay.66 Finally, the fact that Pick ’n Pay had an
alternative remedy also meant that one of the requirements for an interdict had not been proven.67 (See
also Chapter 17 ‘Interference with contractual relations’.)
18.3 Fault
Unlawful competition, generally, involves intentional conduct.68
Competitors will often walk a very fine line to gain an advantage in the
market. In a case of passing off, for example, it is often difficult to
distinguish between an intention to compete and an intention to
deceive.69 Boberg, in an article on the role of fault in unlawful
competition, wrote that all the cases in which courts held unfair
competition also to be unlawful competition, involved deliberate
dishonesty, and that the delict of ‘unfair competition’ was ‘born and
nourished in a climate of calculated depravity’.70 This may be so, but as a
matter of general principle, intention is not required. The delict of
unlawful competition may involve negligently infringing goodwill.71 In
this respect also, the action for unlawful competition is no different from
the general Aquilian action for patrimonial loss.

The interest protected by the delictual action for unlawful competition is
essentially the right to goodwill, that is, the right to attract custom, or the
totality of attributes that entice clients or potential clients to support a
particular business.72 Infringing the right to goodwill may affect only one
component of goodwill, for example, the reputation of a business, the
name of a product, the get-up of a product, a trademark, or a trade secret.
In the case of passing off, for instance, the substratum or component of
goodwill that is primarily affected is reputation.73
Although one can often identify the component of goodwill that is
primarily affected by a particular form of unlawful competition or trade,
such as reputation,74 or the advertising value of trademarks or trade
names,75 for the purposes of liability, the proof of actual or potential harm
to trade or the inability to attract custom is the essential requirement.
18.5 Wrongfulness
Wrongfulness in the context of unlawful competition, as elsewhere,
involves the question of whether the causing of harm offends against the
legal criterion of reasonableness or boni mores, a criterion that involves
assessing relevant considerations of public policy. These considerations
include fairness and honesty,76 the interests of the competing parties, the
interests of society, the morals of the market place, and the business
ethics of that section of the community where the norm is to be applied.77
Public policy as a general criterion for determining wrongfulness in
competition and trading constitutes:
a legal standard firm enough to afford guidance to the Court, yet flexible enough to
permit the influence of an inherent sense of fair play.78
Courts may often determine wrongfulness without necessarily referring

to the criterion of reasonableness or boni mores, the legal convictions of
the community, or concomitant policy considerations. It is settled law,
for example, that a representation by one person that his or her business
or merchandise is that of another, which creates a reasonable likelihood
of confusion among customers or clients, constitutes unlawful
competition in the form of passing off.79 Applying the general criterion for
wrongfulness becomes necessary where the conduct complained of
caused harm to the goodwill of another, but it does not fall within one of
the established categories of unlawful competition. In such cases, courts
must take account of policy considerations in developing the law.
Unlawful competition will hardly ever turn on a breach of duty
between competitors. Instead, it generally involves infringing the
subjective right to goodwill, the right to attract custom (werfkrag), or
infringing a specific component of goodwill, such as copyright, a patent, a
trademark, a design, business or product name and reputation, a trade
secret, or a personal immaterial property right in the form of the right to
earning capacity or personal goodwill.80
Therefore, the interests protected by the Aquilian action for unlawful
competition or trading generally constitute goodwill or a component of
goodwill, such as a name or label,81 advertising image,82 advertising value
of a fictional character,83 or the personal image of a celebrity.84
Although, strictly speaking, there is no unlawful competition where
the parties involved are not in competition with each other,85 courts also
use the term ‘unlawful competition’ to refer to wrongful trading outside
the sphere of competition, for example, in cases of misappropriating
another’s advertising image or name,86 or disparaging the good name of a
business or entrepreneur.87
It is relevant whether the person who caused the harm knew that his
or her conduct would cause the harm or had the motive to cause harm.
However, the existence of knowledge, foresight or motive is not
conclusive in determining wrongfulness, and so one has to take it into
account together with other factors.88 The existence of fraud or
dishonesty is an important factor in indicating wrongfulness.89
Other factors to be considered include the freedom to imitate ideas
or designs in the public domain,90 the freedom to exploit an established
market for a particular type of product established by a competitor,91 the
manner of copying,92 the distinctiveness of the name or product copied,93
the extent of the imitation and of the alleged offender’s own contribution
to the product,94 and the possibility of obtaining statutory protection for
the product.95
18.6 Damages
Courts award damages for harm caused by unlawful competition
according to the normal principles that apply to patrimonial harm. Harm
often involves a loss of custom to competitors.96 In most cases it is
possible to show that some harm has been suffered,97 but the extent of
the harm is often difficult to prove precisely.98 Consequently, courts tend
not to require mathematically precise proof of harm, and make an
assessment of the loss ex bono et aequo on the probabilities indicated by
the evidence.99 Often the most effective remedy is an interdict ordering
the wrongdoer to cease the unlawful competition or trading.
1 See, generally, Loubser ‘Principles and policy in unlawful competition: An Aquilian mask?’
in Scott and Visser (Eds) Developing Delict: Essays in Honour of Robert Feenstra (2000) at
168ff.
2 1922 AD 492 at 507.
3 1964 (1) SA 434 (A) at 440–441.
4 1981 (2) SA 173 (T) at 186.
5 Schultz v Butt 1986 (3) SA 667 (A) at 678; Dun and Bradstreet (Pty) Ltd v SA Merchants
Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) at 218.
6 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 201–
202; Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd, Lorimar
Productions Inc v OK Hyperama Ltd, Lorimar Productions Inc v Dallas Restaurant 1981 (3)
SA 1129 (T) at 1138 and 1152ff; Tie Rack plc v Tie Rack Stores (Pty) Ltd 1989 (4) SA 427 (T) at
445.
7 Geary and Son (Pty) Ltd v Gove 1964 (1) SA 434 (A) at 440–441; Elida Gibbs (Pty) Ltd v
Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) at 357; William Grant & Sons Ltd v Cape
Wine & Distillers Ltd 1990 (3) SA 897 (C) at 915.
8 Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd
1968 (1) SA 209 (C); Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2)
SA 173 (T) at 189–196; Meter Systems Holdings Ltd v Venter 1993 (1) SA 409 (W) at 426–427.
9 Schultz v Butt 1986 (3) SA 667 (A) at 678 and 682; Bress Designs (Pty) Ltd v GY Lounge Suite
Manufacturers (Pty) Ltd 1991 (2) SA 455 (W) at 471–475; The Concept Factory v Heyl 1994
(2) SA 105 (T) at 115–117.
10 See Silver Crystal Trading (Pty) Ltd v Namibia Diamond Corporation (Pty) Ltd 1983 (4) SA
884 (D) at 887.
11 Hawker v Life Offices Association of South Africa 1987 (3) SA 777 (C) at 780–781.
1968 (1) SA 209 (C) at 218; Sea Harvest Corporation (Pty) Ltd v Irvin & Johnson Ltd 1985 (2)
SA 355 (C) at 359–360.
13 1986 (3) SA 667 (A) at 678.
14 Boswell-Wilkie Circus (Pty) Ltd v Brian Boswell Circus (Pty) Ltd 1984 (1) SA 734 (N) at 742
(on passing off):
South African case law on the question is thin … . Plenty can be found, on the
other hand, in England. The persuasive authority of English decisions on passing
off has long been accepted in this country.
15 Meter Systems Holdings Ltd v Venter 1993 (1) SA 409 (W) at 427–428.
16 Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1990 (2) SA 718 (T) at 734–735;
Hoechst Pharmaceuticals (Pty) Ltd v The Beauty Box (Pty) Ltd (In Liquidation) 1987 (2) SA
600 (A) at 613.
17 1995 (4) SA 441 (A) at 453G.
18 1998 (3) SA 938 (SCA).
19 Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) at 947I–
J.
20 Coolair Ventilator Co (SA) (Pty) Ltd v Liebenberg 1967 (1) SA 686 (W); Atlas Organic
Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T).
21 1968 (1) SA 209 (C).
22 248 US 215 (1918) at 242.
23 1981 (2) SA 173 (T) at 188.
24 See Mostert ‘Aanleuning: Skending van ’n handelsmerk en die reg op werfkrag buite
mededingingsverband’ (1986) 49(1) THRHR at 173.
25 Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd; Oude Meester Group Ltd v
Stellenbosch Wine Trust Ltd 1972 (3) SA 152 (C).
26 Mostert ‘The right to the advertising image’ (1982) 99(3) SALJ at 413; Rutherford
‘Misappropriation of the advertising value of trade marks, trade names and service marks’
in Neethling (Ed) Onregmatige Mededinging/Unlawful Competition (1990) at 55.
27 1972 (3) SA 152 (C).
28 At 162B.
29 1990 (2) SA 180 (D); 1990 (2) SA 189 (C).
30 Union Wine Ltd v E Snell and Co Ltd 1990 (2) SA 189 (C) at 198C.
31 Supra at 198E.
32 See Neethling ‘Persoonlike immaterieelgoedereregte: ’n nuwe kategorie subjektiewe regte?’
(1987) 50(2) THRHR at 316.
33 Capital Estate and General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A).
34 1977 (2) SA 916 (A).
35 Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd, Lorimar Productions
Inc v OK Hyperama Ltd, Lorimar Productions Inc v Dallas Restaurant 1981 (3) SA 1129 (T).
36 1981 (3) SA 1129 (T).
37 At 1154H.
38 At 1156H.
39 1994 (4) SA 722 (T).
40 See Neethling ‘Misappropriation or copying of a rival’s performance as a form on unlawful
competition (Prestasieaanklamping)’ (1993) 110(4) SALJ at 711.
41 1986 (3) SA 667 (A).
42 At 678.
43 At 678.
44 At 683.
45 Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) at 560–561; Woodlands Dairy (Pty)
Ltd v Parmalat SA (Pty) Ltd 2002 (2) SA 268 (E).
46 Murdoch v Bullough 1923 TPD 495; Times Media Ltd v South African Broadcasting
Corporation 1990 (4) SA 604 (W); Deneys Reitz v South African Commercial, Catering and
Allied Workers Union 1991 (2) SA 685 (W).
47 Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd 1970 (1) SA 454 (W), where
the alleged misrepresentation as to the comparative exposure value to advertisers of two
publications was held to be mere puffery.
48 Times Media Ltd v South African Broadcasting Corporation 1990 (4) SA 604 (W) at 607.
49 Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd 1975 (4) SA 626 (W); Taylor & Horne
(Pty) Ltd v Dentall (Pty) Ltd 1991 (1) SA 412 (A).
50 Frank & Hirsch (Pty) Ltd v Roopanand Brothers 1987 (3) SA 165 (D) at 189; Salusa (Pty) Ltd v
Eagle International Traders 1979 (4) SA 697 (C) at 704–705.
51 1991 (1) SA 412 (A) at 422.
52 2017 (1) SA 613 (CC). See also Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2016 (2)
SA 586 (SCA).
54 Paras 20–22.
55 2015 (1) SA 1 (CC) para 22.
56 2017 (1) SA 613 (CC) para 18.
57 2017 (1) SA 613 (CC) para 24.
58 Para 25.
59 Paras 30–53.
60 Paras 33 and 36.
61 1993 (4) SA 378 (D).
62 Paras 37–38.
63 Paras 42–43.
64 Para 42.
65 Para 44.
66 Para 46.
67 Para 43.
68 See, generally, Visser ‘Die rol van opset, en die boni mores by onregmatige mededinging’
(1989) 52 THRHR at 115.
69 Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A).
70 Boberg ‘The role of fault in determining the lawfulness of competition’ (1991) 54(1) THRHR
at 43, 55.
71 Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) at 354G–H and
357F–G; Link Estates (Pty) Ltd v Rink Estates (Pty) Ltd 1979 (2) SA 276 (E) at 281.
72 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 182; A
Becker and Co (Pty) Ltd v Becker 1981 (3) SA 406 (A) at 417A; Caterham Car Sales &
Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) at 947G–H.
J.
J.
75 See Rutherford (1990) at 55.
76 Corbett ‘Aspects of the role of policy in the evolution of our common law’ (1987) 104(1) SALJ
52 at 62.
79 Capital Estate and General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A) at 929C;
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) at 947E–
F.
81 Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd; Oude Meester Group Ltd v
Stellenbosch Wine Trust Ltd 1972 (3) SA 152 (C).
82 Mostert (1982) at 413; Rutherford (1990) at 55.
Inc v OK Hyperama Ltd, Lorimar Productions Inc v Dallas Restaurant 1981 (3) SA 1129 (T).
84 See Neethling (1987) at 316.
85 Tie Rack plc v Tie Rack Stores (Pty) Ltd 1989 (4) SA 427 (T) at 445–446.
86 Capital Estate and General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A).
87 Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) at 560–561.
88 Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 (2) SA 455 (W) at
474J–476A.
89 Schultz v Butt 1986 (3) SA 667 (A) at 683H–I.
90 Premier Hangers CC v Polyoak (Pty) Ltd 1997 (1) SA 416 (A) at 423H–424C; Schultz v Butt
1986 (3) SA 667 (A) at 681A–E; Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers
(Pty) Ltd 1991 (2) SA 455 (W) at 474E–G.
91 Taylor & Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 (1) SA 412 (A) at 421I–422A.
92 Schultz v Butt 1986 (3) SA 667 (A) at 683H–I; Bress Designs (Pty) Ltd v GY Lounge Suite
Manufacturers (Pty) Ltd 1991 (2) SA 455 (W) at 474E.
93 Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son (SA) (Pty) Ltd 1995 (1) SA 725 (T) at
733B–G.
94 Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 (2) SA 455 (W) at
472I–473A.
Inc v OK Hyperama Ltd, Lorimar Productions Inc v Dallas Restaurant 1981 (3) SA 1129 (T) at
1156H; Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son (SA) (Pty) Ltd 1995 (1) SA 725 (T)
at 732F–G; Premier Hangers CC v Polyoak (Pty) Ltd 1997 (1) SA 416 (A) at 424I–426A.
1968 (1) SA 209 (C) at 221; Harchris Heat Treatment (Pty) Ltd v Iscor 1983 (1) SA 548 (T).
97 Van Heerden v Paetzold 1917 CPD 221 at 224 (concerning damages for the effect of
malicious statements); Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981
(2) SA 173 (T) at 204–206 (concerning the assessment of loss of profit); Link Estates (Pty) Ltd
v Rink Estates (Pty) Ltd 1979 (2) SA 276 (E) at 286–287.
Inc v OK Hyperama Ltd, Lorimar Productions Inc v Dallas Restaurant 1981 (3) SA 1129 (T) at
1138; Hushon SA (Pty) Ltd v Pictech (Pty) Ltd 1997 (4) SA 399 (SCA).
99 International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (1) 1955 (2) SA 1 (W) at
17; Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) at 573; Hushon SA (Pty) Ltd v
Pictech (Pty) Ltd 1997 (4) SA 399 (SCA) at 412–413.
Chapter 19
Product liability
19.1 Introduction
19.3 Conclusion
19.1 Introduction
In South Africa, product liability in delict, within the common-law
framework of Aquilian liability, is fault-based. However, legislation
introducing strict liability came into effect in 2011,1 which brought South
African law into line with the position in many other jurisdictions. This
chapter deals with Aquilian liability under common law for harm caused
by defective products. Chapter 39 deals with strict liability for harm
caused by defective products introduced by section 61 of the Consumer
Protection Act 68 of 2008.
In the area of product liability, the law of delict supplements the limited
scope of protection afforded by the law of contract. For example, in a
contract of sale, a dealer in goods is liable to a purchaser for latent defects
where he or she publicly professes to have attributes of skill and expert
knowledge in respect of the goods sold. The Appellate Division accepted
this in Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk v Botha
2
and in Langeberg Voedsel Bpk v Sarculum Boerdery Bpk.3 Schutz JA
commented as follows on the Kroonstad decision:
It remains to add that it is not only in this small, if important, branch of the law of
purchase and sale, but in the much wider field of product liability generally that our
law may be perceived to have lagged behind.
In Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 4 the Appellate Division
commented on the scope of delictual liability for defective products:
If a manufacturer produces and markets a product without conclusive prior tests,
when the utilisation thereof in the recommended manner is potentially hazardous
to the consumer, such negligence on the part of the manufacturer may expose him
to delictual liability to the consumer. Where the consumer does not acquire the
product directly from the manufacturer, and the manufacturer is thus a third party,
such liability amounts to what is sometimes termed ‘product liability’. A
contractual nexus between the manufacturer and the consumer is not required.
Although the historical origin of the manufacturer’s liability is an agreement
between the manufacturer and the distributor, the liability, which arises from the
manufacture and distribution of the product, extends via the other contracting
party to any third party who utilises the product in the prescribed manner and
suffers damage as a result thereof. It follows as a matter of course that a
manufacturer who distributes a product commercially, which, in the course of its
intended use, and as the result of a defect, causes damage to the consumer thereof,
acts wrongly and thus unlawfully according to the legal convictions of the
community.
A delictual claim for harm caused by a defective product requires proof of

both wrongfulness and negligence. In the first instance, the plaintiff must
show that the defendant has wrongfully caused harm by producing or
distributing a defective product, in breach of its duty to the consumer.
Defectiveness of the product forms part of the wrongfulness enquiry.
Wrongfulness essentially involves a breach of the legal duty of a
manufacturer not to expose persons acquiring and using the products to
harm. Van den Heever JA in Herschel v Mrupe,5 with reference to the
decision of the House of Lords in M’Alister (or Donoghue) v Stevenson,6
analysed the duty as follows:7
By putting into circulation potentially harmful things … the manufacturer is not
merely exercising a legal right but encroaching upon the rights of others not to be
exposed, when going about their lawful occasions and when accepting the implied
general invitation to acquire and use such commodities, to danger without warning
and without their having a reasonable opportunity to become aware of such danger
before use. In other words, it is an encroachment upon the rights of others to set
hidden snares for them in the exercise of their own rights. To refrain from doing so
is a duty owing to the world at large …
The presence of a defect is a necessary element of wrongfulness.

Assessing the defectiveness forms part of the enquiry into wrongfulness,
involving consideration of the legal convictions of the community, boni
mores or general reasonableness. The position in this regard has been
summarised as follows: 8
… a manufacturer has a general duty to take reasonable steps to ensure that
defective products do not reach the market or, if they do, to withdraw them from
the market, or to take other steps to ensure that no harm ensues from the presence
of the product on the market. The criterion of reasonableness coupled with the
community’s concept of what behaviour is reasonable in given circumstances is
flexible enough to take into account such factors as the type of product, the nature
of the manufacturer’s business enterprise, the customs and practices prevailing in a
particular trade or industry, the amount of knowledge and expertise of potential
purchasers and users of the product, abnormal use, and the specific stage in the
production process during which a defect originated. The last-mentioned factor
may influence the duties of a manufacturer in different ways. At the stage of
planning or design the manufacturer must take into account the most recent
knowledge available in his field.
To date, the South African law of delict has not developed detailed rules
for different forms of product defects (manufacturing, design or warning
defects) and courts, therefore, apply general principles. This general
approach can be interpreted to mean that a product will be considered
defective if it is unreasonably dangerous: 9
The test is flexible enough to take into account such factors as the type of product,
the nature of the manufacturer’s business enterprise, the customs and practices
prevailing in a particular trade or industry, the amount of knowledge and expertise
of potential purchasers and users of the product, abnormal use, and the specific
stage in the production process during which a defect originated. The last
mentioned factor may influence the duties of a manufacturer in different ways. At
the stage of planning or design the manufacturer must take into account the most
recent knowledge available in his field.
As well as proving wrongfulness, the plaintiff must prove negligence on

the part of the manufacturer or distributor. One determines negligence
by assessing the producer’s actions against the standard of care a
reasonable person (diligens paterfamilias) would adhere to.10 The
enquiry is whether a reasonable person would have foreseen the harm
and would have taken steps to prevent it, and whether the defendant
failed to take such steps.
It is not only manufacturers that may be at fault. The seller of a
product may also be at fault, in which event the negligence issue involves
the question of whether, in the circumstances, the seller had a duty to
inspect the product before the sale.11 The problem of proving negligence
is an obstacle for a plaintiff who brings an Aquilian action for harm
caused by a defective product, despite the potential application of the res
ipsa loquitur doctrine, which in certain cases allows the inference that
the product did not meet the appropriate standard or that the
manufacturer was negligent.12
Another obstacle for the plaintiff in a product liability case is the
onus to prove the causal link between the defect and the harm suffered.
This may present an even more complex task than proving that a defect
exists, because the plaintiff has to collect technical data about the
product and the accident together with evidence of the conduct of the
individuals concerned as well as environmental factors.
Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd13
The plaintiffs alleged that the manufacturer of a local anaesthetic was strictly liable for breach of its duty
to ensure that the product was safe. The manufacturer raised an exception to this part of the particulars
of the claim on the basis that it disclosed no cause of action, for want of the allegation that there was
dolus or culpa in the manufacture, sale or distribution of the product. The plaintiffs, referring to the
development of forms of strict product liability in Europe and America, argued that the law in South Africa
had reached the stage where such liability should be imposed.
They argued that there was a constitutional need to develop the common
law in this regard, to give proper effect to the constitutional right to bodily
integrity. The Court said the following on the distinct elements of
wrongfulness and negligence:14
In deciding the issues raised by the appeal it must be accepted, as regards the facts,
that the Regibloc in question was manufactured by the respondent, that it was
defective when it left the respondent’s control, that it was administered in
accordance with the respondent’s accompanying instructions, that it was its
defective condition which caused the alleged harm and that such harm was
reasonably foreseeable. It must also be accepted, as far as the law is concerned,
indeed it was not disputed, firstly, that the respondent, as manufacturer, although
under no contractual obligation to the appellant, was under a legal duty in delictual
law to avoid reasonably foreseeable harm resulting from defectively manufactured
Regibloc being administered to the first appellant and, secondly, that that duty was
breached. In the situation pleaded there would therefore clearly have been
unlawful conduct on the part of the respondent: Ciba-Geigy (Pty) Ltd v Lushof
Farms (Pty) Ltd.15 The essential enquiry is whether liability attaches even if the
breach occurred without fault on the respondent’s part.
The Court acknowledged that it had a role to develop the common law,
but declined to do so in this case, on the basis that courts should develop
the common law with circumspection and that the duty of making law is
primarily that of the legislature. The Court accepted that the
manufacturer had wrongfully caused harm by selling products that did
not conform to its own specifications (a manufacturing defect). However,
the Court would not impose liability without proof of fault on the
manufacturer. The case illustrates the difficulty of proving fault in respect
of a defect in a certain batch of a pharmaceutical product. It also raises
the policy question of whether the risk of such a defect should be borne
by the manufacturer.
Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd16
The Court held that the plaintiff, Chickenland, had an alternative claim in delict for economic loss caused by
delivery to it of spices containing a banned colourant. The delictual claim was based on the defendant’s
awareness that breach of contract in delivering spices containing the banned colourant would or could
reasonably cause loss to the plaintiff, including the costs associated with the recall and replacement of the
affected products. The Court accepted that, in principle, the same facts may give rise to a claim for damages
in contract and alternatively in delict, and also that the breach of a contractual duty is not per se wrongful for
the purposes of Aquilian liability.17 The negligent causing of pure economic loss is not prima facie wrongful,
but in this case policy considerations such as knowledge of the potential harm, the fact that the loss was
single and determinate, and the manufacturer’s general duty to take reasonable steps to ensure that
defective products do not reach the market indicated wrongfulness for the purposes of delictual liability.
19.3 Conclusion
The problems of proving defectiveness and negligence were the main
catalysts for reforming the law on product liability in South Africa.
Chapter 39 deals with changes to the law brought by the introduction of
strict liability for harm caused by defective products, in terms of section
61 of the Consumer Protection Act 68 of 2008.
Because the statutory remedy introduced by the Consumer
Protection Act eliminates the need to prove negligence on the part of a
manufacturer, importer, distributor and retailer of defective products
(‘goods’) which cause harm, it is likely that claims for damages involving
defective products will in future in most cases be brought in the form of
the statutory remedy. However, the common-law liability for defective
products continues to exist as an alternative basis for recovery of
damages for harm caused by defective products. In unusual
circumstances not covered by the provisions of section 61 of the
Consumer Protection Act, claims will still be brought by way of an
Aquilian action.
1 The Consumer Protection Act 68 of 2008.

2 1964 (3) SA 561 (A).
3 1996 (2) SA 565 (A) at 572F–H.
4 2002 (2) SA 447 (SCA); [2002] 2 All SA 525 (A) (29 November 2001) paras 64 and 66.
5 1954 (3) SA 464 (A) para 487; see Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun
Motor Vehicle Distributors (Pty) Ltd 1972 (4) SA 185 (T).
6 [1932] AC 562, 1932 SC (HL) at 31.
7 1954 (3) SA 464 (AD) at 486F–487A.
8 Van der Merwe and De Jager ‘Products liability: a recent unreported case’ (1980) 97(1) SALJ
83 at 88–89. Reprinted by kind permission of Juta and Company Ltd.
9 Van der Merwe and De Jager (1980) 97 SALJ 83 at 88–89.
10 A Gibb & Son (Pty) Ltd v Taylor & Mitchell Timber Supply Co (Pty) Ltd 1975 (2) SA 457 (W).
11 A Gibb & Son (Pty) Ltd v Taylor & Mitchell Timber Supply Co (Pty) Ltd 1975 (2) SA 457 (W).
12 Bayer South Africa (Pty) Ltd v Viljoen 1990 (2) SA 647 (A) at 662.
13 2003 (4) SA 285 (SCA).
14 2003 (4) SA 285 (SCA) para 7.
15 2002 (2) SA 447 (SCA).
16 2011 (4) SA 276 (SCA).
17 Para 33.
Chapter 20
Breach of a statutory duty
20.1 Liability for breach of a statutory duty: A question of statutory interpretation and
wrongfulness
20.1 Liability for breach of a statutory duty: A question of

statutory interpretation and wrongfulness
A person who suffers harm from the culpable breach of a statutory duty
or exercise of a statutory power may claim in delict for damages. To
succeed with such a claim, the plaintiff must prove the normal elements
of a delict, including the wrongful causing of harm. This means that the
plaintiff has to prove that compliance with a particular statutory duty is of
direct interest to him or her and that breach of that duty has caused him
or her harm. It is not enough for the plaintiff to say that it is in the
common interest of all citizens that statutory duties are complied with.1
Also, on proper interpretation, the statute in question must allow or at
least be consistent with a delicual action for damages by a person with
the requisite interest who suffers harm that results from a breach of the
statutory duty.
To determine whether they should grant such an action, courts
examine the content and purpose of the statutory duty or power, and the
implications of imposing delictual liability. Following the rules of
statutory interpretation, courts assess the intention of the legislature to
determine whether the statute was intended to allow the possibility of
delictual liability for breach of the duty it creates. If it did intend this, then
the statute imposes a delictual duty on the defendant towards the
plaintiff. It follows that causing harm by breaching such a duty may be
regarded as wrongful and may involve delictual liability, provided that
the other requirements for liability are met.
Courts look at the wording and purpose of the statute as a whole to
determine:
• The objects sought to be achieved by the legislature
• The nature of the powers conferred by the statute
• The duties and procedures involved in the exercise of such powers
• The remedies available to persons harmed by a breach of duty, both
in terms of the statute itself and the general principles of
administrative law.2
Courts focus on the content and purpose of the statutory duty, and the
implications of breach of the duty, rather than on the infringement of the
plaintiff’s right. The mere fact that the defendant acted in breach of a
statutory duty is not conclusive of wrongfulness for the purposes of
delictual liability.3 In South African Hang and Paragliding Association v
Bewick 4 the Supreme Court of Appeal said:
Even on the assumption that the appellants had failed to perform a duty imposed
upon them by statute, the question remains whether their omissions were wrongful
in the delictual sense. To the uninitiated it may sound contradictory to say that
omissions to comply with statutory obligations are not wrongful. But that
impression loses sight of the special meaning attributed to the element of
wrongfulness in the context of delictual liability. As I have said by way of
introduction, wrongfulness in this context means that, in accordance with judicial
determination, considerations of public and legal policy dictate that it is reasonable
to impose delictual liability on the defendant for the harm caused by the omission
involved.
To this one may add that the mere breach of a statutory duty itself does
not necessarily constitute negligence. Whether or not the defendant was
negligent is ultimately dependent upon the reasonableness of his or her
conduct, that is, whether or not a reasonable person in the position of the
defendant would have foreseen the harm occurring and, if so, whether
such reasonable person would have taken steps to prevent the harm.5
Knop v Johannesburg City Council6
The city council made an error in granting an application for subdivision of a property. It then later
informed the applicant that the approval could not stand, because it was in conflict with an existing town
planning scheme. The Court held that the process of interpretation to determine whether a delictual
remedy arises from the breach of a statutory duty or negligent exercise of a statutory power comes down
to the following:
The essence of the plaintiff’s claim is that the Council caused him loss by the negligent exercise
of a statutory power. The source of the power being statutory, it is necessary to examine the
legislation by which it was brought into being, for it is self-evident that the intention of the
legislature is an important, and may possibly be a decisive, feature of the circumstances
material to the determination of whether or not a legal duty existed. The legislative intention is
to be ascertained with reference to the nature of the powers conferred, the nature of the duties
involved in their exercise, the procedures prescribed for their exercise and for persons aggrieved
by it to obtain redress, and the objects sought to be achieved by the legislature.
In this case, the applicant claimed damages for losses incurred as a result of the delayed development
of the property. The Court took into account, as a matter of policy, that there was an administrative
procedure for an aggrieved person to obtain redress in the event of refusal of his application. It also
considered that potential liability in delict could unduly hamper the local authority in carrying out its
statutory duty to consider and dispose of such applications expeditiously. The application in this case
was defective, because it did not comply with the existing town planning scheme, and the applicant
should have ensured such compliance. In the circumstances, it would be contrary to the objective
criterion of reasonableness to hold the local authority liable for damages, and it would also offend the
legal convictions of the community.
Olitzki Property Holdings v State Tender Board7

In this case, a provincial government invited tenders for office accommodation. The appellant obtained
an option to purchase a building and tendered to provide office space in it to the provincial government.
When its tender was not accepted, the appellant instituted a claim for damages for lost profit against the
State Tender Board and the provincial government. The alternative bases of the claim were:
• That there was a breach of the appellant’s right to a fair, public and competitive system of tendering as
required by section 187(2) of the Constitution of the Republic of South Africa Act 200 of 1993, in that
the provincial government, an interested party, had influenced the Tender Board in its decision to award
the tender
• That the interfering conduct was an infringement of the appellant’s fundamental right to administrative
justice enshrined in section 24(a), (b) and (c) of the Interim Constitution, entitling it to damages for its
lost profit.
The Supreme Court of Appeal held that liability for breach of a statutory duty is essentially a matter of
wrongfulness, determined by the general criterion of reasonableness. In turn, this criterion is based on
considerations of morality and policy, the legal convictions of the community, and constitutional norms,
values and principles. The other main issue is statutory interpretation: on determining whether one can
infer that the statute creates a legal duty, and therefore confers a right of action, courts must consider
the statute as a whole, taking into account its objects and provisions, the circumstances in which it was
enacted, and the type of mischief it was designed to prevent.8
The Court held that the Interim Constitution prescribed a minimum content for future legislation on
tender procedure. Until such legislation was adopted, parties had to apply the State Tender Board Act
86 of 1968. Neither the provisions of this Act, nor section 187 of the Interim Constitution, justified the
conclusion that a tenderer could claim lost profits for breach of the applicable statutory provisions.
Tender legislation could limit remedies for breach of such legislation to interdicts, review, or out-of-
pocket losses caused by actual expenses arising from the breach complained of. In the absence of a
specific provision in the State Tender Board Act or the Interim Constitution, judicial interpretation did not
allow recognition of a claim for lost profits. Its contentious nature means that such a claim is a matter
for the national and provincial legislatures, not for judicial inference. A claim for lost profits is also not
‘appropriate relief’ in terms of section 7(4)(a) of the Interim Constitution. In the circumstances of this
case, applying for an interdict would have been ‘appropriate relief’. Such an application would have both
anticipated the dispute and eliminated the loss claimed by the appellant. In the circumstances of the
case, and in view of the availability of alternative remedies, the claim for lost profit was not an
appropriate constitutional remedy.
Steenkamp NO v The Provincial Tender Board of the Eastern Cape9

This case concerned a claim for damages by a successful tenderer whose tender award was later set
aside on account of negligence on the part of the tender board. The Constitutional Court summarised the
factors relevant to assessing wrongfulness in the context of negligent performance of a statutory duty:10
Our courts – Faircape, Knop, Du Plessis and Duivenboden – and courts in other common law
jurisdictions readily recognise that factors that go to wrongfulness would include whether the
operative statute anticipates, directly or by inference, compensation of damages for the
aggrieved party; whether there are alternative remedies such as an interdict, review or appeal;
whether the object of the statutory scheme is mainly to protect individuals or advance public
good; whether the statutory power conferred grants the public functionary a discretion in
decision-making; whether an imposition of liability for damages is likely to have a ‘chilling
effect’ on performance of administrative or statutory function; whether the party bearing the loss
is the author of its misfortune; whether the harm that ensued was foreseeable. It should be kept
in mind that in the determination of wrongfulness foreseeability of harm, although ordinarily a
standard for negligence, is not irrelevant. The ultimate question is whether on a conspectus of
all relevant facts and considerations, public policy and public interest favour holding the
conduct unlawful and susceptible to a remedy in damages.

The typical factors that courts take into account when deciding whether
the breach of a statutory duty is wrongful for the purposes of delictual
liability, include the following:
• Could the plaintiff have averted the harm? Did the breach of duty
materially contribute to the harm?
Premier, Western Cape v Faircape Property Developers (Pty) Ltd11
The Supreme Court of Appeal confirmed that state officials, including employees of local authorities and
members of government at every level, are accountable for their decisions. They must perform their
statutory duties without negligence. Failure to exercise due care, in circumstances where they owe a duty
to members of the public to act responsibly and without causing loss or harm, should involve liability for
the damage caused. However, in this case, the Court held that the legislation governing an application to
remove restrictive conditions of title from land placed no duty on the responsible Minister to check that
the applicant had complied with all the procedures laid down. The Minister only had to satisfy himself
that it was desirable in the interests of the area to remove the restrictive conditions of title. Therefore, the
Court could not hold the Minister liable for the applicant’s losses where an application had first been
granted and later overturned because of non-compliance with the prescribed procedures.
• Was the statutory duty intended to benefit the plaintiff as one of a

specific class of persons? Where the statute was enacted in the public
interest and not to protect individual interests, a court may refuse to
recognise an action for damages, but may grant an interdict. In the
context of unlawful competition, the ‘licence’ cases deal with the
situation where one trader alleges that he or she is incurring losses as
a result of competition from another trader, who does not hold the
necessary statutory licence or permit to trade, or who otherwise
contravenes a statutory duty or prohibition. For example, in Patz v
Greene and Co 12 a trader who conducted business near a mining
compound applied for an interdict against a rival trader who traded
on claim land, in contravention of a specific statutory prohibition.
The Court accepted, on principle, that it is wrongful to cause loss to a
rival trader through conduct expressly prohibited by statute.
(However, the Court did not grant the interdict, because the
application did not contain all the necessary allegations to found the
cause of action.) In Lascon Properties (Pty) Ltd v Wadeville
Investment Co (Pty) Ltd,13 where a duty in terms of a regulation to
prevent contaminated water from escaping was in issue, the Court
held:14
In my view, the regulation was prima facie enacted for the benefit of the owners of land which
might be polluted as a result of the actions of a mining company. … This having been the
purpose of the regulation, it seems to me that the Legislature would not have imposed an
obligation to prevent the escape of noxious water without intending persons harmed thereby to
be entitled to be compensated by the person permitting the water to escape. ‘For, if it were not
so, the statute would be but a pious aspiration’ … The regulation does not impose a standard of
care but imposes a duty in absolute terms. In my view, it must be inferred from such imposition
of a duty that those who have suffered as a consequence of a failure to comply with such duty
should be entitled to compensation therefor.
• Was the harm suffered by the plaintiff of the type that the statute
intended to guard against? In Da Silva v Coutinho 15 the Court held
that the owner of a motor vehicle was liable in delict for not
complying with a statutory duty (at that time, compensation for road
accident victims was based on a system of compulsory insurance) to
provide the plaintiff with a declaration of insurance in respect of the
motor vehicle. Compliance with this duty would have enabled the
plaintiff, who was injured in an accident involving the motor vehicle,
to claim damages from the insurance company concerned. In effect,
the defendant had therefore wrongfully caused the plaintiff’s loss.
• Are there alternative remedies or sanctions, including criminal
sanctions, for breach of the statutory duty? According to the
judgment in the leading case of Knop v Johannesburg City Council 16
the wrongfulness of causing harm partly depends on whether
alternative redress for persons harmed by the breach of a statutory
duty exists.17
• What are the implications of recognising a delictual remedy for
breach of the statutory duty? Would imposition of liability for
damages have a ‘chilling effect’ on performance of administrative or
statutory function? For example, would potential liability hamper a
statutory body in carrying out its statutory duties, or the police in
carrying out their normal duties? 18
The question of whether causing harm through breach of a statutory duty

is wrongful for the purposes of delictual liability involves a process of
statutory interpretation, according to the normal rules of interpretation.
It also involves a value or policy judgement on wrongfulness based on
factual and policy considerations as set out above.
1 Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933 AD 87 at 101;
Bophuthatswana Transport Holdings (Edms) Bpk v Matthysen Busvervoer (Edms) Bpk 1996
(2) SA 166 (A) at 173.
2 Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 28.
3 South African Hang and Paragliding Association v Bewick 2015 (3) SA 449 (SCA) para 23;
contra Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 7 ed (2015) at 78.
4 2015 (3) SA 449 (SCA) para 23.
5 Alves v LOM Business Solutions (Pty) Ltd 2012 (1) SA 399 (GSJ) para 29; Naidoo v Minister of
Police [2015] 4 All SA 609 (SCA) paras 20–25.
6 1995 (2) SA 1 (A) at 28.
7 2001 (3) SA 1247 (SCA).
8 See also Alves v LOM Business Solutions (Pty) Ltd 2012 (1) SA 399 (GSJ) para 28.
9 2007 (3) SA 121 (CC).
11 2003 (6) SA 13 (SCA).
12 1907 TS 427.
13 1997 (4) SA 578 (W) at 583C–D.
14 At 583 (references omitted).
15 1971 (3) SA 123 (A).
16 1995 (2) SA 1 (A) at 28.
17 See also Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA); Steenkamp
NO v The Provincial Tender Board of the Eastern Cape 2007 (3) SA 121 (CC); South African
Hang and Paragliding Association v Bewick 2015 (3) SA 449 (SCA).
18 Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 319.
Chapter 21
Public authorities
21.1 Introduction
21.3 General trends in South Africa: Effect of the Constitution

21.4.1 Section 1
21.4.2 Section 2
21.4.3 Section 3
21.4.4 Section 4
21.5 Section 35 of the General Law Amendment Act 62 of 1955
21.1 Introduction
Delictual liability of public authorities is based on the ordinary general
principles of delict. This chapter aims to:
• Indicate the international trend of widening liability of public
authorities
• Indicate the effect of the Constitution on widening this form of
liability in South Africa
• Refer to legislation governing State liability1
• Refer to legislation governing liability of the State for public schools
• Indicate briefly the application of certain general principles to
liability of local authorities.

The liability in delict of the State or government, and of public authorities
generally, has been extended in South Africa during the last part of the
twentieth century and into the twenty-first century. One can attribute this
development to both external and internal factors.
Worldwide, the relationship between State administrations and their
citizens changed during the twentieth century. The range of public
services has widened considerably, and the culture has also changed, in
that members of the public are seen much more as active ‘clients’ or
‘customers’ whose needs have to be met.2 The disappointed ‘customer’ of
a public service feels justified in complaining if the service provided or
procured by the State on his or her behalf is deficient, and readily claims
compensation for injury or loss. The liability of the State or a public
authority requires that there is a balance between protecting the interests
of the citizen and preserving the ability of the administration to function
in the public interest. Generally, the trend has been towards what
Markesinis has called a ‘consumerist vision of public liability’, under
which ‘compensating the damages suffered by citizens because of
administrative activities can never be a wrong use of public money’. 3
21.3 General trends in South Africa: Effect of the

Constitution
In South Africa, the Constitution of the Republic of South Africa, 1996,
with its extensive Bill of Rights, has supported the trend towards
expanding the liability of public authorities. This has opened the way to a
wider interpretation of wrongfulness in the law of delict. Criminality and
the absence of a victim-compensation scheme are among the factors that
have led to a number of cases in which victims of crime have successfully
claimed damages from the State, based on the wrongful failure of the
police to provide protection.4 In line with the trend towards widening
liability, the Constitutional Court held in Minister of Defence and
Military Veterans v Thomas 5 that a provincial government employee who
had been seconded to work for a national government department was
entitled to claim statutory compensation from the provincial government
as her employer 6 and also to claim delictual damages against the
national government.7 The Constitutional Court rejected the notion of
the State as a single employer 8 and stressed the importance of
vindicating the employee’s fundamental right to freedom and security of
the person.9
However, the courts have also been concerned not to cast the net of
liability too wide. In Minister of Safety and Security v Scott 10 the Court
held that holding the Minister for Safety and Security responsible for the
patrimonial losses suffered by the second respondent would open the
door to indeterminate police liability, and for this reason wrongfulness
had not been established. As regards causation, the Court was concerned
not to ‘cast the net too wide and to land the police with liability for loss
that is too remote’. 11 Accordingly, the State was not held delictually liable
for the second respondent’s patrimonial loss. In Minister of Safety and
Security v Janse Van der Walt 12 the Court held that the State could not be
held vicariously liable for the negligent conduct of a magistrate while
performing his or her judicial functions.13 In MEC for the Department of
Public Works, Roads and Transport v Botha 14 the Court held that no
evidence had been placed before the Court to enable it to find that a
general legal duty rested on the State to maintain a public road by
removing trees that constantly grow and cause a potential danger to the
road’s users.15
The Constitution guarantees just administrative action,16 which is
given detailed content in legislation.17 This has widened the scope for
liability of public bodies based on negligent failure of administrative
justice. The Constitutional Court has affirmed that ‘(i)n our
constitutional dispensation, every failure of administrative justice
amounts to a breach of a constitutional duty’, which might, but will not
necessarily, give rise to delictual liability.18 This has manifested itself in a
number of cases that deal with irregular tender procedures.19

The State Liability Act 20 of 1957 restates the abolition of immunity of the
State against liability for the acts of its employees performed under
statutory authority. The result of this is that, within the limits imposed by
the Act, the liability of the State is co-extensive with that of the individual
citizen.20
The Act does not define the concept of ‘State’, and so one should
refer to the definitions of ‘organ of state’ in section 239 of the
Constitution, and in section 1(b) of the Institution of Legal Proceedings
against Certain Organs of State Act 40 of 2002.
21.4.1 Section 1
Section 1 of the State Liability Act confirms that a person can bring an
action against the State in any competent court, ‘whether the claim arises
out of any contract lawfully entered into on behalf of the State or out of
any wrong committed by any servant of the State acting in his capacity
and within the scope of his authority as such servant’. In terms of this
section, the State is liable for a ‘wrong’ committed by an employee or
‘servant’ acting ‘in his capacity and within the scope of his authority as
such servant’. 21 To an extent, State liability is qualified ‘by express
mention of ‘‘contract’’ and ‘‘wrong’’, [but] it is settled law that these are
not intended to be the sole grounds of liability’. 22 State liability is not
confined to breaches of contracts entered into by the State or delicts
committed by employees of the State acting in the course and scope of
their employment. Courts will not decline redressing a violation of
individual rights that results from an administrative act simply because
the act is performed ‘in the course of implementing a general policy’. 23 In
effect, the State is vicariously liable for the acts of its employees on the
same basis as an ordinary employer.24 The law imposes liability on the
State not only for acts committed by its employees, but also in cases of
strict liability for damage done by animals (pauperies).25
In some earlier cases, courts held that the State is not liable where
the statutory duty imposed on the employee allows the employee to
exercise his or her personal discretion independently of the State.26 The
State must then prove that the employee was exercising his or her
personal discretion.27 However, such instances, if they still occur at all,
would be exceptional.28
In Mhlongo v Minister of Police 29 the Court summarised the liability
for the conduct of the police in terms of the State Liability Act as follows:
The liability of the State for such a wrong is founded on the provisions of s1 of the
Act … The remedial legislation, of which Act 20 of 1957 is the modern offspring, was
intended as the sole foundation of State liability in our law. The particular
provisions of s1 of the Act relevant to the liability of the State for the delict of a
policeman are those to be found in the words ‘… any wrong committed by any
servant of the State acting in his capacity and within the scope of his authority as
such servant ...’ the view that all members of the police force are prima facie
servants of the State is too well entrenched in decisions of this court of the Appellate
Division. Although [s1 of Act 20 of 1957] speaks only of a State servant acting ‘within
the scope of his authority’, the Courts appear to have treated this as embracing the
concept ‘within the scope of his employment …’ It has never been suggested that
the State escapes liability for a wrongful act committed by a servant in his capacity
as such simply because the act fell outside the ‘scope of his authority’, when it was
clearly within the ‘scope of his employment’. All members of the South African
Police Force are prima facie servants of the State and consequently, when a
wrongful act is committed by a member of the Force in the course or scope of his
employment, the State is prima facie liable. It is then for the State to show that in
committing the wrongful act, the policeman was engaged upon a duty or function of
such a nature as to take him out of the category of servant pro hac vice. In order for
the duty or function to take him out of the category of servant it must be one which
is personal to the policeman in the sense that from its very nature [it is divorced
from the State].
Therefore, to escape liability for harm caused by a public servant, the

State must show that the servant was engaged in a personal activity that is
divorced from the duties of a State employee.30
21.4.2 Section 2
Section 2 of the State Liability Act is a procedural measure. It provides
that one should cite the political head of a state or provincial department
in proceedings.
21.4.3 Section 3
Section 3 of the Act prohibits execution, attachment or like process for
enforcing judgments against the State.31 Courts have held that section 3 is
no bar to obtaining an Anton Piller order against the State, in a case
where the order was aimed at the search of a police facility to look for
torture apparatus allegedly kept there.32 The Constitutional Court held in
Nyathi v The MEC, Department of Health, Gauteng 33 that this section
was in conflict with the Constitution, because it unjustifiably limits the
right to equal protection of the law contained in section 9(1) of the
Constitution and was inconsistent with the constitutional protection of
dignity and the right of access to courts. The Court also held that section
3 violated the principles of judicial authority, as well as the principle that
the public administration be accountable. Accordingly, the Court
confirmed a declaration of constitutional invalidity, but suspended the
order for 12 months to allow parliament to pass legislation that provides
for an effective means of enforcement of money judgments against the
State. This was followed by the passing of the State Liability Amendment
Act 14 of 2011, which allows the issue of a writ of execution or a warrant
of execution against movable property owned by the State and used by
the department concerned, but only after various notification procedures
have been followed.
21.4.4 Section 4
Section 4 of the Act provides that limitations of liability, prescribed
periods and conditions for claims against the State that are contained in
other legislation are not affected by the Act. The application of special
notice and limitation periods was an important feature in actions against
the State and certain State organs prior to the introduction of a new
Constitution in South Africa in the last decade of the twentieth century.
Once the interim Constitution and the final Constitution had come into
operation, the constitutionality of these short and onerous notice and
limitation periods was challenged, in terms of the constitutional
guarantees of equality and access to courts.34 The Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002 subsequently
reformed the law on notice and limitation periods for actions against the
State and organs of State.
COUNTER Should the courts impose direct or vicarious liability on the State?
While claims in delict against the State are brought on the basis of vicarious
POINT
liability in terms of the State Liability Act, some judges and academic
commentators have argued that claims in delict against the State should be
brought on the basis of direct State liability.35
In terms of this approach, the plaintiff would proceed on the basis that the
employees or servants of the State who engaged in wrongful, culpable conduct
that resulted in the plaintiff suffering harm were extensions of the State itself,
making the State directly liable for the harm. This is not merely a semantic or
technical distinction: if plaintiffs take the direct-liability approach, they will not
have to prove that the State employee was acting in the course and scope of
employment when the State employee engaged in the conduct that resulted in
the harm. The Court will be entitled to take a broader view of the matter and
decide whether the State should in the circumstances be held liable in delict for
the harm suffered by the plaintiff (the wrongfulness enquiry), as well as whether
the State, when considering all the facts and circumstances of the matter, was
negligent in failing to foresee and prevent the harm.
The fault enquiry often proves conceptually problematic in claims brought in
delict against the State, as in order to be successful in a claim brought on the
basis of vicarious liability, the plaintiff first needs to prove that the employee
himself or herself personally committed a delict (which involves a finding that the
employee acted negligently in the circumstances), and then to prove that the
delict was committed in the course of the employee’s employment. As regards
the fault enquiry, it is sometimes the case that the employee in question did not
personally act negligently, but overall the State was negligent in failing to put in
place appropriate systems and safeguards to prevent the harm. For example, in
Minister of Safety and Security v Hamilton 36 the police officers processing a
firearms licence application arguably performed their employment duties by
ensuring that the applicant applied for a firearm in the prescribed manner, and
then processing it in accordance with their employer’s instructions. They
themselves were not personally negligent in issuing the psychologically unstable
woman the firearm, but the State arguably was for not putting in place systemic
measures to ensure that psychologically unfit persons were not issued with
firearms.
In the circumstances, it would seem more logical and appropriate to impose
liability directly on the State rather than through trying to establish vicarious
liability on the basis of the personal negligence of the employees in question. In
addition, it has been argued that the vicarious-liability enquiry gives rise to
complications and confusions when it is applied in the context of delictual claims
against the State, in which the Court is required to integrate constitutional rights
and obligations into the private-law schema of the vicarious-liability enquiry.37
21.5 Section 35 of the General Law Amendment Act 62 of

1955
Section 35 of the General Law Amendment Act 62 of 1955 is a procedural
provision. It sets an obligatory notice period of 72 hours for obtaining a
rule nisi as an interim interdict against the State. The Act does not define
the concept of ‘State’, and one should seek assistance from the definition
of ‘organ of state’ in section 239 of the Constitution. This provision sets
procedural conditions for interdicts against the State, but not for an
Anton Piller (search) order against the State.38

The State is liable for harm or loss for which a public school would
otherwise be liable in terms of the provisions of section 60(1) of the South
African Schools Act 84 of 1996. Under the heading ‘Liability of State’, this
section provides:
The State is liable for any damage or loss caused as a result of any act or omission in
connection with any educational activity conducted by a public school and for
which such public school would have been liable but for the provisions of this
section.
MEC for Education, Western Cape Province v Strauss39

The plaintiff, a public-school teacher, had been struck on the head by a discus while coaching discus-
throwing on the school’s athletics field. She suffered extensive injuries and was permanently disabled.
She sought to hold the defendant liable under section 60(1) of the South African Schools Act for the
school’s failure to enclose the discus circle with safety nets. The plaintiff had been employed by the
governing body of the school in terms of section 20(4) of the Act.
The defendant raised the special plea that section 60(1) of the Act did not apply, because an
employer’s liability is generally excluded by section 35(1) of the Compensation for Occupational Injuries
and Diseases Act 130 of 1993 (COIDA). The Court upheld the plea. It held that COIDA provides
compensation for employees and section 35(1) expressly excludes the employer’s liability for damages
in respect of any occupational injury or disease that results in disablement or death. Since the school as
the employer was not liable to the plaintiff in terms of section 35(1), the Court could not attribute
liability to the State in terms of section 60(1).
Section 60(1) of the Act has been described as an ‘umbrella provision’. It
establishes general State liability for harm or loss that arises from any
educational activity undertaken by a public school, on the basis that
education is primarily the responsibility of the State.40 In Technofin
Leasing & Finance (Pty) Ltd v Framesby High School 41 Pickering J said
that section 60(1) ‘is couched in the broadest of terms and the State’s
liability is expressed in the most general language’. There is nothing in
the section to indicate that it is restricted to delictual liability.

For some purposes, local authorities are regarded as organs of State. In
terms of section 239 of the Constitution, an ‘organ of state’ includes ‘(a)
any department of state or administration in the national, provincial or
local sphere of government’. Also, in terms of section 1(1)(vii) (b) of the
Institution of Legal Proceedings against Certain Organs of State Act 40 of
2002, an ‘organ of state’ includes ‘a municipality contemplated in section
151 of the Constitution’. However, courts have held that a municipality is
not included in the word ‘State’ for the purposes of immunity against
attaching and executing the State in terms of section 3 of the State
Liability Act.42
The delictual liability of a local authority is governed by the same
principles as the liability of an individual. However, in determining
wrongfulness where local authorities are involved, courts are guided by
policy considerations that are concerned with, for example, the need for
accountability of public bodies or officials, the proportionality of the risk
of harm and the cost of prevention, control over a dangerous object or
situation, awareness of danger, prior conduct creating danger, and a
relationship imposing responsibility.
Courts discarded the view that liability of public authorities for an
omission can only be imposed where the defendant’s prior conduct had
positively created a risk of harm or a new source of danger. This had the
effect of lowering the threshold for considering the failure of a local
authority to prevent harm as wrongful and widening the liability of local
authorities for omissions. Courts finally discarded the ‘prior conduct’
approach to liability of local authorities for omissions in Cape Town
Municipality v Bakkerud.43 The case dealt with liability of the Cape Town
Municipality for the injuries of a woman who had stepped into a pothole
in a pavement. The Court took into account the area where the injury
occurred, the period of time for which the dangerous situation had
existed, and the resources needed to maintain the pavement in a safe
condition. These factors were relevant to both the enquiry into
wrongfulness and negligence. Based on the facts, the Court came to the
conclusion that there was a legal duty on the part of the municipality to
prevent the harm (failure to prevent the harm was wrongful), there was
negligence on the part of the municipality, and there was contributory
negligence on the part of the plaintiff for failing to be reasonably
observant when walking on the pavement.
To determine the negligence of local authorities (acting through
officials or employees), courts apply the ordinary principles regarding
reasonable foreseeability and preventability of harm. They take into
account factors such as the extent of the risk, the opportunity and efforts
to become aware of risks, and the cost of prevention. This is illustrated in
Mostert v Cape Town City Council,44 a case that involved a damaging leak
from the city council’s water main. Weighing the technical evidence of
the likelihood that the pipe would burst against the high cost of
replacement, the Court decided that the Council could not have been
reasonably expected to replace the pipe, and held that the Council had
therefore not been negligent.
1 The State Liability Act 20 of 1957 and section 35 of the General Law Amendment Act 62 of
1955.
2 Fairgrieve, Andenas and Bell (Eds) Tort Liability of Public Authorities in Comparative
Perspective (2002) at xvii.
3 Fairgrieve, Andenas and Bell (2002) at xviii.
2001 (4) SA 938 (CC); Van Eeden v Minister of Safety and Security 2001 (4) SA 646 (T);
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA); Alves v LOM
Business Solutions (Pty) Ltd 2012 (1) SA 399 (GSJ) paras 20–21; Minister of Justice and
Constitutional Development v X [2014] 4 All SA 586 (SCA); 2015 (1) SA 25 (SCA) paras 13–18
and 33–34; Naidoo v Minister of Police [2015] 4 All SA 609 (SCA) para 33; Dlanjwa v Minister
of Safety and Security 2015 JDR 2094 (SCA) paras 24 and 25; Oppelt v Department of Health,
Western Cape 2016 (1) SA 325 (CC) paras 51–68; Mashongwa v Passenger Rail Agency of
South Africa 2016 (3) SA 528 (CC) paras 16–20, 22, 24–27 and 29; South African Hang and
Paragliding Association v Bewick 2015 (3) SA 449 (SCA) paras 23–25.
5 2016 (1) SA 103 (CC).
6 Paras 5 and 23–25. The claim would be in terms of the Compensation for Occupational
Injuries and Diseases Act 130 of 1993.
7 Para 39.
8 Para 18.
9 Paras 38–39.
10 2014 (6) SA 1 (SCA).
11 Para 40.
12 2014 JDR 2454 (SCA).
13 Para 23.
14 2016 JDR 0514 (SCA).
15 Paras 8–13.
16 Section 33.
17 Promotion of Administrative Justice Act 3 of 2000.
18 Steenkamp NO v The Provincial Tender Board of the Eastern Cape 2007 (3) SA 121 (CC)
para 37.
19 Steenkamp NO v The Provincial Tender Board of the Eastern Cape 2007 (3) SA 121 (CC);
Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA); Minister of Finance
v Gore NO 2007 (1) SA 111 (SCA).
Development Aid 1989 (2) SA 63 (A) at 69–70.
21 Interpreted in Mhlongo v Minister of Police 1978 (2) SA 551 (A) at 566ff; Minister of Police v
Rabie 1986 (1) SA 117 (A) at 132; Tshabalala v Lekoa City Council 1992 (3) SA 21 (A) at 31ff;
Minister of Law and Order v Kadir 1995 (1) SA 303 (A).
24 Mhlongo v Minister of Police 1978 (2) SA 551 (A) at 567; Minister van Polisie v Gamble 1979
(4) SA 759 (A) at 765; Minister of Police v Rabie 1986 (1) SA 117 (A) at 132.
25 South African Railways and Harbours v Edwards 1930 AD 3 at 9. See Chapter 32 on strict
liability.
26 Sibiya v Swart NO 1950 (4) SA 515 (A) at 520ff; Mazeka v Minister of Justice 1956 (1) SA 312
(A) at 317; Sizani v Minister of Police 1980 (3) SA 1205 (SEC) at 1210. It has been held,
however, that a policeman who arrests another is carrying out a statutory duty and not a
‘personal duty’: Naidoo v Minister van Polisie 1976 (4) SA 954 (T) at 957; Mhlongo v Minister
of Police 1978 (2) SA 551 (A) at 567.
27 Sibiya v Swart NO 1950 (4) SA 515 (A); Minister of Police v Mbilini 1983 (3) SA 705 (A) at 711.
28 Minister of Police v Rabie 1986 (1) SA 117 (A) at 132; Mtetwa v Minister of Health 1989 (3) SA
600 (D) at 606.
29 1978 (2) SA 551 (A) at 567.
30 See also Chapter 33 on vicarious liability. In Minister of Defence v Von Benecke 2013 (2) SA
361 (SCA) the Supreme Court of Appeal held that the State employee in question had not
entirely dissociated himself from the business of his employer, justifying the imposition of
vicarious liability. This case illustrates how constitutional norms that have been
incorporated into the enquiry into vicarious liability have widened the potential for the
imposition of this form of liability on the State (paras 13–14).
31 Jayiya v Member of the Executive Council for Welfare, Eastern Cape 2004 (2) SA 611 (SCA)
paras 15–16; Minister of Health v Brückner [2007] JOL 18898 (LAC).
32 Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam; Maphanga v
Officer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg
1995 (4) SA 1 (A) at 20C–E.
33 2008 (5) SA 94 (CC).
34 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC); Hans v Minister van Wet en Orde 1995
(12) BCLR 1693 (C).
35 See the separate concurring minority judgment of Froneman J in F v Minister of Safety and
Security 2012 (1) SA 536 (CC), in which the judge makes the case for imposing delictual
liability directly on the State. Also see Boonzaier ‘State Liability in South Africa: A More
Direct Approach’ (2013) 130(2) SALJ at 330–368. The direct approach to state liability is
endorsed by Botha and Millard ‘The Past, Present and Future of Vicarious Liability in South
Africa’ (2012) 45(2) De Jure at 225 as a valid alternative to a claim in delict brought against
the State on the basis of vicarious liability. However, Neethling and Potgieter ‘Deliktuele
staatsaanspreeklikheid weens polisieverkragting’ (2012) 9(2) LitNet Akademies at 73–99 are
of the view that it is questionable whether a radical deviation from the traditional vicarious-
liability approach is justified, although they accept that this course could be adopted.
36 2004 (2) SA 216 (SCA).
37 See Fagan ‘The Confusions of K’ (2009) 126(1) SALJ at 156–205 and Wagener ‘K v Minister of
Safety and Security and the Increasingly Blurred Line between Personal and Vicarious
Liability’ (2008) 125(4) SALJ at 673–680. Also see the arguments made in this regard in the
judgment of Froneman J in F v Minister of Safety and Security 2012 (1) SA 536 (CC) paras
100–108. In the context of the enquiry into factual causation, it has been argued that the law
of delict, having been designed to allow private litigants to recover compensatory damages
from other private litigants, is inherently unsuited for claims against the State involving
alleged infringements of fundamental rights. Such rights should be vindicated by means of a
claim brought directly against the State for constitutional damages. In such an action, the
litigants would not be circumscribed by the private-law ethos and principles of the law of
delict, and the Court would be able to hand down a damages award to vindicate the rights at
stake and deter further infringements of them. See Price ‘Factual Causation after Lee’ (2014)
131(3) SALJ at 491–500.
38 Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam; Maphanga v
Officer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg
1995 (4) SA 1 (A) at 20C–E. 39 2008 (2) SA 366 (SCA);
39 [2008] 1 All SA 440 (SCA).
40 Louw v LUR vir Onderwys en Kultuur, Vrystaat 2005 (6) SA 78 (O) para 13.
41 2005 (6) SA 87 (SE) at 92I–93C.
42 See Mateis v Ngwathe Plaaslike Munisipaliteit 2003 (4) SA 361 (SCA).
43 2000 (3) SA 1049 (SCA).
44 2001 (1) SA 105 (SCA).
Chapter 22
Professional liability
22.1 Introduction

22.3.1 Attorneys
22.3.2 Advocates
22.6 Banks
22.1 Introduction
Delictual liability of professionals is based on the ordinary general
principles of delict. This chapter illustrates the application of certain
general principles to liability of certain professionals.
A person who engages in a profession, trade, calling, or any other
activity that demands special knowledge and skill must not only exercise
reasonable care, but must also measure up to the standard of
competence that is reasonable to expect from a person professing such
knowledge and skill. Therefore, the general test for negligence is adapted
to accommodate situations in which special knowledge or skill is
required. In assessing liability of a professional or expert, courts have to
consider the general level of knowledge and skill of members of the
relevant branch of the profession or area of expertise.
The relationship between a professional person and his or her client
is primarily a contractual one, which gives rise to potential liability for
breach of contract. However, some concurrence of contractual and
delictual liability can occur within this relationship. Courts accept that
the contractual relationship between a professional person and his or her
client, in addition to a duty to act with reasonable care and skill as an
implied term of the contract, can under certain circumstances also give
rise to a delictual duty with a similar content. Where the performance of
professional services constitutes either a breach of contract or a delict,
the plaintiff can choose whether to proceed either in delict or in contract
against the same defendant.
The relationship between a professional person and a client can also
give rise to an exclusively delictual action, for example, where one party
in the pre-contractual phase negligently or intentionally misrepresented
facts to the other, to induce entry into the contract.1 Also, a professional
person or expert may, under certain circumstances, incur delictual
liability towards third parties in cases where misrepresentation, negligent
advice, or defective workmanship affects third parties, for example, in the
‘disappointed beneficiary’ cases, where a beneficiary does not benefit
from a will, because a professional advisor was negligent in drafting or
executing the will.2
Both in contract and in delict, the liability of professional persons is
based on the expectation of a reasonable degree of specialised
knowledge, competence and skill. This standard is applied to:
• Members of established and organised professions, such as medical
doctors,3 legal practitioners,4 and accountants-auditors5
• Other specialised occupations such as bankers,6 investment
advisors,7 and sworn appraisers of land8
• Technicians, such as electricians 9
• Others with a special competence for performing certain tasks or
handling certain equipment, such as a petrol station attendants,10
farmers using special equipment,11 persons engaged in burning fire-
belts,12 and drivers of motor vehicles.13
It is negligent to engage voluntarily in any potentially dangerous activity
unless a person has the skill and knowledge usually associated with the
proper discharge of the duties connected with such an activity. In Durr v
ABSA Bank Ltd 14 the Court said the following in this regard:
It is not negligent not to be a lawyer. But those who undertake to advise
clients on matters including an important legal component do so at
their peril if they have not informed themselves sufficiently on the law.
The test for negligence in cases where professional knowledge or

expertise is involved has two components: the possession of the
necessary knowledge or skill, and the exercise of necessary care and
diligence. One replaces the ordinary reasonable person, or diligens
paterfamilias, with the reasonable expert and, when assessing the
attributes required, a court will have regard to the general level of skill
and diligence possessed and exercised at the time by members of the
branch of the profession to which the practitioner belongs.15 For
example, in the medical profession courts will determine the level of
knowledge and skill required not only by the type of practice (general
practitioner or specialist), but also by the nature of the duties the
practitioner is carrying out at the time (specialist duties or general duties,
for example, as the casualty officer on duty at a hospital). An error of
judgement may indicate negligence, but some errors of judgement are
reasonable, for example, in emergencies or in situations fraught with risk,
such as a complicated medical procedure. However, an error of
judgement caused by a lack of the required degree of knowledge, skill
and diligence will constitute negligence.16
The test for negligence requires that one assesses the defendant’s
conduct in the particular circumstances prevailing at the time. In that
sense, locality considerations are also relevant to the enquiry into
professional negligence. However, as far as the level of knowledge and
skill expected of a professional is concerned, it is not likely that a lower
level of competence will be required of a professional practising in a
particular locality, for instance a rural area. In Van Wyk v Lewis 17 Innes
CJ applied a general standard when assessing the competence of a
surgeon, without considering the circumstances or practices in the
particular locality. Wessels JA, in the same case, indicated that the level of
skill and care to be expected could differ according to locality.18 Courts
are bound to take into account the surrounding circumstances (such as
lack of facilities) when assessing care and diligence, but are unlikely to
adapt the level of competence expected of a professional according to
locality.
As indicated in the chapter on fault, one determines the standard of
care required by objectively evaluating whether the conduct complied
with normal and generally accepted practice. Generally accepted
practice in a particular profession or area of expertise indicates the
nature and extent of care and precautions in particular situations.19
However, the generally accepted practice is not necessarily conclusive.
The overriding standard in every instance is that of a reasonable person
in the particular situation.

A medical practitioner engages in a profession that demands special
knowledge, skill and care, and should measure up to the standard of
competence that is reasonably expected of a person of that profession.20
The relationship between a medical practitioner and patient is usually,
but not necessarily, contractual; for example, where medical services are
rendered to an unconscious person. The relationship involves the duty to
act with reasonable care and skill, as an implied term of the contract, or
as a duty imposed by the law of delict. Courts recognise concurrence of
contract and delict in respect of the relationship between doctor and
patient in cases where the harm was physical and not purely economic.21
In Van Wyk v Lewis 22 Wessels JA said the following on the standard
of competence and care expected of a medical practitioner (a surgeon):
… the surgeon (must perform) the operation with such technical skill as the average
medical practitioner in South Africa possesses and (must) apply that skill with
reasonable care and judgment … (he) is not expected to bring to bear on a case
entrusted to him the highest possible professional skill but is bound to employ
reasonable skill and care and is liable for the consequences if he does not.
Courts also consider the branch of the medical profession to which the
practitioner belongs. They will not only determine the level of knowledge
and skill required by the type of practice (general practitioner or
specialist), but also by the nature of the duties the practitioner is carrying
out at the time. A general practitioner may be required to carry out
specialist duties, for example in radiology, when acting as the casualty
officer on duty at a hospital. Courts will then assess competence at the
level of a general practitioner, but this should include the knowledge and
judgement of when it is necessary to call upon the services of a specialist.
In this regard, Bekker J said the following in Esterhuizen v
Administrator, Transvaal: 23
… a general practitioner is not expected to have the same degree of
knowledge and skill and experience as a specialist has … . The question
is what is the common knowledge in the branch of the profession to
which the accused belongs.
The standard that the Court applied in Buls v Tsatsarolakis 24 was that of
an average general practitioner, carrying out his duties as a casualty
officer in a public hospital, and not that of a specialist orthopaedic
surgeon.
Liability for medical practitioners may arise not only from clinical
work, such as prescribing medicine or performing a procedure, but also
from failure to inform patients properly about risks of medicine or
medical procedures. Patients must be informed of the material aspects of
the risk of harm.25 In Castell v De Greef 26 the Court comprehensively
reviewed the South African law in this regard and held that, for a patient’s
consent to constitute a defence, the doctor is obliged to warn a patient of
a material risk inherent in the proposed treatment, and that a risk is
material if, in the circumstances of the particular case:
• A reasonable person in the patient’s position, if warned of the risk,
would be likely to attach significance to it
• The medical practitioner is or should reasonably be aware that the
particular patient, if warned of the risk, would be likely to attach
significance to it.27
If a medical procedure involves the risk of harmful side effects, even if
performed competently, the doctor must inform the patient of the
material aspects of the risk of harm. Questions of wrongfulness,
causation and negligence arise in this regard. If, for example, a surgeon
operates without first fully informing the patient of the risks, the
operation is performed without the patient’s informed consent. If
harmful side effects occur, and the patient would not have undergone the
operation if informed of the risk, the surgeon will have caused the harm
wrongfully. If failing to inform the patient was also negligent in terms of
the standard of a reasonable practitioner in the relevant branch of the
medical profession, the practitioner will be liable. If, on the other hand,
the operation is completely successful and no harmful side effects occur,
there is arguably no wrongful causing of harm, despite the fact that the
operation was performed without the patient’s informed consent.
PAUSE FOR Consent

REFLECTION In Broude v McIntosh28 Marais JA referred to the situation where an operation is
performed without proper consent, but the operation turns out to be completely
successful. He expressed the view that there is no principle of law by which
objectively characterising, as wrongful or lawful, an intentional act that involves
causing bodily harm to another, could be postponed until its consequences are
known. Is this correct? In the event of a completely successful operation,
arguably there is no harm for the purposes of the law of delict, despite the fact
that the patient might have chosen not to undergo the operation with knowledge
of the risks. In the law of delict, courts decide wrongfulness based on the causal
sequence, not on the act by itself. They can only do this once the consequences
of the act are known.
In cases of harm that arise from childbirth, the medical practitioner can
be liable towards the parents in cases of unwanted pregnancy 29 or failure
to warn of the risk of a child being born handicapped.30 However, a
handicapped child does not have an action against a medical practitioner
for negligently failing to warn the parents that their child may be born
disabled.
Stewart v Botha31
The Supreme Court of Appeal declined to recognise a ‘wrongful life’ claim by a child born disabled. The
child alleged that his mother, had she been properly advised, would have chosen to have an abortion
and that she would have been able to do so in terms of the governing legislation. The Court refused the
action on the basis that the child’s disability was congenital and not in any way caused by the conduct of
the medical practitioners. The practitioners had merely failed to warn the mother of the risk of the child
being born disabled. From the child’s point of view, the failure to warn his mother caused him to be born,
and the Court refused to regard the causing of a life, as opposed to no life at all, as a wrongful causing
of harm.
H v Fetal Assessment Centre32

The plaintiff instituted a claim on behalf of her minor child who suffered from Down’s syndrome. She
alleged that the defendant had acted negligently by failing to inform her that there was a high risk of her
child being born with Down’s syndrome. She alleged that, if she had known of this risk, she would have
had an abortion. The High Court disallowed the claim, holding that, while South African law recognises a
claim by a mother for damages for harm caused by a pre-natal misdiagnosis, it does not recognise such
a claim brought by the child.
The Constitutional Court unanimously decided that the existing position, which deprives a child of the
right to claim damages for a pre-natal misdiagnosis, may not be in the child’s best interests and found
that, in theory, such a claim may exist. The Court referred the matter back to the High Court, since a
decision on the validity of the child’s claim might involve complex factual and legal considerations which
the High Court was best-placed to assess. The High Court would have to decide whether the elements of
a delict had been satisfied, or whether a new remedy should be developed to allow a child to recover
compensation for any harm he or she may have suffered.
Mukheiber v Raath33
The parents of a healthy and normal child (their fourth) instituted action in delict against a gynaecologist.
They alleged that he had negligently misrepresented to them that the wife had been sterilised after the
birth of their third child. Relying on this representation, they had failed to take contraceptive measures.
This resulted in their fourth child being conceived and born. The parents claimed damages from the
doctor for pure economic loss, in the form of confinement costs and maintenance of the child until he
became self-supporting. The Supreme Court of Appeal held that the doctor had a legal duty not to make
any representations on the matter of sterilisation until he had taken reasonable steps to make sure the
representations were accurate. The factual and policy considerations that indicated that such a duty
existed were:
• The special relationship between the doctor and the parents who consulted him
• The material risk that the situation involved, that is, the risk of the conception and birth of an unwanted
child
• The fact that this risk should have been obvious to the doctor
• The fact that it should also have been obvious to the doctor that the parents would rely on what he told
them, and that the correctness of the representation was of vital importance to them, as they could
suffer serious damage if the representation was incorrect
• The fact that the representation related to technical matters that concerned a surgical procedure about
which the parents would necessarily be ignorant and the doctor should be knowledgeable.
Oppelt v Department of Health, Western Cape34

The plaintiff suffered a serious spinal cord injury in a rugby match. He was taken to a government
hospital for treatment. The medical professionals failed to provide him with timeous appropriate medical
treatment (a ‘closed reduction’) and the delay meant that he became paralysed from the neck down.
The plaintiff sued the provincial government for damages in delict. The trial court allowed his claim,
but this decision was overturned by the Supreme Court of Appeal. In a further appeal, the Constitutional
Court found that the medical professionals had been negligent and that the plaintiff’s harm had been
caused wrongfully. Regarding wrongfulness, the Court held that there was a legal duty in the
circumstances for the medical professionals to provide the plaintiff with timeous medical treatment, in
part because the Constitution requires that emergency medical treatment be provided to those who
require it.35 The defendant could not justify the delay through citing a need for it to adhere to hospital
protocols regarding the transfer of patients to other health-care facilities.36
Medical practitioners can be held liable not only for physical harm to
patients, but also for economic loss. When deciding on liability, courts
take into account all the circumstances, including the nature of the work
and the nature of the alleged failing (for example, error of judgement, or
lack of required knowledge or care).

The two branches of the legal profession in South Africa are based on a
division of work. Broadly stated, attorneys deal directly with clients,
whereas advocates take instructions from attorneys, who act on behalf of
a client. Advocates have the right to appear in the higher courts. The
Right of Appearance in Courts Act 62 of 1995 has bridged the division
between the two branches of the profession in terms of which attorneys
under certain conditions also have the right to appear in the higher
courts in the Republic (including the Supreme Court of Appeal and
Constitutional Court). Generally, the legal profession demands
specialised knowledge, skill and care from members of both branches of
the profession. A practitioner must measure up to the standard of
competence of a reasonable person professing such attributes.37
22.3.1 Attorneys
The client-attorney relationship is a contractual one. The relationship
imposes the duty, by way of an implied term, to perform professional
services with the knowledge, competence, skill and care that can
reasonably be expected of a member of the profession. Failure to exercise
this standard of care is a breach of this implied term of the contract.38 An
attorney will not be guilty of negligence merely because he or she
committed an error of judgement, whether on matters of discretion or
law.39 However, an error of judgement may be indicative of negligence –
in particular, where the practitioner should have realised that the work
required a degree of expertise that he or she did not possess. Also, an
error of judgement caused by a lack of the required degree of knowledge,
skill and diligence will constitute negligence.40 Where an attorney does
not exercise the required skill and care, and the client suffers loss, the
damages will be those that normally flow from the breach or may
reasonably be supposed to have been contemplated by the parties as
likely to result from it.41
Apart from liability for damages that arise in contract, an attorney
may also be held liable in delict. In one case, the Court recognised the
concurrence of contract and delict in the attorney-client relationship in
respect of pure economic loss.42 However, in a leading case concerning
an attorney’s liability to his client, the Court treated the client’s action as
a contractual action.43
There can also be liability in delict towards a third party outside the
contractual relationship – for example, in a ‘disappointed beneficiary’
case, where a beneficiary does not benefit from a will, because the
attorney was negligent in drafting or executing the will.44 An attorney
conducting litigation on behalf of a client has a duty to act with integrity
and care, not only towards his or her client, but also towards the Court
and the opponent. However, courts are likely to consider this duty a
matter of professional ethics rather than a basis for delictual liability.45
PAUSE FOR The widespread increase in the use of the internet and the subsequent explosion
in cybercrime poses a new risk to attorneys. Attorneys must be aware of the new
REFLECTION
dangers posed by the internet – ‘phishing’ scams; risks posed by the use of
email, including compromising the duty of confidentiality to the client; the
possibility of altering electronic documents; and the possibility of receiving
mandates from persons other than the clients. The latter risk is especially
encountered in conveyancing transactions, where fraudsters may attempt to
intercept email communications between the attorney and the client and attempt
to divert money into fraudulent accounts.
Would the legal convictions of the community dictate that an attorney who
does not exercise proper care when interacting online or via email be held liable
in delict for damages? What are the policy considerations that would favour or
militate against the imposition of liability in such cases?
Roestoff v Cliffe Dekker Hofmeyr Inc46
Fraudsters managed to access the plaintiff’s bank account by internet ‘phishing’ and stole R350 000
from it. They then transferred R200 000 of this amount into the defendant attorneys’ trust account. The
defendant firm was not aware that the money had been stolen and subsequently transferred the money
to a third party. The plaintiff sued the firm for loss of the money, claiming that it, as a firm of attorneys,
had a legal duty to ascertain the source of the money before allowing the money to be paid out to a third
party. The Court held that, although the plaintiff had been unknown to the firm, there was a duty on it not
to be negligent in respect of deposits made into its trust account. This means that attorneys are generally
obliged to verify the source of unidentified trust account deposits before dealing with them. However, in
this instance the firm had not been negligent, as there had been nothing to alert it to the fact that the
deposit had been obtained fraudulently. In addition, the fraudsters had misled the firm as to the source
of the deposit, and the plaintiff himself had been negligent in failing to heed the bank’s warnings on its
internet banking website about the prevalence of internet fraud.
Steyn NO v Ronald Bobroff & Partners47

The respondent was a firm of attorneys alleged by the appellant to be a ‘pre-eminent specialist’ in the
field of personal injury claims. The appellant contracted the firm to lodge a claim with the Road Accident
Fund in respect of personal injuries suffered by her minor son in a motor vehicle accident. The appellant
alleged that it was a tacit term in the contract of professional services between them that the respondent
would execute the mandate with reasonable diligence, care and skill; and further, that the firm had been
negligent in executing the mandate, in that it had failed to prosecute the claim timeously, which resulted
in the Road Accident Fund paying out the appellant’s claim some 14-and-a-half months later than it
otherwise would have done. The appellant’s claim was for damages in the form of the interest that would
have been earned on the capital sum over the 14-month period, had it been invested.
The Court found that the appellant had failed to adduce clear evidence proving that the respondent
had acted negligently and, in particular, evidence of how a reasonable attorney would have prosecuted
the claim in the circumstances.48 Accordingly, her claim for damages failed. In a separate concurring
judgment , Brand JA held that the appellant was not entitled to mora interest in circumstances where the
respondent did not owe her a principal debt.49
22.3.2 Advocates
In South African common law, there are some who hold the view that
advocates are not liable for an error, lack of expertise or mistake of fact or
law, particularly where this concerns handling a case in court.50 This
immunity from liability is rooted in the policy consideration that it is not
in the interests of the administration of justice that a court should have to
conduct what effectively amounts to a retrial of a case that has been
heard in another court to determine whether the alleged error or lack of
expertise was negligent, and the cause of harm to the client. This also
used to be the approach to liability of barristers in English law, but the
position has changed.51
There is no authoritative South African case that deals generally with
the liability of advocates for negligence. However, courts are likely to
impose the same standard of knowledge, competence, skill and care that
is expected of other legal professionals, rather than maintain a historical
immunity based on a questionable distinction between handling a case
in court and other professional work.
When deciding the liability of legal practitioners, courts take into
account all the circumstances, including the nature of the work (advisory,
or the conduct of litigation), and the nature of the alleged failing (error of
judgement, or lack of required knowledge or care).

Professionals involved in the construction industry, such as engineers,
builders and architects, must, like other professionals, exercise
reasonable care in their work. They also have to measure up to the
standard of competence that one can reasonably expect of a person
professing such knowledge and skill. Liability could be based on the
contractual relationship with clients or on breach of a duty in delict to
third parties whose legally protected interests have been harmed by the
performance of professional services.
Lillicrap, Wassenaar and Partners v Pilkington Bros (SA) (Pty) Ltd52
This case dealt with an engineer and client relationship in which professional negligence caused pure
economic loss. The testing of the ground structure prior to building a glass factory was inadequate. The
result was that the levels inside the factory were defective, and extensive repair work had to be done. The
engineering firm was initially in a direct contractual relationship with the client, but later became a
subcontractor. The Supreme Court of Appeal held that the client had a contractual remedy and no
concurrent action in delict. A key consideration was that this case did not involve an infringement of
rights of property or person. It only involved the infringement of a contractual duty to perform specific
professional work with due diligence and care. There was no independent duty for the purposes of
delictual liability. In the view of most commentators, this judgment implies that only a contractual remedy
is available where negligent performance of a contractual duty causes pure economic loss (as opposed
to physical damage or personal injury), notably in the relationship between a client and a professional
person.53
Tsimatakopoulos v Hemingway, Isaacs & Coetzee CC54

In this case, the Court held that a firm of engineers was liable in delict for negligently designing a
defective wall. The engineers were contracted by their client to design a retaining wall on the client’s
property, and had negligently designed the wall with inadequate strength, so that it leaned over. The
client had sold the property to the plaintiff, who had to incur the cost of restoring the stability of the wall.
The principle on which the judgment was based was the same as those accepted in cases that involve
pure economic loss, namely that a party to a contract can have a legal duty and be liable in delict to a
person who is not a party to the contract. Recognising such a legal duty is:
… the outcome of a value judgment that the plaintiff’s invaded interest is deemed worthy of
legal protection against negligent interference by conduct of the kind alleged against the
defendant.55
There was no contractual connection between the plaintiff and the engineers. When considering the
question whether the plaintiff had an independent claim in delict against the engineers, it was irrelevant
that the original client might have had a claim in contract against the engineers, and that the plaintiff
might have been able to take cession of such a claim. The real issue was how far the engineers’ legal
duty should be extended in any given situation. A professional engineer should have foreseen that the
wall would not remain stable and that the property on which it was built could be sold to another person,
and that this negligence was likely to cause harm to the subsequent owner.
SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd56

This case involved a delictual action for damages by the owner of a hotel against the building contractor
responsible for building the hotel to the architect’s design. The contractor built a fireplace for an open fire
in the lobby of the hotel as designed by the architect. However, the design created a fire hazard and did
not comply with the installation instructions of the Jetmaster firebox built into the fireplace. In due
course, a fire broke out because of the faulty design of the fireplace, and the hotel was extensively
damaged. Although the building contractor had built the fireplace according to the architect’s design (as
required in the building contract), he had failed to comply with the installation instructions of the
Jetmaster firebox as the building contract also required. It was common cause that it would have been
obvious to any builder that constructing the fireplace according to the architect’s design was unsafe. The
Court held that a builder generally has a legal duty to both the owner and third parties to refrain from
building something that is obviously unsafe. The foreseeability of the harm was also a relevant
consideration in deciding whether a legal duty and wrongfulness existed. Therefore, the building
contractor had acted both wrongfully and negligently, and was liable in delict for the owner’s loss.
Although the SM Goldstein case, like the Tsimatakopoulos case, did not deal with pure economic
loss, the approach to determining whether a legal duty and wrongfulness exists corresponds to the
approach adopted by courts in cases that involve pure economic loss. The Court in this case did not
even refer to the question of concurrence of delictual and contractual actions, accepting that in cases
involving foreseeable harm, a builder has a legal duty towards the owner and third parties to build
safely, with the apparent implication that this duty arises independently from his contract with the
owner. This case also confirms that recognising delictual liability for pure economic loss within a
contractual relationship is subject to the qualification that the contracting party who elects to sue in
delict should not be able to circumvent contractual immunities, waivers, or other limitations of liability to
which he agreed. The defendant can invoke such clauses against a delictual claim by way of a defence,
as happened in this case. However, on the facts of this case, and on the wording of the building
contract, the Court decided that the builder could not rely on the liability exemption clause in the
contract.
Pienaar v Brown57
The test for liability of a building contractor as employer of an independent subcontractor, for harm
negligently caused by the subcontractor, consists of three broad questions: (1) Would a reasonable
person have foreseen the risk of danger in consequence of the work he employed the contractor to
perform? If so, (2) would a reasonable person have taken steps to guard against the danger? If so, (3)
were such steps duly taken in the case in question? The liability in these cases is personal, not vicarious,
and it is not a question of the liability of the employer being passed to the independent contractor, and
thence to any subcontractor, but a question of the respective individual liability of each of them. Only
where the answer to the first two questions is in the affirmative does a ‘legal duty arise, the failure to
comply with which can form the basis of liability’.58
On a proper reading of the National Building Regulations and Building Standards Act 103 of 1977
there is nothing to suggest that a failure to comply with its requirement to submit plans for a building in
terms of section 4(1), read with section 7, would necessarily lead to liability for damage caused by
collapse of part of the building work. There must be a causal link between the failure to submit the plans
and the collapse of the building work.59
When deciding the liability of professionals in the construction industry,

courts take into account all the circumstances, including the nature of
the work and the nature of the alleged failing (error of judgement, or lack
of required knowledge or care).

