TOPIC 5:

Legal Causation
Law of Delict (DEL201)
Dr Desmond Oriakhogba

Table of content
1. Introduction.......................................................................................................................... 2
2. Test for legal causation.........................................................................................................
2 a. General test – the flexible (elastic or supple) approach................................................... 3
b. Subsidiary test .................................................................................................................. 3
3. Related concepts.................................................................................................................. 4
a. The talem qualem (or thin skull or eggshell skull) rule.................................................... 4 b.
Novus actus interveniens ................................................................................................. 4
Case Summary ...................................................................................................................... 4 2

Introduction

In the last topic, we learned that to establish delictual liability the plaintiff must
show a causal link between the defendant’s conduct and the damage/loss/injury
suffered by the plaintiff. This follows the “but for” or conditio sine qua non test.
However, that is not the end of the matter. There are two elements of causation (the
factual element, which we have already discussed) and the legal or normative
element (which is the second element). For legal causation to be established, the
court must be satisfied that, from a legal standpoint, there is a close and direct, not
just remote, link between the defendant’s conduct and the harm/loss/injury suffered
by the plaintiff. This is what is known as legal causation. Put differently, after
establishing factual causation (discussed under topic 4), the court must be further
satisfied that the defendant’s conduct is not remotely linked to the plaintiff’s loss:
the defendant’s conduct must be closely and directly linked to the harm. The
determination of this is a juridical or judicial exercise which is based on policy
considerations of reasonableness, fairness and justice. Legal causation is
instrumental to limit the liability of defendant only to those consequences that are
sufficiently linked to their conducts. Legal causation is a normative inquiry that
involves considering different factors and policy issues on a case-by-case.
The tests for determining legal causation are discussed in part 2 below.
See the following cases:

• Judith Hawarden v ENS Inc. [2023] 1 All SA 675 (GJ) (Summarised below, but see
link for full case: https://www.saflii.org/za/cases/ZAGPJHC/2023/14.html)

• International Shipping Co (Pty) Ltd v Bentley 1999 (1) SA 680 (A) (summarized in
Loubster & Midgley)

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• Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150
(SCA) (summarized in Loubster & Midgley)

• Groenewald v Groenewald 1998 (2) SA 1106 (A) (summarized in Loubster &

Midgley)

• Road Accident Fund v Russell 2001 (2) SA 34 (SCA) (summarized in Loubster &
Midgley)

• Smit v Abrahams 1994 (4) SA 1 (A) (summarized in Loubster & Midgley)

2. Test for legal causation We discuss below the following tests for determining legal
causation.

a. General test – the flexible (elastic or supple) approach

b. Subsidiary tests:

• Proximate cause or direct consequence test

• Reasonable foreseeability test

• Adequate cause test

• Intent

a. General test – the flexible (elastic or supple) approach

It is not entirely clear what the content of the test is. However, this test involves a
determination of the circumstances of the case and policy consideration of
reasonableness, fairness and justice in determining whether the conduct of a
defendant is sufficiently, closely and directly linked to the harm suffered by the
plaintiff. The flexible test does not necessarily supersede the subsidiary tests
(discussed below). Also, in applying the flexible test, the court does not dogmatically
and exclusively rely on a single subsidiary test as a measure of limiting the
defendant’s liability. Instead, when determining legal causation in each case, the
court applies all or a combination of some of the tests in a flexible manner that
accords with reasonableness, fairness and justice. See International Shipping Co (Pty)
Ltd v Bentley (supra); S v Daniels 1983 (3) SA 275 (A); S v Mokgethi 1990 (1) SA 32
(A).

b. Subsidiary test

• Proximate cause or direct consequence test: this test applies to place lability on
the defendant if the harm suffered by the plaintiff is directly traceable to the
wrongful conduct of the plaintiff, so long as the causal link is not broken by any
intervening or unrelated act. This test applies the element of direct physical

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consequence and the concept of the foreseeable plaintiff (that is, persons that are
reasonably foreseeable as being in the category of people that may suffer harm from
the defendant’s conduct). See Thandani v Minister of Law-and-Order 1991 (1) SA 702
(E); Frankel & Co v Cadle (1915) 36 NPD 173.

