Stuvia 3662404 pvl3703 Exam Pack 2024

PVL3703 EXAM PACK 2024
written by
iStudy
www.stuvia.com
Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Distribution of this document is illegal R13,625 per year?
Stuvia.com - The study-notes marketplace
PVL3703
EXAM PACK
FOR ASSISTANCE WITH THIS MODULE +27 67 171 1739

UNIVERSITY EXAMINATIONS
October/November 2023
PVL3703
Law of Delict
100 Marks
08:00 – 12:00 (4 hours)
23 OCTOBER 2023
First examiner: Prof R Ahmed, Prof JC Knobel, Prof M Mokotong

Second examiner: Prof CJ Pretorius
This paper consists of five (5) pages including the cover page.
This is a closed-book examination
INSTRUCTIONS FOR A TAKE-HOME EXAM
PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.
1. The examination question paper counts 100 marks.
2. It consists of five (5) questions. Answer ALL the questions.
3. The duration of the examination is from 08h00-12h00. Your answers must be uploaded via
the myExams platform by 12h30 (South African Standard Time).
4. This is a closed-book examination. While the examination is in progress, you are not
allowed to consult another person, or any source to assist you to answer any of the questions
contained in this question paper. While the examination is in progress, you cannot assist
another student in answering any of the questions for this examination.

5. This examination is proctored via the Invigilator App.
The QR code is below:
If you experience technical difficulties on The Invigilator App, contact the technical
helpdesk via WhatsApp on 073 505 8273.
6. Your exam file must be uploaded on the myExams platform on Moodle.
6.1 You are advised to preview your submission (answer script) to ensure legibility and that the
correct answer script file has been uploaded.
6.2 Once the official examination time per the examination timetable has expired, you are
provided one hour to submit your answer script. Submissions made after the submission
period has lapsed will be rejected per the examination regulations and will not be marked.
7. The cover page for your take-home exam must include your name, student number
and the module code.
8. It is preferred that your take-home exam is typed. However, handwritten submissions will
also be accepted.
9. Whether your answers are typed or handwritten, your submission on the myExams platform
on Moodle must be made in the form of one PDF document. Only the last file uploaded and
submitted will be marked.
9.1 The exam answer file that you submit must not be password protected or uploaded as a
“read only” file.
9.2 Your examination answer file will not be marked if:
9.2.1 you send your examination answer file via email.

9.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
9.2.3 you submit your exam answer file on an unofficial examination platform (including the
invigilator cellphone application).
9.2.4 you submit your examination answer file in the incorrect file format.
9.2.5 you submit a password-protected document.
9.2.6 you submit your examination answer file late.
9.2.7 you submit your answer file from a registered student account that is not your own.


9.3 Incorrect answer scripts and/or submissions made on unofficial examinations platforms
(including the invigilator cellphone application) will not be marked and no opportunity will be
granted for resubmission.
9.4 The mark awarded for an illegible examination answer file submission will be your final mark.
You will not be allowed to resubmit after the scheduled closing date and time of the exam.
10. Where applicable, the arguments that you make must be logical, well-structured and
substantiated by the relevant legal principles. Use the time given wisely.
11. Substantiate your answers by referring to relevant authorities such as case law, where
applicable. When answering problem-type questions, it is important to first identify the
problem area where the answer must be sought. Once you have done this, set out the
relevant legal principles. Deal only with those legal principles that relate to the given facts.
Next, apply these principles to the facts. Then give the appropriate advice.
12. You must complete the online declaration of own work when submitting.
12.1 By ticking the Honesty Declaration, you confirm that you have read (i) the University’s Policy
on Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both
available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to
student values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-rules.
12.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with other students, or request
assistance from other students during examinations. Plagiarism is a violation of academic
integrity, and students who do plagiarise or copy verbatim from published work will be in
violation of the Policy on Academic Integrity and the Student Disciplinary Code and may be
referred to disciplinary hearing. Unisa has a zero tolerance for plagiarism and/or any other
forms of academic dishonesty.
12.3 Unless a student is exempted because of disability or incarceration, students who have not
utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s
examination rules and will have their marks withheld.
PLEASE NOTE:
Students experiencing technical challenges may contact the SCSC on 080 000 1870 or email
Examenquiries@unisa.ac.za or refer to Get-Help for the list of additional contact numbers.
If you experience technical difficulties on The Invigilator App, contact the technical helpdesk via
WhatsApp on 073 505 8273.
REFER TO CASE LAW AND STATUTORY LAW WHERE RELEVANT.

QUESTION 1
Lethabo suffers from insomnia and, when he does sleep, he often sleepwalks. His doctor has prescribed
him medication to control this condition. Lethabo goes on a camping trip with his friends and as a
precautionary measure keeps a knife under his pillow while sleeping. One evening while sleepwalking,
he thinks he is being attacked by a robber and stabs one of his friends, Mandla. In reality, there was no
robber and Mandla was trying to assist Lethabo to get back to his bed. It transpired that Lethabo had
not taken his medication prescribed by the doctor that morning. Mandla was seriously injured and
hospitalised. Mandla would like to institute a delictual action against Lethabo.
1.1 Discuss with reference to relevant authority whether Lethabo indeed acted for the purposes of the
law of delict. (15)
1.2 Would your answer to question 1.1 above differ if Lethabo had not suffered from insomnia before
and this was the first time that he was found sleepwalking? (5)
QUESTION 2
There has been much debate about the traditional test for determining wrongfulness and the new test
for determining wrongfulness.
Critically discuss this statement and refer to relevant authority. (25)
QUESTION 3
Nomsa, while playing a game of netball, was struck on the head by the ball. As a result of this, Nomsa
sustained a serious head injury. It transpired that her fellow player Kefilwe had attempted to shoot the
ball into the goal ring but missed. The ball subsequently struck Nomsa’s head. Nomsa would like to
institute a delictual action against Kefilwe for the head injury she sustained.
Discuss with reference to authority, which ground of justification Kefilwe may rely on as well as the
likelihood of it succeeding. (Take care not to write about the topic of Question 4.1 here.) (15)
QUESTION 4
Greg regularly invited Bert to his ostrich farm in the Karoo. Greg warned Bert to be cautious around the
ostriches and not to startle them. Bert informed Greg that he knew how to deal with ‘these birds’ and
that he always interacted with one ostrich, known as Daisy, during his visits. Bert always teased and
taunted Daisy for self-amusement. During his last visit, Bert picked up a stone and threw it in the
direction of Daisy. Daisy began to chase Bert. Bert then ran towards the house and tripped and fell,
injuring his leg. Bert was hospitalised due to the injury and unable to return to work for a month. Bert
would like to institute a delictual action against Greg based upon Greg’s alleged negligent conduct of
keeping wild animals in a place that the public can have access to.
4.1 Assume for the purpose of answering this question (4.1) that Bert can prove that Greg’s conduct
was wrongful and negligent. Under these circumstances, what defence may Greg rely upon and what
will the effect of a successful reliance on the defence be? Discuss in detail with reference to case law
and legislation. (Take care not to write about the topic of Question 3 here.) (20)
4.2 Now assume for the purpose of answering this question (4.2) that Bert cannot prove that Greg’s
conduct was wrongful and negligent. Under these circumstances, what remedy would Bert have against
Greg and how likely is he to succeed with this remedy? Discuss with reference to case law. (5)

QUESTION 5
Differentiate clearly between factual and legal causation in the law of delict and discuss with reference
to case law the respective tests used to determine whether they are present in a given factual scenario.
(15)
TOTAL PAPER: [100]
©
UNISA 2023

PVL3703 EXAM OCTOBER 2023
QUESTION 1
1.1 Conduct is defined as a voluntary human act or omission. “Voluntary”

means that the person must be able to control his muscular movements by
means of his will. The act of the wrongdoer must be voluntary to give rise
to delictual liability. By raising the defence of automatism, a defendant
attempts to show that, according to the law, he did not act. Defendant may
argue that the conduct complained of does not satisfy the requirement of
voluntariness. He relies on the defence of automatism - that he acted
mechanically.
Conditions that may cause a person to act involuntarily as they render him
incapable of controlling his bodily movements: absolute compulsion (vis
absoluta), sleep, unconsciousness, fainting fit, epileptic fit, serious
intoxication, blackout, reflex movements, strong emotional pressure,
mental disease, hypnosis, and a heart attack.
According to Molefe v Mahaeng, the defendant does not bear the onus to
prove that he was in a state of so-called sane automatism. The onus is on
the plaintiff to prove that the defendant acted voluntarily. In the Du Plessis
case, X (72) was charged with negligent driving as he had injured a
pedestrian. He experienced a blackout due to low-blood pressure. He was
found not guilty.
If we apply these principles to the given facts, Lethabo had been receiving
medical treatment for a diagnosed condition of insomnia, but failed to take
his prescribed medication on that particular occasion. A person can not rely
on automatism if he intentionally placed himself in a mechanical state (actio
libera in causa). Actio libera in causa: Defence of automatism will not
succeed if defendant intentionally created the situation in which he acts
involuntarily in order to harm another. The defendant (Lethabo) will be held
liable for his culpable conduct in creating the state of automatism which
resulted in damage to the plaintiff (Mandla).

Defendant may not successfully rely on the defence of automatism where

he was negligent regarding his automatic “conduct”. Where the reasonable
man would have foreseen the possibility of causing harm while in a state
of automatism, eg. in Victor case, X was convicted of negligent driving
despite causing the accident during an epileptic fit, as he had been
suffering fits for 13 years and the reasonable man would have foreseen the
possibility of causing harm while in a state of automatism. In this case, X
knew he may suffer an epileptic fit and still drove a motor vehicle.
Automatism does not mean that there is no voluntary act whatsoever by
the defendant which caused the damage, but only that the conduct in
question was not voluntary. Only the voluntary act closest to the harmful
consequence is of relevance, and it’s therefore unnecessary to consider
prior voluntary acts.
According to Van der Merwe and Olivier, automatism does not really
exclude the element of conduct in a delict, but rather wrongfulness or fault.
This view may be illustrated with this eg: X buys a knife which he keeps at
his bedside when he retires at night. One night, X dreams that he’s being
attacked. While still half asleep, X grabs the knife and wounds Y (who
sleeps on a bed next to him). According to Van der Merwe and Olivier, the
stabbing with the knife was not a voluntary act, but that there are other
(prior) voluntary acts on X’s part which also caused Y’s injuries. Eg. the
mere fact that X went to bed with the knife next to him, is, according to the
authors, a voluntary act which caused Y’s injuries and it would thus be
incorrect to conclude that X didn’t in any way act voluntarily with regard to
such injuries. This voluntary conduct by X wasn’t accompanied by fault and
he won’t be held delictually liable.
However, a person cannot rely on automatism if he negligently placed

himself in a mechanical state (Lethabo did not take his medication). Thus,
lethabo was probably negligent, or could even have had intention in the
form of dolus eventualis. Therefore, a reliance on automatism would fail in
this case.

1.2 If Lethabo had not suffered from insomnia before and this was the first
time he was found sleepwalking, it may impact the determination of
whether he acted for the purposes of the law of delict. The fact that this
was the first instance of Lethabo sleepwalking could be seen as a sudden,
unforeseeable event that Lethabo had no prior knowledge or control over.
In such a case, it may be more difficult to argue that Lethabo had the
necessary intent and control over his actions to be held liable in delict. It
can be argued that Lethabo's actions were not intentional but rather a result
of his sleepwalking, which he had no prior experience or knowledge of.
Therefore, although Lethabo did not have prior experience with

sleepwalking, if it can be argued that a reasonable person in his position
should have foreseen the potential risks and taken steps to prevent harm
to others (such as taking his prescribed medication), then it may still be
possible for Mandla to institute a delictual action against Lethabo.
Ultimately, the determination will depend on the specific facts and evidence
presented in the case.
Question 2
In South Africa, the traditional test for determining wrongfulness is known as

the objective test, while the new test is referred to as the reasonable person
test. This debate revolves around the standard that should be applied when
assessing whether a defendant's conduct is wrongful or negligent.
The traditional objective test focuses on the reasonable person's behavior in

similar circumstances. This test asks whether a reasonable person, with
ordinary prudence, would have acted in the same way as the defendant.
Essentially, it assesses the defendant's conduct against an objective standard,
considering the average behavior expected from a reasonable person in the
same situation. This test does not take into account the individual
characteristics of the defendant.

On the other hand, the new reasonable person test considers the subjective
characteristics of the defendant alongside the objective standard. It takes into
account the defendant's personal circumstances, knowledge or expertise to
determine whether a reasonable person with those characteristics would have
acted the same way. This test recognizes that people may have different
capacities, skills, or knowledge and should be assessed accordingly.
The debate surrounding these two tests is mainly centered around the balance
between objectivity and subjectivity. Proponents of the traditional objective test
argue that it provides uniformity and predictability in the law, as it applies the
same standard to everyone. It does not require courts to consider individual
circumstances, which can lead to unjust outcomes. Additionally, this test locates
fault only in the defendant's actions and not in their personal characteristics,
making it easier to establish liability.
However, critics argue that the traditional objective test does not adequately
account for the realities of human behavior. They argue that the reasonable
person is not an abstraction, but rather an individual with specific abilities,
knowledge, and experiences. The reasonable person test is seen as more fitting
in a diverse and multicultural society like South Africa, as it considers the
different circumstances in which people find themselves.
In South African law, the subjective element in determining wrongfulness was

first recognized in the landmark case of Kruger v. Coetzee (1966), where the
court held that the reasonable man's conduct should be measured against the
standard of someone with the same characteristics as the defendant.
Subsequent cases such as Carmichele v. Minister of Safety and Security (2001)
and MEC Health, Gauteng v. DZ (2001) further established the importance of
considering individual characteristics when assessing wrongfulness.
In conclusion, the debate between the traditional objective test and the new
reasonable person test revolves around the balance between objectivity and
subjectivity in determining wrongfulness. South African law has recognized the
importance of considering individual characteristics in assessing conduct,
leading to the adoption of the reasonable person test. This allows for a more

nuanced analysis that takes into account the realities of individual

circumstances.
Question 3
In a delictual action, Nomsa must prove that Kefilwe acted wrongfully and
intentionally or negligently, causing Nomsa’s harm. However, Kefilwe can refute
these claims by asserting a ground of justification.
One possible defense for Kefilwe could be volenti non fit injuria - a person who
willingly undertakes risky behavior cannot later complain about being hurt. In
the realm of sports, this concept is often applied to absolve participants from
liability for injuries that occur during the course of the game. Since netball is a
physical sport and involves the inherent risk of being struck by the ball, Kefilwe
might assert that Nomsa implicitly consented to such risk by deciding to play
the game.
However, the success of this defense depends on several factors. First, Kefilwe
must prove that Nomsa fully understood the risks involved. Second, whether an
injury is characteristic of the game will be considered. Typically, courts are less
likely to apply this defense where the injury occurs outside the usual course of
play.
Moreover, this defense might fail if Nomsa proves that Kefilwe breached a duty
of care she owed to Nomsa. For instance, if Kefilwe violated some safety rule
of netball or played in an overly aggressive or reckless manner (i.e., outside the
bounds of what is normally expected or accepted in the sport), she might still
be held liable.
The court will scrutinize Kefilwe's conduct based on the standard of care
expected from a reasonable person in similar circumstances including the
expertise and skills of a netball player.
In terms of authority, there is case law that supports the defense of voluntary
assumption of risk in sports-related injuries. For instance, in the South African
case of Stellenbosch Farmers' Winery Group Ltd v Martell et Cie SA, the court

held that participants in sports assume certain risks inherent in the activity and
cannot hold fellow participants liable for injuries resulting from those risks.
In the given facts, the defence of volenti non fit iniuria as a ground of justification
will probably succeed as Kefilwe can state that Nomsa consented to the risk of
injury and the injured person (Nomsa) will not be able to hold the defendant
(Kefilwe) delictually liable, because Nomsa has consented to risk of such harm.
Question 4
4.1 To defend against this claim, Greg may rely on the defense of culpable
conduct on the part of the prejudiced person, specifically provocation. If Greg
can prove that Bert's conduct was negligent and contributed to his own injury,
it may reduce or even eliminate Greg's liability for the harm suffered by Bert.
Provocation is a defense that may be used when the plaintiff's own actions have
contributed to or caused the harm they suffered. In this case, Greg could argue
that Bert's teasing and taunting of the ostrich, Daisy, constitutes provocation.
By provoking Daisy, Bert may have caused the ostrich to chase him, leading to
his subsequent injury.
In the scenario described, Greg could argue that Bert's teasing and taunting of
Daisy constituted provocative conduct on his part. This could be seen as a
deliberate act designed to provoke a reaction from the ostrich, rather than a
reasonable and cautious behavior around the animals. If Greg can prove that
Bert's provocative conduct directly led to Daisy's aggressive behavior and Bert's
subsequent injury, it may strengthen his argument of contributory negligence.
In the case of Hedges v. N.O.L. Ltd, a similar defense of contributory negligence

was successfully relied upon by the defendant. In this case, the plaintiff was
bitten by a lion while sticking his hand through a cage at a safari park. The court
held that the plaintiff's own act of sticking his hand into the lion's cage
constituted contributory negligence and reduced the damages awarded.

Additionally, the Animal Matters Amendment Act of 1993, in South Africa, makes
provision for liability relating to harmful behavior by animals. According to
section 19(1), a person who was injured or suffered damage because of the
behavior of an animal may only claim compensation if the behavior of the animal
resulted from the fault of the owner, the fault of a person for whose actions the
owner is liable, or if the behavior constitutes a deliberate act by the owner or
person responsible for the animal.
Therefore, if Greg can prove that Bert's conduct was provocative and that it
directly contributed to his own injury, he may rely on the defense of contributory
negligence, which could result in a reduction or elimination of his liability for the
harm suffered by Bert.
4.2 If Bert cannot prove that Greg's conduct was wrongful and negligent, he
may not have a remedy against Greg. In order to succeed in a delictual action,
Bert would need to establish that Greg owed him a duty of care, breached that
duty, and as a result, Bert suffered harm. If Bert cannot prove negligence on the
part of Greg, he may not be able to establish a cause of action.
Bert could potentially explore other avenues of legal recourse, such as reporting
Greg's conduct to the appropriate regulatory authorities if there are any
violations or breaches of animal welfare laws. However, in terms of a direct
remedy against Greg for his injuries, it may be unlikely for Bert to succeed
without evidence of negligence on Greg's part.
Question 5
Factual causation and legal causation are two distinct concepts in the law of
delict (tort law). Factual causation refers to the actual cause of the harm or
injury suffered by the plaintiff, while legal causation examines whether the
defendant's actions meet the legal requirements for liability.
Factual causation asks whether the defendant's actions were the actual cause
or "but-for" cause of the plaintiff's harm. It aims to establish a direct link between
the defendant's conduct and the injury suffered by the plaintiff. In other words,

if the harm would not have occurred "but for" the defendant's actions, factual
causation is present.
The test commonly used to determine factual causation is the "but-for" test. This
test asks whether the injury would not have occurred if the defendant had not
acted negligently. If the answer is yes, the defendant's actions are considered
the factual cause of the harm. However, if the same harm would have occurred
irrespective of the defendant's conduct, factual causation is absent.
In S v Moghethi the facts were that X was shot by Y. X was hospitalized and he
recovered but the doctor told him to shift his position after some time so as not
to develop pressure sores. X failed to follow the doctor’s recommendations and
developed pressure resulting in his death. The court held that the gun wounds
caused by Y were not the legal cause of X’s death. They were otherwise the
factual causation of X’s death.
Legal causation, requires a direct connection between the defendant's actions

and the resulting harm. It involves determining whether the defendant should
be held legally responsible for the consequences of their actions. Legal
causation aims to limit liability to consequences that are reasonably
foreseeable.
The test often used to establish legal causation is the "reasonable

foreseeability" test. This test asks whether a reasonable person, considering
the circumstances, could have foreseen the harm resulting from their actions.
If the harm was reasonably foreseeable, the defendant's actions are considered
the legal cause of the harm. However, if the consequences were unforeseeable
or too remote, legal causation is absent.
The test for legal causation is the so-called flexible approach, as formulated in
S v Mokgethi 1990 and International Shipping Co (Pty) Ltd v Bentley 1990.
According to the court, the main question in respect of legal causation is
whether there is a close enough relationship between the wrongdoer’s conduct
and its consequence for such consequence to be imputed to the wrongdoer in
view of policy considerations based on reasonableness, fairness and justice.
Several other legal causation theories exist, such as adequate causation, direct
consequences, foreseeability and novus actus interveniens.


May/June 2023
PVL3703
Law of Delict
100 Marks
Duration 4 Hours
First examiner: Prof JC Knobel; Prof M Mokotong

This paper consists of seven (7) pages.

1. This examination question paper counts 100 marks.
2. It consists of 7 questions. Answer ALL the questions.
3. The duration of the examination on the timetable is four hours.
4. In addition to the duration of the examination indicated on the timetable, you are given 30
minutes to FINALISE the uploading of your exam file. Your exam file must be uploaded
via the myExams platform on 20 May 2023 BEFORE 12h30 (South African Standard
Time).
5. This a closed-book examination. While the examination is in progress, you are not allowed
to consult another person or any source to assist you to answer any of the questions
contained in this question paper. While the examination is in progress, you may not assist
another student in answering any of the questions contained in this question paper.
6. This examination is proctored via the Invigilator App. You are required to activate (or log in
to) the Invigilator app between 07h45 and 08h30 (South African Standard Time).

The QR code is below:
6.1 Please note: If a student is found to have been outside the invigilator app for a total
of 10 minutes during their examination session, they will be considered to have
violated Unisa's examination rules and their marks will be withheld.
6.2 You only have 15 minutes after the due time to submit your script on the
Invigilator App.
6.3 You will have 48 hours from the date of their examination to upload their
invigilator results from the Invigilator App. Failure to do so will result in students
deemed not to have utilised the invigilation or proctoring tools.
7. The uploading of your exam file on the myExams platform must be finalised
within 30 minutes of the scheduled (timetabled) end of the exam.
7.1 When ready to submit, open the Take-Home (Assignment) assessment again and
click on the Add Submission button.

7.2. Note the file requirements such as:

a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.
7.3. Check the acknowledgment checkbox and upload your answers document and then click
on the Save changes button.
7.4. Review your submission information regarding the status and click on your submission file
link to check if it's correct.

7.5. If you need to resubmit a file, you can click on the Edit Submission button. Note: You will
need to delete any existing files.
7.6 Use proper PDF conversion software to create the final file for upload. Free PDF conversion
software is available on the Internet.
7.7 Add your student number and the module code in the file name. That will assist you to select
the correct document to upload during submission.
7.8 You are advised to preview your submission (answer script) to ensure legibility and
that the correct answer script file has been uploaded.
8. The cover page for your take-home exam must include your name, student number and the
module code.

9. It is preferred that your take-home exam is typed.
10. Whether your answers are typed or handwritten, your submission on the myExams
platform on Moodle must be made in the form of one PDF document. Only the last
file uploaded and submitted will be marked.
10.1 The exam answer file that you submit must not be password protected or uploaded as a
“read only” file.
10.2 Your examination answer file will not be marked if:
10.2.1 you send your examination answer file via email.

10.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.3 you submit your exam answer file on an unofficial examination.
10.2.4 you submit your examination answer file in the incorrect file format.
10.2.5 you submit a password-protected document.
10.2.6 you submit your examination answer file late
10.2.7 you submit your answer file from a registered student account that is not your own.
10.3 The mark awarded for an illegible examination answer file submission will be your
final mark. You will not be allowed to resubmit after the scheduled closing date and
time of the exam.
10.4 Listening to audio (music) and utilising audio-to-text software has been strictly prohibited
during your examination session, unless use of the software is related to a
student’s assistive device which has been declared. Listening to music, utilising such
software and/or failing to declare the software is a transgression of Unisa’s examination
rules and the student's marks will be withheld.
11. DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY OTHER
SOURCE).
12. You must complete the online declaration of own work when submitting.
12.1 By ticking the Honesty Declaration, you confirm that you have read (i) the University’s Policy
on Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both
available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to
student values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-rules.
12.2 Students suspected of dishonest conduct during the examinations will be subjected
to disciplinary processes. Students may not communicate with other students, or
request assistance from other students during examinations. Plagiarism is a
violation of academic integrity, and students who do plagiarise or copy verbatim from
published work will be in violation of the Policy on Academic Integrity and the Student
Disciplinary Code and may be referred to disciplinary hearing. Unisa has a zero
tolerance for plagiarism and/or any other forms of academic dishonesty.
12.3 The use of Artificial Intelligence software (ChatGPT, etc) and online sources (Course
Material) during your online examination session is strictly prohibited.

12.4 Unless a student is exempted because of disability or incarceration, students who have not
utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s
examination rules and will have their marks withheld.
PLEASE NOTE:
If you experience challenges with the Invigilator app, please send a WhatsApp message to the
technical helpdesk on 073 505 8273. Do not contact the lecturers.
For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
Examenquiries@unisa.ac.za or refer to Get-Help for the list of additional contact numbers.
QUESTION 1
John works at the control tower of the O.R. Tambo Airport. His responsibility is to regulate the
movements of the aeroplanes landing and taking off. Due to a sudden sharp drop in John’s blood
pressure, he loses consciousness for five minutes. During this period of unconsciousness, two
aeroplanes collide because John did not give the pilots the correct instructions. Did John act for the
purpose of the law of delict? Would it make a difference to your answer if John has already been under
medical treatment for a diagnosed condition of low blood pressure, but failed to take his prescribed
blood pressure medication when he should have done so earlier that morning?
Discuss in detail with reference to authority. (15)
QUESTION 2
Chad had a rape charge pending against him. While awaiting trial, he was released on bail. Anna and
her mother, Beatrice, regarded Chad as dangerous and were very concerned. They requested the
police and the prosecutors to ensure that Chad was kept in custody pending his trial, but their requests
were unsuccessful. Soon thereafter, Chad seriously assaulted Anna. Anna now wishes to institute a
delictual claim against the state, based on the alleged failure of the police and prosecutors to protect
her against Chad.
Discuss only, but in detail, whether the conduct of the police and prosecutors was wrongful. (25)
QUESTION 3
In Le Roux v Dey 2011 3 SA 274 (CC) 315, Brand AJ stated:
“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.”
What is the importance of this excerpt for the wrongfulness criterion in the South African law of delict?
Discuss critically. (10)

QUESTION 4
As John drives into a filling station, he notices that some spilt petrol has caught fire. He stops, gets out
of his car, and runs to the car-wash bay. He grabs hold of a bucket full of water, hurries over to the fire,
and empties the bucket on it. Because burning petrol can float on water, John’s action does not
extinguish the fire, but rather displaces it to a spot directly under Tom’s car. Tom has a powder-based
fire extinguisher in the boot of his car. He gets it out and manages to extinguish the fire. However, his
car is extensively damaged already. Tom wishes to institute a delictual claim against John.
Discuss only, but in detail, whether there was fault on John’s part. (10)
QUESTION 5
The principal of the Bright Future High School has decided to have trees planted on a playground where
the energetic schoolboys play every day. To protect the young trees, circles of thin iron poles are driven
into the ground surrounding the plants. During the first break, Tim, one of the boys in grade twelve, tries
to sit on one of these poles. His friends warn him that the pole is too thin and has a too sharp tip, but
he nonetheless tries to sit on it. The pole penetrates his buttocks and causes a serious injury. Tim’s
parents institute a delictual action against the Bright Future High School for its omission to guard against
the poles injuring the schoolboys.
If the management of the school concedes that the omission was wrongful, what defence can the school
nonetheless raise and what will the effect of a successful reliance on that defence be? Discuss in detail.
(15)
QUESTION 6
Rob is so offended by Roy’s speech at a political rally, that he throws an apple at Roy. Roy falls off the
podium and breaks an arm and two ribs. He is admitted to hospital. While he is being treated there, a
nurse leaves the windows of the ward open and Roy contracts pneumonia.
Was there a legal causal link between Rob’s conduct and Roy’s pneumonia? Discuss in detail. (15)
QUESTION 7
7.1 Briefly explain what is meant by “mitigation of loss”. (2)
7.2 List three specific forms of iniuria. (3)
7.3 Brad’s dog bit Cecile. Brad was in no way negligent in respect of Cecile’s injuries. Name the
delictual action that may still be available to Cecile, and list four requirements for a successful
reliance on the said action. (5)
TOTAL PAPER: [100]
©
UNISA 2023

ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of Unisa’s

policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to the
prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my own.
NAME: ……………………………………………………………………………………...
SIGNATURE: ……………………………………………………………………………...
STUDENT NUMBER: ……………………………………………………………………..
MODULE CODE: ...............................................................................................
DATE: ……………………………………………………………………………………....
MARK RECEIVED FOR ASSIGNMENT 01: …………………………………………..
MARK RECEIVED FOR ASSIGNMENT 02: …………………………………………..
Downloaded
Downloaded
by: fortunatechando
by: nkwanas54 | fortunatechando@gmail.com
nkwanas54@gmail.com Want to earn
QUESTION 1
John works at the control tower of the O.R. Tambo Airport. His responsibility is to
regulate the movements of the aeroplanes landing and taking off. Due to a sudden
sharp drop in John’s blood pressure, he loses consciousness for five minutes. During
this period of unconsciousness, two aeroplanes collide because John did not give the
pilots the correct instructions. Did John act for the purpose of the law of delict?
Would it make a difference to your answer if John has already been under medical
treatment for a diagnosed condition of low blood pressure, but failed to take his
prescribed blood pressure medication when he should have done so earlier that
morning? Discuss in detail with reference to authority. (15)
In South African law of delict, an act can only be regarded as wrongful and attract liability if it
was done intentionally or negligently. In the case of John, it is clear that he did not
intentionally cause the collision. However, the question is whether he acted negligently and
whether his medical condition can be taken into account in determining negligence.
Negligence involves a failure to exercise the degree of care that a reasonable person would
have exercised in the same circumstances. In the case of John, his sudden loss of
consciousness raises questions as to whether he was negligent in failing to take adequate
precautions to prevent such an event from occurring. The question is whether a reasonable
person in his position would have taken steps to ensure that he was fit to perform his duties,
or whether he should have taken steps to ensure that someone was available to take over in
the event of his sudden illness.
In determining whether John was negligent, the court would consider various factors,
including the nature of his duties, the likelihood and foreseeability of harm, the magnitude
and gravity of the harm that could result from his failure to take adequate precautions, and
the reasonableness and practicality of alternative precautions.
In this case, it would appear that John was negligent in failing to take adequate precautions
to ensure that he was fit to perform his duties. His failure to take his prescribed medication,
despite knowing of his medical condition, was likely a significant factor in his sudden loss of
Downloaded
Downloaded
by: fortunatechando
consciousness. As a result, he failed to give the pilots the correct instructions, and this
resulted in the collision between the two aeroplanes.
Therefore, John's actions can be regarded as wrongful and attract liability under the law of
delict. In terms of the legal principle of respondeat superior, John's employer, the airport, can
also be held liable for his actions since he was acting in the course and scope of his
employment at the time of the incident.
In conclusion, John's actions can be regarded as negligent and wrongful under the law of
delict, and his medical condition, as well as his failure to take adequate precautions, can be
taken into account in determining negligence. His employer can also be held liable for his
actions under the principle of respondeat superior.
QUESTION 2
Chad had a rape charge pending against him. While awaiting trial, he was released on
bail. Anna and her mother, Beatrice, regarded Chad as dangerous and were very
concerned. They requested the police and the prosecutors to ensure that Chad was
kept in custody pending his trial, but their requests were unsuccessful. Soon
thereafter, Chad seriously assaulted Anna. Anna now wishes to institute a delictual
claim against the state, based on the alleged failure of the police and prosecutors to
protect her against Chad. Discuss only, but in detail, whether the conduct of the
police and prosecutors was wrongful. (25)
In South African law of delict, the police and prosecutors have a duty to protect individuals
from harm, and this duty arises from the constitutional right to security of person and the
common law duty of care owed by the state to its citizens. Therefore, in order for Anna to
succeed in a delictual claim against the state, she would need to establish that the conduct
of the police and prosecutors was wrongful.
The question is whether the conduct of the police and prosecutors in failing to keep Chad in
custody pending his trial was wrongful. The answer to this question will depend on whether
the police and prosecutors acted negligently or intentionally.
Downloaded
Downloaded
by: fortunatechando
have exercised in the same circumstances. In this case, the police and prosecutors had a
duty to ensure that Chad was kept in custody pending his trial, in order to protect Anna and
others from harm. Anna and Beatrice had requested the police and prosecutors to keep
Chad in custody, which indicates that they were aware of the potential danger that Chad
posed.
Given the seriousness of the rape charge against Chad, and the risk of harm that he posed
to Anna and others, it could be argued that a reasonable person in the position of the police
and prosecutors would have taken steps to ensure that Chad was kept in custody.
Therefore, the failure of the police and prosecutors to keep Chad in custody pending his trial
could be regarded as negligent.
However, it is important to note that negligence alone is not sufficient to establish liability in a
delictual claim. Anna would also need to establish that the negligence of the police and
prosecutors caused her harm. In this case, Anna was seriously assaulted by Chad, and it
could be argued that the failure of the police and prosecutors to keep Chad in custody was a
contributing factor to her harm.
Therefore, it could be argued that the conduct of the police and prosecutors was wrongful in
terms of the South African law of delict, and Anna may have a valid claim against the state.
However, it is important to note that each case is unique, and the specific facts and
circumstances of this case would need to be considered in detail before a final
determination could be made.
Downloaded
Downloaded
by: fortunatechando
QUESTION 3
In Le Roux v Dey 2011 3 SA 274 (CC) 315, Brand AJ stated:
“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.”
What is the importance of this excerpt for the wrongfulness criterion in the South
African law of delict? Discuss critically. (10)
The excerpt from the Le Roux v Dey case is important for the wrongfulness criterion in the
South African law of delict because it recognises that the concept of wrongfulness is not a
static or fixed one, but rather one that is flexible and adaptable to changing social and legal
norms. It also highlights the role of the judiciary in determining the reasonableness of
imposing liability on a defendant for damages flowing from specific conduct, and the
importance of considering public and legal policy in accordance with constitutional norms in
making such determinations.
The concept of wrongfulness is a central element of the South African law of delict, and it
refers to the idea that a defendant's conduct must be wrongful in order to attract liability.
Wrongfulness is not always easy to define, and it has been subject to various interpretations
and developments over time. The excerpt from the Le Roux v Dey case suggests that
wrongfulness is not a fixed concept, but rather one that is subject to change and
development in accordance with changing social and legal norms. This reflects the idea that
the law is not static, but rather a dynamic and evolving system that is influenced by various
factors, including social and legal developments.
The excerpt also highlights the role of the judiciary in determining the reasonableness of
imposing liability on a defendant for damages flowing from specific conduct. This means that
the courts must consider various factors, including the nature and extent of the harm caused,
the foreseeability of the harm, the defendant's conduct, and any policy considerations that
may be relevant in determining whether it is reasonable to impose liability on the defendant.
Downloaded
Downloaded
by: fortunatechando
This reflects the idea that the law of delict is not a purely objective or mechanical system, but
rather one that requires a nuanced and contextual approach.
Finally, the excerpt emphasises the importance of considering public and legal policy in
accordance with constitutional norms in making determinations of wrongfulness. This reflects
the idea that the law of delict is not a standalone system, but rather one that is influenced by
broader legal and constitutional principles. This recognition of the importance of
constitutional norms in the law of delict is particularly significant in the South African context,
where the Constitution is regarded as the supreme law of the land.
In conclusion, the excerpt from the Le Roux v Dey case is important for the wrongfulness
criterion in the South African law of delict because it recognises the flexible and adaptable
nature of the concept of wrongfulness, highlights the role of the judiciary in making
determinations of wrongfulness, and emphasises the importance of considering public and
legal policy in accordance with constitutional norms in making such determinations.
Downloaded
Downloaded
by: fortunatechando
QUESTION 4
As John drives into a filling station, he notices that some spilt petrol has caught fire.
He stops, gets out of his car, and runs to the car-wash bay. He grabs hold of a bucket
full of water, hurries over to the fire, and empties the bucket on it. Because burning
petrol can float on water, John’s action does not extinguish the fire, but rather
displaces it to a spot directly under Tom’s car. Tom has a powder-based fire
extinguisher in the boot of his car. He gets it out and manages to extinguish the fire.
However, his car is extensively damaged already. Tom wishes to institute a delictual
claim against John. Discuss only, but in detail, whether there was fault on John’s part.
(10)
In South African law of delict, fault is an essential element of liability. In order for Tom to
succeed in a delictual claim against John, he would need to establish that John was at fault
in his actions.
Fault can take various forms, including intention, negligence, and strict liability. In this case,
it is unlikely that John acted with the intention of causing harm to Tom or his property.
Therefore, the question is whether John acted negligently in his actions.
have exercised in the same circumstances. In this case, John noticed that some spilt petrol
had caught fire and he attempted to extinguish the fire by pouring water on it. However, he
did not consider the fact that burning petrol can float on water and that his actions could
displace the fire to another location.
A reasonable person in John's position would have taken steps to ensure that his actions did
not cause harm to others or their property. This could have involved seeking assistance from
a trained professional or ensuring that he had the appropriate equipment to deal with the fire.
By failing to exercise this degree of care, John acted negligently.
Therefore, there was fault on John's part in his actions. His negligence in attempting to
extinguish the fire caused the fire to spread and caused damage to Tom's car. As a result,
Downloaded
Downloaded
by: fortunatechando
Tom may have a valid claim against John for damages. However, it is important to note that
each case is unique, and the specific facts and circumstances of this case would need to be
considered in detail before a final determination could be made.
QUESTION 5
The principal of the Bright Future High School has decided to have trees planted on a
playground where the energetic schoolboys play every day. To protect the young
trees, circles of thin iron poles are driven into the ground surrounding the plants.
During the first break, Tim, one of the boys in grade twelve, tries to sit on one of these
poles. His friends warn him that the pole is too thin and has a too sharp tip, but he
nonetheless tries to sit on it. The pole penetrates his buttocks and causes a serious
injury. Tim’s parents institute a delictual action against the Bright Future High School
for its omission to guard against the poles injuring the schoolboys. If the
management of the school concedes that the omission was wrongful, what defence
can the school nonetheless raise and what will the effect of a successful reliance on
that defence be? Discuss in detail. (15)
If the management of Bright Future High School concedes that the omission to guard against
the poles injuring the schoolboys was wrongful, they may still be able to raise a defence of
contributory negligence. Contributory negligence is a partial defence in the South African law
of delict that can reduce the amount of damages that a plaintiff can recover if their own
negligence contributed to their injury.
In this case, Tim ignored the warnings of his friends and attempted to sit on one of the thin
iron poles surrounding the trees. This suggests that he may have acted negligently and
contributed to his own injury. If the school can establish that Tim's own negligence
contributed to his injury, they may be able to raise the defence of contributory negligence.
If the defence of contributory negligence is successfully raised, it will result in a reduction of

the damages that Tim can recover. The court will determine the extent to which Tim's own
negligence contributed to his injury, and this percentage will be deducted from the damages
that he can recover from the school. For example, if the court finds that Tim was 50%
responsible for his injury, his damages award will be reduced by 50%.
Downloaded
Downloaded
by: fortunatechando
It is important to note that the defence of contributory negligence is not available in cases
where the defendant's conduct was intentional or wilful. In other words, if the school
intentionally or wilfully omitted to guard against the poles injuring the schoolboys, they
cannot raise the defence of contributory negligence.
In conclusion, if the management of Bright Future High School concedes that the omission to
guard against the poles injuring the schoolboys was wrongful, they may still be able to raise
the defence of contributory negligence. If this defence is successfully raised, it will result in a
reduction of the damages that Tim can recover. However, this defence is not available if the
school's conduct was intentional or wilful.
QUESTION 6
Rob is so offended by Roy’s speech at a political rally, that he throws an apple at Roy.
Roy falls off the podium and breaks an arm and two ribs. He is admitted to hospital.
While he is being treated there, a nurse leaves the windows of the ward open and Roy
contracts pneumonia. Was there a legal causal link between Rob’s conduct and Roy’s
pneumonia? Discuss in detail. (15)
In order for there to be a legal causal link between Rob's conduct and Roy's pneumonia, two
requirements must be met: factual causation and legal causation.
Factual causation requires that Rob's conduct was a necessary condition for Roy's
pneumonia. In other words, Roy would not have contracted pneumonia if Rob had not
thrown the apple at him and caused him to break his arm and ribs. It is clear that Rob's
conduct was a necessary condition for Roy's hospitalisation and treatment, so factual
causation is established in this case.
Legal causation requires that Rob's conduct was the proximate or legal cause of Roy's
pneumonia. This means that Rob's conduct must have been of such a nature that it was
Downloaded
Downloaded
by: fortunatechando
reasonably foreseeable that it would cause Roy to contract pneumonia. The foreseeability of
the harm is a key factor in determining legal causation.
In this case, it is unlikely that Rob's conduct was the proximate or legal cause of Roy's
pneumonia. While it is possible that the nurse's actions in leaving the windows of the ward
open may have allowed Roy to contract pneumonia, this is not a reasonably foreseeable
consequence of Rob's conduct. Roy's pneumonia was caused by a separate and intervening
act of negligence by the nurse, which broke the chain of causation between Rob's conduct
and Roy's harm.
Therefore, there is no legal causal link between Rob's conduct and Roy's pneumonia. While
Rob's conduct was a necessary condition for Roy's hospitalisation and treatment, it was not
the proximate or legal cause of his pneumonia. As a result, Rob cannot be held liable for
Roy's pneumonia under the South African law of delict.
QUESTION 7
7.1 Briefly explain what is meant by “mitigation of loss”. (2)
Mitigation of loss refers to the duty of a plaintiff in a delictual claim to take reasonable steps
to minimize their losses or damages. This means that a plaintiff cannot simply sit back and
allow their losses or damages to accumulate without taking any action to mitigate them.
Instead, they have a duty to take reasonable steps to reduce or avoid their losses, where
possible.
7.2 List three specific forms of iniuria. (3)
An iniuria in principle consists of the intentional infringement of a personality right- 1) Iniuria

per consequentias. 2) Personality infringement and patrimonial damage. 3) Personality rights
of juristic persons.
7.3 Brad’s dog bit Cecile. Brad was in no way negligent in respect of Cecile’s injuries.
Name the delictual action that may still be available to Cecile, and list four
requirements for a successful reliance on the said action. (5).
The delictual action that may be available to Cecile in this case is that of vicarious liability.
Downloaded
Downloaded
by: fortunatechando
Vicarious liability allows a plaintiff to hold a defendant liable for the actions of another
person, such as an employee or a pet owner.
In order for Cecile to successfully rely on the action of vicarious liability, the following four
requirements must be met:
1. The person who caused the harm must have been an employee or agent of the
defendant.
2. The harm must have been caused in the course and scope of the employee or agent's
employment or agency.
3. The harm must have been caused by the fault of the employee or agent.
4. The harm must have been suffered by the plaintiff.
In this case, if Brad's dog bit Cecile while under his control, Brad may be held vicariously
liable for the harm caused by his dog. However, it is important to note that each case is
unique, and the specific facts and circumstances of this case would need to be considered in
detail before a final determination could be made.
Downloaded
Downloaded
by: fortunatechando
Powered by TCPDF (www.tcpdf.org)
May/June 2022
PVL3703
Law of Delict
Unique number: 222256
24 MAY 2022
08H00-11h00 (3 Hours)
100 Marks
First examiner: Prof JC Knobel; Prof M Mokotong

This paper consists of four (4) pages.
This is a closed-book examination
INSTRUCTIONS FOR A TAKE-HOME EXAM

1. The examination question paper counts 100 marks.
2. It consists of eight (8) questions. Answer ALL the questions.
3. The duration of the examination is from 08h00 - 11h00 (3 hours).
4. This is a closed-book examination. While the examination is in progress, you are not
allowed to consult another person, or any source in order to assist you to answer any of the
questions contained in this question paper. While the examination is in progress, you are not
allowed to assist another student in answering any of the questions for this examination.
5. You must tick the Honesty Declaration before submitting this examination.
6. Your answers must be submitted online in Pdf format. You have until 12h00 to upload your

answers. No other type of submission of your examination answers will be accepted. Emailed
submissions will not be accepted for marking.
7. Please note that the Invigilator App will apply during the examination.
QUESTION 1
John works in the control tower at the Takeflight Airport. He suffers from a rare disease
that causes unexpected blackouts. However, he is on prescription medicine that
effectively eliminates the possibility of the blackouts. On one particular day, he does
not take his medicine. In the control tower, he has a blackout and is unable to give the
necessary instructions to departing and arriving aircraft. A catastrophic aeroplane
accident takes place during his blackout because no instructions were forthcoming. A
potential plaintiff approaches you for a legal opinion.
Write an opinion on the question whether John’s behaviour qualified as conduct for
the purpose of delictual liability. (10)
QUESTION 2
At the Shop-Till-You-Drop Shopping Mall, hand sanitizer dispensers have been

installed at all the pedestrian entrances. Notices have been placed near the
dispensers, in which customers are urged to sanitize their hands at the dispensers
before entering the mall. At Entrance B, the dispenser has been malfunctioning for half
a week. It spills sanitising liquid onto the floor, in such large quantities that the liquid
does not evaporate immediately, but forms a small puddle around the base of the
dispenser. Because the lighting at Entrance B is rather on the dim side, the puddle is
not readily visible unless one specifically looks out for it. The management of the mall
is aware of this situation, but does not do anything about it. Ms C is an elderly lady
whose eyesight is not very good, and she is not particularly steady on her legs, but
she loves shopping. She arrives at entrance B, reads the notice, and proceeds to
sanitize her hands. This requires her to put her one foot on a pedal and push down on
it to activate the dispenser. As she attempts to do this, she slips in the puddle and falls.
She sustains serious injuries and is hospitalised. After a long and costly bout in
hospital, she is discharged. Ms C wishes to institute an action for damages against the
management of the Shop-Till-You-Drop Shopping Mall, and approaches you for legal
advice.
Write an opinion, properly substantiated with reference to case law, only on

the wrongfulness of the conduct of the management of the Shop-Till-You-Drop
Shopping Mall. (30)

QUESTION 3
Mike hires a mountain bike from the Steadywheels Mountain Bike Park and goes for
a ride on one of the mountain bike trails in the Park. Even though Mike’s safety helmet
is in the boot of his car, he neglects to put on his helmet before he goes for the ride.
Along a steep part of the trail, the front wheel of the rental bike suddenly comes off.
Mike falls and sustains serious injuries. It transpires that David, an employee of
Steadywheels, had not fastened the front wheel of the bike properly when he had
serviced it. In addition, it transpires that Mike’s injuries would have been substantially
less serious if he had worn his helmet. Mike wants to institute a delictual claim against
Steadywheels.
Write a properly substantiated opinion on the feasibility of such a claim: (a) You may
accept that Steadywheels will argue that there was no fault on its part and will not
contest the other elements of delictual liability. (b) In addition, you should also consider
whether any defence is available to Steadywheels and what the effect of such a
defence, if available, would be. (c) Furthermore, you should give an opinion on the fact
that Mike’s claim will be instituted against Steadywheels, rather than David. (30)
QUESTION 4
Tom inadvertently knocks over a ladder on which William is standing while painting a
wall. William falls and breaks a leg. In the hospital, the leg is set in plaster, William is
issued with crutches, and is discharged. At home, William slips with the crutches and
falls again, breaking an arm.
Discuss only the following: (a) whether there is a factual causal link between Tom’s
conduct and William’s broken arm; and (b) whether there is a legal causal link between
Tom’s conduct and William’s broken arm. (15)
QUESTION 5
Jenna asks Connie to look after her dog while she is away on vacation. Connie takes
the dog for a walk in the park. She orders the dog, which is well-trained, to bite Ben,
against whom she bears a grudge. The dog immediately attacks Ben. Ben hits the dog
over the head with a baseball bat, killing the dog. On returning from her vacation,
Jenna institutes a claim for damages against Ben. Ben does some internet research,
but he is not sure whether to rely on private defence or necessity.
Which one of these two grounds of justification would you recommend to Ben, and
why? (5)

QUESTION 6
Jane’s dog bit Carol, inflicting serious injuries. Jane was not negligent in any way.
Name the action with which Carol can claim damages from Jane, and list the
requirements to succeed with this action. (5)
QUESTION 7
Name 3 grounds of justification that are applicable in defamation law. (3)
QUESTION 8
Defamation is a specific form of iniuria. Name 2 other forms of iniuria. (2)
TOTAL PAPER: [100]
©
UNISA 2022

QUESTION 1
John works in the control tower at the Take flight Airport. He suffers from a rare disease
not take his medicine. In the control tower, he has a blackout and is unable to ive the
necessary instructions to departing and arriving aircraft. A catastrophic airplane
accident takes place during his blackout because no instructions wereforthcoming. A
Downloaded by: mickaylasmal | mickayla172@gmail.com

Distribution of this document is illegal
Conduct is defined as a voluntary human act or omission. “Voluntary” means that the
person must be able to control his muscular movements by means of his will. The act of
the wrongdoer must be voluntary to give rise to delictual liability. Conditions that may
cause a person to act involuntarily as they render him incapable of controlling his bodily
movements: absolute compulsion (vis absoluta), sleep, unconsciousness, fainting fit,
epileptic fit, serious intoxication, blackout, reflex movements, strong emotional pressure,
However, John had been receiving medical treatment for a diagnosed illness but failed
to take his prescribed medication on that particular occasion. He therefore intentionally
placed himself in a mechanical state (actio libera in causa). Actio libera in causa:
Defence of automatism won’t succeed if defendant intentionally created the situation in
which he acts involuntarily in order to harm another. The defendant will be held liable for
his culpable conduct in creating the state of automatism which resulted in damage to the
plaintiff.
John was negligent regarding his automatic “conduct.” Where the reasonable man
would’ve foreseen the possibility of causing harm while in a state of automatism, e.g. in
Victor case, X was convicted of negligent driving despite causing the accident during an
epileptic fit, as he’d been suffering fits for 13 years and the reasonable man
would’ve foreseen the possibility of causing harm while in a state of automatism. In this
case, John knew he may have a blackout if his medication was taken.
Only the voluntary act closest to the harmful consequence is of relevance, and it’s
therefore unnecessary to consider prior voluntary acts.
John placed himself in a mechanical state by not taking his medication Thus, John was
probably negligent, or could even have had intention in the form of dolus eventualis.
QUESTION 2

a week. It spills sanitising liquid by:
Downloaded onto the floor,
mickaylasmal in such large quantities that the liquid
| mickayla172@gmail.com
does not evaporate immediately but forms a small puddle around the base of the
is aware of this situation but does not do anything about it. Ms C is an elderly lady
management of the Shop-Till-You-Drop Shopping Mall and approaches you for legal
advice.
Write an opinion, properly substantiated with reference to case law, only onthe
wrongfulness of the conduct of the management of the Shop-Till-You-Drop Shopping
Mall. (30)
This question deals with the wrongfulness of an omission. An omission is wrongful if

the defendant is under a legal duty to act positively to prevent the harm suffered by the
plaintiff. The basic question to determine whether an omission is wrongful is whether a
legal duty to act was present and was breached. As a general rule, a person does not
act wrongfully for the purposes of the law of delict if he omits to prevent harm to
another person. For liability to follow an act, prejudice must be caused in a wrongful
and unreasonable manner. Without wrongfulness the defendant cannot be held liable.
The legal convictions of the community (boni mores test) are used as the basic test for
wrongfulness. The general norm to see if an infringement of interests is unlawful is the
legal convictions of the community. Factors which may serve as indications that a legal
duty rested on the defendant include:
➢ prior conduct (omissio per commissionem)
➢ control of a dangerous object
➢ rules of law Downloaded by: mickaylasmal | mickayla172@gmail.com
➢ a special relationship between the parties

➢ particular office
➢ contractual undertaking for the safety of a third party
➢ and creating of an impression that the interests of a third person will be protected.
We will look at PRIOR CONDUCT more closely.
A person acts prima facie wrongfully when he creates a new source of danger and then
fails to eliminate that danger, with the result that harm is caused to another person. Prior
conduct is not a prerequisite for the existence of a legal duty, however at one stage this
was the only category where liability was imposed on a failure to act.
The Municipality cases are closely linked to this scenario.
In Halliwell v Johannesburg Municipality; the municipality laid cobblestones in

Johannesburg’s city centre but failed to maintain those stones. When Mr Halliwell
crossed the cobblestone path with his horse carriage on a Christmas morning, his
horse stumbled on the poorly maintained road and Mr Halliwell was hurt. The court
held that the municipality was liable for the failure to maintain the cobblestone road
which led to Mr Halliwell’s injuries. This was explicitly done on the basis of the prior-
conduct rule. This rule was also employed in the case of Silva’s Fishing Corporation v
Maweza, where the owner of a boat sent fishermen out to sea (the prior positive
conduct) but when the boat stopped working, the owner did nothing to save the
fishermen (the subsequent omission). The boat owner was held liable for his omission.
In Regal v African Superslate, the prominence of the prior-conduct rule as the only
ground on which liability for an omission could be established ended. In the judgment it
was noted that the prior-conduct rule was not the only basis on which an omission
would be actionable. For the first time, the Appellate Division noted that the prior-
conduct rule and the rule related to the control of dangerous property are both grounds
on which the wrongfulness of an omission can be established.
In Regal it was showed that the conduct element could be satisfied by simply showing
the factual existence of an act or an omission. The wrongfulness of the omission was
then established by means of the prior-conduct rule or the rule related to the control of
dangerous property. The principle from Regal was later also applied in the case of
Minister of Forestry v Quathlamba; where a fire started on one property, the owner of
that property failed to control or contain the fire, and the fire spread to a neighbouring
property. This re-inforced the Regal decision that prior conduct is not the only criterion
for establishing a legal duty.
An extension of the rules related to the wrongfulness of omissions featured in the case
of Minister van Polisie v Ewels. In that case police officers passively stood by and
watched as a fellow police officer brutally assaulted a civilian. The court held that those
two rules as shown in prior cases are just two of many factors to consider in determining
the wrongfulness of omissions. In Ewels, considerations that weighed in favour of a
finding of wrongfulness of the omission of the passive police officers included the legal
duty placed on the police to protect citizens from harm, the special relationship between
police officers and the public, and the fact that the passive police officers were in a
position to exercise authority or control over their assaultive colleague.
In Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001, the CC made it clear that the boni mores must now be informed by
the values underpinning the Bill of Rights in the Constitution.
APPLICATION TO THE FACTS
Looking at the above principles and the the given facts, we can conclude that the
omission of the Centre Management of the shopping mall was wrong. Management at
the Shopping Centre had a legal duty in terms of the legal convictions of the community
to prevent this accident from happening.
Question 3
a ride on one of the mountain bikes trails in the Park. Even though Mike’s safety helmet
Steadywheels.

From the given facts, we can conclude that the defendant has been negligent, but the
plaintiff appears to have been negligent too. Thus we must consider whether
contributory negligence was present.
Contributory negligence is negligence on the part of the plaintiff, and it is a defence that
the defendant can raise. The Apportionment of Damages Act 34 of 1956 is applicable.
This Act provides that a contributorily negligent plaintiff’s damages be apportioned. The
court will determine the degree of deviation from the reasonable person standard shown
by the conduct of both the defendant and the plaintiff, express the deviation as
percentages, and use these percentages as a basis for the apportionment.
According to the Smit 1962 and Nomeka 1976 cases, the percentages of negligence
attributed to the defendant and plaintiff respectively will always add up to 100%.
According to Jones NO v Santam Bpk 1965, both percentages must be assessed
independently, which could mean that, for example, a defendant may be 80% negligent
while the plaintiff is 30% negligent. According to Neethling and Potgieter, the approach
in Jones is to be preferred, but the 2 approaches can be reconciled. According to King v
Pearl Insurance Co Ltd 1970, a defence of contributory negligence could not succeed
where the plaintiff had omitted to wear a crash-helmet while driving a scooter but had
not been negligent in respect of causing the accident.
However, in Bowkers Park Komga Cooperative Ltd v SAR and H 1980, the court held
that contributory negligence didn’t refer to negligence in respect of the damage-causing
event, such as a motorcar accident, but to negligence in respect of the damage itself,
and this was confirmed by the AD in Union National South British Insurance Co Ltd v
Vitoria 1982 and General Accident Versekeringsmaatskappy SA Bpk v Uijs 1993.
Therefore, failure to wear a safety helmet would constitute contributory negligence if it
contributed to the plaintiff’s damage.

QUESTION 4
Does a factual causal link exist between Tom’s conduct and Williams broken
leg?
The generally accepted test for factual causation is the conditio sine qua non test, or ‘‘but
for test’’. This entails mentally eliminating, or thinking away, the conduct. If the damage
then also disappears, a factual causal link is present between the conduct and the
damage. This test is subject to much criticism. Among others, it is said to be based on
circular logic and is, at best, a way to express the existence of a causal nexus that has
been determined in another way. Neethling and Potgieter argue that evidence and
human experience are sufficient to determine whether one fact flowed from another fact,
and that a so-called test of factual causation is superfluous. However, the courts
consistently state that the conditio sine qua non is the test of factual causation. If we
apply the test to the facts, we must conclude that if Tom had knocked over the ladder
that William was standing on, he would not have broken his leg, and therefore a factual
causal link is present between Tom’s conduct and William’s damage.
Does a legal causal link exist between Tom’s conduct and William’s broken leg?

The test for legal causation is the so-called flexible approach, as formulated in S v
Mokgethi 1990 and International Shipping Co (Pty) Ltd v Bentley 1990.
According to the court, the main question in respect of legal causation is whether there
is a close enough relationship between the wrongdoer’s conduct and its consequence
for such consequence to be imputed to the wrongdoer in view of policy considerations
based on reasonableness, fairness and justice. Several other legal causation theories
exist, such as adequate causation, direct consequences, foreseeability and novus actus
interveniens.
None of these criteria is suitable to be applied to all situations. They may, however, be
used as subsidiary aids when employing the flexible approach. In the Mokgethi case, the
court held that the shot was not a legal cause of the death. If these principles are applied
to the facts in the question, the conclusion is probably that William’s broken leg was too
remote and should not be imputed to the wrongdoer. It could also be argued that a so-
called novus actus interveniens, that is, a new intervening act, was constituted by
Williams second fall, and this strengthens the conclusion that there is no legal causal link
between Tom’s conduct and William’s broken leg
QUESTION 5
why? (5)
Ground of Justification - Necessity.
A state of necessity exists when defendant is placed in such a position by superior force
(vis maior) that he is able to protect
Downloaded his legally
by: mickaylasmal recognised interests (or those of
someone else) only by reasonably violating the interests of an innocent person. Thus,
Ben will be successful with necessity as a ground of justification as he had no other
option but ot protect himself from the attack
QUESTION 6
Jane’s dog bit Carol, inflicting serious injuries. Jane was not negligent in any way. Name
the action with which Carol can claim damages from Jane and list the requirements to
succeed with this action. (5)
Action - The actio de pauperie
The following requirements must be met:

1. The defendant must be the owner of the animal when the damage is inflicted.
2. The animal must be a domestic animal
3. The animal must act contrary to its own nature when inflicting damage – as a rule an
animal doesn’t act contrary to its own nature if it’s reacting to external stimuli –defences:
vis major, culpable conduct on the part of the prejudiced person and provocation.
4. The prejudiced person or his property must be lawfully present at the location when
the damage is inflicted.
QUESTION 7
• Privilege
• Truth and public interest
• Fair comment
QUESTION 8
• Adultery
• Invasion of Privacy

May/June 2020
PVL3703
Law of Delict
100 Marks
2 Hours
This paper consists of 17 pages.
INSTRUCTIONS FOR A FULL MCQ EXAM WITH ASSESSMENT INFO TOOL ON MYUNISA
1. The examination consists of Multiple-Choice Question types only.
2. The examination question paper counts 100 marks and consists of 50 Multiple-Choice Questions
each worth 2 marks. Answer all of the questions.
3. The duration of the examination is 2 hours. You will be allowed a further thirty (30) minutes after
the conclusion of the official examination period to upload your examination responses (answers)
onto the myUnisa platform for further processing.
4. This is a closed-book examination. While the examination is in progress, you are not allowed to
consult another person or any source in order to assist you to answer any of the questions contained
in this question paper. You may also not assist another student in answering any of the questions
contained in this question paper.
5. The answers to this MCQ examination may only be submitted online on myUnisa. The Unisa MCQ
App cannot be used for examination submissions.
5.1 Access myUnisa at https://my.unisa.ac.za/portal and login using your student number and myUnisa
password.
5.2 Click on the “myAdmin” tab in the top navigation
5.3 In the “Assessments” submenu, click on the “Assessment Info” tool in the drop-down list
 A list of all available assessments will display
 Find the corresponding examination assessment number for your module
 Click on the Submit link in the Action column and follow the steps described below.
Step 1: Enter the total number of questions required for the assessment.
 Enter the total number of questions for your assessment in the Number of Questions field
 Click on the Continue button.

CONFIDENTIAL
Page 2 of 17
PVL3703
May/June 2020
Step 2: Fill out multiple-choice question answers
The number of questions requested in the previous step will now be displayed with five answer
options next to each one. Please note that each row represents a question in your assignment.
 Click on the radio button [the small circle] that corresponds to your answer for that question.
 Click on the Continue button to move to step 3.
 If you want to restart the assignment, click on Clear Form to remove all your selections and
start from new.
Step 3: Verify the answers to your multiple-choice assignment

This screen presents a summary of all your answers. Use it as a final check.
 Click on the Continue button to submit your assignment. If you do not click Continue, no
submission action will take place.
 If you want to redo the answers to the assignment, click Back to go back to the previous
step.
Step 4: Assessment submission report

This is your proof that your examination answers were successfully submitted. If you do not
see this screen, Unisa has not received your submission.
It is advisable to print this page or make a screen capture for record purposes. A copy of this page
will also be emailed to your myLife email account.
PLEASE NOTE:
If you experience technical problems, of any kind, on the day of the examination and your examination answers
are not submitted by the cut-off time, you will be marked as absent and automatically deferred to the
October/November 2020 examination. No other type of submission of your examination answers will be
accepted.
Instructions:
 Answer all the questions.

 Choose the correct/most suitable option for each question.
 Choose only one answer for each question.
[TURN OVER]

CONFIDENTIAL
Page 3 of 17
PVL3703
May/June 2020
Questions 1 to 7 must be answered with reference to this set of facts:
The Cape Town Metro has neglected to keep a popular seaside promenade in a good
condition. Due to weathering, the surface of the promenade has become uneven. During
a pre-dawn run, Thabo trips and falls when running over crumbling paving on the
promenade. He breaks his right arm and his face hits a bench. He is treated in hospital
and his arm heals eventually, but his face remains permanently disfigured. He does not
belong to a medical aid scheme and is therefore personally liable for the hospital costs.
He is also unable to work for some time and suffers a temporary loss of income.
It is advisable to read all seven questions before answering any one of them.
1. If Thabo wishes to institute a delictual claim against the Metro, he may rely on the
following delictual remedy or remedies:
1. The actio legis Aquiliae and the actio iniuriarum.
2. The actio legis Aquiliae and the action for pain and suffering.
3. The actio legis Aquiliae only.
4. The actio de effusis vel deiectis only.
(2)
2. If Thabo institutes a delictual claim against the Metro, the question whether the
Metro’s conduct was wrongful will, according to the traditional approach to
wrongfulness, be answered with reference to the following:
1. Infringement of a subjective right.
2. Breach of a legal duty.
3. The reasonableness of holding the Metro liable.
4. The reasonable person test.
(2)
[TURN OVER]

CONFIDENTIAL
Page 4 of 17
PVL3703
May/June 2020
Metro’s conduct was wrongful will, according to the new approach to wrongfulness
that has often been followed since the judgment in Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461(SA), be
answered with reference to the following:
(2)
4. If Thabo institutes a delictual claim against the Metro, the question whether there was
fault on the Metro’s part, will be answered with reference to the following:
1. The ability to differentiate between right and wrong.
3. Directing the will combined with consciousness of wrongfulness.
4. Foreseeability and preventability of harm.
(2)
5. Which one of the following has an important influence on the time at which Thabo
must claim for the different kinds of harm suffered by him? Select the most
appropriate one.
1. The “once and for all” rule.
2. The concrete approach to damage.
3. Mitigation of damage.
4. The sum-formula approach.
(2)
6. Assume that Thabo succeeds with a delictual claim against the Metro after he has
been discharged from hospital. The quantum of the claim for the hospital costs must
preferably be determined in accordance with:
(2)
[TURN OVER]

CONFIDENTIAL
Page 5 of 17
PVL3703
May/June 2020
7. If Thabo succeeds with a delictual claim against the Metro, after he has been
discharged from hospital but several months before he is able to work again, the
quantum of the claim for loss of income must preferably be determined in accordance
with:
(2)
Charles works as a technician at Fani’s Funfair. One of his tasks is to inspect the
rollercoaster at the funfair for mechanical integrity and safety. However, as a result of
his lack of care and attention while conducting the inspection, Charles inadvertently
overlooks some signs that the rollercoaster is no longer in sound condition. Ria goes for
a ride on the rollercoaster. Neither on the ticket that Ria has purchased, nor on any
notice board on the premises is there any notice that Fani’s Funfair does not accept
liability for injury to its customers. The operator at the rollercoaster requests the persons
boarding the rollercoaster to fasten their safety harnesses securely. However, Ria
decides not to fasten her safety harness, because she wants to take good selfie pictures
during the ride. All the other persons on the rollercoaster fasten their safety harnesses.
During the ride, but before it can reach a high speed, the rollercoaster breaks down and
comes to an abrupt standstill. Ria’s head hits the front of the cart in which she is sitting.
Her nose is broken, and she sustains a concussion. All the other persons on the
rollercoaster are unharmed. She is hospitalised for treatment. After two days, Ria has
healed sufficiently to be discharged. However, Mandy, an inexperienced nurse, forgets
to close a window in Ria’s ward and Ria is exposed to an icy wind overnight. In the
morning, Ria is diagnosed with severe pneumonia and she must stay in hospital for
longer. Ria wishes to recover her damage by instituting a delictual claim.
It is advisable to read all 8 questions before answering any one of them.
[TURN OVER]

CONFIDENTIAL
Page 7 of 17
PVL3703
May/June 2020
12. Whether there was a legal causal link between Charles’ conduct and Ria’s harm,
will be determined with reference to:
1. The but for-test.
2. Adequate causation.
3. Direct consequences.
4. The flexible approach.
(2)
13. Choose the most correct and most complete alternative: There was a legal causal
link between Charles’ conduct and:
1. Ria’s broken nose and concussion.
2. Ria’s broken nose, concussion and the hospital costs incurred in respect of
treating the broken nose and concussion.
3. Ria’s broken nose and concussion and pneumonia and all the hospital costs.
4. Ria’s pneumonia and the hospital costs incurred in respect of treating the
pneumonia.
(2)
14. Which one of the following defences may be available to the defendant(s)?
1. Pactum de non petendo.
2. Contributory negligence.
3. Doctrine of sudden emergency.
4. Official command.
(2)
15. What will the effect of a successful reliance of the available defence in question 14
be?
1. An apportionment of damages will take place.
2. Ria’s claim will fail completely.
3. Ria would have forfeited the right to institute a delictual claim.
4. The defendant(s) will be permitted to pay damages in instalments.
(2)
[TURN OVER]

CONFIDENTIAL
Page 8 of 17
PVL3703
May/June 2020
16. Thumi is an epilepsy sufferer. He neglects to take his prescription medicine and
decides to drive to the local mall to do some shopping. On his way, he suffers an
epileptic seizure. He loses control of his car and smashes into a corner shop, causing
considerable damage to the building and merchandise. The shop owner institutes a
delictual action against Thumi. Which one of the following statements is correct?
1. Thumi can escape liability by relying on automatism.

2. Thumi cannot rely on automatism because the defence actio libera in causa
applies.
3. Thumi cannot rely on automatism because he negligently placed himself in a
situation where his movements were mechanical.
4. Thumi can escape liability by proving that his bodily movements were not voluntary
at the time when the damage was caused.
(2)
17. Gezani incites his aggressive, pedigreed rottweiler dog to attack Derick. Derick
shoots and kills the dog. If Gezani institutes a delictual action against Derick for the
loss of his dog, Derick may rely on the following defence:
1. Necessity.
2. Private defence.
3. Provocation.
4. None of the above.
(2)
18. Linda asks Jane to look after Jock, her friendly and well-trained Staffordshire bull
terrier while Linda is away on vacation. The next day Jane takes Jock for a walk in a
park. Thomas approaches Jane, draws a knife and orders her to hand over her
handbag and phone. Jane orders Jock to attack Thomas. Jock responds
immediately, but Thomas kills Jock with his knife. Jane slips away, alerts a policeman
on patrol, and Thomas is apprehended. When Linda returns from vacation, she
institutes a delictual action against Thomas for the loss of her dog. Thomas may rely
on the following defence:
1. Necessity.
2. Private defence.
3. Provocation.
(2)
[TURN OVER]

CONFIDENTIAL
Page 9 of 17
PVL3703
May/June 2020
19. Tebogo asks Mary to look after Uli, her pedigreed and well-trained German
shepherd dog while Tebogo is away on vacation. The next day Mary takes Uli for a
walk in a park. Mary sees William, her ex-boyfriend, in the distance. Mary has a
grudge against William and orders Uli to attack him. William shoots and kills Uli.
Tebogo institutes a delictual action against William for the loss of her dog. William
may rely on the following defence:
1. Necessity.
2. Private defence.
3. Provocation.
(2)
20. Grace likes to shoot with a bow and arrow in her spare time. She asks Peter to
balance an apple on his head so that she can use it as a target. He agrees. The first
arrow shot by Grace misses the apple but penetrates Peter’s arm, necessitating
medical treatment. Peter institutes a delictual claim against Grace. Grace may rely
1. Privilege.
2. Official capacity.
3. Consent.
(2)
21. X is suspected of infidelity by his wife. She hires a private detective, Y, to spy on X.
Y follows X in his car to a lonely spot in the veld. X has a woman with him in his car.
When Y approaches X’s car, X starts to drive off. Y vaults onto the bonnet in order
to obscure X’s view and so to make him stop. X, however, accelerates and begins
to swerve from side to side, clearly with the object of dislodging Y who is clinging
on for dear life. Six kilometres further, X succeeds in dislodging Y. Y suffers injuries
and institutes a delictual claim against X.
According to Neethling and Potgieter, the theoretically correct position is:
1. X can successfully raise contributory negligence as a defence.

2. X can successfully raise contributory intention as a defence.
3. X can successfully raise a pactum de non petendo to ward off Y’s claim.
4. X can successfully raise tacit consent to the risk of injury as ground of justification.
(2)
[TURN OVER]

CONFIDENTIAL
Page 10 of 17
PVL3703
May/June 2020
22. Which of the following principles relates to the maxim that you must “take your victim
as you find him”?
1. The “sum formula” approach

2. The “mitigation” of loss principle.
3. The “talem qualem” rule.
(2)
23. Luke and his brother Paul bear a grudge against Patrick and agree to teach him a
lesson he will not forget. While Patrick walks around in a shopping mall, Luke and
Paul damage Patrick’s motorbike by hitting it with hammers. If Patrick successfully
sues Luke and Paul in delict, they will incur:
1. Vicarious liability.
2. Joint and several liability.
3. Liability based on contributory intent.
4. Strict liability.
(2)
24. Rhulani’s goat eats and tramples Owen’s maize crops. Rhulani forgot to close the
gate between his and Owen’s land. Which remedy or remedies may be available to
Owen?
1. The actio de pauperie and actio legis Aquiliae.

2.The actio de pauperie only.
3.The actio de pastu only.
4.The actio de pastu and actio legis Aquiliae.
(2)
25. Which one of the following is incorrect?
1. An animal cannot act for purposes of the law of delict.

2. A public school can act for the purpose of the law of delict.
3. Behaviour must be willed to qualify as a voluntary act.
4. Conduct may consist of a commission or an omission.
(2)
[TURN OVER]

CONFIDENTIAL
Page 11 of 17
PVL3703
May/June 2020
26. While watching a soccer match, Tom, a staunch supporter of Orlando Pirates, tells
Ace, a staunch supporter of Chiefs, that he (Ace) is a wimp for supporting such a
useless team. Tom continues to insult Ace. After enduring Tom’s insults for about 30
minutes, Ace in a blind range, hits Tom in the face, breaking Tom’s nose. Tom
institutes a delictual action against Ace. Ace may rely on:
1. Private defence.
2. Necessity.
3. Provocation.
(2)
27. If a court must determine whether a brain surgeon was negligent while performing
brain surgery on a patient, the court will inquire whether he met the standard of care
of:
1. The reasonable person.
2. The reasonable doctor.
3. The reasonable brain surgeon.
4. The most well-known brain surgeon practicing in South Africa.
(2)
28. If a court must determine whether a brain surgeon was negligent while driving his
car, the court will inquire whether he met the standard of care of:
(2)
[TURN OVER]

CONFIDENTIAL
Page 12 of 17
PVL3703
May/June 2020
29. Matthew is a rep for a pharmaceutical company, and he uses his car on a daily basis
to earn an income. He takes his car to Mike’s Mechanics for a service. A fire breaks
out at the premises and destroys Matthew’s car. The fire resulted from negligent
conduct on Mike’s part. Matthew institutes a delictual claim against Mike’s
Mechanics. In addition to the value of his car, he also wishes to claim an amount
that he has paid to Richard’s Rentals for renting a car to enable him to continue
doing his work and thus earning an income while waiting for the outcome of the
litigation. In respect of this second amount:
1. Matthew will not succeed, because the rental of the car is regarded as res inter
alios acta.
2. Matthew will not succeed, because Mike’s Mechanics cannot be made a party to
the contractual relations between Matthew and Richard’s Rentals.
3. Matthew will succeed, because a legal causal link exists between the conduct of
Mike’s Mechanics and the amount that Matthew had to pay to Richard’s Rentals.
4. Matthew will succeed, because of the mitigation of loss rule.
(2)
30. According to case law, if a motor vehicle is involved in an accident, the failure of a
passenger in that motor vehicle to fasten their seat belt:
1. Will always constitute contributory negligence for the purpose of an apportionment

of damages.
2. Can constitute contributory negligence for the purpose of an apportionment of
damages only if such failure contributed to the passenger’s injuries.
damages only if such failure contributed to the accident.
4. Can never constitute contributory negligence for the purpose of an apportionment
of damages.
(2)
31. According to case law, the negligence of a child wrongdoer in delict cases is
determined:
1. According to a reasonable person standard, but the youthfulness of the child is
considered when determining accountability.
2. According to a reasonable child standard.
3. According to the standard of a reasonable child of the same age.
4. According to the boni mores standard.
(2)
[TURN OVER]

CONFIDENTIAL
Page 13 of 17
PVL3703
May/June 2020
32. Which statement is incorrect?

1. A legal causal link between an act and a consequence is determined by mentally
eliminating the act and inquiring whether the consequence will then also
disappear.
2. A legal causal link exists if there is a sufficiently close link between an act and a
consequence that the consequence may be imputed to the wrongdoer.
3. A legal causal link is determined with reference to policy considerations of
reasonableness, fairness and justice.
4. When determining legal causation, standards such as adequate causation and
direct consequences may be used as subsidiary tests.
(2)
33. According to the doctrine of sudden emergency:

1. When a court determines the negligence of the conduct of an alleged wrongdoer
who found himself in a situation of sudden emergency, it is permissible to deviate
slightly from the reasonable person standard.
2. The notional reasonable person can make an error of judgment in a situation of
sudden emergency.
3. The wrongfulness of the conduct of an alleged wrongdoer who had to act in a
situation of sudden emergency will be judged more leniently by a court of law.
4. The state president may provide for the adoption of regulations that absolve
residents from delictual liability for conduct that takes place in a situation of sudden
emergency.
(2)
34. According to Greater Johannesburg Transitional Metropolitan Council v ABSA Bank

Ltd t/a Volkskas Bank 1997 2 SA 691 (W), contributory intention:
1. Is not recognised as a defence in our law.

2. Can give rise to a 50% reduction of damages if the defendant acted negligently.
3. Can give rise to a 50% reduction of damages if the defendant acted intentionally.
4. Is a complete defence if the defendant acted intentionally.
(2)
35. “Contributory fault” refers to the fault of:
1. The defendant.
2. The plaintiff.
3. Both the defendant and the plaintiff.
(2)
[TURN OVER]

CONFIDENTIAL
Page 14 of 17
PVL3703
May/June 2020
36. Which is the odd one out?
1. Privilege.
2. Truth and public interest.
3. Fair comment.
4. Jest.
(2)
37. Since National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA), liability of the media for
defamation:
1. Is strict liability.
2. Requires animus iniuriandi in the form of intention on the part of the media
defendant.
3. Requires at least fault in the form of negligence on the part of the media defendant.
4. Is based on a rebuttable presumption of intention on the part of the media
defendant.
(2)
38. Which of the following is not a requirement for the vicarious liability of an employer?
1. An employer-employee relationship.
2. The employee must have committed a delict.
3. The employee must have acted in the scope of his employment.
4. The employer must have been negligent in his supervision over the employee.
(2)
1. Liability for pure economic loss.

2. The actio de pauperie.
3. The actio de pastu.
(2)
40. Which one of the following cases hampered the development of the actio legis
Aquiliae to its logical conclusion?
1. Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 1 SA

577 (A).
2. Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 4 SA 938 (CC).
3. Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA).
4. Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA).
(2)
[TURN OVER]

CONFIDENTIAL
Page 15 of 17
PVL3703
May/June 2020
41. In which one of the following cases did the Court state that it was uncertain whether
necessity excludes wrongfulness or negligence?

577 (A).
(2)
42. Which one of the following cases dealt extensively with the importance of
Constitutional values for delictual liability?

577 (A).
(2)
43. Which one of the following cases is most frequently cited for its clear formulation of
the test for negligence?
1. S v Goliath 1972 3 SA 1 (A).

2. Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as
amicus curiae) 2003 1 SA 389 (SCA).
3. First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319 (SCA).
4. Kruger v Coetzee 1966 2 SA 428 (A).
(2)
44. Which one of the following cases dealt explicitly with the sequence in which the
elements of delictual liability should be considered?
1. S v Goliath 1972 3 SA 1 (A).

(2)
[TURN OVER]

CONFIDENTIAL
Page 16 of 17
PVL3703
May/June 2020
45. Which one of the following cases contains a clear exposition of the role of a legal
duty in delictual liability?
1. S v Goliath 1972 3 SA 1 (A).

(2)
46. Which one of the following cases was a trend-setting judgment on necessity,
although aspects of the judgment may need to be revisited in the current
constitutional dispensation?
1. S v Goliath 1972 3 SA 1 (A).

(2)
47. Which one of the following cases brought clarity in respect of the criterion to be used
when determining whether legal causation is present?
1. Jones NO v Santam Bpk 1965 2 SA 542 (A).

2. Roux v Hattingh 2012 6 SA 428 (SCA).
3. Lee v Minister of Correctional Services 2013 2 SA 144 (CC).
4. S v Mokgethi 1990 1 SA 32 (A).
(2)
48. Which one of the following cases is of great importance in respect of the negligence
of children?

4. S v Mokgethi 1990 1 SA 32 (A).
(2)
[TURN OVER]

CONFIDENTIAL
Page 17 of 17
PVL3703
May/June 2020
49. Which one of the following cases dealt with consent in the context of sports injuries?

4. S v Mokgethi 1990 1 SA 32 (A).
(2)
50. Which one of the following cases is of great importance in respect of the flexible
application of the conditio sine qua non test?

4. S v Mokgethi 1990 1 SA 32 (A).
(2)
[100]
Unisa
© 2020
[TURN OVER]

Tutorial Letter 201/1/2010
QUESTION 1
Which one of the following things is a composite thing?
(1) a dog
(2) a motor
(3) a glass
(4) a brick
ANSWER: (2)
COMMENTS:
(1) A dog is a singular thing.

(2) A motor is a composite thing and is made up of constituent parts which lost their
individuality.
(3) A glass is a singular thing.
(4) A brick is a singular thing.
(Study Guide page 36)
QUESTION 2
Which option is not a feature or characteristic of real rights?
(1) The rule prior in tempore potior in iure applies to real rights.
(2) Real rights grant preference in the case of insolvency.
(3) Real rights are unenforceable against bona fide third parties.
(4) The object of a real right is a thing.
ANSWER: (3)
COMMENTS:
(1) In the case of insolvency the maxim first in time stronger in law (prior in tempore potior
in iure) will apply in the case of two or more competing real rights.
(2) In the case of insolvency a real right enjoys preference over other rights.
(3) Real rights are absolute in principle and the real right holder can enforce
his/her right against bona fide third parties.
(4) The object of a real right is a corporeal thing (leaving aside the exception of a pledge of
claims).
(Study Guide pages 44-45)
QUESTION 3
Which option does not reflect a recognised subdivision of neighbour law?
(1) lateral support

(2) planting of trees

(3) interference with the natural flow of water

(4) nuisance
ANSWER: (2)
COMMENTS:
The recognised subdivisions of neighbour law are: nuisance; lateral and surface support;
encroachments; surface water; party walls and fences and elimination of danger.
(1) Lateral support is a recognised subdivision of neighbour law.
(2) Planting of trees is not a recognised subdivision of neighbour law, it is a subdivision of
encroachments.
(3) Interference with the natural flow of water is a recognised subdivision of neighbour law.
(4) Nuisance is a recognised subdivision of neighbour law.
QUESTION 4
Which option is the odd one out?
(1) a carp swimming around in the Roodeplaat dam

(2) a kudu grazing on Q and R’s game farm which is fenced by means of a 3-metre
high game proof fence and with the mark QR on them
(3) a wounded impala which has been shot on X’s unfenced farm and which is being
pursued by hunter Z
(4) a Congolese wood parrot which lived for two years in an open cage in the lounge
of Z’s Waterkloof home, but flew away and now lives in the trees at Magnolia Dell
ANSWER: (2)
COMMENTS:
(1) A carp swimming around in the Roodeplaat dam is a thing that is susceptible to
ownership, but that belongs to no-one at this particular stage and can therefore be
categorized as a res nullius.
(2) A kudu grazing on Q and R’s game farm which is fenced by means of a 3-metre high
game proof fence and with the mark QR on him belongs to Q and R and forms part of Q
and R’s estate and can therefore be classified as a res alicuius.
(3) A wounded impala which has been shot on X’s unfenced farm and which is being
pursued by hunter Z is a res nullius. If Z catches it he can obtain ownership through
appropriation if all the requirements are met.
(4) A Congolese wood parrot which lived for two years in an open cage in the lounge of Z’s
Waterkloof home, but flew away and now lives in the trees at Magnolia Dell reverted to his
former wild state, after having been controlled by a person, and is regarded as a res
nullius. (Study Guide pages 36 and 70)
QUESTION 5
Indicate when natural interruption of prescription will occur:
(1) when a person is absent from the country because of war

(2) when a fiduciarius has alienated fideicommissary goods without the power to alienate it
(3) when summons, claiming ownership of the thing, is served

(4) when the acquirer lost possession of the thing, by relinquishing it voluntarily or
when the thing was forcibly taken from him/her.
ANSWER: No correct answer. Please note that all students will get a mark
for this question irrespective of their answer.
COMMENTS:
(1) Prescription will be suspended when a person is absent from the country because
of war.
(2) Prescription will be suspended when a fiduciarius has alienated fideicommissary
goods without the power to alienate it.
(3) Prescription will not be interrupted when summons, claiming ownership of the thing,
is served. Interruption only occurs if the person who claims ownership succeeds in
carrying his/her claim to the final judgment.
(4) Prescription will not be interrupted when the acquirer lost possession of the thing,
by relinquishing it voluntarily or when the thing was forcibly taken from him/her.
Prescription can only be interrupted through voluntary loss of possession.
QUESTION 6
Which option is not a requirement or characteristic of treasure trove as an original mode

of acquisition of ownership?
(1) The treasure must be a valuable movable or immovable thing.

(2) The finder must exercise some kind of physical control over the treasure.
(3) The original owner of the treasure cannot be found.
(4) A valuable thing lying openly on the ground can never qualify as a treasure for
purposes of treasure trove.
ANSWER: (1)
COMMENTS:
(1) The treasure must be a valuable movable thing. The treasure cannot be an
immovable thing.
(4) A valuable thing lying openly on the ground can never qualify as a treasure for
purposes of treasure trove.
QUESTION 7
Indicate the false option in respect of the requirements for attornment:
(1) A tripartite agreement must exist between all three parties concerned.
(2) The third party (holder) must be in control of the thing when the tripartite
agreement is concluded.
(3) The third party (holder) can consent in advance to a future transfer of ownership.

(4) In Caledon en SWD Eksekuteurskamer Bpk v Wentzel (1972 1 SA 270 (A)) the court
held that all the requirements for attornment were complied with.
ANSWER: Both 3 and 4 are incorrect. Please note that all students will get a mark for
this question irrespective of their answer.
COMMENTS:
(1) One of the requirements for attornment to take place is that there must be a tripartite
agreement between the transferor, the transferee and the third party holder in terms of
which the holder will continue to hold for the transferee and no longer for the transferor.
(2) Another requirement for attornment to take place is that the third party (holder)
should exercise physical control at the moment of transfer from the transferor to
the transferee.
(3) In Caledon en SWD Eksekuteurskamer Bpk v Wentzel (1972 1 SA 270 (A)) the court
held that the third party (holder) can consent in advance to a future transfer of
ownership. In this case a new form of delivery was recognized.
(4) In Caledon en SWD Eksekuteurskamer Bpk v Wentzel (1972 1 SA 270 (A)) a new form of
delivery was acknowledged.
QUESTION 8
Give an example of delivery with the long hand:
(1) A flock of sheep pointed out in the presence of the transferee.

(2) The delivery of the keys to a motor.
(3) X bought a watch from a jeweller and leaves it with the jeweller for cleaning.
(4) X hires a motor from Y and then purchases it from Y.
ANSWER: (1)
COMMENTS:
(1) A flock of sheep pointed out in the presence of the transferee is an example of
delivery with the long hand (traditio longa manu).
(2) The delivery of the keys to a motor is an example of symbolic delivery.
(3) An example of constitutum possessorium would be when X buys a watch from
a jeweller and leaves it with the jeweller for cleaning.
(4) An example of delivery with the short hand (traditio brevi manu) would be when X
hires a motor from Y and then purchases it from Y.
QUESTION 9
(1) In order to succeed with the Aquilian action a causal connection between the
patrimonial loss and the conduct of the defendant a just balance between the public
interest and the interests of those affected has to be proved.
(2) The Aquilian action can be instituted against anyone who causes damage due to an
intentional or negligent act.
(3) Damages can be claimed with the Aquilian action.

(4) The Aquilian action is available to the owner of the damaged thing only.
ANSWER: Both 2 and 4 are incorrect. Please note that all students will get a mark for
COMMENTS:
patrimonial loss and the conduct of the defendant has to be proved.
unlawful intentional or negligent act, thus culpability of the defendant.
(4) The Aquilian action is available to anyone who has a proprietal right or interest in the
damaged thing, thus not only owners.
QUESTION 10
A purchaser who is not the owner of a thing, but who has the intention of an owner on the
incorrect assumption that he/she is the owner is a:
(1) bona fide possessor

(2) mala fide unlawful holder
(3) mala fide possessor
(4) bona fide unlafwul holder
ANSWER: (1)
COMMENTS:
(1) A person who is not the owner of a thing because he/she does not comply with the
requirements for vesting of ownership, but who has the intention of an owner on the
incorrect assumption that he/she is the owner is a bona fide possessor.
(2) A person who knows that he/she does not have the owner’s consent for controlling the
thing, but still exercises physical control over it for the sake of the benefit he/she can
derive from it is a mala fide unlawful holder.
(3) A person who is aware of the fact that he/she is not legally recognised as the owner of
a thing since he/she does not conform to the requirements of ownership, but whom
nevertheless has the intention of an owner is mala fide possessor.
(4) A person who physically controls the thing unlawfully, but he/she is unaware of the fact, since
he/she is under the incorrect impression that he/she has the necessary permission or
legal ground to control it is a bona fide unlawful
holder (Study Guide pages 144-145)
TOTAL: [10]

Question 1
The delictual remedy used to claim damages for patrimonial loss caused wrongfully and
negligently is the:
1. actio legis Aquiliae

2. actio iniuriarum
3. action for pain and suffering
4. interdict
(1)
Patrimonial loss caused wrongfully and culpably is actionable with the Aquilian action.
The correct alternative is [1]. [see chap 1 par 4.2]
Question 2
The delictual remedy used to obtain a solatium for intentional infringement of personality
rights is the:

2. actio iniuriarum
4. interdict
(1
)
The delictual remedy used to claim a solatium for intentional infringement of personality rights
is the actio iniuriarum.
The correct answer is therefore alternative [2]. [see chap 1 par 4.3]
Question 3
The delictual remedy used to prevent wrongful causing of harm is the:

2. actio iniuriarum
4. interdict
(1
)
The delictual remedy used to prevent wrongful causing of harm is the interdict.

Therefore the correct alternative is [4]. [see study guide p 11 and chap 7 par 2]
Question 4
The delictual remedy used to claim compensation for negligent infringement of the
corpus is the:

2. actio iniuriarum
4. interdict
(1
)
The delictual remedy used to claim compensation for negligent infringement of the corpus is
the action for pain and suffering
Question 5
A delictual remedy with which damages can be prevented without proving fault is the:

2. actio iniuriarum
4. interdict
(1
)
An interdict is directed at the prevention of a wrongful act, and not at the retribution for
wrongfulness already committed, fault is therefore not a requirement.
The correct alternative is [4]. [see chap 7 par 2]
Question 6
When the so-called open-ended delictual norms are given content in the light of the
basic values of chapter 2 of the Constitution, this process is known as:
1. direct application of the Bill of Rights

2. indirect application of the Bill of Rights
3. vertical application of the Bill of Rights
4. a constitutional delict
(1
)
The process of subjecting open-ended or flexible delictual principles to the Bill of Rights, and
giving such principles content in the light of basic values of the Bill of Rights, is known as
indirect application of the Bill of Rights.

The correct answer is therefore alternative [2]. [see chap 1 par 5(b)]
Question 7
The principle dictating at what stage prospective loss must be claimed is known as:
1. the sum-formula approach

2. the “once and for all” rule
3. compensating advantages
4. mitigation
(1
)
In a claim for compensation, the plaintiff must claim damages for all damage already
sustained as well as that expected in the future. This principle is known as the “once and for
all” rule, and it effectively dictates the stage at which prospective loss must be claimed.
The correct alternative is [2]. [see chap 6 par 4.7.1 and 4.6]
Question 8
Prospective loss is best assessed in accordance with:

4. mitigation
(1
)
The sum formula approach refers to a hypothetical (potential) patrimonial position of the
plaintiff in order to provide for the assessment of prospective damage.
The correct alternative is [1]. [see chap 6 par 4.5.1]
Question 9
Defamation is in the first place an infringement of a person’s:
1. bodily integrity
2. good name
3. privacy
4. feelings
(1
)
Defamation is the wrongful, intentional infringement of another person’s right to his/her

good name.
The correct alternative is [2]. [see chap 10 par

3.2.1] Question 10
If a person can differentiate between right and wrong and act in accordance with this
insight, he or she:
1. is in a state of automatism
2. can rely on a ground of justification
3. has intent
4. is accountable
(1
)
A person is accountable if he/she has the necessary mental ability to distinguish between right
and wrong and if he/she can also act in accordance with such appreciation.

Question 1
Indicate the correct statement with regard to delictual remedies.
1. The actio iniuriarum is directed at “satisfaction” for the wrongful and intentional
injury to personality.
2. Intention is always a requirement for the actio legis Aquiliae.
3. South African law follows the casuistic approach with regard to delictual liability.
4. “Invasion of privacy ” in practice is considered as a formdamnumof iniuria datum.
(1)
The correct alternative is [1].
Question 2
Which one of the following is not a requirement for an interdict?
1. There must be no other remedy available to the applicant.

2. There must be a “clear right ’.
3. There must be an infringement or a threat of an infringement of a clear right.

4. Intention or negligence must be present.
(1)
The correct answer is [4].
Question 3
Indicate the correct statement with regard to the concurrence of delictual, criminal and contractual
liability.
1. A claim for damages is the primary remedy for breach of contract.

2. One and the same act may render the wrongdoer delictually as well as contractually
liable.
3. One and the same act cannot establish delictual as well as criminal liability.
4. A claim for damages is the secondary remedy in respect of a crime.
(1)
Question 4
Indicate the incorrect statement with regard to the law of delict and the Constitution.
1. An infringement of a right may constitute a constitutional wrong and a delict.

2. The requirements for a delict and a constitutional wrong differ materially.

3. An infringement of a right cannot constitute a constitutional wrong and a delict.

4. Indirect application means that the state must generally respect fundamental rights
and not infringe them.
(1)
Unfortunately a mistake slipped in here. [3] and [4] are both incorrect, and therefore we gave each student
who completed this assignment a mark for this question. We apologise for any inconvenience caused by this.
Question 5
Which one of the following is a requirement for a successful reliance on “private
defence”?
1. There must be fault on the part of the aggressor.

2. The attack must be directed at the defender.
3. The attack must be wrongful.
4. Factual and legal causation must be present.
(1)
Question 6
Indicate the incorrect statement with regard to intent.
1. According to Neethling and Potgieter, consciousness of wrongfulness is a requirement for

intent.
2. Dolus eventualis exists where the wrongdoer directly wills one consequence of his
conduct but at the same time acknowledges that another consequence will unavoidably
occur.
3. Only an accountable person can act with intent.
4. Dolus indeterminatus exists where the wrongdoer’s will is directed at the result which
he causes while he has no specific person or object in mind.
(1)
Question 7
Which of the following requirement/s must be present before provocation may be raised as
a defence?
1. The conduct of the defendant must be immediate.

2. The defendant must be accountable.
3. The defendant must not have contributed to the provocative conduct.
4. 2 and 3 above.
(1)

Question 8
Which of the following acts is not an iniuria (infringement of a personality right)?
1. Defamation.
2. Negligent misrepresentation.
3. Invasion of privacy.
4. Adultery.
(1)
Question 9
In which one of the following remedies is there no need to prove damage:
1. Interdict.
2. Actio de pastu.
3. Action for pain and suffering.
4. Actio de pauperie.
(1)
Question 10
For which one of the following remedies is fault not a requirement?

3. Actio legis Aquiliae.
4. Actio iniuriarum.
(1)

TOTAL MARKS: [10]
13

Question 1
Andrew inadvertently damages Ben’s violin. Which delictual action may be available to Ben?
2. actio iniuriarum
4. actio de pastu
5. none of the above
(1)
Question 2
James employs electronic equipment to listen in on Karl’s telephone conversations. Which

remedy or remedies may be available to Karl?
2. actio iniuriarum
3. actio de pauperie
4. actio de effusis vel deiectis
(1)
Question 3
Mark inadvertently pushes over a ladder on which Chris is standing. Chris breaks an arm.
Which remedy or remedies may be available to Chris?
2. actio iniuriarum
3. action for pain and suffering and actio iniuriarum
4. action for pain and suffering and actio de effusis vel deiectis
(1)

Question 4
Jors allows Maans to fire some practice shots with his new pistol at an apple on Jors’s head.
The second shot makes a hole in Jors’s left ear. Jors institutes a delictual action against
Maans. Maans may rely on following defence:
1. private defence
2. execution of an official command
3. provocation
4. consent to the risk of injury
(1)
Question 5
The principle dictating at what stage prospective loss must be claimed, is known as:
4. the concrete approach to damage
5. res inter alios acta
(1)
Question 6
According to the following case the onus is on the plaintiff to prove that the defendant acted
voluntarily, rather than on the defendant to prove the presence of automatism:
1. Ex parte Minister van Justisie: in re S v Van Wyk 1967 1 SA 488 (A)
2. Molefe v Mahaeng 1999 1 SA 562 (SCA)
3. National Media Ltd v Bogoshi 1988 4 SA 1196 (SCA)
4. Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC)
5. S v Goliath 1972 3 SA 1 (A)
(1)

Question 7
The following case is regarded as authority for the proposition that killing a person to
protect property may be in certain circumstances be justified by private defence:

(1)
Question 8
Alex incites Bert’s dog to bite Charles. Charles kills the dog with his golf club. Bert institutes a
delictual claim against Charles. What defence may be available to Charles?
1. private defence
2. necessity
3. provocation
4. volenti non fit iniuria
5. none of the above (1)
Question 9
Alan causes harm to Bert in a wrongful and culpable manner. If Bert succeeds in holding
Charles, Alan’s employer, liable for the damage caused by Alan, Charles will incur:
1. joint and several liability
2. vicarious liability
3. liability based on contributory intent
4. liability based on contributory negligence
(1)

Question 10
When an infringement of a fundamental right constitutes a delict per se, this is known as:
4. horizontal application of the Bill of Rights
(1)

TOTAL MARKS: [10]


Question 1
Which one of the following statements is incorrect with regard to a delict?
1. Breach of contract is a species of the genus delict.
2. A “breach of a duty imposed by law” may constitute a delict.
3. One and the same act may result in a delict and a crime.
4. A delict and a constitutional wrong are two different concepts.
(1)
Question 2
Nomsa’s two year old daughter falls down a flight of stairs. Nomsa believes that the
child has sustained a brain injury and rushes her to the hospital. On the way to the
hospital Nomsa drives over the neighbour’s dog which subsequently dies. The
neighbour institutes a delictual claim against Nomsa. It later transpires that Nomsa’s
daughter merely suffered from mild shock. Which one of the following defences may
Nomsa rely on?
1. Provocation.
2. Private defence.
3. Necessity.
4. None of the above defences.
(1)
Question 3
Themba punches David in the face in an attempt to stop David from hitting him with
a spade. David decides to institute a delictual action against Themba for the injury
sustained to his face. Which defence could Themba rely on?
1. Provocation.
2. Private defence.
3. Necessity.
(1)

Question 4
Choose the correct alternative. Dolus eventualis is present when the wrongdoer…
1. desires a particular indirect result with regard to his conduct and continues with
his plan causing the indirect result.
2. does not desire a particular result but foresees the possibility of the result and
reconciles himself with that possibility, nevertheless performing the act.
3. directly intends the result of his conduct but simultaneously is aware that another
consequence will unfortunately occur.
4. Does not desire a particular result but foresees the possibility of the result,
reconciles himself with that possibility and later comes to the conclusion that the
result would not happen.
(1)
Question 5
Which of the following statements is correct with regard to accountability?
1. A child under the age of seven is always considered to be culpae capax.
2. There is an irrebuttable presumption that a child between the age of seven and
under fourteen years lacks accountability.
3. A person cannot be at fault without being accountable.
4. A person who drinks and drives thereafter causing an accident can never be culpae
capax.
(1)
Question 6
Which one of the following is not a requirement under the actio de pastu?
1. The defendant must be the owner of the animal at the time the damage occurs.
2. The animal must be a domestic animal.
3. The animal must cause damage by eating plants.
4. The animal must act of its own free will when causing the damage.
(1)
Question 7
Indicate the correct statement with regard to the concurrence of delictual, criminal and
contractual liability.

liable.
3. One and the same act cannot found delictual as well as criminal liability.
(1)
Question 8
John’s donkey attacks some of the employees on the farm. Just as the donkey was about
to injure Charles (an employee), he shot and killed it with his rifle. John institutes an action
for damages against Charles. Charles may raise the following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 9
Jacob insults Karen, Julie’s friend. Julie, who is angered by the insults, then insults Jacob.
If Jacob institutes a delictual action for the infringement of his personality rights, Julie may
rely on the following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 10
Allan, an employee of Raymond, was en route to Rustenburg delivering bread when he
accidentally skipped a red robot and crashed into Mandla’s car. If Mandla successfully
sues Raymond (as the employer) for the damage to his car, Raymond will incur:
3. Liability based on negligence.
4. Risk liability.


Question 1
Indicate the correct statement.
1. Irrational human behaviour cannot constitute conduct for the purposes of the law
of delict.
2. Human behaviour need not be willed to constitute conduct.
3. The behaviour of an animal can constitute conduct under certain circumstances.
4. The presence of a so-called actio libera in causa confirms the presence of
automatism.
(1)
Question 2
Jacob is training to be a tattoo artist. He asks Karen whether he can practice his newly
acquired skills on her. Karen enquires whether she will be able to remove the tattoo by
washing, and Jacob replies in the affirmative. Thereupon Karen is willing to comply,
and Jacob makes a butterfly tattoo on Karen’s arm. When Karen discovers that the
tattoo is permanent, she wants to institute a delictual action against Jacob. Jacob may
1. Necessity.
2. Official authority.
3. Consent.
(1)
Question 3
Gawie and Manie are farming on adjacent properties. Gawie bears a grudge against
Manie. He sets up a device, which causes a loud bang every half an hour, on the
common boundary between the two farms, near Manie’s homestead. As a result of
this, Manie and his family cannot sleep at night and are irritated by day. Manie asks
Gawie to dismantle the device, but Gawie says that the device serves the purpose of
scaring baboons away from his orchards. Which delictual remedy may be available to
Manie?
2. The actio de feris.
3. The actio de effusis vel Downloaded
deiectis.by: nkwanas54 | nkwanas54@gmail.com Want to earn
4. The interdict.
(1)
Question 4
Piet left his cell phone in his car. Gert wants to steal Piet’s cell phone. He realises that
he would have to damage Piet’s car in order to get the phone. In respect of the
damage to the car, Gert has:
1. Dolus indeterminatus.
2. Dolus eventualis.
3. Dolus indirectus.
4. Luxuria.
(1)
Question 5
John’s prize bull breaks through a fence and ventures onto David’s farm. The bull is
aggressive and charges at David’s employees. The employees clamber into a small
tree to escape the wrath of the bull. The bull begins to bash the trunk of the tree. As
the tree appears to be about to topple, David shoots and kills the bull to save his
employees. John institutes an action for damages against David. David may raise the
following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 6
When so-called open-ended delictual norms are given content in light of the basic
values of chapter 2 of the Constitution, this is known as:
1. direct application of the Bill of Rights.
2. indirect application of the Bill of Rights.
3. vertical application of the Bill of Rights.
4. horizontal application of the Bill of Rights.
Downloaded by: nkwanas54 | nkwanas54@gmail.com (1)
Want to earn
Question 7
Andrew inadvertently damages Ben’s violin. Which delictual action may be available to
Ben?
1. actio legis Aquiliae.
2. actio iniuriarum.
3. actio de pastu.
4. none of the above.
(1)
Question 8
Mark inadvertently pushes over a ladder on which Chris is standing. Chris breaks an
arm. Which remedy or remedies may be available to Chris?
1. action for pain and suffering only.
2. actio iniuriarum only.
3. action for pain and suffering and actio iniuriarum.
(1)
Question 9
According to the following case the onus is on the plaintiff to prove that the defendant
acted voluntarily, rather than on the defendant to prove the presence of automatism:
1. Ex parte Minister van Justisie: in re S v Van Wyk 1967 1 SA 488 (A).
2. Molefe v Mahaeng 1999 1 SA 562 (SCA).
3. National Media Ltd v Bogoshi 1988 4 SA 1196 (SCA).
4. S v Goliath 1972 3 SA 1 (A).
(1)

Question 10
1. the sum-formula approach.
2. the “once and for all” rule.
3. the concrete approach to damage.
4. res inter alios acta.
(1)

TOTAL MARKS: [10]


Question 1
John takes David’s big and rather aggressive dog for a walk. John incites the dog to
attack Garth. The dog charges at Garth, but Garth shoots the dog and kills it. If David
institutes a delictual action against Garth, on what ground of justification may Garth
rely?
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 2
Markus, a financial adviser, negligently advises Hans to make a bad investment. As a

result of this, Hans suffers a serious financial setback. However, there is no damage to
Hans’s person or property. Which one of the following delictual remedies may be
available if Hans wishes to recover his financial loss from Markus?
1. The actio legis Aquiliae.