The liability of accountants and auditors to their clients is primarily
contractual and is governed by the same principles that apply to
attorneys, engineers and other professionals. The Supreme Court of
Appeal extensively considered the duties of auditors towards their clients
in Thoroughbred Breeders’ Association of South Africa v Price
Waterhouse.60 In this case, the Court held that contributory negligence, in
terms of the Apportionment of Damages Act 34 of 1956, does not apply in
the context of the contractual relationship between auditor and client.
Legislation governs the delictual liability of accountants and auditors
to third parties (non-clients), who rely on a negligently formulated
opinion, certificate, report or statement. This legislation essentially
recognises an auditor’s or accountant’s duty to a third party if the auditor
knew or could reasonably be expected to know that the third party would
act on the information furnished to him or her.61
A potential investor or lender to a company should be entitled to rely
on the company’s audited financial statements, that is, the statements
should give a correct and clear picture of the company’s financial
position. In the event of incorrect or misleading statements, an investor
or lender may claim delictual damages from the auditor. Section 46(2)
and (3) of the Auditing Profession Act 26 of 2005 describes when an
auditor will be liable for an opinion, report or statement:
(2) In respect of any opinion expressed or report or statement made by a registered
auditor in the ordinary course of duties the registered auditor does not incur any
liability to a client or any third party, unless it is proved that the opinion was
expressed, or the report or statement made, maliciously, fraudulently or pursuant
to a negligent performance of the registered auditor’s duties.
(3) Despite subsection (2), a registered auditor incurs liability to third parties who have
relied on an opinion, report or statement of that registered auditor for financial
loss suffered as a result of having relied thereon, only if it is proved that the
opinion was expressed, or the report or statement was made, pursuant to a
negligent performance of the registered auditor’s duties and the registered
auditor–
(a) knew, or could in the particular circumstances reasonably have been expected to
know, at the time when the negligence occurred in the performance of the duties
pursuant to which the opinion was expressed or the report or statement was
made–
(i) that the opinion, report or statement would be used by a client to induce the
third party to act or refrain from acting in some way or to enter into the
specific transaction into which the third party entered, or any other
transaction of a similar nature, with the client or any other person; or
(ii) that the third party would rely on the opinion, report or statement for the
purpose of acting or refraining from acting in some way or of entering into
the specific transaction into which the third party entered, or any other
transaction of a similar nature, with the client or any other person; or
(b) in any way represented, at any time after the opinion was expressed or the report or
statement was made, to the third party that the opinion, report or statement was
correct, while at that time the registered auditor knew or could in the particular
circumstances reasonably have been expected to know that the third party would
rely on that representation for the purpose of acting or refraining from acting in
some way or of entering into the specific transaction into which the third party
entered, or any other transaction of a similar nature, with the client or any other
person.
In terms of these provisions, an auditor will not incur liability to a client

or any third party in respect of a report or opinion expressed by the
auditor unless it was given maliciously, fraudulently or pursuant to
negligent performance of the auditor’s duties. Section 46(3) provides that
if the report was made negligently, the auditor will be liable to a third
party who relied on it. However, this is only if the third party can prove
that the auditor knew or could, in the particular circumstances,
reasonably have been expected to know that the client would use the
opinion or report to induce the third party to act or refrain from acting, or
that the third party would rely on the opinion or report.
Arguably, every auditor knows or ought reasonably to foresee that
the annual financial statements of a company are widely used by
investors and lenders for investment and business decisions. Also, one
would reasonably expect an auditor to know that the client or the third
party would act as contemplated in section 46(3)(a)(ii). However, for the
purposes of this section, the requisite knowledge or foreseeability
depends on the circumstances of each case.
There are different frameworks for auditing in South Africa. In terms
of the Companies Act 71 of 2008 62 the auditors have a duty to ensure that
the presentation of a company’s financial position in the financial
statements complies with the financial reporting standards applicable to
the type of company. If an auditor does not ensure compliance with such
practice, this constitutes a breach of the auditor’s statutory duties and is
likely to amount to negligence. The SA Institute of Chartered Accountants
(SAICA), in conjunction with the Accounting Practices Board, also
produces frameworks for auditing. A company must disclose which
auditing framework it has adopted. An auditor’s failure to ensure that the
financial statements conform to the applicable standards is a breach of
his or her statutory duty in terms of the Companies Act and is likely to
amount to negligence.
International Shipping Co (Pty) Ltd v Bentley63
In 1977, a financing company made facilities available to a group of companies. Thereafter, Bentley was
appointed auditor to the group. From 1979 he issued unqualified financial statements that were to some
extent false or misleading. The company alleged that it had relied on the statements to review its
facilities to the group, and when deciding whether to increase the facilities. The group was liquidated in
1981 and the financing company suffered a loss. The Court found that Bentley’s conduct was wrongful
and blameworthy, and a conditio sine qua non of the company’s loss. However, a number of other
factors had intervened and the Court regarded the ultimate loss as being too remote for Bentley to be
held liable.
NPC Electronics Ltd v S Taitz Kaplan & Co64

The plaintiff had relied on unqualified reports by the defendant firm of accountants and auditors on the
financial statements of certain companies, prior to selling and delivering goods to these companies and
making additional credit facilities available to them. The companies were subsequently liquidated. There
was no contractual or other relationship between the parties. The Court held that the auditor in this case
did not conduct a proper auditing procedure and failed to carry out its duties in terms of the Companies
Act. However, the defendant did not know, and could not reasonably be expected to foresee, that the
plaintiff would rely on the reports for this purpose. In the circumstances, the defendant did not have a
legal duty to prevent the plaintiff’s loss, and there was consequently no wrongfulness. Even if there were
such a duty and wrongfulness, the plaintiff did not prove that the defendant had factually or legally
caused its loss. The loss suffered by a third party reading financial statements and using them in a
manner unknown to the auditors should not be the auditors’ responsibility. Imposing liability in this case
would place an unreasonable burden on the auditors.
Axiam Holdings Ltd v Deloitte & Touche65

In this case, the plaintiff alleged that the auditors had owed a duty to third parties to warn them that
certain financial statements and their audit opinion were incorrect. Alternatively, it was their duty to warn
them that they had not conducted the audit properly, and that they should not rely on the statements
and the audit opinion. The plaintiff alleged that their failure in this regard was negligent and constituted a
misrepresentation within the meaning of section 20(9)(b)(ii) of the Public Accountants’ and Auditors’ Act
80 of 1991 (which applied at that time). The auditors raised an exception on the basis that the
allegations in the pleadings did not justify the conclusion that the auditors owed a legal duty to the third
parties. Navsa JA said the following on liability of auditors for negligent misstatement:
It is true that decisions by courts on whether to grant or withhold a remedy for negligent
misstatement causing economic loss are made conscious of the importance of keeping liability
within reasonable bounds. It is universally accepted in common law countries that auditors
ought not to bear liability simply because it might be foreseen in general terms that audit
reports and financial statements are frequently used in commercial transactions involving the
party for whom the audit was conducted (and audit reports completed) and third parties. In
general, auditors have no duty to third parties with whom there is no relationship or where the
factors set out in the Standard Chartered Bank case are absent.66
The majority of the Court held that in this case they could not decide on exception about the
wrongfulness of the harm caused by omission to speak. The matter had to go to trial. It was premature to
decide on exception whether a legal duty existed.
Stols v Garlicke & Bousfield Inc67

S sued GB, a firm of attorneys, on a contract of deposit. In terms of this contract, S had deposited
money with GB, and this money was meant to be repaid with interest on a specified date. GB had been
represented by C, an executive consultant who the firm had employed. C did not deposit S’s payments
into GB’s trust account, but instead paid the money into an account belonging to PKF, a firm of chartered
accountants. When the money was not repaid on the specified date, S sued GB for payment. GB denied
any knowledge of the investment scheme, and claimed C had not been authorised to represent the firm
in concluding any contracts of this nature. GB also filed a third-party notice seeking to hold PKF liable for
the loss, alleging PKF was aware that GB had employed C as an executive consultant, and PKF therefore
had a legal duty to alert GB to the fact that C had been using its accounts for an investment scheme in
an irregular manner. PKF excepted to the third-party notice, in part on the basis that the notice did not
contain the averments necessary to sustain an action for damages in delict based on a legal duty to
speak.
The Court held that GB’s claim against PKF was delictual, based on an omission causing pure
economic loss.68 The legal duty to speak on PKF which GB claimed to have existed did not fit into a
recognised category, and the law is always cautious in extending liability for pure economic loss to new
situations.69 However, the Court held that the averments in the third-party notice indicated prima facie
that a legal duty to speak existed; or, at the very least, it was not possible to decide whether or not such
a duty existed on the pleadings alone.70 The Court considered the following factors to have been
indicative of a legal duty on PKF to speak in the circumstances:
• Although no formal legal relationship came into being between GB and PKF, PKF believed itself to be
providing facilities for GB in dealings between GB and GB’s clients.71
• There had been prior conduct on the part of PKF, in that it had been involved in the authorisation of
payments from the accounts under its control.72
• PKF knew, or ought to have known, that the accounts were conducted irregularly, as the deposits were
not paid into GB’s trust account.73
• PKF knew that C had refused to use GB’s trust banking account, and C’s use of accounts held by others
would probably have led PKF to conclude that C wanted to avoid trust-account standards and the
scrutiny which accompanies the exclusive use of GB’s trust account.74
• Even if PKF did not draw these inferences, it knew that GB’s trust account should have been used, and
that C had deliberately avoided doing this.75
• PKF probably knew that firms of attorneys would not function in the way C had conducted the
transactions, and evidence may show that this would have raised a flag in PKF’s mind that C was on a
frolic of his own and that GB was unaware of how C was functioning.76
Having viewed the above factors objectively, the Court concluded that PKF had a legal duty to warn GB
about C’s conduct:77
In the light of these factors, can it then be said that public or legal policy considerations require
that the failure to speak on the part of the third party should be actionable? Put another way,
do the legal convictions of the community demand that a legal duty be imposed on the third
party to speak? It should be borne in mind that no one factor is decisive. However, there are
cumulative aspects averred which weigh on the overall outcome: prior conduct in terms of which
the danger to the defendant was caused; the belief of contractual proximity with the defendant
on the part of the third party; the knowledge that the accounts were being operated in a way
which circumvented the checks and balances normative for attorneys’ trust accounts; and
society’s recognition of the need for increased vigilance to ensure that people who purport to
open and operate accounts on behalf of another are authorised to do so. In the light of these
and the other factors dealt with above, both questions must be answered in the affirmative. I
conceive that it would be contrary to public policy to exonerate the third party from speaking
when it allowed its facilities to be used in what it believed to be an operation run by the
defendant which was clearly being conducted in a manner inimical to the strictures of the legal
profession of which the defendant is a part and where the defendant was placed at risk. Viewed
objectively, society will take account of these factors and require such a legal duty to be
imposed.
When deciding on the liability of accountants and auditors, courts

consider all the circumstances, including the nature of the work
(advisory, or auditing) and the nature of the alleged failing (error of
judgement, or lack of required knowledge or care).
22.6 Banks
Banking is an occupation that demands special knowledge and skill, and
bankers must exercise reasonable care and measure up to the standard of
competence that one can reasonably expect of a person professing
knowledge and skill in banking. The relationship between bank and
client is contractual, with express or implied terms, or both, in respect of
the banking service contracted for. Also, the bank may have a legal duty
to provide the client with information, from which arises the potential
liability for misinformation. Liability could be based on the contractual
relationship with clients or on a duty in delict towards third parties
harmed by the performance of banking services to clients.
Banking encompasses a wide variety of activities, which include
assisting clients in commercial transactions, dealing with collecting
cheques, conducting foreign currency transactions, reporting on the
creditworthiness of clients, reporting on the state of accounts, dealing
with insurance matters, and offering investment advice. The following
cases illustrate the potential liability of banks in these areas.
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd78
The Court held that a collecting banker can be liable under the extended lex Aquilia for negligence to the
true owner of a cheque. In this case, the owner was specified as the payee and the cheque was crossed
and marked ‘not negotiable’, but the cheque was nevertheless collected for and the proceeds credited to
another person. A delictual action for damages would be available to a true owner of a cheque who can
establish that:
• The collecting banker received payment of the cheque on behalf of someone who was not entitled to it
• In receiving such payment, the collecting banker acted (a) negligently and (b) unlawfully
• The conduct of the collecting banker caused the true owner to sustain loss
• The damages claimed represent proper compensation for such loss.
When deciding on the principle in the Indac case that a collecting bank can be liable to the true owner of
a cheque for loss suffered if the cheque was paid to someone else who was not entitled to it, the Court
made a value judgment and referred to a number of policy considerations relevant to the existence of a
bank’s legal duty towards its client. The objection of limitless or indeterminate liability does not arise in
this case, because the extent of the potential loss is finite (the face value of the cheque) and the
potential claimants are easily predictable and are limited to the drawer or the payee (or someone holding
title under him). Also, each potential claim will arise separately from any other and will be related to a
specific act on the part of the collecting banker. The collecting banker provides a professional service to
collect cheques payable to his or her client, and should be aware that failure to take reasonable care
may result in loss to the true owner of the cheque. The collecting banker, by virtue of his or her calling,
possesses or professes to possess special skill and competence in his field and can, or ought to
appreciate the significance of instructions on a cheque. The bank is thus able to reduce, if not avoid, loss
to the true owner by exercising reasonable care when collecting cheques.
If there were no legal duty to take reasonable care, a collecting banker would not have to examine, or
even look at the cheque to ascertain to whom it is payable. The crossing of a cheque would be of little
consequence if there were no legal duty on the part of the collecting banker. The collecting banker is the
only person who is in a position to know whether a cheque is being collected on behalf of a person who
is entitled to receive payment. The drawee bank has to rely on the collecting banker to ascertain this
fact. The collecting bank is fully aware of this position and therefore has a duty to ensure that it only
presents a cheque for payment on behalf of a client who is entitled to receive payment of the cheque.
Whereas the drawer or true owner of a cheque cannot protect himself or herself against loss if the
collecting banker negligently collects payment on behalf of the wrong person, the collecting banker does
have a right of recovery. The bank would have a claim for reimbursement against a customer who was
wrongly credited with the proceeds of the cheque. If that customer is unable to pay, it would be more
appropriate to allocate the loss to the banker who chose to accept the customer’s business, than to the
innocent true owner of the cheque. Furthermore, a collecting bank could relatively inexpensively protect
itself against such loss by obtaining insurance cover.
Siman & Co (Pty) Ltd v Barclays National Bank Ltd79

The plaintiff had approached the defendant bank on a Friday afternoon to procure immediate forward
cover for its foreign currency commitments incurred for overseas purchases, as it had heard that the
Rand unit of currency would probably be devalued over that weekend. The defendant bank informed the
plaintiff that it was then too late for the cover to be procured that afternoon and that it could only be
procured on the following Monday. The Rand was in fact devalued during that weekend and the plaintiff,
when subsequently paying for its foreign commitments, had to pay much more in Rands than it would
have cost it if it had procured the immediate forward cover on the Friday afternoon. The statement by the
bank official on that Friday, that it was too late to obtain forward cover that day, was in fact incorrect.
Consequently, the plaintiff instituted action against the bank for damages in respect of the excess
amount that it had to pay. The plaintiff alleged the following: that it had been misled by the defendant’s
statement that it was too late to procure the required cover that Friday afternoon; that such statement
was false because the cover was still procurable; and that the statement had been made negligently and
had caused the plaintiff loss. The Appellate Division held that the action must fail, deciding that the bank
official’s conduct involved two relevant acts:
• A firm decision or refusal, taken and persisted in, not to procure any forward cover for the plaintiff that
afternoon
• A misstatement relating to the official’s reason for the refusal, that it was too late to do anything that
afternoon.
The Court had to distinguish between the two acts, because the plaintiff had for the purposes of his
action selected and relied only on the second act, on which he had founded his cause of action. The
plaintiff had not relied on the first act, the refusal to obtain the forward cover, at any stage of the
proceedings. Based on the facts, the plaintiff’s loss was due to the defendant’s refusal to procure the
cover that afternoon, when there was still time to do so. The defendant’s reasons for refusing, wrong
though they were, were then of no consequence. (In a dissenting minority judgment, Corbett JA found
that the bank official, acting in the course and scope of his employment, made a misstatement to the
client, and in doing so acted negligently and wrongfully, and that the misstatement had caused the
client’s loss.)
Durr v ABSA Bank Ltd80
The appellant-plaintiff sought to recover from the respondent-defendant (the bank) damages for the loss
of money that she and other members of her family had invested in certain companies that went
insolvent shortly after recommendation by the regional manager of the bank’s broking division. The
manager had described the investments as ‘safe’, ‘very solid’, ‘very secure’, and ‘very sound’, and had
strongly recommended them. The plaintiff alleged that she had suffered loss as a result of the manager’s
negligent failure to exercise the degree of care and skill that she was entitled to expect from someone in
his position, and for which failure the bank should be held vicariously liable. Her evidence was that she
would never have thought of investing in the companies were it not for the advice of the manager, and
that she believed the bank had financial experts who would examine prospective investments. The
companies were represented in publicity material as having a sound financial base and brokers were
offered commission at a rate substantially higher than that for comparable investments. Brokers were
invited to marketing conferences, and were given glossy brochures and dossiers that contained laudatory
press cuttings. No prospectuses or financial statements were provided. The companies concerned did not
have the audited financial statements or prospectuses required by law, and did not make any financial
statements available to brokers. The manager had obtained his information about the investments from
the directors of the companies themselves and from attending their marketing conferences. The
manager’s real skills were confined to advising clients on planning their affairs with regard to income tax,
estate duty, and investments such as endowments, retirement annuities, unit trusts, fixed deposits, life
assurance and the like. He at no stage sought information or advice about investing in the companies
from people who were better placed to evaluate them.
The Court held that two issues arose: namely, in general, what was the level of skill and knowledge
required, and whether the standard against which that skill and knowledge should be judged was that of
an ordinary or average broker or that of a regional manager of the brokering division of a bank professing
investment skill and offering expert investment advice. For the first issue, the Court held that:
in deciding what is reasonable the Court will have regard to the general level of skill and
diligence possessed and exercised at the time by the members of the branch of the profession
to which the practitioner belongs.
But that:
the decision of what is reasonable under the circumstances is for the Court; it will pay high
regard to the views of the profession, but it is not bound to adopt them.
For the second issue, the Court held that, as a matter of law set in the factual context of the case, the
relevant standard in this instance was not that of the average or typical broker of modest
accomplishments, because accepting this standard would allow a definition chosen by a witness for his
own purposes to dictate the result, making the enquiry of what was required of a particular type of broker
pointless. The appropriate standard was that of the regional manager of the brokering division of a
financial institution professing investment skills and offering expert investment advice. As to the
manager’s negligence, the basic rule was as follows:
[L]ack of skill or knowledge is not per se negligent. It is, however, negligent to engage
voluntarily in any potentially dangerous activity unless one has the skill and knowledge usually
associated with the proper discharge of the duties connected with such an activity.
In bringing the investments to the plaintiff’s attention and assuring her that he
had investigated it and strongly recommended it, he had advised the plaintiff
to embark upon what was, in effect, the potentially dangerous activity of
money lending. The managers had a duty to make enquiries about the
companies, and the bank, given that it had held itself out as an expert
investment advisor, could not argue that it had not been under a duty to
investigate the creditworthiness of the companies. The plaintiff had been
entitled to see the manager as a man skilled to advise her on such matters and
as one backed by a major financial institution, not as someone devoid of
skills in assessing creditworthiness and unready to seek help. The manager
had the duty to investigate the creditworthiness of the companies and should
either have forewarned the appellant and her family where his skills ended, to
allow them to appreciate the dangers of accepting his advice, or he should not
have recommended the investment. The manager had, therefore, not
performed his duties adequately and had negligently caused the plaintiff’s
loss. The bank was vicariously liable.
As to the basis of liability imposed, Schutz JA held:81
The claim pleaded relied upon contract, alternatively delict, but as the case was presented as
one in delict, and as nothing turns upon the precise cause of action, I shall treat it as such.
BOE Bank Ltd v Ries82

The Supreme Court of Appeal refused to recognise a legal duty on the part of an insurance broker who
worked for a bank towards an intended beneficiary under a life insurance policy. The broker had failed to
ensure that the policy holder signed the necessary form to nominate the beneficiary. The Court took into
account that the broker’s conduct did not amount to assuming any professional responsibility regarding
signing the form, because he became involved in the process in passing, by doing a favour for a
colleague. In effect, he was acting as a messenger, without undertaking any professional responsibility.
Although it was foreseeable that the intended beneficiary would obtain no benefit from the policy if the
holder failed to sign the necessary nomination form before his death, foreseeability of loss was not in
itself enough to indicate a legal duty.
When deciding the liability of banks, courts consider all the

circumstances, including the nature of the services rendered to the client
and the nature of the alleged failing (error of judgement, or lack of
required knowledge or care).
1 Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 570.
2 Pretorius v McCallum 2002 (2) SA 423 (C); BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA).
3 Van Wyk v Lewis 1924 AD 438; Blyth v Van den Heever 1980 (1) SA 191 (A) at 221; Castell v
De Greeff 1993 (3) SA 501 (C) at 509; Broude v McIntosh 1998 (3) SA 60 (SCA); Mukheiber v
Raath 1999 (3) SA 1065 (SCA).
4 Bruce NO v Berman 1963 (3) SA 21 (T); Honey & Blanckenberg v Law 1966 (2) SA 43 (R);
Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A); Slomowitz v Kok 1983 (1) SA 130 (A). As
to the duty of a lawyer towards an opponent in litigation, see Barlow Rand Ltd t/a Barlow
Noordelike Masjinerie Mpy v Lebos 1985 (4) SA 341 (T); Pretorius v McCallum 2002 (2) SA
423 (C); and see, generally, Midgley Lawyers Professional Liability (1992) at 120–132.
5 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A); Thoroughbred Breeders’
Association v Price Waterhouse 2001 (4) SA 551 (SCA); Axiam Holdings Ltd v Deloitte &
Touche 2006 (1) SA 237 (SCA).
6 Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A); BOE Bank Ltd v Ries
2002 (2) SA 39 (SCA); Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA).
7 Durr v ABSA Bank Ltd 1997 (3) SA 448 (SCA); Pinshaw v Nexus Securities (Pty) Ltd 2002 (2)
SA 510 (C).
8 Perlman v Zoutendyk 1934 CPD 151.
9 EG Electric Co (Pty) Ltd v Franklin 1979 (2) SA 702 (E).
10 Brown v Hunt 1953 (2) SA 540 (A).
11 Wessels v Bouwer 1971 (1) PH J9 (NC) (involving the use of a tractor-driven hammer-mill to
crush maize cobs).
12 Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C); Simon’s Town Municipality v Dews
1993 (1) SA 191 (A).
13 R v Du Toit 1947 (3) SA 141 (A); Beswick v Crews 1965 (2) SA 690 (A) at 705; Griffiths v
Netherlands Insurance Co of SA Ltd 1976 (4) SA 691 (A) at 695; Butt v Van den Camp 1982
(3) SA 819 (A) at 826.
14 1997 (3) SA 448 (SCA) at 462 F–G.
15 Van Wyk v Lewis 1924 AD 438 at 444. See also Blyth v Van den Heever 1980 (1) SA 191 (A) at
221; Randaree v W H Dixon & Associates 1983 (2) SA 1 (A) at 4; Castell v De Greeff1993 (3)
SA 501 (C) at 509.
16 Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A) at 143.
17 1924 AD 438 at 444.
18 1924 AD 438 at 457.
19 Colman v Dunbar 1933 AD 141 at 157; Van Heerden v SA Pulp & Paper Industries Ltd 1946
AD 382.
20 See Mitchell v Dixon 1914 AD 519 at 525; Van Wyk v Lewis 1924 AD 438; Blyth v Van den
Heever 1980 (1) SA 191 (A) at 221; Castell v De Greeff 1993 (3) SA 501 (C) at 509; Broude v
McIntosh 1998 (3) SA 60 (SCA); Mukheiber v Raath 1999 (3) SA 1065 (SCA).
22 1924 AD 438 at 456.
23 1957 (3) SA 710 (T) at 723H.
24 1976 (2) SA 891 (T) at 894.
25 See, generally, Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T) at 719; Santam
Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) at 781; Castell v De Greeff1994 (4) SA 408 (C)
at 425.
26 1994 (4) SA 408 (C).
27 At 426G.
28 1998 (3) SA 60 (SCA).
29 Administrator, Natal v Edouard 1990 (3) SA 581 (A).
30 In Premier, Kwazulu-Natal v Sonny 2011 (3) SA 424 (SCA) a doctor failed to inform a
pregnant patient of the meaning of an ultrasound scan which indicated possible Down’s
syndrome, or of the importance of the patient returning for a second scan. This, coupled
with a nurse’s later misdirection, resulted in the patient not returning for the scan, and not
having further tests to diagnose the syndrome within the time allowed to terminate the
pregnancy. The child was later born with Down’s syndrome, and the patient and her
husband sued successfully for the costs of maintaining their daughter.
31 2008 (6) SA 310 (SCA).
32 2015 (2) SA 193 (CC).
33 1999 (3) SA 1065 (SCA).
34 2016 (1) SA 325 (CC).
35 Paras 51–68. Section 27(3) of the Constitution provides that no one may be refused
emergency medical treatment.
36 Para 68.
37 See, generally, Midgley (1992) at 120–132.
38 Honey & Blanckenberg v Law 1966 (2) SA 43 (R); Bruce NO v Berman 1963 (3) SA 21 (T) at
23; Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A); Groom v Crocker [1938] 2 All ER 394
(CA) at 401–402.
39 Honey & Blanckenberg v Law 1966 (2) SA 43 (R).
40 Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A) at 143.
41 Lavery & Co Ltd v Jungheinrich 1931 AD 156 at 169; Whitfield v Phillips 1957 (3) SA 318 (A)
at 325; Saif Ali v Sydney Mitchell & Co & P [1978] 3 All ER 1033 (HL); Mlenzana v Goodrick &
Franklin Inc 2012 (2) SA 433 (FB).
42 Rampal (Pty) Ltd v Brett Wills and Partners 1981 (4) SA 360 (D).
43 Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A); and see also Bouwer v Harding 1997 (4)
SA 1023 (SE), where the liability of an attorney to a client was the subject of an action for
breach of contract, and the attorney was found to be in breach of his contractual duties by
negligently failing to advise the client correctly on the tax implications of structuring a sale
of property in a particular manner.
44 See Pretorius v McCallum 2002 (2) SA 423 (C).
45 Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Mpy v Lebos 1985 (4) SA 341 (T).
46 2013 (1) SA 12 (GNP).
47 2013 (2) SA 311 (SCA).
48 Paras 27 and 30–31.
49 Paras 32–33, 35–36 and 38.
50 See, generally, Midgley (1992) at 1ff.
51 See Rondel v Worsley [1966] 3 All ER 657 (CA) and Rondel v Worsley [1967] 3 All ER 993
(HL); Saif Ali v Sydney Mitchell & Co [1978] 3 All ER 1033 (HL).
52 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A).
53 Midgley ‘The nature of the inquiry into concurrence of actions’ (1990) 107(4) SALJ at 621;
Van Aswegen ‘Die Toets vir die Bestaan van ’n “Onafhanklike Delik” in die Geval van
Kontrakbreuk’ (1992) 55 THRHR 271 at 273–274.
54 1993 (4) SA 428 (C).
55 At 431H–I.
56 2000 (4) SA 1019 (SCA).
57 2010 (6) SA 365 (SCA).
58 Para 11 at 368H–369B.
59 Para 16 at 370D–E, read with para 7 at 367H–I.
60 2001 (4) SA 551 (SCA).
61 Section 46 of the Auditing Profession Act 26 of 2005.
62 Section 84(4)(b).
63 1990 (1) SA 680 (A) at 700.
64 [1998] 1 All SA 390 (W).
65 2006 (1) SA 237 (SCA).
66 Para 18.
67 2012 (4) SA 415 (KZP).
68 Para 18.
69 Para 17.
70 Para 30.
71 Para 18.
72 Para 19.
73 Para 20.
74 Para 21.
75 Para 22.
76 Para 23.
77 Para 29.
78 1992 (1) SA 783 (A) at 797–801.
79 1984 (2) SA 888 (A).
80 1997 (3) SA 448 (SCA).
81 At 453.
82 2002 (2) SA 39 (SCA) paras 13–26.
Chapter 23
Injury or death of another person
23.6 Claims by heirs or family members for funeral expenses
23.8 Claims based on death of support provider (action of dependants)

23.8.1 History
23.8.3 Who can sue?
23.8.4 Damages
23.9 Claims for loss of support based on injury to the support provider
There is no general right to recover damages for patrimonial harm
suffered as a result of the injury or death of another person. Here one is
concerned with pure economic harm, and causing such harm is not
prima facie wrongful. However, there are exceptional circumstances
under which the injury or death of another person may give rise to
delictual liability. These exceptions are cases in which the harm derives
from a recognised duty of support, mostly based on a family relationship.

A person with a duty of support may claim damages for patrimonial harm
suffered as a result of the injury of a dependant, such as a spouse1 or
child.2 The harm may consist of actual medical expenses, prospective
future medical expenses, or the costs of increased duties of
maintenance.3 Where the spouse or child is partly responsible for the
injury or death, he or she is treated as a joint wrongdoer under sections
2(1A) and 2(1B) of the Apportionment of Damages Act 34 of 1956.

In Roman-Dutch law parents had an action for loss of income suffered as
a result of injury to a child.4 The master of a domestic servant was also
afforded an action for harm that resulted from loss of services due to the
injury of a servant.5 The modern relationship between an employer and
domestic worker is now completely different. The services of domestic
workers are no longer regarded as contributions in kind to the household
of their employer. Therefore, employers cannot recover damages for pure
economic harm suffered as a result of injury to employees, domestic or
otherwise.6 Similarly, the common-law action for loss of services caused
by the injury of a domestic servant is no longer recognised.7

As discussed in Chapter 17, there is no general claim in South African law
for pure economic harm suffered as a result of negligent interference with
contractual relations, or what is sometimes called ‘contractual relational
economic loss’. 8 Courts do not recognise claims for damages by those
who suffer harm as a result of the death or injury of another person solely
because of a contractual relationship with the injured or deceased
person. In Union Government v Ocean Accident & Guarantee
Corporation Ltd 9 the Court declined to expand Aquilian liability beyond
the historical scope of the action of dependants, for policy reasons.
Schreiner JA pointed out the danger of indeterminate and unlimited
liability inherent in expanding this action. He referred to an
‘unmanageable situation’ and ‘absurdities’ that could arise from
affording an action to, for example, property owners, sub-contractors,
and employees who were in a contractual relationship with a building
contractor, for losses suffered if a third party causes the injury or death of
the building contractor.10

Heirs and legatees have no claim for damages based on the possibility of
a reduced inheritance caused by the premature death of the testator. The
heirs and legatees may inherit less than they would have done had the
testator lived longer, but only if the value of the estate would have grown
on account of the testator’s earning capacity. However, the future value
of the estate is uncertain. For policy reasons, the law does not recognise
that the wrongdoer who caused the death of the testator owes a duty to
the heirs and legatees, because their loss, if any, is indeterminate and
speculative.11
PAUSE FOR Reduced inheritance

Why is this situation different from that of a ‘disappointed beneficiary’, who
REFLECTION
obtains no benefit from a will, because the testator’s legal adviser had
negligently failed to ensure that the will was properly signed?12
23.6 Claims by heirs or family members for funeral

expenses
Heirs or immediate family members who have incurred funeral expenses
have an action (actio funeraria) to recover reasonable funeral expenses
from the wrongdoer who had caused the death. The action is based on
the duty to bury or cremate the deceased, and includes, for example,
reasonable costs of burial or cremation, transport and a tombstone.13 The
action is anomalous in the sense that these costs would eventually have
been incurred in any event, because death is inevitable. However, this
anomaly is outweighed by the fact that the wrongdoer had caused
premature death.

The executor of a deceased estate, who has incurred funeral expenses out
of the estate, has an action to recover reasonable funeral expenses from
the wrongdoer who caused the death. The executor can also recover costs
incurred by the estate for the medical treatment of the deceased prior to
death. There is no claim for the loss of income that the deceased could
have earned but for the premature death, because the earning capacity of
the deceased is not an asset in his or her own estate.14
23.8 Claims based on death of support provider (action of

dependants)
A delictual claim (actio legis Aquiliae) for the loss of support or
maintenance arising from the culpable and wrongful killing of a
breadwinner (support provider) is recognised at common law as the
dependants’ action.15 In Fortuin v Road Accident Fund 16 the Court held
that:
[In] our law ‘maintenance’ or ‘support’ not only includes food, clothing and shelter,
but also medical care and, in respect of children, education.
This is a claim for patrimonial harm in the form of pure economic harm.17
The claim by dependants for loss of support that results from the
death of a breadwinner has a long history and has been expanded in
modern law. It is a claim often regarded as being in a category of its own
(sui generis), because the claimant (the dependant) derives the claim
both from the death of the breadwinner, negligently and wrongfully
caused by the wrongdoer, and also independently, as a result of personal
harm suffered through loss of support.
23.8.1 History
The action of dependants for loss of support resulting from the death of a
breadwinner was unknown in Roman law, but was recognised in Roman-
Dutch law, probably under the influence of customary Germanic law.
Most Roman-Dutch writers did not attempt a systematic classification of
the action, but apparently considered it to be an independent delictual
action, available to any dependant who was legally entitled to, and
actually received, support from the deceased. The action of dependants
as developed in Roman-Dutch law forms part of modern South African
law and has undergone further expansion. In Paixão v Road Accident
Fund 18 the SCA stated:
Although the precise scope of the dependants’ action is unclear from the old
Roman-Dutch jurists, there is a strong suggestion that it was not confined only to
those classes of persons to whom the breadwinner had a legal obligation to support,
but was also available to those whom the deceased ‘was accustomed to support
from a sense of duty.’

The basic requirements for the action by dependants, as set out in Brooks
v Minister of Safety and Security,19 are the following:
• A legal duty of support on the part of the deceased
• A legal right to such support on the part of the dependant(s).20
The action is a direct rather than a derivative action. In this regard, Innes
CJ said the following in Jameson’s Minors v Central South African
Railways: 21
Our law, while recognising no right of action on behalf of the deceased’s estate,
gives to those dependent on him a direct claim, enforceable in their own names,
against the wrongdoer. This is a right not derived from the deceased man or his
estate, but independently conferred upon members of his family.
As discussed in Chapter 10, it follows that a waiver of action agreed to by
the deceased breadwinner before death (pactum de non petendo in
anticipando) does not bind the dependant(s).22 If the dependant or the
deceased breadwinner was partly responsible for the death, then the
breadwinner’s estate or the dependant is treated as a joint wrongdoer
under section 2(1B) of the Apportionment of Damages Act.
An essential and unusual feature of the action, as pointed out by
Corbett JA in Evins v Shield Insurance Co Ltd,23 is that one determines
fault and wrongfulness with reference to both the death of the
breadwinner and the consequent harm suffered by the dependant:
… while the defendant incurs liability because he has acted wrongfully and
negligently (or with dolus) towards the deceased and thereby caused the death of
the deceased, the claimant (the dependant) derives his right of action not through
the deceased or from his estate but from the facts that he has been injured by the
death of the deceased and that the defendant is in law responsible therefore. Only a
dependant to whom the deceased was under a legal duty to provide maintenance
and support may sue and in such action the dependant must establish actual
patrimonial loss, accrued and prospective, as a consequence of the death of the
breadwinner.
23.8.3 Who can sue?

The dependants’ claim for loss of support from the wrongful and
culpable causing of the death of a breadwinner is founded in family law.
The claim was historically restricted to cases where a duty of support
derives from a valid, civil marriage, mainly concerning spouses and their
biological children. However, courts have developed the scope of the
action and extended the group of claimants, on the basis of the
constitutional imperative of non-discrimination, to include those whose
right to support derives from a relationship which is similar to marriage,
but does not constitute a legally valid marriage between a man and a
woman. The action has been developed in the following cases:
• In Amod v Multilateral Motor Vehicle Accidents Fund (Commission
for Gender Equality Intervening) 24 the Supreme Court of Appeal had
to determine whether the appellant, married to her deceased
husband in terms of Islamic law, could institute the dependants’
action for loss of support. The Court held that the correct approach
was not to ask whether the marriage was lawful at common law, but
to establish if the deceased had a legal duty to support the appellant
during the subsistence of the marriage and, if so, whether the right of
the widow was in the circumstances a right which deserved
protection for the purposes of the dependants’ action.25 The Court
required the appellant to prove that the deceased had a legally
enforceable duty to support her, that it was a duty that arose from a
solemn marriage in accordance with the tenets of a recognised and
accepted faith, and that it was a duty that deserved recognition and
protection for the purposes of the dependants’ action.26 The
appellant was successful in proving these requirements and the
common law was developed accordingly.
• The primary question in Du Plessis v Road Accident Fund 27 was
whether the plaintiff, who had entered into a same-sex union with
the deceased, was entitled to claim damages for loss of support from
the defendant. The Supreme Court of Appeal followed the reasoning
in Amod, and set out to determine whether the deceased had a
legally enforceable duty to support the plaintiff and, if so, whether
the plaintiff’s right to such support was worthy of legal protection.28
The Court answered both questions affirmatively and extended the
dependants’ action for loss of support to include partners in a same-
sex permanent life relationship that is similar in other respects to
marriage, who had a contractual duty to support one another.29
• The action for dependants was further extended in Santam Bpk v
Henery 30 when the Supreme Court of Appeal extended the action to
divorced women who have a right to support under a court order
dealing with maintenance after dissolution of the marriage, and
whose former husbands were wrongfully and negligently killed.
• In Paixão v Road Accident Fund 31 the Supreme Court of Appeal
considered whether the common law should be developed to extend
the dependants’ action to include permanent heterosexual
relationships. The appellants were Maria Paixão, who had a
permanent heterosexual relationship with the deceased, as well as
her daughter. The deceased had been living with Maria and her
children at the time of his death, planned to marry her and executed
a joint will with her. When considering the merits of the case, the
Court noted the practical problems of proving a heterosexual life
partnership that gives rise to a legal duty of support: 32
Proving the existence of a life partnership entails more than showing that the parties cohabited
and jointly contributed to the upkeep of the common home. It entails, in my view,
demonstrating that the partnership was akin to and had similar characteristics — particularly a
reciprocal duty of support — to a marriage. Its existence would have to be proved by credible
evidence of a conjugal relationship in which the parties supported and maintained each other.
The implied inference to be drawn from these proven facts must be that the parties, in the
absence of an express agreement, agreed tacitly that their cohabitation included assuming
reciprocal commitments — ie a duty to support — to each other. Courts frequently undertake
this exercise without much difficulty …
The Court also emphasised that the extension of the dependants’ action did not apply only
to permanent heterosexual relationships where there is agreement to marry.33 Instead, it
confirmed that the primary question is whether the deceased had a legally enforceable duty
of support arising out of a relationship akin to marriage.34 Ultimately, the Court developed
the law so that the dependants’ action may also be instituted by unmarried persons in
‘heterosexual relationships who have established a contractual reciprocal duty of support’.
35
• In Engela v Road Accident Fund 36 the Court decided that the legal
duty to support also applied to the relationship between a daughter
(plaintiff) and her mother’s ex-husband, who was not her biological
father. The deceased had been divorced from the plaintiff’s mother,
but, following a reconciliation, had been in a permanent
heterosexual relationship with the plaintiff’s mother. Although the
case differed from Paixão insofar as the parties did not agree to
remarry and did not draw up a joint will, the Court decided that the
relationship between them was ‘unquestionably akin to marriage’ 37
and that there existed a tacit agreement in terms of which the
deceased assumed a legal duty to support the plaintiff as his own
child.38
• In JT v Road Accident Fund 39 the plaintiff was the mother of the
deceased, who had adopted his biological daughter (her
granddaughter) and instituted a claim for her granddaughter’s loss
of support. Despite her adoption by her grandmother, her father had
nevertheless voluntarily continued to support her. The Court
decided that the deceased’s legal duty to support his child had not
been extinguished by the adoption and his voluntary assumption of
the duty to support his daughter conferred on her an enforceable
right correlative to his duty of support.40
• In Fortuin v Road Accident Fund 41 the Court held that a foster
mother, acting on behalf of her foster child, may claim damages for
the child’s loss of support as a result of the death of her foster father.
The Court decided that the deceased owed the foster child a legally
enforceable duty of support worthy of the law’s protection.42
• Customary unions enjoy statutory protection43 and, ‘subject to
compliance with certain statutory formalities, found a claim for loss
of support arising out of the unlawful killing of a partner’. 44 In
Chitima v Road Accident Fund 45 the Court held that the surviving
partner in an unregistered customary marriage concluded in
Zimbabwe has a delictual claim in South Africa against the Road
Accident Fund for loss of support arising out of the wrongful death of
her partner in a motor vehicle accident.46
The recent development of the dependant’s action highlights the

flexibility of the remedy as well as the courts’ willingness to adapt it to
modern conditions.47 The rationale for the remedy is to afford relief to
those whom the deceased had a legal duty to support, even if the duty
arose out of natural law.
Brooks v Minister of Safety and Security48
In this case, the Supreme Court of Appeal refused to extend the action for loss of support where the
breadwinner was rendered incapable of supporting his son, because he was imprisoned for the murder of
his wife and daughter. The son alleged that the police had negligently failed to deprive his father (Brooks
sr.) of his firearms, despite their knowledge of repeated incidents where Brooks sr. had threatened his
family when drunk. In another case based on the same events, the Supreme Court of Appeal had held
that the police had negligently and wrongfully failed to prevent Brooks sr. from shooting and injuring a
neighbour.49 However, the Court refused to extend the action for loss of support to this situation, where
the breadwinner was still alive and had rendered himself unable to provide support, by committing
murder and being sentenced to lengthy imprisonment.
Consider the public policy considerations for, and against, the extension of the action in favour of the
plaintiff in this case.
Minister of Safety and Security v Madyibi50

The claimant’s husband was a sergeant in the police service. He had shot and injured the claimant and
thereafter took his own life, using a State-issued firearm that had been allocated to him as a member of
the police service, for use even when not on duty. The claimant alleged that the shooting and suicide by
the deceased were negligently and wrongfully caused by other policemen who worked with the deceased,
in that they had failed to dispossess him of his official firearm, despite having become aware, over a
protracted period of time, that he was unfit to possess a firearm. She alleged that the other policemen
should have foreseen the deceased’s harmful conduct and had a legal duty to protect her and her minor
children.
The Supreme Court of Appeal upheld the claim and held that the police, in failing to remove the
deceased’s official firearm from him in the circumstances, was negligent and had wrongfully caused the
dependants’ loss of support.
Spouses and both minor and major children can claim for loss of support
to which they had a right.51 The duty of support is shared by both parents,
and so, depending on their means,52 a child can claim damages in respect
of a mother’s death even if the father is still alive 53 provided that the child
has suffered loss.54 Spouses have a duty to support each other 55 by either
earning income or providing support services. In Union Government
(Minister of Railways & Harbours) v Warneke 56 the Court held that a
husband who had suffered patrimonial harm through losing the
assistance and services of his wife, could claim damages.
Children also have a duty to support their indigent parents.57
According to Oosthuizen v Stanley 58 a child’s duty to support a parent
arises ‘if both parents are indigent and are unable to support themselves
and if the child is able to provide support’. In some cases plaintiffs failed
because they did not succeed in proving that they were indigent. In
Anthony v Cape Town Municipality 59 the Court recognised that a child
may have a duty to support his or her parents, but held that an 11-year-
old son who had assisted his mother in hawking fish did not have a legal
duty to assist his mother, because she was not indigent.60
Indigence is a question of fact, which depends on the circumstances
of each case.61 It is not enough to prove that a person is poor, or lives on
very little.62 There has to be an extreme need, or want for the basic
necessities of life.63 What constitutes the basic necessities of life will in
turn depend on the individual parent’s station in life.64 In Van Vuuren v
Sam 65 the Appellate Division gave some examples of what it regarded as
basic necessities: food, clothing, housing and medication and care in
time of sickness.66 In considering the plaintiff’s financial position, courts
may also take into account the financial needs of his or her immediate
family members.67
In Fosi v RAF,68 where a mother instituted a claim for loss of support
following the death of her son who had provided her with financial
support, the Court sought to emphasise the particular role that
indigenous customary law plays in this context: 69
African law obligates a child who is financially able to do so to provide maintenance to his/her needy
parents. When an African (black) provides support and education to his/her son/daughter, he/she is not
only under a duty to do so on the strength of the South African legal system, but custom also obliges
such a parent. In fact, in African tradition to bring up a child is to make for oneself an investment in that
when the child becomes a grown-up and is able to participate in the labour market, that child will never
simply forget about where he came from. That child, without being told to do so, will make a
determination (taking into account the amount he/she earns, her travelling to and from work, food to
sustain himself and personal clothing, etc) of how much he must send home to the parents on a monthly
basis. This duty is inborn and the African child does not have to be told by anybody to honour that
obligation. In fact, that is the trend in almost all black families in rural areas including the so-called
urban black communities. In each family there would invariably be one or two sons or daughters who
is/are employed … The duty of a child to support a needy and deserving parent is well known in
indigenous/ customary law. It is observed by such children. There is always an expectation on the part of
a parent that his child will honour this duty.
In African law it is most certainly an actionable wrong on the part of the child who is financially able not
to provide support to his needy and deserving parents. Quite apart from it being an actionable wrong,
failure to maintain one’s parents by a child who is financially able to do so is, in black traditional law,
contrary to public policy (contra bonos mores). The parent can successfully proceed civilly against such a
child in traditional courts. It is also a morally reprehensible act to fail to maintain one’s own parents who
are in need of such maintenance. If the parents were to decide not to lodge a complaint before the tribal
court, but opt somehow to alert members of the immediate family about this predicament, such a child
would be ostracised and be looked down upon as a person who has no ubuntu. The latter scenario is
rather rare because as stated above every African child is born with this duty consciousness never to
forget his/her roots. It is unacceptable to African traditional law that the death of a child who is
employed and who is conscious of his duty to support and sustain his parent, should not entitle the
parent who has lost such support as a result of the untimely death of such a child consequent upon any
wrongful act on the part of anybody including an accident caused by a negligently driven motor vehicle
(as in the instant matter) to claim that support.
Taking into account that the plaintiff and the deceased in Fosi were
African (black) people, the Court held that the customary law applied,
and that there was therefore a legal duty on the part of the child to
maintain and support his mother.70 As a result, the Court held the
defendant liable for the plaintiff’s loss of support. A child’s duty to
support a needy parent, as recognised in Fosi, extends also to other
cultures that share African culture’s societal norms regarding the
elderly.71 In Seleka v Road Accident Fund 72 the Court followed the
reasoning in Fosi and held that under Tswana customary law children
are obliged to support their parents when they are able to earn a living – a
duty that nowadays fell on both sons and daughters.73
In Osman v Road Accident Fund,74 the Court continued this line of
development:
There can be no doubt that in certain cultures such as Muslim or Hindu cultures, amongst others, there is
a similar duty upon children to support their parents as that which Dlodlo J so eloquently related in Fosi’s
matter. In these communities the family is not restricted to the nuclear family, but rather to the extended
family … In these societies there are hardly any old-age homes or places where elderly people can retire.
This is not because these communities cannot afford to build such institutions but rather because the
societal mores scorn upon children who do not take care of their aged parents.
Grandchildren may also have a duty to support their grandparents, but

not if there are children alive who can do so.75 Likewise, grandparents
may have a duty to support their grandchildren.76
23.8.4 Damages
Dependants are entitled to be placed in the position they would have
been in had the breadwinner not died.77 Compensation is for patrimonial
harm only – the dependants cannot claim a solatium for loss of
companionship or grief. They have to establish that they have suffered
patrimonial harm, once they have taken both losses and benefits (such as
accelerated inheritance) into account. For example, a claim by a husband
based on the death of his wife will fail if the deceased earned less than the
benefits she had derived from her and her husband’s pooled income.78
Also, where the deceased’s estate generates sufficient income to support
the dependants in full, no loss is suffered.79 The Court formulated the
general principles as follows in Victor NO v Constantia Insurance Co Ltd:
80
A dependant’s claim is limited to the actual financial loss he has suffered as a result of the death of the
person upon whom he was dependent and the measure of his damages is the difference between the
dependant’s position as a result of the loss of support he has suffered and the position he could
reasonably have been expected to be in had the deceased not died … From such difference there falls to
be deducted any financial benefit accruing to the dependant in consequence of the breadwinner’s death.
Precise calculation of an award for the loss of future support is not

possible, but courts recognise that a calculation on an annuity basis is an
appropriate guide, based on assumptions indicated as reasonable by the
available evidence. The accuracy of the calculation depends on the
soundness of the assumptions, and these may vary from the strongly
probable to the speculative.81 The purpose of the award is to provide the
dependant with a lump sum that will provide a periodic income for the
period of expected dependency, at the end of which there will be no
capital left.
Loss of support that derived from income unlawfully earned by the
deceased may not be recoverable. This rule applies when the income was
derived from transactions that are void and unenforceable.82 Included in
this category are criminal activities, whether morally colourless or not,
and any other activity that is contrary to good morals or public policy.83
However, evidence that indicates a reasonable possibility that the
earning capacity could in the future have been employed lawfully, is a
sufficient basis for awarding damages to dependants, even if past
earnings were illegal.84 Arguably, a more flexible approach would be
appropriate for dependants’ claims for loss of support. In such cases, an
award should depend on what the deceased could legally have earned,
even if the deceased probably would have continued to earn income
illegally. This is because the focus should be on the dependants’ loss of a
right to support. However, courts have on occasion refused to award any
damages to dependants in such cases.85 Alternatively, courts should at
least take into account the possibility of lawful future income; a source
which was illegal in the past may become legal in future.
23.9 Claims for loss of support based on injury to the

support provider
Courts have not been consistent in their approach to claims for loss of
support based on injury to a support provider (breadwinner). In certain
cases, courts have recognised an Aquilian action for the dependants of a
married woman for patrimonial loss suffered as a result of her injury:
• A man, married in community of property, was awarded damages for
‘loss of his wife’s services in running the boarding-house’, in Abbott
v Bergman.86
• A man, married out of community of property, was awarded
damages where his wife was legally liable to contribute to the
common household and was rendered unable to do so through
injury, in Plotkin v Western Assurance Co Ltd.87
• In Erdmann v Santam Insurance Co Ltd 88 the Court expressed the
view that a husband should, in principle, be allowed to claim for the
loss of his wife’s services to the household, but decided that:
there would appear to be more merit in allowing such a claim to be brought by the spouse who suffered
the physical injuries.
However, courts have also taken the opposite view.

• In De Vaal v Messing 89 the Court refused the claim of a wife and
children for loss of support suffered as a result of an injury to the
husband. The Court stated that the injured breadwinner himself
must claim for loss of future income, and damages awarded to him
can then be used to support the dependants. The answer to the
dependant’s claim is simply that they suffered no harm.
PAUSE FOR Claiming for harm suffered

Should there not be a claim for whatever harm is suffered? This would mean that
REFLECTION
the dependants should be allowed to claim if they lost support as a result of their
support provider’s injury, provided that the wrongdoer not be held liable to pay
double compensation.
1 Union Government (Minister of Railways & Harbours) v Warneke 1911 AD 657; Abbott v
Bergman 1922 AD 53.
2 Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A).
3 Union Government (Minister of Railways & Harbours) v Warneke 1911 AD 657; Abbott v
Bergman 1922 AD 53; Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61
(A).
4 De Groot Inleidinge tot de Hollandsche Rechts-geleerdheid 2 ed III (1965) 34 (3).
5 Union Government v Ocean Accident & Guarantee Corporation Ltd 1956 (1) SA 577 (A);
Pike v Minister of Defence 1996 (3) SA 127 (CkS).
6 Union Government v Ocean Accident & Guarantee Corporation Ltd 1956 (1) SA 577 (A).
7 Pike v Minister of Defence 1996 (3) SA 127 (CkS).
8 See, generally, Hutchison ‘Relational economic loss (or interference with contractual
relations): the last hurdle’ in Scott and Visser (Eds) Developing Delict: Essays in honour of
Robert Feenstra (2001) at 133ff.
9 1956 (1) SA 577 (A) at 585B–D.
10 At 585–586.
11 Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 (3) SA 295 (A) at 304.
13 Commercial Union Assurance Co of SA Ltd v Mirkin 1989 (2) SA 584 (C); Hendricks v
President Insurance Co Ltd 1993 (3) SA 158 (C).
14 Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 (3) SA 295 (A) at 304.
15 Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA).
16 2015 (5) SA 532 (GP) para 10.
17 See Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA) para 12.
18 Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA) para 14. See
also Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening) [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA) para 7.
19 2009 (2) SA 94 (SCA).
20 In Paixão v Road Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA) para 12:
[O]nly a dependant to whom the deceased, whilst alive, owed a legally enforceable
duty to maintain and support may sue in such an action. Put differently, the
dependant must have a right which is worthy of the law’s protection to claim such
support.
21 1908 TS 575 at 583–584.
22 Jameson’s Minors v Central South African Railways 1908 TS 575.
23 1980 (2) SA 814 (A) at 837H–838B.
24 [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA).
25 Paras 19–21.
26 Para 26.
27 2003 (11) BCLR 1220 (SCA); 2004 (1) SA 359 (SCA).
28 Paras 11–26.
29 Para 37.
30 1999 (3) SA 421 (SCA) at 427–431.
31 [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA).
32 Para 29.
33 Para 39.
34 Para 39.
35 Para 40. See also Verheem v RAF 2012 (2) SA 409 (GNP).
36 2016 (1) SA 214 (GJ).
37 Paras 10–13.
38 Para 15.
39 2015 (1) SA 609 (GJ).
40 Paras 29–31.
41 2015 (5) SA 532 (GP).
42 Paras 9 and 13.
43 See section 31 of the Black Laws Amendment Act 76 of 1963 and section 2 of the Recognition
of Customary Marriages Act 120 of 1998.
44 Chitima v Road Accident Fund [2012] 2 All SA 632 (WCC) para 14.
45 [2012] 2 All SA 632 (WCC).
46 Para 32.
47 See also Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender
Equality Intervening) [1999] 4 All SA 421 (SCA); 1999 (4) SA 1319 (SCA); Paixão v Road
Accident Fund [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA).
48 2009 (2) SA 94 (SCA) para 6.
49 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
50 [2010] 1 All SA 139 (SCA).
51 Bursey v Bursey 1999 (3) SA 33 (SCA).
52 Jodaiken v Jodaiken 1978 (1) SA 784 (W) at 788–789; Fourie v Santam Insurance Ltd 1996 (1)
SA 63 (T) at 65.
53 Senior NO v National Employers General Insurance Co Ltd 1989 (2) SA 136 (W); Ismail v
General Accident Insurance Co SA Ltd 1989 (2) SA 468 (D).
54 Santam Insurance Co Ltd v Fourie 1997 (1) SA 611 (A) at 615–616.
55 Witham v Minister of Home Affairs 1989 (1) SA 116 (ZH).
56 1911 AD 657.
57 See Pike v Minister of Defence 1996 (3) SA 127 (CkS) at 132; Kotwane v Unie Nasionaal Suid-
Britse Versekeringsmaatskappy Bpk 1982 (4) SA 458 (O).
58 1938 AD 322 at 327–328; Fosi v RAF 2008 (3) SA 560 (C) para 3.
59 1967 (4) SA 445 (A).
60 See also Petersen v South British Insurance Co Ltd 1964 (2) SA 236 (C).
61 Oosthuizen v Stanley 1938 AD 322 at 327–328; Smith v Mutual & Federal Insurance Co Ltd
1998 (4) SA 626 (C) at 629.
62 Smith v Mutual & Federal Insurance Co Ltd 1998 (4) SA 626 (C) at 632.
63 Oosthuizen v Stanley 1938 AD 322 at 327–328; Smith v Mutual & Federal Insurance Co Ltd
1998 (4) SA 626 (C) at 632.
64 Fosi v RAF 2008 (3) SA 560 (C) para 13; Burger v Die Padongelukkefonds case No 2223/1999
(unreported).
65 1972 (2) SA 663 (A) at 642. See also Fosi v Road Accident Fund 2008 (3) SA 560 (C) para 13.
66 See also Oosthuizen v Stanley 1938 AD 322 at 328.
67 Singh v Santam Insurance Co 1974 (4) SA 196 (D).
68 2008 (3) SA 560 (C).
69 Paras 16–17.
70 Paras 24–25.
71 Osman v Road Accident Fund 2015 (6) SA 74 (GP).
72 2016 (4) SA 445 (GP).
73 Paras 14–15 and 18–20.
74 2015 (6) SA 74 (GP) paras 20–21.
75 Barnes v Union and SWA Insurance Co Ltd 1977 (3) SA 502 (E).
76 Petersen v Maintenance Officer, Simon’s Town Maintenance Court 2004 (2) SA 56 (C).
77 Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614; Groenewald v Snyders 1966 (3) SA
237 (A) at 246; Constantia Versekeringsmaatskappy Bpk v Victor NO 1986 (1) SA 601 (A) at
611; Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA) para 12; Paixão v Road Accident Fund
[2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA) para 12.
78 Santam Insurance Co Ltd v Fourie 1997 (1) SA 611 (A).
79 Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA) para 19; and see Mqolomba v RAF [2002] 4
All SA 214 (Tk), where the benefits of a trust fund were taken into account in assessing
whether harm had been suffered.
80 1985 (1) SA 118 (C) at 120C–D.
81 Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA) para 14.
82 Dhlamini v Protea Assurance Co Ltd 1974 (4) SA 906 (A) at 915.
83 Dhlamini v Protea Assurance Co Ltd 1974 (4) SA 906 (A) at 915; Mba v Southern Insurance
Association Ltd 1981 (1) SA 122 (TkS) at 124.
84 See Lebona v President Versekeringsmaatskappy Bpk 1991 (3) SA 395 (W) at 405; Dhlamini v
Multilaterale Motorvoertuigongelukkefonds 1992 (1) SA 802 (T) at 806, where the evidence
indicated what the deceased would have earned in lawful employment.
85 Booysen v Shield Insurance Co Ltd 1980 (3) SA 1211 (SE); Santam Insurance Ltd v Ferguson
1985 (4) SA 843 (A); Mankebe NO v AA Mutual Insurance Association Ltd 1986 (2) SA 196
(D).
86 1922 AD 53 at 56.
87 1955 (2) SA 385 (W) at 394–395.
88 1985 (3) SA 402 (C) at 406 and 408–409.
89 1938 TPD 34.
PART SIX
Special forms of liability: Psychological or

emotional harm
CHAPTER 24 Pain and suffering
CHAPTER 15 Emotional shock

Chapter 24
Pain and suffering
A person who suffers bodily injury can recover not only the patrimonial
loss that results from the injury, but also compensation for pain and
suffering. The action for pain and suffering developed in Roman-Dutch
law, probably under the influence of customary Germanic law, as an
additional remedy to recover a sum of money as solace (solatium) for
injury. The action for pain and suffering in common law was neither
actively nor passively transmissible, which means that it did not pass to
the estate of the claimant after the claimant’s death and was not available
against the estate of the defendant after the defendant’s death, unless the
action had progressed to the point of being formally ready to proceed to
trial (the time of litis contestatio).
In the modern South African law of delict, the action for pain and
suffering is still actively non-transmissible (it does not pass to the estate
of the claimant after death), unless litis contestatio has taken place. In
modern law, this refers to the procedural stage when pleadings are closed
in terms of the rules of court and the action is ready to proceed to trial.1
The reason for active non-transmissibility is the highly personal nature of
the action, which serves to provide solace to the victim, and not to the
victim’s estate or heirs. However, in modern law, the action is passively
transmissible, which means that the action remains available against the
estate of the defendant after the defendant’s death.2 Once litis contestatio
has taken place, the action can in any event be heard by a court
regardless of the death of any of the parties, because by that stage one
can regard the parties as having agreed that the action is ready to be
adjudicated by the Court.
The purpose of an award for pain and suffering is to provide solace
for physical pain or discomfort experienced as a result of injury, as well as
for psychological harm in the form of shock caused by the injury, or
distress due to disfigurement, loss of amenities (for example, loss of the
ability to participate in sport), or a shortened life expectancy.3 Harm in
the form of pain and suffering does not have an economic value,4 but
courts nevertheless award an appropriate amount of money, the purpose
of which is to provide solace to the victim, and not to serve as
punishment for the wrongdoer. The purpose of criminal law to punish
wrongdoers, and this area of law has certain protections built into it for
the benefit of accused persons (the presumption of innocence, the right
against self-incrimination, and a higher standard of proof). It would be
inequitable (not to mention unconstitutional) to punish a person without
affording him or her these protections.
The Constitutional Court has confirmed, in Fose v Minister of Safety
and Security 5 and in Dikoko v Mokhatla,6 that the general aim of an
award of damages in delict is to vindicate rights and to console, and not
to punish the wrongdoer. This also applies to the action for pain and
suffering. In Collins v Administrator, Cape 7 the Court held that an award
of damages for pain and suffering to an unconscious victim, even if it was
a nominal award, is inappropriate, because an unconscious victim
cannot experience consolation. Such an award would mean the
unjustified importing of a penal element into the modern law of delict.8
1 Jankowiak v Parity Insurance Co Ltd 1963 (2) SA 286 (W).

2 Solomon v De Waal 1972 (1) SA 575 (A). In this case, an award for pain and suffering was
made against the deceased estate of the owner of a horse, which had injured the plaintiff.
The award was made under the actio de pauperie.
3 Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C) at 954–955:
The damages awarded to him are in a certain sense analogous to the solatium
which is awarded under the actio injuriarum to someone as a salve to his wounded
feelings.
4 Mutual & Federal Insurance Co Ltd v Swanepoel 1988 (2) SA 1 (A) at 10–11; Sandler v
Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
5 1997 (3) SA 786 (CC) para 63.
6 2006 (6) SA 235 (CC).
7 1995 (4) SA 73 (C) at 93–94.
8 The Court rejected the abstract approach adopted in Gerke NO v Parity Insurance Co Ltd
1966 (3) SA 484 (W), where an award for ‘loss of happiness’ was made, even though the
plaintiff could not realise his loss.
Chapter 25
Emotional shock
25.1 What constitutes psychological harm or emotional shock?
25.4 When will psychological harm justify an award of damages?
25.1 What constitutes psychological harm or emotional

shock?
An injury to the brain or nervous system that results from nervous or
emotional shock is also a form of physical or bodily injury, because the
nervous system is as much a part of the body as bones and muscles. In
Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1 the
Court had to decide the nature of emotional shock because the plaintiff’s
claim was based on legislation that provided for an award of damages for
‘bodily injury’ caused by, or resulting from driving a motor vehicle. The
Road Accident Fund Act 56 of 1996 2 provides for an award of damages for
bodily injury, but, as of 1 August 2008 the Act specifically excluded claims
in terms of the Act for ‘emotional shock sustained by that person when
that person witnessed or observed or was informed of the bodily injury or
the death of another person as a result of the driving of a motor vehicle’. 3
Plaintiffs must now bring a claim for damages in delict under the
common law.4 In common law, liability for damages based on psychiatric
injury caused by nervous or emotional shock requires special
consideration.

On account of various policy considerations, courts approach claims
based on nervous or emotional shock with caution. The effects of shock
may be much more widespread than the effects of ordinary physical
injury, and to impose liability for causing shock may therefore place too
heavy a burden upon an individual defendant.5 Courts have also noted
that mental injuries cannot readily be measured in terms of money,6 and
that a person may simulate mental injuries, which creates the possibility
of an excess of illegitimate and fanciful claims.7 The concept of injury
caused by nervous or emotional shock is also a wide one. It potentially
includes temporary emotions such as grief or fear, for which courts have
consistently refused to award damages.8 It is now settled law that courts
can award damages for nervous or emotional shock that causes a
recognised form of psychiatric injury.9 The criteria for imposing this kind
of liability are set out in the following sections.

At first courts imposed a number of limiting requirements for liability, for
example, courts required that physical injury must have caused the
psychological harm.10 Another limiting requirement was that the person
who suffered the psychological harm must have been in personal danger
of ordinary physical injury, as in Mulder v South British Insurance Co
Ltd.11 In this case, the Court found that a child had been negligently killed
when he was run over by a bus but there was no duty towards the child’s
mother who suffered emotional shock as a result of witnessing the
incident. The Appellate Division in Bester v Commercial Union
Versekeringsmaatskappy van SA Bpk 12 discarded this restrictive
requirement, and established that in our law the criterion of liability for
psychological harm caused by shock is the reasonable foreseeability of
such harm. Formerly, courts awarded damages only to persons who
personally experienced the trauma-producing event, but now courts also
impose liability in ‘hearsay cases’, where the trauma is the result of a
report of one or other tragic event.13 Courts used to recognise liability
only for psychological harm that resulted from fear for a person’s own
bodily integrity, or that of a relative. In Road Accident Fund v Sauls 14 the
Court said that the issue is one of reasonableness and awarded damages
to a fiancée who had a live-in relationship with a person injured in an
accident that she had witnessed. The closer the relationship, the more
likely it will be that the psychological harm will be regarded as
foreseeable.15 The principle that persons must take their victims as they
find them applies, and if injury through shock was foreseeable, then that
person is liable for all the loss, even if the loss was aggravated by a pre-
existing condition such as high blood pressure (hypertension).16
25.4 When will psychological harm justify an award of

damages?
For an award of damages, the plaintiff must prove that the shock caused a
physical reaction such as stroke leading to death;17 miscarriage;18 high
blood pressure, trembling and collapse;19 or a detectable and recognised
psychiatric injury or lesion that is not passing or trivial,20 such as an
anxiety neurosis,21 acute depression,22 mixed anxiety depressive
disorder,23 post-traumatic stress disorder,24 impaired sleep,25 or
emotional trauma.26 In Barnard v Santam Bpk 27 Van Heerden DCJ said
that the term ‘senuskok’ (nervous shock) is not only an obsolete term
without any specific psychiatric meaning, but it may also be misleading.
The only relevant question should be whether the plaintiff sustained a
recognisable psychological lesion (‘psigiese letsel’).28 Supporting
psychiatric evidence should, as a rule, prove that such a lesion exists.29
This follows the well-known statement by Lord Denning MR in Hinz v
Berry: 30
In English law no damages are rewarded for grief and sorrow caused by a person’s
death. No damages are to be given for the worry about the children, or for the
financial strain or stress, or the difficulties of adjusting to a new life. Damages are
however recoverable for nervous shock, or, to put it in medical terms, for any
recognisable psychiatric illness caused by the breach of duty by the defendant.
PAUSE FOR Bullying is not a new phenomenon, but society has become increasingly aware of
its harmful side effects. Also, the focus is no longer only on physical bullying. In
REFLECTION
contemporary society, individuals are spending more time engaging in online
social interaction, and one of the unpleasant side effects is the increase in
incidents of online bullying, or ‘cyberbullying’. Victims of both physical bullying
and cyberbullying report a range of forms of psychological harm, such as
depression and low self-esteem. Some victims of cyberbullying have even
committed or attempted to commit suicide. Do you think a victim of physical or
cyberbullying should be able to claim damages for the emotional harm he or she
has suffered?

There is no closed list of causes, and courts can impose liability for any
conduct that intentionally or negligently causes psychological harm.
Categories that courts have recognised include fear for one’s own safety;
31
and fear for the safety of a relative or loved one, such as a brother,32 a
wife and child,33 a fiancée,34 or a son found lying in the street after an
accident.35 Shock and psychological harm can be caused by witnessing a
gruesome or disturbing accident, for example, a mother seeing the wheel
of a bus drive over her little son’s head; 36 a passenger witnessing the
death of a co-passenger in a bus accident; 37 a wife and mother seeing her
husband and children being grievously injured in a car accident;38 a
young woman seeing her fiancé being hit by a car and lying in the road,
seemingly fatally injured; 39 or a pregnant woman hearing a collision
between a motorcycle and a car and seeing the victim’s blood on the
road.40 Successful plaintiffs are mostly persons who personally
experienced the trauma-producing event, but courts have also
recognised claims in ‘hearsay cases’, where the trauma is the result of a
report of one or other tragic event, for example, where the victim learns
afterwards of the injury or death of a loved one, as in the case of a wife
learning of the death of her husband,41 or a mother being told about the
death of her son.42 Plaintiffs can also recover damages for trauma
induced by a disturbing experience unrelated to injury or death, as in the
case of a mother learning that the child she has raised for two years is not
her own, but another person’s child, swapped with hers in the maternity
ward.43 Shock and psychological harm can result from both a fear for the
safety of loved ones and an anticipation of damage to property.44

• Where the claim is for psychological harm only, without other
physical injury, the plaintiff must prove a detectable and recognised
psychiatric injury or lesion (‘psigiese letsel’) that is not passing or
trivial.45 Where the psychological harm is accompanied by other
physical injury, courts simply assess the extent of the pain, suffering
or other psychological harm, and make an appropriate award. They
do not require that the pain and suffering must constitute a
recognisable psychological lesion.
• The action for pain and suffering is also available where the harm
was caused intentionally. For example, in Boswell v Minister of
Police 46 the plaintiff succeeded with a claim for general damages
through the action for pain and suffering on the ground of
intentional infliction of emotional shock. A policeman had
deliberately provided false, distressing information to the plaintiff,
by telling her that her nephew had been shot. The plaintiff collapsed
and lost consciousness as a result of emotional shock. Furthermore,
she felt weak, had a headache and suffered from high blood
pressure. She felt shaky for a month after the policeman inflicted the
shock. A physician testified that the shock would have ‘a substantial
effect on her health’. 47 The Court held that the action for pain and
suffering was appropriate in instances where a defendant acted
intentionally.48
• An alternative remedy for psychological harm caused by
intentionally infringing a personality right is the actio iniuriarum.
Intentional infliction of emotional shock is an iniuria actionable
under the actio iniuriarum. In Waring & Gillow Ltd v Sherborne,49
after rejecting an action based on negligently causing emotional
shock, the Court stated:
It would be different, under certain circumstances, in an actio
iniuriarum based upon a wilful attack upon or violation of the
feelings of another. In such a case it might be possible to award
compensation for the outrage of the feelings or the insult to the
honour.
• In Els E v Bruce, Els J v Bruce 50 the Court dealt directly with
emotional shock that was intentionally caused and held that the
actio iniuriarum was the appropriate remedy where the defendant
adversely affected the victim’s health by addressing her in an
insulting and threatening manner. The defendant in the Boswell
case, referred to above, clearly acted intentionally. The actio
iniuriarum would have been an appropriate action for the recovery
of non-patrimonial damages for psychological harm, but the
plaintiff’s particulars of claim were not framed to include damages
intentionally caused. The Court awarded damages on the basis of
harm that was caused negligently, under the action for pain and
suffering. However, the principles of the actio iniuriarum are broad
enough to accommodate cases of intentional infliction of emotional
shock.
• Where the psychological harm is accompanied by patrimonial loss,
plaintiffs can recover damages for the patrimonial loss using the
Aquilian action. In Bester v Commercial Union
Versekeringsmaatskappy van SA Bpk 51 the victim, a minor, suffered
only psychological harm as a result of the negligent infliction of
emotional shock, but no patrimonial loss.
His father succeeded in recovering compensation on his behalf with
the action for pain and suffering. The father himself suffered
patrimonial loss, which he recovered using an Aquilian action.
• The dependants of a breadwinner who died as a result of the
infliction of severe shock can also institute an action for loss of
support.52

In Bester v Commercial Union Versekeringsmaatskappy van Suid-Afrika
Bpk 53 the Appellate Division held that liability for psychological harm
must be determined on the basis of reasonable foreseeability, the
question being whether the general nature of the harm to the plaintiff(the
psychological harm) and the general manner of its occurrence are
foreseeable. Courts in subsequent cases have continued to endorse the
foreseeability test for establishing liability. However, the Supreme Court
of Appeal has pointed out that the concept of reasonable foreseeability is
not logically well suited for taking into account policy considerations,
such as the range of persons who should be protected against
psychological harm and the possibility of indeterminate liability.54
In some cases, courts have considered policy issues that relate to
limiting liability for psychological harm under the heading of legal
causation.55 According to the modern approach to legal causation, the
overriding question is whether there was a sufficiently close relationship
between the wrongdoer’s negligent act and the psychological harm, for
courts to impute such harm to the wrongdoer, taking into account policy
considerations based on reasonableness, fairness and justice. The
foreseeability of harm is now a subsidiary factor, although an important
one.
Another possible approach is to take the relevant policy
considerations into account when assessing wrongfulness, which allows
scope for considering the pertinent issues, such as the range of persons
who should be protected against psychological harm and the possibility
of indeterminate liability. In terms of this approach, one should not
regard the factual causing of psychological harm in itself as indicating
wrongfulness. Causing psychological harm is only wrongful if it is
considered to be unreasonable with regard to factors such as the
seriousness of the harm, the plaintiff’s apprehension of personal danger,
intent on the part of the defendant, and the relationship between the
primary and secondary victims.
PAUSE FOR Causing psychological harm

REFLECTION • Is the criterion of reasonable foreseeability an appropriate test for liability
for causing psychological harm? Reasonable foreseeability is one part of
the negligence test, and depends on factors such as the risk of harm
occurring and the extent of the possible harm. Why is this concept not well
suited for taking into account policy factors, such as the range of persons
who should be protected against psychological harm and the possibility of
indeterminate liability?
• Why is wrongfulness better suited for taking into account such policy
factors? What other factors may be relevant in determining the
wrongfulness of causing psychological harm? (Refer to the chapter on
wrongfulness.)
• Is the concept of legal causation well suited for taking into account policy
factors, such as the range of persons who should be protected against
psychological harm and the possibility of indeterminate liability? Can
reasonable foreseeability be relevant to either negligence or legal
causation (Refer to the chapter on legal causation.)
• In Barnard v Santam Bpk56 Van Heerden AHR remarked57 that from a
practical point of view, it does not make any difference whether
foreseeability is assessed for the purposes of negligence or legal
causation. Do you agree?
• Consider also the following statement:58
There is no need to adhere to rigid categories for determining

liability, especially when it makes no difference which element of
liability is used. Courts should have flexible criteria at their disposal
when attempting to resolve difficult issues and provided that the
basic principles do not conflict, there appears to be no harm in
choosing which of the two elements, wrongfulness or causation, is
the more suitable tool for dealing with a particular issue.
1 1973 (1) SA 769 (A).

2 As amended by the Road Accident Fund Amendment Act 19 of 2005.
3 Section 19(g) of the Act provides that the Fund or one of its agents is not obliged to
compensate any person for any loss or damage:
suffered as a result of an emotional shock sustained by that person when that
person witnessed or observed or was informed of the bodily injury or the death of
another person as a result of the driving of a motor vehicle.
Paragraph (g) was added to the Act by section 8(b) of the Road Accident Fund Amendment
Act 19 of 2005. The amendment came into effect on 1 August 2008.
4 Section 21(1) provides that:
no claim for compensation in respect of loss or damage resulting from bodily
injury to or the death of any person caused by or arising from the driving of a
motor vehicle shall lie against the owner or driver of a motor vehicle, or against the
employer of the driver.
However, section 21(2)(b) provides that section 21(1) does not apply:
to an action for compensation in respect of loss or damage resulting from
emotional shock sustained by a person, other than a third party, when that person
witnessed or observed or was informed of the bodily injury or the death of another
person as a result of the driving of a motor vehicle.
5 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1972 (3) SA 68 (D) at 74D–
E.
6 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1972 (3) SA 68 (D) at 73D–
G.
7 Union Government (Minister of Railways & Harbours) v Warneke 1911 AD 657.
8 Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 217. In Muzik v Canzone Del Mare 1980 (3)
SA 470 (C), the plaintiff experienced discomfort after eating poisonous food in a restaurant,
but failed to prove any mental or physical harm; and in Lutzkie v South African Railways
and Harbours 1974 (4) SA 396 (W), the plaintiff sustained no ‘permanent consequences’ as a
result of shock suffered when witnessing the death of a boy in a bus accident. Hing v Road
Accident Fund 2014 (3) SA 350 (WCC) held that our law has not evolved to the extent that
any claim for grief or sorrow could be recognised. Such damages can also not be claimed
under the head of loss of support: MacDonald v Road Accident Fund [2012] 4 All SA 15
(SCA).
10 Hauman v Malmesbury Divisional Council 1916 CPD 216 at 220; Bester v Commercial
Union Versekeringsmaatskappy van SA Bpk 1972 (3) SA 68 (D) at 73D–F.
11 1957 (2) SA 444 (W).
12 1973 (1) SA 769 (A).
14 2002 (2) SA 55 (SCA).
15 Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 215.
16 Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) at 342–343.
17 Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C).
18 Waring & Gillow Ltd v Sherborne 1904 TS 340; Hay or Bourhill v Young [1942] 2 All ER 396.
19 Boswell v Minister of Police 1978 (3) SA 268 (E).
20 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) at 779;
Barnard v Santam Bpk 1999 (1) SA 202 (SCA).
21 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) at 779
and 782.
22 Majiet v Santam Ltd [1997] 4 All SA 555 (C).
23 Clinton-Parker v Administrator, Tvl; Dawkins v Administrator, Tvl 1996 (2) SA 37 (W).
24 Road Accident Fund v Sauls 2002 (2) SA 55 (SCA); Minister of Justice and Constitutional
Development v X [2014] 4 All SA 586 (SCA); 2015 (1) SA 25 (SCA); Naidoo v Minister of
Police [2015] 4 All SA 609 (SCA) at 152 para 35.
25 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A); Road
Accident Fund v Sauls 2002 (2) SA 55 (SCA).
27 1999 (1) SA 202 (SCA).
28 The definition in Swartbooi v RAF 2013 (1) SA 30 (WCC); [2012] 3 All SA 670 (WCC) para 17
(‘Emotional shock is defined as shock suffered by a person without necessarily personally
sustaining bodily injury.’) is not entirely accurate.
29 Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 216–F.
30 1970 (2) QB 40 at 42–43; [1970] 1 All ER 1074 (CAC).
31 Hauman v Malmesbury Divisional Council 1916 CPD 216.
33 Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C).
34 Road Accident Fund v Sauls 2002 (2) SA 55 (SCA).
35 Majiet v Santam Ltd [1997] 4 All SA 555 (C).
36 Mulder v South British Insurance Co Ltd 1957 (2) SA 444 (W).
37 Lutzkie v South African Railways and Harbours 1974 (4) SA 396 (W).
38 Hinz v Berry [1970] 1 All ER 1074 (CAC).
39 Road Accident Fund v Sauls 2002 (2) SA 55 (SCA).
40 Hay or Bourhill v Young [1942] 2 All ER 396.
41 Waring & Gillow Ltd v Sherborne 1904 TS 340.
43 Clinton-Parker v Administrator, Tvl; Dawkins v Administrator, Tvl 1996 (2) SA 37 (W).
44 In Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C), the deceased was subjected
within minutes to a sequence of stress-causing events, being himself assaulted, seeing his
wife being hit by a car and witnessing his own car with occupants in it, including his child,
being struck by another car.
45 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) at 779;
Barnard v Santam Bpk 1999 (1) SA 202 (SCA).
46 1978 (3) SA 268 (E) at 275A–G.
47 At 272B.
48 At 273A–B.
49 1904 TS 340 at 348.
50 1922 EDL 295 at 298–299.
51 1973 (1) SA 769 (A).
52 Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) at 343G–344A. One cannot
include a claim for grief or sorrow in an action for loss of support: MacDonald v Road
Accident Fund [2012] 4 All SA 15 (SCA).
53 1973 (1) SA 769 (A).
54 Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 212–213.
55 Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 209–210; Road Accident Fund v Sauls 2002
(2) SA 55 (SCA) para 8; see also Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) at
342.
56 1999 (1) SA 202 (SCA) at 215.
57 At 210.
58 Midgley ‘The role of foreseeability in psychiatric injury causes’ (1992) 55(3) THRHR 441 at
445.
PART SEVEN
Special forms of liability: Personality

interests
CHAPTER 26 Infringements of bodily integrity
CHAPTER 27 Infringements of dignity
CHAPTER 28 Infringements of privacy
CHAPTER 29 Infringements of identity
CHAPTER 30 Infringements of reputation
CHAPTER 31 Grounds of justification associated with infringements of

personality interests
Chapter 26
Infringements of bodily integrity
26.1 Introduction

26.2.1 Assault
26.2.3 Seduction
26.1 Introduction
The general remedy for the infringement of personality rights is the actio
iniuriarum. Its main aim is to protect plaintiffs against wrongful and
intentional infringements of these rights and, where they are violated, to
provide for the recovery of damages. There are three basic elements for
an action under the actio iniuriarum: (a) an infringement of a personality
right in a (b) wrongful and (c) intentional way.1
In Roman law, and then later in Roman-Dutch law, the actio
iniuriarum protected infringements of corpus (bodily integrity), dignitas
(dignity) and fama (reputation). Modern law has added the rights to
privacy and identity to this list. The common-law concept of dignitas is a
very broad one, encompassing dignity in its ordinary dictionary meaning,
privacy and identity. The right to identity is a particular manner in which
the right to privacy can be infringed, and is therefore also an
infringement of the right to dignity in a broad sense. Any factual violation
of corpus, dignitas or fama constitutes the harm element that forms the
basis of the action.
Although each of these rights is recognised as a single, clearly
defined interest of personality in our law, overlaps do occur. Violations of
one of these rights could also involve impairments of any of the others.
For example, an assault could simultaneously involve both an
infringement of bodily integrity and an impairment of dignity.
It should also be noted that the same source or event can
simultaneously give rise to several claims in delict under the various
actions. For example, John assaults Vusi in the workplace, in front of
Vusi’s colleagues. As a result of the assault, Vusi cannot work for a week
and receives medical treatment at a hospital. Assuming Vusi is on a ‘zero-
hours’ contract and is paid only for the work he does and has no medical-
aid entitlement, Vusi would potentially have three claims arising from
this incident. He could claim special damages for patrimonial loss arising
from his loss of earnings and medical expenses (under the Aquilian
action), general damages for pain and suffering experienced by him
during and after the assault (under the action for pain and suffering), as
well as general damages for the impairment of his dignity (under the
actio iniuriarum), because the assault took place in front of his colleagues
and was a demeaning experience. Vusi would not bring three separate
claims in delict; he would bring a single claim before the courts by means
of a ‘rolled-up’ action.2
Similarly, an attack on a person’s reputation often impairs that
person’s dignity as well. This notion was confirmed in Khumalo v
Holomisa,3 where O’Regan J pointed out:
In our new constitutional order, no sharp line can be drawn between these injuries
to personality rights … The value of human dignity in our Constitution therefore
values both the personal sense of self-worth as well as the public’s estimation of the
worth or value of an individual.
TERMINOLOGY Iniuria
Voet 47.10.14 refers to an iniuria as an act committed in contempt of
another’s personality. In fact, the term has three possible meanings:
• Anything contrary to justice and equity – that is, wrongfulness
(dictionary meaning). This covers all delictual situations,
irrespective of whether the harm is patrimonial or non-
patrimonial.
• The wrongful and intentional impairment of a person’s personality
rights of bodily integrity (corpus), dignity (dignitas) or reputation
(fama). This covers only those situations that fall within the actio
iniuriarum.
• Impairment of dignity in the form of an insult where contumelia
(humiliation) is present. This covers only those situations that fall
within the narrow meaning of the dignity concept.

The right to bodily integrity protects a person’s physical and mental
integrity – that is, it supports the notion of the mind being part of the
physical body.5 Ways in which a person can violate that right often
involve an assault 6 or other manifestations of an assault, such as rape,7 or
infecting a partner with the human immunodeficiency virus.8 The
violation does not have to be a violent one – a plaintiff could also found
an action upon an act of seduction 9 (although possibly outmoded and
unconstitutional), a surgical operation,10 taking a blood sample,11 or
depriving a detainee of exercise and basic intellectual stimulation and
psychological comforts.12
26.2.1 Assault
PAUSE FOR Assault

When a person claims for damages for failed surgical operations, the cause of
REFLECTION
action is often framed as a violation of bodily integrity in the form of an assault.
Is it conceptually correct to do this? See Broude v McIntosh.13
Interfering with the right to bodily integrity is not necessarily actionable

in law. For example, although accidentally pushing a person in a
crowded lift or a crowded stadium is a factual infringement of a person’s
bodily integrity, conduct of this nature is ordinarily not wrongful (on the
basis of the principle de minimis non curat lex) and the intention
element would also not be satisfied (the person factually interfering with
the other person’s right to bodily integrity would not have directed his or
her will towards bringing about the wrongful consequence if the
interference was merely accidental, and he or she would in any event in
such circumstances not have intended to act wrongfully).
Bennett v Minister of Police14
A policeman ordered Bennett, for no reason, to get into a police van. When Bennett refused to do so,
and resisted attempts to put him into the van by clinging to the wire mesh surrounding the van’s
passenger compartment, the policeman used a wooden police baton to beat Bennett’s hands loose. He
broke two fingers on Bennett’s right hand. Bennett did not suffer any patrimonial loss in the form of
medical expenses, or any loss of earnings, because he was laid off from work for two months on full pay.
He was nonetheless awarded general damages for the pain and discomfort that resulted from the
incapacitation of his hand.
Bennett also alleged an iniuria in that he had also suffered an infringement of his dignity in the form
of humiliation. The Court found ‘that the assault on Bennett was violent, unprovoked, unnecessary and
excessive’,15 and even though he had been resisting arrest, it constituted an unlawful and intentional
impairment of Bennett’s personality. The Court found that the difficulty with this claim was that Bennett
had not alleged that he had in fact been humiliated: ‘There is a very large subjective element in any
injuria, and if plaintiff feels aggrieved in his dignity he must say so.’16 The Court thereafter considered
whether McKerron’s statement17 that ‘assaults of all kinds’ could be injurious and concluded:18
The fact is that not all assaults necessarily involve contumelia. It depends upon the
circumstances. A policeman who unlawfully shoots a person does not normally impair that
person’s dignity; a robber who stabs his victim does not normally insult the victim by so doing.
But an assault by a policeman with a baton is probably on a different footing. I would think that
this does involve a measure of contumelia objectively regarded.
As a result, Bennett received general damages for physical injuries

amounting to R600 and R50 for the ‘objectively-regarded contumelia’.
The judgment raises a number of issues:
• An infringement of the personality right to bodily integrity may give
rise to separate claims under the Aquilian action (for patrimonial
loss), the Germanic remedy (for pain and suffering), and the actio
iniuriarum (for infringement of dignity). See also April v Minister of
Safety and Security,19 where the Court recognised that claims for
assault involve issues that relate to bodily injury and pain and
suffering, as well as those that involve contumelia. Even though
these issues stem from the same source or event, the claims remain
distinct. The Court noted that the award for contumelia was different
from general damages ordinarily awarded in cases of bodily injury.
Nonetheless, this does not mean that they involve the invasion of a
different personality right, as the Court suggested.20
• Did the Court award damages under the actio iniuriarum for the
mere infringement of bodily integrity? It appears not: R50 was
awarded for the infringement of dignity, and R600 for pain and
suffering.
• Could there be an interrelationship between the general damages
under the Germanic remedy and any claim for infringement of
bodily integrity? In other words, could the Germanic remedy provide
the necessary solace and so make a claim under the actio iniuriarum
in respect of bodily integrity redundant?
• Dignity appears to have both a subjective and an objective
component. In this instance, only the latter was alleged and proven.
• The Court did not hold that all use of force during an arrest would
constitute an actionable assault. It found that in this instance, there
was unlawful conduct because the force was unnecessary and
excessive, and so:
the policeman using the force steps out from under the umbrella of
protection which the law holds over him as long as he is using only
the permissible degree of force.21
• The Court also raised the issue of proof:
The allegation of assault is an allegation of an unlawful inroad upon
Bennett’s right to the integrity of his personality and the animus is
sufficiently alleged by the allegation of the unlawful assault.22
• Later the Court noted that:
proof of the unlawful aggression raises the presumption that the
aggressor was animated by animus injuriandi which presumption he
must rebut if he wishes to escape liability.23
• Courts have not been consistent in dealing with presumptions under
the actio iniuriarum. We suggest elsewhere why this is so and how
some consistency could be achieved.24

A person’s right to bodily integrity is also violated where a person’s
personal freedom is restricted or a person is deprived of liberty – for
example, in an arrest 25 or an incarceration.26 These instances are
commonly referred to as either wrongful arrest and detention, or
malicious arrest and detention. The rationale for liability is set out in
Thandani v Minister of Law and Order: 27
… sight must not be lost of the fact that the liberty of the individual is one of the
fundamental rights of a man in a free society which should be jealously guarded at
all times and there is a duty on our courts to preserve this right against
infringement.
The essence of wrongful arrest and detention lies in (a) intentionally (b)
depriving a person of his or her liberty or physical freedom (c) without
lawful justification. In other words, there must be a wrongful and
intentional interference with the person’s bodily freedom. This is no
different from the usual elements of the actio iniuriarum – namely,
intention, harm in the form of a factual infringement of a right, and
wrongfulness. However, because of the significant value placed on
individual liberty in a democratic legal culture, these elements have
developed certain peculiarities.
For wrongful arrest and wrongful detention, the plaintiff must allege
and prove that the defendant, or an agent acting on the defendant’s
behalf, committed the act that led to the plaintiff’s physical freedom
being restricted (the factual interference with the right to bodily integrity
by depriving the person of his or her personal freedom). Arrest is
frequently followed by detention, and if the initial arrest is unlawful, the
subsequent detention will also be wrongful.
• An arrest constitutes an interference with the liberty of the
individual, and once the plaintiff has established, on a balance of
probabilities, that his or her bodily freedom has been factually
infringed, wrongfulness is presumed and the onus shifts to the
defendant to justify why the deprivation of liberty took place.28 For
example, section 40(1)(b) of the Criminal Procedure Act 51 of 1977
(dealing with arrests without a warrant) obliges an arrestor, among
other requirements, to prove that he or she suspected that the
arrestee committed a Schedule 1 offence and that the suspicion
rested on reasonable grounds.
• Where the deprivation of liberty carries with it the imputation of
criminal conduct of which there was no reasonable suspicion, courts
consider the injury to be very serious.29
• If the arresting officer had an improper motive, then one cannot say
that the suspicion rested on reasonable grounds. Motive is therefore
an indicator of the reasonableness of the defendant’s conduct, and is
a factor that could be relevant in determining wrongfulness. (Unlike
instances of malicious deprivation of liberty, motive is not a
necessary component in claims for wrongful deprivation. It is merely
a potential indicator of wrongfulness.) 30
• Once the police have arrested a person, they have an ongoing duty to
reconsider the lawfulness of the arrest should they subsequently
receive sufficient information to conclude that the arrested person is
innocent.31
• Where police fail to inform a prosecutor and the Court that there is
no evidence justifying the arrest and detention of a person pending a
criminal trial, the detention will be unlawful and the person’s right to
freedom and security in terms of section 12(1)(a) of the Constitution
is potentially infringed. The orders of a magistrate that such a person
be held in custody pending the outcome of the trial do not render
that person’s detention lawful.32
• An investigating officer has a public-law duty not to violate an
accused’s right to freedom, either by not opposing his or her
application for bail, or by placing all relevant and readily available
facts before the magistrate. A failure to perform this public duty
could be considered wrongful in delict.33
• The principle that the State bears the onus of proving that a
deprivation of liberty is lawful also applies to matters where the
detention involves the application of immigration law, and therefore
falls outside the realm of criminal law and procedure.34 On appeal,
the Constitutional Court held that:
the deprivation of personal liberty is prima facie unlawful, calling for justification to
avoid liability for damages.35
Whether intention is an element of this iniuria is controversial. As it is a

claim under the actio iniuriarum, logic dictates that it should be an
element. In Minister of Justice v Hofmeyr 36 the Appellate Division
confirmed that depriving liberty involves ‘the wrongful and intentional
infringement of an interest of personality’ and continued:
In this limited class of delicts dolus remains an ingredient of the cause of action, but
in a somewhat attenuated form, in the sense that it is no longer necessary for the
plaintiff to establish consciousness on the part of the wrongdoer of the wrongful
character of his act. Included in this limited class are cases involving false
imprisonment and the wrongful attachment of goods.
So, in these cases it is not the full animus iniuriandi that is required, but
an attenuated version that involves only the intention to arrest, and does
not require that a defendant should also have known that the conduct
was wrongful. The effect of this passage is that a defendant cannot
attempt to exclude fault by pleading any defence that is aimed at
negating consciousness of wrongfulness, such as mistake. For example, if
a police officer arrests a person in circumstances where he or she cannot
objectively justify the arrest (because he or she did not have a reasonable
basis for believing that the person arrested was committing an offence,
about to commit an offence or had committed an offence, as required by
the Criminal Procedure Act), the officer cannot escape delictual liability
by satisfying the Court that he or she genuinely believed he or she was
justified in effecting the arrest. The officer’s direction of will towards
arresting the plaintiff (his or her taking action to deprive the plaintiff of
his or her bodily freedom) will on its own satisfy the intention
requirement and delictual liability will ensue.
COUNTER Wrongful deprivation of liberty

POINT Neethling, Potgieter and Visser37 contend that in wrongful deprivation of liberty
cases, courts have simply ignored the intention requirement, and so this has
become a form of liability without fault (that is, liability is strict).38 Midgley39
suggests that it is wrong to equate the effect of an attenuated form of intention
with that of strict liability and to say that in reality there is no difference.
At the heart of this difference of opinion lies the interpretation of a passage
in Smit v Meyerton Outfitters,40 which in Minister of Justice v Hofmeyr 41 was
found to be ‘a correct statement of our modern law’. It reads:
In the case of actio iniuriarum the fault element involves two

considerations. The first is that the defendant acted intentionally and
the second is that the defendant knew that the act was wrongful. In
the case of wrongful arrest, even though it developed out of the actio
iniuriarum, the second consideration is not a requirement for liability.
There is another category of cases – malicious arrest and detention – that

requires the additional element of malice. Malice, or improper motive or
reason for doing something, is not intention, and nor is it any other
specific form of fault. The fault element in this category is no different
from other unlawful arrest cases, and nor, for that matter, are the other
elements of harm and wrongfulness. The peculiarity lies in the fact that
society will not consider the category of deprivation of liberty to be
wrongful unless the defendant had an improper motive. For reasons of
policy, malice therefore becomes a necessary additional requirement for
a wrongfulness finding in such cases.
What, then, is the distinctive characteristic of this category of cases?
Unlike wrongful deprivation of liberty, malicious deprivation of liberty
takes place under the guise of a valid judicial process. Crucially, in this
type of case, the defendant is alleged to have used the legal machinery of
the State to achieve an improper result. There may be a lawful
intervening act between the defendant’s conduct and the plaintiff’s
deprivation of liberty – for example, the defendant arrested the plaintiff,
but the plaintiff’s detention came about because a magistrate ordered the
plaintiff to be incarcerated. The magistrate’s decision is lawful, so the
only way in which the plaintiff can claim damages is to show that the
defendant had abused the process and had acted maliciously. The
feature that distinguishes this category of cases from ordinary wrongful
arrest and detention cases is that, although the defendant’s conduct is
linked to the ultimate result, the immediate or proximate cause for the
detention was not the defendant’s conduct but someone else’s lawful
conduct.42
As with wrongful arrest and detention cases, liability arises only if the
plaintiff can prove all the elements of the delict. The controversy over
whether liability is strict or whether an attenuated form of intention is
required is not relevant in these cases. This is because if malice involves
the improper reason for a person’s action, then that person can hardly
say that he or she did not direct his or her will for that purpose.
Accordingly, in this category of cases intention normally involves both
direction of the will and consciousness of wrongfulness.
In Relyant Trading (Pty) Ltd v Shongwe 43 the Court explained the
distinction between a wrongful arrest and a malicious deprivation of
liberty. A wrongful arrest is one where the defendant is the person who
unjustifiably interfered with the plaintiff’s personal liberty. In contrast, a
malicious arrest is one where the defendant is the person who set a lawful
process in motion in terms of which the plaintiff was arrested and
prosecuted.44 A claim for malicious prosecution requires that an arrest or
prosecution be instigated with animus iniuriandi and in circumstances
where there is no reasonable or probable cause for it.45
26.2.3 Seduction
Seduction occurs where a man induces a virgin (who is not his wife) to
have consensual sexual intercourse with him. In so doing, the man
commits an iniuria, the consequence of which, in earlier law, was either
marriage or payment of a solatium. Only the latter option prevails today,
but a claim under the lex Aquilia would also hold for any patrimonial
harm suffered, such as when a child is born, lying-in expenses,
maintenance for the mother before, during and after the confinement,
and maintenance for the child (and, if it dies, its funeral expenses).
The harm element lies in the actual deflowering of a virgin woman
(the physical change to the woman’s body as a result of the act of sexual
intercourse). Wrongfulness arises from the fact that the man behaved in a
seductive manner to overcome the woman’s resistance and to induce her
consent. Courts consider this behaviour to be against public policy, and
this is also the reason why the defendant cannot use the woman’s
consent as a defence to negate wrongfulness. The form of intention, as
with wrongful deprivation of liberty cases, is attenuated, which means
that a mistake, such as not knowing that the woman was a virgin, would
not exclude intent.46
PAUSE FOR Seduction