• Reasonable foreseeability test: this test determines legal causation by addressing

the question of whether the defendant should reasonably have foreseen the
consequence of their action. If the issue is resolved in the positive, then there is legal
causation. If otherwise, there is none. It is not necessary for defendant to foresee a
specific kind of harm or that the harm would occur in a particular way. What is
required is that the defendant should have foreseen a general type of harm. See
Smit v Abrahams 1994 (4) SA 1 (A); Overseas Tankship v Morts Docks (1961) AC 388.

• Adequate cause test: this test determines legal causation by considering whether
the plaintiff’s harm is a consequence that is adequately connected to the
defendant’s conduct. This is further determined by considering whether the
defendant’s conduct has the tendency to bring about the harm. In other words,
according to human 4 experience, would the harm follow because of the defendant’s
conduct in the normal course of events? The test has its roots in the Netherlands and
Germany. It has not been persistently used under South African law. See S v Daniels
(supra).
• Intent: the intention of the defendant to bring about a certain consequence,
coupled with absence of intervening or unrelated or independent occurrence
contributing to the loss, may show legal causation in certain circumstances. See
Groenewald v Groenewald (supra); Brown v Hoffman 1977 (2) 556 (NC).

3. Related concepts in this part, we discussed the related concepts: the talem
qualem (or thin skull or eggshell skull) rule and novus actus interveniens.

a. The talem qualem (or thin skull or eggshell skull) rule

Owing to some physical, psychological or financial weakness of a plaintiff, which

a defendant is unaware off, the plaintiff may suffer some harm that is beyond
the reasonable foreseeability of the defendant. Under the talem qualem rule, the
defendant will still be liable for that harm which occurred because of the
plaintiff’s weakness so long as the harm is a consequence of the defendant’s
conduct. The defendant cannot seek to escape liability by arguing that the
plaintiff would not have suffered so much harm if they were not weak. The
defendant must take their victim as they find them. See Smit v Abrahams (supra);
Smith v Leech and Co Ltd (1962) 2 QB 405.

b. Novus actus interveniens

This 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” (Van der Walt and Midgley,
Principles of Delict (2016) para 184. The courts determine novus actus

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interveniens by applying the flexible test. However, if the event should have
been reasonably foreseeable as a likely consequence of the defendant’s conduct,
it cannot be regard as novus actus interveniens. See Mafesa v Parity (1968) 2 SA
603 (O); RAF v Russell 2001 (2) SA 34 (SCA); Premier of Western Cape Province v
Loots NO 2011 JDR 0250 (SCA).
4. Case Summary

JUDITH HAWARDEN v ENS Inc. [2023] 1 All SA 675 (GJ)

(https://www.saflii.org/za/cases/ZAGPJHC/2023/14.html)

Fact
The judgment deals with the vexed question of whether to impose liability for
pure economic loss sustained by the plaintiff who fell victim to cyber- crime
through business email compromise (‘BEC’) as a result of the defendant’s
negligent omission to forewarn the plaintiff of the known risks of 5 BEC and to
take the necessary safety precautions that are designed to safeguard against the
risk of harm occasioned by BEC from eventuating.

The plaintiff purchased an immovable property from a third-party seller who

appointed the defendant, ENS attorneys, as the conveyancer in the sale
transaction. The plaintiff paid the deposit required under the sale agreement and
thereafter chose to pay the balance of the purchase price of R5.5 million by way
of electronic transfer of funds directly into the defendant’s trust account (‘the
ENS account’) for the benefit of the seller pending registration of transfer.

The plaintiff made an electronic payment of the amount of R5.5 million into what
she believed was the ENS account, details of which had been emailed to her by a
conveyancing secretary in the employ of the defendant. The ENS account details
were set out in a pdf attachment under cover of an email. Unbeknown to the
plaintiff, her email account was hacked and the email containing the ENS account
details was intercepted by an unknown fraudster and altered to reflect the
fraudster’s bank account details, resulting in the funds electronically transferred
by the plaintiff being deposited in the fraudster’s bank account as opposed to the
ENS account.