2. The actio iniuriarum.
3. The action for pain and suffering.
(1)
Question 3
Shaun steals a big-screen television set from an electronics store. To get to the
television set, he smashes a window made from expensive security glass. In respect of
the damage to the window, Shaun has:
4. Luxuria.
(1)

Question 4
Clive is employed by Raymond as a driver in Raymond’s courier business. Clive has

the weekend off, and decides to visit Mary on Saturday evening. On his way to Mary’s
apartment, Clive is involved in an accident due to his own negligence. Clive’s vehicle
and the vehicle of Catherine, the other motorist involved in the accident, are badly
damaged. Catherine discovers that Clive’s financial position is not good. Advise
Catherine on the best course of action:
1. Institute an action against Raymond based on vicarious liability.

2. Institute an action against Raymond and Clive as joint wrongdoers.
3. Institute an action against Raymond based on culpa in eligendo.
4. Institute an action against Clive.
(1)
Question 5
Which is the odd one out?
1. The adequate causation theory.
4. Normative foreseeability.
(1)

Question 6
Mike’s cow eats and tramples George’s crops. Mike forgot to close the gate between
his and George’s land. Which remedy or remedies may be available to George?
1. actio de pauperie and actio legis Aquiliae.
2. actio de pastu only.
3. actio de pauperie only.
4. actio de pastu and actio legis Aquiliae.
(1)
Question 7
Norman enters into a sexual relationship with Lex’s wife. Which remedy or remedies
may be available to Lex?
3. actio iniuriarum and action for pain and suffering.

(1)
Question 8
Jors allows Maans to fire some practice shots with his new pistol at an apple on Jors’s
head. The second shot makes a hole in Jors’s left ear. Jors institutes a delictual action
against Maans. Maans may rely on following defence:
1. execution of an official command.
2. provocation.
3. consent to the risk of injury.
(1)
Question 9
John and Peter bear a grudge against Greg and agree to teach him a lesson he will
not forget. While Greg is in a shopping centre, John and Peter damage Greg’s motor
car by hitting it with hammers. If Greg successfully sues John and Peter in delict, they
will incur:
1. vicarious liability.
2. joint and several liability.
3. liability based on contributory intent.
4. strict liability.
(1)
Question 10
According to the following case liability of the media for defamation is based on negligence:
4. S v Goliath 1972 3 SA 1 (A).
(1)

TOTAL MARKS: [10]

Question 1
liable.

(1)
Question 2
Zahra’s dog bolts out of her yard and charges towards Michael. Just as the dog is about to
bite Michael, he shoots and kills the dog with his hand gun. Zahra institutes an action for
damages against Michael. Michael may rely on the following ground of justification:
1. Necessity.
3. Private defence.
4. Provocation.
(1)
Question 3
Maseeha insults Taslima, who in retaliation slaps Maseeha across the cheek. Maseeha
institutes a delictual action for the infringement of her personality rights. Taslima may rely
on the following ground of justification:
1. Provocation.
3. Private defence.
4. None of the above. (1)

Question 4
Zayn left his laptop in his car. Neil wants to steal Zayn’s laptop. He realises that he would
have to damage Zayn’s car in order to get the laptop. In respect of the damage to the car,
Neil has:
4. Luxuria.
(1)
Question 5
Andre is employed by Ricky as a driver in Ricky’s courier business. Andre has the weekend
off, and decides to visit Tebogo on Saturday evening. On his way to Tebogo’s apartment,
Andre is involved in an accident due to his own negligence. Andre’s vehicle and the vehicle
of Sylvia, the other motorist involved in the accident, are badly damaged. Sylvia discovers
that Andre’s financial position is not good. Advise Sylvia on the best course of action:
1. Institute an action against Ricky based on vicarious liability.
2. Institute an action against Ricky and Andre as joint wrongdoers.
3. Institute an action against Ricky based on culpa in eligendo.
4. Institute an action against Andre.

(1)
Question 6
Choose the correct alternative Dolus eventualis is present when the wrongdoer:
1. desires a particular indirect result with regard to his conduct and continues with his plan
causing the indirect result.
2. does not desire a particular result but foresees the possibility of the result and reconciles
himself with that possibility nevertheless performing the act.
4. does not desire a particular result but foresees the possibility of the result, and
reconciles himself with that possibility and later comes to the conclusion that the result
would not happen.
(1)
Question 7
Justin places a home-made firework in a field where sheep are grazing. The firework goes
off damaging the crops and injuring the sheep. Which one of the following forms of fault did
Justin have in respect of the damage?
2. Dolus determinatus.
3. Luxuria.
4. Gross negligence
(1)
Question 8
4. S v Goliath 1972 3 SA 1 (A).

(1)
Question 9
Which one of the following statements is correct with regard to accountability?
1. A child under the age of nine is always considered to be culpae capax.
2. There is an irrebuttable presumption that a child between the age of nine and fourteen
years lacks accountability.
capax.
(1)
Question 10


(1)

TOTAL MARKS: [10]


Question 1
Jacob tells Cyril that Henry, the mayor of Pretoria, has embezzled money. Cyril repeats this
information to Zapiro, a cartoonist for a local newspaper. Zapiro investigates and finds the
information to be true. He draws a cartoon depicting this and publishes it in the newspaper,
The Daily Update, with the knowledge of the editor Piet. Which one of the following options is
the most correct?
1. Zapiro, The Daily Update and Piet will incur liability with the actio iniuriarum.
2. Jacob, Zapiro, The Daily Update and Piet will incur liability with the actio iniuriarum.
3. Jacob, Cyril, Zapiro, The Daily Update and Piet will incur liability with the actio
iniuriarum.
4. No one will incur liability with the actio iniuriarum.

(1)
Question 2
Mary, a financial adviser, negligently advises Musti to make a bad investment. As a result of
this, Musti suffers a serious financial setback. However, there is no damage to Musti’s person or
property. Which one of the following delictual remedies may be available if Musti wishes to
recover his financial loss from Mary?
(1)
Question 3
Indicate the correct statement:
1. Irrational human behaviour cannot constitute conduct for the purposes of the law of
delict.
4. The presence of a so-called actio libera in causa confirms the presence of automatism.
(1)

Question 4
Harry’s prize bull breaks through a fence and ventures onto Mark’s farm. The bull is aggressive
and charges at Mark’s employees. The employees clamber into a small tree to escape the wrath
of the bull. The bull begins to bash the trunk of the tree. As the tree appears to be about to
topple, Mark shoots and kills the bull to save his employees. Harry institutes an action for
damages against Mark. Mark may raise the following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
4. Official capacity
(1)
Question 5
4. Normative foreseeability
(1)
Question 6
Mike’s cow eats and tramples George’s crops. Mike forgot t o close the gate between his and
George’s land. Which remedy or remedies may be available to George?

(1)
Question 7
Piet clambers over Tumi’s fence with the aim of stealing oranges from Tumi’s orchard. Tumi’s
dog attacks Piet and Piet sustains serious injuries. Piet wants to recover hospital expenses from
Tumi. Which remedy may be available to Piet?
2. Actio de pastu. Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

3. Actio de feris.
(1)
Question 8
Wessel allows Frik to fire some practice shots with his new catapult at an apple on Wessel’s
head. The second shot hits Wessel in his left eye. Wessel institutes a delictual action against
Frik. Frik may rely on the following defence:
2. provocation.
4. None of the above

(1)
Question 9
Gumba and Paul bear a grudge against Krishaan and agree to teach him a lesson he will not
forget. While Krishaan is shopping at Victoria’s shop, Gumba and Paul damage Krishaan’s
vehicle by hitting it with baseball bats. If Krishaan successfully sues Gumba and Paul in delict,
they will incur:
(1)
Question 10
4. S v Goliath 1972 3 SA 1 (A).

(1)

Question 1
When delictual norms, such as the boni mores test for wrongfulness, are given content
in the light of the basic values of Chapter 2 of the Constitution, this is known as:
(1)
Question 2
Which statement is incorrect?
1. Only an act or omission that has been willed, can give rise to delictual liability.
2. An act or an omission that is irrational or inexplicable may give rise to delictual liability.
3. The behaviour of an animal can never qualify as conduct for the purpose of the law of
delict.
4. A company can act for the purpose of the law of delict.
(1)
Question 3
A places a baseball bat into B’s hand. Before B can offer resistance, A takes hold of B’s
hand that is holding the baseball bat and forces a hard blow to C’s head. In respect of the
injury to C, what defence can B raise?
1. Necessity.
2. Provocation.
3. Private defence.
4. Sane automatism.
(1)
Question 4
In respect of which one of the following remedies is there an exception to the principle that
wrongfulness can only be ascertained after a harmful consequence has been caused?
2. The actio de effusis vel deiectis.
3. The interdict.
(1)

Question 5
Which one of the following statements is correct?
1. Accountability is a prerequisite for fault.
2. A person is accountable if his behaviour is susceptible to control of his will.
3. Intoxication cannot influence accountability.
4. A person is accountable if he directs his will at an unlawful result.
(1)
Question 6
S is employed by R as a driver in R’s business. S has the weekend off, and decides to visit M
on Saturday evening. On his way to M’s apartment, S is involved in an accident due to his own
negligence. S’s vehicle and the vehicle of C, the other motorist involved in the accident, are
badly damaged. C discovers that S’s financial position is not good. Advise C on the best course
of action:
1. Institute an action against R based on vicarious liability.
2. Institute an action against R and S as joint wrongdoers.
3. Institute an action against R based on culpa in eligendo.
4. Institute an action against S.
(1)
Question 7
P left his ipad in his car. G wants to steal P’s ipad. G realizes that he would have to break
through the window of P’s car to get to the ipad. In respect of the damage to the window of the
car, G has:
4. Luxuria.
(1)
Question 8
X insults Y, who in retaliation slaps X across the cheek. If X institutes a delictual action for the
infringement of her personality rights, Y may rely on the following defence:
1. Necessity.
2. Private defence.
3. Provocation.
(1)

Question 9
If a domestic animal has caused harm to a person and the owner of the animal was not
negligent, the most appropriate delictual remedy to consider is:
(1)
Question 10
What is the criterion for determining factual causation?
1. Actio libera in causa.
2. Novus actus interveniens.
3. Conditio sine qua non.
4. The talem qualem rule.
(1)

Question 1
(1)
In a sense, a delict and breach of a contract are similar in that they constitute wrongful conduct
in private law. With a delict and breach of a contract, an act of a person in a wrongful and
culpable way causes harm to another. They are both species of the genus “wrongful conduct” in
private law. However, there are fundamental differences between a delict and breach of a
contract. Generally, a breach of contract occurs when one of the parties to the contract fails to
fulfil a contractual obligation. A delict occurs where there is an infringement of a party’s legally
recognised interest. Delictual remedies are primarily aimed at satisfaction or compensation,
while contractual remedies are primarily aimed at fulfilment of contractual obligations. Breach of
contract is dealt with under the law of contract with its own requirements and remedies that are
not applicable to a delict. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of
Delict Chapter 1 para 2; Study unit 2. Alternatives [2]-[4] are correct with regard to the law of
delict. In this question you were supposed to identify the incorrect statement, therefore
the correct alternative is [1].
Question 2
Fatima’s two year old daughter falls down a flight of stairs. Fatima believes that the child has
sustained a brain injury and rushes her to the hospital. On the way to the hospital Fatima drives
over the neighbour’s dog which subsequently dies. The neighbour institutes a delictual claim
against Fatima. It later transpires that Fatima’s daughter merely suffered from mild shock.
Which one of the following defences may Fatima rely on?
1. Provocation
2. Private defence
3. Necessity

Whether a state of necessity actually existed, must be determined objectively and not whether it
was subjectively present in Fatima’s mind. Therefore, Fatima’s conduct is wrongful as a state of
necessity from an objective viewpoint did not actually exist. Furthermore, the grounds of
justification “private defence” or “provocation” is not applicable in this instance. See Neethling,
Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3 para 7.3.2 and footnote
455; Study unit 10. The correct alternative is [4].
Question 3
Harry punches David in the face in an attempt to stop David from hitting him with a spade.
David decides to institute a delictual action against Harry for the injury sustained to his face.
Which defence could Harry rely on?
1. Provocation.
2. Private defence.
3. Necessity.
(1)
The requirements for the attack and the defensive conduct are present. Therefore Harry may
rely on “private defence” in order to avoid delictual liability. In this scenario, the defences of
“necessity” or “provocation” are not applicable. See Neethling, Potgieter and Visser Neethling-
Potgieter-Visser Law of Delict Chapter 3 para 7.2; Study unit 9. The correct alternative is [2].
Question 4
1. desires a particular indirect result with regard to his conduct and continues with his
plan causing the indirect result.
reconciles himself with that possibility nevertheless performing the act.
4. does not desire a particular result but foresees the possibility of the result,
(1)
Dolus eventualis is a form of intent where a particular consequence is not desired. The
wrongdoer foresees the possibility of the result and reconciles himself with that possibility
nevertheless performing the act. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser
Law of Delict Chapter 4 para 3.1; Study unit 15. The correct alternative is [2].

Question 5
2. There is an irrebuttable presumption that a child between the age of nine and under
fourteen years lacks accountability.
capax.
(1)
Accountability is a pre-requisite for fault. Therefore, if a person lacks accountability at the time
of the delict, then there is no fault on his part. Youth, intoxication, provocation, a mental illness
or mental impairment may depending on the circumstances lead to the lack of accountability.
See para 2 below (Recent developments) with regard to accountability as well Neethling,
Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 4 para 2; Study unit 15.
In this question you were supposed to identify the correct statement, therefore the
correct alternative is [3].
Question 6
(1)
In terms of the requirements for the actio de pastu, the animal that causes damage need not be
a domestic animal. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict
Chapter 11 para 2.1.1.2; Study unit 30. The correct alternative is [2].
Question 7
2. One and the same act may render the wrongdoer delictually as well as
contractually liable.
(1)

One and the same act may render the wrongdoer, delictually, contractually or criminally liable. It
depends on whether the requirements are present for a delict, breach of a contract or particular
crime. In respect of a crime, the aim is to punish the offender for “his transgression against the
public interest”. Damages may be awarded when a crime has been committed but
compensation is not considered a secondary remedy in respect of a crime. See Neethling,
Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 1 paras 2-3 as well as the
commentary to question 1 above. In this question, you were supposed to identify the
correct statement. The correct alternative is [2].
Question 8
Veronica’s donkey attacks some of the employees on the farm. Just as the donkey was
about to injure Charles (an employee), he shot and killed it with his rifle. Veronica institutes
an action for damages against Charles. Charles may raise the following ground of
justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
In respect of the requirements for the attack with regard to “private defence”, the attack must
consist of a human act. An animal cannot act for the purposes of delict. Therefore, in this
scenario Charles cannot rely on “private defence” but can rely on “necessity”. “Provocation” as a
defence is not applicable in this scenario. See Neethling, Potgieter and Visser Neethling-
Potgieter-Visser Law of Delict Chapter 3 paras 7.2.2(a), 7.3.2; Study units 9 and 10. The
Question 9
Jacob insults Lefa, Julie’s friend. Julie, who is angered by the insults, then insults Jacob. If
Jacob institutes a delictual action for the infringement of his personality rights, Julie may
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Julie may rely on the ground of justification, “provocation”. The requirements for provocation in
this instance are present. In particular, the interests violated in retortio are commensurate with
the initial violation. An insult in reaction to an insult. The insult in retortio is not out of proportion
in comparison to the provocative conduct (insult) on the part of Jacob. See Neethling, Potgieter
and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3 paras 7.4.1, 7.4.3, footnote 521;
Study unit 11. The correct alternative is [3].

Question 10
Allan, an employee of Calvin, was en route to Rustenburg delivering bread when he

sues Calvin (as the employer) for the damage to his car, Calvin will incur:
4. Risk liability.
(1)
The employer, Calvin is held vicariously liable for the damage caused by the employee, Allan.
There was an employer-employee relationship when the delict was committed, and the
employee, Allan was acting in the course and scope of employment. See Neethling, Potgieter
and Visser Neethling-Potgieter-Visser Law of Delict Chapter 11 para 2.1.7; Study unit 30. The
TOTAL MARKS: [10]

Question 1
1. Which one of the following conditions may amount to automatism?
1. Provocation.
2. Self-defence.
3. Necessity.
4. Hypnosis.
(1)
The correct alternative is [4]. Hypnosis is one of the recognised conditions that may cause a
person to act involuntarily. Where a person acts involuntarily, the defence of automatism may
apply. Automatism cancels the element of conduct. See Neethling, Potgieter and Visser
Neethling-Potgieter-Visser Law of Delict Chapter 2 para 3; Study Guide, study unit 3. The
other alternatives are defences which cancel the element of wrongfulness.
Question 2
Choose the correct statement. In Carmichele v Minister of Safety and Security (Centre for
Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) the Constitutional Court:
1. recognised a claim for Constitutional damages.

2. noted that the law of delict admirably reflected the spirit, purport and object of the Bill of
Rights.
3. declared that the courts of lower instance had erred by applying a pre-constitutional concept
of the boni mores.
4. recognised the concept of a Constitutional delict.
(1)
The correct alternative is [3]. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser
Law of Delict Chapter 3 para 5.2.4 fn 214.
Question 3
Janice threatens Queeneth with a gun and orders her to hand over her cellphone. Queeneth, in
fear of her life, hands over the cellphone. One week later, Queeneth spots Janice at a nearby
shopping centre. Queeneth rushes home and grabs a knife. She returns to the shopping centre
and stabs Janice. Janice wants to institute a delictual action against Queeneth. Queeneth may
1. necessity.
2. provocation.
3. private defence.
(1)
The correct alternative is [4]. Necessity and provocation are not applicable defences in this
scenario. With regard to private defence, it is not possible to act in defence once the attack has
ceased. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3
para 7.2.2 (c); Study Guide, study unit 9.
Question 4
Sibusiso is away on holiday. Frank, his neighbour, is keeping a watchful eye on his house for
him. Frank notices that the house is flooded with water and realises that a water pipe in the
house has burst. Frank breaks down the front door of Sibusiso’s house in order to turn off the
water to prevent further damage. If Sibusiso wants to institute a delictual action against Frank
for breaking down his front door, Frank may rely on the following ground of justification:
1. statutory authority.
2. necessity.
3. provocation.
4. private defence.
(1)
The correct alternative is [2]. In this scenario, the defences of statutory authority, provocation
and private defence are not applicable. Frank acted out of necessity in protecting the interests
of his neighbour Sibusiso. All the requirements for necessity are present. See Neethling,
Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3 para 7.3.2; Study
Guide, study unit 10.
Question 5
Joseph plays tennis in his back yard. He foresees the possibility of his ball breaking a window in
his neighbour’s house, but decides that it will not happen. If the ball indeed breaks the window,
Joseph had the following in respect of the damage:
1. dolus indeterminatus.
2. dolus eventualis.
3. dolus indirectus.
4. luxuria.
(1)
The correct alternative is [4]. Joseph foresees the possibility of his ball breaking the window,
he is aware that his ball may break the window but comes to the conclusion that it will not
happen. Therefore, dolus eventualis will not be present but luxuria. Dolus indeterminatus and
dolus indirectus is not present. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser
Law of Delict Chapter 4 para 3.1; Study Guide, study unit 15. All students obtained marks for
this question as a result of confusion over this same question last semester.

Question 6
Dr Lucas, a well-known obstetrician, delivered Nicole’s daughter, Mandy. During delivery,

the nerves in Mandy’s right shoulder were injured resulting in the paralysis of her arm. All
of this happened because Dr Lucas failed to inform Nicole of the potential complications
inherent in delivering a large baby. Indicate the most correct statement: Negligence will be
determined according to the standard of:
1. the reasonable doctor.
2. the reasonable person.
3. the reasonable man.
4. the reasonable child.
(1)
The correct alternative is [1]. In this scenario the wrongdoer is an expert, therefore the test is
adjusted and raised to that of the reasonable expert, that is, the reasonable doctor. See
Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 4 para 4.5.3;
Study Guide, study unit 16.
Question 7
Which of the following best describes what is meant by “psychological lesion”?

1. Pure economic loss.
3. Emotional shock.
4. Infringement of the right to identity.
(1)
The correct alternative is [3]. Psychological lesions/injuries may be sustained in a

number of ways, such as through shock, fright, or other mental suffering. In most cases
our courts have been faced with psychological lesions/injuries caused by emotional shock.
See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 9
para 3; Study Guide, study unit 27.
Question 8
(1)
The correct alternative is [2]. Alternatives 1, 3 and 4 relate to establishing legal causation
while alternative 2 is an approach used in determining the element of harm/loss/damage. See in
general Study Guide, study units 22-24.

Question 9
In which one of the following situations can it be said that publication of defamatory words
has taken place?
1. Two German tourists visit South Africa. They start arguing in German in front of some
South Africans (who do not understand German) and the one tourist calls the other a liar
and an adulterer.
2. Mr Xolani tells his wife, Mrs Xolani, that Vanessa at his office is having an affair with her
secretary.
3. Mrs Brown tells her husband, Mr Brown, that Theresa, a work colleague of Mrs Brown,
has stolen money from the cash register on numerous occasions.
4. Bob meets Joseph at the local post office and tells Joseph that the manager of the
post office, Mrs Posh, is involved in an adulterous affair with Joseph’s neighbour Henry.
(1)
The correct alternative is [4]. A defamatory statement must be disclosed to a third person. In
alternatives 2 and 3, publication of defamatory words has not taken place because an exception
applies in respect of spouses. Publication of defamatory words has also not taken place in
alternative 1 as disclosure of defamatory words were heard by outsiders who are not aware of
the meaning of the defamatory words. See Neethling, Potgieter and Visser Neethling-Potgieter-
Visser Law of Delict Chapter 10 para 3.2.2.1; Study Guide, study unit 29.
Question 10
John and Peter bear a grudge against Greg and agree to teach him a lesson he will not
forget. While Greg is in a shopping centre, John and Peter damage Greg’s motor car by
hitting it with hammers. If Greg successfully sues John and Peter in delict, they will incur:
(1)
The correct alternative is [2]. Both John and Peter act together in causing damage to Greg’s
motor car. They are therefore deemed joint wrongdoers and are held jointly and severally liable
for the damage to Greg’s car. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser
Law of Delict Chapter 8 para 1; Study Guide, study unit 26.
TOTAL MARKS: [10]

Question 1
1. Provocation.
2. Self-defence.
3. Black-out.
4. Necessity.
(1)
The correct alternative is [3]. It is accepted that a black-out may cause a person to act
involuntarily. Alternatives 1, 2 and 4 are generally considered as grounds of justification which
negate the element of wrongfulness. See Neethling, Potgieter and Visser Neethling-Potgieter-
Visser Law of Delict Chapter 2 para 3; Chapter 3 para 7; Study Guide, study units 3, 9-11.
Question 2
of the boni mores.
Rights.
(1)

Question 3
Dr Berenice, a well-known obstetrician, delivered Bongi’s son, Kabelo. During delivery, the
nerves in Kabelo’s right shoulder were injured resulting in the paralysis of his arm. All of this
happened because Dr Berenice failed to inform Bongi of the potential complications inherent in
delivering a large baby. Indicate the most correct statement: Negligence will be determined
according to the standard of:

(1)
Question 4
Musa is away on holiday. Frank, his neighbour, is keeping a watchful eye on his house for him
and undertook to take care of Musa’s cat. Frank notices that the house is on fire and realises
that Musa’s cat is trapped in the burning house. Frank breaks down the front door of Musa’s
house in order to save the cat. If Musa wants to institute a delictual action against Frank for
breaking down his front door, Frank may rely on the following ground of justification:
2. necessity.
3. provocation.
4. private defence.
(1)
The correct alternative is [2]. In this scenario, the defences of private defence, provocation
and statutory authority are not applicable. Necessity exists when the defendant is placed in
such a position that he or she is able to protect an interest (his or her own legally recognisable
interest or that of someone else) only by reasonably violating the interests of another person.
Frank acted out of necessity in protecting the life of the cat. All the requirements for necessity
are present. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict
Chapter 3 para 7.3; Study Guide, study unit 10.

Question 5
Dick is so offended by William’s speech at a political rally, that he throws an apple at William.
William falls off the podium and sustains a broken arm as well as a few broken ribs. He is
admitted to hospital. While he is being treated there, a nurse leaves the windows of the ward
open and William contracts pneumonia. Which one of the following is incorrect?
1. Dick acted wrongfully.

2. Dick had fault.
3. There is a factual causal link between Dick’s conduct and William’s pneumonia.
4. There is a legal causal link between Dick’s conduct and William’s pneumonia.
(1)
The correct alternative is [4]. The emphasis here was on the incorrect statement. Dick did
act wrongfully when he threw the apple and he had fault (intention) when he directed the apple
at William. Dicks conduct has a factual causal link to William’s broken arm, ribs and pneumonia.
To determine factual causation, the conditio sine qua non theory (also known as the ‘but for’
test) is applied. With regard to William contracting pneumonia, Dick’s intentional wrongful
conduct was the factual cause but not the legal cause. The nurse’s conduct (leaving the window
open) may be considered a novus actus interveniens. Therefore, alternative 4 is the incorrect
statement and the correct alternative to this question. See Neethling, Potgieter and Visser
Neethling-Potgieter-Visser Law of Delict Chapter 5 para 2-3; Study Guide, study unit 21-22.
Question 6
The most suitable remedy for the prevention of harm is:
1. the actio legis Aquiliae.
2. the actio de effusis vel deiectis.
3. the interdict.
4. mitigation of loss.
(1)
The correct alternative is [3]. The interdict is directed at the prevention of a wrongful act
(impending wrongful act or to prevent the continuation of a wrongful act that has already
commenced) and is therefore the most suitable remedy. The interdict has a preventative
function and as a result, there is no need for the requirement of fault on the part of the
wrongdoer to be present. The requirements that need to be met for the granting of an interdict
are: there must be an act by the respondent, the act must be wrongful, and no other ordinary
remedy which would prevent the wrongful conduct must be available to the applicant. See
Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 7 para 2;

Question 7
The principle dictating that all past and prospective loss must be claimed together stemming
from a single cause of action, is known as:
2. the ‘once and for all’ rule.
3. compensating advantages.
(1)
The correct alternative is [2]. The “once and for all” rule expresses that in all claims for
compensation and satisfaction arising out of a delict, the plaintiff must claim damages for all
damage already sustained and all future damages insofar as the claims are based on a single
cause of action. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict
Question 8
(1)
Question 9
Eddie and Robie bear a grudge against Greg and agree to teach him a lesson he will not forget.
While Greg is in a shopping centre, Eddie and Robie damage Greg’s motor car by hitting it with
hammers. If Greg successfully sues Eddie and Robie in delict, they will incur:
(1)
The correct alternative is [2]. Both Eddie and Robie act together in causing damage to Greg’s
Question 10
In which one of the following situations can it be said that publication of defamatory words has
taken place?
1. Two German tourists visit South Africa. They start arguing in German in front of some South
Africans (who do not understand German) and the one tourist calls the other a liar and an
adulterer.
secretary.
3. Bob meets Ricky at the local post office and tells Ricky that the manager of the post office,
Mrs Posh, is involved in an adulterous affair with Ricky’s neighbour Henry.
4. Mrs Brown tells her husband, Mr Brown, that Theresa, a work colleague of Mrs Brown, has
stolen money from the cash register on numerous occasions.
(1)
TOTAL MARKS: [10]






















2019 OCTOBER NOVEMBER
1. 2
2. 3
3. 2
4. 2..
5. 2
6. 4
7. 4
8. 3
9. 3
10. 4
11. 1
12. 3
13. 1
14. 3
15. 4
16. 3
17. 2
18. 4
19. 2
20. 1
QUESTION 1
THIS QUESTION DEALS WITH AN ACT/CONDUCT:
Conduct
3|Page

Is a voluntary human act or omission
Elements
1. Human: where an animal is used as an instrument a human act is still present. A

juristic person can act through its agents (company) and be held delictually liable
for its actions.
2. Voluntary conduct: the act must have been performed voluntarily – the
wrongdoer must have had control over his muscular movements (i.e. if it is
susceptible to control the will of the person involved).
3. Commission or Ommission
Defence of Automatism:
The voluntary conduct on the part of the defendant is a requirement for delictual
liability. The defendant could argue that the conduct complained of doesn’t satisfy
the requirements of voluntariness.
This is where someone acted mechanically = sleep, unconscious, fainting fit,

absolute force, epileptic fit, serious intoxication, black out. If these are present a
person is incapable of controlling his bodily movement = purely mechanical
action and that person raises the defence of automatism.
In the Mkize case: X stabbed and killed Y with a knife while X was having an
epileptic fit, he was acquitted of murder.
Antecedent liability:
The defendant may not successfully rely on the defence of automatism where he
was negligent with regard to his automatic conduct. This is where the reasonable
man would have foreseen the possibility of causing harm while in a state of
automatism.
4|Page

In the Victor case: X was convicted of negligent driving despite the fact he
caused the accident during an epileptic fit as the evidence revealed he’d been
suffering from fits for the last 13 years and had insufficient reason to believe he
would not have a fit on the day.
Application to the facts:
In the given set of facts, Lethabo will not rely on the defence of
automatism because he was negligent with regard to his automatic
conduct. This is so because Lethabo did not take medication for his
epileptic fit which was prescribed by the doctor. Hence Lethabo acted for
the purpose of the law of delict.
QUESTION 2
2.1.
For an action to give rise to delictual liability, harm must have been caused in a wrongful
way. This means the harm or prejudice was legally reprehensible or unreasonable in
infringing an individual’s interest.
Determination of wrongfulness looks at two things:
1. Was there an infringement of a legally protected interest-the act must have a

harmful consequence.
2. If the interest has been prejudiced, legal norms are used to determine if it
occurred in a legally reprehensible manner (unreasonable manner) – boni mores
test.
Boni mores test:
To determine whether a particular infringement of interests is unlawful the legal

convictions of the community or boni mores test is used. The boni mores test is an
objective test based on the criterion of reasonableness. The reasonableness test is
5|Page

therefore a juridical yardstick used to give expression to the prevailing convictions of the
community regarding right and wrong.
Therefore in applying the basic mores criterion in the law of delict focus is on whether or
not the community regards a particular act or form of conduct as delictually wrongful.
It follows in the given scenario that the municipal workers had legal duty to act
reasonably positive when they created a new danger. The legal convictions of the
community would expect them to erect warning signs and to put barriers so that
passersby can be warned and avoid the danger. The failure to act (omission) is wrongful
in the eyes of the society.
Doctrine of Subjective Rights:
In the Tommie Meyer Case: the courts accepted the doctrine of subjective rights, that is,
wrongfulness consists of the infringement of a subjective right. Look at whether the
rights have been infringed: was the holder of the disturbed in the use and enjoyment of
his right (if the subject-object relationship has been disturbed and whether the
infringement complained of took place in a legally reprehensible manner. If established
the conduct is wrongful.
Liability of an Omission and Prior conduct:
General rule: a person doesn’t act wrongfully for the purposes of law of delict where he
fails to act positively to prevent harm to another. There is no absolute duty to prevent
loss. Liability follows only if the omission was in fact wrongful – where a legal duty
rested on the defendant to act positively to prevent harm from occurring and he failed to
comply with that duty.
It must also be noted that a person acts prima facie wrongfully when he creates a new
source of danger and then fails to eliminate that danger, with the result that harm is
caused to another person.
Application to the facts:
6|Page

The conduct of the medical staff at Midlands Private Hospital was wrongful. His conduct
violated the interests or rights (human dignity, bodily integrity) of Mina and the baby. In
terms of the boni mores test, the doctor failed to act as a reasonable person (in this
instance; a reasonable doctor) by failing to perform a timely caesarean section, hence
resulting in the baby sustaining brain injuries.
2.2.
Did the medical staff at Midlands Private Hospital act negligently?
Negligence in simple terms, simply mean that someone is blamed for conduct which is
careless, because by giving insufficient attention to his actions, he failed to adhere to
the standard of care legally required of him.
A defendant is negligent if the reasonable person in his position would have acted
differently = if the unlawful causing of damage was reasonably foreseeable and
Preventable.
Test for negligence: (Kruger v Cotzee)
The reasonable person in the position of the defendant:
1. Would foresee the reasonable possibility of his conduct injuring another

and causing him patrimonial loss.
2. Would take reasonable steps to guard against such occurrence And the
defendant failed to take such steps.
Reasonable test for Experts
It’s considered whether the fact that the wrongdoer had expertise in regard to the
negligent conduct affect the application of the reasonable person test.
The general test for negligence cannot be applied in considering the conduct of the
defendant where such conduct calls expertise. So in the case of an expert, for example
a DOCTOR, the test for negligence is the test of the SO- CALLED REASONABLE
EXPERT (i.e. the reasonable DOCTOR).
7|Page

In Van Wyk v Lewis the court stated that the reasonable expert is identical to the person
in all respects, except that a reasonable measure of the relevant expertise is added.
Application to facts
The medical staff at Midlands Private Hospital acted negligently. This is so because the
medical staff failed to perform a timely caesarean section, resulting in the baby
sustaining brain damage. The medical staff was negligent because they were careless
with their conduct. They failed to act as reasonable doctors, that is, they failed to take
the standard of care expected from doctors.
QUESTION 3
3.1.
Necessity
A state of necessity exists when the defendant is placed in a position by superior force
(vis maior) that he is able to protect his interests or those of someone else, only by
reasonably violating the interests of an innocent third party
Guidelines to determine necessity
 An actual state of necessity must exist

 The possible existence of a state of necessity must be determined objectively
Putative (imagined) necessity isn’t necessity
 The state of necessity must be present or imminent
 The defendant need not only protect his own interests, but can protect the
interests of another
 Not only life or physical integrity, but other interests like property may be
protected out of necessity
 A person can’t rely on necessity where he’s legally compelled to endure the
danger
8|Page

 The interest, which is sacrificed must not be more valuable than the interest,
which is protected; the defendant cannot cause more harm than is necessary
 The act of necessity must be the only reasonable possible means of escaping
from danger
Application to facts
Tom and Hark will not succeed with the defence of necessity. This is because the
Frisbee is not more valuable as the window that they broke. They should have tried to
use other methods to take down the Frisbee (such as using a ladder to climb the tree). It
must be noted that the interest which is sacrificed must not be more valuable than the
interest which is protected; the defendant cannot cause more harm than is necessary.
3.2.
Betty may rely on provocation.
Provocation is present when a defendant is provoked or incited by words or actions to

cause harm to the plaintiff.
Defamatory or insulting allegations made during an argument in reaction to provocative

conduct, may be justified in certain circumstances.
Requirements:
 The provocation must be of such a nature that a reasonable person in the

position of the defendant would also have acted by defaming or insulting the
plaintiff (test is objective).
 Defamation or insult in retortio must stay within the prescribed limits; the limits
aren’t exceeded when the defamation or insult: (a) immediately or directly follows
the provocation and (b) isn’t out of proportion to the provocative conduct.
In the Bester Case it was stated that where two people have defamed or insulted
each other in such a manner that the one instance of defamation or insult isn’t out of
proportion to the other (this is called Compensatio).
9|Page

QUESTION 4
See paragraph 3, especially 3.2.
Mokgethi 1990 (1) SA 32 (A) and International Shipping Co (Pty) Ltd v Bentley 1990 (1)
SA 680 (A). In Mokgethi a bank robber shot a teller. The teller was rendered a
paraplegic and was discharged from hospital in a wheelchair. Subsequently, the
paraplegic man failed to shift his body position in the chair frequently and developed
pressure sores, eventually dying from complications.
The question that arose was whether the shot fired by the robber was the legal cause of
the teller’s death. According to the court, the main question in respect of legal causation
is whether there is a close enough relationship between the wrongdoer’s conduct and
its consequence for such consequence to be imputed to the wrongdoer in view of policy
considerations based on reasonableness, fairness and justice.
consequences, foreseeability and novus actus interveniens. None of these criteria is
suitable to be applied to all situations. They may, however, be used as subsidiary aids
when employing the flexible approach. In the Mokgethi case, the court held that the shot
was not a legal cause of the death.
If these principles are applied to the facts in the question, the conclusion is probably that
Zama’s broken arm was too remote and should not be imputed to the wrongdoer. It
could also be argued that a so-called novus actus interveniens, that is, a new
intervening act, was constituted by Zama’s second fall, and this strengthens the
conclusion that there is no legal causal link between Kabelo’s conduct and Zama’s
broken arm.
QUESTION 5
5.1. Name the requirements for the granting of an interdict:
 There must be an act by the respondent
10 | P a g e

 The act must be wrongful

 No other remedy must be available
5.2. Name the requirements of the action de pauperie:

 the defendant must be the owner of the animal when the damage is inflicted
 the animal must be a domestic animal
 the animal must act contrary to its own nature when inflicting damage;
 the prejudiced person or his property must be lawfully present at the location
when the damage in inflicted.
5.3. Name the requirements for vicarious liability:

 There must be an employer-employee relationship at the time the delict
was committed
 The employee must act within the scope of his employment when the
delict is committed
 The employee must commit a delict.
5.4. Explain the principle of “mitigation of loss”
The plaintiff cannot recover damages for a loss which is the factual result of the
defendant’s conduct, but which could have been prevented if the plaintiff had
taken reasonable steps.
PVL3703
MAY/JUNE 2019
11 | P a g e

























SECTION A
1. 3
2. 2
3. 4
4. 4
5. 2
6. 4
7. 4
8. 3
9. 1
10. 1
11. 3
12. 1
13. 2
14. 1
15. 2
16. 4
17. 1
18. 2 **** (ACTION FOR PAIN AND SUFFERING)
19. 2
20. 4
SECTION B
Question 1
12 | P a g e

1.1. A delict is an act of a person, which in a wrongful and culpable way causes harm
to another.
1.2. Patrimonial loss

Non-patrimonial loss (Injury to personality)
1.3. Requirements for vicarious liability:

 There must be an employer-employee relationship at the time the delict
was committed
 The employee must act within the scope of his employment when the
delict is committed
 The employee must commit a delict
1.4. Requirements of the action de pastu

 The defendant must be the owner of the animal when the damage is
caused
 Animal must cause damage by eating plants
 The animal must act of its own volition when causing the damage.
1.5. The difference between a delict and a contract:

DELICT:
 Primary remedy = damages/ claim for compensation
BREACH OF CONTRACT
 Primary remedy = performance of the contract
1.6. Difference between a “constitutional wrong” and a “delict.”
Constitutionality delict deals with the infringement of a fundamental right per se

constitute a “delict”. A clear distinction should be made between a constitutional
13 | P a g e

wrong and a delict. The requirements for a delict is necessarily also a

constitutional wrong differ materially. Not every delict is necessarily also a
constitutional wrong and vice versa.
Unlike a delictual remedy which is aimed at compensation, a constitutional

remedy is directed at affirming, enforcing, protecting and vindicating fundamental
rights and at preventing or deterring future violations.
Question 2
An Act consists of a voluntary human commission or omission:
Elements:
14 | P a g e

1. Human act
2. Voluntary conduct: the act must have been performed voluntarily- the wrongdoer
must have had control over his muscular movements.
3. Commission or omission.
Voluntary means the bodily movements must be susceptible to control of the will, that is,
the person must be able to control his/her muscular movements by means of his/her
will. Body movements need to be willed to be voluntary, nor do they need to be rational
or explicable.
The defence of automatism excludes voluntariness, and this means that the relevant
movements were mechanical and the person could not control them by his/her will.
Factors that can induce a state of automatism include blackout and epileptic fit.
According to Molefe v Mahaeng 1999 (1) SA 562 (SCA), the defendant does not bear
the onus to prove that he was in a state of so-called sane automatism. The onus is on
the plaintiff to prove that the defendant acted voluntarily.
If we apply these principles to the facts supplied in the question, we can conclude that
Tumelo did not act voluntarily when he stabbed one of his friends. However, the
situation will indeed change if Tumelo had been receiving medical treatment for
diagnosed insomnia, but failed to take his medication on that particular occasion. A
person cannot rely on automatism if he/she intentionally placed himself/herself in a
mechanical state; this is known as the actio libera in causa (antecedent liability).
Furthermore, a person cannot rely on automatism if he/she negligently placed
himself/herself in a mechanical state. In the adapted facts, Tumelo was probably
negligent, A reliance on automatism would fail in such a scenario and Tumelo will be
held liable. He acted in terms of the law of delict.
15 | P a g e

Question 3
Liability for an omission:
16 | P a g e

General rule: a person doesn’t act wrongfully for the purpose of law of delict where he
fails to act positively to prevent harm to another. There is no absolute duty to prevent
loss.
Liability follows only if an omission was in fact wrong – where a legal duty rested on the
defendant to act positively to prevent harm from occurring & he failed to comply with
that duty.
Control of a dangerous object:
Control over a dangerous object (fire) can be a factor in determining whether a legal
duty rested on a person to prevent someone being injured by a particular situation.
2 relevant questions:
1. Whether there was actual control – whether control was present can be adduced
from the fact the defendant had factually taken control over a dangerous
situation, from the fact the defendant was owner of the dangerous object or from
statutory provisions placing control on the defendant.
2. In light of the control, whether a legal duty rested on the defendant to take steps
to prevent damage resulting from this omission to exercise proper control – the
fact that the defendant had been in control of a dangerous (potentially
dangerous) object isn’t necessarily enough to establish a duty to take
precautionary measures but may be a factor.
Ablort – Morgan v Whyte bank farms: said that if there was a legal; duty –focus on
whether the defendant knew or ought reasonably to have known about the danger and
whether reasonable steps were taken in the circumstances. Look at:
a) The probability of damage
b) Possible action by the defendant
c) Chances of success
d) Cost of measures
17 | P a g e

e) Interests of individuals and the community.
Application to the set of facts given:
Question 4
4.1.
18 | P a g e

Where a person legally capable of expressing his will gives consent to injury or harm,
the causing of such harm will be lawful. Consent is a ground of justification: the person
suffering harm waives his right to the extent that he permits the defendant to violate his
interests.
Volenti non fit inuria: the defendant isn’t liable where the injured person has
consented to injury – he who consents cannot be injured.
David consented to the risk of injury: the injured party consents to the risk of harm
caused by the defendants conduct eg – a rugby player accepts the risk that he may be
injured in a tackle. The injured person will not be able to hold the injured person
delictually liable because he has consented to the risk of such harm.
Boshoff case: Plaintiff was hit on the head with a racket during a game of squash and
sustained injury to his eye. Court held that the plaintiff cannot claim damages because
he consent to risk of injury and such consent was not contra boni mores.
Requirements for valid consent:

1. Consent must be given freely and voluntarily
2. The person giving consent must be capable of volition
3. The consenting person must have full knowledge of the extent of the prejudice
4. The consenting party must realize or appreciate fully the nature and extent of
harm.
5. The consenting party must subjectively consent to the prejudicial act
6. The consent must not be contra boni mores.
In the given set of facts, Kagiso may be successfully on raising the defense of consent.
By agreeing to play cricket, Davit consented to the risk of injury and he can hold Kagiso
dilectual liable. He who consents cannot be injured.
19 | P a g e

4.2.
The maxim volenti non fit iniuria is used as a common concept to describe both forms
of consent. Volenti non fit iniuria may thus mean either consent to injury, or consent to
the risk of injury. The expression “voluntary assumption of risk” is sometimes used to
imply consent to the risk of injury and sometimes to refer to contributory intent.
Refer to the case of Lampert v Hefer.
Question 5
Factual Causation:
20 | P a g e

There is no question of delictual liability if it isn’t proved that the conduct of the
defendant caused the damage of the person suffering the harm.
The test for determining causation:
Conditio sine qua non theory:
Conditio sine qua non literally means “Condition without which something does not
happen”. Also known as the BUT FOR test, according to this an act is the cause of a
result if the act cannot be thought away without the result disappearing as well.
E.g. in order tro determine if X is the cause of Y, eliminate X mentally and consider
whether Y still exists or not. If Y falls away when X is eliminated, then X is the cause of
Y.
Legal Causation:
Legal causation as an independent element arises where it appears that the

wrongdoers conduct was wrongful and culpable with reference to at least certain
requirements.
Test for determining legal causation:
The flexible approach:

Refer to the case of S v Mokgethi
The court held that there is no single criterion for legal causation. The basic question for
the flexible approach was whether there was a close enough relationship between the
wrongdoers conduct and its consequences, for such consequence to be imputed to the
wrongdoer in view of policy considerations based on reasonableness, justice and
fairness.
21 | P a g e




























Students must also discuss: Adequate causation, Direct consequences and Novus.
PVL3703
OCTOBER/NOVEMBER 2018
1. 4
22 | P a g e

2. 2
3. 1
4. 4
5. 3
6. 4
7. 4
8. 1
9. 2
10. 4
11. 4
12. 4
13. 1
14. 2
15. 2
16. 1
17. 4
18. 1
19. 4
20. 1
SECTION B
QUESTION 1
1.1.
Conduct
Is a voluntary human act or omission.
4. Human: where an animal is used as an instrument a human act is still present. A

juristic person can act through its agents (company) and be held delictually liable
for its actions.
23 | P a g e

5. Voluntary conduct: the act must have been performed voluntarily – the
wrongdoer must have had control over his muscular movements (i.e. if it is
susceptible to control the will of the person involved).
Defence of Automatism:
The voluntary conduct on the part of the defendant is a requirement for delictual
liability. The defendant could argue that the conduct complained of doesn’t satisfy
the requirements of voluntariness.
This is where someone acted mechanically = sleep, unconscious, fainting fit,

absolute force, epileptic fit, serious intoxication, black out. If these are present a
person is incapable of controlling his bodily movement = purely mechanical
action and that person raises the defence of automatism.
In the Mkize case: X stabbed and killed Y with a knife while X was having an
In the given set of Mpho did not act for the purposes of the law of delict. This is
so because he did not act voluntarily. He was not able to control his muscular
movements because he suffered an epileptic fit. Mpho can rely on the defence of
automatism because he acted mechanically = epileptic fit.
If Mpho had already been under medical treatment for the epileptic fit he
suffered, but failed to take his prescribed medication when he should have done
so earlier that morning:
The defendant may not successfully rely on the defence of automatism where he
was negligent with regard to his automatic conduct. This is where the reasonable
man would have foreseen the possibility of causing harm while in a state of
automatism.
In the given set of facts, Mpho will not rely on the defence of automatism (hence
he acted for the purpose of the law of delict) because he was negligent with
regard to his automatic conduct (he did not take medication for his epileptic fit).
1.2.
24 | P a g e

Generally where a person legally capable of expressing his will gives consent to
injury or harm, the causing of such harm will be lawful. Consent is a ground of
justification: the person suffering harm waives his right to the extent that he
permits the defendant to violate his interests.
Volunti non fit iniuria: the defendant isn’t liable where the injured person
has consented to injury – he who consents cannot be injured. Volenti non fit
iniuria may thus mean either consent to injury, or consent to the risk of injury.
In the given set of facts we are dealing with consent to the risk of injury:
Consent to the risk of injury: the injured party consents to the risk of harm caused
by the defendants conduct – a rugby player accepts the risk that he may be
injured in a tackle. = The injured person will not be able to hold the person who
injured him, dilectually liable because he has consented to the risk of such harm.

2. The person giving consent must be capable of volition
3. The consenting person must have full knowledge of the extent of the
prejudice
4. The consenting party must realise or appreciate fully the nature and extent of
the harm
5. The consenting party must subjectively consent to the prejudicial act.
6. The consent must not be contra boni mores. Consent to bodily injury or
consent to the risk of such injury is normally contra bonos mores unless the
contrary is evident. Examples of the latter are cases of participation in lawful
sport, medical treatment, or cases where the injury is of a very minor nature.
Case law
In Roux v Hattingh 2012 6 SA 428 (SCA) the plaintiff a rugby hooker, was
seriously and intentionally injured by an illegal and highly dangerous manoeuvre
during a scrum. The plaintiff succeeded in his claim for damages. (pg 113 of the
text book 7th ed, footnote 575)
25 | P a g e

In the Boshoff v Boshoff case: Plaintiff was hit on the head with a racket during a
game of squash and sustained injury to his eye. Court held that the plaintiff
cannot claim damages because he consent to risk of injury and such consent
was not contra boni mores.
(pg 113 of the text book 7th ed, footnote 575)
(Link the cases discussed (NB>>the requirement that the consent must be
permtted by the legal order (consent must not be contra bonos mores) with ref to
the given set of facts)
QUESTION 2
5.1. A defendant is negligent if the reasonable person in his position would have
acted differently = if the unlawful causing of damage was reasonably
foreseeable and Preventable.
Test for negligence:


4. Would take reasonable steps to guard against such occurrence
5. And the defendant failed to take such steps.
Children
This will only arise in the case of children who are 10 years and older,
because the law deems a child under the age of 10 to be culpae incapux.
Before 1965 there was a tendency for the courts to take into account the
youthfulness of the wrongdoer in determining his negligence = test for
negligence by means of the conduct expected form the Reasonable CHILD of
the wrongdoers age and intellectual development.
In 1965 the AD in Jones v Santam adopted a new approach to determine

negligence with regard to children.
The court implied that the criteria for determining negligence is always
objective in the sense that in all situations the test of the REASONABLE
PERSON is applied.
26 | P a g e

According to this approach, in determining if a child acted with negligence:
1. See whether the child concerned met the standard of care required of a
reasonable person
2. Ask whether the child was accountable for his actions
This approach has a critical reception:
a. It would seem that the earlier test of the reasonable child was more
acceptable
b. It’s clear that the court in Jones placed the cart before the horse by 1 st
looking into fault and then into accountability.
Logically you must 1st look at accountability and once someone is found to be
accountable only then can you look at fault.
Roxa v Mtshaya: AD accepted this criticism by 1st testing accountability and

then for negligence.
Weber v Santam: the AD had another chance to consider the Jones case
and said that it didn’t materially depart from the common law and confirmed
the approach.
2.2. Contributory intent:

a. In the situation where a plaintiff intentionally contributed towards his
own loss while the defendant was merely negligent, in such
circumstances, the plaintiff forfeits his claim.
b. It is terminologically and theoretically incorrect to speak of
contributory negligence. Strictly speaking, an act can only be
negligent where it is also wrongful and it is clear that a person
cannot act wrongfully in respect of himself. Contributory negligence
is thus the result of an approach used to determine the extent of the
defendant’s liability by means of a method which is analogous to
that for determining negligence, technically, however, the method
does not pertain to negligence stricto sensu because wrongfulness
cannot play a part.
(see King v Pearl Insurance Co Ltd case, Browkers Park Komga

Cooperative Ltd v SAR and H)
27 | P a g e

QUESTION 3
5.1. It must be known that there is no question of delictual liability if it isn’t

proved that the conduct of the defendant caused the damage of the
person suffering the harm.
Condictio sine qua non theory, also known as the BUT FOR test =
according to this an act is the cause of a result if the act cannot be
thought away without the result disappearing.
In view of the fact that conditio sine qua non should be rejected as the
test for causation, what test should be used.
Van Rensburg – a causal nexus exists where one fact arises out of
another – this must be established according to human experience in
general.
It’s enough for the purpose of factual causation if defendant’s conduct

has in any way contributed to the damage sustained by the plaintiff. In
the given set of facts a factual causal link exist between Aaron’s
conduct and Martha’s broken arm.
5.2. Legal causation as an independent element arises where it appears

that the wrongdoers conduct was wrongful and culpable with reference
to at least certain requirements.

S v Mokgethi: held that there is no single criteria for legal causation.
The basic question for the flexible approach was whether there was a
close enough relationship between the wrongdoer’s conduct and its
consequence, for such consequence to be imputed to the wrongdoer in
view of policy considerations based on reasonableness, justice and
fairness.
This approach was confirmed in Bentley, Smit Abrahams and Collet.

AD has expressed itself in favour of the flexible approach.
28 | P a g e

In the given set of facts there is no legal causal link between Aaron’s
conduct and Martha’s broken arm. There was no close enough
relationship between the wrongdoer’s conduct and its consequences.
Adequate Causation:
According to this theory a consequence which has been caused by the
wrongdoer is imputed to him if the consequence is adequately
connected to the conduct. It’s adequate if according to human
experience in the normal course of events the act has a tendency to
bring bout that type of consequence.
The link between the act and the damage could be severed by a new
intervening act. It’s an independent event, which after the wrongdoer’s
act & the consequences, with result that wrongdoer’s act can no longer
considered FC of consequences = actor goes free.
Novus is to limit liability of wrongdoer and plays an important role in
LC. In each case will have to be determined within framework of the
relevant imputability test whether novus has had the effect of severing
the legal nexus with result that consequences shouldn’t be imputed to
actor.
Mokgethi case: the question was whether the victims own conduct had
broken the causal nexus between the accused’s wrongful and the
result in question.
The court doubted whether it was possible to formulate a general
principle through which it could in all cases be established whether the
victim’s omission would interrupt the required legal causation.
The court suggested a criterion, which may be useful to determine
legal causation in view of the victim’s own conduct:
1. The victim fails to seek medical attention and that’s the cause
of death
2. The wound wasn’t life threatening
3. Where to seek medical attention is unreasonable
3.3. This is a comparative test: In terms of this approach damage exists in the
negative difference between the plaintiff’s actual patrimonial position as it exists
after the damage-causing event and the hypothetical patrimonial position that
would have existed had the damage-causing event not occurred = current
position compared to a hypothetical position.
29 | P a g e

3.4. In claims for compensation and satisfaction arising out of a delict the plaintiff
must claim damages for all the damage already sustained or expected in the
future in so far as it’s based on a single cause of action.
3.5. Strict liability of one person for the delict of another. The former is indirectly
vicariously liable for the damage caused by the latter.
E.g. Employer – employee
Where the employee acting within the scope of his employment commits a delict,
his employer is fully liable for the damage.
PVL 3703
JUNE 2018
SECTION A
1. 4
2. 4
3. 2
4. 4
5. 3
6. 1
7. 2
8. 3
9. 4
10. 1
11. 2
12. 3
13. 4
14. 2
15. 4
16. 3
17. 2
18. 4
19. 2
30 | P a g e





























3.4. In claims for compensation and satisfaction arising out of a delict the plaintiff
must claim damages for all the damage already sustained or expected in the
3.5. Strict liability of one person for the delict of another. The former is indirectly
vicariously liable for the damage caused by the latter.
E.g. Employer – employee
Where the employee acting within the scope of his employment commits a delict,
his employer is fully liable for the damage.
PVL 3703
JUNE 2018
SECTION A
1. 4
2. 4
3. 2
4. 4
5. 3
6. 1
7. 2
8. 3
9. 4
10. 1
11. 2
12. 3
13. 4
14. 2
15. 4
16. 3
17. 2
18. 4
19. 2
30 | P a g e

20. 2
SECTION B
1. For an action to give rise to delictual liability, harm must have been caused in a
wrongful way. This means the harm or prejudice was legally reprehensible or
unreasonable in infringing an individual’s interest. To determine whether a
particular infringement of interests is unlawful the legal convictions of the
community or boni mores test is used. The boni mores test is an objective test
based on the criterion of reasonableness. The reasonableness test is therefore a
juridical yardstick used to give expression to the prevailing convictions of the
Therefore in applying the basic mores criterion in the law of delict focus is on
whether or not the community regards a particular act or form of conduct as
delictually wrongful.
Wrongfulness can also be determined by whether violation of interests is in
conflict with legal convicting of the community for examples where they is breach
of legal duty. Although in general failure to act (omission) does not give rise to
delictual liability, the exception is failure to act positively to prevent harm
especially where they is legal duty will give rise to liability. A person’s prior
conduct for example where a new source of danger is created would demand
positive action from the person. Therefore failure to eliminate the danger with the
result that harm or interest ifs violated will be wrongful and thus give rise to
delictual liability.
passersby can be warned and avoid the danger. The failure to act (omission) is
wrongful in the eyes of the society.
2.1 Conduct is defined as a voluntary human act or omission. Conduct consists of

the following characteristics; human act (not animal), performed voluntarily (a
person must have willed or desired his conduct, where conduct has not been
desired or willed automatism, they is no liability) and conduct may either be
positive or omission.
In the given scenario David lost consciousness due to a sudden drop in his blood
pressure, therefore his conduct was involuntary, and thus in terms of the law of
delict he did not act. He acted mechanically (automatism).
The defence of automatism will not succeed if the defendant intentionally created
the situation in which he acts involuntarily in order to harm another. This is known
31 | P a g e

as actio libera in causa. The defendant will be held liable for his culpable conduct
in creating the state of automatism which resulted in damage. Thus if David was
already under medical treatment and he had failed to take his prescribed
treatment will change everything.
2.2 A person is at fault (intention and negligence) if they are legally to blame. A
person is to blame for their wrongful conduct (or has culpa) if they person has
mental ability to distinguish between right and wrong and if they are able to act in
accordance with such appreciation. The person must have required mental ability
at the time of the commission of the act for which the law wants to blame him.
In terms of the Child Justice Act a child who has not completed his 10 th year is
regarded by law as being culpae incapax (lacking capacity). However there is a
rebutable presumption that a child over ten years but less than 14 lacks
accountability. After 10 years a child may thus be accountable held liable in delict
if all requirements are met. However each case must be judged on its own
merits.
Question 3
3.1 Factual causal link exists if they is logical nexus between the wrongdoer’s
conduct and the damage caused. Although the courts can use a number of
approaches the conditio sine qua non theory is prominent one. According to this
theory an act is the cause of the result if the act cannot be thought away without
the result disappearing simultaneously. The act must be conditio sine qua non of
the result.
Thus if Celia’s conduct (throwing a shoe at Nadia) can be thought away and the
resultant damage disappears simultaneously (broken arm and pneumonia) then it
is Celia’s conditio sine qua non of Nadia’s injury. In other words if Celia had not
thrown the shoe at Nadia, Nadia would not have fallen and broken her arm and
subsequently hospitailised and contracted pneumonia. The contracting of
pneumonia was conditio sine qua non of Celia’s conduct.
3.2 Legal causation determines the actual cause harmful consequences actually
caused by the wrongdoer for the damage. In other words legal causation restricts
liability for the chain of events or remote connections that may be drawn. The
court has formulated a number of approaches to prove causation. These are;
a) Flexible approach- in S v Moghethi the facts were that X was shot by Y. X was
hospitalized and he recovered but the doctor told him to shift his position after
some time so as not to develop pressure sores. X failed to follow the doctor’s
recommendations and developed pressure resulting in his death. The court held
32 | P a g e

that the gun wounds caused by Y were not the legal cause of X’s death. They
were otherwise the factual causation of X’s death. In terms of S v Moghethi the
pneumonia cannot be imputed to Celia, it was unforeseen or was not expected in
the course of events.
b) Adequate causation- there must be adequate connection between the

damage and the X’s conduct. In S v Daniels the court held that adequate
causation as a criterion for legal causation is more distinguished from negligence
than the criterion of reasonable foreseeability. (the normal course of events)
c) Direct consequences _ relates to forseeable consequences only liability

and this approach was accepted in Frenkel & Co. v Cadle.
OCT/NOV 2017
SECTION A
1. 2
2. 4
3. 2
4. 4
5. 3
6. 3
7. 4
8. 3
9. 4
10. 4
11. 1
12. 4
13. 1
14. 4
15. 3
16. 4
17. 4
18. 4
19. 2
33 | P a g e




























that the gun wounds caused by Y were not the legal cause of X’s death. They
pneumonia cannot be imputed to Celia, it was unforeseen or was not expected in
the course of events.
b) Adequate causation- there must be adequate connection between the

damage and the X’s conduct. In S v Daniels the court held that adequate
causation as a criterion for legal causation is more distinguished from negligence
than the criterion of reasonable foreseeability. (the normal course of events)
c) Direct consequences _ relates to forseeable consequences only liability

and this approach was accepted in Frenkel & Co. v Cadle.
OCT/NOV 2017
SECTION A
1. 2
2. 4
3. 2
4. 4
5. 3
6. 3
7. 4
8. 3
9. 4
10. 4
11. 1
12. 4
13. 1
14. 4
15. 3
16. 4
17. 4
18. 4
19. 2
33 | P a g e

20. 2
SECTION B
Question 1
For an action to give rise to delictual liability, harm must have been caused in a wrongful
way. This means the harm or prejudice was legally reprehensible or unreasonable in
infringing an individual’s interest. To determine whether a particular infringement of
interests is unlawful the legal convictions of the community or boni mores test is used.
The boni mores test is an objective test based on the criterionof reasonableness. The
reasonableness test is therefore a juridical yardstick used to give expression to the
prevailing convictions of the community regarding right and wrong.
Therefore in applying the basic mores criterion in the law of delict focus is on whether or
not the community regards a particular act or form of conduct as delictually wrongful.
Wrongfulness can also be determined by whether violation of interests is in conflict with

legal convicting of the community for examples where they is breach of legal duty.
Although in general failure to act (omission) does not give rise to delictual liability, the
exception is failure to act positively to prevent harm especially where they is legal duty
will give rise to liability. A person’s prior conduct for example where a new source of
danger is created would demand positive action from the person. Therefore failure to
eliminate the danger with the result that harm or interest ifs violated will be wrongful and
thus give rise to delictual liability.
passersby can be warned and avoid the danger. The failure to act (omission) is wrongful
in the eyes of the society.
Question 2
34 | P a g e

merits.
2.2 Impossibility is not a defence but can be used to invalidate wrongful conduct by
the defence. The impossibility does not need to be physically impossible to be
accepted as invalid conduct. If the defendant has done enough in terms of legal
convictions of the society then one cannot be held liable for wrongful conduct.
The court will determine by analyzing the cost of prevention vis a vis the cost of
preventing the harm. The greater the cost the lesser the liability.
Question 3
Legal causation determines the actual cause harmful consequences actually caused by
the wrongdoer for the damage. In other words legal causation restricts liability for the
chain of events or remote connections that may be drawn. In S v Moghethi the facts
were that X was shot by Y. X was hospitalized and he recovered but the doctor told him
to shift his position after some time so as not to develop pressure sores. X failed to
follow the doctor’s recommendations and developed pressure resulting in his death. The
court held that the gun wounds caused by Y were not the legal cause of X’s death. They
pneumonia cannot be imputed to Celia, it was unforeseen or was not expected in the
course of events.
35 | P a g e


























JUNE 2017
Question 1
1. 1
2. 2
3. 3
4. 1
5. 1
6. 4
7. 1
8. 3
9. 3
10. 3
11. 2
12. 4
13. 3
14. 3
15. 3
16. 1
17. 3
18. 1
19. 2
36 | P a g e

20. 4
SECTION B
Question 1
Conduct is defined as a voluntary human act or omission. Conduct consists of the

following characteristics; human act (not animal), performed voluntarily (a person must
have willed or desired his conduct, where conduct has not been desired or willed
automatism, they is no liability) and conduct may either be positive or omission.
In the given scenario Jim lost consciousness due to a sudden drop in his blood
pressure, therefore his conduct was involuntary, and thus in terms of the law of delict he
did not act. He acted mechanically (automatism).
Question 2
2.1 For an action to give rise to delictual liability, harm must have been caused in a
wrongful way. This means the harm or prejudice was legally reprehensible or
unreasonable in infringing an individual’s interest. To determine whether a
particular infringement of interests is unlawful the legal convictions of the
community or boni mores test is used. The boni mores test is an objective test
based on the criterion of reasonableness. The reasonableness test is therefore a
juridical yardstick used to give expression to the prevailing convictions of the
Therefore in applying the boni mores criterion in the law of delict focus is on
whether or not the community regards a particular act or form of conduct as
delictually wrongful. Wrongfulness can also be determined by whether violation
of interests is in conflict with legal convicting of the community for examples
where they is breach of legal duty. Although in general failure to act (omission)
does not give rise to delictual liability, the exception is failure to act positively to
prevent harm especially where they is legal duty will give rise to liability. A
person’s prior conduct for example where a new source of danger is created
would demand positive action from the person. Therefore failure to eliminate the
danger with the result that harm or interest ifs violated will be wrongful and thus
give rise to delictual liability.
37 | P a g e

passersby can be warned and avoid the danger. The failure to act (omission) is
wrongful in the eyes of the society.
merits. Peter at 13 therefore can rebuttably presumed to lack culpa although the
court will consider a number of factors such intellectual capacity, background,
maturity, exposure and many other factors in determining whether he can
distinguish between right and wrong and act in accordance with such
appreaciation.
Question 3
3.1 Factual causal link exists if they is logical nexus between the wrongdoer’s
conduct and the damage caused. Although the courts can use a number of
approaches the conditio sine qua non theory is prominent one. According to this
theory an act is the cause of the result if the act cannot be thought away without
the result disappearing simultaneously. The act must be conditio sine qua non of
the result.
Thus if Celia’s conduct (throwing a shoe at Nadia) can be thought away and the
resultant damage disappears simultaneously (broken arm and pneumonia) then it
is Celia’s conditio sine qua non of Nadia’s injury. In other words if Celia had not
thrown the shoe at Nadia, Nadia would not have fallen and broken her arm and
subsequently hospitailised and contracted pneumonia. The contracting of
pneumonia was conditio sine qua non of Celia’s conduct.
38 | P a g e

court has formulated a number of approaches to prove causation. In S v
Moghethi the facts were that X was shot by Y. X was hospitalized and he
recovered but the doctor told him to shift his position after some time so as not to
develop pressure sores. X failed to follow the doctor’s recommendations and
factual causation of X’s death. In terms of S v Moghethi the pneumonia cannot
be imputed to Max, it was unforeseen or was not expected in the course of
events.
OCTOBER 2016
Section A
Question 1
1. 4
2. 3
3. 2
4. 4
5. 3
6. 2
7. 3
8. 1
9. 3
10. 3
11. 3
12. 3
13. 1
39 | P a g e

























court has formulated a number of approaches to prove causation. In S v
Moghethi the facts were that X was shot by Y. X was hospitalized and he
recovered but the doctor told him to shift his position after some time so as not to
develop pressure sores. X failed to follow the doctor’s recommendations and
factual causation of X’s death. In terms of S v Moghethi the pneumonia cannot
be imputed to Max, it was unforeseen or was not expected in the course of
events.
OCTOBER 2016
Section A
Question 1
1. 4
2. 3
3. 2
4. 4
5. 3
6. 2
7. 3
8. 1
9. 3
10. 3
11. 3
12. 3
13. 1
39 | P a g e

14. 2
15. 3
16. 3
17. 4
18. 2
19. 4
20. 1
21. 3
22. 3
23. 2
24. 2
25. 2
QUESTION 1
Conduct:
Voluntary human act or omission
Liability for an omission:
GENERAL RULE: A person doesn’t act wrongfully for the purpose of law of delict where
he fails to act positively to prevent harm to another. There’s no absolute duty to prevent
loss.
Liability follows only if an omission was in fact wrong – where a legal duty rested on the
defendant to act positively to prevent harm from occurring & he failed to comply with
that duty.
Prior Conduct:
A person acts prima facie wrongfully where he creates a new source of danger by
means of a commission & then fails to eliminate that danger, with the result that harm is
caused to another person. Prior conduct isn’t a prerequisite for the existence of a legal
40 | P a g e

duty – but at stage this was the only category where liability was imposed on a failure to
act.
Case Law
In Halliwell v JHB municipal council: The court stated that where road authorities
constructs, in such a way as to introduce a new source of danger which would
otherwise not have existed, it must take due steps to guard against that danger. That is,
with the creation of a new danger (prior conduct) legal duty arises. Failure to comply
with the legal duty = Omission.
Silva’s Fishing Corporation v Maweza: The defendant was the owner of a fishing fleet,
the engine of one of his boats failed and the boat failed and the drifted out to open sea
for 9 days during which the defendant failed to take steps to rescue it and it was
eventually lost in storm. The plaintiff’s husband drowned and she instituted action
against the defendant.
Majority: prior conduct – present since the defendant created a potentially dangerous
situation by providing the boat and consenting to the fishing run from which he would
benefit financially. Therefore a legal duty rests on the defendant to take steps to rescue
the crew.
Minority: STEYN JA – was critical of the Halliwell approach…..that liability of an

omission was based on prior conduct ONLY.
Ewels case: (policeman failed to prevent assault) Result in this case is that you don’t
need prior conduct and this was confirmed in VAN DER MERWE BURGER>
Due to these cases the municipality acted wrongfully due to the fact that they didn’t act
positively (omission) and is delictually liable for Jim’s injuries.
QUESTION 2
2.2. A defendant is negligent if the reasonable person in his position would have
acted differently = if the unlawful causing of damage was reasonably
foreseeable and Preventable.
Test for negligence:


41 | P a g e


Children
This will only arise in the case of children who are 10 years and older,
because the law deems a child under the age of 10 to be culpae incapux.
Before 1965 there was a tendency for the courts to take into account the
youthfulness of the wrongdoer in determining his negligence = test for
negligence by means of the conduct expected form the Reasonable CHILD of
the wrongdoers age and intellectual development.
In 1965 the AD in Jones v Santam adopted a new approach to determine

negligence with regard to children.
The court implied that the criteria for determining negligence is always
objective in the sense that in all situations the test of the REASONABLE
PERSON is applied.
According to this approach, in determining if a child acted with negligence:
3. See whether the child concerned met the standard of care required of a
reasonable person
This approach has a critical reception:
c. It would seem that the earlier test of the reasonable child was more
acceptable
d. It’s clear that the court in Jones placed the cart before the horse by 1 st
looking into fault and then into accountability.
Logically you must 1st look at accountability and once someone is found to be
accountable only then can you look at fault.
Roxa v Mtshaya: AD accepted this criticism by 1st testing accountability and

then for negligence.
Weber v Santam: the AD had another chance to consider the Jones case
and said that it didn’t materially depart from the common law and confirmed
the approach.
In Eskom Holdings Ltd the Supreme Court of Appeal again had to deal with this matter
in evaluating the alleged contributory negligence of a child of eleven years of age. The
court took cognizance of criticism of the reasonable person test for children, but
42 | P a g e

referred to the approach in the abovementioned cases and reiterated that in ‘each case
what had to be determined was whether the child in question had developed the
emotional and intellectual maturity to appreciate the particular danger to be avoided
and, if so, to act accordingly”.
In applying the above cases to the given set of facts, Tom is above the age of 10, and
he is a thirteen year old intelligent boy. This clearly shows that he had developed the
emotional and intellectual maturity to appreciate the particular danger to be avoided. In
this regard Tom was negligent.
QUESTION 3
8.1. Legal causation as an independent element arises where it appears

that the wrongdoers conduct was wrongful and culpable with reference
to at least certain requirements.

S v Mokgethi: held that there is no single criteria for legal causation.
close enough relationship between the wrongdoer’s conduct and its
fairness.
43 | P a g e

This approach was confirmed in Bentley, Smit Abrahams and Collet.

AD has expressed itself in favour of the flexible approach.
NOVUS ACTUS INTERVENIENS
New intervening act: It’s a new independent event, which after the
wrongdoer’s act has been concluded, either caused or contributed to
the consequences concerned.
The link between the act and the damage could be severed by a new
intervening act. It’s an independent event, which after the wrongdoer’s
act & the consequences, with result that wrongdoer’s act can no longer
considered FC of consequences = actor goes free.
Novus is to limit liability of wrongdoer and plays an important role in
LC. In each case will have to be determined within framework of the
relevant imputability test whether novus has had the effect of severing
the legal nexus with result that consequences shouldn’t be imputed to
actor.
Mokgethi case: the question was whether the victims own conduct had
broken the causal nexus between the accused’s wrongful and the
result in question.
principle through which it could in all cases be established whether the
victim’s omission would interrupt the required legal causation.
4. The victim fails to seek medical attention and that’s the cause
of death
6. Where to seek medical attention is unreasonable
There is no legal causal link between Sally’s conduct and Sandy’s broken
arm. This is so because there was no close enough relationship between
Sally’s conduct and its consequences. Mary’s conduct can be regarded as
a NOVUS which breaks the chain between Sally’s conduct and Sandy’s
broken arm.
44 | P a g e

45 | P a g e

Law of Delict

Study Guide Questions and Answers
2013
Q&A
All the self-‐assessment questions, answered


Study unit 1 (no questions)

Study Unit 2 – Introduction to the law of delict

Define a delict
A delict is the act of a person that in a wrongful and culpable way causes harm
to another.
List the five elements of a delict
• Act
• Wrongfulness
• Fault
• Causation
• Harm
Name the three actions that are described as the pillars of our law
of delict
• Actio legis Aquiliae

• Actio iniuriarum
• Action for pain and suffering
Indicate which types of compensation can be recovered with the

above actions
• Actio legis Aquiliae: Damages for the wrongful and culpable (intentional or
negligent) causing of patrimonial damage (damnum iniuria datum).
• Actio iniuriarum: Satisfaction (solatium or sentimental damages) for the
wrongful and intentional injury to personality.
• Action for pain and suffering: Compensation for injury to personality as a
result of the wrongful and negligent (or intentional) impairment of bodily or
physical-mental integrity.
Indicate which other group of delictual actions is available in our

law
Liability without fault
Name another remedy – not an action – that may be employed in

delictual cases, and explain how its function differs from that of the
delictual actions
Interdict. A court order to prevent the causing or continued causing of damage.

Can be issued by the court in absence of proof of the elements of fault,
causation, or damage.
Q&A by @yash0505 2

Write brief notes on the differences and/or similarities between a

delict and a breach of contract
• Similarities: As with a delict, a breach of contract is normally an act by

one person (contracting party) which in a wrongful and culpable way
causes damage to another (contracting party).
• Differences: Breach of contract is only constituted by the non-fulfilment
by a contractual party of a contractual personal claim or an obligation to
perform. A delict is constituted by the infringement of any legally
recognised interest of another party, excluding the non-fulfilment of a
duty to perform by a contractual party. The primary remedy for breach of
contract is directed at the enforcement, fulfillment, or execution of the
contract (with a claim for damages playing a secondary part). Delictual
remedies are primarily directed at damages (or satisfaction), and not at
fulfillment.
Write brief notes on the differences and/or similarities between a

delict and a crime
• Similarities: The law takes cognisance of wrongful and culpable acts in

the sphere of public law, and criminal law in particular. Delicts pertain to
wrongful and culpable acts too.
• Differences: Crimes are a part of public law, whereas delicts are a part of
private law. Public law is directed at upholding the public interest,
whereas private law is directed at the protection of individual interests.
Delictual remedies are compensatory character, whereas criminal
sanctions are of a penal nature.
• The same act may found delictual as well as criminal liability. Crimes and
delicts do not always overlap. A delict is not necessarily a crime, and vice
versa.
Name the fundamental rights relevant to the law of delict that are
entrenched in Chapter 2 of the Constitution
The right to property, the right to life, the right to freedom and security of the
person, the right to privacy, the right to human dignity, the right to equality, the
right to freedom of expression, etc.
Explain in a short essay how Chapter 2 of the Constitution may

influence the law of delict directly
Direct vertical application means that the state must respect the fundamental
rights and may not infringe them, except insofar as such infringement is
reasonable and justifiable according to the limitation clause.
Direct horizontal application entails that the courts must give effect to an
applicable fundamental right by applying, and where necessary, developing the
common law insofar as legislation does not give effect to that right, except
Q&A by @yash0505 3

where it is reasonable and justifiable to develop the common law to limit the
right in accordance with the limitation clause.
Explain in a short essay how Chapter 2 of the Constitution may

influence the law of delict indirectly
The term ‘the indirect operation of the Bill of Rights’ means that all private law
rules, principles, or norms – including those regulating the law of delict – are
subjected to, and must therefore be given content in the light of the basic values
of Chapter 2. Therefore policy factors such as reasonableness, fairness, and
justice may play an important part.
Q&A by @yash0505 4

Study unit 3 – The act

Define conduct
A voluntary human act or omission
Name the three characteristics of an act
• Only an act of a human being.

• If the human action is performed voluntarily.
• Conduct may be in the form of a positive act (commission) or an
omission.
Can an animal act for the purposes of the law of delict?
No.
X encourages his dog to bite Y. Does X act?
Yes. Where a human uses an animal as an instrument in the commission of a

delict, a human act is still present.
Can a juristic person (like a company) act? Explain briefly
Yes, if it acts through its organs (humans).
What does the concept of voluntary conduct mean?
If the action is susceptible to control by the will of the person involved, it is

voluntary. Voluntariness implies that the person in question has sufficient mental
ability to control his muscular movements. Voluntariness does not mean that the
person must have willed or desired his conduct (eg forgetting to warn vs being
unconscious and not being able to warn). Voluntariness also does not mean that
a person’s conduct should be rational or explicable.
X forgets to warn others that an electric current has been switched

on. As a result of his omission, somebody is electrocuted. Does X
act voluntarily? Explain briefly
Yes he does act voluntarily. Voluntariness does not mean the conduct must be
willed or desired. It means that the person’s actions must be susceptible to
control by his will, and that the person in question has sufficient mental ability to
control his muscular movements. X is in principle able to control his muscular
movements.
Can an infans or mentally retarded person act voluntarily?
Q&A by @yash0505 5

Yes, although the doer may escape delictual liability because of lack of
accountability or because fault is absent.
Name the conditions that can result in a person’s being unable to

act voluntarily
Absolute compulsion, sleep, unconsciousness, a fainting fit, an epileptic fit,

serious intoxication, a blackout, reflex movements, strong emotional pressure,
mental disease, hypnosis, a heart attack, and certain other conditions.
With reference to examples, distinguish between absolute

compulsion, and relative compulsion (vis compulsiva)
In cases of absolute compulsion, the defendant will not have been able to offer
resistance (X pushes knife into Y’s hand, takes hold of the hand holding the knife
and forces it into Z’s chest). In cases of relative compulsion, the defendant will
have been able to decide whether to offer resistance or not (X points pistol at Y
and orders him to damage Z’s vehicle, and X does so, having made the choice).
Write a short note on the concept of actio libera in causa, giving an

example
If the defendant intentionally created the situation in which he acts involuntarily in

order to harm another, the defence of automatism will not succeed. This is
known as an actio libera in causa. The defendant will be held liable for his
culpable conduct in creating the state of automatism, which resulted in damage
to the plaintiff.
X is involved in an accident while driving his car. When he regains

consciousness, he has no recollection of how the accident took
place. He is hospitalised and during treatment for head injuries, the
doctors determine that he suffered an epileptic fit at the time of the
accident. The car of Y, the other person involved in the accident, is
badly damaged. Can it be said that it was an act on the part of X
that damaged Y’s car? Will it make a difference to your answer if X
had been receiving treatment for epilepsy before the accident, but
had failed to take his medicine for several days before the accident
took place? Discuss
Conduct is defined as a voluntary human act or omission. “Voluntary” means

that the person must be able to control his/her muscular movements by means
of his/her will. Body movements need not be willed to be voluntary, nor do they
need to be rational or explicable. The defence of automatism excludes
voluntariness, and this means that the relevant movements were mechanical
and the person could not control them by his/her will. Factors that can induce a
state of automatism include blackout and epileptic fit. According the Molefe v
Mahaeng, the defendant does not bear the onus to prove that he was in a state
Q&A by @yash0505 6

of so-called sane automatism. The onus is on the plaintiff to prove that the
defendant acted voluntarily. If we apply these principles to the facts supplied in
the question, we can conclude that X did not in fact act voluntarily when the
damage to the car was caused. However, the situation will indeed change if X
had been receiving medical treatment for diagnosed epilepsy, but failed to take
his medication on that particular occasion. A person cannot rely on automatism
if he/she intentionally placed himself/herself in a mechanical state; this is known
as the actio libera in causa. Furthermore, a person cannot rely on automatism if
he/she negligently placed him/herself in a mechanical state. In the adapted
facts, X was probably negligent, or could even have had intention in the form of
dolus eventualis. A reliance on automatism would fail in that case.
On whom does the burden of proof for automatism rest?
In respect of “sane” automatism, the onus is on the plaintiff to prove that the
defendant has acted voluntarily, and, therefore, not mechanically (Molefe v
Mahaeng). However, if the defendant raises the defense of automatism resulting
from mental illness as a defence, such a defendant will probably bear the onus
to prove absence of conduct.
“The difference between a commission and omission is not of

importance for the purposes of the law of delict.” Do you agree
with this statement? Discuss briefly
Conduct may be in the form of an omission or commission. Although the

difference between the two concepts should not be overemphasised, one
distinction of importance is that liability for omission is in general more restricted
than liability for a commission. For policy considerations, the law is hesitant to
find that there was a legal duty on someone to act positively and so to prevent
damage to another.
Q&A by @yash0505 7

Study unit 4 – Wrongfulness: introduction, link with act and

consequence

Describe the two steps involved in an inquiry into wrongfulness
• Firstly, it must be ascertained whether the defendant’s act was in fact the
cause of a harmful result to another person.
• Secondly, it must be ascertained whether the causing of harm took place
in an unreasonable or legally reprehensible way.
X races down Pretoria’s main street during peak hour at 200 km/h
without causing anybody any damage. Can X’s conduct be
described as delictually wrongful? Discuss briefly
No. An act on its own, without having a consequence of the infringement of a

legally recognised interest in a legally reprehensible or unreasonable manner,
can never be held to be delictually wrongful.
X plants a bomb in a busy shop. Before the bomb can explode and
cause damage, it is discovered and rendered harmless. Was X’s
act delictually wrongful? Explain briefly
No. Act had no harmful result. (As above)
X fires a missile from Pretoria to Perth, Australia. Can X’s conduct

be regarded as delictually wrongful before the missile has found its
target and caused damage? Explain briefly
No. The act had no harmful result, and therefore wrongfulness cannot be
present.
In Pinchin v Santam Insurance, suppose it could have been proved

that the unborn baby’s brain damage was, in fact, caused by the
motorcar accident. Would it then have been necessary to use the
nasciturus fiction to show that the child had an action on the
ground of delict? Explain briefly
No. An act and its consequence are always separated by time and space. It is
not necessary that the act be classified as lawful or unlawful immediately after its
completion. Only when the harmful consequence takes place may the
defendant’s act, long since committed, be classified as wrongful.
Is there an exception to the principle that wrongfulness can only be

ascertained after a harmful consequence has been caused? Explain
Q&A by @yash0505 8

Yes. For the purposes of an interdict, wrongfulness can also be determined with
reference to a harmful consequence which has not yet been caused, but which
the applicant is trying to prevent by applying for an interdict.
Study unit 5 – Wrongfulness: the legal convictions of the

community (boni mores) as basic test for wrongfulness

Briefly describe the general or basic test for wrongfulness
The boni mores test is an objective test based on the criterion of

reasonableness. The basic question is whether, according to the legal
convictions of the community and in light of all the circumstances of the case,
the defendant infringed the interests of the plaintiff in a reasonable or in an
unreasonable manner.
Cite the factors that can play a role in the process of balancing
interests to determine wrongfulness
The nature and extent of the harm; subjectively foreseen harm reasonable
foreseeability of harm; the possible value to the defendant or to society of the
harmful conduct; the costs and effort of steps which could have been taken to
prevent loss; the degree of probability of the success of preventative measures;
the nature of the relationship between the parties; the motive of the defendant;
economic considerations; etc.
“The boni mores criterion is a criterion of the law of delict.” What is

meant by this statement? Explain briefly
In applying the boni mores criterion, we are concerned with whether the
community regards the act as delictually wrongful, not socially, morally, ethically,
or religiously right or wrong. Also, the boni mores test is not determined by the
question of whether a particular act should be considered wrongful for the
purposes of public interest, because delict is concerned with individual interests.
When applying the boni mores criterion, can a judicial official rely
on his/her own personal opinion of right and wrong exclusively?
Explain briefly
No. In his role as interpreter of the legal convictions of the community, a judge
nevertheless does not elevate his personal viewpoint regarding right and wrong
to the sole measure of wrongfulness. A judge who does that, impermissibly
makes the law whilst his main task is to apply the law.
Write a short note on the role of subjective factors in determining

wrongfulness
Q&A by @yash0505 9

Subjective factors, such as the defendant’s mental disposition, knowledge, and

motive, normally do not play a role in determining wrongfulness.
“Owing to the fact that wrongfulness is established by a criterion of

objective reasonableness, the defendant’s motive plays absolutely
no role in the determination of wrongfulness.” Is this statement
correct? Discuss briefly
In the area of so-called neighbour law, a defendant’s improper motive (“malice”)

may play a role in deciding whether he acted wrongfully. Eg defendant who
plants deciduous trees along the boundary of his property for the sole purpose
of injuring his neighbour by causing leaves to fall onto his nearby threshing-floor,
will render his apparently reasonable conduct wrongful.
Is it correct to say that the defendant’s intent can sometimes

determine the wrongfulness of his conduct? Discuss briefly
It is incorrect to suggest that a defendant’s intent sometimes determines the

wrongfulness of his conduct. Consciousness of wrongfulness is an element of
the technical-legal concept of intent. Improper motive and intent have different
meanings. Intent may be present even in the absence of improper motive (eg
euthanasia).
Assume the defendant knew that his conduct would harm the
plaintiff. Can this subjective knowledge play a role in determining
wrongfulness of his behaviour? Discuss briefly with reference to an
example
This subjective knowledge is taken into consideration in cases of, eg, the
causing of so-called pure economic loss and omissions.
Is it necessary to apply the general boni mores test in every case

where wrongfulness must be determined? Explain briefly
It is seldom necessary to make direct use of this general and comparatively

vague test to determine wrongfulness. In general, if a factual infringement has
taken place, this can already be an indication of, or pointer to, the wrongfulness
of the conduct: in other words, it can constitute prima facie wrongfulness, or
create a presumption of wrongfulness.
What is the connection between the boni mores test and the
viewpoint that wrongfulness lies in the infringement of a subjective
right or non-compliance with a legal duty?
Q&A by @yash0505 1

0
Infringement of a subjective right and breach of a legal duty as a test for

wrongfulness may be regarded as two practical applications of the general boni
mores test.
Briefly explain the role that the “reasonable person” plays in the
application of the boni mores test
Whether the defendant acted in violation of the legal convictions of the

community in the particular circumstances, is determined by asking whether the
reasonable person (of normal intelligence and development) would have
regarded the relevant infringement of interests as legally reprehensible in the
circumstances. The reasonable person therefore embodies or represents the
legal convictions of the community.
Describe, with reference to examples, the cases where the boni

mores test is applied as a supplementary criterion to determine
wrongfulness
Two main ways the general boni mores or reasonableness criterion is applied as
a supplementary test for wrongfulness.
• Firstly, in novel cases where there is no clear legal norm or ground of
justification involved.
• Secondly, for the purposes of refinement, especially in assessing
wrongfulness in borderline cases
Q&A by @yash0505 1

1
Study unit 6 – Wrongfulness: wrongfulness as infringement of

a subjective right

Is infringement of a subjective right the only test for wrongfulness?
No. It is one example of the practical application of the boni mores test. Another
example would be non-compliance with a legal duty to act.
Briefly distinguish between a legal subject and a legal object with

reference to examples
All people are legal subjects and holders of subjective rights. The holder of a
subjective right has a right to something (the legal object). For example, a legal
subject has a right to his car (legal object).
Briefly describe, with reference to examples, the dual relationship

that characterises every subjective right
The holder of a subjective right has a right to something, enforceable against

other people. Firstly there is a relationship between the legal subject and the
legal object, and secondly there is a relationship between the legal subject and
all other legal subjects. The legal subject has a right to his car (legal object) – the
subject-object relationship – enforceable against other persons – the subject-
subject relationship.
What is the content of the subject-object relationship in the case of

a subjective right?
The holding of the right confers powers or enjoyment, use, and disposal in
respect of the legal object.
What is the content of the subject-subject relationship in the case

of a subjective right?
The holder of the subjective right can uphold his powers over a legal object
against all other legal subjects, and a duty rests on all other legal subjects not to
infringe the relationship between the holder of the right and the object of his
right.
“For every right to which a person is entitled, somebody else has a

corresponding legal duty.” Briefly discuss the meaning of this
statement with reference to an example
Every right has a correlative duty. If I have a right to something, other persons
have a duty not to infringe my right. As owner, I have a right to my car, and all
other people simultaneously have a legal duty to honour my right by eg not
damaging or stealing my car.
Q&A by @yash0505 1
2
On what basis are subjective rights divided into categories and

named?
Rights are categorised and named with reference to the different types of legal
objects to which the rights relate.
Name the different classes into which subjective rights are divided
and indicate, with reference to examples, the objects of each
category of subjective right
• Real rights
o Tangible objects such as a farm, pen, car, compressed air in a
cylinder
• Personality rights
o Aspects of personality such as good name, physical integrity,
honour, privacy, and identity
• Personal rights
o Acts and performances such as delivery by the seller, payment by
a debtor, rendering of services by an employee
• Immaterial property rights
o Intangible products of the human mind which are expressed in
one or other outwardly perceptible form, such as invention, a
poem, or a work of art
• Personal immaterial property rights
o Intangible products of the human mind which are connected with
personality, such as earning capacity and creditworthiness)
Has the development of the doctrine of subjective rights reached

its conclusion? Discuss briefly
Nothing prevents further development or evolution of this doctrine. The recent

acknowledgement of new personality rights to privacy and to identity bears
testament to this. Even new categories of rights may be recognised, such as
personal immaterial property rights, which were identified and described
relatively recently.
How do subjective rights originate? Briefly discuss with reference

to an example
Subjective rights arise when the law recognises existing individual interests as
being worthy of protection.
What requirements must the object of an individual interest fulfill

before it can also be a legal object in terms of the doctrine of
subjective rights?
Q&A by @yash0505 1

3
Two conditions must be met.

• Firstly, it must be of value – that is relatively scarce – to the holder of the
right;
• Secondly, it must have such a measure of independence that it is
possible to dispose of it and enjoy it.
Briefly discuss the nature of the dual investigation that is necessary
to establish whether a subjective right has been infringed
To determine whether a right has been infringed:

• Firstly one must determine whether the relationship between the holder of
the right and the subject of the right has been infringed.
• Secondly, whether the infringement complained of took place in a legally
reprehensible way.
Briefly describe, with reference to examples, when the subject-

object relationship has, in fact, been infringed
Such a violation occurs mostly by means of an action impacting directly on the

legal object itself: the defendant, eg, crashes into the plaintiff’s car, or infringes
the plaintiff’s physical integrity by slapping his face, or injures the plaintiff’s
dignity by addressing humiliating words to him, or violates the plaintiff’s right to
privacy by peeping at him in his bathroom.
What requirement must be fulfilled before factual infringement of

the subject-object relationship can amount to violation of a
subjective right? Discuss briefly
The actual interference must take place in a legally impermissible manner. The
norm or standard used to determine whether an actual violation of the subject-
object relationship is legally impermissible or not remains the general
reasonableness criterion, which is established with reference to the legal
convictions of the community, ie the boni mores.
Q&A by @yash0505 1

4
Study unit 7 – Wrongfulness: wrongfulness as a breach of a

legal duty

Give two instances where the boni mores test finds practical
application in existing rules of law and legal doctrines
Two examples of the practical application of the boni mores yardstick (the test
for determination of wrongfulness which is an investigation into the legal
convictions of the community) are to be found in the view that wrongfulness
amounts to the infringement of subjective rights, or the non-compliance with a
legal duty to act.
What is the connection between the general test for wrongfulness

(the boni mores test) and the views that wrongfulness lies in either
the infringement of a subjective right or in the failure to fulfill a legal
duty?
Infringement of a subjective right and breach of a legal duty as a test for

wrongfulness may be regarded as two practical applications of the general boni
mores criterion.
What is the correlative of the statement that a holder of a right has

a right to his legal objects?
Other persons have a duty not to infringe that right.
Write short notes on the concepts of “legal duty” and “duty of care”
and indicate which of the two concepts is preferable when
translating the concept regsplig
It is preferable to use the term “legal duty” in English instead of “duty of care”.
The term “duty of care” may lead to confusion, as it is traditionally employed to
denote more than one meaning. Sometimes it relates to wrongfulness: to the
existence of a legal duty to take steps to prevent loss; on the other occasions it
relates to negligence: to the duty to take reasonable care by foreseeing and
preventing loss. This sometimes results in a failure to distinguish between two
fundamentally different elements of delict: wrongfulness, and fault.
Q&A by @yash0505 1

5
Study unit 8 – Wrongfulness: liability owing to an omission;

breach of a statutory duty

Briefly discuss the juridical importance of the difference between a
“commission” and an “omission”
Liability for an omission is in general more restricted than liability for a positive
act (a commission). For policy considerations, the law is hesitant to find that
there was a legal duty on someone to act positively and so prevent damage to
another.
“As point of departure it is accepted that there is no general legal

duty on a person to prevent the suffering of a loss by another”
(Minister van Polisie v Ewels). Briefly discuss this statement
As a general rule, a person does not act wrongfully for the purposes of the law
of delict if he omits to prevent harm to another person. Liability only follows if the
omission was in fact wrongful, and this will be the case only if a legal duty rested
on the defendant to act positively to prevent harm from occurring and he failed
to comply with that duty. The question of whether such a duty existed is
answered with reference to the criterion of the legal convictions of the
community and legal policy.
Mention 7 factors that can indicate that a legal duty existed to

prevent prejudice in the case of an omission
• Prior conduct (the omissio per commissionem rule)

• Control of a dangerous object
• Rules of law
• A special relationship between the parties
• A particular office
• Contractual undertaking for the safety of a third party
• Creation of the impression that the interests of a third party will be
protected
With reference to case law, briefly sketch the historical

development of a so-called prior conduct requirement for liability
for an omission. Indicate what role prior conduct plays in the
determination of liability for an omission according to the current
legal position
A person acts prima facie wrongfully when he creates a new source of danger
by means of positive conduct (commission) and subsequently fails to eliminate
that danger (omission). The view that “prior conduct” is an indispensable
requirement for liability for omissions prevailed in our law for a long time.
However in 1957 the “prior conduct” requirement was rejected in a minority
decision in favour of the preferred view that “prior conduct” was but one of
Q&A by @yash0505 1
6
several considerations which might indicate the existence of a legal duty. This
more flexible approach was later accepted by the Appellate Division, and
eventually expressed in Minister van Polisie v Ewels. In this judgment, the
generally accepted view that wrongfulness is in principle determined by the legal
convictions of the community has now been applied to omissions. The view that
“prior conduct” is but one of several considerations which might indicate the
existence of a legal duty, is the current legal position.
In a certain town, the pavements are in a poor condition due to

erosion. Several holes and furrows have developed in the
pavements. The municipality fails to repair the pavements, despite
requires to this effect by several of the residents. One day Mrs M,
an aged resident, inadvertently steps into a hole in a pavement,
falls, and suffers serious injuries for which she is hospitalised for a
month. Mrs M wishes to recover damages from the municipality in a
delictual action. Discuss only whether the conduct of the
municipality was wrongful. Refer in your answer to relevant case
law
This question deals with the wrongfulness of an omission. The basic question to
determine whether an omission is wrongful is whether a legal duty to act was
present and was breached. This is determined with reference to the legal
convictions of the community, or the boni mores. Factors which may serve as
indications that a legal duty rested on the defendant include: prior conduct
(omissio per commissionem); control of a dangerous object; rules of law; a
special relationship between the parties; particular office; contractual
undertaking for the safety of a third party; and creating of an impression that the
interests of a third person will be protected.
In the so-called municipality cases, prior conduct was considered to be a
prerequisite for the wrongfulness of an omission. Prior conduct refers to positive
conduct that created a new source of danger, preceding subsequent omission
to protect others from being harmed by this new source of danger. In Minister
van Polisie v Ewels, the court finally held that the existence of a legal duty is
determined by the boni mores, and whereas the presence of prior conduct is a
strong indication of the presence of wrongfulness, it is not a prerequisite thereof.
Interplay of different factors may also indicate the presence of a legal duty. If
these principles are applied to the given facts, we can probably conclude that
the omission of the municipality was indeed wrongful.
Briefly discuss the role that the following case played in the so-
called omissio per commissionem rule: Minister van Polisie v Ewels
See previous answer. This case represents the most important turning point in
the history of the so-called prior conduct requirement for liability for an omission.
According to our present legal position, is “prior conduct” still a

requirement for liability for an omission in the “municipality cases”
Q&A by @yash0505 1

7
Any doubt about the applicability of the decision in the Ewels case (that prior
conduct is not indispensable for the existence of a legal duty) to the
“municipality cases”, was removed by the Supreme Court of Appeal in Cape
Town Municipality v Bakkerud. The court held that the legal convictions of the
community could even in the absence of “prior conduct” (or a statutory duty)
place a legal duty on a municipality to, for instance, repair roads or sidewalks or
to warn against danger. Whether this is the case, depends on the
circumstances and must be determined ad hoc.
“The approach to liability for an omission in the Ewels case can

result in legal uncertainty.” Do you agree with this statement?
Discuss briefly
According to Amicus Curiae, the approach laid down in the Ewels case gives
too much discretion to the courts and may result in legal uncertainty. However
there is no doubt that the approach favoured in the Ewels case is correct, if one
looks at subsequent decisions in the courts.
Briefly discuss the role that control over a dangerous object plays
in the determination of delictual liability on the ground of an
omission
Control over a dangerous or potentially dangerous object can be a factor in

determining whether a legal duty rested on the person in control, to prevent
someone from being injured by the particular situation. Two questions are
relevant:
• Firstly, whether there was actual control and;
• Secondly, whether, in light of inter alia such control, a legal duty rested
on the defendant to take steps to prevent damage resulting from his or
her omission to exercise proper control.
There is dry grass on P’s farm. P fails to cut the grass. A fire
breaks out in the grass and spreads to his neighbour, Q’s farm,
where it causes some damage. Can P be held liable for Q’s
damage? Briefly discuss with reference to liability for an omission
Liability for an omission follows only if the omission was in fact wrongful, and this
will be the case only if a legal duty rested on P to act positively (by cutting his
grass) to prevent harm from occurring, and P failed to comply with that duty.
One of the factors that can indicate that a legal duty existed to prevent prejudice
in the case of an omission is control of a dangerous object. Firstly, there must
be actual control, and secondly, in light of such control there must be a legal
duty on the defendant to take steps to prevent damage resulting from his
omission to exercise proper control. P owns the potentially dangerous object of
property with grass that could spread fire, so he has control over it. P can
probably be held liable for Q’s damage because it will probably be considered
Q&A by @yash0505 1

8
that proper exercise of control of this object would be necessary with reference
to the legal convictions of the community.
In certain instances rules of law place an obligation upon a person

to perform certain acts. With reference to examples and case law,
discuss the role that such rules of law can play in determination of
liability for damage that has resulted from a failure to perform the
prescribed acts
In certain instances, the law (either common law or statute) places an obligation
upon a person to perform certain acts. As an example, common law obliges the
owner of lower land to provide laterl support for his neighbour’s land, and
owners of neighbouring land in local communities who light controlled fires on
their property are obliged to obey certain statutory precepts. If the neighbour
suffers damage as a result of their failure to perform this duty, their conduct is
prima facie wrongful. The conduct (omission) will be wrongful, not due to the
non-compliance with the statutory legal duty per se, but rather because it is
reasonable in the circumstances to compensate the plaintiff for the infringement
of his right. Reasonableness is determined with reference to the legal
convictions of the community and legal policy.
May a special relationship between parties be an indication that the

one had a legal duty towards the other to prevent damage? Briefly
discuss with reference to examples
Yes. The existence of a contractual relationship may indicate such a legal duty.
Other examples are the relationship between a policeman and a citizen, an
officer of the law and a prisoner, an employer and an employee, parent and
child, doctor and patient.
May a specific office held by a person be an indication that he/she

has a legal duty to prevent another from incurring loss? Discuss
briefly
Yes. Sometimes the person’s occupation or the office he holds places a legal
duty upon him to conduct himself in a particular manner in relation to the public
or certain people.
Discuss, with reference to an example, the role that a contractual

undertaking for the safety of a third party can play in the
determination of a legal duty to prevent loss
Where A enters into a contract with B in which A undertakes to take steps to

ensure the safety of C, A is placed under a legal duty towards C. If A then fails to
take those steps and C suffers damage as a consequence, the legal duty is
violated and A acts wrongfully in relation to C. This explains why an appointed
life-saver has a legal duty to rescue swimmers at a swimming pool or a beach.
Q&A by @yash0505 1

9
Is the existence of a legal duty always based on the presence of a

single factor?
No. The existence of a legal duty may often be ascribed to a single factor, but in
other cases several factors play a part.
X, a champion swimmer, is walking along the riverside when he

sees a child drowning. He fails to rescue the child from the water.
Owing to his failure to act, the child suffers serious brain damage
and becomes a quadriplegic. Did a legal duty rest on X to save the
child? Discuss with reference to case law
In the final analysis of whether a legal duty existed, we are dealing with the
determination of the reasonableness of the defendant’s failure to act in view of
all the circumstances of the case. It is not imperative that the omission in
question falls into one of the crystallised categories.
This well-known example of the champion swimmer may serve as an example.
In determining whether a duty rested on the swimmer to rescue the child, the
swimmer’s conduct cannot be classified under any of the stereotyped
categories that indicate a legal duty. Consequently, recourse must be had to the
general test for wrongfulness. By means of the boni mores test, a balancing
process must take place between, on the one hand, the interests of the
swimmer (eg, inconvenience and damage to his clothes) and, on the other hand,
the interests of the child (serious violation of his physical integrity) and the child’s
parent or guardian (great financial cost brought about by the child’s handicap).
Public interest also plays a part here. In view of all these circumstances, it must
be decided whether the swimmer’s omission, in the words of the Ewels case,
evokes not merely moral indignation but should also be regarded as wrongful
according to the legal convictions of the community and that he should
subsequently render compensation for the damage suffered. In this example, it
will probably be decided that a legal duty rested on the swimmer to take steps
to rescue the child. However, the scales may favour the defendant-swimmer if,
eg, it should appear that there were crocodiles in the vicinity and that he would
place his own life in danger were he to rescue the child; the law no longer
requires that a person regard another’s life as more important than his own.
What must the plaintiff prove, according to McKerron, in order to

establish that a breach of statutory duty by the defendant was
wrongful?
In order to establish wrongfulness, the plaintiff must prove the following:

a) That the relevant statutory measure provided the plaintiff with a private
law remedy;
b) That the plaintiff is a person for whose benefit and protection the
statutory duty was imposed;
Q&A by @yash0505 2

0
c) That the nature of the harm and the manner in which it occurred are such
as contemplated by the enactment;
d) That the defendant in fact transgressed the statutory provision; and
e) That there was a causal nexus between the transgression of the statutory
provision and the harm.
Q&A by @yash0505 2