REFLECTION • The action is available to women only. Is this appropriate in light of the
equality provisions in our Constitution?47
• Although female virginity remains a protected interest in our law today,
should the action for seduction be formally abolished in a modern society
where the regard for virginity is much reduced?
• Does the action for seduction objectify women by placing a monetary
value on their virginal status, thereby unreasonably and unjustifiably
infringing their rights to equality and human dignity?
• Does the action for seduction, in its apparent reluctance to recognise that
a virgin woman can validly consent to sexual intercourse with a man in
certain circumstances, undermine women’s agency and promote a
patriarchal and sexist notion of passive female sexuality?
1 See DE v RH 2015 (5) SA 83 (CC) at fn 5, where the Constitutional Court gives a brief
summary of the purpose and scope of the actio iniuriarum.
2 For an example of a rolled-up action, see Blignaut v Protea Coin Group 2015 JDR 0962
(ECP), where the plaintiffbrought claims for iniuria/insult (dignitas), defamation (fama) and
assault (corpus) by means of a single action, although each wrong was particularised in the
pleadings. The plaintiffwas unsuccessful in his claim, which pertained to an alleged assault,
demeaning conduct and defamation which occurred during an altercation in a petrol-
station forecourt between the plaintiff(a private citizen) and an employee of an armed cash-
in-transit guard.
3 2002 (5) SA 401 (CC) para 27; see also Le Roux v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amicus Curiae) 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC)
at 274.
4 Voet Commentarius ad Pandectas 47.10.1 (1829).
5 Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 145–146.
6 Bennett v Minister of Police 1980 (3) SA 24 (C).
7 N v T 1994 (1) SA 862 (C).
8 Venter v Nel 1997 (4) SA 1014 (D).
9 Bull v Taylor 1965 (4) SA 29 (A); M NO v M 1991 (4) SA 587 (D).
10 Broude v McIntosh 1998 (3) SA 60 (SCA).
11 Nell v Nell 1990 (3) SA 889 (T).
13 1998 (3) SA 60 (SCA).
14 1980 (3) SA 24 (C).
15 Para 35A.
16 Para 37.
18 Para 37.
19 [2008] 3 All SA 270 (SE).
20 Para 18.
21 Bennett v Minister of Police 1980 (3) SA 24 (C) at 35E–F.
22 At 34G.
23 At 35G–H.
24 See Chapter 8 section 8.3.8.
25 Tsose v Minister of Justice 1951 (3) SA 10 (A); Bennett v Minister of Police 1980 (3) SA 24 (C).
27 1991 (1) SA 702 (E) at 707B.
28 Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589E–F; Zealand v Minister of
Justice and Constitutional Development 2008 (4) SA 458 (CC); 2008 (2) SACR 1 (CC) paras
24 and 25; Naidoo v Minister of Police [2015] 4 All SA 609 (SCA) para 39.
29 May v Union Government 1954 (3) SA 120 (N) at 130. Even accusing a person of shoplifting
could result in a deprivation of liberty, as the suspect is stopped, questioned and may be
expected to subject themselves to a search (Pieterse v Clicks Group Ltd 2015 (5) SA 317
(GJ)).
30 In Areff v Minister van Polisie 1977 (2) SA 900 (A), a businessman was arrested by policemen
who, without reasonable grounds, had assumed that tearing up a summons not addressed
to him amounted to a Schedule 1 offence.
31 Minister of Police v Du Plessis 2014 (1) SACR 217 (SCA) para 18 onwards.
32 Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA) paras 42–44.
33 Woji v Minister of Police 2015 (1) SACR 409 (SCA) paras 28–29.
34 Rahim v Minister of Home Affairs 2015 (4) SA 433 (SCA) para 24.
35 Minister of Home Affairs v Rahim 2016 (3) SA 218 (CC) para 27.
36 1993 (3) SA 131 (A) at 154 H–I.
37 Neethling and Potgieter (2015) at 350; Neethling, Potgieter and Visser Neethling’s Law of
Personality 2 ed (2005) at 119–120.
38 See Relyant Trading (Pty) Ltd v Shongwe and others [2007] 1 All SA 375 (SCA), where the
Court remarked at para 4 that liability for wrongfulness in respect of unlawful arrest is strict,
and neither fault nor awareness of wrongfulness is required.
39 Midgley ‘Fault under the actio iniuriarum: Custer’s last stand?’ in Boezaart and de Kock
(Eds) Vita perit, labor non moritur: Liber Memorialis Visser (2008) at 187.
40 1971 (1) SA 137 (T) at 139 (our translation).
41 1993 (3) SA 131 (A) at 157.
42 The key requirements for malicious arrest and prosecution were restated by the Supreme
Court of Appeal in Magwabeni v Liomba (198/13) [2015] ZASCA 117 (11 September 2015)
para 9. See also Minister of Justice and Constitutional Development v Moleko [2008] 3 All SA
47 (SCA) para 8 and Rudolph v Minister of Safety and Security 2009 (5) SA 94 (SCA) para 16.
43 [2007] 1 All SA 375 (SCA).
44 Para 4.
45 Para 5.
46 Neethling and Potgieter (2015) at 347–348 suggest that this could be another example of
liability without fault.
47 See Bennett, Mills and Munnick ‘The Anomalies of Seduction: A Statutory Crime or an
Obsolete, Unconstitutional Delict?’ (2009) 25(2) SA Journal on Human Rights at 330–352.
Chapter 27
Infringements of dignity
27.1 Introduction
27.2 Insult
27.3 Conclusion
27.1 Introduction
Dignity is an umbrella concept that embraces both constitutional and
common-law notions of dignity. Our Constitution recognises dignity as a
core value and also as a fundamental right. In S v Makwanyane 1 O’Regan
J noted:
Recognising a right to dignity is an acknowledgment of the intrinsic worth of
human beings: human beings are entitled to be treated as worthy of respect and
concern. This right therefore is the foundation of many of the other rights that are
specifically entrenched in … (the Bill of Rights).
Our common law protects similar values, and these serve as the basis for
a remedy under the actio iniuriarum. However, dignity in constitutional
law and dignity in common law have different content. The
constitutional notion of dignity includes reputation (the public aspect of
the right to dignity), but not privacy, which the Bill of Rights protects
separately in section 14. The common-law notion includes privacy, but
excludes reputation. Nonetheless, the common law, although different in
many respects, is compatible with the rights and values expressed in the
Constitution. Harms DP confirmed this point in Le Roux v Dey 2 and
noted the interplay between the constitutional and common-law
concepts: 3
The term ‘dignity’ covers a number of concepts in section 10 of the Constitution, but
in the present context we are concerned with the plaintiff’s sense of self-worth.
Melius de Villiers spoke of the inborn right to the tranquil enjoyment of one’s peace
of mind; and the valued and serene condition in one’s social or individual life which
is violated when one is subjected to offensive and degrading treatment, or exposed
to ill-will, ridicule, disesteem or contempt.
The common-law concept of dignity (dignitas) is a complex one that has

both a broad and a narrow meaning. In its broad sense, dignitas includes
a person’s right to his or her feelings (the right not to be subjected to an
iniuria or insult), as well as the rights of privacy and identity. Courts
could in future add further rights to the concept. The narrow meaning
restricts the right to feelings and, in particular, the impairment of dignity
in the form of an insult.
27.2 Insult
Insult, or the violation of a person’s feelings, is what we have referred to
as iniuria in the narrowest of the dignity concept’s three meanings. An
invasion of dignity in the form of an iniuria occurs when a person’s
subjective feelings of self-respect or self-esteem – that is, a person’s pride
and moral value (self-worth) – are violated.4 To constitute a delict, there
must be (a) a factual violation of the plaintiff’s feelings that is both (b)
wrongful and (c) intentional.
Factual violation occurs when a person feels humiliated – in other
words, where contumelia is present. It does not matter what caused the
humiliation. Usually it is belittling or insulting words,5 but insulting
behaviour can be any form of conduct.6 The focus here is on the
conduct’s impact on the person, so we are primarily concerned about
people’s own opinions of themselves, viewed subjectively, and not with
the opinion that others might hold. From the subjective nature of this
enquiry, we can draw the following conclusions:
• A person who does not feel insulted has not suffered harm, even if
the defendant’s conduct is objectively insulting.
• Since hurt feelings are an essential prerequisite for insult, artificial
persons necessarily cannot suffer this type of harm.
• Others do not have to be aware of the insulting behaviour or its
effect. So, unlike with defamation, publication of the words to a third
person is not necessary to constitute an impairment of dignity
(although this requirement does not preclude publication).
PAUSE FOR The subjective nature of dignity

Despite what we say about its subjective nature, it appears that dignity might not
REFLECTION
be an entirely subjective concept. The matter was raised in Universiteit van
Pretoria v Tommie Meyer Films (Edms) Bpk,7 and in Bennett v Minister of Police,8
where the Court awarded R50 in damages in respect of ‘a measure of contumelia
objectively regarded’ that was inherent in that assault. Van der Walt and
Midgley9 say that dignity: ‘consists of two aspects: one closely associated with
human feelings – one’s sense of “self-worth” and “self-respect”; and another
associated with someone’s outward dignity, status, and esteem – in the sense
that someone is considered to be a dignified person.10 Natural persons have
dignity in both senses, but the dignity of juristic persons is limited to status and
esteem only.’
The next step is to establish wrongfulness. In essence, not only must the
feelings have been violated subjectively, but society should consider the
invasion of the interest to be unreasonable to such an extent that the
defendant should be held liable for assuaging the wounded feelings.
Persons are expected to show some resilience and tolerance towards
offensive behaviour, and courts will not impose liability unless society’s
sense of justice (boni mores) would point to the situation being offensive,
degrading and not trivial.11
Delange v Costa12
Costa wrote a letter to Delange, an advocate of the High Court and a senior official in the olive industry,
in which he accused Delange of being motivated by self-interest and claimed that his involvement in a
particular transaction was not in the industry’s best interests. The remark offended Delange, who was
described in the judgment as ‘a man of not inconsiderable self-esteem and heightened sensitivity’.
The Court first looked at the relevant principles:13
I now turn to consider the law which is applicable to the facts of the present matter. Melius de
Villiers The Roman and Roman-Dutch Law of Injuries at 27 notes three essential requisites to
establish an action for injuria. They are:
‘An intention on the part of the offender to produce the effect of his act;
An overt act which the person doing it is not legally competent to do;
and which at the same time is
An aggression upon the right of another, by which aggression the other
is aggrieved and which constitutes an impairment of the person, dignity
or reputation of the other.’
Logically, in an action for injuria one should commence by enquiring into the existence of the
second of these requisites, viz whether there has been a wrongful overt act. (It is more common,
and probably juristically more correct, to speak of a ‘wrongful’ rather than an ‘unlawful’ act.) A
wrongful act, in relation to a verbal or written communication, would be one of an offensive or
insulting nature. Once the wrongfulness of such act has been determined animus injuriandi will
be presumed. … It would be open to the defendant to rebut such presumption by establishing
one of the recognised grounds of justification. If the defendant fails to do so the plaintiff, in
order to succeed, would have to establish the further requirement that he suffered an
impairment of his dignity. This involves a consideration of whether the plaintiff’s subjective
feelings have been violated, for the very essence of an injuria is that the aggrieved person’s
dignity must actually have been impaired. It is not sufficient to show that the wrongful act was
such that it would have impaired the dignity of a person of ordinary sensitivities. Once all three
requisites have been established the aggrieved person would be entitled to succeed in an
action for damages, subject to the principle de minimis non curat lex.
Later in the judgment, the Court looked at the element of wrongfulness:14
In determining whether or not the act complained of is wrongful the Court applies the criterion
of reasonableness – the ‘algemene redelikheidsmaatstaf’… . This is an objective test. It requires
the conduct complained of to be tested against the prevailing norms of society (ie the current
values and thinking of the community) in order to determine whether such conduct can be
classified as wrongful. To address the words to another which might wound his self-esteem but
which are not, objectively determined, insulting (and therefore wrongful) cannot give rise to an
action for injuria … . For words to be injurious they must infringe one of the ‘absolute rights of
personality’. … There is no such thing as an absolute right not to be criticised. A person must be
prepared to tolerate legitimate criticism, ie criticism which is fair and honest. Put differently, an
act done in the exercise of a right is not a wrongful act, and can therefore not constitute an
injuria. Honest criticism is such an act. … Whether in given circumstances criticism may be
regarded as legitimate must depend upon, inter alia, the relationship of the parties involved
and the nature of the affairs they engage in. Businessmen who engage in competition (like
politicians who take part in public life) expose themselves to, and must expect, a greater
degree of criticism than the average private individual.
The judgment raises a number of interesting issues:

• Relying on Melius de Villiers,15 the Court set out16 the three essential requirements for establishing an
action for iniuria: intention, a wrongful overt act, and an aggression upon another’s right in the form of
an impairment of the other person’s dignity and reputation. Note that here the term ‘iniuria’ was used in
its broadest sense, because the Court was setting out the requirements in respect of all types of rights
normally associated with the actio iniuriarum and the requirements were not restricted to instances of
insult. However, after setting out the requirements, the Court proceeded to focus on aspects of iniuria in
the narrow sense of offensive and insulting behaviour.
• The Court suggested that, logically, we should start the enquiry with the second requirement, the
wrongful conduct. We hold a different view, and suggest that the third requirement, the impairment of
the personality right, should be the logical starting point, for without the harm element there can be no
delict.
• Both Melius de Villiers and the Court speak of a wrongful ‘act’. We suggest that, unlike in criminal law, it
is incorrect to focus on the conduct element when assessing wrongfulness. This is because courts
decide wrongfulness based on all the circumstances. It is the causal sequence resulting in the harm
caused that is either wrongful or not. So, we would disagree with the Court’s approach in suggesting that
after it has been found that the elements of wrongfulness and intention exist that the plaintiff has to
prove that his dignity was impaired.
• The Court also indicated that once conduct is considered to be wrongful, a rebuttable presumption of
animus injuriandi arises. While this statement is in line with previous authority, it is not compatible with
what happens when infringements of other personality rights occur. In defamation, for example, the
infringement of a person’s reputation leads to two rebuttable presumptions, one of wrongfulness and
one of animus. We suggest, therefore, that the plaintiff should instead prove that a personality right
(dignity) has been infringed/factually disturbed, in which event presumptions of wrongfulness and
intention will arise. The defendant will then bear the onus of rebutting those presumptions.
• The Court also said that the presumption of animus may be rebutted by one of the recognised ‘grounds
of justification’. However, to avoid confusion, we should restrict the term ‘grounds of justification’ to
defences excluding wrongfulness – that is, those that justify a person’s conduct. Defences aimed at
negating intention, such as mistake or jest, do not justify a person’s conduct and so do not fall into this
category.
• The judgment highlights the fact that the harm element – the impairment of dignity – involves a
subjective inquiry, and that an intentional infringement of dignity on its own cannot constitute an iniuria.
All three requisite elements need to be present. For example, in Walker v Van Wezel17 the Court stated
that:
Although the effect of the words used upon the person to whom they are
addressed is not irrelevant, the fact that he feels himself aggrieved is only
one element in the injuria; the communication itself must be of an insulting
or offensive nature … .
• Therefore, not only must the plaintiff feel subjectively insulted, but the behaviour, regarded objectively,
must also be of an insulting nature. We assess this by considering wrongfulness, for which the test is the
criterion of reasonableness. This enquiry involves objectively assessing the situation according to the
norms of society.
• The Court added a rider to its statement that liability arises when the three prerequisites are present:
‘subject to the principle de minimis non curat lex’. We suggest that, while the idea is correct, the Court
should not have presented this principle as a rider. This principle is an expression of society’s norms
(defendants should not be liable for compensation in respect of trivial matters) and should, therefore,
properly be assessed as part of the wrongfulness enquiry.
The Court found that, despite Delange subjectively feeling that he had been insulted, this did not
constitute an iniuria, for the comments were more similar to honest criticism that did not exceed
legitimate bounds. The Court also took into account the fact that both Delange and Costa were
businessmen who were expected to display mutual robustness in their dealings with one another.
Accordingly, the wrongfulness prerequisite for liability had not been established.
Cele v Avusa Media Limited18

The plaintiff, a high-ranking politician who had made certain statements calling on the police to ‘shoot to
kill’ when dealing with criminals, claimed that the Sowetan newspaper had insulted him by publishing a
digitally altered image of him which depicted him as a sheriff in the ‘Wild West’. The Court held that the
image would have been understood by reasonable readers of the Sowetan to mean that the plaintiff was
taking a tough stance on crime and that, like a sheriff in the Wild West, he wanted criminals to be harshly
dealt with by the police and brought to justice, either dead or alive.19 The Court found that this image
was satirical (a caricature or parody) and was protected by the right to freedom of expression.20 In
addition, the Court held that the image was not realistic and would not have been regarded by a
reasonable person as a genuine depiction of the plaintiff.21 The Court held that a reasonable person in
the position of the plaintiff (in other words, a reasonable seasoned politician) would not have felt
insulted and humiliated by the image.22 Accordingly, the interference with the plaintiff’s right to dignity
was not wrongful, and the action for insult failed.23
Note that posting offensive and injurious statements to a Facebook page

constitutes insult for the purposes of the actio iniuriarum.24
The final requirement is intention, which in this instance retains its
ordinary meaning – namely, that a person must have directed his or her
will towards achieving the wrongful consequence (to offend or insult the
other person), and that he or she knew that what he or she was doing was
wrong, in that it would not carry society’s approval. Once the plaintiff has
proved the infringement of dignity (factual disturbance of the personality
right), a rebuttable presumption of intention arises to assist the plaintiff.
The onus is then on the defendant to raise and successfully establish a
defence excluding intention (for example, mistake, jest or provocation) in
order to escape liability.
PAUSE FOR Breach of promise to marry

REFLECTION In Van Jaarsveld v Bridges 25 Harms DP stated that:
the time has arrived to recognise that the historic approach to
engagements is outdated and does not recognise the mores of our
time, and that public policy considerations require that our courts
must reassess the law relating to breach of promise.26
The Court, accordingly, found that breach of promise did not in itself give rise to
a claim, and that an action lies only if the elements of the actio iniuriarum are
met.
Van Jaarsveld had been engaged to Ms Bridges. A month prior to the
scheduled marriage, Van Jaarsveld sent Bridges a text message terminating the
engagement. Bridges had three previous marriages, and Van Jaarsveld’s choice
of her as his potential wife did not find favour with his mother, who thought
Bridges had ulterior motives in wanting to marry her son. Van Jaarsveld thus
stated in his message that, after giving the matter serious thought, it seemed to
him that the marriage should not take place. In apologising for the inconvenience
and hurt his actions were likely to cause, he stated it was more appropriate not
to go through with the marriage than to proceed with it and later be forced to
divorce.
The Court noted that an engagement, being a contract, could be cancelled
without financial consequences if there is just cause for such cancellation.27 Just
cause is usually defined as any event or condition or actions of the other party
which would jeopardise a long and happy marriage, and which would induce any
right-minded member of society to rescind the engagement. Unwillingness to
marry is clear evidence of the irretrievable breakdown of the engagement, and it
would be illogical to attach more serious consequences to an engagement than
to a marriage. The Court preferred not to commercialise the engagement
relationship and rejected the concept that parties, when promising to marry,
contemplate that a breach of their engagement would have financial
consequences as if they had in fact married.28 Accordingly, contractual damages
were not awarded.
To found a claim for delictual damages, Bridges had to show that she had
suffered an iniuria – in other words, that the engagement had been brought to an
end in an intentionally insulting (contumelious) manner 29 in circumstances
society would consider wrongful, regardless of whether the contractual
repudiation had been justified.30 The manner in which the engagement was
brought to an end was central to the issue of liability, and the fact that the
feelings of the ‘innocent’ party were hurt or that he or she felt slighted or jilted
was not enough.
The Court found that the manner in which Van Jaarsveld notified Bridges of
his intention not to go through with the marriage was not contumelious or
insulting, and the claim for delictual damages was also denied. The injury or
contumelia was considered to be de minimis.
• Is a delictual claim for mere breach of promise still justifiable in modern
society, or was the Court correct in saying that such claims can be
entertained only if the principles of the actio iniuriarum have been met?
• The Court found that whether or not the breach of contract was wrongful
and without just cause did not affect the delictual claim, and that
wrongfulness in delict constituted a separate enquiry.31 Was the Court
correct in stating that there could still be a delictual claim even where
there had been a just cause for repudiating the engagement?
• The Court said that words:
which might wound the self-esteem of the addressee but which are not,
objectively determined, insulting (and therefore wrongful) cannot give
rise to an action for injuria.
• The Court went on to say:
Importantly, the character of the act cannot alter because it is
subjectively perceived to be injurious by the person affected thereby.32
• Do you agree that Van Jaarsveld’s actions were not insulting, even though
Bridges felt insulted? Should a person whose feelings have been hurt not
have those feelings assuaged in some way?
• Is the principle of de minimis non curat lex applicable in delictual cases?
What function does the principle serve?
After Wiese v Moolman 33 confirmed the validity of an innocent spouse’s

action for delictual damages against an adulterous third party, the
question arose as to whether the action should continue to exist in our
law. In RH v DE 34 both the Supreme Court of Appeal and thereafter the
Constitutional Court held that the action for adultery should be
abolished, albeit for different reasons.
RH v DE35
The plaintiff husband claimed damages from a third-party defendant arising out of adultery the third party
had committed with the plaintiff’s wife. Damages were claimed for both contumelia (humiliation) and
loss of consortium (comfort and society between spouses). The Court held that the claim for loss of
consortium could not succeed. Since the plaintiff and his wife had separated prior to the first instance of
adultery, the adultery had not caused the loss of consortium and the defendant could not be held
responsible for it.36 On the other hand, potentially, the claim in respect of contumelia could succeed –
provided the action for adultery was itself still valid.37
The Court observed that an action for damages for adultery was no longer available in most Western
countries,38 which would suggest that the action is seen as outdated and archaic.39 The arguments
supporting its retention were based on the need to protect the institution of marriage, as well as the
wronged spouse’s need to be compensated for the harm he or she had suffered.40 As to the first issue,
the Court held that the institution of marriage was important and should be protected,41 but that the
adultery action had little deterrent effect and therefore did not protect the institution of marriage in any
meaningful way. Marriages are held together by the moral commitment of the parties to them, not by the
threat of litigation.42 In addition, adultery is not necessarily the reason for the breakdown of a marital
relationship. In many cases, the adultery is merely a symptom of a marriage in crisis. Therefore, it cannot
be said that making a third party pay damages for having engaged in adultery would in any way protect
an already dysfunctional relationship.43
As regards the question whether the action for adultery provided necessary solace or compensation
for the aggrieved spouse, the Court held that in today’s society a reasonable person whose spouse had
committed adultery would not feel humiliated or insulted by such conduct. Accordingly, there was no
need for the action.44 The Court noted that actions for adultery often cause great pain and
embarrassment for everyone involved. They are also very expensive for both parties, yet the damages
awarded by courts in these cases are usually minimal.45
The above arguments militated strongly against the continued recognition of the action for adultery.
The Court felt that:
the time has come for our law to recognise, in harmony with most other legal systems, that in
the light of changing mores, these reasons advanced for the continued existence of the action
have now also lost their persuasive force.46
It concluded that social values have shifted to the degree that the legal convictions of the community no
longer support a finding that adultery is wrongful conduct for the purposes of the law and held that: ‘(i)n
the light of the changing mores of our society, the delictual action based on adultery of the innocent
spouse has become outdated and can no longer be sustained’, and ‘the time for its abolition has
come’.47
DE v RH48
The Constitutional Court endorsed the Supreme Court of Appeal’s finding, but grounded its decision on
fundamental rights and constitutional considerations. The Court held that the act of adultery was no
longer wrongful and therefore should not give rise to a cause of action under the actio iniuriarum for
contumelia and loss of consortium. The action for adultery brought by the innocent spouse had a
deleterious impact on the constitutional rights to privacy, freedom and security of the person and
freedom of association of both the adulterous spouse and the defendant third party.
The key issue for the Court was: ‘whether nowadays the act of adultery meets the element of
wrongfulness in order for delictual liability to attach’ and this ‘pivotal question concerns wrongfulness’.49
The common law, including the law of delict, had to be developed in accordance with the
Constitution,50 and this entailed developing the common law in accordance with extant public policy,51
infused with constitutional norms.52 Madlanga J, for the majority, explained the rights-based reasons for
abolishing the action for adultery as follows:53
The right of a non-adulterous spouse that is implicated by the act of adultery is the right to
dignity. Not surprisingly, that is the right that the applicant asserts. Undoubtedly, adultery has
the potential to infringe the non-adulterous spouse’s right to dignity … . Adultery … entails a
significant intrusion of a third party into a person’s most intimate relationship without their
consent. That intrusion is not made any less severe by present day attitudes towards adultery.
Nevertheless, this potential infringement of dignity must be weighed against the infringement of
the fundamental rights of the adulterous spouse and the third party to privacy, freedom of
association and freedom and security of the person. These rights demand protection from state
intervention in the intimate choices of, and relationships between, people. This must be viewed
in light of current trends and attitudes towards adultery both nationally and internationally.
These attitudes also demonstrate a repugnance towards state interference in the intimate
personal affairs of individuals.
I am led to the conclusion that the act of adultery by a third party lacks wrongfulness for
purposes of a delictual claim of contumelia and loss of consortium; it is not reasonable to
attach delictual liability to it. That is what public policy dictates. At this day and age it just
seems mistaken to assess marital fidelity in terms of money.
Mogoeng CJ and Cameron J wrote a separate concurring judgment in which they stressed that the law
created a regulatory framework for concluding a marriage and set out the obligations of the parties to it,
but that the essence of marriage was the moral commitment of the parties to it to sustain it. Accordingly,
the law could not prop up an ailing marital relationship with a delictual damages claim: 54
I am in agreement with these views. The law does and can only create a regulatory framework
for the conclusion of marriage and the enforcement of obligations that flow from it. It can also
help ensure that barriers to family life are removed. The rest is in the hands of the parties to the
marriage. Barring exceptions, they decide freely to get married and it is within their ability to
protect their marriage from disintegrating.
… Like the Supreme Court of Appeal, I also believe that parties’ loss of moral commitment to
sustain marriage may lead to its failure. For abuse of one by the other and other factors that
could lead to the breakdown of marriage are, in my view, likely to creep in when that
commitment ceases to exist.
The law cannot shore up or sustain an otherwise ailing marriage. It continues to be the primary
responsibility of the parties to maintain their marriage. For this reason, the continued existence
of a claim for damages for adultery by the ‘innocent spouse’ adds nothing to the lifeblood of a
solid and peaceful marriage.
PAUSE FOR Criminal defamation

Were the courts correct in abolishing the action in its entirety? Are there not
REFLECTION
circumstances in which public policy might regard extra-marital relationships as
wrongful? Could there not be circumstances where the extra-marital relationship
unacceptably interferes with the dignity and self-esteem of the innocent spouse?
It may well be that the innocent spouse might have a claim in such
circumstances, not by way of an action for adultery, but for an infringement of
dignitas.55
27.3 Conclusion
The right to dignitas (in the narrow sense) means the right not to be
insulted. If a person through words or conduct wrongfully and
intentionally interferes with another person’s right to dignity, the
insulted person is entitled to damages in delict. In line with general
principles, the plaintiffis required to prove that his or her right has been
factually disturbed by proving on a balance of probabilities that he or she
subjectively felt insulted or demeaned by the conduct. The onus then
shifts to the defendant to justify the factual disturbance, either by proving
on a balance of probabilities that the conduct in question was not
objectively insulting, or that it was for some other reason justifiable in the
circumstances (the wrongfulness enquiry). Animus iniuriandi can be
rebutted by raising one of the defences excluding intention, such as
mistake, jest or provocation. As in all claims brought under the actio
iniuriarum, a court must consider the matter against the prescriptive
normative framework of the Constitution, by weighing the constitutional
rights to freedom of expression and dignity in deciding whether or not to
allow the claim.
1 1995 (3) SA 391 (CC) para 328.

2 2010 (4) SA 210 (SCA).
3 Para 20.
4 Cele v Avusa Media Ltd [2013] 2 All SA 412 (GSJ) para 41; Greeff v Protection 4U h/a Protect
International 2012 (6) SA 392 (GNP) at 408–409.
5 Brenner v Botha 1956 (3) SA 257 (T); Delange v Costa 1989 (2) SA 857 (A). In the former case,
the plaintiff was called ‘a bloody bitch’ and told ‘your face makes me want to be sick’.
6 Boswell v Union Club of South Africa (Durban) 1985 (2) SA 162 (D). In this case, the
insulting conduct complained of was the unlawful expulsion of the plaintiffs from a private
club.
7 1979 (1) SA 441 (A) at 453–457.
8 1980 (3) SA 24 (C).
10 See also Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as
Amici Curiae) 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC).
11 Cele v Avusa Media Ltd [2013] 2 All SA 412 (GSJ) para 41; Greeff v Protection 4U h/a Protect
International 2012 (6) SA 392 (GNP) at 408–409.
12 1989 (2) SA 857 (A).
13 At 860I–861F.
14 At 862E–I.
15 De Villiers The Roman and Roman-Dutch Law of Injuries: A Translation of Book 47, Title 10
of Voet’s Commentary on the Pandects with Annotations by Melius de Villiers (1899) at 27.
16 At 860.
17 1940 WLD 66 at 71.
18 [2013] 2 All SA 412 (GSJ).
19 Para 28.
20 Para 47.
21 Para 45.
22 Para 46.
23 Para 49.
24 Dutch Reformed Church Vergesig v Sooknunan 2012 (6) SA 201 (GSJ) paras 86–99.
25 2010 (4) SA 558 (SCA).
26 Para 3.
27 Para 5.
28 Para 8.
29 Para 4.
30 Para 4.
31 Para 19.
32 Para 19.
33 2009 (3) SA 122 (T).
34 2014 (6) SA 436 (SCA); 2015 (5) SA 83 (CC).
35 2014 (6) SA 436 (SCA). For a critical discussion of this case, see Carnelley
‘Vonnisbespreking: Die doodskoot vir of slegs die verwonding van die eis teen die
derdeparty-egbreker? RH v DE 2014 6 SA 436 (HHA)’ (2015) 12(2) LitNet Akademies at 333–
346, in which the author criticises the Court for having failed to engage in the section 39(2)
enquiry mandated by the Constitution, and for its superficial comparative legal approach.
For an explicitly feminist critique of the judgment, see Bonthuys ‘RH v DE: A Feminist
Minority Judgment on Adultery’ (2015) 31(2) SAJHR at 379–400, where the author crafts a
notional feminist minority judgment on the issues. In PV v AM 2015 (3) SA 376 (ECP), the
Court held that oral sex is sufficient to ground a claim for loss of consortium and iniuria
under the actio iniuriarum (paras 31–35). However, this decision preceded RH v DE.
36 Paras 13 and 15.
37 Para 15.
38 Paras 21 and 27.
39 Para 21.
40 Para 28.
41 Para 33.
42 Para 34.
43 Para 34.
44 Para 35.
45 Para 39.
46 Para 38.
47 Para 40.
48 2015 (5) SA 83 (CC).
49 Para 11.
50 As mandated by section 39(2).
51 Para 16.
52 Para 17.
53 Paras 60–63 (footnotes omitted).
55 See Bonthuys (fn 35), who argues in her feminist ‘minority judgment’ that the action for
adultery should be maintained in a limited category of cases (para 51).
Chapter 28
Infringements of privacy
28.1 Introduction
28.5 Conclusion
28.1 Introduction
Privacy, like dignity, involves both constitutional and common-law
concepts. Privacy is a self-standing right in our Constitution,1 but at
common law the right to dignity (in the wide sense) includes the right to
privacy and is protected under the actio iniuriarum.2 So, although the
right to privacy exists as an independent personality right, courts
perceive such claims as infringements of dignity. Nonetheless, courts
recognise that the concepts of dignity and privacy are different, because
proof of contumelia is not a prerequisite for establishing a privacy claim.3
In line with general principles, for liability to arise there must be (a) a
factual violation of the right to privacy that was (b) wrongful and (c)
intentional. The right to privacy can be infringed in two main ways: (i) an
intrusion on the private realm (for example, by reading a private and
confidential letter addressed to another person, or by listening in on a
person’s private telephone conversation) and (ii) a disclosure of private
facts to the public (for example, publishing private facts about a person’s
life in the media, both traditional and online).
Courts assess wrongfulness in privacy cases by examining a wide
range of policy considerations, including constitutional norms. If
publishing a private fact was in the public interest (for example, the
private conduct of a politician that might have an impact on how he or
she performs his or her public functions), a court may well regard the
harm caused to that person’s right to privacy as reasonable in the
circumstances. Consent is a wrongfulness defence often used to justify
the publication of private facts about a person. However, the courts have
stressed that a limited and specific consent given by a person to make
public certain private facts about himself or herself cannot be used as a
blanket justification for the publication of those facts in any manner or
form.4 In particular, if a person consents to the publication of private facts
about him or her to a limited range of persons, such consent cannot then
be used as the basis for the mass publication of those facts.5
Unlike in the law of defamation, courts have not extended the fault
requirement in privacy cases involving media defendants to include
negligence. Accordingly, a media defendant in a privacy case need only
rebut the presumption of intention in order to escape liability. However,
there are signs that this position could change in the future.6

Simply put, the right to privacy is the right to be left alone.7 It includes
freedom from intrusion and interferences, as well as from unauthorised
disclosures of information about a person’s private life.8 Therefore, each
person has the right to decide what he or she would like to keep private,
and when and under what conditions his or her personal life can be
made public. The right to privacy refers to the most personal aspects of a
person’s existence, often referred to as a person’s inner sanctum or the
truly personal realm (such as a person’s family life, sexual orientation
and home environment), which are excluded from others. The scope of
personal or private space is diminished when we consider the social
environment in which people act – for example, when they are in their
offices, in their cars or on mobile telephones.9 Although privacy is
jealously protected in the truly personal realm, as a person moves into
communal relationships and activities, such as business and social
interactions, the scope of personal space shrinks accordingly.10 In other
words, the extent to which a person can reasonably expect his or her
privacy to be protected depends on the context and circumstances.
The factual violation of a person’s right to privacy occurs when one’s
personal space is disturbed. Privacy is violated only if outsiders become
acquainted with a person’s personal life or personal affairs. This may
occur either by (i) a direct intrusion, or (ii) the unauthorised disclosure of
a person’s private facts or personal affairs to another.11 Private facts
include:12
• Contents of private correspondence
• Debts
• Physical deformities and health
• Lifestyle
• Childhood and background
• Family life
• Past activities (embarrassing facts)
• Confidential information
• Information stored in data banks.
Intrusions into a person’s private life or affairs have included a raid on a
brothel,13 watching someone undress,14 setting up bugging and listening
devices,15 entering a person’s room or private residence,16 improperly
interrogating a detainee,17 listening to private conversations through
unlawful tape recordings,18 and taking an unauthorised blood test.19
S v A20
In this case a private detective had installed a bugging device in the plaintiff’s apartment. He was
instructed to do so by an estranged wife pending divorce proceedings. She suspected that her husband
was having an affair, and the purpose of the device was to listen in on his private conversations. The
private detective was found guilty of crimen iniuria, and the Court held that his conduct amounted to a
serious violation of the complainant’s dignity.
• Although this was a criminal case, the issues were similar to those found in delict.
• The Court held that dignity was violated in this case. However, subsequently our courts have clarified
concepts and today they would see it as an invasion of privacy.
Pretorius v Minister of Correctional Services21

In this case, the applicant applied for an interdict to prohibit prison authorities from broadcasting certain
radio programmes into his prison cell. The Court granted the application on the ground that the broadcast
infringed the applicant’s right to acoustic privacy which, according to the Court:
normally includes the right not to have one’s personal space invaded by any broadcast to which
the individual has not consented to be exposed.22
Developments in technology and electronic communication have

threatened and compromised the protection of privacy in certain
circumstances, and legislation in line with constitutional provisions now
regulates this sphere quite closely.23 For example, service providers
monitor email correspondence on a regular basis and in a variety of ways.
If a person read or disclosed content, this would be an invasion of
privacy, unless the service provider could show that the monitoring took
place for a legitimate purpose.24 In S v Naidoo 25 false and misleading
information had been furnished to a judge to obtain an order (in terms of
the Interception and Monitoring Prohibition Act 127 of 1992) to tap a
telephone. Since the judge granted the order based on false information
given to him, the order was unlawful and the monitoring was accordingly
declared an unlawful violation of the accuser’s right to privacy.
Employers may also monitor employees’ electronic communication
provided that it is reasonably connected to business activity.
PAUSE FOR Privacy threats in the online world

Privacy has become a scarce commodity in the virtual world of the internet. Once
REFLECTION
a person starts interacting online, much of his or her personal information
becomes available to numerous other online users. Many websites use ‘cookies’
to track an individual’s online interaction – which websites a person visits and
the links he or she clicks on. A visit to an online retailer and a mere click on an
item may result in a person finding for some time thereafter that the same item is
displayed in adverts on many other sites the person visits. While this might seem
benign, it has implications for one’s privacy rights. Each website might track only
a small portion of a person’s online visiting habits or online purchases, but as
sites share information, the aggregation of data leads to a threat of data mining
(where small pieces of one’s private information collected from different online
sources are aggregated in one site, called a data bank). The aggregated
information may contain sensitive information ranging from personal details,
such as age or weight, to shopping behaviours, credit histories, banking details,
criminal records and medical information. Data-bank owners use a person’s
information for their own purposes, or sell the information to other users. The law
of delict is not ideally placed to deal with such threats to persons’ privacy, which
is why the Protection of Personal Information Act 4 of 2013 (‘POPI’) was enacted
to help protect each person’s online information. Is there still room for delict to
play a role?
PAUSE FOR Protection of Personal Information Act 4 of 2013

POPI aims to ensure that data consisting of or containing personal information is
REFLECTION
collected, processed, stored and shared in a manner that protects the right to
privacy of South African citizens. The Act applies to the processing of personal
information,26 and provides that this must take place lawfully.27
POPI provides a data subject (the person to whom personal information
relates) with certain key rights, including the right to institute civil proceedings
regarding an alleged interference with his, her or its personal information.28 POPI
envisages that it is possible to bring a claim for damages in delict arising out of a
wrongful and culpable interference with one’s personal information. In this
regard, a data subject or, at the request of a data subject, the Regulator
established in terms of the Act, may institute a civil action for damages in a court
having jurisdiction against a responsible party for an interference with the
protection of personal information of a data subject,29 whether or not there is
intention or negligence on the part of the responsible party.30 POPI provides for
strict liability in delictual actions brought in terms of POPI in respect of
interferences with the protection of personal information of a data subject. A
court may award damages for both patrimonial and non-patrimonial loss, as well
as ‘aggravated damages’ suffered by a data subject in such circumstances.31
Disclosures of private information or personal facts occur when one

person publicises known private facts about another person who is
unaware that they are being publicised. Common examples include
unauthorised use of photographs,32 publishing a love story in a
magazine,33 a doctor telling colleagues that a patient has Aids,34 and mass
publication of the HIV status of persons.35 Posting personal details, such
as a person’s private email address and telephone number, to a Facebook
page also constitutes an unlawful disclosure of private facts.36
Most intrusions involve individuals becoming aware of private
information or personal facts about others. Such information may or may
not be published to third parties. If the individuals do publish it to others
in an unauthorised manner, it would give rise to an additional action for
invasion of privacy based on wrongful publication of private facts.
Irrespective of whether the violation occurs as an intrusion or a
disclosure, the invasion of privacy must also have been wrongful. General
principles apply, and the court must be satisfied that the invasion
occurred in a manner that justifies the imposition of liability in delict. In
accordance with general principles, courts use the general criterion of
reasonableness (the boni mores or legal convictions of the community)
to determine whether they should recognise a claim. Factors that courts
consider include whether the sense of justice in the community would
dictate that confidentiality should be protected in the circumstances (for
example, a doctor-patient relationship37 or boardroom deliberations),38
whether a public value or constitutional right such as freedom of
expression is involved, or whether the information disclosed is of public
concern. Society might, for example, recognise a claim where a person’s
extra-marital sexual behaviour is exposed, but not if that person is a
celebrity who touts himself or herself as a person of sound moral values.
So, even though the information disclosed is often true, the issue is
whether the disclosure was made in the public interest.
Mhlongo v Bailey39
A magazine published an article entitled ‘Dolly and Her Men’ about a celebrity. The article contained
photographs of what was termed ‘the young men in her young life’. Two photographs were of Mhlongo,
one of him as a younger man and a more recent one. Mhlongo sued for invasion of privacy. The Court
held:40
The mere unauthorised publication of photographs does not necessarily in itself entitle the
aggrieved party to damages, and the question whether such publications constitute an
aggression upon a person’s dignitas will depend upon the circumstances of each case, the
nature of the photograph, the personality of the plaintiff, his station in life, his previous habits
with reference to publicity and the like.
The traditional defences associated with the actio iniuriarum would also
be relevant in determining wrongfulness, as was the case in Jansen van
Vuuren v Kruger,41 where a doctor who had disclosed the HIV status of
his patient raised the defence of privileged occasion, albeit
unsuccessfully.
National Media Ltd v Jooste42
Jooste, the lover of a well-known rugby player, was interviewed about their relationship and the child
subsequently born of it. She agreed to the publication of two articles in You and 0 magazines, on
payment, subject to her approval of the final version of the article and photographs, and on an agreed
publication date. The publishers presented her with a draft article before publication, and she requested
that certain amendments be made to it. She also requested that the publication be delayed, although
the publishers were keen to publish as soon as possible. When the publisher failed to abide by certain
contractual conditions, Jooste withdrew her consent to publish the articles. The publishers nonetheless
went ahead and published them. About a week later, Jooste received and accepted payment. She then
instituted a claim for damages, alleging that the publication of the article had invaded her privacy.
The judgment raised the following issues:

• The private facts must be worthy of protection:
The general sense of justice of the community as perceived by the Court …

does not, in a case such as this, require the protection of facts whose
disclosure will not ‘cause mental distress and injury to anyone possessed of
ordinary feelings and intelligence, situated in like circumstances as the
complainant’.43
• The law will not protect information that an individual does not want to keep private. However, an
individual cannot solely determine what constitutes private information:44
The boundary of a right or its infringement remains an objective question.

As a general proposition, the general sense of justice does not require the
protection of a fact that the interested party has no wish to keep private.
• The individual must subjectively want the information to be kept private and society’s general sense of
justice must also consider that the information should be protected.
• What is the scope of the right to privacy? The Court said:45
A right to privacy encompasses the competence to determine the destiny of

private facts … . The individual concerned is entitled to dictate the ambit of
disclosure, for example to a circle of friends, a professional adviser or the
public … . He may prescribe the purpose and method of the disclosure … .
Similarly … a person is entitled to decide when and under what conditions
private facts may be made public. A contrary view will place undue
constraints upon the individual’s so-called ‘absolute rights of personality’ …
.
• The appellants alleged that Jooste had consented to the publication in terms of an agreement between
them and so, in the circumstances, she could hardly claim an unlawful invasion of her privacy right.
According to the Court:
[i]t is axiomatic that the defence of consent can only succeed if the prima
facie wrongful act falls within the limits of the consent … .46
• On the facts, the publication did not comply with the terms of consent, and even though Jooste had
accepted payment from the publishers, the publication had violated the terms of consent.
Not only does an infringement of privacy have to be wrongful, it also has

to be intentional. The general principles in respect of animus iniuriandi,
or intention to injure, also apply to privacy cases. This means that
intention is a subjective concept that involves the direction of the
defendant’s will towards infringing the plaintiff’s privacy, and the
defendant’s knowledge that such infringement is wrong in the
circumstances. The defences that negate fault also apply; in particular,
the defence of mistake. Jest and provocation could also be used to rebut
the presumption of intention.
NM v Smith (Freedom of Expression Institute as Amicus Curiae)47
The applicants were three HIV-positive women who lived in informal settlements near Pretoria. The
respondents were a journalist, Charlene Smith, a Member of Parliament, Patricia de Lille, and a
publisher, New Africa Books. The applicants had participated in clinical trials for a combination of HIV
drugs run by the University of Pretoria’s medical faculty. Along with other participants in the trials, the
applicants had raised concerns about illness and fatalities among those involved. They also raised these
concerns within the support group for people living with HIV/Aids they had been attending. The priest
who ran the support group approached De Lille and asked her to investigate their complaints. She
subsequently met with some of the participants in the trials, including the applicants. The university
commissioned an external enquiry into the conduct of the trials. The enquiry issued a report that
exonerated the medical faculty and the doctor in charge of the trial. The report contained the applicants’
names and indicated their HIV-positive status. This report was sent to a number of interested parties,
including De Lille. But the copy sent to De Lille lacked certain annexures to the full version.
Smith was later commissioned by New Africa Books to write De Lille’s biography. The book contained
an account of the events leading up to the publication of the report, and it revealed the names and HIV-
positive status of the applicants as included in the report, which De Lille had sent to Smith to assist her
in her research. However, when the book was published, the applicants sought an urgent interdict to
prevent further circulation of these details, arguing that they had not consented to their mass
publication. Their consent had extended only to the report itself, which was intended for limited
circulation. The limited terms of their consent appeared only in the annexures to the report, which had
not been sent to De Lille. The report itself merely stated that the applicants had agreed to their names
being published, and there was no indication the report was confidential.
The applicants brought an action for the violation of their rights to privacy, dignity and psychological
integrity resulting from the publication of their names and HIV-positive status without their consent.
When the matter came before the Constitutional Court, the majority upheld the objective test for private
information adopted in National Media Ltd v Jooste.48 Private facts are:
those matters the disclosure of which will cause mental distress and injury to anyone possessed
of ordinary feelings and intelligence in the same circumstances and in respect of which there is
a will to keep them private.
The respondents contended that the information was already in the public domain and there was no
intention to keep the facts private. However, the majority found that the applicants had never consented
to the wide circulation of the information, and that there were strong privacy interests in maintaining
confidentiality of sensitive medical information.49 It was in the public interest that the autonomy of such
information was recognised and respected.50 (In a separate judgment, O’Regan J pointed out that simply
because the information had reached some people did not necessarily place that information in the
public domain.)51 Accordingly, the applicant’s right to privacy had been infringed.
Turning to the right to dignity, the majority confirmed that, while there is nothing shameful about living
with HIV or Aids, it is nonetheless:
an affront to the infected person’s dignity for another person to disclose details about that
other person’s HIV status or any other private medical information without his or her consent.52
In this instance, the rights to dignity and psychological integrity had also been infringed.53
There are two points to note:
• The applicants sought to vindicate their constitutional rights through the medium of the actio iniuriarum,
yet:
[w]hile the claim falls to be dealt with under the actio iniuriarum the
precepts of the Constitution must inform the application of the common
law.54
• This judgment confirms the modern trend to separate the common-law rights to privacy and dignity.
Although under the actio iniuriarum fault has always taken the form of
intention, there are signs that in the future negligence might also suffice
in privacy cases. In NM v Smith 55 the majority of the Constitutional Court
confirmed the traditional approach to fault and declined to extend
liability under the actio iniuriarum to negligent conduct. However, two
judges delivering minority judgments were open to the idea.
NM v Smith (Freedom of Expression Institute as Amicus Curiae):56Minority judgment
In a minority judgment, O‘Regan J considered whether the Court should extend the common-law
requirements for liability under the actio iniuriarum to include negligent infringements of privacy. O’Regan
J and Langa CJ also thought that there were sound reasons for distinguishing between ordinary
defendants and those whose business it is to circulate information, and both held that the author and
publisher were media defendants.57
Although O’Regan J thought that the principles that apply to defamation do not necessarily apply to
privacy cases, she concluded that the common-law requirements for fault in privacy cases should be
similarly modified:
… it is appropriate to require the media when publishing private facts without consent to
establish either that the publication is reasonable in the circumstances, in which case they will
rebut wrongfulness, or that they have not acted negligently in the circumstances in which
instance they will need to rebut the requirement of intention.58
Based on the facts, O’Regan J found that the author and publisher had not been negligent. Langa CJ
disagreed, holding that a reasonable journalist or publisher would have foreseen the possibility that there
had not been consent to disclose the information and would have guarded against the possibility of
publishing the material without consent.59 Accordingly, he considered them liable in damages.
The result of the minority judgments is that the usual fault principles apply, except in respect of media
defendants, who may also be exposed to liability if their conduct is negligent. In such cases, the fault
element is intention. In line with general principles, once a plaintiff proves that his or her privacy was
violated, courts then presume that the media defendant intentionally committed this violation. Other
defendants (that is, those who are not media defendants) can rebut this by showing that there was no
intention, but media defendants have to show not only that they did not intend the violation, but also
that they were not negligent. Only then is the presumption of intention rebutted.
Our law on this point is in a state of flux. One interpretation is that fault can now take the form of
either intention or negligence, because the practical effect of judgments like this one is that media
defendants have to rebut both a presumption of intention and a presumption of negligence. Another
view is that there is still only one presumption – of intention – and the negligence in question does not
refer to the negligent conduct, but to the defendant’s state of mind (that the media defendant had
negligently believed that publishing the private information was not wrongful in the circumstances, yet a
reasonable media defendant would have realised that such publication was or might be wrongful in the
circumstances). Accordingly, the media defendant cannot claim to have lacked intention, because it
failed to do what a reasonable media defendant would have done in the circumstances.

Historically, the actio iniuriarum was available to protect the personality
rights of natural persons only, based on the traditional acceptance that
artificial or juristic persons cannot have rights that are closely associated
with being human. By implication, it followed that the actio iniuriarum
was not available to juristic persons, because they have ‘no feelings to
outrage or offend’. 60 However, in Universiteit van Pretoria v Tommie
Meyer Films (Edms) Bpk,61 the Court gave some recognition to a
university having a right to privacy and a right to identity, because on
appeal the Court accepted (without deciding) that the university had a
right to privacy, dignitas in the sense of esteem, and fama that could be
infringed in certain circumstances.62 This was confirmed in Financial
Mail (Pty) Ltd v Sage Holdings Ltd,63 where the Appellate Division
indicated that:
as a matter of general policy, the courts have, in the sphere of personality rights,
tended to equate the respective positions of natural and artificial (or legal) persons
where it is possible and appropriate for this to be done.64
In privacy and identity cases, which do not involve wounded feelings,

legal persons should be entitled to sue.65
With the advent of a constitutional era, the Financial Mail position
was confirmed. This is in line with section 8 of the Constitution and in
Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit
NO 66 the Constitutional Court confirmed that juristic persons have a
right to privacy:
The right to privacy is applicable, where appropriate, to a juristic person … . Juristic
persons are not the bearers of human dignity. Their privacy rights, therefore, can
never be as intense as those of human beings. However, this does not mean that
juristic persons are not protected by the right to privacy. Exclusion of juristic
persons would lead to the possibility of grave violations of privacy in our society,
with serious implications for the conduct of affairs … .

Section 14 of the Constitution protects persons’ right to privacy by
prohibiting unlawful searches and seizures of their persons, homes,
property or possessions, as well as interference with the privacy of their
communications. As drafted, the right appears to be narrower than the
common-law right, but eventually Constitutional Court judgments may
indicate that the right has a broader content. However, section 14’s
primary purpose is not to provide a basis for compensation, as cases
based on this right have focused primarily on the validity of laws. For
example, in Mistry v Interim National Medical and Dental Council of
South Africa,67 the Constitutional Court declared section 28(1) of the
Medicines and Related Substances Control Act 101 of 1965, which
authorised unwarranted entry into private homes and rifling through
intimate possessions, invalid. (It has since been repealed.) More recently,
in Estate Agency Affairs Board v Auction Alliance (Pty) Ltd,68 the
Constitutional Court held that certain provisions of the Estate Agency
Affairs Act 112 of 1976 and the Financial Intelligence Centre Act 38 of
2001, which allowed Estate Agency Affairs Board officials to enter and
search premises without a warrant (non-routine ‘targeted searches’),
were unreasonably broad and unreasonably violated the right to privacy
of the persons whose premises were searched.69
Bernstein v Bester 70 provides the starting point for understanding
the constitutional right to privacy. In this case, the applicants challenged
the constitutionality of enquiries under section 417 and section 418 of the
Companies Act 61 of 1973, which allowed the summoning and
examination of persons regarding a company’s affairs. One aspect of their
challenge was that such enquiries invaded witnesses’ privacy because the
sections forced them to:
• Go to a place where they did not want to be
• Produce private books and documents that they wanted to keep
confidential
• Reveal confidential information that they wanted to keep private
• Give incriminating evidence, both orally and by producing
documents
• Participate in the hearings without being heard on the decision that
subjected them to the mechanism.71
Ackermann J took the view that no right can be considered absolute:72

Privacy is acknowledged in the truly personal realm, but as a person moves into
communal relations and activities such as business and social interaction, the
scope of personal space shrinks accordingly.
It is only in the ‘truly personal realm’ that we can expect courts to

consider extensive privacy protection as reasonable, compared with a
privacy expectation in the context of ‘communal relations and activities’.
Even though the applicants’ subjective expectation of privacy was clearly
invaded when they were forced to disclose or reveal information that they
clearly wished to keep private, it was not a reasonable expectation for the
following reasons:73
The establishment of a company as a vehicle for conducting business on the basis of
limited liability is not a private matter. It draws on a legal framework endorsed by
the community and operates through the mobilisation of funds belonging to
members of that community. Any person engaging in these activities should expect
that the benefits inherent in this creature of statute, will have concomitant
responsibilities. These include amongst others, the statutory obligations of proper
disclosure and accountability of shareholders. It is clear that any information
pertaining to participation in such a public sphere cannot rightly be held to be
inherent in the person, and it cannot consequently be said that in relation to such
information a reasonable expectation of privacy exists. Nor would such an
expectation be recognised by society as objectively reasonable.
From this, we can see that there is some similarity between the
constitutional right to privacy and its common-law counterpart.
The constitutional right to privacy can be broadly divided into cases
that involve personal autonomy, informational privacy and intrusions.
Personal autonomy cases are those in which individuals can make
personal decisions about such interests as their family relationships and
private life. For example, in Case v Minister of Safety & Security; Curtis v
Minister of Safety & Security,74 the applicants were charged with
contravening section 2(1) of the Indecent or Obscene Photographic
Matter Act 37 of 1967 (now repealed). They had been found with a variety
of video cassettes that contained sexually explicit material. The
Constitutional Court found that section 2(1) of the Act sought to impose a
ban on possessing erotic material kept within the privacy of a person’s
home. The private realm of a person’s home is a protected zone of
privacy, and therefore section 2(1) clashed with the constitutional
provision. Accordingly, it was invalid. Similarly, with respect to a person’s
sexual orientation, and the practice of sodomy in particular, the
Constitutional Court noted in National Coalition for Gay and Lesbian
Equality v Minister of Justice: 75
Privacy recognises that we all have a right to a sphere of private intimacy and
autonomy which allows us to establish and nurture human relationships without
interference from the outside community. The way in which we give expression to
our sexuality is at the core of this area of private intimacy. If, in expressing our
sexuality, we act consensually and without harming one another, invasion of that
precinct will be a breach of our privacy.
In Teddy Bear Clinic for Abused Children v Minister of Justice and

Constitutional Development 76 the Constitutional Court held that
sections 15 and 16 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007, which criminalised consensual
sexual conduct between children from the ages of 12 to 16, violated their
constitutional rights to dignity and privacy.77
The protection of the privacy of information further limits the ability
of persons to gain, publish, disclose or use information about others
without their consent.78 For example, in C v Minister of Correctional
Services,79 prison officials obtained a prisoner’s blood for HIV testing
without his consent, which the Court declared unlawful, as the blood was
drawn and the test performed without the prisoner’s informed consent.
The Bernstein notion of privacy proved its usefulness in privacy of
information cases that focus specifically on the extent to which we should
restrict collecting, using and disclosing private information. In Mistry v
Interim National Medical and Dental Council of South Africa 80 a member
of the public gave information that concerned a possible violation of the
law to the Medical Council. The Medical Council conveyed this
information to the person statutorily responsible for carrying out
regulatory inspections for protecting public health. Inspection powers in
terms of the Medicines and Related Substances Control Act 101 of 1965
were phrased widely enough to permit inspectors:
to enter any home where aspirins, ointments or analgesics happen to be … and,
once there, … (to) inspect not only medicine cabinets or bedside drawers, but also
files which might contain a person’s last will and testament, private letters or
business papers.81
By authorising intrusion into the ‘inner sanctum’, the Act permitted

violation of privacy 82 and, as noted above, the Constitutional Court
declared the legislation invalid. In doing so, the Court set out the
following factors to consider when assessing the informational aspect of
the right to privacy: 83
• Whether the information was obtained in an intrusive manner
• Whether it was about intimate aspects of the applicant’s personal life
• Whether it involved data provided by the applicant for one purpose,
which was then used for another
• Whether it was circulated to the press, general public, or persons
from whom the applicant could reasonably expect that such private
information would be withheld.
The Constitution also protects the right of individuals to decide who

should enter their homes, and further protects individuals from
unauthorised intrusions into their homes by officers of the State and
other uninvited persons.84
PAUSE FOR Social media

Social media usage often poses challenges to privacy rights. The ease with which
REFLECTION
information posted online can be accessed and shared without requiring the
permission of the original person who created the post means that an
individual’s privacy can easily be infringed. For example, an online user shares a
person’s posts and pictures with persons other than those for whom the post was
originally intended without the consent of the person who posted the information.
Privacy may also be infringed where other users post pictures they took
themselves which present another person in an unflattering light.
The unauthorised sharing of images or posts on social media could
constitute either a disclosure of private facts or an intrusion on the private realm.
As seen above, disclosures or intrusions are not prima facie wrongful, and will
only be so if the legal convictions of society would consider the posting of such
information or images to be wrongful.
A court determines the question of wrongfulness by examining the legal
convictions of the community. This raises questions as to who forms part of the
community and what the legal convictions of the community are. It could be
argued that the real-world community and the online community are two very
distinct and different entities. Online communities are often more diverse and
geographically scattered. However, when a court decides whether the harm in a
particular instance was caused wrongfully, it will judge the matter in accordance
with the sense of justice in the jurisdiction in which the conduct occurred.
The conduct of individuals in the real world often differs from their actions in
the online world. People often reveal more private information and act more
freely (and even recklessly) in the online environment than they do in a real-
world environment. Could this mean that the legal convictions of people in the
real world are different from those in the online world? Should the conduct of
users of social media not simply be judged in accordance with the ordinary
principles of delict? (It may be that people act recklessly in divulging personal
information online simply because they are not aware that much of what they
post online can be viewed and shared by others. People often assume that
messages posted to social media are private and confidential, when in fact they
are not. Moreover, the ease with which messages can be posted to or shared on
social media means users often act impulsively, not thinking through their
actions carefully.)
The judgment in Mhlongo v Bailey 85 indicates that in deciding whether a
breach of privacy has occurred a court will look at the individual’s previous
habits. This could mean that a court is more likely to hold that a wrongful breach
of privacy has occurred in respect of an individual who posts very few photos or
personal information online, in contrast to a person whose postings are prolific.
While one may sue for an infringement of privacy which has occurred online,
in reality such action is expensive, time-consuming, and often fails to provide
appropriate and effective relief. Other practical steps, such as simply asking the
website owner or social media network to remove the offensive posts, are usually
more effective. Many service providers for websites and social networking sites
have policies which regulate how offensive pictures can be removed. In addition,
an aggrieved person can ask the online user who breached that person’s privacy
to remove the offending post. If all such measures fail and the aggrieved person
successfully litigates to compel the person who posted the offensive material to
remove it,86 the court will take into account the offender’s refusal to remove the
material when deciding on an appropriate remedy, including the extent of a
damages award and costs.
28.5 Conclusion
The right to privacy is the right to be left alone and to keep personal and
confidential facts about oneself within the private domain. The right to
privacy may also be understood as relating to personal autonomy – the
right of each person to decide for himself or herself what personal facts
should be made public. Personal autonomy includes highly personal
decisions about one’s body and reproductive health, such as the decision
whether or not to receive medical treatment or terminate a pregnancy.
While privacy is a stand-alone fundamental right enshrined in the
Constitution, it is also a common-law personality right that has long been
protected by the actio iniuriarum. Accordingly, damages are recoverable
in delict when there has been a wrongful and intentional interference
with the right to privacy, either by an intrusion on the private realm or the
public disclosure of private facts. The plaintiff must prove that the right
has been interfered with and should the court be satisfied that the right
has been disturbed, the onus will be on the defendant either to justify this
infringement, by proving that the interference was in the circumstances
not wrongful, or to show that it did not occur intentionally. Lack of
intention to injure can be established by proving that there was no
direction of the will to infringe the right to privacy, or that in the
circumstances the defendant was not conscious of the wrongfulness of
his or her conduct.
The fault requirement for invasion of privacy actions remains, for the
time being, intention – for both media and non-media defendants.
However, the law on this point appears to be in a state of flux. It is
possible that in future the fault requirement for the invasion of privacy
will be aligned with that of the defamation action, and that negligence
will play a role in claims involving media defendants.
1 Constitution of the Republic of South Africa, 1996, section 14.

2 See, for example, Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) at 849 and Bernstein v
Bester 1996 (2) SA 751 (CC) paras 68–73.
3 Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A).
4 National Media Ltd v Jooste 1996 (3) SA 262 (A).
5 NM v Smith (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC).
6 See the discussion of the minority opinions in NM v Smith (Freedom of Expression Institute
as Amicus Curiae) 2007 (5) SA 250 (CC) below.
7 Warren and Brandeis ‘The Right to Privacy’ (1890–1891) 4(5) Harvard Law Review at 193.
8 Case v Minister of Safety & Security; Curtis v Minister of Safety & Security 1996 (3) SA 617
(CC) para 91.
9 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty)
Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) at 557.
10 Bernstein v Bester 1996 (2) SA 751 (CC).
11 Greeff v Protection 4U h/a Protect International 2012 (6) SA 392 (GNP) at 406–407.
12 McQuoid-Mason The Law of Privacy in South Africa (1978) at 170–199.
13 De Fourd v Town Council of Cape Town (1898) 15 SC 399.
14 R v Holliday 1927 CPD 395.
15 S v A 1971 (2) SA 293 (T).
16 S v I 1976 (1) SA 781 (RA).
17 Gosschalk v Roussouw 1966 (2) SA 476 (C); Minister of Justice v Hofmeyr 1993 (3) SA 131
(A).
19 D v K 1997 (2) BCLR 209 (N).
20 1971 (2) SA 293 (T).
21 2004 (2) SA 658 (T).
22 Para 39.
23 Electronic Communications and Transactions Act 25 of 2002; Regulation of Interception of
Communications and Provision of Communication-Related Information Act 70 of 2002.
25 1998 (1) BCLR 46 (D).
26 Section 3.
27 Section 4.
28 Section 5.
29 Interferences with the protection of the personal information of a data subject set out in
section 73.
30 Section 99(1).
31 Section 99(3). See Chapter 33 for a discussion regarding POPI and the principle of vicarious
liability.
32 Mhlongo v Bailey 1958 (1) SA 370 (W).
33 National Media Ltd v Jooste 1996 (3) SA 262 (A).
34 Jansen van Vuuren v Kruger 1993 (4) SA 842 (A).
35 NM v Smith (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC).
36 Dutch Reformed Church Vergesig v Sooknunan 2012 (6) SA 201 (GSJ) para 78.
37 Jansen van Vuuren v Kruger 1993 (4) SA 842 (A).
39 1958 (1) SA 370 (W).
40 At 371–372.
41 1993 (4) SA 842 (A).
42 1996 (3) SA 262 (A).
43 At 270H–J.
44 At 271A–D.
45 At 271G–272B.
46 At 272A.
47 2007 (5) SA 250 (CC).
48 1996 (3) SA 262 (A).
49 Para 41.
50 Para 42.
51 Para 143.
52 Para 48.
53 Para 54.
54 Para 28.
55 2007 (5) SA 250 (CC).
56 2007 (5) SA 250 (CC).
57 Langa CJ at paras 98–99 and O’Regan J at para 182.
58 Para 179. Previously National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) and Khumalo v
Holomisa 2002 (5) SA 401 (CC) followed a similar approach to defamation cases.
59 Para 111.
60 Die Spoorbond v South African Railways; Van Heerden v South African Railways 1946 AD
999 at 1011.
61 1979 (1) SA 441 (A).
62 At 455, 456 and 458.
63 1993 (2) SA 451 (A).
64 At 461F.
65 See the discussion of Media 24 Ltd v SA Taxi Securitisation (Pty) Ltd (AVUSA Media Ltd as
Amici Curiae) 2011 (5) SA 329 (SCA) in Chapter 30, where the Court addressed the question
whether, and on what basis, juristic persons can sue for defamation.
66 2001 (1) SA 545 (CC) at 557D–G.
67 1998 (4) SA 1127 (CC).
68 2014 (3) SA 106 (CC).
69 Paras 40–43. See, also, Gaertner v Minister of Finance 2014 (1) SA 442 (CC), where the
Constitutional Court similarly held that a statutory provision that allowed officials to
conduct warrantless non-routine targeted searches of any premises unjustifiably infringed
the right to privacy (paras 68–70 and 74).
70 1996 (2) SA 751 (CC).
71 Bernstein v Bester 1996 (2) SA 751 (CC) para 136.
72 Para 67.
73 Para 85.
74 1996 (3) SA 617 (CC).
75 1998 (12) BCLR 1517 (CC) para 32.
76 2014 (2) SA 168 (CC).
77 Paras 52–58 and 59–64.
78 McQuoid-Mason ‘Privacy’ in Chaskalson, Kentridge, Klaaren, Marcus, Spitz and Woolman
(Eds) Constitutional Law of South Africa, 2 ed Part II The Bill of Rights Vol 3 Chapter 38
(1996) at 18–11.
79 1996 (4) SA 292 (T).
80 1998 (4) SA 1127 (CC).
81 1998 (4) SA 1127 (CC) para 21.
82 Para 23.
83 Para 51.
84 S v Madiba 1998 (1) BCLR 38 (D).
85 1958 (1) SA 370 (W).
86 As happened, for example, in Heroldt v Wills 2013 (2) SA 530 (GSJ); [2013] 2 All SA 218 (GSJ).
Chapter 29
Infringements of identity
29.1 Introduction
29.4 Conclusion
29.1 Introduction
As pointed out in Chapter 27, the right to dignity is a broad concept that
includes the right to privacy. In turn, the right to privacy has for some
time been thought to incorporate the right to identity. More recently,
courts have recognised the right to identity as a free-standing right which,
like the right to privacy, falls within the concept of dignity in the broad
sense.

Interferences with identity can take two forms:
• Placing a person in a false light (in other words, presenting a person

in a manner which creates a false sense of who that person is) and/or
• Misappropriation of a person’s identity (for example, using a
person’s name and/or likeness without justification, usually for
commercial advantage or gain).
Sometimes an infringement of identity can simultaneously involve both

placing a person in a false light and misappropriation of the person’s
identity (it can be difficult to draw a clear line between these concepts).
In addition, an interference with identity can sometimes simultaneously
constitute an insult in the narrow sense and an infringement of the right
to privacy.
PAUSE FOR False light

A person is placed in a false light when someone makes false statements about
REFLECTION
him or her which are neither defamatory nor insulting, so as to create a false
picture of the person in the public eye.
In Kidson v SA Associated Newspapers Ltd 1 a newspaper published a false
story and photographs under the headline ‘97 Lonely Nurses Want Boyfriends’.
The nurses had previously consented to their photographs being taken for
fundraising purposes to build a recreation hall near the nursing training centre.
Some of the nurses were married, and others were engaged. A married nurse
sued for defamation and iniuria. The Court found that the nurse had been
insulted, and awarded damages for an infringement of dignity. Clearly, although
embarrassing, the story and photographs were not defamatory in the absence of
any secondary meaning (implication) or innuendo.
McQuoid-Mason points out that this is a false-light case and, accordingly, an
invasion of privacy.2 (Others view it as an infringement of identity.)
Appropriation
Appropriation occurs where a person’s image or likeness is used, without his or
her consent, for profit – for example, using a photograph for an advertisement
without the permission of the person pictured in the photograph.
In O’Keeffe v Argus Printing and Publishing Co Ltd,3 the plaintiff, a popular
radio presenter at the time, had agreed a newspaper could publish her
photograph as part of a news article. However, the newspaper used the
photograph in an advertisement for a gun manufacturer (the photograph was of
the plaintiff holding a crossbow at an archery range). The plaintiff claimed this
violated her personality interests and, in particular, constituted a violation of her
dignity. The Court found in her favour, holding that to use a person’s photograph
and name without his or her consent for advertising purposes may reasonably
constitute offensive conduct on the part of the user.4
This is an obvious case of appropriation, but, as with the Kidson case, the
principles illustrated in the judgment are no longer current. The Court framed its
discussion in terms of the concept of dignitas and did not expressly refer to the
subsidiary rights to identity and privacy.
The jurisprudence that concerns personality rights has in recent years

become more sophisticated and precise, and the prevailing view is that a
person’s identity is a distinct personality right, separate from rights in
respect of dignity and privacy. As explained in Chapter 4, a person’s right
to identity includes those aspects of, for example, one’s name or image
that distinguish one person from the next.5 Instances of false light and
appropriation involve primarily infringements of identity, and therefore
it is incorrect to equate them with infringements of privacy. In neither of
these instances is the law attempting to protect the private sphere; by its
very nature, a person’s identity extends beyond the private domain.
The principles that apply in identity cases follow the same pattern as
in privacy cases. The right to identity is an independent personality right,
but claims fall under the broad umbrella of infringements of dignitas.6
The concepts are different, however, because proof of contumelia is not a
prerequisite for establishing a claim for violating identity.7 So, in line with
general principles, for liability to arise, there must be (a) a factual
violation of a person’s identity that was (b) wrongful and (c) intentional.
A factual violation of a person’s identity occurs only when aspects
associated with a person’s name or likeness are used outside their sphere
or scope. Using an employee’s name or image in a company newsletter
would normally not constitute using that person’s identity outside its
proper sphere or scope, and no harm would therefore have occurred in
such an instance. Given the nature of the right, in that it is not associated
with personal feelings, both natural and juristic persons are capable of
having an identity and courts can assess its violation objectively.
Once the plaintiff has established the factual violation of the right,
inferences of wrongfulness and animus iniuriandi arise, which the
defendant must rebut in order to avoid liability. A court would
accordingly have to determine whether the violation has occurred in a
legally acceptable or legally unacceptable way (for example, with or
without consent), an enquiry that involves applying the usual policy
considerations.8 After this, courts must enquire into the fault element,
which, in line with principle, must take the form of intention. However,
the issues regarding negligent liability that currently arise in defamation
and privacy cases will in due course be extended into this sphere.

Violating identity may, but will not necessarily, coincide with violating
other personality rights, such as privacy or dignity. In theory, an insulting
infringement of identity would also constitute an additional infringement
of dignity, and a violation of a private aspect of a person’s identity (for
example, unwanted publicity) would amount to an additional
infringement of one’s privacy. However, in practice it is likely that only
one action for infringement of identity will be brought, with the existence
of contumelious conduct or invasion of privacy serving as factors that are
relevant when assessing damages.
Grütter v Lombard9
Grütter and Lombard had been partners in a firm of attorneys called ‘Grütter and Lombard’. When their
partnership ended, Grütter began practising with another attorney as ‘Grütter and Grobbelaar’, while
Lombard continued to practise under the old partnership name. Grütter asked Lombard not to continue
using his name, but Lombard refused to do so. Grütter then sought a court order, which the Supreme
Court of Appeal granted. In doing so, the Court made the following observations:
• ‘… features of personal identity are indeed capable (and deserving) of legal protection’.10
• There is a variety of personal rights that ‘are included in the concept of dignitas in the
context of the actio injuriarum’.11
• ‘The interest that a person has in preserving his or her identity against unauthorised
exploitation seems to me to be qualitatively indistinguishable and equally encompassed by
that protectable “variety of personal rights”.’12
• ‘… not every intrusion upon those protectable rights of personality will necessarily
constitute an injuria. Whether a particular act constitutes a wrongful (or unlawful)
violation, and thus an injuria, must necessarily be determined by considerations of legal
policy as in the case of any civil wrong. For, an individual who chooses to live in a
community cannot expect always to be shrouded in anonymity. One can envisage various
circumstances in which considerations of public policy will justify conduct that impinges
upon features of a person’s identity.’13
• ‘I can see no such considerations that justify the unauthorised use by the respondents of
Grütter’s name for their own commercial advantage. What is conveyed to the outside
world by the use of Grütter’s name is that he is in some way professionally associated with
the respondents, or at least that he is willing to have himself portrayed as being associated
with them, which … is a misrepresentation of the true state of affairs for which there can be
no justification.’14
Kumalo v Cycle Lab (Pty) Ltd15

A picture was taken of a television personality in a cycling store without her consent, and the image was
then used in an advertisement for the store. The Court broadly applied the reasoning in the Grütter case
and held that the celebrity’s right to identity had been unlawfully and intentionally infringed. The Court
further pointed out that the use of the plaintiff’s image in the advertisement without her consent also
constituted an interference with her rights to privacy and dignity.16 In particular, there had been an
unlawful misappropriation of identity, as her image had been used by the store for its own commercial
gain without justification.17 The store had directed its will towards using the image and also must have
known, or at least reasonably foreseen, that what it was doing was wrong. Therefore, it had acted with
animus iniuriandi.18

At the time the cause of action arose the plaintiff was a minister in the KwaZulu-Natal provincial
government. He claimed that the Sowetan newspaper had defamed him by publishing two articles about
him and a digitally altered image of him which depicted him as a sheriff in the ‘Wild West’. A picture of
his head had been superimposed on an image of a real person, but it was clear that the image was not a
true depiction of the plaintiff. In the alternative, he claimed that the digitally altered image had violated
his right to dignity. The plaintiff was affronted by the image in part because it allegedly constituted an
interference with his identity, in that he had been presented in a false light by the ‘mixing’ of images of
him and another person. The image had also been used without his consent.
The Court held that the fact that the image had been used without the plaintiff’s consent did not give rise
to an iniuria. Given that the image was of a politician (a public figure) and used in relation to an article
dealing with an important public issue, it could not be said that the use of the digitally altered image
without his consent was wrongful in the circumstances:
I am of the view that the mere unauthorised publication of plaintiff’s

image or likeness in the circumstances under consideration, i.e. where
a politician’s image has been used to create a caricature for purposes of
commenting on his or her public statements on issues that are in the
public interest, and not for commercial purposes, would not be
considered wrongful. Having regard to the importance of striking the
correct balance between the right to freedom of expression and the
right to dignity, public policy dictates that in these circumstances the
defendant should not be held liable for publishing the photographic
image (albeit altered) of the plaintiff.20
PAUSE FOR The right to identity

Despite what appeared to be a clear directive in Grütter v Lombard, courts are
REFLECTION
still struggling to separate the dignity, privacy and identity concepts. In Wells v
Atoll Media (Pty) Ltd 21 a surfing magazine published a photograph of a 12-year-
old girl without her knowledge, authority or consent. Although the photograph
depicted the girl from behind, many people apparently recognised the girl in the
photo. The photograph appeared in a section of the magazine entitled ‘dishing
up the photo feast’. The magazine’s cover carried the statement ‘100% pure filth
photos inside’, and the published photograph, which bore the caption ‘all-natural
Eastern Cape honey’, was over-stamped with the word ‘filth’. The magazine also
placed an advertisement containing the photograph on the national television
programme SuperSport. The publication of the image exposed the girl to a
barrage of lewd and crude suggestions via text messages sent to her phone,
drawing unwelcome attention of a sexual nature that affected her private life. The
girl’s claim was for defamation and invasion of privacy.
Regarding the claim for invasion of privacy and infringement of dignity, the
Court stated:22
[I]n the context of this case therefore the appropriation of a person’s
likeness or image for the commercial benefit or advantage of another
may well call for legal intervention in order to protect the individual
concerned. That may not apply to the kinds of photographs or television
images of crowd scenes which contain images of individuals therein.
However, when the photograph has been employed, as in this case, for
the benefit of a magazine sold to make profit, it constitutes an
unjustifiable invasion of the personal rights of the individual, including
the person’s dignity and privacy.
• In this passage, the Court seems to focus on the wrongful appropriation
as the crux of the violation of privacy, as opposed to the requirement of
insult. No mention is made of violation of identity, even though the case
was concerned with the unjustified and unauthorised use of an
individual’s image for financial gain or economic exploitation
(appropriation of identity) and a misrepresentation of the individual
(placing a person in a false light) – similar to a misrepresentation that an
attorney is a partner in a firm when in fact this is not the case. Which of
the rights is more appropriate in such instances: dignity, privacy or
identity? Does the unauthorised use of a person’s image necessarily
violate a person’s physical and intimate space, or wound a person’s
feelings? Could it be that the judgment is correct, given the special facts
of the case, but that the principles should not be generally applied?
• The Court also reiterated the comments in Grütter regarding a person’s
right to identity, indicating that the right can be infringed if the attributes
of the person are used in an unauthorised manner which (i) cannot be
reconciled with the true image of the individual (misrepresentation) and
(ii) violates the privacy of the person. Is this restatement in line with
general principles and Grütter?
• Although both judges generally accepted that features of personal identity
are deserving of delictual protection, Nugent JA in Grütter23 and Davis J in
Wells differed in their approaches to the violation of the right to identity.
For Nugent JA, it is the right to identity that is primarily violated when a
person’s image is used without permission for advertising purposes. Davis
J, on the other hand, decided that such use is a violation of a person’s
right to decide for oneself who should have access to one’s image and
likeness – something that goes to the root of individual autonomy and
privacy. It is therefore arguable that, whereas Nugent JA asserted identity
in such cases as a separate right, Davis J did not. Is Davis J’s
interpretation in line with the Grütter judgment?
• What is the implication of the decision in Wells for media freedom? As
with any action involving the infringement of a subjective right (in this
case, the use of a person’s image), the rights of identity, dignity, and
privacy of an individual must be weighed against the user’s right to
freedom of expression and media freedom. The Court did not engage with
this important question.
PAUSE FOR To what extent would Wells 24 be relevant in instances of online privacy
REFLECTION infringements?
• What would the legal position be if someone were to use private
photographs or images from another person’s Facebook account to
promote or market a product?
• What would the position be in circumstances where a person’s private
photographs are used outside the commercial sphere – for example,
where someone creates a Facebook account and uses another person’s
image as his or her own to create the impression that the picture is
actually that of the account owner?
Would the ordinary general principles of delict be adequate in such instances, or
do the courts need to adjust the rules specifically for conduct in the online
world?
29.4 Conclusion
The right to identity is a component of the right to dignity in the broad
sense. Although at first thought to be a form of the right to privacy, courts
have in recent years come to recognise that the right to identity exists as a
separate and free-standing personality right. When a person’s name or
likeness is used wrongfully and intentionally outside its proper scope,
this can give rise to an action for damages in delict, despite the fact that
the conduct in question is not objectively insulting and does not result in
an interference with the right to privacy.
In line with general principles, the plaintiff is first required to prove
that he or she has suffered harm through having been placed in a false
light or having had aspects of his or her identity misappropriated for
commercial gain. Once the plaintiff has proved this fact, the defendant
must rebut presumptions of wrongfulness and fault.
Cases emphasise the importance of balancing the right to identity
with the right to freedom of expression. In particular, courts seem less
inclined to award damages for the factual infringement of the right to
identity in circumstances where the person bringing the action is a public
figure and the infringement occurred in the course of legitimate
comment on issues of public interest.
1 1957 (3) SA 461 (W).

2 McQuoid-Mason ‘Invasion of privacy: common law v constitutional delict – does it make a
difference?’ (2000) Acta Juridica 227 at 231 suggests further that insult was not a necessary
requirement of the action and the nurse should have succeeded even in the absence of
contumelia.
3 1954 (3) SA 244 (C); see also Grütter v Lombard 2007 (4) SA 89 (SCA).
4 At 249A.
5 Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 7 ed (2015) at 373–374.
6 Grütter v Lombard 2007 (4) SA 89 (SCA) para 12.
7 In Grütter v Lombard 2007 (4) SA 89 (SCA) para 13 the Court noted that ‘not every intrusion
upon those protectable rights of personality will necessarily constitute an injuria.’
8 Grütter v Lombard 2007 (4) SA 89 (SCA) para 13.
9 2007 (4) SA 89 (SCA).
10 Para 8.
11 Para 12.
12 Para 12.
13 Para 13.
14 Para 13.
15 2011 JDR 1480 (GSJ).
16 Paras 23 and 24.
17 Para 22.
18 Paras 33–38.
19 [2013] 2 All SA 412 (GSJ).
20 Para 51.
21 [2010] 4 All SA 548 (WCC).
22 Para 49.
23 Paras 8 and 9.
24 [2010] 4 All SA 548 (WCC).
Chapter 30
Infringements of reputation
30.1 Introduction
30.3 Publication

30.4.1 Step 1: Determining the meaning of the words or conduct
30.4.2 Step 2: Determining whether the meaning is defamatory
30.7 Wrongfulness

30.1 Introduction
The law of defamation is mainly concerned with protecting the fama (the
good name or reputation) of both natural and juristic persons. A well-
known definition of reputation is from De Villiers CJ in O’Keeffe v Argus
Printing and Publishing Co Ltd:1
A person’s reputation is … that character for moral or social worth to which he is
entitled amongst his fellow-men.
A person’s reputation refers to the good name the person enjoys in the
estimation of others – that is, what others think of that individual as a
person. Reputation is thus distinct from dignity in that there is an
essential difference between what others think of a person (reputation)
and what a person thinks of himself or herself (dignity).
Interestingly, the Constitution of the Republic of South Africa, 1996
does not specifically protect the right to reputation by name in the same
way that it protects the rights to dignity and privacy. However, this does
not mean that there is no constitutional right to a person’s reputation.
The Constitution protects reputation via the right to dignity, and courts
have indicated that the right to dignity includes the right to reputation.2
While there is no doubt that the value of respecting another person’s
dignity underpins the right to reputation, the idea that the right to
reputation is included in the right to dignity creates a theoretical
anomaly: at common law, dignitas and fama are distinct concepts, yet
constitutional jurisprudence views them as one. Perhaps the best way to
deal with the anomaly is to mirror the thought processes we find in the
common-law treatment of privacy and identity cases, which is that,
although a separate right, the right to reputation falls under the umbrella
category of dignity.
Therefore, the law of defamation seeks to protect a person’s right to
an unimpaired reputation or good name against any unjust attack. In
doing so, the right to reputation is often pitted against the right to
freedom of speech and expression.3 Society values these rights equally
highly, so courts often have to balance them and protect reputation in a
manner that does not obstruct freedom of communication. So, for
example, the opinion of the Constitutional Court is:
It has long been recognised in democratic societies that the law of defamation lies
at the intersection of freedom of speech and the protection of reputation or good
name.4
This aspect is particularly important for the press and other news media.5
Defamation is the (i) wrongful and (ii) intentional (iii) publication of
(iv) defamatory material that (v) refers to the plaintiff. Therefore, the
essence is that the material must reach someone other than the person to
whom it refers, and that the nature of the communication must be
defamatory. The nature of the material must be likely to damage the
person’s reputation by having the propensity or tendency to lower the
person’s good name and standing in the opinion of others.6 For liability
to arise, there must be (a) a factual violation of the right to reputation that
was (b) wrongful and (c) intentional. A person’s reputation is factually
disturbed when (i) defamatory material (ii) that refers to him or her (iii) is
published. The plaintiff bears the onus of establishing that factual
violation of the right to reputation has occurred – that is, elements (i)–
(iii). In doing so, two rebuttable presumptions arise: one of wrongfulness
and one of intention (animus iniuriandi). The onus is then on the
defendant to rebut those preliminary (prima facie) conclusions by
establishing a defence on a balance of probabilities.7 Failure to do so
leads to liability.
PAUSE FOR Criminal defamation

The delictual (civil) action for defamation should not be confused with criminal
REFLECTION
defamation. As pointed out in the chapter on harm,8 the law of delict exists to
compensate the plaintiff for harm caused wrongfully and culpably, proved by the
plaintiff on a balance of probabilities. It is not intended to punish the wrongdoer.
However, criminal defamation is the wrongful, intentional publication of
defamatory matter about another person. Each element must be proved beyond
a reasonable doubt. Accordingly, the requirements for a successful prosecution
for criminal defamation are more onerous than those for a successful claim in
delict for damages for defamation. The North Gauteng High Court has recently
held that criminal defamation does not unreasonably interfere with the right to
freedom of expression protected by section 16 of the Constitution, and is
therefore not unconstitutional.9
Figure 30.1 Problem-solving flow chart

All natural persons, including assisted minors, may sue for defamation.
Artificial persons may also do so, but only in restricted circumstances.
Courts are prepared to protect the business reputation of trading
corporations,10 but not any reputation that they might have outside their
trade or business spheres. Non-trading corporations can also sue for
defamation in instances where the material refers to the way in which
they conduct their affairs and is calculated to cause financial loss.11
Courts treat political parties12 and trade unions13 similarly to non-trading
corporations.14
PAUSE FOR Artificial persons

In all those instances that involve artificial persons, one is concerned with
REFLECTION
whether they can sue for general damages under the actio iniuriarum.
Accordingly, they do not have to prove any actual financial loss or prejudice –
only that such loss or prejudice is likely. If these persons can show actual loss,
then the appropriate action would be the lex Aquilia, but only to the extent that
they can prove loss. This distinction is important, because the fault element of
these two actions differs. For liability to arise for defamation, where no actual
loss need be proven, the infringement of the reputation must have been
intentional. For compensation in respect of actual loss that was incurred, fault
can take the form of either intention or negligence. It is, of course, possible that
both actions could exist side by side, but only where animus iniuriandi is present.
Is the basis upon which courts recognise artificial persons’ fama correct? The
business reputation referred to is no different from goodwill, a concept that is
well recognised and accounted for as an asset in business balance sheets. As
such, the business reputation forms part of the corporation’s universitas and a
person should claim for any reduction in reputation under the lex Aquilia.
Financial loss or prejudice is not the principle upon which reputation of
natural persons is based, so why should it be the principle upon which reputation
of juristic persons is established? Why should a university, for example, not have
a claim when a person publishes defamatory material about its employment
policies, or the behaviour of its SRC, and it cannot show any negative effect on
its financial status?15 The first case in which this issue was commented upon
involved a trading corporation that was suing for patrimonial loss, that is,
goodwill, not reputation. This obiter restriction was perpetuated and subsequently
expanded to non-trading corporations. A rule, crafted for a particular type of
juristic person (which is questionable in itself) has been extended beyond its
intended scope to areas in which its application is not appropriate. Is the tail not
wagging the dog?
Media 24 Ltd v SA Taxi Securitisation (Pty) Ltd 16 provides some conceptual
clarity. SA Taxi Securitisation (Pty) Ltd, a juristic person and a trading entity, had
been defamed by an article published by a newspaper owned by Media 24 Ltd.
The Supreme Court of Appeal held by a majority that a trading corporation, like
any other person, was entitled to the protection of its reputation and to sue for
defamation,17 and that such an entity is entitled to general damages even
though it is a juristic person that is incapable of being wounded in its feelings.18
Further, if the entity wished to recover special damages for consequential
patrimonial loss, such as loss of profits, it would need to recover these
separately by means of the Aquilian action.19 The Court found that to entitle
trading corporations to sue for general damages for injury to their reputations
would not constitute an unreasonable interference with the constitutional right to
freedom of expression.20
In Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd; Akani
Egoli (Pty) Ltd v Electronic Media Network Ltd 21 the Court reached similar
conclusions.22 In particular, the Court held that a trading corporation can sue for
damages for defamation under the actio iniuriarum:
For over a century our courts have recognised that trading

corporations have a personality right to fama worthy of protection,
and can sue for defamation. While it may not be identical to that of a
human plaintiff, a trading corporation does have a reputation which
may be disparaged … The plaintiff in a defamation action, including
a trading corporation, does not only seek to recover economic loss,
but also reparation for a wrong inflicted. I do not see how a trading
corporation’s right to sue for defamation under the actio iniuriarum
would be inconsistent with the Constitution. In my view, the common
law requires no development to bring it into harmony with the spirit,
purport and objects of the Bill of Rights.23
The Court also agreed that a claim for patrimonial damages instituted against a
trading corporation should be brought under the Aquilian action, so as not to
infringe the right to freedom of expression unreasonably:
In respect of loss of profit, the enormity of the awards will certainly

have a chilling effect on the freedom of expression. In my view, this
cannot serve the interests of democracy, and the disproportionality
may well constitute an unjustifiable limitation to the right of freedom
of speech. By limiting such claims to the lex Aquilia, the plaintiff is
not non-suited, but the onus is shifted so as not to burden the
defendant with the presumptions of unlawfulness and intention under
the actio iniuriarum. There seems to be ample support for this
proposition.24
It is not possible for the government (central government departments

and local authorities) to sue for defamation,25 the reason being that to
allow the government to sue to protect its governing reputation would
unduly inhibit freedom of speech and expression in a democracy.
However, courts have limited the scope of this restriction to government
entities. This means that cabinet ministers, politicians, and public
officials can sue in respect of infringements of their personal
reputations.26 The same applies to judicial officers.27
PAUSE FOR Defamation and organs of state

REFLECTION In Post & Telecommunications Corporation v Modus Publications (Pvt) Ltd28 the
Court denied an organ of state the right to sue for defamation. The reason was
that the organ of state was more similar to a government department than to
other corporations. The Court also set out criteria for deciding on which side of
the line an organ of state would fall. An organ of state would not be able to sue
for defamation where its activity is closely associated with government work and
with democratic governance, but when it does have the right to sue, the
principles applicable to corporations would apply. In some instances (for
example, universities or the Gender Commission), the distinction might be easier
to draw, while in others (for example, Transnet, Telkom, Eskom, South African
Airways and the Reserve Bank), courts would have to determine the position of
each entity individually. In fact, whether some of the entities mentioned above
are indeed organs of state is also moot.29
30.3 Publication
Since reputation involves what others think of someone, a person’s right
to reputation is factually interfered with only when another person
communicates defamatory material referring to that person and makes it
known to at least one other person. So publication, which is the required
conduct element in defamation, is vital. If nothing has been published,
the plaintiff at best has a claim for infringement of dignity.
Whether material has been published is a question of fact.
Publication usually occurs through written or spoken words, but even
non-verbal conduct such as gestures can constitute conduct for the
purposes of a defamation claim. In Pieterse v Clicks Group Ltd 30 the
Court appeared to accept that someone could be defamed where a public
search of a handbag in a shop in front of other shoppers suggests that the
person whose handbag is being searched may have been guilty of
shoplifting.31 However, for publication to occur it is not sufficient merely
that a person presents the information to another. The person who reads
or hears the information, or who observes the conduct, must also
understand the meaning of what is being conveyed. So, the element of
publication has two components: the act of making the material known
to another (the communication), and the understanding and
appreciation on the part of the recipient of the material’s meaning and
significance.
Often a number of people are involved in the publication process. In
these instances, subject to one exception, every person who has
contributed to the publication may be sued. For example, the following
could be considered as having published the material:
• In cases that involve written material: the author, editor, newspaper
owners, printers, publishers, distributors and libraries
• In cases involving oral material: the speaker, the broadcaster and,
where appropriate, the presenter or talk-show host
• With internet publications: the host, network provider, service
provider, as well as a person who is ‘tagged’ in an online post and
does not remove the ‘tag’. 32
An exception is made in respect of intermediaries – that is, those who

participated in the distribution process but did no more than provide the
infrastructure for transporting the material. Examples include the postal
services in the case of letters or in the case of internet publications, the
owners of the land or sea cables along which messages are sent from one
place to another.
When a person repeats material that another has published, both the
original and the subsequent communication would amount to
publication. So, it is not a defence to say that the material is already in the
public domain. A person who repeats the material will also be liable.33
Whether the first person will be held liable for the subsequent
republication of the material by someone else will depend upon whether
any of the following circumstances are present: 34
• Where a person intended the republication of the material
• Where, even though republication was not intended, the repetition
by another is a natural and probable result of a person’s
communication
• Where, even though republication was not intended, the other
person had a moral duty to repeat the material to others.
In cases of unintended communications or where the material is

published by mistake, the issue is not whether there has been
communication to another person – that has already occurred – but
whether courts should attribute the communication to the defendant. In
such instances, courts would hold that the defendant had published the
material, even though the publication was not intended, where it was
reasonably foreseeable that publication would occur – in other words,
where the publication is a natural and probable result of a person’s
conduct. In Pretorius v Niehaus 35 the Court found that a person could
not reasonably have expected, in the particular circumstances, that the
plaintiff’s wife would have opened the letter that had been addressed to
the plaintiff, and so the defendant was held not to have published the
material.