Notwithstanding the discovery of the fraud, the defendant called upon the
plaintiff to make payment of the balance of the purchase price, which had
discernibly not been received by the former as required under the sale
transaction. The parties were unable to resolve the impasse that followed,
resulting in the plaintiff instituting action against the defendant for the loss of
R5.5 million sustained by her as a result of the cyber fraud.

The evidence at trial established that the defendant was aware of the risks of
BEC prior to the fraudulent incident and that it had failed to warn the plaintiff of
the known risks of email and pdf manipulation or of precautions that could be
taken against BEC prior to the plaintiff effecting the electronic payment. It was
also not in contention that BEC attacks are rife, especially in the conveyancing

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 industry. Further, the defendant had control over the way in which it conveyed
its bank account details to the plaintiff - in an unprotected pdf attachment to an
email it transmitted to the plaintiff – whilst technically safe measures, amongst
others, multi-channel verification (in-person or telephonic confirmation of bank
details) were available to be employed by it to avert cyber fraud.

Decision
The High Court (per Mudua J) held the following:

• that a duty of care exists between a purchaser in a conveyancing transaction and

the conveyancing attorneys handling the transaction to prevent harm resulting from
the conveyancer’s failure to warn the depositor of the dangers of cyber hacking and
spoofing of emails or of the fact that pdf attachments to emails containing sensitive
information such as bank account details are not invulnerable to BEC.

• that as an experienced conveyancer, the defendant understood the risks inherent

in conveyancing transactions by virtue of its own prior knowledge of the dangers of
BEC. The risk of BEC was thus foreseeable and the defendant was under a duty to
guard against the harm eventuating. Its omission to do so was negligent in the
circumstances.

• that the defendant was the proximate cause of the plaintiff’s loss in that it
provided its own bank account details and was responsible for their accuracy and for
the safety of their transmission. In failing to safeguard the safety of their
transmission, the defendant acted wrongfully.

6 • that as regards the element of wrongfulness, the plaintiff’s loss in a case of this
nature is both quantifiable and determinate and the risk of indeterminate liability as
a policy consideration that militates against the recognition of liability for pure
economic loss is thus averted.

• that factual causation was established in that but for the negligent transmission by
the defendant of its bank account details including its failure to inform the plaintiff,
as depositor, of the dangers of BEC, the plaintiff would not have suffered the loss.
Legal causation was likewise established as the negligent conduct of the defendant
was linked sufficiently closely to the loss suffered by the plaintiff for legal liability to
ensue, given that the loss was reasonably foreseeable under the circumstances.

TOPIC 6: Fault (part 1)

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 Law of Delict (DEL201)

Dr Desmond Oriakhogba

Table of content

1. Introduction ........................................................................................................................... 7
2. Accountability ........................................................................................................................ 7
3. Intention................................................................................................................................. 8
3.1 Types of intention ............................................................................................................ 8
3.2 Elements of intention ...................................................................................................... 9
3.3 Defences that exclude intention ...................................................................................... 9

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1. Introduction
Fault is one of the elements that must be established for a plaintiff to succeed in a delictual
action. Other elements are conduct, harm, causation, and wrongfulness. Fault has two
components: that is, the capacity or maturity of the defendant to be at fault at the time of
causing the harm (accountability); and the state of mind or the culpability or blameworthiness
of the defendant at the time of the harm (intention [dolus] to cause the harm or the
negligence [culpa] of the defendant that resulted in the harm).

Accordingly, as will be further discussed in this topic, the fault element has both subjective
and objective aspects. Investigation into the legal capacity or maturity (accountability) and
the state of the mind (intention) of the defendant are entirely subjective issues. On the other
hand, the question of negligence involves both subjective and objective aspects. The objective
aspect of negligence the assessment of the defendant’s conduct based on standards set by
society, while the subjective component focuses on assessing the defendant’s conduct in the
circumstances of the case based on the reasonable person test. We discuss accountability,
intention in this part of the lecturer. Negligence will be discussed in part 2.