1
Study unit 9 – Wrongfulness: grounds of justification –

defence

What is a ground of justification? Briefly discuss with reference to
an example
Grounds of justification are special circumstances in which conduct that

appears to be wrongful (because an actual violation of interests is present) is
rendered lawful (since there is no violation of a norm).
What is the connection between grounds of justification and the

general test for wrongfulness (the boni mores, or legal conviction of
the community)?
In reality, grounds of justification are nothing more than practical expressions of

the boni mores or reasonableness criterion with reference to typical factual
circumstances that occur regularly in practice.
Define “defence” with reference to an example
Private defence, or defence, is present when the defendant directs his actions
against another person’s actual or imminently threatening wrongful act in order
to protect his own legally recognised interests or such interests of someone
else. For example, A acts in defence if he hits B over the head to prevent B from
stabbing A with a knife.
Can self-defence be used as a synonym for defence? Discuss

briefly
No. Self-defence is a form of defence. However, the term self-defence is too

narrow to be used as a synonym for defence, because an act in defence may
also be executed in defence of someone else and of property.
X’s vicious dog attacks Y. Y shoots the dog in order to defend

himself against the dog’s attack. Can it be said that Y acted in
defence? Would your answer have been different if it appeared that
X had incited his dog to attack Y? Discuss briefly
No, because the attack must consist of a human attack, it means that
aggression by an animal does not qualify as an attack. Because an animal
cannot act for the purposes of delict, defensive action against attack by an
animal does not constitute defence. In such a case, necessity may be an
appropriate ground of justification.
One may indeed act in defence against a person who uses his animal merely as
an instrument of attack, such as someone who incites his dog to attack another.
In such an instance, the act of defence is in reality directed against human
conduct (attack).
Q&A by @yash0505 2
2
X, a plain-clothes policeman, arrests Y in the execution of a

legitimate warrant of arrest. Y believes that X is not a policeman
and resists arrest. Is Y acting in defence? Discuss briefly
Because the attack has to be wrongful, the test here is objective. An objective
test deals with the facts as they appear ex post facto and not with the defending
person’s subjective impression of the events. If the defending person
subjectively believes that he is in danger or that the attack is wrongful, but in
reality it is not, his defensive action does not constitute private defence and he
acts wrongfully. Someone who acts wrongfully because he incorrectly believes
that he is acting in private defence can still escape liability if he did not have fault
(intent or negligence).
A directs his pistol at B and threatens to shoot him. B grabs A’s

arm to prevent A from shooting him. To loosen his arm from B’s
grip, A jabs B in the ribcage with his elbow and cracks one of B’s
ribs. B institutes a claim against A for the medical treatment of the
injury to his rib. A alleges that he acted in defence because he
wanted to escape B’s grasp. Will A succeed with his appeal on
defence? Discuss briefly
A will not succeed. The attack must be wrongful. In the given example, the
“attack” by B against which A defended himself was not wrongful, but lawful,
because B himself acted in defence against A’s initial wrongful attack.
Can a person act in defence in circumstances where the person

has the alternative of protecting his interest by fleeing? Discuss
briefly
If the interest may be protected in some other, less detrimental way, the act of
defence is wrongful. Case law seems to be of the opinion that a person must
flee, unless such flight exposes him to danger, such as a shot in the back, or if
such flight would result in a policeman abandoning his duty to arrest a criminal.
Perhaps the requirement that there must be danger connected to flight is too
narrow. It should also not be expected of him to flee where flight will cause an
infringement of the interests of the attacked person, such as an impairment of
dignity resulting from the humiliation caused by flight.
A, a policeman, enters B’s premises without a valid warrant of

arrest. B grabs A, pulls him into the house, and punches him a few
times. Is B acting in defence? Discuss briefly
The act of defence must not be more harmful than is necessary to ward off the
attack. The value of the interests may differ. One may infringe a more valuable
interest to protect one of a lesser value. However, there an extreme imbalance is
unacceptable. The interests need not be similar in character, however, extreme
Q&A by @yash0505 2

3
imbalance is unacceptable. Also, the defence must be necessary to protect the

right, and if the interest may be protected in some other, less detrimental way,
the act of defence is wrongful. In this case I believe B’s act of defence is
wrongful.
Does the requirement of commensurateness of interests apply in

the case of defence? Discuss
No. The value of the interests may differ, and the interests need not be similar in
character. However, if an extreme imbalance of interests is the case, the
defensive act is unlawful.
In the case of defence, can a person protect his property by killing

the attacker? Discuss with reference to the majority decision by the
appeal court in Ex parte die Minister van Justisie: in re S v Van Wyk
Yes. All the judges in the case agreed that one may in principle rely on the
doctrine of defence when one has killed or injured another in order to protect
one’s property. The next question to be answered in the case was whether the
bounds of defence were exceeded. The cardinal question to be answered in
order to determine whether someone exceeded the bounds of defence, is
whether the steps actually taken by him constituted the only reasonable method
of warding off the attack. In this case, the majority found that Van Wyk had not
exceeded the bounds of defence because all other methods of defence were
not practical. They held that the setting up of the gun was the only reasonable
possibility if Van Wyk wished to protect his property.
Q&A by @yash0505 2

4

necessity

Define necessity
A state of necessity exists when the defendant is placed in such a position by

superior force (vis maior) that he is able to protect his interests (or those of
someone else) only by reasonably violating the interests of an innocent third
party.
X offers to take Y’s dog for a walk. X notices his sworn enemy, Z,
approaching him and incites Y’s dog to attack and bite Z. Z draws
his pistol and shoots Y’s dog dead on the spot. Y institutes the
actio legis Aquiliae against Z. Will Z be able to raise private
defence or necessity as a defence? Give a reason for your answer
with reference to the basic difference between defence and
necessity
Z will be able to raise necessity as a defence against Y. Necessity must be

clearly distinguished from private defence. The distinction is that when acting in
defence the actor’s conduct is directed at an attack by the wrongdoer. When
acting out of necessity, his conduct violates the interests of an innocent party.
The fact that X incited the dog means that the act was actually a human act by
X using the dog as an instrument, however, the dog is a legal object of Y’s, and
therefore by killing the dog Z violated Y’s (an innocent party) subjective right to
his dog.
Name, point by point, the different guidelines that can be

considered to establish whether there was a state of necessity
• The question at issue is whether a state of necessity really exists, not

whether it has been caused by human action, animals, or forces of
nature.
• The possible existence of a state of necessity must be determined
objectively.
• The state of necessity must be present or imminent.
• The defendant need not only protect his interests, but may also protect
the interests of others.
• Not only life or physical integrity, but also other interests, such as
property may be protected out of necessity.
• A person may not rely on necessity where he is legally compelled to
endure the danger.
• In general, the interest that is sacrificed may not be more valuable than
the interest that is protected.
• Homicide may be justified by necessity (S v Goliath)
• The act of necessity must be the only reasonably possible means of
escaping the danger
Q&A by @yash0505 2
5
Can a person base his defence on necessity where he was

personally responsible for the state of necessity? Discuss briefly
There is authority for both the view that a state of necessity created by the
defendant excludes a plea of necessity, and for the view that a person may rely
on necessity even though he has created the state of necessity. The latter view
appears to enjoy most support. Proponents of the view argue that the conduct
creating the emergency and the defensive act should be kept apart. If the
conduct creating the emergency constitutes a crime or causes damage, the
defendant should be held liable for it; nevertheless, such conduct should not
preclude him from acting out of necessity in order to escape from the
emergency.
A’s three-year-old child swallows a handful of pills. On the way, he

bumps B’s car. Afterwards it appears that the pills did no damage
to the child. B institutes the actio legis Aquiliae because of the
damage to his car. A’s defence is that he was acting in a state of
necessity. Will A succeed with this defence? Discuss briefly
The possible existence of a state of necessity must be determined objectively. It

must, therefore, be determined whether, seen objectively, the danger (state of
necessity) actually existed, or whether it was only subjectively present in A’s
mind. If the latter situation is the case, then A did not act in a state of necessity
and his actions were therefore wrongful (unless another ground of justification
exists). Fear on the part of A may either have a bearing on his accountability or
on the aspect of fault, but not on the wrongfulness of his conduct. This does
not, however, mean that he will necessarily be held liable for the damage, since
all the elements of a delict must be present to incur liability.
When is negotiorum gestio present? Discuss with reference to an

example
It is present where a person attends to the interests of another without the

latter’s permission: eg it would be lawful to break down one’s neighbour’s door
in his absence in order to switch off the water when the pipes in his roof have
burst and the house has been flooded.
X, Y, and Z are stranded on a small, uninhabited island. There is

fresh water on the island, but nothing to eat. Z is already very
weak. To stay alive, X and Y kill Z and eat him. Did X and Y act
wrongfully? Would it make a difference to your answer if X and Y
were picked up by a rescue boat one day later and, according to
the evidence of a doctor on board the rescue boat, they were
healthy enough to have survived several days without food, thus
making the killing of Z unnecessary? Discuss with reference to case
law.
Q&A by @yash0505 2

6
The question arising in the given facts is whether taking an innocent life in order
to save another life/other lives may be justified in necessity. The definition of
necessity is as follows: a person acts in necessity if he is placed in such a
position by a superior force that he can only protect his interests or those of
another person by harming an innocent third person. A principle applicable here
provides that the interests must be commensurate (unlike defence); in other
words, the interest that is sacrificed must not be more valuable than the interest
that is protected. The question of whether an innocent life may be sacrificed to
save another life is related to this principle. English case law originally answered
this question in the negative, and this position was followed in our law. However,
S v Goliath, by implication, answered this question in the affirmative. The facts
were that if X told Y that if Y did not help X to kill Z, X would kill Y. Y thereupon
helped X to kill Z and relied on necessity during the court proceedings. The
court said that most people value their own life more highly than that of another
person and that necessity could justify homicide. The minority judgment held
that fault could have been excluded, but not wrongfulness.
Applying these principles, the defendants may rely on necessity and a strong
argument could be made that they did not act wrongfully on the strength of the
Goliath case.
The answer would be different if it transpired that they would have been rescued
in time. The state of necessity must really objectively be present. The
defendants’ conduct would therefore have been wrongful. However, their
misguided impression that they were acting in necessity (known as putative
necessity) may exclude fault on their part.
Can a defendant rely on necessity where he was legally compelled

to endure the danger? Briefly discuss with reference to an example
No. The fact that the law compels him to endure the state of necessity means
that he lacks the power to avoid it. In this connection, eg, a landowner may not
alter the natural flow of water on his land so that it causes damage to others,
even where his own interests are threatened by flood waters.
Is it a prerequisite that a defendant, who can escape from danger

by fleeing, should flee, rather than prejudice another’s interests?
The act of necessity must be the only reasonably possible means of escaping
the danger. If the defendant can escape from the emergency by fleeing, he must
do so.
X, brandishing a hunting knife, tells Y that if Y does not help him

kill Z, X will kill Y. Y hits X over the head with a blunt object. X
suffers a severe concussion. What ground of justification may Y
raise if X institutes a delictual action against Y? Substantiate your
answer
Q&A by @yash0505 2

7
The facts are of such a nature that we must consider two grounds of
justification, namely private defence and necessity. Private defence is present
when the defendant directs his actions against another persone’s actual or
imminently threatening wrongful act in order to protect his own legitimate
interests of such interests of someone else. Private defence will be present if
thre following requirements are met: (1) the defence must be directed against
the aggressor; (2) the defence must be necessary to protect the threatened right
and this implies that there must be no reasonable alternative to the act of the
defence; and (3) the act of defence must not be more harmful than is necessary
to ward off the attack. Requirement (3) implies that there must be a measure of
proportionality between the attack and the defending act, although absolute
proportionality is not required; the value of the protected interest and the
sacrificed interest may differ; the interests need not be similar in character; and
the means of defence employed by the defender need not be similar to those of
the attacker.
Necessity, on the other hand, exists when the defendant is placed in such a
position by a superior force that he is able to protect his interests or those of
someone else only by reasonably violating the interests of an innocent third
party. The most important difference between private defence and necessity is
the fact that private defence is directed at an attack by a wrongdoer, whereas
when acting out of necessity, the interests of an innocent third party are
prejudiced. In other words, if the plaintiff was an attacker, private defence may
be applicable, whereas if the plaintiff was an innocent person, necessity may be
applicable. From the above it is clear that private defence is the appropriate
ground of justification in our set of facts. Y harmed the interests of X, and X was
certainly no innocent third person. On the contrary, X had directed wrongful
attacks or imminently threatening attacks on both Z and Y. If, on the other hand,
Y had assisted X to harm Z, and Z somehow survived and instituted a delictual
claim against Y, it would have been appropriate to consider whether necessity
was applicable (compare the facts of S v Goliath).
Q&A by @yash0505 2

8

provocation

Explain the meaning of the concept of provocation with reference
to examples
Provocation is present when a defendant is provoked or incited by words or

actions to cause harm to the plaintiff.
Example: X insults Y and Y returns the insult. Alternatively X assaults Y,
whereupon Y assaults X. Should X now institute a claim against Y, Y relies on
provocation: he claims that X provoked (enticed) him and that for this reason X’s
claim should fail.
Is provocation a ground of justification or a ground of exclusion for

fault? Briefly discuss with reference to case law
In our opinion, provocation is a ground of justification, which renders the

defendant’s conduct lawful. The defence of provocation is assessed by
objectively weighing the provocative conduct against the reaction to it, using the
criterion of reasonableness (boni mores). This is clearly the same criterion that is
used for determining wrongfulness, therefore the assumption that provocation
excludes wrongfulness and not fault. Another opinion is that provocation may
affect the defendant’s mental capacity so as to exclude fault, and also that the
plaintiff’s claim for damages may be diminished or even extinguished as a result
of the provocative conduct.
Explain, with reference to an example, the difference between

provocation and private defence
The main difference is that conduct resulting from provocation is basically an act
of revenge that takes place after the termination of the provocation, whereas an
act of defence takes place in defence of a wrongful act that has not yet been
terminated.
A swears at B, C’s friend. C starts swearing back at A. Can C’s

conduct fulfill the requirements for provocation? Discuss briefly
Yes. It is irrelevant that the provocative words were not aimed directly at C; he
need only prove that those words motivated him to retaliate against them.
Assume that the facts are the same as in the previous question, but
that in this case B slaps A’s cheek. Can B’s conduct fulfill the
requirements for provocation? Discuss briefly
As a general rule, provocation is not a complete defence where provocative

words preceded a physical attack. Such provocation may nevertheless have the
Q&A by @yash0505 2

9
effect of mitigating damages. However, in the given facts, B will most probably
not succeed in proving provocation.
Without any warning, X slaps Y hard on the face. When Y tries to

hit back at X, the latter runs away. When Y encounters X an hour
later, Y is still so angry and therefore strikes X’s cheek. X feels
deeply injured and institutes the actio iniuriarum against Y on the
ground of physical assault. Can Y succeed with provocation as a
ground of justification? Discuss briefly.
Y’s defence of provocation will fail because his counter-attack did not follow
immediately on X’s attack.
Write a short note on the meaning of the concept compensatio
This principle means that where two persons have defamed or insulted each
other in such a manner that the one instance of defamation or insult is not out of
proportion to the other, the two iniurariae cancel or neutralise each other.
Q&A by @yash0505 3

0

consent

Briefly explain the meaning of the following concepts (using
examples where possible). Also explain the similarities and
differences between them, as well as their effect on the possible
liability of the defendant: a) consent to injury; b) consent to the risk
of injury; c) volenti non fit iniuria; d) voluntary assumption of risk; e)
contributory intent; f) contributory negligence
a) Consent to injury
The injured party consents to specific harm: A, eg, consents to B’s
removing his appendix; C consents to D’s using his pen; E consents to
his barber, F, cutting his hair.
b) Consent to the risk of injury
The injured party consents to the risk of harm caused by the defendant’s
conduct: A consents to the risk that the operation, performed by B on
him, may have a side-effect; a participant in sport consents to the risks
involved in such a sport: a rugby player accepts the risk that he may be
injured in a tackle; a boxer that a blow may paralyse him; etc. Should the
risk contained in the operation or the sports injuries in fact ensue, the
injured person will not be able to hold the defendant delictually liable,
because he has consented to the risk of such harm.
c) Volenti non fit iniuria
The principle that a defendant is not liable where the injured person has
consented to injury or the risk thereof. This maxim is used as a common
concept to describe both forms of consent (consent to injury and
consent to risk of injury).
d) Voluntary assumption of risk
Sometimes used to imply consent to the risk of injury (a ground of
justification) and sometimes to refer to contributory intent (a ground
excluding fault or culpability). Voluntary assumption of risk in both its
forms (consent to the risk of injury, and contributory intent) constitutes a
complete defence excluding delictual liability.
e) Contributory intent
A ground excluding fault or culpability. It constitutes a complete defence
excluding delictual liability. A distinction must be made between
contributory intent and:
f) Contributory negligence
This is not a ground of justification, nor is it a complete defence excluding
delictual liability. The claim of the plaintiff who is guilty of contributory
negligence may be reduced by the court in accordance with the degree
of his contributory negligence.
List the characteristics of consent as a ground of justification
Q&A by @yash0505 3

1
• Consent to injury is a unilateral act. Therefore the consent need not

necessarily be made known to the defendant.
• Consent is a legal act that restricts the injured person’s rights. To qualify
as a legal act, the consent must be apparent, or manifest, in other words
it must be brought to light. Consent will not be held to exist if it is not
evident.
• Consent may be given either expressly (eg by words), or tacitly (eg by
conduct).
• Consent must be given before the prejudicial conduct; “approval” given
after the act is not consent, but may amount to an undertaking not to
institute an action against the defendant (a pactum de non petendo).
• As a rule, the prejudiced person himself must consent; only in exceptional
circumstances may consent to prejudice be given on behalf of someone
else.
List the requirements for legally valid consent
• Consent must be given freely or voluntarily.

• The person giving the consent must be capable of volition – intellectually
mature enough to appreciate the implications of his acts and must not be
mentally ill or under the influence of drugs that could hamper the
functioning of his brain. Does not mean he must have full legal capacity
to act.
• The consenting person must have full knowledge of the extent of the
(possible) prejudice – especially where consent to the risk of harm is
concerned.
• The consenting person must realise or appreciate fully what the nature
and extent of the harm will be.
• The person must in fact subjectively consent to the prejudicial act.
• The consent must be permitted by the legal order; in other words, the
consent must not be contra bonos mores.
X’s secretary, Y, commits an offence. X gives her a choice: either Y

agrees to a hiding, or she will be fired. Y chooses the former option
and X gives her the hiding. Y institutes the actio iniuriarum against
X. Will X succeed with a defence based on consent? Briefly discuss
No, X will not succeed. Consent must be given freely or voluntarily. Should the
person be forced in some way to “consent” to the prejudice, valid consent is
absent. Also, consent to bodily injury is, in principle, contra bonos mores.
Anna would like to have her earlobes pierced so that she can wear
fashionable earrings. Andrew, her boyfriend, who is a third-year law
student, offers to do this for her. She is only too happy to accept
this offer. The procedure goes quite well, but a few days later the
wounds have turned septic and medical treatment is necessary.
Anna ends the relationship and institutes a delictual action for
Q&A by @yash0505 3

2
infringement of personality interests and to recover medical costs

against Andrew. Andrew wishes to raise consent as a ground of
justification. What are the merits of his defence? Substantiate your
answer
This question deals with consent as a ground of justification, that is, a defence
that eliminates the element of wrongfulness. Two types of consent are known,
namely consent to injury and consent to the risk of injury, but the applicable
principles are largely the same. From the facts it is clear that Anna accepted
Andrew’s offer to have her ears pierced; therefore, at face value, it appears that
Anna may have consented to the risk of injury. However, to determine whether
this is really so, we need to consider the requirements of consent: (a) consent
must be given freely and voluntarily; (b) the person giving consent must be
capable of volition; (c) the person must have full knowledge of the nature and
extent of the prejudice; (d) the person must realise or appreciate fully what the
harm entails, in other words, she must understand it; (e) the person must in fact
subjectively give the consent; and (f) the consent (not the harm consented to,
but the consent itself) must not be contra bonos mores. Consent to bodily injury
is usually contra bonos mores. Exceptions are recognised in two instances.
Firstly, in the course of medical treatment, a person may consent to bodily injury
without the consent being contra bonos mores. Castell v De Greef constitutes
authority for this form of consent. Organised sport is the second class of
exception where consent to (the risk of) bodily injury is not contra bonos mores.
Boshoff v Boshoff is an example of this. Furthermore, if the bodily injury is of a
minor nature, consent to such injury may also be allowed. If we apply these
principles to the facts, we may argue that the harm caused was bodily injury,
that it was not trivial in nature or very minor in nature, because septic wounds
can be serious, and that the consent was therefore contra bonos mores and
thus invalid. On the basis of this argument, Andrew’s conduct was wrongful
and, if all the other delictual requirements are also present, Anna would be
successful with her claim. On the other hand, if Anna was unaware of the
possible complications of ear piercing, it could be argued that she did not have
full knowledge of the nature and extent of the harm or the risk thereof; on this
account, it is possible to conclude that she did not consent. Hence Andrew’s
conduct is wrongful and Anna’s claim may succeed.
Briefly discuss the importance of the decisions in Boshoff v Boshoff

and Castell v De Greef for consent as a ground of justification
In Boshoff v Boshoff, the plaintiff was struck on the head by his opponent’s
racket during a squash game, resulting in an injury to his eye. The court rejected
the plaintiff’s claim for damages on the ground that he had consented to the risk
of injury and that the consent was not contra bonos mores.
In Castell v De Greef, the test in the court a quo for the extent of the doctor’s
duty to inform the patient of any material risks connected to the treatment was
established as the reasonable doctor test. In an appeal, the reasonable patient
Q&A by @yash0505 3

3
test was preferred: the doctor’s duty to inform is to be established with

reference to the needs and expectations of the particular patient rather than the
insights of the medical profession (as with the reasonable doctor test).
The Boshoff and the Castell case are both authorities for the exception to the
general principle that consent to bodily injury is contra bonos mores.
Briefly discuss the pactum de non petendo with reference to an

example
A pactum de non petendo is a contractual undertaking not to institute an action

against the actor, ie, not to hold the actor liable. In these cases, there is no
doubt that the actor committed a delict, but the prejudiced person undertakes
not to hold the actor liable. Wrongfulness is thus not excluded in such cases;
only the resultant action is.
Q&A by @yash0505 3

4

statutory authority, official capacity, official command, and
power to discipline

Discuss the guidelines applied by the court to determine whether
legislature intended to authorise an infringement of interests
i. If the statute is directory, it is clear that an infringement of private interests

is authorised. The injured person is consequently not entitled to
compensation unless the statute specifically provides for it.
ii. If the statute is not directory but permissive, and if the statute makes no
provision for the payment of damages, there is a presumption that the
infringement is not authorised. (If provision is made for compensation, it is
generally accepted that the injured party is entitled to that compensation
only.)
iii. The presumption referred to in (ii) falls away if the authority is entrusted to
a public body acting in the public interest.
iv. If the authorised act is circumscribed and localised (eg, building a dam in
a certain place or constructing a railway line between to specific points),
there is a presumption that the infringement is authorised.
v. If the authorisation is permissive and general, not localised, and does not
necessarily entail an infringement of private interests, the only possible
inference is that the legislature did not intend that private interests should
be infringed.
Discuss the considerations to be borne in mind when determining

whether the act authorised by the legislator has exceeded the
bounds of authority
To determine whether the permitted act fell within the boundaries of the
authorisation, the following are taken into account:
i. It must not have been possible for the defendant to exercise the powers
without infringing the interests of the plaintiff. (The onus is on the
defendant)
ii. The defendant’s conduct must have been reasonable; in other words, it
must not have been possible to prevent or limit the damage by other
reasonably feasible measures or methods.
Briefly discuss official capacity as a ground of justification
Certain public officials, such as law enforcement officers and judicial officers, are
obliged by law to perform certain acts. Should they cause damage in the
process, their conduct will be justified and consequently they will not be liable.
Should such an official exceed his authority, he acts unreasonably and therefore
wrongfully and may be held liable.
Q&A by @yash0505 3

5
X, an officer in the defence force, orders Y, a private under his

command, to shoot Z and kill him (X believes that Z is on the point
of throwing a hand grenade at some innocent bystanders). Y
shoots and wounds Z. Afterwards it appears that X made a mistake
and that Z merely wanted to blow his nose. Z institutes a claim
against Y. Y raises official command as ground of justification. Can
Y succeed with this defence? Discuss briefly
A soldier must obey all lawful orders and, in doing so, must do no more harm
than is necessary to execute the particular order. Where, however, orders are
obviously beyond the scope of the authority of the officer issuing them, and are
so manifestly and palpably illegal that a reasonable man in the circumstances of
the soldier would know them to be manifestly and palpably illegal, he is justified
in refusing to obey such orders.
If the soldier, however, obeys such a manifestly and palpably illegal order, then
he will not succeed in the defence of official command.
In the given example, X’s command was, objectively viewed, illegal (wrongful).
The fact that X suspected (subjectively) that Z intended to kill the bystanders
does not render the command lawful: putative defence is not a defence.
Therefore Y acted by executing a wrongful command. The next question is,
therefore, whether the command by X was manifestly and palpably illegal. This is
not clear from the given facts, but if that were the case, then Y would not
succeed with his defence.
Briefly discuss the factors that must be taken into consideration

when determining whether chastisement was moderate and
reasonable
According to case law, the following factors must be considered when

determining whether the punishment was moderate and reasonable:
a) The nature and seriousness of the transgression;

b) The degree of punishment or force inflicted;
c) The physical and mental condition of the person punished;
d) The gender and age of the child;
e) The physical disposition of the child;
f) The means of correction, and
g) The purpose and motive of the person inflicting the punishment.
Can a teacher rely on power to discipline after having meted out

corporal punishment to a pupil?
No. The South African Schools Act prohibits corporal punishment in all schools.
This form of punishment may therefore not be meted out by school principals,
teachers, and persons in charge of school hostels.
Q&A by @yash0505 3

6
Study unit 14 – Wrongfulness: abuse of rights; nuisance

What notion underlies the so-called doctrine of abuse of rights?
Explain briefly
The notion that the exercise of a right or a power may take place in a manner or
in circumstances which render such exercise wrongful; in other words, that the
actor may exercise his rights in a legally impermissible manner and thus “abuse”
them.
Is the following statement correct: “A property owner can do

exactly as he pleases on his property”? Briefly discuss with
reference to case law
No. In Gien v Gien it was expressed that the absolute power of an owner is
limited by the restrictions imposed thereupon by the law. These restrictions can
either flow from the norms of the law or they may consist of restrictions imposed
by the rights of other persons.
What role does malice (animus vicino nocendi) play in the doctrine
of the abuse of rights? Discuss, referring to common law and case
law
In considering the reasonableness of the wrongdoer’s conduct, his mental

disposition plays an important role (Gien and Regal cases). The presence of
malice on his part may be a strong indication of the unreasonableness of his
conduct. Although the reasonable utilisation of a person’s property cannot be
termed unreasonable merely because of an intention to prejudice another, in
many instances it is extremely difficult to determine to what extent a wrongdoer
promoted his own reasonable interests. In such a case, the wrongdoer’s own,
subjective view of the reasonableness of his conduct may be an important aid: if
he did not consider his conduct to be a reasonable way of advancing his
interests (and this will necessarily be the case where his exclusive aim is to injure
the prejudiced person), he can hardly complain if his conduct is considered
unreasonable.
For this reason, conduct with the exclusive aim of harming a neighbour (animus
vicino nocendi) (eg the conduct of a person who builds a chimney with the
exclusive purpose of obstructing his/her neighbour’s view) is, as a general rule,
wrongful. In other words, an improper motive renders an act, which would have
been lawful but for such motive, wrongful if it prejudices a neighbour without
benefiting the actor in any way (Gien case). Where the wrongdoer harms his
neighbour in advancing his own reasonable interests, he does not act
wrongfully, even if he has the improper motive to harm his neighbour in the
process. Improper motive in itself is therefore insufficient to convert lawful
conduct into a wrongful act. However, where the wrongdoer acts unreasonably
(eg where the benefit that he derives from his conduct is exceptionally slight,
Q&A by @yash0505 3

7
but, on the other hand, the nature of his conduct is very far-reaching and the
harm caused to his neighbour relatively serious), he exceeds the bounds of
reasonableness and acts wrongfully, despite the fact that he had no intention to
harm his neighbour. Any use to which an actor puts his property, in which he
fails to advance his reasonable interests, is thus wrongful, whatever his motive
may be.
Briefly give the main principles (or primary guidelines) that can be
used to determine whether there was an abuse of rights in a
particular case
a) As a general rule, the owner of immovable property may use his property
as he sees fit, as long as he acts within the bounds placed by the law on
his powers of ownership.
b) Given that an owner is not completely free to utilise his property as he
wishes, his interests in exercising his right of ownership must be weighed
against the interests of his neighbour.
c) The basic question is still one of wrongfulness; it concerns the reasonable
or unreasonable utilisation by the defendant of his property.
d) Where the benefit which the actor derives from his conduct is
exceptionally slight but, by contrast, the nature of his conduct is very
drastic and the harm caused to his neighbour is relatively serious, he
exceeds the bounds of reasonableness and acts wrongfully. Such an
unreasonable act is wrongful despite the fact that the actor did not intend
to harm his neighbour; any use of property which fails to advance
reasonable interests is thus wrongful, whatever the motive of the actor
may be.
e) Where the actor harms his neighbour in the process of advancing his
own reasonable interests, he does not act wrongfully even if he intends
(or has the improper motive of) harming his neighbour in the process.
Improper motive is in itself insufficient to convert lawful conduct into a
wrongful act.
X and Y are neighbours. Because X does not like Y, X builds a large

shed on his property in order to spoil Y’s beautiful view. It appears
that X did indeed need a shed, but that he could easily have built it
elsewhere. Did X act wrongfully? Briefly discuss with reference to
case law
To establish whether X’s conduct was wrongful towards Y, it must be

determined whether X exceeded his capacity as owner (whether he “abused” his
right). This question must be answered in terms of what is reasonable and fair.
This question must be answered in terms of what is reasonable and fair. The
following guidelines may play a role in considering the reasonableness of X’s
conduct:
Q&A by @yash0505 3

8
a) X acts lawfully if it is found that he harmed Y in the process of furthering

his own reasonable interests, even if he had the motive of harming his
neighbour, Y, in the process. Therefore, improper motive in itself is
insufficient to convert lawful conduct into a wrongful act.
b) If, on the other hand, it is found that X acted unreasonably (eg because
the benefit that X would derive from building the shed on the particular
spot would be exceptionally slight, while the nature of his conduct and
the harm caused to Y would be relatively serious), he exceeds the
bounds of reasonableness and acts wrongfully (even if he had no motive
to harm Y). Any use to which a owner puts his property, in which he fails
to advance his reasonable interests, is wrongful, whatever his motive may
be.
c) If it is not possible to determine whether X’s conduct was reasonable or
unreasonable, X’s own subjective view (in so far as it can be ascertained)
of the reasonableness of his conduct may be an important aid: if he
himself does not consider his conduct to be a reasonable way of
advancing his interests (and this will necessarily be the case where his
exclusive aim is to injure Y), he can hardly complain if his conduct is
considered unreasonable.
X’s conduct was probably lawful: the prejudice suffered by Y as a result of the
building of the shed was probably, proportionally, not unreasonably greater than
the benefit derived by X from building the shed on that particular spot. In
addition, it was not X’s exclusive aim to harm Y. Consequently, X did indeed
further a reasonable interest of his own and thus acted lawfully.
Give a few examples of nuisance that have occurred in practice
Examples of nuisance include repulsive odours; smoke and gases drifting over
the plaintiff’s property from the defendant’s land; water seeping onto the
plaintiff’s property; leaves from the defendant’s trees falling onto the plaintiff’s
premises; slate being washed down-river onto the plaintiff’s land; a disturbing
noise; a blinding light being directed onto a neighbouring property; de-stabilising
a common wall by piling soil against it; an excessive number of golf balls landing
on a neighbouring property; overhanging branches and foliage; an electrified
fence on top of a communal garden wall; blue wildebeest transmitting disease to
cattle on neighbouring ground; and occupants of structures on neighbouring
land allegedly causing a nuisance.
Q&A by @yash0505 3

9
Study unit 15 – Fault: general; accountability; intent

Name the two forms of fault
• Intention (dolus)
• Negligence (culpa in the narrow sense)
X, Y’s archenemy, corners Y unexpectedly with the intention of

shooting him with his shotgun. However, Y is much quicker than X
and draws his own firearm. Before wounding X in the chest, Y
relishes the opportunity that X has afforded him to take a shot at
him (X). Can we assert that Y’s conduct is accompanied by fault
(intent) in this case?
A person can be legally blameworthy – that is, to be at fault – only for wrongful
conduct. As Y’s conduct can be regarded as an act of self-defence (a ground of
justification) he was protecting his own life against an immediate wrongful
attack, and his conduct was lawful. Y’s reprehensible state of mind is therefore
irrelevant, because wrongfulness is absent.
Complete the following table by indicating which form of fault

can/should be present when instituting each action:
Actions Intent Negligence

Actio legis Aquiliae Need not be present, but Must be present for
if it is then it will suffice liability unless intent is
for liability* present
Actio iniuriarum Generally required for Generally insufficient for
liability** liability**
Action for pain and Need not be present, but Must be present for
suffering if it is then it will suffice liability unless intent is
for liability present
* The assumption is that it is easier to prove negligence (objective test) than it is

to prove intent (subjective test). Therefore, when instituting a claim based on the
actio legis Aquiliae, a person will usually not try to prove the more difficult form of
fault, namely intent, but rather negligence.

** We say “generally” because there are exceptions where the actio iniuriarum
can be instituted without having to prove intent. See, for instance, the liability of
the press for defamation – this will be studied later.
When is a person accountable?
A person is accountable (culpae capax) if he has the necessary mental ability to

distinguish between right and wrong and if he can also act in accordance with
such appreciation.
Q&A by @yash0505 4
0
Discuss the possible effect of the following factors on

accountability: (a) youth; (b) mental disease or illness; (c)
intoxication; and (d) provocation
a) Youth
Child who has not completed 7th year is always lacking capacity.
Child over seven but under 14 – rebuttable presumption lacking capacity.
b) Mental disease or illness
Where, because of a mental disease or illness, a person cannot at a
given moment distinguish between right and wrong, or where he is able
to make such a distinction but cannot act in accordance with his
appreciation of the distinction, he is culpae incapax.
c) Intoxication
Intoxicated persons may also be culpae incapax. However, the mere
consumption of liquor or use of drugs may in a given situation be a
negligent act for which the defendant may be held responsible.
d) Provocation
Where a person under provocation loses his temper and becomes
passionately angry, he may be said to lack accountability and will thus
not be blamed for his (“intentional”) conduct. However, as already stated,
provocation in our law is often regarded as a ground of justification.
Define intent with reference to its two elements
An accountable person acts intentionally if his will is directed at a result, which

he causes while conscious of the wrongfulness of his conduct.
The two elements are: direction of the will, and consciousness (knowledge) of
wrongfulness.
Name and briefly describe the three forms of intent with reference
to examples
1. Direct intent (dolus directus)

This form of intent is present where the wrongdoer actually desires a
particular consequence of his conduct. Eg X decides to shoot and kill Y
in order to take Y’s money. The execution of this plan is accompanied by
direct intent because it is X’s desire or plan that Y should die.
2. Indirect intent (dolus indirectus)
This form of intent is present where a wrongdoer directly intends one
consequence of his conduct but at the same time has knowledge that
another consequence will unavoidably or inevitably occur. The causing of
the second consequence is accompanied by indirect intent. Eg X desires
to shoot and kill Y who is standing behind a closed window. The bullet
aimed at Y first shatters a windowpane and then fatally wounds Y. In
respect of Y’s death, it is clear that X had direct intent; but the same
Q&A by @yash0505 4

1
cannot be said about the destruction of the windowpane – X definitely did

not desire to break the window. Nevertheless, X realised that it was an
inevitable or necessary consequence of his shooting Y and therefore in
relation to the breaking of the window, indirect intent is present.
3. Dolus eventualis
This form of intent is present where the wrongdoer, while not desiring a
particular result, foresees the possibility that he may cause the result and
reconciles himself to this fact; ie, he nevertheless performs the act which
brings about the consequence in question. The wrongdoer must have
actually subjectively foreseen the possibility. Eg X wants to kill his enemy
Y. Z is standing next to to Y when X takes aim. X actually foresees the
possibility that his shot may miss Y and hits Z. The conclusion is that X
shot Z intentionally, even though he did not desire this consequence or
foresee it as a necessary consequence of his conduct.
Note, however, that although a distinction is made between the different forms
of intent, it is irrelevant which one is present in a particular case. As a rule, no
specific consequences are attached to a given form of intent. The fact that the
law distinguishes between different forms of intent is important in understanding
how wide the concept of intention is in the law.
A breaks the windscreen of B’s car in order to steal his car radio.
Because it was not A’s aim to break the windscreen (his aim was to
steal the radio), he did not have intent in respect of breaking the
windscreen. Is this statement correct? Discuss briefly
This statement is incorrect. B had indirect intent. In acting, he intended to steal

the radio but at the same time had knowledge that another consequence, the
breaking of the window, would unavoidably or inevitably occur as a result of his
conduct. He therefore had indirect intent with regard to the breaking of the
window.
A plants a limpet mine in a busy shop and disappears. An hour

later the limpet mine explodes and three people are injured.
Because A did not know who his victims were (or how many there
would be), he did not have intent in respect of their injuries. Is this
statement correct? Discuss briefly
This statement is incorrect. Any form of intent which has a specific person or
object in mind is referred to as definite intent (dolus determinatus).
Any form of intent which has no specific person or object in mind is referred to
as indefinite intent (dolus indeterminatus).
A has therefore has indefinite intent, if it can be shown that he has either direct
intent, indirect intent, or dolus eventualis, in the situation.
What does the concept “consciousness of wrongfulness” mean?
Q&A by @yash0505 4

2
Knowledge of wrongfulness as a requirement of intent indicates that it is

insufficient for the wrongdoer to merely direct his will at causing a particular
result. He must also know (realise) or at least foresee the possibility that his
conduct is wrongful (ie contrary to law or constituting an infringement of
another’s rights).
Discuss mistake as a ground for exclusion of fault
A mistake with regard to any matter that has a bearing on the wrongfulness of
the actor’s conduct, will exclude intent on his part because it will exclude his
knowledge of wrongfulness, which is a requirement of intent. It is submitted that,
in accordance with new developments in the field of criminal law, it must be
accepted as a general rule that for the purposes of delictual liability any mistake
with regard to either a relevant fact or to the law excludes intent.
Distinguish between intent and motive
In general, motive indicates the reason for someone’s conduct and must not be
confused with intent. Intent is a technical legal term that denotes willed conduct
which the wrongdoer knows is wrongful. Motive, on the other hand, refers to the
reason why a person acts in a particular way. A person may thus, despite the
fact that in his opinion he has a good motive, still act with intent (eg where he
kills another in order to spare him suffering). By contrast, intent may be absent in
the case of a person who has a bad motive but believes his conduct is lawful.
Does a person act intentionally if the result occurred in a manner

that differed from what he envisaged?
This deals with mistake concerning the causal chain of events. If there is a
material deviation from the planned or foreseen causal nexus, intention is
absent. If there is an immaterial deviation from the planned or foreseen causal
nexus, intention is present.
Q&A by @yash0505 4

3
Study unit 16 – Fault: negligence

State the test for negligence with reference to its formulation in
Kruger v Coetzee
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.
Can negligence and intent overlap? Discuss briefly
According to Van der Merwe and Olivier’s definition, intention and negligence
are mutually exclusive. However there are decisions in which it was stated that if
intent is present, negligence is included in the intent.
It was decided that where a person has intentionally killed another, they may be
convicted of culpable homicide for which negligence is a requirement.
One may argue that the intentional causing of harm to another person is
contrary to the standard of care which the reasonable person would have
exercised and that negligence is thus simultaneously present. This view is
preferred.
Is it necessary to differentiate between ordinary and gross

negligence? Discuss briefly
Sometimes it is important to differentiate between ordinary and gross

negligence. Although it makes no difference for Aquilian liability whether the
defendant acted with slight or gross negligence, some statutory provisions limit
liability to instances of “gross negligence”, and some contractual exclusionary
clauses also refer to this concept.
Differentiate between negligence and omission
Negligence as a form of fault (culpability) must not be confused with an

omission, which is a form of conduct. An omission can indeed be performed
intentionally or negligently; moreover, a positive act can be negligent.
Write short notes on the general characteristics of the reasonable

person (diligens paterfamilias)
The reasonable person is merely a fictitious person. The reasonable person is

not an exceptionally gifted, careful, or developed person; neither is he
Q&A by @yash0505 4

4
underdeveloped, nor someone who recklessly takes chances or who has no

prudence. There is only one abstract, objective criterion, and that is the Court’s
judgment of what is reasonable, because the Court places itself in the position
of the diligens paterfamilias.
“Since 1965, South African case law has followed a new approach
in respect of the negligence of child wrongdoers”. Discuss
See discussion of the following question.
Danny, a thirteen-year-old boy, kicks a rugby ball in a suburban

garden. The ball breaks the window of a neighbouring house and
smashes a priceless vase from the Ming dynasty. Was Danny
negligent? Discuss with reference to case law
Before Jones NO v Santam Bpk, the negligence of a child used to be

determined with reference to a reasonable child standard. In the Jones case, the
court held that the test for negligence remains objective, and the reasonable
person test (also known as the diligens paterfamilias test) must be employed in
the case of a child wrongdoer. The youthfulness of the child wrongdoer is not
specifically considered here. However, during the inquiry into the accountability
of the child, his youthfulness is taken into account. The Jones case was
criticised on two accounts: firstly, many are of the opinion that a reasonable
adult standard for a child wrongdoer is unfair; secondly, the court put the cart
before the horse by testing for negligence first and thereafter accountability. In
Roxa v Mtshayi the court followed the correct order. In Weber v Santam
Versekeringsmaatskappy, the Jones case was confirmed in essence and the
court said that if the principles were applied with insight, the criticism would fall
away. In Eskom Holdings Ltd v Hendricks, the court reiterated that in each case
it must be determined whether the child had attained the emotional and
intellectual maturity to appreciate the danger to be avoided and to act
accordingly. In respect of accountability, a child of seven or younger is
irrebuttably presumed to be culpae incapax, whereas a child over seven, but
under fourteen, is rebuttably presumed to be culpae capax.
Whether Danny in our question would be held to have been negligent would
depend on all the circumstances of the case. If he was old enough to be
accountable, he was probably negligent, because, taken at face value, his
conduct deviated from that of a reasonable person in the circumstances.
How is the negligence of experts determined? Discuss briefly
In the case of an expert such as a dentist, surgeon, electrician, etc the test for
negligence in respect of the exercise of the expert activity is the test of the so-
called reasonable expert; in other words, the reasonable dentist, reasonable
surgeon, reasonable electrician, etc.
Q&A by @yash0505 4

5
Discuss the concept imperitia culpae adnumeratur
Literally, this means that ignorance or lack of skill is deemed to be negligence.

The principle embodied in this maxim applies where a person undertakes an
activity for which expert knowledge is required while he knows or should
reasonably know that he lacks the requisite expert knowledge and should
therefore not undertake the activity in question.
Q&A by @yash0505 4

6
Study unit 17 – Fault: negligence – foreseeability and

preventability of damage

Define negligence
The defendant is negligent if the reasonable person in his position would have
acted differently; and according to the courts the reasonable person would have
acted differently if the unlawful causing of damage was reasonably foreseeable
and preventable.
On which two legs does the test for negligence stand?
• The reasonable foreseeability of damage.

• The reasonable preventability of damage.
Describe the two divergent views on the nature of the foreseeability

test for negligence and briefly indicate your preference
• Abstract (or absolute) approach

The question of whether someone acted negligently must be answered
by determining whether harm to others was in general reasonably
foreseeable; in other words, the question of whether his conduct in
general created an unreasonable risk of harm to others must be asked.
This view of negligence enjoys little support among academics and is not
generally accepted by our courts.
• Concrete (or relative) approach
This approach to the test of foreseeability is based on the premise that a
person’s conduct may only be described as negligent in respect of a
specific consequence or consequences; therefore, it is a prerequisite for
negligence that the occurrence of a particular consequence must be
reasonably foreseeable.
My preference is the concrete approach. It is only when the consequences of an

act are considered that one can judiciously decide what steps or precautions (if
any) the reasonable person would have taken in order to guard against such
consequences.
What general/broad guideline can be used for the application of the

foreseeability test for negligence? Discuss briefly
One may accept as a broad guideline that the foreseeability of harm will depend
on the degree of probability of the manifestation of the harm (or how great the
chance or possibility is that it will occur). Therefore, the greater the possibility
that damage will occur, the easier it will be to establish that such damage was
(reasonably) foreseeable. (Of course, the contrary is also true).
Q&A by @yash0505 4

7
Name the four considerations that play a role in the preventability

aspect of the test for negligence, according to Van der Walt and
Midgely.
i. The nature and extent of the risk inherent in the wrongdoer’s conduct.
ii. The seriousness of the damage if the risk materialises and damage
follows.
iii. The relative importance of the object of the wrongdoer’s conduct.
iv. The cost and difficulty of taking precautionary measures.
Discuss Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson

in connection with the preventability aspect of the negligence test
In this case the defendant was employed by the plaintiff to erect a roof on top of
a silo. During welding operations the defendant’s servants ignited bales of stover
against the silo. The court held that although the risk of the stover being ignited
by the welding was not very great, the damage which was likely to result from
burning stover would be fairly extensive. The reasonable person would thus
have taken steps to prevent the damage from occurring.
Compare Gordon v Da Mata and City of Salisbury v King in

connection with the preventability aspect of negligence
In Gordon v Da Mata, the plaintiff slipped on a cabbage leaf on the floor of the
defendant’s greengrocery. The cabbage leaf had fallen on the floor while the
defendant’s assistant was slashing off cabbage leaves. The court held that a
reasonable person would definitely have taken steps to prevent leaves from
falling onto the floor by collecting them in a receptacle because this would not
have required much trouble or high cost.
In City of Salisbury v King, the court had to decide whether it was negligent to
leave potentially slippery vegetable matter lying on a market floor. The plaintiff
slipped on a piece of vegetable on the floor of a large market while the sale of
vegetables was in progress. The court held that the mere presence of vegetable
matter on a market floor did not in itself indicate negligent conduct; it would be
unreasonable, expensive, and unrealistic to expect the immediate removal of
vegetable matter as it fell onto the floor.
In respect of the so-called “slippery-shop-floor cases”, the following general rule
applies: “The duty on the keeper of a supermarket to take reasonable steps is
not so onerous as to require that every spillage must be discovered and cleaned
up as soon as it occurs. Nevertheless, it does require a system which will ensure
that spillages are not allowed to create potential hazards for any material length
of time, and that they will be discovered, and the floor made safe, with
reasonable promptitude”.
Q&A by @yash0505 4

8
Study unit 18 – Fault: negligence judged in the light of the
surrounding circumstances; negligence and duty of care; proof
of negligence; relevance of negligence; wrongfulness and
negligence

“The negligence of an act must always be judged in the light of the
circumstances of the particular case”. Discuss this statement and
name the factors that play a role when evaluating the
circumstances of the case
It is a well-known principle of our law that all the relevant circumstances of a

case must be considered as a whole when deciding whether a wrongdoer’s
conduct was negligent. The following are examples of factors that should be
taken into account in this investigation:
a) Greater care is required when someone works with things that are
inherently dangerous, like a loaded firearm, dynamite, etc.
b) Greater care is also expected when a person deals with individuals who
suffer from disability or incapacity.
c) Where a person has to take a decision in a situation of sudden
emergency and there is insufficient opportunity to consider all the
consequences of his actions, imminent peril must be taken into account
in deciding whether he is negligent. This situation is usually referred to as
the “doctrine of sudden emergency”.
d) Generally speaking, a person acts according to the standard of a
reasonable person when he relies on the fact that another person will act
in a reasonable way.
e) Another factor concerns the customs, usages, and opinions of the
community. Generally, a wrongdoer will be able to defend himself
successfully against an allegation of negligence by proving that he acted
in accordance with normal practices.
f) In certain circumstances, the appropriate standard of care required for
conduct is not entirely left to the discretion of the court (by applying the
reasonable person test) because there is also a specific statutory
provision which applies.
“The same degree of care is always required of a person,

regardless of whether he is dealing with ‘normal’ or disabled
people”. Is this statement correct? Discuss briefly
No. Greater care is expected when a person deals with individuals who suffer
from disability or incapacity.
A, who is wearing a pair of shorts, smokes a pipe while driving his

car. An ember falls from his pipe and burns his bare leg. At the
same time a bee, which has flown in through the open window,
Q&A by @yash0505 4

9
stings him on his upper lip. While trying to get rid of the ember and
to kill the bee, A collides with B’s parked car. In the action brought
by B against A, A alleges that in the light of the particular
circumstances of the case, he did not act negligently. Discuss the
merits of A’s defence.
This deals with the doctrine of sudden emergency. According to case law, three
requirements must be satisfied in a case of sudden emergency for a
wrongdoer’s conduct not to amount to negligence, in other words, to meet the
standard of the reasonable person:
i. The wrongdoer must have faced a situation of imminent peril.

ii. The wrongdoer must not have caused the perilous situation by his own
negligence or imprudence.
iii. The wrongdoer must not have acted in a grossly unreasonable manner.
I believe that A’s defence will succeed, because the perilous situation was
caused through his own negligence or imprudence. He did not act as a
reasonable person and he cannot claim that he was not negligent on the basis
of the doctrine of sudden emergency.
A enters an intersection while the traffic light is green for him and
collides with B’s vehicle, which enters the intersection against the
red light. The first time that A notices B’s car is at the moment the
two cars collide. B concedes that he was negligent, but alleges
that A was also negligent because A did not look where he was
going and did not take steps to avoid the collision. Discuss the
merits of B’s allegation
B will probably not succeed. Generally speaking, a person acts according to the
standard of the reasonable person when he relies on the fact that another
person will act in a reasonable way. Where negligent conduct on the part of
another driver is reasonably foreseeable – as is frequently in modern traffic – a
person may not always rely on other road-users acting reasonably. In general,
however, a person need not take steps to guard against the recklessness or the
gross negligence of others.
A is driving at 60km/h during a downpour one night when he

crashes into B’s vehicle. The speed limit is 60km/h. B alleges that
the fact that A was driving at 60km/h amounts to negligence. A’s
defence is that he did not exceed the speed limit and was therefore
not negligent. Will A succeed with his defence? Discuss briefly
In certain circumstances, the appropriate standard of care required for conduct

is not entirely left to the discretion of the court, because there is also a specific
statutory provision which applies. It must be pointed out, however, that the mere
adherence to a statutory rule does not necessarily prevent a person from acting
Q&A by @yash0505 5

0
negligently. Where there is eg a speed restriction of 100km/h and X drives at

95km/h under circumstances where he should have driven much slower, like a
slippery road surface, X cannot be heard to say that he did not act negligently
because he stayed within the speed limit. To hold otherwise would be to adopt
too mechanical an approach to negligence and for this reason the test of the
reasonable person still applies (and the court may use its discretion).
A will therefore probably not succeed with his defence.
How is negligence determined according to the duty-of-care

approach, and what criticism can be leveled against this approach?
According to this approach, one must first establish whether the defendant
owed the plaintiff a duty of care (the “duty issue”), and thereafter whether there
was a breach of this duty (the “negligence issue”). If both questions are
answered in the affirmative, negligence is said to be present.
The duty of care approach is foreign to the principles of Roman-Dutch law,
which form the basis of our law of delict, and from a historical viewpoint the
application of these principles must be rejected. More importantly, it is an
unnecessary and roundabout way of establishing what may be established
directly by means of the reasonable person test for negligence, ie whether the
reasonable person would have foreseen and guarded against damage.
Moreover, the use of the duty of care doctrine may confuse the test for
wrongfulness (breach of legal duty) with the test for negligence.
On whom does the duty to prove the defendant’s negligence rest?
On the plaintiff. Where there is a statutory presumption of negligence, the onus

rests on the defendant to rebut the presumption of negligence in order to
escape liability.
A collision takes place between the vehicles of A and B after A’s

vehicle crosses over onto the wrong side of the road. The collision
therefore takes place on what is the wrong side of the road for A.
Indicate how B may apply the res ipsa loquitur doctrine to assist in
proving A’s negligence
On the ground of the maxim res ipsa loquitur (the facts speak for themselves),
the court may infer negligence on the part of the defendant. B proves that the
accident took place on the wrong side of the road for A. Should A fail to come
forward with another explanation, the court may, on the proven facts, infer that
A was probably negligent. This does not mean that a presumption of negligence
on the part of A arises. There is no shift on the onus of proof and there is not
even a prima facie case in favour of B. The phrase is merely an argument on the
probabilities that a plaintiff, who may have little evidence at his disposal, may
use in order to convince the court that the defendant acted negligently.
Q&A by @yash0505 5

1
Describe the test for wrongfulness and the test for negligence and
name the factors that may be applied to distinguish between the
two tests
Wrongfulness is determined by means of an objective reasonableness criterion,

while the test for negligence is that of the objective reasonable person.
Therefore an objective criterion of reasonableness is used in determination of
both wrongfulness and negligence. The following factors are of importance in
distinguishing the essential difference between the test for wrongfulness and the
test for negligence:
a) In the test for wrongfulness, the reasonableness of the defendant’s

conduct is determined in the light of the legal convictions of the
community;
In the case of negligence, the reasonable person’s conduct is determined
with reference to the reasonable foreseeability and preventability of
damage.
b) Wrongfulness qualifies conduct (it is concerned with the legal
reprehensibility of conduct);
Negligence qualifies the defendant or wrongdoer (it is usually seen as
determining the legal blameworthiness of the defendant for his wrongful
conduct).
c) Wrongfulness is determined on the basis of actual facts;
Negligence is determined on the basis of probabilities.
d) Wrongfulness is determined before negligence;
Negligence presupposes wrongfulness.
e) The test for wrongfulness is narrower than the test for negligence.
B holds a revolver to A’s head and commands A to kill the sleeping

C with a knife. A obeys B, fearing for his life. Afterwards, it appears
that the revolver is a toy and that A’s life was never in danger. Did
A act (a) wrongfully and (b) negligently? Discuss with reference to
the tests for wrongfulness and negligence and refer to case law
A did act wrongfully because his defence of necessity would fail on the ex post
facto evidence, however he did not act negligently because a reasonable person
would probably act in the same way. Although both the test for wrongfulness
and the test for necessity are objective and based on reasonableness,
wrongfulness is determined on the basis of actual facts whereas negligence is
determined on the basis of probabilities.
In S v Goliath, A’s life was threatened by B and under B’s compulsion and out of
fear of B, he assisted B in killing C. The court held that compulsion may be a
defence to the killing of a human being, but was not prepared to express an
opinion on the question of whether compulsion is a ground of justification or a
ground excluding fault. This approach is correct, because a decision as to
whether compulsion will exclude wrongfulness or fault will depend entirely on the
relevant facts of each case. If it appears that, in view of all the facts which came
Q&A by @yash0505 5

2
to light after the incident, A’s life would have been endangered if he did not
assist B, necessity as a ground of justification is present; in other words, A’s
conduct was reasonable in terms of the boni mores and thus lawful. Should it
appear later that A’s life was not in danger, as it was in this case above, then
conduct in necessity is absent and the causing of C’s death is unreasonable
and thus wrongful. The question of whether compulsion may nevertheless
exclude fault then arises (because wrongfulness is determined before fault).
Suppose that out of compulsion, A believed that his life would have been
endangered if he did not assist in killing C. In determining whether A was
negligent, the reasonable person must be placed in A’s position at the time of
the commission of the act and, taking into account A’s (incomplete) knowledge
and insight, supplemented by the knowledge and insight that he should
reasonably have had, one must decide on the probabilities how the reasonable
person would have acted. If the reasonable person’s conduct would have
differed from A’s, A’s conduct was negligent. But if the reasonable person
would – in the case of putative necessity – not have acted differently from A,
there was no negligence and A will not be liable. The conclusion is that because
of the differences between the test for wrongfulness and the test for negligence,
a defendant may be said to have acted unreasonably for the purposes of
wrongfulness but reasonably (like the reasonable person) for the purposes of
negligence.
Briefly discuss the difference between wrongfulness and negligence

in the case of an omission
An omission is unreasonable and thus wrongful where, according to the boni

mores test, a legal duty rested on the defendant to act positively in order to
prevent harm and he neglected to comply (fully) with such a duty. However,
where a defendant did attempt (albeit unsuccessfully) to comply with such a
duty and his attempt coincided with what the reasonable person would have
done, his (unreasonable) wrongful act is not accompanied by (unreasonable)
negligent conduct (damage could not reasonably be prevented) and he will
escape liability. The case of Minister of Forestry v Quathlamba (Pty) Ltd may be
cited as an example. Fire broke out on X’s land without any fault on his part.
Despite his attempts to extinguish the fire, it spread to Y’s land and caused
damage. The court held that there is a legal duty on a landowner to control a fire
on land under his control. Because the fire caused damage to Y, it may be said
that X did not fully comply with his duty and his conduct (omission) was thus
wrongful (unreasonable). The court nevertheless correctly held that X acted in
accordance with the standard of the reasonable person in attempting to
extinguish the fire and that he was thus not liable. Despite the wrongfulness of
his conduct in not complying fully with his legal duty, he escaped liability
because of the absence of negligence.
Q&A by @yash0505 5

3
Study unit 19 – Fault: contributory fault

Briefly distinguish between the concepts fault and contributory fault
While fault refers to the defendant’s conduct, contributory fault refers to the
conduct of the plaintiff.
Give a short summary of the common-law position regarding

contributory fault
The general rule in Roman-Dutch law was that fault on the part of the plaintiff
precluded him from claiming damages from the defendant who was also to
blame for causing the damage, unless one was more to blame than the other.
In English law, initially the “all-or-nothing” rule was in force, whereby the plaintiff
was precluded from claiming any damages if there was negligence on both
sides. However, the court in Davies v Mann adopted a new approach and it was
held that since the defendant had the “last opportunity” to avoid the harm (a
collision with the plaintiff’s donkey on a road), the plaintiff’s negligence was
ignored and the defendant incurred full liability for damage. The so-called last
opportunity rule was also initially accepted in our courts. Over time however, the
rule did not show to work well in practice and resulted in such an untenable
situation that the legislature was compelled to intervene.
Briefly summarise the contents of sections 1(1)(a) and 1(1)(b) of the

Apportionment of Damages Act and give a short explanation of how
these provisions have changed the common-law position
1(1)(a): Where there is partial fault on both parties, the plaintiff’s claim
•
shall not be defeated, but should be equitably reduced
• 1(1)(b): Damage for the purpose of paragraph (a) shall be regarded as
having been caused by a person’s fault notwithstanding the fact that
another person had an opportunity of avoiding the consequences thereof
and negligently failed to do so.
The effect of these provisions is to abolish the “all-or-nothing” principle of
common law and to allow the court to apportion the damage of each party in
accordance with their relative degrees of fault.
A intentionally drives into B’s car. B is found to have acted

negligently. B institutes a claim against A for the damage to his
car. A alleges that the claim should be reduced in light of B’s
negligence. Will A’s plea be successful? Discuss briefly
At common law, the position was such that a defence could not be sustained
where a defendant acted intentionally and it must be accepted that the statutory
provisions under discussion do not change this principle. Consequently, a
Q&A by @yash0505 5

4
defendant who has intentionally caused harm to the plaintiff will not be able to
ask for a reduction in damages because of contributory negligence.
In this case, A, the defendant, acts intentionally and B, the plaintiff, acts
negligently. Because A acted intentionally, he will fail with his plea that B’s claim
should be reduced in the light of B’s negligence.
A intentionally drives into B’s car. B is found to have acted

negligently. A institutes a claim against B for the damage to his
car. B alleges that A’s claim cannot succeed in the light of A’s
conduct. Will B’s plea be successful? Discuss briefly
Here the plaintiff A loses his claim against the negligent B because A acted
intentionally.
A and B both intentionally drive their cars into each other. A

institutes a claim against B. Can the Apportionment of Damages
Act be applied in this situation?
In light of the wording used in the long title of the Act and the heading of section
1 (where reference is made to negligence only), as well as to the historical
background of the Act, it would appear that the legislature intended to make
provision only for the defence of contributory negligence and not the defence of
contributory intent. The Supreme Court of Appeal has not yet conclusively
decided this issue, but has, on occasion, expressed its doubt whether a
defence of contributory intent may be raised in terms of the Act. However, in
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a
Volkskas Bank, the court held that section 1(1)(a) was applicable where both the
plaintiff and the defendant had acted with intent.
Does the Apportionment of Damages Act apply in the case of

liability without fault? Discuss briefly
No. As section 1(1)(a) applies only to damage caused partly by fault of the
plaintiff and partly by fault of the defendant, the Act cannot apply where liability
does not depend on the defendant’s fault. Thus the Act does not apply in the
case of liability without fault (strict liability).
Explain, with reference to the developments in case law, how

damage caused by a negligent defendant and a contributorily
negligent plaintiff should be apportioned between the two parties
The method of determining who should bear what portion of the damage
involves a comparison of the respective degrees of negligence of the parties
involved. Each party’s degree of negligence is determined by expressing its
deviation from the standard of the reasonable person as a percentage; the two
percentages are then compared in order to allocate responsibility in respect of
the damage.
Q&A by @yash0505 5

5
Prior to the decision in Jones NO v Santam Bpk, the Appellate Division accepted
that once the plaintiff’s degree of negligence had been established, it was
unnecessary to inquire into the extent to which the defendant’s conduct had
deviated from the standard of the reasonable person. If the court had
established, eg, that the plaintiff had been 40% negligent (his conduct deviated
40% from the standard of the reasonable person), it was thought to follow
automatically that the defendant was 60% negligent. However, in the Jones
case, a completely new approach to determining the degree of fault shown by
the plaintiff and defendant was followed. According to this decision, the fact that
the plaintiff was, eg, 30% negligent, does not automatically imply that the
defendant was 70% negligent. In order to establish the respective degrees of
negligence, the carefulness of the conduct of each party must be measured
separately against the standard of the reasonable person. It is, eg, possible that
the plaintiff’s conduct deviated 70% from this norm while the defendant’s
conduct deviated 80%. In this case, the ratio between the plaintiff’s and the
defendant’s degree of fault is 70:80 (7:8 (15)). The plaintiff’s degree of fault is
thus 7/15 x 100/1 = 46,7%, and the defendant’s 53,3%. The plaintiff thus
receives compensation for only 53,3% of the damage because he is 46,7% to
blame for his loss.
Despite the reasonably clear guidelines in the Jones case, it would appear from
the decision in AA Mutual Insurance Association Ltd v Nomeka that the
Appellate Division confirmed the approach followed prior to Jones, ie that the
degree of the plaintiff’s fault automatically determines the degree of fault of the
defendant. This is an unsatisfactory situation and when the opportunity arises,
the SCA should in the interests of legal certainty reject one approach and
confirm the other. It is submitted that the approach in the Jones case is
preferable and that it should be confirmed.
A further issue that is relevant is the view of the Appellate Division in General
Accident Versekeringsmaatskappy SA Bpk v Uijs that the extent of a plaintiff’s
fault is merely one of a number of factors which the court may take into account
in order to reduce the plaintiff’s damages in a just and equitable manner.
A and B were both negligent in respect of A’s damage. A was 40%

negligent. Is the following statement correct: “B is then, of
necessity, 60% negligent”? Briefly discuss with reference to case
law.
See previous answer. This statement represents the so-called Nomeka

approach.
On whom does the burden of proving contributory negligence rest?

Discuss briefly
Where a defendant raises the defence of contributory negligence on the part of

the plaintiff, he has to prove such a defence on a balance of probabilities. The
defendant usually pleads contributory negligence as an alternative to the
Q&A by @yash0505 5

6
complete denial of negligence. However, the Appellate Division has held that
contributory negligence may be taken into account even where the defendant
has not expressly pleaded such a defence.
X gives Y a lift in her car. While driving, X talks continuously on her

cellphone and also touches up her makeup. Eventually X loses
control and drives into a tree. Y, who had not fastened her
seatbelt, is injured in the accident. She is hospitalised and incurs
hospital costs of R10 000. It transpires that if Y had fastened her
seat belt, her hospital costs would have amounted only to R6000,
Y institutes a damages claim of R10 000 against X. X approaches
you for legal advice. Advise X, referring to applicable legislation
and case law. (Assume, for the purpose of your answer, that the
provisions of the Road Accident Fund are not applicable to this set
of facts.)
From the given facts, we can conclude that the defendant has been negligent,
but the plaintiff appears to have been negligent too. Thus we must consider
whether contributory negligence was present. Contributory negligence is
negligence on the part of the plaintiff, and it is a defence that the defendant can
raise. The Apportionment of Damages Act is applicable. This Act provides that a
contributorily negligent plaintiff’s damages be apportioned. The court will
determine the degree of deviation from the reasonable person standard shown
by the conduct of both the defendant and plaintiff, express the deviations as
According to the Smit and Nomeka cases, the percentages of negligence
According to Jones, both percentages must be assessed independently, which
could mean that, eg, a defendant may be 80% negligent while the plaintiff is
30% negligent. According to Neethling and Potgieter, the approach in Jones is
to be preferred.
According to King v Pearl Insurance Co Ltd, a defence of contributory
negligence could not succeed where the plaintiff omitted to wear a crash helmet
while driving a scooter, but had not been negligent in respect of causing the
accident. However, in Bowkers Park Komga Cooperative Ltd v SAR and H, the
court held that contributory negligence did not refer to negligence in respect of
the damage-causing event, such as a motorcar accident, but to negligence in
respect of the damage itself, and this was confirmed by the Appellate Division in
Union National South British Insurance Co Ltd v Vitoria and General Accident
Versekeringsmaatskappy SA Bpk v Uijs. Therefore, failure to wear a seatbelt
would constitute contributory negligence if it contributed to the plaintiff’s
damage.
Applying these principles to the facts, we can conclude that Y was contributorily
negligent and that her damages will be apportioned. She will be awarded R6000
plus a portion of the R4000 damage to which she contributed, taking into
account her and X’s respective degrees of negligence.
Q&A by @yash0505 5

7
Does contributory negligence pertain to the damage-causing event

or the damage itself? Explain
It pertains to the damage itself. See above.
Q&A by @yash0505 5

8
Study unit 20 – Fault: voluntary assumption of risk and

contributory fault (contributory intent)

Give the different meanings of the concept “voluntary assumption
of risk”
In the discussion of wrongfulness, reference was made to the meaning of

consent to injury and consent to the risk of injury as a ground of justification
(volenti non fit iniuria), which negates wrongfulness. Such consent is sometimes
referred to as voluntary assumption of risk. Voluntary assumption of risk,
however, also has a different meaning. In respect of contributory fault, voluntary
assumption of risk is a ground that cancels fault and is not a ground of
justification. Assumption of risk in this sense implies that the requirements for a
ground of justification are absent.
Distinguish between consent to the risk of injury and contributory

intent
When a plaintiff or injured party is well aware of the danger but nevertheless
willfully exposes himself to it, he acts intentionally in respect of the prejudice that
he suffers, and blame in the form of contributory intent attaches to him.
However, to fulfill the other requirement of intent, ie consciousness of
wrongfulness, his conduct must also be “consciously unreasonable”, ie, not
directed towards the achievement of a lawful goal.
What is meant by “contributory intent”? Explain its effect briefly
Where a plaintiff does act with contributory intent, the fault of the defendant (in
the form of negligence) is eliminated by the contributory intent of the plaintiff.
Although the defendant is also at fault, he is not held liable towards the plaintiff
because the plaintiff himself acts intentionally. The contributory intent (at least
dolus eventualis) or assumption of risk by the plaintiff therefore cancels the
defendant’s fault.
Do our courts accept the defence of contributory intent for the

purposes of the Apportionment of Damages Act?
There is little authority for the so-called defence of contributory intent in our law
where the defendant acted negligently, and it would appear that our courts are
not prepared to recognise it in terms of the Act. Nevertheless, the principle that
the conscious taking of an unreasonable risk by the plaintiff cancels fault on the
part of the defendant, is a principle of common law, and functions independently
of the Act.
The Appellate Division has on occasion expressed its doubt about whether the
defence of contributory intent may be raised in terms of the Act. However, in
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a
Q&A by @yash0505 5

9
Volkskas Bank it was held that a defence of contributory intention could succeed
where both the plaintiff and the defendant acted with intention.
Discuss Lampert v Hefer inasmuch as the decision is of importance

for the defence of contributory intent
In this case, the plaintiff took her seat as a passenger in the sidecar of the
defendant’s motorcycle, well aware that the defendant was so intoxicated that
he was incapable of maintaining proper control of it. An accident occurred in
which the plaintiff sustained injuries and the defendant was killed. The plaintiff
claimed damages from the defendant’s estate.
The provisions of the Apportionment of Damages Act which at the time were not
promulgated would today materially affect the legal position in such
circumstances if the plaintiff were guilty of contributory negligence (in which
event her remedy would not be completely excluded), or if she consented to the
injury (a ground of justification) or acted with contributory intent which cancels
fault (in which case she has no action). Contributory intent was present and the
court held that therefore the remedy was not available to her.
For the purpose of his judgment, the judge discussed contributory intent and
contributory negligence, and stated that these two defences may overlap. He
based this conclusion on the great confusion that exists among writers and in
our case law on the concept “voluntary assumption of risk”. However, where
there is an actual assumption of risk, the injured party chooses freely, with full
knowledge of the danger, to run the risk – which is not a negligent but an
intentional exposure to the risk. In this sense, there is thus no overlap with
contributory negligence. Where, however, the injured party should have been
aware of the danger, but was not, there is clearly no assumption of risk, but only
contributory negligence. The two defences can therefore be clearly
distinguished, provided the concept of risk assumption is properly formulated.
In practice, does it make a difference whether the plaintiff has

acted negligently or intentionally, or whether he has given consent
to the risk of injury? Discuss
If the plaintiff gave consent to the risk of injury, the defendant goes free, because
consent is a ground of justification, which excludes wrongfulness, and thus
excludes delictual liability. On the other hand, contributory negligence is not a
complete defence, but the claim of the plaintiff who bears contributory
negligence may be reduced by the court in proportion to the degree of his
contributory negligence. If the plaintiff acted with contributory intent, the results
depend on the form of fault on the part of the defendant. If the defendant was
negligent, the defendant goes free. If the defendant acted with intent, the
contributorily intentional plaintiff’s claim will be reduced if the Greater
Johannesburg case is followed.
Can contributory intent and contributory negligence overlap?

Discuss briefly with reference to case law
Q&A by @yash0505 6

0
See above. Yes, they can overlap.
Discuss contributory intent and consent to the risk of injury with

reference to the facts and decision in Netherlands Insurance Co of
SA Ltd v Van der Vyver
In this case, Appellate Division had another opportunity to direct its attention to
two forms of volenti non fit iniuria, ie, consent to the risk of injury (a ground of
justification) and contributory intent or voluntary assumption of risk (which
cancels fault). In this case, O was suspected of infidelity by his wife. She hired a
private detective, V, to spy on her husband. V followed O in his care to a lonely
spot in the veld. O had a woman with him in his car. When V approached O’s
car, O started to drive off. V leapt onto the bonnet in order to obscure O’s view
and to make him stop. O accelerated, however, and began to swerve from side
to side, clearly with the object of dislodging V, who was clinging on for dear life.
Six kilometres further, O succeeded in dislodging V. V sustained injuries and
claimed compensation from the insurer of O’s motorcar. In the court a quo,
Boshoff J found that O was 50% negligent and V 50% negligent. V, therefore,
only obtained half his damages.
On appeal it was held that O had acted with intent and not only negligently. The
court rejected O’s defence that V had consented (as a ground of justification) to
the risk of injury. The court then considered O’s defence that V had contributory
intent. Referring to this defence, Van Blerk JA declared: “No authority from our
case law was cited for the statement that contributory intent is an independent
defence, nor was reference made to any of the authoritative sources of our law
recognising it”. The Appellate Division was therefore not prepared in principle to
acknowledge such a defence.
X negligently sets a house alight. Y runs into the burning house to

save his jacket and is injured in the flames. Y institutes a claim
against X on the ground of his personal injuries. What defences can
X raise against the claim? Discuss briefly
The test for negligence is the reasonable foreseeability and the reasonable
preventability of damage.
X is not liable for Y’s injuries, because they were not reasonably foreseeable: it is
clearly not reasonably foreseeable that another person would expose himself to
the risk of either serious injury or loss of life just to recover a jacket.
X could not raise the defence of contributory intent because Y’s action was not
directed towards an unlawful goal.
Q&A by @yash0505 6

1
What is the importance of Greater Johannesburg Transitional

Council v ABSA Bank t/a Volkskas Bank in respect of contributory
intent? Discuss briefly
In cases where a plaintiff intentionally contributed towards his own loss while the
defendant was merely negligent, the plaintiff forfeits his claim. In cases where
the defendant caused his own loss intentionally and the plaintiff’s unreasonable
conduct was also intentional, the wording and historical background of the
Apportionment of Damages Act would make it appear that the legislature
intended to make provision only for the defence of contributory negligence in
terms of it. The Appellate Division has on occasion expressed doubt about
whether a defence of contributory intent may be raised in terms of the Act.
However, in the Greater Johannesburg case, it was held that a defence of
contributory intention could succeed where both the plaintiff and the defendant
acted with intention.
Q&A by @yash0505 6

2
Study unit 21 – Causation: general; factual causation

Briefly distinguish between factual and legal causation
Factual causation deals with whether an act can be identified as a cause of

damage, based on facts. Such a factual causal nexus may, however, extend a
very long way.
Legal causation deals with the determination of which harmful consequences
actually caused by the act the wrongdoer should be held liable for.
While rushing to catch a train, X bumps into Y, a frail old lady. Y

falls and breaks a leg. She is admitted to hospital and her leg is set
in plaster. She is then given a set of crutches and is discharged
from the hospital. A week later, while using her crutches, Y slips on
a smooth floor, falls again, and breaks her arm. Is there a factual
causal link between X’s conduct and Y’s broken arm? Discuss
The generally accepted test for factual causation is the conditio sine qua non
test, or “but for test”. This entails mentally eliminating, or thinking away, the
conduct. If the damage then also disappears, a factual causal link is present
between the conduct and the damage. This test is subject to much criticism.
Among others, it is said to be based on circular logic and is, at best, a way to
express the existence of a causal nexus that has been determined in another
way. Neethling and Potgieter argue that evidence and human experience are
sufficient to determine whether one fact flowed from another fact, and that a so-
called test of factual causation is superfluous. However, the courts consistently
state that the conditio sine qua non is the test of factual causation. If we apply
the test to the facts, we must conclude that if X had not bumped Y, she would
not have broken her arm, and therefore a factual causal link is present between
X’s conduct and Y’s damage.
Q&A by @yash0505 6

3
Study unit 22 – Causation – legal causation: general; the

flexible approach; adequate causation; direct consequences

What is meant by the concept “legal causation”
The question of legal causation arises when determining which harmful

consequences caused by the wrongdoer’s wrongful, culpable act he should be
liable for. In other words, which consequences should be imputed to him.
Briefly distinguish between factual and legal causation
Factual causation deals with whether an act can be identified as a cause of

damage, based on facts. Such a factual causal nexus may, however, extend a
very long way.
Legal causation deals with the determination of which harmful consequences
actually caused by the act the wrongdoer should be held liable for.
Give two synonyms for “legal causation”
• Limitation of liability.
• Imputability of harm.
What is meant by the following statement: “It would be incorrect to

describe legal causation as the only mechanism for limitation of
liability in delict”. Discuss briefly
In a sense, the limitless liability which could have been brought about by factual
causation in itself is “limited” by the other elements of a delict which establish
liability. For example, the liability of an actor who in fact causes damage, but
who does not act wrongfully, or who acts wrongfully but not negligently, is
“limited” by (the absence of) the elements of wrongfulness and fault respectively.
However, legal causation as an independent element arises specifically where it
appears that the wrongdoer’s conduct was wrongful and culpable with
reference to at least certain consequences, but where additional consequences
result and the question arises whether he should be liable for those additional
consequences.
Name five theories of legal causation
1. The flexible approach, based on policy considerations, reasonableness,

fairness, and justice.
2. The theory of adequate causation.
3. The “direct consequences” criterion.
4. The theory of fault.
5. The reasonable foreseeability criterion.
Q&A by @yash0505 6

4
Describe the flexible approach to legal causation, as formulated by

the Appellate Division
The present approach of the courts to legal causation has been set out fairly
extensively by the Appellate Division in a criminal case, S v Mokgethi, and was
thereafter confirmed in several cases dealing with private law.
In S v Mokgethi, Van Heerden JA held that there is no single and general
criterion for legal causation that is applicable in all instances. A flexible approach
is accordingly suggested:
The basic question is whether there is a close enough relationship between the
wrongdoer’s conduct and its consequence for such consequence to be
imputed to the wrongdoer in view of policy considerations based on
reasonableness, fairness, and justice. (However, the existing criteria for legal
causation – such as direct consequences and reasonable foreseeability – may
play a subsidiary role in determining legal causation within the framework of this
elastic approach.
Briefly set out the facts of S v Mokgethi and state the views for
which the case serves as authority
(The views for which the case can be considered as authority are set out in the
prescribed textbook – which you have to buy – fuck capitalism ;-))
In this case the deceased was a bank teller, and was shot between the shoulder
blades by one of the appellants during a robbery. The deceased did not die
immediately, but only six months later. The deceased had become a paraplegic
as a result of the shot and had to make use of a wheelchair. His condition
improved to such an extent that he later resumed his work at the bank. He was,
however, later readmitted to hospital suffering from serious pressure sores and
septicaemia, which had developed because he had failed to change his position
in the wheelchair frequently, as he had been advised to do by the medical
practitioners who treated him. The Appellate Division held that the wounding of
the deceased could not be regarded as the juridical (legal) cause of the
deceased’s death for the purposes of a charge of murder.
What is the relationship between the flexible approach to legal

causation and the traditional causation theories?
Whether one regards reasonable foreseeability or any other test for legal
causation as a subsidiary test, or simply as a factor, in determining legal
causation, the Appellate Division’s formulation and application of the flexible
approach makes it clear that these tests or factors merely function as aids in
answering the basic question of imputability of harm. The other theories should
be regarded as pointers or criteria reflecting legal policy and legal convictions
about when damage should be imputed to a person.
Q&A by @yash0505 6

5
Briefly explain the content and operation of adequate causation as

a test for legal causation
According to this theory, a consequence which has in fact been caused by the
wrongdoer is imputed to him if the consequence is “adequately” connected to
the conduct. The connection is termed “adequate” if, according to human
experience, in the normal course of events the act has the tendency of bringing
about that type of consequence.
Name an advantage that the theory of adequate causation may

have over reasonable foreseeability as a test for legal causation
As a criterion for legal causation, it can be more easily distinguished from

negligence (where a reasonable foreseeability criterion is also applied), than the
criterion of reasonable foreseeability.
Briefly explain the content and operation of direct consequences as

a test for legal causation
According to this theory, an actor is liable for all the “direct consequences” of his
negligent conduct. In other words, liability is not necessarily limited to the
foreseeable consequences of his conduct. A consequence need not follow the
cause immediately in time and space to be a “direct consequence” thereof. The
theory has been limited to direct physical consequences. Additionally, the
consequence must not have been broken by a so-called novus actus
interveniens (independent intervening conduct or event).
How has the direct consequences theory been influenced by the

foreseeable plaintiff doctrine? Discuss briefly
The possible wide effects of this theory has been limited by the “foreseeable
plaintiff” doctrine. According to this, an actor does not act negligently towards a
plaintiff unless it is reasonably foreseeable that the particular plaintiff will be
injured. Accordingly, the actor is not liable to an unforeseeable plaintiff, even
though the harm has flowed directly from the actor’s conduct, and despite the
fact that it is foreseeable that other persons may have been injured.
Do direct consequences still have a possible role to play in our

law? Discuss briefly
The theory was unequivocally accepted in only two reported cases in South
African law. It may, therefore, be stated with certainty that the theory does not
serve as a general test for the imputability of harm, but, like the other tests (such
as reasonable foreseeability), fulfills a subsidiary role in establishing legal
causation in terms of the prevailing flexible approach.
Q&A by @yash0505 6

6
Formulate your own set of facts, similar to that in the Alston or

Mokgethi case, and indicate how the Supreme Court of Appeal
would solve the problem of legal causation
The facts of the Alston case were as follows:

The plaintiff suffered a brain injury in a motorcar accident which was attributable
to the negligence of the driver of a car insured by the defendant. As a result of
the brain injury, the plaintiff started to suffer from manic depression, for which he
was treated with parstellin, an acknowledged remedy for this condition.
According to medical knowledge at that time, there was no reason to believe
that the use of parstellin presented any danger, However, when the plaintiff ate
cheese after taking parstellin, he suffered a stroke, resulting in additional loss of
(as was claimed) R900. It appeared afterwards that eating cheese after taking
parstellin is extremely dangerous and may even lead to death.
The facts of the Mokgethi case were as follows:

The deceased was a bank teller, and was shot between the shoulder blades by
one of the appellants during a robbery. The deceased did not die immediately,
but only six months later. The deceased had become a paraplegic as a result of
the shot and had to make use of a wheelchair. His condition improved to such
an extent that he later resumed his work at the bank. He was, however, later
readmitted to hospital suffering from serious pressure sores and septicaemia,
which had developed because he had failed to change his position in the
wheelchair frequently, as he had been advised to do by the medical practitioners
who treated him.
The SCA would use the flexible approach to determine whether there is a close
enough relationship between the wrongdoer’s conduct and its consequence for
such consequence to be imputed to the wrongdoer in view of policy
considerations based on reasonableness, fairness, and justice. The adequate
causation and direct consequences approach may play a subsidiary role in
determining legal causation within the framework of this elastic approach.
Whilst running to catch a train, X bumps into Y, a frail old lady. Y

falls and breaks a leg. She is admitted to hospital and her leg is set
in plaster. She is then given a set of crutches and is discharged
from the hospital. A week later, while using her crutches, Y slips on
a smooth floor, falls again, and breaks her arm. Is there a legal
causal link between X’s conduct and Y’s broken arm? Discuss
The test for legal causation is the so-called flexible approach, as formulated in S
v Mokgethi. In this case, a bank robber shot a teller. The teller was rendered a
paraplegic and was discharged from hospital in a wheelchair. Subsequently, the
paraplegic man failed to shift his body position in the chair frequently and
developed pressure sores, eventually dying from the complications arising from
them. The question that arose was whether the shot fired by the robber was the
legal cause of the teller’s death. According to the court, the main question in
Q&A by @yash0505 6

7
respect of legal causation is whether there is a close enough relationship

between the wrongdoer’s conduct and its consequence for such consequence
to be imputed to the wrongdoer in view of policy considerations based on
reasonableness, fairness, and justice. Several other legal causation theories
exist, such as adequate causation, direct consequences, foreseeability, and
novus actus interveniens. None of these criteria is suitable to be applied in all
situations. They may, however, be used as subsidiary aids when employing the
flexible approach. In the Mokgethi case, the court held that the shot was not the
legal cause of the death.
If these principles are applied to the facts in the question, the conclusion is
probably that Y’s broken arm was too remote and should not be imputed to the
wrongdoer. It could also be argued that a so-called novus actus interveniens,
that is, a new intervening act, was constituted by Y’s second fall, and this
strengthens the conclusion that there is no legal causal link between X’s
conduct and Y’s broken arm.
Q&A by @yash0505 6

8
Study unit 23 – Causation – legal causation: fault

Briefly explain how the adherents of the fault-in-relation-to-the-loss
approach try to solve the question of imputability on the basis of
fault
According to this approach, the wrongdoer is liable only for the consequences in
respect of which he had fault.
Supporters of the fault-in-relation-to-the-loss approach declare that legal
causation as an independent element of delict is unnecessary; and that the
questions of fault and imputability of loss are disposed of simultaneously. In
particular, this would apply where the so-called concrete approach to
negligence is followed. As stated, according to this approach, negligence is
determined by inquiring whether the wrongdoer should reasonably have
foreseen and prevented loss of the nature experienced in the particular case. It
is then argued that negligence contains all the elements necessary for limiting
liability.
What is the difference between the question of fault and the

question of imputability?
The question of fault deals with the inquiry into whether a person should be
blamed for his wrongful conduct. The question of imputability deals with the
question of whether certain consequences of his wrongful and culpable conduct
should be imputed to him.
The question of whether liability for a particular consequence should be imputed
to a wrongdoer differs fundamentally from the question of whether the law
should blame the wrongdoer for his wrongful conduct (in other words whether
he had fault).
Sight must never be lost of the fundamental difference between the question of
fault and the question of legal causation. Where intent has been established, it is
illogical for the purposes of legal causation to inquire whether the wrongdoer
acted negligently with reference to further consequences which flowed from his
intentional conduct. Likewise, it is illogical after it was found that the wrongdoer
had acted negligently, to inquire with reference to further consequences whether
the wrongdoer should have acted differently. After all, it has already been
decided that he should have acted differently. In the event of further
consequences (where legal causation is specifically relevant), the wrongdoer’s
blameworthiness is no longer at issue (at that stage its existence is a fact) and
the pertinent question is whether he should be held liable for the further
consequences of his blameworthy conduct.
Van der Merwe and Olivier are of the opinion that a person is liable
for the consequences that were implicit in his intent. Furthermore,
it is traditionally explained that “intended consequences… can
never be too remote”. Is this a valid statement? Briefly explain with
the aid of an example
Q&A by @yash0505 6

9
No. The fact that both these approaches are too simplistic is evident from the
case where a foreseen consequence occurs exactly as foreseen by the
defendant but where intent fails to hold him liable. The following example
illustrates this view:
X knows that his old granny, Y, nominated him in his will. He wants to expedite
her death so that he may inherit. He cunningly persuades her to undertake a
dangerous road trip, in expectation that she might die during it. As suggested,
Y, takes the trip, and drives in bad weather and crashes and dies, as X
envisaged. There is without doubt a factual causal nexus between X’s conduct
and Y’s death. Wrongfulness is also present as a result of the infringement of
Y’s bodily integrity without a ground of justification, as well as X’s evil motive. In
other words, the law will hardly consider X’s causing of Y’s death as lawful.
Intent, in addition, is present if (i) the wrongdoer X actually foresaw that his
conduct would (possibly) lead to the consequence involved, and (ii) actually
foresaw that the consequence in the circumstances would (possibly) be
wrongful (and, in addition, reconciled himself with these possibilities). The view
that the wrongdoer is liable for the consequences which are covered by his
intent and that the “intended consequences can never be too remote”, now
necessitates the conclusion that X, in the absence of a ground of justification,
will be liable for Y’s death. Nevertheless, the vast majority of jurists would
probably be of the opinion that it would be unreasonable to hold X liable for Y’s
death under these circumstances.
With reference to the facts in Brown v Hoffman, explain why intent

does not succeed as a criterion for limitation of liability
In Brown v Hoffman, the defendant punched the plaintiff three times and the
plaintiff suffered severe injury. It was argued on behalf of the defendant that
liability was limited to the extent of the defendant’s intent. As the defendant had
not intended to cause the serious injuries, it was argued that he could not be
held liable for damages falling outside his intent and compensation for “general
damages” such as pain and suffering could not be claimed from him. In
addition, it was argued on behalf of the defendant that, although an actor who
has caused damage to another in a negligent manner may be held liable for
those consequences of his conduct which were reasonably foreseeable, the
defendant in this case should not incur such a wide liability, because the plaintiff
had limited his action to the actio iniuriarum (for which negligence is not
sufficient).
Van Rhyn J rejected this argument, stating:
“I cannot agree with an interpretation which upon analysis, in circumstances like
those in casu, results in our law attaching a lesser responsibility to one who
injures someone intentionally, than one who causes the same injuries
negligently.
The decision of the court justifies the deduction that intent cannot serve as a
criterion for legal causation.
Q&A by @yash0505 7

0
Which two approaches to imputability of damage does Boberg

distinguish between in the case of negligence? Is his explanation
valid? Explain briefly
Depending on whether one prefers the abstract or concrete approach to

negligence, the question of legal causation is answered differently.
Since it is sufficient, according to the abstract approach, if damage in general is
reasonably foreseeable, the question of whether a wrongdoer is liable for a
specific consequence has to be determined separately by applying one or other
of the different criteria for legal causation and not with reference to the question
of whether the wrongdoer had been negligent with reference to that specific
consequence.
However, according to Boberg, the concrete (relative) approach renders an
investigation into legal causation unnecessary, because wrongfulness and
negligence are determined with reference to a specific consequence. According
to this approach, it is unnecessary to undertake an independent investigation
into imputability of damage, because the concrete test for wrongfulness and
negligence supposedly contains all the elements necessary to keep liability
within acceptable limits.
It is true that the question of limitation of liability or legal causation is (tacitly)
answered in most cases during the investigation into wrongfulness and
negligence. Nevertheless, sight must not be lost of the fundamental distinction
between on the one hand, the question of wrongfulness and fault, and on the
other hand, imputability of harm or legal causation merely because in most
cases the latter question is disposed of within the framework of the former
question. The fact remains that the question of whether a wrongdoer should be
held liable for a “remote consequence”, is completely different from the question
of whether the wrongdoer’s conduct was unreasonable according to the legal
convictions of the community (the question of wrongfulness), from the question
of whether the wrongdoer should be legally blamed because he foresaw and
reconciled himself with the consequence and the possible wrongfulness thereof
(the question of intent), and from the question of whether injury was foreseeable
with such a degree of probability that the reasonable man would have taken
steps to avoid injury (the question of negligence). Wrongfulness, fault, factual
causation, and legal causation (imputability of harm) should be clearly
distinguished. Anyone who, eg, drags an element of wrongfulness into the
requirement of fault or damage, or an element of wrongfulness or fault into the
requirement of imputability, is unavoidably caught up in the net of his own
confusion of ideas.
“Legal causation is concerned with a completely different question

to that of fault”. Explain this statement with reference to an
example of liability without fault
In Thandani v Minister of Law and Order it was confirmed that legal causation –
quite apart from fault on the part of the wrongdoer – is a separate requirement
Q&A by @yash0505 7

1
for delictual liability. This case dealt with the possible liability of the defendant for
wrongful arrest and detention, a delict for which fault is not required – in other
words, an example of strict liability. According to the court, a solution to the
problem of liability in casu depended on whether the requirement of causation
was satisfied. Since this was a case of strict liability, the question of fault
apparently played no part with regard to the limitation of liability. In casu Van
Rensburg J employed both the direct-consequences and the reasonable-
foreseeability approaches – but obviously not the basis of fault – to find that
legal causation was present in the facts considered by him.
Q&A by @yash0505 7

2
Study unit 24 – Causation – legal causation: reasonable

foreseeability; novus actus interveniens; so-‐called egg-‐skull
cases (the talem qualem rule)

Describe the relationship between reasonable foreseeability and the
flexible approach for legal causation
Reasonable foreseeability has been used in a number of decisions as a criterion

for legal causation, but in terms of the prevailing flexible approach, it plays a
subsidiary role, just like all the other traditional tests for legal causation. This
implies that reasonable foreseeability should not be seen as the single, decisive
criterion for establishing liability.
According to Van Rensburg, how must reasonable foreseeability, as

a criterion for imputability, be approached?
According to Van Rensburg, in the application of this criterion, the general rule
should apply that “an alleged wrongdoer is normally liable for all the
consequences of his culpable, wrongful act, except for the consequences that
were highly improbable”.
What is a novus actus interveniens?
A novus actus interveniens (new intervening cause) is an independent event

which, after the wrongdoer’s act has been concluded, either caused or
contributed to the consequence concerned.
What is the approach of the Appellate Division in S v Mokgethi to

the role of a new intervening cause in respect of legal causation?
The court held that the omission by the victim (his conduct) to move around in
his chair and thus prevent sores from developing was a novus actus interveniens
and therefore his sores were the factual cause of his death but not the legal
cause of his death.
What are the ways in which a novus actus interveniens can occur?
A novus actus interveniens may be brought about by the (culpable) conduct of

the plaintiff himself, by the (culpable) conduct of a third party, or by natural
forces such as wind and rain. It is important to note that an event will qualify as a
novus actus interveniens only if the event was not reasonably foreseeable. If the
intervening cause was indeed reasonably foreseeable at the moment of the act
(or if it reasonably formed part of the risks inherent in the conduct of the
defendant) such an event may not be considered to be a novus actus
interveniens that may influence imputability of harm to the actor.
Q&A by @yash0505 7

3
Briefly explain what is meant by the concept of an egg-skull case
“Egg-skull cases” arise where the plaintiff, because of one or other physical,
psychological, or financial weakness, suffers more serious injury or loss as a
result of the wrongdoer’s conduct than would have been the case if the plaintiff
had not suffered from such a weakness. Most jurists agree that, in such a case,
the wrongdoer should also be liable for the harm which may be ascribed to the
existence of the weakness concerned – this principle is reflected in the maxim
“you must take your victim as you find him”, and is also identified as the talem
qualem rule.
Given an from case law of an egg-skull case
Wilson v Birt is an example of an egg-skull case. In this case the plaintiff was
injured when employees of the defendant, in demolishing scaffolding around a
building in a negligent manner, caused a pole to fall down which struck the
plaintiff on the back of his head or neck. A few years earlier, the plaintiff had
been stabbed in the forehead with a knife and in the ensuing operation to
extract a piece of the blade; a portion of the plaintiff’s skull bone was removed.
At this spot the skin became attached to the brain. The blow of the pole against
the rear of the head or neck therefore caused a more serious brain injury than
otherwise would have been the case. The court decided that the defendant was
liable for the full extent of the injury, despite the fact that the injury may have
been partially attributed to the existing weak spot on the plaintiff’s head.
“Most jurists agree that in an egg-skull case the wrongdoer must

also be liable for the harm which may be ascribed to the presence
of the weakness. However, there is no agreement on how the
liability of the wrongdoer for such harm should be explained, or
which criterion for legal causation should be used to express
liability in legal terms”. In light of this statement, give an overview
of the approaches suggested by Van Rensburg, Van der Walt and
Midgely, as well as by Van der Merwe and Olivier, and then give
your own point of view in this regard
According to Van Rensburg, in these cases, liability may still be explained with
reference to the reasonable foreseeability norm. He is of the opinion that, as a
result of the particular circumstances present in these cases, the precise
manner in which the consequences occur need not be foreseeable with the
same degree of probability that applies in normal cases.
Van der Walt and Midgely link the egg-skull rule to the “direct consequences”
theory, and believe responsibility embraces any harm flowing from a latent
physical condition of the plaintiff, however unforeseeable or abnormal. The
wrongdoer must “take the victim as he finds him”.
Q&A by @yash0505 7

4
Van der Merwe and Olivier, who strictly adhere to fault as a criterion for
imputability of harm, contend that “the reasonable man cannot be expected to
foresee the unforeseeable”, and declare that the notion that “you must take your
victim as you find him” should be rejected insofar as the reasonable person
would not have foreseen the consequence concerned and that the injured party
should bear the loss himself.
The most acceptable approach to the so-called “egg-skull” cases is made

possible by a flexible criterion for legal causation. The basic question is not
whether the damage was a direct consequence or reasonably foreseeable, but
whether, in light of all the circumstances of the case, amongst others the egg-
skull situation, the damage should reasonably be imputed to the defendant.
Q&A by @yash0505 7

5
Study unit 25 – Damage: patrimonial loss and non-‐patrimonial

loss

What does the concept “compensation for damage” mean?
“Damages” is a monetary equivalent of damage awarded to a person with the

object of eliminating as fully as possible his past as well as future patrimonial,
and, where applicable, non-patrimonial damage. Money is thus intended as the
equivalent of damage.
What does the concept “satisfaction” mean?
If damage or loss is incapable of being compensated because money cannot be

a true equivalent of the impaired interest(s), satisfaction becomes relevant as a
function of the law of delict. Satisfaction implies the reparation of damage in the
form of injury to personality by inter alia effecting retribution for the wrong
suffered by the plaintiff and by satisfying the plaintiff’s and/or the community’s
sense of justice. Usually, satisfaction operates through the mechanism of the
defendant being ordered to pay a sum of money to the plaintiff in proportion to
the wrong inflicted on him.
What is meant by the statement that a wide concept of damage

must be adopted? Answer briefly
This means that damage is a comprehensive concept which consists of

patrimonial as well as non-patrimonial loss (injury to personality).
Define patrimonial loss
Patrimonial loss is the detrimental impact on any patrimonial interest deemed

worthy of protection by the law.
In terms of the juridical concept of patrimony, it consists of all of a person’s
patrimonial rights (namely subjective rights with a monetary value), his
expectations to acquire patrimonial rights, and all legally enforceable obligations
(or expectations) with a monetary value.
What is the content of the comparative methods whereby

patrimonial loss is established?
• The sum-formula approach

Entails the comparison of an actual current patrimonial sum with a
hypothetical current patrimonial sum (the person’s current patrimonial
position after the event, and his hypothetical patrimonial position that
would have been the current position if the event had not taken place).
• Concrete concept of damage
The difference between the patrimonial position of the prejudiced person
before the wrongful act, and thereafter is compared. Damage is the
Q&A by @yash0505 7
6
unfavourable difference.
It is suggested that our law should adopt and follow the concrete
concept of damage, except in instances of prospective loss, liability for
misrepresentation and loss of profit.
At what moment is the damage determined for purposes of

compensation for damages?
According to current authority, the date of commission of a delict is generally the

decisive moment for assessing damage (and this includes future loss). The date
of commission of a delict is the earliest date on which all the elements of a delict
are present. This does not mean that the full extent of the damage should have
occurred, if all the other requirements of a delict are present, the date on which
the first damage is manifested is used (if there is a series of harmful
consequences caused by the delict).
What does the “once and for all” rule mean?
In claims for compensation and satisfaction arising out of a delict, the plaintiff
must claim damages for all damage already sustained or expected in future
insofar as it is based on a single cause of action.
The plaintiff must, generally within three years, institute an action in which he
claims damages for all damage sustained as well as that expected in future.
A plaintiff who has sued with or without success for a part of his damage may
not thereafter sure for another part if both claims are based on a single cause of
action.
What are the practical implications of the “once and for all” rule in
the light of prescription, future damage, and the instituting of more
than one claim on the ground of a single cause of action?
See previous answer.
Explain compensating advantages in one sentence
Compensation received from a third party for damage incurred.
Briefly explain what is meant by the plaintiff’s duty to mitigate
This means that the plaintiff has a duty to take reasonable steps to limit the initial
loss or to prevent further damage, so that the damage does not accumulate.
The defendant is obliged to take all reasonable steps to limit the damage caused
by the defendant’s delict.
A plaintiff who has taken reasonable steps to mitigate loss may also recover
damages for any loss caused by such reasonable steps.
Q&A by @yash0505 7

7
Where the plaintiff has reduced his damages by taking reasonable steps in
mitigation, the defendant is only liable to compensate him for the actual loss he
sustained, even if the plaintiff did more than the law required of him.
The onus of proving that the plaintiff did not properly fulfill his duty to mitigate
rests on the defendant.
Explain the concept “non-patrimonial loss”
Non-patrimonial damage is the detrimental impact (change in or factual

disturbance of) personality interests deemed worthy of protection by the law and
which does not affect the patrimony.
Just as patrimonial damage is defined as a reduction in the utility of patrimonial
interests, non-patrimonial loss is described with reference to interests of
personality. There are rights of personality in regard to the following: physical-
mental integrity, liberty, reputation, dignity, privacy, identity, and feelings.
Q&A by @yash0505 7

8
Study unit 26 – Delictual remedies

Name the three actions that form the pillars of the South African
law of delict
1. Actio legis Aquiliae

2. Actio iniuriarum
3. Action for pain and suffering
Discuss the transmissibility (heritability or cedability) of the three

better-known delictual actions
The Aquilian action is actively a well as passively heritable; similarly, a claim

under this action is freely cedable. Litis contestatio has no effect in this regard
(unlike the position in respect of the actio iniuriarum and the action for pain and
suffering).
The actio iniuriarum and the action for pain and suffering are actively and
passively heritable only after litis contestatio. The claim, therefore, lapses if the
plaintiff or defendant dies before litis contestatio. Claims under these actions are
also not cedable, in any case not before litis contestatio.
What is the aim and function of an interdict in the law of delict?
To avert an impending wrongful act or prevent the continuation of a wrongful act

that has already commenced.
What are the two forms that an interdict can take?
1. Prohibitory interdict (prohibits wrongdoer from committing wrongful act at

all or from continuing with a wrongful act).
2. Mandatory interdict (requires positive conduct on the part of the
wrongdoer to terminate the continuing wrongfulness of an act that has
already been committed).
Name and discuss the three requirements for the granting of an

interdict
1. There must be an act by the respondent.