Communication of material from one person to another generally takes
the form of positive conduct. The most common forms are oral
communication or written communication in books, newspapers,
pamphlets and cartoons.36 However, communication also includes
instances of publication using technologies such as email 37 and internet
websites,38 which include, among other things, postings to newsgroups
and chat rooms. Content posted on social media and social networking
sites, such as Facebook, Twitter and Instagram, would also constitute the
communication of information for the purposes of a defamation action.
In circumstances where there was a duty to act positively, a person can
also publish by omission, for example, where an internet service provider
fails to remove defamatory material from its servers after being requested
to do so. In this case, the publication element is satisfied.39
Persons often publish directly to a specific person or group of
persons, in which case it is reasonably certain that someone has heard or
read the communication. Where this is not obviously the case,
publication may sometimes be presumed. Some of the circumstances in
which this rebuttable presumption arises are:
• Where the material is distributed to the public in any form, usually a
newspaper, book, journal or magazine, but also by postings to
websites, newsgroups, internet bulletin boards and social media,
including social networking sites
• Where words are spoken within earshot of others40
• Where the material appears on a postcard or in a telegram.41
The presumption merely helps the plaintiff to prove publication in cases

in which it might be uncertain, and the defendant may still show that no
other person was aware of the material – for example, by showing that no
other person had accessed the website or social media/social networking
page to which the material had been posted.
PAUSE FOR Defamation on social-media and social-networking sites

Millions of South Africans use social-media and social-networking sites every
REFLECTION
day, using online platforms such as Facebook, Twitter, Snapchat, Instagram and
LinkedIn.42 Globally, Facebook has over 800 million users and is the most
popular social-networking site worldwide.43 It is also the most popular social-
networking site in South Africa, with 9,4 million users.44 In recent years, a slew
of cases has come before the courts in which it has been alleged that persons
using online social-media or social-networking sites45 have posted defamatory
content to such applications.46 In general, our courts have taken the view that
posting defamatory matter to the internet or social media constitutes publication
which can give rise to a claim for damages in delict if such posting is proved to
be defamatory, wrongful and intentional. In other words, the normal rules
pertaining to the publication of defamatory matter apply equally to the internet
and social-media and social-networking sites.47
• Ketler Investments CC t/a Ketler Presentations v Internet Service
Providers’ Association 48 held that listing the applicant as a ‘spammer’ (a
sender of bulk unsolicited electronic communications) on a ‘Hall of
Shame’ on the respondent’s webpage, in the context of the overall
wording of that webpage, was defamatory of the applicant.49
• Dutch Reformed Church Vergesig v Sooknunan 50 held that a person who
is the owner, creator and user of a Facebook wall is the person capable of
regulating access to and censoring postings to it. As the person who
created the opportunity for postings to be made to the wall, that person is
to be regarded as the publisher of what is posted to it, and will
accordingly be held responsible in law for defamatory postings on the
wall.51
• Isparta v Richter52 held that, even though the second defendant was not
the author of the defamatory posts in issue, as he had been ‘tagged’ in
them and had not removed the ‘tag’, he was in part responsible for
them.53
• In RM v RB 54 the respondent posted various statements on Facebook
which were defamatory of the applicant. Friends of the respondent
commented on the post and were critical of the applicant. The applicant
sought an order that the respondent remove the defamatory statements
from Facebook, and that the respondent be interdicted from publishing
further defamatory statements about him on Facebook or in any other
way. The Court granted the first order, as the statements in question were
clearly defamatory and without justification.55 It refused the interdicts,
however, as these were too drastic and, if granted, would constitute an
unreasonable interference with the respondent’s right to freedom of
expression.56
Heroldt v Wills57
Wills posted defamatory information regarding Heroldt to Facebook. Heroldt sought an interdict ordering
Wills to remove the defamatory posts from the social networking site. Wills contended Heroldt was not in
the circumstances entitled to an interdict ordering her to remove the information from Facebook, because
if Heroldt believed he had been defamed, he was entitled to sue for damages.
The Court held that, given that it was relatively easy for online information to be removed from the site
or sites to which it had been posted, Heroldt should not be denied a right to the removal of the offensive
matter. The Court also drew a distinction between social media and news media (whether print or online
news media), and held that the courts may legitimately treat the former differently from the latter with
regard to the question of ordering the removal of online information.58
The Court rejected the view that, where offensive matter has been posted to Facebook, the proper
response of the aggrieved party should be to approach Facebook itself for relief.59 The Court held that
by issuing an interdict that Wills was to remove the posting, it would be providing a remedy to a problem
for which there was no other relief to the same effect. An interdict would resolve the issue without the
needless expense, drama, trauma and delay that were likely to accompany an action for damages in a
case such as this one.60 Accordingly, an interdict was issued to remove the posted material.61 The Court
further advised those who post offensive material on social media to remove such matter when
requested to do so, or face legal consequences.62
This case contains a useful description of Facebook and other social-networking sites, as well as a
discussion of some of the legal implications of such social media, particularly regarding the right to
privacy.63 Regarding the impact of social-media and social-networking sites on the law, the Court held
that:
the pace of the march of technological progress has quickened to the extent that the social
changes that result therefrom require high levels of skill not only from the courts, which must
respond appropriately, but also from the lawyers who prepare cases such as this for
adjudication.64
The law recognises a significant exception to the publication rules where

communications are considered to be privileged. Two such categories for
which there is case authority are communications between spouses,65
and communications between client and attorney.66
PAUSE FOR Privileged communication
Communication between spouses is privileged, but communication by an
REFLECTION
outsider to a spouse is not. Two cases that illustrate this point are Whittington v
Bowles 67 and Pretorius v Niehaus.68 Similarly, communication between attorney
and client is protected, but a communication to another person’s attorney is not.
The second element of publication is that the recipient of the
communication must understand and appreciate the material’s meaning
and significance. So, for example, there is no publication where a person
makes a defamatory statement to another person in a language that the
other person does not understand, where the person is unaware of the
true meaning or significance of the material, or, in particular instances,
where the person is deaf or blind.69 This does not mean that a reader or
listener must grasp the meaning immediately. Publication is satisfied if a
person hears the information, does not immediately grasp its meaning
and significance, but does so later. In other words, regardless of the time
between communication and understanding, publication is complete
only if and when the recipient of the information discovers the
meaning.70

The second component of factual violation of a person’s fama is that the
content of the published material must be defamatory. This would also
satisfy the harm aspect of the violation of the personality interest.
Although they do not always do so explicitly, courts follow a two-step
approach when determining whether the material is defamatory. First
they have to establish the meaning of the material (what the words
meant), and then whether the words, as meant, conveyed a defamatory
imputation.71
30.4.1 Step 1: Determining the meaning of the words or

conduct
The words or conduct can convey either a primary meaning (the ordinary
meaning) or a secondary meaning (a hidden meaning or innuendo).

The primary or ordinary meaning of words or conduct is the natural
meaning, both expressed and implied, that an ordinary or reasonable
reader, listener or viewer would give to the words or conduct, with
specific reference to the context and circumstances in which the words
have been published. It is not necessarily the dictionary meaning.72 So,
for example, the word ‘cow’ may mean a female bovine animal in one
context, but in another, when spoken with reference to a woman, it may
mean a rude, disagreeable person. In each context, the primary meaning,
that which a reasonable reader would attribute to it, is different.
Be careful not to confuse the implied meaning of a word or phrase
with an innuendo (see below). The implied meaning is a meaning that is
inherent in the words themselves. An ordinary reasonable person of
average intelligence would be able to grasp the implied meaning of the
words in question simply by construing them in context. He or she would
not need any additional knowledge of special facts or circumstances in
order to understand the defamatory meaning of the words. When the
primary meaning, both express and implied, of words or conduct is
defamatory, the words or conduct are sometimes described by the courts
as defamatory per se.

Words can sometimes assume meanings that are very different from their
ordinary meaning. These additional secondary meanings, or innuendos,
usually arise in special circumstances known to both the communicator
and the communicatee.73 In some instances, the plaintiff may be required
to identify those persons whom he alleges knew the special facts. The
plaintiff does not need to prove that those people understood the words
to bear the alleged defamatory meaning, but simply that they knew the
facts that might have led them to understand the words in the sense that
is alleged to be defamatory. It is then for the Court to determine whether
the words would in fact have been understood by reasonable people,
with the requisite knowledge, to bear the meaning that the plaintiff
alleges.
Our law also recognises what is referred to as a ‘quasi-innuendo’. As the
name implies, it is not a proper innuendo in the sense that there is a
second, hidden meaning. In fact, a quasi-innuendo has nothing to do
with the meaning of the material, but more with whether the meaning
that the words bear is ‘more defamatory’ in a particular context than
would otherwise have been the case. When a quasi-innuendo is present,
the words have an additional sting to them. For example, a claim that a
religious leader was guilty of sexual misconduct would be more
defamatory than a similar claim made about an ordinary member of the
public with no particular claim to moral righteousness.

A core feature in establishing the meaning of words is the concept of the
reasonable reader, listener or viewer. In a multicultural, diverse society,
where ordinary men and women have different temperaments and
outlooks, we should attempt to understand who this standardsetter is. In
Demmers v Wyllie 74 Muller JA expressed the concept of the ordinary,
reasonable reader in the following way:
From the above it is clear, I think, that the words ‘reasonable person’ or ‘reasonable
man’ referred to in the decisions cited is a person who gives a reasonable meaning
to the words used within the context of the document as a whole and excludes a
person who is prepared to give a meaning to those words which cannot reasonably
be attributed thereto.
When arriving at the natural and ordinary meaning of words, a

reasonable reader is guided by his or her own general knowledge, outside
of any sophistication or specialised training, especially in law or logic.
The reader will avoid the elaborate analytical attention that a lawyer
might give to the meaning of the words or conduct. Therefore, it is crucial
for courts to avoid any intellectual analysis of the contents, or what might
be implied by the material’s content. Courts should also not assume that
the ordinary reader has a tendency to analyse in this way, or an ability to
recall more than an outline or overall impression of what he or she has
just read.
However, there is some subjective aspect given to the concept of the
reasonable reader. Courts have acknowledged that the reasonable reader
of a publication aimed at a particular target market would have the
characteristics of that target market. So, the ordinary reader of the
Sunday Times Extra 75 would be black, and a reader of a financial
publication would have ‘a somewhat higher standard of education and
intelligence and a greater interest in and understanding of financial
matters than newspaper readers in general have’. 76 Similarly, the
reasonable reader of a sophisticated magazine dealing with politics,
current affairs and the arts would be different from the reasonable reader
of a supermarket tabloid focusing on celebrities and entertainment.
When applying the test, courts must take into account the manner in
which an ordinary reasonable reader, listener or viewer would read and
understand the material. Courts generally accept that readers of
newspaper articles do not scrutinise or over-analyse, and they often draw
conclusions after having skimmed, browsed, or glanced quickly over the
material.77 Reasonable listeners and viewers (for example, of the radio or
television), should be treated differently from reasonable readers,
because the printed or written words can be re-read, often more than
once.78 This principle would obviously not apply in circumstances where
a person was listening to a podcast, as in this instance it would be
possible for the listener to hear the material again and satisfy himself or
herself as to its true meaning.
One should also keep in mind the context in which the material was
published. In other words, one must not assess the offending statement
or conduct in isolation, but instead in the context of the entire
publication, and together with any favourable parts. The document or
context must be viewed as a whole. This means that a defamed person
cannot select a part, or parts, of the material to support the meanings that
he alleges the publication bears, and ignore other parts that qualify or
negate the alleged meaning.79 If contained in a book, one should consider
the effect of the entire book, and if in a newspaper, other articles might
also be relevant. (Sometimes an entire page of a newspaper is filled with a
number of stories about the same news event or issue, and if this is the
case all the articles will need to be considered together in order to
determine whether or not the material in question is defamatory.) 80 The
circumstances in which the words are used, and the tone in which they
are uttered, are also factors to take into account. Therefore, courts are
required to take a holistic view of the matter in deciding whether or not
the matter is defamatory.
The points we have made in relation to assessing the meaning of
words and conduct apply equally to assessing whether the material is
defamatory, or whether it is merely meaningless abuse or robust
criticism.81
30.4.2 Step 2: Determining whether the meaning is

defamatory
Once courts have determined the primary and/or secondary meaning of
the material, they then have to decide whether that meaning is
defamatory. Therefore, it is necessary to determine what type of material
society considers defamatory, what would not be defamatory, and how
courts ascertain the difference.

The benchmark criterion that South African courts apply was first set out
in the English case of Sim v Stretch: 82
Would the words tend to lower the plaintiff in the estimation of right-thinking
members of society generally?
However, as was pointed out in Mohamed v Jassiem,83 immediately prior

to these remarks the Court in Sim v Stretch 84 noted that one has to
consider the reaction of the person or class of persons who would receive
the material. As we describe below, the test to apply is a combination of
these two statements.
Following English law, our courts at first tended to ask whether the
imputation was capable of lowering the plaintiff in the estimation of
right-thinking members of society generally.85 It is important to note that
the plaintiff does not need to prove that the matter actually had the effect
of lowering the plaintiff’s reputation; the plaintiff need merely show that
the matter would be likely to lower the reputation of the plaintiff in the
estimation of reasonable, right-thinking persons.86 However, this test is
not appropriate for South Africa’s multicultural and diverse society.
What, for example, is the correct thinking that is referred to, and who
constitutes the general society that determines what is right-thinking?
Courts have diluted this test somewhat by interpreting that what ‘right-
thinking members of society’ think is determined by what an average
person of ordinary intelligence who subscribes to the norms and values
of the Constitution would think.87 Also, ‘society generally’ might in some
instances include a section of society. So, where society generally might
not consider a statement to be defamatory, but a well-defined sector of
society might, the material could be viewed from that sectoral
perspective.
In Mohamed v Jassiem 88 the Court pointed out that in a
heterogeneous society, where the statement complained of was alleged
to be defamatory only in the eyes of a particular segment of society that
constitutes a distinctive group:
[I]t is the reaction of ‘right-thinking’ members of that segment of society which
becomes the yardstick rather than that of ‘right-thinking’ members of society
generally.89
The Court found that right-thinking members of society generally would

not regard calling a Muslim person an Ahmadi sympathiser as
defamatory, as the term would have no meaning for the vast majority of
South Africans who are not of the Muslim faith, but Muslims would. This
sectional approach applies only where there is a distinctive community
group that forms part of the South African population. Courts will not
consider the opinions of a section of the general public whose narrow
views depart from the general norm.90
The expression ‘lowering a person in the estimation of others’
usually means that the statement or imputation by conduct injures the
reputation of another, by exposing the person to hatred,91 contempt 92 or
ridicule,93 or by reflecting upon the person’s moral character.94 In so
doing, harm to the person’s reputation is caused because people in the
community in general would think less of the person. In addition to
exposing the claimant to hatred, contempt, or ridicule, a publication
would be defamatory if it causes or has the tendency to cause others to
shun and avoid the defamed person. Regarding reflections on moral
character, it is important to bear in mind that morality changes with the
times. For example, today, unlike in the past, it might not be defamatory
or an impairment of dignity to say that a woman had a child out of
wedlock and lived with the child’s father for two years without marrying
him.95
In summary, defamatory material usually falls into four broad
categories: 96
• Imputations against a person’s moral character or lifestyle, 97 for
example, commenting negatively on the character and public life of
a politician 98
• Imputations that arouse hatred and ridicule, for example, making
contemptuous remarks regarding a person’s race or racial views99
• Communications that cause shunning or avoiding, such as making
derogatory remarks regarding a person’s physical100 or mental
disposition101
• Impairments of professional or business reputation, such as casting
aspersions on a person’s professional competence that is calculated
to cause the person to be regarded with contempt by others.102
In our democracy, robust debate and criticism form a key component of

political activity. To this extent, our courts are far more flexible with
respect to debate and exchanges within the political arena. Politicians are
expected to display more robustness than the average private person,
and should therefore exercise caution in hastily bringing their matters in
this context to court.103 In Kgothule v Majonga 104 the Court pointed out
that ‘[p]oliticians must realise that high trees catch more wind’. 105 Our
courts are duty-bound at all times to observe openness, transparency and
accountability, but at the same time protect dignity and privacy. If,
however, an improper motive or dishonourable conduct is imputed to a
person who is alleged to have defamed another, the reasonable bounds
of freedom of expression have been exceeded.
There is a special category of cases that involve quasi-innuendos. As
the name implies, there is no innuendo in these cases, but the situation is
similar to an innuendo. Whereas an innuendo changes the meaning of
the words, giving them a special primary meaning, a quasi-innuendo
does not, but instead highlights the especially defamatory nature of the
words. In such instances, a plaintiff alleges that there are circumstances
that render the meaning of the words more hurtful – that is, ‘more
defamatory’. So, a precondition for a quasi-innuendo is that the meaning
of the words has already been established and that it is defamatory. The
focus then is on whether the words that would ordinarily be defamatory
become even more defamatory because there is a ‘sting in the tail’. The
following two examples illustrate this concept. It is defamatory to say that
someone is dishonest, but to call a judge dishonest adds a sting to the
imputation, making the statement more defamatory. It is not defamatory
to call someone a ‘ladies’ man’, so any sting that might exist in calling a
king or a president a ‘ladies’ man’ does not render the words
defamatory.106
Sindani v Van der Merwe107
The action for defamation arose from an article published in Rapport under the headline ‘Sepeng se
breier glo as rassis uitgekryt’ (‘Sepeng’s coach said to be reviled as a racist’). The appellant alleged that
the article would be understood by the readers to mean, in essence, that he was a racist who conducted
himself in a reprehensible manner. The question raised on appeal was: ‘Is it defamatory of a black man
to impute to him that he abused a white man by calling him “white trash”?’ 108
The appellant relied on the ordinary, primary meaning of the word and did not allege any innuendo or
secondary defamatory meaning arising in the light of special circumstances. The Court followed the
accepted two-stage enquiry, by first establishing the natural or ordinary meaning of the words, and then
considering whether that meaning is defamatory. It explained the test to apply in the first instance as
follows:109
The ordinary meaning of the words under consideration does not necessarily correspond with
their dictionary meaning. The test to be applied is an objective one, namely what meaning the
reasonable reader of ordinary intelligence would attribute to the words read in the context of
the article as a whole. In applying this test it must be accepted that the reasonable reader will
not take account only of what the words expressly say but also what they imply … . It must also
be borne in mind that ‘the ordinary reader has no legal training or other special discipline’ and
that ‘if he read the article at all would be likely to skim through it casually and not to give it
concentrated attention or a second reading. It is no part of his work to read this article, nor
does he have to base any practical decision on what he reads there … .’ Consequently, a court
that has of necessity subjected a newspaper article under consideration to a close analysis
must guard against the danger of considering itself to be ‘the ordinary reader’ of that article … .
The respondents relied on the dictionary meaning of the expression ‘white trash’ and submitted that the
term constituted mere abusive language without any racial connotation to it. The Court disagreed, holding
that when the abusive term ‘trash’ is coupled with the word ‘white’, and used with reference to a white
person, it becomes racially charged and that the ordinary reader would understand the term to be racially
derogatory language:110
On a single perfunctory reading of the article the reasonable reader would understand from it
that the appellant was using the racially derogatory language not as a shield but as a sword,
without any apparent justification for doing so.111
The reasonable reader would understand from the article that it was informing its readers that the
appellant had reviled the first respondent as a racist and had addressed him in racially derogatory
language.
Having established the ordinary meaning of the words, the Court then proceeded to the second stage
of the enquiry:112
What the article attributes to the appellant is the gratuitous use of racially
derogatory language and racial vilification. Such conduct is regarded by right
minded members of South African society not only as conduct that is reprehensible
but as something which must, in accordance with constitutional imperatives, be
eradicated. It follows that the imputation of such conduct to another must be
defamatory.
Le Roux v Dey; Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae113
The defamatory material complained of in this case was an image. Three schoolboys created a computer-
generated image of their school principal and deputy principal’s heads superimposed on the bodies of
two gay men photographed naked sitting side by side in a sexually compromising position. The private
parts/genitalia of the two naked men in the picture were covered by the school crest. The manipulation
of the image was amateurish and obviously not a real depiction of the principal and the deputy principal.
The image was published and circulated within the school and seen by many pupils. The image was also
placed on the school noticeboard for approximately 30 minutes and then removed. Once the schoolboys
had been identified as the persons behind the act, they were disciplined by their school at an internal
hearing. The boys apologised to the principal, who accepted their apology and took no further action.
However, the deputy principal, Dr Dey, did not accept their apology. Instead, he sued the schoolboys on
the basis of two claims: one for defamation, and the other for violation of his dignity.
The High Court upheld both claims. On appeal, the Supreme Court of Appeal upheld the defamation
claim and found that the additional claim based on an affront to his dignity was ill-founded and required
no further consideration. The schoolboys then appealed to the Constitutional Court. The boys argued that
the image was not defamatory. It was not representative of reality and a reasonable viewer would not
have understood it as conveying any actual facts about the plaintiff. Furthermore, even if Dr Dey had felt
subjectively that his dignity had been impaired by the picture, this was not objectively justified.
Brand AJ held that the reasonable observer would infer some association between the two teachers,
on the one hand, and the ‘indecent situation’ described in the picture, on the other:114
In short, the vision created is one of two promiscuous men who allowed themselves to be
photographed in what can only be described as a situation of sexual immorality, which would be
embarrassing and disgraceful to the ordinary members of society … The manipulation of the
picture in this way is obvious and crude. No reasonable person could ever think that the bodies
on which the faces are pasted were actually those of the principal and Dr Dey.
This raised the question – as the second leg of the two-stage enquiry – whether the picture, thus
understood, could be regarded as defamatory of Dr Dey. That in turn depended on whether the message
conveyed by the picture would probably undermine the esteem in which Dr Dey was held by others – in
other words, whether the reasonable observer would regard the picture as likely to undermine the respect
and good name enjoyed by Dr Dey. The Court considered the context of the publication and concluded
that the picture was distributed among the teachers and pupils of the school. In his capacity as deputy
principal, Dr Dey ‘was a symbol of authority and discipline at the school’.115 In this context, the
reasonable observer would understand the image to associate the two teachers with the bodies and their
behaviour:
The whole purpose and effect of the association created by the picture is to tarnish the image of
the two figures representing authority, to reduce that authority by belittling them and by
rendering them the objects of contempt and disrespect, and to subject these two figures of
authority to ridicule in the eyes of the observers who would predominantly be learners at the
school.116
It followed that the average person would regard the picture as defamatory of Dr Dey:
The aim might have been to destroy Dr Dey’s image as a figure of authority but the net effect
was to belittle and humiliate him as a person, to represent him as unworthy – or at least less
worthy – of respect by the learners of the school, which is a classic example of defamation.117
Brand AJ’s majority judgment has been criticised – in particular, for its heteronormative and heterosexist
bias118 in construing the image as one of:
two promiscuous men who allowed themselves to be photographed in what can only be
described as a situation of sexual immorality.119
The reasoning, it is said, is not in keeping with the Constitutional Court’s previous progressive
jurisprudence on gay rights and the rights of sexual minorities more generally.120
There were two dissenting judgments. The first is the joint judgment by Froneman J and Cameron J,
who found that Dr Dey was not defamed, but that his dignity was actionably injured. The second
dissenting judgment is that of Yacoob J, with whom Skweyiya J concurred (for different reasons), but
both of whom strongly grounded their reasoning on child-law principles.
Consider the judgment of Froneman J and Cameron J. In their view, even if we were to accept that the
manipulated image crudely sought to create some association between Dr Dey and the school principal
in the situation the image sought to portray, and that it was an attempt (albeit amateurish) to ridicule
and undermine the authority of Dr Dey and the school principal, this did not mean that the average
reasonable person viewing the image in the school context, where it was published, would regard the
picture as defamatory. Their reasoning was as follows:
Our common law recognises that people have different claims for injuries to their reputation
(fama) and to their own sense of self-worth (dignitas). Both are affronts to the rights of
personality, and although the Bill of Rights does not always draw sharp lines between the two,
the distinction is important to our new constitutional order. It illuminates the tolerance and
respect for other people’s dignity expected of us by the Constitution in our public and private
encounters with one another. We may be deeply hurt and insulted by the actions of others, in
calling or portraying us as what we have chosen, freely, not to be, or to keep private, even
though we are not defamed. It may be that the personal insult or injury may not be considered,
in the public eye, as something that harmed our reputation. But within limits our common law,
and the Constitution, still value and protect our subjective feelings about our dignity. It is this
difference between private and public esteem that explains, in our view, why Dr Dey cannot
succeed in his defamation claim, but must do so in his dignity claim.121
Once it is clear that our law requires probable impairment of the right to reputation (the public
aspect of the constitutional right to dignity) before a statement or image may be considered
defamatory, general pronouncements that statements or images that arouse hatred, contempt
or ridicule are defamatory are better understood. It then becomes clear that statements or
images that ‘were calculated or had the tendency or propensity to defame’ are defamatory only
if they objectively and as a matter of probability cause Impairment of a plaintiff’s good name. If
they do not, there is no defamation: but there may be impairment of dignity.122
And this is what happened here: objectively, the prank did not impair Dr Dey’s reputation. On the
contrary:
… the contextually average reasonable school viewer, learner or teacher, knew better: Dr Dey
and the school principal were not promiscuous, they were respected teachers.123
But he experienced it as a deep affront to his personal dignity. It may be noted that here, in determining
whether Dr Dey’s dignity was unlawfully infringed, as in determining whether the publication of the image
defamed him, an objective test of reasonableness is applied.124
This raises the question: can one find that the reasonable observer would not have taken the
image so seriously as to have thought less of Dr Dey, yet still have considered Dr Dey’s sense of
injury in finding the image insulting reasonable? The answer is ‘Yes’. It must be emphasised
that the two enquiries are different, and hence that their outcomes may differ. The one reflects
inwardly, the other outwardly. In dignity claims, the injured interest is self-esteem, or the injured
person’s feelings. In defamation, it is public esteem or reputation. And the objective
reasonableness in a dignity claim is assessed in relation to feelings of individual affront, not in
relation to the audience that sees the image or reads the statement as in a defamation claim. It
is in our view plain that the reasonable observer may conclude that, objectively seen, an affront
did not damage a person’s reputation, while at the same time concluding that, objectively seen,
the injury to that person’s feelings was palpable and reasonably felt, and hence actionable.
In this sense, Froneman J and Cameron J give a clear exposition of the nuanced relationship between
reputation and dignity within the constitutional rubric.

The plaintiff, a high-ranking politician, claimed the Sowetan newspaper had defamed him by publishing
two articles about him and a digitally altered image of him depicting him as a sheriff in the ‘Wild West’. In
the alternative, he claimed that the digitally altered image had insulted him and in so doing injured his
dignity. In the articles, the newspaper had alleged the plaintiff had made various statements about the
need for the police to ‘shoot to kill’ and ‘aim for the head’ when dealing with violent criminals. The Court
held that the statements had indeed been made by the plaintiff and were not defamatory of him.126
Cumulatively, the articles and the image would have been understood by reasonable readers of the
Sowetan to mean the plaintiff was taking a tough stance on crime and that, like a sheriff in the Wild
West, he wanted criminals to be harshly dealt with by the police and brought to justice, either dead or
alive:
The altered image, in my view, is a depiction of the plaintiff as a law enforcer or sheriff from the
Wild West, and it would have been understood as such by reasonable readers of Sowetan. The
altered photo image taken together with the caption and the contents of the article would have
been understood to mean that the plaintiff was taking a tough stance on crime and that, like a
sheriff from the Wild West, he wanted criminals to be harshly dealt with by the police and
brought to justice, either dead or alive.127
Such an understanding of the articles and the image would not have damaged the plaintiff’s reputation.
In reaching this conclusion, the Court took into account the fact that the plaintiff was a seasoned
politician who was required to display more robustness with regard to what was published about him:128
I therefore remain of the view that the meaning of the 6 July article and the altered image are
not defamatory of the plaintiff. A reasonable reader of the Sowetan, taking into account the
context mentioned above, would know that the plaintiff was a high ranking politician charged
with ensuring safety and security of the public in the province of KwaZulu-Natal; that he had a
well-known history of involvement in matters relating to safety and security; and that the
statements attributed to him, as well as the altered photo image were reported in the context of
a meeting at which one of the primary topics of discussion was violent criminal activity which
was affecting businesses in Umlazi township − where crime was reportedly on the increase. The
reasonable reader would not ‘think less’ of the plaintiff for taking a tough stance on crime; for
calling on the police to deal harshly with criminals; and for encouraging them to use deadly
force when dealing with criminals. As is apparent from the numerous articles contained in the
trial bundle, there were varied responses to the stance that the plaintiff took on violent crime
and criminals. Some even lauded his stance. I am accordingly of the view that the plaintiff’s
claim, based on the article of 6 July 2007 read together with the altered photo image, is
without merit because neither the content of the article nor the altered photo image published
is defamatory of the plaintiff.129
With regard to the image, the Court held that a reasonable person in the position of the plaintiff would
not have felt insulted and humiliated by it.130

To establish that a person’s fama has been violated, a plaintiff must not
only show that the defamatory matter was published, but also that the
defamatory matter referred to the plaintiff. This establishes the causal
link between the publication of the defamatory matter and the damage to
the plaintiff’s reputation.
The reference to the plaintiff can be direct or indirect (by
implication). Where a person is mentioned by name, this aspect usually
poses no problem, although there might be others with the same name,
in which case a plaintiff would have to follow the same process as
instances of indirect reference. In such instances, a plaintiff must allege
and prove the facts that make reference to him or her personally, firstly,
by proving that the words are capable of referring to him or her (this is a
question of law), and, secondly, that the words actually refer to the
plaintiff (this is a question of fact),131 in that an ordinary reasonable
reader, listener or viewer would have understood that the words
complained of refer to the plaintiff personally.132
A statement may be defamatory of a wide class of people or a group
of people – for example, politicians, cabinet ministers, lawyers, trade
unionists, black people, or white males. However, not every person who
falls within a class or group can sue for defamation. This is because there
is no group or class defamation in South Africa. To sue in such instances,
the plaintiff must be able to show that a reasonable reader, listener or
viewer would have connected the plaintiff, as an individual, to the
defamatory statement. If the plaintiff belongs to a small group and as a
result is easily identifiable – for example, if the plaintiff is one of four
trustees of a trust or a cabinet minister in a cabinet of 15 members – there
should be a sufficient connection for the plaintiff, being a trustee or
cabinet minister, to sue, even if the plaintiff is not mentioned by name.
However, the words must be capable of referring to each member of the
group, and the plaintiff must show that the words actually refer to him or
her as an individual included in that group.133 In Sauls v Hendrickse 134 a
politician commented that office-bearers of a trade union were involved
in causing unrest.
The Court noted:135
This is not a case where reference was made to all the members of a group. The statement
refers simply to ‘office-bearers of NAAWU’. It does not in express terms refer to all the office-
bearers. Nor can such a reference necessarily be implied. The position may have been different
had it spoken of ‘the office-bearers of NAAWU’, for that might have implied all. Seen in their
proper context the words ‘office-bearers of NAAWU’ only refer to some office-bearers … . Some
in that sense denotes an unspecified yet relatively limited number.
In other words, the question is whether the words refer to the plaintiff, in
the sense that we can say that he or she was personally pointed out. It
follows that there must be something that points to a particular plaintiff
or plaintiffs and links him, her or them to the defamatory statement.
A Neumann CC v Beauty Without Cruelty International136
A poster showed a woman dragging a fur coat that was dripping blood with captions that read ‘It takes
up to 40 dumb animals to make a fur coat’ and ‘If you don’t want millions of animals tortured and killed
in leg-hold traps, don’t buy a fur coat’. A furrier and seller of fur coats sought to interdict further
publication of the poster, and one of the issues was whether the poster referred to the applicant. The
Court gave a succinct outline of the principles involved:137
It is obvious that applicant is not named directly in the poster. It is also trite that a plaintiff or
applicant in a defamatory action must allege and prove that the defamatory matter was
published of and concerning him. It must refer to or concern him personally … . It has been
stated on many occasions that the test is an objective one and it is whether the ordinary
reasonable reader would have understood the words complained of, in conjunction in this case
with the picture, to apply to the plaintiff or as in this case to the applicant … . This gives rise to
a two-stage inquiry. Firstly, whether the words (with the picture) are reasonably capable of
referring to the plaintiff or applicant. This is a question of law and can be decided on exception.
Secondly, and if the answer to the first part is in the affirmative, whether a reasonable person
would regard the words as referring to the plaintiff or applicant. This is a question of fact on
which evidence would be admissible … .
The Court also said:138
It is now, I think, well recognised that if a group or class is so small or so readily ascertainable
that what is said of the group or class is necessarily said of every member of it, then a member
of that group or class may be able to bring an action if there is a defamation of the group or
class. The reason for this, it would seem, is that every member of the group or class, it being so
small, is identified in the libel or, as it has been put, is ‘individually aspersed and can sue and
that therefore any one of them can … .’ For this reason the Court has, for instance, held that an
allegation in a newspaper article of alleged defamatory conduct on the part of a company could
reasonably be interpreted as a reflection upon the board of directors of the company and that,
as there were only five directors on the board, the article was capable of referring to each and
every member of the board. It was therefore held that the article was capable of referring to the
plaintiff who was one of the directors … . The position is very different in the present case. The
poster and its captions represent, in my opinion, a campaign against a certain type of wearing
apparel, i.e. fur coats and garments; it is an attack on a fashion cult or a clothing fad. Those
who have mounted that campaign have directed their attack against all those … involved in the
production, supplying, manufacture or selling of such garments. This involves a very large and
wholly indeterminate body of persons. It is clearly not an attack on any individual and it is
emphatically not an attack on the applicant. It is, if anything, an attack on a wide group or
class in which it would be impossible to identify applicant individually. It is a campaign against
a cult; it is not an attack on individuals.
The Court accordingly found that the applicant had not been sufficiently identified.
Publication of defamatory matter that refers to the plaintiff involves a
violation of the plaintiff’s reputational personality interest (the factual
disturbance of the personality right). The plaintiff bears the onus of
proving that such violation has occurred. However, the violation of the
right may or may not have been wrongful, and it may or may not have
been inflicted with animus iniuriandi (intention to injure) and the onus is
also on the plaintiff to prove the other two elements of defamation:
wrongfulness and intention. In these instances the law assists the plaintiff
by recognising, on proof of the violation of the plaintiff’s fama, two
rebuttable presumptions: a presumption that the defendant’s conduct
was wrongful (or unlawful) and a presumption that the defendant had
acted intentionally.139 The nature of these presumptions was explained in
Botha v Mthiyane:140
The presumption of culpability relates to the defendant’s subjective state of mind, i.e. a
deliberate intention to inflict injury is presumed, whereas the presumption of unlawfulness
relates to objective matters of law and fact.
Therefore, in respect of the next two elements, we should bear in mind

that it is up to the defendant to prove, on a balance of probabilities:
• First, that the conduct was not wrongful, by showing that social
policy favours his or her right to free expression, or by showing that a
recognised defence or ground of justification is present. This is a full,
and not merely an evidentiary, onus.141
• Second, that he had not been at fault, either because there was no
direction of the will towards defaming the plaintiff, or because the
plaintiff was not conscious of the wrongfulness of his or her conduct.
Media defendants can rebut the latter aspect of intention only if they can
also show that they had not been negligent. In other words, in
circumstances where, objectively speaking, the defamation was
wrongful, a media defendant can escape liability only if it can prove on a
balance of probabilities that it did not act intentionally or negligently.
30.7 Wrongfulness
Once a plaintiff has proved that defamatory material about him or her
has been published, courts presume that the publication was wrongful,
unless the defendant can show otherwise.142 The criterion of
reasonableness, also known as the boni mores of modern society or the
legal convictions of the community, is used to determine whether the
defendant’s conduct is wrongful in the circumstances. The accepted
rules for determining wrongfulness, discussed earlier, apply. In line with
those rules, the enquiry into wrongfulness is, in effect, an enquiry into the
relevant social policy to determine whether the plaintiff should be
allowed a claim. The question is whether the sense of justice in the
community, crystallised in the boni mores, would dictate that the plaintiff
should be successful in an action for defamation. In defamation cases,
this usually requires courts to balance two conflicting rights: the
plaintiff’s right to reputation and the defendant’s right to freedom of
expression. Neither of the rights is more important than the other. In
some instances, the situation leans towards protecting the plaintiff’s
interests; in others, society favours the defendant’s interests. So, the facts
of each case determine the result of the normative enquiry into
wrongfulness and, because both of these rights are also protected in the
Bill of Rights (reputation is included under the dignity umbrella),143 the
Constitution plays an important role in determining social policy and the
outcome of the wrongfulness enquiry.
Over the years courts have concluded that in certain categories of
factual situations freedom of expression should prevail over the plaintiff’s
rights, provided that particular criteria have been met. These categories
have been distilled into what we call grounds of justification or defences
excluding wrongfulness. The grounds most commonly associated with
defamation actions are truth and public benefit, fair comment, and
privileged occasion, but the list is not a closed one. The grounds of
justification will be discussed in more detail in the next chapter.

Animus iniuriandi is the subjective intention to injure. As in the case of
wrongfulness, courts presume intention to be present once the plaintiff
has proved publication of defamatory matter that refers to the plaintiff.
However, the defendant may rebut this presumption.
Animus iniuriandi is a subjective concept that comprises two
components:
• The direction of the defendant’s will towards injuring the plaintiff’s
reputation
• The defendant’s knowledge that to impair the plaintiff’s reputation is
in the circumstances wrongful or unlawful (knowledge of the
wrongfulness of one’s conduct).
In Modiri v Minister of Safety and Security 144 the Supreme Court of

Appeal held that, once a court was satisfied the plaintiff had proved there
had been publication of defamatory matter referring to the plaintiff, the
presumptions of wrongfulness and fault arise. The court should first
ascertain whether the defendant had acted with animus iniuriandi. If the
answer to that enquiry is ‘no’, there is no question of liability. If the
answer is ‘yes’, the court should then enquire into whether or not the
damage to the plaintiff’s reputation had occurred in a wrongful manner.
Neethling, Potgieter and Visser are of the view that this approach is
wrong, pointing out that a court should always enquire into wrongfulness
first. If the defendant’s conduct was not wrongful, there can be no
question of the defendant having acted with animus iniuriandi, as the
defendant could not possibly have been conscious of the wrongfulness of
the conduct at the time he or she engaged in it.145
The defences mentioned in the fault chapter apply to defamation
cases. However, the defences negating intent that are most often
associated with defamation actions are mistake, provocation and jest.
The principle that animus iniuriandi is the fault requirement for
defamation claims applies to all defendants, except for the mass media,
which term includes the press, radio and television, and anyone whose
business it is to publish, including owners, editors, printers, publishers
and distributors. At common law, all defendants were treated equally,
which meant that mass media defendants could escape liability if
subjectively no intention was present – for example, because the media
defendant made a mistake. However, courts began to acknowledge that,
because of the greater potential for harm arising from defamation
published in the mass media, as well as the ease with which mass media
could escape liability, special rules should apply to such defendants.
In Trimble v Central News Agency 146 the Appellate Division held that
newspaper vendors (and distributors) could escape liability if they could
prove that they had not been negligent. This approach was followed in
Hassen v Post Newspapers (Pty) Ltd,147 where the Court introduced an
objective element into the enquiry and held that a mistake could serve as
a defence against intention, thus excluding consciousness of
wrongfulness, but only where the mistake was not made recklessly or
negligently. Subsequently, Pakendorf v De Flamingh 148 took the matter a
step further and held that mass media were strictly liable for defamation.
The effect of this decision was that a media defendant could never raise a
defence aimed at negating fault. Fault was no longer an element of
defamation perpetrated by the mass media, and if a plaintiff’s reputation
were infringed and the infringement was wrongful, then liability
followed. The landmark decision in National Media Ltd v Bogoshi 149
overturned the strict-liability regime. There is a fair amount of
controversy over which form of liability Bogoshi introduced in its place.
Most would agree that our law is now similar to that articulated in Hassen
v Post Newspapers (Pty) Ltd, but there is no agreement as to the exact
effect of that position. Some commentators and courts suggest that
Bogoshi introduced negligence liability, while others believe that liability
is still based on intention, but that media can rebut the presumption of
intention and escape liability if they can show that their conduct was not
negligent.
COUNTER Liability of mass media

Views differ on the nature of the liability in mass-media cases. Neethling,
POINT
Potgieter and Visser,150 as well as Burchell,151 contend that Bogoshi introduced
a general principle that negligence suffices as a form of fault. The Supreme Court
of Appeal in Mthembi-Mahanyele v Mail & Guardian 152 supports this view:
… the form of fault in defamation actions against the press is

negligence rather than intention to harm.153
Midgley, on the other hand, contends that Bogoshi considered an attenuated

form of intention to be appropriate,154 and that the Court opted for a reverse-
onus approach in terms of which a defendant can attempt to negate
intention.155 One can trace the difference of opinion to different interpretations
of previous cases.
In Hassen v Post Newspapers (Pty) Ltd,156 the Court said:157
A defamation is not actionable if it was published in the honest,

though mistaken, belief in the existence of circumstances which
would have justified or excused its publication, but that is so only if
the mistake is not attributable to the recklessness or negligence of
the defendant … .
However, the Court also said:158
I am of the opinion that there was negligence, attributable to the first

defendant, which was causally connected with the defamatory
publication. That, in my view of the law, founds liability.
In Bogoshi, the Court noted that Suid-Afrikaanse Uitsaaikorporasie v O’Malley 159

distinguished between liability for defamation (which) ‘cannot be founded upon
negligence’ and the fact that ‘essentially on the ground of lack of negligence,
news distributors may escape liability for defamation of which they were
unaware’160 and commented:161
Some writers … are in favour of negligence being the basis of liability

and the judgment in Hassen v Post Newspapers (Pty) Ltd … points
the same way; but any suggestion that liability for defamation can be
founded on negligence was rejected in the obiter dicta in O’Malley’s
case. On the other hand, O’Malley did not overrule the principle
discussed at the outset of this judgment that distributors can escape
liability if they are not negligent.
The Court then concluded:162
Defendants’ counsel, rightly in my view, accepted that there are

compelling reasons for holding that the media should not be treated
on the same footing as ordinary members of the public by permitting
them to rely on the absence of animus injuriandi, and that it would
be appropriate to hold media defendants liable unless they were not
negligent in the circumstances of the case.
In Khumalo v Holomisa 163 the Constitutional Court noted:
In Bogoshi, too, the question of the rebuttal of intention was

considered. One of the aspects of animus injuriandi (the intention to
cause injury) is subjective intent which, amongst other things,
requires the person who made the defamatory statement to have
been ‘conscious of the wrongful character of his act’. …
Hefer JA then considered whether media defendants should be

permitted to rebut the presumption of intentional harm by
establishing a lack of knowledge of wrongfulness, even where that
lack of knowledge was as a result of the negligence of the defendant.
He concluded that they should not … .
In NM v Smith 164 the Constitutional Court, in a majority judgment, held that

cases involving the actio iniuriarum require intention.165 O’Regan J, who
preferred to extend the law to include negligence liability in that case,
nonetheless interpreted Bogoshi as follows:166
However, the Court at the same time held that the press could not
rebut the presumption of intention that arises upon proof of
publication of defamatory material by simply showing the absence of
knowledge of unlawfulness (more simply understood as subjective
mistake). The press would in addition have to establish the absence
of negligence. In so doing, the Court established that a media
defendant could not avoid liability for defamation unless it could
show that it had not acted negligently. This was a new development
in the actio injuriarum.
In Pieterse v Clicks Group Ltd 167 the Court expressed the view that, in cases of
suspected shoplifting, where the person suspected of wrongdoing may be
stopped, questioned and subjected to a search of his or her person or bags, the
fault requirement should be both intention and negligence,168 as is the case with
the mass media:
There appears to be no practical impediment to align the

requirement for fault in the actio iniuriarum with the Lex Aquilia more
closely in cases where a person purporting to exercise authority at a
shop accuses a customer of shoplifting, irrespective of whether or not
this is followed by a request to search.169
Irrespective of our view as to what the cases have said in the past, is there
justification for the view that in a modern constitutional state, fault in defamation
cases, and perhaps for all actio iniuriarum cases, should include negligence?
1 1954 (3) SA 244 (C) at 247–248.

2 Holomisa v Khumalo 2002 (3) SA 38 (T) at 62.
3 For a recent illustration of the classic contest between the right to dignity, on the one hand,
and the right to freedom of expression, on the other, see Mtyhopo v South African Municipal
Workers Union National Provident Fund 2015 (11) BCLR 1393 (CC), where Cameron J held
that the Constitutional Court had jurisdiction to hear the matter because it affected freedom
of expression (para 25). The Court held that what the applicant had said about the
respondent was true and fair comment that could justifiably be expressed. Accordingly, the
interdict restraining the applicant from exercising his right to freedom of expression was set
aside (para 42).
4 Khumalo v Holomisa 2002 (5) SA 401 (CC) para 26.
5 In Bosasa Operations (Pty) Ltd v Basson 2013 (2) SA 570 (GSJ), an action for defamation, the
Court refused to compel a journalist and the newspaper he worked for to reveal the sources
of an article published about corruption in a tender process, because to have done so would
have undermined the right to freedom of expression of the journalist and the newspaper
(para 38).
Curiae) 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC) para 91; The Citizen 1978 (Pty) Ltd v
McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC); 2011 (8) BCLR 816
(CC) para 19; Demmers v Wyllie 1980 (1) SA 835 (A) at 842A–C.
7 Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A); Khumalo v
Holomisa 2002 (5) SA 401 (CC).
8 Chapter 4.
9 S v Motsepe 2015 (5) SA 126 (GP) paras 39, 46 and 49–50.
10 G A Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 at 5–6 and 9; Dhlomo NO v Natal
Newspapers (Pty) Ltd 1989 (1) SA 945 (A) at 952–953.
11 Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A) at 954.
12 Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) at 600.
13 South African National Defence Union v Minister of Defence 2012 (4) SA 382 (GNP) paras
18–19.
14 Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) at 600.
15 It might not be able to attract the staff it would like to have, but it would be speculative and
tenuous to link that to financial prejudice.
16 2011 (5) SA 329 (SCA). For a critical discussion of this case, see Descheemaeker ‘Three Keys
to Defamation: Media 24 in a Comparative Perspective’ (2013) 130(3) SALJ at 435–448.
17 Paras 30 and 54.
18 Para 17.
19 Paras 8 and 12.
20 Para 51.
21 2011 (3) SA 208 (GSJ).
22 Paras 42–51.
24 Para 51.
25 Die Spoorbond v South African Railways; Van Heerden v South African Railways 1946 AD
999 at 1008 and 1012–1013; Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329
(SCA) paras 37–38 and 39.
26 Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA) paras 33, 42 and 43.
27 Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) at 28.
28 1998 (3) SA 1114 (ZS).
29 Section 239 of the Constitution of the Republic of South Africa, 1996 provides that an organ
of state is (a) any department of state or administration in the national, provincial or local
sphere of government, or (b) any other functionary or institution (i) exercising a power or
performing a function in terms of the Constitution or a provincial constitution, or (ii)
exercising a public power or performing a public function in terms of any legislation.
30 2015 (5) SA 317 (GJ).
31 Para 37.
32 Isparta v Richter 2013 (6) SA 529 (GNP) para 35.
33 Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) at 564–565; Afrika v Metzler 1997
(4) SA 531 (NM) at 535.
34 Moolman v Slovo 1964 (1) SA 760 (W) at 762–763.
35 1960 (3) SA 109 (O).
36 In Masiu v Dos Ramos [2014] JOL 31608A (FB) paras 10–12, the Court held that sending a
letter to a third party in which it is said that one suspects that a person has been engaging in
corrupt behaviour is not merely a thought, but rather an act with real consequences, for
which damages can be claimed by the person identified in the letter.
37 Delta Motor Corporation (Pty) Ltd v Van der Merwe [2004] 4 All SA 365 (SCA); 2004 (6) SA
185 (SCA).
38 Tsichlas v Touch Line Media (Pty) Ltd 2004 (2) SA 112 (W).
39 Godfrey v Demon Internet (Britain) [1999] 4 All ER 342; see also Byrne v Deane [1937] 1 KB
818; [1937] 2 All ER 204.
40 Whittington v Bowles 1934 EDL 142.
41 Tothill v Foster 1925 TPD 857.
42 See Heroldt v Wills 2013 (2) SA 530 (GSJ); [2013] 2 All SA 218 (GSJ) paras 10–23, where Willis
J quotes extensively from an academic article by Roos (‘Privacy in the Facebook Era: A South
African Legal Perspective’ (2012) 129(2) SALJ at 375–402), in which she defines and explains
social-media and social-networking sites, and describes the popularity of such online
platforms (at 382–385). In footnote 1, Willis J describes Facebook as follows:
Facebook is a popular free, social-networking website on the internet which enables registered
users to send messages to one another, upload photographs and videos, keep in touch with one
another and send information about themselves (and others) to other registered users.
43 See Roos ‘Privacy in the Facebook Era: A South African Legal Perspective’ (2012) 129(2)
SALJ 375–402 at 382.
44 Roos and Slabbert ‘Defamation on Facebook: Isparta v Richter 2013 6 SA 529 (GP)’ (2014)
17(6) Potchefstroom Electronic Law Journal 2844–2868 at 2847.
45 These terms are not always interchangeable. As Roos and Slabbert point out at 2848, ‘social
media’ refers to any online platform to which a person may post content. For example,
Twitter, which enables users to post 140-character messages/ statements (‘microblogging’),
is an example of social media. YouTube is also an example of social media. In contrast,
LinkedIn is a social-networking site, as it allows users of the site to meet or renew contact
and interact with other users. Facebook is both a social-media and a social-networking site.
Thus, social media is a broader concept that includes social networking.
46 See Singh ‘Social Media and the Actio Iniuriarum in South Africa – An Exploration of New
Challenges in the Online Era’ (2014) 35(3) Obiter at 616–628, where the author commends
the court for taking a pragmatic approach to cases involving defamation on social-
networking sites.
47 The courts have also shown willingness to adapt procedural law to take into account the
widespread use of social media. For example, in CMC Woodworking Machinery (Pty) Ltd v
Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD) the Court held that service of legal process
could take place via Facebook. See Singh ‘Welcome to Facebook, Pieter Odendaal: you have
been served! (2013) 2:380 Journal of SA Law.
48 2014 (2) SA 569 (GJ).
49 Paras 47–55.
50 2012 (6) SA 201 (GSJ).
51 Paras 32–41, 45 and 49.
52 2013 (6) SA 529 (GNP).
53 Para 35.
54 2015 (1) SA 270 (KZP).
55 Para 20.
56 Para 28.
57 2013 (2) SA 530 (GSJ); [2013] 2 All SA 218 (GSJ).
58 Paras 31–32 and 35.
59 Para 38.
60 Para 39.
61 Para 47.
62 Para 43.
63 At fn 1 and paras 10–23.
64 Para 8.
66 Williams v Shaw (1884–1885) 4 EDC 105.
68 1960 (3) SA 109 (O).
69 Sutter v Brown 1926 AD 155 164.
70 Vermaak v Van der Merwe 1981 (3) SA 78 (N) at 83H.
73 Sutter v Brown 1926 AD 155 at 162; Ketler Investments CC t/a Ketler Presentations v Internet
Service Providers’ Association 2014 (2) SA 569 (GJ) at 581–583.
74 1980 (1) SA 835 (A) at 842H.
75 HRH King Zwelithini of KwaZulu v Mervis 1978 (2) SA 521 (W).
76 Channing v South African Financial Gazette Ltd 1966 (3) SA 470 (W) at 474.
77 Demmers v Wyllie 1980 (1) SA 835 (A) at 848.
78 Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) at 408.
79 Geyser v Pont 1968 (4) SA 67 (W) at 69.
80 Chesterton v Gill 1970 (2) SA 242 (T) at 246.
81 Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA).
82 [1936] 2 All ER 1237 (HL) at 1240.
83 1996 (1) SA 673 (A).
84 [1936] 2 All ER 1237 (HL).
85 Botha v Marais 1974 (1) SA 44 (A) at 49.
86 Mtyhopo v South African Municipal Workers Union National Provident Fund 2015 (11)
BCLR 1393 (CC) para 30; Le Roux v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) para 91; The Citizen 1978 (Pty) Ltd v
McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC); 2011 (8) BCLR 816
(CC) para 19; Demmers v Wyllie 1980 (1) SA 835 (A) at 842A–C.
87 Mohamed v Jassiem 1996 (1) SA 673 (A) at 706; Sokhulu v New Africa Publications Ltd 2001
(4) SA 1357 (W) para 7.
88 1996 (1) SA 673 (A).
89 At 704.
90 Mohamed v Jassiem 1996 (1) SA 673 (A) at 709, Van der Walt and Midgley Principles of
Delict 4 ed (2016) para 104.
91 Pont v Geyser 1968 (2) SA 545 (A) at 558.
92 Gayre v SA Associated Newspapers Ltd 1963 (3) SA 376 (T).
93 Mangope v Asmal 1997 (4) SA 277 (T); Le Roux v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amicus Curiae) 2011 (6) BCLR 577 (CC) para 107.
94 Prinsloo v SA Associated Newspapers Ltd 1959 (2) SA 693 (W).
95 Sokhulu v New Africa Publications Ltd 2001 (4) SA 1357 (W) at 1359.
96 For greater detail, see Burchell The Law of Defamation in South Africa (1985) at 103–126.
97 Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W).
98 Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA).
99 Pitout v Rosenstein 1930 OPD 112; Botha v Mthiyane 2002 (1) SA 289 (W); Du Plessis v
Media 24 t/a Daily Sun 2016 (3) SA 178 (GP).
100 For example, an allegation that a person has venereal disease: Tothill v Foster 1925 TPD 857.
An allegation that someone is HIV positive or has Aids would similarly be defamatory.
101 Such as an allegation of insanity: Masters v Central News Agency 1936 CPD 388 at 393.
102 Johnson v Beckett 1992 (1) SA 762 (A).
103 See African National Congress v Democratic Alliance 2014 (3) SA 608 (GJ) at 619; Cele v
Avusa Media Ltd [2013] 2 All SA 412 (GSJ) para 23; Malema v Rampedi 2011 (5) SA 631 (GSJ)
at 634–635; Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579
(A) at 588.
104 2015 (6) SA 389 (FB).
105 Para 33.
106 HRH King Zwelithini of KwaZulu v Mervis 1978 (2) SA 521 (W).
107 2002 (2) SA 32 (SCA).
108 Para 1.
110 Para 12.
111 Para 14.
112 Para 15.
113 2011 (3) SA 274 (CC).
114 Para 99.
115 Para 98.
116 Para 107.
117 Para 109.
118 ‘Heteronormativity’ is defined by the authors as ‘the set of cultural practices and
assumptions that privilege heterosexuality and assume that the monogamous heterosexual
couples represent the principle of social union itself’ (at 408).
119 Barnard-Naude and De Vos ‘The Heteronormative Observer: The Constitutional Court’s
Decision in Le Roux v Dey’ (2011) 128(3) SALJ at 407–419. For additional, different criticism,
see Neethling and Potgieter ‘Defamation of School Teachers by Learners – Le Roux v Dey
2011 (3) SA 274 (CC)’ (2011) 32(3) Obiter at 721–730.
120 For example, National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1)
SA 6 (CC) para 134; Minister of Home Affairs v Fourie (Doctors for Life International, Amici
Curiae); Lesbian and Gay Equality Project v Minister of Home Affairs 2006 (1) SA 524 (CC)
para 138.
122 Para 173.
123 Para 167.
124 Para 179.
125 [2013] 2 All SA 412 (GSJ).
127 Para 28.
129 Para 31.
130 Para 46. See the discussion of this aspect of the case in the chapter on infringements of
dignity in Chapter 27.
131 A Neumann CC v Beauty Without Cruelty International 1986 (4) SA 675 (C) at 679–680.
132 Williams v Van der Merwe 1994 (2) SA 60 (E) at 63–64.
133 SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) at 810.
134 1992 (3) SA 912 (A).
135 At 919.
136 1986 (4) SA 675 (C).
137 At 679–680.
138 At 683–684.
139 Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) at 401–403; Khumalo v
Holomisa 2002 (5) SA 401 (CC) para 18.
140 2002 (1) SA 289 (W) para 51.
141 Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 7 ed (2015) at 357; Modiri v
Minister of Safety and Security [2012] 1 All SA 154 (SCA) para 10.
142 Neethling v Du Preez, Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 767–769.
143 Khumalo v Holomisa 2002 (5) SA 401 (CC).
144 [2012] 1 All SA 154 (SCA).
146 1934 AD 43.
147 1965 (3) SA 562 (W).
148 1982 (3) SA 146 (A).
149 1998 (4) SA 1196 (SCA).
150 Neethling and Potgieter at 365; Neethling, Potgieter and Visser Neethling’s Law of
Personality 2 ed (2005) at 166 and 167.
151 Burchell ‘Media freedom of expression scores as strict liability receives the red card:
National Media Ltd v Bogoshi (1999) 116(1) SALJ at 1; Burchell Personality Rights and
Freedom of Expression: the Modern Actio Injuriarum (1998) at 315 et seq.
152 2004 (6) SA 329 (SCA).
153 Para 46.
154 Midgley ‘Media liability for defamation’ (1999) 116(2) SALJ at 211; Midgley ‘Intention
remains the fault criterion under the actio injuriarum’ (2001) 118(3) SALJ at 433.
155 Midgley ‘Fault under the actio iniuriarum: Custer’s last stand?’ in Boezaart and De Kock
(Eds) Vita perit, labor non Moritur: Liber Memorialis: PJ Visser (2008) at 187; National
Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) at 1213–1214.
156 1965 (3) SA 562 (W).
157 At 576.
158 At 577.
159 1977 (3) SA 394 (A).
160 1998 (4) SA 1196 (SCA) at 1205.
161 At 1213–1214.
162 At 1214.
163 2002 (5) SA 401 (CC) para 20.
164 2007 (5) SA 250 (CC).
165 Para 55.
166 Para 173.
167 2015 (5) SA 317 (GJ).
168 Paras 70, 84 and 103.
169 Para 64.
Chapter 31
Grounds of justification associated

with infringements of personality
interests
31.1 Introduction

31.2.1 Truth
31.3 Fair comment



31.1 Introduction
A court’s conclusion on whether conduct is wrongful is an expression of
what society considers acceptable or unacceptable conduct. Therefore,
the conclusion is an expression of society’s legal convictions or boni
mores as to whether there could be a claim in delict. Over time,
categories of circumstances have surfaced in which courts have not
allowed certain claims because a defendant’s conduct is justified in the
circumstances, provided that certain criteria have been satisfied. Usually,
these grounds indicate the circumstances in which a defendant’s right to
freedom of expression should trump any personality rights that a plaintiff
might have in the circumstances. Grounds of justification are thus
defences that a defendant can use to rebut a wrongfulness presumption
and prove that, in the circumstances of the case, there should be no
claim.
In actio iniuriarum cases the most common grounds of justification are:
• Truth for public benefit (or public interest)

• Fair comment
• Privileged occasion.
More recently, the defence of reasonable publication (which applies

specifically to the media) has also come to the fore.
The first two grounds (truth for public benefit and fair comment) are
‘truth-based’ defences, while the latter two (privileged occasion and
reasonable publication) are not. So, defendants can rely on the latter
grounds even in circumstances where the material in question is not true.
Defendants have traditionally used these defences for defamation claims,
but, where appropriate, they apply equally to claims for invasion of
dignity, privacy or identity.

The legal convictions of the community dictate that, as a matter of policy,
a defendant should be protected against a claim if the material in
question is true and has been made known for the benefit of the public.1
This defence, which is sometimes called the defence of justification, has
two parts to it: (i) truth, and (ii) public benefit. For the defence to take
effect, both these parts must be present. This means that truth alone
cannot be a defence, and so, a statement that is true but not made in the
public interest may lead to liability in delict.2 However, as we describe
below, an untrue statement in the public interest may be justified in
some instances, provided that its publication is considered reasonable,
or was made on a privileged occasion.
31.2.1 Truth
The defence of truth for public benefit operates only in circumstances
where a defendant makes factual allegations; a defendant cannot use it
where the material in question amounts to comment. A statement is
either true or it is not true, irrespective of what anyone might think or
might have meant to convey. So, the truth of any statement is a matter of
fact and is proved just like any other factual allegation is proved: by
producing evidence to that effect. This part of the enquiry is not
concerned with whether the statement is reasonable or fair, and so does
not involve any normative decisions or value judgements.
In line with the presumption of wrongfulness, the law presumes that
a statement is false, unless the defendant proves otherwise by showing
that the substance of the material is true. In other words, a defendant
does not have to prove that the material is true in all respects – a person
could exaggerate, for example – but the material allegations must be
substantially true. It appears, however, that where fraud, dishonesty or
criminal conduct is alleged as a fact, then every aspect of such an
allegation must be true, not merely its gist.3
Du Plessis v Media 24 t/a Daily Sun 4
A newspaper article alleged that the plaintiff had bound an employee’s wrists with a plastic strip and
locked him in a cold-storage room for two hours after he had seen the employee stealing an onion. The
article also alleged that when he was finally released from the cold-storage room, the employee’s hair
was frozen, his teeth were chattering, and he could barely speak. There were further allegations that the
employee’s nose had bled all night and that he had required medical treatment. The Court found the
article to be exaggerated and substantially untrue5 and, accordingly, the defence of truth for the public
benefit could not succeed in the circumstances.6
The second part of the defence requires that the material must have been
published for public benefit, or in the public interest. The primary
meaning of these phrases differs: ‘benefit’ means that there must be
some advantage that accrues, while ‘interest’ indicates that the material
must be ‘of interest, or have curiosity value’. 7 However, both phrases are
intended to convey the notion of public concern, in the sense that the
material is important and relevant, and that the public is made aware of
the information because the knowledge may be of interest in the public
domain. The underlying reason for such an interest may be that society
would benefit in some way, but the defence is not limited to those
instances where a person can show actual benefits.
A defendant, therefore, has to show that the information will be of
some significance to society, and that it is reasonable for society to have
that information. Courts will make the decision based on the nature of
the material, as well as the time, manner and place of its publication.
Information about public figures is normally of public interest, but the
disclosure of private morality, even of public figures, would not usually
be in the public interest, except to the extent that this might reflect on
their fitness to fulfil their public duties. In Heroldt v Wills 8 the Court
considered the defence in a case involving a defamatory statement that
had been posted to Facebook and made the following remarks:
The ‘truth plus public benefit/interest’ test will generally protect both public figures
and those who write about them provided it is remembered that it is not in the
public interest that every titbit of information and not every morsel of salacious
gossip about a public figure be made publicly known. There is legitimate public
interest in the affairs of public figures. Legitimate interest in what they do does not
overshadow the fact that public figures have the same human rights as everyone
else. They too enjoy a constitutional right to privacy. Our law protects every
person’s right, not only to dignitas (inner tranquillity) but also to fama
(reputation).9
Previous conduct should also be forgiven, as a number of old cases

illustrate. For example, in Lyon v Steyn 10 the Court found that a reference
to a true incident that happened 30 years previously 11 was not one that
the public needed to know about. The law of defamation protects people
against the raking-up of their past.
COUNTER Spite and malice
Should a court take into account the fact that a defendant was prompted by
POINT
spite or malice when it assesses whether material is true or for the public
benefit? Malice or improper motive defeats the defences of fair comment12 and
privileged occasion,13 but apparently not the defence of truth and public
benefit.14 Burchell states:15
The truth is the truth no matter what the motives of the publisher are
and the publication of truth for the public benefit does not cease to
be for the public benefit simply because the publisher is prompted by
some improper or ulterior motive.
However, if malice can indicate that a privileged occasion was abused, why
could it also not indicate that the defence of truth and public benefit was
abused? After all, a ground of justification should not be seen in isolation from
the overall wrongfulness criterion. It should embody society’s belief that the
disclosure in the circumstances is a reasonable one. Would society not consider
a fact that is true and for the public benefit, but published maliciously, to be
unreasonable? Is this not akin to an abuse of rights?
Johnson v Rand Daily Mail16

A newspaper published a letter to the editor that criticised the catering arrangements at the annual
agricultural show. Johnson was in charge of the catering arrangements. The criticisms included that the
caterer was incompetent, the food was disgraceful because the eating areas were filthy, the table linen
was greasy and dirty, and that the floor was littered with refuse that had fallen or had been swept from
the tables. The newspaper pleaded truth for the public benefit.
The Court had to decide whether these allegations were substantially correct, or whether they were so
greatly exaggerated ‘as to leave a wrong impression on the mind of the reader’. This does not mean that
the defendant has to prove every allegation as described. The evidence indicated that the conditions in
the tea room were filthy, but the Court thought that ‘to describe them as indescribably filthy might
appear somewhat overstated’. However, the sting of the defamation was ‘that the tea rooms and the
luncheon room were in a state of uncleanliness, that scraps of meat and vegetables were lying about the
floor, and that the tablecloths were unduly stained with grease and other stains’.17 The Court concluded:
The fact that there is some exaggeration in the language used does not deprive a plea of
justification of its effect. The test is whether the exaggeration leaves a wrong impression on the
reader’s mind to the detriment of the plaintiff … . Even, therefore, if there was some
exaggeration in the use of words such as ‘indescribable’, or in saying that the tablecloth had to
be turned back on account of the grease, then yet the justification is proved, for only ‘as much
must be justified as meets the sting of the charge and if anything be contained in the charge
which does not add to the sting of it, that need not be justified’.
Modiri v Minister of Safety and Security18

The Daily Sun published an article in which it alleged that the appellant was suspected of being involved
in drug dealing, cash-in-transit heists and car theft. The article quoted a police superintendent as saying
that the appellant used other people to do his ‘dirty work’ for him and calling on members of the public
to help the police apprehend the appellant. The appellant sued the Minister and the newspaper for
defamation, but on appeal the appellant accepted that the police superintendent had not made the
defamatory statement attributed to him by the article (he had been misquoted) and therefore he had no
claim against the police respondents.19
Regarding the claim against the media respondents, the Court held that the defence of truth for the
public benefit should succeed, as the gist or sting of the article was correct – the evidence of the police
respondents indicated that the appellant was suspected of having been involved, over a number of
years, in criminal activities.20 The fact that the article was incorrect or inaccurate in some minor respects
did not mean it was untrue for the purposes of the defence of truth for the public benefit.21 The Court
also found that publishing the defamatory matter about the appellant was in the public interest, as the
suspicions about the appellant were strong and publishing the defamatory matter would assist the
police in procuring witnesses and evidence that could be used to prosecute a person suspected of
having engaged in serious criminal activities.22 Accordingly, the newspaper was able to escape liability
on the basis of the defence of truth for the public benefit.23
The fact that the media respondents had not led any evidence regarding the basis for the defence did
not preclude them from using it. As a wrongfulness-based defence, truth for the public benefit was
established on the basis of objective facts, which had been provided by evidence given on behalf of the
police respondents.24 In addition, the Court rejected the argument that the media respondents could not
rely on the information of the appellant’s alleged criminal activities testified to by the police
respondent’s witnesses because it had not been demonstrated that the article was based on that
information. As far as the Court was concerned, it did not matter where the information had come from,
as long as the sting of the article was in fact true.25
31.3 Fair comment

Freedom of expression is a prized right in a constitutional democracy,
and so public policy requires the law to give a considerable amount of
freedom to citizens expressing opinions. Courts should protect honest
and fair criticism, as well as opinions and comments that are fair. The
defence of fair comment, therefore, protects:
the right of the citizen honestly to express his genuine opinion on a matter of public
interest, however wrong, exaggerated or prejudiced that opinion may be.26
The basis of this defence is that a comment or an opinion exists, unlike

truth and public benefit, which is based upon allegations of fact.
Comments and opinions express value judgements, which by their very
nature cannot be true or false, so the protection extends to instances
where views and opinions are honestly held and fairly made. The criteria
for assessing what constitutes fair comment are:
• The material must amount to comment or opinion, and not a
statement of fact.
• The facts upon which the comment or opinion is based are
substantially true, and either widely known or incorporated by
reference.
• The comment or opinion pertains to a matter of public interest.
• The comment or opinion is fair.

A person making a comment is expressing an opinion, not a fact. The
difference is not always easy to determine for, as Burchell points out,
sometimes an opinion can masquerade as a fact.27 In Crawford v Albu28
Crawford and eight others were deported to England after being arrested
in connection with labour disturbances. Albu believed the government
had acted correctly in deporting them, and at a meeting shortly after their
deportation said:
All this strife has been caused by men who are fanatics – no they are not fanatics –
they are criminals in the fullest sense of the word.
It may seem obvious that this statement is a comment in the form of a

criticism based on certain facts, but one eminent judge of appeal, Innes
CJ, considered this to be a statement of fact.
The test for determining whether a statement is an expression of fact
or opinion is the opinion of the reasonable reader, listener or viewer.29
The use of phrases such as ‘it seems to me’ or ‘in my view’ help to
establish the distinction between fact and comment, although not
conclusively. Sometimes the context in which the words are used will
also help. However, if a court cannot determine, on the face of the
statement, whether it is a comment or a statement of fact, it will presume
the statement is factual.

The law requires that the comment must be based on facts, and that
those facts must be known to the reasonable reader, listener or viewer,
either because they were stated expressly when making the comment, or
because they were so well known that they constituted common
knowledge. In the latter instance, the facts are implied.
Fair comment is a ‘truth-based’ defence, and so, while the comment
cannot be true or false, the facts upon which the comment is based must
be true. Obviously, an opinion based upon false or distorted facts cannot
be a reasonably held opinion. As with the defence of truth for the public
benefit, every detail of the facts does not have to be true.

In this context, ‘public interest’ has the same meaning that ‘public
benefit’ has in the defence of truth for the public benefit. If a matter may
affect other people, so that they may be legitimately interested in it or
concerned about how it might affect them or others, it is a matter of
public interest.

To be a fair comment, the comment must fall within prescribed limits.
The issue is not whether the comment is valid, impartial or balanced. The
criterion for setting these limits is whether the comment is a genuine
expression of opinion, relevant, honest, and free from malice (not
prompted by an improper motive).30 The comment could be extravagant
or exaggerated, and possibly even prejudiced, provided the nature of the
prejudice does not offend constitutional values. This also applies to
comments on social media: in Heroldt v Wills 31 the Court linked the
defence to the right to freedom of expression 32 and said: 33
The ‘fair comment’ test will generally come to the aid of those who wish to express
themselves lavishly and perhaps even extravagantly. Trenchant commentaries on
the performances of politicians as politicians, entertainers as entertainers,
musicians as musicians, artists as artists, writers as writers, poets as poets, sports
stars as sports stars will generally pass legal muster, even if posted in the social
media. When it comes to freedom of expression in South Africa, there are oceans in
which to swim and upon which to sail as freely as the wind blows.
It stands to reason that proof of malice would defeat the defence of fair
comment.
Delta Motor Corporation (Pty) Ltd v Van der Merwe34
Van der Merwe owned a four-wheel-drive vehicle that Delta Motor Corporation had manufactured. The
vehicle developed a bent chassis, which Van der Merwe believed was the result of a manufacturer’s
defect. He attempted, in vain, to have the vehicle replaced or repaired at Delta’s expense. Delta
maintained that the bent chassis was due to overloading, bad driving and owner abuse. The result was
that Van der Merwe sent email messages to 27 people that contained photographs of the vehicle with
the words (translated): ‘Worst 4×4×far’. One of the issues was whether this statement constituted fair
comment.
The criticism was based on the fact that the vehicle’s chassis had bent on a gravel road and whatever
had caused the chassis to bend must have occurred during the trip on the gravel road. The condition of
the road would not have damaged the chassis of an ordinary vehicle.
The comment was a parody of a well-known advertisement of another product, which called itself ‘The
best 4×4×far’. Van der Merwe’s adaptation was, of course, an exaggeration, but this did not make the
comment malicious, nor did this change its nature to something other than a genuine expression of
opinion that the vehicle was defective. Any inference that other vehicles of the same make might have
similar defects could not be regarded as unfair.
PAUSE FOR Truth and fair comment

REFLECTION In Crawford v Albu 35 the Court summarised the basic difference between ‘truth
in the public interest’ and ‘fair comment’ as:
Under the former the defendant must justify every injurious fact and
imputation in whatever shape expressed. Under the latter he must
justify the facts, but he need not justify the comment; it is sufficient if
he satisfies the Court that it is ‘fair’.36 unpersuasive. Untrammelled
debate enhances truth-finding and enables us to scrutinise political
argument and deliberate social value.38
The Citizen 1978 (Pty) Ltd v McBride (Johnstone and Others; Amici Curiae)37
McBride sued The Citizen newspaper, its editor and journalists for defamation. The Citizen had published
a series of articles and editorials questioning McBride’s suitability for the post of Ekurhuleni Metro Police
Chief. It expressed the view that McBride was unsuitable for the post because (i) he was a ‘criminal’ and
a ‘murderer’, (ii) he was not contrite for the deaths he caused, and (iii) he had dubious dealings with
alleged gun dealers in Mozambique in 1998. The articles referred to McBride’s conviction in the
apartheid era for the planting of a bomb that had killed a number of people in a bar. McBride alleged
that these articles neglected to add a crucial fact: McBride had been granted amnesty in terms of the
Promotion of National Unity and Reconciliation Act 34 of 1995, and that in terms of section 20(10) of
the Act his conviction was therefore deemed ‘for all purposes’ not to have taken place. He contended
that the labels ‘criminal’ and ‘murderer’ therefore did not apply to him. The Supreme Court of Appeal
upheld McBride’s claim and found that the false statements could not sustain the defence of fair
comment.
A majority in the Constitutional Court found that the Reconciliation Act did not render the fact that
McBride committed murder untrue. The Citizen’s comments were based on an adequate exposition of
the relevant facts and constituted comment on McBride’s suitability for an important and prominent
public post.
The majority emphasised that protected comment need not be ‘fair or just at all’, in the sense in
which these terms are commonly understood. Criticism is protected even if extreme, unjust, unbalanced,
exaggerated and prejudiced, so long as it expresses an honestly held opinion, without malice, on a
matter of public interest on facts that are true. The Citizen was thus entitled to express views on
McBride’s suitability for the post, and even though the Court considered The Citizen’s coverage to be
vengeful and distasteful, it was nonetheless entitled to legal protection.
The judgments in this case raise fundamental issues. Cameron J, who wrote the majority judgment,
remarked:
So to dub the defence ‘fair comment’ is misleading. If, to be protected, comment has to be
‘fair’, the law would require expressions of opinion on matters of fact to be just, equitable,
reasonable, level-headed and balanced. That is not so. An important rationale for the defence
of protected or ‘fair’ comment is to ensure that divergent views are aired in public and
subjected to scrutiny and debate. Through open contest, these views may be challenged in
argument. By contrast, if views we consider wrong-headed and unacceptable are repressed,
they may never be exposed as unpersuasive. Untrammelled debate enhances truth-finding and
enables us to scrutinise political argument and deliberate social value.38
Perhaps it would be clearer, and helpful in the understanding of the law, if the defence were
known rather as ‘protected comment’. A new name would not change the requirements. At
common law it was rightly held that ‘fairness’ in fair comment must draw on the general legal
criterion of reasonableness. In our constitutional state, comment on matters of public interest
receives protection under the guarantee of freedom of expression. Hence the values and norms
of the Constitution determine the boundaries of what is protected. To call the defence
‘protected comment’ may illuminate the constitutional source and extent of the protection.39
Ngcobo CJ did not share this view, on the basis that the requirement of fair comment maintains a
delicate balance between the need to protect the right of everyone, including the press, to freedom of
expression and the need to respect human dignity:
The requirement that a comment must be fair is consistent with the values that underlie our
constitutional democracy. It underscores the need to balance freedom of expression, on the one
hand, and the need to protect human dignity, on the other. By insisting that a comment must
be fair, the common law demands that comment be fair having regard to the right to human
dignity. The comment must be relevant to the matter commented upon and it must not be
actuated by malice. It underscores the proposition that freedom of expression does not enjoy a
superior status to other rights enshrined in the Constitution. Indeed, it gives effect to the
constitutional commitment this Court articulated in Mamabolo40 to ‘three conjoined, reciprocal
and covalent values’ that are foundational to our Republic, namely, human dignity, equality and
freedom.41
In my view, the requirement of fair comment is consistent with the need to respect and protect
dignity. It maintains a delicate balance between the need to protect the right of everyone,
including the press, to freedom of expression and the need to respect human dignity. This is the
balance that the Constitution requires be struck. I do not, therefore, share the view expressed
by Cameron J that the word ‘fair’ is misleading. It must now be understood in the light of our
Constitution, in particular the foundational values of human dignity and freedom upon which
our constitutional democracy rests and the need to strike a balance between ensuring that
freedom of expression is not stifled and insisting on the need to respect and protect human
dignity.42
Cameron J seems to suggest a less exacting standard for establishing the defence (protected comment)
and Ngcobo CJ a more demanding standard (fair comment in the context of a constitutional commitment
to freedom of expression and the value of human dignity).
Democratic Alliance v African National Congress43

The Democratic Alliance sent a text message to more than 1,5 million voters in Gauteng during the run-
up to the 2014 general elections. The text message consisted of the following statement:
The Nkandla report shows how Zuma stole your money to build his R246m home. Vote DA on 7
May to beat corruption. Together for change.
The public protector had the day before released a report on security upgrades at President Jacob Zuma’s
private home in Nkandla. The African National Congress claimed that the content of the text message
was a false statement that was in violation of section 89(2) of the Electoral Act 73 of 1998 and item
9(1)(b) of the Electoral Code, which make it an offence to disseminate false information with a view to
influencing the conduct or outcome of an election.44 It sought an interdict compelling the Democratic
Alliance to retract the statement by sending a text message to this effect to all the persons to whom the
original text message had been sent, and to apologise for the message. Relying on its right to freedom of
expression,45 the Democratic Alliance claimed the text message was an opinion that constituted a fair
comment in the circumstances.46
While this case was not a delictual claim for damages, but rather one concerning statutory
interpretation,47 the Court considered whether the text message was a factual statement or an opinion,
so as to determine whether it fell within the ambit of the legislative proscription. The judgment
accordingly draws on and elucidates certain key concepts and defences in the law of delict.48 The
majority of the Court emphasised that penal provisions in statutes should be restrictively interpreted, so
as not to unreasonably interfere with the liberty of citizens 49 but, crucially, the Court held that the
statutory provisions in question criminalised only statements of fact, not opinions.50 The text message
was an opinion, as it referred to the public protector’s report as the factual basis for its claim,51 and
opinions could generally not be said to be false.52 In any event, as the text message was an opinion, it
did not fall within the ambit of the legislative provisions in question,53 so it was not necessary to
determine whether the text message was true or false.54

Unlike truth for public benefit and fair comment, the defence of
privileged occasion may protect both true and untrue statements, and it
does not matter whether they are statements of fact or opinion. The
emphasis is on circumstances in which the law recognises that the free
flow of information is more important than a person’s reputation.55 The
public interest demands that courts should not impede freedom of
expression, even where that expression consists of defamatory or untrue
statements.
Sometimes this defence is called a ‘privilege’, but it is important to
note that it is not the statement or its content that is privileged, but the
circumstances in which the statement is made. For this reason, it is better
to speak of a ‘privileged occasion’ than of ‘privilege’. This also highlights
the need for a statement to be relevant to such an occasion before a
person can claim the defence.
Courts distinguish between occasions of absolute privilege – which
effectively create situations of immunity in which everything, no matter
what, is protected – and those where the privilege is qualified, and where
protection is extended only if certain criteria are met.

In the interests of democracy, free speech and full and effective
deliberation,56 statements made while participating in parliamentary
proceedings and those of provincial legislatures are accorded absolute
protection against actions under the actio iniuriarum.57 Provincial
legislatures may grant similar immunity in respect of municipal councils
and their members.58 The protection adheres, irrespective of the truth of
or the motive behind making the statement, provided that:
• The person making the statement is a member of the legislature or
council.
• It forms part of the business of the legislature and its committees,
and the way in which issues are communicated in conducting its
business.
Non-members cannot claim protection, nor can members who have

acted outside legislative or council business.59 However, it has been
suggested that, unless a statute specifically excludes protection,60 the law
should protect outsiders who have been called to testify before a
committee (the rationale for protection applies equally to them), and that
the law should extend the protection to all legislative and council
business, whether conducted within or outside formal proceedings.61

A defendant may rebut the presumption of wrongfulness by showing that
the communication is protected because it was made for moral, social or
legal reasons – in other words, in circumstances public policy dictates
should not attract liability.62 So, the defendant’s aim is to negative the
wrongfulness element of the delict. This is unlike absolute privilege,
which protects even those communications that meet all the elements of
a delict, including the element of wrongfulness. As with absolute
privilege, the rationale for the defence is to protect freedom of
expression. However, because the public policy factors are not as strong,
malicious communication is not protected.
The core issue, as with all wrongfulness questions, is whether the
criterion of reasonableness has been met, and to do so the
communication must:
• Be made on an occasion that the law recognises as privileged:

◆ Statements made because there is a moral, social or legal duty to
do so, or to further a legitimate interest or in the discharge of a
duty. The key issue here is reciprocity. A person must not only
further an interest or discharge a duty, but the recipient of the
information must have an interest in receiving the information.
For example, in Vincent v Long 63 Vincent, a veterinary surgeon,
sued for defamation arising from a letter that Long had written to
the South African Veterinary Council. In the letter, he alleged that
his mother’s cat had been treated incorrectly and that several
people had lost their pets through Vincent’s negligent surgery. At
issue was whether Long had a legal, moral or social duty to make
the statement to the Council. The cat did not belong to him, he
had no mandate to lodge the complaint on his mother’s behalf or
on behalf of the other aggrieved parties, and he was not
responsible for paying the veterinarian’s bill. The Court held that
an interest in bringing complaints that concern professional
people to the attention of their disciplinary body is not restricted
to a person who has been directly prejudiced. Similarly, in O v O 64
the defendant made a defamatory statement to a priest over the
dinner table. At issue was whether the occasion was privileged.
The Court found that a minister, priest, rabbi or moulana
performs an important function in our society, and that it is in the
public interest to uphold the right to speak frankly to one’s
advisers, even at risk to others’ reputations.65 In Byrne v Masters
Squash Promotions CC 66 it was held that an employer has a legal,
moral and social duty to inform an employee of the reasons for
his dismissal. Accordingly, the publication of defamatory facts to
the typist of a letter to be sent to the employee informing him of
the reasons for his dismissal was privileged.67
• Statements made during judicial or quasi-judicial proceedings.
Judicial or quasi-judicial proceedings constitute a privileged
occasion for judges, magistrates, advocates, attorneys, litigants and
witnesses.68 The ambit of protection is far wider for judicial officers
than for the other participants, since public interest in the due
administration of justice requires that they be given free rein to
speak their minds in the exercise of their judicial functions without
incurring liability for damages.
• Statements made in reports on court and parliamentary proceedings
and those of public bodies. In a democratic society, the public needs
to know what is happening in its governmental institutions. So, fair
and substantially accurate reports of judicial or parliamentary
proceedings (which are protected) that contain defamatory material,
for example, will also be protected.69
• Be relevant or germane to the occasion:70 There is no set rule for
proving the relevance of a statement. In Van der Berg v Coopers and
Lybrand Trust (Pty) Ltd 71 the Court held that the assessment
amounts to a value judgement, based on reason and common sense,
as to what would be reasonably necessary to protect the interest or to
discharge the duty upon which the privilege is founded. However,
the truthfulness or otherwise of statements has no bearing on
whether statements are relevant.72
• Not be malicious:73 Malice or improper motive will defeat any claim
to the defence of privileged occasion, because society believes that
there can be no legal, moral, or social duty to publish matter for
malicious reasons. For liability to arise there would have to be some
abuse of the occasion – for example, where a witness has no
reasonable grounds for believing the truth of a statement.74 (When
an untrue statement is made, one can infer that it was made with
malice, unless the circumstances indicate otherwise.)75 The general
rule is that when an infringement of a personality right is proved, a
presumption of wrongfulness arises and the onus shifts to the
defendant to disprove wrongfulness. A bald denial is not enough to
rebut the inference.76 The defendant usually does this by establishing
the first two criteria: that the occasion was privileged, and that the
statement was relevant to the occasion. The onus then shifts back to
the plaintiff to show that the occasion was abused, by proving
malice. However, the situation with respect to presiding officers
(judges and magistrates) is different. Presiding officers are presumed
to have acted lawfully when they make defamatory statements while
performing their duties,77 which means that, contrary to the general
rule, proving the infringement of a personality right does not raise
presumption of wrongfulness. (The normal rules apply with respect
to other participants in legal proceedings.)
PAUSE FOR Media privilege

The media do not occupy a special position in society and there is no such thing
REFLECTION
as media privilege in our law.78 If a newspaper were to rely on the defence of
privileged occasion, it would have to comply with the usual criteria. While there is
scope for arguing that the press has a right, and a duty, to inform the public on
matters of public interest, and that the public has a corresponding right to
receive that information,79 given our courts’ reluctance to grant special
dispensation to the media, a better avenue would be to pursue the defence of
reasonable publication.80
De Waal v Ziervogel81
Ziervogel was a minister in the Dutch Reformed Church. He sued De Waal, a school headmaster, for
damages arising from an allegation that Ziervogel had an affair with De Waal’s wife. The wife had
confessed to being unfaithful to her husband and to having had an intimate relationship with Ziervogel.
De Waal published the information to various persons, among them a magistrate, who was a member of
the church but not in the same congregation as the plaintiff and defendant. He also sent the information
to four others, three of whom were elders of the church, and one a former elder.
The Court quoted with approval 82 an earlier Appellate Division statement in Ehmke v Grunewald:83
Where a person publishing the defamatory matter is under a legal, moral or social duty to do so
or has a legitimate interest in so doing and the person to whom it is published has a similar
duty or interest to receive it then the occasion of the publication would be privileged.
When deciding whether the occasion was privileged, the Court had to determine from all the
circumstances whether a moral or social duty or interest existed that entitled a person in the position of
the defendant to make the communications that he or she did, and whether a corresponding interest
existed in respect of the persons to whom the communications were made to receive the information. The
Court stressed that it is the occasion on which the statement is made that is privileged, not the subject
matter, although the subject matter should be relevant to the occasion.84
A court must decide whether the occasion is privileged in terms of the general rule that relates to duty
and interest, from the circumstances of the case, independently of the motives that prompted the
defendant to publish the defamatory matter:
In other words, the question which the Court has to decide at this stage is not was the
defendant in fact speaking from a sense of duty but did the circumstances in the eyes of a
reasonable man create a duty or an interest which entitles the defendant to speak. This does
not mean that the state of mind or actuating motive of the defendant is immaterial in the
ultimate result of the case because it becomes very relevant in the next stage of the enquiry
when the question arises whether a privileged occasion has been abused.85
The Court concluded that the recipients of the communications were not all on the same footing. Three of
them were elders, one of them was a former elder, and the other a magistrate with no official position in
the church or in the congregation. The communication to the elders was privileged because they had an
interest in receiving the information, but there was no such interest in respect of the former elder, who
was in no better position than an ordinary member of the congregation, and the magistrate.