2. Accountability
This is referred to, in the law of delict, as the legal capacity or maturity to be culpable,
blameworthy or to be at fault for the harm suffered by the plaintiff. In other words, it is the
capacity of a defendant to differentiate between right and wrong and ability to act either
wrongly or rightly. To prove the fault element in a delictual action, the plaintiff must first
establish the defendant’s accountability before proceeding to show culpability (intention or
negligence) on the part of the defendant. Thus, for the defendant to be liable, it must be
established that they were accountable at the time the delict was committed. Absence of
accountability means lack of fault on the part of the defendant. To determine accountability,
the questions that must be resolved are: (a) at the time the delict was committed, did the
defendant have the mental capacity to differentiate between right and wrong? (b) at the time
the delict was committed, did the defendant have the maturity to act rightly or wrongly
having understood the difference between right and wrong? The determination of these
questions is a subjective exercise. See Weber v Santam Versekeringsmaatskappy Bpk 1983 (1)
SA 381 (A).

Generally, every person (natural and juristic) are presumed in law to be accountable.
However, certain circumstances and personal features may exist that would exclude
accountability or negate the presumption of accountability. These circumstances are:

a. Youth: children below 7yrs (infants) are irrebuttably presumed to be unaccountable.

Children between 7 and 14yrs are rebuttably presumed to be unaccountable. Unless
otherwise proven, children 7yrs and above but below 14yrs are presumed to be
unaccountable. Children between 14 and 18yrs are presumed accountable unless
proven otherwise. See Weber v Santam Versekeringsmaatskappy Bpk (supra); Eskom
Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA).

b. Mental illness and emotional distress that renders the defendant incapable of

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 distinguishing between right and wrong or of the ability to act rightly or wrongly based
on the understanding or rightness and wrongfulness. See S v Champher 1987 (1) SA
940 (A).

c. Intoxication as result of drug or alcohol usage: note that intoxication does not exclude
accountability in all circumstances. For instance, a person who takes alcohol and gets
intoxicated before committing the delictual act cannot escape liability on the ground
of intoxication. This can be illustrated by cases of alcohol drinking or drug use before
driving, etc. However, the courts would usually weigh the degree of intoxication and
its effect on the capacity of the defendant. If the intoxication is such that renders the
defendant completely incapable of controlling themselves and their actions can be
regarded as involuntary, then they won’t be held accountable. However, if despite the
intoxication, the defendant is found to still be in control of their faculties, they would
be held accountable. See S v Chretien 1981 (1) SA 1097 (A).

d. Provocation may in certain circumstances exclude accountability, especially where the

provocation is of such a nature that it renders the person temporarily insane to the
extent that they lost control of their ability to act responsibly or lack the consciousness
of the wrongfulness of their conduct. See S v Champher (supra); Winterbach v Masters
1989 (1) SA 922 (E); Bennett v Minister of Police 1980 (3) SA 24 (C).

3. Intention
When a person willingly or deliberately causes harm to another with the knowledge that it is
wrong to do so, then the person will be regarded as having the intention to cause the harm.
As such, the person will be held to be at fault. The finding of intention against the defendant
is the court’s disapproval of the defendant’s reprehensible state of mind. There are 3 tyomes
of intention: dolus directus, dolus indirectus and dolus eventualis (discussed below). Whatever
the type of intention, 2 elements must be present for one to be held to be at fault. These
elements are (a) the direction of the defendants will to a specific outcome; and (b) the
defendant’s knowledge of the wrongfulness of their actions. Both elements must be present
for the defendant to be held to be at fault. The determination of whether a person has
intention to cause the harm in question is a subjective inquiry. See Minister of Justice v
Hofmeyer 1993 (3) SA 131 (A). Intention must be distinguished from motive, which is the
reason that triggered the formation of the intention, or the actuating impulse preceding the
intention. It can also be referred to as the mental aspect that led to the formation of intention,
which the court often use to prove intention.

