The question for Assignment 02 is the following:

The municipality of eThekwini is busy with excavations in the business centre.

The municipal workers do not erect any barrier or warning signs in the vicinity
of the excavation. Mrs Ndlovu, who is near-sighted, falls into the excavations
and sustains serious injuries. She wishes to institute a delictual action against
the municipality.

Write an opinion, properly substantiated with reference to case law, only on

the wrongfulness of the conduct of the municipality of eThekwini. (15 Marks)

Answer: Wrongfulness is the infringement of a legally protected interest [1] in a legally

reprehensible way/in violation of a legal norm [1] The main norm/criterion for
wrongfulness is the boni mores/legal convictions of the community. [1] The test is
objective, [1] based on reasonableness, [1] and must reflect the values of the
Constitution. [1] (Carmichele case) [1] The legal convictions of the community must be
seen as legal convictions of legal policy makers of the community such as legislature
or judges [1] Schultz v Butt [1] Two practical applications of boni mores are
infringement of (subjective) right [1] and breach of (legal) duty. [1] Wrongfulness of
omissions is determined by asking whether there was a legal duty on the defendant
(to act positively to prevent harm) [1] Van Eeden case; [1] Ewels case. [1] Causing of
harm by omission is not prima facie wrongful/ is prima facie lawful [1] There is no
general duty to prevent loss by positive conduct [1] Whether a legal duty rested on the
defendant must be determined with reference to the boni mores/ legal convictions of
the community/ legal policy [1] All the factors that indicate that a legal duty was
present, must be considered. [1] There is no closed number/ numerus clausus of such
factors. [1] They include: prior conduct (omissio per commissionem); control over a
dangerous object; knowledge/foresight of possible harm; rules of law; special
relationship between parties; particular office; contractual undertaking for safety of
another/third party; creation of impression that interests of third party will be protected;
danger of limitless liability; vulnerability to risk of damage; interplay of factors. [1 mark
each up to max 4] Prior conduct/ omissio per commissionem is present when
defendant creates new source of danger by positive conduct/commission [1] and then
causes harm by omission. It was originally regarded as an indispensable requirement
for liability for omission [1] Halliwell case; [1] municipality cases. [1] This view was
eroded/ adapted/ progressively rejected in Silva’s Fishing Corp; [1] Regal; [1]
Quathlamba. [1] Finally rejected in Ewels, [1] and the position in Ewels was confirmed
in Bakkerud [1] The presence of one or more of these factors is a strong indication
that a legal duty rested on the defendant, but they are no longer prerequisites for a
finding of wrongfulness as in the case of Halliwell and the the municipality cases. [1]
Application: The conduct of the municipality was an omission insofar as the workers
omitted to place any safety measures in place at the excavation site. Accordingly, we
need to determine whether a legal duty rested on the municipality to prevent harm to
the plaintiff. [1] The municipality created new source of danger (prior conduct) by
commencing with the excavations [1] and/or was in control of dangerous object in the
sense that the excavation site was dangerous to the public and the municipality had
control of the site. [1] One can also deduce that the municipality must have had
knowledge/foresight of possible harm. [1] Accordingly, there was a legal duty on the
municipality [1] and the conduct was wrongful. [1]
Wrongfulness may also be seen as the reasonableness of holding defendant liable;
[1] Telematrix; [1] Crown Chickens; [1] Le Roux v Dey. [1] This approach is criticised
by Neethling and Potgieter, [1] but may be reconciled with the traditional/other
approaches to wrongfulness; SA Hang & Paragliding Assoc; Loureiro; Fetal
Assessment Cntre; Massstores. [1 each up to max 2]
Application: Applying this approach to the given facts, there is no reason not to hold
the municipality liable, because we are not told of any policy factors that indicate that
it would be unreasonable to hold the municipality liable. Accordingly, application of this
wrongfulness criterion does not change the conclusion that the conduct of the
municipality was wrongful. [1] [Total 30]