The defence of reasonable publication, confirmed in National Media Ltd
v Bogoshi,86 was expressly stated for the first time in Khumalo v
Holomisa: 87
(The defence of reasonable publication) permits a publisher who can establish
truth in the public benefit to do so and avoid liability. But if a publisher cannot
establish the truth, or finds it disproportionately expensive or difficult to do so, the
publisher may show that in all the circumstances the publication was reasonable.
This defence is particularly important in the context of false defamatory

statements published in the press,88 although it could also apply in other
areas.
National Media Ltd v Bogoshi89
Bogoshi had sued for defamation arising from the publication of a series of articles. National Media Ltd
alleged that the publication was lawful and therefore objectively reasonable based on its right to freedom
of expression. The Supreme Court of Appeal reaffirmed that public policy grounds paved the way for
recognising new situations that could render a defendant’s conduct lawful. The criterion to apply in each
case is:
the general criterion of reasonableness based on considerations of fairness, morality, policy and
the Court’s perception of the legal convictions of the community.90
The Supreme Court of Appeal specifically addressed the conditions under which they would consider the
publication of false defamatory matter lawful.91 In trying to determine whether the media deserve some
form of protection for publishing false information, the Court seemed to refer to principles similar to those
for the defence of privileged occasion. It recognised that within this category it may sometimes be
reasonable to publish particular untrue facts in a particular way and at a particular time, depending on
all the circumstances of the case.92 Courts should consider the following factors, subsequently confirmed
in Mthembi-Mahanyele v Mail & Guardian Ltd,93 when assessing whether any mistake or ignorance is
objectively reasonable and amounts to a ‘justifiable publication’:94
• The interest in the public being informed
• The manner of publication
• The tone of the material published
• The extent of the public concern in the information
• The reliability of the source
• The steps taken to verify the truth of the information (this factor would also play an important role in
considering whether there was negligence on the part of the press, assuming that the publication was
found to be defamatory)
• Whether the person defamed was given the opportunity to comment on the statement before
publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to
publish without providing an opportunity to comment.
Notwithstanding this innovation in the law, the Supreme Court of Appeal cautioned that this did not
mean that journalistic standards could be lowered and held that:
members of the press should not be left with the impression that they have licence to lower the
standards of care which must be observed before defamatory matter is published in a
newspaper.95
Courts still expect a high degree of caution from the media, particularly because of the important role
that it plays in a properly functioning democratic society.96 The Court, therefore, did not reduce or limit
the test for reasonableness; it simply extended the circumstances in which the test can be applied.
According to Van der Walt and Midgley the Bogoshi judgment establishes the following rule:97
Publication in the press of false defamatory material in which the public has an interest will not
be unlawful if, upon a consideration of all the circumstances of the case, it is found to have
been reasonable to publish the particular facts in the particular way and at the particular time.
They contend that the enquiry is located firmly in the concept of objective reasonableness, which in turn
is based upon society’s legal convictions, and that public interest will play an important role in
determining the contours of the defence.
In summary, prior to the Bogoshi decision ignorance of the law and

mistake did not avail a defendant of a justification ground to rebut
unlawfulness. The Bogoshi decision paved the way for a court to
determine whether society would regard a defendant’s mistake or
ignorance as objectively reasonable or justifiable.
1 Heroldt v Wills 2013 (2) SA 530 (GSJ); [2013] 2 All SA 218 (GSJ) para 27; Ketler Investments
CC t/a Ketler Presentations v Internet Service Providers’ Association 2014 (2) SA 569 (GJ)
paras 56–83.
2 For a general historical discussion of the defence of truth for the public benefit, see
Descheemaeker ‘A Man of Bad Character Has Not So Much to Lose: Truth as a Defence in
the South African Law of Defamation’ (2011) 128(3) SALJ at 452–478.
3 Johnson v Rand Daily Mails 1928 AD 190 at 205.
4 2016 (3) SA 178 (GP).
5 Para 17.
6 Para 29.
7 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).
8 2013 (2) SA 530 (GSJ); [2013] 2 All SA 218 (GSJ).
10 1931 TPD 247.
11 One person had accused another of being a Boer verraaier, or traitor to the British, during
the Anglo-Boer War.
12 Marais v Richard 1981 (1) SA 1157 (A).
13 De Waal v Ziervogel 1938 AD 112 at 122–124; Mohamed v Jassiem 1996 (1) SA 673 (A) at 711.
14 Kleinhans v Usmar 1929 AD 121 at 126.
15 Burchell Personality Rights and Freedom of Expression: The Modern Actio Injuriarum
(1998) at 276.
16 1928 AD 190.
17 At 205–207.
18 [2012] 1 All SA 154 (SCA).
19 Para 8.
20 Paras 13–18.
21 Paras 17 and 18.
22 Para 26.
23 Para 26.
24 Para 12.
25 Para 19.
26 Telnikoff v Matusevitch [1991] 4 All ER 817 at 826.
27 Moyse v Mujuru 1999 (3) SA 39 (ZS) at 47–48.
28 1917 AD 102 at 107.
29 Marais v Richard 1981 (1) SA 1157 (A) at 1168G–H.
30 Crawford v Albu 1917 AD 102 at 115; African National Congress v Democratic Alliance 2014
(3) SA 608 (GJ) at 620–621.
31 2013 (2) SA 530 (GSJ); [2013] 2 All SA 218 (GSJ).
32 Section 16 of the Constitution of the Republic of South Africa, 1996.
33 Para 45.
34 [2004] 4 All SA 365 (SCA); 2004 (6) SA 185 (SCA).
35 1917 AD 102.
36 1917 AD 102 at 117.
37 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC).
(CC); 2011 (8) BCLR 816 (CC) para 82.
39 Para 84.
40 S v Mamabolo (E TV and Others intervening) 2001 (3) SA 409 (CC).
41 Para 157H.
42 Para 158.
43 2015 (2) SA 232 (CC).
44 Paras 2, 15 and 17.
45 Para 32.
46 Paras 3, 16 and 17.
47 Para 119.
48 Para 30.
49 Paras 129–130.
50 Para 144.
51 Paras 150–153.
52 Paras 145–146.
53 Para 153.
54 Para 167.
55 Burchell The Law of Defamation in South Africa (1985) at 238.
56 Dikoko v Mokhatla 2006 (6) SA 235 (CC) para 39.
57 Sections 58(1) and 117(1) of the Constitution of the Republic of South Africa, 1996;
Poovalingam v Rajbansi 1992 (1) SA 283 (A) at 293.
58 Section 161 of the Constitution and section 28 of the Local Government: Municipal
Structures Act 117 of 1998; Dikoko v Mokhatla 2006 (6) SA 235 (CC).
59 Dikoko v Mokhatla 2006 (6) SA 235 (CC) para 32.
60 See, for example, the North West Provincial Legislature’s Powers, Privileges and Immunities
Act 5 of 1994.
61 Dikoko v Mokhatla 2006 (6) SA 235 (CC) paras 35, 39 and 41.
62 Ketler Investments CC t/a Ketler Presentations v Internet Service Providers’ Association
2014 (2) SA 569 (GJ) para 84.
63 1988 (3) SA 45 (C).
64 1995 (4) SA 482 (W).
65 At 492.
66 2010 (1) SA 124 (GSJ).
67 Paras 11–12.
68 May v Udwin 1981 (1) SA 1 (A); Joubert v Venter 1985 (1) SA 654 (A).
69 Benson v Robinson & Co (Pty) Ltd 1967 (1) SA 420 (A) at 428.
70 Mohamed v Jassiem 1996 (1) SA 673 (A) at 710; Van der Berg v Coopers and Lybrand Trust
(Pty) Ltd 2001 (2) SA 242 (SCA) para 17.
71 2001 (2) SA 242 (SCA) para 26. See also National Education, Health and Allied Workers
Union v Tsatsi [2006] 1 All SA 583 (SCA) para 12.
72 Naylor v Jansen; Jansen v Naylor 2006 (3) SA 546 (SCA) para 11. See also National
Education, Health and Allied Workers Union v Tsatsi [2006] 1 All SA 583 (SCA) para 12.
73 De Waal v Ziervogel 1938 AD 112 at 120–123; Mohamed v Jassiem 1996 (1) SA 673 (A) at 710.
74 Borgin v de Villiers 1980 (3) SA 556 (A) at 578–579; Joubert v Venter 1985 (1) SA 654 (A) at
702.
75 Naylor v Jansen; Jansen v Naylor 2006 (3) SA 546 (SCA) para 11, with reference to Borgin v
de Villiers 1980 (3) SA 556 (A) at 578H.
76 Naylor v Jansen; Jansen v Naylor 2006 (3) SA 546 (SCA) para 11.
77 May v Udwin 1981 (1) SA 1 (A) at 19.
78 Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 776 and 777.
79 Zillie v Johnson 1984 (2) SA 186 (W).
80 A defence that succeeded in National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) at 1212.
81 1938 AD 112.
82 At 121.
83 1921 AD 575 at 581.
84 At 122.
85 At 123.
86 1998 (4) SA 1196 (SCA).
87 2002 (5) SA 401 (CC) para 43.
88 Malema v Rampedi 2011 (5) SA 631 (GSJ) at 636.
89 1998 (4) SA 1196 (SCA).
90 At 1204D–E.
91 At 1204G–I.
92 At 1212G–H.
93 2004 (6) SA 329 (SCA) para 68.
94 For a more detailed account of the factors, refer to the Bogoshi judgment National Media
Ltd v Bogoshi 1998 (4) SA 1196 (SCA) at 1211–1213; Gold Reef City Theme Park (Pty) Ltd v
Electronic Media Network Ltd; Akani Egoli (Pty) Ltd v Electronic Media Network Ltd 2011
(3) SA 208 (GSJ) paras 80–83.
95 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) at 1212J–1213A.
PART EIGHT
Strict and vicarious liability
CHAPTER 32 Strict liability
CHAPTER 33 Vicarious liability

Chapter 32
Strict liability
32.1 Introduction

32.3.1 The actio de pauperie for harm caused by domestic and domesticated animals
32.3.1.5 Defences
32.4 The actio de pastu for harm caused by grazing animals
32.5 The actio de effusis vel deiectis and the actio positis vel suspensis

32.6.1 Aviation
32.1 Introduction
In this chapter, we discuss the common-law actions that deal with harm
caused by animals, and those that deal with the liability of occupiers of
buildings, as well as some statutory instances of strict liability. We deal
with vicarious liability separately in the following chapter.

The law of delict is primarily concerned with fault-based liability. Actions
involving liability without fault include:
• The actio de pauperie for harm caused by domestic animals
• The actio de pastu for harm caused by grazing animals
• Th actio de effusis vel deiectis and the actio positi vel suspensi for
recovering damages from the occupier of a building from which
something was thrown (effusis vel deiectis) or from which something
fell down (positi vel suspensi).
Vicarious liability of employers, which is dealt with in the following

chapter, could also be seen as a form of strict liability. This is where the
employer is held liable without fault for the wrongdoing of an employee,
and the liability of the employee, determined according to the normal
principles of delict (including fault), is transferred to the employer. Other
instances of strict liability are provided for in legislation, for example in
respect of damage caused by aircraft,1 and damage to telecommunication
lines.2
The core moral principle of delict is that it reflects personal
responsibility, based on the idea that there can be no liability without
fault. Strict liability expresses a different morality, in that society
determines that the nature of the conduct, or the risk associated with the
conduct is such that the responsible person or entity should compensate
anyone who suffers harm as a result of the conduct. Hence Cane’s view
that strict liability represents ‘personal responsibility for outcomes’, and
that strict liability operates as a form of a tax or a loss-distribution
mechanism.3 The ethical imperative that underlies strict liability is to
compensate for harmful outcomes of the relevant activity. Viewed in this
way, strict liability is a type of tax on activities that attract such liability
rather than a penalty for engaging in it. Strict liability is the product of a
modern era when industrial and technological development exposes
individuals to widespread risks. There is often no direct relationship
between those creating or spreading a risk, and those exposed to the
risks. The economic and socio-political objective of no-fault liability for
harmful outcomes is that there should be loss-distribution: those that
create or spread a risk are often better placed to carry the burden of harm
than the individuals who suffer the harm in the first place.

Certain Roman actions that involve strict liability for harm caused by
animals still form part of modern South African law.
32.3.1 The actio de pauperie for harm caused by domestic

and domesticated animals
The owner of a domestic or domesticated animal is strictly liable for the
harm that the animal causes to another person when it acts contrary to its
nature (contra naturam sui generis) and from inward excitement or vice
(sponte feritate commota).
Strict liability for harm caused by animals is based on the
consideration that animals create a source of danger in the human
environment – they kick, butt, gore, stray on busy streets, attack, jump,
chase and bite.4 Many other things also create danger, but the special risk
involving animals is their instinctive, unpredictable behaviour and their
mobility.
The law of liability for harm done by animals developed in South
Africa on the basis of the strict liability regime of the Roman actio de
pauperie and edictal remedies.5 After initial doubt about whether the
actio de pauperie applied in South African law,6 the Appellate Division
held in O’Callaghan NO v Chaplin 7 that it does form part of South African
law, on the basis of a presumption of fault.8 Courts have now generally
accepted it as an action based on strict liability arising out of the mere
ownership of the animal.9
The actio de pauperie in Roman law applied to livestock and domestic
animals, and was gradually extended to include all types of domesticated
animals. Our law now recognises pauperian liability for all types of
domestic animals and livestock, and also for domesticated wild animals
or other wild creatures employed for domestic use, such as bees or
meerkats.10
The special risk of animals in a human environment is not only their
aggression, but also their instinctive, unpredictable behaviour and
mobility. Therefore, the policy that underlies recognising strict liability
for harm done by animals does not restrict liability to vicious or
aggressive behaviour of animals. However, courts have tended to restrict
liability to such behaviour, excluding liability for behaviour that one
would describe as over-friendly, for example, where a dog stands up
against a frail person and causes that person to fall. There is no
requirement that the animal must have shown previous signs of
viciousness or unpredictable behaviour. We refer to this aspect below in
the context of the type of behaviour giving rise to liability.

The person liable is the owner of the animal at the time when the injury
or harm was caused. Ownership is determined in accordance with the
accepted principles of property law. Control of the animal is not sufficient
for liability in respect of the actio de pauperie, but the person in control
may be liable under the Aquilian action.
The special risk of having animals in a human environment is their
instinctive, unpredictable behaviour and mobility. The keeper of an
animal is a party to creating or maintaining this risk, and so is in a
position to contain the risk by controlling or restraining the animal. The
keeper may also benefit from keeping the animal. Therefore, the policy
considerations that underlie recognising strict liability for harm done by
animals, favour the view that liability should include keepers and not be
restricted to owners. The owner of an animal is liable even if he or she
was not in possession of the animal when it caused harm. However, the
owner can rely on the negligence of the keeper of the animal at the time
as a defence.11

For liability under the actio de pauperie the animal must have acted
contra naturam sui generis. In Roman law the implication of this
requirement was that the animal must have acted spontaneously and not
in response to an external factor, such as provocation. However, the
owner was liable if the animal reacted to stroking or patting. The contra
naturam rule has been described as a conveniently flexible concept to
determine where the risk of damage or injury should lie. It was not meant
to focus on the disposition of the individual animal (for example, whether
it was a generally placid or unruly horse), nor on the disposition of the
species concerned (for example, whether a horse or dog was by nature
aggressive), but to indicate uncharacteristic behaviour of a domesticated
animal in a human environment.12
Courts interpret the contra naturam rule inconsistently. Some cases
refer to the innate wildness, viciousness or perverseness of the particular
animal (a subjective approach), while others refer to what one could
expect of a well-behaved animal of its type (an objective or ‘reasonable
animal’ approach).13 A third approach, often used, is to consider both
subjective and objective factors and to apply common sense to a
particular situation.
Da Silva v Otto14
The appellant had been walking his dog on a leash in a public road in a residential area, when the
respondent’s dog ran out of an open side gate on the respondent’s premises and attacked the dog on
the leash. The appellant, who carried a whip, hit the respondent’s dog, which then bit him. The Court
found that the respondent had not acted negligently as the dog had never bitten a person before and he
had taken sufficient precautions against the possibility of the dog escaping from his premises.
Furthermore, the Court held that the appellant had also not acted negligently as he had not ‘provoked’
the dog by hitting it and was entitled to protect his dog against an attack. The Court held that in such
circumstances, where the injured person had acted lawfully and reasonably, the dog was presumed to
have acted contra naturam sui generis. The judgment was that an objective test of the reasonable dog
applied and the dog was expected to distinguish between a lawful attack and an unlawful attack.
Green v Naidoo15
A four-year-old girl and her older sister were visiting the defendant’s son. At some stage during the visit
the girl pulled a Chow dog’s nose while it was eating. It retaliated by biting the child in the face. The
Court rejected a suggestion that the two girls were trespassers, in that they were accepted as guests in
the household and were not intruders. Without expertise in dog psychology and in the absence of expert
evidence in that regard, the Court had some difficulty with the contra naturam sui generis requirement,
however, especially with the suggest rationale that domesticated animals should behave as well-behaved
animals of their kind would16 and be able to control themselves; and if they do not, they are to be
regarded as having acted contra naturam sui generis.17 Instead it resorted to applying the following
approach:
Notwithstanding that there are so many configurations of four legged animals, genetic
tendencies and learned behaviour, I can do no more than approach the dog in question, Taz, as
yet another exemplar of a pet dog and apply my own common sense and limited experience to
the questions to be answered.
The crisp question is whether it is contrary to the nature of a dog which is a household pet to
bite a child in the garden of that house? The crisp answer must be in the affirmative.
The Court thereafter considered the defence of provocation. In the course of finding that the child’s
conduct constituted an external interference that caused the dog’s unnatural behaviour and thus
exonerated the owner of the dog,18 it noted:19
• While a doli incapax child ‘cannot be held liable in law for an act she may have performed but it does
not mean that the act was not performed’
• The enquiry ‘is directed at ascertaining the conduct expected of a reasonable dog acting in accordance
with its nature when faced with such a situation’
• A dog should not be expected ‘to distinguish whether or not his assailant is doli or culpa capax or
incapax’
• External factors are not limited to human conduct and vis maior is part of this defence.
PAUSE FOR Reasonable dog behaviour

REFLECTION 1. Should courts require expert evidence in each case to determine whether
the animal behaved naturally? Is this a factual issue or a conclusion of
law? Compare the concern expressed in Green v Naidoo 20 with Thysse v
Bekker 21 where expert evidence was presented and where the Court
said:22
[I]t may be that [the expert, Prof Odendaal’s] hypothesis, based as it

is upon scientific principles, gives a reasonable explanation of the
dog’s aggressive behaviour. But two things must be made clear. One
is that it is my function, not Prof Odendaal’s, to decide whether or
not the dog acted contra naturam sui generis. While I may find
guidance in Prof Odendaal’s expert opinion, I must come to my own
conclusion. The second is that Prof Odendaal’s conclusion is based
on scientific criteria which are different from the legal criteria which I
must apply. Professor Odendaal explains the behaviour of this
particular dog from its point of view. I must evaluate the dog’s
behaviour against a different and more general standard – the
standard of behaviour which the law expects of a domesticated
animal generally. The issue is not whether Prins [the dog] behaved
according to its own nature, which is the test applied by Prof
Odendaal, or to the nature of its breed. It is whether the dog behaved
in a manner which the law considers acceptable by animals which
share the human environment with human beings because they have
over the ages become domesticated.
2. How should a disciplined dog behave when provoked or attacked? Did

the courts in Da Silva v Otto 23 and Green v Naidoo 24 have different views
on what a reasonable dog can be expected to distinguish?
The policy that underlies recognising strict liability for harm caused by
animals suggests that courts should not restrict liability for injury to the
vicious or aggressive behaviour of animals.
To apply the contra naturam requirement, the focus should not be
on the particular species or breed to which the animal belongs, but
should be more general, on uncharacteristic behaviour of a domesticated
animal in a human environment. However, courts tend to have a
narrower focus, understanding this requirement to mean that the animal
must have acted contrary to the nature of its genus.25 In other words, if a
Pitbull Terrier bites a person, the question is whether the dog acted
contrary to the nature of a well-behaved dog (which does not normally
bite people) and not whether it acted contrary to the nature of a Pitbull
(which might do so).

To succeed in this action, the plaintiff will have to prove six essential
elements:26
• Harm
• Conduct by a domesticated animal
• The defendant must have been the owner of the animal at the time of
the injury
• The animal must have acted contrary to the nature of its breed –
contra naturam sui generis
• The animal must have acted from inward excitement or vice – sponte
feritate commota.
32.3.1.5 Defences
The following are recognised defences to an actio de pauperie:
• The defendant can rely on an external factor that provoked the
animal’s harmful behaviour. This can occur by a natural
phenomenon (vis maior); for example, when an animal reacts to a
sudden thunder clap. ‘The authorities contemplate instances of
animals discomforted by loose harnesses, alarmed by lightning and
thunder and other natural forces.’27 Such a reaction is natural (not
contra naturam sui generis) and does not stem from inward
excitement or vice.
• Culpable conduct by the plaintiff that resulted in the harm will
defeat a claim, for example, where the plaintiff provoked a dog and
was then bitten.28 The level of the plaintiff’s fault must amount to
‘substantial negligence or imprudence’, but must amount to more
than stroking or petting a strange horse or dog.29 Contributory
negligence will not result in courts apportioning damages in terms of
the Apportionment of Damages Act 34 of 1956. To date, courts have
adopted an all-or-nothing approach, although not specifically
excluding the possibility of apportionment.30
• Voluntary assumption of the risk of harm by the plaintiff will also
defeat the claim; for example, where the plaintiff knowingly and
deliberately runs the risk of injury by taking a dare and entering an
area that holds a fierce bull.
• The owner of the animal can rely on a prior contractual undertaking
not to claim damages in the event of harm occurring (pactum de non
petendo); for example, where the plaintiff signed such an
undertaking before going horse-riding on the owner’s estate.31
• The owner can rely on the fact that the plaintiff was unlawfully
present at the place where the harm occurred. There are different
interpretations of this defence. Some cases require a ‘legal right’ for
the plaintiff to be lawfully present (for instance by invitation or with
consent of the owner or occupier), and others only a ‘lawful purpose’
(for instance to make a delivery). In most cases, the two approaches
lead to the same result if the court accepts that the owner or occupier
of the place tacitly consented to the person entering for a lawful
purpose.
• The owner can rely on the negligence of the keeper of the animal at
the time of the incident.32 Normally, the owner of an animal is liable
even if not in possession of the animal at the time when it caused
harm. However, negligence on the part of a keeper will defeat the
claim against the owner.33
Lever v Purdy34
The plaintiff (respondent) had been bitten by a dog that belonged to the owner (appellant). The incident
occurred while the owner was overseas, leaving a custodian in charge of his house and dog. The
custodian had summoned the plaintiff, a repairman, to the house and had advised him that there was a
vicious dog on the premises. The plaintiff had requested the custodian to lock the dog away before his
arrival at an agreed time. When the plaintiff arrived at the house and entered the premises, the dog had
not been locked away, and it bit him. It was common cause that the plaintiff had established the
essentials of the actio de pauperie against the owner, but the question was whether the owner was
exonerated by the negligence of the custodian.
Both Joubert ACJ35 and Kumleben JA36 listed categories of culpable third-party conduct that
constituted a defence to pauperian liability. The first category involves inciting or provoking an animal to
behave contra naturam sui generis, by striking, wounding, scaring or annoying the animal. The causa
causans of the harm suffered is the inciting behaviour and not the animal’s vicious propensities. Courts
generally treat this as an ‘established exception’ to pauperian liability. The second category involves
culpable conduct, which contributes to the injury, but falls short of being the causa causans of it, for
example, where a visitor facilitates injury by leaving open the owner’s gate so that a vicious dog can get
out. The third category involves culpable lack of control of a vicious animal by the person to whom
control of the animal has been entrusted, as in the Lever case. The majority of the Appellate Division
held that the negligence by the custodian afforded the absent owner a defence to pauperian liability.
Arguably, the injury was caused by the custodian’s negligent conduct rather than by the materialising
of a typical risk of owning a dog37 and in this case illustrates that the issues of strict liability of a
custodian, and joint and several liability of the owner and the custodian, remain unresolved in South
African law.
Fourie v Naranjo38
Fourie’s dog had attacked and savaged his domestic worker. Naranjo hastened to the worker’s
assistance and was in turn attacked and bitten by the dog and also by another dog (not owned by
Fourie) that was on the premises for the purposes of mating with Fourie’s dog. Naranjo’s wife witnessed
the incident. Naranjo sued in respect of the injuries he sustained and his wife sued for emotional shock
and related medical expenses.
The Court found that Fourie’s dog had acted contra naturam sui generis according to the objective
test of the reasonable dog, that Naranjo did not consent to the risk of injury when he entered the
property (the defence of volenti non fit iniuria requires knowledge of, appreciation of, and consent to
harm or the risk of harm), and that Naranjo had not been negligent in acting as he had done (this would
have been a complete defence against the actio de pauperie).39
The interesting and unique feature of this case was the award of damages for emotional shock in the
context of the pauperian action. Fourie had contended that the wife’s claim for emotional shock was not
competent, as she had not been attacked by the dog. However, the Court noted that it is trite that an
action in delict may lie for patrimonial or sentimental damages arising out of the infliction of emotional
shock.40
The Court pointed out that a person bitten by a dog is entitled to damages not only for the direct
injury sustained, but also for subsequent physical disorders caused by the nervous shock; that there is
support for the view that damages may be claimed by a dependant for loss of support if an animal has
caused the death of a breadwinner; and that the extent of Fourie’s liability should be limited only in
accordance with the flexible criterion of legal causation. There was thus no objection in principle to the
actio de pauperie being extended to recover damages for emotional shock.41
32.4 The actio de pastu for harm caused by grazing

animals
South African law, following the Roman actio de pastu, recognises strict
liability for the owner of a domesticated animal that trespasses onto
another’s land and causes harm by eating plants. The damages that may
be claimed are not restricted to those resulting from the grazing activity
only, but also includes damages in respect of any collateral damage
caused while grazing, such as trampling on plants and breaking fences.
As in the case of the actio de pauperie, liability under the actio de pastu is
based on ownership of the animal.42
To succeed, a plaintiff will have to prove the following:
• The defendant is the owner of a domesticated animal that trespassed
on the plaintiff’s property and caused harm to the plaintiff.
• The harm was caused by grazing, and occurred in the form of
damage to plants, and can include collateral harm such as breaking
fences. 43
• The animal must have acted of its own accord and was not provoked
or prompted into behaving in this way.
The defences to the action are the same as for the actio de pauperie, but
culpable conduct on the part of an outsider has not been recognised as a
defence for the owner.
PAUSE FOR The actio de pauperie and the actio de pastu
What are the differences, if any, between the elements of the actio de pauperie
REFLECTION
and the actio de pastu, and how do they compare with those of the Aquilian
action? Is there any merit in the contention that the elements of liability for
human behaviour are mirrored in the elements for liability in respect of
domesticated animals? Are the situations sufficiently analogous for such
comparisons to be drawn? If yes, should the law adapt the requirements for
these actions to mirror the elements of the lex Aquilia more closely? To answer
these questions it may be useful to draw a grid, similar to the one below.
32.5 The actio de effusis vel deiectis and the actio positis
vel suspensis
South African law has retained remnants of the Roman law actio de
effusis vel deiectis (available against the occupier of a building for harm
caused by throwing or pouring an object or substance out of a building)
as well as the actio de positis vel suspensis (used to impose a criminal
fine on the occupier when an object falls from a building to the street
below). Even though these actions have not been rejected, there has
however been no significant development of strict liability by applying
these actions in modern law.44
The few claims brought in recent years have not had success: In
Colman v Dunbar 45 a claim based on the actio de effusis vel deiectis
failed. This was not because the Court refused to recognise the
applicability of the Praetor’s Edict, but rather because the action had
been brought against a builder working on the premises (against whom
there was no evidence of negligence) and only an occupier could be held
liable.
A claim based on the actio de effusis vel deiectis was similarly
unsuccessful in Bowden v Rudman,46 again because the facts of the case
did not meet the terms of the Edict. In this case, the plaintiff claimed
damages for an injury suffered due to a gate swinging open across a
pavement, admittedly without negligence on the part of the occupier.
The Court ruled that the actio was not available since it applied only to
objects falling after being placed on, or suspended from a building.

Modern legislation has created certain additional forms of strict liability.
The common feature of these forms of liability is that they concern
activities involving a considerable risk of harm.
32.6.1 Aviation
The Aviation Act 74 of 1962 imposes strict liability on the owner 47 of an
aircraft where material harm or loss is caused by the aircraft in flight, on
taking off or landing, by any person in such aircraft, by any article falling
from such aircraft, or to any person or property on land or water.48 The
owner is not liable, however, if the harm or loss is caused, or contributed
to by the negligent or wilful act of the claimant.49 The intention appears to
be to create a complete defence and to exclude the provisions of the
Apportionment of Damages Act 34 of 1956.

The Post and Telecommunication-related Matters Act 44 of 1958 50
imposes strict liability on any person who directly or indirectly injures or
destroys any telecommunications lines or call boxes.51 However, where
the telecommunications company is of the opinion that it is justified, it
may bear the whole or part of the expenses necessary to make good such
injury or destruction.52 If a person’s negligent conduct caused the injury
or destruction, then that person will also be guilty of an offence for which
a court can impose a fine.53

The Genetically Modified Organisms Act 15 of 1997 provides that the user
concerned should be liable for harm caused by using or releasing a
genetically modified organism. No mention is made as to whether fault
needs to be proven, nor to any presumption of fault.54 The Act provides
that liability for harm caused by the use or release of a genetically
modified organism shall be borne by the user concerned.55 However,
when the harm is caused while the organism is in the possession of an
inspector appointed under the Act, the user will not be liable unless the
harm was foreseen or foreseeable and preventable, and the user failed to
take reasonable action to prevent the harm.56
Users are also required to ensure that appropriate measures are
taken to avoid an adverse impact on the environment that may arise from
using genetically modified organisms.57
1 Aviation Act 74 of 1962, section 11.

2 Post and Telecommunication-Related Matters Act, section 108.
3 Cane The Anatomy of Tort Law (1997) at 51–52.
4 Zimmermann The Law of Obligations: Roman Foundations of the Civilian Tradition (1990)
at 1095; and see the remarks of Kumbleben JA in Lever v Purdy 1993 (3) SA 17 (A) at 29C–G.
5 The historical development of liability for harm done by animals is discussed in detail by
Van der Merwe Skuldlose Aanspreeklikheid vir Skade Veroorsaak deur Diere
Thesis/Dissertation University of South Africa (1971).
6 Parker v Reed (1904) 21 SC 496.
7 1927 AD 310.
8 O’Callaghan NO v Chaplin 1927 AD 310 at 378. See also Bristow v Lycett 1971 (4) SA 223
(RA).
9 SAR & H v Edwards 1930 AD 3 at 9; Green v Naidoo 2007 (6) SA 372 (W) para 10.
10 Van der Merwe and Rabie LAWSA Animals (2014) Vol 1 (3 ed) para 403.
11 Lever v Purdy 1993 (3) SA 17 (A) at 19.
12 Zimmermann (1990) at 1103.
13 See, generally, Van der Merwe and Rabie (2014) para 406.
14 1986 (3) SA 538 (T).
15 2007 (6) SA 372 (W).
16 SAR & H v Edwards 1930 AD 3 at 9–10.
17 Solomon v De Waal 1972 (1) SA 575 (A) at 582E.
18 Green v Naidoo 2007 (6) SA 372 (W) para 33.
19 Para 24.
20 2007 (6) SA 372 (W).
21 2007 (3) SA 350 (SEC); [2007] 4 All SA 1309 (SE).
23 1986 (3) SA 538 (T).
24 2007 (6) SA 372 (W).
25 Loriza Brahman v Dippenaar 2002 (2) SA 477 (SCA).
26 Visagie v Transsun (Pty) Ltd [1996] 4 All SA 702 (Tk).
27 Green v Naidoo 2007 (6) SA 372 (W) para 24.
28 O’Callaghan NO v Chaplin 1927 AD 310 at 329.
29 Van der Merwe and Rabie (2014) para 409; O’Callaghan NO v Chaplin 1927 AD 310 at 329.
30 See Portwood v Svamvur 1970 (1) SA 144 (R) at 145; Swart v Honeyborne 1981 (1) SA 974 (C)
at 976B; Fourie v Naranjo [2007] 4 All SA 1152 (C); 2008 (1) SA 192 (C) para 19.
31 Walker v Redhouse 2007 (3) SA 514 (SCA).
32 Lever v Purdy 1993 (3) SA 17 (A).
33 Walker v Redhouse 2007 (3) SA 514 (SCA).
34 1993 (3) SA 17 (A)
35 At 21C–22A.
36 At 26E–H.
37 Van der Merwe ‘The defence of conduct of a third party in view of the rationale for strict
liability in terms of the pauperien action revisited’ (1994) 111(1) SALJ 47 at 52–53.
38 [2007] 4 All SA 1152 (C); 2008 (1) SA 192 (C). See also para 3.1 above.
39 See paras 15–19.
40 Para 23.
41 Para 24.
42 Van Zyl v Van Biljon 1987 (2) SA 372 (O).
43 Potgieter v Smit 1985 (2) SA 690 (D) at 695.
44 Zimmermann (1990) at 1126 states: But although all four remedies were incorporated in the
ius commune, none of them can be said to have prospered.
45 1933 AD 141.
46 1964 (4) SA 686 (N).
47 In terms of section 11(6), if the owner bona fide leases or hires out the aircraft to another
person for a period exceeding 14 days and no operative members of the crew are in the
owner’s employ, then the person to whom the aircraft was leased or hired out is responsible
on the same basis as the owner would have been in terms of section 11(2).
48 Section 11(2).
49 Section 11(3).
50 Previously known as the Post Office Act.
51 Section 108; and see Esterhuizen v Minister van Pos & Telekommunikasiewese 1978 (2) SA
227 (T) at 229; Telkom (SA) Ltd v Duncan 1995 (3) SA 941 (W) at 943–945.
52 Section 108.
53 Section 108.
54 Section 17(2).
55 Section 17(2).
56 Section 17(2).
57 Section 17(1).
Chapter 33
Vicarious liability
33.1 Introduction
33.4 An employment or akin-to-employment relationship must exist
33.7 The delict must be committed by the employee while acting within the course and scope of
employment
33.9 Vicarious liability and the Protection of Personal Information Act 4 of 2013
33.1 Introduction
Vicarious liability of employers is a form of strict liability. The employer is
held liable without fault for an employee’s wrongdoing and the delictual
liability of the employee is transferred to the employer. The doctrine of
vicarious liability, as it is applied in South Africa, is predominantly
English in derivation.1 In the context of South African law, it has been
described as ‘perhaps the most comprehensive and far-reaching
innovation we have taken from English law’. 2 South African and English
courts approach the two cardinal features of the doctrine – the concept of
an employee and that of acting in the course and scope of employment –
in a similar way, although there are differences in detail.

The general rule is that an employer is vicariously liable, regardless of the
absence of fault on the employer’s part, for employees’ delicts when
these are committed in the course and scope of their employment.3 The
employer is bound in solidum (jointly liable) with the employee to
compensate the person who suffers harm as a result of the employee’s
delict.4
There have been a number of theories to explain and justify
imposing liability on an employer in this way:
• It is sometimes suggested that employers are in control of the
behaviour of the employees. This suggestion is no longer convincing
as many employees perform skilled tasks and employers are often
incapable of controlling or even understanding what the employee is
doing.
• The rule is also said to be ‘founded upon public policy and
convenience, for in no other way could there be any safety to third
persons in their dealings either directly or indirectly with him
through the instrumentality of agents’. 5
• The employer can be considered to be the actor where he or she acts
through an employee – qui facit per alium facit per se.
• Employers can be said to be the best ‘risk-absorbers’, because they
can distribute the risk of accidents cost-effectively by insurance, and
take precautionary measures by allocating resources or incentive
devices tailored to their type of enterprise.
• The doctrine can also be justified on a moral basis, as the employee
inflicts loss on the victim while pursuing the employer’s business
interests. Since the employer obtains a benefit from the employee’s
work, the employer should also bear the costs of accidents arising
out of such work.
• In the context of the employment relationship, the employer creates
a risk for his or her own ends and the employer’s liability is therefore
‘co-extensive and identical in every respect with the liability of the
servant’. 6 The ‘creation of risk’ theory is a common justification for
vicarious liability. The judgment of the Constitutional Court in K v
Minister of Safety and Security 7 indicates that the creation of risk can
also play a direct role in establishing whether courts should impose
strict liability in a particular situation. Where the employer creates a
risk that third parties may be harmed whilst the employee is
promoting the business or interests of the employer, it is fair to hold
the employer liable.8

Courts often regard the employment relationship or contract of service
(locatio conductio operarum) and the contract of services (locatio
conductio operis) as distinguishable for purposes of vicarious liability.
This is because in the former instance an employee is under the control
of the employer in respect of the nature of the work and the manner in
which it is to be done, whereas an independent contractor is not subject
to the control of the person paying for the services.9 The same applies to
mandatories.
The current approach is to regard the right to exercise control and
direction over the employee as merely one of the indicators of an
employment relationship.10 Courts apply a multi-faceted test,11 taking
into account all the circumstances, such as the nature of the work, the
manner of payment, the manner of performing the work, state of social
and economic interdependence, authority to give instructions,
membership of medical or pension fund, paid vacation, working hours,
use of employer’s premises and equipment, and whether the work and
the person performing it form an integral part of the business
organisation.12 Employees are subject to the control or directives of their
employers and their services are terminated by death or on expiration of
the agreed period. On the other hand, independent contractors have
contracts to perform certain specified work and are ordinarily not subject
to the directives of persons who employ them. Therefore, a person is
liable for the acts of an independent contractor only in respect of
operations where there is a ‘non-delegable’ duty, in other words, where
engaging a contractor does not absolve the employer from a duty not to
harm third parties, such as when the operations involve an abnormal
level of danger.13
33.4 An employment or akin-to-employment relationship

must exist
Vicarious liability requires a delict by an employee who is acting in
accordance with the instructions of and on behalf of the employer.
Vicarious liability arises from all types of employment relationships,
including those that involve skilled or professional employees who act
with a large measure of independence, such as medical doctors.14
Vicarious liability can also arise from relationships other than
employment:
• Individual members of a partnership are jointly and severally liable

to a person other than a partner for any delict that a partner commits
while acting on partnership business or with the authority of co-
partners.15 Therefore, for vicarious liability, it is not a person’s
capacity as a partner, but the capacity in which the person acts for
the partnership that is important.16
• As a general rule, a principal is not liable for the unauthorised acts of
his or her agent, even if the act was part of the mandate,17 unless:
◆ The agent was acting in the capacity as agent and within the scope
of his actual or ostensible authority 18
◆ The agent was also an employee and acting within the course and
scope of his or her employment.19
• The owner of a motor vehicle who allows another person to drive it
may be vicariously liable for the latter’s negligent driving if:
◆ The vehicle is being driven in the owner’s interest 20
◆ The relationship between the owner and the driver is such that the
owner retains the right to control the way in which the vehicle is
driven.
In the leading case, Messina Associated Carriers v Kleinhaus,21 the Court

held that the true enquiry is whether the relationship between the owner
and the driver, and the interest of the owner in driving the vehicle, are
sufficiently similar to an employee driving the vehicle in the course of
and within the scope of employment.
Spouses and parents are generally not vicariously liable for delicts of
the other spouse 22 or a child,23 unless the spouse or child was acting in
one of the capacities just described.24

A person who is employed by one employer may temporarily become the
employee of another for vicarious liability purposes, typically where an
employee is lent or hired by one employer to another. In Midway Two
Engineering & Construction Services v Transnet BPK 25 a labour broker
supplied a driver to a client. The Supreme Court of Appeal had to
consider whether the broker or the client was vicariously liable at
common law for damage caused by the driver while driving for the client.
Since the Court regarded the temporary employer as the one most closely
associated with the risk-creating event, the Court found the temporary
employer to be vicariously liable. The fact that the agreement between
the two employers labelled the driver as the employee of the labour
broker, was therefore not decisive.
The onus is on the general employer to show that, in the
circumstances, it did not have control over its employee. The principle is
that the general employer retains responsibility unless it can establish
that in the transfer, another person temporarily became the employer.

Generally in South African law, the employer of an independent
contractor is not vicariously responsible for the wrongful conduct of the
contractor.26 This is because the independent contractor carries out a
specific piece of work (locatio conductio operis) 27 and is not normally
subject to the control or directions of the employer when performing this
work.28 A defendant cannot avoid vicarious liability by stating in a
contract that a person is appointed as an independent contractor, if the
relationship is in fact that of employment.29
Stein v Rising Tide Productions CC30
The Court had to consider the vicarious liability of a company for a delict committed by a technical crew
hired by Rising Tide (the company) to assist during a film shoot. Rising Tide hired the crew to provide
technical skills that the company did not possess. The crew brought its own equipment and used it at its
own discretion without any direction from the company. Its employer subsequently invoiced the company
and received payment from the company. The Court identified a number of factors that indicated that the
technical crew was not an employee of the company, including:
• The nature of the work
• The existence or non-existence of a right of supervision on the part of the employer
• The manner of payment (for example, whether the employee is paid a fixed rate or a commission)
• The relative dependence or freedom of action of the employee in the performance of his or her duties
• The employer’s power of dismissal
• Whether the employee is precluded from working for another
• Whether the employee is required to devote a particular amount of time to his or her work
• Whether the employee is obliged to perform his or her duties personally
• The ownership of the working facilities and whether the employee provides his or her own tools and
equipment
• The place of work
• The length of time of the employment
• The intention of the parties.
Courts determine the liability of an employer for harm done by an

independent contractor by the ordinary rule that a person must exercise
the degree of care demanded by the circumstances.31 This will, for
instance, require that courts consider the nature and extent of the
danger, the degree of expertise available to the employer and the
independent contractor respectively, and the reasonably practicable
means available to the employer to avert the danger.32 In Langley Fox
Building Partnership (Pty) Ltd v De Valence 33 the Court had to decide on
the liability of the owner of a building for damage caused when a building
contractor left a temporary beam extending over a pavement. Goldstone
AJA said the following:
In my opinion, it follows from the aforegoing that in a case such as the present, there
are three broad questions which must be asked, viz:
(1) would a reasonable man have foreseen the risk of danger in consequence of the
work he employed the contractor to perform? If so,
(2) would a reasonable man have taken steps to guard against the danger? If so,
(3) were such steps duly taken in the case in question?
Only where the answer to the first two questions is in the affirmative does a legal duty
arise, the failure to comply with which can form the basis of liability.
Therefore, the liability of an independent contractor’s employer is

governed by the ordinary principles of negligence, and the question is
whether the harm was reasonably foreseeable and preventable by the
employer.
Chartaprops 16 (Pty) Ltd v Silberman34
The plaintiff, Mrs Silberman, slipped and fell in one of the passageways of a shopping mall, where there
was a pool of a slippery substance that had been spilt on the floor. The shopping mall was owned by,
and under the control of Chartaprops, which had engaged a contractor, Advanced Cleaning, to keep the
floors of the mall clean. Advanced Cleaning had a system in place for cleaning the floors, so that every
part of the floor should ordinarily have been passed over by one or other of their cleaners at intervals of
no more than five minutes. Chartaprops itself regularly checked the contractor’s performance. Each
morning, its centre manager met the cleaning supervisor and personally inspected the floors of the mall
to ensure that they had been properly cleaned. If he encountered litter or spillage, he would arrange for
its immediate removal. The Trial Court found that the substance had been on the floor for thirty minutes
or more when the incident occurred.
Mrs Silberman sued both Chartaprops and Advanced Cleaning for damages. The questions were:
• Was the owner, Chartaprops, negligent?
• Was the independent contractor, Advanced Cleaning, negligent?
• If Advanced Cleaning was negligent, was Chartaprops vicariously liable as the employer of Advanced
Cleaning, even if Chartaprops itself was not negligent?
The majority of the Court held that the correct approach to determine the liability of a principal, such as
Chartaprops, for the negligence of an independent contractor, such as Advanced Cleaning, is to apply the
fundamental rule that obliges a person to exercise the degree of care that the circumstances demand. In
this case, the Court should not apply the general policy of the law that the economic cost of the wrong
should be borne by the legal entity immediately responsible for it. It should not shift the economic cost of
negligence from Advanced Cleaning, the independent contractor with primary responsibility, to
Chartaprops, because of the legal fiction of a non-delegable duty of the owner-employer to ensure safety
in the shopping mall. Most operations entrusted to an independent contractor by an owner-employer are
capable of being sources of danger to others. If courts were to hold the owner-employer vicariously liable
in all such cases, the distinction between ‘employee’ and ‘independent contractor’ will all but disappear.
This was plainly not a case where the Court could say that Chartaprops negligently selected an
independent contractor, that it interfered with the work, or that it authorised or ratified the wrong. The
harm was caused solely by the act or omission of the independent contractor, Advanced Cleaning, or its
employees. Chartaprops did not merely content itself with contracting Advanced Cleaning to perform the
cleaning services. It did more. Its centre manager met the cleaning supervisor every morning and
personally inspected the floors of the mall on a regular basis to ensure that they had been properly
cleaned. Chartaprops did all that a reasonable person could do to make sure that the floors of the mall
were safe. The duty to make sure that the premises were safe could not have been discharged better
than by employing a competent contractor, as Chartaprops did. Advanced Cleaning had a legal duty in
delict to third parties, to ensure that the floors were clean and safe, and negligently failed to discharge
that duty. Therefore, only Advanced Cleaning was held liable to Mrs Silberman.
Note: Also study the minority judgment of Nugent JA, and consider the points of difference between
the majority and minority judgments.
33.7 The delict must be committed by the employee while

acting within the course and scope of employment
Generally, an employer is liable for any wrongful conduct by employees
while acting in the course and within the scope of their employment.35
Broadly speaking, employees are acting in the scope of their employment
when they carry out tasks authorised by the employer, even if they carry
out the tasks by an unauthorised method.36 The problem arises when the
employee engages in conduct that could be described as contrary to, or a
deviation from the tasks for which the employee was appointed. If the
employee abandons the tasks of the employer entirely, that is, engages in
activities completely unrelated to, or not in furtherance of the employer’s
work, and as a result of these activities harms an innocent third party, the
employer is not liable.
Minister of Police v Rabie 37
To determine whether an employee acted within or outside the scope of employment in the
aforementioned situations, courts apply the ‘standard test’, which in this case was authoritatively set out
as follows:
It seems clear that an act done by a servant solely for his own interests and purposes, although
occasioned by his employment, may fall outside the course or scope of his employment, and
that in deciding whether an act by a servant does so fall, some reference is to be made to the
servant’s intention. The test in this regard is subjective. On the other hand, if there is
nevertheless a sufficiently close link between the servant’s acts for his own interests and
purposes and the business of his master, the master may yet be liable. This is an objective test.
It is important to note that an employer will be liable:
… even for acts which he has not authorised provided that they are so connected with acts
which he has authorised that they may rightly be regarded as modes – although improper
modes – of doing them … . On the other hand if the unauthorised and wrongful act … is not so
connected with the authorised act as to be a mode of doing it, but is an independent act, the
master is not responsible; for in such a case the servant is not acting in the course of his
employment, but has gone outside of it.38
In the Rabie case, a sergeant in the South African Police, who was employed as a mechanic, had
seriously assaulted, wrongfully arrested and detained, and fabricated charges against Rabie. The assault
and arrest had taken place when the sergeant had been off-duty, dressed in civilian clothing, in his
private vehicle and at the scene clearly pursuing his own private interests. The sole issue on appeal was
whether the Minister of Police was vicariously liable for the sergeant’s wrongful conduct.
The essential question facing the Court was whether Rabie had proven that the sergeant was acting in
the course and scope of his employment as a servant of the State, that is whether he was doing the
State’s work, namely, police work, when he committed the wrongs in question.39 Conversely, for the
Minister to escape liability, the Minister needed to show that the nature of the sergeant’s duties was
such that he had not been acting as a servant of the State when arresting Rabie.
The Court reasoned that, even though the sergeant’s work as a mechanic was limited to a time and
place, his work as a policeman – which included questioning, arresting, escorting to a police station, and
charging a suspect – was not so restricted. In the absence of specific instructions to the contrary, the
sergeant could at any time and place perform his functions as a policeman, and it is conceivable that in
some instances he might have been called upon to do so in the line of duty.40 On the facts, the
sergeant had identified himself as a policeman to Rabie when he arrested him, and in the circumstances
it seemed reasonable and fair to infer that the sergeant had intended to exercise his authority as a
policeman, and was therefore acting in the course and scope of his employment.41
The Court reached this decision despite the fact that the sergeant had known that Rabie was innocent
and that in these circumstances, there were no grounds for exercising his authority as a policeman over
Rabie. It was clear from the nature of the arrests and the laying of the false charges that the sergeant
acted in this way out of malice. So, we could say that the sergeant’s conduct was completely self-serving
and in bad faith. It followed that the sergeant, whatever his ostensible conduct, had not and could not in
reality have been performing any of the functions set out in the Police Act 7 of 1958.42 Yet the Court
imposed vicarious liability, because there was a sufficiently close link between the servant’s conduct for
his own interests and purposes and the business of his master.43
The decision is also important for its reference to the issue of risk. The Court reasoned as follows:
By approaching the problem whether the (the policeman’s) acts were done ‘within the course or
scope of his employment’ from the angle of the creation of risk, the emphasis is shifted from
the precise nature of his intention and the precise nature of the link between his acts and
police work, to the dominant question whether those acts fall within the risk created by the
State.
The Court reasoned that giving the policeman certain powers creates a risk of harm to others for which
the State, as the employer, must take responsibility. It followed then that the State had indeed created
the risk by allowing the sergeant to abuse his powers as a policeman for his own purposes, and the
Minister had to be held liable for the sergeant’s wrongs.
So, an employer may be liable even if the employee acted solely for his or
her own interests and purposes in a situation occasioned by his or her
employment. The test is both subjective, in that the employee’s intention
is taken into account, and objective, in that the existence of a sufficiently
close link between the employee’s act for his or her own purposes and
the business of his or her employer may render the employer vicariously
liable. An employer is liable for acts that it did not authorise, provided
that the acts are connected to acts that it did authorise, in such a way that
we can regard them as modes – although improper modes – of doing
authorised acts. If the employee’s conduct falls outside the work or
particular class of work that he or she is employed to do, the employer is
not liable.
Bezuidenhout NO v Eskom44
There is no liability when the employee has been carrying out tasks wholly unauthorised by the employer.
In this case the Court held that an employee’s conduct in transporting a passenger in contravention of an
express prohibition was not performed in the course and within the scope of his employment. The
employer had expressly forbidden the employee from carrying unauthorised passengers and had thus
placed a limitation on the scope of employment. It was not merely an instruction of how to perform the
employer’s business. After considering all the relevant circumstances, the Court said that it was unfair to
hold the employer liable to a passenger who had in effect assumed the risk of association with the
forbidden conduct of the employee. Also, in terms of both the subjective state of mind of the employee
and the objective test of a sufficiently close link between the employee’s acts for his own purposes and
the business of the employer, the Court held that vicarious liability should not be imposed.
The difficulty in cases has often been to distinguish between:

• An unauthorised mode of carrying out authorised work (where the
employer is liable)
• Unauthorised conduct falling outside the employee’s work (where
the employer is not liable)
• Conduct that involves the employer’s time or equipment but that is
aimed solely at furthering the employee’s interests (a frolic of the
employee’s own, not rendering the employer liable – there is no
vicarious liability where the employee is engaged in his or her
personal affairs, separate from the employment).45
If, for own purposes, an employee deviates from the employer’s business,
the question is whether the digression is so great in terms of space or
time that we cannot reasonably say that the employee is still acting within
the course and scope of his or her employment.
• Courts have held an employer liable where the employee caused
harm while smoking on duty, notably in Viljoen v Smith.46 In this
case an employee climbed through a fence to neighbouring property
to relieve himself during working hours, and negligently started a fire
when smoking there.
• In Feldman (Pty) Ltd v Mall 47 a delivery vehicle was used to deliver
parcels. The driver deviated from the job to go for drinks and then
negligently caused an accident while returning to work. The Court
held the employer liable.
• In Carter & Co (Pty) Ltd v McDonald 48 the employee collided with a
pedestrian while cycling to the market for his own purposes during
working hours. The Court held that the employee had acted in his
own interests and the employer was therefore not liable. The
employer does not necessarily escape liability because he prohibited
the harmful conduct of the employee. It depends on all the
circumstances.
• In Bezuidenhout NO v Eskom 49 (previously referred to in more
detail) the Court held that an employee’s conduct in transporting a
passenger in contravention of an express prohibition by his
employer was not performed in the course and within the scope of
his employment.
In summary, the ultimate question is whether the employee not only

subjectively promoted his or her own interests, but objectively was also
dissociated from the business affairs or work of the employer. In other
words, in terms of the ‘standard test’ formulated in the Rabie case, the
question is whether the employee intended to promote his or her own
interests, and in so doing deviated from the work of the employer to such
a degree that there was no longer a sufficiently close link between the
employee’s acts and the scope of employment.

A difficulty arises when an intentional wrong is conducted in the course
of employment. In Salmond’s often-cited formulation, vicarious liability
arises when the employee has done ‘fraudulently that which he was
authorised to do honestly’ but not when the employee’s conduct was
insufficiently ‘connected with the authorised act as to be a mode of doing
it’. 50 This distinction depends upon the close scrutiny of the employee’s
authorised functions, resolving often into a question of ‘degree’. 51 For
example, in Ess Kay Electronics (Pty) Ltd v First National Bank of
Southern Africa Ltd 52 the Court found the bank not liable when one of its
employees misappropriated blank bank drafts. The employee’s work had
in fact included the control and administration of the bank’s foreign
exchange department. However, the Court ruled that there was no
liability, because the employee had been promoting his own interests to
the exclusion of the bank’s, and in acting wrongfully, he had effectively
disengaged himself from his appointed functions. In this case, the Court
rejected the plaintiff’s argument that there was a sufficiently close link
between the unauthorised and wrongful acts of the employee and the
work he was authorised to do. Although the employee exploited
opportunities offered by his employment, his self-interest in doing so
removed his conduct from the category of authorised actions.
A similar situation occurred in Absa Bank Ltd v Bond Equipment
(Pretoria) (Pty) Ltd,53 where cheques payable to the employer were paid
into a bank account operated by the employee. Despite the fact that it
was the employee’s duty to collect and deposit cheques for his employer,
the Court ruled that in stealing the cheques for himself, he could not be
said to be performing his duties at all: he was on a frolic of his own.
Clearly intentional wrongdoing does not always remove the
employee from the scope of employment, as illustrated by cases on State
liability for police transgressions.54 The State (like other employers) can
in certain circumstances be liable for intentional misconduct of its
employees. In the case of policemen, the approach of courts has been to
establish whether there is some connection between their misconduct
and carrying out police duties.55
The Constitutional Court has considered whether the common-law
principles on vicarious liability conform with the spirit, purport and
objects of the Bill of Rights, as intended in section 39(2) of the
Constitution.56 The Court held that both the principles of vicarious
liability, and their application, must conform to the normative framework
of the Constitution. On the issue of whether the State should be liable for
rape committed by police officers while on duty, the Court found the
principles of vicarious liability to be consistent with constitutional norms.
When applying these principles, the Court found that, subjectively
viewed, the policemen had acted in pursuit of their own objectives, but
objectively, their conduct was sufficiently linked to their employment as
policemen, and held the State liable.
In Minister of Safety and Security v Luiters 57 both the Supreme Court
of Appeal and the Constitutional Court decided that they should impose
vicarious liability on the State when an off-duty policeman pursued
persons who had attempted to rob him and shot an innocent third party.
The Courts applied a two-stage test:
Whether the employee’s acts were committed solely for employee’s purposes, and if
so whether there was a sufficiently close link between employee’s acts and the
employer’s purposes and business.
The Courts held that in pursuing would-be robbers the policeman had
acted in both his own interests and those of the police service. He
intended to perform police duties. The fact that the policeman did not
adhere to the rules of criminal procedure or police standing orders was
no bar to liability.
In Minister of Finance v Gore NO 58 the Court imposed vicarious
liability on the State for the conduct of public officials who fraudulently
awarded a government tender. The Court held that the conduct of the
officials closely resembled duties performed in the course and within the
scope of their employment. There was a sufficiently close link between
their conduct and their employment, and policy considerations
supported the imposition of vicarious liability for fraud.
The measure of a ‘close and direct connection’ depends on a diverse
range of subsidiary criteria, including the nature of the relationship
between the employer and the injured third party. An employer who has
taken responsibility for the plaintiff’s person or possessions owes the
plaintiff duties that are more extensive than those owed by the public at
large. The fact that there is a pre-existing relationship between the
employer and the injured third party has been an important factor in
some cases. Where employees have misappropriated goods entrusted to
their care by their employers, the employers are generally held
accountable for such wrongdoing, and courts often take into account the
employer’s pre-existing duty to the owner of the goods.59
South African courts follow a multi-faceted approach based on
policy considerations and subsidiary factors when determining the
closeness of the connection between the harmful conduct and the
employment. The policy considerations and subsidiary factors include
the following:
• Whether the employer is, in the circumstances, the most able to
spread the risk and whether the employer equitably should be the
‘risk-absorber’
• The time and place of the act in relation to the duties of employment
• The use of the employer’s property or equipment by the employee
• The extent to which the employer had authorised or prohibited the
employee’s conduct
• The extent to which the respective interests of the employer and
employee were served by the harmful act
• Whether a pre-existing relationship between the employer and the
plaintiff create reliance on safety or security
• Whether the employee’s wrongdoing constituted the realisation of a
risk created by the employer by entrusting the work to the employee.
K v Minister of Safety and Security60
The Court had to decide whether the State was vicariously liable for three policemen raping a young
woman. The facts were that Kern and her boyfriend had a fight in a nightclub. He refused to take her
home. She left the nightclub on her own and walked to a nearby petrol station to phone her mother to
collect her. The telephone at the petrol station could only receive incoming calls. At this point, three
policemen in uniform pulled up outside the petrol station in a police vehicle. One of them, who overheard
her conversation with the attendant, offered her a lift home. She accepted his offer, but he did not take
her home. Instead the policemen took her elsewhere and each of the policemen raped her in turn at
knifepoint. She had to be treated for injuries and severe trauma. She subsequently claimed damages
from the Minister of Safety and Security. The crucial question was whether the three policemen were
acting in the course and scope of their employment when they raped the plaintiff.
In the Supreme Court of Appeal, Scott JA considered this to be a deviation case, posing the legal
issue in the following way:
… whether the deviation was of such a degree that it can be said that in doing what he or she
did the employee was still exercising the functions to which he or she was appointed or
authorised to do or still carrying out some instruction of his or her employer.
The Supreme Court of Appeal declined to hold the Minister vicariously liable for the wilful or intentional
misconduct of the policemen, even though they were in uniform and on duty escorting Kern home when
they had raped her. In addition, Scott JA reasoned that the Court could not establish a sufficiently close
link between the deviant acts of the policemen in pursuit of their own selfish interests and the business
of the Minister. The Court made this decision on the basis that the deviant conduct of the policemen was
solely self-serving and was not authorised by the Minister, even though the wrongful acts were committed
whilst working for the Minister.
In the Constitutional Court, O’Regan J expressed the view that the business of the Minister of Police
does create a foreseeable risk that people would trust policemen, especially those on duty in uniform,
and who are in a police vehicle offering assistance to a member of the public in the early hours of the
morning. Members of the public are likely to trust policemen in these circumstances. This does not mean
that the State would be liable in all instances in which policemen wilfully cause harm to innocent third
parties. In general, the harm must be foreseeable and there must have been a close connection
between the acts of the employee and the risk created by the business of the employer, or the
instruction given by the employer in furtherance of the business interests. O’Regan J held that there was
such a close connection. The policemen had raped the plaintiff whilst on duty. They were patrolling the
area to protect the public from precisely the wrongs they had committed. Taking care of public safety
and security, which includes escorting someone to their home, and preventing crimes such as rape, is
within the ambit of their authorised duties. They were able to fulfill their self-interests by abusing a power
vested in them, driving a police vehicle and in police uniform. It is reasonable to infer that the plaintiff
would not have accepted the lift home had they been dressed in ordinary civilian clothes and driving an
ordinary vehicle. The Court could easily have established a close connection to justify imposing vicarious
liability on the Minister.
O’Regan J said that courts should avoid hiding beneath semantic discussions of the meanings of ‘the
course and scope’ and ‘mode of conduct’ requirements, when imposing vicarious liability. Instead, they
should interpret these principles with the spirit and objects of the Constitution in mind. In other words,
courts must take into account ‘the importance of the constitutional role entrusted to the police and the
importance of nurturing the confidence and trust of the community in the police, in order to ensure that
their role is successfully performed’.61
In Minister of Safety and Security v F 62 the plaintiff, F, found herself stranded late at night, and an
off-duty policeman offered to drive her home, using a police vehicle. Instead, he drove to a remote spot
where he raped her. The important distinction between this case and the K case is that on this occasion
the policeman was off-duty and for this reason the Supreme Court of Appeal held that this case fails the
test for vicarious liability that was articulated in K. On appeal the Constitutional Court overturned the
decision.63 Mogoeng J, who wrote the majority judgment, found that there was a sufficiently close link
between the policeman’s employment and F’s assault and rape: The police vehicle facilitated the
commission of the rape. F placed her trust in the policeman because he was a police official, and the
State has a constitutional obligation to protect the public against crime. Consequently, the Minister was
held vicariously liable for the harm that F had suffered.
Froneman J, in a separate concurring judgment, agreed with the outcome, but found that the
Minister’s liability was direct rather than vicarious, because the actions of State officials are in effect the
State’s own actions, and the normative considerations for determining liability may be appropriately
assessed as part of the wrongfulness inquiry.
In their minority judgment, Yacoob J and Jafta J applied the same test as the majority, but concluded
that there was not a sufficient link between the delict and the employment of the policeman concerned:
The policeman’s criminal conduct was too far removed in space and time from his employment to render
the use of the police vehicle and the presence of police dockets in vehicles sufficient to establish
vicarious liability, even if due regard was had to the victim’s vulnerable situation.
PAUSE FOR Are the outcomes in K and F justifiable?

The ‘close connection’ test requires a value judgement on the degree of
REFLECTION closeness, but the Court is not absolved from the need for an open and
structured process of reasoning, with reference to specific factors and policy
considerations. There is a close connection between the rape and the
policemen’s employment in K, because they were on duty, in uniform, and using
a police vehicle. In these circumstances, K placed her trust in them to take her
home safely, and therefore a connection exists between their employment as
policemen at that time and the rape. The facts relevant to application of the
‘close connection’ test were different in F, because the policeman was off-duty
and not in uniform, and the car was not marked as a police car. Consider
whether the outcome should nevertheless be the same.
Costa da Oura Restaurant (Pty) Ltd t/a Umdhloti Bush Tavern v Reddy64
The Court had to decide whether a barman acted within the scope of his employment when he assaulted
a patron outside the bar. The reason for the assault was that the patron had made remarks about the
barman’s efficiency. The patron afterwards tipped a second barman excessively in the presence of the
first one. The first barman saw this as provocation, followed the patron when he left the restaurant, and
attacked him.
Consider the following questions:
• Did the assault occur after the barman had abandoned his duties?
• Was the assault still sufficiently closely linked to the barman’s employment?
• The Court held that the attack was the result of the ‘personal vindictiveness’ of the barman. How can we
explain this in terms of the ‘standard test’ as set out in the Rabie case, which requires a court to
consider both subjective and objective factors? Does the ‘standard test’ imply that personal
vindictiveness automatically severs the link between the employee’s acts and the employer’s business?
• Did the Court give sufficient weight to policy considerations? What are the relevant policy
considerations?
33.9 Vicarious liability and the Protection of Personal

Information Act 4 of 2013
The Protection of Personal Information Act (‘POPI’) was enacted to
protect personal information that individuals would ordinarily wish to
keep private. It allows individuals to institute civil actions for damages
against people who unlawfully process this personal information. It also
imposes a form of vicarious liability on an employer for an employee’s
unlawful processing of personal information.65
In circumstances where an employee has unlawfully processed an
individual’s personal information, that individual (or the information
regulator, at the request of the individual) may sue for damages on the
basis of common-law vicarious liability, or in terms of the statutory
vicarious liability created by section 99(1) of POPI. If an individual
chooses to pursue a statutory action, an employer can escape liability
only in terms of the specific defences created in section 99(2) of the Act,
which reads:
(2) In the event of a breach the responsible party may raise any of the following defences against an
action for damages:
(a) Vis major;
(b) consent of the plaintiff;
(c) fault on the part of the plaintiff;
(d) compliance was not reasonably practicable in the circumstances of the particular case; or
(e) the Regulator has granted an exemption in terms of section 37.
It would seem that the employer is unable to raise any common-law

defences, and this may have the effect of unreasonably prejudicing an
employer who has diligently educated employees regarding the
requirements of POPI, as well as an employer who has:
done everything reasonably and practicable in its power to ensure that its
employees comply with the requirements of the protection of personal
information.66
POPI, therefore, has the effect of imposing liability on an employer for an

employee’s contravention, even if the employee wilfully disobeys
instructions or exceeds the scope of his or her employment.
1 For the historical development of vicarious liability in South Africa, and the influence of
English law, see Jordaan ‘Employment relations’ in Zimmermann and Visser (Eds) Southern
Cross: Civil Law and Common Law in South Africa (1996) 389 at 397–401. See further Reid
and Loubser ‘Strict liability’ in Zimmermann, Visser and Reid (Eds) Mixed Legal Systems in
Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) at
605; McQuoid-Mason ‘Vicarious and strict liability’ LAWSA 2ed (2011) Vol 30 at 289.
2 Boberg ‘Oak Tree or Acorn: Conflicting Approaches to our Law of Delict’ (1966) 83(2) SALJ
150 at 169.
3 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA).
4 Botes v Van Deventer 1966 (3) SA 182 (A).
5 Gifford v Table Bay Dock and Breakwater Management Commission (1874) 4 Buch 96.
6 Botes v Van Deventer 1966 (3) SA 182 (A) at 206.
7 2005 (9) BCLR 835 (CC); 2005 (6) SA 419 (CC).
8 F v Minister of Safety and Security 2012 (1) SA 536 (CC).
9 Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) at 61.
10 Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) at 62.
11 Midway Two Engineering & Construction Services v Transnet Bpk 1998 (3) SA 17 (SCA) at
23; Stein v Rising Tide Productions CC 2002 (5) SA 199 (C).
12 Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) at 62; Gibbins v
Williams, Muller, Wright & Mostert Ingelyf 1987 (2) SA 82 (T) at 90.
13 Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A) at 11.
14 See, for example, Esterhuizen v Administrator Tvl 1957 (3) SA 710 (T).
15 Holland v Simenhoff1923 AD 676 at 679; Rodrigues v Alves 1978 (4) SA 834 (A) at 842ff;
Lindsay v Stofberg NO 1988 (2) SA 462 (C) at 467.
16 Rodrigues v Alves 1978 (4) SA 834 (A) at 839.
17 Eksteen v Van Schalkwyk 1991 (2) SA 39 (T) at 45ff.
18 Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412 at 442.
19 Eksteen v Van Schalkwyk 1991 (2) SA 39 (T) at 45.
20 Even if a limited interest of a social nature, such as driving to have a meal together, as in
Roman v Pietersen 1990 (3) SA 350 (C).
21 2001 (3) SA 868 (SCA).
22 Grove v Ellis 1977 (3) SA 388 (C) at 390; Opperman v Opperman 1962 (3) SA 40 (N) at 45;
Hamman v South West African People’s Organisation 1991 (1) SA 127 (SWA) at 139.
23 De Beer v Sergeant 1976 (1) SA 246 (T) at 251; Hamman v South West African People’s
Organisation 1991 (1) SA 127 (SWA) at 139.
24 Mkize v Martens 1914 AD 382.
25 1998 (3) SA 17 (SCA). At 23, the Court refers to the English case of Mersey Docks and
Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 3 (HL) as authoritative in this
regard, reflecting the same position as in Scotland.
26 Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412; Auto Protection
Insurance Co Ltd v Macdonald (Pty) Ltd 1962 (1) SA 793 (A) at 799; Smit v Workmen’s
Compensation Commissioner 1979 (1) SA 51 (A) at 61; Langley Fox Building Partnership
(Pty) Ltd v De Valence 1991 (1) SA 1 (A).
27 Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412; Auto Protection
Insurance Co Ltd v Macdonald (Pty) Ltd 1962 (1) SA 793 (A) at 799; Smit v Workmen’s
Compensation Commissioner 1979 (1) SA 51 (A) at 61; Stein v Rising Tide Productions CC
2002 (5) SA 199 (C).
28 Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412 at 433; Dukes v
Marthinusen 1937 AD 12 at 17 and 23; Munarin v Peri-Urban Areas Health Board 1965 (1)
SA 545 (W) at 549; Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) at 61;
Stein v Rising Tide Productions CC 2002 (5) SA 199 (C).
29 Goldberg v Durban City Council 1970 (3) SA 325 (N) at 331.
30 2002 (5) SA 199 (C).
33 1991 (1) SA 1 (A) at 12H–J.
34 2009 (1) SA 265 (SCA).
35 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA).
36 Costa da Oura Restaurant (Pty) Ltd t/a Umdhloti Bush Tavern v Reddy 2003 (4) SA 34 (SCA)
(assault by a restaurant employee on a customer, outside the establishment); Kasper v
Andrè Kemp Boerdery CC 2012 (3) SA 20 (WCC) (an employee who had been ordered to
transport certain weeds to another location chose instead to burn them, causing a fire that
damaged a neighbouring property).
37 1986 (1) SA 117 (A) at 134.
38 See also Feldman (Pty) Ltd v Mall 1945 AD 733 at 774.
39 At 132G–H.
40 At 133D–E.
41 At 133G–H.
42 At 133–134.
43 At 134I–J.
44 2003 (3) SA 83 (SCA).
45 Witham v Minister of Home Affairs 1989 (1) SA 116 (ZH) at 125; Minister van Wet en Orde v
Wilson 1992 (3) SA 920 (A) at 927ff; Minister of Law and Order v Ngobo 1992 (4) SA 822 (A)
at 828; Costa da Oura Restaurant (Pty) Ltd t/a Umdhloti Bush Tavern v Reddy 2003 (4) SA 34
(SCA).
46 1997 (1) SA 309 (A).
47 1945 AD 733.
48 1955 (1) SA 202 (A).
49 2003 (3) SA 83 (SCA).
50 Heuston and Buckley (Eds) Salmond and Heuston on the Law of Torts 21 ed (1996) at 443.
51 Feldman (Pty) Ltd v Mall 1945 AD 733 at 756.
52 2001 (1) SA 1214 (SCA).
53 2001 (1) SA 372 (SCA).
54 Minister van Veiligheid en Sekuriteit v Japmoco Bk h/a Status Motors 2002 (5) SA 649 (SCA);
Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation Bk 2002 (5) SA 475 (SCA);
Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security 2012 (2) SA
137 (SCA); Von Beneke v Minister of Defence 2012 (5) SA 225 (GNP).
55 Minister of Police v Rabie 1986 (1) SA 117 (A); Minister van Veiligheid en Sekuriteit v
Japmoco Bk h/a Status Motors 2002 (5) SA 649 (SCA); Minister van Veiligheid en Sekuriteit v
Phoebus Apollo Aviation Bk 2002 (5) SA 475 (SCA); Masuku v Mdlalose 1998 (1) SA 1 (SCA);
K v Minister of Safety and Security 2005 (9) BCLR 835 (CC); 2005 (6) SA 419 (CC).
56 K v Minister of Safety and Security 2005 (9) BCLR 835 (CC); 2005 (6) SA 419 (CC).
57 2006 (4) SA 160 (SCA); 2007 (2) SA 106 (CC) at 110A–B.
58 2007 (1) SA 111 (SCA).
59 See, for example, the Scottish case of Central Motors (Glasgow) Ltd v Cessnock Garage and
Motor Co 1925 SLT 563; 1925 SC 796 in which the Court held that the employer had a
personal duty to look after a car left in its garage for safekeeping. Other relevant English
cases are Lloyd v Grace, Smith & Co [1912] AC 716; and Morris v CW Martin & Sons Ltd
[1965] 1 QB 716, both referred to in the South African case Absa Bank Ltd v Bond Equipment
(Pretoria) (Pty) Ltd 2001 (1) SA 372 (SCA).
60 2005 (9) BCLR 835 (CC); 2005 (6) SA 419 (CC) para 9.
61 Para 52.
62 2011 (3) SA 487 (SCA).
63 F v Minister of Safety and Security 2012 (1) SA 536 (CC).
64 2003 (4) SA 34 (SCA).
65 Millard and Bascerano ‘Employers’ Statutory Vicarious Liability in Terms of the Protection
of Personal Information Act’ PER/PELJ 2016(19):1 DOI available online at
http://dx.doi.org/10.17159/1727-3781/2016/v19i0a555.
66 Supra 30.
PART NINE
Remedies and apportionment
CHAPTER 34 Remedies
CHAPTER 35 Reduction and apportionment of damages

Chapter 34
Remedies
34.1 Introduction
34.2 Damages
34.2.6.2 Taxation
34.2.6.3 Interest
34.2.6.4 Inflation
34.2.6.5 Currency
34.2.7 Lex Aquilia: Assessment and quantification of damages for patrimonial harm
34.2.7.5 Quantifying the damages: Loss of earnings and earning capacity 34.2.7.6
Quantifying the damages: Basic method for calculating loss of future
income
34.2.8 Germanic remedy: Assessing reparation for infringements of physical-mental integrity
34.2.9 Actio iniuriarum: Determining the amount that would provide appropriate satisfaction
34.2.9.1 Assault
34.2.9.5 Defamation
34.4 Interdict
34.5 Conclusion
34.1 Introduction
Once a plaintiff has proved the elements of a delict, the delictual
remedies become available to the plaintiff . Th e general purpose of these
remedies is either to compensate for the harm suff ered or to prevent
harm or further harm from ensuing. Th is chapter concentrates on three
specifi c remedies: damages (or compensation), retraction and apology,
and interdict.
TERMINOLOGY Remedy
The term ‘remedy’ is often used to describe a particular action. For
example, one finds that the lex Aquilia, the actio iniuriarum, and the
action for pain and suffering (the Germanic remedy) are referred to as
‘remedies’. We acknowledge the use of this term for these actions, but in
this chapter, we use the term ‘remedy’ to describe the form of relief that
persons can obtain once they have shown that a delict has been
committed, for example, damages, retraction and apology, or in the case
of threatened harm, an interdict.
34.2 Damages
A plaintiff may recover damages by means of one or more of the
following actions:
• The actio legis Aquiliae for compensation for patrimonial loss
• The actio iniuriarum for satisfaction for infringements of personality
rights
• The Germanic remedy for pain and suffering for claiming reparation
for infringements of physical-mental integrity
• The condictio furtiva, by means of which a person with an interest in
a thing, usually the owner, seeks satisfaction for having been
deprived of its possession
• Th actio de pauperie and the actio de pastu, which aim to
compensate pauperies (patrimonial loss, and pain and suffering
caused by animals).
There might also be other possibilities, but these are the actions that we
discuss in this book.
Calculating damages involves a two-step process. First, one assesses
the harm by identifying and establishing the nature of harm that has
been suffered, and also its extent. For example, a plaintiff has had to pay
R10 000 medical expenses to date and is likely to incur a further R30 000
in the future. Once one has assessed the harm, the next step is to quantify
the harm. This is the process in which courts determine the amount of
damages, whether they need to make any adjustments to the amount, to
reach a final figure for the award amount. In our example of medical
expenses, inflation might influence the situation and courts also have to
consider the fact that the plaintiff, in receiving the money sooner than it
was needed, would earn some interest that strictly speaking is not due to
him or her. Courts also adjust the amount for contingencies, that is, the
possibility that the plaintiff might not incur the claimed expenses in the
future. The final amount that a court awards for future expenses in this
example might therefore be adjusted, say, to R20 000, to allow for these
extraneous factors. The demarcation between these steps is not always
clear, but they are nonetheless followed in some way or another in all
cases.
TERMINOLOGY Harm and damages
As already discussed, harm is an element of a delict. Harm is also
sometimes referred to as ‘loss’ or ‘damage’. However, the term ‘damage’
must be distinguished from the term ‘damages’. The former is an
element of delictual liability; the latter is a remedy available to plaintiffs
once they have established liability. We use the term ‘damages’ for the
amount of money that courts award to the plaintiff to compensate or
satisfy the harm suffered as a result of delictual conduct.
General and special damages

In the law reports, the headings called ‘damages’ often include items
such as ‘special’ and ‘general’ damages. Courts do not always use these
terms consistently. Furthermore, courts often use the terms ‘general’ and
‘special’ damages to refer to harm or loss, instead of the amount to be
awarded.
Special damages are damages that are specially pleaded and
proven, in other words, those items of loss that one can specify, list and
quantify. They may cover all forms of patrimonial loss, both past and
future, but as a rule, cover expenses or earnings prior to the date of trial.
Courts award general damages in respect of both patrimonial and non-
patrimonial loss for harm that arises from the conduct as a natural and
probable consequence, and that has not materialised at the date of trial
into a certain, quantifiable amount. In layperson’s terms, courts cannot
specify or detail such loss, and so they usually have to estimate a lump
sum. Included in this category are damages for loss of future earnings
capacity and future medical expenses, as well as compensation for non-
patrimonial loss, such as pain and suffering, emotional shock, loss of
amenities of life, and compensation for infringement of personality rights
(solatium) under the actio iniuriarum.
The assessment of general damages is a matter within the discretion of

the court of first instance and depends on the unique circumstances of
each case. An appeal court is not likely to interfere with an award by the
trial court unless there is evidence of irregularity or misdirection.
Minister of Safety and Security (Now Minister of Police) v Scott1
Scott, a professional hunter, and his company Scottco sued the Minister for damages arising from his
alleged unlawful arrest and detention. Scott had been arrested after he and his friends assaulted
someone outside a pub and as a result he had been unable to take an American group for a planned
hunting trip at his ranch. His failure to conduct the hunting trip caused an American magazine to
terminate its agreements with Scott and his company. Essentially, the magazine would no longer run
Scottco’s advertisements and would also no longer bring its own clients to Scott’s ranch. The High Court
awarded Scott general damages amounting to R75 000 in respect of the unlawful arrest and detention
and R577 610 to Scottco for wasted advertisement costs and loss of contractual income and profits. The
Minister appealed against both awards.
On appeal Scottco’s damages were set aside on the basis that there had been no intentional
interference in the contractual relationship. In determining whether the award to Scott was appropriate,
the Court emphasised that an appeal court is generally reluctant to interfere with the award of the trial
court but will do so where the appeal court is of the opinion that no sound basis exists for the initial
award or where there is a striking disparity between that award and the award which the appeal court
considers ought to have been made.2 After considering similar cases, the Court found that the High
Court’s award was grossly excessive and instead awarded R30 000 for general damages.

The primary purpose of an award of damages is to compensate an
injured party. In the case of damages claimed under the actio legis
Aquilia, a court will, as far as possible, put the injured party in the
position that he or she would have been in had the delict not been
committed. This is also referred to as the ‘negative interest’ or sum-
formula. Minister of Defence v Jackson 3 clearly illustrates this principle.
The Court held that in awarding damages for past and future lost
earnings, it had to make an allowance for the fact that the plaintiff would
as a result of his accident not have to pay tax. The Court deducted from
his claim the amount of taxes he would have paid to ensure that he was
not over-compensated. In the case of the actio iniuriarum, the damages
award serves to provide satisfaction (or genoegdoening) insofar as
money is able to,4 although there is still a view that the actio iniuriarum
has retained an element of punishment. The purpose of the Germanic
action is to increase the plaintiff’s feeling of happiness. Neethling and
Potgieter 5 call it ‘imperfect compensation’, while Van der Walt and
Midgley 6 use ‘reparation’. What is clear is that it is not possible to
measure pain and suffering in monetary terms, and the amount of
damages paid does not compensate in the sense of restoring the pre-
delict situation.
Our law does not recognise the concept of punitive or exemplary
damages, which is well known in countries such as the United States of
America and England. The purpose of these damages is to punish a
defendant. In these countries a plaintiff could, in addition to
compensation for loss, also claim an additional amount of damages
which is intended to penalise the defendant for the unacceptable
behaviour. Views differ on whether our law should recognise that some
delictual damages serve a punitive function.
COUNTER Punitive damages

In the United States of America, it is not unusual for plaintiffs to receive more
POINT
than double the amount of their damages in punitive damages, even in instances
where plaintiffs claim compensation for patrimonial loss. A well-known case is
that of Liebeck v McDonald’s Restaurants 7 in which a jury awarded $200 000 in
compensatory damages and $2,7 million in punitive damages to an elderly
woman who had suffered third-degree burns when hot coffee spilt over her legs
at a drive-through restaurant. Although the amounts were eventually reduced, the
punitive damages award was still three times the amount awarded for
compensatory damages. It is clear that there is no relation between the extent of
the loss and the amount of punitive damages.
English law distinguishes between aggravated damages and exemplary or
punitive damages. Courts award exemplary or punitive damages in instances
where the conduct of the defendant was outrageous, as in Kuddus (AP) v Chief
Constable of Leicestershire Constabulary.8 On the other hand, courts award
aggravated damages to victims as compensation for mental distress caused by
injuries that result from tortuous conduct. Exemplary and aggravated damages
were part of early South African law as a result of the English influence. However,
apart from what was said in Fose v Minister of Safety and Security 9 (see below),
our legal system does not recognise these damages at present.
The actio iniuriarum has been described as an actio vindictam spirans.
Historically this action was purely punitive, but over the centuries it lost a great
deal of its punitive nature. Nonetheless, there is a view that the actio is not
purely compensatory. Visser and Potgieter,10 for example, describe the action as
‘maintain(ing) a position somewhere between compensation and punishment’.
In contrast, Van der Walt and Midgley suggest that even though the actio
iniuriarum’s original purpose was to penalise a wrongdoer, and even though
there is case law that indicates that the actio serves a punitive purpose, ‘this
function is out of place in the modern law of delict’.11 They argue that instead:
where defendants behave maliciously, or where other aggravating

circumstances are present, a larger solatium – ‘aggravated damages’
– is required to assuage the plaintiff’s feelings. The size of the award
may end up being the same, but the focus is properly on the plaintiff,
not the defendant.12
Fose v Minister of Safety and Security13

The plaintiff had been arrested, detained, and subsequently assaulted by members of the South African
Police Service. He thereafter claimed delictual damages from the Minister and, in addition, punitive
damages as relief for the violations of his fundamental rights. While his claims for delictual damages
were sustained, the Constitutional Court (per Ackermann J) confirmed that punitive damages were not
part of South African law:14
… I have come to the conclusion that we ought not, in the present case, to hold that there is
any place for punitive constitutional damages. I can see no reason at all for perpetuating an
historical anomaly which fails to observe the distinctive functions of the civil and the criminal
law and which sanctions the imposition of a penalty without any of the safeguards afforded in a
criminal prosecution.
I agree with the criticisms of punitive constitutional damages … . Nothing has been produced or
referred to which leads me to conclude that the idea that punitive damages against the
government will serve as a significant deterrent against individual or systemic repetition of the
infringement in question is anything but an illusion. Nothing in our own recent history, where
substantial awards for death and brutality in detention were awarded or agreed to, suggests
that this had any preventative effect. To make nominal punitive awards will, if anything, trivialise
the right involved.
For awards to have any conceivable deterrent effect against the government they will have to be
very substantial and the more substantial they are the greater the anomaly that a single plaintiff
receives a windfall of such magnitude. And if more than one person has been assaulted in a
particular police station, or if there has been a pattern of assaults, it is difficult to see on what
principle, which did not offend against equality, any similarly placed victim could be denied
comparable punitive damages. This would be the case even if, at the time the award is made,
the individuals responsible for the assaults had been dismissed from the police force or other
effective remedial steps taken.
In a country where there is a great demand generally on scarce resources, where the
government has various constitutionally prescribed commitments which have substantial
economic implications and where there are ‘multifarious demands on the public purse and the
machinery of government that flow from the urgent need for economic and social reform’, it
seems to me to be inappropriate to use these scarce resources to pay punitive constitutional
damages to plaintiffs who are already fully compensated for the injuries done to them with no
real assurance that such payment will have any deterrent or preventative effect. It would seem
that funds of this nature could be better employed in structural and systemic ways to eliminate
or substantially reduce the causes of infringement.
• The Court specifically mentions ‘constitutional punitive damages’ and not ‘delictual punitive damages’.
Does this make a difference?
• What is the ‘historical anomaly’ that is referred to?
• What are the criticisms that the Ackermann J refers to?15
• The Court canvasses another suggested purpose of delictual damages: deterrence. What is the Court’s
view in this regard? Does it accept or reject deterrence as an underlying purpose?
• The Court also mentions a social policy reason for not recognising punitive damages in this instance.
Does this policy factor apply to all claims under the actio iniuriarum?
• Earlier in the judgment,16 the Court noted that an award of aggravated damages is still basically
compensatory, but the particular circumstances of the case justify a substantial award. Would full
recognition of aggravated damages not resolve the current debate regarding the actio’s punitive
function?
The condictio furtiva is a damages remedy available to the owner of a

thing or someone with an interest in a thing against a thief and persons
who obtained the thing from the thief. An essential requirement is that
the object in question must have been stolen or used without permission;
in other words, the remedy lies in both instances of theft or furtum usus
(the appropriation of the use of another’s property without the intention
to appropriate the thing permanently).17 The rationale for this delictual
remedy is that risk passes to the person who deprives the owner or
possessor of the property and its purpose is to compensate the owner or
possessor for the loss of the property in those circumstances where it
cannot be restored through rei vindicatio.18
Chetty v Italtile Ceramics Ltd19
Chetty entered into a joint venture and franchise agreements with Italtile Ceramics, and became manager
of a warehouse and retail store. During the course of his employ Chetty engaged in certain practices that
resulted in Italtile losing stock. He had sold stock on credit instead of in cash to benefit certain
customers who would pay at the end of the month; and he rolled stock over (taking the stock off the
computer system at the beginning of the month only to reverse that entry at the end of the month) with
the intention to disguise losses that were being suffered. These actions were fraudulent. On discovering
these practices Italtile terminated the agreements and sought to recover damages for missing stock on
the basis of the condictio furtiva.
The High Court found that the Chetty’s practices of a delivery book (credit) system, false writeoffs and
reversals of missing stock resulted in patrimonial loss to Italtile. The SCA upheld the appeal on the
ground that legal causation was absent. In the course of the judgment the Court pointed out that:
• Patrimonial loss was not the issue and that liability could arise on account of the furtum usus.
• The intention to appropriate the thing permanently, as in the case of criminal theft, is not a requirement
of the condictio where furtum usus is concerned.
• In this instance, the conduct complained of did not constitute the use of Italtile’s property. What Chetty
did was to post false entries to the accounts to mislead Italtile. That could well have amounted to fraud,
but it was not use of the stock.
• Italtile’s loss did not arise directly from the use of the goods, but from Chetty’s failure to take steps to
collect the outstanding debts after termination of the agreement with the appellant.

Harm also includes prospective or future loss, which is harm that may
arise after the delict and even after the date of the trial (when courts
assess the harm and quantify the damages). At the end of a trial, courts
know whether harm is likely to arise in the future. Future harm may
consist of future patrimonial harm or future pain and suffering. Future
patrimonial loss includes loss of future earnings (also referred to as loss
of earning capacity), future medical expenses, future loss of support, and
loss of profit.
When someone is seriously injured in an accident and is completely
unable to work, this person’s loss includes not only the medical and
hospital costs, and the earnings already lost, but also future earnings lost
and future medical costs. At the date of the trial, the plaintiff has not
suffered these future losses, but it is clear that they will arise. Assessing
such harm involves a certain degree of speculation on the part of the
court, because at the time of the trial, the extent of this harm, as well as
other factors that could influence it in the future, are unknown. Courts
have to engage in this speculative exercise because of the once-and-for-
all rule, which prevents a plaintiff from claiming damages before the
harm actually materialises and the fact that delictual claims become
prescribed three years after the date of the delict.

The once-and-for-all rule originated in English law. According to this
rule, a person has to claim compensation for all loss, past and future, and
patrimonial and non-patrimonial, in a single action, if the harm is based
on a single cause of action. This means that the plaintiff will claim
damages for harm that has not yet materialised, but that will in all
probability arise in the future. The effect of this rule is that courts award
damages in a lump sum, even though some of the harm has not yet
arisen, for example, a plaintiff who suffers severe injuries as a result of an
accident, and will incur ongoing medical expenses in the future after the
date of the trial. A court will award compensation for that harm at the
trial, even though the harm (the costs for the future medical treatment)
will arise in the future.
A cause of action and an action are not the same. An action is a
process for claiming a remedy, such as the actio legis Aquiliae or the actio
iniuriarum. A cause of action is the set of facts upon which an action is
based. There are two possible approaches to the concept ‘cause of
action’:
• The ‘single cause’ approach, in terms of which every harm-causing

event constitutes one cause of action irrespective of the nature of the
claim
• The facta probanda approach, in terms of which a cause of action
will arise as soon as all the material requirements for a particular
type of claim are present.
Evins v Shield Insurance Co Ltd20
The plaintiff was injured and her husband killed in a motor vehicle accident on 30 March 1972. The
plaintiff claimed compensation from the defendant, an insurance company, in terms of the Compulsory
Motor Vehicle Insurance Act 56 of 1972, the predecessor of the current Road Accident Fund Act 56 of
1996. In May 1973, the plaintiff delivered the claim for compensation in the prescribed form to the
defendant. The form was completed properly in respect of the claim for compensation for bodily injuries,
but not properly in respect of the claim for loss of support. In August 1973, the plaintiff served summons
on the defendant. Over three years later, in January 1977, the plaintiff issued a second summons in
which only a claim for loss of support was pursued. The plaintiff next obtained an unopposed order to
amend the first summons by deleting all reference to the claim for loss of support. Eventually, the
defendant filed a special plea alleging that the plaintiff’s claim for loss of support had become
prescribed in that it arose on 30 March 1972.
At issue was whether the claims for bodily injuries and loss of support were based on a single cause
of action or two different causes of action. If there were two causes of action, the defendant’s special
plea that the claim for loss of support had prescribed would be correct. To resolve the issue, the Court
first looked at the meaning of the term ‘cause of action’. It explained the facta probanda approach and
applied it to the facts of the case:21
‘The proper legal meaning of the expression “cause of action’’ is the entire set of facts which
gives rise to an enforceable claim and includes every fact which is material to be proved to
entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his
declaration in order to disclose a cause of action. Such cause of action does not ‘‘arise’’ or
‘’accrue’’ until the occurrence of the last of such facts and consequently the last of such facts is
sometimes loosely spoken of as the cause of action … .’
In the case of an Aquilian action for damages for bodily injury (and here I use the term Aquilian in an
extended sense to include the solatium awarded for pain and suffering, loss of amenities of life, etc,
which is sui generis and strictly does not fall under the umbrella of the actio legis Aquiliae: …, the basic
ingredients of the plaintiff’s cause of action are (a) a wrongful act by the defendant causing bodily injury,
(b) accompanied by fault, in the sense of culpa or dolus, on the part of the defendant, and (c) damnum,
i.e. loss to plaintiff’s patrimony, caused by the bodily injury. The material facts which must be proved in
order to enable the plaintiff to sue (or facta probanda) would relate to these three basic ingredients and
upon the concurrence of these facts the cause of action arises. In the usual case of bodily injury arising
from a motor accident this concurrence would take place at the time of the accident. On the other hand,
in the case of an action for damages for loss of support, the basic ingredients of the plaintiff’s cause of
action would be (a) a wrongful act by the defendant causing the death of the deceased, (b) concomitant
culpa (or dolus) on the part of the defendant, (c) a legal right to be supported by the deceased, vested
in the plaintiff prior to the death of the deceased, and (d) damnum, in the sense of a real deprivation of
anticipated support. The facta probanda would relate to these matters and no cause of action would
arise until they had all occurred.
From this analysis it is evident that, although there is a measure of overlapping, the facta probanda in a
bodily injury claim differs substantially from the facta probanda in a claim for loss of support. Proof of
bodily injury to the plaintiff is basic to the one; proof of death of the breadwinner is basic to the other.
Proof of a right to support and the real expectation that, but for the breadwinner’s death, such support
would have been forthcoming is basic to the one, irrelevant to the other. It is evident, too, that even
where both claims flow from the same accident, the cause of action in each case may arise at a different
time. As I have said, the cause of action in respect of bodily injury will normally arise at the time of the
accident, i.e. when the bodily injury and the consequent damnum are inflicted; in the case of the cause
of action for loss of support, this will arise only upon the death of the deceased, which may occur some
considerable time after the accident. Until such death there is, of course, no wrongful act qua the
plaintiff; only a wrongful act qua the person who is later to become the deceased.
The Court in this instance found that although the claim for damages for
bodily injuries and loss of support were caused by the same harm-
causing event, they nevertheless were based on different causes of action,
because the essential facts that the plaintiff had to prove in each instance
were different.
PAUSE FOR Single cause of action

REFLECTION The plaintiff in Evins v Shield Insurance Co Ltd22 did not succeed in proving that
there was a single cause of action and so the claim for loss of support had
prescribed. If the plaintiff had brought her claim within three years after the date
of the delict, her claim would have succeeded. However, would the plaintiff have
been successful if there had been a single cause of action? If the claims for loss
of support and bodily injuries constituted the same cause of action, would the
once-and-for-all rule then have prevented the plaintiff from instituting action?
The once-and-for-all rule has both advantages and disadvantages. Its

main advantage is the fact that it brings the litigation to an end and
prevents the same case from being taken to court again. Its main
disadvantage lies in the fact that the plaintiff has to claim in one lawsuit
for both past and future loss. With future loss, courts have to ascertain
how much money to award to the plaintiff for loss that may or may not
arise in the future. This invariably results in some speculation and could
result in either under- or over-compensation.23
PAUSE FOR Assessing loss in absence of the once-and-for-all rule
An example of assessing loss in the absence of a rule such as the once-and-for-
REFLECTION
all rule is contained in Article 6:105 of the Dutch Civil Code. This article creates
the possibility for Dutch courts, in those cases where harm has not yet
materialised, either to assess the harm in advance, or to postpone the
assessment partially or completely until such time as the harm has ensued.
Where courts make the assessment prior to the actual harm ensuing, a judge
also has a choice to order payment of damages either by a lump sum, or by
periodic payments. In the latter instance, a judge may require the defendant to
provide security for the future payments. Such a provision could solve many of
the problems that are currently experienced with the speculation around future
losses. However, the only way in which the law that relates to the once-and-for-
all rule could change would be by statutory intervention.

There are both common-law and statutory exceptions to the once-and-
for-all rule.