Which could already have commenced or be merely threatening – may
be a commission or an omission.
2. The act must be wrongful.
Wrongfulness in this regard means that there must be a threat to or an
infringement of a recognised subjective right. This does not imply that
where such a right is absent, wrongfulness in respect of an interdict
cannot also lie in the breach of a legal duty.
3. No other remedy must be available to the applicant.
Q&A by @yash0505 7

9
When does a concurrence of remedies occur?
One and the same act may in principle result in several – different or alternative –
remedies.
An act from which various claims arise, each of which places a distinctive action
at the plaintiff’s disposal gives rise to different remedies. They may be similar (eg
only delictual) or dissimilar (eg delictual as well as contractual).
By contrast, an act from which only one or more claims arise but which offers a
choice between different remedies, results in alternative remedies (eg a choice
between a contractual and a delictual action).
What is an exclusionary clause?
Parties to a contract may restrict their liability – contractual as well as delictual –

through the so-called exclusionary (exemption) clause. The precise restriction on
the wrongdoer’s liability will depend on the interpretation of the clause
concerned, and such interpretation will influence the question of what remedies
the prejudiced party has at his disposal.
Write a short note on the prescription of remedies in respect of the

law of interdict
According to the Prescriptions Act, a delictual debt prescribes (and the delictual
action is thus also extinguished) three years after it originated. With regard to
“third party” claims under the Road Accidents Fund, the period is two (or three)
years.
When does the period of prescription commence?
The period of prescription commences the moment all the elements of a delict
are present and the creditor has knowledge (or ought reasonably to know) of the
identity of the wrongdoer and the facts of the case.
Q&A by @yash0505 8

0
Study unit 27 – Joint wrongdoers

What is a joint wrongdoer according to the Apportionment of
Damages Act?
Joint wrongdoers are defined as persons who are jointly or severally liable in
delict for the same damage.
Briefly explain how the court deals with joint wrongdoing today in
terms of the Apportionment of Damages Act
Joint wrongdoers are in solidum (jointly) liable for the full damage. The plaintiff
therefore has the right to sue whichever joint wrongdoer he chooses for the full
amount of damages. Joint wrongdoers may also be sued in the same action. If
so, the court may order that the joint wrongdoers shall be jointly or severally
liable, and that the payment by one of them shall absolve the others from any
liability to the plaintiff. If the court is satisfied that all the joint wrongdoers are
before it, it may apportion the damages among them on the basis of their
relative degrees of fault, and may give judgment against every wrongdoer for his
part of the damages. Where a plaintiff or a defendant in an action notifies a joint
wrongdoer of the action before litis contestatio, the defendant may claim
recourse (contribution) from that joint wrongdoer is he (the defendant) has paid
the full amount of damages to the plaintiff as a result of a judgment against him.
The right of recourse or recovery of such a defendant is directed at claiming an
amount which, taking into account the respective degrees of fault of the joint
wrongdoers, is considered to be fair. If the plaintiff recovers only part of his
damages from a joint wrongdoer, he may sue any other wrongdoer for the
balance. If a joint wrongdoer pays more than is justified by the degree of his
fault, he may exercise his right of recourse against any of the other joint
wrongdoers.
X and Y break into Z’s shop and steal the entire stock of Z’s
famous ginger beer. Z arrives at the scene just as they start to run
away. Z recognises X. The police find X only after he and Y have
drunk all the ginger beer. Z wants to claim damages from X. Can Z
claim the whole amount of damages from X? How can X improve
his own position?
Z can claim the whole amount of damages from X. The plaintiff has the right to
sue whichever joint wrongdoer he chooses for the full amount of damages. X
may claim recourse from Y.
Say Z above has recognised both X and Y. Can he sue both of

them in the same action? Who will be liable to pay the damages?
Yes he can. Joint wrongdoers may be sued in the same action. The court may
order that the joint wrongdoers shall be jointly or severally liable, and that
Q&A by @yash0505 8

1
payment by one of them shall absolve the others from any liability to the plaintiff.
If the court is satisfied that all the joint wrongdoers are before it, it may apportion
the damages among them on the basis of their relative degrees of fault, and
may give judgment against both of them for their part of the damages.
Q&A by @yash0505 8

2
Study unit 28 – Psychological lesions (emotional shock)

Explain what is meant by “psychological lesion”
A psychological lesion (psychiatric injury or psychological disturbance) may be

described as any recognisable harmful infringement of the brain and nervous
system of a person.
Give an overview of the legal position in respect of emotional shock

prior to the appeal court decision in Bester v Commercial Union
Versekeringsmaatskappy
Prior to Bester, the South African law of delict lacked clear principles in this field.
The courts consistently sought guidance from English law.
This resulted in the imposition of two artificial restrictions on liability for emotional
shock:
1. The shock (or psychological disturbance) must have originated from a
physical injury or resulted in harm to the physical constitution; and
2. The aggrieved party himself must have been in personal danger of being
physically injured.
The first restriction concerns the element of wrongfulness, while the second
constitutes negligence or legal causation.
Write notes on the way in which Bester v Commercial Union

Versekeringsmaatskappy influenced delictual liability for causing
psychological lesions
Bester v Commercial Union Versekeringsmaatskappy replaced the two former

restrictions on liability for causing psychological lesions, with two new principles.
A physical injury was held to be not absolutely necessary to found liability.
Physical and psychological harm were equated. To be actionable, the harm
caused by the shock must be reasonably serious.
The requirement of personal danger was similarly rejected and replaced by the
yardstick of reasonable foreseeability of harm.
With reference to an example, briefly discuss the requirement that

the damage resulting from psychological injury be reasonably
serious to be actionable
“Insignificant emotional shock of brief duration and with no material impact on

the well-being of the person” will not be actionable. The harm caused by the
shock must be reasonably serious to be actionable. For example, in one case,
compensation was awarded for shock sustained as a result of the rape of the
plaintiff’s daughter. Although the plaintiff was not physically harmed, she was
held to have suffered significant emotional shock and trauma, and to still be
continuing to suffer.
Q&A by @yash0505 8

3
What restrictions were imposed on the ordinary delictual principles

that should have been applied in respect of liability for
psychological lesions prior to the Bester case? Do these
restrictions still apply today? Discuss briefly
See answer above, which discusses two artificial restrictions that were imposed.
Name the factors that can influence the question of the reasonable
foreseeability of psychological injury
The following factor may play a role in determining whether the psychiatric injury
was reasonably foreseeable:
The fact that the psychological lesion resulted from the physical injury, was
connected with such injury, or sustained together with it; the fact that the plaintiff
was in personal danger of being physically injured; the fact that the plaintiff was
informed of the death or injury of a close relative; and the fact that the plaintiff
personally witnessed the death or injury of someone with whom the plaintiff had
a close relationship.
The so-called “thin skull” rule finds application in the case of

liability for psychological injury. What does this statement mean?
Discuss briefly
According to this rule (“thin skull” or talem qualem rule), a defendant cannot
escape liability by proving that the plaintiff was particularly susceptible to the
prejudicial consequences of the shock and that the consequences were
therefore not reasonably foreseeable.
Is liability excluded where the prejudiced party who suffered shock

did not personally witness the disturbing incident, but learnt of it?
Briefly discuss with reference to case law
Liability is not necessarily excluded. Examples of liability in cases where the

prejudiced party did not personally witness the disturbing event but merely learnt
of it include: Case where plaintiff learnt of the death of her loved one; case
where defendant, fully aware of the untruth of the information, told the plaintiff
that he had shot and killed the plaintiff’s cousin.
Q&A by @yash0505 8

4
Study unit 29 – Injury or death of another person; pure
economic loss; negligent misrepresentation; interference with
a contractual relationship; unlawful competition;
manufacturer’s liability

What is meant by “pure economic loss”? Discuss with reference to
case law
On the one hand, pure economic loss may comprise patrimonial loss that does
not result from damage to property or impairment of personality (eg where an
insurance broker, the defendant, omitted to nominate the plaintiff as beneficiary
of a policy taken out by her spouse in the place of another person, as a result of
which the plaintiff forfeited the proceeds of the policy at the death of her
spouse).
On the other hand, pure economic loss may refer to financial loss that does flow
from damage to property or impairment of personality, but which does not
involve the plaintiff’s property or person; or if it does, the defendant did not
cause such damage or injury (eg A negligently damages a cable that provides
electricity to B’s (plaintiff) factory. B suffers consequential loss of production).
Name five other specific forms of damnum iniuria datum
1. Injury or death of another person

2. Negligent misrepresentation
3. Interference with a contractual relationship
4. Unlawful competition
5. Manufacturer’s liability
Q&A by @yash0505 8

5
Study unit 30 – The right to physical integrity; the right to a
good name or fama; rights relating to dignitas

Define the concept of defamation
Defamation is the intentional infringement of another person’s right to his good

name. To elaborate, defamation is the wrongful, intentional publication of words
or behaviour concerning another person which has the effect of injuring his
status, good name, or reputation.
Name the requirements for the delict of defamation
• Publication of words or behaviour

• Words or behaviour must have a defamatory effect
• Infringement of a person’s right to his good name (wrongful in the opinion
of the reasonable person)
• Intent
It is not an element of defamation that the defamatory allegation must be false.
In which of the following situations can it be said that, according to

the courts, the publication of (defamatory) words has taken place?
Substantiate your answer
a) Two Japanese tourists in South Africa start arguing and, in

front of a group of South Africans, the one calls the other a
liar and a thief
b) Mr X tells his wife, Mrs X, that Mrs Y, who works at the office
with him, stole some money
c) Mr X tells Mr Y tht his wife, Mrs Y, stole some money at the

office
Publication did take place in (c), but not in (b), and probably not in (a). In (a) the
South Africans probably did not understand the defamatory nature of the
remarks (uttered in Japanese); and in (b) the communication of defamatory
words took place between spouses.
Discuss in detail the test to determine wrongfulness in the case of

defamation
Wrongfulness in respect of defamation lies in the infringement of a person’s right

to good name (fama). The test that is applied is whether, in the opinion of the
reasonable person with normal intelligence and development, the publication
has the tendency to lower the esteem in which the plaintiff is held by the
community. It is very important to remember that this reasonable person test is
not the reasonable person test used to determine negligence. This reasonable
Q&A by @yash0505 8
6
person test is an objective one, and is actually just a convenient way of

expressing the boni mores or reasonableness criterion, which is, of course, the
normal test for wrongfulness. It is also clear that the words used need not
actually lower the plaintiff’s reputation or the esteem in which he is held – the
reasonable person (as a concretisation of the boni mores) must merely think that
the words will probably have that effect.
Mention the most important grounds of justification that are

relevant in the case of defamation
Privelege, truth and public interest, and fair comment.
Identify the ground of justification that a defendant in a defamation

case may use in each of the following situations:
a) P is a patient of doctor D. P develops breast cancer and D

has to perform a mastectomy. The operation leaves P
scarred, and she lays a complaint against the doctor with the
Medical and Dental Council, which decides that the doctor
acted as a reasonable doctor would have in the particular
circumstances. D then accuses P of defaming him
Relative privilege will be applicable here, since the supervisory body (the
Medical and Dental Council) has a duty to hear patients’ complaints
about their doctors, and a patient that feels aggrieved surely has a right
to complain to the Council. Remember that the defence of relative
privilege is only a provisional defence, and the doctor can always prove
that the patient acted with improper motive, in which case the ground of
justification falls away.
b) During a court case in which S is accused of stealing money

from her employer, a witness W testifies that he saw S taking
money from the storeroom. S is later acquitted and wants to
sue W for defamation
Here, too, relative privilege is the relevant ground of justification, since all
defamatory remarks made during a judicial proceeding are privileged, as
long as the remarks are relevant and supported by reasonable grounds.
c) G and F are members of a town council. Both of them want

to be the mayor of the town. During a public meeting that G
arranges in order to address the townsfolk, F reveals that G
was expelled from a university years ago because he was
found guilty of cheating during an examination. G wants to
sue F for defamation
The relevant defence will be truth and public interest. Surely it must be in
Q&A by @yash0505 8

7
the public interest to know about the dishonesty of a person running for
public office. However, the fact that past transgressions should not be
raked up after too long a time is also a factor that should be considered
when deciding whether the defence should be upheld.
Define privilege
Privilege exists where someone has a right, duty, or interest to make specific
defamatory assertions and the person or people to whom the assertions are
published have a corresponding right, duty, or interest to learn of such
assertions.
Distinguish between the two forms of privilege as grounds for

justification for defamation
A distinction must be made between absolute and relative privilege.

In the case of absolute privilege, the defendant is protected absolutely in the
sense that liability for defamation is completely excluded. Thee instances are
regulated statute. Eg, in terms of the Constitution, members of parliament are
given complete freedom of speech during the debates or other proceedings of
parliament.
By contrast, in the case of relative privilege, the defendant enjoys only

provisional or conditional protection. This protection falls away as soon as the
plaintiff proves that the defendant exceeded the bounds of the privileged
occasion.
Write a note on absolute privilege
See previous answer.
Describe relative privilege and discuss the different fixed categories

of relative privilege that have already been developed in our law
In the case of relative privilege, the defendant enjoys only provisional or

conditional protection. This protection falls away as soon as the plaintiff proves
that the defendant exceeded the bounds of the privileged occasion.
A few categories of this privilege have developed in our law. They are the
following:
a) Discharge of a duty, or furtherance of an interest. This category may be
present where a person has a legal, moral, or social duty or a legitimate
interest in making defamatory assertions to another person who has a
corresponding duty or interest to learn of the assertions.
b) Judicial or quasi-judicial proceedings. This category concerns defamatory
statements made during the course of judicial or quasi-judicial
proceedings and applies to all participants therein.
c) Privileged reports.
Q&A by @yash0505 8

8
Write notes on the ground of justification known as “truth and

public interest” in the case of defamation
The prima facie wrongfulness of the defendant’s conduct will be cancelled if he

proves that the defamatory remarks were true and in the public interest. The
defendant need only prove that the remarks are substantially – and not literally –
true, ie, that the sting of the charge is true. What is in the interest of the public
will depend on the boni mores.
Write brief notes on media privilege as a ground of justification
This ground of justification concerns the reasonable publication of false or untrue

defamatory statements by the media. Because media privilege deals with the
publication of untruths, this defence must be applied with caution. When
determining the reasonableness of publication, the boni mores must be applied
(not merely the public interestedness).
Write brief notes on political privilege as a ground of justification
This defence is analogous to media privilege and entails the reasonable

publication of (false or untrue) defamatory allegations on the political terrain. The
factors that can play a part here in determining the reasonableness (or
otherwise) of publication agree with those applicable to media privilege, with one
exception, ie that the publication must be made “with the reasonable belief that
the statements are true”.
Write notes on the ground of justification known as “fair comment”

in the case of defamation
The prima facie wrongfulness of a defamatory publication may be set aside if the
defendant proves that the defamation forms part of a fair comment on facts that
are true and in the public interest. Thus there are four requirements:
a) The defamation must amount to comment and not the assertion of an
independent fact. The test is that of the reasonable person.
b) The comment must be fair (by reference to boni mores).
c) The facts on which the comment is based must be true.
d) These facts must be in the public interest.
Discuss animus iniuriandi as a requirement for defamation
Animus iniuriandi or the intent to defame means “the mental disposition to will
the relevant consequences, with the knowledge that the consequence will be
wrongful”. If one of these elements is absent, there is no question of intent to
defame. If it is certain that the publication is defamatory and that it relates to the
plaintiff, there is, apart from the presumption of wrongfulness, also a
Q&A by @yash0505 8

9
presumption that the defamation was committed intentionally. The burden of

rebutting the presumption is on the defendant.
Discuss the grounds excluding intent in the case of defamation
Mistake: If a person is unaware of the wrongfulness of his defamatory

publication because for whatever reason he bona fide thinks or believes that his
conduct is lawful, consciousness of wrongfulness, which is an essential element
of intent, and therefore also intent, are absent as a result of his mistake. His
mistake therefore rebuts the presumption of animus iniuriandi and in this way
becomes a ground excluding intent.
Jest: If the defendant proves that he published the defamatory words in jest, in
circumstances where his will was not directed at the infringement of the
prejudiced person’s right to good name, directing of the will as essential
requirement of intent is absent and he should be able to rebut the presumption
of animus iniuriandi. The courts, however, incorrectly fail to follow this approach.
For a successful plea of jest, the courts require that the (reasonable) bystander
should also have regarded the words as a joke. If that is indeed the case, the
defendant is not liable; if not, the defendant is held liable, evidently irrespective
of the actual absence or presence of animus iniuriandi.
Is intent a requirement for liability of the press and other media in

the case of defamation? Discuss
Although animus iniuriandi is traditionally required for defamation, negligence

has, over the course of time, been accepted as the fault requirement for certain
forms of defamation. In the first place, liability based upon negligence has been
recognised for distributors and sellers of printed matter (eg newspapers and
magazines) containing defamatory matter. Secondly, there are judgments on the
liability of the press for defamation recognising non-intentional but negligent
mistake as a ground for liability. Thirdly, a general principle was introduced in
National Media Ltd v Bogoshi that negligence is sufficient for defamation by the
mass media. Finally, there is case law that wants negligence recognised for all
instances of actionable defamation, and not only in respect of the mass media.
Name five other forms of personality infringement
1. The right to corpus or body

2. Seduction
3. Wrongful deprivation of liberty or wrongful arrest
4. Malicious deprivation of liberty
5. Malicious prosecution
6. Attachment of property
7. The right to dignity
8. The right to privacy
9. The right to identity
10. Breach of promise
Q&A by @yash0505 9

0
11. Adultery
12. Abduction, enticement, and harbouring.
Explain what the right to dignity is and, briefly, how it is infringed
A person’s dignity is recognised in our law as an independent personality right

within the concept of dignitas. A person’s dignity embraces his subjective
feelings of dignity or self-respect. Infringement of a person’s dignity accordingly
consists of insulting that person. There are an infinite number of ways in which a
person may be insulted. To be classified as wrongful, the behaviour must not
only infringe the subjective feelings of dignity (factual infringement of a legal
object), but must at the same time be contra bonos mores.
Explain what the right to privacy is and, briefly, how it is infringed
Privacy is an individual condition of life characterised by seclusion from the

public and publicity, the extent of which is determined by the individual himself.
This implies an absence of acquaintance with the individual or his personal
affairs in this state. Accordingly, privacy can only be infringed by unauthorised
acquaintance by outsiders with the individual or his personal affairs.
There are two ways in which such acquaintance may occur: firstly, when an
outsider himself becomes acquainted with the individual or his person affairs
(which may be described as intrusion) and secondly, where the outsider
acquaints third parties with the individual or his personal affairs which, although
they are known to the outsider, remain private.
Explain what the right to identity is and, briefly, how it is infringed
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.
Two forms of wrongful identity infringement, which have developed into two
independent “torts” in American law, are the public falsification of the personality
image (“false light tort”) and the economic misappropriation of identity indicia
(especially for advertising purposes).
Q&A by @yash0505 9

1
Study unit 31 – General: Damage caused by animals

Discuss in detail the requirements for success with the actio de
pauperie with reference to case law, as well as the defences that
can be raised against the action
Requirements:
1. The defendant must be the owner of the animal when the damage is
inflicted (mere control over the animal is insufficient).
3. The animal must act contra naturam sui generis when inflicting the
damage (contrary to what may be expected of a decent and well-
behaved animal of its kind).
4. The prejudiced person or his property must be lawfully present at the
location where the damage is inflicted.
Defences:
Vis maior, culpable or provocative conduct on the part of the prejudiced person,
culpable conduct on the part of an outsider, and provocation by another animal.
Apart from these, the defence of volenti non fit iniuria in the form of voluntary
assumption of risk is also available to the defendant.
In which instances is the actio de pastu applied?
With this action, damages are claimed from the owner of an animal which
caused loss by eating plants.
Name the requirements for the actio de pastu
1. The defendant must be the owner of the animal when the damage is
caused.
3. The animal must act of its own volition when causing the damage.
Answer the following questions in respect of each of the factual

situations described below:
a) B is delivering mail to A’s house and A’s dog bites her.

b) B plans to visit her friend, C, who is looking after A’s house. C mentions
to B that there is a vicious dog on the premises, but promises to have the
dog locked up before B arrives. B arrives at the appointed time, but on
entering the premises, the dog comes running around the corner of the
house and bites her leg.
c) A’s cattle graze on B’s crops after one of A’s employees left the gate
between A and B’s farm open.
Q&A by @yash0505 9

2
i. What action is available to B in order to recover the

damages?
ii. Against whom does B institute the action?
iii. How would you substantiate your answer?
a) (i) The actio de pauperie

(ii) Against the owner A
(iii) All the requirements for the action are met (see above).
b) (i) The actio legis Aquiliae and the action for pain and suffering.
(ii) Against C
(iii) The owner cannot be liable in terms of the actio de pauperie. C is
liable because of her negligence. The plaintiff must therefore institute
ordinary delictual actions for patrimonial loss (medical costs, etc) and
pain and suffering.
c) (i) The actio de pastu

(ii) Against A
(iii) All the requirements for the action are met (see above). Negligence of
a third party (the employee) does not exclude the owner’s liability.
Q&A by @yash0505 9

3
Study unit 32 – Vicarious liability

Describe the concept “vicarious liability”
Vicarious liability may in general terms be described as the strict liability of one
person for the delict of another. This liability applies where there is a particular
relationship between two persons.
Name three relationships to which vicarious liability applies
1. Employer – employee
2. Principal – agent
3. Motorcar owner – motorcar driver
4. State – public school
Name the requirements for an employer to be vicariously liable for a

delict of his employee
1. There must be an employer – employee relationship at the time when the

delict is committed.
2. The employee must commit a delict.
3. The employee must act within the scope of his employment when the
delict is committed.
Name the requirements for vicarious liability that arises from the
motorcar owner – motorcar driver relationship
1. The owner must request the driver to drive the vehicle or supervise his
driving.
2. The vehicle must be driven in the interest of the owner.
3. The owner must retain a right (power) of control over the manner in which
the vehicle is driven.
Q&A by @yash0505 9

4
Study smart.
Q&A by @yash0505 9

5
3 PVL303Y/201
COMMENTARY ON ASSIGNMENT 01
Questions are based on the content of Study Units 1-8.
ANSWER THE QUESTIONS BY CHOOSING ANSWER 1, 2, 3 OR 4 AND BY INDICATING

YOUR CHOICES ON THE MARK-READING SHEET
Each question counts 1 (one) mark.
QUESTION 1
Which one of the following things is a composite thing?
(1) a dog
(2) a motor
(3) a glass
(4) a brick
ANSWER: (2)
COMMENTS:
(1) A dog is a singular thing.

(2) A motor is a composite thing and is made up of constituent parts which lost their
individuality.
(3) A glass is a singular thing.
(4) A brick is a singular thing.
QUESTION 2
Which option is not a feature or characteristic of real rights?
(1) The rule prior in tempore potior in iure applies to real rights.
ANSWER: (3)
COMMENTS:
(1) In the case of insolvency the maxim first in time stronger in law (prior in tempore potior in
iure) will apply in the case of two or more competing real rights.
(2) In the case of insolvency a real right enjoys preference over other rights.

(3) Real rights are absolute in principle and the real right holder can enforce his/her
right against bona fide third parties.
(4) The object of a real right is a corporeal thing (leaving aside the exception of a pledge of
claims).
QUESTION 3
Which option does not reflect a recognised subdivision of neighbour law?
(1) lateral support

(4) nuisance
ANSWER: (2)
COMMENTS:
The recognised subdivisions of neighbour law are: nuisance; lateral and surface support;
encroachments; surface water; party walls and fences and elimination of danger.
(1) Lateral support is a recognised subdivision of neighbour law.
(2) Planting of trees is not a recognised subdivision of neighbour law, it is a subdivision of
encroachments.
(3) Interference with the natural flow of water is a recognised subdivision of neighbour law.
(4) Nuisance is a recognised subdivision of neighbour law.
QUESTION 4
(1) a carp swimming around in the Roodeplaat dam

(2) a kudu grazing on Q and R’s game farm which is fenced by means of a 3-metre high
game proof fence and with the mark QR on them
(3) a wounded impala which has been shot on X’s unfenced farm and which is being
pursued by hunter Z
(4) a Congolese wood parrot which lived for two years in an open cage in the lounge of
Z’s Waterkloof home, but flew away and now lives in the trees at Magnolia Dell
ANSWER: (2)
COMMENTS:
(1) A carp swimming around in the Roodeplaat dam is a thing that is susceptible to ownership,
but that belongs to no-one at this particular stage and can therefore be categorized as a res
nullius.
(2) A kudu grazing on Q and R’s game farm which is fenced by means of a 3-metre high game
proof fence and with the mark QR on him belongs to Q and R and forms part of Q and R’s
estate and can therefore be classified as a res alicuius.

5 PVL303Y/201
(3) A wounded impala which has been shot on X’s unfenced farm and which is being pursued by
hunter Z is a res nullius. If Z catches it he can obtain ownership through appropriation if all
the requirements are met.
(4) A Congolese wood parrot which lived for two years in an open cage in the lounge of Z’s
Waterkloof home, but flew away and now lives in the trees at Magnolia Dell reverted to his
former wild state, after having been controlled by a person, and is regarded as a res nullius.
(Study Guide pages 36 and 70)
QUESTION 5
Indicate when natural interruption of prescription will occur:
(1) when a person is absent from the country because of war

(2) when a fiduciarius has alienated fideicommissary goods without the power to alienate it
(3) when summons, claiming ownership of the thing, is served
(4) when the acquirer lost possession of the thing, by relinquishing it voluntarily or when
the thing was forcibly taken from him/her.
ANSWER: No correct answer. Please note that all students will get a mark for
COMMENTS:
(1) Prescription will be suspended when a person is absent from the country because of
war.
(2) Prescription will be suspended when a fiduciarius has alienated fideicommissary goods
without the power to alienate it.
(3) Prescription will not be interrupted when summons, claiming ownership of the thing, is
served. Interruption only occurs if the person who claims ownership succeeds in
carrying his/her claim to the final judgment.
(4) Prescription will not be interrupted when the acquirer lost possession of the thing, by
relinquishing it voluntarily or when the thing was forcibly taken from him/her.
Prescription can only be interrupted through voluntary loss of possession.
QUESTION 6
Which option is not a requirement or characteristic of treasure trove as an original mode of

acquisition of ownership?
(1) The treasure must be a valuable movable or immovable thing.

(4) A valuable thing lying openly on the ground can never qualify as a treasure for purposes of
treasure trove.
ANSWER: (1)

COMMENTS:
(1) The treasure must be a valuable movable thing. The treasure cannot be an immovable
thing.
(4) A valuable thing lying openly on the ground can never qualify as a treasure for purposes of
treasure trove.
QUESTION 7
Indicate the false option in respect of the requirements for attornment:
(1) A tripartite agreement must exist between all three parties concerned.
(2) The third party (holder) must be in control of the thing when the tripartite agreement is
concluded.
(3) The third party (holder) can consent in advance to a future transfer of ownership.
(4) In Caledon en SWD Eksekuteurskamer Bpk v Wentzel (1972 1 SA 270 (A)) the court held
that all the requirements for attornment were complied with.
ANSWER: Both 3 and 4 are incorrect. Please note that all students will get a mark for this
question irrespective of their answer.
COMMENTS:
(1) One of the requirements for attornment to take place is that there must be a tripartite
agreement between the transferor, the transferee and the third party holder in terms of
which the holder will continue to hold for the transferee and no longer for the transferor.
(2) Another requirement for attornment to take place is that the third party (holder)
should exercise physical control at the moment of transfer from the transferor to the
transferee.
(3) In Caledon en SWD Eksekuteurskamer Bpk v Wentzel (1972 1 SA 270 (A)) the court held
that the third party (holder) can consent in advance to a future transfer of ownership. In this
case a new form of delivery was recognized.
(4) In Caledon en SWD Eksekuteurskamer Bpk v Wentzel (1972 1 SA 270 (A)) a new form of
delivery was acknowledged.
QUESTION 8
Give an example of delivery with the long hand:
(1) A flock of sheep pointed out in the presence of the transferee.

(2) The delivery of the keys to a motor.
(3) X bought a watch from a jeweller and leaves it with the jeweller for cleaning.
(4) X hires a motor from Y and then purchases it from Y.
ANSWER: (1)

7 PVL303Y/201
COMMENTS:
(1) A flock of sheep pointed out in the presence of the transferee is an example of delivery
with the long hand (traditio longa manu).
(2) The delivery of the keys to a motor is an example of symbolic delivery.
(3) An example of constitutum possessorium would be when X buys a watch from a
jeweller and leaves it with the jeweller for cleaning.
(4) An example of delivery with the short hand (traditio brevi manu) would be when X hires
a motor from Y and then purchases it from Y.
QUESTION 9
(1) In order to succeed with the Aquilian action a causal connection between the patrimonial
loss and the conduct of the defendant a just balance between the public interest and the
interests of those affected has to be proved.
intentional or negligent act.
(4) The Aquilian action is available to the owner of the damaged thing only.
ANSWER: Both 2 and 4 are incorrect. Please note that all students will get a mark for this
question irrespective of their answer.
COMMENTS:
patrimonial loss and the conduct of the defendant has to be proved.
unlawful intentional or negligent act, thus culpability of the defendant.
(4) The Aquilian action is available to anyone who has a proprietal right or interest in the
damaged thing, thus not only owners.
QUESTION 10
A purchaser who is not the owner of a thing, but who has the intention of an owner on the
incorrect assumption that he/she is the owner is a:
(1) bona fide possessor

(3) mala fide possessor
(4) bona fide unlafwul holder
ANSWER: (1)

COMMENTS:
(1) A person who is not the owner of a thing because he/she does not comply with the
requirements for vesting of ownership, but who has the intention of an owner on the
incorrect assumption that he/she is the owner is a bona fide possessor.
(2) A person who knows that he/she does not have the owner’s consent for controlling the
thing, but still exercises physical control over it for the sake of the benefit he/she can derive
from it is a mala fide unlawful holder.
(3) A person who is aware of the fact that he/she is not legally recognised as the owner of a
thing since he/she does not conform to the requirements of ownership, but whom
nevertheless has the intention of an owner is mala fide possessor.
(4) A person who physically controls the thing unlawfully, but he/she is unaware of the fact,
since he/she is under the incorrect impression that he/she has the necessary permission or
legal ground to control it is a bona fide unlawful holder
TOTAL: [10]
QUESTION 1
Z rents a billiard room in Newtown from S. In terms of the lease agreement Z is not allowed to
serve alcohol on the premises or stay open after twelve at night. S and Z insert a term in the
agreement entitling S to take control of the premises if Z contravenes any of the terms of the
lease. Z serves alcohol to his friends on the premises and holds rowdy parties until sunrise. The
neighbours complain to S about this. S removes the locks from the building and fits new locks. He
locks all entrances to the premises and effectively debars Z from using or entering the premises. Z
applies for a spoliation order.
Answer the following questions:
(a) What is Z’s real relationship with the billiard room? (4)
ANSWER:
Z is a lessee (1) and before S removed the locks Z had physical control (1) of the billiard room
with the permission of S (1) in order to derive a benefit (1) from it. Therefore Z is a lawful holder
(1). The lease agreement is the legal ground in which S’s permission is incorporated. (1)
(Maximum 4 marks)
(b) Write brief notes on the nature and purpose of the spoliation remedy (7)
ANSWER:
The purpose of the spoliation remedy is to protect the legal order (1) in a unique way. Also it is
aimed at the prevention of self-help (1) which may result in a breach of the peace. (1) A spoliation

These questions are based on the Study Units 1-8.

ANSWER THE QUESTIONS BY CHOOSING ANSWER (1), (2), (3) OR (4) AND BY
INDICATING YOUR CHOICES ON THE MARK-READING SHEET
1 Which option is the odd one out?
(1) chair
(2) freedom
(3) patent
(4) performance
Answer: (2)
Comments:
(1) A chair is a movable thing and forms part of the estate of a person.
(2) Freedom is a constitutional right and does not form part of a person’s estate.
(3) A patent is an immaterial property right and forms part of a person’s estate.
(4) A performance is a personal right or a creditor’s right and forms part of a person’s estate.
(Study Guide p 41-49)
2 Which one of the following real relationships is always lawful?
(1) bona fide possession
(2) ownership
(3) holdership
(4) mala fide possession
Answer: (2)

PVL3701/201
Comments:
(1) Possession is always unlawful, thus a mere real relationship. A bona fide possessor
thinks he/she is the owner but is not.
(2) Ownership is always lawful, thus a real right.
(3) Holdership can be lawful or unlawful. A holder never has the intention of an owner, but
the intention to derive a benefit. A lawful holder has a real right for example a. pledgee or
usufructruary. An unlawful holder has a mere real relationship, it can be bona fide for
example a lessee who thinks the lease agreement is valid but it isn’t, or it can be mala
fide, for example a lessee who knows the lease agreement has expired but stays on.
(4) Possession is always unlawful. A mala fide possessor knows he is not the owner but
holds a thing as if he is the owner, for example a thief.
(Study Guide p 35 and 197)
3 Which option is not a feature or characteristic of real rights?
(1) The rule prior in tempore potior in jure applies to real rights.
Answer: (3)
Comments:
(1) In the case of insolvency, a real right enjoys preference over other rights. The prior in
tempore potior in jure rule means that “first in law is stronger in right” and is applied in the
case of two or more competing real rights, therefore this option is a feature of real rights.
(2) As mentioned above real rights enjoy preference over other rights upon insolvency. This
option is therefore a feature of real rights.
(3) Real rights are absolute in principle and therefore enforceable against the whole world. A
person who has a real right over a thing can vindicate it (subject to certain exceptions)
from whomever is in control of it.
(4) The object of a real right is a corporeal thing.


4 In which case did the court formulate the following test:

“If the obligation is a burden upon the land, a subtraction from the dominium, the corresponding right is real
and registrable.”
(1) Lorentz v Melle (1978 (3) SA 1044 (T))

(2) MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd (1915 AD
454)
(3) Theatre Investments (Pty) Ltd v Butcher Brothers (Ltd) (1978 (3) SA 682 (A))
(4) Ex parte Geldenhuys (1926 OPD 155)
Answer: (4)
Comments:
(1) In Lorentz v Melle (1978 (3) SA 1044 (T)) the court amongst other things drew a
distinction between a real right and a personal right. This case is not a prescribed case.
(2) In MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd (1915
AD 454) the court applied three criteria to determine whether a movable thing is attached
to an immovable thing by means of accession in such a fashion that it subsequently
becomes part of the immovable thing.
(3) Theatre Investments (Pty) Ltd v Butcher Brothers (Ltd) (1978 (3) SA 682 (A)) concerned
the question whether a movable became part of an immovable by means of accession.
(4) This is the correct option. In Ex parte Geldenhuys (1926 OPD 155) a test called the
“subtraction from the dominium test” was formulated.
The test was formulated as follows:

One has to look not so much to the right, but to the correlative obligation. If that obligation is a burden upon
the land, a subtraction from the dominium (ownership), the corresponding right is real and registrable; if it is
not such an obligation, but merely an obligation binding on some person or other, the corresponding right is
a personal right, or right in personam, and it cannot as a rule be registered (164)

5 Which option does not reflect a recognised subdivision of the law of neighbours?
(1) lateral support
(4) nuisance
Answer: (2)

PVL3701/201
Comments:
(1) Lateral support is subdivision of neighbour law and means that every owner of a piece of
land is entitled to support from his/her neighbour’s land. Excavations must be made with
that in mind.
(2) Planting of trees is not per se a subdivision of neighbour law. The encroachment of the
branches and roots of a tree is a subdivision of neighbour law.
(3) Interference with the natural flow of water is a subdivision of neighbour law. Every owner
of land has to receive the natural flow from water adjoining land. An upper owner may not
interfere with the natural flow of the water in a manner that would be to the disadvantage
of the lower owner.
(4) Nuisance as a subdivision of neighbour law, essentially entails the balancing of the
interests of neighbours. The criterion by which the balancing of interests takes place is
that of reasonableness. An owner must exercise his/her entitlements as owner
reasonably and the neighbour should endure such exercise in a reasonable manner.
(Study guide p 75-78)
6 Give an example of vindication as an entitlement of ownership.
(1) X can register a bond over his property
(2) X can burn his book.
(3) X can claim his motor from Y.
(4) X can donate his bike to Y.
Answer: (3)
Comments:
(1) To register a bond over property is an example of the entitlement to burden property by
granting a limited real right over your thing to someone else.
(2) An owner is entitled to destroy his/her property. To burn a book is an example of the
entitlement to destroy property.
(3) An owner is entitled to claim his/her thing from anyone who is unlawfully in control of it.
To do this the owner uses the rei vindicatio – this remedy is the real action with which the
thing is claimed by the owner. This entitlement is therefore called the entitlement to
vindicate.
(4) An owner is entitled to alienate his/her thing. X can alienate his bike by donating or
selling it to Y.

7 Which option is not a requirement or characteristic of manufacture (specificatio) as an

original mode of acquisition of ownership?
(1) A new thing must be created.
(2) The new thing should be produced using material which belongs to someone else.
(3) The owner of the material does not lose his ownership.
(4) The production of the new thing must not be authorised by the owner of the material.
Answer: (3)
Comments:
(1) For specificatio to take place a completely new thing has to be manufactured, for
example wine from grapes.
(2) For specificatio to take place the manufacturer should have used a thing belonging to
another.
(3) If specificatio takes place the owner of the material loses his/her ownership. Specificatio
is an original method of acquisition of ownership which means that the owner of the
thing, in this case of the material, does not cooperate, but still loses his/her ownership.
(4) If the production of the new thing is authorised, specificatio does not take place. The
production of a new thing must be unauthorised. It is important to note that if the
manufacturer was bona fide under the impression that the material belonged to him/her
or if he/she knew that they belonged to someone else, the owner of the material can
institute an enrichment action for the value of the material or a claim for damages.
(Study Guide p 114 -115)
8 In which case did the court formulate the following criteria in order to establish whether a
movable has become permanently attached to an immovable: the nature and the
purpose of the attached thing, the manner and degree of attachment and the intention of
the person annexing it?
(1) Standard-Vacuum Refining Co v Durban City Council (1961 (2) SA 669 (A))
(2) Konstanz Properties (Pty) Ltd v WM Spilhaus en Kie (Wp) Bpk (1996 (3) SA 273 (A))
(3) MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd (1915 AD
454)
(4) Theatre Investments (Pty) Ltd v Butcher Brothers (Ltd) (1978 (3) SA 682 (A))
Answer: (3)

PVL3701/201
Comments:
(1) In Standard-Vacuum Refining Co v Durban City Council (1961 (2) SA 669 (A)) Van
Winsen AJA distinguished between an objective intention and a subjective intention.
(2) In Konstanz Properties (Pty) Ltd v WM Spilhaus en Kie (WP) Bpk (1996 (3) SA 273 (A))
the court applied the three requirements as set out in the MacDonald case. Nienaber JA
held that the third requirement was decisive, although he expressed unease about the
correctness of the approach. He held that in the specific circumstances of the case and
the subjective intention of the owner of the movables attached thereto was decisive. The
ownership of the attached components therefore did not pass to the landowner by means
of accession. The court stated that there was a possibility that in other circumstances the
subjective intention of the owner may not prevail.
(3) In MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd (1915
AD 454) the court applied three criteria to determine whether a movable thing is attached
to an immovable thing by means of accession in such a fashion that it subsequently
becomes part of the immovable thing, namely:
(i) the nature and purpose of the attached thing

(ii) the manner and degree of attachment; and
(iii) the Intention of the person annexing it or the intention of the owner of the movable
(4) In Theatre Investments (Pty) Ltd v Butcher Brothers (Ltd) (1978 (3) SA 682 (A) 688) Van
Winsen AJA remarked (at 688) that all the direct and inferential evidence as to the
intention would have to be considered together and that in the light of that evidence it
would have to be decided on a balance of probabilities whether the annexor intended a
permanent attachment.
9 Which option is the odd one out?
(1) symbolic delivery
(2) delivery with the short hand
(3) constitutum possessorium
(4) appropriation
Answer (4)
Comments:
(1) Symbolic delivery is a derivative method of acquiring ownership.
(2) Delivery with the short hand is also a derivative method of acquiring ownership.
(3) Constitutum possessorium is also a derivative method of acquiring ownership.
(4) Appropriation is an original method of acquiring ownership.

(Study Guide p 91-92, 132, 137-141)

10. Indicate the correct option.

In Nino Bonino v De Lange (1906 TS 120) the court considered the validity of a clause
contained in a lease agreement in terms of which the lessor was entitled under certain
circumstances to effectively debar the lessee to have access to the premises.
(1) The court decided that a clause in a lease agreement that allowed the parties to the
agreement to take the law into their own hands was valid.
(2) The court held that parties in certain circumstances should be allowed to be the judge of
whether a breach of the contract had taken place.
(3) Innes CJ stated that only a court of law, and not the parties to the agreement, could
decide whether a breach of contract had been committed.
(4) Innes CJ stated that the lessee’s application for the spoliation remedy should fail,
because the lessor’s actions were authorised by the lease agreement.
Answer: (3)
Comments:
(1) In Nino Bonino v De Lange the court decided that a clause in a lease entitling the lessor
to take the law into his/her hands was invalid.
(2) In Nino Bonino v De Lange the court held that under no circumstances the parties can be
allowed to decide if there was a breach of contract, because this would mean that the
lessor acted as the judge in his/her own case.
(3) In Nino Bonino v De Lange Innes CJ stated that only a court, and not the parties to the
agreement, could determine if a breach of contract occurred.
(4) In Nino Bonino v De Lange the court held that the lessee must succeed with his
application for a spoliation order seeing that his control was unlawfully disturbed. The
clause in the contract entitling the lessor to deny the lessee access to the leased
premises under certain circumstance allowed the lessor to be the judge in his/her own
case and was invalid.
(Nino Bonino v De Lange 1906 TS 120)
TOTAL: [10]
10

See Pappalardo v Hau 2012 (2) SA 451 (SCA) and Study Guide pages 78-79.
Students should have formulated the answer in their own words.

TOTAL: [10]
3. COMMENTARY ON ASSIGNMENT 02

Where owners encroach on their neighbour's land, the rules regarding encroachments
come into operation. This is an example of:
(1) A limitation on the real right (ownership) of an owner imposed by the rights of other
legal subjects.
(2) A limitation on the personal right of a legal subject imposed by the real right
(ownership) of an owner.
(3) A limitation on the real right (ownership) of an owner imposed by the law.
(4) A limitation on the personal right of a legal subject imposed by the law.
ANSWER: 3
REMARK: Ownership which is the most comprehensive real right can be limited.
Encroachments are an example of a limitation in terms of the law.
See Study Guide pages 73-77.
2. Indicate the incorrect option.

The criteria applied by the courts to determine whether a movable thing became attached
to an immovable thing by means of accession in a way that it became part of the
immovable thing are:
(1) the intention of the person annexing it
(2) the manner and degree of attachment
(3) the intention of the owner of the immovable thing
(4) the nature and purpose of the attached thing

PVL3701/201
ANSWER: 3
REMARK: Basically three criteria are applied by the courts to determine whether a movable
thing became attached to an immovable thing by means of accession in such a
fashion that it subsequently became part of the immovable thing. These are the:
i. nature and purpose of the attached thing;
ii. manner and degree of attachment and
iii. intention of the person annexing it or intention of the owner of the movable
thing.
See Study Guide page 104.

Which one of the following examples is an example of delivery with the short hand?
(1) Because of its size and weight the transferor delivers a load of timber by pointing it
out to the transferee in the presence of the timber.
(2) The transferee is a buyer of a car in terms of an installment sale and on payment of
the last installment, he acquires ownership.
(3) The transferee buys bread in a supermarket.
(4) The transferor hands over the keys of a car to the transferee.
ANSWER: 2
REMARK: Option 1 is an example of delivery with the long hand.
See Study Guide pages 133-134
Option 2 is correct because in terms of delivery with the short hand no transfer of
physical control of the thing, in this case a car takes place. This is so because the
transferee is already in control of the thing, although not as owner. There should
be a clear indication of the intention requirement and some clear proof that the
transferee holds on a new basis as owner.
Please take note that this is a form of constructive or fictitious delivery. In the
past we have asked in the examination that students should discuss delivery with
the short hand and that they should give an example as well. Many students
made the mistake of referring to an example such as the following: X rents a flat
from Y, and while she is occupying the flat she decides to buy the flat. Why is this
example wrong? This example is wrong because a flat is an immovable thing. For
X to be able to become the owner of the flat registration is also required. If the
example was that X was renting a car form Y and while the car was under X’s
control X decides to buy the car from Y it would have been correct, because a car
is a movable thing.
See Study Guide pages 137-139

Option 3 is an example of actual delivery.
Option 4 is an example of symbolic delivery. The key of a car is a token or

“symbol” of the thing (the car) that is delivered. The car cannot be handed over
physically because it is too big.

Which one of the following remedies can be classified as a delictual remedy?
(1) actio negatoria
(2) condictio furtiva
(3) interdict
(4) rei vindicatio
ANSWER: 2
REMARK: The condictio furtiva is a delictual remedy. The other three remedies are property
law remedies.

S has a right of way over Q and R’s Farm, Pulang. S has a wine farm and uses the road to
transport wine to different shops in the area. One day S and Q and R have a difference of
opinion, after which Q and R locks the gate that gives S access to the road. Which remedy
is available to S?
(1) mandatory interdict
(2) rei vindicatio
(3) declaration order
ANSWER: 1
REMARK: S can apply to court for a mandatory interdict to compel Q and R to open the
gate.

PVL3701/201
A person who encroaches on his neighbour’s land, unaware that he is doing so
(1) becomes the owner of that piece of land.

(2) is the bona fide possessor of that piece of land.
(3) is the lawful holder of that piece of land.
(4) is the mala fide possessor of that piece of land.
ANSWER: 2
REMARK: Such a person is bona fide possessor because he/she is unaware of the fact that
he/she does not meet all the requirements for ownership.
7. Indicate the correct statement.

(1) Real security rights are personal rights over another person’s thing.
(2) Personal security and real security are the basic forms of credit security.
(3) The law of property is concerned with the principles of real security rights and of
suretyship.
(4) Real security rights are divided into conventional security right and express security
rights.
ANSWER: 2
REMARK: Option 1 is incorrect. Real security rights are limited real rights.
Option 2 is correct.
Option 3 is incorrect. The law of property is not concerned with the principles of
suretyship, it falls under the law of obligations.
Option 4 is incorrect. Conventional security rights and express security rights are
one and the same thing. There is ‘n difference between conventional security
rights and tacit mortgages.


The following are requirements for the constitution of a valid pledge:
(1) registration
(2) security agreement
(3) principal debt
(4) delivery
ANSWER: 1
REMARK: Registration is not a requirement for the constitution of a valid pledge. A principal
debt, a pledge agreement and delivery of the pledgor’s thing are required to
constitute a valid pledge. Registration is required for the establishment of a
conventional mortgage.
See Study Guide pages 261 and 269.

The following substances are regarded as a “mineral” in terms of the Mineral and
Petroleum Resources Development Act 28 of 2002:
(1) clay
(2) rock
(3) petroleum
(4) sand
ANSWER: 3
REMARK: Petroleum is excluded from the definition of “mineral” in the Mineral and
Petroleum Resources Development Act 28 of 2002.

In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service: First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768
(CC) the court held that:
(1) the provisions of section 114 of Act 91 of 1964 were declared to be constitutionally
invalid to the extent that they provided that goods owned by persons, other than the
person liable to the state for the debts described in the section, were subject to a lien,
detention and sale.
(2) a deprivation of property was 'arbitrary' as meant by section 25 when the 'law'
referred to in section 25(1) did not provide sufficient reasons for the particular
deprivation in question or was procedurally unfair.
(3) it is sufficient to hold that ownership of a corporeal movable must - as must
ownership of land - lie at the heart of our constitutional concept of property.
10

PVL3701/201
(4) after section 36(1) was applied that the infringement by section 114 on section 25(1)
of the 1996 Constitution was reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom.
ANSWER: 4
REMARK: Option 1 is correct.
See par 109 of the case.
See Study Guide pages 316-317 and par 51 of the case.
Option 4 is incorrect. The judge held that the infringement could not be justified
by section 36.
TOTAL: [10]
QUESTION 1
Define:
(a) ownership (7)
ANSWER:
Ownership is the most comprehensive (1) real right (1) a person can have with regard to a thing
(1). In principle, a person can act upon and with his thing as he/she pleases.(1) This apparent
freedom is restricted (1) however, by the law (1) and the rights of others. (1)
11

Y clearly took control of the golf club when he removed it from the water, the thing (golf club) is
in the legal sphere and Y seemingly has the intention of becoming the owner of the golf club, he
cannot become the owner. (1) {One mark if students explained that these elements are
present.}
The question is: Is the golf club a thing that does not belong to anyone – a res nullius?
Res nullius are things that are susceptible of ownership, but that belong to no one at a particular
stage or a thing that has been thrown away by its owner who no longer intends to be the owner
(res derelictae). (1) In light of this description of res nullius one can argue that the golf club is
not res nullius, because X clearly still had the intention of ownership of the golf club. (1)
Based on the consideration of the elements of appropriation it seems as if X is still the owner
of the golf club. (1)
(Study Guide pages 45-46 & 90-93)
QUESTION 1
Indicate the wrong option.
In MacDonald Ltd v Radin & The Potchefstroom Dairies & Industries Co, Ltd (1915 AD 454)
(1) the court stated that the acquisition of ownership by way of accession was an exception
to the principle that nobody could confer a better title than he/she had;
(2) Innes CJ referred to Olivier v Haarhof (1906 TS 497) where it was decided that when it
had to be determined whether a movable thing became permanently attached to land
each case had to be decided on its own facts;
(3) the court decided that the plaintiff could not remove the machinery because such removal
would cause substantial injury to the building;
(4) Solomon JA referred to the principle in Justinian’s Institutes (2, 1, 29) which entailed that
if someone used material which belonged to someone else to build on his/her own land,
he/she became the owner of the building that was built on that land.
ANSWER: (3)
REMARKS:
(1) This option is correct. Innes CJ stated that this exception is true only to a limited extent.
He referred to certain specific examples (page 468 of the decision). Accession and
more specifically inaedificatio is an original method of acquisition of ownership, which
means that the co-operation of the predecessor in title is not needed to acquire
ownership. No transfer of ownership takes place.

PVL3701/201
(2) This option is correct (page 466 of the decision).
(3) This option is wrong. The court decided that the machinery could be removed on
condition that no damage is done to the land. Innes CJ’s decision was based on the
intention of the person who annexed the movables (page 466 of the decision).
(4) This option is correct. Solomon JA indicated that the facts of the MacDonald case were
different from the facts on which the principle contained in Justinian’s Institutes was
based. (page 481 of the decision)
QUESTION 2
Indicate the correct option.
“But physical prehension is not essential if the subject-matter is placed in presence of the would-be
possessor in such circumstances that he and he alone can deal with it at his pleasure. In that way the
physical element is sufficiently supplied; and if the mind of the transferee contemplates and desires so to
deal with it, the transfer of possession, - that is the delivery - is in law complete. ... When this deposit of the
subject matter in the presence and at the disposition of the new possessor takes the place of physical
prehension, the delivery is said to be made longa manu ... . It is most appropriate to transactions where
owing to the weight or bulk of the article concerned, actual delivery is difficult.”
(1) This statement can be found only in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2)
SA 725 (A)).
(2) This statement can be found both in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2)
SA 725 (A)) and in Groenewald v Van der Merwe (1917 AD 233).
(3) This statement can be found only in Groenewald v Van der Merwe (1917 AD 233).
(4) This statement can be found neither in Groenewald v Van der Merwe (1917 AD 233) nor
in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2) SA 725 (A)).
ANSWER: (2)
REMARK:
The statement clearly explains the meaning of delivery with the long hand and was originally
formulated in Groenewald v Van der Merwe (239), but it was also referred to in Eskom v
Rollomatic. (page 729 of the decision; also see Study Guide page 105)

QUESTION 3
Which option regarding the successful reliance on the actio ad exhibendum is wrong?
(1) The plaintiff must be the owner of the thing.

(2) The defendant must be the thief of the thing or an heir of the thief.
(3) Loss of control by the defendant must have been mala fide.
(4) The plaintiff can claim the market value of the thing.
ANSWER: (2)
REMARKS:
(1) This option is correct. Although proof of ownership is not indicated in the Study Guide
as one of the requirements that has to be proved for a successful reliance on the actio
ad exhibendum the definition provides that it is an action in terms of which the owner
can claim the market value of the thing from a person who destroyed or alienated the
thing with a mala fide intention. (Study Guide pages 123 & 125)
(2) This option is wrong. The defendant must be the former holder of the thing who mala
fide alienated or destroyed the thing. In the case of the condictio furtiva the defendant
is the thief of the thing or the thief’s heirs. (Study Guide pages 123 & 125)
(3) This option is correct. (Study Guide pages 123 & 125)
QUESTION 4
The case of Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd (1994 (3) SA 188 (A))
is authority for the statement that
(1) the condictio furtiva is an action arising from theft;

(2) estoppel is a defence against an owner’s rei vindicatio;
(3) an interdict is a remedy to force a person to do something; or
(4) there is a delictual claim for damages for loss caused unlawfully through the negligence
or intention of another.

PVL3701/201
ANSWER: (2)
REMARKS:
Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd is an important judgment which
sets out the requirements for a successful reliance on the exception (defence) of estoppel
against an owner’s rei vindicatio. The judgment also illustrates the difficulties with constitutum
possessorium as a form of delivery in these circumstances. The decision does not, however,
deal with the condictio furtiva (option (1) above), an interdict (option (3) above) or a delictual
claim for damages (option (4) above).
(See Study Guide pages 122-123 par 2.1.3.3)
QUESTION 5
Which statement with regard to the legal consequences and entitlements of free co-ownership
is wrong?
(1) A share in the co-ownership can be freely transferred by a co-owner.
(2) Apart from the co-ownership relationship there must be another underlying legal
relationship between the co-owners.
(3) The share of a co-owner can be burdened with a mortgage bond without the permission
of the other co-owners.
(4) The actio communi dividundo is at the disposal of each co-owner.
ANSWER: (2)
REMARKS:
In the case of free co-ownership the co-ownership is the only relationship between the co-
owners, and no other underlying legal relationship exists between the free co-owners. (Study
Guide page 176)
QUESTION 6
In Nino Bonino v De Lange (1906 TS 120) the court considered the validity of a clause
contained in a lease agreement in terms of which the lessor was entitled under certain
circumstances to effectively debar the lessee from access to the premises.

agreement to take the law into their own hands is valid.
(2) The court held that in certain circumstances the parties should be allowed to be the
judge of whether a breach of the contract had taken place.
(3) Innes CJ stated that only a court of law, and not the parties to the agreement, can
ANSWER: (3)
REMARKS:
(1) This option is wrong. In Nino Bonino v De Lange the court decided that a clause in a
lease entitling the lessor to take the law into his/her hands was invalid. (page 123 of
the decision)
(2) This option is wrong. In Nino Bonino v De Lange the court held that under no
circumstances the parties can be allowed to decide if there was a breach of contract,
because this would mean that the lessor acted as the judge in his/her own case. (page
123 of the decision)
(3) This option is correct. In Nino Bonino v De Lange Innes CJ stated that only a court,
and not the parties to the agreement, could determine if a breach of contract occurred.
(pages 123 and 124 of the decision)
(4) This option is wrong. In Nino Bonino v De Lange the court held that the lessee must
succeed with his application for a spoliation order seeing that his control was unlawfully
disturbed. The clause in the contract entitling the lessor to deny the lessee access to
the leased premises under certain circumstance allowed the lessor to be the judge in
his/her own case and was invalid. (page 124 of the decision)
QUESTION 7
In Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd (1913 AD 267) the court held that
(1) an exclusive right to trade on a specific piece of land, could be granted as a personal
servitude to someone and could be registered in that person’s name;
(2) a servitude could arise from a contract, but that such an agreement had to be registered
in order to vest a real right;
(3) the exclusive right to trade was for the benefit of Dawson’s Stores, but could be
transferred to Copthall Stores Ltd; or
(4) in most instances where an exclusive right to trade is granted the specific measurements
of the land on which the person could trade are stipulated.
8

PVL3701/201
ANSWER: (3)
REMARKS:
(1) This option is correct. Remember that a personal servitude such as this which is
registered in a specific person’s name still creates a limited real right. (Willoughby’s
page 282; Study Guide page 241)
(2) This option is correct. (Willoughby’s page 287; Study Guide pages 228-230)
(3) This option is wrong. The court decided that the exclusive right to trade could not be
transferred to someone else. (Willoughby’s page 282)
(4) This option is correct. (Willoughby’s page 282)
QUESTIONS 8-9 ARE BASED ON THE FOLLOWING SET OF FACTS:
S has entered into an agreement with Q and R in terms of which they grant him the right to use
the road to Waterford that crosses their farm. This agreement is in writing, but it is not
registered. Q and R sell the farm and the new owner, who knows about the servitude, refuses to
let S use the road.
QUESTION 8
What type of right did S obtain?
(1) real right
(2) personal right
(3) limited real right
(4) none of the above
ANSWER: (2)
REMARKS: A servitude agreement creates a personal right (creditor’s right) to have the
servitude registered. A limited real right is created only on registration. (Study Guide page
230)

QUESTION 9
Which one of the following statements regarding the doctrine of notice is wrong?
(1) Someone who acquires ownership of the servient tenement knowing that there is an
unregistered servitude agreement in respect of that land is bound to respect the servitude
agreement.
(2) Someone who acquires ownership of the servient tenement and who does not know that
there is an unregistered servitude agreement in respect of that land, is still bound to
respect the servitude agreement.
(3) Someone who acquires ownership of the servient tenement at a judicial auction is bound
to respect the servitude agreement even if that person is unaware of the unregistered
servitude agreement.
(4) Grant v Stonestreet (1968 (4) SA 1 (A)) is a good example of the application of the
doctrine of notice to an unregistered praedial servitude. The court held that Grant’s
conduct was mala fide.
ANSWER: (2)
REMARKS: Options 1, 3 and 4 are correct and they contain important information concerning
the doctrine of notice. Option 2 is wrong, because the doctrine of notice specifically provides
that only a person who is aware of an unregistered servitude agreement will be bound to
register such servitude. (Study Guide page 230)
QUESTION 10
Indicate the incorrect option.
In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service:
First National Bank of SA Ltd t/a Wesbank v Minister of Finance (2002 (4) SA 768 (CC)) the
court held that
(1) the purpose of section 25 had to be seen both as protecting existing property rights as
well as serving the public interest, mainly in the sphere of land reform;
(2) FNB was entitled to the protection of property rights under section 25 of the 1996
Constitution;
(3) the meaning of section 25 should be determined in each specific case; or
(4) section 25 embodied the positive protection of property and expressly guaranteed the
right to acquire, hold and dispose of property.
10

PVL3701/201
ANSWER: (4)
REMARKS: Option 4 is wrong, because the Constitutional court in First National Bank of SA
Ltd t/a Wesbank v Commissioner, South African Revenue Service: First National Bank of SA
Ltd t/a Wesbank v Minister of Finance (par 48) emphasised that section 25 embodied the
negative protection of property and did not expressly guarantee the right to acquire, hold and
dispose of property. Options 1-3 contain important aspects of the decision. This is a very
important and interesting court decision. Make sure that you understand and know it well.
UNISA
/hs
11

Bona fide unlawful holder

An example of a bona fide unlawful holder is where X (lessee) remains in Y’s flat after
the lease agreement has expired because he is under the incorrect impression that the
lease agreement only expires later.
[1/2 mark for any example]
Mala fide unlawful holder

An example of a mala fide unlawful holder is where X (lessee) remains in Y’s flat after
the lease agreement has expired and X knows that the lease agreement had expired.
[1/2 mark for any relevant example]
Total 20
3 COMMENTARY ON ASSIGNMENT 02

QUESTION 1
(1) registration in the deeds office
(2) a principal debt
(3) delivery
(4) a pledge agreement
ANSWER: (1)
COMMENTS:
Option (1) is incorrect. Transfer of control is required for the vesting of a pledge and it is
therefore accepted that only movable, corporeal things can be given in pledge. Registration in
the deeds office is therefore not required as immovable property is not pledged.
Option (2) is correct. The accessory nature of a pledge requires the existence of a principle debt
and is therefore a requirement for the constitution of a valid pledge.

PVL3701/201
Option (3) is correct. The pledgor undertakes to give the thing in pledge. Transfer of control is
required by means of delivery. Delivery is therefore a requirement for the constitution of a valid
pledge.
Option (4) is correct. The pledge agreement creates an obligation on the pledgor to give the
thing in pledge to the pledgee. It provides the pledgee with a personal right to compel the
pledgor to deliver the thing. It is therefore a requirement for the constitution of a valid pledge.
See Study Guide pp 260 - 262.
QUESTION 2
The National Water Act 36 of 1998 provides that:
(1) an upper owner must allow a lower owner the use of a reasonable share of water
that arose on his/her (upper owner) land
(2) the state is the owner of all water in the country
(3) there is no distinction between public water and private water
(4) all persons who want to use water must have a licence
ANSWER: (3)
COMMENTS:
Option (1) is incorrect as this principle is not included in the National Water Act 36 of 1998.
Option (2) is incorrect. In terms of the National Water Act 36 of 1998 the state is the trustee of
all water in the country, not the owner. As trustee it has the duty to administer water usage to
the benefit of all people of South Africa.
Option (3) is correct. The National Water Act 36 of 1998 does not draw a distinction between
public and private water, as was the case with its predecessor, the Water Act 54 of 1956.
Option (4) is incorrect. The National Water Act 36 of 1998 makes provision for use of water for
reasonable domestic use, domestic gardening, animal watering, firefighting and recreational use
for which a licence is not necessary.

QUESTION 3
In terms of the Restitution of Land Rights Act 22 of 1994 one of the following restitution orders
can be made after a claim has been considered:
(1) grant by the state of an appropriate right in alternative state-owned land
(2) payment of compensation by the current owner of the land
(3) restoration of land, a portion of land or any right in land
(4) grant of alternative relief
ANSWER: (2)
COMMENTS:
Options (1), (3) and (4) are correct. The Restitution of Land Rights Act 22 of 1994 makes
provision for the Land Claims Court to order the restoration of land as contemplated in option
(3) but also determines that the Land Claims Court can make the orders described in options (1)
and (4) in lieu of restoration of land.
Option is (2) incorrect. The Restitution of Land Rights Act 22 of 1994 makes provision for
payment of compensation by the state, but not by the current owner of the land.
See Study Guide p 328.
QUESTION 4
Which of the following persons is a lawful holder?
(1) an owner
(2) a controller who bona fide bought the thing from a person who was not the owner of
the thing
(3) a pledgee
(4) a lessee who refuses to vacate the leased premises after the lease has expired,
because he bona fide (but incorrectly) believes that the lease period was extended

PVL3701/201
ANSWER: (3)
COMMENTS:
Option (1) is incorrect. Ownership and holdership are both types of real relationships and
both an owner and a lawful holder (in the event of a pledgee) will have a real right towards
the thing. A holder, however, does not have the intention of an owner, but only the
intention to derive some kind of benefit from the thing.
Option (2) is incorrect. Someone who buys a thing has the intention of an owner and will
be a bona fide possessor if he buys the thing from someone who is not authorized to sell
it. A lawful holder only has the intention to derive some benefit from the thing and
someone who buys a thing can therefore not be a lawful holder.
Option (3) is correct. A pledgee acquires a real right to the pledged thing, but he only has
the intention to derive some benefit from the thing – in this instance to receive security for
a debt owing to him. The pledgee is therefore a lawful holder of the pledged thing.
Option (4) is incorrect. The lessee is a holder with regards to the leased premises,
because he only wishes to derive a benefit from the premises; he does not have the
intention of an owner. Due to the fact that the lease has expired the lessee is an unlawful
holder. He is however bona fide because he (incorrectly) believes that the lease
agreement has been extended.

S has entered into an agreement with Q and R in terms of which they grant him the right
to use the road to Waterford that crosses their farm. This agreement is in writing, but it
is not registered. Q and R sell the farm and the new owner, who knows about the
servitude, refuses to let S use the road.
QUESTION 5
(1) Real right
(2) Personal right
(3) Limited real right
(4) None of the above

ANSWER: (2)
COMMENTS:
Options (1) and (3) are incorrect. In order to vest a real right (including a limited real right)
there must be some form of publication (registration in this case).
Option (2) is correct. The agreement in terms whereof S is allowed to use the road that
crosses Q and R‘s farm, is not registered in the deeds office. S therefore only acquired a
personal right to enforce the agreement against Q and R.
Option (4) is incorrect. S did in fact obtain a personal right as referred to in option (2).
See Study Guide pp 230 & 231.
QUESTION 6
Which of the following options are true with regard to the doctrine of notice?
(a) Someone who acquires ownership of the servient tenement knowing that there is
an unregistered servitude agreement in respect of that land is bound to respect
the servitude agreement.
(b) Someone who acquires ownership of the servient tenement and who does not
know that there is an unregistered servitude agreement in respect of that land, is
still bound to respect the servitude agreement.
(c) Someone who acquires ownership of the servient tenement at a judicial auction
is only bound to respect the agreement if he was aware of the unregistered
servitude agreement in respect of the land at the time of the auction.

(1) (a), (b) and (c)
(2) (a) and (c)
(3) (b) and (c)
(4) (a)
10

PVL3701/201
ANSWER: (4)
COMMENTS:
Option (a) is correct. In terms of the doctrine of notice someone who acquires ownership of the
servient tenement knowing that there is an unregistered servitude agreement in respect of that
land is bound to respect the servitude agreement.
Option (b) is incorrect. Someone who acquires ownership of the servient tenement and who
does not know that there is an unregistered servitude agreement in respect of that land will not
be bound to that agreement.
Option (c) is incorrect. Someone who acquires ownership of the servient tenement at a judicial
auction is always bound to respect the unregistered servitude agreement even if he was not
aware thereof.
QUESTION 7
In terms of the judgment in Nino Bonino v De Lange (1906 TS 120) we can draw the following
conclusions in respect of the spoliation remedy (mandament van spolie):
(1) The remedy is based on the legal policy consideration that no-one should be
allowed to take the law into his/her own hands.
(2) The remedy is available only if the spoliator acted with force, fraud or stealth.
(3) The remedy is summarily executed, without considering the merits of the parties’
claims to the thing concerned.
(4) The unlawfulness of the spoliatus’ control of the thing in question is irrelevant.
ANSWER: (2)
COMMENTS:
Options (1), (3) and (4) are correct.
Option (2) is incorrect. The spoliation remedy is available when the spoliator acted unlawfully.
This means he unlawfully took the law into his own hands. A person can take the law into their
own hands in an unlawful manner without acting with force, fraud or stealth. For example, when
a person changes the locks of a building (that he is renting out) out of own right and therefore
disturbs the lessee’s undisturbed and peaceful control of the building, he acts in unlawful self-
help, but does not act with fraud, force or stealth.
11

QUESTION 8
In Cape Explosive Works Ltd v Denel (Pty) Ltd (2001 (3) SA 569 (SCA)) the court:
(1) applied only the subtraction from the dominium test to determine whether the conditions
in the sale created real rights which could be registered
(2) used two criteria to determine whether the conditions in the sale created real rights which
could be registered: the intention of the transferor and the subtraction from the dominium
test
(3) made an order declaring that the two conditions in the sale created real rights which
could be registered
(4) made an order interdicting Denel from acting contrary to the two conditions
ANSWER: (1)
COMMENTS:
Options (2) - (4) are correct.
Option (1) is incorrect. The court referred to section 3 of the Registration of Deeds Act 47 of
1937. In terms of this section only real rights in land are registrable. A right qualifies as a real
right when it complies with the following two requirements:
(i) The person creating the right must have the intention to bind the current owner and
his/her successors in title.
(ii) The right or condition must be of such a nature that the registration thereof resulted in a
“subtraction from the dominium” of the land it was registered against.
See Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA 569 (SCA) par 12.
QUESTION 9
In Papalardo v Hau (2010 (2) SA 451 (SCA)) the court held that the owner of the:
(1) lower erf must allow all water flowing from the higher erf on to his erf
(2) lower erf must divert the water from the higher erf to the street
(3) lower erf must allow the natural flow of water from the higher erf on to his erf
(4) higher erf has an ex lege servitude over the lower erf in terms of which the owner of the
lower erf must allow all water to flow on to his/her erf
12

PVL3701/201
ANSWER: (3)
COMMENTS:
Option (1) is incorrect. The owner of the lower erf must allow only the natural flow of water from
the higher erf on to his erf.
Option (2) is incorrect. There is no responsibility on the owner of the lower erf to divert the water
flow from the higher erf to the street.
Option (3) is correct.
Option (4) is incorrect. The owner of the higher erf can only impose a burden on his neighbour
(the owner of the lower erf) to cope with a pattern of flow which would not naturally have
occurred if an express servitude exists in his favour, whether acquired by registration,
prescription or by agreement.
See Papalardo v Hau 2010 (2) SA 451 (SCA).
QUESTION 10
In MacDonald Ltd v Radin & The Potchefstroom Dairies & Industries Co Ltd (1915 AD
454):
to the principle that nobody could confer a better title than he/she had
(2) Innes CJ referred to Olivier v Haarhof (1906 TS 497) in which court decision it was
decided that when it had to be determined whether a movable thing became permanently
attached to land each case had to be decided on its own facts
would cause substantial injury to the building
(4) Solomon JA referred to the principle in Justinian’s Institutes (2,1,29) which entailed that if
someone used material which belonged to someone else to build on his/her own land,
he/she became the owner of the building that was built on that land
13

ANSWER: (3)
COMMENTS:
Option 3 is incorrect. The court decided that the machinery could be removed on condition that
no damage is done to the land. Innes CJ’s decision was based on the intention of the person
who annexed the movables.
See MacDonald Ltd v Radin & The Potchefstroom Dairies & Industries Co Ltd 1915 AD
454 466.
Good luck with your studies.
DR MITZI WIESE Telephone number: 012 429-8466

MRS ANRI HEYNS 012 429-8386
UNISA
/hs
14

lOMoARcPSD|4402399
ANSWER
The statement is false. Innes CJ stated that an act of spoliation need not necessarily consist of
acts of violence. (1)
Reference - page 122 of the decision. (1)
(d) What were Smith J’s views on clause 18 of the lease agreement which seemingly
permitted the landlord to prevent the lessee from having access to the billiard room? (4)
ANSWER
Smith J stated that the clause could not affect the rights of the parties. (1) The agreement was
against public policy and void/unenforceable. (1) He furthermore held that the clause would
allow the respondent to be the judge in his own case. (1)
Reference - page 125 of the decision. (1)
10

Distribution
Downloaded by Linda of this document
Zungu is illegal
(zungulinda50@gmail.com) R13,625 per year?
lOMoARcPSD|4402399
PVL3701/201
QUESTION 1
In Ex Parte Geldenhuys (1926 OPD 155) the court formulated a test to determine the distinction
between:
(1) ownership and personal rights
(2) real rights and personal rights
(3) real rights and limited real rights
(4) personal rights and personal servitudes
Answer: 2
Commentary: In Ex parte Geldenhuys (1926 OPD 155) the court formulated the subtraction
from the dominium test to determine the distinction between real rights and personal rights.
QUESTION 2
Which one of the following statements based on the decision in MacDonald Ltd v Radin & The
Potchefstroom Dairies & Industries Co, Ltd (1915 AD 454) is wrong?
to the principle that nobody could confer a better title than he/she had;
11

Distribution
Zungu is illegal
lOMoARcPSD|4402399
(2) Innes CJ referred to Olivier v Haarhof (1906 TS 497) where it was decided that when it
had to be determined whether a movable thing became permanently attached to land
each case had to be decided on its own facts;
(4) Solomon JA referred to the principle in Justinian’s Institutes (2, 1, 29) which entailed that
if someone used material which belonged to someone else to build on his/her own land,
he/she became the owner of the building that was built on that land.
Answer: 3
Commentary: MacDonald Ltd v Radin dealt with the three criteria applied by the courts to
determine whether a movable thing is attached to an immovable thing in such a fashion that it
subsequently becomes part of the immovable thing. These criteria are (i) the nature of the
attached thing; (ii) the manner and degree of attachment and (iii) the intention of the annexor or
of the owner of the movable thing. In this decision the court held that the machinery could be
removed.
(Study Guide p 76-77; MacDonald Ltd v Radin 466 472)
QUESTION 3
Which one of the following statements based on the decision in Vasco Dry Cleaners v Twycross
(1979 (1) SA 603 (A)) is wrong?
(1) In the case of constitutum possessorium a transferor retains physical control of the thing
to be transferred.
(2) Constitutum possessorium does constitute delivery for purposes of creating a valid
pledge.
(3) Constitutum possessorium creates the possibility of fraud.
(4) The real object underlying the transaction between Air Capricorn and Twycross was not a
sale agreement but a pledge agreement.
12

Distribution
Zungu is illegal
lOMoARcPSD|4402399
PVL3701/201
Answer: 2
Commentary: Constitutum possessorium is a constructive or fictitious form of delivery where

the transferor retains physical control over the thing which he/she has agreed to transfer
ownership to the transferee. In Vasco Dry Cleaners v Twycross (1979 (1) SA 603 (A)) the court
held that no pledge was created since constitutum possessorium does not constitute delivery for
purposes of creating a valid pledge.
(Study Guide p 107)
QUESTION 4
(3) constitutum possessorium
(4) appropriation
Answer: 4
Commentary: Symbolic delivery, delivery with the short hand and constitutum possessorium
are all forms of delivery. Appropriation is one of the original methods of acquiring ownership
which consists of the unilateral taking of physical control of a thing which does not belong to
anyone (res nullius), but which is within the sphere of law with the intention of becoming its
owner.
(Study Guide p 64, 100, 105 and 106)
13

Distribution
Zungu is illegal
lOMoARcPSD|4402399
QUESTION 5
Answer: 2
Commentary: In Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd (1994 (3) SA 188
(A)) the court held that estoppel can successfully be raised as a defence against the owner’s rei
vindicatio. Estoppel is defined as a defence which can be raised against an owner’s rei
vindicatio where the owner of a certain thing, through his/her conduct, culpably leads third
parties to believe that someone else is the owner of the thing or is authorised to alienate the
said thing, and the third party, relying on this representation, obtains control of a thing and in
doing so acts to his/her detriment.
QUESTION 6

X buys a tractor from Z in terms of a credit agreement. Z reserves ownership of the tractor until
the last instalment has been paid. Before X pays the last instalment he becomes insolvent.
(1) Z’s retention of ownership is a limited real right of security against X’s insolvent estate.
(2) Z can only rely on the credit agreement and therefore has a mere personal right against
X’s insolvent estate.
(3) Z has a right of retention over the tractor until payment of the last instalment.
14

Distribution
Zungu is illegal
lOMoARcPSD|4402399
PVL3701/201
(4) Z’s ownership changes to a limited real right of security, namely a tacit hypothec, against
X’s insolvent estate.
Answer: 4
Commentary: Ownership is the most complete real right a person can have with regard to his
or her own thing, whereas a limited real right is a real right over another person’s thing. Z
reserves ownership over the tractor until the last instalment is paid. If X becomes insolvent
before the last instalment has been paid to Z, Z’s ownership is converted into a real security
right (tacit hypothec of credit grantor). This real security right grants Z a preferent claim against
X’s insolvent estate. Retention of ownership, as such, is not a real security right.
QUESTION 7
Indicate the wrong statement pertaining to the Aquilian action.
(1) To succeed with the action the plaintiff must prove a causal connection between the
damage and the act of the defendant.
(2) The action can be instituted against any person who intentionally or negligently caused
damage to a thing in an unlawful manner.
(3) Damages can be claimed with this action.
(4) This action is available only to the owner of a damaged thing.
Answer: 4
Commentary: The Aquilian action is available not only to the owner of the damaged thing, but
also available to bona fide possessors and holders. In order to succeed with an Aquilian action,
the following must be proved:
- unlawful conduct by the defendant

- culpability (intent/negligence on the part of the defendant
15

Distribution
Zungu is illegal
lOMoARcPSD|4402399
- proprietary right/interest of the plaintiff in the thing

- patrimonial loss by the plaintiff and
- a causal connection between the patrimonial loss and the conduct of the defendant.
(Study Guide p 128-139 and 168-169)
QUESTION 8
(1) Both express and tacit real security rights are accessory in nature.
(2) An express real security right may secure present and/or future debts.
(3) When the debt is discharged, the creditor must terminate the real security right.
(4) A principal debt is required for the vesting and existence of express and tacit real security
rights.
Answer: 3
Commentary: All real security rights are accessory in nature and therefor a security right
cannot exist if there is no principal debt. An express real security right may secure present and
or future debts. Once the principal debt is discharged, the security right is extinguished by
operation of law (ipso iure).
QUESTION 9
In Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd (1913 AD 267) Innes J held that:
(1) the agreement in terms of which the trading rights was granted was worded clearly;
(2) a right to trade upon the property of another seems to be capable of being granted and
registered as a personal servitude;
16

Distribution
Zungu is illegal
lOMoARcPSD|4402399
PVL3701/201
(3) usufructus, usus and habitatio are personal servitudes; or
(4) the rights that are conferred in terms of a personal servitude is inseparably attached to
the beneficiary.
Answer: 1
Commentary: In Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd (1913 AD 267) Innes
J stated that the agreement was vague and that general terms were used (page 282 of the
decision). Option 2 is correct (page 281 of the decision). Option 3 is also correct (page 281 of
the decision). Usufructus, usus and habitatio are discussed on pages 194-197 of the Study
Guide. Option 4 is correct and Innes J furthermore stated that a personal servitude can neither
be transmitted to the holder’s heirs nor can it be alienated. The personal servitude lapses when
the holder dies (page 282 of the decision; Study Guide p 193).
QUESTION 10
First National Bank of SA Ltd t/a Wesbank v Minister of Finance (2002 (4) SA 768 (CC)) the
court held that
Constitution;
Answer: 4
17

Distribution
Zungu is illegal
assignment 1
Total 11
UNIQUE ASSIGNMENT NUMBER: 809480
QUESTION 1
The following paragraph is quoted from the Pretoria News of the 3rd of August 2017:
A BARKING dog is a “nuisance” to neighbours and therefore punishable. This is in

accordance with a new city by-law, which will become law once it has been been
[sic] promulgated - published in the Provincial Gazette - by city manager Moeketsi
Mosola.
“If an environmental health practitioner is of the opinion that a dog is creating a

disturbance or a nuisance, he or she may order the owner of the dog to remove
the dog from the place,” the by-law states.
Indicate the incorrect statement in view of the abovementioned quote.
(1) A barking dog which causes personal infringement to a neighbour’s right of use and
enjoyment of his/her own property is an example of nuisance in the narrow sense.
(2) Nuisance is a branch of neighbour law which is regarded as a limitation on ownership (of
the dog) imposed by law.
(3) A barking dog which causes personal infringement to a neighbour’s right of use and
enjoyment of his/her own property is an example of nuisance in the broad sense.
10

PVL3701/201
(4) Once the by-law is enacted it (the by-law) will constitute a limitation on ownership (of the
dog) imposed by law.
Answer: 3
Commentary: Nuisance in the broad sense results in damage to property, not infringement of a
person’s right of personality or entitlement of use. Nuisance in the narrow sense occurs where a
neighbour’s right of personality or entitlement to use is infringed, as indicated in option (1), by
the dog’s barking.
(Study Guide p 51)
QUESTION 2
Angela walks down Modiri Molema Street in Mahikeng when she sees a small shiny thing on
the sidewalk next to a municipal dustbin. She decides to investigate and finds a gold necklace
with a broken clip. She picks up the necklace and puts it in her handbag. On her way home, she
sees you and tells you about her good fortune finding the gold necklace. How would you, as a
law student, respond?
Indicate the most suitable statement.
(1) Angela will become owner of the gold necklace through appropriation if she can prove
that the previous owner lost the gold necklace.
(2) Angela cannot become the owner of the gold necklace because transfer of ownership of
valuable movable things must take place by means of physical delivery of the thing from
the transferor to the transferee.
(3) Angela became owner of the gold necklace by means of treasure trove when she took
physical control of it.
(4) Angela became owner of the gold necklace through appropriation if she can prove that
the previous owner abandoned his/her ownership by throwing it in the municipal dustbin.
11

Answer: 4
Commentary: Appropriation or occupation (occupatio) is defined as the unilateral taking of
physical control of a thing which does not belong to anyone (res nullius), but which is within the
sphere of law (res in commercio) with the intention of becoming its owner. Option (1) is
therefore incorrect because a lost thing remains the property of the owner and is not susceptible
of acquisition of ownership by means of appropriation.
(Study Guide p 64)
QUESTION 3
Indicate the correct answer.
The sources of the current law of things, in order of priority, are …
(1) the Constitution of the Republic of South Africa, 1996; case law; statute law; common law
and indigenous law (same level).
(2) the Constitution of the Republic of South Africa, 1996; case law; common law;
indigenous law and statute law.
(3) the Constitution of the Republic of South Africa, 1996; indigenous law; statute law; case
law and common law.
(4) the Constitution of the Republic of South Africa, 1996; statute law; case law; common law
and indigenous law (same level).
Answer: 4
Commentary: Note that common law and indigenous law are at the same level in regard to the
order of priority of sources.
(Study Guide p 16)
READ THE FOLLOWING SET OF FACTS AND THEN ANSWER QUESTIONS 4-5.
A new chief executive officer was appointed at Marula Mine in Limpopo. Three managers at
Marula Mine were not satisfied with the appointment. They set fire to one of the mine’s busses.
Although the fire brigade tried to put out the fire, the bus was damaged beyond repair.
12

PVL3701/201
QUESTION 4
Which remedy does Marula Mine have against the three managers to recover the damages?
(1) rei vindicatio

(2) actio ad exhibendum
(4) actio negatoria
Answer: 2
Commentary:
Option (1): The rei vindicatio is a real action that an owner can use to claim his/her thing from
whoever is in control of it unlawfully. The rei vindicatio is, therefore, not a suitable remedy to
claim damages.
Option (2): The actio ad exhibendum can be defined as an action in terms of which the owner
can claim the market value of the thing from a person who destroyed the thing or alienated the
thing with a mala fide intention. The three managers destroyed the bus with a mala fide intention
and thus the mine will most probably succeed with the actio ad exhibendum.
Option (3): The condictio furtive can only be instituted against the thief or, after his/her death,
the thief’s heirs. This is an action which can be instituted by the owner or a person with a lawful
interest in claiming the thing or its highest value since the theft from the thief or person who
removed the thing with deceitful intent. The three managers neither stole, nor removed the bus,
therefore, the mine cannot claim any damages with the condictio furtiva.
Option (4): The actio negatoria is a real action aimed at the protection of ownership in
circumstances where third persons seek to exercise rights of a servitude holder which they do
not have or when servitude holders exceed the limits of their servitudes. Thus it is clear that the
mine cannot claim damages with this action.
QUESTION 5
There was a mistake in question 5 and consequently all students who submitted
assignment 02 will receive 1 mark for question 5 regardless of their answer.
13

QUESTION 6
Ben is the owner of a big erf in Durban. He subdivides the erf and Nina buys the subdivided erf
behind Ben’s erf. Her erf has no access to the street and Ben gives Nina permission to use the
road over his erf to get access to the street. After two years Ben and Nina has a disagreement
about Nina’s dogs and Ben refuses to let Nina use the road.
You are Nina’s attorney. How will you advise her? Indicate the most suitable option.
(1) Nina obtained a mere personal right in terms of the agreement between herself and Ben
and cannot insist on using the road.
(2) Nina obtained a personal servitude over the front erf and may exercise her right of
servitude regardless of Ben’s permission.
(3) Ben merely gave Nina permission and he may revoke it at any time. Nina can, however,
apply to court for a permanent way of necessity.
(4) Nina can apply to court for an order of specific performance that Ben must allow her to
use the road.
Answer: 3
Commentary: In order to vest a servitude there must be a servitude agreement and
registration. The servitude agreement creates a personal right. After registration or delivery, a
limited real right vests. In the facts above Nina neither obtained a personal right in terms of a
servitude agreement, nor a limited real right (servitude). The permission Ben gave Nina to use
the road over his erf does not give Nina a right against Ben and he can revoke his permission at
any time. However, because Nina has no access to the public road, she can apply to court for a
permanent way of necessity.
QUESTION 7
In Telkom Ltd v Xsinet (Pty) Ltd (2003 (5) SA 309 (SCA))
(1) the Supreme Court of Appeal held that specific performance of a contractual right had
never been allowed under the spoliation remedy.
14

PVL3701/201
(2) Jones AJA stated that Xsinet’s use of the telephones, lines, modems or electrical
impulses, clearly gave it “possession” of the connection of its corporeal property.
(3) it was indicated that the spoliation remedy originally only protected the physical
possession of movable or immovable property, but later on a need arose to also protect
certain rights.
(4) Jones AJA indicated that an objection against the idea of “quasi-possession” of a right
was that it caused confusion between contractual remedies and remedies which were
designed to protect real rights.
Answer: 2
Commentary: Jones AJA stated that it is both artificial and illogical to conclude on the facts
before the court that Xsinet’s use of the telephones, lines, modem or electrical impulses gave it
“possession” of the connection of its corporeal property to Telkom’s system.
(Telkom Ltd v Xsinet (Pty) Ltd (2003 (5) SA 309 (SCA) para 14)
QUESTION 8
Sam has entered into a servitude agreement with Charles in terms of which Charles grants Sam
the right to use the road to Sam’s farm that crosses Charles’s farm. This agreement is in writing,
but is not registered. Charles sells the farm. The new owner knows about the servitude
agreement but refuses to allow Sam to use the road.
In terms of Grant v Stonestreet (1968 (4) SA 1 (A)), S’s legal position is the following:
(1) In terms of the doctrine of notice, Sam obtained a limited real right to use the road and
the new owner must respect this real right.
15

(2) Sam has no legal remedy and the new owner does not have to allow Sam to use the
road, because the servitude agreement was not registered.
(3) A buyer (new owner) who has knowledge of the existence of the servitude agreement is
bound to register the servitude in terms of the doctrine of notice.
(4) As Charles’s successor in title, the new owner must adhere to the servitude agreement
and allow Sam to use the road.
Answer: 3
Commentary: A servitude agreement does not grant a limited real right to the owner of the
dominant tenement. The servitude must be registered before it grants a limited real right to the
owner of the dominant tenement. However, a buyer (new owner) of the servient tenement, who
has knowledge of the existence of the servitude agreement, is bound to register the servitude in
terms of the doctrine of notice
(Study Guide p 183)
QUESTION 9
Jacob wants to mine for coal on Peter’s farm. Which one of the following statements is in line
with the provisions of the Mineral and Petroleum Resources Development Act 28 of 2002?
(1) As the owner of the farm Peter may grant prospecting and mineral rights to Jacob to
mine for coal on his farm.
(2) Peter and Jacob must register the prospecting and mineral rights granted to Jacob by
Peter in the deeds office.
(3) The state is the owner of all minerals and may grant Jacob prospecting and mineral
rights with regards to the coal on Peter’s land.
(4) The prospecting and mining rights granted to Jacob by the state are limited real rights but
registration in the deeds office is not required.
16

PVL3701/201
Answer: 4
Commentary: Prospecting and mining rights may be granted only by the state. The state is,
however, not the owner of all minerals. Minerals are the common heritage of all the people of
South Africa and the state is the custodian (not owner) thereof. Prospecting and mining rights
are limited real rights in respect of the mineral and petroleum and the land to which the right
relates, yet they may only be transferred with the written consent of the Minister of Mineral
Resources. The MRPDA abolished the requirement of registration of prospecting and mining
rights in the Deeds Registry.
(Study Guide p 245)
QUESTION 10
Indicate the wrong option with regards to deprivation and expropriation of property in terms
of Section 25 of the Constitution.
(1) Deprivation can be seen as “regulation”, “limitation” and “restriction” of property. It is

any interference with the use and enjoyment of private property.
(2) Expropriation should be compensated taking into account the factors contained in
Section 25(3) of the Constitution.
(3) Deprivation is a type of expropriation and involves the actual taking away of private
property by the state. Compensation is payable for deprivation.
(4) A valid expropriation should take place in terms of a law of general application.
Answer: 3
Commentary: Deprivation does not necessarily refer to the actual taking away of private
property by the state. Furthermore, no compensation is usually payable for deprivations.
Synonyms for the word “deprivation” are “regulation”, “limitation” and “restriction”. In a sense
any interference with the use and enjoyment of private property involves some deprivation with
regard to the person who has a right to or in the property concerned. Expropriation is a
subspecies of deprivation.
17

PVL3701/201
3 COMMENTARY ON ASSIGNMENT 02 [UNIQUE NUMBER: 708716]
QUESTION 1

John donates a part of his farm which his son, Sam, leases from him to Sam. They obtain
permission to subdivide the farm and Sam erects a fence on the new boundary. Sam
fetches John and together they drink a toast at the new gate. John says to Sam: “Son, I am
glad that this piece of land is now your property!”
What type of right does Sam have with regard to the land?
(1) real right
(2) personal right
Answer: 2
Commentary:
Option 1: Sam will only acquire ownership (real right) once the property is subdivided and
transferred from John to him and registered in his (Sam’s) name.
Option 2: Sam has a personal right against John to have the piece of land that John donated to
him subdivided and registered into his name.
Option 3: A limited real right is a real right over another person’s thing. Examples of limited real
rights are servitudes, restrictive conditions and real security rights. Sam did not acquire a limited
real right over John’s land.
(Study Guide p 115)

QUESTION 2
Nehanda is the owner of a farm and has a lucerne field on the only piece of fertile land with
plenty of water. This lucerne field borders her neighbour’s farm. Her neighbour planted a row of
pine trees along the boundary between the two farms. The trees have grown big and the
branches hang over the lucerne field. The pine trees cast a lot of shade and the pine needles
fall onto the lucerne, killing large parts of it.
Which remedy does Nehanda have against the neighbour? Indicate the most suitable option.
(1) rei vindicatio
(2) actio ad exhibendum
(3) declaratory order
(4) interdict
Answer: 4
Commentary:
Option 1: The rei vindicatio a real action with which the owner can claim his/her thing from
whoever is in control of it unlawfully. This remedy is not applicable in this case.
Option 2: The actio ad exhibendum is an action in terms of which the owner can claim the
market value of the thing from a person who destroyed or alienated the thing with mala fide
intention. This remedy is not applicable in this case.
Option 3: A declaratory order is applicable where there is a dispute as to the legal position of
contesting parties. The court then determines the rights and duties of the contesting parties.
Nehanda can apply to the court for a declaratory order but it would not solve her problem. The
interdict (option 4) is the most suitable remedy.
Option 4: Nehanda can institute an interdict against the neighbour. An interdict is a summary
court order applied for on an urgent basis. It is a speedy remedy where rights have been
infringed or are about to be infringed. In an application for an interdict the applicant may apply
for an order forcing a person to do something or to refrain from doing something. In this
scenario, Nehanda will request an interdict to force the neighbour to cut and remove the
overhanging branches. Nehanda will have to proof that (i) she has a clear right, (ii) that there is
10

PVL3701/201
an actual or reasonably apprehended violation of a right, and (iii) that there is no similar
protection by any other ordinary remedy.
See Study Guide p 131 for a summary of the remedies.

QUESTION 3
Indicate the incorrect answer.
Amina transferred an exclusive right to trade on a certain piece of land to Muhammad.

Muhammad transferred this right to his son, Arjun. The right was not registered in favour of
Muhammad. Amina sold her farm to Peter. Peter argues that Arjun is not entitled to trade on
that piece of land, but Arjun insists that he acquired that right from his father, Muhammad.
(1) Peter and Arjun can approach the court for a declaratory order.
(2) Arjun can enforce the personal right which his father transferred to him against Peter who
must register the servitude in favour of Arjun.
(3) Muhammad had a personal right against Amina which he could transfer to his son.
(4) Arjun cannot enforce the personal right which his father transferred to him against Peter
and has no right to trade on that piece of land.
Answer: 2
Commentary:
Option 1: If a person (Arjun) claims servitude rights (exclusive right of trade) and such rights are
disputed by the owner of the land (Peter) the owner may apply to the court for a declaratory
order. The court will determine the rights and duties of the contesting parties (Arjun and Peter).
Option 2: As cessionary (see comment at option 3 below) Arjun could have enforced his
personal right against Amina. Arjun could, however, not enforce his personal right to trade
against a third party, Peter. Personal rights are not enforceable against third parties, only real
rights are enforceable against third parties.
Option 3: The exclusive right to trade is a personal right. Muhammad had a personal right to
trade exclusively on the land which he could transfer to his son, Arjun, by means of cession.
Arjun becomes the cessionary and step into the shoes of Muhammed.
11

Option 4: See comment at option 2 above.
QUESTION 4
In Ex parte Geldenhuys (1926 OPD 155) the court formulated the following test:
One has to look not so much to the right, but also to the correlative obligation. If that
obligation is a burden on the land, a subtraction from the dominium, the
corresponding right is real and registrable; if it is not such an obligation, but merely
an obligation binding on some person or other, the corresponding right is a personal
right, or a right in personam, and it cannot as a rule be registered.
In terms of this test, which of the following are not registrable?
(1) A usufruct on a farm.
(2) A long term lease of a car.

(3) A condition in a will that a farm must be sub-divided when one of the co-owners
reaches the age of majority.
(4) A condition in a will that a farm must be sub-divided by means of the drawing of lots.
Answer: 2
Commentary:
General: In Ex parte Geldenhuys (1926 OPD 155) the court came to the conclusion that the
provisions that the farm must be divided when S reaches the age of majority and that the
drawing of lots will determine who gets which portion of the farm, place a burden on the land
itself (in that the time and manner of the division restrict the ordinary rights of co-owners to
divide the common property when and in a manner on which they agree).
These provisions were regarded as conditions aimed at creating real rights and could therefore
be registered.
Option 1: A usufruct on land (farm) clearly creates a burden on the land itself and is registrable.
Option 2: A long term lease of a car places no burden on land and is not registrable.
Option 3 and 4: Both conditions place a burden on land (farm) and is registrable.
12

PVL3701/201
(Study Guide p 36 and Ex parte Geldenhuys 1926 OPD 155)
QUESTION 5
In which case did the court formulate the following criteria in order to establish whether a
movable has become permanently attached to an immovable: the nature and the purpose of
the attached thing, the manner and degree of attachment and the intention of the person
annexing it?
(1) Standard-Vacuum Refining Co v Durban City Council 1961 (2) SA 669 (A)
(2) Konstanz Properties (Pty) Ltd v WM Spilhaus en Kie (Wp) Bpk 1996 (3) SA 273 (A)
(3) MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd 1915
AD 454
(4) Van Wezel v Van Wezel’s Trustees 1924 AD 409
Answer: 3
Commentary: MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd
1915 AD 454 dealt with the question whether a movable has become permanently attached
to an immovable. The court laid down the three criteria to determine whether a movable thing
has become permanently attached to an immovable thing by means of accession in such a
fashion that it subsequently becomes part of the immovable thing.
See Study Guide p 76-79 for a discussion of the cases listed in options 1, 2 and 4.
(Study Guide p 182-184 and MacDonald Ltd v Radin and the Potchefstroom Dairies and
Industries Co Ltd 1915 AD 454)
13

QUESTION 6
Which forms of constructive or fictitious delivery can take place in instances where the
transferee is in a position where someone else exercises physical control of the thing on his/her
behalf?
(1) symbolic delivery, delivery with the short hand (traditio brevi manu)
(2) constitutum possessorium, delivery with the short hand (traditio brevi manu)
(3) attornment, constitutum possessorium
(4) attornment, delivery with the long hand (traditio longa manu)
Answer: 3
Commentary:
General: With constructive or fictitious delivery there is not a physical or actual handing-over of
the thing.
Attornment and constitutum possessorium are forms of constructive or fictitious delivery where
the transferee is in a position where someone else exercises physical control of the thing on
his/her behalf. Attornment is a derivative method of transferring ownership where the transferor,
the transferee and a third party agree that the third party will control the thing on behalf of the
transferee as owner. Constitutum possessorium is a form of constructive or fictional delivery
where the transferor retains physical control over the thing of which he/she has agreed to
transfer ownership to the transferee.
The transferee is placed in a position to exercise physical control in the case of symbolic
delivery and delivery with the long hand.
In the case of delivery with the short hand, the transferee is already in physical control of the
thing by virtue of some other legal relationship.
14

PVL3701/201
QUESTION 7
In Info Plus v Scheelke (1998 (3) SA 184 (SCA)) the court:
(1) applied the principles of traditio brevi manu on the situation and held that Info Plus
did not become owner of the Mercedes when the second respondent paid the purchase
price to Wesbank
(2) applied the principles of traditio brevi manu on the situation and held that Info Plus
became owner of the Mercedes when the second respondent paid the purchase price
to Wesbank
(3) held that the principles of traditio brevi manu are not applicable where a hire-
purchase buyer is no longer in control of the object at the time of extinction of the debt
(4) held that estoppel could succeed against Info Plus
Answer: 2
Commentary: In Info Plus v Scheelke (1998 (3) SA 184 (SCA)) the court applied the principles
of traditio brevi manu on the situation and held that Info Plus became owner of the Mercedes
when the second respondent paid the purchase price to Wesbank. Delivery with the short
hand takes place when there is no transfer of physical control because the transferee is
already in control. In the Info Plus case, a third party (not the buyer in terms of the instalment
sale agreement) paid the final instalment. The court held that the buyer became owner by
means of delivery with the short hand on payment of the last instalment regardless who paid
the last instalment.
Study Guide p 105 and Info Plus v Scheelke 1998 (3) SA 184 (SCA)
QUESTION 8
Mary and Benjamin are co-owners of a farm. They built a road on the farm, which they use to
transport lime to the market. Without Mary's knowledge and approval Benjamin gives
15

permission to a neighbour, Tuma, to use the road so that he can transport his lime to the
market. Mary is unhappy about the heavy traffic on the road and asks Benjamin to revoke his
permission to Tuma. Mary also asks Tuma to discontinue his activities. Neither Benjamin nor
Tuma takes any notice of Mary.
Which remedy does Mary have against Benjamin?
(1) actio legis aquiliae
(3) actio negatoria
(4) rei vindicatio
Answer: 1
Commentary:
Option 1: Benjamin, Mary’s co-owner, uses the thing (road over the farm) unreasonably for a
purpose for which it was not intended. Mary can claim damages from Benjamin with the actio
legis aquiliae.
Option 2: The condictio furtiva is a personal action against a thief (or his/her heirs) in terms of
which the applicant can claim the stolen thing or its highest value since the theft. This action is
not applicable in this case.
Option 3: The actio negatoria is a real action aimed at protection of ownership in circumstances
where third persons seek to exercise rights of a servitude holder which they do not have or
where the servitude holder exceeds the limits of their servitudes. This action is not applicable in
this case. Please note that the question specifically asks what remedy Mary has against her co-
owner, Benjamin and not against the third person, Tuma. With regards to Tuma, Mary might
argue that he acts as if he is a servitude holder and exercises rights which he, Tuma, doesn’t
have and institute the actio negatoria against Tuma.
Option 4: The rei vindicatio is a real action with which the owner can claim his/her thing from
whoever is in control of it unlawfully. This action is not applicable in this case.
See Study Guide p 131 for a summary of the remedies.
(Study Guide p 141)
16

PVL3701/201
QUESTION 9
Jimmy entered into an agreement with Sally in terms of which he grants Sally the right to use
the road to Sally’s farm that crosses his farm. This agreement is in writing, but is not registered.
Jimmy sells the farm to a new owner, who knows about the servitude agreement, but refuses to
allow Sally to use the road.
In terms of Grant v Stonestreet (1968 (4) SA 1 (A)), Sally’s legal position is the following:
(1) In terms of the doctrine of notice, Sally obtained a limited real right to use the road and
the new owner must respect this real right.
(2) Sally has no legal remedy and the new owner does not have to allow Sally to use the
road, because the servitude agreement was not registered.
(3) A buyer (new owner) who has knowledge of the existence of the servitude agreement is
bound to register the servitude in terms of the doctrine of notice.
(4) As Jimmy’s successor in title, the new owner must adhere to the servitude agreement
and allow Sally to use the road.
Answer: 3
Commentary:
Option 1: Sally did not obtain a limited real right. A limited real right of servitude is acquired only
on registration of the servitude.
Option 2: Sally does have a legal remedy. In Grant v Stonestreet the court held that a buyer
who has knowledge of the existence of the servitude agreement may be obliged to register the
servitude in terms of the doctrine of knowledge.
Option 3: As stated above (option 2) Sally can insist that the new owner register the servitude if
she can proof that he had knowledge of the existence of the servitude agreement.
Option 4: Although the new owner is obliged to register the servitude, the obligation does not
arise from the fact that the new owner is the previous owner’s (Jimmy’s) successor in title. The
obligation arises from the doctrine of notice. The basis of this doctrine is that in attempting to
17

repudiate the servitude the buyer, under these circumstances, is acting mala fide. The law
refuses to countenance such attempted repudiation, since this type of action by the buyer
amounts to fraud.
QUESTION 10
In Nino Bonino v De Lange (1906 TS 120):

(1) It was stated that nobody was permitted to dispossess another forcibly or wrongfully
of the possession of property, movable or immovable.
(2) The court referred to the principle which provided that no person was allowed to take
the law into his/her own hands.
(3) The lessee succeeded with the spoliation remedy.
(4) The court indicated that the merits of the dispute should be considered during the
application for the spoliation remedy.
Answer: 4
Commentary: The spoliation order is a summary remedy, usually issued upon urgent
application aimed at restoring control of a thing to the applicant from whom it was taken by
means of unlawful self-help, without investigating the merits of the original rights of the parties to
control the thing.
(Study Guide p 162 and Nino Bonino v De Lange 1906 TS 120)
18

(iii) In view of Jones AJA’s judgment, can it be said that the purpose of the spoliation
remedy is to enforce a contract? Motivate your answer. (3)
ANSWER
No, the purpose of the spoliation remedy is not to enforce a contract. (1) Jones AJA held that
the purpose of the spoliation remedy is not to compel specific performance of a contractual
right (personal right) (1) in order to resolve a contractual dispute. Reference: Telkom SA Ltd v
Xsinet (Pty) Ltd par 14. (1)
QUESTION 1
The following is an example of vindication as an entitlement of ownership:
(1) X can register a bond over his property.
(3) X can claim his motor from a third party.
(4) X can donate his bike to a third party.
Answer: 3
Commentary: In principle, a person (owner) can act upon his/her thing as he/she pleases
(subject to limitations by the law or rights of others). The capacities conferred on the legal
subject by virtue of this right are called “entitlements”. The owner of a car can claim his/her car
from whoever is in control of it unlawfully (without the owner’s permission or consent) using the
rei vindicatio as an entitlement of ownership. Therefore X can claim his motor from a third party
10

PVL3701/201
using the rei vindicatio. Option 1 is an example of the entitlement that an owner has to burden
his/her property. Option 2 is an example of the entitlement to destroy ones property and option
4 is an example of the entitlement to alienate your property.
(Study Guide p 45-46 & 119)
11

QUESTION 2
The requirements for acquisition of ownership through appropriation (occupatio) are:
(1) The physical control over the acquired thing must be lawful.
(2) A thing that belongs to no one (res nullius) can be acquired.
(3) The acquirer must have the intention to become the owner of the thing.
(4) An acquired thing should be within the sphere of law (res in commercio).
Answer: 1
Commentary: Appropriation is defined as the unilateral taking of physical control of a thing

which does not belong to anyone (res nullius), but which is within the sphere of law (res in
commercio) with the intention of becoming its owner. Physical control of the thing is essential for
the acquisition of ownership by means of appropriation. It is, however, not a requirement for the
acquisition of ownership through appropriation that the physical control over the acquired thing
must be lawful. Physical control of the thing can be lawful or unlawful.
QUESTION 3
The following are requirements for delivery with the long hand (traditio longa manu):
(1) The parties must have the intention to transfer and receive ownership.
(2) The thing must be pointed out by the owner to the acquirer in the presence of the thing.
(3) The acquirer should be put in a position to exercise actual control, to the exclusion of
other persons, over the thing after it has been pointed out.
(4) The acquirer must take actual physical control of the thing as soon as possible after it
has been pointed out to him.
12

PVL3701/201
Answer: 4
Commentary: Delivery with the long hand (traditio longa manu) takes place where physical
transfer of control of a thing is not possible because of its size or weight. In this case the thing
to be transferred is pointed out to the transferee in the presence of the thing. The transferee is
placed in a position enabling him/her to exercise physical control. It is not sufficient to point out
the thing. The transferee must be placed in a position to take physical control of the thing to the
exclusion of others at any time. It is not a requirement that the transferee must take actual
physical control of the thing as soon as possible after it has been pointed out to him. In
Groenewald v Van der Merwe (1917 AD 233 239) the court held that the requirement of
physical control has been sufficiently complied with if the thing is pointed out in the presence of
the transferee in such circumstances that he and he alone can deal with it at his pleasure.
(Study Guide p 102)
QUESTION 4
Indicate the wrong statement.
The following are legal consequences and entitlements of free co-ownership:
(2) Apart from the co-ownership relationship another underlying legal relationship between
the co-owners exists.
Answer: 2
Commentary: In free co-ownership the co-ownership is the only relationship between the co-
owners. A form of co-ownership where there is another underlying legal relationship between
the co-owners apart from the co-ownership relationship is referred to as “bound co-ownership”.
13

A free co-owner may alienate, mortgage, burden, rent or leave his/her heirs the undivided share
in the ownership, without the cooperation of the other free co-owner. The actio communi
dividundo can be applied for by any co-owner, when the co-owners disagree about the physical
or corporeal division of the thing.
QUESTION 5

The following persons are bona fide possessors:
(1) A person who concludes a contract of sale with a non-owner and who after delivery uses
the thing, assuming that he/she has become its owner.
(2) A person who accidentally picks up another’s pen, believing it to be his/her own, and who
then uses it in that belief.
(3) A “lessee” who unknowingly concludes an invalid lease contract for a flat and then moves
into the flat.
(4) A person who encroaches on his/her neighbour’s land, unaware that he/she is doing so.
Answer: 3
Commentary: A bona fide possessor can be defined as a person who is not recognised as the
owner of the thing, because he/she does not comply with the requirements for establishing
ownership, but who has the intention of an owner, on the incorrect assumption that he/she is in
fact the owner. The person is unaware that he or she does not meet all the requirements for
ownership. Options 1, 2 and 4 are examples of bona fide possessors. A “lessee” who
unknowingly concludes an invalid lease contract for a flat and then moves into the flat (Option 3)
is a bona fide unlawful holder. A bona fide unlawful holder can be defined as a person who
physically controls the thing unlawfully, but he/she is unaware of the fact, since he/she is under
the incorrect impression that he/she has the necessary permission or legal ground to control it.
A bona fide unlawful holder does not have the intention of an owner, but believes that he/she
uses the thing with the consent of the owner thereof. Such a person wants to derive a benefit
14

PVL3701/201
from the thing – in this instance the benefit of leasing the flat and staying there.
QUESTION 6

A person who does not regard or conduct him/herself as the owner of a thing and who
recognises and respects the owner’s ownership to the thing, but who physically controls it
without the owner’s permission or other legal ground for his control for the sake of the benefit
he/she derives from it, is …
(1) an unlawful holder.