3.1 Types of intention

• Dolus directus (direct intention): the defendant’s primary objective is to achieve

particular outcome.

• Dolus indirectus (indirect intention): the defendant directly intends a particular

outcome, but foresees that to bring out that outcome, they need to bring about

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 another harmful consequence. They then go ahead to carry out a conduct that will
bring out that other consequence in other to achieve their primary objective.

• Dolus eventualis (intention by acceptance of foreseen result): the defendant has a

plan to cause a particular harm. In executing the harm, they subjectively foresee a
consequence that they do not intend. Yet, they disregard the possibility of that
unintended consequence and goes ahead to execute their primary plan. They will be
held to intend the unintended, but subjectively foreseen, consequence. There are two
elements for dolus eventualis to exist: (a) subjective foreseeability of the unintended
consequence and (b) reconciliation with the foreseen unintended consequence by
recklessly continuing the intended action.

See S v Humphreys 2015 (1) SA 491 (SCA); DPP v Pistorius 2016 (2) SA 317 (SCA)

3.2 Elements of intention

• Direction of will: refer to the discussion on types of intention. See Suid-Afrikaanse v

O’Malley 1977 (3) SA 394 (A).

• Consciousness of wrongfulness: defendant must have known of the illegality of their

conduct. Genuine believe in the lawfulness of the action (even though mistaken)
excludes intention. See Dantex Investment v Brenner 1989 1 (SA) 390 (A); Maisel v van
Naeren 1960 (4) SA 836 (C); Le Roux v Dey 2011 (3) SA 274 (CC).

*Note that there are special cases under action iniuriarium where intention only consists of
direction of will only. In such circumstances, there is no need to prove consciousness of
wrongfulness in order to establish intention. The cases are wrongful deprivation of liberty,
wrongful attachment of goods, and seduction. See Minister of Justice v Hofmeyr (supra).

3.3 Defences that exclude intention

• Mistake. See Maisel v van Naeren (supra).

• Jest: must be bona fide and genuinely meant to be a joke (third parties must have
understood it as such also). See Masch v Leask 1916 TPD 114.

• Intoxication. See S v Chretien (supra).

• Provocation. See S v Champher (supra).

• Emotional distress. See S v Champher (supra).

We will discuss negligence as an element of fault in part 2 of the lecture.

TOPIC 6: Fault (part 2)

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 Law of Delict (DEL201)

Dr Desmond Oriakhogba

Table of Content
1. Introduction ......................................................................................................................... 11
2. Features the notional reasonable person ............................................................................ 11
3. The test for negligence ........................................................................................................ 11
3.1 Foreseeability of harm ................................................................................................... 12
3.2 Preventability of harm ................................................................................................... 13
4. Circumstances and factors indicating the required standard of care ................................. 13
5. Attributes of defendants that influence the standard of care required for reasonable
conduct .................................................................................................................................... 13

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1. Introduction
In part one, we started the discussion of fault as an element of delict. We identified
accountability and culpability (or blameworthiness) as components of fault. We noted that
culpability covers intention (the defendant state of mind) and negligence. We then discussed
accountability and intention. Part two discussion focuses on negligence.

In determining negligence, the court does not focus on the reprehensibility of the defendant’s
state of mind. Instead, the court looks at the reprehensibility of the defendant’s conduct
assessed based on acceptable standards set by the society and viewed from the prism of the
notional reasonable person. The court assesses the defendant’s conduct based on an
objective standard determined subjectively through the eyes of the notional reasonable
person’s expectations of what constitutes adequate and reasonable conduct in the
circumstance. Simply put, in determining negligence, the court simply inquires what a
reasonable person, in the same position as the defendant, would have done in the
circumstance of the case. The plaintiff has the burden of proving the defendant’s negligence,
unless in cases of statutory presumption of negligence where the defendant will have to lead
evidence to rebut the presumption.

*Note cases of res ipsa loquitur.