• In the case of nuisance, a plaintiff may institute a claim every time
the nuisance causes harm, because one cannot anticipate future
harm that may arise out of the nuisance. Examples of conduct that
amount to nuisance include an unpleasant smell, noise, leaves from
a neighbour’s tree falling into a person’s garden, and smoke. In De
Charmoy v Day Star Hatchery (Pty) Ltd 24 the defendant company
bred and sold chickens. The plaintiff stayed on the neighbouring
property and sought relief based on the noise and foul odours that
emanated from the chicken hatchery.
• In subsidence cases, where harm is caused by wrongful excavation, a
cause of action arises every time the harm arises. South African law
recognises the right of the landowner to lateral support and if a
person causes subsidence on a neighbour’s land as a result of
excavations on the property, he or she could be liable for damages.
In D and D Deliveries (Pty) Ltd Pinetown Borough 25 the defendant
caused substantial damage to the plaintiff’s property as a result of
excavations on its property. The plaintiff claimed damages based on
the subsidence and then later amended its particulars of claim and
inserted an additional claim in terms of the actio legis Aquiliae. The
question before the Court was whether these constituted separate
causes of action. The Court held that the facta probanda for the two
claims were substantially different and that the second claim had
accordingly become prescribed. With regard to claims based on
subsidence the Court held: 26
In subsidence cases it is unnecessary to prove an unlawful act or negligence; the cause of
action is simply damage following upon deprivation of lateral support. The action lies only
against the owner of the adjoining property, and each successive subsidence gives rise to a
fresh cause of action.
• In the case of a continuing wrong there is a cause of action every

time harm arises. In Slomowitz v Vereeniging Town Council 27 the
plaintiff claimed damages from the defendant for harm suffered as a
result of a road closure. The defendant submitted that the claim was
barred by a provincial ordinance which stated that claims against
local authorities had to be brought within six months. The
defendant’s argument rested on the assumption that the road
closure constituted a single act. The Court held that the fact that the
road was kept closed constituted a continuing wrong and thus gave
rise to several causes of actions.

One finds statutory exceptions in the Road Accident Fund Act:
• Section 17(1), read together with section 21, creates Road Accident
Fund liability for harm resulting from bodily injury or death ‘caused
by or arising from the driving of a motor vehicle’. The Fund is,
however, not liable for damage to property, and so the victim may,
on the same set of facta probanda, sue the driver separately using the
actio legis Aquiliae in respect of damage to the motor vehicle.
• Section 17(4)(a) of the Act provides that in respect of certain
expenses the Fund may compensate the plaintiff only once the
expenses have been incurred. This is an exception in that it deviates
from the lump-sum payment rule.
• Section 17(4)(b) of the Act makes provision for payment of loss of
future income or support in instalments.

It often happens that the plaintiff, as a result of the delict, not only suffers
harm, but also receives some benefit. This benefit may assume different
forms, such as insurance payouts and pension payouts. For example,
Tom is injured in an accident and as a result he suffers brain damage. He
can no longer do the work he did before. His employer feels sorry for him
and allows him to do odd jobs around the office. He pays him a small
sum of money for this work. Tom claims damages for loss of future
earnings. In a case like this, the question is whether the court should
deduct from the total damages claim the money paid to Tom by the
employer.
Benefits that courts do not deduct from the damages claim are
regarded as collateral sources and therefore res inter alios acta. This
phrase literally means that something that happens between two parties
does not concern anyone else. Some of the benefits that a plaintiff may
receive from other sources after having suffered loss will therefore be
‘nobody else’s business’ and a court will not consider them when
deciding the extent of the loss and eventually the size of the damages
award. Where benefits are deducted, one normally refers to this as
‘accounting for benefits’. Whether a benefit is deducted usually depends
on the source and the nature of the benefit. In Santam
Versekeringsmaatskappy Bpk v Byleveldt,28 Byleveldt was seriously
injured and suffered brain damage that left him unable to work. His wife
asked his employer to give him odd jobs to do and to pay him something.
Out of compassion the employer agreed to do so. The defendant claimed
that the amount in question should be deducted from the damages
claim.
The problem in these instances is if a person, as a result of a harm-
causing event, not only suffers harm, but also receives a benefit, then that
person would be enriched by the event if the amount of the benefit is not
subtracted from the amount of damages. In our example, Byleveldt
received some money from his employer, even though it was more of a
gift than a wage. We already know that the purpose of an award of
damages is to compensate, not to enrich the plaintiff. In this instance, the
question is whether a court should deduct that money from the overall
award so that Byleveldt does not receive double compensation. On the
other hand, if a court does deduct the benefits that the plaintiff receives
as a result of the accident from the amount of damages, the wrongdoer
gains from someone else’s generosity and is partly absolved from
liability. In many instances it would be unfair for the defendant to benefit
in this way. Courts have rejected this latter argument on the basis that the
purpose of damages is to compensate the plaintiff, not to punish the
defendant. In the Byleveldt case, however, the Court held that an amount
given to an injured party as a result of compassion or as a gift should not
be deducted.
Standard General Insurance Co Ltd v Dugmore NO29
R, a 43-year-old man, was badly injured in a motor vehicle accident. As a result of his injuries, he
became totally incapacitated and unemployable. The plaintiff, acting as R’s curator ad litem, claimed
damages from the defendant in terms of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989,
the immediate predecessor of the Road Accident Fund Act 56 of 1996. The plaintiff claimed damages
under a variety of heads. All the claims were settled except for the claims for past and future earnings.
The problem arose because R had received the following benefits:
• Monthly pension payments from a disability pension to which he was entitled in terms of his employer’s
pension fund
• Benefits from a group accident insurance policy.
The question before the Court was whether these amounts were res inter alios acta, or whether they had
to deduct them from the total amount of damages claimed for past and future loss of earnings. The Court
a quo held that they had to deduct the pension from the damages, because they were a direct
consequence of his contract of employment, but the insurance policy benefits were res inter alios acta
and so need not be deducted. Both parties appealed, and both appeals were dismissed.
The Court explained the collateral source rule as follows:30
The object of awarding Aquilian damages is to place the plaintiff in the position in which he
would have been had the delict not been committed, thereby redressing the diminution of his
patrimony caused by the defendant’s delict … .
In calculating the patrimonial position in which the plaintiff would have been had the delict not
been committed, and comparing it with his present position, one has to take into account not
only the detrimental sequelae of the delict, but also the advantageous consequences thereof:
after all, one needs to compare the total patrimonial position of the plaintiff at present (i.e.
post delicto) with the corresponding position ante delicto.
Developed to its logical conclusion, this principle would require the plaintiff to disclose and
deduct from his claim each and every benefit received or receivable as a consequence of the
delict. But it seems evident that the rule cannot be pursued to such logical conclusion: it is
manifestly unjust that the plaintiff should deduct from his claim, and the defendant profit by,
for example gratuitous benefits received by the plaintiff.
The question thus is one of demarcation only: which benefits are deductible from the plaintiff’s
claim?
The Court attempted to play down the ‘demarcation’, in other words, trying to find a formula or principle
to explain which benefits should be deducted:31
It now seems to be generally accepted that there is no single test to determine which benefits
are collateral and which are deductible. Both in our country … and in England … it is
acknowledged that policy considerations of fairness ultimately play a determinative role.
In the end, the only ‘principle’ that the Court identified was that of fairness, reasonableness and justice.
In other words, the decision is one of policy, which serves to determine whether the third-party payment
is legally relevant to the plaintiff’s claim.
Examples of benefits that courts do not deduct from the amount of

damages include: 32
• Benefits received from insurance contracts: this applies to both
indemnity insurance (for example, accident insurance) and non-
indemnity insurance (such as life insurance)
• Benefits received from a medical aid, where the medical aid has the
discretion as to whether to pay the benefit
• Paid sick leave, where the plaintiff’s employer has a discretion as to
whether to grant sick leave
• Ex gratia payments, such as that given in the Byleveldt case
• Pension payments, where the payment of the pension is
discretionary
• An award that has been received as a solatium.
Benefits that courts do deduct from the damages claim include: 33

• Medical aid payments received pursuant to a contractual or statutory
right
• Sick leave granted pursuant to an employment contract or a
statutory right
• Pension paid out pursuant to a contractual or statutory right
• The benefit of free medical care received in a provincial hospital
• Savings on income tax as a result of lost income
• Social security grants paid out to a single mother in respect of her
children are deducted from damages for loss of support.34
PAUSE FOR Accounting for benefits

There is no general principle that our courts can use to decide which benefits
REFLECTION
they should account for and which benefits they should regard as res inter alios
acta. South African courts deal with each benefit on a case-by-case basis, based
on policy considerations. In the Netherlands, Article 100 of the Civil Code
provides that courts must consider a benefit when assessing damages, insofar as
it is reasonable. This principle is so general that it requires interpretation by the
courts. The net effect is that courts have to decide in each case whether it would
be reasonable to deduct a particular benefit. This has given rise to a body of law
that is almost as casuistic as that in South Africa.35

When courts decide on an amount of satisfaction, they consider certain
factors. The factors described in the following sections do not constitute a
closed list and in some instances they may overlap.

Generally, the date of the delict serves as a point of reference for
assessing harm, including future harm, and for making the comparison
between the plaintiff’s pre-delict and postdelict positions, irrespective of
whether the hypothetical or actual method is used.36 However, courts
may also consider events that take place between the date of the delict
and the date of the trial. The date of the trial, therefore, becomes relevant
in cases of future losses where courts have to capitalise and discount the
amount of damages to present value.
General Accident Insurance Co SA Ltd v Summers, Southern Versekeringsassosiasie Bpk v Carstens NO,
General Accident Insurance Co SA Ltd v Nhlumayo37
Three appeals were heard in one sitting. The decisions all concerned the date to which damages had to
be discounted to present value. The harm in each instance was prospective loss. In each of these cases,
the actuary who provided expert evidence for the defendant regarded the date of the delict as the proper
reference point for discounting the damages for loss of future earnings. The plaintiffs’ actuaries suggested
using a split method in terms of which claims for damages were to be discounted to the date of delict,
and others, for example, claims for loss of support and future earnings, were to be discounted to the date
of trial. Discounting damages to the date of the delict would result in a smaller amount of damages than
the split method advanced by the plaintiff.
The Court said:38
It may sound logical to say that, because the cause of action of a victim of delictual conduct
originated on the day of the delict, his compensation has to be determined with reference to
that day. I am of the opinion that this is not necessarily, or in all circumstances, a correct
statement, and especially it should not simply be accepted that because harm to a thing such
as a motor vehicle has to be determined with reference to the date of the delict, loss of earning
capacity or support should also of necessity be determined in this manner. The two cases are
not the same.
When a thing such as a car is destroyed or damaged, the process of destruction or harm is
usually completed immediately. It is easy therefore to understand why in the case of such harm
the owner’s harm is to be assessed with reference to the date of the delict … .
Where someone is injured and his earning capacity is destroyed or reduced as a result the
position will not be the same. Even though someone’s earning capacity is regarded as an asset
in his estate, the harm caused as a result of the destruction thereof will not be completed on
the date of the delict. One has to do therefore with harm which continues after the date of the
delict, that is, into the future. The same considerations apply where harm arises as a result of
the death of a breadwinner.
The Court held that although the point of departure regarding the date to which the harm is assessed will
be the date of the delict, there may be instances in which the reference has to be made to the date of
the trial.
34.2.6.2 Taxation
Courts will consider the fact that the plaintiff could, because of inability
to work, save on paying income tax, and they will deduct this saving from
the amount of damages.
Minister of Defence v Jackson39
The plaintiff was severely injured in a collision between his vehicle and a military vehicle. He claimed
damages under a variety of heads: for expenses, pain and suffering, and loss of earnings, both past and
future. One of the issues was whether, and to what extent any savings on income tax affected the
damages calculation. (The tax legislation at the time exempted damages awards from income tax.) The
Court referred to the English decision of British Transport Commissioner v Gourley,40 in which the Court
held they should deduct savings on income tax from the amount of damages when quantifying both past
and future earnings, provided of course that these amounts were exempt from tax. In this regard, there
should be no difference between past earnings (which the Court in Gourley classified as special
damages) and future earnings (which it classified as general damages), because often whether
something was past loss or future loss depends on coincidence, namely the date of the trial. The Court,
therefore, would deduct savings from income tax from damages for past and future earnings. Underlying
this rule was the principle that the purpose for an award of damages is not to over-compensate the
plaintiff or to punish the defendant; it is merely to put the plaintiff in the position that he or she would
have been had the delict not been committed.
34.2.6.3 Interest
Interest rates are relevant when calculating future losses. When a court
makes an award for future loss of earnings (loss of earning capacity), they
discount that amount to present value (calculate the amount which, if
invested now, would grow to the amount of the future loss at the time the
loss is expected to occur). In order to discount an amount to present
value, a court has to consider interest rates. The interest rate that a court
chooses depends on expert evidence, often by using actuaries. Courts
also use actuarial or discount tables, which set out the present values of
amounts with reference to different interest rates and over different
periods.
34.2.6.4 Inflation
Inflation causes currency to lose its purchasing power. The result is that
items that one purchases become more expensive as time goes by. This
means that one can buy less today with a certain amount of money than
one could three years ago, or that a damages amount awarded today will
be worth less in a few years’ time. Assume, for example, that a person
who is injured incurs R30 000 of medical expenses and the case is only
heard two years after the accident. If the court awards that person R30
000, this money is worth less than what it was worth two years ago. The
question is whether the Court should consider and make good that loss
in value. In the case of future expenses and loss of earnings, should a
court consider inflation and increase the amount accordingly?
SA Eagle Insurance Co Ltd v Hartley 41
The plaintiff was involved in a motor vehicle accident. Inter alia, he claimed for loss of past earnings. The
Court a quo awarded a sum of money adjusted to ‘compensate the respondent for the loss of purchasing
power of money since the dates upon which his past losses of earnings had been incurred’. This portion
of the damages award was the basis for the appeal.
The Court a quo had applied the Everson adjustment in terms of which inflation to take into
consideration when assessing past losses. Previously, in Everson v Allianz Insurance Ltd,42 the Court
considered the diminished purchasing power of the money when assessing past losses.
However, in the present case, the Appellate Division held that inflation should not be considered with
regard to past losses. The Court based its decision on General Accident Insurance Co SA Ltd v Summers
43 in which the Court held that it should assess harm with reference to the date of the delict. With future
losses, courts have to discount these to present value, because the plaintiff receives the money before
the future loss materialises and so can invest the money and benefit from it sooner than would have
been possible in the ordinary course of events. In the case of past losses, courts do not discount the
amount, and the plaintiff receives the full amount. Applying the Everson principle would entail that the
amount of damages is altered according to when the plaintiff claims and receives compensation:
This result seems to me to be in conflict with the principle of nominalism of currency which
underlies all aspects of South African law, including the law of obligations. Its essence, in the
field of obligations, is that a debt sounding in money has to be paid in terms of its nominal
value irrespective of any fluctuations in the purchasing power of currency.
Therefore, based on the principle of nominalism, the Court found that it should make no adjustment for
inflation in respect of past losses.
In cases of future loss, such as loss of future income, loss of future

support, and future medical expenses, courts make provision for the
depreciation of the value of money that the plaintiff would require in the
future. As a general rule, courts adopt a conservative approach in this
regard.
Courts also adjust awards for non-patrimonial loss, often based on
past awards, to factor in the inflation rate.
Jonosky v Road Accident Fund44
Jonosky instituted proceedings against the Road Accident Fund (RAF) for recovery of compensation
arising from a motor vehicle collision. All issues were settled save the amount of compensation for loss of
income. At issue was the correct interpretation and application of section 17(4)(c) and (4A)(b) of the
Road Accident Fund Act:
• Section 17(4)(c) of the Road Accident Fund Act provides that where a claim for compensation includes
a claim for loss of income the annual loss, irrespective of the actual loss, shall be proportionately
calculated to an amount not exceeding R160000 per year in the case of a claim for loss of income and
in respect of each deceased breadwinner in the case of a claim for loss of support.
• Section 17(4A)(b) on the other hand, provides that the amount, as adjusted quarterly in order to
counter the effect of inflation, shall be the amount set out in the last notice issued prior to the date on
which the cause of action arose. The Road Accident Fund is required, by notice in the Government
Gazette, to adjust the amounts quarterly in order to counter the effect of inflation.
Jonosky argued that the amount awarded in respect of both past and future loss of income had to be
adjusted to counter the effect of inflation. The RAF argued that no adjustment should be made for future
loss of income as the future rate of inflation was subject to fluctuations and, as such, inexact, or at best,
speculative.
The Court held that in calculating future loss of earnings beyond the date on which such calculation
was made, an actuary was duty-bound to incorporate a projected future inflation rate on an annual
basis. As a result, the Court awarded the higher amount that Jonosky sought. The Court noted:
• That section 17(4A)(b) contemplated an adjustment of the amounts stipulated in section 17(4)(c) in
respect of a claim for loss of income as at the date when the loss occurred, this being the date of the
collision. The subsection did not purport to deal with adjustments after the date on which the cause of
action arose.
• However, in respect of future annual loss, reliance had to be placed on the actuarial calculations of
future loss of earnings which, in the past, had always taken into consideration a projected future
inflation rate for each year up to the date of retirement. There was no need to disturb that methodology
when calculating future loss of earnings.
It emphasised that there has always been a speculative ‘looking into a crystal ball’ to come up with a
projected annual inflation rate during the future years up to retirement. Therefore, the purpose of section
17(4A)(b) was intended to set a starting date for utilising adjustment amounts when calculating loss of
earnings after the accident and should not be used for any other purpose.
34.2.6.5 Currency
Damages awards are usually made in South African currency, but a
plaintiff may in some instances claim damages in a foreign currency. The
principle of nominalism applies and courts will award the actual amount
lost irrespective of the inflation rate or fluctuations in the currency. In
Standard Chartered Bank of Canada v Nedperm Bank Ltd 45 the plaintiff
claimed damages in the amount of $US2,5 million as a result of a
negligent misstatement made by the defendant that resulted in the
plaintiff suffering harm. The Court held that the damages could be paid
in foreign currency: 46
When one turns to the facts of the present case, it is apparent that the loss suffered
by Stanchart was basically in US dollars, the currency in which the bill of exchange
was expressed and which was paid or credited to Cansulex when the bill was
discounted. This was the currency in which its loss was ‘felt’. The type of transaction
which led to the loss had on previous occasions, it would seem, always been done in
US dollars and, having regard to Nedbank’s state of knowledge about this
transaction and Stanchart’s involvement (as previously elaborated), I am of the
view that a loss in dollars was reasonably foreseeable. In oral argument before us
Mr Browde very fairly (and in my opinion very correctly) conceded that, if the Court
was empowered to grant judgment in a foreign currency, he could not advance any
argument that in this case the judgment should not be in the foreign currency
suggested, viz US dollars. I accordingly conclude that the damages to be awarded in
this case should be expressed in US dollars. It is implicit in any order to this effect
that the judgment debt may be satisfied in South Africa by payment in the foreign
currency or by the payment of its equivalent in Rand when paid … . Any other
conversion date could render meaningless the award in the foreign currency.
Contingencies are:
uncertainties or circumstances of life relevant to situations, conditions, illnesses or
accidents and which could have a negative or positive effect on the extent of
damage, as well as influencing the earning capacity and/or life expectancy of the
affected person.47
Therefore, they are uncertain future events that could affect the amount
of damages awarded and so, once courts have calculated compensation
in respect of future losses, they adjust the amounts for contingencies.
Assume, for example, that a plaintiff is injured, is unable to work again,
and claims damages for loss of future earnings. The plaintiff, now 25
years old, would have been expected to work until the age of 65, but
because of the injury, a court calculates that his life expectancy is now
only a further 30 years and that he would be able to work for no more
than a further 20 years. However, these calculations are no more than
educated guesswork, and the plaintiff may end up living and/or working
for longer or for shorter periods. A court then has to make a contingency
adjustment to allow for the possibility that its assumptions in making its
calculations might be wrong. The percentage adjustment that the court
decides upon depends upon what it considers to be fair and reasonable
in the circumstances.
Some academics do not agree with contingency adjustments. For
example, the English writer McGregor 48 regards a court’s insistence upon
reduction for the contingency that the plaintiff dies sooner than expected
as ‘misconceived’ and notes: 49
For there is no more reason to assume that the claimant will die earlier than
expected than to assume that he will outlive his life expectancy, and the eventuality
of earlier decease is already taken into account in the actuarial tables [of the
combined annuity and life expectation variety] themselves.
Nevertheless, our courts have always taken contingencies into

consideration.
Some contingencies may be beneficial to the plaintiff and have the
effect of increasing the amount (‘positive’ contingencies), while others
(‘negative’ contingencies) serve to reduce the amount and to prevent a
plaintiff from benefiting unnecessarily. Therefore, courts may take into
account, for example, the likelihood that the future harm might be more
severe than anticipated, and increase the amount accordingly; or that the
plaintiff’s anticipated harm might not occur, in which event they adjust
the amount downwards. In every instance, courts should always consider
both positive and negative contingencies that might impact on the
amount. However, courts have never made upward adjustments.
Invariably, the amounts are reduced, with positive contingencies merely
affecting the extent of the eventual reduction.
There is no fixed formula for making these adjustments and so courts
decide contingencies on a case-by-case basis according to what they
consider to be fair. Often courts will use actuarial evidence to determine
the likelihood of these contingencies arising and how they should reduce
the amount. However, a court is not bound by such actuarial evidence,
for fairness and reasonableness are normative concepts that cannot be
proven in this way. Ultimately, the decision is in a court’s discretion.
In Minister of Defence v Jackson 50 the Court said:
The contingencies to which regard is to be had in the making of a discount include
such matters as the possibility of an error in the estimation of the plaintiff’s life
expectancy and retirement age; the likelihood of illness, accident or unemployment
which would have occurred in any event, or which may in fact occur, and so affect
the plaintiff’s earning capacity; and the inflation or depreciation of money in the
future. Naturally the amount of any discount depends on the facts of each particular
case. There is no standard rule. The assessment is largely arbitrary.
In addition to those listed in Minister of Defence v Jackson,51 the

following are examples of some other contingencies that courts have
considered:
• That the plaintiff’s life expectancy might be reduced and so he or she
might require future income for a shorter period than expected
• In the case of a widow’s claim for loss of support, the prospect of her
marrying again, or the likelihood that she and her husband might
have divorced had he not died
• The prospect of the plaintiff being unemployed at a future date, due
to, for example, economic recession, or labour unrest
• That the plaintiff’s business might have failed
• The likelihood of other non-fatal accidents.
PAUSE FOR Contingency factors

Courts have considered a widow’s prospect of marrying again as a contingency
REFLECTION
factor that reduces the amount of compensation awarded for loss of support. In
Shield Insurance Co Ltd v Booysen 52 the Court made a 50% reduction for
contingencies in an award for the prospect of the widow remarrying. However,
where an orphaned child claims for loss of support, courts make no adjustment
in respect of the possibility that the child might be adopted in the future.53 Are
these situations not comparable? What policy factors would favour similar or
different treatments in these instances?
In Esterhuizen v Road Accident Fund 54 the Court emphasised that

inasmuch as a contingency provision for a remarriage is not
unconstitutional, courts have to consider that a second marriage may not
necessarily result in financial support. Moreover, there is the possibility
that the second marriage may not last and that the financial support, if
gained may be lost. These issues must also be considered when a
remarriage contingency is determined.55 However, the possible adoption
of an orphan is not considered when assessing loss of support claims; nor
are foster care and child support grants considered when making
contingency adjustments. In Coughlan NO v Road Accident Fund 56 the
Constitutional Court overruled previous decisions 57 and instead held
that foster care and child support grants are unrelated to damages for
loss of support and hence are different in nature from compensation. The
State acts in the role of caregiver when paying grants, but indemnifies the
wrongdoer when paying compensation via the Road Accident Fund.58
34.2.7 Lex Aquilia: Assessment and quantification of

damages for patrimonial harm
A plaintiff must prove that he or she has sustained a recoverable loss,59
whereafter our law of damages recognises the principle of complete
compensation. The purpose of a damages award is to place the plaintiff
in the position that he or she would have been in had the delict not been
committed – nothing more and nothing less. The principle of complete
compensation is tempered by principles such as the rules that relate to
accounting for benefits, and mitigation of loss. We discuss some of these
principles in the following sections.

When one assesses the extent of patrimonial harm, one compares two
positions: one prior to the commission of the delict, and the other
subsequent to this. If the comparison shows that the plaintiff is worse off
after the delict, the difference between these positions represents the
harm that the plaintiff has suffered. Once one has assessed the harm and
its extent, one can begin the process of quantification to place a monetary
value on that difference.
A comparative method called the sum-formula approach is used to
assess harm. This formula was described by the German jurist Mommsen
and involves comparing the actual position in which the victim of the
harmful conduct finds himself or herself after the delict, with the
hypothetical position that the victim would have been in had the delict
not been committed. The name ‘sum-formula’ is derived from the fact
that assessing the harm involves comparing an actual sum of money with
a hypothetical sum of money. When the sum-formula is used to quantify
damages, it is also referred to as the ‘negative interesse’ formula.60 It is
the method of assessing the amount of money required to place the
plaintiff in the position he or she would have been in had the delict not
been committed.
Visser and Potgieter 61 note, however, that:
[a]lthough the sum formula (with its abstract comparative method) is indeed part
of our law of damages, it would seem that in certain instances our courts pay only
lip-service to it and do not actually follow this method.
In addition, the sum-formula has been subject to academic criticism.

Some have argued that it should be abolished and replaced by a concrete
concept of harm in which the actual position of the plaintiff prior to the
delict is compared with the actual position after the delict.62 The negative
difference constitutes the harm suffered by the plaintiff. Santam
Versekeringsmaatskappy Bpk v Byleveldt 63 used this latter method, but
nonetheless, the Supreme Court of Appeal recently confirmed the sum-
formula approach in Transnet Ltd v Sechaba Photoscan (Pty) Ltd: 64
It is now beyond question that damages in delict … are assessed according to the
comparative method. Essentially, that method, in my view, determines the
difference, or, literally, the interesse. The award of delictual damages seeks to
compensate for the difference between the actual position that obtains as a result of
the delict and the hypothetical position that would have obtained had there been no
delict.
Therefore, it seems clear that despite the criticism, our courts remain
committed to the abstract method of assessing harm. Once a court has
assessed the extent of the harm, it can then place a monetary value on
that loss.

We will now show how damages are quantified in specific instances.
Where property is either damaged or destroyed, the point of
departure is the sum-formula or negative interest rule. This is
supplemented by any one of the following tests:
• Diminution in market value: The plaintiff has to prove both the
market value of the property prior to the delict and the market value
of the property after the delict. In Monumental Art Co v Kenston
Pharmacy (Pty) Ltd 65 the Court distinguished between the instances
where property was completely destroyed and where the property
was damaged.66 In the former instance one quantifies the damages
with reference to the market value at the time the property was
destroyed. Where the property is damaged, the measure of the
damages is the difference in the market value before and after the
harm ensued. The onus is on the plaintiff to prove the market value
of the property at the relevant times.
• Reasonable repair costs: This method is easier and more realistic,
because often it is difficult to prove the market value of a damaged
object. This method would not be appropriate where the property
was very badly damaged or destroyed.
In Erasmus v Davis 67 the Court used reasonable repair costs to quantify
the damage to a motor vehicle. In a minority decision, Jansen JA noted 68
that there would be three instances where reasonable repair costs would
not be a good measure:
• Where the cost of repairs is more than the pre-accident market value
of the property: In this instance, the plaintiff would receive too much
• Where the cost of repairs is more than the diminution in value of
property: Once again, the plaintiff would receive too much
• Where the repairs restore the property to its pre-accident condition,
but not to its pre-accident value, simply because of the fact that it has
been involved in an accident: In this instance, the plaintiff would
receive too little compensation.

Where someone is injured as a result of bodily injury, that person may
claim in respect of the following types of patrimonial loss:
• Medical and hospital expenses
• Future medical and hospital expenses
• Rehabilitation costs (if the injury was very serious)
• Psychiatric expenses (if the person was sufficiently traumatised)
• Loss of earnings
• Loss of future earnings (or loss of earning capacity).
The Road Accident Fund’s liability to compensate the victim of a road
accident is limited to instances where the person has suffered ‘serious
injuries’, to be determined by a registered medical practitioner following
a ‘prescribed method’. 69
Road Accident Fund v Duma and Three Related Cases (Health Professions Council of South Africa as
amicus curiae)70
Duma and three others suffered injuries in motor vehicle collisions. The RAF accepted liability, except in
respect of general damages. It contended that the respondents did not suffer ‘serious injuries’ as
required by section 17(1). The RAF argued that:
• The injuries had not been correctly assessed as serious.
• The RAF 4 forms were completed by a ‘health practitioner’, namely an occupational therapist, and
signed by a psychiatrist instead of a ‘medical practitioner’, as required by regulation 3 of the Road
Accident Fund Regulations.
• The respondents failed to undergo a physical examination and that the psychiatrist only signed the
forms after looking at hospital records.
• Pursuant to the RAF’s rejection of the RAF 4 forms, the respondents were supposed to have referred the
dispute to the Health Professions Council within 90 days, whereafter an appeal would have been
instituted. Instead, the respondents proceeded to trial.
The SCA upheld the appeal on the grounds that the respondents had indeed suffered ‘serious injury’ and
that regulation 3 raised a challengeable constitutional issue regarding the assessment of injuries. The
Court accordingly postponed the issue of general damages sine die and gave the respondents 90 days to
refer the dispute to the Health Professions Council for determination.
Brand JA took the opportunity to caution that it is the RAF, not a court that is vested with the power to
decide whether or not the injury to a third party was serious enough to meet the threshold requirement
for an award of general damages.71 Moreover, the fund’s decision to reject the respondents’ RAF 4
forms constitutes an administrative action, which can be reviewed under the Promotion of Administrative
Justice Act 3 of 2000. This means until the decision is set aside by a court on review or overturned in an
internal appeal, it remains valid and binding. The fact that the RAF gives no reasons for its decisions, or
that the reasons given are unpersuasive or not based on proper medical or legal grounds cannot detract
from that principle. Whether the fund’s decisions were right or wrong is of no consequence as they
existed as a fact until set aside, reviewed or overturned in an internal appeal. Therefore, it not open to a
court to disregard the fund’s rejection of the RAF 4 forms on the basis that the reasons given are
insufficient.72
Section 17(4) of the Road Accident Fund Act provides that the fund shall,
in an appropriate case, provide plaintiffs with an undertaking for the
costs of future accommodation in a hospital or nursing home or
treatment of or rendering a service or supplying of goods to him or her
arising out of injuries suffered in a motor vehicle collision. This section
must be read together with section 36 of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (COIDA), which
provides that an employee who suffers occupational injuries in the
course of employment may claim compensation in terms of COIDA and
may also institute action for damages against a third party (such as the
fund). In awarding damages in a third party claim, the court is required to
have regard to the compensation paid to the plaintiff in terms of
COIDA.73

Expenses from personal injury that the plaintiff may have incurred by the
date of the trial include medical and hospital expenses. Damages under
this head will also include the cost of an artificial limb and modifying a
vehicle and home in the case of disability.
As this harm has already materialised by the date of the trial, the
plaintiff can present evidence of these expenses in the form of accounts
or invoices. Furthermore, courts can determine whether the treatment
the plaintiff received was necessary and whether the expenses were
reasonable.
With future expenses, there is usually no clear evidence at the date of
the trial as to the precise extent of the expenses, yet the once-and-for-all
rule requires the plaintiff to claim for future expenses before they actually
materialise. Courts, therefore, have to make an estimate based on the
present costs of treatment and any expert evidence as to the extent of
treatment that the plaintiff may require in the future. In such instances,
the plaintiff does not necessarily have to prove future medical expenses
on a balance of probabilities, but will have to prove that there is a
reasonable possibility that such harm will arise.74 The process of
quantifying such loss involves some degree of speculation. However,
despite the fact that it is difficult to assess this type of loss, courts will
nevertheless make an award of damages, as they rely on expert medical
evidence. When awarding damages for future expenses, courts capitalise
and discount the award to present value.75
Where a dependant is injured and the associated financial loss,
usually medical expenses, is borne by the breadwinner, that breadwinner
may claim in respect of such patrimonial loss.
34.2.7.5 Quantifying the damages: Loss of earnings and

earning capacity
If a person is seriously injured, the injury could result in incapacity to
work, either temporarily or permanently. If, at the date of the trial, the
person has already lost income due to being unable to work, the earnings
lost up to the date of the trial are referred to as loss of earnings, or past
loss of earnings. It is easier to quantify this loss than loss of future
earnings, because courts can easily ascertain the plaintiff’s earnings at
the time of the injury by looking at payslips or obtaining evidence from
the employer. Of course, if the trial takes place some years after the injury
and the plaintiff has been incapacitated for the entire time, this
quantification could become problematic, in that one would then have to
factor in variables such as a promotion that the plaintiff could have had
in the meantime. Courts do not take inflation into account when
calculating past losses.76
One of the disadvantages of the once-and-for-all rule is that damages
for future harm, such as loss of earning capacity, have to be recovered
before they materialise. The uncertainty in predicting the future may lead
to either over or under compensation, and it may be that someone who is
injured to such an extent that he or she will earn less in the future, or be
completely unable to work, will be compensated for what he or she will
not earn in the future.
Southern Insurance Association Ltd v Bailey NO77
The plaintiff was the father of a two-year-old girl who instituted action against the defendant in terms of
the Compulsory Motor Vehicle Insurance Act 56 of 1972, the predecessor of the Road Accident Fund Act.
His daughter had been knocked down by a motor vehicle after which she had an epileptic seizure and fell
into a deep unconscious state, which lasted for a long time. She eventually recovered consciousness and
was released from hospital, but her severe injuries were permanent and she would never be able to work
in the future. Among the damages claimed for was an amount for loss of earning capacity.
Nicholas JA eloquently described the process of quantifying loss of earning capacity:78
Any enquiry into damages for loss of earning capacity is of its nature speculative, because it
involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs or
oracles. All that the Court can do is to make an estimate, which is often a very rough estimate,
of the present value of the loss.
It has open to it two possible approaches.
One is for the Judge to make a round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown.
The other is to try to make an assessment, by way of mathematical calculations, on the basis of
assumptions resting on the evidence. The validity of this approach depends of course upon the
soundness of the assumptions, and these may vary from the strongly probable to the
speculative.
It is manifest that either approach involves guesswork to a greater or lesser extent. But the
Court cannot for this reason adopt a non possumus attitude and make no award … .
In a case where the Court has before it material on which an actuarial calculation can usefully
be made, I do not think that the first approach offers any advantage over the second. On the
contrary, while the result of an actuarial computation may be no more than an ‘informed guess’,
it has the advantage of an attempt to ascertain the value of what was lost on a logical basis;
whereas the trial Judge’s ‘gut feeling’ (to use the words of appellant’s counsel) as to what is fair
and reasonable is nothing more than a blind guess … .
It is true that, in the case of a young child, the assessment of damages for loss of earnings is
speculative in the extreme. Nevertheless I do not think that even in such a case it is wrong in
principle to make an assessment on the basis of actuarial calculations.
In President Insurance Co Ltd v Mathews 79 the Court said:

There is no reason in principle why, in an appropriate case, the cost of employing a
substitute should not form the basis of a claim for damages arising from a plaintiff’s
inability to carry on his pre-collision trade or profession.80
So, a person who will sustain further loss because he or she has to employ
additional, necessary labour in order to substitute certain aspects of
functions which he or she can no longer perform because of the injuries
sustained, is entitled to be compensated for the cost of such substituted
labour on the basis of loss of future earning capacity.81
Raath v Nel82
Raath, an anaesthetist, administered a failed pre-operation intubation procedure on Nel that resulted in
Nel spending more than a month in the intensive care unit of a hospital. His physical and mental
recovery after his discharge was slow and problematic. Nel sued for damages for the loss caused by his
inability to attend to his business affairs as a game farmer and auto dealer; for future medical and
hospital expenses; as well as for general damages. Raath accepted liability and the trial court awarded
damages. The appeal hinged on the specific amounts awarded.
Regarding loss of income and earning capacity, Raath argued that any loss that may have been
suffered was not suffered by the Nel personally, because for estate planning and estate duty
considerations, he had sold all his assets, including his shares and loan account in his business, to a
trust. The issue, therefore, was whether the loss suffered by Nel’s business prior to the sale of assets to
the trust, and by the trust thereafter, over the relevant period could be characterised as Nel’s loss.
The Court held that Nel was not a capital beneficiary of the trust but was, in the discretion of the
trustees, a potential income beneficiary; and noted that this type of trust has become popular for estate
planning and tax purposes.83 It found that a trust estate, comprising an accumulation of assets and
liabilities, is a separate entity, but with no legal personality. The core concept of a trust is the separation
of ownership or control from enjoyment. Applied to the present matter, the separateness of the trust
estate had to be recognised and emphasised. What Nel had sought, in effect, was the advantage of
both a reduction in estate duty and the continued retention of control and advantages of ownership of
the trust assets.84 The appeal in respect of the claim for loss of earning capacity after the date of the
sale of assets to the trust was therefore upheld.
34.2.7.6 Quantifying the damages: Basic method for

calculating loss of future income
Courts have devised a basic method for assessing future losses. However,
before discussing this method, we explain the terminology that is used in
this regard.
TERMINOLOGY Capitalisation
Capitalisation occurs when the income (or loss of support) that the
plaintiff would have earned over a period is reduced to a lump sum to be
paid out immediately. Had the plaintiff not been injured or killed, the
income or support would have been received monthly over a number of
years. In this case, the amounts that the plaintiff would have earned or
received are added together into a lump sum, for example, R100 per
month over five years is capitalised at R6 000.
However, if the plaintiff were to receive R6 000 immediately, in other
words, before the amounts that make up the R6 000 are due, the
plaintiff would benefit unduly by investing that money and earning
interest, so that in the end, the plaintiff gains more than the amount
required to compensate for the actual loss (for example, almost R10
000). So, courts discount the amount to present value, in other words,
they reduce the amount to an amount that, if it were to be invested
immediately, would ultimately yield a total value (lump sum plus interest
earned) equal to the capitalised amount. In that way, the plaintiff does
not benefit at the expense of the defendant. In our example, assuming
an average interest rate of 10% over the five-year period, R3 725,53
invested immediately would ultimately yield R6 000. So, the court would
award the plaintiff damages amounting to R3 725,53.
Courts use a four-step method to determine loss of future income or loss

of earning capacity: 85
1. Courts determine the present value of the income that the plaintiff
would have earned in an uninjured condition during the period that
he or she would have been working. For example, assume that the
plaintiff is 40 years old at the date of the trial and would have retired
at 65. The plaintiff would therefore, but for the delict, have worked for
another 25 years. Based on evidence as to what the earnings were at
the date of the delict, the plaintiff’s likely career path, what the
plaintiff’s promotion prospects were, and the likely inflation rate, a
court has to quantify the plaintiff’s average annual income for those
25 years. A court adds together the average annual income for all the
years to form a capital amount, which it then discounts to present
value. When discounting, a court has to speculate what the interest
rate and the inflation rate are likely to be. Courts often use actuarial
tables and other evidence in the process, but, as can be seen from the
extract from Southern Insurance Association Ltd v Bailey NO,86
courts are not bound by such evidence.
2. Courts now assess the income of the plaintiff in an injured state in
the same way as in the first step. If the plaintiff’s working ability is
unaffected by the injury, then this amount will be the same as in the
first step. If the plaintiff is partially incapacitated, this amount will be
less than in the first step, if the plaintiff is completely incapacitated,
the amount will be zero.
3. Courts then subtract the amount calculated in the second step from
the amount calculated in the first step. This result represents the
plaintiff’s loss.
4. Courts now capitalise the amount calculated in the third step and
adjust it for contingencies.

Where the plaintiff was earning an income from an illegal source, courts
do not compensate for the loss of this income, because it would be
against public policy. In Dhlamini v Protea Assurance Co Ltd 87 the
plaintiff had been earning a living as a hawker prior to the accident. He
did not have a hawker’s licence and the Court held that compensation for
loss of income derived from such a source would be against public policy.
The illegal nature of the earnings impacts far more on claims for past loss
of earnings than on future losses, because courts can frame the latter as
loss of earning capacity. Van der Walt and Midgley write as follows: 88
The impact [of the illegal nature of earnings] on claims for future losses is less
severe. In such instances the criterion is loss of earning capacity which unlike loss
of earnings, cannot be termed ‘illegal’. According to principle, therefore, if the
evidence supporting the plaintiff’s claim for loss of earning capacity is acceptable,
damages ought to be awarded, even if past earnings were illegal. Illegal earnings
can therefore be relied upon as some indication of earning capacity.
This view accords with that of Boberg, who is of the opinion that
compensating loss of earning capacity instead of loss of future earnings
would be a more equitable solution to the problem.
COUNTER Loss of earning capacity

When a person can no longer work, this person has a claim for loss of earning
POINT
capacity. Visser and Potgieter89 write the following in this regard:
The precise theoretical explanation for this type of damage is not

clear, but the best explanation seems to be the existence of a
subjective right to earning capacity as legal object (that is, the ability
to earn money). The legal object in question is closely related to a
person’s bodily integrity, but not identical to it. There is also a view
that the loss under discussion is merely the loss of actual future
earnings without it being necessary to identify a specific patrimonial
asset.
Boberg suggests that the ‘loss of earning capacity’ approach is preferable:90
[I]t is more flexible, and likely to extend compensation to those not

presently utilising their ability to earn money (e.g. the housewife …,
the skilled engineer who preferred his hobby of watch repairing to his
profession …, or the famous doctor who becomes an unpaid medical
missionary …). It should enable an illegal earner … to recover
something for loss of his legitimate earning capacity if it appears that
he may one day have ‘gone straight’. And if the true rationale of
compensation is a loss of earning capacity, the receipt of collateral
benefits is rightly disregarded, for they do nothing to restore that
which was lost.
If one follows Boberg’s approach, one could bypass the difficulty that cases such
as Dhlamini v Protea Assurance Co Ltd 91 raise, where one is unable to claim
compensation for loss of future income, because prior to the delict one has been
earning an income from a ‘morally neutral’ illegal activity, such as the failure to
obtain the necessary licence. The same applies to claims for loss of support in
instances where the deceased was receiving an income from an illegal source.
Heese NO v Road Accident Fund92

The Court held that if it appears from evidence that a claimant’s earning capacity would likely be
rendered worthless by some or other event in the future period covered by the claim, then a court could
properly conclude that a claim of diminution in earning capacity had not been established on a balance
of probability. The future event could, for example, be a lengthy imprisonment. It is a factual question
whether earning capacity can been rendered worthless or diminished in value by such a future event.93
The claimant, a German national, was seriously injured in a motor vehicle collision in South Africa. His
curatrix ad litem, Heese, claimed compensation on his behalf from the Road Accident Fund. The claim
was settled on general damages and medical expenses, the only remaining issue being compensation
for loss of earning capacity. The problem was that, although the claimant was a businessman, his
earnings were made illegally under a massive fraudulent tax-evasion scheme. Not only was he under-
declaring his earnings but he was also inflating his expenses by, for example, deducting fictitious
expenses from his income.
The Court held that the claimant was not entitled to compensation for loss of illegal earnings. It was a
factual question whether the claimant’s earning capacity would have been rendered worthless or
diminished in value by a future event such as imprisonment.94
On grounds of public policy a South African court would not make an award for diminution in earning
capacity if the only way in which the earning capacity could remain productive was through a failure on
the part of the claimant, post-accident, to comply with his or her legal duties to the tax authorities.95

Where a breadwinner is injured or killed, the dependants will suffer
patrimonial loss in the form of loss of support. The claim for loss of
support could include both damages for harm suffered prior to the date
of the trial, and damages for future losses, particularly where the
breadwinner dies or is permanently disabled.
For calculating future loss of support, courts have to make an
assessment based on facts not yet known at the date of the trial. Courts
use a method similar to the one used in loss of future earnings. If the
dependants stand to inherit from the deceased breadwinner, courts will
offset this inheritance against their claim for loss of support.
Where the deceased’s income came from an illegal source, courts
will refuse a claim for loss of support. In Santam Insurance Ltd v
Ferguson,96 the wife of a deceased panel beater instituted a claim for loss
of support. The deceased had practised his trade in contravention of a
municipal ordinance. The Court a quo allowed the claim on the basis of
loss of earning capacity: 97
In my view the Roman-Dutch law has advanced far beyond the principle that the
sins of the fathers are visited upon the next generations. Whereas a plaintiff who
personally has lost ‘illegal’ income may be frowned upon by the Court and non-
suited on that account, non constat that a plaintiff who has lost earning capacity,
i.e. future loss of income, must be frowned upon. He has been injured and, if the
injuries are permanent, his earning capacity is affected. … But it does not follow
that in the future he is necessarily going to carry on his illegal business or activities.
A fortiori his dependants cannot be non-suited for what is their loss after the
deceased’s ‘illegal’ activities have ceased.
To non-suit a widow or child or in the extreme case an unborn child, because the
deceased husband or father was making a living out of the sale of lucerne seed to
unauthorised buyers is, in my opinion, unjust and on principle unsound. The
widow or child may know nothing about the deceased’s activities and, if the
illegality was discovered and stopped, it is obvious that the paterfamilias would
have resorted to some other form of livelihood.
This view supports the opinion of Boberg and others that basing the
claim on the deceased’s loss of earning capacity is a better approach. On
appeal, however, the Court rejected the claim, because of the illegal
nature of the deceased’s income. The Court held that the deceased’s
income was earned illegally and that this had to influence the claim for
loss of support, and that the illegality had to preclude the claim.98

Where someone suffers harm as a result of delictual conduct, that person
is expected to take reasonable steps to limit the loss suffered. This is
known as ‘mitigation of loss’. Should a person incur expenses in
attempting to limit the loss, the person can recover these expenses as part
of the damages award. For example, assume that a plaintiff’s delivery
truck is badly damaged in an accident and that the plaintiff, in addition to
the damage to his truck, will also suffer loss of income as a result of not
being able to make deliveries. The plaintiff could also lose clients who,
during the period that no deliveries are made, may decide to engage the
services of another supplier. To prevent this from happening, the plaintiff
may decide to rent another truck while the damaged truck is being
repaired and claim the expenses as damages.
Courts do not expect a plaintiff to take unusual steps to limit loss.
However, where a plaintiff does take such steps, the plaintiff can recover
compensation for reasonable expenses only. Where a plaintiff does not
take any steps, the plaintiff will not be entitled to recover damages for loss
that could reasonably have been prevented.
The plaintiff does not need to prove that the steps taken were
reasonable. The onus is on the defendant to prove that the plaintiff did
not take reasonable steps to mitigate his or her loss, or that the steps that
the plaintiff did take were unreasonable.
Shrog v Valentine99
The plaintiff’s truck was damaged when he drove into a trench that the defendant had dug. The plaintiff
had been using his truck for his business at the time of the incident. In order to continue with his
business, the plaintiff rented another truck and included the cost of renting this vehicle in his claim for
damages.
The Court held as follows:100
A plaintiff is entitled to claim for loss of income or loss of profits which results from his being
deprived of the use of the vehicle while it is being repaired. Since a party is bound to mitigate
his loss a businessman should normally hire another vehicle in place of the damaged one, and
he may then claim the expense of hiring it.
In that event, however, he does not have to prove that the expense was reasonable, the
reasoning being:
‘… the lost profits owing to the deprivation of the use of a vehicle are not required to
be reasonable. They are the actual profits. Here that loss was avoided by the taking
of steps by the plaintiff to hire a lorry to replace the damaged vehicle. The expense is
an expense for which the defendant is responsible unless he can show that the
action of the plaintiff in hiring a lorry at all, or in hiring a lorry at that cost, was
unreasonable.’
PAUSE FOR Overlapping rules

REFLECTION Sometimes different rules overlap. For example, in Smit v Abrahams 101 the facts
of the case lend themselves equally to applying the vulnerability (egg skull) rule,
the principles of legal causation, and the rule of mitigation of loss. In this case,
the plaintiff’s vehicle had been damaged as a result of the defendant’s conduct.
The plaintiff had used his vehicle in his business as a hawker and could not
afford to buy a new vehicle. Renting a vehicle was also too expensive. He rented
a vehicle from a friend at a low price for a while, but thereafter the friend wanted
his vehicle back, and the plaintiff moved his goods by wheelbarrow. As the
plaintiff could not afford to replace his vehicle, he also suffered considerable loss
of income. The magistrate’s court decided the matter on the mitigation of loss
rule and came to the conclusion that in the circumstances, the plaintiff had
taken reasonable steps to mitigate his loss. The magistrate furthermore took the
plaintiff’s weak financial position into consideration, which prevented him from
replacing the damaged vehicle (egg skull rule). Thirdly, both the Court a quo and
the Supreme Court of Appeal dealt with the matter on the basis of legal
causation, although their approaches differed. The Court a quo held that legal
causation had been established because the harm had been reasonably
foreseeable, while the Supreme Court of Appeal decided the question of legal
causation using the flexible approach.
34.2.8 Germanic remedy: Assessing reparation for

infringements of physical-mental integrity
A plaintiff recovers compensation for negligent infringements of
physical-mental integrity using the Germanic remedy, also known as the
action for pain and suffering. In the case of non-patrimonial loss, it is
very difficult to measure the harm in terms of money. Therefore, the
process of quantification is often speculative, because courts have no
precise guidelines to assist them in arriving at a figure that accurately
reflect this type of harm.
In assessing the amount of damages awarded in claims in terms of the
Germanic action, courts place a monetary value on non-patrimonial loss.
A number of factors will influence the size of the awards, such as the
seriousness of the harm, the age and lifestyle of the plaintiff, and the
duration of the harm suffered. As a general rule courts tend to be
conservative when making awards for non-patrimonial loss. In De Jongh
v Du Pisanie NO 102 the Court said:
I can, however, not agree with the trial court’s point of departure in accordance
which it held that stinginess with compensation for serious injuries does not belong
in a civilised society. Because it is the defendant, and not the society, who pays the
compensation, stinginess on the part of society has nothing to do with the case.
It behoves society equally little to waste the defendant’s money, even if he or she is
legally liable because of his or her negligent conduct. The following dictum of
Holmes J in Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (N) at 287E–F is
therefore appropriate in the present case:
‘[The] Court must take care to see that its award is fair to both sides – it must give just
compensation to the plaintiff, but must not pour our largesse from the horn of plenty at the
defendant’s expense.’
Conservatism in the award of general damages has its origin in the fact that the
defendant also has to be treated fairly, not in the stinginess of society towards the
plaintiff.
Courts take previous awards into consideration, and also the nature of
the injuries in the previous awards. In this regard, the leading case is
Protea Assurance Co Ltd v Lamb: 103
It should be emphasised, however, that this process of comparison does not take
the form of a meticulous examination of awards made in other cases in order to fix
the amount of compensation; nor should the process be allowed so to dominate the
enquiry as to become a fetter upon the Court’s general discretion in such matters.
Comparable cases, when available, should rather be used to afford some guidance,
in a general way, towards assisting the Court in arriving at an award which is not
substantially out of general accord with previous awards in broadly similar cases,
regard being had to all the factors which are considered to be relevant in the
assessment of general damages. At the same time it may be permissible, in an
appropriate case, to test any assessment arrived at upon this basis by reference to
the general pattern of previous awards in cases where the injuries and their
sequelae may have been either more serious or less than those in the case under
consideration.

When a person suffers bodily injuries in addition to the loss in the form of
medical, hospital and other expenses, that person also may endure
physical and psychological pain. This harm is real, and therefore the
person is entitled to some reparation. When assessing the amount of
damages, courts have to consider the degree and duration of the pain
and reach a monetary figure that acknowledges the suffering and repairs
the harm in some way. However, there is no formula that courts can use
to do this and so the result depends on what the court deems fair in the
circumstances.104
Pain and suffering includes psychological harm and mental anguish.
Where psychiatric injury is associated with bodily injury to the plaintiff,
courts assess general damages as part of the assessment for pain and
suffering.105 (Any actual expenses, for example, the cost of psychiatric
treatment and medication, would be claimed under the lex Aquilia.)
However, psychiatric injury might also give rise to a free-standing claim
in the absence of any physical injury, as happened in N v T,106 where a
mother was awarded general damages in respect of stress suffered while
coping with the rape of her daughter.

Courts also award damages for any inability to live one’s life to the full, in
the same way that the person would have been able to prior to the delict.
Administrator-General, South West Africa v Kriel 107 describes this as:
those satisfactions in one’s everyday existence which flow from the blessings of an
unclouded mind, a healthy body, and sound limbs.
The award compensates past and future loss of amenities of life. The
purpose of the award is not to punish the defendant, but to console the
plaintiff and to increase his or her feeling of well-being. The amount of
damages will depend on the circumstances of each case, for example, the
extent of any disability and/or disfigurement; whether the person’s life
expectancy is reduced, and to what extent; the effect on the plaintiff, both
physically and mentally; the person’s lifestyle before and after the delict;
and whether paramedical aids have been included in the assessment of
compensation under the lex Aquilia. (If a person has been given money
for a wheelchair, or an artificial leg, then that would affect the award for
loss of amenities of life, since a person who is mobile is able to enjoy life
better than one who is not.)108
Ngubane v South African Transport Services109
In this bodily injury case, the Court had to guard against duplication of awards. Often, items claimed
under one head of damages can also serve to compensate harm under another head. In this case, the
plaintiff claimed damages after having fallen out of a moving train. He claimed the following:
• Past loss of income
• Loss of earning capacity
• The purchase and use of a motor vehicle (this was necessary to transport him from the rural area where
he lived to receive medical services)
• Future medical expenses and adaptive aids
• The cost of an attendant
• General damages for pain and suffering, loss of amenities of life, and disability.
The Court noted, in making the award for general damages, that it had to guard against awards
overlapping and the plaintiff being overcompensated:110
It remains to consider an appropriate award under this head of damages. The trial Court
considered that R85000 would be fitting. [It was] …, however, submitted that it was excessive
and that the award should be no more than R60000. He correctly pointed out that one must
guard against overlapping and a resultant duplication of awards for general damages and cited
what was said by Hoexter JA in Administrator-General, South West Africa, and Others v Kriel
1988 (3) SA 275 (A) at 286C–D:
‘As pointed out by this Court in Southern Insurance Association Ltd v Bailey NO 1984
(1) SA 98 (A) at 113E–F, where (as here) damages for bodily injuries are awarded
not in a globular amount but under separate heads, a trial Court should guard
against the danger of duplication as a result of an overlapping between separate
awards.’
In the present case, in addition to the paramedical aids, there are other forms of relief provided
for in the award thus far made, which will ameliorate the hardship of the appellant’s disability
and his loss of amenities. These include the use of a motor car for social and what might be
termed ‘non-medical’ purposes. The fact that he is now to live at home with his family and an
attendant, is likewise a compensatory consideration. The trial Court, it should be noted, was
mindful of this danger of duplication when making an assessment of compensation for general
damages under this head.
COUNTER Damage claims of unconscious persons

Should a person who is in an unconscious or vegetative state be able to claim
POINT
damages for pain and suffering? According to Gerke NO v Parity Insurance Co
Ltd,111 the test:
(a) is objective in that something falls to be awarded for what has been called
loss of happiness even in a case where the victim has been reduced to a state in
which he has never realised and will never realise that he has suffered this loss;
(b) is, however, subjective, in the sense that the Court, in fixing quantum, will
have regard to any relevant data about the individual characteristics and
circumstances of the plaintiff which tend to show the extent and degree of the
deprivation; (c) is subjective, also, in the sense that any realisation which the
plaintiff has, or did have or will have, of what he has lost, is most material and
important. This is the true compensable suffering (as distinct from pain) which
will carry far heavier damages than the somewhat artificial and notional award
referred to in (a) above. This suffering will continue only for the expected duration
of his life.
In Reyneke v Mutual and Federal Insurance Co Ltd 112 the Court noted that the
plaintiff must have subjectively experienced the pain, and in Collins v
Administrator, Cape,113 the Court added a further requirement: that the award
must serve some purpose in that the plaintiff must be able to know of and
appreciate the award that is made. So, according to Gerke, an unconscious
plaintiff could at least claim under heading (a). According to Reyneke, a court
will only award damages if the unconscious plaintiff at some stage subjectively
experienced some pain, while the Collins approach, which requires not only a
subjective experience of pain, but also that a plaintiff must be able to enjoy the
award, would result in an unconscious plaintiff receiving no award at all. A fourth
approach, similar to that in Reyneke, holds that unconscious plaintiffs, or those
in a vegetative state, should be treated no differently from other plaintiffs, in that
if pain is experienced, damages should be awarded. See Roberts NO v Northern
Assurance Co Ltd.114
Whether an unconscious plaintiff is entitled to compensation for loss of
amenities of life is similarly not settled. In the Reyneke case, the Court
considered disfigurement, disability and loss of life expectancy to be objective
concepts that lend themselves to a more functional assessment,115 and
awarded damages for loss of amenities of life. However, in the Collins case, the
unconscious plaintiff did not succeed in claiming damages under this head.
Instead, the Court followed the personal-functional approach, which attempts to
provide the plaintiff with an amount of money that is reasonably able to remove
the unhappiness, and since the unconscious plaintiff could not appreciate this,
no damages were awarded.
34.2.9 Actio iniuriarum: Determining the amount that

would provide appropriate satisfaction
Plaintiffs can claim under the actio iniuriarum in instances of intentional
infringement of the right to a person’s bodily integrity, dignity and good
name. This type of harm is non-patrimonial and cannot be measured in
money. The purpose of the award is to provide some relief for the
infringement in the form of monetary satisfaction and to attempt to
assuage the feelings of injustice that the plaintiff may feel. In all instances
courts make the award ex aequo et bono, which means that the award
reflects what a court considers to be fair and just in the circumstances.
34.2.9.1 Assault
An assault infringes a person’s right to bodily integrity and a person can
claim satisfaction for the mere fact that that right has been infringed. In
addition, if one has incurred medical expenses, one can also claim
damages for such patrimonial loss under the lex Aquilia.
When assessing the harm and quantifying the satisfaction, courts
have to consider a number of factors, for example, the nature and
seriousness of the assault, any indignity associated with it, and any
psychological after-effects. Whether the assault was the result of
provocation could also play a role. In Ramakulukusha v Commander,
Venda National Force 116 policemen severely assaulted the plaintiff while
he was detained. In deciding upon the amount of damages, the Court
considered the period over which the assault took place, and the fact that
in this particular case, the assault was serious and also extremely vicious.
The Court considered previous awards, but found that there was no
previous case that it could compare with the present one.

The factors that courts have to consider in sexual abuse cases are similar
to those in assault cases. However, courts consider sexual abuse to be a
particularly serious violation of bodily integrity, coupled with a high
degree of humiliation and prolonged psychological impact.117 There is
constitutional justification for reassessing principles relating to quantum
when a delict strikes the foundational constitutional values of our
society.118 Courts are therefore duty-bound to deal decisively with the
appropriate value to be placed on upon the loss of dignity of a victim.119
Van Zijl v Hoogenhout120
The plaintiff had been subjected to many years of sexual abuse by her uncle. The Court awarded general
damages in the amount of R200000, but this was a lump sum that included damages for pain and
suffering, and those under the actio iniuriarum. The Court considered the serious and prolonged nature of
the abuse when making its award.121

Courts are particularly concerned about protecting individual liberty and
their awards tend to reflect this concern. Other factors that are relevant
when assessing the amount of damages are the plaintiff’s social standing
and reputation, the circumstances of the detention, its length, and its
psychological effects.122
Minister of Safety and Security v Seymour123
This case provides some guidance as to how courts should assess general damages for this type of case
in a constitutional era. Seymour, a 63-year-old man had been unlawfully arrested and imprisoned for a
period of five days, first for a short while at a police station and later, for the bulk of the period, in
hospital. The Supreme Court of Appeal took the view that courts have always given prime regard to the
rights to liberty and dignity, and that earlier cases did not place less value on personal liberty than ought
to be placed today:
The real import of the Constitution has not been to enhance the inherent value of liberty, which
has been constant, albeit that it was systematically undermined, but rather to ensure that those
incursions upon it will not recur.124
The Court also commented that previous awards:

are a useful guide as to what other courts have considered to be appropriate but they have no
higher value than that.125
After reviewing the awards in a number of cases, the Court concluded that Seymour had had free access
to his family and medical adviser throughout his detention at the police station. He suffered no
degradation in excess of that which is generally associated with being arrested and detained. Seymour
had spent only the first 24 hours of his arrest in detention, the remainder of the detention was in a
hospital bed at the Rand Clinic. Conceding that the experience throughout must have been traumatic and
stressful, the Court noted that the continuing depression and anxiety could not be attributed solely to the
arrest and detention, and concluded that an amount of R90000 was appropriate. The Supreme Court of
Appeal’s award was startlingly disparate from that made by the Court a quo (R500000), and serves as a
reminder that in a rights-based society, one should not encourage over-zealous litigation at the expense
of other rights that are no less important.

When infringements of rights fall under the broad dignitas umbrella
(dignity, privacy and identity) the circumstances of each case guide
courts when assessing satisfaction, particularly:
• The social status of the plaintiff, and his or her personality and
exposure to publicity
• The nature and seriousness of the infringement
• The attitude of the defendant at the time (for example, whether there
was malice, or abuse of a personal relationship) and after the event
(for example, whether an apology was tendered)
• The nature and extent of the humiliation and distress that the
plaintiff experienced.126
The Constitutional Court has pronounced on the continued existence of

the delictual action for injury and insult to self-esteem (contumelia) and
loss of comfort and society (consortium) as a result of adultery. The Court
reminded us in DE v RH 127 that the abusive conduct of a non-adulterous
spouse has always been relevant to quantum of damages, although not
necessarily to the question of liability.128
34.2.9.5 Defamation
Where a person’s right to a good name is infringed, the purpose of the
award is to provide some satisfaction. Courts determine the amount by
considering the nature of the words used, the nature and extent of the
publication, the plaintiff’s character, status and reputation, the probable
consequences of the defamation, the subsequent conduct of the
defendant (whether any attempt was made to rectify the harm done, for
example, an apology or a refusal to apologise), as well as comparable
awards and the diminishing value of money.129
• In Pont v Geyser 130 the defendant persisted with defamatory remarks
and repeatedly refused to apologise. In addition, the Court regarded
the extreme nature of the defamation and the perceived malice on
the part of the defendant as aggravating factors. Mitigating factors
included factors such as the truth of the statements, retraction and
apology, absence of malice, and provocation. Interestingly, even
misconduct on the part of the plaintiff can serve as a mitigating
factor.
• In Naylor v Jansen; Jansen v Naylor 131 the plaintiff had been accused
by a fellow employee of misappropriating company funds. The Court
found that there had indeed been defamation, but took into account
the fact that the plaintiff had breached his contract of employment
and acted in conflict with his employer’s interests.132 Although the
plaintiff’s conduct did not amount to misappropriation or theft, the
plaintiff nevertheless had been in breach of his duty of good faith
towards his employer, which also included an element of dishonesty.
While the plaintiff’s conduct did not serve as a factor that justified
the remarks made by the defendant, the Court nevertheless held it to
be a factor that would reduce the damages award.
• In Iyman v Natal Witness Printing & Publishing Co (Pty) Ltd 133 the
plaintiff sued the newspaper because of an allegation that he had
assaulted a person, because this person had not voted for his father
in a local election. The Court found for the plaintiff, but held that a
mitigating factor was that the plaintiff had indeed assaulted the
person, albeit for another reason.134

A retraction and apology may act as mitigating factors when assessing
damages under the actio iniuriarum and reduce the amount of the
award. During the Middle Ages, the amende honorable and amende
profitable were two remedies that were available to the victim of an
iniuria. The amende profitable in effect was the same as the actio
iniuriarum. The amende honorable did not entail claiming money, but
rather retracting defamatory words and issuing an apology. The remedy
was thought to have been abrogated by disuse, and therefore no longer
applicable in South African law.135 For many years it was relegated to the
chapters of delict books that dealt with the historical development of the
actio iniuriarum. In 2002, the remedy reappeared in the case law, but
courts have yet to use it to its full extent.
Mineworkers Investment Co (Pty) Ltd v Modibane136
The plaintiff, a black empowerment company, instituted an action for defamation against the defendant
based, inter alia, on:
• A letter written by the defendant to certain senior persons at Johnnic Holdings, the holding company of
the magazine Financial Mail
• A telephone conversation between the defendant and a strategy manager at BP
• Statements made by the defendant to a journalist from The Star newspaper.
In all these instances, the statements made were to the effect that the plaintiff company had betrayed
the black empowerment cause and was acting for its own gain, or that it was incompetent.
The plaintiff claimed satisfaction, and in addition, claimed an apology and retraction of the offending
words.
The remedy entails that the plaintiff demand the following:

• That the defendant withdraw the defamatory statement
• An admission of guilt as well as an apology.
Willis J held that the amende honorable had in fact merely been forgotten (‘a little treasure lost in a nook
of our legal attic’) and concluded that it was still very much part of our law.137 He was convinced that
even if the remedy had been abrogated by disuse, there were other reasons why an analogous remedy
should be available in our law. There are two reasons why a damages award often does not strike a
balance between freedom of expression and the right to reputation:
• It fails to protect the reputation of the plaintiff
• It can impose restrictions on freedom of expression, because a damages award can potentially ruin a
defendant.
In this regard, the amende honorable or an analogous remedy would be far more effective. It is far less
expensive and potentially far less disastrous to a defendant, and so it will not inhibit freedom of
expression. On the other hand, a public apology can do far more to restore the victim’s reputation and
give him or her a feeling of satisfaction.
The Court then referred to section 173 of the Constitution of the Republic of South Africa, 1996, read
with section 39(2), in terms of which courts are to develop the common law and, when doing so,
promote the ‘spirit, purport and objects of the Bill of Rights’. Willis J went on to say:138
Even if the amende honorable had never existed, the imperatives of our times would have
required its invention. In my view, it is entirely consonant with ‘the spirit, purport and objects’ of
the Bill of Rights in our Constitution that a person who has committed a wrongful act by
defaming another should, in suitable circumstances, be given an opportunity to make an
appropriate public apology in lieu of paying damages; and, no less importantly, that the victim
of a defamation should similarly have the opportunity of having a damaged reputation restored
by the remedy of a public apology. In the circumstances of this particular case, I am satisfied
that it would be just and equitable that the defendant be given a choice between making a
public apology or paying damages.
This decision differs from the decision in Young v Shaikh.139 The plaintiff in that case did not claim an
apology and retraction, instead the defendant offered the apology as a way of avoiding the damages
claim, that is, as a defence. However, because of the serious nature of the defamation, the Court did not
accept the appropriateness of this remedy:140
Even if the ‘little treasure’ can be recovered from a ‘nook in our legal attic’, I do not believe that
a published apology in this matter would serve the interests of justice.
Freedom of expression does not include the right to falsely attack the integrity of a fellow citizen
for selfish reasons or for reasons which have nothing to do with ‘public benefit’.
If the award which I intend to make will have a ‘chilling’ effect on possible future and similarly
baseless and selfish attacks on the integrity of others, it would certainly, in my view, be an
additional reason not to make use of the lost ‘little treasure’.
The Court in Young v Shaikh 141 also left open the question of whether the amende honorable was part
of our law.
Dikoko v Mokhatla142
The plaintiff was the chief executive officer of the Southern District Municipality. The defendant was the
executive mayor. The defendant had far exceeded his monthly cellphone allowance of R300 and had
accumulated an excess of R3200, payment of which was long overdue. The Provincial Auditor-General
had, in letters to the plaintiff, questioned the overdue payment and was not satisfied with an agreement
between the defendant and the council to write off the debt. The Auditor-General called on the defendant
to appear before the North West Provincial Public Accounts Standing Committee to explain this debt. In
the course of his explanation the defendant made a defamatory remark about the plaintiff, for which the
plaintiff sued him for damages.
The High Court awarded damages in the amount of R110000. The defendant appealed to the
Supreme Court of Appeal, which dismissed the appeal without providing reasons. He then resorted to
the Constitutional Court, claiming that the words had been uttered on a privileged occasion on the basis
of section 28 of the Local Government: Municipal Structures Act 117 of 1998, and section 3 of the
North West Municipal Structures Act 3 of 2000. The Constitutional Court dismissed the appeal.
The separate judgment of Sachs J is particularly significant in that it juxtaposes the African value of
ubuntu with the amende honorable. Sachs J was of the opinion that the actio iniuriarum is not always a
satisfactory remedy:143
The notion that the value of a person’s reputation has to be expressed in Rands in fact carries
the risk of undermining the very thing the law is seeking to vindicate, namely the intangible,
sociallyconstructed and intensely meaningful good name of the injured person. The specific
nature of the injury at issue requires a sensitive judicial response that goes beyond the ordinary
alertness that courts should be expected to display to encourage settlement between litigants.
As the law is currently applied, defamation proceedings tend to unfold in a way that
exacerbates the ruptured relationship between the parties, driving them further apart rather
than bringing them closer together. For the one to win, the other must lose, the scorecard being
measured in a surplus of Rands for the victor.
Both Mokgoro J and Sachs J believed that in this regard, the amende honorable could provide a more
meaningful solution in that it could more effectively restore the plaintiff’s reputation, and at the same
time also effect some type of reconciliation between the parties. The Justices believed that the amende
honorable accorded well with the African notion of ubuntu, which is one of the values that underlie our
Constitution. In this regard, Mokgoro J said:144
A remedy based on the idea of ubuntu or botho could go much further in restoring human
dignity than an imposed monetary award in which the size of the victory is measured by the
quantum ordered and the parties are further estranged rather than brought together by the legal
process … .
The focus on monetary compensation diverts attention from two considerations that should be
basic to defamation law. The first is that the reparation sought is essentially for injury to one’s
honour, dignity and reputation, and not to one’s pocket. The second is that courts should
attempt, wherever feasible, to re-establish a dignified and respectful relationship between the
parties. Because an apology serves to recognise the human dignity of the plaintiff, thus
acknowledging, in the true sense of ubuntu, his or her inner humanity, the resultant harmony
would serve the good of both the plaintiff and the defendant. Whether the amende honorable is
part of our law or not, our law in this area should be developed in the light of the values of
ubuntu emphasising restorative rather than retributive justice. The goal should be to knit
together shattered relationships in the community and encourage across-the-board respect for
the basic norms of human and social interdependence. It is an area where courts should be
pro-active in encouraging apology and mutual understanding wherever possible.
Although Sachs J and Mokgoro J supported the remedy, their remarks in this regard were obiter, as the
case in fact dealt with issues of quantum.
In 2011, the remedy appeared again, this time in the Constitutional

Court.
Le Roux v Dey145
Two schoolboys published a digitally-modified image in which the faces of the deputy principal (Dr Dey)
and the principal of their school were superimposed on an image of two naked male bodybuilders sitting
in what the Court referred to as ‘a sexually suggestive posture’. The genitals of the two men in the image
were covered by the school’s crest. Dr Dey instituted action for damages claiming that the images were
defamatory and in the alternative, that his constitutional right to have his dignity respected and protected
had been violated. The Constitutional Court was heavily divided, but the majority held that the
publication of the image constituted defamation. The Court ordered the boys to apologise to Dr Dey and
also ordered them to pay a sum of money in damages as compensation.
Froneman J and Cameron J in a minority judgment outline the purpose of an apology and its role in
assessing damages. They moreover highlight the importance of developing the law insofar as this
remedy is concerned because it reflects restorative justice as one of its principal values. The judges note
that common-law and customary-law principles have to be brought in line with constitutional values and
norms.146
34.4 Interdict
An interdict is a court order by which means a plaintiff can prevent
conduct that causes harm, or prevent a continuation of harmful conduct
that has already commenced. Interdicts are either mandatory or
prohibitory. A mandatory interdict requires a positive action from the
wrongdoer, for example, to destroy a consignment of fake goods sold
under a well-known brand name. A prohibitory interdict requires the
wrongdoer to desist from wrongful conduct or from continuing wrongful
conduct, for example, a person can obtain a prohibitory interdict against
a newspaper to stop it from printing a potentially defamatory article, or to
stop it continuing with a particular story.
One can also classify interdicts as either final or temporary. In a final
interdict, a court places a permanent ban on the threatened conduct. In a
temporary interdict, a court prohibits the threatened conduct pending
the outcome of another hearing. For example, if a newspaper wishes to
print a story exposing a well-known politician, the politician may go to
court to obtain a temporary interdict. If the application is successful, the
publication will be interdicted until the date of the hearing, on which day
a court will either set aside the interdict, and the newspaper can print the
story, or make a final order, in which case the interdict stands and the
newspaper will not be able to print or continue with the story.
The requirements for an interdict are straightforward: (a) a clear
right, (b) an actual or threatened infringement of a right, and (c) the
absence of another suitable remedy.
Hotz v University of Cape Town147
Students allegedly caused extensive damage to University of Cape Town (UCT) property during the course
of a protest. Alleged threats of further damage led UCT to apply for an interdict preventing five students
from protesting within the university premises. The High Court a final interdict against the five students,
which the Supreme Court of Appeal confirmed. UCT had demonstrated:
• A clear right
• An injury actually committed or reasonably apprehended
• The absence of similar protection by any other ordinary remedy.148
The SCA however highlighted that although the right to protest against injustice is protected under the
Constitution, the manner in which the right is exercised is also subject to constitutional norms.
Destroying, damaging or defacing property during the course of a protest is unlawful conduct. This also
applies to actions that have the effect of interfering with the rights of others.149
If one adapts these requirements for an interdict to a delictual context,

the requirements read: 150
1. Conduct on the part of the respondent: This conduct may be either a
positive act or an omission. The conduct must have commenced or
be threatening.
2. The conduct will cause or threaten to cause irreparable harm: The
applicant has to prove that the respondent’s conduct threatens to
infringe or is actually infringing a so-called ‘clear right’. This ‘clear
right’ involves a recognised subjective right. However, in the absence
of such a right, an interdict can also lie in the case of non-compliance
with a legal duty, for example, in the case of pure economic loss.151
3. The causing of harm must be wrongful: This requirement links with
the previous requirement of infringement (actual or threatened) of a
clear right. One applies the usual test for wrongfulness in this
instance.
4. There is no other remedy available to the applicant.
It is not necessary to prove fault on the part of the respondent, because in

this instance, harm has not yet occurred. The purpose of the interdict is
usually to prevent harm, not to redistribute loss that has already
occurred. So, the cornerstone for redistribution, which is fault, is not an
essential requirement.
RM v RB152
This case concerned an application for an interdict restraining the respondent from posting defamatory
postings about the applicant on her Facebook page. The applicant requested the Court to order the
respondent to:
• Remove the messages from her Facebook page
• Refrain from posting further defamatory statements about him on her Facebook
• Refrain from publishing defamatory statements about him in any other way.
The Court noted that some future defamatory statements about the applicant would not be actionable if
the contents were true and in the public interest. Restraining the respondent from posting on Facebook
would in such instances unduly limit the respondent’s right to freedom of expression. However, if the
respondent were to make derogatory or defamatory statements about him in future, then the applicant
would be entitled to approach a court for relief in the form of an interdict or sue for damages.153
Accordingly, an interdict was not granted – although the Court did not expressly say so, for want of
proof that the future conduct would be wrongful.
After a court has calculated the amount of damages relevant in a

particular case, it needs to consider one further aspect, which is whether
a particular defendant should be solely responsible, or whether the
responsibility for carrying the burden should be shared with someone
else – the plaintiff or another person. We discuss the principles that apply
to reduction and apportionment of damages in the next chapter.
34.5 Conclusion
• When a person suffers harm as a result of a delict committed by
another, that person is entitled to a remedy depending on the nature
of the harm suffered.
• The remedies include an action for damages, an interdict, and an
apology.
• The three most important actions in South African law are the actio
legis Aquiliae (for patrimonial loss), the actio iniuriarum, and the
Germanic action (for non-patrimonial loss).
• Each of these actions has its own purpose. The purpose of the actio
legis Aquiliae is complete compensation, that of the actio iniuriarum
is satisfaction, and in the case of the Germanic action, the purpose is
reparation. In the latter two instances, complete compensation is not
possible, because it is difficult to quantify non-patrimonial loss.
• The once-and-for-all rule means that a person has to claim all loss
suffered as a result of a delict (insofar as it is based on a single cause
of action) in one lawsuit. This means that the plaintiff has to claim
damages for past and future losses in a single lawsuit.
• In the case of future losses (future loss of support, future medical
expenses and loss of earning capacity), courts have to make an
educated guess to ascertain the exact harm that the plaintiff will
suffer in the future and then they have to quantify that harm into an
award of damages by considering various factors such as inflation,
interest rates and contingencies.
• As a result of a delict a person may, in addition to suffering harm,
also receive certain benefits, such as insurance payouts. The
question that arises in this regard is which of these benefits do courts
need to deduct from the damages claim to prevent the plaintiff from
being over-compensated, but on the other hand, to not let the
defendant escape his or her responsibility to compensate the
plaintiff for the harm caused.
• The action used by the plaintiff and the rules that apply for
quantifying the damages award depend on the nature of the loss. In
the case of patrimonial loss, the lex Aquilia applies, while in the case
of non-patrimonial loss, the plaintiff will use either the actio
iniuriarum or the Germanic action, depending on whether the harm
was the result of an iniuria or a negligent infringement of the
physical-mental integrity.
• Each of these actions is subject to the general rules, such as the once-
and-for-all rule and the rule that relates to accounting for benefits. In
addition, there are specific guidelines that our courts have laid down
regarding the quantification of damages for specific types of loss,
such as damage to property; harm that results from personal injury
(in the case of the lex Aquilia); losses that result from infringement of
the body, reputation and dignity (in the case of the actio iniuriarum);
and pain and suffering and loss of amenities of life (in the case of the
Germanic action).
• In the case of defamation, the aggrieved party may also approach a
court to demand an apology from the wrongdoer.
1 [2014] 3 All SA 306 (SCA).

2 Para 42.
3 1991 (4) SA 23 (ZS).
4 Mutual & Federal Insurance Co Ltd v Swanepoel 1988 (2) SA 1 (A) at 10–11.
7 P.T.S., Inc., No. D-202 CV-93-02419, 1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. Aug.
18, 1994).
8 [2001] UKHL 29; [2002] 2 AC 122; [2001] 3 All ER 193.
9 1997 (3) SA 786 (CC) para 62.
10 Visser and Potgieter Visser and Potgieter’s Law of Damages 2 ed (2003) at 190.
12 Para 192.
13 1997 (3) SA 786 (CC).
14 Paras 70–72.
15 Refer to para 65 of the judgment and also to Van der Walt and Midgley (2016) paras 4 and
192.
16 Para 62.
17 The condictio furtiva is available where, for example, a person withdraws the thing from
another’s possession or takes and uses it while intending to restore possession after use. The
remedy entitles the owner or possessor to claim the highest value of the thing between the
time it was stolen and litis contestatio.
18 Chetty v Italtile Ceramics Ltd 2013 (3) SA 374 (SCA) para 10.
19 2013 (3) SA 374 (SCA).
20 1980 (2) SA 814 (A). The meaning of ‘cause of action’ was confirmed in Duet and Magnum
Financial Services CC (In liquidation) v Koster 2010 (4) SA 499 (SCA) para 23.
21 At 838–839.
22 1980 (2) SA 814 (A).
23 See Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A).
24 1967 (4) SA 188 (D).
25 1991 (3) SA 250 (D).
26 At 253H et seq.
27 1966 (3) SA 317 (A).
28 1973 (2) SA 146 (A).
29 1997 (1) SA 33 (A).
30 At 41C–H.
31 At 42A–B.
32 See Neethling and Potgieter (2015) at 239–240 for a comprehensive list.
33 See Neethling and Potgieter (2015) at 241–242 for a comprehensive list.
34 The Road Accident Fund v N F Timis (29/09) [2010] ZASCA 30 (26 March 2010). See also
Mukheibir ‘Road Accident Fund v Timis – Child Support Grants Not Res Inter Alios Acta’
(2011) 128(2) SALJ at 246.
35 See Mukheibir ‘Comparing the Casuistry of Compensating Advantages and Collateral
Sources’ (2002) 23 Obiter at 328.
36 Visser and Potgieter (2003) at 83.
37 1987 (3) SA 577 (A).
38 At 612G–613D (our translation).
39 1991 (4) SA 23 (ZS).
40 [1955] 3 All ER 796 (HL).
41 1990 (4) SA 833 (A).
42 1989 (2) SA 173 (C).
43 1987 (3) SA 577 (A); 1990 (4) SA 833 (A) at 839F–G.
44 2013 (5) SA 356 (GSJ). See also Sil v Road Accident Fund 2013 (3) SA 402 (GSJ).
45 1994 (4) SA 747 (A).
46 At 776–777.
48 McGregor McGregor on Damages 17 ed (2003) para 35.107.
49 McGregor (2003) para 35.107.
50 1991 (4) SA 23 (ZS) at 34F–G.
51 1991 (4) SA 23 (ZS).
52 1979 (3) SA 953 (A).
53 Constantia Versekeringsmaatskappy Bpk v Victor NO 1986 (1) SA 601 (A).
54 2017 (4) SA 461 (GP).
55 Para 13.
56 2015 (4) SA 1 (CC).
57 Makhuvela v Road Accident Fund 2010 (1) SA 29 (GSJ) and Road Accident Fund v Timis
(29/09) [2010] ZASCA 30 (26 March 2010).
58 Para 57.
59 Hentiq 1320 (Pty) Ltd v Mediterranean Shipping Co 2012 (6) SA 88 (SCA).
60 The ‘positive interesse’ formula is used when damages for breach of contract are assessed.
62 For detailed criticism of this rule see Visser and Potgieter (2003) at 69–73.
63 1973 (2) SA 146 (A) at 150.
64 2005 (1) SA 299 (SCA) para 15.
65 1976 (2) SA 111 (C).
66 At 118G–H.
67 1969 (2) SA 1 (A).
68 At 18E–G.
69 This is contemplated in section 17(1A) of the Act. The Road Accident Fund Amendment Act
19 of 2005 introduced this amendment which took effect on 1 August 2008. The prescribed
method is found in regulation 3 of the Road Accident Fund Regulations of 2008, which
requires the third party to submit to an assessment by a medical practitioner.
70 [2013] 1 All SA 543 (SCA).
71 Para 19.
72 Para 19.
73 See Paterson NO v Road Accident Fund 2013 (2) SA 455 (ECP) paras 11–12.
75 See section 34.2.7.6 below for the meaning of these terms.
76 See section 34.2.6.4 above.
77 1984 (1) SA 98 (A).
78 At 113–114.
79 1992 (1) SA 1 (A).
80 1992 (1) SA 1 (A) at 5E–G.
81 Terblanche v Minister of Safety and Security 2016 (2) SA 109 (SCA).
82 [2012] 4 All SA 26 (SCA).
83 Para 14.
84 Paras 13–14.
85 Visser and Potgieter (2003) at 409–410.
86 1984 (1) SA 98 (A).
87 1974 (4) SA 906 (A).
88 Para 199.
89 At 407.
91 1974 (4) SA 906 (A).
92 2014 (1) SA 357 (WCC).
93 Para 42.
94 Para 42.
95 Para 44.
96 1985 (4) SA 843 (A).
97 Ferguson v Santam Insurance Ltd 1985 (1) SA 207 (C) at 208G–209A.
98 Santam Insurance Ltd v Ferguson 1985 (4) SA 843 (A) at 851D–G.
99 1949 (3) SA 1228 (T).
100 At 1237–1238.
101 1994 (4) SA 1 (A).
102 [2004] 2 All SA 565 (SCA) paras 60–61 (our translation).
103 1971 (1) SA 530 (A) at 535–536.
104 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.
105 Gibson v Berkowitz 1996 (4) SA 1029 (W) at 1057; Van Zijl v Hoogenhout 2005 (2) SA 93
(SCA).
106 1994 (1) SA 862 (C).
107 1988 (3) SA 275 (A).
108 Administrator-General, South West Africa v Kriel 1988 (3) SA 275 (A) at 286–289.
109 1991 (1) SA 756 (A).
110 At 786A–E.
111 1966 (3) SA 484 (W) at 494F–H.
112 1991 (3) SA 412 (W).
113 1995 (4) SA 73 (C).
114 1964 (4) SA 531 (D).
115 Reyneke v Mutual and Federal Insurance Co Ltd 1991 (3) SA 412 (W) at 425–426.
116 1989 (2) SA 813 (V).
117 M v N 1981 (1) SA 136 (TkS).
118 Bridgman NO v Witzenberg Municipality (JL and Another as third parties) [2017] 1 All SA 466
(WCC) para 218.
119 Bridgman NO v Witzenberg Municipality (JL and Another as third parties) [2017] 1 All SA 466
(WCC) para 223.
120 2005 (2) SA 93 (SCA).
121 Paras 13–16.
122 Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (V); Thandani v
Minister of Law and Order 1991 (1) SA 702 (E); Mthimkhulu v Minister of Law and Order
1993 (3) SA 432 (E).
123 2006 (6) SA 320 (SCA).
124 Para 14.
125 Para 17.
126 Brenner v Botha 1956 (3) SA 257 (T); Kidson v SA Associated Newspapers Ltd 1957 (3) SA 461
(W); Bennett v Minister of Police 1980 (3) SA 24 (C); Ramakulukusha v Commander, Venda
National Force 1989 (2) SA 813 (V); Jansen van Vuuren v Kruger 1993 (4) SA 842 (A).
127 DE v RH 2015 (5) SA 83 (CC).
128 Para 55.
129 Muller v SA Associated Newspapers Ltd 1972 (2) SA 589 (C) at 595A; Smith v Die Republikein
(Edms) Bpk 1989 (3) SA 872 (SWA); Afrika v Metzler 1997 (4) SA 531 (NM).
130 1968 (2) SA 545 (A).
131 [2005] 4 All SA 26 (C).
133 1991 (4) SA 677 (N).
134 At 687A.
135 Hare v White (1865) 1 Roscoe 246 at 247.
136 2002 (6) SA 512 (W).
137 Para 24.
138 Para 28.
139 2004 (3) SA 46 (C).
140 At 57E–F.
141 2004 (3) SA 46 (C).
142 2006 (6) SA 235 (CC).
143 Para 111.
145 2011 (3) SA 274 (CC).
146 Paras 197–202.
147 [2016] 4 All SA 723 (SCA).
149 Paras 62–64.
151 Neethling, and Potgieter (2015) at 269.
152 2015 (1) SA 270 (KZP).
153 Paras 27–28.
Chapter 35
Reduction and apportionment of

damages
35.1 Introduction
35.2 Apportionment between plaintiff and defendant: Contributory fault

35.2.2.1 Approach 1
35.2.2.2 Approach 2
35.2.2.3 Approach 3
35.2.2.4 Approach 4

35.3.2 Spouses
35.4 Apportionment between more than one plaintiff and more than one defendant
35.5 Conclusion
35.1 Introduction
Where a defendant has committed a delict, but another person did
something that contributed to the plaintiff’s harm, then the defendant
can claim that the amount required to compensate the plaintiff should be
shared between those that contributed to the harm. So, once a court has
determined and quantified the damages, the question that arises is
whether one person (the defendant) should bear the full loss or whether
others (the plaintiff or other defendants) should share the burden. The
co-contributors could be any of the following:
• The plaintiff: In such an instance a court reduces the amount of
damages it awards to the plaintiff. This situation involves
contributory fault.
• Another defendant: In such an instance the defendants share
liability for the damages. This is a case of joint wrongdoers.
• The plaintiff(s) and two or more defendants: In this instance a court
reduces the amount it awards to the plaintiff(s). The defendants
share liability for the damages. This is a combination of contributory
fault and joint wrongdoer situations.
In each instance, a court apportions the damages so that the person who
committed the delict pays less than the full amount of compensation.
Courts use the extent of each party’s fault as the criterion to determine
how to apportion the damages. After determining that there is a
connection between the other party’s conduct and the plaintiff’s harm, a
court will look at the extent of the parties’ fault and determine, in fairness
to all concerned, to what extent the parties should share the
compensation amount.
Contributory fault used to be a complete defence against liability and
where the plaintiff was partially responsible for the harm, the defendant
could escape liability entirely. This is no longer the case and contributory
fault does not negate the delict. It is now simply a device that courts use
for determining the extent to which compensation should be shared,
after they have determined that a delict exists.
Both the reduction of the award of damages due to the plaintiff’s
contributory fault and the sharing of responsibility for the compensation
of harm between joint wrongdoers, are governed by statutory rules, and
not the common law.
35.2 Apportionment between plaintiff and defendant:

Contributory fault
The apportionment of damages between plaintiff and defendant is
governed by the Apportionment of Damages Act 34 of 1956.

Where a defendant has committed a delict and a court can link the
plaintiff’s conduct to the harm that resulted, a court may reduce the
amount of compensation that the defendant will ultimately pay after
considering the plaintiff’s fault. Section 1(1)(a) of the Apportionment of
Damages Act governs the reduction in the amount of damages:
Where any person suffers damage which is caused partly by his own fault and partly
by the fault of any other person, a claim in respect of that damage shall not be
defeated by reason of the fault of the claimant but the damages recoverable in
respect thereof shall be reduced by the court to such extent as the court may deem
just and equitable having regard to the degree in which the claimant was at fault in
relation to the damage.
This section raises a number of issues:

• Apportionment is in respect of a plaintiff’s own fault, not that of
another.
• The fact that a claim ‘shall not be defeated’ means that contributory
fault is not a defence. The defendant can use the plaintiff’s
contributory fault only to claim a reduction in the amount of
damages, and not to escape liability completely.
• The reduction of damages is at a court’s discretion. A court reduces
damages in accordance with what it decides is ‘just and equitable’,
that is, what it regards as fair and reasonable in the circumstances.
• ‘Fault in relation to damage’ implies that there must be causal link
between the plaintiff’s conduct and the harm, and that the plaintiff
must bear some of the blame for the result. Note that the link is not
to the event that caused the harm, but to the harm itself. So, the
defendant might have caused the accident, and the plaintiff’s
negligent conduct could be something that bore no relation to the
accident, yet the plaintiff’s conduct nonetheless contributed to the
plaintiff’s harm. Failing to wear a seat belt that results in head
injuries, is a classic example, as are the facts in King NO v Pearl
Insurance Co Ltd,1 where the passenger failed to wear a crash helmet
and suffered severe head injuries when the scooter she was travelling
on collided with a motor vehicle. The defendant succeeded in
claiming a reduction in damages on the basis that the plaintiff had
contributed to her harm by not wearing a helmet.
Road Accident Fund v Myhill NO2
A mother and her two young children had been injured in a motor vehicle collision. Her attorney lodged a
claim with the Road Accident Fund (RAF). The mother was not awarded any compensation for her own
injuries, but the RAF offered to settle in respect of the children’s injuries. The Fund then deducted 30%
from that amount for the mother’s alleged contributory negligence. Years later a curator appointed to
represent the minors applied to set aside the settlement on the grounds that the amount of damages
awarded was inadequate and moreover, set-off of the claims for a debt owed by the parent was not
allowed in law.
The Court set aside the settlement agreement and furthermore held that for set-off to operate
between two parties the general principle is that there should be reciprocal indebtedness. If both debts
were equal, this would lead to their mutual discharge; if they were not equal, the larger would be
reduced by the amount of the smaller. Accordingly, it was impermissible to reduce the RAF’s liability to
the minors by way of setting off the alleged personal liability of their mother against the children’s
claims.3
This matter was decided by applying principles of contract. Could the same result have been achieved
by applying section 1(1)(a) of the Apportionment of Damages Act?