(2) a mala fide possessor.
(3) a lawful holder.
(4) a bona fide possessor.
Answer: 1
Commentary: An unlawful holder is a person who does not regard or conduct him/herself as
the owner of a thing and who recognises and respects the owner’s ownership to the thing, but
who physically controls it without the owner’s permission or other legal ground for his control for
the sake of the benefit he/she derives from it. A lawful holder can be defined as a person who
physically controls the thing with the owner’s permission or on another legal basis, in order to
derive some benefit from it. A mala fide possessor is a person who is aware of the fact that
he/she is not legally recognised as the owner of a thing, since he/she does not conform to the
requirements of ownership, but who nevertheless has the intention of an owner. A bona fide
possessor can be defined as a person who is not recognised as the owner of the thing, because
he/she does not comply with the requirements for establishing ownership, but who has the
intention of an owner, on the incorrect assumption that he/she is in fact the owner.
It is a good idea to make use of the examples that we refer to in the Study Guide when you
study this part of the module and distinguish the different categories of persons.
15

(Study Guide 150-151)
QUESTION 7
During the apartheid regime, S occupied land which he inherited from his grandfather. S could
not obtain transfer of the land as he was a black person and the land was situated in a white
area. Z, a neighbour, started farming on that land. S applied for an interdict prohibiting Z from
setting foot on the land.
(1) S is an occupier and not the registered owner of the land; consequently he will not
succeed with an interdict.
(2) S does not have ownership of the land; consequently he does not have a clear right over
the land and will not succeed with the interdict.
(3) S will succeed with the interdict because the remedy is available for the protection of
ownership, other limited real rights and lawful real relationships such as lawful occupation
(holdership).
(4) S will only succeed with the interdict if he can prove that he was in peaceful and
undisturbed control of the land and that Z disturbed his control in an unlawful manner.
Answer: 3
Commentary: An interdict is a summary court order applied for on an urgent basis to force a
person to do something or to refrain from doing something. This remedy is available for the
protection of not only ownership but also other limited real rights and lawful real relationships
such as lawful holdership/occupation. In view of this Options 1 and 2 are wrong, because the
interdict is not only available to owners. Option 4 is wrong because it refers to the requirements
for a successful reliance on the spoliation remedy.
(Study Guide p 123-124 & 161-162)
QUESTION 8

A personal servitude …
(1) is not transferable.
16

PVL3701/201
(2) is terminated by the death of the holder thereof.
(3) is a personal right.
(4) can vest over movable or immovable property.
Answer: 3
Commentary: A personal servitude is a limited real right NOT a personal right. Therefore,
Option 3 is wrong. Remember that land servitudes are also limited real rights. A personal
servitude is not transferable. It is inseparably attached to the person of the holder of the
servitude. Therefore, Option 1 is correct. A personal servitude is terminated by the death of the
holder thereof and therefore Option 2 is correct. In the case of a legal person, the servitude
lasts for 100 years if no period has been stipulated. A personal servitude may be created over
movable and immovable property and therefore Option 4 is correct.
(Study Guide p 192-193 & 188)
17

QUESTION 9

Conditions of title are …
(1) limited real rights.
(2) inserted into title deeds of property.
(3) personal rights created in terms of legislation.
(4) created in terms of legislation or as a result of a contract.
Answer: 3
Commentary: Conditions of title are limited real rights inserted into title deeds of property either
in terms of legislation or as a result of a contract.
(Study Guide p 201)
QUESTION 10
The perfection clause in a general notarial bond …
(1) creates a real security right over the movable property of the mortgagor in favour of the
mortgagee.
(2) allows the mortgagee to sell the movable property of the mortgagor without a court order
should the mortgagor default.
(3) creates a limited real right of pledge over the movable property of the mortgagor in favour
of the mortgagee on attachment.
(4) allows the mortgagee to take control of the movable property when the mortgagor agrees
or in terms of a court order for specific performance.
It has come to our attention that most students have difficulty understanding the legal
principles governing notarial bonds. Consequently we decided to disregard this question for
purposes of this assignment. Instead, we give you a brief summary of notarial bonds and hope
18

PVL3701/201
that it will assist you to understand the legal operation of notarial bonds.
Remember that notarial bonds vest over movable property only, and not over immovable
property.
A special notarial bond is regulated by the Security by Means of Movable Property Act 57 of
1993 (SMMPA). The following provisions of the act are important for purposes of your studies:
 A special notarial bond vests over corporeal movable property only.

o Corporeal property can be described as things that are observable by means of
senses, eg a car.
 A special notarial bond cannot vest over incorporeal movable property.
o Incorporeal property cannot be observed by the senses, for examplean
employee’s right against his employer to pay him/her his/her salary. (See the
discussion on “corporeality” in your Study Guide p 18.)
 The movable corporeal property must be described in the special notarial bond (the
physical document that is registered in the Deeds Office) in a manner that makes it easy
for any person who consults the bond to know exactly which property is bonded.
o For example: GREEN NISSAN SENTRA SL 4 Door Sedan/Automatic
Transmission Model B6AP VIN 1N4A B6AP 6CC000000 Registration number
DM65JPGP.
 A real security right (limited real right of security) vests over the security object (for
example Green Nissan) on registration of the special notarial bond.
o The special notarial bondholder (mortgagee) does not have to be in control of the
security object for the right to vest – the registration of a special notarial bond
with the specific description of the security object replaces delivery as form of
publicity for movable property. (See the discussion on “Legal acts involved in
creation of real security rights” in the Study Guide on p 205-206.)
 If the mortgagor becomes insolvent the special notarial bondholder has a preferent real
security right against the mortgagor’s insolvent estate.
o “Preferent” means, in principle, that the special notarial bondholder’s real security
right must be satisfied (debt paid) first, before the claims of other creditors of the
mortgagor’s insolvent estate. (For example, the green Nissan must be sold in
execution and the proceeds must be used to pay the mortgagor’s outstanding
debt to the notarial bondholder.)
A general notarial bond is governed by the common law and not regulated by the SMMPA.
The legal operation of a general notarial bond is different from the legal operation of a special
notarial bond.
19

 A general notarial bond vests over all movable property (corporeal and incorporeal) of
the mortgagor.
 The movable property is not described in the notarial bond (the physical bond document
that is registered in the Deeds Office). Instead, (in most instances) a “perfecting clause”
is inserted in the general notarial bond.
o A perfecting clause is a clause in the general notarial bond in terms of which the
mortgagor agrees that the general notarial bondholder may take control of his/her
(mortgagor) movable property should he/she default.
 A real security right does not vest over the movable property of the mortgagor on
registration of the general notarial bond.
 Some “action” is needed to “activate” the vesting of the real security right. This “action”
is called “perfecting”.
o Perfecting refers to the legal action the notarial bondholder must take to
“activate” his/her real security right. The perfecting clause in a general notarial
bond allows the bondholder to take control of the movable property (corporeal
and incorporeal) of the mortgagor. The bondholder’s “action” of taking control of
the mortgagor’s movable property is called “attachment”.
o A general notarial bondholder can get control over (attach) the mortgagor’s
movable property in one of two ways:
 The mortgagor may willingly hand over his/her movable property to the bondholder.
 If the mortgagor refuses, the bondholder may apply for a court order ordering the
mortgagor to comply with his/her obligation in terms of the perfecting clause (order for
specific performance).
 Only once the general notarial bond has been “perfected” the bondholder acquires a
preferent real security right against the mortgagor.
o The bondholder’s right is the same as a pledgee’s right of pledge.
Special notarial bond General notarial bond
Governed by SMMPA common law
Legal nature of only corporeal movable corporeal and incorporeal

security object property movable property
Real security right registration of special attachment of movable

vests on notarial bond property
20

[Maximum 4 marks]
References to the relevant pages of the case which you consulted 2
Use your own words as far as possible. Do not rewrite (“copy and paste”) summaries 1
that you found on the internet or in other sources – you will be penalised.
Include the “Student academic integrity declaration form” and a Bibliography in 1
assignment
Total 10
[See Nino Bonino v De Lange (1906 TS 120) and Study Guide pg 161-165]
ANSWER THE QUESTIONS BY CHOOSING OPTION (1), (2), (3) OR (4) AND BY
INDICATING YOUR CHOICES ELECTRONICALLY ON myUNISA OR ON THE MARK-
READING SHEET.
QUESTION 1
Which one of the following statements, about valid defences against the rei vindicatio, is
incorrect?
(1) An owner of land who wants to evict persons residing on his/her land unlawfully, may
only do so if he/she obtains a court order for their eviction.
(2) An owner who leads third parties to believe that someone else is the owner of his/her
thing, cannot reclaim his/her thing from a third party who relied on this misrepresentation
and in doing so acted to his/her (third party) detriment.
12

PVL3701/201/2/2018
(3) An owner, whose things were sold by mistake at a judicial sale in execution of a
judgment, may reclaim his/her things from any bona fide purchaser who bought the
things and took delivery thereof.
(4) An owner of money cannot reclaim his/her money from a third party if his/her (owner)
money was stolen by a thief and given to the good faith third party for valuable
consideration.
ANSWER: 3
COMMENTARY: Where a sheriff or a messenger of the court sells a judgment debtor’s assets
in public at a judicial sale in execution of a judgment, the true owner (if his/her goods are sold
by mistake as belonging to the judgment debtor, for example, where the judgment debtor has
bought the goods on credit and has not yet acquired ownership of them) cannot recover his/her
property from a bona fide purchaser after the sale and delivery of the thing to the buyer.
[See Study Guide pg 121]
READ THE FOLLOWING SET OF FACTS AND THEN ANSWER QUESTIONS 2-3
Vincent, a law graduate who completed his articles, wants to attend a course on conveyancing
to help him prepare for the Law Society conveyancing examination. The cost of the course is
R4300. Vincent does not have enough money and wants to borrow money from his uncle
James. James insists on some form of security for the repayment of the R4300. Vincent gives
James his gold watch, which he inherited from his father, as security for repayment of the debt.
In order to attend the course, Vincent must travel from his hometown, Middelburg, to Pretoria
and will have to arrange accommodation for a week. These expenses, for the travel and
accommodation, amounts to R4000. His friend, David, lends him R4000 and say he can repay
him when he has enough money.
13

QUESTION 2
(1) James has a real security right to the watch.

(2) James has a right of retention to the watch.
(3) James has a right of pledge to the watch.
(4) James has a limited real right to the watch
ANSWER: 2
COMMENTARY: All four options deal with real security rights. Real security rights are limited
real rights over another person’s thing (iura in re aliena). Real security rights secure
performance by a credit grantor that the debtor will perform his/her obligations toward the
security holder (creditor = holder of a real security right). See Diagram 12 on page 177 in the
Study Guide for an overview of the different limited real rights.
The incorrect option is (2) since James did not acquire a right of retention, he acquired a right of
pledge. A right of retention (lien) can, in general, be defined as a limited real right to secure the
claim of a person who has spent money or done work on another person’s thing. It entitles the
lienholder to keep the thing until he/she has been paid. It is clear from the set of facts that
James did not spend money or done work on the watch. James is in control of the watch as a
pledgee. A pledge is defined as a limited real right over the pledgor’s thing, delivered to the
pledgee as security for the repayment of the principal debt which the pledgor or a third person
owes to the pledgee.
[See Study Guide p 204-205, 210-211 and 236]
QUESTION 3
(1) David has a right of pledge against Vincent.

(2) David has a real security right against Vincent.
14

PVL3701/201/2/2018
(3) David has a secured personal/creditor’s right against Vincent.

(4) David has an unsecured personal/creditor’s right against Vincent.
ANSWER: 4
COMMENTARY: David has an unsecured personal/creditor’s right against Vincent. This

unsecured personal/creditor’s right arose from the agreement between Vincent and David and
is not enforceable against other/third parties. A real security right vests only if the parties agree
to create a real right (real agreement) and there is some form of publication (delivery or
registration).
[See Study Guide p 30]
READ THE FOLLOWING SET OF FACTS AND THEN ANSWER QUESTIONS 4-7.
Asha and Kagiso are neighbours living in Nzuri Gardens, a sectional title complex. Kagiso is the
owner of his unit and Asha rents the unit next to Kagiso. Asha’s brother, Phila, is unemployed
and temporarily lives with Asha. One night, while Kagiso is on a business trip overseas, Phila
takes Kagiso’s car, without his permission, to go to a party. On his way back from the party
Phila bumps the car into a pillar, causing a small dent in the bumper. The next morning Phila
takes the car to Posh Panel Beaters to have the dent repaired. Two days later Phila finds a job
in another town and moves out of Asha’s unit. When Kagiso returns home, he finds a note that
Phila left informing him that his car is at Posh Panel Beaters. Kagiso goes to Posh Panel
Beaters and claims his car back. Posh Panel Beaters refuses to give Kagiso his car before he
pays for the repairs. Kagiso refuses to pay, because he did not instruct Posh Panel Beaters to
repair his car.
QUESTION 4
(1) Asha is a bona fide unlawful possessor.
15

(2) Asha is a bona fide unlawful holder.

(3) Asha is a bona fide lawful holder.
(4) Asha is a bona fide lawful possessor.
ANSWER: 3
COMMENTARY: This question deals with the legal relationship between Asha and the flat.
Asha is the lawful holder of the flat. A lawful holder can be defined as a person who physically
controls the thing with the owner’s permission or on another legal basis, in order to derive some
benefit from it. The holder does not regard himself/herself as the owner; nor does he/she
pretends to be the owner.
QUESTION 5
(1) Kagiso is a co-owner (joint ownership) of the common property in Nzuri Gardens.
(2) Kagiso is the individual owner (separate ownership) of his section in Nzuri Gardens.
(3) Kagiso is the individual owner (separate ownership) of his unit in Nzuri Gardens.
(4) Kagiso’s is a co-owner (joint ownership) of the common property and the individual owner
(separate ownership) of his section in Nzuri Gardens.
ANSWER: 3
COMMENTARY: In terms of the Sectional Titles Act 95 of 1986 a unit consist of a section (eg
the flat) and the common property (eg road and gardens) in the sectional title scheme. Kagiso is
a co-owner of the common property together with all other owners in the sectional title scheme.
He is the individual owner of his section (flat). It is therefore incorrect to state that he is the
individual owner of his unit, because his ownership of his unit in Nzuri Gardens consists of
individual ownership of his section and co-ownership of the common property in the sectional
title scheme.
16

PVL3701/201/2/2018
[See Study Guide pg 278]
QUESTION 6
Kagiso’s car is an example of …
(1) a composite thing

(2) an auxiliary thing
(3) an accessory thing
(4) an incorporeal thing
ANSWER: 1
COMMENTARY: Kagiso’s car is an example of a composite thing. A composite thing is made

up of constituent parts or even of independent things that have been joined together to form a
new entity. The constituent parts lose their individuality and the composite thing is regarded as
one thing for purpose of the law of property.
An auxiliary thing have an independent existence apart from the composite thing. However, it
forfeits its independent existence without being physically joined to the principal thing. It is
economically dependent on the principal thing. A key is a good example of an auxiliary thing,
since it loses it’s independent character in that its economic value in terms of its purpose and
use depends on the unity between the principal thing and the key.
An accessory thing can have a separate existence apart from the composite thing, but has
forfeited its independent existence in that it has been physically joined to the principal thing (eg
a brick cemented into a wall).
An incorporeal thing is not a physical thing and cannot, like corporeal things, be perceptive by
means of the senses. A creditor’s claim in terms of an agreement is an example of an
incorporeal thing.
17

[See Study Guide pg 22-23]
QUESTION 7
(1) Kagiso can successfully institute the rei vindicatio against Posh Panel Beaters because
he can proof that he is the owner of the car, that the car still exists and is identifiable and
that the car is in control of Posh Panel Beaters.
(2) Because Kagiso had no agreement with Posh Panel Beaters to repair his car they cannot
retain the car until they receive payment from him.
(3) Posh Panel Beaters has an enrichment lien and may retain the car until Kagiso pays the
necessary and useful expenses incurred in repairing the dent.
(4) The expenses incurred for the repair of the car were useful and not essential and Posh
Panel Beaters can only rely on an enrichment lien for essential expenses incurred and
not for useful expenses.
ANSWER: 3
COMMENTARY: An enrichment lien serves as security for the lienholder’s outstanding claim for
useful and/or essential expenses incurred by him/her. An enrichment lien is a valid defence
against the rei vindicatio. Someone who incurred useful and/or essential expenses (not
luxurious expenses) in respect of another person’s property can retain the thing until the thing
until he/she is compensated for useful and/or essential expenses incurred. Thus Posh Panel
Beaters is entitled to retain the car until Kagiso compensates it for the useful expenses incurred.
[See Study Guide p 236-237]
QUESTION 8
A personal servitude …
18

PVL3701/201/2/2018
(1) is transferable.
(2) is terminated by the death of the holder thereof.
(3) is a personal right.
(4) can only vest over immovable property.
ANSWER: 2
COMMENTARY: A personal servitude is attached to the person in his/her personal capacity

and is therefore not transferable. A personal servitude can be granted only for a specific period
of time or for the holder’s lifetime (in the case of a legal person for a period of 100 years). It is
therefore correct to state that a personal servitude is terminated by the death of the holder
thereof.
Please note that all servitudes are limited real rights. Thus a personal servitude is NOT a
personal right. Personal servitudes can vest over movable (flock of sheep) and/or immovable
(farm) property.
QUESTION 9
In terms of the National Water Act 36 of 1998 …
(1) a distinction is drawn between public water and private water.

(2) the state is the trustee of the nation’s water resources.
(3) the state must ensure that water is protected, used, developed, conserved, managed and
controlled for the benefit of all people.
(4) the state is empowered to regulate the use, flow and control of all water in South Africa.
ANSWER: 1
19

COMMENTARY: The National Water Act 54 of 1956 retained the common law distinction
between public water and private water. The National Water Act 36 of 1998 repealed the 1956
Act. The 1998 Act no longer recognises the distinction between public water and private water.
[See Study Guide p 249-250]
QUESTION 10
Sandra is the owner of a farm. The municipality needs to build a national road through a part of
Sandra’s farm and wants to buy that piece of land from her. Sandra refuses to sell that part of
the farm to the municipality.
(1) Ownership is the most comprehensive real right a person can have over his/her own
thing and in principle an owner may do with the thing as he/she pleases. Consequently,
Sandra is entitled to refuse to sell that piece of land to the municipality.
(2) In terms of First National Bank of SA Limited t/a Wesbank v Commissioner for the South
African Revenue Services; First National Bank of SA Ltd t/a Wesbank v Minister of
Finance ((2002) (7) BCLR 702 (CC)) ‘property’ in section 25 must be interpreted in the
narrow sense. A piece of agricultural land that has not been subdivided can therefore not
qualify as ‘property’ and may not be deprived or expropriated.
(3) The municipality may, in terms of section 25(2) of the 1996 Constitution, expropriate that
piece of land and pay Sandra reasonable compensation. The amount, time and manner
of payment of compensation must be determined by the parties or should be decided by
a court.
(4) Because the national road is in the public interest the municipality may, in terms of
section 25(1) of the 1996 Constitution, deprive Sandra of that piece of land without
paying her compensation.
20

PVL3701/201/2/2018
ANSWER: 3
COMMENTARY: Although ownership is the most comprehensive real right a person can have
over his/her own thing, it is not an unlimited right. In principle an owner may do with his/her
thing as he/she pleases, however, this right can be limited in terms of the law and the rights of
others.
First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC)) it was
held that ‘property’ in section 25 of the 1996 Constitution must be interpreted in the broad
sense.
In terms of section 25 of the 1996 Constitution compensation is always payable for

expropriation.
[See First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service: First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC)
and Study Guide p 261-263]
4 CORRECTIONS – NEW STUDY GUIDE
We updated the Study Guide for this module during 2016. We want to bring the following to your
attention:
1 On page 5 of Tutorial letter 101 it is stated that the Study Guide is divided into four parts.
We changed the format of the Study Guide. The Study Guide is now only divided into
three parts.
21

Use of your own words as far as possible. Do not rewrite (“copy and
paste”) summaries that you found on the internet or in other sources – you 1
will be penalised.
Include “Student academic integrity declaration form” (½) and a

1
Bibliography (½) in assignment
Total 10
3 COMMENTARY ON ASSIGNMENT 02 [UNIQUE NUMBER: 788519)
QUESTION 1


(3) delivery
Answer: 1
General: Pledge is defined as a limited real right over the pledgor’s thing, delivered to the
pledgee as security for repayment of the principal debt which the pledgor or a third party owes
to the pledgee.
Option 1: This requirement is incorrect. A pledge is a limited real right. A pledge is constituted
by way of delivery of the thing to the pledgee. Prior to the delivery of the thing the pledgee has
a personal (creditor’s) right.
Options 2 and 4: These requirements are correct. Due to the accessory nature of pledge a
principal debt is required. To constitute a valid pledge, a principal debt, a pledge agreement
and delivery are required.
(Study Guide p 210 - 211)
QUESTION 2
that arose on his/her (upper owner) land.
(2) the state is the owner of all water in the country.
(3) there is no distinction between public water and private water.
(4) all persons who want to use water must have a license.

PVL3701/201/2/2019
Answer: 3
Option1: It is not a statutory requirement but rather a common law duty that an upper owner
must allow a lower owner the use of a reasonable share of water that arose on his/her
(upper owner) land.
Option 2: The state is not the owner but the trustee of all water within the Republic and must
ensure that water is protected, used, developed, conserved, managed and controlled in a
sustainable manner.
Option 3: Unlike its predecessor, the Water Act 54 of 1956, the National Water Act 36 of 1998
draws no distinction between public and private water.
Option 4: No licence is required if the authority that is responsible for the issuing of a license
dispensed with the requirement to provide a license. It is also not required for reasonable
domestic use, domestic gardening, animal watering, firefighting and recreational use.
(Study Guide p 53 & 250-251)
QUESTION 3
In terms of the Restitution of Land Rights Act 22 of 1994 one of the following restitution
orders can be made after a claim has been considered:
Answer: 2
Options 1, 3 and 4 are some of the restitution orders that the Land Claims Court can make.
Option 2: The current owner whose land is the subject of a restitution claim is not required to
pay compensation. The payment of compensation to the applicants must be made by the
State.
(Study Guide p 275)
QUESTION 4
(1) an owner
the thing
(3) a pledgee
9
Answer: 3
General: A lawful holder is defined as a person who physically controls a thing with the owner’s
permission or on another legal basis with the intention to derive a benefit.
Option 1: Ownership is the most complete real right that a person can have with regards to
his/her thing – it is not a mere real relationship such as possession and holdership, which are
distinguished from ownership. Therefore, an owner cannot be classified as a lawful holder.
Option 2: The controller in this regard is a bona fide possessor because he/she is in physical
control of the thing with the intention of an owner. A person who concludes a contract of sale
with a non-owner and who after delivery uses the thing assuming that he/she became the
owner is a bona fide possessor. Such a person controls the thing unlawfully because he/she is
not the owner. The control is however bona fide because the person is unaware that he/she
does not meet the requirements for the acquisition of ownership.
Option 3: A pledgee is a lawful holder because a pledgee controls the pledged thing with the
permission of the owner (pledgor) and with the intention to derive a benefit from it. A pledgee
does not regard himself/herself as the owner. The ownership of the pledgor (owner) is
respected.
Option 4: The lessee in this regard is a bona fide unlawful holder because he/she is in
occupation and is also deriving benefits from occupying the premises even though he/she
incorrectly believed that the lease period was extended. During the lease period a lessee is a
lawful holder, but the control of the lessee in this instance became unlawful after the lease
expired.

Dihya has entered into an agreement with Quinton in terms of which he grants Dihya the right
to use the road to Waterford that crosses his farm. This agreement is in writing, but it is not
registered. Quinton sells the farm and the new owner, who knows about the servitude
agreement, refuses to let Dihya use the road.
QUESTION 5
What type of right did Dihya obtain?
(1) real right

(2) personal right
Answer: 2
Option 1: Dihya has not obtained a real right because registration has not taken place yet.
Option 2: Because the servitude agreement was not registered only a personal right to have
the servitude registered was created. Because the new owner knew about Dihya’s
unregistered servitude agreement the new owner, in terms of the doctrine of notice, is bound to
respect the agreement and to have the servitude registered.
Option 3: Dihya’s right in respect of the servitude is not yet a limited real right. Upon
registration of the servitude Dihya’s right will be a limited real right.
Option 4: Option 2 is correct. (Study Guide p 183)
10

PVL3701/201/2/2019
QUESTION 6
(a) Someone who acquires ownership of the servient tenement knowing that there is an
unregistered servitude agreement in respect of that land is bound to respect the
(b) Someone who acquires ownership of the servient tenement and who does not know
that there is an unregistered servitude agreement for a praedial servitude in respect of
that land, is bound to respect the servitude agreement because a praedial/land servitude
is attached to the land (servient tenement).
(c) Someone who acquires ownership of the servient tenement at a judicial auction is
only bound to respect an unregistered servitude agreement if he/she was aware of
the unregistered servitude agreement in respect of the land at the time of the auction.
(1) (a), (b) and (c)
(2) (a) and (c)
(3) (b) and (c)
(4) (a) only
Answer: 4
Someone who acquires ownership of the servient tenement who knew that there is an
agreement. Therefore statement (a) is correct.
Statement (b) is incorrect because the doctrine of notice is not fulfilled because at the time of
acquiring the servient tenement, the person was not aware of the unregistered servitude
agreement.
Statement (c) is incorrect because a person who acquires land at a judicial auction has to
respect an unregistered servitude agreement even if such a person does not know about the
existence of the servitude agreement.
Option (4) is correct because only statement (a) is correct.
(Study Guide p 183)
11
QUESTION 7
Solly is the owner of a farm. The municipality needs to build a national road through a part of
Solly’s farm and wants to buy that piece of land from him. Solly refuses to sell that part of
his farm to the municipality.
(1) Ownership is the most comprehensive real right a person can have over his/her
own thing and in principle an owner may do with the thing as he/she pleases.
Consequently, Solly is entitled to refuse to sell that piece of land to the municipality.
(2) In terms of First National Bank of SA Limited t/a Wesbank v Commissioner for the
South African Revenue Services; First National Bank of SA Ltd t/a Wesbank v
Minister of Finance (2002) (7) BCLR 702 (CC)) ‘property’ in section 25 must be
interpreted in the narrow sense. A piece of agricultural land that hasn’t been
subdivided cannot qualify as ‘property’ and may not be deprived or expropriated.
(3) The municipality may, in terms of section 25(1) of the 1996 Constitution, expropriate
that piece of land and pay Solly reasonable compensation. The amount, time and
manner of payment of compensation must be determined by the parties or should be
decided by a court.
(4) Because the national road is in the public interest the municipality may, in terms
of section 25(1) of the 1996 Constitution, deprive Solly of that piece of land without
paying him any compensation.
Answer: 3
Option 1: The statement is incorrect. Ownership can be limited in this instance in terms of the
law – Section 25 of the Constitution.
Option 2: The statement is incorrect. The Court in FNB held that “property” for purposes of
section 25 of the Constitution should be interpreted wide. The Constitution Court held that it
was practically impossible to furnish and unwise to attempt a comprehensive definition of
property for the purposes of section 25 but that it was sufficient to hold that ownership of
corporeal movables must, as must ownership of land, lie in the heart of our constitutional
concept of property. The piece of land should qualify as “property” for purposes of section 25 of
the Constitution.
Option 3: The statement is correct. The municipality may, in terms of section 25(2) of the
Constitution, expropriate the piece of Solly’s land. The intended use of the piece of land, to
build a road, is in the public interest and/or for a public purpose. The amount, time and manner
of payment of compensation must be determined by the parties or should be decided by a
court. This will constitute a valid expropriation in terms of section 25(1).
Option 4: The statement is incorrect. In terms of section 25(2) compensation is payable in
respect of expropriation. In February 2018, the National Assembly adopted a motion that
Parliament's Constitutional Review Committee should investigate mechanisms through which
land could be expropriated without compensation. The amendment process is ongoing but
Section 25 has not been amended yet.
(Study Guide p 49 & 260-263. First National Bank of SA Ltd t/a Wesbank v Commissioner,
South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of
Finance (2002) (7) BCLR 702 (CC) par 51)
12

PVL3701/201/2/2019
QUESTION 8
Indicate the correct answer.
The following is an example of manufacturing (specificatio):
(1) Vincent pours his oil into Alfred’s half empty oil flask.
(2) Vincent takes Alfred’s grapes and makes wine from it.
(3) Vincent weaves his valuable gold threat into Alfred’s cloth.
(4) Vincent catches and slaughters a stray chicken which he then cooks and eats.
Answer: 2
General: Manufacturing (specificatio) is defined as an original method of acquiring ownership
in terms of which ownership is acquired by the unauthorised production of a completely new
thing, using a thing belonging to another.
Option 1: This option is incorrect because mixing of similar fluids (oils of Alfred and Vincent) is
called mingling (confusio).
Option 2: The statement is correct. Making wine from Alfred’s grapes comply with the definition
of manufacturing (specificatio) because it is impossible for the grapes to revert to their original
form.
Option 3: The statement is incorrect. Vincent’s weaving of his gold threat into Alfred’s cloth is
known as accession (accessio). The gold threat in this instance is considered an accessory to
the principal thing (cloth) and the accessory loses its independence and become part of the
principal thing.
Option 4: The statement is incorrect. A stray chicken in this regard is a thing that does not
belong to anyone (res nullius) and ownership thereof is acquired by way of appropriation.
Therefore, Vincent acquired ownership thereof by way of appropriation.
(Study Guide p 64, 84-86)
QUESTION 9
Which one of the following statements with regards to the interdict is incorrect?
(1) In order to succeed with the application for an interdict no other effective remedy
should be available.
(2) Only owners can apply for an interdict.
(3) The interdict is a speedy remedy.
(4) The requirements for an interdict were set out in Setlogelo v Setlogelo (1914 AD
221 227).
Answer: 2
General: An interdict can be defined as a summary court order applied for on an urgent basis
to force a person to do something or refrain from doing something.
Options (1), (3) and (4) are correct. The interdict is not only available to owners, for purposes
of the protection of ownership but also for the protection of any person with a clear right over a
thing, for example a servitude holder.
(Study Guide p 124)

13
QUESTION 10
In MacDonald Ltd v Radin & The Potchefstroom Dairies & Industries Co Ltd (1915 AD 454):
(1) the court stated that the acquisition of ownership by way of accession was an
exception to the principle that nobody could confer a better title than he/she had
(2) Innes CJ referred to Olivier v Haarhof (1906 TS 497) in which court decision it
was decided that when it had to be determined whether a movable thing became
permanently attached to land each case had to be decided on its own facts
(3) the court decided that the plaintiff could not remove the machinery because such
removal would cause substantial injury to the building
(4) Solomon JA referred to the principle in Justinian’s Institutes (2,1,29) which entailed
that if someone used material which belonged to someone else to build on his/her
own land, he/she became the owner of the building that was built on that land
Answer: 3
Option 1 is correct see p 468 of the MacDonald decision.
Option 2 is correct see p 466 of the MacDonald decision.
Option 3 is incorrect. MacDonald Ltd v Radin dealt with the three criteria applied by the courts
to determine whether a movable thing is attached to an immovable thing in such a fashion that
it subsequently becomes part of the immovable thing. These criteria are (i) the nature of the
attached thing; (ii) the manner and degree of attachment and (iii) the intention of the annexor
or of the owner of the movable thing. In this decision the court held that the machinery could be
removed.
Option 4 is correct – see p 481 of the MacDonald decision.
(Study Guide p 76-77; MacDonald Ltd v Radin 1915 AD 454)
4 CORRECTIONS – STUDY GUIDE
1 On page 5 of Tutorial letter 101 it is stated that the Study Guide is divided into four parts.
We changed the format of the Study Guide. The Study Guide is now only divided into
three parts.
2 The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ...”
3 In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example, a person who
controls a car which he/she borrowed from a friend is a lawful holder, but does not have a
real right over the car. A pledgee, however, is a good example of a person who is a
lawful holder, but also has a limited real security right over the pledged thing (see Study
Guide page 215 par 2.4.1).
14

PVL3701/201
3 COMMENTARY ON ASSIGNMENT 02 [unique number 676049]
ASSIGNMENT 02: Semester 2

REMEMBER:
 Answer this assignment electronically on myUnisa or on the mark-reading sheet.

 No assignment cover must be sent with the mark-reading sheet.
 Your mark out of 10, will count 50% towards your semester mark.
ANSWER THE QUESTIONS BY CHOOSING OPTION (1), (2), (3) OR (4) AND BY INDICATING
YOUR CHOICES ELECTRONICALLY ON myUNISA OR ON THE MARK-READING SHEET.
1 Under which of the following categories of things can a motorcycle be classified?

(1) Composite things.

(2) Movable things.
(3) Consumable things.
(4) Negotiable things.
Option (3): INCORRECT, a motorcycle is a non-consumable thing, because it is preserved even

though it is used. Although it is subject to normal wear and tear it can still be classified as a non-
consumable. The value of a consumable thing diminishes considerably by ordinary use.
Examples of consumables are pencils and food.
Option (1): Correct, a motorcycle is a composite thing. A composite thing is made up of
constituent parts, or even of independent things that have been joined together to form a new
entity.
Option (2): Correct, a motorcycle is a movable thing, because it can be moved from one place to
another without being damaged or without losing its identity.
Option (4): Correct, a motorcycle is a negotiable thing and can further be classified as either a
res nullius, if it does not belong to anyone or a res alicuius if it belongs to an owner.
9
2 Samira bought a car in terms of an instalment sale agreement from Hoot Car Traders
and is in control of the car. She will pay off the last instalment at the end of January
2021. Which of the following statements is correct?
(1) Samira is the owner of the car.

(2) Samira is the lawful holder of the car.
(3) Samira has a real right over the car.
(4) Samira has a limited real right over the car.
Option (2): CORRECT, Samira can be classified as lawful holder because she physically
controls the car with the permission of the owner (Hoot Car Traders) in order to derive some
benefit from it. Samira does not consider herself as the owner of the car. She respects the
ownership of Hoot Car Traders and will become owner of the car after she paid the last
instalment.
Option (1): Incorrect, Samira is not the owner of the car yet, she will become the owner of the
car after she paid the last instalment. No transfer of physical control will take place, because
Samira is already in physical control of the car, although she is not the owner yet. Once she
paid the last instalment she will become the owner of the car by means of delivery with the
short hand.
Option (3): Incorrect, Samira will only acquire a real right – ownership – after she paid the last
instalment.
Option (4): Incorrect, Samira does not have a limited real right over the car. She has a
personal right against Hoot Car Traders to use the car while she is paying the intalments.
(Study Guide pages 31 and 151)
3 Which one of the following real relationships is always lawful?
(1) bona fide possession

(2) ownership
(3) holdership
(4) mala fide possession
Option (2): CORRECT, the real relationship of an owner to his/her thing is ownership, which is
a lawful real relationship.
Option (1): Incorrect, bona fide possession is the real relationship of a person who is not
recognised as the owner of a thing, because he/she does not comply with the requirements for
establishing ownership, but who has the intention of an owner, on the incorrect assumption
that he/she is in fact the owner. The relationship of a person who accidently takes someone
else’s cell phone thinking that it belongs to him/her can be described as bona fide possession.
Although such a person controls the cell phone bona fide on the incorrect assumption, the
relationship cannot be lawful.
Option (3): Incorrect, holdership is a relationship between a person who controls a thing with
the intention to derive a benefit from the thing, with the permission or other valid legal ground
to control the thing. Holdership can, however, be unlawful under certain circumstances. For
example if a person unknowingly concludes an invalid lease contract. Such a person (“lessee”)
10

PVL3701/201
can be described as a bona fide unlawful holder.

Option (4): Incorrect, the relationship of a thief who controls a stolen thing can be described as
mala fide possession. Such a relationship cannot be lawful, because a thief is aware of the fact
that he/she is not recognised as the owner of the thing, but controls the thing with the intention
of an owner.
4 Indicate the correct option with regard to nuisance in the narrow sense.
(1) Nuisance in the narrow sense results in damage to property.

(2) An example of nuisance in the narrow sense is when an owner dumps slate on his/her
farm near a river, which slate washes down the river as a result of heavy rain onto the
neighbouring farm, causing damage to the latter farm.
(3) Regal v African Superslate 1963 (1) SA 102 (A) dealt with nuisance in the narrow
sense.
(4) Nuisance in the narrow sense occurs where a neighbour’s right of personality or
entitlement of use is infringed.
Option 4: CORRECT, nuisance in the narrow sense does not necessarily result in damage to
property, but a neighbour’s right of personality or entitlement of use is infringed.
Option (1): Incorrect, nuisance in the broad sense results in damage to property.
Option (2): Incorrect, this example is an example of nuisance in the broad sense and is based
on the facts of Regal v African Superslate 1963 (1) SA 102 (A).
Option (3): Incorrect, Regal v African Superslate 1963 (1) SA 102 (A) dealt with nuisance in the
broad sense.
5 The following is an example of alienation as an entitlement of ownership:
(1) X can register a bond over his property.

(3) X can claim his car from Y.
(4) X can donate his bike to Y.
Option (4): CORRECT, a person is entitled to donate his/her thing. Ownership passes from the
donor (X) to the donee (Y).
Option (1): Incorrect, to register a bond over property is an example of the entitlement to burden
a thing by granting a limited real right (mortgage) over the thing.
Option (2): Incorrect, this is not an example of the entitlement to alienate property, but an
example of the entitlement to destroy property.
Option (3): Incorrect, this is not an example of the entitlement to alienate property, but an
example of the entitlement of an owner of a thing to vindicate or claim his/her thing from anyone
11
who is unlawfully in control of the thing.

6 Mike has a right of way (registered servitude), over Lebo’s farm. Mike has a dairy farm
and uses the road over Lebo’s farm to transport his milk to different shops in the area.
One day Mike and Lebo have a difference of opinion, after which Lebo locks the gate
that gives Mike access to the road. Does Mike have any remedies?
(1) No, as owner of the farm Lebo may do with it as she pleases, and she may prevent
Mike from using the road over her farm.
(2) Yes, Mike can institute the actio negatoria against Lebo to open the gate
(3) Yes, Mike’s personal servitude grants him a personal right against Lebo to use the
road.
(4) Yes, Mike can institute a mandatory interdict against Lebo to open the gate.
Option (4): CORRECT, Mike as the servitude holder may institute an interdict against Lebo. The
interdict is a speedy remedy that is used when rights have been infringed or are about to be
infringed. The remedy is not only available to owners, to protect ownership, but also to protect
limited real rights such as Mike’s servitude.
Option (1): Incorrect, an owner (Lebo) may in principle do as she pleases with her property, but
ownership may be limited by the law and the rights of others. In this situation her ownership is
limited by Mike’s limited real right (a land servitude).
Option (2): Incorrect, the actio negatoria is a remedy that is available to the owner (Lebo)
against the holder of a servitude (Mike) who exceeds his/her servitude entitlements or against a
person who wrongfully claims servitude entitlements.
Option (3): Incorrect, a personal servitude is not a personal right, but a limited real right. It is
personal in nature because it is attached to the holder of the servitude and cannot be
transferred to another person.
(Study Guide pages 42, 123-124, 192-193, 199)
7 Which forms of constructive or fictitious delivery can take place in instances where
the transferee is in a position where someone else exercises physical control of the
thing on his/her behalf?
(1) symbolic delivery, delivery with the short hand (traditio brevi manu)
(2) constitutum possessorium, delivery with the short hand (traditio brevi manu)
(3) attornment, constitutum possessorium
(4) attornment, delivery with the long hand (traditio longa manu)
Option (3): CORRECT, in the case of attornment a third party, not the transferee, is in control of
the thing over which ownership is transferred. In the case of constitutum possessorium the
person who transfers ownership (transferor) retains physical control over the thing that is
transferred. The transferee is not in physical control.
Options (1), (2) and (4): Incorrect, in the case of symbolic delivery a symbol of the thing is
delivered to the transferee, because the thing over which ownership is transferred cannot be
12

PVL3701/201
handed over physically. In the case of delivery with the short hand no transfer of physical
control takes place, because the transferee is already in physical control of the thing. Delivery
with the long hand occurs when physical transfer of the thing is impossible because of the size
and weight of the thing. The thing that is transferred is pointed out to the transferee in the
presence of the thing.
(Study Guide pages 100, 102, 105-107, 109-110)
8 Newtown Extension 1 is a residential area. A condition of title is inserted against the

title deeds of each house in Newtown Extension 1. The condition of title provides that
only a single residential dwelling may be erected on each stand. The condition of title
in each title deed constitutes …
(1) an invalid expropriation in terms of section 25(1) of the Constitution.

(2) a valid expropriation in terms of section 25(1) of the Constitution.
(3) an invalid deprivation in terms of section 25(1) of the Constitution.
(4) a valid deprivation in terms of section 25(1) of the Constitution.
Option (4): CORRECT, section 25(1) of the Constitution provides for the deprivation (regulation
or limitation) of property in terms of a law of general application. Deprivation of property may not
take place arbitrarily. The condition of title is an example of a valid deprivation.
Option (1) and option (2): Incorrect, the condition of title is not an example of an expropriation of
property and section 25(1) of the Constitution deals with deprivation of property, not with
expropriation of property which is dealt with in section 25(2) and 25(3) of the Constitution.
Option (3): Incorrect, the condition of title is a valid deprivation of property.
9 Prisha lends R5000 to Myra and she (Prisha) secures payment of the loan by
registering a special notarial bond over Myra’s car. Myra owes Arnav R8000 as a
result of a collision that occurred between Myra and Arnav. Myra becomes insolvent
before repaying Prisha and before paying Arnav. In this scenario, who has a
preferent claim against Myra’s insolvent estate?
(1) Prisha, because she has a limited real right over Myra’s car.
(2) Prisha, because the smaller amount must be paid first.
(3) Arnav, because he has a personal right against Myra’s insolvent estate.
(4) Arnav, because the larger amount must be paid first.
Option (1): CORRECT, a special notarial bond (in terms of the Security by Means of Movable
Property Act 57 of 1993) is a bond over specifically described movable property such as Myra’s
car. A limited real right (real security right) is created. The notarial bondholder (Prisha) is a
secured creditor in terms of section 83 of the Insolvency Act 24 of 1936 and her claim will enjoy
preference.
13
Option (2), (3) and (4): Incorrect, Prisha’s claim enjoys preference because the Security by
Means of Movable Property Act 57 of 1993 creates a real security right in the form of pledge.
This right enjoys preference over Arnav’s personal right. The size of the amount does not
influence preference upon insolvency.
10 A ‘section’ in terms of the Sectional Titles Act 95 of 1996 can be described as …
(1) the object of the sectional title ownership (real right).

(2) a unit together with an undivided share in the common property.
(3) the land and all permanent structures on the land.
(4) a defined part of a building such as a flat or an office in an office block.
Option (4): CORRECT, a sectional title owner acquires ownership over his/her section which is
a defined part of a building such as a flat or an office in an office block, and co-ownership in the
common property.
Option (1): Incorrect, the object of sectional title ownership is a unit. It comprises of the
acquisition of separate ownership of sections and co-ownership of common property.
Option (2): Incorrect, a unit consists of a section and an undivided share in the common
property.
Option (3): Incorrect, this is the description of common property which does not form part of the
section.
4 CORRECTIONS – STUDY GUIDE

(i) The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ...”
(ii) On page 43 there is a reference to the Physical Planning Act 125 of 1991 and the
Development Facilitation Act 67 of 1995. Please note that both these acts were repealed
by the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). See pages
268-270 in the Study Guide for a discussion on SPLUMA.
(iii) On page 199 there is a list of the remedies available to a servitude holder. Please note
that the second remedy, actio negatoria, is a remedy available to an owner against the
servitude holder.
(iv) In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example a person who controls
a car which he/she borrowed from a friend is a lawful holder, but does not have a real right
over the car. A pledgee, however, is a good example of a person who is a lawful holder,
but also has a limited real security right over the pledged thing (see Study Guide page 215
par 2.4.1).
14

PVL3701/201
(4) after section 36(1) was applied that the infringement by section 114 on section 25(1) of
the 1996 Constitution was reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom.
ANSWER: 4
REMARK: Option 1 is correct.
See Study Guide pages 316-317 and par 51 of the case.
Option 4 is incorrect. The judge held that the infringement could not be justified
by section 36.
2013 (2) ASSIGNMENT 02

Which one of the following things can be regarded as a res nullius?
(1) a domesticated tiger living in his owner’s house

(2) an impala roaming in the bushes
(3) a Persian cat lying on the neighbor’s patio
(4) a springbok kept on a private game farm for hunting purposes
16

PVL3701/201
ANSWER:
Comments:
Option 2 is correct. A res nullius is a thing which does not belong to anyone. All creatures that are
wild by nature either in their natural state or when they have reverted to their former wild state are
regarded as res nullius. Wild animals that have been tamed (option 1), domestic animals (option
3) or wild animals regulated by the Game Theft Act 105 of 1991 (option 4), are not res nullius. An
impala roaming in the bushes is wild by nature and regarded as a res nullius.
See Study Guide pg 92
The following is an example of constructive delivery where a transferee is placed in a

position to exercises physical control over a thing:

(3) attornment
(4) cession of ownership
ANSWER:
Option 2 is correct. Constructive delivery is when there is no physical or actual handing over of the
thing. The transferee is either placed in a position to excercise physical control, already in physical
control or someone else exercises physical control on his/her behalf. Examples of a transferee
placed in a position to excercise physical control over the thing are symbolic delivery, delivery with
the long hand (traditio longa manu) and bills of lading.
See Study Guide pg 132-134
17

PVL3701/201
The aim of the actio negatoria is:
(1) to determine the rights and duties of contesting parties.

(2) to claim the stolen thing or its highest value since the theft.
(3) to claim the market value of the thing that was destroyed or alienated with mala fide
intention.
(4) to protect ownership where a servitude holder exceeds the limits of her servitude.
ANSWER:
Option 4 is correct. The actio negatoria is a property law remedy. It is a real action aimed at
protection of ownership in circumstances where third persons seek to exercise rights of a servitude
holder which they do not have or where servitude holders exceed the limits of their servitude. The
owner can institute this action against the violator and have to prove that he/she is the owner and
that there is a physical infringement of his/her entitlements of ownership.
See Study Guide pg 163 and 169
X and Y are co-owners of a farm. They built a road on the farm, which they use to transport
lime to the market. Without X's knowledge and approval Y gives permission to a neighbour, Z,
to use the road so that he can transport his lime to the market. X is unhappy about the heavy
traffic on the road and asks Y to revoke her permission to Z. X also asks Z to discontinue
his activities. Neither Y nor Z takes any notice of X. Which remedy does X have against Y?
(1) X can claim damages from Y.

(2) X can institute the condictio furtiva against Y.
(3) X can approach the court for a declaratory order.
(4) X can institute the rei vindicatio against Y.
ANSWER:
Option 1 is correct. When a co-owner uses the thing unreasonably by using it for a purpose for which
it was not intended or to an extent which is not in accordance with his/her share, the other co-owner
can claim damages from him/her. In this example Y used the road over the farm unreasonably by
giving Z permission to use the road against X’s wishes. X will have to proof the following to succeed
with a delictual claim for damages (actio legis Aquiliae): unlawful conduct by Y; culpability (intent
/ negligence) on Y’s part; he (X) has a proprietary right / interest in the thing; he (X) has suffered
patrimonial loss and that there is a causal connection between his patrimonial loss and Y’s conduct.
See Study Guide pg 166, 170 and 183
18

PVL3701/201
Comments:
S, X and Y’ son, leases a portion of their farm. When his father's farm implements are stolen,
he gives some of his (rented) equipment to his father, X, to use. Father and son have an
argument. In his anger X destroys his son's rented equipment. Which remedy is available to
S?
(1) spoliation remedy

(2) condicio furtiva
(3) enrichment action
(4) possessory action
ANSWER:
Option 4 is correct. S is in control of the rented equipment. When a person who is in control of a
thing, loses control of the thing, he/she can restore his/her control with the spoliation remedy. In this
example the equipment is destroyed and S will not be able to claim restoration of his control with
the spoliation remedy. S will however be able to claim damages resulting from the loss of control
from X with the possessory action. S can therefore claim the value of the equipment from X, who
has a weaker right to control it than what S has.
A land servitude must comply with the following requirements before it will be recognised
as a limited real right to the land of another:
(1) The servitude must have a degree of permanency.

(2) The servitude must enhance the use and benefit of the dominant tenement.
(3) The servitude must impose a duty on the owner of the servient tenement to perform a
positive act.
(4) The tenements must be situated, in relation to each other, in such a way that the
effective exercise of the servitude to the benefit of the dominant tenement is possible.
ANSWER:
Option 3 is incorrect. The maxim servitus in faciendo consistere non potest applies to all servitutes.
According to this maxim a servitude (personal or land) cannot impose a duty on the owner of the
servient tenement to perform a positive act. Land servitutes must have a degree of permanency
(perpetua causa) and enhance the use and benefit of the dominant tenement (utilitas). Furthermore
the tenements must be situated, in relation to each other, in such a way that the effective exercise
of the servitude to the benefit of the dominant tenement is possible (proximity).
19

PVL3701/201
X lends R5 000 to Y and X secures payment of the loan by registering a notarial bond over Y’s
car. Y owes Z R8 000 as a result of a collision that occurred between Y and Z. Y becomes
insolvent before repaying X and before paying Z. In this scenario, who has a preferent claim
against Y’s insolvent estate?
(1) X, because he has a limited real right over Y’s car.

(2) X, because the smaller amount must be paid first.
(3) Z, because he has a personal right against Y’s insolvent estate.
(4) Z, because the larger amount must be paid first.
ANSWER:
Option 1 is correct. X has a notarial bond over Y’s car. A notarial bond is a form of a conventional
or express mortgage. The notarial bond in this case is a special notarial bond as it is registered
over a specified movable thing. In terms of section 1 of the Security by Means of Movable Property
Act 57 of 1993 the specified movable thing under a special notarial bond are deemed to have been
pledged and delivered. The Act creates a fictitious (non-possessory) pledge. The Act therefore
creates a real security right in the form of a pledge and X (the notarial bond holder) is consequently
a secured creditor.
Z only has a personal right (creditor‘s right) against Y’s insolvent estate. He is an unsecured creditor.
Therefore X’s secured claim (real security right) will enjoy preference over Y’s unsecured claim.
In Mapenduka v Ashington 1919 AD 33 the court held that:
(1) the clause in the pledge agreement stipulating that the pledgee may keep the calve
of the cow as interest on the amount owing by the pledgor is invalid.
(2) the clause in the pledge agreement stipulating that the pledgee may sell the 6 oxen,
1 cow and 1 horse (the pledged animals) without a court order is invalid.
(3) the clause in the pledge agreement stipulating that the pledgee may keep the 6 oxen,
1 cow and 1 horse if the pledgor fails to pay his debt is invalid.
(4) the clause in the pledge agreement stipulating that the pledgor may not pay his debt
is invalid.
ANSWER:
Option 3 is correct. The parties in Mapenduka v Ashington (1919 AD 33) agreed in writing that the
pledgee may keep the 6 oxen, 1 cow and 1 horse (the pledged animals) if the pledgor fails to pay
his debt. The court held that this clause was invalid.
See Study Guide pg 264 -265 and Mapenduka v Ashington 1919 AD 33
20

PVL3701/201
9. Indicate the incorrect

Comments:
option. A mortgage is
terminated:
(1) by destruction of the mortgaged thing.

(2) by extinction of the principal debt.
(3) by the death of the mortgagor or mortgagee.
(4) when a mortgagee becomes owner of the mortgaged thing.
ANSWER:
Option 3 is incorrect. The death of the mortgagor or mortgagee does not terminate a mortgage. In
the case of the death of the mortgagor the mortgagee will have a claim against the mortgagor’s
deceased estate. In the case of the death of the mortgagee his/her deceased estate will have a
claim against the mortgagor. In both instances the principal debt needs to be paid in order for the
mortgage to be terminated.
See Study Guide pg 278
In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service: First National Bank of SA Ltd t/a Wesbank v Minister of Finance (2002 (4) SA 768
(CC)) the court held:
(1) that the purpose of section 25 had to be seen both as protecting existing property
rights as well as serving the public interest, mainly in the sphere of land reform.
(2) that section 25 embodied the positive protection of property and expressly
guaranteed the right to acquire, hold and dispose of property.
(3) with reference to Van der Walt, that the meaning of section 25 should be determined
in each specific case.
(4) that FNB was entitled to the property rights under section 25 of the 1996 Constitution.
ANSWER:
Option 2 is incorrect. In par 48 of this decision the court states that section 25 embodies a
negative protection of property. Section 25 does not guarantee the right to acquire, hold or
dispose of property.
See Study Guide pg 315-317 and First National Bank of SA Ltd t/a Wesbank v Commissioner,
South African Revenue Service: First National Bank of SA Ltd t/a Wesbank v Minister of
Finance 2002 (4) SA 768 (CC) par 48
2014 ASSIGNMENT 02
21

QUESTION 1
In MacDonald Ltd v Radin & The Potchefstroom Dairies & Industries Co, Ltd (1915 AD 454)
(1) the court stated that the acquisition of ownership by way of accession was an exception to
the principle that nobody could confer a better title than he/she had;
(2) Innes CJ referred to Olivier v Haarhof (1906 TS 497) where it was decided that when it had
to be determined whether a movable thing became permanently attached to land each case
had to be decided on its own facts;
(4) Solomon JA referred to the principle in Justinian’s Institutes (2, 1, 29) which entailed that if
someone used material which belonged to someone else to build on his/her own land, he/she
became the owner of the building that was built on that land.
ANSWER: (3)
REMARKS:
(1) This option is correct. Innes CJ stated that this exception is true only to a limited extent. He
referred to certain specific examples (page 468 of the decision). Accession and more
specifically inaedificatio is an original method of acquisition of ownership, which means that
the co-operation of the predecessor in title is not needed to acquire ownership. No transfer
of ownership takes place.
22

PVL3701/201
PVL3701/201
Comments:
(2) This option is correct (page 466 of the decision).
(3) This option is wrong. The court decided that the machinery could be removed on condition
that no damage is done to the land. Innes CJ’s decision was based on the intention of the
person who annexed the movables (page 466 of the decision).
(4) This option is correct. Solomon JA indicated that the facts of the MacDonald case were
different from the facts on which the principle contained in Justinian’s Institutes was based.
(page 481 of the decision)
QUESTION 2
“But physical prehension is not essential if the subject-matter is placed in presence of the would-be
possessor in such circumstances that he and he alone can deal with it at his pleasure. In that way the
physical element is sufficiently supplied; and if the mind of the transferee contemplates and desires so to
deal with it, the transfer of possession, - that is the delivery - is in law complete When this deposit of the
subject matter in the presence and at the disposition of the new possessor takes the place of physical
prehension, the delivery is said to be made longa manu........ It is most appropriate to transactions where
owing to the weight or bulk of the article concerned, actual delivery is difficult.”
(1) This statement can be found only in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2)
SA 725 (A)).
(2) This statement can be found both in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2)
SA 725 (A)) and in Groenewald v Van der Merwe (1917 AD 233).
(3) This statement can be found only in Groenewald v Van der Merwe (1917 AD 233).
(4) This statement can be found neither in Groenewald v Van der Merwe (1917 AD 233) nor
in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2) SA 725 (A)).
ANSWER: (2)
REMARK:
The statement clearly explains the meaning of delivery with the long hand and was originally
formulated in Groenewald v Van der Merwe (239), but it was also referred to in Eskom v
Rollomatic. (page 729 of the decision; also see Study Guide page 105)
23

QUESTION 3
Which option regarding the successful reliance on the actio ad exhibendum is wrong?
(1) The plaintiff must be the owner of the thing.
(2) The defendant must be the thief of the thing or an heir of the thief.
(3) Loss of control by the defendant must have been mala fide.
(4) The plaintiff can claim the market value of the thing.
ANSWER: (2)
REMARKS:
(1) This option is correct. Although proof of ownership is not indicated in the Study Guide as
one of the requirements that has to be proved for a successful reliance on the actio ad
exhibendum the definition provides that it is an action in terms of which the owner can
claim the market value of the thing from a person who destroyed or alienated the thing with
a mala fide intention. (Study Guide pages 123 & 125)
(2) This option is wrong. The defendant must be the former holder of the thing who mala fide
alienated or destroyed the thing. In the case of the condictio furtiva the defendant is the
thief of the thing or the thief’s heirs. (Study Guide pages 123 & 125)
QUESTION 4
24

PVL3701/201
PVL3701/201
Comments:
ANSWER: (2)
REMARKS:
Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd is an important judgment which sets
out the requirements for a successful reliance on the exception (defence) of estoppel against an
owner’s rei vindicatio. The judgment also illustrates the difficulties with constitutum possessorium
as a form of delivery in these circumstances. The decision does not, however, deal with the
condictio furtiva (option (1) above), an interdict (option (3) above) or a delictual claim for damages
(option (4) above).
(See Study Guide pages 122-123 par 2.1.3.3)
QUESTION 5
Which statement with regard to the legal consequences and entitlements of free co-ownership
is wrong?
(2) Apart from the co-ownership relationship there must be another underlying legal
relationship between the co-owners.
ANSWER: (2)
REMARKS:
In the case of free co-ownership the co-ownership is the only relationship between the co- owners,
and no other underlying legal relationship exists between the free co-owners. (Study Guide page
176)
QUESTION 6
In Nino Bonino v De Lange (1906 TS 120) the court considered the validity of a clause contained
in a lease agreement in terms of which the lessor was entitled under certain circumstances to
effectively debar the lessee from access to the premises.
25

agreement to take the law into their own hands is valid.
(2) The court held that in certain circumstances the parties should be allowed to be the
judge of whether a breach of the contract had taken place.
(3) Innes CJ stated that only a court of law, and not the parties to the agreement, can
ANSWER: (3)
REMARKS:
(1) This option is wrong. In Nino Bonino v De Lange the court decided that a clause in a lease
entitling the lessor to take the law into his/her hands was invalid. (page 123 of the
decision)
(2) This option is wrong. In Nino Bonino v De Lange the court held that under no circumstances
the parties can be allowed to decide if there was a breach of contract, because this would
mean that the lessor acted as the judge in his/her own case. (page 123 of the decision)
(3) This option is correct. In Nino Bonino v De Lange Innes CJ stated that only a court, and
not the parties to the agreement, could determine if a breach of contract occurred. (pages
123 and 124 of the decision)
(4) This option is wrong. In Nino Bonino v De Lange the court held that the lessee must
succeed with his application for a spoliation order seeing that his control was unlawfully
disturbed. The clause in the contract entitling the lessor to deny the lessee access to the
leased premises under certain circumstance allowed the lessor to be the judge in his/her
own case and was invalid. (page 124 of the decision)
QUESTION 7
In Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd (1913 AD 267) the court held that
(1) an exclusive right to trade on a specific piece of land, could be granted as a personal
servitude to someone and could be registered in that person’s name;
(2) a servitude could arise from a contract, but that such an agreement had to be registered
in order to vest a real right;
(3) the exclusive right to trade was for the benefit of Dawson’s Stores, but could be
transferred to Copthall Stores Ltd; or
(4) in most instances where an exclusive right to trade is granted the specific measurements
of the land on which the person could trade are stipulated.
26

PVL3701/201
PVL3701/201
Comments:
ANSWER: (3)
REMARKS:
(1) This option is correct. Remember that a personal servitude such as this which is registered
in a specific person’s name still creates a limited real right. (Willoughby’s page 282; Study
Guide page 241)
(2) This option is correct. (Willoughby’s page 287; Study Guide pages 228-230)
(3) This option is wrong. The court decided that the exclusive right to trade could not be
transferred to someone else. (Willoughby’s page 282)
(4) This option is correct. (Willoughby’s page 282)
S has entered into an agreement with Q and R in terms of which they grant him the right to use the
road to Waterford that crosses their farm. This agreement is in writing, but it is not registered. Q
and R sell the farm and the new owner, who knows about the servitude, refuses to let S use the
road.
QUESTION 8
(1) real right
(2) personal right
ANSWER: (2)
REMARKS: A servitude agreement creates a personal right (creditor’s right) to have the servitude
registered. A limited real right is created only on registration. (Study Guide page 230)
27

QUESTION 9
Which one of the following statements regarding the doctrine of notice is wrong?
(1) Someone who acquires ownership of the servient tenement knowing that there is an
agreement.
(2) Someone who acquires ownership of the servient tenement and who does not know that
there is an unregistered servitude agreement in respect of that land, is still bound to respect
the servitude agreement.
(3) Someone who acquires ownership of the servient tenement at a judicial auction is bound to
respect the servitude agreement even if that person is unaware of the unregistered servitude
agreement.
(4) Grant v Stonestreet (1968 (4) SA 1 (A)) is a good example of the application of the doctrine
of notice to an unregistered praedial servitude. The court held that Grant’s conduct was
mala fide.
ANSWER: (2)
REMARKS: Options 1, 3 and 4 are correct and they contain important information concerning the
doctrine of notice. Option 2 is wrong, because the doctrine of notice specifically provides that only
a person who is aware of an unregistered servitude agreement will be bound to register such
servitude. (Study Guide page 230)
QUESTION 10
In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service: First
National Bank of SA Ltd t/a Wesbank v Minister of Finance (2002 (4) SA 768 (CC)) the court held
that
Constitution;
28

PVL3701/201
PVL3701/201
Comments:
ANSWER: (4)
REMARKS: Option 4 is wrong, because the Constitutional court in First National Bank of SA Ltd
t/a Wesbank v Commissioner, South African Revenue Service: First National Bank of SA Ltd t/a
Wesbank v Minister of Finance (par 48) emphasised that section 25 embodied the negative
protection of property and did not expressly guarantee the right to acquire, hold and dispose of
property. Options 1-3 contain important aspects of the decision. This is a very important and
interesting court decision. Make sure that you understand and know it well.
2015 (2) ON ASSIGNMENT 02

QUESTION 1
(3) delivery
ANSWER: (1)
COMMENTS:
Option (1) is incorrect. Transfer of control is required for the vesting of a pledge and it is therefore accepted
that only movable, corporeal things can be given in pledge. Registration in the deeds office is therefore
not required as immovable property is not pledged.
Option (2) is correct. The accessory nature of a pledge requires the existence of a principle debt and is
therefore a requirement for the constitution of a valid pledge.
29

PVL3701/201
Option (3) is correct. The pledgor undertakes to give the thing in pledge. Transfer of control is required by
means of delivery. Delivery is therefore a requirement for the constitution of a valid pledge.
Option (4) is correct. The pledge agreement creates an obligation on the pledgor to give the thing in pledge
to the pledgee. It provides the pledgee with a personal right to compel the pledgor to deliver the thing. It is
therefore a requirement for the constitution of a valid pledge.
QUESTION 2
that arose on his/her (upper owner) land
(2) the state is the owner of all water in the country
(3) there is no distinction between public water and private water

(4) all persons who want to use water must have a licence
ANSWER: (3)
COMMENTS:
Option (1) is incorrect as this principle is not included in the National Water Act 36 of 1998.
Option (2) is incorrect. In terms of the National Water Act 36 of 1998 the state is the trustee of all water in
the country, not the owner. As trustee it has the duty to administer water usage to the benefit of all people
of South Africa.
Option (3) is correct. The National Water Act 36 of 1998 does not draw a distinction between public and
private water, as was the case with its predecessor, the Water Act 54 of 1956.
Option (4) is incorrect. The National Water Act 36 of 1998 makes provision for use of water for reasonable
domestic use, domestic gardening, animal watering, firefighting and recreational use for which a licence is
not necessary.
30

PVL3701/201
QUESTION 3
Comments:
In terms of the Restitution of Land Rights Act 22 of 1994 one of the following restitution orders
can be made after a claim has been considered:
ANSWER: (2)
COMMENTS:
Options (1), (3) and (4) are correct. The Restitution of Land Rights Act 22 of 1994 makes provision for the
Land Claims Court to order the restoration of land as contemplated in option
(3) but also determines that the Land Claims Court can make the orders described in options (1) and (4)
in lieu of restoration of land.
Option is (2) incorrect. The Restitution of Land Rights Act 22 of 1994 makes provision for payment
of compensation by the state, but not by the current owner of the land.
QUESTION 4
(1) an owner
the thing
(3) a pledgee
31

PVL3701/201
ANSWER: (3)
COMMENTS:
Option (1) is incorrect. Ownership and holdership are both types of real relationships and
both an owner and a lawful holder (in the event of a pledgee) will have a real right towards
the thing. A holder, however, does not have the intention of an owner, but only the intention
to derive some kind of benefit from the thing.
Option (2) is incorrect. Someone who buys a thing has the intention of an owner and will be
a bona fide possessor if he buys the thing from someone who is not authorized to sell it. A
lawful holder only has the intention to derive some benefit from the thing and someone who
buys a thing can therefore not be a lawful holder.
Option (3) is correct. A pledgee acquires a real right to the pledged thing, but he only has
the intention to derive some benefit from the thing – in this instance to receive security for a
debt owing to him. The pledgee is therefore a lawful holder of the pledged thing.
Option (4) is incorrect. The lessee is a holder with regards to the leased premises, because
he only wishes to derive a benefit from the premises; he does not have the intention of an
owner. Due to the fact that the lease has expired the lessee is an unlawful holder. He is
however bona fide because he (incorrectly) believes that the lease agreement has been
extended.

S has entered into an agreement with Q and R in terms of which they grant him the right
to use the road to Waterford that crosses their farm. This agreement is in writing, but it is
not registered. Q and R sell the farm and the new owner, who knows about the servitude,
refuses to let S use the road.
QUESTION 5
(1) Real right
(2) Personal right
(3) Limited real right
(4) None of the above

32

PVL3701/201
ANSWER: (2)
Comments:
COMMENTS:
Options (1) and (3) are incorrect. In order to vest a real right (including a limited real right) there
must be some form of publication (registration in this case).
Option (2) is correct. The agreement in terms whereof S is allowed to use the road that crosses Q
and R‘s farm, is not registered in the deeds office. S therefore only acquired a personal right to
enforce the agreement against Q and R.
Option (4) is incorrect. S did in fact obtain a personal right as referred to in option (2). See
Study Guide pp 230 & 231.
QUESTION 6
(a) Someone who acquires ownership of the servient tenement knowing that there is
an unregistered servitude agreement in respect of that land is bound to respect the
(b) Someone who acquires ownership of the servient tenement and who does not
know that there is an unregistered servitude agreement in respect of that land, is
still bound to respect the servitude agreement.
(c) Someone who acquires ownership of the servient tenement at a judicial auction is
only bound to respect the agreement if he was aware of the unregistered servitude
agreement in respect of the land at the time of the auction.

(1) (a), (b) and (c)
(2) (a) and (c)
(3) (b) and (c)
(4) (a)
33

PVL3701/201
ANSWER: (4)
COMMENTS:
Option (a) is correct. In terms of the doctrine of notice someone who acquires ownership of the servient
tenement knowing that there is an unregistered servitude agreement in respect of that land is bound to
respect the servitude agreement.
Option (b) is incorrect. Someone who acquires ownership of the servient tenement and who does not know
that there is an unregistered servitude agreement in respect of that land will not be bound to that
agreement.
Option (c) is incorrect. Someone who acquires ownership of the servient tenement at a judicial auction is
always bound to respect the unregistered servitude agreement even if he was not aware thereof.
QUESTION 7
In terms of the judgment in Nino Bonino v De Lange (1906 TS 120) we can draw the following
conclusions in respect of the spoliation remedy (mandament van spolie):
(1) The remedy is based on the legal policy consideration that no-one should be
allowed to take the law into his/her own hands.
(2) The remedy is available only if the spoliator acted with force, fraud or stealth.
(3) The remedy is summarily executed, without considering the merits of the parties’
claims to the thing concerned.
(4) The unlawfulness of the spoliatus’ control of the thing in question is irrelevant.
ANSWER: (2)
COMMENTS:
Option (2) is incorrect. The spoliation remedy is available when the spoliator acted unlawfully. This means
he unlawfully took the law into his own hands. A person can take the law into their own hands in an unlawful
manner without acting with force, fraud or stealth. For example, when a person changes the locks of a
building (that he is renting out) out of own right and therefore disturbs the lessee’s undisturbed and
peaceful control of the building, he acts in unlawful self- help, but does not act with fraud, force or stealth.

34

PVL3701/201
QUESTION 8
Comments:
In Cape Explosive Works Ltd v Denel (Pty) Ltd (2001 (3) SA 569 (SCA)) the court:
(1) applied only the subtraction from the dominium test to determine whether the conditions
in the sale created real rights which could be registered
(2) used two criteria to determine whether the conditions in the sale created real rights which
could be registered: the intention of the transferor and the subtraction from the dominium
test
(3) made an order declaring that the two conditions in the sale created real rights which
could be registered
(4) made an order interdicting Denel from acting contrary to the two conditions
ANSWER: (1)
COMMENTS:
Options (2) - (4) are correct.
Option (1) is incorrect. The court referred to section 3 of the Registration of Deeds Act 47 of 1937.
In terms of this section only real rights in land are registrable. A right qualifies as a real right when
it complies with the following two requirements:
(i) The person creating the right must have the intention to bind the current owner and
his/her successors in title.
(ii) The right or condition must be of such a nature that the registration thereof resulted in a
“subtraction from the dominium” of the land it was registered against.
See Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA 569 (SCA) par 12.
QUESTION 9
In Papalardo v Hau (2010 (2) SA 451 (SCA)) the court held that the owner of the:
(1) lower erf must allow all water flowing from the higher erf on to his erf
(2) lower erf must divert the water from the higher erf to the street
(3) lower erf must allow the natural flow of water from the higher erf on to his erf
(4) higher erf has an ex lege servitude over the lower erf in terms of which the owner of the
lower erf must allow all water to flow on to his/her erf
35

PVL3701/201
ANSWER: (3)
COMMENTS:
Option (1) is incorrect. The owner of the lower erf must allow only the natural flow of water from the higher
erf on to his erf.
Option (2) is incorrect. There is no responsibility on the owner of the lower erf to divert the water flow from
the higher erf to the street.
Option (3) is correct.
Option (4) is incorrect. The owner of the higher erf can only impose a burden on his neighbour (the owner
of the lower erf) to cope with a pattern of flow which would not naturally have occurred if an express
servitude exists in his favour, whether acquired by registration, prescription or by agreement.
See Papalardo v Hau 2010 (2) SA 451 (SCA).
QUESTION 10
In MacDonald Ltd v Radin & The Potchefstroom Dairies & Industries Co Ltd (1915 AD
454):
(1) the court stated that the acquisition of ownership by way of accession was an exception to
the principle that nobody could confer a better title than he/she had
(2) Innes CJ referred to Olivier v Haarhof (1906 TS 497) in which court decision it was decided
that when it had to be determined whether a movable thing became permanently attached
to land each case had to be decided on its own facts
would cause substantial injury to the building
(4) Solomon JA referred to the principle in Justinian’s Institutes (2,1,29) which entailed that if
someone used material which belonged to someone else to build on his/her own land,
he/she became the owner of the building that was built on that land
36

PVL3701/201
ANSWER: (3)
Comments:
COMMENTS:
Option 3 is incorrect. The court decided that the machinery could be removed on condition that no damage
is done to the land. Innes CJ’s decision was based on the intention of the person who annexed the
movables.
See MacDonald Ltd v Radin & The Potchefstroom Dairies & Industries Co Ltd 1915 AD
454 466.
2016 (1) ASSIGNMENT 02
Question 1
Original acquisition of ownership can take place by means of
(1) accession.
(2) appropriation.
(3) registration.
(4) expropriation.
Answer:
Feedback: Accession, appropriation and expropriation are forms of original acquisition of

ownership. These methods do not require cooperation from the person who was the owner
of the thing before the new owner (predecessor in title). However, registration, is a
derivative method of acquisition of ownership, which means that ownership is acquired with
the cooperation of the former owner. The transfer of ownership of immovable things (land)
takes place by registration.
Study guide p 90-113 ; 148
Question 2

Handing over the keys to a car or a warehouse is the best known example of: 37
(1) symbolic delivery in which instance a thing is handed over symbolically by pointing it out

to the transferee.
(2) symbolic delivery in which instance a thing is handed over symbolically by delivering a
token or symbol of the thing to the transferee.
(3) delivery with the long hand (traditio longa manu) in which instance a thing is delivered by
pointing it out to the transferee and placing the transferee in the position to take control of
the thing to the exclusion of others.
(4) delivery with the long hand (traditio longa manu) in which instance a thing is handed over
symbolically by delivering a token or symbol of the thing to the transferee.
38

PVL3701/201
PVL3701/201
Comments:
Answer:
Feedback: Symbolic delivery and delivery with the long hand (traditio longa manu) are methods
of constructive or fictitious delivery where the transferee is placed in the position to exercise
physical control over the transferred thing. These methods of delivery take place where the thing
cannot be handed over physically due to its size or nature.
Option 3 correctly describes delivery with the long hand, but is not applicable to the instance
where a car or the contents of a warehouse are transferred. For the transferee to be able to
exercise physical control over the car or the contents of a warehouse, it requires the key. This
key is delivered as a symbol of the car or contents of the warehouse that is being delivered.
Study guide p 132-134
Question 3

The following are the requirements for the successful reliance on the condictio furtiva:
(1) ownership or retention of a lawful interest from the date of theft to the date of institution of
action
(2) patrimonial loss by the owner of the stolen thing
(3) theft or removal of the thing with deceitful intent
(4) if the action is not instituted against the thief or deceitful remover, that the defendant is
the heir of the former
Answer:
Feedback: To rely successfully on the condictio furtiva, an applicant must prove options 1, 3 and
4. The action is instituted to claim the stolen thing or the highest value of the thing since the theft
thereof. Patrimonial loss of the owner is not claimed with this action. To claim patrimonial loss,
the Aquilian action (delictual claim for damages) should be instituted.
It should also be noted that not only the owner, but also any person with a lawful interest in the
stolen thing, can institute the action.
Study guide p 163-164; 213
39

Question 4
If co-owners cannot reach agreement on the subdivision of property:
(1) division may be claimed by means of the actio communi dividundo.

(2) the applicant doesn’t have to prove that he/she attempted division by means of an
agreement.
(3) the applicant has to prove that he/she has already tried to obtain division by means of an
agreement.
(4) the court has a wide discretion with regard to the division.
Answer:
Feedback: If co-owners cannot reach agreement on the subdivision of the property, any co-
owner may claim division by means of the actio communi dividundo. The applicant must show
that he/she has already tried to obtain division by means of an agreement with other co- owners.
A court can only be approached if this attempt has failed. The court has a wide discretion with
regard to the division.
Study guide p 183
Question 5

A purchaser who has purchased a car on credit but who has not yet paid all the instalments can
be defined as a:
(1) possessor
(3) bona fide unlawful holder

(4) lawful holder
Answer:
Feedback: A lawful holder is a person who physically controls the thing with the owner’s
permission or on another legal basis, in order to derive some benefit from it. This person
exercises control over the thing while recognising and respecting the owner’s ownership. An
example of a lawful holder is a person who buys something on credit, but who have not yet paid
all the instalments.
40
Possession in option 1 refers to a real relationship between a legal subject and a thing
characterised by a physical and a mental element. Possession in this sense is always unlawful.

PVL3701/201
PVL3701/201
Comments:
Option 1 is therefore wrong because the purchaser bought the car under a credit agreement.
A mala fide unlawful holder in option 2 refers to a person who knows that he /she does not have the
owner’s consent to control the thing, but he/she still exercises physical control over the thing unlawfully in
order to derive a benefit from it but not with the intention of an owner. This option is wrong because a
purchaser under a credit agreement controls the thing lawfully with the intention to derive some benefit
from it.
A bona fide unlawful holder in option 3 refers to a person who physically controls the thing unlawfully, but
he/she is unaware of the fact, since he/she is under the incorrect impression that he/she has the
necessary permission or a legal ground to control the thing. This option is wrong because a purchaser
under a credit agreement controls the thing lawfully.
Study guide p 187, 192-195
Question 6
An owner, bona fide possessor and mala fide possessor each has a
(1) real relationship with the thing it physically controls with the intention of an owner.
(2) real relationship with the thing with the intention to become an owner.
(3) lawful real relationship with the thing it physically controls which affords it a real right over
the thing.
(4) lawful real relationship with the thing it physically controls with the intention of deriving a
benefit from the thing.
Answer:
Feedback: Ownership and possession (bona fide or mala fide) are real relationships. An owner
has a real right to his/her own thing, this is lawful real relationship. A possessor controls the thing
with the intention of an owner. Option 4 refers to a lawful holder. A lawful holder has a lawful real
relationship with the thing it physically controls with the intention of deriving a benefit from the
thing.
Question 7 41

A personal servitude:
(1) confers entitlements with regard to a movable or an immovable thing.
(2) is a limited real right
(3) is a personal right (creditor’s right)
(4) confers entitlements to a person in his/her personal capacity.
Answer:
Feedback: All servitudes are limited real rights. A personal servitude is defined as a limited
real right granting the servitude holder specific entitlements of use and enjoyment with regard
to the movable or immovable thing of another in his/her personal capacity for a specific period
of time or for his/her lifetime or, in the case of a legal person, for a maximum period of 100
years. Please note that a personal servitude is not a personal right! Option 3 is therefore
incorrect.
Question 8
Indicate the correct option with regards to servitudes:
(1) The maxim that no one can establish a servitude over his/her own thing (nulli res sua
servit) applies to both land and personal servitudes.
(2) Both land and personal servitudes can only be established over immovable property
(land).
(3) Personal servitudes are created in favour of a piece of land of a specific person.
(4) Land servitudes are limited real rights and personal servitudes are personal rights.
Answer:
Feedback: Both servitudes are limited real rights. As mentioned in Question 7 – a personal
servitude is not a personal right.
Land servitudes can only be established over movables while personal servitudes can be
established over both movables and immovables.
A personal servitude confers entitlements to a person in his personal capacity.

42
Question 9

PVL3703/201/1/2012

Law of Delict
PVL3703
Semester 1
Department of Private Law

This tutorial letter contains important information
about your module.
Bar code

CONTENTS
1 COMMENTARY ON ASSIGNMENTS ...................................................................................... 3

2 EXAMINATION AND ADMISSION TO THE EXAMINATION .................................................. 8
3 PREPARATION FOR EXAMINATION ..................................................................................... 9

PVL3703/201
Dear Student
1 DISCUSSION OF ASSIGNMENTS
1.1 GENERAL
Assignment 01 (written assignment) and assignment 02 (multiple-choice assignment) equally
contributed to your semester mark. Submission of assignment 01 was a prerequisite for
admission to the examination in this module. However, no minimum mark for the assignment
was required for admission. Your semester mark will count 20% towards your final mark for
this module. This assignment required a structured written response to the question. The value
of this assignment lies mainly in using the discussion furnished to enhance your understanding
and knowledge of the work. Assignment 02 (multiple-choice assignment) was marked by
computer. You should use the commentary given to assignment 02 to identify the correct
alternatives for the different questions in the assignment.
1.2 ASSIGNMENT 01 (WRITTEN ASSIGNMENT)
COMMENTARY
ASSIGNMENT 01: PROBLEM TYPE QUESTION
UNIQUE NUMBER: 219194
ANSWER
Question
Differentiate between the two forms of causation. Also discuss briefly, with reference to the
latest decisions of the Appellate Division, the tests that must be employed to establish whether
the two forms of causation are present in a given set of facts.
Total for assignment 01: [10]
The establishment of causation involves a two-stage inquiry:
The first step involves establishing ‘factual’ causation (½). Factual causation is concerned with
the question whether; judging from the facts, a certain act of the defendant caused the harmful
result suffered by the plaintiff [1]. Because one act can be the factual cause of many different
results, a second inquiry is necessary to limit the defendant’s liability to only one or some of
these results. This second inquiry is known as legal causation (½), and here the courts apply
legal policy considerations rather than make a finding purely on the facts. [1]

The test for factual causation is the conditio sine qua non test or ‘but for’ test. [1] This entails
mentally eliminating (or removing) the act (or conduct) and if the result
(consequence/harm/prejudice) also disappears, a factual causal link is present. Another way of
expressing this idea is to ask: But for the defendant’s act, would the plaintiff’s harm have
eventuated? [1 for any one of these two formulations] S v Mokgethi 1990 1 SA 32 (A),
International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A) and the majority of cases
dealing with causation can be cited as authority for this test. The test is subject to much
criticism, inter alia that it involves circular reasoning and fails completely in cases of cumulative
causation. [1] Neethling and Potgieter argue that evidence is sufficient to determine whether
one fact flowed from another fact. [1]
The test for legal causation is the flexible approach as formulated in S v Mokgethi [1] and
subsequently applied in the Bentley [1] and other delict cases. According to this approach the
main question is whether the link between the act (or conduct) and the result
(consequence/harm/prejudice) is close enough, when judged in view of policy considerations of
reasonableness, fairness, and justice [1] for the to be result (consequence/harm/prejudice) to be
imputed to the defendant. [1] In other words, the wrongdoer should not be held liable for harm
which is too remote from the conduct. [1] According to the flexible approach, no single legal
causation theory can solve all possible causation problems, but the other theories may be used
as subsidiary aids. [1] Such theories include the adequate causation, direct consequences, and
foreseeability theories, as well as the principles relating to the so-called novus actus
interveniens, and the maxim that ‘you should take your victim as you find him’ (thin skull rule). [2
max]
[Maximum marks: (10)]
1.3 ASSIGNMENT 02 (MULTIPLE CHOICE ASSIGNMENT)
COMMENTARY
ASSIGNMENT 02: MULTIPLE CHOICE QUESTIONS
Unique assignment number: 202116
ANSWERS
Question 1
negligently is the:

2. actio iniuriarum
4. interdict
(1)

PVL3703/201
Question 2
rights is the:

2. actio iniuriarum
4. interdict
(1)
The delictual remedy used to claim a solatium for intentional infringement of personality rights is
the actio iniuriarum.
Question 3

2. actio iniuriarum
4. interdict
(1)
Question 4
The delictual remedy used to claim compensation for negligent infringement of the corpus
is the:

2. actio iniuriarum
4. interdict
(1)
The delictual remedy used to claim compensation for negligent infringement of the corpus is the
action for pain and suffering

Question 5

2. actio iniuriarum
4. interdict
(1)
Question 6
When the so-called open-ended delictual norms are given content in the light of the basic
values of chapter 2 of the Constitution, this process is known as:

(1)
Question 7

4. mitigation
(1)

PVL3703/201
In a claim for compensation, the plaintiff must claim damages for all damage already sustained
as well as that expected in the future. This principle is known as the “once and for all” rule, and it
effectively dictates the stage at which prospective loss must be claimed.
Question 8

4. mitigation
(1)
The sum formula approach refers to a hypothetical (potential) patrimonial position of the plaintiff
in order to provide for the assessment of prospective damage.
Question 9
1. bodily integrity
2. good name
3. privacy
4. feelings
(1)
Defamation is the wrongful, intentional infringement of another person’s right to his/her good
name.
Question 10
insight, he or she:
3. has intent
4. is accountable
(1)

TOTAL MARKS: [10]
2 EXAMINATION AND ADMISSION TO THE EXAMINATION
2.1 EXAMINATION
Since this is the last tutorial letter we shall send you this semester, we wish to take this
opportunity to give you some information on the examination and examination paper. At the end
of the semester you will write one two-hour paper that counts 100 marks. The exam mark
counts 80% of the final mark for the module and the assignments 20%. The examination paper
consist of two sections, section A and section B. Section A has to be answered on a mark-
reading sheet, while the answers for section B have to be filled-in on the examination
paper. The format of the paper is set out below:
● Section A consists of 15 multiple-choice questions of two marks each. This section will
count 30 marks in total. The answers to this section have to be filled in on a mark-
reading sheet. Please make sure that you also fill in the unique number on the mark-
reading sheet. The questions in Assignment 02 (multiple choice assignment) are
examples of the type of questions you can expect in the examination. Please note that the
multiple choice questions in the assignment were designed to test whether you had
grasped the study material. The multiple choice questions in the examination will be
slightly more challenging.
● Section B consists of short and long questions (direct questions and problem-type
questions) that will count 70 marks in total. The answers to this section have to be filled
in on the examination paper itself and then handed in. Space for your answer is
supplied directly below each question. The questions in Assignment 01 (written
assignment) as well as the self evaluation questions set in the study guide are
examples of the type of questions you can expect in the examination.
2.2 ADMISSION TO THE EXAMINATION
All registered students for this module had to complete and submit assignment 01 to gain
admission to the examination. However, no minimum mark for the assignment was required for
admission.
Furthermore, a student must obtain a sub-minimum of 40% for the examination to pass this
module. In other words, a student must obtain at least 40% for the examination which when
combined with the assignment mark must add up to at least 50% in order for the student to pass
this module.
Please note that the assignment mark will not be taken into account in the case of
supplementary examinations. In other words a student must obtain at least 50% for a
supplementary examination to pass this module.

PVL3703/201
2.3 TUTORIAL MATTER FOR EXAMINATION
The following must be studied for the examination:
(1) the relevant sections of the prescribed textbook as indicated in the study guide
(2) the study guide
(3) the prescribed cases as discussed in the textbook and study guide
(4) all tutorial letters received during the semester
3 PREPARATION FOR EXAMINATION
To assist you with your preparation for the examination, we provide you with the following
questions taken from previous examination papers as examples. Please note that these are
just examples; you need to study all your prescribed work.
QUESTION 1
1.1 Write brief notes on the similarities and differences between breach of contract
and delict. (5)
1.2 Write brief notes on the indirect application of the Bill of Rights to the law of delict. (5)
QUESTION 2
X is involved in an accident whilst driving his car. When he regains consciousness, he has no
recollection of how the accident took place. He is hospitalised, and during treatment for head
injuries the doctors determine that he suffered an epileptic fit at the time of the accident. The car
of Y, the other person involved in the accident, is badly damaged. Can it be said that it was an
act on the part of X that damaged Y’s car? Will it make a difference to your answer if X had
been receiving treatment for epilepsy before the accident, but had failed to take his medicine for
several days before the accident took place? Discuss. (10)
QUESTION 3
In a certain town, the paved sidewalks are in a poor condition due to erosion. Several holes and
furrows have developed in the sidewalks. The municipality neglects to repair the sidewalks,
despite requests to this effect by several of the residents. One day Mrs M, an aged resident,
inadvertently steps into a hole in a sidewalk, falls, and suffers serious injuries for which she is
hospitalised for a month. Mrs M wishes to recover damages from the municipality in a delictual
action. Discuss only whether the conduct of the municipality was wrongful. Refer in your answer
to relevant case law. (10)

QUESTION 4
X stops at a busy filling station to fill up with petrol. While waiting for a pump attendant, he sees
another person driving off and throwing a cigarette butt out through the car window. An
explosion takes place, and the next moment there is a fire in the driveway close to one of the
petrol pumps. X realises that the cigarette butt has ignited some petrol that has been spilt there.
Having a quick look around, X sees a hosepipe which is usually used to wash cars. He opens
the tap widely and sprays water on the fire. However, the water does not extinguish the fire.
Rather, the burning petrol starts to float on top of the water, and is driven by the force of the
water stream from the hosepipe to a position under a car belonging to Y, another customer at
the filling station. Y’s car catches fire, and by the time the pump attendants have managed to
extinguish the fire with foam fire extinguishers, the car is badly damaged. Y wants to recover the
damage to his car from X. Answer questions 4.1 and 4.2 in respect of this set of facts.
4.1 Was X’s conduct wrongful? Discuss with reference to the test(s) for wrongfulness
and a possible defence that X might want to raise. (10)
4.2 Now assume that X had indeed acted wrongfully. Was X negligent? Discuss with
reference to the test for negligence and a possible defence that X might want to
raise. (10)
QUESTION 5
5.1 When is a child accountable? Discuss. (5)
5.2 How is the negligence of a child wrongdoer determined? Discuss. (10)
QUESTION 6
X gives Y a lift in her car. Whilst driving, X talks continuously on her cell-phone, and also
touches up her make-up. She collides with a tree. Y, who had not fastened her seat-belt, is
injured in the accident. She is hospitalised and incurs hospital costs of R10 000. It transpires
that if Y had fastened her seat-belt, her hospital costs would have totalled R6 000. Y institutes a
damages claim of R10 000 against X. X approaches you for legal advice. Advise X, referring to
applicable legislation and case law. (Assume for the purpose of your answer that the provisions
of the Road Accident Fund are not applicable to this set of facts.) (10)
QUESTION 7
7.1 “X’s conduct is a condition without which Y’s damage would never have arisen.”
Discuss this statement critically. (5)
7.2 What is the criterion to determine legal causation? Discuss. (10)
10

PVL3703/201
QUESTION 8
8.1 Define private defence. (2)
8.2 Define intent. (2)
8.3 Define damage. (2)
8.4 What is meant by the “once-and-for-all” rule? (2)
8.5 What is meant by the “sum-formula approach”? Explain briefly. (2)
QUESTION 9
9.1 Name four specific forms of damnum iniuria datum. (2)
9.2 How do the courts determine whether defamatory statements are wrongful? Discuss. (4)
9.3 Name the requirements for the actio de pauperie. (4)
We trust that you find your study of this module interesting and stimulating, and we wish you
every success with your final preparation for the examination.
MRS R AHMED Telephone number: 012 429-8321

PROF M MOKOTONG 012 429-8424
PROF JC KNOBEL 012 429-8352
UNISA
/hs
11

PVL3703/201/2/2015

Law of Delict
PVL3703
Semester 2

about your module.
Bar code

CONTENTS
1 AMENDMENTS TO STUDY MATERIAL ................................................................................ 3

2 COMMENTARY ON ASSIGNMENTS ..................................................................................... 4
3 EXAMINATION AND ADMISSION TO THE EXAMINATION ................................................. 9
4 PREPARATION FOR EXAMINATION .................................................................................. 10

PVL3703/201
Dear Student
1 AMENDMENTS TO STUDY MATERIAL
The references in your study guide refer to the previous edition of Neethling and Potgieter
Neethling-Potgieter-Visser Law of Delict (2010). For this reason, some references are outdated.
You should usually find your way through the current edition of the textbook (Neethling and
Potgieter 2015) fairly easily. To assist you, we supply a list of the changes to the “Study”
sections of the affected study units in your study guide. We do not list references that remain
unchanged in the study guide. Furthermore we list only the new references; not the old
ones that need to be replaced, in the following list:
Study unit 2: footnotes 12, 14, 24
Study unit 5: footnotes 58, 83
Study unit 8: footnotes 160, 161, 162, 163, 214 and Feedback (5): See paragraph 5.2. Pay
special attention to paragraph 5.2.1 and footnote 214.
Study unit 10: footnotes 455, 461, 477, 480, 481 and Feedback (7): See paragraph 7.3 and
keep in mind paragraph 5.2.4 and footnote 214; Feedback (8): See paragraph 7.3.2;
Feedback (9): See paragraph 7.3.2(c).
Study unit 11: footnotes 498, 502, 506, 510, 521
Study unit 12: footnotes 540, 558, 568, 569, 575, 578
Study unit 13: footnote 620
Study unit 14: chapter 3 paragraph 8.1 and 8.2; footnotes 667, 677, 678
Study unit 16: footnotes 108, 110, 134 and note changes in paragraph 2 of the textbook in
respect of the age of accountability of children. Due to the Child Justice Act 75 of 2008, our
law now distinguishes between three age groups, namely 0-9 (an infans, lacking capacity),
10-13 and 14-18 years. Prior to the Act the age for an infans was 0-7 years.

Study unit 18: chapter 4 paragraph 4.7; footnotes 172, 176, 177, 188

Study unit 20: chapter 3 footnote 540; chapter 4 footnotes 319, 321 and Feedback (6): See
chapter 3 paragraph 7.5.1 and chapter 4 paragraph 5.4.2 and footnote 321. The question
is answered specifically in footnote 321.
Study unit 22: footnotes 94, 95, 97, 112
Study unit 28: footnote105
Study unit 29: pages 305 – 307
Study unit 30: Feedback (4): You may consult paragraph 3.2.2.2 (a) to (h).
2 COMMENTARY ON ASSIGNMENTS
2.1 GENERAL
alternatives for the different questions in the assignment. Please bear in mind that you did not
do the assignments under examination conditions. Therefore, do not assume that the
marks that you received for the assignments are necessarily indicative of the kind of
marks you are likely to obtain in the examination. Good examination marks will result
from a thorough study of your prescribed material and judicious answering of your
question paper.

PVL3703/201
COMMENTARY
ANSWER
Question
While Anne was visiting her mother, Bernice, for a couple of days, she noticed that Clint was
loitering in the neighbourhood. Clint’s conduct looked suspicious, and Anne and Bernice learnt
that Clint had been released on bail after being charged for serious crimes. Fearing for their
safety, Anne and Bernice requested the police and the local prosecutor to have Clint kept in
custody. Neither the police nor the prosecutor complied with these requests. Shortly thereafter
Clint seriously assaulted Anne. Anne now wishes to hold the police and the prosecutor
delictually liable. Was the conduct of the police and the prosecutor wrongful? Discuss in detail
and refer to applicable case law in your answer.
See Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict Chapter 4 paragraphs 3

and 5 especially paragraph 5.2.4 and footnote 214.
This question deals with the wrongfulness of an omission. [1]
The general criterion to be employed in determining whether an infringement of interests is

unlawful is the legal convictions of the community, or the boni mores. [1] The boni mores test is
an objective test based on the criterion of reasonableness. [1] The boni mores is decided by the
legal policy makers of the community such as the legislator and the judges. [1] In Carmichele v
Minister of Safety and Security 2001 4 SA 938 (CC), the Constitutional Court made it clear that
the boni mores must now be informed by the values underpinning the Bill of Rights in the
Constitution. [1] Two more practical applications of the boni mores test is to ask whether a
subjective right was infringed [1] or whether a legal duty was breached. [1] Universiteit van
Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T). [1]
The basic question to determine whether an omission is wrongful is whether a legal duty to act
was present and was breached. [1] This is determined with reference to the legal convictions of
the community, or the boni mores. [1] Factors such as prior conduct (omissio per
commissionem); [1] control of a dangerous object; [1] rules of law; [1] special relationship
between the parties; [1] particular office; [1] contractual undertaking for the safety of a third
party; [1] and creation of an impression that the interests of a third person will be protected [1]
may serve as indications that a legal duty rested on the wrongdoer. According to Carmichele v
Minister of Safety and Security, when determining whether a legal duty to act rested on the
police (and by extension the prosecutor), the interests and fundamental rights of the parties and
the conflicting interests of the community must be weighed. [1] An interplay of different factors
may also indicate the presence of a legal duty. [1] In the Carmichele saga, the Constitutional

duty on the State to protect women and children against violence also gave rise to a legal duty
for the purpose of delictual wrongfulness. [1]
The supplied facts in the question are similar to those in the Carmichele judgements, and based
on the conclusion of the Carmichele saga after several appeals, including to the Constitutional
Court, and applying the abovementioned principles, it would be safe to conclude that both the
police and the prosecutor had a legal duty to prevent the harm caused to Anne. [1]
[Maximum marks: (10). In an examination, this question could count 15 marks.]
COMMENTARY
ANSWERS
Question 1
rely?
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 2

(1)

6

PVL3703/201
Question 3
4. Luxuria.
(1)
Question 4
(1)
Question 5
(1)

Question 6
(1)
Question 7
(1)
Question 8
2. provocation.
(1)

PVL3703/201
Question 9
will incur:
(1)
Question 10
4. S v Goliath 1972 3 SA 1 (A).
(1)

TOTAL MARKS: [10]
3.1 EXAMINATION


admission.
this module.
(2) the study guide
QUESTION 1
and delict. (5)
10

PVL3703/201
QUESTION 2
QUESTION 3
QUESTION 4
4.1 Was X’s conduct wrongful? Discuss with reference to the test(s) for wrongfulness and
a possible defence that X might want to raise. (10)
reference to the test for negligence and a possible defence that X might want to raise.(10)
QUESTION 5
QUESTION 6
11

QUESTION 7
QUESTION 8
QUESTION 9
PROF JC KNOBEL Telephone number: 012 429-8352

MRS R MAHOMED 012 429-8321
MR P MONYAMANE 012 429-8424
12

PVL3703/201/2/2016

Law of Delict
PVL3703
Semester 2

about your module.
Bar code

CONTENTS
1 AMENDMENTS TO STUDY MATERIAL.............................................................................................3
2 DISCUSSION OF ASSIGNMENTS .....................................................................................................4
3 EXAMINATION AND ADMISSION TO THE EXAMINATION ..............................................................9
4 PREPARATION FOR EXAMINATION .............................................................................................. 10

PVL3703/201
Dear Student


2.1 GENERAL
question paper.
COMMENTARY
Question
Silma is late for a meeting and rushes off. She knocks over a ladder on which Cassim, a
plumber, was standing. Cassim falls and breaks his right hand. His hand is set in plaster and
the hospital issues him with an arm sling. At home he drops a cold drink on the floor as he
cannot use his hand properly and as a result he slips and falls, breaking his right leg. Is there a
legal causal link between Silma’s conduct and Cassim’s broken leg? Discuss in detail, and refer
to relevant case law. (Please note that the question was incorrectly formulated in the first tutorial
letter, but we took this into account when marking and made sure that no student was
prejudiced.)

PVL3703/201
ANSWER
The test for legal causation is the flexible approach [1] as formulated in the Mokgethi [1] and
Bentley cases. [1] According to this approach the main question is whether the link between the
act/conduct and the result/consequence/harm/prejudice is close enough, when judged in view of
policy considerations/factors [1] of reasonableness, [1] fairness, [1] and justice [1] for the
harmful result/consequence/harm/prejudice to be imputed to the defendant/alleged wrongdoer.
[1] Phrased differently, legal causation deals with the question whether the damage was too
remote. [1] The other legal causation theories may be used as subsidiary aids [1] for instance
adequate causation, [1] direct consequences, [1] foreseeability, [1] and novus actus
interveniens. [1] In Mokgethi a bank robber shot a teller. The teller was rendered a paraplegic
and was discharged from hospital in a wheelchair. The paraplegic omitted to change his body
position in the chair frequently, developed pressure sores and eventually died from
complications. [maximum 2 marks for the facts] The question arose whether the shot fired by
the robber was the legal cause of the teller’s death. Applying the flexible test, the court held that
there was no legal causation in casu. [1] If the flexible test is applied to the facts in our question,
the conclusion is probably that the broken leg was too remote and should not be imputed to the
wrongdoer. [1] One can also argue that a novus actus interveniens was constituted by the
dropping of the cold drink on the floor and Cassim’s subsequent slipping and second fall. [1] A
novus actus interveniens is an independent event that caused or contributed to the harmful
consequence after the wrongdoer’s act had been completed. [1] Cases with similar facts, which
illustrate how a novus actus interveniens can eliminate legal causation, are the Alston [1] and
Mafesa [1] cases (see Neethling and Potgieter 198 fn 97). The presence of a novus actus
interveniens in our question strengthens the conclusion that there is no legal causal link
between the conduct of Silma and Cassim’s broken leg. [1]
[See Neethling and Potgieter 197-206 214-220 Maximum marks: (10). In an examination,
this question could count 15 marks.]
COMMENTARY
Question 1
the most correct?
iniuriarum.

(1)

Question 2
this, Musti suffers a serious financial setback. However, there is no damage to Musti’s person
or property. Which one of the following delictual remedies may be available if Musti wishes to
(1)
Question 3
delict.

automatism.
(1)
Question 4
Harry’s prize bull breaks through a fence and ventures onto Mark’s farm. The bull is
aggressive and charges at Mark’s employees. The employees clamber into a small tree to
escape the wrath of the bull. The bull begins to bash the trunk of the tree. As the tree
appears to be about to topple, Mark shoots and kills the bull to save his employees. Harry
institutes an action for damages against Mark. Mark may raise the following ground of
justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
6

PVL3703/201
Question 5
(1)
Question 6
Mike’s cow eats and tramples George’s crops. Mike forgot t o close the gate between his
and George’s land. Which remedy or remedies may be available to George?

(1)
Question 7
2. Actio de pastu.
3. Actio de feris.
(1)

Question 8
2. provocation.

(1)
Question 9
they will incur:
(1)
Question 10
4. S v Goliath 1972 3 SA 1 (A).

(1)

TOTAL MARKS: [10]

PVL3703/201
3.1 EXAMINATION
admission.
this module.
(2) the study guide

QUESTION 1
and delict. (5)
QUESTION 2
QUESTION 3
QUESTION 4
10

PVL3703/201
reference to the test for negligence and a possible defence that X might want to raise.
(10)
QUESTION 5
QUESTION 6
QUESTION 7
QUESTION 8
QUESTION 9
MR TA MANTHWA 012 429 6150
MR PL MONYAMANE 012 429-8424
11

PVL3703/201/1/2016

Law of Delict
PVL3703
Semester 1

about your module.
Bar code

CONTENTS
1 AMENDMENTS TO STUDY MATERIAL ................................................................................... 3

4 PREPARATION FOR EXAMINATION .................................................................................. 10

PVL3703/201
Dear Student


2.1 GENERAL
question paper.
COMMENTARY
ANSWER
Question
Malcolm is employed as a greengrocer at a local supermarket. Julia is responsible for
chopping up various vegetables in the fruit and vegetable section, of the supermarket, to
prepare the convenient ready-to-cook vegetable parcels. Julia chops up some butternut
squash and a few pieces land on the floor. Posh, a housewife shopping for convenient foods in
the fresh produce section, slips on the pieces of butternut squash and falls, breaking her right
leg. Posh wishes to institute a delictual action. Discuss whether Malcolm has fault is respect of
Posh’s injuries. Refer to both forms of fault in your answer and cite relevant case law.

PVL3703/201
See Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict Chapter 4 page 129 – 154
especially footnote 165.
There are two forms of fault namely intent and negligence. [1] Fault refers to the blameworthy
attitude or conduct of someone who has acted wrongfully for the purposes of the law of delict.
[1]
An accountable person acts intentionally if his/her will is directed at a result which he/she
causes [1] while conscious of the wrongfulness of his/her conduct. [1] In the given scenario
Malcolm did not direct his will to cause harm to Posh and he was clearly not conscious of the
wrongfulness of his conduct, therefore he lacked intention. [1]
In the case of negligence, a person is blamed for an attitude or conduct of carelessness,
thoughtlessness or imprudence because by giving insufficient attention to his/her actions,
he/she failed to adhere to the standard of care legally required of him/her. [1] The test for
negligence was formulated authoritatively in Kruger v Coetzee. [1] The court will put the
reasonable person (also known as bonus paterfamilias or diligens paterfamilias) [1] in the
position of the alleged wrongdoer / defendant [1] and ask/ determine whether the reasonable
person would have foreseen [1] harm [1] and prevented it [1] and the conduct of the alleged
wrongdoer/ defendant deviated from this. [1]
Whether Malcolm would have been negligent, would therefore turn on whether a reasonable
person in his position would have foreseen and prevented the damage. Malcolm did not
personally process the vegetables (Julia did that), but as he was the greengrocer his
responsibilities may well have placed him in a position from which the harm was foreseeable
and preventable. [1] This would ultimately depend on the facts of the case. [1] For instance, in
Gordon v Da Mata 1969 3 SA 285 (A) [1] the plaintiff slipped on a cabbage leaf on the floor of
the defendant’s greengrocery. The cabbage leaf had fallen on the floor while the defendant’s
assistant was slashing off cabbage leaves. The court held that a reasonable person would have
taken preventative steps by collecting leaves in a receptacle. This would not have required
much trouble or high cost as the leaves had been falling in a defined, relatively small area. [1] In
City of Salisbury v King 1970 2 SA 528 (RA), [1] on the other hand, a customer slipped on some
vegetable matter in a large market area. Failure immediately to remove the vegetable matter in
that large area was not negligent. [1]
[Maximum marks: (10). In an examination, this question could count 15 marks.]
COMMENTARY
ANSWERS

Question 1
liable.