2. Features the notional reasonable person

The notional reasonable person does not reflect a standard of exceptional care, skill or talent.
It does not also represent a standard of recklessness, thoughtlessness and underdeveloped
skill. Instead, it represents a standard by which society expects people in the defendant’s
standing to behave in the circumstance.

The standard does not envisage the non-occurrence of harm or that harm must be prevented
at all cost. Rather, it envisages that the defendant must have acted reasonably in the
circumstance of the case. If harm occurred despite the defendant’s reasonable conduct, they
would not be held to be at fault.

The notional reasonable person is a dynamic concept and it will change depending on the
circumstance of the case and the prevailing situation in the society.

See Weber v Santam 1983 (1) SA 381 (A); Herschel v Mrupe 1954 (3) SA 463 (A).

3. The test for negligence

The ultimate analysis for determining negligence is whether, in the circumstances of the case,
the conduct complained of falls short of the standard of a reasonable person. In making this
determination, the courts rely on the broad and flexible guidelines that were developed in
the case of Kruger v Coetzee 1966 (2) SA 428 (A). Accordingly, a defendant would be held to
have acted negligently if –

a. a reasonable person (diligens paterfamilias) in the position of the defendant:

11
 • would foresee the reasonable possibility of his conduct injuring another
person or property and causing the person patrimonial loss; and

• would take reasonable steps to guard against such occurrence;

b. the defendant failed to take such steps

The foregoing test rests on rests on two pillars: foreseeability and preventability of harm.

See also, The Member of the Executive Council, Education, North West Province v Izak Boshoff
Foster & Others (Case no 471/2021) [2023] ZASCA 11 (February 2023); Hobogwana v Benteler
South Africa (Pty) Ltd 494/2019 [2023] EC; Sea Harvest Corporation (Pty) Ltd v Duncan Dock
Cold Storage (Pty) Ltd 2000 (1) SA 827(SCA); Ngubane v SA Transport Services 1991 (1) SA 756
(A); Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA); Mashongwa v Passenger Rail
Agency of South Africa 2016 (3) SA 528 (CC); Lomagundi Sheetmetal and Engineering (Pty) Ltd
v Basson 1973 (4) SA 523 (RA).

3.1 Foreseeability of harm

There are two diverging approaches to determining questions of reasonable foreseeability:
(a) the abstract or absolute approach; and (b) the concrete or relative approach. In the
abstract approach, the question is whether the defendant foresaw that, in general, harm
could occur within the circumstances of the case. The question as to the specificity of the type
of harm is irrelevant. See Kruger v Coetzee; Herschel v Mrupe; Sea Harvest Corporation (Pty)
Ltd v Duncan Dock Cold Storage (Pty) Ltd.

On the other hand, the concrete approach focuses on the question of whether a reasonable
person would have foreseen the specific harm in issue in the circumstances of the case. See
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd; Mukheiber v Raath
and Another.

It appears, however, that South African law favours the relative approach, but in a hybrid
form since legal causation, in addition to the negligence inquiry, is still instrumental in limiting
the defendant’s liability. See The Member of the Executive Council, Education, North West
Province v Izak Boshoff Foster & Others; Hobogwana v Benteler South Africa (Pty) Ltd; Premier
of the Western Cape Province v Loots NO

Whatever the approach, reasonable foreseeability of harm is determined by following the

outlined broad and flexible guidelines:

• how real is the risk of the harm happening?

• If the harm happened, what is the extent of the damage likely to be?

• What are the costs or difficulties involved in guarding against the occurrence of the
risk.
See Lomagundi Sheetmetal and Engineering (Pty) Ltd v Basson; Stratton v Spoornet 1994 (1)

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SA 803 (T)

3.2 Preventability of harm

This follows the reasonable foreseeability test. Once the reasonable foreseeability test is
determined, the court would then have to determine if the harm was reasonably preventable
in the circumstances of the case. In this regard, the following basic considerations are
important:
• The degree or extent of the risk created by the defendant’s conduct

• The gravity of the possible consequences if the risk of harm happened

• The social usefulness of the defendant’s conduct

• The burden of eliminating the risk of harm

See City of Salisbury v King 1970 (2) SA 528 (RA); Kruger v Coetzee; Ngubane v SA Transport
Services.