A trial court enjoys a wide discretion to award what it considers to be fair
and adequate compensation to an injured party and this applies equally
to the way in which damages are apportioned. A court of appeal will
interfere only where there is a striking disparity between what the trial
court has awarded and what this court considers ought to have been
awarded.4
Over the years, courts have applied different approaches to reduce
the harm in cases of contributory fault. We discuss these approaches in
the next sections.
35.2.2.1 Approach 1
According to the method adopted in South British Insurance Co Ltd v
Smith 5 and AA Mutual Insurance Association Ltd v Nomeka,6 the degree
of fault attributed to the defendant depends on the plaintiff’s degree of
negligence. Thus, if a court finds that the plaintiff was 30% negligent, it
will regard the defendant as 70% negligent. Note that the respective
degrees of fault of the plaintiff and defendant will add up to 100. So, if the
total amount of damages (after reduction for contingencies) is R100 000,
the plaintiff will only receive R70 000. The plaintiff would have to bear the
loss in respect of the balance.
35.2.2.2 Approach 2
According to the method adopted in Jones, NO v Santam Bpk,7 the degree
of fault that a court attributes to the defendant does not depend on the
degree of fault attributed to the plaintiff. In Jones, NO the Court held that
it had to establish the ‘respective degrees of negligence’ of the parties. To
do this, a court measures each party’s conduct independently against
that of the hypothetical reasonable person (which is 100%) and assesses
the extent to which each party has deviated from that norm. So, for
example, if a court finds that the plaintiff’s conduct deviated 30% from
the reasonable-person standard, it does not automatically follow that the
degree of the defendant’s deviation will be 70%. Instead, a court will then
also compare the defendant’s conduct to the hypothetical standard and
measure the deviation independently from that of the plaintiff. The ratio
between the respective deviations will then establish the formula for
calculating the reduction in compensation. Assume that a court finds
that the conduct of a plaintiff deviated by 30% from the norm and that of
a defendant by 50%. The ratio of the two deviations is 30:50, or simplified,
3:5. Therefore, the plaintiff’s degree of fault is ⅜ and the defendant’s is ⅝
of the total amount of damages that was calculated. The percentage fault
attributed to the defendant is ⅝ × 100 = 62,5%, and if the total amount of
damages is R100 000, the plaintiff will receive R62 500.
35.2.2.3 Approach 3
In General Accident Versekeringsmaatskappy SA Bpk v Uijs NO 8 the
Court held that section 1(1)(a) does not regard the plaintiff’s degree of
fault as the deciding factor and that courts should also consider other
factors. In this case, Van Huyssteen had been severely injured in a
collision. The driver of the vehicle, Stander, had caused the accident, but
the plaintiff, a passenger, had not fastened his seatbelt and as a result his
injuries were far more serious than what they would have been had he
done so. The defendant wanted the plaintiff’s claim to be reduced by
50%. The Court held: 9
Section 1(1)(a) however does not provide that a plaintiff’s damages has to be
reduced in relation to his fault, but to the degree which, taking the extent of the
plaintiff’s fault into consideration, it will be fair and equitable. And in a case such as
the present fairness and equity require that one considers the fact that the plaintiff
in no way contributed to the collision and that his fault was of a different nature
than that of (the driver).
The Court compared the degree of the plaintiff’s fault with that of the
defendant, and held them to be equally negligent. However, it did not
reduce the damages by 50%. The Court considered other factors and
reduced the damages by 33% instead.
35.2.2.4 Approach 4
If one scans the law reports there are many instances in which courts
apportion damages without having regard to any of the three approaches
mentioned above. In most of the cases courts simply stipulate a
percentage by which they will reduce the damages – a gut feeling, as it
were, without any comparative analysis or any reasons. Courts tend to
assess contributory fault according to what they consider to be fair in
particular instances, and the more technical approaches are reserved for
problematic cases.
COUNTER Apportioning damages

POINT According to Van der Walt and Midgley,10 none of the approaches referred to
previously is correct, because in each one, courts compare the degrees of
negligence of the plaintiff and the defendant. They argue that section 1(1)(a)
does not stipulate such a comparison, and that courts should make any
reduction according to what is fair and reasonable, with regard to the plaintiff’s
fault alone. The fourth approach is similarly incorrect because the determinations
make no reference to the plaintiff’s fault.
• Are courts correct in following a comparative approach?
• Should the extent of the defendant’s fault be a relevant factor in deciding
what is just and equitable?
• Which of the above approaches conforms closest to the Act’s
requirements, and why?
Section 17(4)(c) of the Road Accident Fund Act 56 of 1996 places a

limitation (‘a cap’) on the amount of compensation payable in claims for
loss of income. The cap applies to the actual loss that the plaintiff has
suffered.11 The purpose of this cap is not to interfere with the traditional
way of calculating damages, but instead to limit the sum to be paid by the
defendant. At issue in Nel v Road Accident Fund 12 was whether the
apportionment of liability regarding the merits had to be deducted before
or after the application of the limit. The Court confirmed that, regardless
of what the plaintiff’s actual loss might be, the cap guarantees that the
defendant will not pay more than the limit. This case confirms that the
statutory limit on compensation was introduced primarily for policy
reasons of a budgetary nature.13

The Apportionment of Damages Act uses the term ‘contributory
negligence’, as do courts. The question is whether the term ‘fault’ in the
Act refers to negligence only, or whether it also includes intent. In
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank
Ltd t/a Volkskas Bank 14 the Court held that ‘fault’ includes intent and
that section 1(1)(a) of the Act applies where both the plaintiff and the
defendant have acted intentionally in causing the harm:15
In my view the word ‘fault’ and its Afrikaans counterpart ‘skuld’ clearly include
dolus … . It should be noted that I have to do with a situation of dolus on both sides
since both the plaintiff’s servant, Mr Thoms, and the defendant’s Mrs Van der Walt
intentionally caused the harm which befell the plaintiff. Thus I do not have to
consider the case where the plaintiff’s fault may be negligence and that of the
defendant dolus, or where the plaintiff has dolus and the defendant is merely
negligent … . Where there is dolus on both sides there appears to me to be no
reason not to give effect to the ordinary meaning of the words ‘fault’ and ‘skuld’.
Nevertheless, the majority of court decisions only refer to negligence. In

its report on apportionment of damages, the South African Law
Commission believes that fault should include both intent and
negligence.16
PAUSE FOR Contributory fault

Courts have little difficulty in apportioning cases where both parties are negligent,
REFLECTION
and presumably if both parties acted intentionally the situation would be no
different. However, how should a court assess contributory fault where the fault
of the parties is not the same? Could any of the approaches we have described
so far satisfactorily be applied?

In Jones, NO v Santam Bpk,17 a case dealing with a child’s contributory
fault, the Court determined that it had to establish each party’s degree of
negligence independently. In this case, the plaintiff was a nine-year-old
girl who had been struck by a motor vehicle. The defendant claimed
contributory fault on the part of the child. The Court held that it had to
determine her degree of fault objectively:
[T]he degree of … fault had to be determined on the same basis as if the child were
an adult. That was so because any proper requirement of subjectivity on account of
his youth in relation to his negligence was satisfied in the enquiry as to whether he
was culpae capax. The ascertainment of the degree in which either party in an
action such as this was at fault in relation to the damage is purely an objective
enquiry related to the extent to which each has been shown to have deviated, as set
out above, from the standard of the bonus paterfamilias.
Therefore, the Court did not consider the fact that the plaintiff was a child
in reducing her damages.
In Weber v Santam Versekeringsmaatskappy Bpk 18 the Court found
that the decision in Jones was unduly harsh towards children. The Court
said: 19
If it is found that a defendant has been negligent, but that the child plaintiff was
accountable and also acted negligently, the question arises as to what the degree of
negligence of the child was. Where the defendant ought to have realised that he was
dealing with the careless conduct of a child and that his negligence consisted
therein that he inter alia did not take this into consideration, it follows that his
degree of negligence ought to be higher than that of the child, otherwise the child
will paradoxically be penalised for conduct which the defendant ought to have
foreseen.
Even if one therefore applies the mathematical comparison of degrees of

negligence as was prescribed in the Jones case, it would follow that the defendant is
guilty of a higher degree of negligence than the child. The generally unsatisfactory
results following from a mathematical comparison of degrees of negligence of a
child and an adult has to be ascribed to the fact that this comparison is too rigid. A
comparison of blameworthiness would arrive at a more satisfactory solution.
Although Weber followed the Jones approach in assessing the negligence

of the child in terms of the reasonable-person test, it adopted a less rigid
approach in apportioning the damages.
In Eskom Holdings Ltd v Hendricks 20 the Court referred to both the
Jones and Weber cases. Although there was no reference to the method
of apportionment, the Court said the following regarding the decision in
Weber: 21
Experience revealed, Jansen JA said … that although children may be able to
distinguish between right and wrong, they will often not be able to act in
accordance with that appreciation; they became so engrossed in their play that they
become oblivious of other considerations and act impulsively. The learned Judge
accordingly warned against ‘placing an old head on young shoulders’ … . From
what has been said above, it is clear that the enquiry must in each case be related to
the particular conduct which gave rise to the loss forming the subject-matter of the
claim.

Can one apply the Apportionment of Damages Act to breach of contract?
What happens if a person suffers harm as a result of breach of contract on
the part of the other contracting party, but that person has also
contributed to this harm?
Thoroughbred Breeders’ Association of South Africa v Price Waterhouse22
The plaintiff sued the defendant, a firm of auditors, for damages resulting from breach of the auditing
agreement. The plaintiff claimed that the auditor had failed to detect certain irregularities, such as the
encashment of a promissory note belonging to the plaintiff and theft of its proceeds, and the theft of
several amounts of money that had not been deposited into the plaintiff’s bank account. The thefts were
committed by one M, who had been the plaintiff’s financial manager. The defendant denied liability, and
submitted that M had a previous conviction, that the plaintiff knowingly employed him and that the
plaintiff, therefore, was in part responsible for its own loss. The Court a quo held that the plaintiff was
80% responsible for its own loss, and accordingly reduced the amount of damages awarded to the
plaintiff by that percentage.
The Supreme Court of Appeal found the defendant liable and in addition held, in four separate
judgments, that the Apportionment of Damages Act did not apply to breach of contract. Therefore, the
defendant was liable for the entire amount of damages awarded to the plaintiff. In this regard, Nienaber
JA said:23
There is, I believe, for the reasons stated by him, a pressing need for legislative intervention in a
situation such as the present where the defendant’s breach of contract is defined in terms of
his negligent conduct but the plaintiff, by his own carelessness, contributed to the ultimate
harm. But having said that, I am afraid that I have reluctantly come to the conclusion that this
particular piece of legislation does not fulfil that function. I state my reasons for saying so with
a minimum of elaboration.
Nienaber JA proceeded to quote the relevant sections of the Act:24
The extraneous defence of culpa compensatio was known to the common law in the law of
delict but not in the law of contract. In the law of contract the claim of the claimant would not
have been ‘defeated’ by his own culpa. (Of course, it would have been a defence available to a
defendant, even in a contractual setting, if the claimant’s carelessness was the sole cause of
the loss – but that would ex hypothesi not have been a case where the damage was caused
‘partly by his own fault and partly by the fault of any other person’.) That remained the position
at the time the Act was promulgated in 1956. The intention of the Legislature as to the scope
and range of the Act must be determined in the light of the situation prevailing at the time it
was enacted. At that time the concepts of both contributory negligence and ‘last opportunity’
were unknown to a claim based on breach of contract. That being so, it seems to me to follow
that the Act was designed to address and correct a particular mischief that was identified as
such within the law of delict; that it was confined to that particular mischief; and that the
corresponding problem that might arise within the law of contract was never within the
Legislature’s compass. The express wording used in the Act does not fit a contractual claim. In
my view, the comfort of the Act was accordingly not available to PW in this case to counter or
curtail TBA’s claim for damages.
So, the Court held that the common-law defence of contributory fault did not apply to contractual liability
and, after applying the rules of interpretation of statutes, that the Act did not apply to breach of contract.

The Apportionment of Damages Act also apportions damages between
joint wrongdoers.

Where more than one person is responsible for causing the plaintiff’s
harm, all these persons are responsible for compensating the harm,
provided that a court has held them to have committed a delict.
Historically, a distinction was drawn between joint wrongdoers and
concurrent wrongdoers. Joint wrongdoers were those who consciously
cooperated to cause the same harm. Concurrent, or independent
wrongdoers, were persons who, by independent and wrongful conduct,
contributed to the same harmful consequence. At common law courts
could hold concurrent and joint wrongdoers jointly and severally liable.
Concurrent wrongdoers had a right of recourse against each other. In
other words, if one of the concurrent wrongdoers paid all the damages,
he or she could recover the pro rata share of the damages from the other
wrongdoers. Joint wrongdoers had no right of recourse. This distinction
is no longer made and the Apportionment of Damages Act refers to both
categories as joint wrongdoers. Section 2(1) of the Act provides:
Where it is alleged that two or more persons are jointly or severally liable in delict to
a third person (hereinafter referred to as the plaintiff) for the same damage, such
persons (hereinafter referred to as joint wrongdoers) may be sued in the same
action.
In Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd 25

the Supreme Court of Appeal noted:
The distinction between joint and concurrent wrongdoers is, of course, now largely
academic in view of the provisions of the Act which recognise and regulate a right of
contribution between ‘joint wrongdoers’ who are so defined as to include both joint
and concurrent wrongdoers at common law.
The plaintiff may sue one or more of the wrongdoers in the same lawsuit.
As the wrongdoers are jointly and severally liable, the plaintiff can choose
to sue one of them for all the damages, or to sue them together in the
same action. If one of the wrongdoers pays the entire amount of
damages, or if judgment has been given against one wrongdoer, the other
wrongdoer(s) is absolved from liability. The wrongdoer who has paid the
full amount has a right of recourse against the other wrongdoers. Where
joint wrongdoers are not sued in the same action a defendant may,
before pleadings have closed, give notice in terms of section 2(2) of the
Act to a joint wrongdoer, in which event the defendant would be entitled
to recover a contribution from such joint wrongdoer after having settled
the claim in full. If no notice is given, the right is forfeited.26
35.3.2 Spouses
Where a plaintiff’s spouse, as well as the defendant, commits a delict
against the plaintiff, special rules apply if the spouses are married in
community of property.27 Before 1984, if the spouses were married in
community of property, the defendant would have been liable for all the
damages. The reason for this was that parties who are married in
community of property share a common estate and cannot be delictually
liable to one another.
Section 19 of the Matrimonial Property Act 88 of 1984 changed this
position. It reads:
When a spouse is liable for the payment of damages, including damages for non-
patrimonial loss, by reason of a delict committed by him or when a contribution is
recoverable from a spouse under the Apportionment of Damages Act, 1956 (Act No
34 of 1956), such damages or contribution and any costs awarded against him are
recoverable from the separate property, if any, of that spouse, and only in so far as
he has no separate property, from the joint estate: Provided that in so far as such
damages, contribution or costs have been recovered from the joint estate, an
adjustment shall, upon the division of the joint estate, be effected in favour of the
other spouse or his estate, as the case may be.
Courts can now hold a spouse married in community of property liable

for delicts committed against the other spouse and therefore one spouse
may also be a joint wrongdoer in respect of the other spouse. The
Matrimonial Property Act provides that in appropriate cases both
spouses can be held responsible for the harm and courts will apportion
the damages between them in terms of the Apportionment of Damages
Act. For this purpose, courts consider the spouses to have separate
estates and the damages will not come from or be paid into any
communal estate. If the joint wrongdoer spouse has a separate estate
already, he or she will pay the damages from that separate estate. In the
absence of such a separate estate, the wrongdoer spouse will pay the
damages from the joint estate. However, if the marriage is dissolved, the
court will make an adjustment in favour of the plaintiff or the plaintiff’s
estate. In both instances, the wrongdoer will make the payment into a
separate estate that belongs solely to the plaintiff.
Where the parties are married out of community of property, each
has a separate estate and courts can therefore hold each one liable in
delict towards the other. Therefore, such spouses can be joint
wrongdoers in respect of each other.

Where a dependant’s breadwinner as well as the defendant commits a
delict against the dependant, they are treated as joint wrongdoers. For
example, the defendant and the breadwinner are involved in an accident
in which the dependant is injured, and both the breadwinner and the
dependant are at fault. It does not matter whether the breadwinner is
alive or dead: when the dependant plaintiff sues the defendant, a court
may draw the breadwinner or the estate into the action as a joint
wrongdoer, and it will apportion damages accordingly.28
PAUSE FOR A dependant’s claim and right of support

If successful, how would the dependant’s claim affect the right of support that
REFLECTION
other dependants have? For example, if the dependant has suffered future harm
and is awarded R100 000 in damages, but the parent was a joint wrongdoer and
responsible for R40 000 of that amount, does the dependant have a prior claim
over other siblings?
A second example is where the defendant and the breadwinner are

involved in an accident in which the breadwinner dies, and both were at
fault, and the dependant plaintiff suffers harm in the form of loss of
support. Courts would consider the breadwinner a joint wrongdoer in
respect of that claim and so the dependant can sue either the deceased
estate or the third party, or both. If either party is successfully sued or
pays the entire amount, that party has a right of recourse against the
other party.
If the plaintiff receives a benefit from the deceased breadwinner’s
estate (an inheritance) a court will deduct the accelerated benefit of the
inheritance from the plaintiff’s claim for loss of support. If the third party
has paid the damages in full, the right of recourse is retained, provided
that the benefit received by the plaintiffis not affected. Section 2(6)(a)
provides as follows:
If judgment is in any action given against any joint wrongdoer for the full amount of
the harm suffered by the plaintiff, the said joint wrongdoer may, if the judgment
debt has been paid in full … recover from any other joint wrongdoer a contribution
in respect of his responsibility for such damage of such an amount as the court may
deem just and equitable having regard to the degree in which that other joint
wrongdoer was at fault in relation to the damage suffered by the plaintiff, and to the
damages awarded: Provided further that if the court, in determining the full
amount of the damage suffered by the plaintiff referred to in subsection (1B),
deducts from the estimated value of the support of which the plaintiff has been
deprived by reason of the death of any person, the value of any benefit which the
plaintiff has acquired from the estate of such deceased person no contribution
which the said joint wrongdoer may so recover from the estate of the said deceased
person shall deprive the plaintiff of the said benefit or any portion thereof.
PAUSE FOR Section 2(6)(a)

If successful, how would the dependant’s claim affect the right of support that
REFLECTION
other dependants have? For example, if the dependant has suffered future harm
and is awarded R100 000 in damages, but the parent was a joint wrongdoer and
responsible for R40 000 of that amount, does the dependant have a prior claim
over other siblings?
• What is the practical effect of section 2(6)(a) where a dependent child
suffers R120 000 in loss of support and the deceased breadwinner and
the defendant are joint wrongdoers, with damages to be apportioned in
the ratio 1:1, and the accelerated benefit of the inheritance received by
the child is assessed to be R20 000? Note:
◆ The accelerated benefit of inheritance must be deducted from the
claim for loss of support.
◆ If the dependant child sues the defendant, who in turn claims a
contribution from the estate of the breadwinner, the latter claim
cannot exhaust the estate: at least R20 000 (the value of the benefit)
should be left to pass to the child. This means that the contribution
claim may not be fully satisfied if less than R20 000 is available in
the estate.
COUNTER Inability to earn future income

A situation may arise in which the breadwinner does not die in the accident, but
POINT
is severely injured, resulting in an inability to earn any income in the future. One
way of looking at this situation is that the dependant’s right of support has not
been infringed in such an instance. The right still exists against the breadwinner,
in which case the dependant has not suffered any harm. In this scenario the
breadwinner will claim against the defendant and a court may apportion
damages according to the principles of contributory fault. Another way is to see if
section 2(1B) of the Act applies. It provides:
… if it is alleged that the plaintiff has suffered harm as a result of any

injury to or the death of any person and that such injury or death was
caused partly by the fault of such injured or deceased person and
partly by the fault of any other person, such injured person or the
estate of such deceased person, as the case may be, and such other
person shall for the purposes of this section be regarded as joint
wrongdoers.
Consider:
• Which is the correct approach? Could both be correct, depending upon
the circumstances?
• What if the dependant’s support is reduced because the father’s income
post-accident is far less than before because a court reduced his
damages claim substantially as a result of his contributory negligence?
Should the dependant be able to claim for that loss of support from the
wrongdoer?

Where a breadwinner sues an outside party for expenses resulting from
injuries to the breadwinner’s child, and the child was also at fault, the
child will be a joint wrongdoer in respect of the breadwinner’s claim. The
outside party has a right to claim a contribution from the child
proportionate to its contributory negligence.
35.4 Apportionment between more than one plaintiff and

more than one defendant
It may be that a court has to apportion damages between more than one
plaintiff and between more than one defendant. In such a case, a court is
dealing with both contributory fault and joint wrongdoers. It appears that
there is only one reported case in our case law that has dealt pertinently
with such a situation.
Harrington NO v Transnet Ltd29
The plaintiffs, two security guards patrolling the railway line in the night, were struck by a train on its way
from Cape Town to Woodstock. They sustained serious bodily injuries as a result of the accident and
proceeded to sue Transnet, the owner of the property on which the accident took place, as well as the
train driver. The Court found that the two plaintiffs had been negligent in that they had not kept a proper
lookout for trains while they were walking along the railway line. The Court, following the approach in
some Commonwealth countries, compared the plaintiffs’ conduct to that of the defendants and, after
having reduced the damages in proportion to the plaintiff’s fault, apportioned the remainder between the
defendants.30 In this instance, the blameworthiness of each of the plaintiffs was ‘substantially
outweighed by the aggregate of the blameworthiness of Transnet and the train driver’, and there were ‘no
specific considerations of equity or justice, other than the comparison in respect of blameworthiness’ that
impacted on the issue.31 The Court accordingly reduced each of the plaintiffs’ damages by one-third and
held the two wrongdoers jointly and severally liable for the balance.
The matter went on appeal, first to a full bench of the Cape High Court, and thereafter to the Supreme
Court of Appeal.32 The upshot of these appeals was that neither the train driver nor the plaintiffs were
found to have been negligent. These findings were made on the evidence that was presented and it
appears that the trial court’s reasoning regarding the principles to be applied in such cases remains
valid.
35.5 Conclusion
In certain instances, a defendant is not responsible for the entire amount
of damages, because someone else contributed to the harm. If the
plaintiff contributed to the harm, a court will reduce the amount of
damages in accordance with the plaintiff’s degree of fault. If the co-
contributor is one of the defendants, the defendants share the
responsibility of paying the damages. When both a plaintiff and a
defendant contributed to the harm, a court will reduce the amount of
damages and the defendants will have to share responsibility for this
reduced amount between them. In all these cases, courts carry out the
apportionment in terms of the Apportionment of Damages Act.
• In certain instances, the defendant is not solely responsible for
damages, because someone else contributed to that harm.
• The co-contributor could be any of the following:
◆ The plaintiff
◆ A defendant
◆ The plaintiff(s) and two or more defendants.
• Where the plaintiff has contributed to the harm, one is dealing with
contributory fault. The defendant will not escape harm completely.
Instead, a court will reduce the amount of damages awarded to the
plaintiff.
• Where a defendant (or more than one defendant) has contributed to
the harm, one is dealing with joint wrongdoers. In this case, the
defendants share the responsibility for damages and they will be
jointly and severally liable for compensating the plaintiff.
• Where a plaintiff (or more than one plaintiff) and two or more
defendants contribute to the harm, one is dealing with both
contributory fault and joint wrongdoers. In this case, a court will
reduce the amount awarded to the plaintiff(s), which will be shared
between the defendants.
1 1970 (1) SA 462 (W).

2 2013 (5) SA 426 (SCA).
3 Para 23.
4 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 535A–B. See also Long v Jacobs
(145/11) [2012] ZASCA 58 (2 April 2012) para 23; Tyco International (Pty) Ltd v Golden Mile
Trading 547 CC (949/2013) [2016] ZASCA 44 (31 March 2016) paras 12 and 20.
5 1962 (3) SA 826 (A).
6 1976 (3) SA 45 (A).
7 1965 (2) SA 542 (A).
8 1993 (4) SA 228 (A).
9 At 235D–E (our translation).
10 Para 218.
11 The term ‘actual loss’ is not defined in the Act, however the court considers this as being
damages calculated in the normal traditional way after application of the relevant
apportionment of damages for contributory negligence.
12 2016 (2) SA 517 (GP).
13 Para 7. See also Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC)
para 86.
14 1997 (2) SA 591 (W).
15 At 606F–I.
16 South African Law Reform Commission Project 96 the Apportionment of Damages Act 34 of
1956 Report (2003).
17 1965 (2) SA 542 (A) at 556A–C.
18 1983 (1) SA 381 (A).
19 At 401A–B (our translation).
20 2005 (5) SA 503 (SCA).
21 Paras 17–19.
22 2001 (4) SA 551 (SCA).
23 Para 72.
24 Para 74.
25 2000 (4) SA 915 (SCA) at 922H–I.
26 Lategan v Jansen Van Rensburg (1499/2012) [2016] ZAECGHC 69 (8 September 2016) paras
35–37.
27 See section 2(1A) of the Apportionment of Damages Act.
28 See section 2(1B) of the Apportionment of Damages Act.
29 2007 (2) SA 228 (C).
30 Para 91.
31 Para 92.
32 Harrington NO v Transnet Ltd t/a Metrorail 2010 (2) SA 479 (SCA). The full bench decision
is not reported.
PART TEN
Statutory forms of compensation
CHAPTER 36 Legal and public policy considerations that have

justified the statutory development of the law of delict
CHAPTER 37 The Compensation for Occupational Injuries and

CHAPTER 38 Road Accident Fund Act 56 of 1996
CHAPTER 39 Strict liability for harm caused by goods: Section 61 of

the Consumer Protection Act
Chapter 36
Legal and public policy

considerations that have justified the
statutory development of the law of
delict
36.1 Introduction
36.2 Legal and public policy considerations that have justified the statutory development of the
law of delict
36.2.1 The need to combat the risk of receiving no compensation
36.2.2 The role of the Constitution and the promotion of the constitutional right to social
security
36.2.4 General time and cost-related problems with the civil procedural system
36.2.5 The ability of the legislature to regulate liability more comprehensively than the
judiciary
36.3 Conclusion
36.1 Introduction
There are many instances where the law of delict has been developed by
legislation enacted to compensate a variety of victims of harm. In this
chapter, attention will be given to the legal and public policy
considerations that have justified the legislature’s decision to
supplement the compensatory response provided by the common-law
principles of the law of delict.
The statutory compensation of harm should be distinguished from
compensation payable as a result of the breach of a statutory duty. For a
discussion of the legal position relating to the latter, see Chapter 20
above.
36.2 Legal and public policy considerations that have

justified the statutory development of the law of
delict
In this chapter, the spotlight falls on the policy considerations that have
justified the statutory development of the law of delict through the
enactment of the following statutes:
• The Compensation for Occupational Injuries and Diseases Act 130 of
1993 (‘COIDA’)
• The Road Accident Fund Act 56 of 1996 (‘RAF Act’), as amended by
the Road Accident Fund Amendment Act 19 of 2005 (‘RAFA Act’) and
the proposed Road Accident Benefit Scheme (‘RABS’)
• The Consumer Protection Act 68 of 2008 (‘CPA’).
Although there are several other pieces of legislation that have a

significant impact on the law of delict,1 the focus is placed on these
statutes because they predominantly deal with the compensation of
specific groups of victims: victims of occupational injuries and diseases,
motor vehicle accident victims and those who suffer harm arising from
defective consumer products. In some way or another, all of these
statutes have therefore singled out a collection of individuals for
preferential treatment while aligning themselves with the primary
function of the law of delict, that is, the compensation of harm.2
PAUSE FOR Are there any other areas of the law of delict that may benefit from legislative
intervention similar to the areas outlined above? Could the considerations
REFLECTION
outlined below provide a theoretical framework on which the potential future
statutory development of the law of delict may justifiably be based?
36.2.1 The need to combat the risk of receiving no

compensation
The existence and extent of a risk of harm has played an important role in
the legislature’s decision to develop the South African law of delict. This
has especially been the case in the context of occupational injuries and
diseases, motor vehicle accidents and defective consumer products,
where the growth in labour activities, expanded motor vehicle traffic and
the rise of manufactured consumer goods produced an increase of two
types of risk. First, it brought about the significantly higher risk of harm to
road users, employees and consumers. Under the common law, when
such risk materialises as the result of the culpable conduct of another, the
victim of the accident may institute a common-law delictual claim
against the wrongdoer in search of compensation. Wrongdoers, however,
are often unable to pay any or all of the damages required to repair the
victim’s harm.3 Therefore, the risk of harm is accompanied by a further
risk of receiving no compensation in the event of the harm materialising.
To protect road users from the realisation of the risk, the legislature
decided to intervene by enacting motor vehicle accident legislation. The
RAF Act is the latest statute in a long line of national legislation,
beginning with the Motor Vehicle Insurance Act 29 of 1942. The primary
purpose underlying these statutes may be described as follows: 4
The obvious evil that [motor vehicle accident statutes like the RAF Act are] designed
to remedy is that members of the public who are injured, and the dependants of
those who are killed, through the negligent driving of motor vehicles may find
themselves without redress against the wrongdoer. If the driver of the motor vehicle
or his master is without means and is uninsured, the person who has been injured
or his dependants, if he has been killed, are in fact remediless and are compelled to
bear the loss themselves.
During the course of the twentieth century, more and more South
Africans became employed in a variety of sectors. Similar to the dramatic
increase of motor vehicle traffic during that period, the rise in labour
activity was accompanied by a risk of harm to employees, who were often
required to endanger their well-being by confronting hazardous
environments and taking on precarious challenges for the gain of their
employers. Again, this risk was accompanied by the risk of receiving no
compensation in the event of the materialisation of an employment
related risk. This consideration motivated the legislature to take action by
enacting the COIDA as well as its antecedent legislation.
The design, manufacture, distribution and sale of products are,
generally, central to the wealth and welfare of any society, but could also
bring about disease, injury and even death for a wide range of
individuals.5 The rise of industrialisation in the nineteenth century and
consumerism in the twentieth century led to a substantial increase in the
manufacturing and distribution of consumer products.6 This meant that,
more than ever before, consumers were being exposed to an unremitting
series of manufactured goods. Because technology grew more
sophisticated and often coupled with high levels of expertise, consumers
knew very little about the products that reached them. It is unsurprising
that many of these products posed a significant risk to the well-being of
consumers who chose to make use of them and a further risk of receiving
no compensation in the event of harm resulting from the particular risk.7
In response to the rise in consumer products, the growing risk of
exposure to harm and the difficulty of holding manufacturers liable for
the harm suffered by consumers as a result of defective products, the
legislature introduced a strict liability regime for harm suffered as a result
of defective products when it enacted the CPA,8 which is described in
further detail in Chapter 39.
36.2.2 The role of the Constitution and the promotion of

the constitutional right to social security
Chapter 2 dealt specifically with the general relationship between the law
of delict and the Constitution of the Republic of South Africa, 1996. From
a general perspective, it is sufficient to emphasise here the fact that the
Constitution is the supreme law of the country, central to the country’s
legal system and determines the validity of all law, including the law of
delict.9
More specifically, section 27(1)(c) of the Constitution entrenches the
right to social security while section 27(2) imposes upon the State a
mandatory duty to take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation of each of
these rights.
The COIDA and the RAF Act are both regarded as legislation that
promotes the right to social security. In Law Society of South Africa v
Minister of Transport 10 the Constitutional Court described the RAF Act as
follows:11
It seems plain that the scheme arose out of the social responsibility of the State. In
effect, it was, and indeed still remains, part of the social security net for all road
users and their dependants.
In the same judgment, the Court referred also to the proposed RABS and
noted that the ultimate vision appears to be the establishment of a system
of compensation for road accident victims that:12
must be integrated into a comprehensive social security system that offers life,
disability and health insurance cover for all accidents and diseases.
The COIDA introduced significant changes in respect of the protection of

employees’ rights and, although it did not intend to provide a kind of
general health cover for every accident or disease which an employee
may suffer from, it may nevertheless be regarded as social security
legislation, aimed at the provision of a more equitable compensation
dispensation in regard to injuries suffered and diseases contracted by
employees. Where earlier legislation was based on the principle of
individual employer liability as covered by private insurance, the COIDA
introduced the principle of no-fault based liability and limited benefits
covered by a public scheme.13 The introduction of such a scheme, which
does not require an injured or diseased employee to prove fault on the
part of the employer, weakens the likelihood of lengthy and costly legal
disputes and provides a more streamlined administrative process for the
effective compensation of injured employees. As such, this piece of
‘social legislation’, 14 like most statutory occupational injury and disease
schemes enacted in foreign jurisdictions, promotes the social and
economic welfare of employees.

The evidentiary difficulties that are involved with proving fault has
motivated the legislature to develop the law of delict by abolishing the
fault requirement in specific instances.
In the context of motor vehicle accidents, the Road Accident Fund
Commission (the ‘RAFC’), tasked with conducting a broad inquiry into
the statutory compensation system under the RAF Act, noted that it: 15
is increasingly felt that fault cannot really be determined accurately and there is
also a growing social concern for accident victims regardless of the role they played
in causing the accident.
Following the publication of a report by the RAFC in 2002, the legislature

has proposed the RABS, which will abolish fault as requirement for
liability in the context of motor vehicle accidents. It is envisaged that the
proposed no-fault model will ease the administrative load regarding the
process of statutory claims, increase the speed with which those claims
are processed and prevent lengthy, costly legal disputes concerning the
existence of negligence.16
This evidentiary difficulty was also an important consideration
underlying the enactment of the COIDA. When the proposed COIDA was
tabled for discussion in Parliament, the then Minister of Manpower
remarked: 17
Under common law an injured employee or the dependents of a deceased
employee may get compensation from his employer if it can be proved that the
injury or death was due to the negligence of the employer, but in a modern
industrial set-up in which, for example, a number of employees jointly use
sophisticated machinery, it may be virtually impossible for an injured employee to
prove negligence.
With the introduction of the COIDA, which obviates the need to prove
fault within this context, the employee is therefore able to obtain
compensation much easier and quicker from a solvent entity.18
This evidentiary difficulty was also a major policy consideration in
favour of statutory intervention in the field of product liability, where the
consumer is usually unable effectively to scrutinise products for safety.19
In Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 20 the Supreme
Court of Appeal (‘SCA’) was requested to develop the rules of the
common law of delict so that it was no longer required for victims of
defective products to prove that the manufacturer had been culpable in
manufacturing the product in question. Although the Court ultimately
opted to leave the development of this branch of the law to the
legislature, it took cognisance of, and seemed in agreement with, this
criticism: 21
A plaintiff has no knowledge of, or access to the manufacturing process, either to
determine its workings generally or, more particularly, to establish negligence in
relation to the making of the item or substance which has apparently caused the
injury complained of. And, contrary to what some writers suggest, it was urged that
it is insufficient to overcome the problem that the fact of the injury, consequent
upon use of the product as prescribed or directed, brings the maxim res ipsa
loquitur into play and casts on the defendant a duty to lead evidence or risk having
judgment given against it. The submission is that resort to the maxim is but a
hypocritical ruse to justify (unwarranted) adherence to the fault requirement.
36.2.4 General time and cost-related problems with the

civil procedural system
As mentioned in Chapter 1, the law of delict may be said to be ineffective
in its principal aim of compensating harm arising from especially
personal injury and death.22 Obtaining compensation by instituting civil
proceedings has been described as slow, cumbersome and expensive. 23
The statistics quoted from royal reports and academic writing in
Chapter 1 provide convincing evidence that, from a comparative
perspective, the English law of torts plays an underwhelming role in the
compensation of harm victims.
Although there are no up-to-date statistics to put alongside those
provided above, it has been argued that ‘there is little reason to think that
the basic picture is significantly different now’. 24 Further, as suggested in
Chapter 1, although figures for South Africa are not known, they are likely
to follow similar trends.
Instituting civil litigation in South Africa is expensive and only a
limited number of people can afford the accompanying legal transaction
costs, thereby restricting the general access to justice. The enactment of
the COIDA, the RAF Act and the CPA is a legislative attempt to enhance
access to justice. The COIDA and the RAF Act established statutory
compensation funds and adopt a quicker and more cost-efficient
administrative process towards compensation. The CPA also contributes
to the reduction of transaction costs linked to civil litigation by the
removal of the requirement to prove fault, which generally may involve
greater amounts of time, money and technical resources.
36.2.5 The ability of the legislature to regulate liability

more comprehensively than the judiciary
In Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd,25 the SCA took
account of the arguments in favour of the introduction of a strict liability
regime for harm caused by defective consumer products. The Court
noted that product liability reform in foreign jurisdictions had largely
been achieved through legislation and ultimately concluded that South
Africa should adopt the same route: 26
[i]f strict liability is to be imposed, it is the Legislature that must do it.
In its judgment it held that the legislature was better equipped to

investigate the variety of questions and concerns that would have to be
addressed prior to introducing a strict liability regime in the context of
defective products.
The SCA held that single instances of litigation could not provide the
opportunity for conducting the thorough investigation, analysis and
determination that was necessary to produce a cohesive and effective
structure by which to impose strict liability.27 The Court’s
recommendation was heeded and the legislature, with the benefit of
more empirical data, more time and more product liability expertise,
enacted the CPA.28

Some scholars argue that the delict/tort system is essentially a ‘lottery’ 29
and that it ‘produces arbitrary outcomes.’ 30 They contend that the
imposition of delictual/tortious liability and the subsequent payment of
damages are based on ‘considerations unrelated to what the parties
deserve.’ 31 Instead, the outcome of litigation is seemingly determined by
contingent factors, including the availability of evidence, the quality of
counsel, the limits of insurance coverage, the financing of litigation, the
whims of judges and juries, the identities of the respective litigants and
many other factors that are not conducive to the consistent and
principled application of law.32 The argument that the delict/tort system
is both unfair and unpredictable have been advanced to justify reform
proposals that would supplement the delict/tort system in some way or
another in order to provide fairer and more reliable compensation to
accident victims.
36.3 Conclusion
The South African law of delict has seen significant development relating
to the compensation of motor vehicle accident victims, victims of
occupational injuries and diseases and those who suffer harm arising
from defective consumer products, through the enactment of the RAF
Act, the COIDA and the CPA. The enactment of these statutes have been
justified by similar legal and public policy considerations.
In future, if the legislature were to consider the further legislative
development of the law of delict insofar as the compensation of a single
category of victims is concerned, attention may be given to the
considerations that have been identified in this chapter. It may provide
the lawmakers with a general theoretical basis against which to
determine if future statutory endeavors could be justified on similar
grounds. Obviously, this is important because all statutes require
justification, especially if they are to entail a supplementation of the
existing common-law compensatory regime. In addition, it could provide
a justifiable policy basis so that the purpose and scope of the relevant
statute is clear and all affected parties are provided with an underlying
rationale on the basis of which the legislative provisions may be
interpreted.
1 For example, the Apportionment of Damages Act 34 of 1956, which was described as being
the ‘most important piece of law reform that has been carried out in the field of private law
since Union’ – see McKerron (1956) The Apportionment of Damages Act at 1.
2 For a discussion of the functions of the law of delict, see Macintosh Negligence in Delict 1 ed
(1926) at 1; Van den Heever, Aquilian Damages in South African law (1944) at 3; Van den
Heever (1944) at vii; McKerron The Law of Delict: A Treatise on the Principles of Liability for
Civil Wrongs in the Law of South Africa 7 ed (1971); Van der Merwe and Olivier Die
onregmatige daad in die Suid-Afrikaanse reg 6 ed (1989) at 1–3; Neethling and Potgieter
Neethling-Potgieter-Visser Law of Delict 7 ed (2015) at 3; Van der Walt and Midgley
Principles of Delict 3 ed (2016); Chapter 1 above.
3 For example, with regard to wrongdoers who have culpably caused motor vehicle accidents,
Moseneke DCJ remarked in Law Society of South Africa v Minister of Transport 2011 (1) SA
400 (CC) para 50 that:
in his view, the number of drivers and owners who would be able to pay would be
very small.
4 Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A) at 285. This dictum has been
confirmed and applied in a series of motor vehicle accident cases: see RAF v Makwetlane
2005 (4) SA 51 (SCA) para 7; Engelbrecht v RAF 2007 (6) SA 96 (CC) para 23; Nel v RAF 2016
(2) SA 517 (GP) para 10.
5 Van Eeden Consumer Protection Law in South Africa (2013) at 367.
6 Stapleton Product Liability (1994) at 9–16.
7 Van Eeden (2013) at 370.
8 The Act came into effect in 2010.
9 Section 2 of the Constitution.
10 2011 (1) SA 400 (CC).
11 Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) para 17.
12 Paras 45–46.
13 Olivier ‘Social Security: Framework’ (2012) LAWSA 13(2) para 9.
14 In Molefe v Compensation Commissioner (25579/05) [2007] ZAGPHC 365 (25 September
2007) para 5, Seriti J found that the:
Compensation for Occupational Injuries and Diseases Act … is a social legislation
and according to section 39(2) of the Constitution, it must be interpreted in such a
manner that the said interpretation promotes the spirit, purport and objects of the
social security right as enshrined in section 27 (l)(c) of the Constitution.
15 Satchwell Road Accident Fund (South Africa) Commission (2002) at 119.
16 Minister of Transport Policy Paper (2011) at 5.
17 South Africa Proceedings of the Extended Public Committee Debates of Parliament Hansard
1993-1994 (1994) at 12305.
18 For a German perspective on this point, see Markesinis and Unberath The German Law of
Torts (2002) at 727.
19 Loubser and Reid Product Liability (2012) at 4.
20 2003 (4) SA 285 (SCA).
21 Para 10.
22 Cane Atiyah’s Accidents, Compensation and the Law 8 ed (2013) at 459–495; Deakin,
Johnston and Markesinis Tort Law 7 ed (2013) at 51–59; Hedley ‘Tort and Personal Injuries,
1850 to present’ in Arvind and Steele (Eds) Tort Law and the Legislature (2013) at 235–249.
23 Ison The Forensic Lottery (1967); Elliot and Street Road Accidents (1968); Atiyah Accidents,
Compensation and the Law (1970); Cane (2013) at 459–495; Deakin, Johnston and
Markesinis (2013) at 51–59.
24 Cane (2013) at 19–21.
25 2003 (4) SA 285 (SCA).
26 Para 38.
27 Para 37.
28 From a comparative perspective, see also Cambridge Water Co Ltd v Eastern Counties
Leather Plc [1994] 2 AC 264 at 305:
I incline to the opinion that, as a general rule, it is more appropriate for strict
liability in respect of operations of high risk to be imposed by Parliament, than by
the courts.
29 Sugarman ‘Serious Tort Law Reform’ (1987) 24(4) San Diego Law Review 795 at 795–796.
30 Franklin ‘Replacing the Negligence Lottery: Compensation and Selective Reimbursement’
(1967) 53(4) Va. L. Rev. 774 at 778:
[T]he fault system is little more than an immoral lottery for both plaintiffs and
defendants. See also Atiyah The Damages Lottery (1997) at 143.
31 Lytton, Rabin and Schuck ‘Tort as a litigation lottery: a misconceived metaphor’ (2011) Vol
52 Boston College Law Review267 at 268.
32 Lytton, Rabin and Schuck (2010) at 268–269.
Chapter 37
The Compensation for Occupational

Injuries and Diseases Act 130 of
1993
37.1 Introduction
37.3 Section 35
37.1 Introduction
Under the common law, it is well established that an employer owes its
employees a duty to:1
take reasonable care for their safety … and an obligation to take reasonable steps to
protect them from physical harm.
Therefore, employees who suffered harm arising from an accident that

occurred in their workplace could claim damages in delict from the
employer if they could prove that the employer culpably and wrongfully
caused their harm. If the employee was contributorily negligent, the
damages payable would be reduced in accordance with the
Apportionment of Damages Act 34 of 1956. Furthermore, employees
could only obtain compensation if they had the time and means to resort
to expensive and time-consuming litigation and the employer had the
financial means to pay compensation.
Since 1886 a series of statutes have therefore been enacted to
improve the position of employees who had suffered harm as a result of
their employment. The Compensation for Occupational Injuries and
Diseases Act 130 of 1993 (‘COIDA’) repealed the Workmen’s
Compensation Act of 1941 and came into operation in 1994. The COIDA
replaces the common-law position by abolishing the employee’s
common-law delictual claim against his or her employer and introducing
a compensation system that allows employees to obtain limited
compensation from a statutory compensation fund to which employers
are obliged to contribute. The system introduced by the COIDA is no-
fault based and compensation is therefore payable regardless of whether
the injury or disease was caused by negligence on the part of the
employer or anyone else.
The purpose of the COIDA is to provide compensation to employees
for harm arising from occupational injuries or diseases sustained or
contracted by employees in the course of their employment. The
enactment of this statute, like its predecessors, has amounted to the
statutory development of the law of delict and it has been justified on the
basis of the legal and public policy considerations outlined in Chapter 35.
The Constitutional Court has described this development as follows: 2
The [COIDA] supplants the essentially individualistic common-law position,
typically represented by civil claims of a plaintiff employee against a negligent
defendant employer, by a system which is intended to and does enable employees
to obtain limited compensation from a fund to which employers are obliged to
contribute.

The operation of the COIDA can be summarised as follows. An employee
who is harmed in the course of his or her employment has the right to
claim patrimonial loss only3 through an administrative process,4 which
requires the Director-General of the Department of Labour (‘Director-
General’) to determine the amount that the employee is entitled to.5
Compensation is paid from a statutory compensation fund 6 to which
employers are obliged to contribute, with a criminal sanction for non-
compliance.7
As stated earlier, payment of compensation does not depend on
proof of negligence, on the part of the employer or anyone else.
Therefore, the employee’s contributory negligence will not reduce the
compensation.8 However, if an accident is caused by an employee’s
‘serious and willful misconduct’, no compensation is paid, unless the
accident results in serious disablement, or if the employee dies and
leaves a dependant who is wholly financially dependent upon him.9 The
amount of compensation may be increased if the employer or a co-
employee was negligent, but not beyond the extent of the claimant’s
actual patrimonial loss.10
Although the COIDA has abolished the employee’s common-law
delictual claim against his or her employer, it retains a common-law
action against a wrongdoer other than the employer (referred to as a
‘third party’).11 However, damages recoverable from such a third party
are reduced by the amount of compensation recoverable under the Act,
so that the employee cannot recover double compensation.12 The
Director-General also has a claim against such a third party ‘for the
recovery of compensation that he is obliged to pay in terms of this Act’. 13
If an employee is dissatisfied with the Director-General’s
interpretation of the Act or an award, there is provision for lodging an
objection, within 180 days, in the prescribed manner.14 If the employee is
still dissatisfied, the employee can appeal to the High Court, which has
jurisdiction on the following matters:
• The interpretation of the Act or any other law

• Whether an employee’s serious and willful misconduct resulted in
an accident or occupational disease that caused the disablement or
death of the employee
• Whether the amount of any compensation awarded is so excessive or
so inadequate that the award could not reasonably have been made
• The right to increased compensation in terms of section 56.15
In terms of section 35 of the Act, employees’ common-law delictual

claims against their employers have been abolished. This section was
subject to constitutional scrutiny and is discussed in more detail below.
37.3 Section 35
Section 35 provides as follows:
(1) No action shall lie by an employee or any dependant of an employee for the
recovery of damages in respect of any occupational injury or disease resulting in
the disablement or death of such employee against such employee’s employer,
and no liability for compensation on the part of such employer shall arise save
under the provisions of this Act in respect of such disablement or death.
(2) For the purposes of subsection (1) a person referred to in section 56(1) (b), (c), (d)
and (e) shall be deemed to be an employer.
In other words, employees who qualify for compensation under the Act
cannot institute a common-law delictual claim against their employer.
The validity of this exclusion of employers’ liability has been challenged
under the Constitution of the Republic of South Africa Act 200 of 1993. In
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour
Intervening)16 an employee who slipped and fell at her workplace as a
result of her employer’s alleged negligence, argued that section 35
infringed on her constitutional right to equality because, by being
deprived of the common-law right to claim damages against her
employer, she was placed at a disadvantage when compared to other
people who were not employees and who thus retained the right.17
The case ultimately turned on whether the impugned section was
rationally connected to a legitimate government purpose.18 In this regard,
the Court was confronted with the disparity between the general purpose
of the Act, that is, to promote the interests of employees, and the fact that
section 35 operated to employees’ disadvantage. The Court confirmed
that the rights of employees to claim damages at common law were
curtailed by the section, but emphasised also that the Act allowed
employees to obtain limited compensation without having to prove
negligence. In the end, it was held that it was not for the Court to
determine whether the statutory compensation scheme under the Act
was to the disadvantage of employees. Rather, whether an employee
should be able to keep the common-law right to claim damages, either
over and above, or as an alternative to the advantages conferred by the
COIDA, was a highly debatable, controversial and complex matter of
policy. It involved a policy choice that the legislature, and not a court,
were best positioned to make.
The Court found that the legislature had considered that it was
appropriate to grant employees certain benefits not available at common
law, while excluding certain common-law rights. Therefore, section 35(1)
of the Act was logically and rationally connected to a legitimate
government purpose, namely the comprehensive regulation of
compensation for harm arising from occupational injuries or diseases
sustained or contracted by employees in the course of their employment.
For the exclusion of employer’s liability in terms of section 35 to
apply, the parties and the claim in question must meet the requirements
as set out in relevant definitions.
• The claimant must be an ‘employee’, which is defined as:
a person who has entered into, or works under a contract of service or of
apprenticeship or learnership, with an employer, whether the contract is express or
implied, oral or in writing, and whether the remuneration is calculated by time or
by work done, or is in cash or in kind.
• In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 19 the

Supreme Court of Appeal held that a person contracted out to a
company by a labour broker was an employee of the labour broker
and not of the company where she worked. Therefore, she could sue
the company for injuries arising out of an incident in which she was
taken as a hostage by robbers, and where security guards employed
by the company negligently caused her injuries when firing at the
robbers.
• An ‘employer’, on the other hand, includes any person, including the
State, who employs an employee; any person controlling the
business of an employer; a temporary employer to whom the
services of an employee is lent or let; and a labour broker who
against payment provides a person to a client to supply a service or
perform work. Section 35 uses the term in an extended sense. In
terms of section 35(2), read with section 56(1), ‘employer’ includes:
◆ An employee charged by the employer with managing or
controlling the business or any branch or department thereof
◆ An employee who has the right to engage or discharge
employees on behalf of the employer
◆ An engineer appointed to be in general charge of machinery, or
of a person appointed to assist such engineer
◆ A person appointed to be in charge of machinery in terms of any
regulation made under the Occupational Health and Safety Act
85 of 1993.
• Employees have no claim against their employer for harm arising
from an ‘occupational injury or disease’. 20 The concept of
‘occupational injury’ means a personal injury that results from an
‘accident’, which is in turn defined as ‘an accident arising out of and
in the course of an employee’s employment’. 21
◆ In Rauff v Standard Bank Properties (A Division of Standard
Bank of South Africa Ltd) 22 the Court held that an employee,
who was injured while leaving work when the lift in the building
that she worked in malfunctioned, did not suffer an
‘occupational injury’, because she was no longer working at the
time and the injury did not arise ‘out of and in the course of
employment’. Therefore, section 35 did not apply and she could
sue her employer.
◆ In DN v MEC for Health Free State 23 the plaintiff, a female
medical doctor employed by the defendant, brought a delictual
action against the defendant, her employer, in order to recover
the harm she had suffered after being raped by an intruder who
had gained access to the employer’s premises. The doctor was
raped while discharging her duties, while walking from one
hospital building to another. At the time of the incident, building
construction was being carried out at the hospital and a portion
of the parameter fencing was under temporary repair. In
addition, the elevator between the ground and first floor in the
building was defective and the lights on the first floor were also
not working. The doctor’s assailant was not a patient of the
relevant hospital, had no authorisation to be on its premises and
was later convicted of rape and sentenced to 15 years’
imprisonment. The Court had to determine whether the rape of
the doctor could be regarded as an ‘accident’ arising ‘out of and
in the course and scope of employment’. The Court confirmed
that the approach developed in the majority judgment of Chief
Justice Rumpff in Minister of Justice v Khoza 24 was still good law
for establishing whether an incident is an ‘accident’ which arose
out of or in the course of employment. Essentially the Khoza
approach required in the broad sense a causal connection 25
between the employee’s employment and the relevant
accident.26 Applying the approach in Khoza, the Court held that
the attack on the doctor bore no relationship to her
employment. In doing so, the Court emphasised that the rape,
although unexpected, was intentional and fell outside the scope
of meaning ordinarily ascribed to ‘accident’ by South African
courts.27 Furthermore, the fact that the doctor was intentionally
injured by a person unauthorised to be on the hospital’s
premises, together with the perpetrator’s motive, played a
significant role in concluding that there was no causal
connection between the doctor’s employment and the crime.28
• The concept of ‘occupational disease’ means any disease
contemplated in section 65(1) (a) or (b). Section 65(1)(a) allows an
employee to claim compensation if he or she can show that the
disease contracted is mentioned in Schedule 3 to the Act and that
such disease has arisen out of and in the course and scope of
employment. Notwithstanding, section 65(1)(b) allows an employee
to claim compensation for a disease not mentioned in Schedule 3, if
he or she can prove to the Director-General that such disease arose
out of and in the course and scope of employment.
Section 35 also applies to claims under the Road Accident Fund Act 56 of
1996. In Mphosi v Central Board for Co-operative Insurance Ltd 29 the
Court held than an employee has no claim against the predecessor of the
current Road Accident Fund if the claim is based on his or her employer’s
negligence, because the liability of the Fund depends on whether a claim
under common law exists, which in this case would have been excluded
by the predecessor of the current section 35.
In Mankayi v Anglogold Ashanti Ltd 30 the Constitutional Court had
to decide whether section 35(1) of the COIDA also extinguished the
common-law delictual claim of mine workers to recover damages in
delict for an occupational injury or disease from their negligent
employers (mine owners), notwithstanding the fact that they were not
entitled to claim compensation under the COIDA, but under other
legislation, namely the Occupational Diseases in Mines and Works Act 78
of 1973 (‘ODIMWA’). Earlier, the Supreme Court of Appeal had held that
section 35(1) of the COIDA extinguished mine workers’ common-law
claim and thus extended the protection offered against common-law
liability under section 35(1) also to mine owners.31 The Constitutional
Court rejected this decision and held that the ‘employee’ referred to in
section 35(1) of the COIDA is limited to an employee who has a claim for
compensation under the COIDA and it therefore excluded mine
workers.32 It confirmed that section 35(1) of the Act does not cover an
‘employee’ who qualifies for compensation in respect of ‘compensatable
diseases’ under the ODIMWA.33
1 Media 24 Ltd v Grobler 2005 (6) SA 328 (SCA) para 65.

2 Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1
(CC) para 15. See also MEC for Education, Western Cape Province v Strauss 2008 (2) SA 366
(SCA) paras 11–12; Healy v Compensation Commissioner 2010 (2) SA 470 (E) para 11; Sanan
v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ) para 8; MEC for Health, Free State v DN 2015 (1)
SA 182 (SCA) paras 6–7; Thomas v Minister of Defence and Military Veterans 2015 (1) SA 253
(SCA) para 6.
3 Sections 47–64: no compensation for non-patrimonial harm such as pain and suffering.
4 Sections 38–46.
5 Section 4.
6 Section 15.
7 Section 87.
8 Section 22(1).
9 Section 22(3)(a).
10 Section 56(4).
11 Section 36(1)(a).
12 Section 36(2).
13 Section 36(1)(b).
14 Section 91(1)–(4).
15 Section 91(5).
16 1999 (2) SA 1 (CC).
17 Para 10.
18 Para 12.
19 2007 (2) SA 118 (SCA).
20 Section 1.
21 Section 1 contains the following definitions: ‘occupational injury’ means a personal injury
sustained as a result of an accident; and ‘accident’ means an accident arising out of, and in
the course of an employee’s employment and resulting in a personal injury, illness or the
death of the employee.
22 2002 (6) SA 693 (W).
23 2014 (3) SA 49 (FB); MEC for Health, Free State v DN 2015 (1) SA 182 (SCA).
24 1966 (1) SA 410 (A).
25 See Olivier ‘Social Security: Core Elements’ LAWSA 2 ed Vol 13 Part 3 (2013) para 126, where
the authors refer to Basson v Ongevallekommissaris [2000] 1 All SA 67 (C), in which the
employee had a pre-existing back condition and was subsequently involved in an accident.
With regard to the causal connection between the accident and the employment, the Court
held that it was not required that the injury suffered by the employee should be exclusively
the result of the accident in question. In other words, it was sufficient that the accident was
merely a ‘contributing factor’ to the injury. Put differently, the Court thus held that there
could be more than one factual cause of the injury: both the pre-existing back condition and
the accident. This differs from the common law of delict, which requires of a plaintiff to
prove a necessary cause (conditio sine qua non) and thus imposes a greater evidentiary
burden on the plaintiff.
26 See Minister of Justice v Khoza 1966 (1) SA 410 (A) at 417:
‘In die loop daarvan’ beteken dat die ongeval moet plaasvind terwyl die werksman
besig is met sy werksaamhede en dit ontstaan ‘uit sy diens’ as die ongeval in
verband staan met sy werksaamhede.
27 MEC for Health, Free State v DN 2015 (1) SA 182 (SCA) at 190J–191D.
28 At 191D.
29 1974 (4) SA 633 (A).
30 2011 (3) SA 237 (CC).
31 Para 113.
32 Para 113.
33 Paras 113–114.
Chapter 38
Road Accident Fund Act 56 of 1996
38.1 Introduction

38.3.1 The liability of the Fund
38.3.2 Limitations of the Fund’s liability under the RAF Act
38.3.3 Exclusions of the Fund’s liability under the RAF Act
38.4 Damages
38.5 Causation of harm, locality, ‘driving’ and ‘motor vehicle’
38.1 Introduction
Motivated by the policy considerations outlined in Chapter 35, the
legislature has introduced a series of statutes aimed at compensating
road users who suffer harm arising from motor vehicle accidents. The
current statute, the Road Accident Fund Act 56 of 1996 (‘RAF Act’), has
the same object as that of its predecessors, namely the ‘payment of
compensation … for loss or damage wrongfully caused by the driving of
motor vehicles’. 1 The RAF Act achieves this through the establishment of
a statutory compensation fund, financed from fuel levies. The RAF Act
transfers liability from the negligent driver, or owner or employee of the
owner of a motor vehicle to the Road Accident Fund (the ‘Fund’)
resulting from bodily injury or death. Like its forerunners, and in contrast
to the Compensation for Occupational Injuries and Diseases Act 130 of
1993 (‘COIDA’), the Act is based on the common-law elements for
delictual liability and retained fault as the basis for liability.
The RAF Act was amended by the Road Accident Fund Amendment
Act 19 of 2005 (the ‘RAFA Act’). The amendments sought to achieve the
simplification of the claims procedure, promoting access to justice and
ensuring the financial stability and sustainability of the RAF. The most
important amendments introduced by the RAFA Act, which relate to the
scope and extent of the RAF’s liability and the abolition of the victim’s
common-law claim against the wrongdoer, are discussed in section 38.3
below.
The fault-based compensation system established under the RAF Act
has been criticised as being ‘unreasonable, inequitable, unaffordable and
unsustainable’ 2 on the basis that it contributes to the financial decline of
the Fund. The amendment of the RAF Act by the RAFA Act may be
regarded as a first step towards greater reform, which is ultimately
focused on the restructuring of the Fund so that compensation is paid to
victims of motor vehicle accidents on a no-fault basis.3 To achieve the
desired reform, the legislature published the draft Road Accident Benefit
Scheme Bill (the ‘RABS Bill’) in 2014. Should it be enacted, the current
fault-based system of liability administered by the Fund will be replaced
by a new social security scheme for road accident victims.

If a person (referred to in the Act as a ‘third party’) suffers injuries or dies
as a result of the negligent driving of a motor vehicle, the Fund is liable to
pay compensation, instead of the driver, owner or employee of the owner
that would have otherwise existed in common law, except where the
Fund is unable to pay compensation, conceivably for reasons of
insolvency.4 The third party may institute a statutory claim against the
Fund to claim limited patrimonial and non-patrimonial damages from
the Fund (see further section 38.4 below).
As indicated below, the statutory compensation system in terms of
the current RAF Act is fault-based, which means that the plaintiff has to
prove the negligence of the driver or of the owner of the motor vehicle or
of the owner’s employee in the performance of his or her duties as
employee. Normally, the negligent conduct consists of the driving of a
motor vehicle, but it can also be negligent maintenance or use of the
vehicle by the owner or an employee of the owner in the performance of
duties.
The institution of the third party’s claim involves an administrative
procedure set out in section 24 of the Act, which requires a victim, among
other things, to lodge a prescribed statutory claim form.5 Once the claim
is lodged, the Fund will commence with its investigation to determine the
claim’s validity and the amount of damages payable.
If the Fund does not object to the validity of the claim within 60 days
from the date on which a claim was sent by registered post or delivered
by hand to the RAF, the claim is deemed to be valid in law in all respects.6
In terms of section 24(6) of the Act, a summons may not be served on the
Fund before the expiry of a period of 120 days from the date on which the
claim was sent or delivered by hand, unless the Fund repudiates the
claim in writing before the expiry of this period.
If the claim is valid, the Fund is liable to the third party and the
negligent driver, owner, or owner’s employee concerned normally incurs
no liability.7 However, in certain circumstances, the Fund has a right of
recourse against the driver or the owner of the vehicle, as set out in
section 25, including cases of driving without a licence and driving under
the influence of alcohol or other drugs.
Claims under the Act are subject to prescription provisions
contained in section 23.
38.3.1 The Liability of the Fund

The key provision of the current compensation scheme is section 17(1) of
the RAF Act, which provides:
The Fund or an agent shall … be obliged to compensate any person (the third party)
for any loss or damage which the third party has suffered as a result of any bodily
injury to himself or herself or the death of or any bodily injury to any other person,
caused by or arising from the driving of a motor vehicle by any person at any place
within the Republic, if the injury or death is due to the negligence or other wrongful
act of the driver or of the owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties as employee. Provided that the obligation of
the Fund to compensate a third party for non-pecuniary loss shall be limited to
compensation for a serious injury as contemplated in subsection (1A) and shall be
paid by way of a lump sum.
The effect of section 17 is that the liability of the Fund replaces the
liability of the driver, or owner or owner’s employee that would have
otherwise existed at common law, except where the Fund is unable to pay
compensation.
Because the Fund’s liability is fault-based, the amount of damages
recoverable by a plaintiff may be reduced to the extent that a plaintiff’s
fault contributed to his injury or death and in accordance with sections 1
and 2 of the Apportionment of Damages Act 34 of 1956.
The RAF Act refers to the claimant as ‘the third party’, a concept that
the Act does not define, but gives content to by implication: The liability
transferred to the Fund in terms of section 17 is common-law liability for
negligently caused injury or death,8 and a ‘third party’ is any person who
would have had a common-law claim for damages arising from bodily
injury or death, including the injured person, a dependant of a person
who died in a motor vehicle accident, a supplier of medical services, and
any other person who, in terms of the ordinary principles of delict, has a
claim based on the injury or death of another.9
The Fund is liable only for harm (‘loss or damage’) that arises from a
bodily injury or death and therefore does not include property damage.
The Fund may incur limited liability for both patrimonial and non-
patrimonial harm (see further section 38.4 below).
38.3.2 Limitations of the Fund’s liability under the RAF

Act
Even if the requirements of section 17 are met, there are certain
limitations to the liability of the Fund, as set out in sections 17 and 18 of
the RAF Act. They include the following:
• Section 17(1)(1A) of the Act limits the Fund’s liability for non-
patrimonial harm to ‘compensation for a serious injury … and shall
be paid by way of a lump sum.’ In accordance with section 17(1)(1A)
(a) the assessment of a serious injury shall be based on a ‘prescribed
method adopted after consultation with medical service providers
and shall be reasonable in ensuring that injuries are assessed in
relation to the circumstances of the third party.’ The assessment
must be carried out by a registered medical practitioner registered
under the Health Professions Act 56 of 1974.
• Section 17(4)(c) limits the Fund’s liability insofar as it provides that,
where compensation is claimed for loss of income or loss of support,
the claim will be capped to a specific amount that may be adjusted
by the legislature, irrespective of the actual loss. The constitutional
validity of this subsection was challenged in Law Society of South
Africa v Minister for Transport.10 On behalf of the applicants it was
argued that the section failed to comply with the constitutional
principle of rationality and unjustifiably limited various
constitutional rights.11 The Constitutional Court upheld the relevant
provisions, which were considered to have the effect of making the
Fund financially viable and rendering the compensation regime
more transparent, predictable and equitable. Therefore, the Court
also concluded that the provisions did not constitute an arbitrary
deprivation of property.
• Section 18(2) provides that where the loss or damage is suffered as a
result of bodily injury or death of a person who was being conveyed
in or on the motor vehicle concerned, and who was an employee of
the driver or owner of that motor vehicle, and the person who can
claim damages from the Fund (the third party) is also entitled to
compensation under the COIDA, the liability of the Fund is limited.
The Fund is only liable for the amount representing the difference
between the amount which that third party could, but for this
paragraph, have claimed from the Fund and any lesser amount to
which that third party is entitled by way of compensation under
COIDA. The Fund shall not be liable for the amount of the
compensation to which the third party is entitled under the COIDA.
The effect of section 18(2) is that, where compensation is recoverable
under the COIDA, the amount of such compensation must be
deducted from damages that are recoverable from the Fund.
Furthermore, in cases where the claim arises from the injury or
death of a passenger in a vehicle who was an employee of the driver
or owner of that motor vehicle, there is also no right of recovery for
the compensation fund under COIDA against the Fund. COIDA
makes provision for such a right of recovery in certain other cases.
• Section 18(4) also states that the liability of the Fund for funeral
expenses that arise as the result of the death of a person shall be
limited to the necessary actual costs to cremate the deceased or to
inter the person in a grave.
38.3.3 Exclusions of the Fund’s liability under the RAF

Act
Section 19 further excludes liability for the Fund in the following cases:
• If the claim was not instituted and prosecuted by the third party, or
on behalf of the third party by a person entitled to practise as an
attorney or any person who is in the service, or who is a
representative of the State or government or a provincial, territorial
or local authority.
• If the third party had agreed to pay someone other than the category
of persons mentioned above a part of the compensation or some
other remuneration for handling the claim.
• If the injured person unreasonably refuses or fails to subject himself
or herself, at the request and cost of the Fund, to any medical
examination by medical practitioners designated by the Fund; or
refuses or fails to furnish the Fund, at its request and cost, with
copies of all medical reports in his or her possession that relate to the
relevant claim for compensation; or refuses or fails to allow the
Fund, at its request, to inspect all records that relate to himself that
any hospital, or his or her medical practitioner possess.
• If the third party refuses or fails to submit to the Fund, together with
the claim form or within a reasonable period thereafter, an affidavit
that fully sets out the particulars of the accident that gave rise to the
claim; or to furnish the Fund with copies of all statements and
documents that relate to the accident that gave rise to the claim,
within a reasonable period of coming into possession of them.
• If the loss or harm is suffered as a result of an emotional shock
sustained when someone witnessed, observed, or was informed of
the bodily injury or the death of another person as a result of the
driving of a motor vehicle.12 In other words, a victim of so-called
‘secondary emotional shock’ 13 may not institute a claim against the
Fund and must institute a common-law delictual claim against the
culpable wrongdoer for the harm that results from the emotional
shock.
The current section 21 of the RAF Act is the result of the amendments
introduced by the RAFA Act and severely limits the common-law right to
compensation of motor vehicle accident victims. Under the older version
of the RAF Act, victims were entitled to claim compensation from the
wrongdoer in respect of the harm that was not compensable under the
Act. Significantly, section 21(1) now states that no claim for
compensation in respect of:
loss or damage resulting from bodily injury to or the death of any person caused by
or arising from the driving of a motor vehicle shall lie caused by or arising from the
driving of a motor vehicle shall lie
(a) against the owner or driver of a motor vehicle; or
(b) against the employer of the driver
This subsection abolishes the victim’s residual common-law delictual

claim for harm which is not covered by the RAF Act. A motor vehicle
accident victim may look only to the Fund for compensation and, to
cover harm not compensable under the Act, must take out appropriate
insurance.
PAUSE FOR In Law Society of South Africa v Minister for Transport14 the Constitutional Court
REFLECTION considered the constitutional validity of the abolition of the motor vehicle
accident victim’s residual common-law delictual claim against a wrongdoer.15
The applicants argued that the amendment failed to comply with the
constitutional principle of rationality and unjustifiably limited at least one of the
following fundamental rights contained in the Bill of Rights: sections 12(1),16
25(1),17 27(1)18 and 38.19 Despite the far-reaching consequences proposed by
the amended section 21 of the RAF Act, the Court ultimately held that it passed
the necessary rationality test.20 It furthermore confirmed that the abolition of the
victim’s common-law claim against the wrongdoer was a justifiable infringement
of section 12(1) of the Bill of Rights, and that it did not infringe upon section 38
of the Constitution.21 In addition, it was confirmed that the proposed change did
not constitute an arbitrary deprivation of property.
The judgment raises questions pertaining to the function of the law of delict
that require consideration: Should the law of delict be implemented as an
instrument with which to distribute loss and to promote social security, or should
it be restricted to correcting wrongs by forcing a culpable wrongdoer who has
caused the victim’s harm to pay compensation? What is the implication of the
judgment for the role that the law of delict must play in promoting the central
moral notion of personal responsibility, which is regarded as the justificatory
principle for a fault-based system of liability? What effect will the abolition of the
victim’s common-law right to claim damages from the wrongdoer have on
deterring future drivers from causing harm through the negligent driving of motor
vehicles?
38.4 Damages
The Fund is liable only for harm (‘loss or damage’) that arises from a
bodily injury or death and therefore not for property damage. The Fund
may incur limited liability for both patrimonial and non-patrimonial
harm that arises from a bodily injury or death. The patrimonial harm
compensable under the Act includes past and future loss resulting from
bodily injury or death which a road accident victim may have suffered.
This includes: 22
• Hospital and medical expenses
• Loss of income
• Loss of earnings
• Loss of support
• Funeral and cremation costs
• Travelling expenses
• The cost of a nurse or an aide.
The claimant is also entitled to claim damages for non-patrimonial harm.
However, as indicated above, section 17(1)(1A) of the Act limits the
Fund’s liability for non-patrimonial harm to ‘compensation for a serious
injury and shall be paid by way of a lump sum.’ In this context, the third
party would be able to claim for pain and suffering, psychological
trauma, emotional shock, disfigurement, loss of the amenities and
enjoyment of life, loss of general health and shortened life expectancy.
As indicated in section 38.3, the Fund’s liability is limited and/or
excluded in some cases and certain damages will therefore be excluded
or limited.
Figure 38.1 Structure of the Road Accident Fund compensation scheme
38.5 Causation of harm, locality, ‘driving’ and ‘motor

vehicle’
Causation of harm can be direct or indirect (‘caused by or arising from th
riving of a motor vehicle’). Inrectly caused injury or dea, which falls
under section 17, includes, f example, injury from a fire following a
negligently caused accident,23 and injury from an attack on a bus that was
allwed to be driven in a dangerous area.24
The liability of the Fund can arise from accidents ‘at any place within
the Republic’, and not only on public or other roads. The accident must
involve the ‘driving’ of a ‘motor vehicle’. Secion 20 partially defines
‘driving’, with deeming provisions, namely that a vehicle is ‘deemed to be
driven by the person in control of the vehicle’, that ‘a person who has
placed or left a motor vehicle at any place shall be deemed to be driving
that motor vehicl while it moves from that place as a result of gravty, or
while it is stationary at that place or at a place to whih it moved from the
first-mentioned place as a result of gravity’, and that ‘(W)heneve any
motor vehicl has been placed or left at any place, it shall, for the purposes
f this Act, be prsumed, until the cotrary is proved, that such vehicle was
placed or left at such place by the owner of such vehicle.’
Section 1 of the Ac defines a ‘motor vehicle’ as ‘any vehicle designed
or adapted for propulsion or haulage on a road by means of fuel, gas or
electricity, including a trailer, a caravan, an agricultural or any other
implement designed or adapted to be drawn by such motor vehicle’.

The liability of the Fund is fault-based, which means that the plaintiff has
to prove ‘negligence or other wrongful act of the driver or of the owner of
the motor vehicle or of his or her employee in the performance of the
employee’s duties as employee’. The ‘negligence or other wrongful act’
can be (and mostly is) that of the driver, but it can also be related to the
maintenance or use of the vehicle by the owner or an employee of the
owner in the performance of duties.

Road accidents that do not involve ‘driving’ a ‘motor vehicle’ or fault on
the part of the driver, owner or employee of the owner as required by
section 17, can only give rise to general delict claims in terms of the
ordinary principles of the law of delict.
Figure 38.2 Delimitation of RAF claims

Claims under the Act are subject to prscrption proviions contained in
section 23, and must be instituted according to the procedural
requirements as set out in section 24.
Where the Fund is liable to the third party in terms of the Act, the
negligent driver, owner, or employee of the owner of the motor vehicle
concerned normally incurs no liability.25 However in certain
circumstances, the Fund has a right of recourse against the driver or the
owner of the vehicle, as set out in section 25, including cases of driving
without a licence and driving under the influence of alcohol or other
drugs.

The fault-based compensation system under the RAF Act has been
described as ‘unreasonable, unaffordable and unsustainable’ 26 and a few
points of criticism are summarised below:
• Because the liability of the Fund is fault-based, victims are required
to prove negligence.
• Proving fault in the form of negligence often leads to disputes that
may only be resolved through litigation, which is an expensive and
time-consuming exercise. In addition, while litigation is pending,
victims have to pay for medical and other expenses themselves,
which is often impossible for some victims.
• The RAF Act is open to abuse due to fraud, opportunistic claims,
nuisance and overinflated claims, mismanagement, professional
malpractice and human failing.
• The structure of the current compensation system encourages
perverse incentives: Victims are presented as permanently disabled,
maimed and without the capacity to continue earning an income,
irrespective of their actual condition. There is thus no financial
incentive for injured accident victims to return to work or to undergo
rehabilitation.
The legislature heeded the criticism and has proposed a new scheme for
the compensation of motor vehicle accident victims: The RABS was
published for comments in 2014. It aims to introduce a ‘social security
scheme for the victims of road accidents’. This will be done by providing
‘a set of defined benefits on a no-fault basis’ to persons who have suffered
harm as a result of ‘bodily injury or death caused by or arising from road
accidents’. Apart from its abolition of fault, the RABS will exclude the
delictual liability of ‘certain persons responsible for bodily injuries or
death caused by or arising from accidents’. The proposed RABS
furthermore seeks to simplify the claims procedure and reduce potential
legal disputes.
1 Section 3 of the RAF Act.

2 Department of Transport Policy Paper for the Road Accident Fund Benefit Scheme (RABS)
Notice 815 GG 34765 21 November 2011) at 6. See also Chapter 35 for a discussion of the
way in which the fault requirement has provided motivation for legislative development of
the law of delict.
3 Law Society of South Africa v Minister of Transport 2011 (1) SA 400 (CC) paras 44–45.
4 Section 17(1) of the RAF Act.
5 The form should provide the basic information of the victim, the vehicles and parties
involved, the date and place of the accident, the amount claimed by the victim, a medical
report compiled by the treating doctor, and an affidavit that contains further reports and
statements pertaining to the accident and the amount claimed. The completed claim and
accompanying documentation must be sent by registered post or delivered by hand to the
Fund at its principal, branch or regional office.
8 The reference in section 17 of the RAF Act refers to injury or death ‘due to the negligence or
other wrongful act’ and is a reference to common-law fault-based liability. Furthermore,
section 19(a) of the Act in effect excludes liability of the Fund where no common-law
liability exists.
10 2011 (1) SA 400 (CC).
11 The right to security of the person, the right not to be arbitrarily deprived of property, the
right of access to health-care services and the right to an adequate remedy.
12 See section 19(g) of the RAF Act for the exclusion of the Fund’s liability for instances of so-
called secondary emotional shock.
13 See section 21(2)(b) of the RAF Act. For an example of secondary emotional shock, see the
facts in Barnard v Santam Bpk 1999 (1) SA 202 (SCA).
14 2011 (1) SA 400 (CC).
15 Para 15.
16 The right to security of the person.
17 The right not to be arbitrarily deprived of property.
18 The right of access to health-care services.
19 The right to an adequate remedy.
20 Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) para 35.
21 Paras 75–80 and 103.
22 See sections 17(4)–17(6) and 18(4) of the RAF Act.
23 Groenewald v Protea Assurance Co Ltd 1979 (1) SA 354 (C).
24 General Accident Insurance Co of South Africa Ltd v Xhego 1992 (1) SA 580 (A).
26 Department of Transport Policy Paper (2011) at 6.
Chapter 39
Strict liability for harm caused by
goods: Section 61 of the Consumer
Protection Act
39.1 Introduction
39.2 What is the nature of the liability created by the Act?
39.3 Why should there be strict liability for defective products?


39.5.1 Unsafe
39.5.2 Failure
39.5.3 Defect
39.5.4 Hazard
39.6 Inadequate instructions or warnings provided to the consumer pertaining to any hazard
39.8 Who is liable?
39.10 Defences
39.10.1 Section 61(4)(a): Compliance with public regulation
39.10.2 Section 61(4)(b)(i): Absence of defect at time of supply
39.10.3 Section 61(4)(b)(ii): Compliance with instructions
39.10.4 Section 61(4)(c): Defects not reasonably discoverable by the distributor or retailer
39.11 Conclusion
39.1 Introduction
In response to the risk of harm that can be caused by consumer products,
and the difficulty of proving negligence on the part of manufacturers as
required for Aquilian liability, discussed in Chapter 19, a strict liability
regime for harm caused by defective products was introduced by section
61 of the Consumer Protection Act 68 of 2008, which came into effect on 1
April 2011. South Africa has followed the example of other countries:
strict liability for defective products has become part of the law in many
other jurisdictions.
39.2 What is the nature of the liability created by the

Act?
Section 61 of the Act provides:
(1) Except to the extent contemplated in subsection (4), the producer or importer,
distributor or retailer of any goods is liable for any harm, as described in
subsection (5), caused wholly or partly as a consequence of:
(a) supplying any unsafe goods;
(b) a product failure, defect or hazard in any goods; or
(c) inadequate instructions or warnings provided to the consumer pertaining to any
hazard arising from or associated with the use of any goods irrespective whether
the harm resulted from any negligence on the part of the producer, importer,
distributor or retailer, as the case may be.
The consumer has an action against the producer, importer, distributor

or retailer, without having to prove negligence. The consumer can be the
purchaser or merely the user of the product,1 and the action is not limited
by the ambit of whatever warranty was given for the product.
39.3 Why should there be strict liability for defective

products?
The arguments favouring strict liability for defective products are
basically about fairness, the difficulty of proving negligence, economic
efficiency, and deterrence. Normally, consumers lack the resources to
analyse or scrutinise products effectively for safety. The efficiency
argument is that the burden of harm that results from using defective
products should fall on the producer, who is best able to control the
danger or to spread the losses when they do occur, either through
insurance or through increased prices. Judge Traynor, in the well-known
American case of Escola v Coca-Cola Bottling Co of Fresno,2 summed it
up well:
The cost of an injury and the loss of time or health may be an overwhelming
misfortune to the person injured, and a needless one, for the risk of injury can be
insured by the manufacturer and distributed among the public as a cost of doing
business.
Apart from the ‘down-stream’ compensatory function of strict liability,

there is also an ‘up-stream’ preventative or deterrence function. In the
USA in particular, courts have stressed that product liability is a powerful
way of inducing product safety.

The Act defines ‘goods’ as follows:
(a) anything marketed for human consumption;
(b) any tangible object not otherwise contemplated in paragraph (a) including any
medium on which anything is or may be written or encoded;
(c) any literature, music photograph, motion picture, game, information, data,
software, code or other intangible product written or encoded on any medium, or
a licence to use any such intangible product;
(d) a legal interest in land or any other immovable property, other than an interest
that falls within the definition of ‘service’ in this section; and
(e) gas, water and electricity.
This wide and general definition includes all kinds of substances

produced and tradable as commodities. In combination, paragraphs (a),
(b), and (c) include any tangible object whether marketed for human
consumption or otherwise, as well as a wide range of intangible products,
including information. In addition to goods produced by industrial
process – from machinery to pharmaceuticals – it includes raw and
processed foodstuffs. A ‘tangible object’ also includes natural substances
such as body parts, blood products, minerals and water. Water is in any
event mentioned specifically, together with gas and electricity.

The Act also covers land transactions. Its definition of goods includes:
a legal interest in land or any other immovable property, other than an interest that
falls within the definition of ‘service’ in this section.
This involves liability for structural or design defects in buildings and

hazards that occur on land. Damage to the product itself – the land or
buildings – is apparently also recoverable.
PAUSE FOR Liability for defects in immovable property

Liability for defects in immovable property is an area governed by well-settled
REFLECTION
principles of contract and property law. Consider, for example, the situation
where defective property sold subject to a ‘voetstoots’ clause causes injury to the
purchaser.

The definition of ‘goods’ includes ‘any literature, music, photograph,
motion picture, game, information, data, software, code’. In this respect,
the Act goes much further than its counterparts in Europe. The Act
creates strict liability not only for mass-produced informational products,
such as software packages, but also for the producer of defective software
for products such as aeroplanes, cars or heart-lung machines. There
appears to be no distinction between defective information
accompanying the product, which renders it dangerous, and defective
information obtained from the product (for example, a recipe contained
in a cookery book that encourages the use of potentially poisonous
mushrooms).
Strict liability for information products

PAUSE FOR Should there be strict liability for defective information?
Strict liability for an open-ended category of information products, with
REFLECTION
potential indeterminate liability for economic loss, may have far-reaching effects.
Defective information could have harmful consequences with a considerably
wider reach than defective tangible objects. Consider whether strict liability could
inhibit the socially and economically desirable free sharing of ideas and theories.

Contaminated blood and blood products also qualify as ‘goods’ (tangible
object) and this means that the South African National Blood Service
(SANBS) potentially will be liable for contaminated blood and blood
products.
PAUSE FOR HIV/AIDS and liability

The prevalence of HIV and AIDS in South Africa creates a high risk of potential
REFLECTION
liability for the SANBS in the event of the supply of contaminated blood.
Consider whether the imposition of strict liability on a non-profit organisation
such as the SANBS was intended, and, if it was, whether strict liability could
have undesirable consequences.

The remedies provided by section 61(1) are available for the causing of
harm in consequence of (a) the supply of ‘unsafe’ goods; (b) a product
‘failure’, ‘defect’ or ‘hazard’ in goods; or (c) ‘inadequate instructions or
warnings’ provided with goods. The definitions of these key terms,
‘unsafe’, ‘failure’, ‘defect’ or ‘hazard’ are contained in section 53.
Therefore, strict liability can arise as a result of several alternative modes
of conduct by the producer, importer, distributor or retailer of any goods.
One can only properly understand these by referring to the definitions
contained in sections 1 and 53.
39.5.1 Unsafe
According to section 53(1)(d), ‘unsafe means that, due to a characteristic,
failure, defect, or hazard, particular goods present an extreme risk of
personal injury or property damage to the consumer or to other persons’.
In turn, the subsections give ‘failure’, ‘defect’ and ‘hazard’ their own
statutory definitions, although it does not define ‘extreme risk’. Liability
arises if goods are ‘unsafe’ and present an ‘extreme risk’ ‘due to a
characteristic, failure, defect or hazard’. An accident occurs typically
because of a failure in the manufacturing process of goods that has
caused a safety problem, or a design defect in the goods that has
rendered it unsafe to use.
39.5.2 Failure
‘Failure’ is relatively unproblematic. It means (according to section 53(1)
(b)) that the product ‘did not perform in the intended manner or to the
intended effect’. This indicates a typical manufacturing defect, for
example, where a machine tool malfunctions and causes injury, or the
brakes of a car fail and cause an accident.
39.5.3 Defect
In the definition of ‘defect’, the Act broadly adopts a ‘consumer
expectations’ standard. In terms of section 53(1)(a) a ‘defect’ means:
(i) any material imperfection in the manufacture of the goods or components, or in
performance of the services, that renders the goods or results of the service less
acceptable than persons generally would be reasonably entitled to expect in the
circumstances; or
(ii) any characteristic of the goods or components that renders the goods or
components less useful, practicable or safe than persons generally would be
reasonably entitled to expect in the circumstances.
This definition of ‘defect’ is complex and is based on consumer

expectations of performance, coupled with vague and overlapping
notions of ‘acceptable’, ‘useful’, ‘practicable’ and ‘safe’.
The European experience of the ‘consumer expectations’ approach
has not been entirely satisfactory. There are obvious difficulties, for
example, ‘Are consumers entitled to expect more than the exercise of
reasonable knowledge, skill and care by producers?’ and ‘What does the
consumer generally expect?’ The test is too vague to provide much
guidance and it can be used to explain almost any result that a court
chooses to reach. Jane Stapleton, a prominent critic, describes the
consumer expectations test as ‘impenetrable to analysis’. 3 It cannot
mean that courts must somehow determine the actual expectations of
consumers generally: the consumer expectations test means that courts
should determine what consumers are entitled to expect. This is not
simple, because the definition of ‘defect’ employs a number of other
undefined terms that are open-ended and vague, such as ‘acceptable’,
‘useful’ and ‘practicable’. The courts are likely to fall back on
reasonableness to determine whether goods are defective.
39.5.4 Hazard
A ‘hazard’, in terms of section 53(1)(c)(ii), means a characteristic that
‘presents a significant risk of personal injury to any person, or damage to
property, when the goods are utilised’.

The liability referred to in section 61(1)(a) – the supply of ‘unsafe’ goods –
therefore, inter alia, relates to supplying goods that present an ‘extreme
risk’ of personal injury or property damage, due to a ‘hazard’, which is a
characteristic that presents a ‘significant risk’ of personal injury to any
person, or damage to property. This is a puzzling interplay of definitions.
Even if it did make sense to link extreme risk and significant risk in this
convoluted way, the different levels of risk are not defined and are
difficult to distinguish. It is also difficult to see why a claimant would rely
on an ‘extreme risk’ situation when it is also possible to rely on a
‘significant risk’ situation.
The Act refers to these characteristics of goods failure, defect and
hazard alternately, so in effect, section 61(1)(b) refers to various
alternative subcategories of liability. However, given that the same terms
are all within the definition of ‘unsafe’ in section 61(1)(a), these
categories are in effect tautologous.
If the criteria in sections 61(1)(a) and 61(1)(b) are alternatives, there
appears to be no reason why a claimant should not simply rely on the
lowest and most general of these standards in section 61(1)(b), which is
that of a ‘defect’ that relates to whether the goods are ‘acceptable’,
whatever judicial meaning can be ascribed to this.
PAUSE FOR Could Eskom Holdings Limited v Halstead-Cleak4 have been argued differently?
REFLECTION In Eskom Holdings Limited v Halstead-Cleak the Court held that only a
‘consumer’ as defined in the CPA can claim under section 61. In this instance, a
cyclist who came into contact with a low-hanging live power line over a footpath
and suffered severe burns did not qualify as a consumer vis-à-vis Eskom, as
producer and distributor of the electricity.
This decision made it unnecessary to elaborate on the meaning of ‘a product
failure, defect or hazard’ or ‘unsafe goods’ in section 61, read with section 53.
Nevertheless, the Court expressed the following views in this regard:
In any event it cannot be found that the harm the respondent

suffered was as a result of the electricity itself failing, or that the
electricity had a defect. Failing in this context would be if the
electricity were unable to perform in the intended manner. This was
not the case. The electricity, in the context of the case did not suffer
from a material imperfection in the manufacture of the goods.
Likewise, the electricity did not have a characteristic that rendered it
less useful or safe than a person would generally expect in the
circumstances. The same applies to the electricity not possessing a
characteristic that presented a significant risk of injury to any person
when the goods are utilised. It is clear that the respondent was not
utilising the electricity when he was harmed.5
Electricity is known and accepted to be inherently dangerous and as the Court

noted, this characteristic in itself does not constitute ‘a material imperfection’ in
its manufacture, in terms of the definition of ‘defect’ in section 53(1)(a)(i). Nor
does it render electricity ‘less useful, practicable or safe than persons generally
would be reasonably entitled to expect’, in terms of the definition of ‘defect’ in
section 53(1)(a)(ii). There is also no evidence that the electricity in this case
suffered from ‘inability of the goods to perform in the intended manner’, in terms
of the definition of ‘failure’ in section 53(1)(b).
However, is it not also arguable that there was ‘a product failure, defect or
hazard’ or ‘unsafe goods’ in respect of electricity in the Eskom case? 6
PAUSE FOR What is ‘acceptable’?

The difficulty for the consumer is that when courts are required to apply such
REFLECTION
vague standards as what is ‘acceptable’, there may be an understandable
tendency for courts to resort to look at the general reasonableness of the
producer’s behaviour. In this case, the standards to be applied are barely
distinguishable from those used under fault-based liability, and ‘strict’ liability
could bring little real benefit to consumers. The objective of this legislation is to
impose liability on a producer, importer, distributor or retailer without requiring
the consumer to prove fault. To make this possible, these provisions must
provide clear guidelines for courts. The definitions contained in the Act are not
clear and will be challenging to interpret.
39.6 Inadequate instructions or warnings provided to the

consumer pertaining to any hazard
Section 61(1)(c) refers to a situation where the consumer received
inadequate instructions or warnings ‘pertaining to any hazard arising
from or associated with the use of any goods’. This refers to a situation,
for example, where the goods are inherently dangerous, but could have
been made safe by instructions for proper use or a warning making clear
the risks of using the goods. An obvious example is toxic cleaning
substances. Although such products are clearly hazardous, they are of
undoubted household utility and present an acceptable level of risk if
appropriately packaged, bearing a sufficient warning of toxicity, and
directions as to use. Where adequate instructions and or warnings are
provided the goods are not to be regarded as unsafe or defective for the
purposes of section 61(1), and the ultimate responsibility for accident
prevention in effect shifts to the consumer.
There is a similar category of ‘information’ defect in European and
American law. However, in South Africa section 61(1) employs the vague
concept of ‘adequate’ in this regard. Moreover, the focus is only on
instructions or warnings ‘pertaining to any hazard’, bringing into this
category also the uncertainties of the concepts of ‘hazard’ and ‘significant
risk’, as discussed above. In short, section 61(1) in its present form, read
with the definitions in sections 1 and 53(1), presents a convoluted array
of different standards.