(1)
Question 2
1. Necessity.
3. Private defence.
4. Provocation.
(1)
Question 3
1. Provocation.
3. Private defence.

PVL3703/201
Question 4
have to damage Zayn’s car in order to get the laptop. In respect of the damage to the
car, Neil has:
4. Luxuria.
(1)
Question 5
Andre is employed by Ricky as a driver in Ricky’s courier business. Andre has the
weekend off, and decides to visit Tebogo on Saturday evening. On his way to Tebogo’s
apartment, Andre is involved in an accident due to his own negligence. Andre’s vehicle
and the vehicle of Sylvia, the other motorist involved in the accident, are badly damaged.
Sylvia discovers that Andre’s financial position is not good. Advise Sylvia on the best
course of action:

(1)

Question 6
would not happen.
(1)
Question 7
3. Luxuria.
4. Gross negligence
(1)
Question 8
4. S v Goliath 1972 3 SA 1 (A).

(1)

PVL3703/201
Question 9
capax.
(1)
Question 10

(1)

TOTAL MARKS: [10]
3.1 EXAMINATION

admission.
this module.
(2) the study guide
10

PVL3703/201
QUESTION 1
and delict. (5)
QUESTION 2
injuries the doctors determine that he suffered an epileptic fit at the time of the accident. The
car of Y, the other person involved in the accident, is badly damaged. Can it be said that it
was an act on the part of X that damaged Y’s car? Will it make a difference to your answer if
X had been receiving treatment for epilepsy before the accident, but had failed to take his
medicine for several days before the accident took place? Discuss. (10)
QUESTION 3
In a certain town, the paved sidewalks are in a poor condition due to erosion. Several holes
and furrows have developed in the sidewalks. The municipality neglects to repair the
sidewalks, despite requests to this effect by several of the residents. One day Mrs M, an aged
resident, inadvertently steps into a hole in a sidewalk, falls, and suffers serious injuries for
which she is hospitalised for a month. Mrs M wishes to recover damages from the municipality
in a delictual action. Discuss only whether the conduct of the municipality was wrongful. Refer
in your answer to relevant case law. (10)
QUESTION 4
X stops at a busy filling station to fill up with petrol. While waiting for a pump attendant, he
sees another person driving off and throwing a cigarette butt out through the car window. An
petrol pumps. X realises that the cigarette butt has ignited some petrol that has been spilt
there. Having a quick look around, X sees a hosepipe which is usually used to wash cars. He
opens the tap widely and sprays water on the fire. However, the water does not extinguish the
fire. Rather, the burning petrol starts to float on top of the water, and is driven by the force of
the water stream from the hosepipe to a position under a car belonging to Y, another
customer at the filling station. Y’s car catches fire, and by the time the pump attendants have
managed to extinguish the fire with foam fire extinguishers, the car is badly damaged. Y
wants to recover the damage to his car from X. Answer questions 4.1 and 4.2 in respect of
this set of facts.
raise. (10)
11

QUESTION 5
QUESTION 6
that if Y had fastened her seat-belt, her hospital costs would have totalled R6 000. Y institutes
a damages claim of R10 000 against X. X approaches you for legal advice. Advise X,
referring to applicable legislation and case law. (Assume for the purpose of your answer that
the provisions of the Road Accident Fund are not applicable to this set of facts.) (10)
QUESTION 7
QUESTION 8
QUESTION 9
12

May/June 2020
PVL3703
Law of Delict
100 Marks
2 Hours
This paper consists of 17 pages.
INSTRUCTIONS FOR A FULL MCQ EXAM WITH ASSESSMENT INFO TOOL ON MYUNISA
1. The examination consists of Multiple-Choice Question types only.
2. The examination question paper counts 100 marks and consists of 50 Multiple-Choice Questions
each worth 2 marks. Answer all of the questions.
3. The duration of the examination is 2 hours. You will be allowed a further thirty (30) minutes after
the conclusion of the official examination period to upload your examination responses (answers)
onto the myUnisa platform for further processing.
4. This is a closed-book examination. While the examination is in progress, you are not allowed to
consult another person or any source in order to assist you to answer any of the questions contained
in this question paper. You may also not assist another student in answering any of the questions
contained in this question paper.
5. The answers to this MCQ examination may only be submitted online on myUnisa. The Unisa MCQ
App cannot be used for examination submissions.
5.1 Access myUnisa at https://my.unisa.ac.za/portal and login using your student number and myUnisa
password.
5.2 Click on the “myAdmin” tab in the top navigation
5.3 In the “Assessments” submenu, click on the “Assessment Info” tool in the drop-down list
 A list of all available assessments will display
 Find the corresponding examination assessment number for your module
 Click on the Submit link in the Action column and follow the steps described below.
Step 1: Enter the total number of questions required for the assessment.
 Enter the total number of questions for your assessment in the Number of Questions field
 Click on the Continue button.

CONFIDENTIAL
Page 2 of 17
PVL3703
May/June 2020
Step 2: Fill out multiple-choice question answers
The number of questions requested in the previous step will now be displayed with five answer
options next to each one. Please note that each row represents a question in your assignment.
 Click on the radio button [the small circle] that corresponds to your answer for that question.
 Click on the Continue button to move to step 3.
 If you want to restart the assignment, click on Clear Form to remove all your selections and
start from new.
Step 3: Verify the answers to your multiple-choice assignment

This screen presents a summary of all your answers. Use it as a final check.
 Click on the Continue button to submit your assignment. If you do not click Continue, no
submission action will take place.
 If you want to redo the answers to the assignment, click Back to go back to the previous
step.
Step 4: Assessment submission report

This is your proof that your examination answers were successfully submitted. If you do not
see this screen, Unisa has not received your submission.
It is advisable to print this page or make a screen capture for record purposes. A copy of this page
will also be emailed to your myLife email account.
PLEASE NOTE:
If you experience technical problems, of any kind, on the day of the examination and your examination answers
are not submitted by the cut-off time, you will be marked as absent and automatically deferred to the
October/November 2020 examination. No other type of submission of your examination answers will be
accepted.
Instructions:
 Answer all the questions.

 Choose the correct/most suitable option for each question.
 Choose only one answer for each question.
[TURN OVER]

CONFIDENTIAL
Page 3 of 17
PVL3703
May/June 2020
(2)
(2)
[TURN OVER]

CONFIDENTIAL
Page 4 of 17
PVL3703
May/June 2020
(2)
(2)
appropriate one.
(2)
(2)
[TURN OVER]

CONFIDENTIAL
Page 5 of 17
PVL3703
May/June 2020
with:
(2)
[TURN OVER]

CONFIDENTIAL
Page 7 of 17
PVL3703
May/June 2020
(2)
2. Ria’s broken nose, concussion and the hospital costs incurred in respect of
pneumonia.
(2)
(2)
be?
(2)
[TURN OVER]

CONFIDENTIAL
Page 8 of 17
PVL3703
May/June 2020

applies.
3. Thumi cannot rely on automatism because he negligently placed himself in a
situation where his movements were mechanical.
(2)
1. Necessity.
2. Private defence.
3. Provocation.
(2)
1. Necessity.
2. Private defence.
3. Provocation.
(2)
[TURN OVER]

CONFIDENTIAL
Page 9 of 17
PVL3703
May/June 2020
1. Necessity.
2. Private defence.
3. Provocation.
(2)
1. Privilege.
3. Consent.
(2)
to swerve from side to side, clearly with the object of dislodging Y who is clinging
on for dear life. Six kilometres further, X succeeds in dislodging Y. Y suffers injuries
and institutes a delictual claim against X.

(2)
[TURN OVER]

CONFIDENTIAL
Page 10 of 17
PVL3703
May/June 2020
as you find him”?

(2)
(2)
Owen?

3.The actio de pastu only.
4.The actio de pastu and actio legis Aquiliae.
(2)

(2)
[TURN OVER]

CONFIDENTIAL
Page 11 of 17
PVL3703
May/June 2020
1. Private defence.
2. Necessity.
3. Provocation.
(2)
of:
(2)
(2)
[TURN OVER]

CONFIDENTIAL
Page 12 of 17
PVL3703
May/June 2020
alios acta.
3. Matthew will succeed, because a legal causal link exists between the conduct of
Mike’s Mechanics and the amount that Matthew had to pay to Richard’s Rentals.
(2)

of damages.
damages only if such failure contributed to the passenger’s injuries.
of damages.
(2)
determined:
1. According to a reasonable person standard, but the youthfulness of the child is
considered when determining accountability.
(2)
[TURN OVER]

CONFIDENTIAL
Page 13 of 17
PVL3703
May/June 2020

1. A legal causal link between an act and a consequence is determined by mentally
eliminating the act and inquiring whether the consequence will then also
disappear.
(2)

2. The notional reasonable person can make an error of judgment in a situation of
sudden emergency.
emergency.
(2)


(2)
1. The defendant.
2. The plaintiff.
(2)
[TURN OVER]

CONFIDENTIAL
Page 14 of 17
PVL3703
May/June 2020
1. Privilege.
3. Fair comment.
4. Jest.
(2)
defamation:
defendant.
defendant.
(2)
(2)

(2)

577 (A).
(2)
[TURN OVER]

CONFIDENTIAL
Page 15 of 17
PVL3703
May/June 2020

577 (A).
(2)

577 (A).
(2)
1. S v Goliath 1972 3 SA 1 (A).

(2)
1. S v Goliath 1972 3 SA 1 (A).

(2)
[TURN OVER]

CONFIDENTIAL
Page 16 of 17
PVL3703
May/June 2020
1. S v Goliath 1972 3 SA 1 (A).

(2)
1. S v Goliath 1972 3 SA 1 (A).

(2)

4. S v Mokgethi 1990 1 SA 32 (A).
(2)
of children?

4. S v Mokgethi 1990 1 SA 32 (A).
(2)
[TURN OVER]

CONFIDENTIAL
Page 17 of 17
PVL3703
May/June 2020

4. S v Mokgethi 1990 1 SA 32 (A).
(2)

4. S v Mokgethi 1990 1 SA 32 (A).
(2)
[100]
Unisa
© 2020
[TURN OVER]

66
and contributory intent or voluntary assumption of risk (which cancels fault). In this
case, O was suspected of infidelity by his wife. She hired a private detective, V, to
spy on her husband. V followed O in his care to a lonely spot in the veld. O had a
woman with him in his car. When V approached O’s car, O started to drive off. V leapt
onto the bonnet in order to obscure O’s view and to make him stop. O accelerated,
however, and began to swerve from side to side, clearly with the object of dislodging
V, who was clinging on for dear life. Six kilometres further, O succeeded in dislodging
V. V sustained injuries and claimed compensation from the insurer of O’s motorcar. In
the court a quo, Boshoff J found that O was 50% negligent and V 50% negligent. V,
therefore, only obtained half his damages.
On appeal it was held that O had acted with intent and not only negligently. The court
rejected O’s defence that V had consented (as a ground of justification) to the risk of
injury. The court then considered O’s defence that V had contributory intent.
Referring to this defence, Van Blerk JA declared: “No authority from our case law was
cited for the statement that contributory intent is an independent defence, nor was
reference made to any of the authoritative sources of our law recognising it”. The
Appellate Division was therefore not prepared in principle to acknowledge such a
defence.
X negligently sets a house alight. Y runs into the burning house to save his jacket
and is injured in the flames. Y institutes a claim against X on the ground of his
personal injuries. What defences can X raise against the claim? Discuss briefly
The test for negligence is the reasonable foreseeability and the reasonable
preventability of damage.
X is not liable for Y’s injuries, because they were not reasonably foreseeable: it is
clearly not reasonably foreseeable that another person would expose himself to the
risk of either serious injury or loss of life just to recover a jacket.
X could not raise the defence of contributory intent because Y’s action was not
directed towards an unlawful goal.
What is the importance of Greater Johannesburg Transitional Council v ABSA

Bank t/a Volkskas Bank in respect of contributory intent? Discuss briefly
In cases where a plaintiff intentionally contributed towards his own loss while the
defendant was merely negligent, the plaintiff forfeits his claim. In cases where the
defendant caused his own loss intentionally and the plaintiff’s unreasonable conduct
was also intentional, the wording and historical background of the Apportionment of
Damages Act would make it appear that the legislature intended to make provision
only for the defence of contributory negligence in terms of it. The Appellate Division
has on occasion expressed doubt about whether a defence of contributory intent may
be raised in terms of the Act. However, in the Greater Johannesburg case, it was
held that a defence of contributory intention could succeed where both the plaintiff
and the defendant acted with intention.

www.thelawlecturer.co.za
info@thelawlecturer.co.za
072 420 7438
Law of Delict
MCQs
2020
These notes are compiled as handouts for the use of registered TLL students. They
are not for sale and may not be copied or distributed or made available to any other
person(s).
TLL is not associated with UNISA in any manner and provides private tuition for
UNISA LL.B students.

Contents
ASSIGNMENT 2018 SEMESTER 1 ...................................................................................... 1

MULTIPLE CHOICE JUNE 2017 ........................................................................................ 11
MULTIPLE CHOICE OCTOBER 2017 ................................................................................ 14

ASSIGNMENT 2018 SEMESTER 1
Question 1
Question 2
Fatima’s two year old daughter falls down a flight of stairs. Fatima believes that
the child has sustained a brain injury and rushes her to the hospital. On the way
to the hospital Fatima drives over the neighbour’s dog which subsequently dies.
The neighbour institutes a delictual claim against Fatima. It later transpires that
Fatima’s daughter merely suffered from mild shock. Which one of the following
defences may Fatima rely on?
1. Provocation
2. Private defence
3. Necessity
Question 3
Harry punches David in the face in an attempt to stop David from hitting him
with a spade. David decides to institute a delictual action against Harry for the
injury sustained to his face. Which defence could Harry rely on?
1. Provocation.
2. Private defence.
3. Necessity.
Question 4
Choose the correct alternative. Dolus eventualis is present when the
wrongdoer…
1. desires a particular indirect result with regard to his conduct and continues
with his plan causing the indirect result.
2. does not desire a particular result but foresees the possibility of the result
and reconciles himself with that possibility nevertheless performing the act.
© 1

3. directly intends the result of his conduct but simultaneously is aware that
another consequence will unfortunately occur.
reconciles himself with that possibility and later comes to the conclusion that
the result would not happen.
Question 5
2. There is an irrebuttable presumption that a child between the age of nine and
4. A person who drinks and drives thereafter causing an accident can never be
culpae capax.
Question 6
1. The defendant must be the owner of the animal at the time the damage
occurs.
Question 7
Indicate the correct statement with regard to the concurrence of delictual,
criminal and contractual liability.
Question 8
Veronica’s donkey attacks some of the employees on the farm. Just as the
donkey was about to injure Charles (an employee), he shot and killed it with his
rifle. Veronica institutes an action for damages against Charles. Charles may
raise the following ground of justification:
1. Necessity.
© 2

2. Private defence.
3. Provocation.
Question 9
Jacob insults Lefa, Julie’s friend. Julie, who is angered by the insults, then
insults Jacob. If Jacob institutes a delictual action for the infringement of his
personality rights, Julie may rely on the following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
Question 10
Allan, an employee of Calvin, was en route to Rustenburg delivering bread
when he accidentally skipped a red robot and crashed into Mandla’s car. If
Mandla successfully sues Calvin (as the employer) for the damage to his car,
Calvin will incur:
4. Risk liability.
Question 1
Roy incites his pedigreed, but vicious, dog to attack Jack. Jack panics and
shoots the dog. If Roy institutes a delictual claim against Jack to recover the
cost of the dog, which defence may Jack rely on?
1. Provocation.
2. Private defence.
3. Necessity.
Question 2
Titus places a home-made bomb in a field where cattle are grazing. The bomb
explodes damaging crops and injuring the cattle. Which one of the following
forms of fault did Titus have in respect of the damage?
© 3

3. Luxuria.
4. Gross negligence.
Question 3
Which one of the following benefits is taken into account in reducing the amount
of damages awarded to a plaintiff?
1. Benefits received in terms of life assurance.
2. Insurance money received.
3. Donations or ex gratia benefits.
4. An award from the Compensation Commissioner.
Question 4
3. There must be a “clear right”.
Question 5
1. The actio iniuriarum is directed at “satisfaction” for the wrongful and
intentional injury to personality.
3. South African law follows the casuistic approach with regard to delictual
liability.
4. “Invasion of privacy” in practice is considered as a form of damnum iniuria
datum.
Question 6
Indicate the incorrect statement with regard to the law of delict and the
constitution.
© 4

3. Both a constitutional remedy and a delictual remedy are aimed primarily at

compensation.
4. Direct application means that the state must generally respect fundamental
rights and not infringe them.
Question 7
Rocky insults Tammy who in retaliation slaps Rocky across the cheek. If Rocky
institutes a delictual action for the infringement of his personality rights, Tammy
may rely on the following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
Question 8
Brendon purchases a ticket to a boat ride. The ticket clearly states that the
management of the amusement park will not be held liable for any negligence
on its part. As the ride comes to a stop, the boat jerks due to a mechanical fault
and Brendon bumps his head against the seat rendering him unconscious.
When Brendon awakens, he decides to institute an action for damages against
the management of the amusement park. In order to exclude or limit liability,
the management may rely on:
1. Consent to the risk of injury.
Question 9
Kabelo plays tennis in his back yard. He foresees the possibility of his ball
breaking a window in his neighbour’s house, but decides that it will not happen.
If the ball indeed breaks the window, Kabelo had the following in respect of the
damage:
4. luxuria.
© 5

Question 10
Willy’s bull tramples and eats Charlotte’s maize that she planted in her fields.
Which remedy may be available to Charlotte?
2. Actio de pastu.
3. Actio de effusis vel deiectis.
4. Actio de feris.
Question 1
1. Provocation.
2. Self-defence.
3. Necessity.
4. Hypnosis.
Question 2
Choose the correct statement. In Carmichele v Minister of Safety and Security
(Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) the
Constitutional Court:
2. noted that the law of delict admirably reflected the spirit, purport and object
of the Bill of Rights.
3. declared that the courts of lower instance had erred by applying a pre-
constitutional concept of the boni mores.
Question 3
Janice threatens Queeneth with a gun and orders her to hand over her
cellphone. Queeneth, in fear of her life, hands over the cellphone. One week
later, Queeneth spots Janice at a nearby shopping centre. Queeneth rushes
home and grabs a knife. She returns to the shopping centre and stabs Janice.
Janice wants to institute a delictual action against Queeneth. Queeneth may
1. necessity.
2. provocation.
3. private defence.
© 6


Question 4
Sibusiso is away on holiday. Frank, his neighbour, is keeping a watchful eye on
his house for him. Frank notices that the house is flooded with water and
realises that a water pipe in the house has burst. Frank breaks down the front
door of Sibusiso’s house in order to turn off the water to prevent further damage.
If Sibusiso wants to institute a delictual action against Frank for breaking down
his front door, Frank may rely on the following ground of justification:
2. necessity.
3. provocation.
4. private defence.
Question 5
Joseph plays tennis in his back yard. He foresees the possibility of his ball
If the ball indeed breaks the window, Joseph had the following in respect of the
damage:
4. luxuria.
Question 6
Dr Lucas, a well-known obstetrician, delivered Nicole’s daughter, Mandy.
During delivery, the nerves in Mandy’s right shoulder were injured resulting in
the paralysis of her arm. All of this happened because Dr Lucas failed to inform
Nicole of the potential complications inherent in delivering a large baby. Indicate
the most correct statement: Negligence will be determined according to the
standard of:
4. the reasonable child
Question 7
© 7

3. Emotional shock.
Question 8
Question 9
In which one of the following situations can it be said that publication of
defamatory words has taken place?
1. Two German tourists visit South Africa. They start arguing in German in front
of some South Africans (who do not understand German) and the one tourist
calls the other a liar and an adulterer.
2. Mr Xolani tells his wife, Mrs Xolani, that Vanessa at his office is having an
affair with her secretary.
3. Mrs Brown tells her husband, Mr Brown, that Theresa, a work colleague of
Mrs Brown, has stolen money from the cash register on numerous occasions.
4. Bob meets Joseph at the local post office and tells Joseph that the manager
of the post office, Mrs Posh, is involved in an adulterous affair with Joseph’s
neighbour Henry.
Question 10
John and Peter bear a grudge against Greg and agree to teach him a lesson
he will not forget. While Greg is in a shopping centre, John and Peter damage
Greg’s motor car by hitting it with hammers. If Greg successfully sues John and
Peter in delict, they will incur:
© 8

Question 1
John takes David’s big and rather aggressive dog for a walk. John incites the
dog to attack Garth. The dog charges at Garth, but Garth shoots the dog and
kills it. If David institutes a delictual action against Garth, on what ground of
justification may Garth rely?
1. Necessity.
2. Private defence.
3. Provocation.
Question 2
Markus, a financial adviser, negligently advises Hans to make a bad
investment. As a result of this, Hans suffers a serious financial setback.
However, there is no damage to Hans’s person or property. Which one of the
following delictual remedies may be available if Hans wishes to recover his
financial loss from Markus?
Question 3
television set, he smashes a window made from expensive security glass. In
respect of the damage to the window, Shaun has:
4. Luxuria.
Question 4
Clive is employed by Raymond as a driver in Raymond’s courier business. Clive
has the weekend off, and decides to visit Mary on Saturday evening. On his
way to Mary’s apartment, Clive is involved in an accident due to his own
negligence. Clive’s vehicle and the vehicle of Catherine, the other motorist
involved in the accident, are badly damaged. Catherine discovers that Clive’s
financial position is not good. Advise Catherine on the best course of action:
© 9


Question 5
Question 6
Mike’s cow eats and tramples George’s crops. Mike forgot to close the gate
between his and George’s land. Which remedy or remedies may be available
to George?
Question 7
Norman enters into a sexual relationship with Lex’s wife. Which remedy or
remedies may be available to Lex?
Question 8
Jors allows Maans to fire some practice shots with his new pistol at an apple
on Jors’s head. The second shot makes a hole in Jors’s left ear. Jors institutes
a delictual action against Maans. Maans may rely on following defence:
2. provocation.
© 10


Question 9
Question 10
According to the following case liability of the media for defamation is based on
negligence:
MULTIPLE CHOICE JUNE 2017
© 11

PVL3703/201
Dear Student
1.1 GENERAL
question paper.
COMMENTARY
DUE DATE: 15 MARCH 2017
ANSWER
Question
Read the judgment in Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528
(CC) and write a discussion of 500-1000 words summarising the facts of the case very briefly
and then summarising what the court decided in respect of the wrongfulness element only in
that case. You can find the judgment in conventional law libraries or online at the website of
the Southern African Legal Information Institute (SAFLII) at www.saflii.org or you can access it
in the UNISA e-reserves for this module. For an example of how a judgment should be
summarised, refer to the discussion of the judgment of the Constitutional Court in Carmichele
v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA
938 (CC) in Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict page 67
footnote 214. Total for assignment 01: [10]

PVL3703/201
Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)
Facts of the case
In Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC) the applicant had
boarded a train operated by the respondent, the Passenger Rail Agency of South Africa (PRASA).
The train set off with the doors of the compartment open. Two minutes into the journey, the
applicant was approached by three unarmed men who entered the compartment from another
adjoining coach. The assailants robbed and beat the applicant and threw him out of the moving
train. The applicant sustained serious injuries to his left leg, which subsequently had to be
amputated. [1 for facts] The applicant argued that the failure by PRASA to close the door of the
compartment and to appoint a security guard on the train was the cause of his injuries and that
these omissions were wrongful and negligent. The court a quo held PRASA liable, but the
Supreme Court of Appeal overturned the decision. The applicant thereupon escalated the matter
to the Constitutional Court (CC).
Wrongfulness
The CC stated (535) that public carriers like PRASA had always been regarded as owing a legal
duty to their passengers to protect them from suffering physical harm while making use of their
transport services. [1] This duty arose from the existence of the relationship between carrier and
passenger. [1] The CC further pointed out that this duty also stemmed from PRASA’s public-law
obligations. [1] This strengthened the contention that a breach of these duties was wrongful in the
delictual sense and could attract liability for damages. When addressing wrongfulness, the
question was whether omissions of this nature, in breach of PRASA’S public-law obligations, were
to be treated as wrongful for the purposes not only of public-law remedies but also for the
purposes of attracting delictual liability sounding in damages. [1]
The Court stated that to conclude that an incident of omission, particularly in relation to public-law
duties, was wrongful, and impute delictual liability, was an exacting exercise that required a
reflection on a number of important factors. Some of these factors were (535):
• Whether the operating statute provided for a delictual claim for damages; [1]
• Whether the legislation’s scheme was primarily about protecting individuals or advancing the
public good; [1]
• Whether the public power conferred was discretionary; [1]
• Whether the imposition of liability for damages was likely to have a ‘chilling effect’ on the
performance of government functions; [1]
• Whether the loss was foreseeable; [1] and
• Whether alternative remedies such as an interdict, review or appeal were available to
claimant. [1]
The CC further stated (536), with reference to other court decisions, that an omission would be
regarded as wrongful when it not only evoked moral indignation, but the legal convictions of the
community (or boni mores) [1] also required that the omission be regarded as wrongful. This had
to be answered with reference to the norms and values embedded in our Constitution. [1] When a
constitutional duty had been breached the value of accountability [1] assumed a prominent role in
the determination of the appropriateness of transposing that breach into a private-law breach. The
prospects of recognising a private-law remedy following upon a breach of a public-law duty would
be enhanced where no other effective remedy existed. [1] The state and its organs bear the
obligation to ensure that the aspirations held out by the Bill of Rights are realised and could not
be allowed to adopt a lackadaisical attitude at the expense of the interests of the public. [1]

PVL3703/201
The CC held (537) that when taking all these factors into account, the breach of a public duty by
PRASA had to be transposed into a private-law breach in delict. [1] However, the CC stressed
(537) that in these circumstances wrongfulness did not flow directly from the breach of the public
duty; rather, the fact that a public duty had been breached was but one of the factors contributing
towards the recognition of a new form of wrongfulness in delict. [1]
Evaluation
The decision of the CC in respect of wrongfulness may be supported. It combined the classic test
of wrongfulness in instances of omission with constitutional imperatives, and applied these criteria
effectively to a novel factual situation.[1]
[Maximum marks: 10]

PVL3703/201
COMMENTARY
DUE DATE: 13 APRIL 2017
ANSWERS
Question 1
(1)
Question 2
delict.
(1)
Question 3
hand that is holding the baseball bat and forces a hard blow to C’s head. In respect of
the injury to C, what defence can B raise?
1. Necessity.
2. Provocation.
3. Private defence.
4. Sane automatism.
(1)

PVL3703/201
Question 4
3. The interdict.
(1)
Question 5
(1)
Question 6
badly damaged. C discovers that S’s financial position is not good. Advise C on the best
course of action:
(1)

PVL3703/201
Question 7
car, G has:
4. Luxuria.
(1)
Question 8
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 9
(1)
Question 10
(1)

TOTAL MARKS: [10]

PVL3703/201
2.1 EXAMINATION

admission.
this module.

PVL3703/201
(2) the study guide

PVL3703/201
3 COMMON MISTAKES MADE BY STUDENTS IN THE EXAMINATION
Would you like to know what mistakes are most commonly made by students who get
poor marks or even fail this module?
We are going to tell you right now, in the hope that you will take this as an early warning, and
that you will not make the same mistakes.
There are three common mistakes that prevent students from doing well in the Law of Delict.
1. Confusing the elements of delictual liability

2. Not memorising definitions, tests and requirements
3. Not reading the examination questions properly, and then writing ‘‘answers’’ that do not really
address the issue
Let’s consider these one by one.
1. Confusing the elements of delictual liability.
You will learn that five elements are necessary to constitute a delict (except for exceptions).
This means that it is extremely important for you to know precisely (not vaguely!) what
the differences between these elements are.
2. Not memorising definitions, tests and requirements.
This mistake goes hand in hand with the previous one. You will encounter many definitions in
your textbook, such as definitions of the terms ‘‘conduct’’, ‘‘necessity’’, ‘‘accountability’’ and
‘‘intent’’. You will also encounter tests or yardsticks, such as the boni mores test for
wrongfulness and the reasonable person test for negligence. You will also encounter lists of
requirements, for example the requirements for valid consent, the requirements to succeed
when relying on the doctrine of sudden emergency and the requirements for the actio de pastu.
You must memorise these definitions, tests and requirements. The definitions, tests and
requirements are the tools that you need to solve delictual problems. When we confront
you with a delictual problem in the examination, you must not try to invent the tools; you must
already know them as well as you know your own name and telephone number. However,
memorisation is pointless without understanding. When studying the definitions, tests and
requirements of the law of delict, you must go through two phases:
First, make sure that you understand them.
Second, make sure that you memorise them.
With the first phase, we can help. You need to find ways of ensuring that your understanding of
the definitions, tests and requirements of the law of delict is accurate. One way of doing this is
to answer the self-assessment questions in the study guide. If you find it difficult to understand
something, please contact us so that we can explain it to you. With the second phase, you are
11

PVL3703/201
on your own. Only hard work will ensure that you memorise what is needed. Don’t skip this
phase. The reward will be great: If you have really memorised your definitions, tests and
requirements, you will be empowered so that you do not confuse the elements of delictual
liability – the other very common mistake we just warned you against.
3. Not reading the examination questions properly, and then writing ‘‘answers’’ that do not really
address the issue.
This common problem often goes hand in hand with the previous two. Say, for instance, we ask a
question dealing with automatism (like question 12 in the self-assessment section of study unit 3).
As you proceed with your studies, you will learn that automatism is a defence that excludes the
first of the five delictual elements, namely conduct. This means that you must discuss principles
relating to the element of conduct and, more specifically, the defence of automatism, in your
answer. Each exam question usually deals with one or – at the most – two delictual elements
only. Your task is to identify which elements each question deals with and then to
demonstrate your knowledge of and insight into those specific elements.
12

PVL3703/201
QUESTION 1
and delict. (5)
QUESTION 2
QUESTION 3
13

PVL3703/201
QUESTION 4
raise. (10)
QUESTION 5
QUESTION 6
QUESTION 7
14

PVL3703/201
QUESTION 8

QUESTION 9
15

PVL3703/201
5 SELF-ASSESSMENT QUESTIONS
These self-assessments question will assist in your preparation for the examination. The
following questions are designed to assist you in assessing your knowledge and understanding
of the Law of Delict. Please note that these are just examples; you need to study all your
prescribed work.
QUESTION 1
Mike, the owner of a luxury private game reserve, takes his client Ken off-road in an open
game-viewing vehicle. As they approach a leopard female with her cubs, Mike warns Ken to
stay seated at all times. Mike approaches the leopard family much closer than the minimum
distance required by the game reserve protocols for safe viewing of dangerous wildlife. Ken
protests that they are too close to the animals, but Mike assures him that it is safe. Thereupon
Ken stands up in the vehicle to get a better view of one of the leopard cubs. The female leopard
jumps onto the vehicle and mauls Ken. Mike fires a shot in the air to scare the leopard away.
Ken is hospitalised and his hospital costs amount to R30 000. Ken did not sign any indemnity
forms indemnifying Mike or the game reserve, and he wishes to recover delictual damages from
Mike based upon Mike’s alleged negligent conduct. What defence may Mike rely upon and what
will the effect of a reliance on the defence be? Discuss in detail with reference to case law and
legislation. (15)
QUESTION 2
Peter sustained serious injuries in the course of a game of rugby. Peter had the ball and was
well on his way to score a try when Tom managed to tackle him. Both Peter and Tom were
playing according the rules at the time. Peter is seeking legal advice on the possibility of holding
Tom liable in delict. Discuss only, but in detail, on which ground of justification Tom may rely,
and what his chances of success are. (10)
QUESTION 3
The Supastore supermarket in Willemsdorp always offers consumers a good selection of fresh
fish. The fish is displayed on ice to keep it fresh. On an exceptionally hot day, the ice melts
much quicker than usual and a puddle of water forms below the table on which the fish is
displayed. Three customers complain to the Supastore manager about this. However, he
decides to wait a while longer before mopping the floor and replacing the melting ice with fresh
ice. An elderly lady slips in the water and falls. She sustains painful bruises and is hospitalised
for a week. Was the conduct of the Supastore wrongful? Discuss in detail. (15)
16

PVL3703/201
QUESTION 4
Joe is in a hurry. He knocks over a ladder on which Charles, a painter, was standing. Charles
falls and breaks his left leg. Charles’s leg is set in plaster and the hospital issues him with
crutches. At home he slips with the crutches and breaks his right arm. Answer the following
questions:
4.1 Was there a factual causal link between Joe’s conduct and Charles’s broken arm?
Discuss. (5)
4.2 Was there a legal causal link between Joe’s conduct and Charles’s broken arm? Discuss
in detail, referring to applicable case law. (10)
QUESTION 5
Peter is employed as a greengrocer by the Supashop supermarket. Peter chops up lettuce
leaves in the fruit and vegetable section to make a salad mix. Some lettuce leaves land on the
floor of the shop. Martha, a housewife shopping for fresh produce, slips on a leaf and falls,
breaking her left arm. Martha wishes to institute a delictual action against Supashop. Advise her
on the following aspects:
5.1 Did Peter have fault in respect of Martha’s injuries? Refer in your advice to both forms of
fault and cite relevant case law. (10)
5.2 Accept that fault was present on Peter’s part. Advise Martha now on whether Supashop
can be held liable instead of Peter. (5)
17

PVL3703/201
QUESTION 6
Alex enters the Bargain-Buy Store to buy some groceries. Bargain-Buy has a large selection of
fresh fish on display. However, it is an exceptionally hot day and the ice that is used to keep the
fish cold, is melting faster than usual. A puddle of water has formed below the display table. The
store manager has put up a sign displaying the words: “Watch out – water on floor”. In addition,
the store manager has instructed an employee of Bargain-Buy to dry the area with a mop at
three-hourly intervals. Alex reads the sign, and sees the water, but proceeds to walk to the fish
display. He slips and falls, breaking his left arm and fracturing two ribs. He is admitted to the
CareMed hospital for treatment. Diane, a nurse in the employ of CareMed, adjusts the air-
conditioning to full blast to counter the heat. Alex’s bed is right under the main vent of the air-
conditioning, and Alex contracts pneumonia. Answer the following questions 1 to 3 below (with
their subdivisions) with reference to this set of facts.
6.1 Was the conduct of the Bargain-Buy Store wrongful? Discuss in detail and refer to
applicable case law. Do not discuss other delictual elements in your answer. (15)
6.2 Assume for the purpose of this question that the conduct of Bargain-Buy was indeed
wrongful. Was the conduct of Bargain-Buy negligent? Discuss with reference to case law. (5)
6.3 Assume for the purpose of this question that Bargain-Buy has acted wrongfully and
negligently and that Bargain-Buy will not be able to rely on the defence of consent to the risk of
injury (or voluntary assumption of risk). Discuss another defence that Bargain-Buy may raise.
Elaborate in detail on the requirements of this defence and the result of a successful reliance on
the defence. Refer to applicable legislation and case law. (15)
6.4 Was there a factual causal link between Bargain-Buy’s conduct and the pneumonia that
Alex has contracted? Discuss. (5)
6.5 Was there a legal causal link between Bargain-Buy’s conduct and the pneumonia that Alex
has contracted? Discuss with reference to case law. (10)
18

PVL3703/201
6 FREQUENTLY ASKED QUESTIONS
Can I use the previous edition of the prescribed textbook?
No, the latest edition has information about the recent developments, which includes case law
that has a direct impact on the application of the law of delict.The study guide makes reference
to the latest edition of the prescribed textbook so it will be difficult to follow with an old edition.
Is there a prescribed casebook for this module?

No. However, to comply with the research component of this module you will be required to find
case law to complete your assignment. You will receive detailed instructions on this with your
instructions for the assignment.
Why are the amendments to the study material (additional resources) available in
Afrikaans only?
The amendments to the study material that is uploaded under additional resources is available
in Afrikaans only as it applies to the Afrikaans study guide only as the Afrikaans study guide is
not updated. The English study guide is updated and the amendments have been incorporated
into the new study guide.
How is my year mark calculated?

Your assignments 01 and 02 contribute 20% towards your final mark (10% for assignment 01
and 10% for assignment 02). Your examination contributes 80% towards your final mark.
How do I gain admission to the examination?

You must submit assignment 01 to gain admission to the examination. This will contribute 10%
towards your final mark.
What is the composition of the examination paper?
The examination paper consists of two sections, section A and section B.
Section A consists of 20 multiple choice questions of two marks each. This section will count 40
marks in total.
Section B consists of short and long questions (direct and problem-type questions) and will
count 60 marks in total.
19

PVL3703/201
How do I contact my lecturers?
The contact details are available on the welcome page on the myUnisa platform and in tutorial
letters 101 and 201. Alternatively, select the “Course contact” option from the left hand menu
bar on the PVL3703 MyUnisa platform. An automated email page will open. Type your message
to the Lecturer and press send.
How do I access the e-reserves for PVL3703?

Step-by step process on how to locate e-reserves (the case law required to answer assignment
01 is located in the e-reserves for PVL3703)
1. Go to www.unisa.ac.za and click on “Library”.

2. Go to the block located in the centre of the library page titled “Search the Library”, click
on the link “Find e-reserves and recommended books”.
3. You will be directed to a page that will require your course code. Enter PVL3703 in the
block provided and click on submit.
4. Thereafter you will be asked for your student number and password. Enter in these
details.
5. You will be directed to the e-reserves page for PVL3703. Click on “PVL3703 Electronic
reserves 2017”. Click on the relevant case law.
20

PVL3703/201
7 CONTACT DETAILS OF LECTURERS
Your Lecturers
MR TA MANTHWA 012 429-6150
21

PVL3703/201/2/2020
Law of Delict
PVL3703
Semester 2

about your module.

PVL3703/201
CONTENTS

2 RECENT DEVELOPMENTS………………………………………………. .... .……………………9
4 FREQUENTLY ASKED QUESTIONS................................................................................... 11
5 CONTACT DETAILS OF LECTURERS ................................................................................ 12

PVL3703/201
Dear Student,
1.1 GENERAL
contributes to your semester mark. Submission of assignment 01 was a prerequisite for
and knowledge of the work. Assignment 02 (multiple-choice assignment) was marked by the
question paper.
ASSIGNMENT 01
Original due date: 21 August 2020
(Compulsory) for Second Semester
Read the judgment in Life Healthcare Group (Pty) Ltd v Suliman 2019 (2) SA 185 (SCA) and
write a discussion of 500-1000 words. Your discussion should include:
• a discussion of what the court decided in respect of the wrongfulness element only in that case
[a maximum of 5 marks are awarded for the discussion of what the court decided in respect of
the wrongfulness element]; and
• your own comparison of the court’s decision with regards to the element of wrongfulness to the
discussion by Neethling and Potgieter in Neethling-Potgieter-Visser Law of Delict on how
wrongfulness should be established [a maximum of 5 marks are awarded for providing your own
comparison].
You can find the judgment in conventional law libraries, or online by conducting a google search
or at the website of the Southern African Legal Information Institute (SAFLII) at www.saflii.org.

PVL3703/201
For an example of how a judgment should be summarised, refer to the discussion of the
judgment of the Constitutional Court in Carmichele v Minister of Safety and Security (Centre for
Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) in Neethling, Potgieter and Visser
Neethling-Potgieter-Visser Law of Delict page 67 footnote 214.
Total for assignment 01:[10]
ANSWER
Life Healthcare Group (Pty) Ltd v Suliman 2019 (2) SA 185 (SCA) was a medical negligence
case. The main issue for decision was whether the alleged negligent conduct of a doctor
caused the birth injuries of a child born with cerebral palsy. One bonus mark was awarded for
a satisfactory account of facts of the case.
What the court decided in respect of wrongfulness:
The court stated clearly that in our law a negligent omission is only unlawful if it occurs in
circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently
causing harm [1] citing Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431
(SCA) para 25 and Oppelt v Head: Health, Department of Health, Provincial Administration:
Western Cape [2015] ZACC 33; 2015 (12) BCLR 1471 (CC). [1 mark for any one of these two
cases or both of them] Therefore the hospital bore the onus to prove that Dr Suliman owed a
legal duty [1] to the patient and that the duty was breached. [1] Dr Suliman contended that Mrs
S was not his patient because he was simply covering for another doctor and he therefore did
not assume normal responsibility for the patient. [1] The court remarked that the only logical
inference from Dr Suliman’s contention was that the patient was practically without a doctor or
specialist taking care of her, and the court was unable to agree with this contention. [1] The
court stated that the legal duty arose when Dr Suliman got involved in the treatment of the
patient [1] by agreeing with the request to cover for the other doctor, by positively responding to
a call from a sister that the patient had been admitted to hospital, by instructions to a nurse to
allow the labour to proceed and to sedate the patient, if necessary, and by prescribing
medication as mentioned earlier. This conduct of getting involved in the treatment of the patient
placed him in a position of being responsible for her and the baby. [1 for any reasonable
account of these points] The next question was whether the legal duty was breached, and the
court answered this question by inquiring whether Dr Suliman acted like a reasonable
obstetrician in the circumstances. [1] Dr Suliman first visited the patient more than 11 hours
after her admission. The explanation given by Dr Suliman was that he did not regard her as his
patient, but the court stated that if this was not gross negligence, then it was difficult to imagine
what would be. [1] [A maximum of 5 marks was awarded for the preceding section]
How the part of the judgment that dealt with wrongfulness compares to the views of the
authors of our textbook:
According to Neethling and Potgieter (p 33) wrongfulness lies in the infringement of a legally
protected interest in a legally reprehensible way. [1] The basic test for wrongfulness is the legal
convictions of the community or boni mores [1] and this test must reflect the values of the
Constitution and the Bill of Rights. [1 for mentioning either Constitution or Bill of Rights] In
instances of an omission, wrongfulness is determined with reference to breach of a legal duty
(Neethling and Potgieter 55, 58). [1] Insofar as the judgment dealt with an omission and
wrongfulness was determined with reference to a legal duty, the judgment is broadly in
agreement with the views of Neethling and Potgieter. [1] The court does not use the new
approach to wrongfulness, which is criticised by Neethling and Potgieter, and according to
4

PVL3703/201
which wrongfulness consists of the reasonableness, based on policy considerations, of holding

the plaintiff liable (Neethling and Potgieter 80). [1] The court does not specifically refer to the
boni mores or legal convictions of the community (Neethling and Potgieter 36). [1] The court
also does not refer to specific instances where liability for omission has been recognised by the
courts, which are dealt with in detail by Neethling and Potgieter 60-77. [1] However, several of
those specific instances could conceivably have been relied upon, when the court pointed out
that that the legal duty arose when Dr Suliman got involved in the treatment of the patient. [1]
They are: knowledge and foresight of possible harm (Neethling and Potgieter 65); a special
relationship between the parties (Neethling and Potgieter 69); contractual undertaking for the
safety of a third party (Neethling and Potgieter 71); creation of the impression that the interests
of a third party will be protected (Neethling and Potgieter 72); and interplay of factors (Neethling
and Potgieter 73). [maximum 2 marks for mentioning 2 of these and additional 1 mark for a
plausible substantiation why the particular instance is applicable to the facts of the case]
The court determined the breach of the legal duty by establishing that Dr Suliman had been
negligent. This makes it difficult to know where the wrongfulness inquiry ends and where the
fault (negligence, in this case) inquiry begins. This is similar to the duty of care approach of
English law where wrongfulness and negligence are not treated as distinct and independent
elements of liability. Neethling and Potgieter are usually critical of such an approach (e.g.
Neethling and Potgieter 57, see further 158). [A maximum of 2 was awarded for raising this
point, however this topic crosses over into negligence, which was not part of the
question and which most of students would not yet have studied when doing the
assignment. For this reason, full marks could have been attained without addressing this
point.]
[A maximum of 5 marks was awarded for the second section.] [TOTAL 10]
[A maximum of 10 marks was awarded for the assignment.]
ASSIGNMENT 02
Due date: 18 September 2020
1. Absolute compulsion is one of the conditions that may cause a person’s behaviour to be
involuntary and hence not to qualify as conduct for the purpose of delictual liability. In which one
of the following instances is Y subject to absolute compulsion?
1. X points a gun at Y and orders Y to damage Z’s motor vehicle. In order to save his own life, Y
dents Z’s motor vehicle.
2. Y suffers an epileptic fit while driving his motor vehicle and in the process smashes into Z’s
motor vehicle.
5

PVL3703/201
3. Y is ‘blind drunk’ and lies on the sidewalk, making involuntary movements with his arms and
legs. Z’s motor vehicle is parked next to Y and Y’s involuntary movements cause a dent in Z’s
motor vehicle.
4. X pushes a baseball bat into Y’s hand and then, without Y being able to offer resistance, X
takes hold of Y’s hand and forces it to cause a dent on Z’s motor vehicle.
Answer: 4; see Neethling and Potgieter p 27 (fn 21).
2. Which of the following best describes what is meant by “psychological lesion”?

1. Emotional shock.
Answer: 1; see Neethling and Potgieter 300.
3. Which one of the following qualifies as private defence?

1. John’s vicious dog charges to attack Zain. To protect himself, Zain picks up a baseball bat
and gives the dog a blow to the head.
2. Brian threatens Wilma with a knife and robs her of her cell phone. After three months, Wilma
sees Brian at a shopping centre and reacts by stabbing Brian with a high heeled shoe.
3. A child points a firearm at you and you grab his arm to prevent him from shooting you. The
child sustains injuries to his arm.
4. A police officer arrests Liam in the execution of a legitimate warrant of arrest. Liam resists the
arrest. He jabs the policeman, cracking one of the policeman’s ribs, in an attempt to escape.
Answer: 3; see Neethling and Potgieter 88-97.
4. Neil is chased by a fierce Jersey bull and jumps onto Conrad’s scooter, which is parked next
to the road, in order to race away and save his own life. The scooter is damaged and Conrad
institutes a delictual claim against Neil. Neil may raise the following ground of justification:
1. private defence.
2. necessity.
3. provocation.
4. official capacity.

PVL3703/201
5. Carl, seventeen, left his PlayStation in his locker at school. James, fifteen, wants to steal
Carl’s PlayStation. He realises that he would have to damage Carl’s locker in order to get the
PlayStation. In respect of the damage to the locker, James has:
1. dolus directus.
6. Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd 1997 (2) SA 591
(W) dealt with:
1. contributory intention.
2. contributory negligence.
3. consent to injury.
7. Joseph plays tennis in his back yard. He foresees the possibility of his ball breaking a window
in his neighbour’s house, but decides that it will not happen. If the ball indeed breaks the
window, Joseph had the following in respect of the damage:
4. luxuria.
8. Gawie and Manie are farming on adjacent properties. Gawie bears a grudge against Manie.
He sets up a device, which causes a loud bang every half an hour, on the common boundary
between the two farms, near Manie’s homestead. As a result of this, Manie and his family
cannot sleep at night and are irritated by day. Manie asks Gawie to dismantle the device, but
Gawie says that the device serves the purpose of scaring baboons away from his orchards.
Which delictual remedy may be available to Manie?

PVL3703/201
3. The interdict.
9. Jacob, an employee of Zanele, was on route to Rustenburg delivering bread when he

accidentally skipped a red robot and crashed into Dineo’s car. If Dineo successfully sues Zanele
(as the employer) for the damage to his car, Zanele will incur:
2. liability based on negligence.
4. risk liability.
10. Jonas threatens Lerato with a gun and orders her to hand over her cellphone. Lerato, in fear
of her life, hands over the cellphone. One week later, Lerato spots Jonas at a nearby shopping
centre. Lerato rushes home and grabs a knife. She returns to the shopping centre and stabs
Jonas. Jonas wants to institute a delictual action against Lerato. Lerato may rely on the
1. necessity.
2. provocation.
3. private defence.
Answer: 4; see Neethling and Potgieter 99; 106; 91.

PVL3703/201
2 RECENT DEVELOPMENTS
Accountability of a minor
The authors of the prescribed textbook, Neethling and Potgieter Neethling-Potgieter-Visser Law
of Delict in Chapter 4 para 2, state that “the Child Justice Act 75 of 2008 changed the common
law position with regard to the accountability of children”. According to the Child Justice Act, a
child who has not reached his/her ninth year cannot be held accountable, the child is culpae
incapax. A child from ten to fourteen years of age is presumed to lack accountability until the
contrary is proven. A child between fourteen to eighteen years of age is presumed to be
accountable (culpae capax), he/she is considered an adult in respect of accountability.
In terms of the common law, a child who has not reached his/her seventh year cannot be held
accountable. A child between seven and fourteen years of age is presumed to lack
accountability until the contrary is proven. A child between fourteen and eighteen years of age is
presumed to be accountable, he/she is considered an adult in respect of accountability.
Jansen and Neethling (Jansen R-M and Neethling J “Delictual capacity and contributing
negligence of minors” 2017 THRHR 474-482) submit that the Child Justice Act applies to the
accountability of children with regard to crimes. The common law position as stated above still
applies to delictual liability.
There is therefore uncertainty as to whether the Child Justice Act has indeed changed the
common law position. In light of this we advise that you to approach the prescribed textbook
with regard to the accountability of children with caution. In the exam, if you state that the
common law position is applicable or the Child Justice Act is applicable, you will not be
penalised, either will be correct.
3.1 EXAMINATION
of the semester you will write a three-hour paper that counts 100 marks.
General information:
The examination is a fully online MCQ ("multiple choice” question) examination paper.
The examination paper consists of 50 MCQs of 2 marks each. Each student will receive an
individualised set of MCQs which will be drawn randomly from a number of question pools.
The examination duration is 3 hours and will be written in two sessions of 90 minutes
(containing 25 MCQs) each. The reason for the longer period is to account for time loss due to
logging into, moving between questions and saving answer submissions on the online system
as well as to cater for any connectivity issues during the examination session.

PVL3703/201
Instructions on the examination paper:
1.The examination consists of Multiple-Choice Question types only.
2.The examination question paper counts 100 marks and consists of 50 Multiple-Choice
Questions each worth 2 marks. Answer all the questions.
3.This is a closed-book examination. While the examination is in progress, you are not
allowed to consult another person or any source in order to assist you to answer any of the
questions contained in this question paper. You may also not assist another student in
answering any of the questions contained in this question paper.
4.The answers to this MCQ examination may only be submitted online on myUnisa. The
Unisa MCQ App cannot be used for examination submissions.
Plan each answer before you commit to an option.
Choose the most correct option in every instance.
PLEASE NOTE: The details supplied above may be subject to change. Such changes, if
they do occur, will be announced on myUnisa. Please keep an eye on your
announcements.

admission.
this module.

(1) the relevant sections of the prescribed textbook as indicated in the study guide;
(2) the study guide;
(3) the prescribed cases as discussed in the textbook and study guide;
(4) all tutorial letters received during the semester.
10

PVL3703/201
4 FREQUENTLY ASKED QUESTIONS
Can I use the previous edition of the prescribed textbook?
No, the latest edition has information about the recent developments, which includes case law
that has a direct impact on the application of the law of delict. The study guide refers to the
latest edition of the prescribed textbook so it will be difficult to follow with an old edition.
Is there a prescribed casebook for this module?

No. However to comply with the research component of this module you will be required to find
case law to complete your assignment. You will receive detailed instructions on this with your
instructions for the assignment.
Why is there no study material available in Afrikaans?

In terms of the relevant Unisa language policy, as of last year, there will be no study material
available in Afrikaans.
How is my year mark calculated?

Your assignments 01 and 02 contribute 20% towards your final mark (10% for assignment 01
and 10% for assignment 02). Your examination contributes 80% towards your final mark.
How do I gain admission to the examination?

You must submit assignment 01 to gain admission to the examination. This will contribute 10%
towards your final mark.
How do I contact my lecturers?
The contact details are available on the welcome page on the myUnisa platform and in tutorial
letters 101 and 201. Alternatively, select the “Course contact” option from the left hand menu
bar on the PVL3703 myUnisa platform. An automated email page will open. Type your message
to the Lecturer and press send.
11

PVL3703/201
Your Lecturers Telephone number
PROF JC KNOBEL 012 429-8352
PROF R AHMED 012 429-8321
12

PVL3703/201/1/2020
Law of Delict
PVL3703
Semester 1

about your module.
BARCODE

PVL3703/201
CONTENTS

2 RECENT DEVELOPMENTS………………………………………………. .. .……………………12
3 CONTACT DETAILS OF LECTURERS ................................................................................ 12

PVL3703/201
Dear Student,
1.1 GENERAL
contributes to your semester mark. Your semester mark will count 20% towards your final
mark for this module. This assignment required a structured written response to the question.
The value of this assignment lies mainly in using the discussion furnished to enhance your
understanding and knowledge of the work. Assignment 02 (multiple-choice assignment) was
marked by the computer. You should use the commentary given to assignment 02 to identify the
correct alternatives for the different questions in the assignment. Please bear in mind that you
did not do the assignments under examination conditions. Therefore, do not assume that
the marks that you received for the assignments are necessarily indicative of the kind of
question paper.
COMMENTARY
Question
Read the judgment in Stedall and Another v Aspeling and Another 2018 (2) SA 75 (SCA) and
• a comparison of the court’s decision with that of Neethling and Potgieter in Neethling-
Potgieter-Visser Law of Delict on how wrongfulness should be established [a maximum of 5
marks are awarded for providing your own comparison].

PVL3703/201

Answer
Facts of the case
Please note that no marks were awarded for providing the facts of the case. The facts are
provided hereunder merely as background information.
In Stedall and Another v Aspeling and Another 2018 (2) SA 75 (SCA), the respondents’ (the
Aspelings’) two and a half year-old daughter C, was involved in a swimming-pool accident on 27
July 2004. The accident occurred at the appellants’ (the Stedalls’) home in Constantia, Cape
Town. C’s mother had left her unattended for a short period of time. During that time, C had made
her way to the swimming pool and was later found floating, face down, in the swimming pool. C
did not drown but suffered severe, permanent brain damage. The Aspelings then sued the
Stedalls for their and C’s damages. The court a quo found the Stedalls twice as culpable as C’s
mother, in that they failed to secure the swimming pool’s gates. The court a quo also found C’s
mother negligent in failing to constantly watch over her. The Stedalls then appealed to the
Supreme Court of Appeal (hereinafter referred to as the “SCA”) disputing delictual liability on their
part (paras 1, 9, 11).
(a) Discussion of what the court decided in respect of the wrongfulness element
Please note that a maximum of 5 marks were awarded for the discussion on what the court
decided in respect of the wrongfulness element.
The SCA held that the court a quo overlooked the requirement that wrongfulness is an essential
and distinct element required for delictual liability (paras 11, 13) [1].
The court referred to Country Cloud Trading CC v MEC, Department of Infrastructure
Development, Gauteng (2015 (1) SA 1 (CC) paras 20-21) and Le Roux v Dey (Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae) (2011 (3) SA 274 (CC) para
122) where the Constitutional Court held that conduct will be considered wrongful if it would be
reasonable to impose liability on a defendant for the harm suffered [1] and that reasonableness
depends on considerations of public policy, legal policy and constitutional norms [1].
Wrongfulness and negligence should not be conflated (para 13) [1]. The court stated (at para 14)
that the SCA had previously pronounced that “foreseeability of harm”, an essential requirement
for negligence, should not be a requirement in determining wrongfulness (see Country Cloud
Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) para 27,
and MTO Forestry (Pty) Ltd v Swart N.O. 2017 (5) SA 76 (SCA) para 18) [1].

PVL3703/201
A negligent omission, is not necessarily regarded as prima facie wrongful (para 15) [1]. A
negligent omission is regarded as wrongful only “if it occurs in circumstances that the law regards
as sufficient to give rise to a legal duty to avoid negligently causing harm” (see Minister of Safety
and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12) [1]. With regard to an alleged
negligent omission, the respondents should not only have alleged that the negligent omissions
had been wrongful, but should also plead and prove the facts on which they rely on for holding
the omission wrongful (para 17-19) [1].
A “legal duty” in this context means that the omission must not be wrongful and involves public
and legal policy, consistent with constitutional norms (see Hawekwa Youth Camp v Byrne 2010
(6) SA 83 (SCA) para 22) [1]. A “legal duty” must not be confused with the English law concept of
“a duty of care” which encompasses both wrongfulness and negligence (para 16) [1].
The question was whether the failure to secure the swimming pool gates, was indeed wrongful in
the particular circumstances [1]. The pertinent circumstances were: a parent brought their child to
another’s private premises on a visit; aware that there was a swimming pool on the premises;
supervised the child; became momentarily distracted; and during that time the child wandered off,
fell into the swimming pool, and sustained brain damage [2]. The Court held that the following
factors must be considered: constitutional norms, in particular the best interests of the child [1];
whether the failure to ensure that the gate was secured evokes moral indignation [1]; whether the
legal convictions of the community demand that it be regarded as wrongful [1]; and whether it
would be overly burdensome to impose liability (para 22) [1].
The court referred to a number of foreign judgments, drawing attention to the fact that in those
cases where young children are in the care and under the supervision of their parents whilst
visiting the home of another, the duty to keep the child safe lies with the parents [1]. Public and
legal policy of these foreign countries reflect that it would be unreasonable to impose liability on
the homeowner and expect a homeowner to provide greater supervision than a parent (paras 29-
32) [1].
The court held that the Aspelings failed to establish the element of wrongfulness on the part of the
Stedalls and their claim had to fail on that basis alone. The appeal succeeded since the Stedalls’
conduct was not wrongful (para 33) [1].
(b) Neethling and Potgieter’s view on how wrongfulness should be established

Please note that a maximum of 5 marks were awarded for providing your own comparison.
Wrongfulness is a necessary, distinct requirement for delictual liability [1] which should be
determined ex post facto, that is, taking into account all the facts and circumstances present and
consequences that actually ensued (see Neethling, Potgieter and Visser Neethling-Potgieter-
Visser Law of Delict Chapter 3 para 1 ─ from here on, only the paragraph numbers will be
referred to from Chapter 3) [1].
In cases of liability for an omission, wrongfulness is determined by questioning whether according
to the boni mores (legal convictions of the community), the defendant had a legal duty to prevent
harm (see Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus
curiae) 2003 (1) SA 389 (SCA) 395) [1]. There is no general duty to prevent harm by positive
conduct [1]. One must determine according to the circumstances of the case whether there was a
legal duty to act positively [1]. If it is found that the defendant had a legal duty and failed to
comply with that duty, without the applicability of a ground of justification, then that failure is
unreasonable, contra bonos mores and therefore wrongful [2] (see paras 5.1-5.2).
5

PVL3703/201
There are certain factors which have come to the fore over time and are indicative of a legal duty
to act positively. These are: prior positive conduct (para 5.2.1); control of a dangerous object
(para 5.2.2); knowledge and foresight of possible harm (para 5.2.3); rules of law (para 5.2.4); a
special relationship between the parties (para 5.2.5); assumption of a particular office (para
5.2.6); a contractual undertaking in respect of the safety of a third party (para 5.2.7); and the
creation of an impression that another will be protected (para 5.2.8) [maximum 3 marks for
mentioning the different factors]. There may be an interplay of the abovementioned various
factors which may indicate that the omission is wrongful (para 5.2.9) [1]. In the end we are
concerned with whether or not the defendant’s failure to act in the particular circumstances was
reasonable [1] and a balancing or weighing of interests takes place (para 5.2.10) [1].
The test for wrongfulness should not be reduced to a “legal duty not to act negligently” as this
creates the impression that the legal duty deals with the question of whether the defendant acted
negligently, thereby conflating wrongfulness and negligence [1]. This formulation of the test for
wrongfulness mirrors the English law “duty of care” concept which in effect combines the test for
wrongfulness and negligence and which was expressly rejected by the SCA (para 5.1) [1].
Most of what has been mentioned above by Neethling and Potgieter in determining wrongfulness
is essentially what the court did in fact reiterate in Stedall v Aspeling. For example, both the
judgment of Stedall v Aspeling and Neethling and Potgieter’s views are aligned in stating that
wrongfulness is a separate and distinct element; wrongfulness in cases of omission is determined
by establishing whether there was a breach of a legal duty; certain factors may play a role in
establishing wrongfulness; wrongfulness must be determined by considering all the
circumstances present; the boni mores, the Constitution, public and legal policy must be
considered; wrongfulness and negligence should not be conflated; and a breach of a legal duty is
not the same as a breach of the English duty of care [maximum 3 marks for expressly pointing
out the similarities]. Neethling and Potgieter however, do not agree with the courts recent
approach to determining wrongfulness, in that wrongfulness consists in the reasonableness of
holding a defendant liable. They are very critical of this approach and provide five reasons why it
should be rejected (see para 6) [1].
In addition, we may point out that Neethling and Potgieter accept in their textbook (para 5.2.9)
that foreseeability of prejudice can be a factor influencing wrongfulness, but in a more recent
contribution they agree with the SCA’s current view that foreseeability of harm should not play a
role in the wrongfulness inquiry (Neethling and Potgieter “Foreseeability: wrongfulness and
negligence of omissions in delict – the debate goes on” 2018 TRW 154-155).
[Maximum marks: 10]
COMMENTARY

PVL3703/201
Question 1
1. Provocation.
2. Self-defence.
3. Black-out.
4. Necessity.
(1)
Question 2
of the boni mores.
Rights.
(1)

PVL3703/201
Question 3
(1)
Question 4
2. necessity.
3. provocation.
4. private defence.
(1)
8

PVL3703/201
Question 5
2. Dick had fault.
(1)
Question 6
3. the interdict.
(1)

PVL3703/201
Question 7
(1)
Question 8
(1)
10

PVL3703/201
Question 9
(1)
Question 10
taken place?
adulterer.
secretary.
(1)
TOTAL MARKS: [10]
11

PVL3703/201
Prof R Ahmed (Primary lecturer/Module leader)

ahmedr@unisa.ac.za
012 429 8321
Prof JC Knobel
knobejc@unisa.ac.za
012 429 8352
12

PVL3703:
MCQ’s :
1 Which one of the following statements is incorrect?
(1) The basic premise in law is that damage rests where it falls.
(2) In South Africa the question of delictual liability is governed by a generalising approach.
 (3) The fact that a person has caused another to suffer damage is sufficient to constitute a
delict for which he or she may be held liable.
(4) In principle a distinction is made between delicts that cause patrimonial loss and those that cause
(5) Apart from a few exceptions, the actio legis Aquiliae, actio iniuriarum and the action for pain and
suffering comprehensively cover the whole area of delictual liability.
(1) Delictual remedies differ substantially from criminal sanctions.

(2) Delictual remedies are compensatory in character.
(3) Criminal sanctions are penal in character.
(4) One and the same act may found delictual as well as criminal liability.
 (5) Not all delicts are crimes, but all crimes may under suitable circumstances also give rise to
3 Which one of the following statements in incorrect?
(1) The generally accepted classification of iniuriae in Roman law was that the actio
iniuriarum was applicable to infringements of the corpus, fama and dignitas.
 (2) In Roman law, the corpus and the fama were more clearly delineated interests of
personality than the dignitas.
(3) In contemporary law, the concept of dignitas refers to the dignity in a wide sense.
(4) Among the personality interests protected by the actio iniuriarum are the corpus, fama,dignity and
privacy.
(5) The action for pain and suffering did not originate in Roman law.
(1) An animal cannot act for the purposes of the law of delict.
(2) If a person incites or orders an animal to cause harm to someone else, a human act is present.
 (3) Only willed behaviour constitutes conduct.
(4) Only voluntary behaviour constitutes conduct.
(5) Irrational conduct may be voluntary.
(1) The question of wrongfulness entails a dual investigation.

(2) Violation of a norm is a prerequisite for a finding of wrongfulness.
 (3) An act may be branded wrongful without reference to a harmful consequence.
(4) It is possible to act wrongfully towards an unborn person.
(5) The nasciturus fiction is not a prerequisite for a finding that someone acted wrongfully
towards an unborn person.
(1) The legal convictions of the community must be understood to be the legal convictions of the legal
policy makers of the community, like the legislator and the judges.
(2) Subjective factors such as the defendant’s motive and knowledge normally do not play a role in
determining wrongfulness.
(3) Improper motive may play a role in determining wrongfulness in so-called instances of neighbour
law.

(4) Knowledge that someone may be harmed by certain conduct may play a role in
determining wrongfulness in instances of pure economic loss and omissions.
 (5) If a person acts in the honest belief that his conduct is lawful, such conduct cannot be
wrongful.
(1) A subjective right is characterised by a dual relationship.

 (2) The right to good name is a personal right.
(3) The right of ownership is a real right.
(4) Copyright is an immaterial property right.
(5) In principle the development of new subjective rights and even new categories of
subjective rights is possible.
(1) “Prior conduct” is a strong indication that a legal duty to prevent harm exists.
 (2) By “prior conduct” is meant that a person created a new source of danger by way of an
omission.
(3) It is highly likely that an omission preceded by so-called “prior conduct” is wrongful.
(4) In many municipality cases prior conduct was regarded as an indispensable requirement for the
wrongfulness of an omission.
(5) According to the Ewels case the important question is whether an omission is wrongful according
to the boni mores, and prior conduct is one of many factors to be taken into account when deciding
this.
(1) If Y tries to kill X, X acts in private defence if he hits Y over the head with a stick.
 (2) If Y tries to rape Z, X acts in private defence if he hits Y over the head with a stick.
(3) If Y tries to rob X of R10 000,00, X acts in private defence if he hits Y over the head with a stick.
(4) If Y orders his vicious dog to bite X, and the dog starts to respond to Y’s order, X acts in private
defence if he kills the dog.
(5) If Z orders Y’s vicious dog to bite X, and the dog starts to respond to Z’s order, X acts in private
(1) If Y insults X, and X retaliates by insulting Y, X may rely on provocation as a defence.

(2) If Y insults X’s girlfriend, and X retaliates by insulting Y, X may rely on provocation.
(3) If Y insults X, and X retaliates by hitting Y over the head with a stick, X exceeds the boundaries of
provocation as a complete defence.
(4) If Y insults X’s girlfriend, and X’s girlfriend retaliates by insulting Y, X’s girlfriend may rely on
provocation.
 (5) If Y insults X, and X retaliates by writing an insulting letter and mailing it to Y, X may rely
on provocation.
 Breach of contract does not constitute a form of wrongful conduct.

(2) A delict and breach of contract are fundamentally different.
(3) A claim for damages as a remedy plays only a secondary role in instances of breach of
contract.
(4) Delictual remedies are not directed at fulfilment.
(5) Breach of contract is not formally treated as part of the law of delict.
 The South African law of delict is based on three ‘pillars’, which are three actions from Roman
law.

(2) The Aquilian action underwent important extensions in Roman-Dutch Law.

(3) In South African law the Aquilian action had developed into a general remedy for the wrongful and
culpable causing of patrimonial damage.
(4) Compensation for so-called “pure economic loss” may in principle be claimed with the actio legis
Aquiliae.
(5) The development of the actio legis Aquiliae to its logical conclusion is hampered by case law in
respect of negligent interference with contractual relations.
(1) The entrenchment of fundamental rights in the Bill of Rights enhances their protection in the law of
delict.
(2) A clear distinction should be made between a constitutional wrong and a delict.
(3) For conceptual clarity, the term “constitutional delict” should rather be avoided.
(4) By indirect application of the Bill of Rights to the law of delict is meant that the rules, principles and
norms of the law of delict are given content in light of the basic values of Chapter 2.
 (5) So-called open-ended or flexible delictual principles are more or less immune to the
 Automatism is a defence specifically excluding the wrongfulness of an act.

(2) Automatism may be caused by conditions such as epilepsy, black-out, and heart attack.
(3) A person who intentionally places himself in a condition of automatism, cannot rely on automatism
as a defence.
(4) A person who negligently places herself in a condition of automatism, cannot rely on automatism
as a defence.
(5) In respect of so-called “sane automatism” the onus rests on the plaintiff to prove that the defendant
acted voluntarily.
(1) The general wrongfulness criterion is the boni mores.

(2) The boni mores test is a criterion of objective reasonableness.
(3) Application of the boni mores entails an objective, ex post facto balancing of interests.
(4) The boni mores are influenced by the values underpinning the Constitution.
 (5) An act that is morally reprehensible will always be in conflict with the boni mores.
(1) The boni mores test is rarely applied directly to establish wrongfulness.
(2) Two practical applications of the boni mores are the principle that infringement of a subjective right
constitutes wrongfulness, and the principle that breach of a legal duty constitutes wrongfulness.
(3) By itself, the boni mores criterion usually functions at a supplementary level in
 (4) The boni mores criterion is applied at a supplementary level in instances where a clear
legal norm or ground of justification is obviously applicable.
(5) The boni mores criterion is applied at a supplementary level in cases of refinement, especially in
borderline cases.
(1) In instances of omission wrongfulness is determined by enquiring whether a legal duty has been
breached.
(2) In instances where pure economic loss has been caused, wrongfulness is usually
determined by enquiring whether a legal duty has been breached.
(3) Unlawful competition usually gives rise to pure economic loss, but nevertheless the wrongfulness
of unlawful competition is determined with reference to the infringement of a subjective right rather
than the breach of a legal duty.

 (4) There is a general legal duty in our law that one should prevent one’s omissions from
harming others.
(5) The existence of a legal duty is determined with reference to the boni mores.
(1) A ground of justification is a defence.

(2) A ground of justification is a defence excluding wrongfulness.
(3) A ground of justification is a defence excluding delictual liability.
(4) A ground of justification is a norm indicating that an act which on the face of it appears to be
wrongful, is nevertheless reasonable.
 (5) The generic term “grounds of justification” refers to all the defences available to
defendants in delict cases.
(1) If Y’s dog has rabies, and attacks X, X acts in necessity if he kills the dog.
(2) If Y’s dog has rabies, and attacks Z, X acts in necessity if he kills the dog.
(3) If Y’s dog has rabies, and attacks Y, X acts in necessity if he kills the dog.
 (4) If Y’s dog has rabies, and attacks X’s dog, X exceeds the boundaries of necessity if he
kills Y’s dog.
(5) If Z orders Y’s vicious dog to bite X, X acts in necessity if he kills the dog.
(1) A person must understand what he is consenting to.

(2) A person must not be tricked into consenting.
(3) A person must not be forced to give consent.
 (4) A person may not consent to an act that would have been contra bonos mores but for the
consent.
(5) In certain instances a person may consent to serious bodily injury.
21 Which one of the following statements is correct?
A crime does not constitute a form of wrongful conduct.

(2) A delict and breach of contract are fundamentally similar.
(3) A claim for damages as a remedy plays a primary role in instances of breach of contract.
 (4) Delictual remedies are not directed at fulfilment.
(5) Breach of contract is formally treated as part of the law of delict.
(1) The South African law of delict is based on three ‘pillars’, which are three actions from Roman law.
(2) The Aquilian action underwent no extensions in Roman-Dutch Law.
 (3) In South African law the Aquilian action had developed into a general remedy for the
wrongful and culpable causing of patrimonial damage.
(4) Compensation for patrimonial loss resulting from bodily injuries may in principle be
claimed with the action for pain and suffering.
(5) The development of the actio legis Aquiliae to its logical conclusion is nowadays an
accomplished fact.
(1) The entrenchment of fundamental rights in the Bill of Rights has no effect on their
protection in the law of delict.
(2) There is no distinction between a constitutional wrong and a delict.
(3) Damages are not regarded as appropriate relief for the infringement of a fundamental
right.
 (4) By indirect application of the Bill of Rights to the law of delict is meant that the rules,
principles and norms of the law of delict are given content in light of the basic values of

Chapter 2.
(5) So-called open-ended or flexible delictual principles are more or less immune to the
(1) Automatism is a defence specifically excluding the wrongfulness of an act.

(2) Automatism cannot be caused by intoxication.
 (3) A person who intentionally places himself in a condition of automatism, cannot rely on
automatism as a defence.
(4) A person who negligently places herself in a condition of automatism, can rely on
automatism as a defence.
(5) In respect of so-called “sane automatism” the onus rests on the defendant to prove that the
defendant acted voluntarily.
 Application of the boni mores entails an objective, ex post facto balancing of interests.
(2) Since the boni mores test is a criterion of objective reasonableness, subjective factors are
irrelevant.
(3) An act which is wrongful for the purposes of criminal law, is according to the boni mores always
also delictually wrongful.
(4) The boni mores are not influenced by the values underpinning the Constitution.
(5) An act that is morally reprehensible will always be in conflict with the boni mores.
(1) The boni mores test is always directly applied to ascertain wrongfulness.
(2) Improper motive may not play a role in determining wrongfulness in so-called instances of
neighbour law.
(3) Knowledge that someone may be harmed by certain conduct is irrelevant in determining
wrongfulness in instances of pure economic loss and omissions.
(4) If a person acts in the honest belief that his conduct is lawful, such conduct cannot be wrongful.
 (5) The legal convictions of the community must be understood to be the legal convictions of
the legal policy makers of the community, like the legislator and the judges.
(1) A subjective right is characterised by three relationships.

(2) A subjective right is infringed by factually interfering with the object of the right.
(3) The right to privacy is a personal right.
(4) Copyright is a personal immaterial property right.
 (5) In principle the development of new subjective rights and even new categories of
subjective rights is possible.
(1) “Prior conduct” is not an indication that a legal duty to prevent harm exists.
 (2) According to the Ewels case the important question is whether an omission is wrongful
according to the boni mores, and prior conduct is one of many factors to be taken into
account when deciding this.
(3) By “prior conduct” is meant that a person created a new source of danger by way of an omission.
(4) It is highly unlikely that an omission preceded by so-called “prior conduct” is wrongful.
(5) In many municipality cases prior conduct was not regarded as a requirement for the
wrongfulness of an omission.
(1) If Y tries to kill X, X acts in necessity if he hits Y over the head with a stick.

(2) If Y tries to rape Z, X acts in provocation if he hits Y over the head with a stick.
(3) If X compels Z to assault Y, Z acts in private defence if he hits Y over the head with a
stick.
 (4) If Y orders his vicious dog to bite X, and the dog starts to respond to Y’s order, X acts in
private defence if he kills the dog.
(5) If Z orders Y’s vicious dog to bite X, and the dog starts to respond to Z’s order, X acts in private
(1) If Y insults X slightly, and X retaliates by gravely insulting Y, X may rely on provocation as a
defence.
(2) If Y insults X’s girlfriend, and X retaliates by insulting Y, X may rely on provocation.
(3) If Y insults X, and X retaliates by hitting Y over the head with a stick, X may rely on
provocation as a defence.
 (4) If Y insults X’s girlfriend, and X’s girlfriend retaliates by insulting Y, X’s girlfriend may rely
on provocation.
(5) If Y insults X, and X retaliates by writing an insulting letter the following day and mailing it to Y, X
may rely on provocation.
 The basic premise in law is that damage rests where it falls.

(2) In South Africa the question of delictual liability is governed by a casuistic approach.
(3) The fact that a person has caused another to suffer damage is sufficient to constitute a delict for
which he or she may be held liable.
(4) In principle a distinction is made between delicts that cause personal injuries and those that cause
(5) The actio legis Aquiliae, actio iniuriarum and the action for pain and suffering cover the whole area
of delictual liability.
(1) Delictual remedies do not differ substantially from criminal sanctions.

 (2) Delictual remedies are compensatory in character.
(3) Criminal law is directed at maintaining private interests.
(4) One and the same act may not found delictual as well as criminal liability.
(5) Not all delicts are crimes, but all crimes may under suitable circumstances also give rise to
(1) The generally accepted classification of iniuriae in Roman law was that the actio
iniuriarum was applicable only to infringements of corpus and fama.
(2) In Roman law dignitas was a clearly delimited interest of personality.
(2) In contemporary law, the concept of dignitas refers only to dignity as an interest of
personality.
(4) The action for pain and suffering did not originate in Roman-Dutch law.
 (5) The action for pain and suffering did not originate in Roman law.
(1) An animal can act for the purposes of the law of delict.
 (2) If a person incites or orders an animal to cause harm to someone else, a human act is
present.
(3) Only willed behaviour constitutes conduct.
(4) Involuntary behaviour can exceptionally constitute conduct.
(5) Irrational conduct cannot be voluntary.

(1) The question of wrongfulness entails a three-pronged investigation.

(2) Violation of a norm is not a prerequisite for a finding of wrongfulness.
 (3) An act may be branded as wrongful only with reference to a harmful consequence.
(4) It is possible to act wrongfully towards an unborn person.
(5) The nasciturus fiction provides a solution for a delictual action in all instances where a child
suffered prenatal injuries.
(1) The boni mores test is always applied directly to establish wrongfulness.
 (2) Two practical applications of the boni mores are the principle that infringement of a
subjective right constitutes wrongfulness, and the principle that breach of a legal duty
constitutes wrongfulness.
(3) The boni mores criterion cannot be a supplementary criterion in determining
wrongfulness.
(4) The boni mores criterion is applied at a supplementary level in instances where a clear legal norm
or ground of justification is obviously applicable.
(5) The factual infringement of a legally recognised interest is always prima facie wrongful.
(1) The test to determine the wrongfulness of an omission is mainly of a subjective nature.
(2) The causing of pure economic loss is prima facie wrongful.
 (3) Unlawful competition usually gives rise to pure economic loss, but nevertheless the
wrongfulness of unlawful competition is determined with reference to the infringement of a subjective
right rather than the breach of a legal duty.
(4) There is a general legal duty in our law that one should prevent one’s omissions from
harming others.
(5) The existence of a legal duty is not determined with reference to the boni mores.
(1) A ground of justification is not a defence.

(2) A ground of justification is not a defence excluding wrongfulness.
(3) A ground of justification can be raised as a defence in a case of automatism.
 (4) A ground of justification is a norm indicating that an act which on the face of it appears to
be wrongful, is nevertheless reasonable.
(5) The generic term “grounds of justification” refers to all the defences available to
(1) If Y’s dog has rabies, and attacks X, X acts in private defence if he kills the dog.
(2) If Y’s dog has rabies, and attacks Z, X acts in private defence if he kills the dog.
(3) If Y’s dog has rabies, and attacks Y, X acts in private defence if he kills the dog.
(4) If Y’s dog has rabies, and attacks X’s dog, X exceeds the boundaries of necessity if he kills Y’s
dog.
 (5) If Z orders Y’s vicious dog to bite X, X acts in necessity if he kills the dog.
(1) A person need not fully understand what he is consenting to.

(2) Consent to bodily injury of a very minor nature is contra bonos mores.
(3) A forced consent is not always invalid.
 (4) Consent cannot be valid if the consent is contra bonos mores.
(5) A person may never consent to serious bodily injury.
41 When so-called open-ended delictual norms are given content in light of the basic values of
chapter 2 of the Constitution, this is known as:


 2. indirect application of the Bill of Rights
42 Mike’s cow eats and tramples George’s crops. Mike forgot to close the gate between his
1. actio de pauperie and actio legis Aquiliae

2. actio de pauperie and interdict
3. actio de pastu only
4. actio de pauperie only
 5. actio de pastu and actio legis Aquiliae
43 Koos inadvertently walks into an ablution facility for ladies and sees Brenda taking a
shower. Which remedy may be available to Brenda?

2. actio iniuriarum
 3. action for pain and suffering
44 Norman enters into a sexual relationship with Lex’s wife. Which remedy or remedies may
be available to Lex?
1. actio iniuriarum
 3. actio iniuriarum and action for pain and suffering
45 John and Peter bear a grudge against Greg and agree to teach him a lesson he will not
 2. joint and several liability
4. strict liability
5. risk liability
46 Prospective loss is best assessed in accordance with:
 the sum-formula approach

47 According to the following case liability of the media for defamation is based on
negligence:

 3. National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA)

48 Alex incites his dog to bite Charles. Charles kills the dog with his golf club. Alex institutes a
 private defence
2. necessity
3. provocation
49 The following case is regarded as authority for the proposition that killing of an innocent
person may be justified by necessity:
1. Kruger v Coetzee 1966 2 SA 428 (A)

 5. S v Goliath 1972 3 SA 1 (A)
50 The following case deals with the approach that wrongfulness consists in the breach of a
legal duty:
1. Kruger v Coetzee 1966 2 SA 428 (A)

 4. Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC)
51 Andrew inadvertently damages Ben’s violin. Which delictual action may be available to
Ben?
 1.actio legis Aquiliae

2. actio iniuriarum
4. actio de pastu
52 James employs electronic equipment to listen in on Karl’s telephone conversations. Which


 2. actio iniuriarum
3. action for pain and suffering and interdict
53 Mark inadvertently pushes over a ladder on which Chris is standing. Chris breaks an arm.

2. actio iniuriarum
 3. action for pain and suffering and actio iniuriarum
54 Jors allows Maans to fire some practice shots with his new pistol at an apple on Jors’s
1. private defence


3. provocation
 4. consent to the risk of injury
55 The principle dictating at what stage prospective loss must be claimed, is known as:

 2. the “once and for all” rule
56 According to the following case the onus is on the plaintiff to prove that the defendant

 2. Molefe v Mahaeng 1999 1 SA 562 (SCA)
57 The following case is regarded as authority for the proposition that killing a person to
 Ex parte Minister van Justisie: in re S v Van Wyk 1967 1 SA 488 (A)

58 Alex incites Bert’s dog to bite Charles. Charles kills the dog with his golf club. Bert
institutes a delictual claim against Charles. What defence may be available to Charles?
1. private defence
 2. necessity
3. provocation
 2. joint and several liability
4. strict liability
5. risk liability
60 When so-called open-ended delictual norms are given content in light of the basic values of
chapter 2 of the Constitution, this is known as:

 2. indirect application of the Bill of Rights



If X wrongfully and negligently infringes Y’s physical integrity, Y may consider using the
following remedy against X:

2. Actio iniuriarum
 3. Action for pain and suffering
4. Interdict
Which one of the following is incorrect?
1. An animal cannot act for the purpose of the law of delict.

 3. Behaviour must be willed to qualify as a voluntary act.
1. An epileptic seizure may cause a person to behave involuntarily and enable him to rely on
automatism.
2. A person may not rely on automatism if he intentionally created a situation in which he
behaves involuntarily.
 3. A person relying on sane automatism as a defence in a delictual case has the onus to
prove the automatism.
4. According to Van der Merwe and Olivier automatism does not exclude conduct in delict.
1. In principle the test for wrongfulness is objective in nature.

2. Subjective factors are usually irrelevant in the wrongfulness inquiry.
3. An improper motive may be relevant to the wrongfulness inquiry in delict cases.
 4. Knowledge that someone may be harmed is always irrelevant to the wrongfulness inquiry.

 2. the “once and for all” rule
Peter insults Thomas. Thomas immediately retaliates by insulting Peter. If Peter institutes a
delictual action for the infringement of his personality interests, Thomas may rely on the
following defence:

1. Necessity
2. Private defence
 3. Provocation
To prevent X from raping Y, Z hits X over the head with a blunt object. X suffers severe
concussion. If X institutes a delictual action against Z, Z may rely on the following defence:
1. Necessity
 2. Private defence
3. Provocation
X, brandishing a panga, orders Y to hand over her handbag. Y jumps on Z’s motorbike and
drives away. Y does not manage to change the gears, and after she has driven 5 kilometers the
engine burns out. If Z wishes to recover his repair costs from Y, she may rely on the following
defence:
 Necessity
2. Private defence
3. Statutory authority
Mike metes out corporal punishment to his employee, Phil. Mike told Phil that if he did not
submit to the corporal punishment, he would lose his job. If Phil institutes a delictual action
for the infringement of his personality interests, Mike may rely on the following defence:
1. Official command
3. Consent
 4. None of the above
While John is jogging, Nic’s dog chases him and bites him. John is admitted to the casualty
unit of a local hospital where he receives stitches and treatment for shock. It transpires that
Nic had forgotten to close the gate to his property, thus creating an opportunity for his dog to
roam the streets. John can institute the following action or actions against Nic:
1. Actio de pauperie only

 2. Actio de pauperie and Actio legis Aquiliae
3. Actio de pastu only
4. Actio de pastu and Actio legis Aquiliae
If X wrongfully and intentionally infringes one of Y’s personality interests, Y may consider
using the following remedy against X:

 2. Actio iniuriarum
4. Interdict
 If a person instructs a trained animal to cause harm, no conduct is present.

2. A university can act for the purpose of the law of delict.
3. Willed behaviour can qualify as voluntary conduct for delictual purposes.
4. An omission can qualify as voluntary conduct for delictual purposes.
1. Determining wrongfulness essentially entails a dual investigation.

2. In delict the wrongfulness of an act is determined with reference to its consequence.

 3. Applying the boni mores entails an ex ante balancing of interests.
4. The boni mores must be seen as the legal convictions of the legal policy makers of the community.
1. Subjective rights are characterised by a dual relationship.

2. Five categories of subjective rights are recognised.
3. Subjective rights are categorised with reference to the objects of the rights.
 4. Subjective rights have reached their end development and are fixed in number.
 Freedom of association
2. Aspects of personality
3. Acts and performances
4. Personal immaterial property
1. Halliwell v Johannesburg Municipal Council 1912 AD 659

2. Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 (A)
3. Minister van Polisie v Ewels 1975 3 SA 590 (A)
 4. Schultz v Butt 1986 3 SA 667 (A)
 the sum-formula approach

Peter insults Thomas. Thomas goes home, feeling very depressed. An hour later,
Thomasphones Peter and retaliates by insulting Peter. If Peter institutes a delictual action for
the infringement of his personality rights, Thomas may rely on the following defence:
1. Necessity
2. Private defence
3. Provocation
Stephen and Ivan are world-class chess players. In the course of a very stressful game of
chess, they are both on edge and rather aggressive. Stephen mutters under his breath that he
is going to punch Ivan’s nose if Ivan wins the game. Ivan retorts that Stephen is welcome to
try. Ivan wins the chess game and Stephen promptly punches Ivan, breaking Ivan’s nose. If
Ivan institutes a delictual claim for the infringement of his personality interests, Stephen may
rely on the following defence:
1. Private defence
2. Provocation
3. Consent
While Mark is away on vacation, George chases his cattle onto Mark’s land to graze there.
Mark returns to find his land overgrazed and trampled. Mark now has to buy fodder to feed his
horses. Mark can institute the following action or actions against George:
1. Actio de pauperie only

2. Actio de pauperie and Actio legis Aquiliae
3. Actio de pastu only

 4. Actio de pastu and Actio legis Aquiliae


Vir watter een van die volgende deliktuele remedies word skuld nie vereis nie?
1. aksie weens pyn en lyding.

 4. actio de pastu. (2)
Nellie besoek haar buurvrou, Jenny. Jenny se hond, Tinkerbelle, byt vir Nellie. Almal is geskok
aangesien Nellie dikwels daar besoek aflê en Tinkerbelle nog altyd ‘n baie goedgeaarde hond
was. Watter remedie of remedies kan tot Nellie se beskikking wees?
1. actio de pastu en actio legis Aquiliae.

3. actio de pastu.
 4. actio de pauperie. (2)
Watter een van die volgende stellings is verkeerd?
1. ‘n Deliktuele remedie is gerig op vergoeding, terwyl ‘n grondwetlike remedie gerig is op die

bevestiging, afdwinging, beskerming en vindikasie van fundamentele regte.
 2. Elke delik is ook gelyktydig ‘n grondwetlike regskending.
3. ‘n Duidelike onderskeid moet tussen ‘n grondwetlike regskending en ‘n delik gemaak word.
4. ‘n “Grondwetlike delik” is ‘n begrip wat ‘n geval beskryf waar die aantasting van ‘n
fundamentele reg per se ook op ‘n delik neerkom.
Watter een van die volgende stellings oor die verhouding tussen delik en kontrakbreuk is
korrek?
1. Een enkele handeling kan nie ‘n person gelyktydig ex contractu sowel as ex delicto
aanspreeklik stel nie.
2. Kontrakbreuk is histories formeel as deel van die deliktereg behandel.
3. Kontraktuele remedies is primêr op skadevergoeding of genoegdoening gerig.
 4. Delik en kontrakbreuk is altwee species van die genus ‘onregmatige optrede’ in die
privaatreg.
Jack,’n werknemer van meneer Brown, ’n boer, lewer mielies by ‘n winkel af. Hy stamp per
ongeluk mevrou Green se groentetafel met meneer Brown se afleweringswa om. As mevrou
Green suksesvol vir mnr Brown deliktueel aanspreek, sal hy die volgende opdoen:
 middellike aanspreeklikheid.
2. gesamentlike en afsonderlike aanspreeklikheid.
3. aanspreeklikheid gebaseer op medewerkende opset.
4. aanspreeklikheid gebaseer op medewerkende nalatigheid.

In watter een van die volgende sake het die hof die rol van die leerstuk van subjektiewe regte
ten opsigte van die onregmatigheidselement erken?
1. Kruger v Coetzee 1966 (2) SA 428 (A).

 2. Universiteit van Pretoria v Tommie Meyer Films 1977 (4) SA 376 (T).
3. S v Goliath 1972 (3) SA 1 (A).
4. Minister van Polisie v Ewels 1975 (3) SA 590 (A).
In watter een van die volgende sake het die hof aan ‘n jong seun vergoeding toegeken vir
emosionele skok wat hy opgedoen het by die aanskoue van sy jonger boetie se besering in ‘n
motorongeluk?
1. Kruger v Coetzee 1966 (2) SA 428 (A).

2. Jones v Santam Bpk 1965 (2) SA 542 (A).
 3. Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 .
4. Barnard v Santambank 1999 (1) SA 202 (HHA).
Watter een pas nie?
1. noodweer.
2. noodtoestand.
3. amptelike bevoegdheid.
 4. dwaling. (2)
Jors laat Maans toe om oefenskote met sy nuwe pistool na ‘n appel op Jors se kop te vuur. Die
tweede skoot maak ‘n gat in Jors se linkeroor. Jors stel ‘n deliksaksie teen Maans in.Maans
kan op die volgende verweer steun:
1. uitvoer van ‘n amptelike bevel

2. provokasie
 3. toestemming tot die risiko van benadeling
4. nie een van bogenoemde nie (2)
X, wat ‘n panga omhoog hou, beveel Y om haar handsak te oorhandig. Y spring op Z se

motorfiets en jaag weg. Sy slaag nie daarin om die ratte te verwissel nie, en nadat sy 5
kilometers gery het, is die enjin uitgebrand. As Z sy herstelkoste van Y wil verhaal, kan sy op
die volgende verweer steun:
 Noodtoestand
2. Noodweer
3. Amptelike bevel
4. Nie een van bogenoemde nie
Vir watter een van die volgende deliktuele remedies is dit nie nodig om skade te bewys nie?
2. actio de pauperie.
3. actio de pastu.
 4. interdik. (2)
Jacob luister heimlik Bella se gesprek met haar mansvriend Edward af. Watter remedie kan
dalk tot Bella se beskikking wees?
 actio iniuriarum.
2. actio de effusis vel deiectis.
3. interdik.
4. actio legis Aquiliae. (2)
Mark en Josef het ‘n grief teen Pieter aangesien hy die gewildste student in die universiteit is.
Mark en Josef beskadig Pieter se blink nuwe BMW deur dit met klippe te gooi en graffiti met

spuitverf daarop aan te bring. As Pieter suksesvol vir Mark en Josef deliktueel aanspreek, sal
hulle die volgende opdoen:
1. risiko-aanspreeklikheid.
2. middellike aanspreeklikheid.
 3. gesamentlike en afsonderlike aanspreeklikheid.
4. aanspreeklikheid gebaseer op medewerkende opset. (2)
In watter een van die volgende sake het die dader met noodweer as regverdigingsgrond
geslaag nadat hy ‘n haelgeweer in sy winkel opgestel het en sodoende die dood van ‘n
inbreker veroorsaak het?
 Ex parte Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488 (A).
2. Minister van Polisie v Ewels 1975 (3) SA 590 (A).
3. S v Mokgethi 1990 (1) SA 32 (A).
4. S v Goliath 1972 (3) SA 1 (A). (2)
X beledig vir Y. Y slaan onmiddellik terug deur vir X op die wang te klap. As X ‘n delikseis teen
Y instel, kan Y die volgende verweer opwerp:
1. provokasie.
2. noodweer.
3. noodtoestand.
 4. geeneen van bogenoemde nie. (2)
Mike dien sy werknemer, Phil lyfstraf toe. Mike het vir Phil ingelig dat as hy hom nie aan die
lyfstraf onderwerp nie, hy sy werk sal verloor. As Phil hom dan aan die straf onderwerp, maar
later ‘n delikseis vir persoonlikheidskrenking teen Mike instel, kan Mike die volgende verweer
opwerp:
1. Amptelike bevel
2. Statutêre bevoegdheid
3. Toestemming
 4. Nie een van bogenoemde nie (2)
Pieter beledig vir Thomas. Thomas gaan huis toe, diep teneergedruk. ‘n Uur later, bel Thomas
vir Pieter en kap terug deur vir Pieter te beledig. As Pieter ‘n delikseis vir die krenking van sy
persoonlikheidsregte wil instel, kan Thomas die volgende verweer opwerp:
1. Noodtoestand
2. Noodweer
3. Provokasie
 4. Nie een van bogenoemde nie (2)
X, wat ‘n jagmes omhoog hou, lig Y in dat as Y nie vir hom help om vir Z dood te maak nie, X
vir Y sal doodmaak. Y slaan X oor die kop met ‘n stomp voorwerp. X doen erge
harsingskudding op. As X ‘n delikseis teen Y instel, kan Y hom op die volgende verweer
beroep:
1. Noodtoestand
 2. Noodweer
3. Provokasie
4. Nie een van bogenoemde nie (2)
John wil op Chris, sy handelsmededinger, spioeneer. Vir hierdie doel installeer hy ‘n

afloerapparaat in die dak van die gebou waarin Chris sy besigheid bedryf. John moet ‘n gat in
die dak breek om dit reg te kry. Hy voorsien die moontlikheid dat reënwater nou kan insypel en
Chris se handelsware kan beskadig, maar versoen homself met hierdie moontlikhei . Na drie
dae het hy daarin geslaag om al Chris se handelsgeheime te wete te kom. Ten opsigte van die
skade aan die dak, het John:

1. dolus directus
 2. dolus indirectus
3. dolus eventualis
4. dolus indeterminatus (2)
Watter stelling is korrek? In S v Mokgethi 1990 1 SA 32 (A):
 was daar ‘n feitelike kousale verband tussen die afvuur van die skoot en die kassier se dood.
2. was daar ‘n juridiese kousale verband tussen die afvuur van die skoot en die kassier se dood.
3. het die hof die adekwate-veroorsakingsteorie gebruik.
4. het die hof al die bestaande juridiese kousaliteitsteorieë oorweeg en vir eens en altyd
verklaar watter een van hulle gevolg moet word. (2)







Die deliktuele remedie wat gebruik word om skadevergoeding te eis vir vermoënskade wat
onregmatig en nalatig veroorsaak is, is die:
 actio legis Aquiliae

2. actio iniuriarum
3. aksie vir pyn en lyding

4. interdik
Die deliktuele remedie waarmee ‘n solatium vir die opsetlike aantasting van ‘n
persoonlikheidsreg geëis word, is die:

 2. actio iniuriarum
4. interdik
Die deliktuele remedie wat gebruik word om die onregmatige veroorsaking van skade
te voorkom, is die:

2. actio iniuriarum
 4. interdik
Die deliktuele remedie wat gebruik word om vergoeding te eis vir nalatige aantasting van die
corpus, is die:

2. actio iniuriarum
 3. aksie vir pyn en lyding
4. interdik
n Deliktuele remedie waarmee skade voorkom kan word sonder om skade te bewys,is die:

2. actio iniuriarum
 4. interdik
Wanneer aan sogenaamde soepel deliksnorme inhoud gegee word in die lig van die basiese
waardes vervat in hoofstuk 2 van die Grondwet, staan dit bekend as:
1. direkte toepassing van die Handves van Regte

 2. indirekte toepassing van die Handves van Regte
3. vertikale toepassing van die Handves van Regte
4. ‘n grondwetlike delik
Die beginsel wat bepaal op watter stadium toekomstige skade geëis moet word, staan bekend
as:
1. die sommeskadeleer
 2. die “once and for all”-reël
3. voordeeltoerekening
4. mitigasie
Toekomstige skade word die beste bepaal aan die hand van:
 die sommeskadeleer
2. die “once and for all”-reël
3. voordeeltoerekening
4. mitigasie
Laster is in die eerste plek ‘n aantasting van ‘n persoon se:
1. liggaamlike integriteit

 2. goeie naam
3. privaatheid
4. gevoelslewe
As ‘n persoon kan onderskei tussen reg en verkeerd en sy handelinge

dienooreenkomstig kan inrig:
1. is hy of sy in ‘n toestand van outomatisme

2. kan hy of sy op ‘n regverdigingsgrond steun
3. het hy of sy opset
 4. is hy of sy toerekeningsvatbaar
Dui aan watter stelling oor deliktuele remedies korrek is.
 Die actio iniuriarum is gerig op "genoegdoening" vir onregmatige en opsetlike

aantasting van die persoonlikheid.
2. Opset is altyd 'n vereiste vir die actio legis Aquiliae.
3. Die Suid-Afrikaanse reg volg 'n kasuïstiese benadering in verband met deliktuele
aanspreeklikheid.
4. Privaatheidskending word in die praktyk as ‘n vorm van damnum iniuria datum
beskou.
Watter een van die volgende is nie ‘n vereiste vir die interdik nie?
1. Daar moet geen ander remedie vir die applikant beskikbaar wees nie.
2. Daar moet ‘n “clear right” wees.
3. Daar moet ‘n skending of ‘n dreigende skending van ‘n ‘clear right’ wees.
 4. Opset of nalatigheid moet teenwoordig wees.
Dui die korrekte stelling aan ten opsigte van die sameloop van deliktuele, straftegtelike en
kontraktuele aanspreeklikheid.
1. ’n Skadevergoedingsaksie is die primêre remedie by kontrakbreuk.

 2. Een enkele handeling kan die verweerder sowel deliktueel as kontraktueel
aanspreeklik stel.
3. Een enkele handeling kan nie deliktuele sowel as strafregtelike aanspreeklikheid
tot gevolg hê nie.
4. ’n Skadevergoedingseis is die sekondêre remedie ten opsigte van ’n misdaad.
Dui aan watter stelling oor die deliktereg en die Grondwet is verkeerd.
1. ‘n Skending van ‘n reg kan ‘n grondwetlike delik en ‘n onregmatige daad uitmaak.

2. Die vereistes vir ‘n onregmatige daad en ‘n grondwetlike delik verskil wesenlik.
3. ‘n Skending van ‘n reg kan nie ‘n grondwetlike delik en ‘n onregmatige daad
uitmaak nie.
 4. Indirekte toepassing beteken dat die staat in die algemeen fundamentele regte
moet respekteer en nie moet aantas nie.
Watter een van die volgende is ‘n vereiste vir ‘n geslaagde beroep op noodweer?
1. Daar moet skuld aan die kant van die aanvaller wees.
2. Die aanval moet teen die persoon wat in noodweer optree, gerig wees.
 3. Die aanval moet onregmatig wees.
4. Feitelike en juridiese kousaliteit moet teenwoordig wees.
Dui aan watter stelling in verband met opset is verkeerd.
1. Volgens Neethling en Potgieter is onregmatigheidsbewussyn ‘n vereiste vir opset.

 2. Dolus eventualis bestaan wanneer die dader een gevolg van sy optrede direk wil,

maar gelyktydig besef dat ‘n ander gevolg onvermydelik ook sal intree.
3. Slegs ‘n toerekeningsvatbare persoon kan met opset handel.
4. Dolus indeterminatus bestaan wanneer die dader se wil op die resultaat wat hy
bereik gerig is, sonder dat hy ‘n spesifieke persoon of voorwerp in gedagte het.
Watter van die volgende vereiste/s moet teenwoordig wees voordat provokasie as
verweer opgewerp kan word?
 Die optrede van die verweerder moet onmiddellik wees.

2. Die verweerder moet toerekeningsvatbaar wees.
3. Die verweerder moet nie tot die provokatiewe gedrag bygedra het nie.
4. 2 en 3 hierbo.
Watter een van die volgende is nie ‘n iniuria (skending van ‘n persoonlikheidreg) nie?
1. Laster.
 2. Nalatige wanvoorstelling.
3. Privaatheidskending.
4. Owerspel.
In watter een van die volgende remedies is dit nie nodig om skade te bewys nie?
 Interdik.
2. Actio de pastu.
3. Aksie weens pyn en lyding.
Vir watter een van die volgende remedies is skuld nie ‘n vereiste nie?
1. Aksie weens pyn en lyding.