4. Circumstances and factors indicating the required standard of care

• General practice

• Legitimate assumption of reasonable conduct of others

• Sudden emergency and error of judgement

• Breach of statutory duty

• Dealing with inherently dangerous things, persons or circumstances

• Danger to children or people with disabilities or incapacities

5. Attributes of defendants that influence the standard of care

required for reasonable conduct
• Beginners

• Experts

• Children

TOPIC 7: Wrongfulness

Law of Delict (DEL201)

13
 Dr Desmond Oriakhogba

Table of content
1. Introduction: wrongfulness ................................................................................................. 14
2. The general criteria for determining wrongfulness ............................................................. 16
3. Different concepts of duty ................................................................................................... 17
4 Policy consideration .............................................................................................................. 17

1. Introduction: wrongfulness
Wrongfulness (or lawfulness) is an element of delict, like fault, conduct, causation, and harm.
As an element of delict, wrongfulness involves a value judgment or policy consideration of

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questions relating to whether it is reasonable for the court to intervene in the circumstances
of the case by placing delictual liability on the defendant. In other words, the question of
wrongfulness is an inquiry into whether based on the defendant’s positive conduct or failure
to act (omission [where there is a legal duty to act]) it is reasonable to impose liability on
them. The question of wrongfulness is a valuable tool by which the court limits the
defendant’s liability by ensuring that they are only held responsible in situations where it is
reasonable, based on public policy informed by constitutional norms, to so do.

Determining wrongfulness in cases of bodily injury or harm to property caused by positive

conduct is not usually problematic because all harm to persons and property caused by
positive acts is prima facie wrongful. The problem usually arises in situations where the
conduct is an omission or statement, for instance where the harm is pure economic loss or
mental distress or where there is a conflict of rights. In such case, the court uses wrongfulness
principles to determine if the plaintiff’s interest is worthy of legal protection or whether the
harm falls within the defendant’s scope of responsibility. The general criteria for assessing
wrongfulness are (a) reasonableness (general reasonableness); (b) legal convictions prevailing
in the community; and (c) society’s boni mores. See Judith Hawarden v ENS Inc. [2023] 1 All
SA 675 (GJ), paras 102 - 114.

Khampepe J, in the case of Country Cloud Trading v MEC 2015 (1) SA 1 (CC) [paras 20-21],
succinctly describes wrongfulness “as 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.” Thus, according to Loubser and Midgley (p180),

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 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?

In the case of Le Roux v Dey 2011 (3) SA 274 (CC) (para 122), the court explains wrongfulness
further as follows:
In the more recent past our courts have come to recognize, 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 should be reasonable to impose
lability 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

15
 the reasonableness of the defendant’s conduct, but it concerns the
reasonableness of imposing liability on the defendant for the harm resulting
from the conduct.

It should be noted that wrongfulness is not a feature of conduct only. It involves a sequence
of events that covers conduct and the harm caused by the conduct. Without harm, there is
no wrongfulness no matter how reprehensible the conduct may be. The conduct and the
consequent harm may, or may not, happen simultaneously. See RAF v Mtati 2005 (6) SA 215
(SCA). Wrongfulness is a matter of law to be determined by the court. However, the plaintiff
has the onus to present facts from which the court can infer wrongfulness. The plaintiff must
allege (a) wrongfulness; (b) fact that indicate that the harm caused is wrongful; and (c) facts
that substantiate the relevant policy consideration. Similarly, a defendant who seeks to dispel
wrongfulness by relying on justification has the onus to present facts from which the court
can deduce justification. Like wrongfulness, justification is a matter of law for judicial
consideration. It is part of the wrongfulness inquiry.

2. The general criteria for determining wrongfulness

As stated above, the general criteria for determining wrongfulness are.
(a) reasonableness (general reasonableness).

(b) legal convictions prevailing in the community; and

(c) society’s boni mores.