Section 1 of the Act defines a consumer in respect of any particular goods
or services as follows:
(a) a person to whom those particular goods or services are marketed in the ordinary
course of the supplier’s business;
(b) a person who has entered into a transaction with a supplier in the ordinary
course of the supplier’s business, unless the transaction is exempt from the
application of this Act by section 5(2) or in terms of section 5(3);
(c) if the context so requires or permits, a user of those particular goods or a
recipient or beneficiary of those particular services, irrespective of whether that
user, recipient or beneficiary was a party to a transaction concerning the supply of
those particular goods or services;
(d) a franchisee in terms of a franchise agreement, to the extent applicable in terms
of section 5(6)(b) to (e).
It is clear from this definition that a consumer includes the person to

whom the goods or services are sold or supplied. The consumer is also
the user of the goods or services, who was not a party to the transaction
for the supply of the goods or services.
Eskom Holdings Limited v Halstead-Cleak7
The plaintiff, a cyclist who came into contact with a low-hanging live power line over a footpath and
suffered severe burns, claimed damages under section 61 from Eskom as producer and distributor of the
electricity. The plaintiff succeeded in the High Court, but lost on appeal, on the basis that he did not
qualify as a ‘consumer’ vis-à-vis Eskom, because he (a) had not entered into any transaction with Eskom
as a supplier or producer of electricity in the ordinary course of Eskom’s business; and (b) was not at the
time of his injury either a user, recipient or beneficiary of the electricity.
For the meaning of ‘user’ the Court referred to a dictionary definition which defines ‘utilise’ as ‘make
practical and effective use of’.8 The injured plaintiff could hardly be regarded as a ‘beneficiary’ of the
electricity. The Court did not comment on the meaning of ‘recipient’, which arguably could have a wide
meaning including a person who accidentally comes into contact with electricity, thereby inadvertently
and unwillingly ‘receiving’ the electricity.
The Court found that sections 61(5)(a) and 61(5)(b), which define the ‘harm’ for which damages can
be claimed, indicated that harm in the form of death or injury can only be suffered by a natural person,
as opposed to a juristic person; and that these subsections do not mean that ‘any natural person’ can
be a claimant under section 61. It follows from this conclusion that a claimant can be any person,
natural or juristic, who fits the description of ‘consumer’ – in terms of paragraphs (a ) and (b) of the
definition, either as a person to whom the defective goods were marketed or who received the defective
goods pursuant to a transaction with the supplier; or in terms of paragraph (c), as a user, recipient or
beneficiary of the goods. The Court held that a person who is a user of the goods qualifies as a
‘consumer’ in terms of paragraph (c), where there is a ‘transaction to which a consumer is a party, or the
goods are used by another person consequent on that transaction’.9
The Court said that section 3 which outlines the legislative purposes of the CPA, together with the
definitions of ‘consumer’ and ‘transaction’, clearly indicate that the ‘whole tenor of the Act is to protect
consumers’.10 Section 61, the Court noted, falls within Chapter 2 of the CPA, dealing with ‘Fundamental
Consumer Rights’, and in particular in Part H, which deals with the ‘right to fair value, good quality and
safety’; and this indicates that ‘the harm envisaged in section 61 must be caused to a natural person
mentioned in section 61(5)(a) in his or her capacity as a consumer. This is the only business-like
interpretation possible.’11
However, section 61, read with section 53, does not unambiguously
exclude bystanders injured by goods as potential claimants, for example,
a person injured when touching an open and live electricity cable, or a
person who happens to be nearby when a defective glass container
explodes. Therefore, it is arguable that bystanders were also meant to be
potential claimants.12
39.8 Who is liable?

The Act creates liability for ‘the producer or importer, distributor or
supplier’. 13 ‘Supplier’ and ‘supply’ have a particularly wide meaning,
including ‘sell, rent, exchange and hire in the ordinary course of business
for consideration’, and in respect of services, ‘to sell the services, or to
perform or cause them to be performed or provided, or to grant access to
any premises, event, activity or facility in the ordinary course of business
for consideration’. This covers leasing and seemingly also the common
triangular arrangement in which a finance company buys goods from a
retailer to supply to a customer on lease or hire purchase. Therefore, the
Act appears to create strict liability for finance companies engaged in
selling or leasing goods.

Section 61(5) imposes liability for the following types of harm:
(a) the death of, or injury to, any natural person;
(b) an illness of any natural person;
(c) any loss of, or physical damage to any property, irrespective whether it is
movable or immovable; and
(d) any economic loss that results from harm contemplated in paragraph (a), (b) or
(c).
Harm under these heads is assessed in terms of common-law principles.

Harm includes loss or damage of ‘any property’. This apparently includes
damage to the defective product itself. Loss may derive from the product
itself in various ways, for example, the costs of replacement, repair, or
remedying a safety hazard. Therefore, the Act allows significant
additional compensation, over and above whatever contractual remedies
may be available. The Act also expressly allows compensation for
economic loss, thereby opening up a potentially vast area of liability, for
example, for loss of profit.
39.10 Defences
39.10.1 Section 61(4)(a): Compliance with public

regulation
Section 61(4)(a) provides a defence where the characteristic that
rendered the product unsafe was ‘wholly attributable to compliance with
any public regulation’. Legislation such as the Foodstuffs, Cosmetics and
Disinfectants Act 54 of 1972 or the Medicines and Related
Substances Control Act 101 of 1965 aims to promote safety (non-
compliance with the provisions of these statutes is a criminal offence),
and compliance should not therefore render the producer or supplier
liable under section 61(4)(a). Compliance with codes of practice or
voluntary standards would also not of itself provide a defence under
section 61(4)(a). In the European experience this defence is rarely
invoked since ‘as the purpose of most regulations is to make products
safe, it will rarely be the case that compliance will force the producer to
make an unsafe product.’ 14
39.10.2 Section 61(4)(b)(i): Absence of defect at time of

supply
A further defence is available if the product defect ‘did not exist in the
goods at the time it was supplied by [the defendant] to another person
alleged to be liable’ (section 61(4)(b)(i)). The concept ‘supply’ includes
selling renting, exchange and hiring for consideration. At what point is
‘supply’ regarded as having taken place for the purposes of this defence?
It is suggested that the time of supply is the point when the defendant
relinquishes possession in favour of another party. The purpose of this
provision would appear to be to allow the defendant to escape liability if
the defect has arisen after the goods left his control. If goods have
become defective due to mishandling or inappropriate modification, the
producer and those who have supplied goods in their original, safe,
condition should not be held liable.
Component parts (for instance nuts, bolts and industrial fasteners)
also qualify as ‘goods’ as defined in section 1 of the Act. Section 61(4)(b)
(i) allows the producer or supplier of a component part to escape liability
if it can show that that component was sound at the point when it was
delivered to the producer of the complex product.
39.10.3 Section 61(4)(b)(ii): Compliance with

instructions
Section 61(4)(b)(ii) deals with the situation where a supplier (A) has
passed on goods to another in the retail chain (B), and in so doing A has
provided B with instructions, for example, regarding their use or
safekeeping. Where harm occurs as a result of compliance with these
instructions, this subsection provides a defence for B, and also provides
that A cannot use the defence in section 61(4)(b)(i) above to exonerate
itself.
39.10.4 Section 61(4)(c): Defects not reasonably

discoverable by the distributor or retailer
In terms of section 61(4)(c) there is no liability if, it is ‘unreasonable to
expect the distributor or retailer to have discovered’ the product defect,
‘having regard to that person’s role in marketing the goods to
consumers’. This exemption from liability is broadly drafted and has the
potential to readmit fault-based liability through the back door. The
application of a reasonableness test to the conduct of distributors and
retailers is hardly different from the negligence test that is the hallmark of
Aquilian liability. There are many defects that one could not reasonably
expect even a highly responsible distributor or retailer to discover, for
instance the so-called ‘development risks’, which only becomes apparent
in a new product once it has been used. Also, in many cases retailers sell
packaged goods as delivered by a manufacturer or distributor, and
cannot reasonably be expected to open the goods for inspection. In most
cases one cannot expect a distributor or retailer to detect a latent
manufacturing or design defect in a packaged product, or a hairline crack
in a bottle that later explodes and injures a consumer, or the inadequate
instructions or warnings accompanying a product. Yet, to permit all
distributors and retailers to evade liability on the basis of reasonableness
would significantly narrow the ambit of strict liability.

The introductory part of section 61(4) and its subsection 61(4)(d), read
together, state that liability in terms of section 61 does not arise if the
claim for damages is brought more than three years after the occurrence
of certain events or the acquisition of certain knowledge. The
Prescription Act 68 of 1969 generally deals with the effect of the passage
of time on a ‘debt’.15 Prescription begins to run as soon as the ‘debt’ is
‘due’.16 Instead of using the established terminology of the Prescription
Act, section 61(4)(d) refers to a ‘liability’ which ‘does not arise’ if the
‘claim’ is not ‘brought’ within three years. Section 61(4)(d) is probably
intended to co-exist with the operation of prescription under the
Prescription Act, but it creates a number of interpretation problems
which could have been avoided if the section had simply stated that
liability under section 61 constitutes a ‘debt’ for the purposes of the
Prescription Act.
Under section 61(4)(d)(i) liability does not arise if the claim for
damages is brought more than three years after the ‘death or injury’
occurs. Under the Prescription Act prescription begins to run in respect
of a claim for damages arising from death or injury as soon as the ‘debt’
to pay damages becomes ‘due’.
Section 61(4)(d)(iv) provides that liability in terms of section 61 does
not arise if the claim for damages is brought more than three years after
the ‘latest date on which a person suffered any economic loss
contemplated in subsection 5(d)’. The provision in section 61(4)(d)(iv)
appears to be aimed at creating an exception to the ‘once-and-for-all
rule’ where economic loss is involved. The three-year period provided for
by section 61(4)(d)(iv) begins to run not when the first loss occurs, as
under the Prescription Act, but when the last loss occurs.
Does knowledge of the existence of the facts affect the running of the
time period in terms of subsections 61(4)(d)(ii) and 61(4)(d)(iii) in the
same way as it affects the running of a prescription period under the
Prescription Act? Under these subsections the beginning of the time
period is respectively ‘the earliest time at which a person had knowledge
of the material facts about an illness’ and ‘the earliest time at which a
person with an interest in any property had knowledge of the material
facts about the loss or damage to that property’. It seems that in respect
of the knowledge requirement there is no inconsistency in principle
between subsections 61(4)(d)(ii) and 61(4)(d)(iii) and the Prescription
Act in the limited areas where there is an overlap, and, therefore, when
interpreting subsections 61(4)(d)(ii) and 61(4)(d)(iii) the courts can apply
the provisions on the knowledge requirement contained in section 12 of
the Prescription Act, and the relevant case law.
Is the running of the time period under section 61(4)(d) delayed in
the same way as a prescription period under the Prescription Act? The
Prescription Act provides that where certain circumstances or
‘impediments’ exist, such as minority of the creditor or marriage between
the creditor and debtor, the completion of prescription is delayed. It is
highly unlikely that the legislature intended to abolish the principles
concerning delay of the completion of a prescription period in respect of
claims under section 61 of the Consumer Protection Act. One must
conclude, therefore, that the legislature simply failed to deal with this
aspect, and that there is no inconsistency between section 61(4)(d) and
the Prescription
Act regarding delay, so that the courts can apply section 13 of the
Prescription Act and the relevant case law to claims under section 61 of
the Consumer Protection Act.
Under the Prescription Act the running of prescription is interrupted
by service on the debtor of ‘any process whereby the creditor claims
payment of the debt’. 17 The running of prescription is also interrupted by
an express or tacit acknowledgement of liability,18 which
acknowledgment must be clearly intended by the debtor.19 Although
section 61(4)(d) is silent on the matter of interruption, it is suggested that
the courts should apply sections 14 and 15 of the Prescription Act and the
relevant case law to claims under section 61 of the Consumer Protection
Act, with the result that expiry of the time period in terms of section 61(4)
(d) is prevented by either service of judicial process or acknowledgement
of liability.
39.11 Conclusion
The problems of proving defectiveness and negligence for the purposes
of common-law (Aquilian) liability were the main catalysts for reforming
the law on product liability in South Africa. Section 61 of the Consumer
Protection Act introduced strict liability for harm caused by defective
products, Because this statutory remedy eliminates the need to prove
negligence on the part of a manufacturer, importer, distributor and
retailer of defective products (‘goods’) which cause harm, it is likely that
claims for damages involving defective products will in future in most
cases be brought under this section. However, the common-law liability
for defective products continues to exist as an alternative basis for
recovery of damages for harm caused by defective products. In unusual
circumstances not covered by the provisions of section 61 of the
Consumer Protection Act claims will still be brought by way of an
Aquilian action, as discussed in Chapter 19.
1 See definition of ‘consumer’ in section 1.

2 150 P 2d 436 (1944) at 440.
3 Stapleton ‘Restatement (third) of torts: products of liability, an Anglo-Australian
perspective’ (2000) 39(3) Washburn LJ 363 at 376–378.
4 (599/2015) [2016] ZASCA 150; 2017 (1) SA 333 (SCA) (30 September 2016).
5 Para 24.
6 It is suggested that when considering whether electricity presents a ‘defect’ or ‘hazard’ or is
‘unsafe’, the meaning of ‘electricity’ in the definition of ‘goods’ in the CPA should not be
restrictively understood to refer only to electrically charged particles (current), but rather in
a wider sense, to include the manner in which the current is conducted and made
accessible. It is suggested further that electricity as a species of ‘goods’ in the commercial
sense comprises both the current and the means whereby the current is conducted and
made accessible. Accordingly, if this occurs irregularly and inappropriately, as in the case of
a live and unprotected power line overhanging a footpath and exposing persons to harm,
the electricity is arguably ‘less useful, practicable or safe than persons generally would be
reasonably entitled to expect’, therefore presenting a ‘defect’ in terms of section 53(1)(a)(ii).
7 (599/2015) [2016] ZASCA 150; 2017 (1) SA 333 (SCA) (30 September 2016).
8 Para 24.
9 Para 15.
10 Para 16.
11 Para 21.
12 Subsections 61(1)(c) and 61(2) refer to ‘the consumer’, but subsections 61(5)(a)–(b), which
deal with the kinds of harm for which damages can be claimed, refer to death or illness of, or
injury to ‘any natural person’. Further, the definition of ‘unsafe’ in section 53(1)(d) refers to
‘an extreme risk of personal injury or property damage to the consumer or to other persons’.
This definition does not deal only with consumers, but specifically refers to an extreme risk
presented by the goods ‘to the consumer or to other persons’. Section 5(5) provides that,
even where goods are supplied in terms of a transaction that is exempt from the CPA, those
goods and the importer, producer, distributor and retailer of those goods are nevertheless
subject to section 60 (safety monitoring and recall) and to section 61 (liability for damage
caused by goods). Section 5(1)(d) read with section 5(5), arguably highlights the intention of
the legislature to provide general redress for persons harmed by defective goods, even if
they did not receive the goods pursuant to a ‘transaction’ or as a ‘consumer’ within the
meaning of paragraph (b) of the definition of ‘consumer’.
13 All these terms are defined in section 1.
14 Grubb and Howells (Eds) The Law of Product Liability (2000) para 4.211.
15 See, generally, Loubser Extinctive Prescription (1996) at 1–8.
16 Section 12(1) of the Prescription Act 68 of 1969.
17 Section 15(1).
18 Section 14(1).
19 Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA) paras 36–37.
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Table of cases
A
A Becker and Co (Pty) Ltd v Becker 1981 (3) SA 406 (A) 302
A Gibb & Son (Pty) Ltd v Taylor & Mitchell Timber Supply Co (Pty) Ltd 1975 (2) SA 457 (W) 307
A Neumann CC v Beauty Without Cruelty International 1986 (4) SA 675 (C) 432
AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A) 530
Abbott v Bergman1922 AD 53 344, 345, 355
Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 (3) SA 531 (E) 158
Abrahamse & Sons v South African Railways and Harbours 1933 CPD 626 254
Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 (1) SA 372 (SCA) 476, 477
ABSA Bank Ltd v Keet 2015 (4) SA 474 (SCA) 249
ABSA Bank Ltd v Fouche [2002] 4 All SA 245; 2003 (1) SA 176 (SCA) 242
ABSA Bank h/a Bankfin v Louw 1997 (3) SA 1085 (C) 256
Administrator, Natal v Edouard 1990 (3) SA 581 (A) 233, 329
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) 269, 270, 276
Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) 194, 265, 266
Administrator-General, South West Africa v Kriel 1988 (3) SA 275 (A) 84, 517
Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A) 544
African National Congress v Democratic Alliance 2014 (3) SA 608 (GJ) 16, 426, 445
Afrika v Metzler 1997 (4) SA 531 (NM) 418, 521
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) 242
Agnew v Union & South West African Insurance Co Ltd 1977 (1) SA 617 (A) 255
Alves v LOM Business Solutions (Pty) Ltd 2012 (1) SA 399 (GSJ) 311, 312, 317
Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) [1999] 4 All SA
421 (SCA); 1999 (4) SA 1319 (SCA) 46, 61, 62, 66, 284, 347, 348, 350
April v Minister of Safety and Security [2008] 3 All SA 270 (SE) 374
Areff v Minister van Polisie 1977 (2) SA 900 (A) 376
Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) 48, 416
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) 415, 426
Arthur E Abrahams and Gross v Cohen 1991 (2) SA 301 (C) 267, 276, 278
Athey v Leonati 1996 140 DLR (4th) 355 112
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) 184, 284, 285, 288, 291,
295, 296, 302, 303, 304
Aucamp v University of Stellenbosch 2002 (4) SA 544 (C) 275
Auto Protection Insurance Co Ltd v Macdonald (Pty) Ltd 1962 (1) SA 793 (A) 470
Avonmore Supermarket CC v Venter 2014 (5) 399 (SCA) 162
Axiam Holdings Ltd v Deloitte & Touche 2006 (1) SA 237 (SCA) 326
B
Bantjes v Rosenberg 1957 (2) SA 118 (T) 223
Barkhuizen v Napier 2007 (5) SA 323 (CC) 246, 247
Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Mpy v Lebos 1985 (4) SA 341 (T) 326, 332
Barnard v Santam Bpk 1999 (1) SA 202 (SCA) 77, 362, 363, 364, 365, 366, 560
Barnes v Union and SWA Insurance Co Ltd 1977 (3) SA 502 (E) 353
Basner v Trigger 1945 AD 22 225
Basson v Ongevallekommissaris [2000] 1 All SA 67 (C) 554
Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) 234, 267, 276, 273, 326
Bayer South Africa (Pty) Ltd v Viljoen 1990 (2) SA 647 (A) 250
Beira v Vallet [2005] JOL 13588 (W) 250
Bekker v Du Toit 1974 (3) SA 248 (O) 169
Bennett v Minister of Police 1980 (3) SA 24 (C) 76, 144, 221, 223, 372, 374, 381
Benson v Robinson & Co (Pty) Ltd 1967 (1) SA 420 (A) 450
Benson v Walters 1984 (1) SA 73 (A) 257
Bernstein v Bester 1996 (2) SA 751 (CC) 390, 391, 400, 401
Bester v Calitz 1982 (3) SA 864 (O) 221, 222, 223
Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1972 (3) SA 68 (D) 362
Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) 77, 362, 363, 364
Beswick v Crews 1965 (2) SA 690 (A) 326
Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African
Human Rights Commission v President of the Republic of South Africa 2005 (1) SA 580 (CC); 2005 (1)
BCLR 1 (CC) 61
Blaikie and Others v The British Transport Commission 127
Blignaut v Protea Coin Group 2015 JDR 0962 (ECP) 372
Bloemfontein Town Council v Richter 1938 AD 195 225
Blou v Rose Innes 1914 TPD 102 222, 223
Blyth v Van den Heever 1980 (1) SA 191 (A) 81, 327
BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) 196, 326, 343
Bolton v Stone [1951] AC 850 160
Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615 (HL) 112
Bonthuys v Visagie 1931 CPD 75 168
Booysen v Shield Insurance Co Ltd 1980 (3) SA 1211 (SE) 354
Bophuthatswana Transport Holdings (Edms) Bpk v Matthysen Busvervoer (Edms) Bpk 1996 (2) SA 166 (A) 310
Borgin v de Villiers 1980 (3) SA 556 (A) 451
Bosasa Operations (Pty) Ltd v Basson 2013 (2) SA 570 (GSJ) 412
Boshoff v Boshoff 1987 (2) SA 694 (O) 205, 211
Boswell v Minister of Police 1978 (3) SA 268 (E) 363
Boswell v Union Club of South Africa (Durban) 1985 (2) SA 162 (D) 381
Boswell-Wilkie Circus (Pty) Ltd v Brian Boswell Circus (Pty) Ltd 1984 (1) SA 734 (N) 295
Botes v Van Deventer 1966 (3) SA 182 (A) 468
Botha v Marais 1974 (1) SA 44 (A) 425
Botha v Minister of Transport 1956 (4) SA 375 (W) 85
Botha v Mthiyane 2002 (1) SA 289 (W) 426, 434
Bouwer v Harding 1997 (4) SA 1023 235, 332
Bowden v Rudman 1964 (4) SA 686 (N) 465
Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996 (2) SA 393 (T) 267
Brand v Williams 1988 (3) SA 908 (C) 251
Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (E) 169
Breede River (Robertson) Irrigation Board v Brink 1936 AD 359 224, 225
Brenner v Botha 1956 (3) SA 257 (T) 381, 521
Bennett v Minister of Police 1980 (3) SA 24 (C) 375, 521
Blyth v Van den Heever 1980 (1) SA 191 (A) 326, 327
Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 (2) SA 455 (W) 199, 295, 303
Bridgman NO v Witzenberg Municipality (JL and Another as third parties) [2017] 1 All SA 466 (WCC) 519, 520
Brisley v Drotsky 2002 (4) SA 1 (SCA) 244
Bristow v Lycett 1971 (4) SA 223 (RA) 244, 266, 459
British Transport Commissioner v Gourley [1955] 3 All ER 796 (HL) 499
Brooks v Minister of Safety and Security 2009 (2) SA 94 (SCA) 347, 350
Broude v McIntosh 1998 (3) SA 60 (SCA) 205, 326, 327, 329, 372, 373
Brown v Hunt 1953 (2) SA 540 (A) 168, 326
Bruce NO v Berman 1963 (3) SA 21 (T) 326, 331
Bull v Taylor 1965 (4) SA 29 (A) 372
Burger v Die Padongelukkefonds case No 2223/1999 (unreported) 352
Burger v Union National South British Insurance Company 1975 (4) SA 72 (W) 81
Bursey v Bursey 1999 (3) SA 33 (SCA) 351
Butt v Van den Camp 1982 (3) SA 819 (A) 326
Byrne v Deane [1937] 1 KB 818; [1937] 2 All ER 204 419
Byrne v Masters Squash Promotions CC 2010 (1) SA 124 (GSJ) 450
C
C v Minister of Correctional Services 1996 (4) SA 292 (T) 401
Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994] 2 AC 264 549
Canada Steamship Lines Ltd v Regem [1952] 1 All ER 305 (PC) 244
Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA) 273, 276
Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA) 162
Cape Town Municipality v April 1982 (1) SA 259 (C) 199
Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) 182, 186, 199
Capital Estate and General Agencies (Pty) Ltd v Holiday Inns Inc 1977 (2) SA 916 (A) 298, 302, 303
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC)
41, 44, 46, 48, 49, 51, 53, 57, 107, 182, 317
Carmichele v Minister of Safety and Security 2001 (1) SA 489 (SCA) 51
Carmichele v Minister of Safety and Security 2003 (2) SA 656 (C) 51
Carmichele v Minister of Safety and Security and Minister of Justice (11 November 1997, CPD, unreported) 51
Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A) 475
Case v Minister of Safety & Security; Curtis v Minister of Safety & Security 1996 (3) SA 617 (CC) 391, 400
Castell v De Greeff 1993 (3) SA 501 (C) 171, 326, 327
Castell v De Greeff 1994 (4) SA 408 (C) 205, 328
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) 296, 302
Cathkin Park Hotel v JD Makesch Architects 1993 (2) SA 98 (W) 267
Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) 299, 303, 304
Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) 16, 92, 381, 382, 426
Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SLT 563; 1925 SC 796 477
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd 2004 (2) SA 622 (SCA) 249
Channing v South African Financial Gazette Ltd 1966 (3) SA 470 (W) 423
Chartaprops 16 (Pty) Ltd v Silberman 2009 (1) SA 265 (SCA) 14
Chauke v President Insurance Co Ltd 1978 (2) SA 947 (W) 255
Checkers Supermarket v Lindsay (123/08) [2009] ZASCA 26; 2009 (4) SA 459 (SCA); [2009] 3 All SA 487
(SCA) (27 March 2009) 169
Chesterton v Gill 1970 (2) SA 242 (T) 424
Chetty v Italtile Ceramics Ltd 2013 (3) SA 374 (SCA) 491
Chetty v Minister of Police 1976 (2) SA 450 (N) 219
Chitima v Road Accident Fund [2012] 2 All SA 632 (WCC) 350
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 (2) SA 447 (SCA) 308
City of Salisbury v King 1970 (2) SA 528 (RA) 162, 167
Clairwood Motor Transport Co (Pty) Ltd v Akal & Sons 1959 (1) SA 183 (N) 169
Clark v Welsh 1976 (3) SA 484 (A) 205, 211
Clarke v Welsh 1975 (4) SA 469 (W) 171
Clinton-Parker v Administrator, Tvl; Dawkins v Administrator, Tvl 1996 (2) SA 37 (W) 363, 364
CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD) 420
Coetzee v SA Railways & Harbours 1933 CPD 565 81
Collins v Administrator, Cape 1995 (4) SA 73 (C) 360
Colman v Dunbar 1933 AD 141 167, 168, 327
Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412 469, 470, 471
Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd 1972 (4) SA 185 (T)
306
Commercial Union Assurance Co Ltd v Pearl Assurance Co Ltd 1962 (3) SA 856 (E) 259
Commercial Union Assurance Co of SA Ltd v Mirkin 1989 (2) SA 584 (C) 346
Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W) 235, 243, 267
Conroy v Nichol 1951 (1) SA 653 (A) 70
Constantia Versekeringsmaatskappy Bpk v Victor NO 1986 (1) SA 601 (A) 353, 504
Cook v Lewis (1952) 1 DLR 1 (SCC) 117
Coolair Ventilator Co (SA) (Pty) Ltd v Liebenberg 1967 (1) SA 686 (W) 296
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) 182, 276, 278
Costa da Oura Restaurant (Pty) Ltd t/a Umdhloti Bush Tavern v Reddy 2003 (4) SA 34 (SCA) 473, 475
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) 288, 289,
293
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC) 186, 193, 198,
275, 284, 285, 286, 288, 289, 290, 291, 292
Crawford v Albu 1917 AD 102 444, 445
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 (2) SA 118 (SCA) 468, 473
D
D and D Deliveries (Pty) Ltd v Pinetown Borough 1991 (3) SA 250 (D) 266, 494
D v K 1997 (2) BCLR 209 (N) 392
Da Silva v Coutinho 1971 (3) SA 123 (A) 130, 266
Daniels v Campbell NO 2004 (7) BCLR 735 (CC) 62
Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A) 148, 150, 282, 288, 291
De Beer v Sergeant 1976 (1) SA 246 (T) 470
De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) 494
De Fourd v Town Council of Cape Town (1898) 15 SC 399 392
De Jongh v Du Pisanie NO 1994 (4) SA 1 (A) 515
DE v RH 2015 (5) SA 83 (CC) 64, 78, 371, 521
De Waal v Ziervogel 1938 AD 112 442, 451
Deacon v Planet Fitness Holdings (Pty) Ltd 2016 (2) SA 236 (GP) 247
Delange v Costa 1989 (2) SA 857 (A) 32, 92, 151, 381
Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A)
250
Delphisure Group Insurance Brokers Cape (Pty) Ltd v Kotzé [2011] 1 All SA 109 (SCA) 276
Delta Motor Corporation (Pty) Ltd v Van der Merwe [2004] 4 All SA 365 (SCA); 2004 (6) SA 185 (SCA) 16, 418
Demmers v Wyllie 1980 (1) SA 835 (A) 412, 424, 425
Dendy v University of the Witwatersrand 2007 (5) SA 382 (SCA) 39, 46, 53
Dendy v University of the Witwatersrand 2005 (5) SA 357 (W) 36
Deneys Reitz v South African Commercial, Catering and Allied Workers Union 1991 (2) SA 685 (W) 299
Desai NO v Desai 1996 (1) SA 141 (A) 254
Dews v Simon’s Town Municipality 1991 (4) SA 479 (C) 266
Dhlamini v Multilaterale Motorvoertuigongelukkefonds 1992 (1) SA 802 (T) 354
Dhlamini v Protea Assurance Co Ltd 1974 (4) SA 906 (A) 354
Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A) 414, 415
Die Spoorbond v South African Railways; Van Heerden v South African Railways 1946 AD 999 398, 416
Dikoko v Mokhatla 2006 (6) SA 235 (CC) 11, 40, 360, 449
Dithaba Platinum (Pty) Ltd v Erconovaal Ltd 1985 (4) SA 615 (T) 252
Dlanjwa v Minister of Safety and Security 2015 JDR 2094 (SCA) 317
DN v MEC for Health Free State 2014 (3) SA 49 (FB) 554
Du Bruyn v Joubert 1982 (4) SA 691 (W) 257
Du Plessis v De Klerk 1996 (3) SA 850 (CC) 48
Du Plessis v Media 24 t/a Daily Sun 2016 (3) SA 178 (GP) 426, 441
Du Plessis v Road Accident Fund 2003 (11) BCLR 1220 (SCA); 2004 (1) SA 359 (SCA) 46, 67, 184, 284, 348
Du Preez v Conradie 1990 (4) SA 46 (BG) 227
Dube v Banana 1999 (1) BCLR 44 (ZH) 251
Duet and Magnum Financial Services CC (In liquidation) v Koster 2010 (4) SA 499 (SCA) 492
Dukes v Marthinusen 1937 AD 12 471
Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C)
295, 296, 304
Durban’s Water Wonderland (Pty) Ltd v Botha 1999 (1) SA 982 (SCA) 241, 242, 243, 244
During NO v Boesak 1990 (3) SA 661 (A) 224
Durr v ABSA Bank Ltd 1997 (3) SA 448 (SCA) 326
Dutch Reformed Church Vergesig v Sooknunan 2012 (6) SA 201 (GSJ) 16, 384, 394
Dzvairo v Mudoti 1973 (3) SA 287 (RA) 221, 222, 223
E
East London Western Districts Farmers’ Association v Minister of Education and Development Aid 1989 (2) SA
63 (A) 224, 225, 318, 319
Edouard v Administrator, Natal 1989 (2) SA 368 (D) 77
Eerste Nasionale Bank van Suidelike Afrika Bpk v Vermeulen 1997 (1) SA 498 (O) 255
EG Electric Co (Pty) Ltd v Franklin 1979 (2) SA 702 (E) 234, 326
Ehmke v Grunewald 1921 AD 575 452
Eksteen v Van Schalkwyk 1991 (2) SA 39 (T) 469
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) 295, 301
Engelbrecht v RAF 2007 (6) SA 96 (CC) 544
Enslin v Nhlapo 2008 (5) SA 146 (SCA) 165, 167
Erasmus v Grunow 1978 (4) SA 233 (O) 254
Escola v Coca-Cola Bottling Co of Fresno 150 P 2d 436 (1944) 566
Eskom Holdings Limited v Halstead-Cleak (599/2015) [2016] ZASCA 150; 2017 (1) SA 333 (SCA) (30
September 2016) 570, 572
Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA) 174
Essa v Divaris 1947 (1) SA 753 (A) 244
Estate Agency Affairs Board v Auction Alliance (Pty) Ltd 2014 (3) SA 106 (CC) 399
Estate Allie v Cape Town Municipality 1980 (1) SA 265 (C) 255
Esterhuizen v Administrator Tvl 1957 (3) SA 710 (T) 205, 328, 469
Esterhuizen v Minister van Pos & Telekommunikasiewese 1978 (2) SA 227 (T) 466
Esterhuizen v Road Accident Fund 2017 (4) SA 461 (GP) 504
Everson v Allianz Insurance Ltd 1989 (2) SA 173 (C) 500
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) 81, 250, 252, 254, 275, 348
Ex Parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A) 218, 219, 220
Ex Parte Minister of Safety & Security: In re S v Walters 2002 (4) SA 613 (CC) 225
F
F v Minister of Safety and Security 2012 (1) SA 536 (CC) 321, 322, 468, 479
Faiga v Body Corporate of Dumbarton Oakes 1997 (2) SA 651 (W) 168
Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89; [2002] 3 All ER 305 (HL) 113, 115, 116
Federation Internationale de Football v Bartlett 1994 (4) SA 722 (T) 298
Feldman (Pty) Ltd v Mall 1945 AD 733 473, 475, 476
Ferguson v Santam Insurance Ltd 1985 (1) SA 207 (C) 513
Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) 89, 390, 392, 394, 398
First National Bank of SA Ltd v Rosenblum 2001 (4) SA 189 (SCA) 242
First National Bank of South Africa Ltd v Duvenhage 2006 (5) SA 319 (SCA); [2006] 4 All SA 541 (SCA) 75
Fortuin v Road Accident Fund 2015 (5) SA 532 (GP) 346
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) 9, 11, 36, 38, 40
Fosi v RAF 2008 (3) SA 560 (C) 54, 67, 68, 69, 351, 352, 353
Fourie v Naranjo [2007] 4 All SA 1152 (C); 2008 (1) SA 192 (C) 462
Fourie v Santam Insurance Ltd 1996 (1) SA 63 (T) 351
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) 127, 133, 182, 270,
275, 278, 279
Frank & Hirsch (Pty) Ltd v Roopanand Brothers 1987 (3) SA 165 (D) 300
Franschhoekse Wynkelder (Ko-operatief) Bpk v South African Railways and Harbours 1981 (3) SA 36 (C) 267
Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 (4) SA 276 (SCA) 191, 236
Frenkel & Co v Cadle (1915) 36 NPD 173 129
Friederich Kling GmbH v Continental Jewellery Manufacturers, Speidel GmbH v Continental Jewellery
Manufacturers 1995 (4) SA 966 (C) 256
G
G A Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 70, 414
Gaertner v Minister of Finance 2014 (1) SA 442 (CC) 399
Gayre v SA Associated Newspapers Ltd 1963 (3) SA 376 (T) 425
Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A) 287, 295
Geldenhuys NO v Diedericks 2002 (3) SA 674 (O) 251
General Accident Insurance Co of South Africa Ltd v Xhego 1992 (1) SA 580 (A) 562
Gericke v Sack 1978 (1) SA 821 (A) 251, 256, 257
Gerke NO v Parity Insurance Co Ltd 1966 (3) SA 484 (W) 85, 360
Geyser v Pont 1968 (4) SA 67 (W) 424
Gibbins v Williams, Muller, Wright & Mostert Ingelyf 1987 (2) SA 82 (T) 469
Gibson v Berkowitz 1996 (4) SA 1029 (W) 516
Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security 2012 (2) SA 137 (SCA) 476
Gifford v Table Bay Dock and Breakwater Management Commission (1874) 4 Buch 96 468
Gijzen v Verrinder 1965 (1) SA 806 (D) 266
Gluckman v Schneider 1936 AD 151 150
Godfrey v Demon Internet (Britain) [1999] 4 All ER 342 419
Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd; Akani Egoli (Pty) Ltd v Electronic Media
Network Ltd 2011 (3) SA 208 (GSJ) 453
Goldberg v Durban City Council 1970 (3) SA 325 (N) 471
Gosschalk v Roussouw 1966 (2) SA 476 (C) 392
Gouda Boerdery BK v Transnet Ltd 2005 (5) SA 490 (SCA) 174, 189, 266
Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) 225
Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A) 213, 224,
241, 242, 244
Greeff v Protection 4U h/a Protect International 2012 (6) SA 392 (GNP) 381, 382, 391
Green v Naidoo 2007 (6) SA 372 (W) 160, 459, 460, 462
Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N) 267
Griffiths v Netherlands Insurance Co of SA Ltd 1976 (4) SA 691 (A) 326
Grindrod (Pty) Ltd v Seaman 1998 (2) SA 347 (C) 256
Groenewald v Groenewald 1998 (2) SA 1106 (SCA) 132, 161
Groenewald v Protea Assurance Co Ltd 1979 (1) SA 354 (C) 562
Groenewald v Snyders 1966 (3) SA 237 (A) 353
Groom v Crocker [1938] 2 All ER 394 (CA) 331
Grove v Ellis 1977 (3) SA 388 (C) 470
Grütter v Lombard 2007 (4) SA 89 (SCA) 90, 405, 406, 407, 408, 409
Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A) 344, 345
Gumede (born Shange) v President of the Republic of South Africa 2009 (3) SA 152 (CC); 2009 (3) BCLR 243
(CC) 60, 61
H
H v Fetal Assessment Centre 2015 (2) SA 193 (CC); 2015 (2) BCLR 127 (CC) 24, 75, 93, 101
H West & Son Ltd v Shephard [1963] 2 All ER 625 (HL) 84
Hamman v South West African People’s Organisation 1991 (1) SA 127 (SWA) 470
Hans v Minister van Wet en Orde 1995 (12) BCLR 1693 (C) 320
Harchris Heat Treatment (Pty) Ltd v Iscor 1983 (1) SA 548 (T) 304
Hare v White (1865) 1 Roscoe 246 522
Harksen v Lane NO 1998 (1) SA 300 (CC) 47
Harrington NO v Transnet Ltd t/a Metrorail 2010 (2) SA 479 (SCA) 539
Hartman v Minister van Polisie 1981 (2) SA 149 (O) 256
Hartman v Minister van Polisie 1983 (2) SA 489 (A) 252
Hassam v Jacobs NO 2009 (11) BCLR 1148 (CC); 2009 (5) SA 572 (CC) 62, 67
Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) 418, 426, 435, 436
Hauman v Malmesbury Divisional Council 1916 CPD 216 362, 364
Hawekwa Youth Camp v Byrne [2010] 2 All SA 312 (SCA) 266
Hawker v Life Offices Association of South Africa 1987 (3) SA 777 (C) 295
Hay or Bourhill v Young [1942] 2 All ER 396 363, 364
Healy v Compensation Commissioner 2010 (2) SA 470 (E) 551
Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964 AC 465 (HL) 269
Hendricks v President Insurance Co Ltd 1993 (3) SA 158 (C) 174, 346
Hentiq 1320 (Pty) Ltd v Mediterranean Shipping Co 2012 (6) SA 88 (SCA) 504
Heroldt v Wills 2013 (2) SA 530 (GSJ); [2013] 2 All SA 218 (GSJ) 16, 403, 419, 440
Herschel v Mrupe 1954 (3) SA 464 (A) 7, 154, 158, 266, 270, 306
Hiltonian Society v Crofton 1952 (3) SA 130 (A) 227
Hing v Road Accident Fund 2014 (3) SA 350 (WCC) 362
Hinz v Berry [1970] 1 All ER 1074 (CAC) 363, 364
Hirschowitz Flionis v Bartlett and Another 2006 (3) SA 575 (SCA) 276
Hix Networking Technologies v System Publishers (Pty) Ltd 1997 (1) SA 391 (A) 48
Hoechst Pharmaceuticals (Pty) Ltd v The Beauty Box (Pty) Ltd (In Liquidation) 1987 (2) SA 600 (A) 295
Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C) 359
Hoffmann v South African Airways 2001 (1) SA 1 (CC) 49
Holland v Simenhoff 1923 AD 676 469
Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W) 49
Holomisa v Khumalo 2002 (3) SA 38 (T) 412
Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA) 186, 191, 236, 239, 275, 276, 326
Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality [2017] 3 All SA 382 (SCA) 7, 28
Honey & Blanckenberg v Law 1966 (2) SA 43 (R) 331, 326
HRH King Zwelithini of KwaZulu v Mervis 1978 (2) SA 521 (W) 423, 427
Hughes NO v SA Fumigation Co (Pty) Ltd 1961 (4) SA 799 (C) 244
Humphrys NO v Barnes 2004 (2) SA 577 (C) 112
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd 1997 (4) SA 399 (SCA) 304
I
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) 267, 273, 276, 278
Ingram v Minister of Justice 1962 (3) SA 225 (W) 225
International News Service v Associated Press 248 US 215 (1918) 296
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Rabie v Kimberley Munisipaliteit 1991 (4) SA 243 (NC) 267
RAF v Makwetlane 2005 (4) SA 51 (SCA) 544
RAF v Sauls 2002 (2) SA 55 (SCA) 77
Rahim v Minister of Home Affairs 2015 (4) SA 433 (SCA) 376
Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (V) 520, 521
Ramothata v Makhothe 1934 NAC (N&T) 61
Rampal (Pty) Ltd v Brett Wills and Partners 1981 (4) SA 360 (D) 235, 332
Rand Staple-Machine Leasing (Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W) 256
Randaree v W H Dixon & Associates 1983 (2) SA 1 (A) 327
Rauff v Standard Bank Properties (A Division of Standard Bank of South Africa Ltd) 554
Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son (SA) (Pty) Ltd 1995 (1) SA 725 (T) 301, 303
Refrigerated Transport (Edms) Bpk v Mainline Carriers (Edms) Bok 1983 (3) SA 121 (A) 283
Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) 228, 266
Regering van die Republiek van Suid-Afrika v South African Eagle Versekeringsmaatskappy Bpk 1985 (2) SA 42
(O) 257
Relyant Trading (Pty) Ltd v Shongwe and others [2007] 1 All SA 375 (SCA) 377
Reyneke v Mutual and Federal Insurance Co Ltd 1991 (3) SA 412 (W) 85, 518, 519
RM v RB 2015 (1) SA 270 (KZP) 16
Road Accident Fund v Landman 2003 (1) SA 610 (C) 169
Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA) 576
Road Accident Fund v Sauls 2002 (2) SA 55 (SCA) 363, 364, 366
Road Accident Fund v Timis (29/09) [2010] ZASCA 30 504
Roberts NO v Northern Assurance Co Ltd 1964 (4) SA 531 (D) 518
Rodrigues v Alves 1978 (4) SA 834 (A) 469
Roelse v Commercial Union Assurance Co of SA Ltd 1981 (1) SA 1126 (A) 169
Roman v Pietersen 1990 (3) SA 350 (C) 470
Rondel v Worsley [1966] 3 All ER 657 (CA) 333
Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933 AD 87 310
Rooskrans v Minister van Polisie 1973 (1) SA 273 (T) 254
Roux v Hattingh 2012 (6) SA 428 (SCA) 7, 204, 205, 210, 211
Rudolph v Minister of Safety and Security 2009 (5) SA 94 (SCA) 378
Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd 1975 (4) SA 626 (W) 300
Ryland v Edros 1997 (2) SA 690 (C) 256
S
S v A 1971 (2) SA 293 (T) 392
S v Arnold 1985 (3) SA 256 (C) 97
S v Baartman 1983 (4) SA 395 (NC) 98
S v Banda 1990 (3) SA 466 (BG) 226
S v Bradbury 1967 (1) SA 387 (A) 215, 216
S v Campher 1987 (1) SA 940 (A) 142, 144
S v Chretien 1981 (1) SA 1097 (A) 97, 143, 153
S v Collett 1978 (3) SA 206 (RA) 207
S v Crockart 1971 (2) SA 496 (RA) 97
S v Erwin 1974 (3) SA 438 (C) 97
S v Fernandez 1966 (2) SA 259 (A) 266
S v Goliath 1972 (3) SA 1 (A) 217, 226
S v Hartmann 1975 (3) SA 532 (C) 150
S v Humphreys 2015 (1) SA 491 (SCA) 146
S v I 1976 (1) SA 781 (RA) 392
S v Kibi 1978 (4) SA 173 (E) 215, 218
S v Lekgathe 1982 (3) SA 104 (B) 227
S v M 2007 (2) SACR 60 (W) 208
S v Madiba 1998 (1) BCLR 38 (D) 402
S v Makwanyane 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) 62, 65, 380
S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) 46, 49, 447
S v Mogohlwane 1982 (2) SA 587 (T) 218
S v Mokgethi (16/1989) [1989] ZASCA 105; [1990] 1 All SA 320 (A) (18 September 1989) 126, 127, 132
S v Motsepe 2015 (5) SA 126 (GP) 152, 413
S v Mule 1990 (1) SACR 517 (SWA) 226
S v Ntuli 1975 (1) SA 429 (A) 219
S v SM 2013 (2) SACR 111 (SCA) 208
S v Smit 1963 (4) SA 824 (GW) 97
S v Thebus 2003 (6) SA 505 (CC) 44
S v Van As 1967 (4) SA 594 (A) 103, 109
SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) 432
SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A) 275, 500
SA Hang & Paragliding Association v Bewick 2015 ([2015] 2 All SA 581 (SCA); 2015 (3) SA 449 (SCA) 7
Sadomba v Unity Insurance Co Ltd 1978 (3) SA 1094 (R) 115
Saif Ali v Sydney Mitchell & Co [1978] 3 All ER 1033 (HL) 331, 333
Salusa (Pty) Ltd v Eagle International Traders 1979 (4) SA 697 (C) 300
Sambo v Milns 1973 (4) SA 312 (T) 224
Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ) 551
Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 85, 359, 516
Sanlam Capital Markets (Pty) Ltd v Mettle Manco (Pty) Ltd [2014] 3 All SA 454 (GJ) 182
SANTAM Bpk v Fondo 1960 (2) SA 467 (A) 65
Santam Bpk v Henery 1999 (3) SA 421 (SCA) 284
Santam Insurance Ltd v Ferguson 1985 (4) SA 843 (A) 354
Santam Insurance Co Ltd v Fourie 1997 (1) SA 611 (A) 79, 351, 353
Santam Insurance Co Ltd v Nkosi 1978 (2) SA 784 (A) 169, 170
Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) 205, 208, 209, 211, 328
Santam Insurance Ltd v Ferguson 1985 (4) SA 843 (A) 513, 514
Santam Ltd v Ethwar [1999] 1 All SA 252 (A); 1999 (2) SA 244 (SCA) 257
Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) 496
SAR & H v Edwards 1930 AD 3 460
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) 242
Sauls v Hendrickse 1992 (3) SA 912 (A) 432
Schultz v Butt 1986 (3) SA 667 (A) 295, 303
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827 (SCA) 158, 159, 167
Sea Harvest Corporation (Pty) Ltd v Irvin & Johnson Ltd 1985 (2) SA 355 (C) 295
Securefin Ltd v Sanlam Insurance Ltd [2006] JOL 18522 (C) 257
Seedat’s Executors v The Master (Natal) 1917 AD 302 65
Seleka v RAF 2016 (4) SA 445 (GP) 54, 67
Senior NO v National Employers General Insurance Co Ltd 1989 (2) SA 136 (W) 351
Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) 254
Shabalala v Metrorail 2008 (3) SA 142 (SCA) 161, 167
Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 (3) SA 653 (D) 190, 267, 275
Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam; Maphanga v Officer Commanding, South
African Police Murder and Robbery Unit, Pietermaritzburg 1995 (4) SA 1 (A) 320, 322
Sibiya v Swart NO 1950 (4) SA 515 (A) 319
Sieberhagen v Grunow 1957 (3) SA 485 (C) 255
Sigournay v Gilbanks 1960 (2) SA 552 (A) 84, 85
Sil v Road Accident Fund 2013 (3) SA 402 (GSJ) 501
Silver Crystal Trading (Pty) Ltd v Namibia Diamond Corporation (Pty) Ltd 1983 (4) SA 884 (D) 295
Sim v Stretch [1936] 2 All ER 1237 (HL) 424, 425
Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A) 81, 326
Simon’s Town Municipality v Dews 1993 (1) SA 191 (A) 171, 224, 225, 326
Sindani v Van der Merwe 2002 (2) SA 32 (SCA) 91, 422, 427
Singh v Santam Insurance Co 1974 (4) SA 196 (D) 352
Sizani v Minister of Police 1980 (3) SA 1205 (SEC) 319
Skenjana v Geca 6 (1928) NAC 4 64
Slomowitz v Kok 1983 (1) SA 130 (A) 326
Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A) 250, 495
SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd 2000 (4) SA 1019 (SCA) 236, 335
Smit v Abrahams 1992 (3) SA 158 (C) 130, 131, 159
Smit v Abrahams 1994 (4) SA 1 (A) 130, 133, 275
Smit v Meyerton Outfitters 1971 (1) SA 137 (T) 377
Smit v Saipem 1974 (4) SA 918 (A) 284
Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) 469, 470, 471
Smith v Die Republikein (Edms) Bpk 1989 (3) SA 872 (SWA) 521
Smith v Leech Brain and Co Ltd (1962) 2 QB 405 133
Smith v Mutual & Federal Insurance Co Ltd 1998 (4) SA 626 (C) 351, 352
Sokhulu v New Africa Publications Ltd 2001 (4) SA 1357 (W) 425, 426
Solomon v De Waal 1972 (1) SA 575 (A) 359, 460
South African Broadcasting Corporation v Avusa Ltd 2010 (1) SA 280 (GSJ) 89
South African Hang and Paragliding Association v Bewick 2015 (3) SA 449 (SCA) 54, 266, 311, 314, 317
South African National Defence Union v Minister of Defence 2012 (4) SA 382 (GNP) 415
South African Railways and Harbours v Edwards 1930 AD 3 319
Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) 85, 494, 511, 517
Spolander v Ward 1940 CPD 24 283, 284
Stacey v Kent 1995 (3) SA 344 (E) 174
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) 130, 158, 501
Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A) 266
Steenkamp NO v The Provincial Tender Board of the Eastern Cape 2007 (3) SA 121 (CC) 191, 313, 314, 318
Stein v Rising Tide Productions CC 2002 (5) SA 199 (C) 469, 470, 471
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd; Oude Meester Group Ltd v Stellenbosch Wine Trust Ltd
1972 (3) SA 152 (C) 297, 303
Stewart v City Council of Johannesburg 1947 (4) SA 179 (W) 168
Stocks & Stocks (Pty) Ltd v T. J. Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) 243
Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) 111, 148, 151, 424, 434
Summers v Tice 33 Cal.2d 80, 199 P2.d 1 (1948) 111
Sutter v Brown 1926 AD 155 422
Swart v Department of Economic Affairs, Environment and Tourism (Eastern Cape) [2001] 2 All SA 357 (E) 168
Swart v Honeyborne 1981 (1) SA 974 (C) 462
Swartbooi v RAF 2013 (1) SA 30 (WCC); [2012] 3 All SA 670 (WCC) 363
T
Taylor & Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 (1) SA 412 (A) 300, 303
Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 (2) SA 168
(CC) 401
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) 7,
189, 270, 275
Telkom (SA) Ltd v Duncan 1995 (3) SA 941 (W) 466
Telnikoff v Matusevitch [1991] 4 All ER 817 443
Terblanche v Minister of Safety and Security 2016 (2) SA 109 (SCA) 509
Thabethe v Minister of Police 1981 (3) SA 569 (D) 219
Thandani v Minister of Law and Order 1991 (1) SA 702 (E) 129, 132, 375, 520,
Thatcher v Katz 2006 (6) SA 407 (C) 234
The Cape of Good Hope Bank v Fischer (1885-1886) 4 SC 368 267
The Citizen 1978 (Pty) Ltd v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC); 2011 (8)
BCLR 816 (CC) 47, 49, 71, 93, 412, 425, 447
The Concept Factory v Heyl 1994 (2) SA 105 (T) 295
The Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd In Re Hyundai
Motor Distributors (Pty) Ltd v Smit No 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) 61
The Road Accident Fund v N F Timis (29/09) [2010] ZASCA 30 (26 March 2010) 497
Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of
Public Prosecutions 2009 (1) SA 141 (CC) 88
Thomas v Minister of Defence and Military Veterans 2015 (1) SA 253 (SCA) 551
Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA) 112, 233, 326, 336
Tie Rack plc v Tie Rack Stores (Pty) Ltd 1989 (4) SA 427 (T) 295, 303
Times Media Ltd v South African Broadcasting Corporation 1990 (4) SA 604 (W) 299
Titus v Union & SWA Insurance Co Ltd 1980 (2) SA 701 (Tks) 255
Tothill v Foster 1925 TPD 857 419, 426
Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) 254
Transnet Ltd v Sechaba Photoscan (Pty) Ltd 2005 (1) SA 299 (SCA) 505
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) 20, 182, 183, 191
Tshabalala v Jacobs 1942 TPD 310 227
Tshabalala v Lekoa City Council 1992 (3) SA 21 (A) 318
Tsichlas v Touch Line Media (Pty) Ltd 2004 (2) SA 112 (W) 16, 418
Tsimatakopoulos v Hemingway, Isaacs & Coetzee CC 1993 (4) SA 428 (C) 234, 335
Tsose v Minister of Justice 1951 (3) SA 10 (A) 375
Turkstra Ltd v Richards 1926 TPD 276 81
Tyco International (Pty) Ltd v Golden Mile Trading 547 CC (949/2013) [2016] ZASCA 44 (31 March 2016) 530
U
Union & SWA Insurance Co Ltd v Hoosein 1982 (2) SA 481 (W) 255
Union Government (Minister of Railways & Harbours) v Buur 1914 AD 273 219
Union Government (Minister of Railways & Harbours) v Warneke 1911 AD 657 17, 79, 224, 344, 345, 362
Union Government (Minister of Railways) v Sykes 1913 AD 156 224
Union Government v Ocean Accident & Guarantee Corporation Ltd 1956 (1) SA 577 (A) 187, 281, 345
Union Wine Ltd v E Snell and Co Ltd 1990 (2) SA 189 (C) 297
Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1979 (1) SA 441 (A) 381
V
Van As v Road Accident Fund 2012 (1) SA 387 (SCA) 168
Van der Berg v Coopers and Lybrand Trust (Pty) Ltd 2001 (2) SA 242 (SCA) 450
Van der Merwe Burger v Munisipaliteit van Warrenton 1987 (1) SA 899 (NC) 267
Van der Merwe v Protea Insurance Co Ltd 1982 (1) SA 770 (E) 255
Van der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE) 169
Van Eeden v Minister of Safety and Security 2001 (4) SA 646 (T) 58, 317
Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust as Amicus Curiae) 2003 (1) SA 389
(SCA) 44, 46, 48, 53, 193
Van Heerden v Paetzold 1917 CPD 221 304
Van Heerden v SA Pulp & Paper Industries Ltd 1946 AD 382 327
Van Jaarsveld v Bridges 2010 (4) SA 558 11, 64, 78, 385
Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C) 326
Van Wyk v Lewis 1924 AD 438 171, 172, 186, 235, 326, 327, 328
Van Zijl v Hoogenhout 2005 (2) SA 93 (SCA) 516
Van Zyl v Van Biljon 1987 (2) SA 372 (O) 464
Venter v Nel 1997 (4) SA 1014 (D) 372
Verheem v RAF 2012 (2) SA 409 (GNP) 54, 67, 349
Vermaak v Van der Merwe 1981 (3) SA 78 (N) 422
Viljoen v Smith 1997 (1) SA 309 (A) 475
Visagie v Transsun (Pty) Ltd [1996] 4 All SA 702 (Tk) 462
Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk t/a Pha Phama Security 2010 (4) SA 455
(SCA); [2011] 1 All SA 34 (SCA) 235, 242, 275, 276
Von Beneke v Minister of Defence 2012 (5) SA 225 (GNP) 476
W
Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (4) SA 285 (SCA) 307, 547, 548
Walker v Redhouse 2007 (3) SA 514 (SCA) 462, 463
Wapnick v Durban City Garage 1984 (2) SA 414 (D) 221, 222
Waring & Gillow Ltd v Sherborne 1904 TS 340 205, 207, 208, 340, 363, 364, 365
Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) 140, 142, 154
Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1990 (2) SA 718 (T) 295
Wessels v Bouwer 1971 (1) PH J9 (NC) 326
Wessels v Pretorius NO 1974 (3) SA 299 (NC) 222
Whitfield v Phillips 1957 (3) SA 318 (A) 331
Whittington v Bowles 1934 EDL 142 419, 421
Wiese v Moolman 2009 (3) SA 122 (T) 78
William Grant & Sons Ltd v Cape Wine & Distillers Ltd 1990 (3) SA 897 (C) 295
Williams v Shaw (1884–1885) 4 EDC 105 421
Williams v Van der Merwe 1994 (2) SA 60 (E) 432
Winterbach v Masters 1989 (1) SA 922 (E) 144, 222
Witham v Minister of Home Affairs 1989 (1) SA 116 (ZH) 351, 475
Woji v Minister of Police 2015 (1) SACR 409 (SCA) 376
Woodlands Dairy (Pty) Ltd v Parmalat SA (Pty) Ltd 2002 (2) SA 268 (E) 299
Y
Young v Shaikh 2004 (3) SA 46 (C) 523
Z
Za v Smith 2015 (4) SA 574 (SCA) 195, 266
Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC); 2008 (2) SACR 1 (CC) 40,
375
Zietsman v Van Tonder 1989 (2) SA 484 (T) 174, 266
Zillie v Johnson 1984 (2) SA 186 (W) 451
Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA 825 (ZS) 67
Table of legislation
A
Apportionment of Damages Act 34 of 1956 209, 233, 259, 336, 462, 466, 529, 532, 534, 535, 536, 540,
544, 550
Section 1 558
Section 1(1)(a) 209, 529, 530, 531, 532
Section 2 558
Section 2(1) 535
Section 2(1A) 345, 536
Section 2(1B) 345, 348, 537, 538
Section 2(2) 536
Section 2(2)(a) 259
Section 2(2)(b) 259
Section 2(4)(a) 259
Section 2(6)(a) 537, 538
Arms and Ammunition Act 75 of 1969 51, 282
Auditing Profession Act 26 of 2005 336
Section 46 336
Section 46(2) 336
Section 46(3) 336, 337
Section 46(3)(a)(ii) 337
Aviation Act 74 of 1962 458, 465
Section 11 458
Section 11(2) 465, 466
Section 11(3) 466
Section 11(6) 465
B
Black Laws Amendment Act 76 of 1963 66
Section 31 66, 350
C
Children’s Act 38 of 2005 206
Section 129(6) 206
Section 129(7) 206
Companies Act 71 of 2008 337, 338
Section 84(4)(b) 337
Section 417 399
Section 418 399
Compensation for Occupational Injuries and Diseases Act 130 of 1993 13, 259, 317, 543, 545, 546, 547,
548, 549, 550, 551, 556, 559
Section 15 551
Section 22(1) 551
Section 22(3)(a) 551
Section 35 552, 553
Section 35(1) 322, 555
Section 35(2) 553
Section 56 552
Section 56(1) 553
Section 56(4) 551
Section 60(1) 323
Section 65(1)(b) 554, 555
Sections 91(1)–(4) 552
Section 91(5) 552
Constitution of the Republic of South Africa, 1996 4, 35, 40, 41, 44, 50, 60, 92, 93, 94, 183, 184, 317, 412,
545, 552
Bill of Rights 36, 40, 41, 42, 43, 45, 57, 61, 92, 93, 245, 317, 380, 434, 477
Section 1 46, 48
Section 1(d) 48
Section 2 35, 52, 545
Section 7 52
Section 8 41, 42, 89, 399
Section 8(2) 40, 41, 42
Section 8(3) 42
Section 8(3)(b) 42
Section 9 43, 53
Section 9(1) 46, 320
Section 9(4) 53
Section 9(5) 53
Section 10 39, 42, 53
Section 11 42
Section 12 40, 42
Section 12(1) 561
Section 12(1)(e) 227
Section 14 42, 93, 380, 390, 399
Section 15 42, 43
Section 16 42, 43, 413, 445
Section 17 42
Section 18 42, 43
Section 19 42
Section 20 42
Section 22 42
Section 23 43
Section 24 42
Section 25 42
Section 26 42
Section 27 42
Section 27(1)(c) 545
Section 27(2) 545
Section 27(3) 331
Section 28(1)(b) 37
Section 28(2) 55
Section 29 43
Section 30 43
Section 32 43
Section 33 43
Section 34 247
Section 36 43
Section 36(1) 41
Section 38 561
Section 39 45
Section 39(2) 40, 43, 45, 56, 57, 245, 388, 477
Section 39(3) 41
Section 41(1) 52, 53
Section 58(1) 449
Section 87 551
Section 117(1) 449
Section 161 449
Section 195 48
Section 211(3) 61
Section 239 318, 322, 323, 417
Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) 41, 257, 312
Section 24(a), (b) and (c) 312
Section 7(4)(a) 312
Section 187 312
Section 187(2) 312
Consumer Protection Act 68 of 2008 26, 213, 241, 247, 305, 543, 548, 549
Regulation 44(3)(a) 246, 247
Section 1 571
Section 4(4) 244
Section 5(1)(d) 573
Section 5(5) 573
Section 49(1) 243
Section 51 247
Section 51(1)(c)(i) 213, 241, 242
Section 51(3) 213
Section 53 568, 570
Section 53(1) 571
Section 53(1)(a)(i) 570
Section 53(1)(a)(ii) 570
Section 53(1)(b) 568, 570
Section 53(1)(c)(ii) 569
Section 53(1)(d) 568, 573
Section 60 573
Section 61 26, 246, 247, 305, 309, 566, 570, 573, 575, 576
Section 61(1) 568, 571
Section 61(1)(a) 569, 570
Section 61(1)(c) 571, 573
Section 61(2) 573
Section 61(4) 575
Section 61(4)(a) 573, 574
Section 61(4)(b)(i) 574
Section 61(4)(b)(ii) 574
Section 61(4)(d) 575, 576
Section 61(4)(d)(i) 575
Section 61(4)(d)(ii) 575
Section 61(4)(d)(iii) 575
Section 61(4)(d)(iv) 575
Section 61(5) 573
Section 61(5)(a)–(b) 572, 573
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 401
Sections 15 and 16 401
Criminal Procedure Act 51 of 1977 376
D
Defence Act 44 of 1957 257
Section 113(1) 257
E
Electoral Act 73 of 1998 448
Section 89(2) 448
Electricity Regulation Act 4 of 2006 9
Electronic Communications and Transactions
Act 25 of 2002 89, 392
Estate Agency Affairs Act 112 of 1976 399
F
Financial Intelligence Centre Act 38 of 2001 399
Foodstuffs, Cosmetics and Disinfectants
Act 54 of 1972 573
G
General Law Amendment Act 62 of 1955 316
Section 35 316, 322
Genetically Modified Organisms
Act 15 of 1997 466
Section 17(1) 466
Section 17(2) 466
H
Health Professions Act 56 of 1974 559
Human Rights Act 1998 18
I
Indecent or Obscene Photographic Matter
Act 37 of 1967 400 400
Section 2(1)
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 257, 320
Section 1(1) 323
Section 1(b) 318
Section 3(2) 258
Section 3(4) 258
Sections 3–5 257
Interception and Monitoring Prohibition
Act 127 of 1992 392
L
Local Government: Municipal Structures
Act 117 of 1998 449
Section 28 449
M
Matrimonial Property Act 88 of 1984 536
Section 19 536
Medicines and Related Substances Control Act 101 of 1965 401, 573
Section 28(1) 399
Mental Health Act 18 of 1973 206
Motor Vehicle Insurance Act 29 of 1942 544
L
National Building Regulations and Building
Standards Act 103 of 1977 335
Section 4(1) 335
Section 7 335
National Nuclear Regulator Act 47 of 1999 9

North West Provincial Legislature’s
Powers, Privileges and Immunities Act 5 of 1994 449
O
Occupational Diseases in Mines and Works
Act 78 of 1973 555
Occupational Health and Safety Act 85 of 1993 553
Schedule 3 554
Section 1 553
O
Police Act 7 of 1958 474
Section 5 277
Section 32(1) 257
Post and Telecommunication-Related Matters
Act 44 of 1958 458
Section 108 458, 466
Prescription Act 68 of 1969 248, 254, 257, 575
Chapter III 256
Section 10 249
Section 11 249
Section 12 575
Section 12(1) 249, 250, 575
Section 12(2) 250
Section 12(3) 251, 252, 257
Section 13 253, 257, 576
Section 13(1) 252
Section 13(1)(d) 253
Section 13(1)(e) 253
Section 13(1)(f) 253
Section 13(1)(h) 253
Section 14 257, 576
Section 14(1) 255, 576
Section 15 576
Section 15(1) 254, 255, 576
Section 15(2) 254, 255
Sections 15(2)–(6) 254
Section 15(3) 255
Section 15(4) 255
Section 15(6) 254
Section 16(1) 256
Section 17 249
Section 17(1) 256
Section 17(2) 256
Section 19 256 575
Section 61(4)(d)
Promotion of Administrative Justice
Act 3 of 2000 318
Promotion of National Unity and Reconciliation
Act 34 of 1995 446
Section 20(10) 446
Protection of Personal Information
Act 4 of 2013 393, 480
Section 3 393
Section 4 393
Section 5 393
Section 73 393
Section 99(1) 393, 480
Section 99(2) 481
Section 99(3) 393
Public Accountants’ and Auditors’
Act 80 of 1991 272
Section 20(9)(b)(ii) 272, 338
R
Recognition of Customary Marriage
Act 120 of 1998 61
Section 1 61
Section 2 350
Section 6 61
Regulation of Interception of Communications and Provision of Communication-Related
Information Act 70 of 2002 89, 392
Rental Housing Act 50 of 1999 148
Right of Appearance in Courts
Act 62 of 1995 331
Road Accident Fund Act 56 of 1996 9, 47, 53, 258, 361, 543, 544, 546, 548, 549, 555, 556, 560, 564
Section 1 562
Section 3 556
Section 17 258, 558, 562, 563
Section 17(1) 557, 558, 559
Section 17(1)(1A) 559, 562
Section 17(1)(1A)(a) 559
Section 17(4)(c) 532, 559
Sections 17(4)–17(6) 561
Section 17(5) 558
Section 18 559
Section 18(2) 559
Section 18(4) 559, 561
Section 19 560
Section 19(a) 558
Section 19(g) 361, 560
Section 20 562
Section 21 558, 560, 563
Section 21(1) 362
Section 21(2)(b) 362, 560
Section 23 258, 563
Section 23(1) 259
Section 23(2) 258
Section 23(2)(a)–(c) 259
Section 23(3) 258, 259
Section 24 258, 557, 563
Section 24(5) 557
Section 24(6) 557 558, 563
Section 25
Road Accident Fund Amendment
Act 19 of 2005 361, 543, 556
Section 8(b) 361
R
South African Schools Act 84 of 1996 227
Section 10 227
Section 20(4) 322
Section 60(1) 322
State Liability Act 20 of 1957 316, 318
Section 1 318
Section 2 320
Section 3 320, 323
Section 4 320
State Liability Amendment Act 14 of 2011 320
State Tender Board Act 86 of 1968 312
W
Workmen’s Compensation Act of 1941 550
Index
A
absolute privilege 449
accountability
assessing 140
intoxication 143
meaning 138, 139
mental illness and emotional distress 142–143
provocation 143–144
youth 140–142
accountants and auditors 336
actio de effusis vel deiectis 465
actio de pastu 33, 99, 464
actio de pauperie 33, 458–459
defences 462–464
elements of act 462
actio iniuriarum 31–32
assault 519
defamation 521
deprivation of liberty 520
determining appropriate amount 519–522
dignity, privacy and identity 521
sexual abuse 519–520
actio legis Aquiliae 29–30
actio positis vel suspensis 465
adultery 385-388
advocates 333
Afro-centric law of delict 72
amende honorable 522, 523, 524
amende profitable 522
amenities of life, loss 517
Anglo-American law 19
animal behaviour 99, 459–462
type of behaviour 459–462
animals, liability for harm caused by
contra naturam test 459–460
domestic 458–459
grazing animals 464
keeper 459
owner of 459
provocation 460
reasonable dog behaviour 460, 461, 463
strict liability 457–458
type of animal 459
type of behaviour 459–462
animus iniuriandi 435–438
apportionment: defendants 535–539
claims by breadwinners 539
claims by dependants 537–539
spouses 536–537
statutory provision 535–536
apportionment: plaintiff and defendant 529–535
contributory negligence 532–533
methods 530–532
statutory provision 529–530
apportionment: plaintiffs and defendants 539
Apportionment of Damages Act 34 of 1956
prescription 259
Aquilian liability 20
product liability 305–308
unlawful competition 294–296
arbitrary outcomes 549
arrest, wrongful 375
artificial persons 86, 381, 414–416
assault 373, 374
attorneys 331–333
automatism 96–99
aviation 465–466
B
banks 340–343
bodily integrity
infringements 86, 371–378
medical practitioner infringing patient’s 232
private defence 218
similar to integrity of image 90
breach of contract 191, 193
concurrence of actions 232–233
contributory fault and 534
extent of harm 233
inducing 293
liability for 232
meaning 231
purpose of remedies 232
recognition of overlap with delict 237
breach of duty 184, 186
breach of promise to marry 386–387
breach of statutory duty
liability 310–313
negligence 311
wrongfulness 313–315
builders and architects 333–335
bullying 364
but-for test 54, 103, 106, 108, 113, 114, 117–118
C
call boxes 466
capitalisation 510
causa sine qua non 103, 104, 123, 131
causation, legal 123–135
cause: definition 100
children
accountability 174
contributory fault 533
danger to 169
negligent 172–173
pactum de non petendo in anticipando 213
prior agreement not to claim 213
commission 99
common law
exception to once and for all rule 494
right to identity 404
right to privacy 391
torts 10
compensation 16
civil proceedings inadequate 548
for harm 9–10
for infringement of interest 9–10
risk of receiving no 544–545
Compensation for Occupational Injuries and
accident in the workplace 550
common-law delictual claim, prohibition 552
definition of employee 553
lodging a claim 259
mine workers 555
occupational disease 554
operation of COIDA 551
payment of compensation 551
prescription 259
serious and willful misconduct 551
comment or opinion 444
concurrence of actions 231–233
meaning 232
of liability 232
of remedies 232
significance 232, 233
conditio sine qua non test 103–110
alternatives 112
clumsy and circuitous 110
critique 110–111
multiple or cumulative cases 111
not a true test 111
conduct linked to harm 95
defence of automatism 96–99
failure to say or do something 95
human 96
omissions 95, 96, 99
overt behaviour 95
positive acts 95–96
positive physical act 95
positive statement 95
statements 96
using objects or animals 96
voluntary 96–99
consent 204–208
valid 205–206
consent by assumption of risk 208–212
Constitution of the Republic of South Africa, 1996
central to legal system 35
customary law 61
democracy 48
dignity 46–47
direct application 40–43
equality 46-47
exemption clauses 244–248
freedom of expression 48–49
governance 48
indirect application 40, 43–46
non-violence 49
prescription 257
protection of vulnerable people 49
relationship with law of delict 36
values and norms 46–49
constitutional damages 36–40
constitutional impact
adjusting application of legal rules 50–53
application of established rule to new set of facts 55–56
changing existing rule 53–55
introduction of new legal rule 55
constitutional remedies 36
delictual remedy serving as 39
constitutional rights, infringement 38–39
delictual damages 39–40
overlapping with delict 38–39
consumer products
defective 544
rise in 545, 548, 549
Consumer Protection Act 68 of 2008
introduces strict liability 26
lnature of liability created by 566
contaminated blood 568
contingencies 502–504
contra naturam test 458–460
contract
choice of action 231
concurrence of action 231–232
delictual actions arising from 235
exclusion of action in delict 235–240
exclusive delictual action 234
frustrating conclusion of a contract 286
intentional interference 284–286
interference with contractual relations 281
negligent interference with contractual relations 281
when there is concurrence 235
contributory fault 529–534
breach of contract and 534
contumelia
adultery 387, 388
assault 373–374
de minimis 386
iniuria 372
insult 86, 381, 385
juristic person cannot suffer 87
meaning 86
self-esteem 521
corpus see bodily integrity
corrective justice 5
criminal defamation 389, 413
culpa: meaning 139
customary law
constitutional obligation to apply 61
development 45
influence of African culture and values 63–65
nature 61
role 62, 352
cyber delicts 16
cyberbullying 364
cybercrime 332
cyberspace 16
D
damages
accounting benefits 495–498
action for recovery 486
collateral sources 495
exceptions to once-and-for-all rule 494–495
future loss 491–492
general and special 487
Germanic remedies see physical-mental integrity
harm and 487
once-and-for-all rule 492–494
punitive 488–489
quantification see quantification of damages
single cause of action 493
damages award
contingencies 502–504
currency 501–502
date of delict 498–499
inflation 500–501
interest 499
purpose 488–491
taxation 499
unconscious persons 518–519
danger
dealing with inherently dangerous things 169
natural phenomena 213
present/imminent 216
to children/people with disabilities 169
death of another person see injury or death of
another person
decolonisation 72
defamation
artificial persons 415–416
communication 418–421
criminal 389, 413
intersects with freedom of speech 412
meaning 412
minors 414
natural persons 414
organs of state
privileged communication 421
publication 417
reputation see reputation
responsible persons 417–418
understanding of publication 421–422
defamation (customary law) 69–70
remedies 70–72
defamatory matters
animus iniurandi 435–436
benchmark 424–431
categories 426
content of the publication 422
innuendo 422–423
liability of mass media 436–438
meaning of words/content 422
presumptions 433–434
quasi-innuendo 423, 426
reasonable reader/listener 423–424
reference to plaintiff 431–433
defective products
common law 309, 576
proof 306
strict liability 309, 548, 566–567, 576
delict (definition) 7–9
delictual problem solving
apportionment of damages 29
determining a remedy 28
during course of employment 473
fact-based decisions 27
identification of parities 27
normative decisions 28
dependants’ action 65–69
deterrence in delict 12–13
dignitas see dignity
dignity 86
breach of promise 385
common law 380
infringments 380–389
insult 381–389
intention 385–386
subjective nature of 381
direct consequences test 125, 128, 129, 130
proximate cause test
see also test
disciplinary powers 227
dolus
directus 145–146
eventualis 146–147
indirectus 145
meaning 139
duty of care (English law) 187–190
E
email
cautious approach 362
cyber delict 16
cybercrime 332
defamation 152, 418
disclosing content 89
privacy 392, 394
emotional shock
development of law 362
meaning 361
employment
developing condition during 116
employee 468
employee of two employers 470
employment relationship 469
independent contractors 470
endangered interest 214
engineers 333–335
European civil law 19
ex ante (foresight) 197
ex post facto (hindsight) 197
exemption clauses
constitutional effect 244–248
interpretation 243
validity and effect 241
F
Facebook 384, 394, 409
defamation 418–421, 526
factual causation
appropriate test 117
but-for test 103–104, 114, 117
common sense 112–114, 117
conditio sine qua non see conditio sine qua non
determining 103–109
flexible approach 109
human experience and knowledge 114
material contribution 112, 117
multiple, cumulative or successive causes 115–117
nature 109
purpose 109
two-fold enquiry 102–103
variation of common sense approach 114
fair comment 443–444
not statement of fact 444
prescribed limits 445
protected comment 446, 447
public interest 444
substantially true facts 444
test 445
truth 446
false light 404–405
fama see reputation
fault
accountability see accountability
blameworthiness of defendants 176
components 138
determining 197–198
evidentiary difficulties with proving 546–547
intention see intention
liability based on 25–26
nature of relevant to wrongfulness 198
negligence see negligence
flexible approach 125–128
foreseeability
dolus eventualis 146
reasonable 129
test for negligence 157–161
freedom of expression
criminal defamation 413
delictual counterpart 42
dignity and 12, 24, 389
exceeding bounds of 426
factual situations 434
fair comment 443, 445–448
foundational values 48
personality rights 439
privileged occasion 448
qualified privilege 449–452
right to identity 410
right to reputation and 522
violation 43
functions of delict
compensation for harm suffered 9–10
compromising between conflicting moral views 12
deterrence 12–13
educating and reinforcing values 12
loss spreading 13–14
promoting social order and cohesion 11–12
protecting certain interests 10–11
G
genetically modified organisms 466
Germanic remedy for pain and suffering 19, 31
goods, definition 567
goods, defective
acceptable 571
bystander 572
consumer 571–572
definition of defective 569
extreme risk 569
failure 568
harm 573
hazard 569
inadequate instructions 571
liability 573
significant risk 569
unsafe 568
user 571–572
goods, defective (defences)
absence of defects at time of supply 574
compliance with instructions 574
compliance with public regulation 573–574
defect not reasonably discernible by distributor/
retailer 574–575
time limit for claims 575–576
grief 22, 31, 77, 79, 353, 362, 363
H
harm
actions not mutually exclusive 77
cornerstone of delict 75
creating opportunities for the appearance of 114
defective goods 573
foreseeability of harm 157–161
increasing risk 114
intentional causing 198
legally recognised 83
limitation 94
pain and suffering 76, 83–85
patrimonial and non-patrimonial 76, 80–82
preventability 161–167
psychiatric injury 77
pure economic harm see pure economic harm
recognising 78
remedy (damages) 80
slight possibility of serious 162
statutory compensation of 543
terminology 76
violation of personality interest 76
Hindu law and culture
influence 60, 65
recognition 61
HIV/AIDS
contaminated blood 568
disclosure of status 394, 396–397
testing without consent 401
human conduct 96
I
identity 90–91
appropriation 405
common law 404
false light 404–405
right to 404, 408–409
identity infringements
factual violation 406
insulting infringement 406
proof 410
recent cases 406–410
immovable property
liability for defects 567
impossibility 228
independent contractors
act or omission 472
harm done by 471
insurance 14
liability 14, 335
locatio conductio operis 470
negligent 472
vicarious liability 471
inference
distinguished from presumption 151
information products
strict liability 567–568
infringements of bodily integrity 185
injury or death of another person
action of dependants 346
claims based on injury 344
contracting parties, claim 345
damages 353–354
executor for funeral and other expenses, claim 346
heirs/family members for funeral expenses,
claim 345
heirs/legatees for reduced inheritance, claim 345
history 347
loss of support based on injury to the support
provider, claim 355
nature and requirements for 347
no general right to recover damages 344
parents/employers for loss of service, claim 345
pure economic harm 344
who can sue? 348–353
insult 381–389
establishing wrongfulness 382
factual violation 381
insurance 15–16
internet 16
banking 328
cybercrime 332
failure to remove defamatory material 419
privacy 393
publications 418
intention 144–145
consciousness of wrongfulness 148–149
defences excluding 151
direction of will 148, 149–150
emotional distress 153
intoxication 153
jest 152
mistake 152
motive distinguished from 150
proving 150
provocation 153
interdict 16, 525–527
interests protected see protected interests
intoxication 143, 153
Islamic law and culture
dependants’ action 65–67
influence 65
marriage 67
recognition 60, 61
relationships 54
J
jest 152
joint wrongdoers 535–539
juristic persons
defamation 411
dignity 381
identity 91, 406
personality rights 86–87
privacy rights 88, 91, 398–399
reputation 415
justification for personality interests: infringements
fair comment 443–448
privileged occasion 448–452
reasonable publication 440, 451, 452–454
truth for public benefit 440–443
L
legal causation
adequate cause test 131, 132
direct consequences theory 128–129
flexible approach 125–128
intent 132
novus actus interveniens 134–135
operation in practice 124–125
reasonable foreseeability 129–131
subsidiary approach 128
talem qualem rule 133–134
legal duty
content of 190
policy considerations 191–197
legal pluralism 69, 72
legal practioners 331–333
lex Aquilia 504
liability
based on fault 25
contract excluding action in delict 231–240
essential elements based on fault 25–26
limitation 243
personality interests 369–370
product 305–309
professional 325–343
psychological or emotional harm 357–358
strict liability see strict liability
vicarious liability see vicarious liability
liberty, wrongful deprivation of 377
litis contestatio 359
local authorities 200, 263, 264, 277, 311–313
claims against 495
defamation 416
delictual liability 323–324
loss of earning capacity
four-step method 510–513
interest rates 499
once-and-for-all-rule 491, 508
quantifying damages 506
loss of support 212
claims 315
qualifying the damages 513
loss should lie where it falls 7
loss spreading 13–14
M
marriage, breach of promise 386–387
media
liability of mass media 436–438
privilege 451
medical practitioners 327
consent 329
harmful side effects 328
liability for economic loss 331
physical harm to patient 331
mental illness and emotional stress 142–143
mistake
bona fide 152
rebutting presumption of intention 32, 152
morals
compromising between conflicting moral views 12
morality and fairness 6
motive 150
multi-culturalism
customary law 60
dependants action 65–69
influence of African culture 63–65
influence of Islam and Hindu culture 65
multiple, cumulative and successive causes 115–116
N
natural persons 96, 414, 572, 573
nature of the law of delict 5–7
corrective justice 5
loss allocation 5
morality and fairness 6–7
regulatory framework 5–6
necessity 213–217
negligence 153
based on similar factors as wrongfulness 199
concept 154
foreseeability 156–157
interference with contractual relations 281–284
inherently dangerous things 169
proving 174–175
reasonable person 154
relative approach to 159
standard of care see standard of care
test 154–156
negligent misstatements
contractual warranties 273
economic and social consequences 273
factual considerations 271
foreseeable harm 273
insurance cover 273
legal duty to provide correct information 270
liability 269
pre-contractual negotiations 273
professional knowledge and competence 270
public office 270
public policy considerations 271
special relationship 273
statutory duty 273
verifying information 273
non-patrimonial harm 80
O
obligation to act positively 266
orders, obedience to 226
official capacity 225–226
omissions 99
control 265
creating an expectation 267
knowledge 267
liability 263
obligation to act positively 266
practical measures to avert harm 267
prior conduct approach 264, 265
professional duty 267
public office 267
social and economic implications 267
once-and-for-all rule 492–495
organs of state
defamation 417
legislation 257–258
limitation periods for actions 320
notice 320
prescription 257
recovery of debts from 257
overlapping rules 515
P
pactum de non petendo in anticipando 212–213, 241
validity and effect 241–243
pain and suffering 83–85, 359–360
Germanic remedy 31, 516
non-transmissible 359
purpose of award 359
parties, identification of 27
passing off 296
patrimonial harm 80
quantifying of damages for see quantification of damages
personal freedom, deprivation of 375–378
personality interest, infringement of 86
bodily integrity 86
digital manipulation 92
dignity 86–87
identity 90–91
iniuria 86
justification see justification for infringement of personality interests
privacy 88–90
reputation 91
subjective assessment 91–92
violation of 91–92
personality rights
actio iniuriarum 371
constitutional rights and 92–94
general remedy 371
identity see identity
physical-mental integrity
assessing reparation for infringements 515–517
prescription
beginning 249–252
Constitution 257
delay 252–253
effect 248–249
interruption by acknowledgment of liability 255–256
interruption by service of process 254–255
legislation 256
limitation 256
nature 248–249
onus 256–257
period 249
procedure 256
waiver 256
presumption
culpae capax 140, 141
defamation 433, 435
distinguished from inference 151
of accountability 140
of innocence 359
of intention 32, 151, 385, 391, 396, 398, 436
of negligence 46, 174
of wrongfulness 440, 449, 451
statutory presumption of negligence 174
prior agreement not to claim 212
on behalf of a child 213
privacy 86–88
common-law right to 391–398
constitutional right to 399
electronic communication 392
factual violation of right 391
infringements 390
juristic persons 398
online world, threats 393
social media 402–403
threats in the online world 393
private defence 217–220
distinguished from necessity 213
privileged communication 421
privileged occasion 225, 394, 440, 442, 448–453
absolute privilege 449
media privilege 451
therapeutic privilege 207
product liability
Aquilian liability 305–309
assessing defectiveness 306
common-law liability 309
onus to prove causal link 307
statutory remedy 309
strict liability 309
unreasonably dangerous 307
professional liability
competence and skill 326
contractual relationship 325
delictual action 325
relationship with client 325
specialised knowledge 326
test for negligence 326–327
third parties 326
protected interests 22–25
conflicting 22–23
defendants 24
function of delict 10–11
method of protection 23–24
range 23–24
types of interests 23–24
provocation 143–144, 153, 221–223
proximate cause test 128, 129 see also direct
consequences test
psychological harm
appropriate action 365–366
bullying 364
causes 364
cautious approach 362
criteria for liability 366
development of law 362
justification for award of damages 363
meaning 361
public authorities
effect of Constitution 317
general trends in South Africa 317
local authorities 323
widening liability 316
public schools
State liability 322
publication
defamation see defamation
reputation see reputation
professional liability 325–340
pure economic harm
ability to protect against 276
degree and extent of risk 276
examples 274–275
fraud and dishonesty 278
knowledge 276
meaning 274
policy considerations 278
practical measures to avert 276
professional service 276
statutory duty 277
Q
quantification of damages
capitalisation 510
damage to property 505–506
earning capacity 508–510, 512
expenses 507–508
future income, calculating loss 510–511
illegal earnings 511
loss of earnings 508–510
loss of support 513–514
mitigation of loss 514–515
personal injury 506–507
R
reallocating losses 13–14
reasonable conduct of others 167–168
reasonable dog 460, 461, 463
reasonable foreseeability 129
reasonable person
characteristics 154
forseeing harmful consequences
reasonable reader/listener 423–424
reduction of damages
contingency adjustments 502–504, 531
contributory fault 176
governed by statute 529
remedies 16–19
compensation 16
damages see damages
Germanic remedy 17, 515–517
interdict 16, 525–527
meaning 486
modern law of delict 18–19
retraction and apology 16, 522–525
Roman law 17
reputation 91
constitutional protection 412
defamation law protection 412
definition 411
distinct from dignity 412
reputation infringements
criminal defamation 413
retraction and apology 16
Road Accident Fund Act 56 of 1996
aim 556
causation of harm 562
damages 561
delimitation of claims 563
driving 562
exclusions of the Fund’s liability 560
fault-based compensation system 557, 563, 564
liability of the Fund 558, 563
limitation of the Fund’s liability 559
locality 562
motor vehicle: definition 562
operation 558
prescription 258, 563
procedure 563
reform 557
right of recourse 563
Road Accident Benefit Scheme 543–544
scope of liability of act 558
S
seduction 378–379
self-control 222, 223
self-defence 217–220
proportionality between defence and attack 226–220
social media 402–403, 418
social order and cohesion 11–12
social security, right to 545–546
solatium 353, 359, 378, 489, 493, 497
South African approach, to delictual liability 20–21
spite and malice 442
sport-related injuries 210–211
standard of care
attorneys 331
attributes of defendants influencing 170–171
beginners 171
breach of statutory duty 169
children 172–173
common practice of dangerous measures 168
danger to children 169–170
danger to disabled persons 169–170
dealing with inherent danger 169
error of judgement 168–169
evaluation of conduct 139
experts 171–172
generally accepted practice 327
precautionary measures 167
reasonable conduct of others 167–168
reasonable person 163, 307
societal expectations 154
sudden emergency 168–169
State
citation 320
conditions for claims 320
execution and attachment prohibited 320
limitation of liability 320
time periods 320
State Liability Act 20 of 1957 318–322
direct liability 321–322
vicarious liability 321–322
statutory authority 224–225
statutory development of the law of delict
legal and public policy considerations 543–549
statutory duty, breach of see breach of statutory duty
strict liability
animals, harm caused by 458–464
aviation 465–66
damage to call boxes 466
damage to telecommunication lines 466
defective products 566, 576
down-stream 566
essential elements 26
genetically modified organisms 466
goods for purpose of 567–568
grazing animals 464
information products 568
meaning 458
object falling from building 465
statutory instances of 465, 466
up-stream 566
subrogation, doctrine 15
subsidiary tests 128–132
T
talem qualem rule 133
technology 16
telecommunication lines 466
tort 5, 6, 9, 10, 13, 14, 18, 19
trade secrets 296
truth for public benefit
public benefit 441
truth 440–441
U
ubuntu-botho 65, 70, 71, 72
universitas 17, 18, 83, 415
unlawful competition
Aquilian liability 294–296
confidential information 296
damages 304
disparaging a good name 299
fault 301
forms 296–301
interests protected 302
interfering with contractual right of competitor 300
leaning on 297
misappropriation of performance 299
passing off 296
trade secrets 296
wrongful misappropriation 298
wrongful trading conduct 298
wrongfulness 302
V
values
educating and reinforcing values 12
values and norms (constitutional) 46–49
validity and effect 241–243
vicarious liability 33–34
employee 468
employee of two employers 470
employment relationship 469
general rule 468
independent contractors 470–472
intentional wrongdoing 476
justification 468
meaning 48
violence 49
vis absoluta 97
voluntary conduct 96–98
W
wrongful arrest 91, 225, 375, 377, 378
wrongfulness
attribute of conduct 180–181
based on similar factors as negligence 199–200
breach of duty 186
circumstances 180
concept of duty 187–190
constitutional norms 183–184
content of legal duty 190
criteria for determining 183–184
determining wrongfulness or fault first 197–198
foresight 197, 201
hindsight 197
infringement of a right 184–185
intentional causing of harm 198
legal duty 201
matter of law 182
meaning 178
modern view 201
must be pleaded 182
nature of fault relevant to 198
omission 263–268
omissions see omissions
policy considerations 190–197
presupposes conduct and consequences 181
role in SA 178–180
unlawfulness 178
wrongfulness, defences
consent 204–208
consent by assumption of risk 208–212
disciplinary powers 227
impossibility 228
necessity 213–217
obedience to orders 226
official capacity 225–226
prior agreement not to claim 212–213
private defence 217–221
provocation 221–223
self-defence 217–221
statutory authority 224–225
women and child abuse 49
Y
youth 140–142

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Oxford University Press is a department of the University of Oxford.

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Published in South Africa by

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© Oxford University Press Southern Africa (Pty) Ltd 2017

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First published 2009

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ISBN 9780 1 90 41165 7

Typeset in Utopia Std 9.5 pt on 12 pt

PART ONE INTRODUCTORY OVERVIEW

CHAPTER 2 DELICT AND THE CONSTITUTION

CHAPTER 3 DELICT IN A MULTI-CULTURAL SOCIETY

PART TWO GENERAL PRINCIPLES: PRIMARILY FACT-BASED ISSUES

CHAPTER 6 FACTUAL CAUSATION

PART THREE GENERAL PRINCIPLES: PRIMARILY NORMATIVE ISSUES

CHAPTER 10 GROUNDS OF JUSTIFICATION: DEFENCES DIRECTED AT THE WRONGFULNESS ELEMENT

PART FOUR EXCLUSIONS

CHAPTER 12 EXEMPTION CLAUSES

CHAPTER 15 NEGLIGENT MISSTATEMENTS

CHAPTER 16 PURE ECONOMIC HARM

CHAPTER 17 INTERFERENCE WITH CONTRACTUAL RELATIONS

CHAPTER 18 UNLAWFUL COMPETITION

CHAPTER 19 PRODUCT LIABILITY

CHAPTER 20 BREACH OF A STATUTORY DUTY

CHAPTER 21 PUBLIC AUTHORITIES

CHAPTER 22 PROFESSIONAL LIABILITY

CHAPTER 23 INJURY OR DEATH OF ANOTHER PERSON

PART SIX SPECIAL FORMS OF LIABILITY: PSYCHOLOGICAL OR EMOTIONAL HARM

CHAPTER 25 EMOTIONAL SHOCK

PART SEVEN SPECIAL FORMS OF LIABILITY: PERSONALITY INTERESTS

CHAPTER 27 INFRINGEMENTS OF DIGNITY

CHAPTER 28 INFRINGEMENTS OF PRIVACY

CHAPTER 29 INFRINGEMENTS OF IDENTITY

CHAPTER 30 INFRINGEMENTS OF REPUTATION

CHAPTER 31 GROUNDS OF JUSTIFICATION ASSOCIATED WITH INFRINGEMENTS OF PERSONALITY INTERESTS

PART EIGHT STRICT AND VICARIOUS LIABILITY

CHAPTER 33 VICARIOUS LIABILITY

PART NINE REMEDIES AND APPORTIONMENT

CHAPTER 35 REDUCTION AND APPORTIONMENT OF DAMAGES

CHAPTER 38 ROAD ACCIDENT FUND ACT 56 OF 1996

PART ONE INTRODUCTORY OVERVIEW

CHAPTER 2 DELICT AND THE CONSTITUTION

CHAPTER 3 DELICT IN A MULTI-CULTURAL SOCIETY

PART TWO GENERAL PRINCIPLES: PRIMARILY FACT-BASED ISSUES

CHAPTER 6 FACTUAL CAUSATION

PART THREE GENERAL PRINCIPLES: PRIMARILY NORMATIVE ISSUES

CHAPTER 10 GROUNDS OF JUSTIFICATION: DEFENCES DIRECTED AT THE

PART FOUR EXCLUSIONS

CHAPTER 11 LIABILITY IN CONTRACT EXCLUDING ACTION IN DELICT

CHAPTER 12 EXEMPTION CLAUSES

CHAPTER 15 NEGLIGENT MISSTATEMENTS

CHAPTER 16 PURE ECONOMIC HARM

CHAPTER 17 INTERFERENCE WITH CONTRACTUAL RELATIONS

CHAPTER 18 UNLAWFUL COMPETITION

CHAPTER 19 PRODUCT LIABILITY

CHAPTER 20 BREACH OF A STATUTORY DUTY