 2. Actio de pauperie.

MAY/JUNE 2012
SECTION A : MULTIPLE-CHOICE QUESTIONS

AFDELING A : MULTIKEUSEVRAE
NB ANSWER THESE QUESTIONS ON THE MARK-READING SHEET!
(1) The delictual remedy used to claim damages for patrimonial loss caused wrongfully
and negligently Is the
@ actio legis Aquilae

actio inturiarum
3 action for pain and suffering
4 actio de pastu
5 interdict
(2)
(2) The delictual remedy used to obtain a solatium for intentional infringement of
personality rights is the
1 actio legis Aquiliae

@ actio imiuriarum
4 actio de pastu
5 interdict
(3) — The delictual remedy used to prevent wrongful causing of harm is the
actio legis Aquiliae

actio inlunarum
@..0-

actio de pastu
interdict
(2)
(4) The delictual remedy used to claim compensation for negligent infringement of the
corpus 1s the

2 actio imtuniarum
e} action for pain and suffering
4 actio de pastu
5 interdict
(2)

(5) When so-called open-ended delictual norms are given content in light of the basic
values of chapter 2 of the Constitution, this is known as

e indirect application of the Bill of Rights
3 vertical application of the Bill of Rights
4 horizontal application of the Bill of Rights
5 aconstitutional delict
(6) Jack breaks the expensive window of a rare sports car in order to steal a GPS device
inside the car In respect of the damage to the window, Jack has
1 dolus directus
@ dolus indirectus
dolus eventualis
4 dolus indeterminatus
5 no fault
(2)
(7) The principle dictating at what stage prospective loss must be claimed, is known as
the sum-formula approach

the ‘once and for all’ rule
compensating advantages
on ol
the concrete approach to damage

mitigation
(8) Prospective loss is best assessed in accordance with
® the sum-formula approach

2. the ‘once and for all’ rule
3 compensating advantages
4 the concrete approach to damage
5 mitigation
(9) Defamation Is tn the first place an infringement of a person's
1 bodily integrity
@ good name
3. privacy
4 identity
5 feelings

(10) Ifa person can differentiate between right and wrong and act in accordance with this
insight, he or she
Is in a state of automatism
can rely on a ground of justification
Ox wn
has intent
is negligent
Is accountable
(11) Alex takes Bert’s dog fora walk Alex sees his sworn enemy, Charles, and orders the
dog to attack Charles Charles whips out his pisto! and kills the dog with one shot Bert
institutes an action for damages against Charles Charles may raise the following
ground of justification
1 consent
2 provocation
necessity
eb. :: defence
5 none of the above
(2)
(12) Animportant development concerning the fault requirement in defamation cases took
place in
1 international Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A)

2 Molefe v Mahaeng 1999 1 SA 562 (SCA)
3. Boshoffv Boshoff 1987 2 SA 694 (O)
4 Castell v De Greeff 1994 4 SA 408 (C)
e National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA)
(13) Consent as a ground of justification in the field of medical interventions was dealt with
In
1 International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A)

3 Boshoff v Boshoff 1987 2 SA 694 (O)
Castell v De Greeff 1994 4 SA 408 (C)
5 National Media Lid v Bogoshi 1998 4 SA 1196 (SCA)
(2)
(14) The importance of the doctrine of subjective rights for the element of wrongfulness was
discussed in
e Universiteit van Pretona v Tommie Meyer Films 1977 4 SA 488 (A)

2 Minister van Polisie v Ewels 1975 3 SA 590 (A)
3. Ex parte Minister van Justisie in re S v Van Wyk 1967 1 SA 488 (A)
4 SvGolath 1972 3 SA 1 (A)
5 Kruger v Coetzee 1966 2 SA 428 (A)
(2)

(15) John and Peter bear a grudge against Greg and agree to teach him a lesson he will
not forget While Greg is in a shopping centre, John and Peter damage Greg’s motor
car by hitting it with hammers If Greg successfully sues John and Peter in delict, they
will incur
1 vicarious lability
e joint and several lability
3 liability based on contributory intent
4 © strict lability
5 risk hability
TOTAL SECTION A/ TOTAAL AFDELING A: [30]


NB : ANSWER THESE QUESTIONS ON THE MARK-READING SHEET!
The delictual remedy used to claim damages for patnmonial loss caused wrongfully
and negligently is the:

axon
actio intuniarum
actio de pastu
interdict
(2)
The delictual remedy used to obtain a solatium for intentional infringement of

personality rights is the

actio inunarum
O80

actio de pastu
interdict
(2)
The delictual remedy used to prevent wrongful causing of harm is the

2. actio inunarum
3 action for pain and suffering
4. actio de pastu
@ interdict
(2)

(4) The delictual remedy used to claim compensation for negligent infringement of the
corpus \s the

6 actio iniunarum
4 actio de pastu
5 interdict
(2)
(5) When so-called open-ended delictual norms are given content in light of the basic
values of chapter 2 of the Constitution, this is known as
é direct application of the Bill of Rights

indirect application of the Bill of Rights
3 vertical application of the Bill of Rights
4 horizontal application of the Bill of Rights
5 aconstitutional delict
{2)
(6) Jack breaks the expensive window of a rare sports car in order to steal a GPS device
inside the car In respect of the damage to the window, Jack has
e dolus directus
dolus indirectus
3. dolus eventualis
5 no fault
(2)
(7) The principle dictating at what stage prospective loss must be claimed, 1s known as

aaeia

mitigation
(2)
(8) Prospective loss ts best assessed in accordance with
@ the sum-formula approach

ahwnr
mitigation
(2)

(9) | Defamation is in the first place an infringement of a person’s.
1 bodily integrity
good name
3 privacy
4 identity
5 feelings
(2)
(10) ifaperson can differentiate between right and wrong and act in accordance with this
insight, he or she
Is in a state of automatism
can rely on a ground of justification
WD
has intent
is negligent
6 Is accountable
(2)
(11) Alex takes Bert’s dog for a walk Alex sees his sworn enemy, Charles, and orders the
dog to attack Charles. Charles whips out his pistol and kills the dog with one shot. Bert
institutes an action for damages against Charles Charles may raise the following
ground of justification:
1. consent
2 provocation
3 necessity
® private defence
§ none of the above
(2)
(12) Antmportant development concerning the fault requirement in defamation cases took
place in
1 Intemational Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A)

3 Boshoff v Boshoff 1987 2 SA 694 (O)
4 Castell v De Greeff 1994 4 SA 408 (C)
National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA)
(2)
(13) Consent as a ground of justification in the field of medical interventions was deatt with
in’
1. International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A)

Boshoff v Boshoff 1987 2 SA 694 (O)
Castell v De Greeff 1994 4 SA 408 (C)
5 National Media Ltd v Bogoshi 1998 4 SA 1196 (SCA)
(2)

(14) David's dog bites Max. Max suffers serious injury. David was not negligent in respect
of Max’s injuries, and Max did not provoke the dog in any way Max can use the
following remedy against David.
1 Apporttonment of damages
Actio de paupene
Actio de pastu
4 Interdict
5 Joint and several liability
(2)
(15) John and Peter bear a grudge against Greg and agree to teach him a lesson he will
not forget While Greg is in a shopping centre, John and Peter damage Greg's motor
car by hitting it with hammers If Greg successfully sues John and Peter in delict, they
will incur:
@ joint and several lability
liability based on contributory intent
4 © strict hability
5 risk liability
(2)
OCT/NOV 2013

AFDELING A: MULTIKEUSEVRAE
1 Indicate the correct statement with regard to delictual remedies
1 The actio intunarum \s directed at “satisfaction” for the wrongful and intentional injury
to personality
2 Intention Is always a requirement for the actio legis Aquiliae
3 South African law follows the casuistic approach with regard to delictual liability
4 “Invasion of privacy” in practice is considered as a form of damnum iniuria datum
(2)
2 Indicate the correct statement with regard to the concurrence of delictual, criminal and
contractual lability
A claim for damages 1s the pnmary remedy for breach of contract.

liable.
3 One and the same act cannot found delictual as well as cnminal hability
4 Adclaim for damages Is the secondary remedy in respect of a crime
(2)

3 Indicate the incorrect statement with regard to the law of delict and the constitution
1 Aninfnngement of a nght may constitute a constitutional wrong and a delict

2 The requirements for a delict and a constitutional wrong differ materially
3 Both a constitutonal remedy and a delictual remedy are aimed prmanily at
compensation
4 Direct application means that the state must generally respect fundamental nghts
and not infringe them
4 John's donkey attacks some of the employees on the farm Just as the donkey was about
to injure Charles (an employee), he shot and killed it with his nfle John institutes an
action for damages against Charles Charles may raise the following ground of
Justification
1 Necessity
Pnvate defence
3 Provocation
4 None of the above
(2)
5 Adnan insults Tumelo, who in retaliation slaps Adrian across the cheek. If Adnan
institutes a delictual action for the infnngement of his personality nghts, Tumelo may rely
on the following ground of justification
1 Necessity
2 Private defence
3 Provocation
4 None of the above
(2)
6 Jacob insults Karen, Julie’s frend Julie, who is angered by the insults, then insults
Jacob if Jacob institutes a delictual action for the infnngement of his personality nghts,
Julie may rely on the following ground of justification
1 Necessity
2 Private defence
Provocation
4 None of the above
(2)
7 Isaac purchases a ticket to a boat nde The ticket clearly states that the management of
the amusement park will not be held liable for any negligence on Its part As the nde
comes to a stop, the boat jerks due to a mechanical fault and |saac bumps his head
against the seat rendenng him unconscious When Isaac awakens, he decides to
Institute an action for damages against the management of the amusement park In order
to exclude or limit liability, the management may rely on
1 Consent to the nsk of injury

2 Contnbutory negligence
3 Official capacity
4 None of the above
(2)

8 Tumi, a captain of the South Afncan Police Service, orders David, a sergeant under his
command, to shoot and kill Gustav Tumi believes that Gustav is about to throw a hand
grenade into a shop Dawid shoots and wounds Gustav It later transpires that Gustav
merely wanted to blow his nose and that Tumi made a mistake. Gustav institutes a claim
against David David may rely on the following ground of justification:
Execution of an official command

Statutory authority
3 Official capacity
4 None of the above
(2)
Bester v Commercial Union Versekenngsmaatskappy van SA Bpk 1973 (1) SA 769 (A)
dealt with
@) Pure economic loss

2 Emotional shock (psychological lesions)
4 Unlawful competition
(2)
10. International shipping Co (Pty) Ltd v Bentiey 1990 (1) SA 680 (A) dealt with
1 Pure economic joss

2. Emotional shock (psychological lesions)
3 Negligent misrepresentation
(2)
11 Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Lid 1997 (2) SA
591 (W) deait with
1 Pure economic loss

2 Emotional shock (psychological testons)
(2)
12 Barnard v Santambank 1999 (1) SA 202 (SCA) dealt with

2. Emotional shock (psychological lesions)
(2)

13 Joseph plays tennis in his back yard He foresees the possibility of his ball breaking a
window in his neighbour's house, but decides that it will not happen. If the ball indeed
breaks the window, John had the following in respect of the damage
1 Dolus indeterminatus
2 Dolus eventuais
3 Dolus indirectus
Luxuna
(2)
14 Allan, an employee of Raymond, was on route to Rustenburg delivering bread when he

accidentally skipped a red robot and crashed into Mandla’s car If Mandla successfully
sues Raymond (as the employer) for the damage to his car, Raymond will incur
@ vicanous liability
2 Joint and several lability
3 Liability based on negligence
4 Risk jiability
(2)
15 Ben's bull tramples and eats Anne’s maize that she planted in her fields Which remedy
may be available to Anne?
1 Actio de paupene
Actio de pastu
3 Actio de effusis vel derectis
4 Actio de fers
(2)
MAY/JUNE 2014

1 Adam tells Bob that Charles, a well-known and married attorney, 1s having a secret affair
with his secretary Bob repeats this information to Donald, a reporter Donald writes an
article about this, and it 18 published in the local newspaper, The Event, with the
knowledge of Frank, the editor Which of the fotlowing options is the most correct?
1
Donald, The Event and Frank may incur liability with the acto imunarum
Adam, Donald, The Event and Frank may be incur lrability with the acto imunarum
Adam, Bob, Donald, The Event and Frank may incur liability with the acto imunarum
4 Bob, Donald, The Event and Frank may incur liability with the actio munarum

Indicate the correct statement with regard to the similarities and differences between
delictual, criminal and contractual liability
® A claim for damages Is the primary remedy for breach of contract

2 One and the same act may render the wrongdoer delictually as well as contractually
lrable
3 One and the same act cannot found delictual as well as criminal hability
4 Aclaim for damages is the secondary remedy in respect of a crime
Indicate the correct statement
1 Irrational human behaviour cannot constttute conduct for the purposes of the law of
deiict
2 Human behaviour must be willed to constitute conduct
3 The behaviour of an animal can constitute conduct under certain circumstances
The presence of a so-called acto libera in causa excludes the presence of
automatism
4 John’s prize buil breaks through a fence and ventures onto David’s farm The bull is
aggressive and charges at David's employees The employees clamber into a small tree
to escape the wrath of the bull The bull begins to bash the trunk of the tree As the tree
appears to be about to topple, David shoots and kills the bull to save his employees
John institutes an action for damages against David David may raise the following
@ Necessity
2 Private defence
3 Provocation
4 Official capacity
(2)
Adnan insults Tumelo, who tn retaliation slaps Adrian across the cheek If Adnan
institutes a delictual action for the infringement of his personality rights, Tumelo may rely
on the following ground of Justification
1 Necessity
2 Private defence
3 Provocation
(® None of the above (2)
6 Jacob insults Karen, Julie's friend Julie, who is angered by the insults, then insults
Jacob If Jacob institutes a delictual action for the infringement of his personality rights,
Julie may rely on the following ground of justification
1 Necessity
2 Private defence
Provocation
4 None of the above

7? Markus, a financial adviser, negligently advises Hans to make a bad investment Asa
result of this, Hans suffers a serious financial setback However, there is no damage to
Hans’s person or property Which one of the following delictual remedies may be
available if Hans wishes to recover his financral loss from Markus?
@ The actio legis Aquilae

2 The actio intunarum
3 The action for pain and suffering
4 None of the above
(2)
8 Gawie and Manie are farming on adjacent properties Gawie bears a grudge against
Manie He sets up a device, which causes a loud bang every half an hour, on the
common boundary between the two farms, near Manie’s homestead As a result of this,
Manie and his family cannot sleep at night and are irritated by day Manie asks Gawie to
dismantle the device, but Gawie says that the device serves the purpose of scaring
baboons away from his orchards Which delictual remedy may be available to Manie?
1 The actio de pauperne

2 The actio de fers
3 The acto de effusis vel deiectis
( The interaict
1 Accountability is one of the forms of fault

2 A person is accountable if he can differentiate between right and wrong and his
behaviour is susceptible to control of his will
Intoxication may influence accountability
4 A person is accountable if he directs his will at an unlawful result and ts also
conscious of the wrongfulness
40 Which ts the odd one out?
1The adequate causation theory

The sum-formula approach
3 Direct consequences
4 Normative foreseeability
11 Greater Johannesburg Transitional Metropolitan Counc v ABSA Bank Lid 1997 (2) SA
594 (W) dealt with
1 Consent to injury
2 Consent to the risk of Injury
(3) Contributory intention
4 Contributory negligence

12 Piet left his cell phone in his car Gert wants to steal Piet’s cell phone He realizes that he
would have to damage Piet's car in order to get the phone In respect of the damage to
the car, Gert has
Dolus eventualis
Dolus indirectus °
4 Luxuria
window In his neighbours house, but decides that it will not happen If the ball mdeed
breaks the window, John had the following in respect of the damage
2 Dolus eventuals
3 Dolus indirectus
4)Luxuna
14 Sean is employed by Raymond as a driver in Raymond’s courier business Sean has the
weekend off, and decides to visit Mary on Saturday evening On his way to Mary’s
apartment, Sean Is involved in an accident due to his own negligence Sean’s vehicle as
well as the vehicle of Catherine, the other motorist who 1s involved in the accident, 's
badly damaged Catherine discovers that Sean’s financial position ts not good Advise
Catherine on the best course of action
1 Institute an action against Raymond based on vicarious liability

2 Institute an action against Raymond and Sean as joint wrongdoers
3 Institute an action against Raymond based on culpa in eligendo ‘
é Institute an action against Sean
15 Ben clambers over Nell’s fence with the aim of breaking into Neil’s house Neil’s dog
attacks Ben and Ben sustains serious injuries Ben wishes to recover his hospital
expenses from Neil Which remedy may be available to Neil?
1 Actio de pauperie
2 Actio de pastu
3 Actio de fers
(@) None of the above
(2)
TOTAL SECTION A / TOTAAL AFDELING A: [30]

OCT/NOV 2014

1 Adam tells Bob that Charles, the mayor of the town, has ernbezzled money Bob repeats
this Information to Donald, a reporter Donald investigates and finds the information to be
true He whites an article about this, and it 1s published in the local newspaper, The
Event, with knowledge of Frank, the editor Which of the following options is the most
correct?
1 Donald, The Event and Frank will incur lability with the acto imunarum
2 Adam, Donald, The Event and Frank will incur liability with the actio imunarum
Adam, Bob, Donald, The Event and Frank will incur liability with the acto imunarum
cur liability with the actio iniunarum
(2)
2 Indicate the correct statement with regard to the similarities and differences between
delictual, cnminai and contractual liability
Da claim for damages ts the primary remedy for delict

2 itis not possible for one and the same act to render the wrongdoer delictually as well
as contractually liable
3 One and the same act cannot found delictual as well as cnmuinal liability
4 Aclaim for damages ts the primary remedy in respect of a crime
(2)
3. Indicate the correct statement
1 Irrational human behaviour cannot constitute conduct for the purposes of the law of
GER 0.: need not be willed to constitute conduct

3 The behaviour of an animal can constitute conduct under certain circumstances
@the presence of a so-called acto ibera in causa confirms the presence of automatism
(2)
4 John takes David's big and rather aggressive dog for a walk John incites the dag to
attack Garth The dog charges at Garth, but Garth shoots the dog and kills it If David
institutes a delictual action against Garth, on what ground of justification may Garth rely?
@Necessity
Private defence
Provocation
4 None of the above
(2)

5 Adrian insults Tumelo, who in retahation slaps Adnan across the cheek If Adrian
mstitutes a delictual action for the infringement of his personality nghts, Tumelo may rely
1 Necessity
2 Private defence
3 Provocation
None of the above
(2)
6 Jacob 's training to be a tattoo artist He asks Karen whether he can practice his newly
acquired skills on her Karen enquires whether she will be able to remove the tattoo by
washing, and Jacob replies in the affirmative Thereupon Karen Is willing te comply, and
Jacob makes a butterfly tattoo on Karen’s arm When Karen discovers that the tattoo ts
permanent, she wants to institute a delictual action against Jacob Jacob may rely onthe
following ground of justification
1 Necessity
2 Official authority
3 Consent
(2)
7 Markus, a financial adviser, negligently advises Hans to make a bad investment Asa
available if Hans wishes to recover his financial joss from Markus?
a The actio legis Aquilae

2 The actio imunarum
4 None of the above
(2)
Manie and his family cannot sleep at night and are irntated by day Manie asks Gawie to
1 The actio dé paupene

2 The actio de fens
3 The actio de effusis vel deiectis
® The interdict
(2}

1 Accountability 1s one of the forms of fault

2 A person is accountable if he can differentiate between right and wrong and his
eux. Is susceptible to control of his will
ion may influence accountability
4 A person is accountable if he directs his will at an unlawful result and is also
conscious of the wrongfulness
(2)
erson
The once-and-for-atl rule
3 Foreseeability of harm
4 Preventaoility of harm
(2)
11 Ben's bull tramples and eats Anne’s maize thai she planted in her fields Which remedy
may be available te Anne?
1 Actio de pauperie
Actio de pastu
3 Actio de effusis vel deiectis
4 Actio de feris
(2)
MISSING
MAY/JUN 2015

1 Ifpatrimonial loss ts caused in a negligent manner, the most appropriate delictual remedy
to consider Is
a The actio legis Aquiliae

2. The actio miunarum
3. The action for pain and suffering
4 None of the above
(2)
2 if bodily injury Is caused in a negligent manner, the most appropriate delictual remedy to
consider ts
1. The actio legis Aquiliae

The actio iniunarum
The action for pain and suffering
4 None of the above
(2)

3 If the dignity of a person Is infringed in a negligent manner, the most a i i

remedy to consider Is- Ppropriate delicval
1 The actio legis Aquiliae

The acto inunarum
4 None of the above
(2)
4. If a domestic animal has caused harm to a person and the owner of the animal was not
negligent, the most appropnate delictual remedy to consider (s°
The actio legis Aquilae

The actio de pauperie
3. The actio de pastu
4 None of the above
(2)
5 The most suitable remedy for the prevention of harm ts

The actio de effusis vel deiectis
The interdict
4 Mitigation of loss
(2)
6 Which statement is incorrect?
@) only an act or omission that has been willed, can give rise to delictual liability
2 An actor an omission thatis irrational or inexplicable may give nse to delictual liability
delict
t for the purpose of the law of delict
(2)
7 Adam tells Bob that Charles, a well-known and mared attorney, is having a secret affair
with his secretary Bob repeats this information to Donald, a reporter Donald writes an
article about this, and itis published in the local newspaper, The Event, with knowledge of
Frank, the editor Which of the following options ts the most correct?
4 Donald, The Event and Frank may incur liability with the actio miunarum.
2 Adam, Donald, The Event and Frank may be incur liability with the acto infunarum
Adam, Bob, Donald, The Event and Frank may incur liability with the actio iniunarum.
Bob, Donald, The Event and Frank may incur liability with the actio iniunarum.
(2)

8 John’s prize bull breaks through a fence and ventures onto David's farm The bull ts
aggressive and charges at Davic’s employees The employees clamber into a small tree
to escape the wrath of the bull The bul! begins to bash the trunk of the tree. As the tree
appears to be about to topple, David shoots and kills the bull to protect his employees.
John institutes an action for damages against David David may raise the following
ground of justification’
Giecessty
rivate defence
3 Provocation
4 Official capacity
(2)
9 Adnan insults Tumelo, who in retaliation slaps Adrian across the cheek. If Adrian
1 Necessity
2 Private defence
3 Provocation.
None of the above
e (2)
40 Jim insults Karen, Jule’s friend Julie, who ts angered by the insults, then insults Jim If
Jim institutes a delictual action for the infringement of his personality nghts, Julie may rely
1 Necessity
2 Private defence
Provocation
None of the above
(2)
11 Markus, a financial adviser, negligently advises Hans to make a bad investment. As a
(A) The actio legis Aquiliae

2 The actio iniunarum
4 None of the above.
(2)
Mane and his family cannot sleep at night and are irritated by day. Manie asks Gawie to
1 The actic de paupene

2 The actio de fens
3 The acto de effusis vel deiectis
(® The interdict
(2)

43 Which one of the following statements ts correct?
Accountability is a prerequisite for fault

A person is accountable if he can differentiate between nght and wrong and his
behaviour ts susceptible to control of his will
3 Intoxication cannot influence accountability
4. A person is accountable if he directs his will at an unlawful result and is also
conscious of wrongfulness
(2)
144 Which is the odd one out?
The adequate causation theory

3 Direct consequences
4 Normative foreseeability.
(2)
15 Greater Johann esburg Transitional Metropolitan Council v ABSA Bank Ltd 1 997 (2) SA
591 (W) dealt with
1 Consent to injury
Consent to the nsk of injury
Contributory intention
(2)
16 Pret left his cell phone in his car Gert wants to steal Piet's cell phone He realizes that he
would have to damage Piet’s car in order to get the phone In respect of the damage to
the car, Gert has
2 Dolus eventuais
(3 Dolus indirectus
4. Luxuria
(2)
a
17 Joseph plays tennis in his back yard He foresees the possibility of his ball breaking
window In his neighbour 's house, but decides that it will not happen If the ball indeed
breaks the window, Joseph had the following in respect of the damage
4 Dolus indeterminaius
2 Dolus eventualis
3 Dolus indirectus
@ Luxuna
(2)

18 Sean is employed by Raymond as a driver in Raymond's couner business Sean has the
weekend off, and decides to visit Mary on Saturday evening On his way to Mary’s
apartment, Sean ts involved in an accident due to his own negligence Sean's vehicle and
the vehicle of Catherine, the other motonst involved in the accident, are badly damaged
Catherine discovers that Sean’s financial position is not good Advise Catherine on the
best course of action’

3 Instrtute an action against Raymond based on culpa i eligendo
stitute an action against Sean
(2)
19 Ben clambers over Neil's fence
’ with the aim of breakin g into Neil’s? house Neil'sp do
attacks Ben and Ben sustains senous injunes Ben wishes to recover his hospital
expenses from Neil Which remedy may be available to Ben?
1 Actio de paupene.
2 Actio de pastu
3 Actio de fens
4 None of the above
(2)
Oe ae
20. Phil's bull tramples
ee an
and eats Anne’s maize that she Pp planted d ini her fields Which
i remedy may
1 Actio de paupene
Actio de pastu
. Actio de effusis vel derectis
4 Actio de feris
(2)
21 Whats the cntenon for determining factual causation?
+. Actio ibera in causa

2 Novus actus interveniens
Conditio sine qua non
4 The flexible approach
(2)
22 Jacob ts training to be a tattoo artist. He asks Karen whether he can practice his newly
washing, and Jacob replies in the affirmative Thereupon Karen Is willing to comply, and
Jacob makes a butterfly tattoo on Karen’s arm When Karen discovers that the tattoo Is
permanent, she wants to institute a delictual action against Jacob Jacob may rely on the
following ground of justification”
1 Necessity.
2 Official authonty
3. Consent
4 None of the above
{2)

23 The pnncipie dictating at what stage prospective loss must be claimed, 's known as
1 The sum-formula approach
he ‘once and for all’ rule
3 Compensat ing advantages.
4 The concrete approach to damage
(2)
24 Prospective loss is best assessed in accordance with
@ The sum-formula approach

2 The ‘once and for all’ rule
3 Compensating advantages
(2)
forget While Greg is in a shopping centre, John and Peter damage Greg's motor car by
hitting it with hammers. If Greg successfully sues John and Peter in delict, they will incur.
Vicarious liability
Joint and several liability
4 Strict lability
(2)
OCT/NOV 2015
OktoperNovember 4uU1a
SECTION A - MULTIPLE-CHOICE QUESTIONS

{ NB ANSWER THESE QUESTIONS ON THE MARK-READING SHEET!
QUESTION 1 / VRAAG 1
Which one of the following is not described as one of the pillars of our law of delict?
1 The actio legis Aquilae

2 The actio :munarum
The interdict (2)
Which one of the following conditions may amount to automatism?
1 Provocation
2 Self-defence
Necessity
Hypnosis (2)

QUESTION 3/ VRAAG 3
Which one of the following acts amounts to an omission (omissio) on the part of the defendant?
1 X burns the overgrown grass on his property It is a windy day and the fire spreads quickly and
unconirollably and burns his neighbours’ crops
A good swimmer passes by a pubiic swimming pool He sees a child drowning but simply ignores
the incident as he does not want to be late for his date
Y 1s insulted by A and retaliates by slapping A across the face A’s spectacles break and splinters
pierce his eyes
ptic fit while driving her vehicle She causes an accident in which B’s vehicle ts
badly darmaged C has not been diagnosed with epilepsy before this event (2)
Choose the correct statement In Carmichele v Miruster of Safety and Security (Centre for Apphed Legal
Studies intervening) 2001 (4) SA 938 (CC) the Constitutional Court
1 recognised a claim for Constitutional damages
a
noted that the law of delict admirably reflected the spirit, purport and object of the Bill of Rights
declared that the courts of lower instance had erred by applying a pre-constitutional concept of the
boni mores
4 recognised the concept of a Constitutional delict {2)
QUESTION 5/ VRAAG 5
Choose the correct statement
1 The onus to prove sane automatism ts on the defendant

Reliance on sane automatism will not succeed in instances of actio libera in causa
Sane automatism |s a ground of justification
4 Reliance on sane automatism will succeed if the defendant is negligent with regard to his or her
automatic body movements (2)
The present approach to factual causation was set out in
1 Ex parte die Minister van Justisie In re S v Van Wyk 1967 (1) SA 488 (A)
Minister van Polisie v Ewels 1973 (3) SA 590 (A)
S v Mokgetht 1990 (1) SA 32 (A)
4 S v Goliath 1972 (3) SA 1 (A) (2)
Adam telis Bob that Charles, a well-known and married attorney, is having a secret affaur with his
secretary Bob repeats this information to Danald, a reporter Donald writes an article about this, and it is
published tn the local newspaper, The Event, with knowledge of Frank, the editor Which of the following
options 1s the most correct?
1 Donald, The Event and Frank may mcur lability with the actio intunarum
2 Adam, Donald, The Event and Frank may incur Irability with the actio imunarum
Adam, Bob, Donald, The Event and Frank may incur lability with the acto munarum
4 Bob, Donald, The Event and Frank may incur lability with the acto munarum (2)

QUESTION 8/ VRAAG 8
Indicate which statement !s incorrect
1 Fault on the part of the aggressor ts not a requirement for private defence
2 The attack need not be directed at the defendant for a reliance on private defence to succeed
3 An incited animal may act for purposes of an attack giving rise to private defence
imminently threatening attack may suffice for private defence (2)
Dr Lucas, a well-known obstetrician, delivered Nicole's daughter, Mandy In the course of delivery the
nerves in Mandy's right shoulder were injured and this resulted in paralysis of her arm All of this
happened because Dr Lucas failed to inform Nicole of the potential complications inherent in delivering a
large baby Indicate the most correct statement The conduct of Dr Lucas will be assessed according to
1 the reasonable doctor test

2 the reasonable person test
3 the reasonable man test
4 the reasonable obstetrician test (2)
Mary enjoys a swear word more frequently than anyone else in her neighbourhood Her family and close
relatives have gotten used to her unusual ways and often just dismiss her as being silly On the occasion
of her recent birthday celebration Mary was in her element She took a particular liking to her cousin,
Martin, addressing him in her normal unsavoury manner Martin responded by insulting Mary Mary now
wishes to sue Martin Which ground of justification may Martin raise?
1
Necessity
2 Private defence
cy Provocation
4 Fair comment (2)
Markus, a financial adviser, negligently advises Hans to make a bad investment As a result of this, Hans
suffers a serious financial setback However, there is no damage to Hans's person or property Which
one of the following delictual remedies may be available if Hans wishes to recover his financial loss frorn
Markus?
@ The acto legis Aquilae

2 The actio munarum
4 None of the above (2)
Gawie and Manie are farming on adjacent properties Gawe bears a grudge against Manie He sets up a
device, which causes a loud bang every half an hour, on the common boundary between the two farms,
near Mante's homestead As a result of this, Mane and his family cannot sleep at night and are irritated
by day Mane asks Gawie to dismantle the device, but Gawie says that the device serves the purpose of
scaring baboons away from his orchards Which delictual remedy may be available to Mane?
1 The actio de pauperie

2 The acto de fens
e The actio de effusis vel derectis
4 The interdict (2)

Vn WWOVIWUVGINUG! CUTS
QUESTION 13/ VRAAG 13
Carl, 17, left his PlayStation in his locker at school James, 15, wants to steal Carl’s PlayStation He
realizes that he would have to damage Carl’s locker in order to get the PlayStation In respect of damage
to the locker James has
1 Dolus directus
@ Dolus indirectus
3 Dolus eventualis
4 None of the above (2)
Which one of the following qualifies as private detence?
1 John’s vicious dog charges to attack Zain To protect tymself Zain picks up a baseball bat and
gives the dog a blow to the head
Brian threatens Wilma with a knife and robs her of her cell phone After 3 months, Wilma sees
Brian at a shopping centre and reacts by stabbing Brian with a high heeled shoe
@ An infans points a firearm at you and you grab his arm to prevent him from shooting you The
infans sustains injuries to his arm
4 A police officer arrests Liam in the execution of a legitimate warrant of arrest Liam resists the
arrest He jabs the policeman, cracking one of the policeman’s ribs, in an attempt to escape (2)
Neil 1s chased by a fierce Jersey bull and jumps onto Gonrad’s scooter, which Is parked next to the road,
In order to race away and save his own life The scooter is damaged and Conrad institutes a delictual
claim against Net! Neil may raise the following ground of justification
1 Private defence
2 Necessity
3 Provocation
4 Official capacity (2)
In Greater Johannesburg Transitional Metropolitan Council vy ABSA Bank Ltd Va Volkskas Bank 1997 (2)
SA 691 (W) the court held that
@ a defence of contributory intention could succeed where both the plaintiff and the defendant acted
with intention
2 a person is guilty of negligence if his conduct falls short of that of the standard of the dilgens
paterfamilias
3 for the purposes of the law of delict intent and neghgence may be present simultaneously
4 there ts no single criterion for egal causation which 1s applicable in all instances (2)
NIUE
Which of the following best describes what ts meant by “psychological lesion”?
1 pure economic loss

2 negligent misrepresentation
@ emotional shock
4 infringement of the right to identity (2)

Sean is employed by Raymond as a driver in Raymond’s courier business Sean has the weekend off,
and decides to visit Mary on Saturday evening On his way to Mary's apartment, Sean 's involved in an
accident due to his own negligence Sean’s vehicle and the vehicle of Catherine, the other motorist
involved in the accident, are badly damaged Catherine discovers that Sean’s financial position is not
good Advise Catherine on the best course of action

3 Institute an action against Raymond based on culpa in eligendo
e@ Institute an action against Sean (2)
Ben clambers over Nell’s fence with the aim of breaking into Neil's house Neil's dog attacks Ben and
Ben sustains serious injuries Ben wishes to recover his hospital expenses from Neil Which remedy may
be available to Ben?
1 Actio de pauperie
2 Actio de pasiu
3 Actio de feris
G@ None of the above (2)
Phil's bull tramples and eats Anne's maize that she planted in her fields Which remedy may be available
to Anne?
i Actio de paupene
@ Actio de pastu
3 Actio de effusis vel detectis
4 Actio de feris (2)
VRC USI! GUT
What Is the criterion for determining factual causation?
1 Actio Iibera in causa

2 Novus actus interveniens
@ Conditio sine qua non
The flexible approach (2)
Jacob ts training to be a tattoo artist He asks Karen whether he can practice his newly acquired skills on
her Karen enquires whether she will be able to remove the tattoo by washing, and Jacob replies in the
affimatwve Thereupon Karen 1s willing to comply, and Jacob makes a butterfly tattoo on Karen’s arm
When Karen discovers that the tattoo is permanent, she wants to institute a delictual action against
Jacob Jacob may rely on the following ground of justification
1 Necessity
2 Official authority
3 Consent
None of the above (2)

The principle dictating at what stage prospective loss must be claimed, Is known as

@ The ‘once and for all’ rule
4 The concrete approach to damage (2)
Prospective loss is best assessed in accordance with

aon@
The ‘once and for all’ rule

Compensating advantages
The concrete approach to damage (2)
John and Peter bear a grudge against Greg and agree to teach him a lesson he witl not forget While
Greg is in a shopping centre, John and Peter damage Greg's motor car by hitting it with hammers If
Greg successfully sues John and Peter in delict, they will incur
1 Vicarious tlability
e@ Jomt and several iiability
3 Liabilrty based on contributory intent
4 Strict hability (2)
TOTAL SECTION A / TOTAAL AFDELING A [50]
MAY/JUNE 2016
SECTION A: MULTIPLE-CHOICE QUESTIONS

QUESTION 1/ VRAAG 1
The appropriate delictual remedy to claim compensation for the negligent infringement of bodily integrity
Is
1 the actio legis Aquilae

2 the actio imurarum
6 the action for pain and suffering
4 the interdict (2)

One night, while staying in a seaside hotel, Peter gets out of bed and walks in his sleep. He only wakes
up as he bumps into an expensive reading lamp and it falls crashing to the floor The hotel management
wants to hold Peter delictually liable for the damage. What defence can Peter raise?
1 consent
e@ automatism
3 absence of accountability
4 no defence 1s available (2)
QUESTION 3/ VRAAG 3
Which one of the following acts amounts to an omission (omssio) on the part of the defendant?
1
X burns the overgrown grass on his property It is a windy day and the fire spreads quickly and
uncontrollably and burns his neighbours’ crops
A good swimmer passes by a public swimming pool He sees a child drowning but simply ignores
the incident as he does not want to be late for his date
¥ ts insulted by A and retaliates by slapping A across the face A's spectacles break and splinters
Pierce his eyes
C suffers an epileptic fit while driving her vehicle She causes an accident in which B's vehicle Is
badly damaged. C has not been diagnosed with epilepsy before this event (2)
Choose the correct statement In Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies intervening) 2001 (4) SA 938 (CC) the Constitutional Court
1 recognised a claim for constitutional damages

2 noted that the law of delict admirably reflected the spirit, purport and object of the Bill of Rights
3 declared that the courts of lower instance had erred by applying a pre-constitutional concept of the
bon mores
4 recognised the concept of a constitutional delict (2)
QUESTION 5/ VRAAG 5
Choose the correct statement
1 The onus to prove sane automatism ts on the defendant

2 Reliance on sane automatism will not succeed in instances of actro Itbera in causa
3 Sane automatism Is a ground of justification
4 Rehkance on sane automatism will succeed if the defendant is neghgent with regard to hrs or her
automatic body movements (2)
Negligence of a child wrongdoer ts determined with reference to

1 the reasonable person standard
@ the reasonable child standard
3 the reasonable expert standard
4 none of the above (2)

Adam tells Bob that Charles, a well-known and married attorney, is having a secret affair with his
secretary Bob repeats this information to Donald, a reporter Donald writes an article about this, and itis
published tn the local newspaper, The Event, with knowledge of Frank, the editor Which of the following
options is the most correct?
1 Donald, The Event and Frank may incur lability with the actio inmurarum
2 Adam, Donald, The Event and Frank may incur liability with the acto inuriarum
3 Adam, Bob, Donald, The Event and Frank may incur hability with the acto miunarum.
4 Bob, Donald, The Event and Frank may incur lability with the acto injunarum {2)
QUESTION 8/ VRAAG 8
Indicate which statement Is Incorrect
Fault on the part of the aggressor Is not a requirement for private defence
The attack néed not be directed at the defendant for a reliance on private defence to succeed
a
An incited animal may act for purposes of an attack giving rise to private defence
An immunently threatening attack may suffice for private defence (2)
QUESTION 9 / VRAAG $
Dr Lucas, a well-known obstetrician, delivered Nicole's daughter, Mandy In the course of delivery the
nerves in Mandy's right shoulder were injured and this resulted in paralysis of her arm All of this
happened because Dr Lucas failed to inform Nicole of the potential complications inherent in delivering a
large baby Indicate the most correct statement Whether Dr Lucas was negligent, will be assessed
according to
@ the reasonable doctor test

2 __ the reasonable person test
3 the reasonable man test
4 the reasonable obstetrician test {2)
Johnny, an intelligent 13-year old boy, inadvertently breaks a priceless vase in Mr Khumalo’s house For
the purpose of delictual liability, Johnny ts
1 accountable
2 culpae incapax.
3 rebuttably presumed to be culpae incapax
e rebuttably presumed to be culpae incapax (2)
While repairing a stormwater drainage system, workers of the M municipality negligently sever an
electricity cable that supplies electricity to the F factory The F factory suffers production losses and
loses several long-standing clients due to its inability to delver products on time However, the severed
cable ts not the property of the F Factory In fact, there is no damage to any property of the factory, and
no employee of the factory ts injured Which one of the following delictual remedies may be available if
the F factory wishes to recover tts loss from the M Municipality?
(the acto legis Aquitae

2 the actio intunarum
3 the action for pain and suffering

Gareth and Max are neighbours They had a big quarrel years ago and have been enemies ever since
Gareth plants a row of deciduous trees on the common boundary between the two properties, with the
sole purpose to make leaves fall constantly into Max's swimmmg pool Gareth told his other neighbour,
David, that he only wishes to make Max's life miserable Which delictual remedy may possibly be
available to Max?
the actia de paupene

the actio de feris
PON
the actio de effusis vel derectis

the interdict (2)
Carl, 17, left his PlayStation in his locker at school James, 15, wants to steal Carl's PlayStation He
realizes that he would have to damage Carl's locker in order to get the PlayStation In respect of damage
to the locker James has
1 dolus directus
e@ dolus indirectus
3 dolus eventualis
4. luxuna (2)
Which one cf the following qualifies as private defence?
1 John's vicious dog charges to attack Zain To protect himself Zain picks up a baseball bat and
gives the dog a blow to the head
Bran threatens Wilma with a knife and robs her of her cell phone Aiter 3 months, Wilma sees
Brian at a shopping centre and reacts by stabbing Bran with a high heeled shoe
3 A 15-year old boy points a firearm at you and you grab his arm to prevent him from shooting you.
The boy sustains mnjurtes to hrs arm
4 A police officer arrests Liam in the execution of a legitmate warrant of arrest Liam resists the
arrest He jabs the policeman, cracking one of the policeman’s ribs, in an attempt to escape (2)
Neil is chased by a mob of armed robbers He jumps onto Conrad’s scooter, which is parked next to the
road, in order to race away He escapes, but the scooter is damaged as a result of fis wild driving
Conrad institutes a delictual claim against Neil Neil may raise the following ground of justification
1 private defence
® necessity
3 provocation
4 official capacity (2)

In Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Voikskas Bank 1997 (2)
SA 691 (W) the court held that
1 a defence of contributory intention could succeed where both the plaintiff and the defendant acted
with intention
2 a person ts guilty af negligence if his conduct falls short of that of the standard of the diligens
paterfamilias
3 for the purposes of the law of delict, intent and negligence may be present simultaneously
4 there Is no single criterion for legal causation which 1s apphcable tn all instances (2)
Which of the following concepts 1s best described as “patnimonial loss without injury to person or
property"?
pure economic loss
2 product liability
3 emotional shock.
Sean is employed by Raymond as a driver in Raymond's courier business Sean has the weekend off,
and decides to visit Mary on Saturday evening On his way to Mary’s apartment, Sean ts involved in an
accident due to his own negligence Sean's vehicle and the vehicle of Catherine, the other motorist
involved in the accident, are badly damaged Catherine discovers that Sean’s financial position 1s not
good Advise Catherine on the best course of action
1
Institute an action against Raymond based on vicarious lrabilty
Institute an action against Sean (2)
Ben clambers over Nels fence with the aim of breaking into Nel’s house Nel’s dog attacks Ben and Ben
sustains serious injuries Ben wishes to recover his hospital expenses from Nel Which remedy may be
available to Ben?
1 actio de paupere
2 actic de pastu
3 actio de feris
Phils bull tramples and eats Anne’s maize that she planted in her fields Which remedy may be available
to Anne?
1 actio de pauperie
e 3
acto de pastu
actio de effusis vel derectis
4 actio de feris (2)

Which of the following is the odd one out, with reference to the element of fault?
a actio imuniarum
actio de pastu
3 acto de paupene
4 vicarious liability. (2)
Jacob is training to be a tattoo artist He asks Karen whether he can practice his newly acquired skills on
her Karen enquires whether she will be able to remove the tattoo by washing, and Jacob replies in the
affirmative Thereupon Karen is willing to comply, and Jacob makes a butterfly tattoo on Karen’s arm
When Karen discovers that the tattoo is permanent, she wants to institute a dehctual action against
Jacob Jacob may rely on the following ground of justification
necessity
officral authority
oh
consent
none of the above (2)
&
The principle dictating at what stage prospective loss must be claimed, is known as

e the ‘once and for all’ rule
4 the concrete approach to damage (2)
@ the sum-formula approach

2 the ‘once and for all’ rule
3 compensating advantages.
4 the concrete approach to damage (2)
Themba and Thabo make a fire and neglect to put it out The frre spreads to Lindiwe’s flower-garden and
all the flowers die Lindiwe would have sold the flowers to a cut-flower market and she suffers a
substantial loss of income if Lindiwe successfully sues Themba and Thabo tn delict, they will incur
vicarious liability
joint and several lability
~ 9p
lrability based on contributory intent.

hability based on contributory negligence


1 Mary moves into a new apartment on the fourth floor While cleaning her apartment, she
throws a non-functional computer out through the window. The computer causes
damage to Bnan’s vehicle. Bran wishes to institute a delictual action With which remedy
Is he most likely to succeed?
The actio legis Aquiliae.

The acto imuriarum
4. The actio de effusis vel detectis
(2)
2 Which one of the following is not a requirement for the granting of an interdict?
1 There must be an act (or threatening act) by the respondent

2. The act (or threatening act) must be wrongful
3 The act (or threatening act} must be negligent
4 No other suitable remedy must be available to the applicant
(2)
3 If the dignity of a person ts infringed in an intentional manner, the most appropriate
delictual remedy ts:

. The actio inturiarum
4 None of the above
(2)
4 Cecti the lion escapes from a nature reserve The boundary fence of the reserve has been
damaged a month ago but the game rangers have not repaired it Cecil wanders onto
Tsepho's farm and kills five head of cattle Tsepho would like to institute a delictual claim
Whith which remedy is he most likely to succeed?
@ The actio legis Aquilae.

. The actio de pauperie.
3 The actio de pastu.
4. The actio de feris
(2)
5 The most suitable remedy for the prevention of harm is
1 The acto legrs Aquiliae

The actio de effusis vel deiectis
The interdict
(2)
6. Which statement ts incorrect?
1 Only an act or omission that has been willed, can give rise to delictual lability
2 An act or an omussion that is irrational or inexplicable may give rise to delictual liability
3 The behaviour of an animal can never qualify as conduct for the purpose of the law of
delict
4, Acompany can act for the purpose of the law of dehict
(2)

7 Adam tells Bob that Charles, a quiet and very reserved computer scientist, is having a
secret affair with an unmarried receptionist Bob repeats this information to Donald, a
reporter Donald writes an article about this, and it is published tn the local newspaper,
The Event, with knowledge of Frank, the editor Which of the following options ts the
most correct?
1 Donald, The Event and Frank may incur lability with the acto munarum.
2 Adam, Donald, The Event and Frank may be incur tiability with the acto iniunarum
3 Adam, Bob, Donald, The Event and Frank may incur liability with the actio
imurrarum
(2)
aggressive and charges at David’s employees The employees clamber into a small tree
to escape the wrath of the bull. The bull begins to bash the trunk of the tree As the tree
appears to be about to topple, David shoots and kills the bull to protect his employees
John institutes an action for damages against David David may ratse the following
ground of justification.
@ Necessity
2 Private defence
3. Provocation
4 Official capacity.
(2)
Karen slaps Cayla in the face Cayla immediately kicks Karen's shin if Karen institutes a “
delictual action for the infringement of her personality rights, Cayla may rely on the
1 Necessity
2 Private defence
Provocation
. None of the above.
(2)
10 Nick insults Sarah, Julie’s fnend. Julie, who ts angered by the insults, then insults Nick If
Nick institutes a delictual action for the infringement of his personality rights, Julie may
rely on the following ground of justificatron
1 Necessity.
2 Private defence
8) Provocation
(2)
41. Markus, a financial adviser, negligently advises Hans to make a bad investment. As a
result of this, Hans suffers a sertous financial setback However, there is no damage to
The actio legis Aquilae.

The acto iniunarum.
3. The actio ad exhibendum
4, None of the above
(2)

12 Sam and Rob live on adjacent agricultural smallholdings Sam bears a grudge against
Rob. He builds a big cage near the boundary between the two properties, far from his
house but close to Rob's house He stocks the cage with parrots with piercing voices,
and installs a bright light in the cage so that the parrots will not sleep much at night
Because of the loud calls of the parrots, Rob and his family cannot sleep at night and are
irritated by day Rob asks Sam to relocate the cage, but Sam replies that, as owner of his
own land, he is entitled to pursue his bird-breeding activities as he sees fit. Which
delictual remedy may be available to Manie?
1 The actio de pauperie.

2 The actio de fens
re) The interdict
4 None of the above
(2)
13 Which one of the following statements |s correct?
1 Accountability is a prerequisite for fault

2. A person Is accountabie if he can differentiate between nght and wrong and his
behaviour ts susceptible to controi of his will
@ Intoxication cannot influence accountability
(2)

Direct consequences
(2)
+5 tn Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769
{A) the court held that
1. the elements of wrongfulness and negligence are of particular importance in

determining liability for negligent misrepresentation
2 anomussion in the case of negligent misrepresentation can exist in the form of non-
disclosure of information
3. impairment of personality and patrimonial loss resulting from emotional shock can
found the action for pain and suffering and the actro iegis Aquilae
4 intentional interference with contractual relations can give rise to delictual liability
(2)
16. Zaheer steals a motor car from a car dealership To get to the vehicle, he breaks open
an expensive security gate. In respect of the damage to the gate, Zaheer has
1 Dolus indeterminatus.
2 Dolus eventualis.
Dolus indirectus
Luxuria
(2)

17. Joseph practices his golf swing in his back yard He foresees the possibility of one of the
balls breaking a window in his neighbour's hause, but decides that it willnothappen Ifa
ball indeed breaks the window, Joseph had the following in respect of the damage
1. Dolus indeterminaius
2 Dolus eventuais.
3 Dolus indtrectus
wruruy curu
a Luxura
(2)
18 Which one of the following ts not a requirement for the liability of a motor car owner for ~
the delict of the motor car driver?
1 The owner must request the driver to drive the vehicle or supervise the driving
The driver must be an employee of the motor car owner.
3 The vehicle must be driven in the interest of the motor car owner
4 The owner must retain a right of control over the manner in which the vehicle is dnven
(2)
19 Phoebe surreptitiously enters Nellte’s apartment to steal Nellie’s jewellery Nellie’s parrot “
attacks Phoebe and disfigures her ear. Phoebe wishes to institute a delictual action
against Nellie. Which remedy may be available to Phoebe?
1 Actio de pauperie
2. Actio de pastu
3. Actio de feris.
© None of the above.
(2)
20. In which one of the following cases did the court hold that an apportionment of damages
could be allowed where both the plaintiff and the defendant acted with intention?
1 Greater Johannesburg Transitional Metropolitan Council v ABSA Bank 1997 (2) SA 691
(W)
2 Wapnick v Durban City Garage 1984 (2) SA 414 (D)
3. Lampert v Hefer 1955 (2) SA 507 (A)
4. Netherlands Insurance Co v Van der Vyver 1968 (1) SA 412 (A) 2
2
21 Whats the criterion for determining factual causation?
1 Actio lbera in causa.

2. Novus actus intervernens
Conditio sine qua non
4 The flexible approach. ©)

22. Jacob 1s training to be a tailor. He asks Karen whether he can practice his newly
acquired skills to convert her long skirt to a very short mini-skirt. Karen agrees, but after
looking at herself in the mirror wearing the short skirt, she regrets the change to her skirt
and wants to claim damages from Jacob Jacob may rely on the following ground of
justification:
Provocation
Official authority
PON
Consent
None of the above.
(2)
,—?
23 The principle dictating at what stage prospective loss must be claimed, is Known as,
3. Compensating advantages.
(2)
24 Prospective loss ts best assessed in accordance with
@ The sum-formula approach

4. The concrete approach to damage
ae ee Lee . a. (2)
25. Mike, Mac and Mark steals and sells a truckload of Mel’s mealies. If Mel successfully -
sues Mike, Mac and Mark in delict, they will incur.
1. Vicarious habuity
Joint and several lability
Liability based on contributory intent.
4 Stnet lability
2)
MAY/JUNE 2017 PAPER 1

QUESTION 1/VRAAG 1
If patrmonial loss 1s caused in a negligent manner, the most appropriate delictual remedy
to consider ts
{1] The actio legis Aquilae

[2] The actio inunarum
[3] The action for pain and suffering
[4] None of the above {2}

If bodily injury 1s caused in a negligent manner, the most appropriate delctual remedy to
consider ts
{1} The actio legis Aquiiae

(2] The actio inunarum
[4] None of the above (2)
QUESTION 3/ VRAAG 3
The most suitable remedy for the prevention of harmis .
[1] The actio legis Aquilae

(2] The acto de effusis vel derectis
[3] The interdict.
[4] Mitigation of loss (2)
Kabelo’s prize bull breaks through a fence and ventures onto Tino’s farm The bull is
aggressive and charges at Tino’s employees. The employees clamber into a small tree to
escape the wrath of the bull The bull begins to bash the trunk of the tree. As the tree
appears to be about to topple, Tino shoots and kills the bull to protect his employees
Kabelo institutes an action for damages against Tino Tino may raise the following ground
of justification
[1] Necessity
{2] Private defence
[3] Provocation
[4] Official capacity (2)
eV Ve
QUESTION 5/ VRAAG 5
Frans, a financial adviser, negligently advises Ngidi to make a bad investment As a

result of this, Ngidi suffers a senous financial setback However, there is no damage to
Ngidi’s person or property Which one of the following delictual remedies may be available
if Ngidt wishes to recover financial loss from Frans?
[1] The actio legis Aquilae

[2] The actio inunarum

Gregory and Mabula are farming on adjacent properties. Gregory bears a grudge against
Mabula He sets up a device, which causes a loud bang every half an hour, on the
common boundary between the two farms, near Mabula’s homestead As a result of this,
Mabula and his family cannot sleep at night and are irntated by day Mabula asks Gregory
to dismantle the device, but Gregory says that the device serves the purpose of scaring
baboons away from his orchards Which delictual remedy may be available to Mabula?
[1] The actio de paupere

[2] The actio de fens
[3] The acto de effusis vel derectis
(4} The interdict (2)
Which one of the following statements ts correct?
[1] Accountability is a prerequisite for fault

[2} A person Is accountable tf he can differentiate between nght and wrong and his
behaviour Is susceptible to control of his will,
{3] Intoxication cannot influence accountability.
[4] A person ts accountable if he directs his will at an unlawful result and is also
conscious of wrongfulness (2)
Max ts training to be a tattoo artist He asks Kanyiso whether he can practice his newly
acquired skills on her Kanyiso enquires whether she will be able to remove the tattoo by
washing, and Max replies in the affirmative Thereupon Kanyiso !s willing to comply, and
Max makes a butterfly tattoo on Kanyiso’s back When Kanyiso discovers that the tattco is
permanent, she wants to institute a delictual action against Max Max may rely on the
[1] Necessity
[2] Official authority
[3] Consent
QUESTION 9/ VRAAG 9
Betty plans to visit Kate, who ts looking atter Anne's house Kate mentions to Betty that
there Is a vicious dog, named Roxy, on the premises, but promises to have Roxy locked up
in the garage before Betty arrives Betty arrives at the appointed time, but on entering the
premises, Roxy comes running around the corner of the house and bites Betty’s leg What
action can Betty institute against Kate in order to recover her resulting hospital costs?
[1] Actio de pastu

[2] Actio imunarum
[3] Actio de paupere
[4] Actio legis Aquiliae (2)

James, who ts employed by Zando, delivers a parcel to Mefisa’s house Melisa’s dog,
Snoopy, bites James when he enters the property What action may be available to James
against Meitsa?
[1] Actio de pastu

[2] Actio intunarum
[3] Acto de paupene
[4] Actio legis Aquiliae (2)
Precious has a stall on the sidewalk where she sells homemade cakes While Precious is
tending to customers, Donald and Jacob pass by and steal an entire tray full of cakes
While they run away, Jacob's hat falls off and Precious recognizes him and reports the
matter to the police The police manage to find Jacob, but only after he and Donald have
consumed all the cakes Precious wants to claim damages from Jacob Can she claim the
entire amount of damages from Jacob?
[1] Yes, Jacob !s vicariously liable for the damage

[2] Yes, joint wrongdoers are in solidum lable for the full damage
[3] No, she can only claim damage once the identity of both the perpetrators is known
and then she must claim from both of them simultaneously
[4] No, Jacob and Donald are lable for the damage In equal proportions and hence she
can claim only half the amount of damages from Jacob (2)
Zayn and Shiraz play in their backyard with a gas-activated pellet gun They foresee that a
pellet may break a window in one of the neighbours houses or vehicles, but decide that it
will not happen if a pellet indeed breaks the neighbour's window, Zayn and Shiraz had the
following in respect of damage
[1} Dolus indeterminatus

{2] Dolus eventualis
[3] Dolus indirectus
[4] Luxuna (2)
Ayanda insults Julta in front of her mother in-law, Lerato Lerato is very protective aver her
new daughter in-law and in retaliation to the insult slags Ayanda in the face if Ayanda
institutes a delictual action against Lerato, Lerato may rely on the following defence
[1] Necessity
[2] Private defence
[3] Provocation

In which one of the following cases did the court hold that an apportionment of damages
could succeed where both the plaintiff and the defendant acted with intention?
[1] Greater Johannesburg Transitional Metropolitan Council v ABSA Bank 1997 2 SA

691 (W).
[2] Wapnick v Durban City Garage 1984 2 SA 414 (D)
[3] Lampert v Hefer 1955 2 SA 507 (A)
[4] Netherlands insurance Co of SA v Van der Vyver 1968 1 SA 412 (A)
{2)
X decides to test his home-made bomb in a deserted office building A group of rebellious
teenagers enter the building and spray graffiti on the walls The bomb is detonated while
the teenagers are inside the building and five of them are injured The bomb also causes
significant damage to the office building In respect of the imjunes caused to the
teenagers, the most likely form of fault that X can have is
[1] Dolus indirectus

(2} Dolus directus
{3) Dolus indeterminatus
[4] Luxuria (2)
Lucy ts walking In a popular fashion store and she sees a designer handbag in a glass
display unit She immediately decides to steal the handbag in order to get to the handbag,
she forces open the glass display unit, damaging tt significantly In respect of the damage
done to glass display unit, Lucy has
[1] Dofus indirectus

[2} Dolus eventuals
[3} Dolus indeterminatus.
[4] Luxuna (2)
X wrongfully and negligently knocks over a ladder on which Y was standing Y breaks an
arm and a leg and also sustains a back injury Y will be unable to work until his arm and leg
are healed. It is uncertain how long the healing will take, and it is also unknown how much
income he will lose In addition, there 1s a slight possibility that his back Injury will prevent
him from working for an even longer period of time Y¥ wishes to claim dalictual damages
from X Which option is the most correct?
[1] ¥ can only claim the hospital costs that have been incurred for the arm, leg and
back injunes at the stage that the claim ts instituted
[2} Y must claim for the hospital costs that have been incurred for the arm, leg and
back injuries at the stage that the claim ts instituted, and can only claim for loss of
income once he can work again, when he will be able to quantify his loss of income
[3] As soon as the first damage Is evident, Y must claim alt his damages, including all
damage that may materialise as a result of his fall from the ladder in the future
[4] ¥ has no claim for damages (2)

Indicate the correct statement with regard to the similarities and differences between
delictual, criminal and contractual liability
[1]A claim for damages ts the primary remedy for delict

[2] It is not possible for one and the same act to render the wrongdoer delictually as
well as contractually liable
[3] One and the same act cannot found delictuai as well as criminal ltability
i4) A claim for damages ts the primary remedy In respect of a crime (2)
[1] the sum-formuia approach

[2] the ‘once and for all’ rule
[3] the concrete approach to damage
{4] mitigation (2)
MeBVUUTNE ZU
Ayesha tells Ketrwe that Rosemary, the wife of a famous singer, 1s involved in an extra-
marital affair Ketiwe repeats this information to Xolani, a reporter Xolani investigates and
finds the information to be true He writes an article about this, and it ts published in the
local newspaper, The Know-it-All, with knowledge of John, the editor If Rosemary wishes
to sue for defamation, which of the following options is the most correct?
[1] Xolani, The Know-it-All and John may incur liability with the actio miuniarum
[2] Ayesha, Xolani, The Know-it-All and John may incur liability with the actio
munarum
[3] Ayesha, Ketiwe, Xolani, The Know-it-All and John may incur habiltty with the
acto inlunarum
{4] No-one will incur lrability with the acto mrunarum {2)
MAY/JUNE 2017 PAPER 2

1 If patrmontal loss is caused in a negligent manner, the most appropriate delictual
remedy to consider ts°
1 The acto legis Aquilae

2 The actio inuriarum
4 None of the above

If bodily injury is caused tn a negligent manner, the most appropriate delictual remedy to
consider Is
The acto legis Aquilae

The aciio intunarum
hon

None of the above
if the dignity of a person ts infringed in a negligent manner, the most appropriate delictual
remedy to consider Is

2 The actio iniuriarum
4 None of the above .
- (2)
negligent, the most appropriate delictual remedy to consider ts

2 The actio de pauperie
3 The actio de pastu
4 None of the above
(2)
The most suitable remedy for the prevention of harm ts
1 The actio legis Aquilae.

2. The actio de effusis vel derectis
3. The interdict
(2)
Which statement ts incorrect?
1. Only an act or omission that has been willed, can give rise to delictual lability.
2. An act or an omission that is irrational or inexplicable may give rise to delictual hability
delict
4 Acompany can act for the purpose of the law of delict
(2)
Adam tells Bob that Charles, a well-known and married attorney, is having a secret affair
with his secretary. Bob repeats this information to Donald, a reporter. Donald writes an
article about this, and it is published in the local newspaper, The Event, with knowledge
of Frank, the editor. Which of the following options is the most correct?
1. Donald, The Event and Frank may incur liability with the acto inunarum.
2. Adam, Donald, The Event and Frank may be incur itability with the actio munarum
3. Adam, Bob, Donald, The Event and Frank may incur lability with the actio
infuniarum.
4 Bob, Donald, The Event and Frank may incur liability with the actio murarum
(2)

John’s prize bull breaks through a fence and ventures onto David's farm. The bull ts
aggressive and charges at David's employees The employees clamber into a small tree
to escape the wrath of the bull The bull begins to bash the trunk of the tree As the tree
appears to be about to topple, David shoots and kills the bull to protect tis employees.
John institutes an action for damages against David. David may raise the following
1 Necessity
2 Private defence.
3 Provocation
4 Official capacity
(2)
Adrian insults Tumelo, who in retaliation slaps Adnan across the cheek {f Adnan
1 Necessity
2 Pnvate defence
3. Provocation
4 None of the above
(2)
10 Jim insults Karen, Julte’s frend Julie, who is angered by the insults, then insults Jim If
Jim institutes a delictual action for the infrngement of his personality nghts, Jule may
rely on the following ground of justification
Necessity
PROMa
Private defence
Provocation
None of the above
result of this, Hans suffers a serous financial setback However, there is no damage to
1. The actio legis Aquilae

2. The actio iniuriarum
(2)
12 Gawie and Manie are farming on adjacent properties. Gawie bears a grudge against
Manie and his family cannot sleep at night and are imtated by day. Manie asks Gawie
to dismantle the device, but Gawie says that the device serves the purpose of scaring
1. The actio de paupene

2 The actio de feris
3 The actio de effusis vel derectis.
4 The interdict
(2)

Accountability is a prerequisite for fault

_
2 A person is accountable if he can differentiate between night and wrong and his
behaviour is susceptible to control of his will
3 Intoxication cannot influence accountability
conscious of wrongfulness.
1 The adequate causation theory

2 The sum-formula approach.
3 Direct consequences.
(2)
15 Greater Johannesburg Transitional Metropoittan Council v ABSA Bank Ltd 1997 (2) SA
591 (W) dealt with’
1. Consent to injury
2 Consent to the nsk of injury
3. Contributory intention
4 Contnbutory negligence 0)
16. Piet left his cell phone in his car. Gert wants to steal Piet's cell phone He realizes that
he would have to damage Piet’s car in order to get the phone in respect of the damage
to the car, Gert has.
1 Dolus indeterminaius
3 Dolus indirectus
4 Luxura
17 Joseph plays tennis tn his back yard He foresees the possibility of his ball breaking a
window in his neighbour's house, but decides that it will not happen If the ball indeed
2 Dolus eventualis
3 Dolus indirectus
4 Luxuria

18 Ben clambers over Neil's fence with the aim of breaking into Nel’s house Neil's dog
expenses from Neil Which remedy may be available to Ben?
Actio de pauperie
-onwm—
Actio de pasiu
Actio de feris
None of the above
(2)
19. The principle dictating at what stage prospective loss must be claimed, is known as:
2. The ‘once and for all’ rule.
4, The concrete approach to damage.
(2)
20. John and Peter bear a grudge against Greg and agree to teach him a lesson he will hot
forget. While Greg !s in a shopping centre, John and Peter damage Greg’s motor car by
hitting it with hammers. If Greg successfully sues John and Peter in delict, they will incur
4. Vicarious liability
2. Joint and several liability
3. Liability based on contnbutory intent.
4. Strict labulity.
(2)

1 Absolute compulsion ts one of the conditions that may cause a person's behaviour to be
involuntary and hence not to qualify as conduct for the purpose of delictual liability In
which one of the following instances is Y subject to absolute compulsion?
1 X points a gun at Y and orders Y to damage Z’s motor vehicle In order to save his own
life, ¥ dents Z’s motor vehicle
2 X pushes a baseball bat into Y’s hand and then, without Y being able to offer resistance,
X takes hold of Y’s hand and forces it to cause a dent on 2’s motor vehicle
3 Y suffers an epileptic fit while driving hts motor vehicle and in the process smashes into
2's motor vehicle
4 Ys ‘blind drunk’ and lies on the sidewalk, making involuntary movements with his arms
and legs 2’s motor vehicle is parked next to Y and Y's involuntary movements causes
a dent in Z's motor vehicle
(2)

2 Arnold threatens Betty with a gun and orders Betty to hand over her handbag and
cellphone Betty, in fear of her life, hands over the handbag and cellphone One week
later, Betty spots Arnold at a nearby shopping centre Betty rushes home and grabs a
knife She returns to the shopping centre and stabs Arnold Arnold wants to institute a
delictual action against Betty Betty may rely on the following ground of justification
1 Necessity
2 Provocation
3 Private defence
4 None of the above
(2)
3 Sibusiso is away on holiday Mapule, his neighbour, is keeping a watchful eye on his
house for him Mapule notices that the house |s flooded with water and realises that a
water pipe in the house has burst Mapule breaks down the front door of Sibusiso’s house
in order to turn off the water to prevent further damage If Sibusiso wants to institute a
delictual action against Mapule for breaking down his front door, Mapule may rely on the
1 Statutory authority
2 Necessity
3 Provocation
4 Private defence
(2)
4 Doctor Suliman ts an obstetrician and Nadia ts a pregnant patient of hers Nadia ts rushed
to hospital late at night as she experiences severe abdominal pains Doctor Suliman
realises that Nadia ts in labour and performs an emergency caesarian section Nadia lays
a complaint against Doctor Suliman with the Health Professions Council The council finds
that the doctor acted as a reasonable obstetrician would have done in the particular
circumstances Doctor Suliman wishes to sue Nadia for defamation Nadia may rely on
the following ground of justification
1 Relative privilege
2 Absolute privilege
3 Fair comment
4 None of the above
(2)
) The most suitable remedy for the prevention of harm is

2 The actio de effusis vel deiectis
3. The interdict
(2)
1 Only an act or omission that has been willed, can give rise to delictual lability
2 Anactor an omission that is irrational or inexplicable may give rise to delictual liability
delict
4 Accompany can act for the purpose of the law of delict

7 Dick ts so offended by Willam’s speech at a political rally, that he throws an apple at

William William falls off the podium and breaks an arm and a few ribs He Is admitted to
hospital While he is being treated there, a nurse leaves the windows of the ward open
and William contracts pneumonta Which one of the following 1s incorrect?
1 Dick acted wrongfully

2 Dick had fault
3 There is a factual causal link between Dick’s conduct and Willam’s broken arm and
ribs
4 There is no factual causal link between Dick's conduct and William’s pneumonia
(2)
8 Which one of the following staternents is correct with regard to delictual lability?
1 The actio legis Aquiliae may be used as the primary remedy for delicts that cause
Injury to personality
2 The actio inurrarum may be used as the primary remedy for patrimonial loss
3. In South African law, delictua! liability is governed by a generalising approach
4 In South African law, each delict has its own unique requirements
(2)
n which one of the following situations can tt be said that publication of defamatory words
has taken place?
1 Two German tourists visit South Africa They start arguing in German in front of some
South Africans (who do not understand German) and the one tourist calls the other a
har and an adulterer
2 Mr Xolani tells his wife, Mrs Xolani, that Vanessa at his office is having an affair with
her secretary
3 Mrs Brown teils her husband, Mr Brown, that Theresa, a work colleague of Mrs Brown,
has stolen money from the cash register on numerous occasions
4 Bob meets Joseph at the local post office and tells Joseph that the manager of the
post office, Mrs Posh, is invoived in an adulterous affair with Joseph's neighbour
Henry
{2)
10 Nomsa’s two year old daughter falls down a flight of stairs Nomsa believes that the child
has sustained a brain injury and rushes her to the hospital On the way to the hospital
Nomsa drives over the neighbour's dog which subsequently dies The neighbour
institutes a delictual claim against Nomsa It later transpires that Nomsa’s daughter
merely suffered from mild shock Which one of the following defences may Nomsa rely
on?
1 Provocation
2 Private defence
3 Necessity
4 None of the above defences


2 The actio iniuriarum
4 None of the above
cammon boundary between the two farms, near Manie’s homestead As a result of this,
Mane and his family cannot sleep at night and are irritated by day Manie asks Gawie
to dismantle the device, but Gawie says that the device serves the purpose of scaring
1 The actio de paupene

2 The actio de fers
3. The acto de effusis vel derectis
4 The interdict
1 Accountability is a prerequisite for fault

2 A person Is accountable if he can differentiate between nght and wrong and his
behaviour |s susceptible to control of his will
Intoxication cannot influence accountability
Aw
A person !s accountable if he directs his will at an unlawful result and is also

14 Sean is employed by Raymond as a driver in Raymond's couner business Sean has the
weekend off, and decides to visit Mary on Saturday evening On his way to Mary's
apartment, Sean is involved in an accident due fo his own negligence Sean's vehicle
damaged Catherine discovers that Sean’s financial position is not good Advise
Catherine on the best course of action
1 Institute an action against Raymond based on vicarious lability

4 Institute an action against Sean
(2)
15 Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Lid 1997 (2) SA
591 (W) dealt with
1 Consent to injury
2 Consent to the risk of injury
3 Contributory intention

16 Jacob ts training to be a tattoo artist He asks Karen whether he can practice his newly
washing, and Jacob replies in the affirmative Thereupon Karen ts willing to comply, and
Jacob makes a butterfly tattoo on Karen's arm When Karen discovers that the tattoo \s
permanent, she wants fo institute a delictual action against Jacob Jacob may rely on
the following ground of justification
Necessity
BON a
Official authority
Consent
None of the above
window In his neighbour’s house, but decides that it will not happen ff the ball indeed
2 Dolus eventuals
3 Dolus indirectus
4 Luxura
(2)
18 Ben clambers over Neil’s fence with the aim of breaking into Neil’s house Neil's dog
expenses from Nei Which remedy may be available to Ben?
1 Actio de pauperie
2 Actio de pastu
3 Actio de fens
4 None of the above
(2)
19 The principle dictating at what stage prospective loss must be claimed, is known as

(2)
forget While Greg Is in a shopping centre, John and Peter damage Greg's motor car by
hitting tt with hammers (f Greg successfully sues John and Peter in delict, they will incur
1 Vicarious liability
2 Joint and several lability
3 Liability based on contributory intent
4 Strict hability
(2)

MAY/JUNE 2018

AFDELING A: MULTIKEUSEVRAE
NB: ANSWER THESE QUESTIONS ON THE MARK-READING SHEET!

NB: BEANTWOORD HIERDIE VRAE OP DIE MERKLEESBLAD!
1 Which one of the following is NOT described as one of the pillars of our law of delict?

2 The actio inturrarum
4 The interdict (2)
2 Janice threatens Queeneth with a gun and orders her to hand over her cellphone Queeneth,
in fear of her Ife, hands over the cellphone One week later, Queeneth spots Janice at a nearby
shopping centre Queeneth rushes home and grabs a knife She returns to the shopping centre
and stabs Janice Janice wants to institute a delictual action against Queeneth Queeneth may
rely on the following ground of justification
1 necessity
2 provocation
3 private defence
4 none of the above
(2)
3 Sibusiso is away on holiday Frank, his neighbour, is keeping a watchful eye on his house for
him Frank notices that the house Is flooded with water and realises that a water pipe in the
house has burst Frank breaks down the front door of Sibusiso’s house in order to turn off the
water to prevent further damage [f Sibusiso wants to institute a delictual action against Frank
for breaking down his front door, Frank may rely on the following ground of justification
1 statutory authority
2 necessity
3 provocation
4 private defence
4 Which one of the following conditions may amount to automatism?
1 Provocation
2 Self-defence
3 Necessity
4 Hypnosis
(2)

5 The most suitable remedy for the prevention of harm ts
1 the actio legis Aquilae

2 the actio de effusis vel deiectis
3 the interdict
4 mitigation of loss
(2)
6 Choose the correct statement In Carmichele v Minister of Safety and Security (Centre for
Applied Legal Studies intervening) 2001 (4) SA 938 (CG), the Constitutional Court
1 recognised a claim for Constitutional damages

2 noted that the law of delict admurably reflected the spirit, purport and object of the Bill of
Rights
3 declared that the courts of lower instance had erred by applying a pre-constitutional
concept of the bon: mores
4 recognised the concept of a Constitutional delict
(2)
7 Absolute compulsion is one of the conditions that may cause a person’s behaviour to be
involuntary and hence not to qualify as conduct for the purpose of delictual Jiability In which
one of the following instances 1s Y subject to absolute compulsion?
1 X points a gun at Y and orders Y to damage Z's motor vehicle !n order to save his own
life, Y dents Z’s motor vehicle
2 X pushes a baseball bat into Y's hand and then, without Y being able to offer resistance, X
takes hold of Y’s hand and forces it to cause a dent on Z’s motor vehicle
3 Y suffers an epileptic fit while driving his motor vehicle and in the process smashes into Z’s
motor vehicle
4 Y ts ‘blind drunk’ and lies on the sidewalk, making involuntary movements with his arms
and jegs 2's motor vehicle is parked next to Y and Y’s involuntary movements cause a
dentin Z's motor vehicle
(2)
8 Which of the following best describes what is meant by “psychological lesion”?

3 Emotional shock
4 Infringement of the night to identity
(2)
9 In which one of the following situations can it be said that publication of defamatory words has
taken place?
1 Two German tourists vistt South Africa They start arguing in German in front of some
and an adulterer
2 Mr Xolani tells his wife, Mrs Xolan, that Andrew at his office is having an affair with his
secretary
3 Mrs Brown tells her husband, Mr Brown, that Theresa, a work colleague of Mrs Brown,
has stalen money from the cash register on numerous occasions
4 Bob meets Joseph at the local post office and tells Joseph that the manager of the post
office, Mrs Posh, 's involved in an adulterous affair with Joseph’s neighbour Henry
(2)

10 Dr Lucas, a well-known obstetrician, delivered Niccle’s daughter, Mandy During delivery, the
nerves in Mandy's right shoulder were injured resuiting in the paralysis of her arm All of this
happened because Dr Lucas failed to inform Nicole of the potential complications mherent in
delivering a large baby Indicate the most correct statement — negligence will be determined
according to the standard of
1 the reasonable doctor

2 the reasonable person
3 the reasonable man
4 the reasonable child
(2)
11 Carl, 17, left his PlayStation in his locker at school James, 15, wants to steal Carl's
PlayStation He realises that he would have to damage Carl's locker in order to get the
PlayStation in respect of the damage to the locker, James has.
1 dolus directus
2. dolus indirectus
3 dolus eventuals
4 none of the above
12 Which one of the following qualifies as private defence?

1
John’s vicious dog charges to attack Zain To protect himself, Zain picks up a baseball bat
and gives the dog a blow to the head
2 Brian threatens Wilma with a knife and robs her of her cell phone After 3 months, Wilma
sees Brian at a shopping centre and reacts by stabbing Brian with a high heeled shoe
A child points a firearm at you and you grab his arm to prevent him from shooting you The
child sustains tnjuries to his arm
A police officer arrests Liam in the execution of a legitimate warrant of arrest Liam resists
the arrest He jabs the policeman, cracking one of the policeman’s ribs in an attempt to
escape
(2)
13 Gawie and Manie are farming on adjacent properties Gawie bears a grudge against Manie
between the two farms near Manie’s homestead As a result of this, Manie and his family
cannot sleep at night and are irritated by day Manie asks Gawie to dismantle the device, but
Gawie says that the device serves the purpose of scaring baboons away from his orchards
1
The actio de pauperie
2 The actio de feris
3 The actio de effusis vei deiectis
4 The interdict
(2)
14 Neil is chased by a fierce Jersey bull and jumps onto Conrad's scooter, which Is parked next
to the road, In order to race away and save hts own life The scooter is damaged and Conrad
institutes a delictual clawn againsi Nei Nel may raise the following ground of justification
1
private defence
2 necessity
3 provocation
4 official capacity (2)

15 Dick Is so offended by Willlam’s speech at a political rally, that he throws an apple at William
Wilham fails off the podium and sustains a broken arm as well as a few broken mbs He ts
admitted ta hospital While he is being treated there, a nurse leaves the windows of the ward
open and William contracts pneumonia Which one of the following Is incorrect?
1 Dick acted wrongfuily

2 Dick had fault
3 There is a factual causal link between Dick’s conduct and William's broken arm and ribs
4, There is no factual causai {ink between Dick’s conduct and Willam’s pneumonia
(2)
16 Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd 1997 (2) SA 591
{(W) dealt with
1 consent to Injury
2 consent to the risk of injury
3 contributory intention.
4 contributory neghgence
(2)
1 The adequate causation theory

3 Direct consequences theory
(2)
18 Joseph plays tennis in his back yard He foresees the possibiliiy of his bail breaking a window
in hrs neighbour's house, but decides that it will not happen !f the ball indeed breaks the
window, Joseph had the following tn respect of the damage
2 dolus eventualis
3 dolus indirectus
4 fuxuria
19 The principle dictating at what stage prospective loss must be claimed, is known as
1 the sum-formula approach

2 the ‘once and for all’ rule
4 the concrete approach to damage
(2)
20 John and Peter bear a grudge against Greg and agree to teach him a lesson he will not forget
While Greg 1s in a shopping centre, John and Peter damage Greg's motor car by hitting it with
hammers If Greg successfully sues John and Peter in delict, they will incur
1 vicarious lability
2 joint and several liability
3 liability based on contributory intent
4 strict liability


PVL 3703
1
MULTIPLE CHOICE QUESTIONS
Introduction
1. Which one of the following statements in respect of the relationship between the law
of delict and criminal law is correct ?
(a) All crimes also qualify as delicts.

Incorrect – some crimes, like blasphemy, high treason and parking offences, are not
delicts.
(b) All delicts also qualify as crimes.
Incorrect – some delicts like adultery, breach of promise and negligent damage to
property, are not crimes.
(c) The primary function of both delictual remedies and criminal sanctions is
inherently to punish a person who has committed a transgression against the
legal order.
Incorrect – the primary function of delictual remedies is to compensate the aggrieved
party for the harm the wrongdoer caused.
(d) Both the law of delict and criminal law usually deal with unlawful and
culpable conduct.
(e) No common-law crime can also qualify as a delict.
Incorrect – some common-law crimes, like theft, fraud and assault, are also delicts.
2. Which one of the following statements is correct ?
a A crime does not constitute a form of wrongful conduct.

b A delict and breach of contract are fundamentally similar.
c A claim for damages as a remedy plays a primary role in instances of breach of
contract
d Delictual remedies are not directed at fulfilment
e Breach of contract is formally treated as part of the law of delict.
3. When so-called open-ended delictual norms are given content in light of the basic
values of chapter 2 of the Constitution, this is known as :
direct application of the Bill of Rights

indirect application of the Bill of Rights
vertical application of the Bill of Rights
horizontal application of the Bill of Rights
a constitutional delict
4. Which one of the following statements is incorrect ?
© Carey Robertson 2011 PVL 3703

Revision – multiple choice questions
a The South African law of delict is based on three 'pillars', which are three
actions from Roman law.
b The Aquilian action underwent important extensions in Roman-Dutch Law.
c In South African law the Aquilian action had developed into a general remedy
for the wrongful and culpable causing of patrimonial damage.
d Compensation for so-called 'pure economic loss' may in principle be claimed
with the action legis Aquiliae.
e The development of the action legis Aquiliae to its logical conclusion is
hampered by case law in respect of negligent interference with contractual
relations.
a The South African law of delict is based on three 'pillars', which are three
actions from Roman law.
b The Aquilian action underwent no extensions in Roman-Dutch Law.
c In South African law the Aquilian action had developed into a general
remedy for the wrongful and culpable causing of patrimonial damage.
d Compensation for patrimonial loss resulting from bodily injuries may in principle
be claimed with the action for pain and suffering
e The development of the action legis Aquiiiae to its logical is nowadays an
accomplished fact.
a The entrenchment of fundamental rights in the Bill of Rights enhances their

protection in the law of delict.
b A clear distinction should be made between a constitutional wrong and a delict.
c For conceptual clarity, the term 'constitutional delict’ should rather be avoided.
d By indirect application of the Bill of -Rights to the law of delict is meant that the'
rules, principles and norms of the law of delict are given content in light of the
basic values of Chapter 2.
e So-called open-ended or flexible delictual principles are more or less
immune to the 'indirect application of the Bill of Rights.
a The entrenchment of fundamental rights in the Bill effect on their protection in

the law of delict.
b There is no distinction between a constitutional wrong and a delict
c Damages are not regarded as appropriate relief for the infringement of a
fundamental right.
d By indirect application of the Bill of Rights to the law of delict is meant

that the rules, principles and norms of the law of delict are given content
in light of the basic values of Chapter 2
e So-called open-ended or flexible delictual principles are more or less immune

to the indirect application of the Bill of Rights
a The basic premise in law is that damage rests where it falls

b In South Africa the question of delictual liability is governed by a casuistic
approach.
c The fact that a person has caused another to suffer damage is sufficient to
constitute a delict for which he or she may be held liable.
d In principle a distinction is made between delicts that cause personal injuries
and those that cause injury to personality.
e The action legis Aquiliae, actio iniuriarum and the action for pain and suffering
cover the whole area of delictual liability.
(a) The basic premise in law is that damage rests where it falls
(b) In South Africa the question of delictual liability is governed by a
generalising approach.
(c) The fact that a person has caused another to suffer damage is
sufficient to constitute a delict for which he or she may be held
liable.
(d) In principle a distinction is made between delicts that cause patrimonial loss
and those that cause injury to personality.
(e) Apart from a few exceptions, the actio legis Aquiliae, actio iniuriarum and the
action for pain and suffering comprehensively cover the whole area of delictual
liability.
a Delictual remedies do not differ substantially from criminal sanctions.

b Delictual remedies are compensatory in character.
c Criminal law is directed at maintaining private interests.
d One and the same act may not found delictual as well as criminal liability.
e Not all delicts are crimes, but all crimes may under suitable circumstances also
give rise to delictual liability.
(a) Delictual remedies differ substantially from criminal sanctions.

(b) Delictual remedies are compensatory in character.
(c) Criminal sanctions are penal in character.
(d) One and the same act may found delictual as well as criminal liability.
(e) Not all delicts are crimes, but all crimes may under suitable
circumstances also give rise to delictual liability.

a Breach of contract does not constitute a form of wrongful conduct.

b A delict and breach of contract are fundamentally different.
c A claim for damages as a remedy plays only a secondary role in instances of
breach of contract.
d Delictual remedies are not directed at fulfilment.
e Breach of contract is not formally treated as part of the law of delict.
Act
1 Which one of the following statements is false ?
(a) X orders his dog to bite Y. The dog obeys the order. X has acted for the
purposes of the law of delict.
True – a human being can act by using an animal as the instrument.
(b) A company can commit a delict.
True – a juristic person can act through its organs, which are human.
(c) Intoxication does not necessarily exclude wrongfulness.
True – only extremely serious intoxication may exclude voluntariness.
(d) A person’s bodily movements can only qualify as conduct if the person
willed those movements.
False – the requirement is that a person must be able to control his movements
by his will, not that he actually willed those movements.
(e) If a person alleges that he was in a state of automatism, he or she does not
bear an onus of proof to prove that allegation.
True – in respect of sane automatism, the onus of proof is on plaintiff to prove that
defendant acted voluntarily.
2 Which one of the following statements is incorrect ?
a Automatism is a defence specifically excluding the wrongfulness of an

act.
b Automatism may be caused by conditions such as epilepsy, blackout, and heart
attack.
c A person who intentionally places himself in a condition of automatism, cannot
rely on automatism as a defence.
d A person who negligently places herself in a condition of automatism, cannot
rely on automatism as a defence.
e In respect of so-called 'sane automatism’ the onus rests on the plaintiff to prove
that the defendant acted voluntarily.

3 Which one of the following statements is correct ?
a Automatism is a defence specifically excluding the wrongfulness of an act

b Automatism cannot be caused by intoxication.
c A person who intentionally places himself in a condition of automatism,
cannot rely on automatism as a defence,
d A person who, negligently places herself in a condition of automatism, can rely
on automatism as a defence.
e In respect of so-called ‘sane automatism’ the onus rests on the defendant to
prove that the defendant acted voluntarily.
4 Which one of the following is incorrect ?
(a) An epileptic seizure may cause a person to behave involuntarily and enable
him to rely on automatism
(b) A person may not rely on automatism if he intentionally created a situation in
which he behaves involuntarily
(c) A person relying on insane automatism as a defence in a delictual case has the
onus to prove the automatism
(d) According to Van de Merwe and Olivier, automatism does not exclude conduct
in delict
a An animal can act for the purposes of the law of delict.

b If a person incites or orders an animal to cause harm to someone else, a
human act is present.
c Only willed behaviour constitutes conduct.
d Involuntary behaviour can exceptionally constitute conduct.
e Irrational conduct cannot be voluntary.
(a) An animal cannot act for the purpose of the law of delict
(b) A public school can act for the purpose of the law of delict
(c) Behaviour must be willed to qualify as a voluntary act
(d) Conduct may consist of a commission or an omission
a An animal cannot act for the purposes of the law of delict

b If a person incites or orders an animal to cause harm to someone else, a
human act is present
c Only willed behaviour constitutes conduct.
d Only voluntary behaviour constitutes conduct.
e Irrational conduct may be voluntary.

(a) If a person instructs a trained animal to cause harm, no conduct is

present.
(b) A university can act for the purpose of the law of delict
(c) Willed behaviour can qualify as voluntary conduct for delictual purposes
(d) An omission can qualify as voluntary conduct for delictual purposes
9 According to the following case the onus is on the plaintiff to prove that the
defendant acted voluntarily, rather than on the defendant to prove the presence of
automatism :
Ex parte Minister van Justisie: in re S v Van Wyk

Molefe v Mahaeng
National Media Ltd v Bogoshi
Carmichele v Minister of Safety and Security
S v Goliath
10 The following case dealt with an omission :
Ex parte Minister van Justisie: in re S v Van Wyk

Molefe v Mahaeng
S v Goliath
Wrongfulness
Which one of the following statements is correct ?
(a) The taking of a human life may be justified in private defence, but not in
necessity.
Incorrect – according to S v Goliath 1972 (3) SA 1 (A), necessity may justify the taking
of a human life in special circumstances.
(b) Consent to injury will exclude wrongfulness only if the consent is
permitted by the legal order.
Correct
(c) If X punches Y on the nose immediately after Y has defamed him, X may
escape liability by raising provocation as a defence.
Incorrect – as a general rule, provocation is not a complete defence where provocative
words preceded a physical attack.
(d) Permissive statutes cannot provide a foundation for statutory authority as a
ground of justification.

Incorrect.
(e) A pactum de non petendo excludes wrongfulness.
Incorrect – only the action (delictual remedy) is excluded by such a pactum.

(a) The question of wrongfulness entails a dual investigation.
(b) Violation of a norm is a prerequisite for a finding of wrongfulness.
(c) An act may be branded wrongful without reference to a harmful
consequence.
(d) It is possible to act wrongfully towards an unborn person.
(e) The nasciturus fiction is not a prerequisite for a finding that someone acted
wrongfully towards an unborn person.
3. Which one of the following is incorrect ?
(a) Determining wrongfulness essentially entails a dual investigation
(b) In delict the wrongfulness of an act is determined with reference to its
consequence
(c) Applying the boni mores entails an ex ante balancing of interests
Ex ante = before the event
(d) The boni mores must be seen as the legal convictions of the legal policy
makers of the community
(a) The question of wrongfulness entails a three-pronged investigation.

(b) Violation of a norm is not a prerequisite for a finding of wrongfulness.
(c) An act may be branded as wrongful only with reference to a harmful
consequence.
(d) It is possible to act wrongfully towards an unborn person.
(e) The nasciturus fiction provides a solution for a delictual action in all instances
where a child suffered prenatal injuries,
(a) Conduct can only be delictually wrongful if it causes a factual infringement

of an individual interest.
(b) Conduct can only be branded wrongful in relation to a specific consequence
caused by that conduct.
(c) Conduct that does not infringe one of the recognised subjective rights
cannot be delictually wrongful.
(d) For the purposes of wrongfulness, conduct and its consequence(s) are
always separated in time and space.
(e) If, in the light of all the circumstances of the case, the defendant has
infringed the interest(s) of the plaintiff in an unreasonable manner, one may
accept that the defendant has acted wrongfully.

(a) Wrongfulness is present if a subjective right was infringed or a legal duty

was breached.
Correct
(b) A factual disturbance of the relationship between legal subject and legal object
is sufficient to constitute the infringement of a subjective right.
Incorrect – norm violation must also be present.
(c) Control over a dangerous object is an essential requirement for the existence of
a legal duty to act positively.
Incorrect – several other factors pointing to the existence of such a legal duty are
recognised by case law.
(d) All the defences excluding delictual liability are known as grounds of
justification.
Incorrect – grounds of justification are defences excluding the element of
wrongfulness. There are other defences excluding other elements e.g. automatism
excluding the element of conduct.
(e) If X is attacked by Y’s dog and he kicks the dog, breaking its jaw-bone, X is
acting in private defence.
Incorrect – private defence is directed against a human being launching an unlawful
attack on someone. If it was stated that Y incited the dog to bite X, the statement
would have been correct, because then Y was launching an unlawful attack on X. In
such a case X would be acting in private defence.
(a) A subjective right is characterised by a dual relationship.

(b) The right to good name is a personal right.
(c) The right of ownership is a real right.
(d) Copyright is an immaterial property right.
(e) In principle the development of new subjective rights and even new categories
of subjective rights is possible.
8. Which one the following is incorrect ?
(a) Subjective rightsare characterised by a dual relationship.

(b) Five categories of subjective rights are recognised
(c) Subjective rights are categorised with reference to the objects of the rights
(d) Subjective rights have reached their end development and are fixed in
number
(a) A subjective right is characterised by three relationships.

(b) A subjective right is infringed by factually interfering with the object of the right.
(c) The right to privacy is a personal right.

(d) Copyright is a personal immaterial property right.

(e) In principle the development of new subjective rights and even
new categories of subjective rights is possible.
10. Which is the odd one out ?
(a) Freedom of association

It refers to the object of a fundamental right, whereas the others refer to objects
of subjective rights
(b) Aspects of personality
(c) Acts and performances
(d) Personal immaterial property
(a) The legal convictions of the community must be understood to be the legal
convictions of the legal policy makers of the community, like the legislator and
the judges.
(b) Subjective factors such as the defendant's motive and knowledge normally do
not play a role in determining wrongfulness.
(c) Improper motive may playa role in determining wrongfulness in so-called
instances of neighbour law.
(d) Knowledge that someone may be harmed by certain conduct may playa role in
(e) If a person acts in the honest belief that his conduct is lawful, such
conduct cannot be wrongful.
(a) The general wrongfulness criterion is the boni mores.

(b) The boni mores testis a criterion of objective reasonableness.
(c) Application of the boni mores entails an objective, ex post facto balancing of
interests.
(d) The boni mores are influenced by the values underpinning the Constitution.
(e) An act that is morally reprehensible will always be in conflict with the
boni mores.
(a) The boni mores test is rarely applied directly to establish wrongfulness.
(b) Two practical applications of the boni mores are the principle that infringement
of a subjective right constitutes wrongfulness, and the principle that breach of a
legal duty constitutes wrongfulness.
(c) By itself, the boni mores criterion usually functions at a supplementary level in
(d) The boni mores criterion is applied at a supplementary level in instances
where a clear legal norm or ground of justification is obviously
applicable.
(e) The boni mores criterion is applied at a supplementary level in cases of

10
refinement, especially in borderline cases.
(a) The boni mores test is always applied directly to establish wrongfulness.
(b) Two practical applications of the boni mores are the principle that
infringement of a subjective right constitutes wrongfulness, and the
principle that breach of a legal duty constitutes wrongfulness.
(c) The boni mores criterion cannot be a supplementary criterion in determining
wrongfulness.
(d) The boni mores criterion is applied at a supplementary level in instances where
a clear legal norm or ground of justification is obviously applicable.
(e) The factual infringement of a legally recognised interest is always prima facie
wrongful.
(a) Application of the boni mores entails an objective, ex post facto

balancing of interests.
(b) Since the boni mores test is a criterion of objective reasonableness, subjective
factors are irrelevant.
(c) An act which is wrongful for the purposes of criminal law, is according to the
boni moresalways also delictually wrongful.
(d) The boni mores are not influenced by the values underpinning the Constitution
(e) An act that is morally reprehensible will always be In conflict with the boni
mores.
(a) The boni mores test is always directly applied to ascertain wrongfulness.
(b) Improper motive may not play a role in determining wrongfulness in so-called
instances of neighbour law.
(c) Knowledge that someone may be harmed by certain conduct is irrelevant in
(d) If a person acts in the honest belief that his conduct is lawful, such conduct
cannot be wrongful.' .
(e) The legal convictions of the community must be understood to be
the legal convictions of the legal policy makers of the community,
like the legislator and the judges.
17. Which one of the following is incorrect ?
(a) In principle the test for wrongfulness is objective in nature

(b) Subjective factors are usually irrelevant in the wrongfulness enquiry
(c) An improper motive may be relevant to the wrongfulness enquiry in delict cases
(d) Knowledge that someone may be harmed is always irrelevant to the
wrongfulness enquiry

11
(a) The test to determine the wrongfulness of an omission is mainly of a subjective

nature
(b) The causing of pure economic loss is prima facie wrongful.
(c) Unlawful competition usually gives rise to pure economic loss, but
nevertheless the wrongfulness of unlawful competition is determined with
reference to the infringement of a subjective right rather than the breach
of a legal duty.
(d) There is a general legal duty in our law that one should prevent one's
omissions from harming others.
(e) The existence of a legal duty is not determined with reference to the boni
mores.
(a) In instances of omission wrongfulness is determined by enquiring whether a

legal duty has been breached.
(b) In instances where pure economic loss has been caused, wrongfulness is
usually determined by enquiring whether a legal duty has been breached.
(c) Unlawful competition usually gives rise to pure economic loss, but nevertheless
the wrongfulness of unlawful competition is determined with reference to the
infringement of a subjective right rather than the breach of a legal duty.
(d) There is a general legal duty in our law that one should prevent
one's omissions from harming others.
(e) The existence of a legal duty is determined with reference to the boni mores.
20. Which is the odd one out ?
(a) Halliwell v Johannesburg Municipal Council 1912 AD 659

(b) Minister of Forestry v Quathlamba (Pty) Ltd 1972 (3) SA 69 (A)
(c) Minister van Polisie v Ewels 1975 (3) SA 590 (A)
(d) Schultz v Butt 1986 (3) SA 667 (A)
It is the only mentioned case that did not deal with an omission
(a) ‘Prior conduct’ is not an indication that a legal duty to prevent harm exists.
(b) According to the Ewels case the important question is whether an
omission is wrongful according to the boni mores, and ‘prior conduct’ is
one of many factors to be taken into account when deciding this.
(c) By ‘prior conduct’ is meant that a person created a new source of danger by
way of an omission.
(d) It is highly unlikely that an omission preceded by so-called ‘prior conduct’ is
wrongful.
(e) In many municipality cases ‘prior conduct’ was not regarded as a requirement

12
for the wrongfulness of an omission.
22. Which of the following statements is incorrect ?
(a) ‘Prior conduct’ is a strong indication that a legal duty to prevent harm exists.'
(b) By ‘prior conduct’ is meant that a person created a new source of danger
by way of an omission.
(c) It is highly likely that an omission preceded by so-called ‘prior conduct’ is
wrongful.
(d) In many municipality cases ‘prior conduct’ was regarded as an indispensable
requirement for the wrongfulness of an omission.
(e) According to the Ewels case the important question is whether an omission is
wrongful according to the boni mores, and ‘prior conduct’ is one of many factors
to be taken into account when deciding this.
(a) A ground of justification is not a defence.

(b) A ground of justification is not a defence excluding wrongfulness.
(c) A ground of justification can be raised as a defence in a case of automatism
(d) A ground of justification is a norm indicating that an act, which on the
face of it appears to be wrongful, is nevertheless reasonable
(e) The generic term ‘grounds of justification’ refers to all the defences available to
(a) A ground of justification is a defence.

(b) A ground of justification is a defence excluding wrongfulness.
(c) A ground of justification is a defence excluding delictual liability.
(d) A ground of justification is a norm indicating that an act, which on the face of it
appears to be wrongful, is nevertheless reasonable.
(e) The generic term ‘grounds of justification’ refers to all the
defences available to defendants in delict cases.

25. Peter insults Thomas. Thomas goes home, feeling very depressed. An hour later,
Thomas phones Peter and retaliates by insulting Peter. If Peter institutes a delictual
action for the infringement of his personality rights, Thomas may rely on the following
defence :
26.
(a) Necessity
(b) Private defence
(c) Provocation
(d) None of the above
27. Provocation could have been considered, but an act can only be
justified by provocation if it was an immediate retaliation
28.
29. Peter insults Thomas. Thomas immediately retaliates by insulting Peter. If Peter
institutes a delictual action for the infringement of his personality interests, Thomas
may rely on the following defence :
30.
(a) Necessity
(b) Private defence
(c) Provocation
31.
32. Stephen and Ivan are world-class chess players. In the course of a very stressful
game of chess, they are both on edge and rather aggressive. Stephen mutters under
his breath that he is going to punch Ivan’s nose if Ivan wins the game. Ivan retorts
that Stephen is welcome to try. Ivan wins the chess game and Stephen promptly
punches Ivan, breaking Ivan’s nose. If Ivan institutes a delictual claim for the
infringement of his personality interests, Stephen may rely on the following defence :
33.
(a) Private defence
(b) Provocation
(c) Consent
34. Consent could have been considered, but consent to bodily injury is usually
contra bonos mores
35.
(a) If Y insults X, and X retaliates by insulting Y, X may rely on provocation as a
defence.
(b) If Y insults X's girlfriend, and X retaliates by insulting Y,X may rely on
provocation.
(c) If Y insults X, and X retaliatesby hitting Y over the head with a stick, X exceeds
the boundaries of provocation as a complete defence.
(d) If Y insults X's girlfriend, and X's girlfriend retaliates by insulting Y, X's girlfriend
(e) If Y insults X, and X retaliates by writing an insulting letter and mailing it
to Y, X may rely on provocation.
37.
38.
39.
PVL 3703
Revision 2011 – multiple choice questions

40.
(a) If Y insults X slightly, and X retaliates by gravely insulting Y, X may rely on

provocation as a defence.
(b) If Y insults X's girlfriend, and X retaliates by insulting Y, X may rely on
provocation.
(c) If Y insults X, and X retaliates by hitting Y over the head with a stick, X may rely
on provocation as a defence.
(d) If Y insults X's girlfriend, and X's girlfriend retaliates by insulting Y, X's girlfriend
(e) If Y insults X, and X retaliates by writing an insulting letter the following day and
mailing it to Y, X may rely on provocation.
(a) If Y tries to kill X, X acts in necessity if he hits Y over the head with a stick.
(b) If Y tries to rape Z, X acts in provocation if he hits Y over the head with a stick.
(c) If X compels Z to assault Y, Z acts in private defence if he hits Y over the head
with a stick.
(d) If Y orders his vicious dog to bite X, and the dog starts to respond to Y's
order, X acts in private defence if he kills the dog.
(e) If Z orders Y's 'vicious dog to bite X, and the dog starts to respond to Z's order,
X acts in private defence if he kills the dog.
43.

(a) If Y tries to kill X, X acts in private defence if he hits Y over the head with a
stick.
(b) If Y tries to rape Z, X acts in private defence if he hits Y over the head with a
stick.
(c) If Y tries to rob X of R10 000,X acts in private defence if he hits Y over the head
with a stick.
(d) If Y orders his vicious dog to bite X, and the dog starts to respond to Y's order,
X acts in private defence if he kills the dog.
(e) If Z orders Y's vicious dog to bite X, and the dog starts to respond to Z's
order, X acts in private defence if he kills the dog.
45.
46. To prevent X from raping Y, Z hits X over the head with a blunt object. X suffers
severe concussion. If X institutes a delictual action against Z, Z may rely on the
following defence :
47.
(a) Necessity
(b) Private defence
(c) Provocation
48.
49.
50.
PVL 3703

51. X, brandishing a panga, orders Y to hand over her handbag. Y jumps on Z’s
motorbike and drives away. Y does not manage to change the gears, and after she
has driven 5 kilometres the engine burns out. If Z wishes to recover his repair costs
from Y, she may rely on the following defence :
52.
(a) Necessity
(b) Private defence
(c) Statutory authority
53.
54. Mike metes out corporal punishment to his employee, Phil. Mike told Phil that if he
did not submit to the corporal punishment, he would lose his job. If Phil institutes a
delictual action for the infringement of his personality interests, Mike may rely on the
following defence :
55.
(a) Official command
(b) Statutory authority
(c) Consent
56.
57. X bumps into his sworn enemy, Y, in a bar. He draws a water pistol that looks just like
a real pistol and directs it at Y. Y gets a fright and in a swift reaction, he draws his
real pistol, fires a shot and wounds X. X wants to claim the medical costs involved in
the treatment of the wound from Y. Which one of the following defences would be
available to Y ?
58.
59. (a) Private defence.
60. No – judged objectively, there was no unlawful attack. Y’s subjective belief that he
was being attacked is irrelevant here. It will be relevant when judging whether the
element of fault was present.
61. (b) Necessity.
62. No – judged objectively, Y was in no state of necessity.
63. (c) Provocation.
64. No – judged objectively, Y’s retaliation was not reasonable.
65. (d) Power of chastisement.
66. No.
67. (e) None of the above.
68. Yes – this, by way of elimination, is the correct answer. Note that Y will not
necessarily be liable, since fault was probably not present.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
PVL 3703

81. X asks his friend Y to take his (X's) dog for a walk and Y consents to this. Y notices
his sworn enemy Z. Y incites the dog to bite Z. The dog charges at Z, uttering blood-
curdling growls. Z draws out his 9 mm pistol and kills the dog with one shot. X wants
to claim the value of his dog from Z with the Aquilian action.
82. Which one of the following defences will be available to Z?
(a) private defence

(b) necessity
(c) provocation
(d) power of chastisement
(e) none of the above
83. X is initiated as member of a secret gang. Part of the initiation ceremony entails that
the left ears of the new members be cut off. X is well aware of this and does not
raise any objection. Y, the leader of the gang, ceremoniously cuts off X’s ear. Shortly
afterwards, serious infection and other complications set in, and X must receive
hospital treatment. X claims damages from Y. Which ground of justification is
available to Y ?
84.
85. (a) Necessity.
86. No – facts do not support a finding that requirements of necessity are present.
87. (b) Provocation.
88. No – requirements are not complied with.
89. (c) Consent.
90. No – consent to serious bodily injury is contra bonos mores, unless given in the
context of medical treatment or organised sport.
91. (d) Official capacity.
92. No – requirements are not complied with.
93. (e) None of the above.
94. Yes – by way of elimination, this is the correct answer.
95.
96. The following case is regarded as authority for the proposition that killing of an
innocent person may be justified by necessity :
97.
Ex parte Minister van Justisie : in re S v Van Wyk
Molefe v Mahaeng
S v Goliath
98.
99. Alex incites Bert’s dog to bite Charles. Charles kills the dog with his golf club. Bert
institutes a delictual claim against Charles. What defence may be available to
Charles ?
100.
Private defence
necessity
provocation
volenti non fit iniuria
none of the above
PVL 3703

101.
(a) If Y's dog has rabies, and attacks X, X acts in necessity if he kills the dog.
(b) If Y's dog has rabies, and attacks Z, X acts in necessity if he kills the dog.
(c) If Y's dog has rabies, and attacks Y, X acts in necessity if he kills the dog.
(d) If Y's dog has rabies, and attacks X's dog, X exceeds the boundaries of
necessity if he kills Y's dog.
(e) If Z orders Y's vicious dog to bite X, X acts in necessity if he kills
the dog.
(a) A person must understand what he is consenting to.

(b) A person must not be tricked into consenting.
(c) A person must not be forced to give consent.
(d) A person may not consent to an act that would have been contra bonos mores
but for the consent.
(e) In certain instances a person may consent to serious bodily injury.
(a) A person need not fully understand what he is consenting to.