The criteria involve policy consideration and a value judgment. The criteria are legal, rather
than social, moral, religious, or ethical issues. Thus, for instance, in determining questions
around legal convictions prevailing in the community, the court’s concern is whether the
community should regard the harm caused in a particular case as wrongful for the purpose of
delictual liability. The court is not concerned with what the community regards as socially,
morally, ethically, or religiously wrong. In such situations, the court focuses on the
infringement of a right or the breach of a legal duty. The decision involves an assessment of
reasonableness and public policy. A court must weigh up the interests of the people involved
and consider the interests and convictions of the community. For this purpose, the personal
views of the judge, the parties, or a segment of the community are not the measure of
wrongfulness. Community conviction and boni mores are objective and normative standards
for determining wrongfulness. They are based on the general societal sense of fairness and
justice. The general criteria of reasonableness, community conviction and boni mores must
accord with constitutional values and norms. To achieve a clear and logical outcome, the
general criteria must be applied based on an open and structured process of reasoning with
reference to (a) the specific rights and interests involved; (b) the relationship between the
parties; (c) relevant provisions of the constitution and other legislation; (d) relevant policy
considerations; among others. See Carmichele v Minister of Safety and Security 2001 (4) SA
938 (CC).
The general criteria apply whether the focus is on the infringement of a right (by a positive
act) or the breach of a duty (in situations where a legal duty to act exists). See pg 185-185 of
Loubser and Midgely.

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3. Different concepts of duty
In determining wrongfulness courts initially adopted the “duty of care” approach developed
in English common law. The duty of care approach determines if harm were foreseeable what
steps a reasonable person would take to prevent the harm. In other words, the approach
adopts the reasonable person test. It uses the flexible reasonable foreseeability concept and,
as such, combines wrongfulness and negligence and uses the flexible concept to cover the
often-unexpressed value judgment and public policy considerations. See Union Government
v Ocean Accident 1956 (1) SA 577 (A).

The current judicial approach to the question of wrongfulness, however, is to determine

whether a legal duty existence. Even so, there is no uniformity to the conceptualization of
legal duty as some cases still rely on the foreseeability test when determining the existence
of uniformity. The courts have differently regarded legal duty as a duty not to cause harm, a
duty to prevent harm, and a duty to act reasonably. The idea of foreseeability is central to
determining negligence and blurs the distinction between negligence and wrongfulness when
it is applied to wrongfulness cases. Nonetheless, the cases how that the courts still apply the
idea of foreseeability when determining legal duty even though they constantly admit that
negligence and wrongfulness are distinct concepts. See Judith Hawarden v ENS Inc. (supra).

4 Policy consideration
Ultimately, whether a legal duty exists for the purpose of determining wrongfulness requires
consideration of public policy. In some cases, this involves considering the broad social and
economic impact of imposing liability. In other cases, it involves a more limited focus on the
legal and factual aspects of the relationship between the parties. In each situation, however,
the question is whether it is reasonable for the law to shift the burden of the harm from the
plaintiff to the defendant.

Generally, the policy considerations that the court take into account include –
• the social or economic consequences of imposing liability – in particular, potential
indeterminate liability
• the availability of alternative remedies – in particular, a contractual remedy
• 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.
• 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 right 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.
• Certain factual circumstances may indicate a duty not to cause harm or to prevent
harm. These circumstances include proportionality of the risk of harm and the cost of
prevention, control over a dangerous object or situation, awareness of danger, prior

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 conduct creating danger, a relationship imposing responsibility, and professional
knowledge.
• The nature of the defendant’s conduct is considered. Causing harm by positive
conduct is more often regarded as wrongful compared to causing harm by omission.
• The nature of the interest to be protected is also considered. Courts more readily
recognize a duty in respect of physical injury and damage to property than a duty in
respect of pure economic loss.
• The court also considers the nature of the defendant’s fault or state of mind (motive).
Courts more readily consider intentional harm-causing to be wrongful than negligent
harm-causing. A motive to cause harm will indicate wrongfulness.

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