(b) Consent to bodily injury of a very minor nature is contra bonos mores.
(c) A forced consent is not always invalid.
(d) Consent cannot be valid if the consent is contra bonos mores.
(e) A person may never consent to serious bodily injury.
105.
106. The following case deals with the approach that wrongfulness consists in the breach
of a legal duty :
107.
Molefe v Mahaeng
S v Goliath
108.
109.
110.
111.
112.
113.
PVL 3703

114.
115. Fault
116.
In which of the following instances is intention not present ?
117.
118. (a) X, a medical doctor, euthanases a patient who has been suffering
terribly. X is under the incorrect impression that his conduct is not
wrongful in the particular circumstances.
119. (Consciousness of wrongfulness is absent, and therefore intent cannot be
present).
120. (b) X wants to kill his neighbour’s cat. He aims at it with his bow and arrow,
and kills it with a single shot. However, he was at no stage certain he would
have been able to shoot the cat at that distance.
121. (Intent can be present even if the wrongdoer is uncertain what the consequence will
be).
122. (c) X practises his golf swing in his backyard. The thought occurs to him
that a too powerful swing might break a window of his neighbour’s house, but
he nevertheless goes ahead. His 2nd swing breaks the neighbour’s window.
123. (Intent is present in the form of dolus).
124. (d) A member of an international terrorist organisation plants a time bomb
in a sports stadium. The bomb explodes and injures 24 people. Not one of the
injured persons was known to the terrorist.
125. (Intent is present in the form of dolus indeterminatus).
126. (e) X wants to steal Y’s car radio. He has no desire to break the car
window, but he does not succeed in breaking into the car any other way. He
therefore smashes the window with a brick.
127. (Intent is present in the form of dolus indirectus).
128.
2 Which statement in respect of the negligence of a child is false ?
129.
130. (a) In Jones v SantamBpk 1965 (2) SA 542 (A), the court implied that the
criterion for the determination of negligence is always objective in the sense
that in all situations, the test of the reasonable man is applied.
131. (b) According to the approach in the Jones case, it must 1st be ascertained
whether the child concerned met the standard of care required of the
reasonable man; and 2nd whether the child was accountable.
132. (c) In Roxa v Mtshayi 1975 (3) SA 761, the Appellate Division fully
endorsed the procedure followed in the Jones case.
133. False – in the Roxa case, the court followed the correct order, 1st testing for
accountability and then for negligence.
134. (d) In Weber v SantamVersekeringsmaatskappy LTD 1983 (1) SA 381
(A) the court held that the Jones case did not materially depart from the
common law and thus confirmed the approach in the Jones case.
135. (e) In the Weber case, the view was put forward that if the Jones
approach was applied with insight, most of the criticism against it would fall
away.
136.
PVL 3703

137.
138.
139. Damage
140.
141.
1 Prospective loss is best assessed in accordance with :
142.
The concrete approach to damage
Res inter alios acta
143.
2 The principle dictating at which stage prospective loss must be claimed is known
144. as :
145.
146.
3 Loss that has already been sustained is best assessed in accordance with :
147.
148.
149.
150.
151. Delictual remedies

152.
1. For which one of the following delictual remedies is there no need to prove
damage ?
153.
154. (a) actio legis Aquilae
(b) action for pain and suffering
(c) actio iniuriarum
(d) actio de pastu
(e) interdict
155.
156.
PVL 3703

157.
158.
159.
160.
161.
162.
2 Which one of the following statements on delictual remedies is correct ?
163.
164. (a) Intent is always a requirement for the actio iniuriarum.
165. Incorrect – intent is usually required for the actio iniuriarum but there are exceptions
e.g. liability of media for defamation is based on negligence.
b The only difference between the actio legis Aquiliae and the actio iniuriarum is
the fact that these two actions protect different categories of legal objects.
Incorrect – they also differ in respect of the fault requirement. For the actio iniuriarum
intent is usually required, whereas negligence is sufficient for the actio legis Aquiliae.
c The actio legis Aquiliae may, inter alia, be instituted if patrimonial loss
flows from an infringement of a personality right.
166. Correct – the actio legis Aquiliae is in principle available for all
patrimonial loss caused wrongfully and culpably. It is true that the actio
iniuriarum (and the action for pain and suffering) are the actions primarily
available for the infringements for personality rights, but those actions are used
to claim non-patrimonial loss, not patrimonial loss.
167. (d) The requirements for an interdict are conduct, wrongfulness and
causation.
168. Incorrect – requirements for an interdict are conduct, wrongfulness and the
unavailability of another suitable remedy.
169. (e) The action for pain and suffering developed in Germanic customary law
and has the same field of application as the actio legis Aquiliae.
170. Incorrect – with this action, compensation is claimed for (mainly) negligent
causing of bodily injury, whereas the actio legis Aquiliae is used to claim damages for
any patrimonial loss caused wrongfully and culpably.
171.
172.
a Delictual remedies differ substantially from criminal sanctions.
b Delictual remedies are compensatory in character.
c Criminal sanctions are penal in character.
d One and the same act may found delictual as well as criminal liability.
e Not all delicts are crimes, but all crimes may under suitable
circumstances also give rise to delictual liability
173.
174.
(a) Delictual remedies do not differ substantially from criminal sanctions.
(b) Delictual remedies are compensatory in character.
(c) Criminal sanctions is aimed at maintaining private interests.
(d) One and the same act may not found delictual as well as criminal liability.
(e) Not all delicts are crimes, but all crimes may under suitable circumstances
also give rise to delictual liability
175.
PVL 3703

6 Andrew inadvertently damages Ben’s violin. Which delictual action may be available
to Ben ?
176.
actio iniuriarum
actio de pastu
none of the above
177.
7 John and Peter bear a grudge against Greg and agree to teach him a lesson he will
car by hitting it with hammers. If Greg successfully sues John and Peter in delict,
they will incur :
178.
a Vicarious liability
b Joint and several liability
c Liability based on contributory intent
d Strict liability
e Risk liability
179.
8 For which one of the following delictual remedies need damage not be proved ?
180.
181. (a) Interdict
182. (Requirements for an interdict are conduct, wrongfulness and the unavailability
of another suitable remedy – damage need not be proved)
183. (b) Action for pain and suffering
184. (Damage, in form of bodily injury, must be proved)
185. (c) Actio iniuriarum
186. (Damage, in form of infringement of personality interests, must be proved)
187. (d) Actio de pastu
188. (Damage, by animal eating plants, must be proved)
189. (e) Actio legis Aquiliae
190. (Damage, in form of patrimonial loss, must be proved)
191.
9 If X wrongfully and intentionally infringes one of Y’s personality interests, Y may
consider using the following remedy against X :
192.
a Actio legis Aquiliae
b Actio iniuriarum
c Action for pain and suffering
d Interdict
193.
194. 10. If X wrongfully and negligently infringes Y’s physical integrity, Y may consider
using the following remdy against X :
195.
(a) Actio legis Aquiliae
(b) Actio iniuriarum
(c) Action for pain and suffering
(d) Interdict
PVL 3703

196.
197.
198.
199.
200.
201.
202.
203.
204.
205.
206. Specific forms of iniuria

207.
1 James employs electronic equipment to listen in on Karl’s telephone conversations.
Which remedy or remedies may be available to Karl ?
208.
a action for pain and suffering
b actio iniuriarum
c action for pain and suffering and interdict
d actio de effusis vel deiectis
e none of the above
209.
2 John, an attorney, tells many people that Peter, an attorney from another law firm,
had an affair withhis secretary. What remedy or remedies may be available to
210. Peter ?
211.
(a) actio legis Aquiliae
(b) actio iniuriarum
(c) interdict
(d) actio de effusis vel deiectis
(e) actio de pauperie
212.
3 Koos inadvertently walks into an ablution facility for ladies and sees Brenda taking a
shower. Which remedy may be available to Brenda ?
213.
a actio legis Aquiliae
b actio iniuriarum
c action for pain and suffering
e none of the above
214.
4 Mark inadvertently pushes over a ladder on which Chris is standing. Chris breaks an
arm. Which remedy or remedies may be available to Chris ?
215.
a action for pain and suffering
b actio iniuriarum
c action for pain and suffering and actio iniuriarum
d action for pain and suffering and actio de effusis vel deiectis
e none of the above
PVL 3703

216.
5 Martha accidentally bumps Naomi with a shopping trolley. Naomi sustains a painful
and unsightly gash on her arm. Which remedy or remedies may be available to
Naomi ?
217.
(a) action for pain and suffering
(b) actio iniuriarum
(c) action for pain and suffering and actio iniuriarum
(d) action for pain and suffering and actio de effusis vel deiectis
(e) none of the above
218.
6 Norman enters into a sexual relationship with Lex’s wife. Which remedy or remedies
may be available to Lex ?
219.
a actio iniuriarum
b action for pain and suffering
c actio iniuriarum and action for pain and suffering
e none of the above
220.
7 According to the following case liability of the media for defamation is based on
negligence :
221.
Molefe v Mahaeng
S v Goliath
222.
223. 8. Which one of the following statements is incorrect ?
224.
225. (a) The generally accepted classification of iniuriae in Roman law was that
the actio iniuriarum was applicable to infringements of the corpus, fama and
dignitas
226. (b) In Roman law, the corpus and the fama were more clearly delineated
interests of personality than the dignitas.
c In contemporary law, the concept of dignitas refers to the dignity in a
wide sense.
d Among the personality interests protected by the actio iniuriarum are the
corpus, fama, dignity and privacy.
e The action for pain and suffering did not originate in Roman law.
227.
228.
a The generally accepted classification of iniuriae in Roman law was that the
actio iniuriarum was applicable only to infringements of corpus and fama.
b In Roman law dignitas was a clearly delimited interest of personality.
c In contemporary law, the concept of dignitas refers only to dignity as an interest
of personality.
PVL 3703

d The action for pain and suffering did not originate in Roman-Dutch law.
e The action for pain and suffering did not originate in Roman law
229.
11 Which one of the following is not an iniuria (infringement of a personality right) ?
230.
(a) Defamation
(b) Negligent misrepresentation
(c) Invasion of privacy
(d) Infringement of physical integrity
(e) Insult
231.
232.
233.
234.
235. The reasonable man test for defamation is …
236.
(a) … an objective standard
(b) … an embodiment of the boni mores criterion
(c) … of decisive importance with regard to the question of wrongfulness
(d) … the same test as the reasonable man test for negligence
(e) … determines whether a plaintiff’s right to his good name was infringed
237.
238.
239. Forms of liability without fault

240.
1 Mike’s cow eats and tramples George’s crops. Mike forgot to close the gate between
his and George’s land. Which remedy or remedies may be available to George ?
241.
a actio de pauperie and actio legis Aquiliae
b actio de pauperie and interdict
c actio de pastu only
d actio de pauperie only
e actio de pastu and actio legis Aquiliae
242.
2 Which one of the following is incorrect in respect of the applicability of the actio de
pauperie ?
243.
(a) The injured person must be the owner of the animal when the damage is
inflicted
(b) The animal must be a domestic animal
(c) The animal must act contra sui generis when inflicting the damage
(d) The injured person must be lawfully present at the location where the damage
is inflicted
(e) Culpable conduct on the part of an outsider is a valid defence against the actio
de pauperie
244.
PVL 3703

3 While Mark is away on vacation, George chases his cattle onto Mark’s land to graze
there. Mark returns to find his land overgrazed and trampled. Mark now has to buy
fodder to feed his horses. Mark can institute the following action or actions against
George ?
245.
a Actio de pauperie only
b Actio de pauperie and actio legis Aquiliae
c Actio de pastu only
d Actio de pastu and actio legis Aquiliae
246. Because fault is probably present, the actio legis Aquiliae can also be
used
247.
248.
249.
250.
251.
4 While John is jogging, Nic’s dog chases him and bites him. John is admitted to the
casualty unit of a local hospital, where he receives stitches and treatment for shock.
It transpires that Nic had forgotten to close the gate to his property, thus creating an
opportunity for his dog to roam the streets. John can institute the following action or
actions against Nic :
252.
a Actio de pauperie only
b Actio de pauperie and actio legis Aquiliae
c Actio de pastu only
d Actio de pastu and actio legis Aquiliae
253.
PVL 3703

PVL3703 Law of Delict: MCQ
NOTE: Most answers are personal or own answers to MCQ from various examination papers and tutorial letters.
There might be a few that are incorrect, however most are answered as from the Study Guide and prescribed
material.
1. Provocation
2. Self-defence
3. Black-out
4. Necessity
Answer: 3. Black Out
2. Choose the correct statement:

In Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938
(CC) the Constitutional Court:
1. declared that the courts of lower instance had erred by applying a pre-constitutional concept of the
boni mores.
2. noted that the law of delict admirably reflected the spirit, purport and object of the Bill of Rights.
4. recognised the concept for a Constitutional delict.
Answer: 1. declared that the courts of lower instance had erred by applying a pre-constitutional concept
of the boni mores.
3. Dr. B, a well-known obstetrician, delivered S’s son, K. During the delivery, the nerves in K’s right shoulder were
injured resulting in the paralysis of his arm. All of this happened because Dr. B failed to inform S of the potential
complications inherent in delivering a large baby. Indicate the MOST CORRECT statement:
Negligence will be determined according to the standard of:

Answer: 1. The reasonable doctor.
4. M is away on holiday. F, his neighbour, is keeping a watchful eye on his house for him and undertook to take
care of M’s cat. F notices that M’s house is on fire and realises that the cat is trapped inside the burning house.
F breaks down the front door in order to save the cat. If M wants to institute a delictual action against F for
breaking down his front door, F may rely on the following ground of justification:
2. Necessity
3. Provocation
4. Private Defence
Answer: 2. Necessity
5. D is so offended by W’s speech at a political rally, that he throws an apple at W. W falls off the podium and
sustains a broken arm as well as a few broken ribs. He is admitted to hospital. While W is being treated at the

2
hospital, a nurse leaves the windows of the ward open and W contracts pneumonia. Which one of the following
is INCORRECT?
1. D acted wrongfully.
2. D had fault.
3. There is a factual causal link between D’s conduct and W’s pneumonia.
4. There is a legal causal link between D’s conduct and W’s pneumonia.
Answer: 4. There is a legal causal link between D’s conduct and W’s pneumonia
6. The most suitable remedy for the prevention of harm is:

2. the actio de effuses vel deiectis.
3. the interdict.
Answer: 3. The interdict
7. The principle dictating that all past and prospective loss must be claimed together stemming from a single
cause of action, is known as:

Answer: 2. the ‘once and for all’ rule.

Answer: 4.The sum-formula approach.
9. E and R bear a grudge against G and agree to teach him a lesson he will not forget. While G is in a shopping
centre, E and R damage G’s motor car by hitting it with hammers. If G successfully sues E and R in delict, they
will incur:
3. liability base on contributory intent.
Answer: 2. joint and several liability.
10. Which one of the following situations can it be said that publication of defamatory word has taken place?
1. Two German tourists visit SA. They start to argue in German in front of so locals (who do not understand
German) and the one tourist calls the other a liar and an adulterer.
2. Mr. X tells his wife that V at his office is having an affair with her secretary.

3
3. B meets R at the local post office and tells R that the manager of the post office, Mrs. P, is involved
in an adulterous affair with R’s neighbour, H.
4. Mrs. B tells her husband that T, a work colleague of Mrs. B, has stolen money from the cash register on
numerous occasions.
Answer: 3. B meets R at the local post office and tells R that the manager of the post office, Mrs. P, is
involved in an adulterous affair with R’s neighbour, H.
11. A inadvertently damages B’s violin. Which delictual action may be available to B?
1. actio legis Auiliae.

3. action for pain and suffering.
4. actio de pastu.
Answer: 1. actio legis Auiliae.
12. J employs electronic equipment to listen in on K’s telephonic conversations. Which remedy or remedies may be
available to K?

3. actio de pauperie.
4. actio de effusis vel deiectis.
Answer: 2. actio iniuriarum.
13. M inadvertently pushes over a ladder on which C is standing. C breaks an arm. Which remedy or remedies may
be available to C?
1. action for pain and suffering.

4. action for pain and suffering and actio de effusis vel deiectis.
Answer: 1. action for pain and suffering.
14. J allows M to fire some practice shots with his new pistol at an apple on J’s head. The second shot makes a
hole in J’s left ear. J institutes a delictual action against M. M may rely on the following defence:
1. private defence.
3. provocation.
4. consent on the risk of injury.
Answer: 5. none of the above.
15. The principle dictating at what stage prospective loss must be claimed, is known as:

4
16. According to the following case the onus is on the plaintiff to prove that the defendant acted voluntarily, rather
than on the defendant to prove the presence of automatism:

4. Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
5. S v Goliath 1972 3 SA 1 (A).
Answer: 2. Molefe v Mahaeng 1999 1 SA 562 (SCA).
17. The following case is regarded as authority for the proposition that killing a person to protect property may be in
certain circumstances be justified by private defence:

4. Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
5. S v Goliath 1972 3 SA 1 (A).
Answer: 1. Ex parte Minister van Justisie: in re S v Van Wyk 1967 1 SA 488 (A).
18. A incites B’s dog to bite C. C kills the dog with his golf club. B institutes a delictual claim against C. What
defence may be available to C?
1. Private defence.
2. Necessity.
3. Provocation.
4. volenti non fit iniuria.
Answer: 2. Necessity.
19. A causes harm to B in a wrongful and culpable manner. If B succeeds in holding C, A’s employer, liable for
damage caused by A, Charles wil incure:

4. liability based on contributory negligence.
Answer: 2. vicarious liability.
20. When an infringement of a fundamental right constitutes a delict per se, this is known as:

5
2. a constitutional delict.
Answer: 2. a constitutional delict.
21. M, a financial adviser, negligently advises H to make a bad investment. As a result of this, H suffers a serious
financial setback. However, there is no damage to H’s person or property. Which one of the following delictual
remedies may be available if H wishes to recover his financial loss from M?

2. the actio iniuriarum.
3. the action for pain and suffering.
Answer: 1. the actio legis Aquiliae.
22. S steals a big screen tv set from an electronics store. To get to the tv set, he smashes a window made from
expensive security glass. In respect of the damage to the window, S has:
4. Luxuria.
Answer: 1. Dolus indirectus.
23. C is employed by R as a driver in R’s courier business. C has the weekend off, and decides to visit M on
Saturday evening. On his way to M’s apartment, C is involved in an accident due to his own negligence. C’s
vehicle and the vehicle of D, the other motorist involved in the accident, are badly damages. D discovers that
C’s financial position is not good. Advise D on the best course of action:
1. institute an action against R based on vicarious liability.

2. institute an action against R and C as joint wrongdoers.
3. institute an action against R based on culpa in eligendo.
4. institute an action against C.
Answer: 4. institute an action against C.
24. M’s cow eats and tramples G’s crops. M forgot to close the gate between his and G’s land. Which remedy or
remedies may be available to G?
1. actio de pauperie and actio legis Auiliae.

4. actio de pastu and actio legis Auiliae.
Answer: 4. actio de pastu and actio legis Auiliae.
25. N enters into a sexual relationship with L’s wife. Which remedy or remedies may be available to L?


6
Answer: 3. actio iniuriarum and action for pain and suffering.
26. According to the following case liability of the media for defamation is based on negligence:

2. Molefe v Mohaeng 1999 1 SA 562 (SCA).
4. S v Goliath 1972 3 SA 1 (A).
Answer: 3. National Media Ltd v Bogoshi 1988 4 SA 1196 (SCA).
27. Absolute compulsion is one of the conditions that may cause a person’s behaviour to be involuntary and hence
not to qualify as conduct for the purpose of delictual liability. In which one of the following instances is Y subject
to absolute compulsion?
1. X points a gun a Y to damage Z’s motor vehicle. In order to save his own life, Y dents Z’s motor vehicle.
2. Y suffers an epileptic fit while driving his motor vehicle and in the process smashes into Z’s motor vehicle.
3. Y is ‘blind drunk’ and lies on the sidewalk, making involuntary movements with his arms and legs. Z’s motor
vehicle is parked next to Y and Y’s involuntary movements cause a dent in Z’s motor vehicle.
4. X pushes a baseball bat into Y’s hand and then, without Y being able to offer resistance, X takes
hold of Y’s hand and forces it to cause a dent on Z’s motor vehicle.
Answer: 4. X pushes a baseball bat into Y’s hand and then, without Y being able to offer resistance, X takes
hold of Y’s hand and forces it to cause a dent on Z’s motor vehicle
28. Which one of the following best describes what is meant by “psychological lesion”?
1. Emotional shock.
Answer: 1. Emotional shock
1. J’s vicious dog charges to attack Z. To protect himself, Z picks up a baseball bat and give the dog a blow to
the head.
2. B threatened W with a knife and robs her of her cell phone. After 3 months, W sees B at a shopping centre
and reacts by stabbing B with a high heeled shoe.
3. A child points a firearm at you and you grab him to prevent him from shooting you. The child
sustains injuries to his arm.
4. A police officer arrests L in the execution of a legitimate warrant of arrest. L resists the arrest. He jabs the
policeman, cracking one of the policeman’s ribs, in an attempt to escape.
Answer: 3. A child points a firearm at you and you grab him to prevent him from shooting you. The child
sustains injuries to his arm
30. N is chased by a fierce Jersey bull and jumps onto C’s scooter, which is parked next to the road, in order to
race away and save his own life. The scooter is damaged and C institutes a delictual claim against N. N may

7
1. Private defence.
2. Necessity.
3. Provocation.
31. C, 17, left his PlayStation in his locker at school. J, 15, wants to steal C’s PlayStation. He realises that he would
have to damage C’s locker in order to get the PlayStation. In respect of the damage to the locker, J has:
1. dolus directus.
Answer: 2. dolus indirectus.
32. Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd 1997 (2) SA 591 (W) dealt with:
Answer: 1. contributory intention.
33. J plays tennis in his back yard. He foresees the possibility of his ball breaking a window in his neighbour’s
house, but decides that it will not happen. If the ball indeed breaks the window, J had the following in respect of
the damage:
4. luxuria.
Answer: 4. luxuria.
34. G and M are farming on adjacent properties. G bears a grudge against M. He sets up a device, which causes a
loud bang every half an hour, on the common boundry between the two farms, near M’s homestead. As a result
of this, M and his family cannot sleep at night and are irritated by day. M asks G to dismantle the device, but G
says that he device serves the purpose of scaring baboons away from his orchards. Which delictual remedy
may be available to M?

3. The interdict.
4. The actio de effuses vel deiectis.
Answer: 3. The interdict.
35. J, an employee of Z, was on route to Rustenburg delivering bread when he accidentally skipped a red robot and
crashed into D’s car. If D successfully sues Z (as employer) for the damage to his car, Z will incur:

8
4. risk liability.
Answer: 3. vicarious liability.
36. J threatens L with a gun and orders her to hand over her cell phone. L, in fear of her life, hands over the cell
phone. One week later, L spots J at a nearby shopping centre. L rushes home and grabs a knife. She returns to
the shopping centre and stabs J. J wants to institute a delictual action against L. L may rely on the following
1. Necessity.
2. Provocation.
3. Private defence.
Answer: 4. None of the above.
37. The delictual remedy used to claim damages for patrimonial loss caused wrongfully and negligently is the:

3. action for pain and suffereing.
4. actio de pastu.
5. interdict.
Answer: 1. actio legis Aquiliae.
38. The delictual remedy used to obtain a solatium for intentional infringement of personality rights is the:

4. actio de pastu.
5. interdict.
39. The delictual remedy used to prevent wrongful causing of harm is the:

4. actio de pastu.
5. interdict.
Answer: 5. Interdict.
40. The delictual remedy used to claim compensation for negligent infringement of the corpus is the:

4. actio de pastu.

9
5. interdict.
41. The delictual remedy with which damages can be prevented without proving fault is the:

4. actio de pastu.
5. interdict.
Answer: 5. interdict.
42. When so-called open-ended delictual norms are given content in light of the basic values of chapter 2 of the
Constitution, this is known as:

5. a constitutional delict.
Answer: 2. indirect application of the Bill of Rights.
43. Prospective loss is best assessed in accordance with:

5. mitigation.
44. Defamation is in the first place an infringement of a person’s:
1. bodily integrity.
2. good name.
3. privacy.
4. identity.
5. feelings.
Answer: 2. good name.
45. If a person can differentiate between right and wrong and act in accordance with this insight, he/she:
1. is in a state of automatism.
2. can rely on a ground of justification.
3. has intent.
4. is negligent.
5. is accountable.
Answer: 5. is accountable.

10
46. Barnard v Santambank 1999 1 SA 2020 (SCA) dealt with:
1. psychological lesions (emotional shock).

2. pure economic loss.
3. negligent misrepresentation.
4. unlawful competition.
5. manufacturer’s liability.
Answer: 1. psychological lesions (emotional shock).
47. An important development concerning the fault requirement in defamation cases too place in:
1. International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A).

3. Boshoff v Boshoff 1987 2 SA 694 (O).
4. Castell v De Greeff 1994 4 SA 408 (C).
Answer: 5. National Media Ltd v Bogoshi 1988 4 SA 1196 (SCA).
48. Consent as a ground of justification in the field of medical interventions was dealt with in:
1. International Shipping Co (Pty) Ltd v Bentley 1990 1 SA 680 (A).

4. Castell v De Greeff 1994 4 SA 408 (C).
Answer: 4. Castell v De Greeff 1994 4 SA 408 (C).
49. The importance of the doctrine of subjective rights for the element of wrongfulness was discussed in:
1. Universiteit van Pretoria v Tommie Meyer Films 1977 4 SA 488 (A).

2. Minister van Polisie v Ewels 1975 3SA 590 (A).
3. Ex parte Minister van Justisie in re S v Van Wyk 1967 1 SA 488 (A).
4. S v Goliath 1972 3 SA 1 (A).
Answer: 1. Universiteit van Pretoria v Tommie Meyer Films 1977 4 SA 488 (A).
50. Indicate the CORRECT statement with regard to delictual remedies:
1. The actio iniuriarum is directed at “satisfaction” for the wrongful and intentional injury to
personality.
4. “Invasion of privacy” in practice is considered as a form of damnum iniuria datum.
Answer: 1. The actio iniuriarum is directed at “satisfaction” for the wrongful and intentional injury to
personality.
51. Which one of the following IS NOT a requirement for an interdict:

11
Answer: 4. Intention or negligence must be present.
52. Indicate the CORRECT statement with regards to the concurrence of delictual, criminal and contractual liability:

2. One and the same act may render the wrongdoer delictually as well as contractually liable.
Answer: 2. One and the same act may render the wrongdoer delictually as well as contractually liable.
53. Indicate the INCORRECT statement with regard to the law of delict and the Constitution:

3. An infringement of a right cannot constitute a constitutional wrong and a delict.
4. Indirect application means that the state must generally respect fundamental rights and not infringe
them.
Answer: 4. Indirect application means that the state must generally respect fundamental rights and not
infringe them.
54. Which one of the following is a requirement for the successful reliance on “private defence”?

4. Factual and legal causation must be present.
Answer: 3. The attack must be wrongful.
55. Indicate the INCORRECT statement with regard to intent:
1. According to Neethling and Potgieter, consciousness of wrongfulness is a requirement for intent.

2. Dolus eventualis exists where the wrongdoer directly wills one consequence of his conduct but at
that same time acknowledges that another consequence will unavoidably occur.
4. Dolus indeterminatus exists where the wrongdoer’s will is directed at the result which he causes while he
has no specific person or object in mind.
Answer: 2. Dolus eventualis exists where the wrongdoer directly wills one consequence of his conduct but
at that same time acknowledges that another consequence will unavoidably occur.
56. Which of the following requirements must be present before provocation may be raised as a defence?

3. the Defendant must not have contributed to the provocative conduct.
4. 2 and 3 above.

12
Answer: 1. The conduct of the defendant must be immediate.
57. Which of the following acts IS NOT an iniuria (infringement of a personality right)?
1. Defamation.
4. Adultery.
Answer: 2. Negligent misrepresentation.
58. In which one of the following remedies is the NO need to prove damage?
1. Interdict.
2. Actio de pastu.
Answer: 1. Interdict.
59. For which one of the following remedies is fault NOT a requirement:

Answer: 2. Actio de pauperie.
60. Which one of the following principles relates to the rule that you must “take your victim as you find him”?
1. The ‘sum-formula’ approach.

2. The ‘once and for all’ rule.
3. The ‘talem qualem’ rule.
4. The ‘mitigation’ principle.
Answer: 3. The ‘talem qualem’ rule.
61. D’s dog bites M. M suffers serious injury. D was not negligent in respect of M’s injuries, and M did not provoke
the dog in any way. M can use the following remedy against D:
1. Apportionment of damages.
3. Actio de pastu.
4. Interdict.
5. Joint and several liability
Answer: 2. Actio de pauperie.
62. Which one of the following statements is correct with regard to delictual liability?
1. The action legis Aquiliae may be used as the primary remedy for delicts that cause injury to personality.
2. The action iniuriarum may be used as the primary remedy for patrimonial loss.

13
3. In South African law, delictual liability is governed by a generalising approach.
4. In South African law, each delict has its own unique requirements.
Answer: 4. In South African law, each delict has its own unique requirements.
63. Which one of the following statements is INCORRECT with regard to a delict?

3. One and the same act my result in a delict and a crime.
Answer: 1. Breach of contract is a species of the genus delict.
64. B and J attend a friend’s party one evening. On this particular occasion J drinks double the amount of alcohol
he usually drinks. B is aware of this, but nevertheless decides to catch a lift home with J. On the way home J
crashes into a tree and they are both severely injured. B institutes a delictual action against J. Which one of the
following defences is the most likely to succeed in this scenario:
1. Consent to injury.
4. Necessity.
Answer: 2. Consent to the risk of injury.
65. N’s 2year old daughter falls down a flight of stairs. N believes that the child has sustained a brain injury and
rushes her to the hospital. On the way to the hospital N drives over the neighbour’s dog which subsequently
dies. The neighbour institutes a delictual claim against N. It later transpires that N’s daughter merely suffered
from mild shock. Which one of the following defences may N rely on?
1. Provocation.
2. Private defence.
3. Necessity.
66. T punches D in the face in an attempt to stop D from hitting him with a spade. D decides to institute delictual
action against T for the injury sustained to his face. Which defence could T rely on?
1. Provocation.
2. Private defence.
3. Necessity.
67. Choose the correct alternative: Dolus indirectus is present where the wrongdoer:
1. desires a particular indirect result with regard to his conduct and continues with his plan causing the indirect
result.
2. does not desire a particular result but foresees the possibility of the result and reconciles himself with that
possibility nevertheless performing the act.

14
3. directly intends the result of his conduct but simultaneously is aware that another consequence will
unfortunately occur.
4. does not desire a particular result but foresees the possibility of the result, reconciles himself with that
possibility and later comes to the conclusion that the result would not happen.
Answer: 3. directly intends the result of his conduct but simultaneously is aware that another consequence
will unfortunately occur.
68. Choose the correct alternative: Dolus eventualis is present where the wrongdoer:
1. desires a particular indirect result with regard to his conduct and continues with his plan causing the indirect
result.
2. does not desire a particular result but foresees the possibility of the result and reconciles himself
with that possibility nevertheless performing the act.
3. directly intends the result of his conduct but simultaneously is aware that another consequence will
unfortunately occur.
4. does not desire a particular result but foresees the possibility of the result, reconciles himself with that
possibility and later comes to the conclusion that the result would not happen.
Answer: 2. does not desire a particular result but foresees the possibility of the result and reconciles
69. In which one of the following cases did the court uphold the defence of volenti non fit iniuria when a player was
injured during a game of sports?
1. Esterhuizen v Administrator Trasvaal 1957 3 SA 710 (T).

2. Castel v De Greeff 1994 4 SA 408 (C).
4. Santam Insurance Co Ltd v Vorster 1973 4 SA 764 (A).
Answer: 3. Boshoff v Boshoff 1987 2 SA 694 (O).
70. Which one of the following statements is CORRECT with regard to accountability?

2. There is an irrebuttable presumption that a child between the age of seven and under fourteen years lacks
accountability.
4. A person who drinks and drives thereafter causing an accident can never be culpae capax.
Answer: 3. A person cannot be at fault without being accountable.
71. Which one of the following benefits IS NOT taken into account in reducing the amount of damages awarded to
the plaintiff?
1. Benefits received in terms of life insurance.

Answer: 3. Donations or ex gratia benefits.
72. Which one of the following IS NOT a requirement under the actio de pastu?

15
Answer: 2. The animal must be a domestic animal.
73. Indicate the CORRECT statement with regard to delictual remedies:
1. The actio iniuriarum is directed at “satisfaction” for the wrongful and intentional injury to
personality.
2. Intention is always a requirement for the actio legis Aquiliae
4. “Invasion of privacy” in practice is considered as a form of damnum iniuria datum.
Answer: 1. The actio iniuriarum is directed at “satisfaction” for the wrongful and intentional injury to
personality.
74. Indicate the INCORRECT statement with regard to the law of delict and the constitution:

3. Both a constitutional remedy and a delictual remedy are aimed primarily at compensation.
4. Direct application means that the state must generally respect fundamental rights and not infringe them.
Answer: 3. Both a constitutional remedy and a delictual remedy are aimed primarily at compensation.
75. A insults T, who in retaliation slaps A across the cheek. If A institutes a delictual action for the infringement of
his personality rights, T may rely on the following ground of justification
1. Necessity.
2. Private defence.
3. Provocation.
Answer: 3. Provocation.

QUESTION 1
John works in the control tower at the Take flight Airport. He suffers from a rare disease
not take his medicine. In the control tower, he has a blackout and is unable to ive the
necessary instructions to departing and arriving aircraft. A catastrophic airplane
accident takes place during his blackout because no instructions wereforthcoming. A

Conduct is defined as a voluntary human act or omission. “Voluntary” means that the
person must be able to control his muscular movements by means of his will. The act of
the wrongdoer must be voluntary to give rise to delictual liability. Conditions that may
cause a person to act involuntarily as they render him incapable of controlling his bodily
movements: absolute compulsion (vis absoluta), sleep, unconsciousness, fainting fit,
epileptic fit, serious intoxication, blackout, reflex movements, strong emotional pressure,
However, John had been receiving medical treatment for a diagnosed illness but failed
to take his prescribed medication on that particular occasion. He therefore intentionally
placed himself in a mechanical state (actio libera in causa). Actio libera in causa:
Defence of automatism won’t succeed if defendant intentionally created the situation in
which he acts involuntarily in order to harm another. The defendant will be held liable for
his culpable conduct in creating the state of automatism which resulted in damage to the
plaintiff.
John was negligent regarding his automatic “conduct.” Where the reasonable man
would’ve foreseen the possibility of causing harm while in a state of automatism, e.g. in
Victor case, X was convicted of negligent driving despite causing the accident during an
epileptic fit, as he’d been suffering fits for 13 years and the reasonable man
would’ve foreseen the possibility of causing harm while in a state of automatism. In this
case, John knew he may have a blackout if his medication was taken.
Only the voluntary act closest to the harmful consequence is of relevance, and it’s
therefore unnecessary to consider prior voluntary acts.
John placed himself in a mechanical state by not taking his medication Thus, John was
probably negligent, or could even have had intention in the form of dolus eventualis.
QUESTION 2

a week. It spills sanitising liquid by:
Downloaded onto the floor,
mickaylasmal in such large quantities that the liquid
does not evaporate immediately but forms a small puddle around the base of the
is aware of this situation but does not do anything about it. Ms C is an elderly lady
management of the Shop-Till-You-Drop Shopping Mall and approaches you for legal
advice.
Write an opinion, properly substantiated with reference to case law, only onthe
wrongfulness of the conduct of the management of the Shop-Till-You-Drop Shopping
Mall. (30)
This question deals with the wrongfulness of an omission. An omission is wrongful if

the defendant is under a legal duty to act positively to prevent the harm suffered by the
plaintiff. The basic question to determine whether an omission is wrongful is whether a
legal duty to act was present and was breached. As a general rule, a person does not
act wrongfully for the purposes of the law of delict if he omits to prevent harm to
another person. For liability to follow an act, prejudice must be caused in a wrongful
and unreasonable manner. Without wrongfulness the defendant cannot be held liable.
The legal convictions of the community (boni mores test) are used as the basic test for
wrongfulness. The general norm to see if an infringement of interests is unlawful is the
legal convictions of the community. Factors which may serve as indications that a legal
duty rested on the defendant include:
➢ rules of law Downloaded by: mickaylasmal | mickayla172@gmail.com

➢ and creating of an impression that the interests of a third person will be protected.
A person acts prima facie wrongfully when he creates a new source of danger and then
fails to eliminate that danger, with the result that harm is caused to another person. Prior
conduct is not a prerequisite for the existence of a legal duty, however at one stage this
was the only category where liability was imposed on a failure to act.
In Halliwell v Johannesburg Municipality; the municipality laid cobblestones in

Johannesburg’s city centre but failed to maintain those stones. When Mr Halliwell
crossed the cobblestone path with his horse carriage on a Christmas morning, his
horse stumbled on the poorly maintained road and Mr Halliwell was hurt. The court
held that the municipality was liable for the failure to maintain the cobblestone road
which led to Mr Halliwell’s injuries. This was explicitly done on the basis of the prior-
conduct rule. This rule was also employed in the case of Silva’s Fishing Corporation v
Maweza, where the owner of a boat sent fishermen out to sea (the prior positive
conduct) but when the boat stopped working, the owner did nothing to save the
fishermen (the subsequent omission). The boat owner was held liable for his omission.
In Regal v African Superslate, the prominence of the prior-conduct rule as the only
ground on which liability for an omission could be established ended. In the judgment it
was noted that the prior-conduct rule was not the only basis on which an omission
would be actionable. For the first time, the Appellate Division noted that the prior-
conduct rule and the rule related to the control of dangerous property are both grounds
on which the wrongfulness of an omission can be established.
In Regal it was showed that the conduct element could be satisfied by simply showing
the factual existence of an act or an omission. The wrongfulness of the omission was
then established by means of the prior-conduct rule or the rule related to the control of
dangerous property. The principle from Regal was later also applied in the case of
Minister of Forestry v Quathlamba; where a fire started on one property, the owner of
that property failed to control or contain the fire, and the fire spread to a neighbouring
property. This re-inforced the Regal decision that prior conduct is not the only criterion
for establishing a legal duty.
An extension of the rules related to the wrongfulness of omissions featured in the case
of Minister van Polisie v Ewels. In that case police officers passively stood by and
watched as a fellow police officer brutally assaulted a civilian. The court held that those
two rules as shown in prior cases are just two of many factors to consider in determining
the wrongfulness of omissions. In Ewels, considerations that weighed in favour of a
finding of wrongfulness of the omission of the passive police officers included the legal
duty placed on the police to protect citizens from harm, the special relationship between
police officers and the public, and the fact that the passive police officers were in a
position to exercise authority or control over their assaultive colleague.
In Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001, the CC made it clear that the boni mores must now be informed by
the values underpinning the Bill of Rights in the Constitution.
omission of the Centre Management of the shopping mall was wrong. Management at
the Shopping Centre had a legal duty in terms of the legal convictions of the community
to prevent this accident from happening.
Question 3
a ride on one of the mountain bikes trails in the Park. Even though Mike’s safety helmet
Steadywheels.

From the given facts, we can conclude that the defendant has been negligent, but the
plaintiff appears to have been negligent too. Thus we must consider whether
contributory negligence was present.
Contributory negligence is negligence on the part of the plaintiff, and it is a defence that
the defendant can raise. The Apportionment of Damages Act 34 of 1956 is applicable.
This Act provides that a contributorily negligent plaintiff’s damages be apportioned. The
court will determine the degree of deviation from the reasonable person standard shown
by the conduct of both the defendant and the plaintiff, express the deviation as
According to the Smit 1962 and Nomeka 1976 cases, the percentages of negligence
According to Jones NO v Santam Bpk 1965, both percentages must be assessed
independently, which could mean that, for example, a defendant may be 80% negligent
while the plaintiff is 30% negligent. According to Neethling and Potgieter, the approach
in Jones is to be preferred, but the 2 approaches can be reconciled. According to King v
Pearl Insurance Co Ltd 1970, a defence of contributory negligence could not succeed
where the plaintiff had omitted to wear a crash-helmet while driving a scooter but had
not been negligent in respect of causing the accident.
However, in Bowkers Park Komga Cooperative Ltd v SAR and H 1980, the court held
that contributory negligence didn’t refer to negligence in respect of the damage-causing
event, such as a motorcar accident, but to negligence in respect of the damage itself,
and this was confirmed by the AD in Union National South British Insurance Co Ltd v
Vitoria 1982 and General Accident Versekeringsmaatskappy SA Bpk v Uijs 1993.
Therefore, failure to wear a safety helmet would constitute contributory negligence if it
contributed to the plaintiff’s damage.

QUESTION 4
Does a factual causal link exist between Tom’s conduct and Williams broken
leg?
The generally accepted test for factual causation is the conditio sine qua non test, or ‘‘but
for test’’. This entails mentally eliminating, or thinking away, the conduct. If the damage
then also disappears, a factual causal link is present between the conduct and the
damage. This test is subject to much criticism. Among others, it is said to be based on
circular logic and is, at best, a way to express the existence of a causal nexus that has
been determined in another way. Neethling and Potgieter argue that evidence and
human experience are sufficient to determine whether one fact flowed from another fact,
and that a so-called test of factual causation is superfluous. However, the courts
consistently state that the conditio sine qua non is the test of factual causation. If we
apply the test to the facts, we must conclude that if Tom had knocked over the ladder
that William was standing on, he would not have broken his leg, and therefore a factual
causal link is present between Tom’s conduct and William’s damage.
Does a legal causal link exist between Tom’s conduct and William’s broken leg?

Mokgethi 1990 and International Shipping Co (Pty) Ltd v Bentley 1990.
According to the court, the main question in respect of legal causation is whether there
is a close enough relationship between the wrongdoer’s conduct and its consequence
for such consequence to be imputed to the wrongdoer in view of policy considerations
based on reasonableness, fairness and justice. Several other legal causation theories
exist, such as adequate causation, direct consequences, foreseeability and novus actus
interveniens.
to the facts in the question, the conclusion is probably that William’s broken leg was too
remote and should not be imputed to the wrongdoer. It could also be argued that a so-
called novus actus interveniens, that is, a new intervening act, was constituted by
Williams second fall, and this strengthens the conclusion that there is no legal causal link
between Tom’s conduct and William’s broken leg
QUESTION 5
why? (5)
Ground of Justification - Necessity.
A state of necessity exists when defendant is placed in such a position by superior force
(vis maior) that he is able to protect
Downloaded his legally
by: mickaylasmal recognised interests (or those of
someone else) only by reasonably violating the interests of an innocent person. Thus,
Ben will be successful with necessity as a ground of justification as he had no other
option but ot protect himself from the attack
QUESTION 6
Jane’s dog bit Carol, inflicting serious injuries. Jane was not negligent in any way. Name
the action with which Carol can claim damages from Jane and list the requirements to
succeed with this action. (5)
Action - The actio de pauperie

1. The defendant must be the owner of the animal when the damage is inflicted.
3. The animal must act contrary to its own nature when inflicting damage – as a rule an
animal doesn’t act contrary to its own nature if it’s reacting to external stimuli –defences:
vis major, culpable conduct on the part of the prejudiced person and provocation.
4. The prejudiced person or his property must be lawfully present at the location when
the damage is inflicted.
QUESTION 7
• Privilege
• Truth and public interest
• Fair comment
QUESTION 8
• Adultery
• Invasion of Privacy

May/June 2020
EXAM
PVL3703
Law of Delict
(2)
1. Infringement of a subjective rialght.
(2)

(2)
(2)
appropriate one.
(2)
(2)

with:
(2)

8. The question whether Charles’ conduct was wrongful, will be answered with reference
to the following:
1. The boni mores.
3. The conditio sine qua non test.
4. The doctrine of sudden emergency.
(2)
9. The question whether Charles’ conduct was negligent, will be answered by asking:
1. Whether Charles directed his will at the harm and was conscious of the
wrongfulness thereof.
2. Whether Charles would have foreseen and prevented the harm.
3. Whether the reasonable person in Charles’ position would have foreseen
and prevented the harm.
4. Whether the doctrine of sudden emergency is applicable.
(2)
10. Whether there was a factual causal link between Charles’ conduct and Ria’s harm,
(2)
11. Choose the most correct and most complete alternative: There was a factual causal
2. Ria’s broken nose and concussion and the hospital costs incurred in respect of
pneumonia.
(2)

(2)
2. Ria’s broken nose, concussion and the hospital costs incurred in respect
of treating the broken nose and concussion.
pneumonia.
(2)
(2)
be?
(2)


applies.
3. Thumi cannot rely on automatism because he negligently placed himself in
a situation where his movements were mechanical.
(2)
1. Necessity.
2. Private defence.
3. Provocation.
(2)
1. Necessity.
2. Private defence.
3. Provocation.
(2)

1. Necessity.
2. Private defence.
3. Provocation.
(2)
1. Privilege.
3. Consent.
(2)
to swerve from side to side, clearly with the object of dislodging Y who is clinging on
for dear life. Six kilometres further, X succeeds in dislodging Y. Y suffers injuriesand
institutes a delictual claim against X.

(2)

as you find him”?

(2)
(2)
Owen?

3. The actio de pastu only.
4. The actio de pastu and actio legis Aquiliae.
(2)

(2)

1. Private defence.
2. Necessity.
3. Provocation.
(2)
of:
(2)
(2)

alios acta.
3. Matthew will succeed, because a legal causal link exists between the
conduct of Mike’s Mechanics and the amount that Matthew had to pay to
Richard’s Rentals.
(2)

of damages.
2. Can constitute contributory negligence for the purpose of an
apportionment of damages only if such failure contributed to the
passenger’s injuries.
of damages.
(2)
determined:
1. According to a reasonable person standard, but the youthfulness of the
child is considered when determining accountability.
(2)


1. A legal causal link between an act and a consequence is determined by
mentally eliminating the act and inquiring whether the consequence will then
also disappear.
(2)

2. The notional reasonable person can make an error of judgment in a
situation of sudden emergency.
emergency.
(2)


(2)
1. The defendant.
2. The plaintiff.
(2)

1. Privilege.
3. Fair comment.
4. Jest.
(2)
defamation:
defendant.
defendant.
(2)
(2)

(2)
1. Union Government v Ocean Accident and Guarantee Corporation Ltd 1956

1 SA 577 (A).
(2)


577 (A).
(2)

577 (A).
2. Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 4 SA 938 (CC).
(2)
1. S v Goliath 1972 3 SA 1 (A).

(2)
1. S v Goliath 1972 3 SA 1 (A).

(2)

1. S v Goliath 1972 3 SA 1 (A).

2. Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust,
as amicus curiae) 2003 1 SA 389 (SCA).
(2)
1. S v Goliath 1972 3 SA 1 (A).

(2)

4. S v Mokgethi 1990 1 SA 32 (A).
(2)
of children?

4. S v Mokgethi 1990 1 SA 32 (A).
(2)


4. S v Mokgethi 1990 1 SA 32 (A).
(2)

4. S v Mokgethi 1990 1 SA 32 (A).
(2)
[100]

Oct/Nov 2019
1 Which one of the following remedies is instituted for personality infringements?

4. The interdict
2 Which of the following statements is incorrect with regard to the defence of automatism?
1. A reflex movement may cause a person to behave involuntarily and he/she may rely on
automatism.
2. According to Van der Merwe and Olivier, automatism does not exclude conduct in delict.
3. A person may not rely on automatism if he/she intentionally created the situation in which
he/she behaves involuntarily.
4. The person relying on sane automatism in a delictual case, bears the onus of provingit.
3 Mpho plants a bomb in a busy restaurant. Before the bomb explodes and causes damage, it is
discovered and rendered harmless. Which of the following statements is correct with regard to
Mpho’s act?
1. Mpho’s act is delictually wrongful

2. Mpho’s act is not delictually wrongful
3. Even though Mpho’s act is delictually wrongful, no delict was committed
4. Mpho had the intention to cause harm, therefore he committed a delict
4 In which one of the following judgments did the court accept that wrongfulness consists in the
infringement of a right, breach of a legal duty, and the reasonableness of holding a defendant liable?

2. Telematrix (Pty) Ltd t/a Marix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA
461 (SCA)
3. Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA 394 (CC)
4. Le Roux v Dey 2011 (3) SA 274 (CC)
5 In which of the following circumstances may X rely on “private defence”?
1. X, a prisoner whose prison term has expired, is not released. In order to escape prison, X
assaults the guard who refuses to release him.
2. The owner of a farm Z, while placing his hand on his rifle, tells X that he is trespassing on
his land and that if he does not leave within the next hour he will forcefully remove him. X
immediately reacts by striking Z with a knife.
3. X is attacked and bitten while playing with the neighbour’s dog. X reacts by striking the dog
with a stick, injuring it.
4. A policeman with a valid warrant of arrest for X, arrests X. X resists the arrest and strikes the
policeman, injuring him.

6 Which of the following statements isStuvia.com - The study-notes marketplace
correct with regard to the requirements of consent?
1. There must be an agreement between the person consenting (the injured person) and the
actor
2. The person giving the consent must have full legal capacity to act
3. Mere knowledge of the risk of harm is sufficient for the requirement of “appreciation” of the
risk of harm
4. The person consenting must be able to express his will
7 Humbulani and Patricia are neighbours. Humbulani often has quarrels with Patricia and does not like
her. Humbulani builds a large shed for his chickens on his property in order to spoil Patricia’s beautiful
view. It appears that Humbulani did indeed need a shed, but that he could easily have built it
elsewhere on his property. Which of the following statements is correct with regard to Humbulani’s
act?
1. Humbulani’s improper motive renders his act wrongful

2. Humbulani furthered a reasonable interest of his own and thus did not actwrongfully
3. Humbulani exceeded his capacity as an owner and abused his right
4. Option 1 and 3 above
8 A terrorist places a time-bomb in a busy restaurant. The bomb explodes and injures Xholisi. In respect
of Xholisi’s injuries, the terrorist had:
1. dolus indirectus
2. dolus directus
3. dolus indeterminatus
4. dolus eventualis
9 In which of the following cases did the court decide that the test for negligence for a child is no longer
the reasonable child standard?
1. Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A)
2. Barnard v Santambank 1999 (1) SA 202 (SCA)
3. Jones NO v Santam Bpk 1965 (2) SA 542 (A)
4. Van Wyk v Lewis 1924 AD 438
10 Tshepo’s bull eats and tramples Grace’s maize crops. Tshepo forgot to close the gate between his and
Grace’s land. Which remedy or remedies may be available to Grace?
1. The actio de pauperie and actio legis Aquiliae

2. The actio de pauperie and interdict
3. The actio de pastu only
4. The actio de pastu and actio legis Aquiliae
11 Maureen inadvertently damages Lora’s drum. Which delictual action may be available to Lora?


12 Musa negligently left his stationary donkey on the road. Shaun came along driving his new VW polo
and collided with the donkey. Musa now wishes to sue Shaun. Which defence may Shaun raise?
1. Private defence
3. Contributory negligence
4. Consent
13 In Greater Johannesburg Transitional Metropolitan Council v ABSA Bank 1997 2 SA 691 (W), the court
held that:
1. a defence of contributory intention could succeed where both the plaintiff and the
defendant acted with intention
2. a person is guilty of negligence if his conduct falls short of that of the standard of the diligens
paterfamilias
3. for the purposes of the law of delict, intent and negligence may be present simultaneously
4. there is no single criterion for legal causation which is applicable in all instances
14 What is the criterion for determining factual causation?

15 In which one of the following cases did the court maintain that factual causation cannot always be
answered by strict adherence to logic but that common sense sometimes has to prevail?
1. International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A)

2. S v Van As 1967 4 SA 594 (A)
3. S v Mokgethi 1990 (1) SA 32 (A)
4. Lee v Minister of Correctional Services 2013 2 SA 144 (CC)
16 What does the talem qualem rule mean?
1. Damages have to be apportioned due to contributory fault

2. New intervening cause
3. You must take your victim as you find him
4. Reasonable foreseeability of harm

18 Oratile and Mapule are farming on adjacent properties. Oratile bears a grudge against Mapule. He sets
up a device, which causes a loud bang every half an hour, on the common boundary between the 2
farms near Mapule’s homestead. As a result of this, Mapule and her family cannot sleep at night and

are irritated by day. Mapule asks Oratile to dismantle the device, but Oratile says that the device
serves the purpose of scaring baboons away from his orchards. Which delictual remedy may be
available to Mapule?
1. The actio de pauperie

3. The actio de effuses vel deiectis
4. The interdict
19 Precious has a stall on the sidewalk where she sells homemade cakes. While Precious is tending to
customers, Donald and Jacob pass by and steal an entire tray full of cakes. While they run away,
Jacob’s hat falls off and Precious recognises him and reports the matter to the police. The police
manage to find Donald and Jacob, after they have consumed all the cakes. Precious wants to claim
damages from Jacob. Can she claim the whole amount of damages from Jacob?
1. Yes, Jacob is vicariously liable for the damage

2. Yes, joint wrongdoers are in solidum liable for the full damage
3. No, Jacob is known by Precious
4. No, Jacob and Donald are equally liable for the damage
20 Which one of the following is not a specific form of damnum iniuria datum?
1. Product liabilty
2. Pure economic loss
4. Defamation
Section B:
Question 1:
Lethabo suffers from epileptic fits. His doctor has prescribed him medication to control the onset of
the epileptic fits. One morning, while Lethabo is driving a forklift in the warehouse where he works,
he suffers an epileptic fit and the forklift veers into his co-worker Zanele, injuring her. It transpired
that Lethabo had not taken his medication prescribed by the doctor that morning. Zanele sustains
bodily injuries and is hospitalised. Zanele would like to institute a delictual action against Lethabo.
Discuss with reference to relevant authority whether Lethabo indeed acted for the purposes of the
law of delict. Restrict the scope of your answer to what is asked in the question, and note in
particular that the question does not deal with the element of wrongfulness. (10)
Conduct is defined as a voluntary human act or omission. “Voluntary” means that the person must be
able to control his muscular movements by means of his will. The act of the wrongdoer must be
voluntary to give rise to delictual liability. By raising the defence of automatism, a defendant attempts
to show that, according to the law, he didn’t act. Defendant may argue that the conduct complained of
doesn’t satisfy the requirement of voluntariness. He relies on the defence of automatism - that he
acted mechanically.
Conditions that may cause a person to act involuntarily as they render him incapable of controlling his
bodily movements: absolute compulsion (vis absoluta), sleep, unconsciousness, fainting fit, epileptic
fit, serious intoxication, blackout, reflex movements, strong emotional pressure, mental disease,
hypnosis, and a heart attack.

According to Molefe v Mahaeng, theStuvia.com
defendant- The study-notes marketplace
does not bear the onus to prove that he was in a state
of so-called sane automatism. The onus is on the plaintiff to prove that the defendant acted
voluntarily. In the Du Plessis case, X (72) was charged with negligent driving as he had injured a
pedestrian. He experienced a blackout due to low-blood pressure. He was found not guilty.
If we apply these principles to the given facts, Tumelo had been receiving medical treatment for a
diagnosed condition of insomnia, but failed to take his prescribed medication on that particular
occasion. A person can’t rely on automatism if he intentionally placed himself in a mechanical state
(actio libera in causa). Actio libera in causa: Defence of automatism won’t succeed if defendant
intentionally created the situation in which he acts involuntarily in order to harm another. The
defendant (Lethabo) will be held liable for his culpable conduct in creating the state of automatism
which resulted in damage to the plaintiff (Zanele).
Defendant may not successfully rely on the defence of automatism where he was negligent regarding
his automatic “conduct”. Where the reasonable man would’ve foreseen the possibility of causing harm
while in a state of automatism, eg. in Victor case, X was convicted of negligent driving despite causing
the accident during an epileptic fit, as he’d been suffering fits for 13 years and the reasonable man
would’ve foreseen the possibility of causing harm while in a state of automatism. In this case, X knew
he may suffer an epileptic fit and still drove a motor vehicle.
Automatism doesn’t mean that there’s no voluntary act whatsoever by the defendant which caused the
damage, but only that the conduct in question wasn’t voluntary. Only the voluntary act closest to the
harmful consequence is of relevance, and it’s therefore unnecessary to consider prior voluntary acts.
According to Van der Merwe and Olivier, automatism does not really exclude the element of conduct in
a delict, but rather wrongfulness or fault. This view may be illustrated with this eg: X buys a knife which
he keeps at his bedside when he retires at night. One night, X dreams that he’s being attacked. While
still half asleep, X grabs the knife and wounds Y (who sleeps on a bed next to him). According to Van
der Merwe and Olivier, the stabbing with the knife wasn’t a voluntary act, but that there are other
(prior) voluntary acts on X’s part which also caused Y’s injuries. Eg. the mere fact that X went to bed
with the knife next to him, is, according to the authors, a voluntary act which caused Y’s injuries and it
would thus be incorrect to conclude that X didn’t in any way act voluntarily with regard to such injuries.
This voluntary conduct by X wasn’t accompanied by fault and he won’t be held delictually liable.
However, a person can’t rely on automatism if he negligently placed himself in a mechanical state
(Lethabo didn’t take his medication). Thus, Lethabo was probably negligent, or could even have had
intention in the form of dolus eventualis. Therefore, a reliance on automatism would fail in this case.
Question 2:
Mina, while eight and half months pregnant, experienced severe abdominal and back pains. Her
husband immediately took her to Midlands Private Hospital. The medical staff attending to her
failed to perform a timely caesarean section, resulting in the baby sustaining brain damage. Answer
the following two questions with reference to these facts.
2.1 Was the conduct of the medical staff at Midlands Private Hospital wrongful? Discuss with reference
to relevant authority. Restrict the scope of your answer to the element of wrongfulness only. (10)
As a general rule, a person does not act wrongfully for the purposes of the law of delict if he omits to
prevent harm to another person. Liability only follows if the omission was in fact wrongful, and this will
be the case only if a legal duty rested on the defendant to act positively to prevent harm from
occurring and he failed to comply with that duty. The question of whether such a duty existed is
answered with reference to the criterion of the legal convictions of the community and legal policy.

This question deals with the wrongfulness of an omission. The basic question to determine whether an
omission is wrongful is whether a legal duty to act was present and was breached. This is determined
with reference to the legal convictions of the community, or the boni mores. Factors which may serve
as indications that a legal duty rested on the defendant include: prior conduct (omissio per
commissionem); control of a dangerous object; rules of law; a special relationship between the parties;
particular office; contractual undertaking for the safety of a third party; and creating of an impression
that the interests of a third person will be protected.
In the final analysis of whether a legal duty existed, we are dealing with the determination of the
reasonableness of the defendant’s failure to act in view of all the circumstances of the case. It is not
imperative that the omission in question falls into one of the crystallised categories. This well-known
example of the champion swimmer may serve as an example. A champion swimmer is walking
alongside a river and sees a small child drowning. He fails to rescue the child. As a result of his
omission, the child suffers serious brain damage and becomes quadriplegic. In determining whether a
duty rested on him to rescue the child, the swimmer’s conduct can’t be classified under any of the
stereotyped categories that indicate a legal duty. Consequently, recourse must be had to the general
test for wrongfulness. By means of the boni mores test, a balancing process must take place between
the interests of the swimmer (eg. inconvenience and damage to his clothes) and the interests of the
child (serious violation of his physical integrity) and the child’s parent/guardian (great financial cost
brought about by the child’s handicap). Public interest also plays a part here.
It must be decided whether the swimmer’s omission evokes not merely moral indignation but should
also be regarded as wrongful according to the legal convictions of the community and that he should
render compensation for the damage suffered. In this eg. it will be decided that a legal duty rested on
the swimmer to take steps to rescue the child. However, the scales may favour the defendant
(swimmer) if, eg. there were crocodiles in the vicinity and that he would place his own life in danger
were he to rescue the child; the law no longer requires that a person regard another’s life as more
important than his own. In principle, a defendant doesn’t act wrongfully when he fails to act positively
to prevent harm to another. If these principles are applied to the given facts, we can conclude that the
medical staff at Midlands Private Hospital acted as a reasonable medical staff would have done in the
particular circumstances and the conduct of the medical staff was probably not wrongful.
2.2 Did the medical staff at Midlands Private Hospital act negligently? Discuss with reference to relevant
authority. Restrict the scope of your answer to negligence only. (10)
Whether wrongdoer possesses proficiency or expertise in the allegedly negligent conduct, it affects
application of reasonable person test. The general test for negligence, ie. test of hypothetical
reasonable person in the position of wrongdoer, can’t be applied when considering the conduct of
defendant where such conduct calls for expertise. Thus, in the case of an expert, the test for
negligence in the exercise of expert activity (“professional negligence”) is the test of the reasonable
expert; eg. the reasonable medical doctor.
The reasonable expert is identical to the reasonable person in all respects, except that a reasonable
measure of the relevant expertise is added. The standard of expertise is described as “reasonable”
because regard is had, not to the highest degree of expertise in the relevant profession or occupation,
but to the general or average level of such expertise. In Van Wyk v Lewis, reference is made 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”. In this case it was held that, as far as the medical
profession was concerned, the same expertise cannot be expected from a general practitioner as from
a specialist. In Durr v ABSA Bank Ltd, the SCA approved of the approach in Van Wyk v Lewis and
emphasised that it is for the court to decide what is reasonable under the circumstances. It will pay
much attention to the views of the profession but is not bound to adopt them.

The maxim imperitia culpae adnumeratur means that ignorance or lack of skill is deemed to be
negligence. However, this maxim is misleading because our law does not accept that mere ignorance
constitutes negligence. The principle embodied in this maxim applies where a person undertakes an
activity for which expert knowledge is required while he knows or should reasonably know that he
lacks the requisite expert knowledge and should therefore not undertake the activity in question. An
example of this is where X, who has no expertise in piloting an aircraft, flies an aircraft and causes an
accident. X’s blameworthiness in this example is not to be found in his incompetence in piloting an
aircraft, but in the fact that, while he knows or should reasonably know that he is incompetent, he
nevertheless attempts to perform the expert activity.
Question 3:
3.1 Tom and Hank play with their Frisbee in the front yard. During their game, the Frisbee gets stuck in a
tree. They try throwing a variety of objects at the Frisbee in an attempt to dislodge it. Finally, they
throw a baseball bat at it, which nudges the Frisbee out of the tree. The bat, however, damages the
window of Caroline’s house. Caroline institutes a delictual action against Tom and Hank for the
damage to the window. Tom and Hank explain that they were trying to get their Frisbee out of the
tree and raise necessity as a ground of justification. Indicate whether Tom and Hank will be successful
with necessity as a ground of justification. Discuss with reference to relevant authority. (5)
A state of necessity exists when defendant is placed in such a position by superior force (vis maior)
that he is able to protect his legally recognised interests (or those of someone else) only by reasonably
violating the interests of an innocent person. Thus, Tom and Hank will not be successful with necessity
as a ground of justification. If they foresaw the possibility of the bat breaking a window in Caroline’s
house, but decided that it will not happen and if the ball indeed breaks the window, Tom and Hank
had luxuria in respect of the damage.
3.2 Betty and Oscar go out to a fancy restaurant for dinner. Oscar finds the dessert not to his liking and
begins screaming at and insulting Betty as she chose the restaurant. Betty has had enough of his
behaviour and returns the insult. This angers Oscar and he institutes a delictual action against Betty
for insulting him in public. What defence may Betty rely on? Discuss with reference to relevant
authority. (5)
Provocation is present when a defendant is provoked or incited by words or actions to cause harm to
the plaintiff. Eg. X (Oscar) insults Y (Betty) and Y (Betty) returns the insult. Should X (Oscar) now
institute a claim against Y (Betty), Y (Betty) relies on provocation: she claims that X (Oscar) provoked
(enticed) her and that for this reason X’s (Oscar’s) claim should fail. Thus, Betty may rely on the
defence of provocation.
Question 4:
Kabelo is in a hurry to get out of the bus. He pushes Zama who is in front of him. Zama falls out of
the bus and twists her ankle badly. Zama is treated in a nearby hospital and is issued with a special
protective plastic boot to prevent further injury to her ankle while the healing is in progress. Zama
finds this boot very cumbersome and uncomfortable. The next day, Zama slips with the boot, falls
and breaks her left arm. Does a legal causal link exist between Kabelo’s conduct and Zama’s broken
arm? Discuss in detail with reference to case law. (10)
The test for legal causation is the so-called flexible approach, as formulated in S v Mokgethi 1990 and
International Shipping Co (Pty) Ltd v Bentley 1990. In Mokgethi, a bank robber shot a teller. The teller
was rendered a paraplegic and was discharged from hospital in a wheelchair. Subsequently, the

paraplegic man failed to shift his body position in the chair frequently and developed pressure sores,
eventually dying from complications. The question that arose was whether the shot fired by the
robber was the legal cause of the teller’s death. According to the court, the main question in respect
of legal causation is whether there is a close enough relationship between the wrongdoer’s conduct
and its consequence for such consequence to be imputed to the wrongdoer in view of policy
considerations based on reasonableness, fairness and justice. Several other legal causation theories
exist, such as adequate causation, direct consequences, foreseeability and novus actus interveniens.
None of these criteria is suitable to be applied to all situations. They may, however, be used as
subsidiary aids when employing the flexible approach. In the Mokgethi case, the court held that the
shot was not a legal cause of the death. If these principles are applied to the facts in the question, the
conclusion is probably that Zama’s broken arm was too remote and should not be imputed to the
wrongdoer. It could also be argued that a so-called novus actus interveniens (a new intervening act)
was constituted by Zama’s fall, and this strengthens the conclusion that there’s no legal causal link
between Kabelo’s conduct and Zama’s broken arm.
Question 5:
5.1 Name the requirements for the granting of an “interdict”. (3)
The courts state 3 requirements for the granting of an interdict:
• There must be an act (or threatening act) by the respondent.

• The act (or threatening act) must be wrongful.
• No other suitable remedy must be available to the applicant.
5.2 Name the requirements for the “actio de pauperie”. (3)
To succeed in bringing the actio de pauperie, these requirements must be met:
• Defendant must be the owner of the animal when the damage is inflicted.
• Animal must be a domestic animal.
• Animal must act contra naturam sui generis when inflicting the damage.
• Prejudiced person or his property must be lawfully present at location where the damage is
inflicted.
5.3 Name the requirements for “vicarious liability”. (3)
• There must be an employer-employee relationship at the time when the delict iscommitted.
• The employee must commit a delict.
• The employee must act within the scope of his employment when the delict is committed.
5.4 Explain the principle of “mitigation of loss” in one sentence. (1)
It is a principle of the law of delict that a plaintiff may not recover damages for a loss which is the
factual result of the defendant’s conduct but which could have been prevented if the plaintiff had
taken reasonable steps.

May/June 2019
1 Which of the following statements is correct about the South African law of delict:
1. A wrongdoer may be held liable only if his conduct satisfies the requirements of a specific
delict
2. The South African law of delict follows a casuistic approach
3. The law of delict belongs to the part of private law known as the “law ofobligations”
4. The law of delict consists of a set of separate delicts
2 Indicate the incorrect statement with regard to delictual liability:
1. The boni mores test is an objective test

2. Wrongfulness is always determined ex ante
3. A harmful consequence is itself insufficient to constitute wrongfulness
4. An act and its resulting consequence are always separated by time and space
3 In which one of the following cases did the court accept the doctrine of subjective rights?
1. Halliwell v Johannesburg Municipal Council 1912 AD 659

3. Telematrix (Pty) Ltd t/a Marix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA
461 (SCA)
4. Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 (T)
4 In which of the following circumstances may X rely on “private defence”?
2. A policeman with a valid warrant of arrest for X, arrests X. X resists the arrest and strikes the
policeman, injuring him.
3. X, a prisoner whose prison term has expired, is not released. In order to escape prison, X
assaults the guard who refuses to release him.
4. The owner of a farm Y, while placing his hand on his gun, tells X that he is trespassing on
his land and that if he does not leave within the next hour he will forcefully remove him.
X immediately reacts by striking Y with a cricket bat.
5 In which of the following circumstances may X not rely on the defence of “necessity”?
2. X believes his daughter’s life is in danger as she accidently swallowed some liquid detergent.
X rushes to the hospital with his daughter and in his rush causes damage to Y’s car. It
transpired that X’s daughter’s life was not in danger as the liquid detergent was not harmful.
3. X damages his neighbour’s door while the neighbour is on holiday, in order to gain entry into
the house because there seems to be smoke coming from within.
4. Y, while holding a knife to X’s wife’s throat, tells X that if he does not kill Z, he will kill X’s wife.
X, out of fear for his wife’s life, follows Y’s instructions and kills Z.
6 Y verbally insults X who in retaliation slaps Y across the cheek. If Y institutes a delictual action for the
infringement of his personality rights, X may rely on:

1. Private defence
2. Necessity
3. Provocation
7 Which of the following statements is correct with regard to the requirements of consent?
1. There must be an agreement between the person consenting (the injured person) and the
actor
2. The person giving the consent must have full legal capacity to act
3. Mere knowledge of the risk of harm is sufficient for the requirement of “appreciation” of the
risk of harm
4. The person consenting must be able to express his will
8 Luke places a time-bomb in a busy restaurant. The bomb explodes two hours later, causing injury to
the people in and in close proximity to the restaurant. Which one of the following forms of fault did X
have in respect of the injury to vistims of the explosion?
1. Dolus determinatus
2. Dolus eventualis
3. Dolus indeterminatus
4. Luxuria
9 In which one of the following cases did the defence of volenti non fit iniuria succeed?
1. Lampert v Hefer 1955 2 SA 507 (A)

2. Maartens v Pope 1992 4 SA 883 (N)
3. Netherlands Insurance Co of SA v Van der Vyver 1968 1 SA 412 (A)
4. Santam Insurance Co Ltd v Vorster 1973 4 SA 764 (A)
10 In which one of the following delictual remedies is there no need to prove harm, loss or damage?
1. Interdict
2. Actio de pastu
3. Actio de pauperie
11 If a person can differentiate between right and wrong, and act in accordance with this insight, he or
she:
3. is accountable
4. is negligent
12 Imraan, a financial adviser, negligently advises Trevor to make a bad investment. As a result of this,
Trevor suffers significant financial loss. Which one of the following delictual remedies may be available
if Trevor wishes to recover his financial loss from Imraan?

13 The maxim, “you must take your victim as you find him”, is also known as the:
1. sum-formula approach
2. “talem qualem” rule
3. “once and for all” rule
4. Concrete approach to damage
14 Sylvester steals a laptop from an electronics store. To get to the laptop, he smashes a window made
from expensive glass. In respect of the damage to the window, Sylvester has:
1. Dolus indirectus
2. Dolus eventualis
4. Luxuria
15 Defamation is an infringement of a person’s…?
1. feelings
2. good name
3. privacy
4. identity
16 Which of the following is not a ground of justification against defamation?
1. Privilege or privileged occasion

2. Truth and public interest
3. Media privilege
4. Provocation
17 If patrimonial loss is caused in a negligent manner, the most appropriate delictual remedy to consider
is:

18 If bodily injury is caused in a negligent manner, the most appropriate delictual remedy to consider is:


19 If the dignity of a person is infringed Stuvia.com - The study-notes marketplace
in a negligent manner, the most appropriate delictual remedy to
consider is:
20 Tyron is training to be a tattoo artist. He asks Latitia whether he can practice his newly acquired skills
on her. Tyron explains to Latitia that he will apply a temporary tattoo on her back which can be easily
removed by washing it off with water. Latitia agrees to this. Tyron designs an eagle tattoo across
Latitia’s back. When Latitia discovers that the tattoo is permanent, she wants to institute a delictual
action against Tyron. Tyron may rely on the following ground of justification:
1. Necessity
3. Consent
Section B:
Question 1:
1.1 Define a delict. (2)
A delict (wrongful conduct) is the act of a person which in a wrongful (legally reprehensible) and
culpable (legally blameworthy) way causes loss (damage) to another.
1.2 Damage can take one of two forms, name these two forms. (2)
Patrimonial loss (damnum iniuria datum) or Injury to personality (iniuria).
1.3 Name the requirements for “vicarious liability”. (3)
• There must be an employer-employee relationship at the time when the delict iscommitted.
• The employee must commit a delict.
• The employee must act within the scope of his employment when the delict is committed.
1.4 Name the requirements for the actio de pastu. (3)
• The defendant must be the owner of the animal when the damage is caused.
• The animal must cause damage by eating plants.
• The animal must act of its own volition when causing the damage.
1.5 Explain the difference between a delict and a contract. (2)
Breach of contract is only constituted by the non-fulfilment by a contractual party of a contractual

personal claim or an obligation to perform. A delict is constituted by the infringement of any legally
recognised interest of another party, excluding the non-fulfilment of a duty to perform by a
contractual party. The primary remedy for breach of contract is directed at the enforcement,
fulfilment, or execution of the contract (with a claim for damages playing a secondary part). Delictual
remedies are primarily directed at damages (or satisfaction), and not at fulfilment.

1.6 Explain the difference between a “constitutional wrong” and a “delict”. (3)
The requirements for a delict and a constitutional wrong differ. As a result, not every delict is
necessarily also a constitutional wrong, and vice versa. Besides, unlike a delictual remedy which is
aimed at compensation, a constitutional remedy (even in the form of damages) is directed at
affirming, enforcing, protecting and vindicating fundamental rights and at preventing or deterring
future violations of Chapter 2. A constitutional wrong and a delict (or their remedies) should therefore
not be treated alike and for conceptual clarity, the term constitutional “delict” or “tort” should rather
be avoided.
Question 2:
Tumelo suffers from insomnia and when he does sleep, often sleepwalks. His doctor has prescribed
him medication to control these conditions. Tumelo goes on a camping trip with his friends. On one
evening while sleepwalking, he thinks he is being attacked by a robber and stabs one of his friends,
Charles. In reality, there was no robber and Charles was trying to assist Tumelo to get back to his
bed. It transpired that Tumelo had not taken his medication prescribed by the doctor that morning.
Charles was seriously injured and hospitalised. Charles would like to institute a delictual action
against Tumelo. Discuss with reference to relevant authority whether Tumelo indeed acted for the
purposes of the law of delict. Restrict the scope of your answer to what is asked in the question, and
note in particular that the question does not deal with the element of wrongfulness. (10)
acted mechanically.
Conditions that may cause a person to act involuntarily as they render him incapable of controlling his
bodily movements: absolute compulsion (vis absoluta), sleep, unconsciousness, fainting fit, epileptic
fit, serious intoxication, blackout, reflex movements, strong emotional pressure, mental disease,
hypnosis, and a heart attack.
According to Molefe v Mahaeng, the defendant does not bear the onus to prove that he was in a state
If we apply these principles to the given facts, Tumelo had been receiving medical treatment for a
diagnosed condition of insomnia, but failed to take his prescribed medication on that particular
occasion. A person can’t rely on automatism if he intentionally placed himself in a mechanical state
(actio libera in causa). Actio libera in causa: Defence of automatism won’t succeed if defendant
intentionally created the situation in which he acts involuntarily in order to harm another. The
defendant (Tumelo) will be held liable for his culpable conduct in creating the state of automatism
which resulted in damage to the plaintiff (Charles).

Automatism doesn’t mean that there’s no voluntary act whatsoever by the defendant which caused
the damage, but only that the conduct in question wasn’t voluntary. Only the voluntary act closest to
the harmful consequence is of relevance, and it’s therefore unnecessary to consider prior voluntary
acts.
According to Van der Merwe and Olivier, automatism does not really exclude the element of conduct
in a delict, but rather wrongfulness or fault. This view may be illustrated with this eg: X buys a knife
which he keeps at his bedside when he retires at night. One night, X dreams that he’s being attacked.
While still half asleep, X grabs the knife and wounds Y (who sleeps on a bed next to him). According to
Van der Merwe and Olivier, the stabbing with the knife wasn’t a voluntary act, but that there are other
(prior) voluntary acts on X’s part which also caused Y’s injuries. Eg. the mere fact that X went to bed
with the knife next to him, is, according to the authors, a voluntary act which caused Y’s injuries and it
would thus be incorrect to conclude that X didn’t in any way act voluntarily with regard to such
injuries. This voluntary conduct by X wasn’t accompanied by fault and he won’t be held delictually
liable.
However, a person can’t rely on automatism if he negligently placed himself in a mechanical state
(Tumelo didn’t take his medication). Thus, Tumelo was probably negligent, or could even have had
intention in the form of dolus eventualis. Therefore, a reliance on automatism would fail in this case.
Question 3:
There is dry grass on Tebogo’s farm. Tebogo fails to cut the grass. A fire breaks out in the grass and
spreads to the neighbour’s land, Quinton’s farm, where it causes some damage. Can Tebogo be held
liable for the damage to Quinton’s farm? Discuss with reference to relevant authority. Restrict the
scope of your answer to the element of wrongfulness and liability for an omission. (10)
Liability for an omission follows only if the omission was in fact wrongful, and this will be the case only
if a legal duty rested on Tebogo to act positively (by cutting his grass) to prevent harm from occurring,
and Tebogo failed to comply with that duty. One of the factors that can indicate that a legal duty
existed to prevent prejudice in the case of an omission is control of a dangerous object. Firstly, there
must be actual control, and secondly, in light of such control there must be a legal duty on the
defendant to take steps to prevent damage resulting from his omission to exercise proper control.
Tebogo owns the potentially dangerous object of property with grass that could spread fire, so he has
control over it.
If person had knowledge or foresight that his omission might cause harm, is unreasonable and shows
wrongfulness of his conduct. Where a person was aware of a dangerous situation (eg. fire or
dangerous hole on his land), this may factor in determining whether he had to exercise control over
the danger and, then whether a legal duty rested on him to take steps to avert loss.
The law (either common law or statute) places an obligation upon a person to perform certain acts. Eg.
common law obliges owner of lower land to provide lateral support for neighbour’s land. If neighbour
suffers damage as a result of their failure to perform this duty, their conduct is prima facie wrongful.
A statutory provision can grant a delictual action, or it can justify a conclusion that a common law legal
duty exists. The question of whether it’s equitable and reasonable to award plaintiff a claim for
damages or not in view of the noncompliance with a legal provision must still be asked. The conduct
will be wrongful, not due to the non-compliance with the statutory legal duty, but because it’s
reasonable in the circumstances to compensate the plaintiff for the infringement of his right.

Reasonableness is determined with reference to the legal convictions of the community and legal
policy. Therefore, Tebogo can probably be held liable for Quinton’s damage because it will probably be
considered that proper exercise of control of this object would be necessary with reference to the
legal convictions of the community.
Question 4:
4.1 David, while fielding during the course of a social cricket match, was struck on the head by a cricket
ball. As a result of this, David sustained a serious head injury. His fellow player, Kagiso, struck the
cricket ball which caused the injury to David’s head. Both David and Kagiso were playing according the
rules and conventions of the sport. David wishes to claim delictual damages from Kagiso for the head
injury he sustained. Kagiso may raise a ground of justification against this claim. Discuss with
reference to authority which ground of justification Kagiso may rely on as well as the likelihood of the
court upholding the defence. Restrict the scope of your answer to the ground of justification. (7)
The principle that a defendant isn’t liable where the injured person has consented to injury or the risk
thereof, is embodied in the maxim volenti non fit iniuria (a willing person isn’t wronged; he who
consents can’t be injured). The maxim volenti non fit iniuria, in short volenti, is used to describe both
forms of consent. Volenti non fit iniuria may thus mean either consent to injury, or consent to the risk
of injury.
In the given facts, consent to the risk of injury applies. In the case of consent to the risk of injury, the
injured party consents to the risk of harm caused by the defendant’s conduct. Eg. a participant in sport
consents to the risks involved in such sport, like a cricket ball striking a cricket player in the head.
Should the risk contained in the sports injuries above ensue, the injured person won’t be able to hold
the defendant delictually liable, because he has consented to risk of such harm.
In the given facts, the defence of volenti non fit iniuria as a ground of justification will probably
succeed as Kagiso can state that David consented to the risk of injury and the injured person (David)
won’t be able to hold the defendant (Kagiso) delictually liable, because he (David) has consented to
risk of such harm.
4.2 Gerhard regularly invited Berg to his luxury farm. Wild ostriches, among other domesticated
animals, inhabit the farm. Gerhard warned Berg to be cautious around the ostriches and not to
startle them. Berg informs Gerhard that he knows how to deal with these ‘birds’ and always
interacted with one ostrich in particular during his visits. Berg always teased and tauntedthis
particular ostrich for self-amusement. During one of his visits, Berg picked up a stone and threw it in
the direction of the ostrich. The ostrich began to chase Berg. Berg then ran towards the house and
tripped and fell, injuring his achilles tendon. Berg was hospitalised and wishes to recover delictual
damages from Gerhard based upon Gerhard’s alleged negligent conduct of keeping wild animals in a
place that the public can have access to. Gerhard can raise a defence against this allegation. Which
defence may Gerhard rely upon and what will the effect of a successful reliance on the defence be?
Discuss in detail with reference to case law and legislation. (8)
With the actio de pauperie action, prejudiced person may claim damages from owner of a domestic
animal which has caused damage. Characteristic of actio is that fault on part of owner isn’t a
requirement for liability. This action entails strict liability.
To succeed in bringing the actio de pauperie, these requirements must be met:
• Defendant must be the owner of the animal when the damage is inflicted.
• Animal must be a domestic animal.
• Animal must act contra naturam sui generis when inflicting the damage.

• Stuvia.com - The study-notes marketplace
Prejudiced person or his property must be lawfully present at location where the damage is
inflicted.
The animal involved must have acted contrary to what may be expected of a decent and well-behaved
animal of its kind. A dog that bites, a horse that jumps and an ox that butts, in principle, act contra
naturam. However, this is qualified by the requirement that the animal must have caused the damage
spontaneously from “inward excitement or vice” or sponte feritate commota. As a rule, the animal
doesn’t act contra naturam if it’s reacting to external stimuli.
Defences against the actio de pauperie have developed from the requirement of spontaneous
conduct. They are culpable or provocative conduct on part of prejudiced person, culpable conduct on
part of an outsider and provocation by another animal. All these cases have the effect of excluding
liability, because the animal didn’t act from “inward excitement or vice” and thus didn’t act contra
naturam sui generis. Apart from these defences, the defence of volenti non fit iniuria in the form of
voluntary assumption of risk is also available to the defendant.
Therefore, culpable or provocative conduct on part of prejudiced person (Berg) is present as Berg
always teased and taunted the ostrich, and he picked up a stone and threw it in the direction of the
ostrich. Thus, this case has the effect of excluding liability because the animal (ostrich) didn’t act from
“inward excitement or vice” and didn’t act contra naturam sui generis. Gerhard can also rely on the
defence of volenti non fit iniuria in the form of voluntary assumption of risk.
Question 5:
In our law, the causing of damage through conduct is required for a delict. In other words, a causal
nexus between the conduct and the damage must be present. A person cannot be held liable if the
person did not cause any damage. Discuss the test used to determine factual causation and the test
used to determine legal causation. (10)
The generally accepted test for factual causation is the conditio sine qua non test, or ‘‘but for test’’.
This entails mentally eliminating, or thinking away, the conduct. If the damage then also disappears, a
factual causal link is present between the conduct and the damage. This test is subject to much
criticism. Among others, it is said to be based on circular logic and is, at best, a way to express the
existence of a causal nexus that has been determined in another way. Neethling and Potgieter argue
that evidence and human experience are sufficient to determine whether one fact flowed from
another fact, and that a so-called test of factual causation is superfluous. However, the courts
consistently state that the conditio sine qua non is the test of factual causation. For example, Max
bumps into Sam. Sam falls and breaks his leg. Thus, if Max hadn’t bumped into Sam, Sam would not
have fallen and broken his leg. Therefore a factual causal link is present between Max’s conduct and
Sam’s damage.
The test for legal causation is the flexible approach, as formulated in S v Mokgethi 1990 and
eventually dying from complications. The question arose whether the shot fired by the robber was the
legal cause of the teller’s death. According to the court, the main question in respect of legal causation
is whether there is a close enough relationship between the wrongdoer’s conduct and its consequence
for such consequence to be imputed to the wrongdoer based on reasonableness, fairness and justice.
Several other legal causation theories exist, such as adequate causation, direct consequences,
foreseeability and novus actus interveniens. None of these criteria is suitable to be applied to all
situations. They may, however, be used as subsidiary aids when employing the flexible approach. In

the Mokgethi case, the court held that the shot was not a legal cause of the death. For example, Max
bumps into Sam. Sam falls and breaks his leg. Sam is admitted to hospital. A nurse leaves the ward
windows open, and Sam contracts pneumonia. The conclusion is probably that Sam’s pneumonia was
too remote and should not be imputed to the wrongdoer (Max). It could also be argued that a novus
actus interveniens (a new intervening act) was constituted by a nurse leaving the ward windows open,
and this strengthens the conclusion that there is no legal causal link between Max’s conduct and Sam’s
pneumonia.
Oct/Nov 2018
1 Indicate the incorrect statement with regard to the law of delict and the constitution:
1. An infringement of a right may constitute a constitutional wrong and a delict

2. The requirements for a delict and a constitutional wrong differ materially
3. Direct application means that the state must generally respect fundamental rights and not
infringe them
4. Both a constitutional remedy and a delictual remedy are aimed primarily at compensation
2 Themba inadvertently damages Zanele’s bongo drum. Which delictual action may be available to
Zanele?

3 Which one of the following is incorrect?
1. An animal cannot act for purposes of the law of delict

2. A public school can act for the purpose of the law of delict
3. Behaviour must be willed to qualify as a voluntary act
4. Conduct may consist of a commission or an omission
4 Bongani’s cow eats and tramples Mandla’s maize crops. Bongani forgot to close the gate between his
and Mandla’s land. Which remedy or remedies may be available to Mandla?
1. The actio de pauperie and actio legis Aquiliae

2. The actio de pauperie and interdict
3. The actio de pastu only
4. The actio de pastu and actio legis Aquiliae
5 Which of the following is incorrect?
1. An epileptic seizure may cause a person to behave involuntarily and enables him to rely on
automatism.
2. A person may not rely on automatism if he intentionally created a situation in which he
behaves involuntarily.
3. A person relying on sane automatism as a defence in a delictual case has the onus to prove it.
4. According to Van der Merwe and Olivier, automatism does not exclude conduct in delict.

6 Mark employs electronic equipmentStuvia.com - The study-notes marketplace
to listen in on Johan’s telephone conversations. Which remedy or
remedies may be available for Johan?

3. Interdict
4. The action for pain and suffering and interdict
1. Necessity
3. Consent
4. Mistake
8 The following case is regarded as authority for the proposition that killing a person to protect property
may in certain circumstances be justified by private defence:

9 The following case is regarded as authority for the proposition that killing of an innocent person may
under certain circumstances be justified by necessity:

10 Which one of the following is incorrect?
1. In principle, the test for wrongfulness is objective in nature.

2. Subjective factors are usually irrelevant in the wrongfulness inquiry.
3. An improper motive may be relevant to the wrongfulness inquiry in delict cases.
4. Subjective knowledge that someone may be harmed is always irrelevant to the
wrongfulness inquiry.
11 Jaco insults Peter. Peter goes home feeling very depressed. An hour later, Peter phones Jaco and
retaliates by insulting Jaco. If Jaco institutes a delictual action for the infringement of his personality
rights, Jaco may rely on the following defence:
1. Private defence
2. Provocation
3. Necessity

12 Melvin practices his golf swing in his Stuvia.com
back yard.- The
He study-notes
foresees themarketplace
possibility of his ball breaking a
window in his neighbour’s house, but decides that it will not happen. If the ball indeed breaks the
window, Melvin had the following in respect of the damage:
1. Dolus directus
2. Dolus indirectus
3. Dolus eventualis
4. Luxuria
13 A terrorist places a time-bomb in a busy shopping mall. The bomb explodes and injures Kagiso. In
respect of Kagiso’s injuries, the terrorist had:
2. Dolus directus
3. Gross negligence
4. Luxuria
14 Gawie wants to spy on Manie, his competitor in business. For this purpose, he installs a surveillance
device in the roof of the premises where Manie’s business is located. Gawie needs to break a hole into
the roof to accomplish this. He foresees the possibility that rainwater may now leak into the building
and may damage Manie’s merchandise, but reconciles himself with the possibility and proceeds
nevertheless. After three days, he has managed to learn all Manie’s trade secrets. In respect of the
damage to the roof, Gawie has:
1. Dolus directus
2. Dolus indirectus
3. Dolus eventualis
15 Which one of the following is not a requirement for the interdict?
1. Conduct/threatening conduct
2. Fault/threatening fault
3. Wrongfulness/threatening wrongfulness
4. Unavailability of another suitable remedy
16 Which of the following principles relates to the rule that you must “take your victim as you find him”?
1. The “talem qualem” rule

2. The “once and for all” rule
3. The “sum-formula” approach
4. The “mitigation” principle
17 Zara’s two-year-old daughter falls down a flight of stairs. Zara believes that the child has sustained a
brain injury and rushes her to the hospital. On the way to the hospital, Zara drives over the
neighbour’s dog which subsequently dies. The neighbour institutes a delictual claim against Zara. It
later transpires that Zara’s daughter merely suffered from mild shock. Which one of the following
defences may Zara rely on?
1. Private defence

2. Provocation
3. Necessity
4. None of the above defences
18 Which of the following requirement/s must be present before provocation may be raised as a
defence?
1. The conduct of the defendant must be immediate

2. The defendant must be accountable
3. The defendant must not have contributed to the provocative conduct
4. 2 and 3 above
19 Isaac purchases a ticket to a boat ride. The ticket clearly states that the management of the
amusement park will not be held liable for any negligence on its part. As the ride comes to a stop, the
boat jerks due to a mechanical fault and Isaac bumps his head against the seat rendering him
unconscious. When Isaac awakens, he decides to institute an action for damages against the
management of the amusement park. In order to exclude or limit liability, the management may rely
on:
1. Consent to the risk of injury

20 In which of the following cases did the court award a young boy compensation for emotional shock he
suffered as a result of witnessing his younger brother being injured in a motor vehicle accident?
1. Jones v Santam Bpk 1965 (2) SA 542 (A)

2. Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A)
3. Barnard v Santambank 1999 (1) SA 202 (SCA)
4. Weber v Sanatm Verskeringsmaatskappy Bpk 1983 (1) SA 381 (A)
Section B:
Question 1:
Mpho, a 16 year-old boy, suffered an epileptic fit while batting during a school cricket match. The
cricket ball had flung from his hand, into the air and struck a fellow player, Kwena on the head.
Kwena sustained a head injury and fell unconscious.
1.1 Did Mpho act for the purpose of the law of delict? Would it make a difference to your answer if
Mpho had already been under medical treatment for the epileptic fits he suffers, but failed to take
his prescribed medication when he should have done so earlier that morning? Discuss in detail with
reference to authority. Restrict the scope of your answer to what is asked in the question, and note
in particular that the question does not deal with the element of wrongfulness. (10)

acted mechanically. Conditions that may cause a person to act involuntarily as they render him
incapable of controlling his bodily movements include an epileptic fit. According to Molefe v Mahaeng,
the defendant does not bear the onus to prove that he was in a state of so-called sane automatism.
The onus is on the plaintiff to prove that the defendant acted voluntarily.
If we apply these principles to the given facts, we can conclude that Mpho did not act voluntarily when
the cricket ball struck Kwena on the head causing the head injury. However, the situation will indeed
change if Mpho had been receiving medical treatment for diagnosed epilepsy, but failed to take his
medication on that particular occasion. A person can’t rely on automatism if he intentionally placed
himself in a mechanical state (actio libera in causa). Actio libera in causa: Defence of automatism
won’t succeed if defendant intentionally created the situation in which he acts involuntarily in order to
harm another. The defendant (Mpho) will be held liable for his culpable conduct in creating the state
of automatism which resulted in damage to the plaintiff (Kwena).
acts.
A person can’t rely on automatism if he negligently placed him in a mechanical state (Mpho didn’t take
his medication). Thus, Mpho was probably negligent, or could even have had intention in the form of
dolus eventualis. Therefore, a reliance on automatism would fail in this case.
1.2 Kwena’s father instituted a delictual claim against Mpho as well as the school where the match took
place. The defence of volenti non fit iniuria as a ground of justification was raised. Assume that
Mpho did act for the purposes of the law of delict. Discuss the likelihood of this defence succeeding.
Restrict the scope of your answer to what is asked in the question, and note in particular that the
question does not deal with the element of fault. (10)
The principle that a defendant isn’t liable where the injured person has consented to injury or the risk
thereof, is embodied in the maxim volenti non fit iniuria (a willing person isn’t wronged; he who
consents can’t be injured). The maxim volenti non fit iniuria, in short volenti, is used to describe both
forms of consent. Volenti non fit iniuria may thus mean either consent to injury, or consent to the risk
of injury.
In the given facts, consent to the risk of injury applies. In the case of consent to the risk of injury, the
injured party consents to the risk of harm caused by the defendant’s conduct. Eg. a participant in sport
consents to the risks involved in such sport, like a cricket ball striking a cricket player in the head.
Should the risk contained in the sports injuries above ensue, the injured person won’t be able to hold
defendant delictually liable, because he has consented to risk of such harm.
In the given facts, the defence of volenti non fit iniuria as a ground of justification will probably
succeed as Mpho can state that Kwena consented to the risk of injury and the injured person (Kwena)
won’t be able to hold defendant (Mpho) delictually liable, because he (Kwena) has consented to risk of
such harm.

Question 2:
2.1 “Although the test for negligence is in principle uniform for all defendants, the test is adapted in the
case of children”. Discuss this statement with reference to relevant case law. (10)
The question whether wrongdoer is a child should play a role in application of reasonable person test.
This only arises in case of children 10 years and older, because law deems a child under 10 to be
culpae incapax.
Before 1965, courts took into account youthfulness of wrongdoer in determining his negligence; ie. to
test for negligence by means of conduct expected from a reasonable child of the wrongdoer’s age and
intellectual development.
In 1965, the AD passed judgment on this matter in Jones NO v Santam Bpk. The court adopted a new
approach to determination of negligence in respect of children. Court implied that the criterion for the
determination of negligence is always objective, in all situations the test of the reasonable person
(diligens paterfamilias) is applied. According to this approach, in determining whether a child acted
with culpa, it must first be ascertained whether child concerned met standard of care required of
reasonable person. Secondly, must be asked whether child, if care shown didn’t meet requirements of
first test, was culpae capax (accountable for his actions).
To determine whether a child acted negligently, question is whether conduct of child measures up to
the standard of care of the reasonable person. Once it’s established that conduct is negligent, it must
be ascertained whether negligent conduct may be imputed to the wrongdoer - whether he’s juridically
responsible for his acts. Here one’s dealing with accountability, and inquiry is whether child-
wrongdoer had the required intellect, maturity, experience, insight, etc to distinguish between right
and wrong and to act in accordance with such insight. All the subjective qualities of the child itself are
taken into account.
This (new) approach has had a critical reception. Firstly, it seems that the earlier test of reasonable
child is more acceptable than that of reasonable person, because a child, even though he may be fully
accountable, can’t be measured against an adult standard. Secondly, court in Jones placed the cart
before the horse by first inquiring into fault and then into accountability. Must first determine whether
a person is accountable before any question of fault. In Roxa v Mtshayi, the AD correctly accepted this
criticism by first testing for accountability and then for negligence.
In Weber v Santam Versekeringsmaatskappy Bpk, the court held that the Jones case didn’t materially
depart from common law and confirmed the approach in this case. Jansen JA substantiated his
judgment as follows:
When the child’s conduct is judged according to the criterion of an adult, the enquiry must be whether he was
mature enough to comply with that criterion in respect of the specific situation. If this approach is applied with
insight, many of the objections of our contemporary writers to the principles of the Jones case should fall away,
and it should also not be necessary to plead for the use of a reasonable child of relevant age, as in the Anglo-
American legal systems, instead of the criterion of the bonus paterfamilias to reach a fair result.
In Eskom Holdings Ltd v Hendricks, the SCA had to evaluate the alleged contributory negligence of a
child of 11 years of age. Court took cognisance of criticism of reasonable person test for children, but
referred to the approach in the above cases and reiterated that in “each case what had to be
determined was whether the child in question had developed the emotional and intellectual maturity
to appreciate the particular danger to be avoided and, if so, to act accordingly”.
2.2 Discuss the effect of a successful reliance on contributory fault in the following instances:

(a) the plaintiff has intent and the defendant is negligent (4)
The question is whether contributory fault applies in the case of defence of contributory intent. In the
situation where a plaintiff intentionally contributed towards his own loss while defendant was merely
negligent, the plaintiff forfeits his claim.
(b) both plaintiff and defendant are negligent (6)
The method of determining who should bear what portion of the damage involves a comparison of the
respective degrees of negligence of the parties involved. Each party’s degree of negligence is
determined by expressing its deviation from the standard of reasonable person as a %; the 2
percentages are then compared to allocate responsibility of the damage.
Prior to decision in Jones NO v Santam Bpk, the AD accepted that once plaintiff’s degree of negligence
had been established, it was unnecessary to inquire into extent to which defendant’s conduct had
deviated from standard of reasonable person. Eg. if court had established that plaintiff had been 40%
negligent (his conduct deviated 40% from standard of reasonable person), it was thought to follow
automatically that defendant was 60% negligent. However, in the Jones case a new approach to
determining degree of fault shown by plaintiff and defendant was followed. According to this decision,
the fact that plaintiff was, eg. 30% negligent, doesn’t automatically imply that defendant was 70%
negligent. To establish respective degrees of negligence, carefulness of conduct of each party must be
measured separately against standard of reasonable person. Eg. It’s possible that plaintiff’s conduct
deviated 70% while defendant’s conduct deviated 80%. In this case, the ratio between plaintiff’s and
defendant’s degree of fault is 70:80 (7:8 (15)). Plaintiff’s degree of fault is thus 7/15 × 100/1 = 46,7%,
and defendant’s 8/15 × 100/1 = 53,3% (or 100 – 46,7 = 53,3). Plaintiff thus receives compensation for
only 53,3% of damage he has suffered because he is 46,7% to blame for his loss.
If the defendant has been negligent but the plaintiff appears to have been negligent too, we must
consider whether contributory negligence was present. Contributory negligence is negligence on the
part of the plaintiff, and it’s a defence that the defendant can raise. The Apportionment of Damages
Act 34 of 1956 provides that a contributorily negligent plaintiff’s damages be apportioned. Court will
determine the degree of deviation from the reasonable person standard shown by the conduct of both
the defendant and the plaintiff, express the deviation as percentages, and use these percentages as a
basis for the apportionment. According to the Smit 1962 and Nomeka 1976 cases, the percentages of
negligence attributed to the defendant and plaintiff respectively will always add up to a hundred
percent.
According to Jones NO v Santam Bpk 1965, both percentages must be assessed independently, which
could mean that, for example, a defendant may be 80% negligent while the plaintiff is 30% negligent.
According to Neethling and Potgieter, the approach in Jones is to be preferred, but the 2 approaches
can be reconciled. According to King v Pearl Insurance Co Ltd 1970, a defence of contributory
negligence could not succeed where the plaintiff had omitted to wear a crash-helmet while driving a
scooter, but had not been negligent in respect of causing the accident.
However, in Bowkers Park Komga Cooperative Ltd v SAR and H 1980, the court held that contributory
negligence didn’t refer to negligence in respect of the damage-causing event, such as a motorcar
accident, but to negligence in respect of the damage itself, and this was confirmed by the AD in Union
National South British Insurance Co Ltd v Vitoria 1982 and General Accident Versekeringsmaatskappy
SA Bpk v Uijs 1993. Therefore, failure to wear a safety helmet would constitute contributory
negligence if it contributed to the plaintiff’s damage.

Question 3:
In his hurry to catch a train, Aaron bumps into Martha, a frail old lady. Martha falls and breaks a leg.
She is admitted to a hospital. The leg is set in plaster cast, she is given a set of crutches, and is
discharged from the hospital. A week later Martha slips with her crutches on a smooth floor, falls
again, and breaks her arm.
3.1 Does a factual causal link exist between Aaron’s conduct and Martha’s broken arm? Discuss. (5)
consistently state that the conditio sine qua non is the test of factual causation. If we apply the test to
the facts, we must conclude that if Aaron had not bumped Martha, she would not have broken her
arm, and therefore a factual causal link is present between Aaron’s conduct and Martha’s damage.
3.2 Does a legal causal link exist between Aaron’s conduct and Martha’s broken arm? Discuss in detail
with reference to case law. (10)
robber was the legal cause of the teller’s death. According to the court, the main question in respect of
legal causation is whether there is a close enough relationship between the wrongdoer’s conduct and
conclusion is probably that Martha’s broken arm was too remote and should not be imputed to the
wrongdoer. It could also be argued that a so-called novus actus interveniens, that is, a new intervening
act, was constituted by Martha’s second fall, and this strengthens the conclusion that there is no legal
causal link between Aaron’s conduct and Martha’s broken arm.
3.3 What is meant by the “sum-formula approach”? (2)
The sum-formula approach is a comparative method whereby patrimonial loss is established. The sum-
formula approach entails the comparison of an actual current patrimonial sum with a hypothetical
current patrimonial sum (the person’s current patrimonial position after the event, and his
hypothetical patrimonial position that would have been the current position if the event had not taken
place).
3.4 What is meant by the “once-and-for-all rule”? (2)
In terms of this rule, a plaintiff who claims damages on a specific cause of action has only 1 chance to
claim damages for all damage already suffered as well as all prospective loss.
3.5 What is vicarious liability? Explain briefly. (1)

Vicarious liability may be described as the strict liability of 1 person for the delict of another. The
former is thus indirectly or vicariously liable for the damage caused by the latter. This liability applies
where there is a particular relationship between 2 persons.
May/June 2018
1 Which one of the following is NOT described as one of the pillars of our law of delict?

4. The interdict
2 Janice threatens Queeneth with a gun and orders her to hand over her cellphone. Queeneth, in fear of
her life, hands over the cellphone. One week later, Queeneth spots Janice at a nearby shopping centre.
Queeneth rushes home and grabs a knife. She returns to the shopping centre and stabs Janice. Janice
wants to institute a delictual action against Queeneth. Queeneth may rely on the following ground of
justification:
1. Necessity
2. Provocation
3. Private defence
3 Sibusiso is away on holiday. Frank, his neighbour, is keeping a watchful eye on his house for him. Frank
notices that the house is flooded with water and realises that a water pipe in the house has burst.
Frank breaks down the front door of Sibusiso’s house in order to turn off the water to prevent further
damage. If Sibusiso wants to institute a delictual action against Frank for breaking down his front door,
Frank may rely on the following ground of justification:
2. Necessity
3. Provocation
4. Private defence
4 Which one of the following conditions may amount to automatism?
1. Provocation
2. Self-defence
3. Necessity
4. Hypnosis
5 The most suitable remedy for the prevention of harm is:

3. The interdict
4. Mitigation of loss

6 Choose the correct statement. In Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC), the Constitutional Court:

Rights.
3. declared that the courts of lower instance had erred by applying a pre-constitutional
concept of the boni mores.
7 Absolute compulsion is one of the conditions that may cause a person’s behaviour to be involuntary
and hence not to qualify as conduct for the purpose of delictual liability. In which one of the following
instances is Y subject to absolute compulsion?
2. X pushes a baseball bat into Y’s hand and then, without Y being able to offer
resistance, X takes hold of Y’s hand and forces it to cause a dent on Z’s motor vehicle.
motor vehicle.
4. Y is “blind drunk” and lies on the sidewalk, making involuntary movements with his arms and
motor vehicle.
8 Which of the following best describes what is meant by “psychological lesion”?

3. Emotional shock
4. Infringement of the right to identity
9 In which one of the following situations can it be said that publication of defamatory words has taken
place?
adulterer.
secretary.
4. Bob meets Joseph at the local post office and tells Joseph that the manager of the post
office, Mrs Posh, is involved in an adulterous affair with Joseph’s neighbour Henry.
10 Dr Lucas, a well-known obstetrician, delivered Nicole’s daughter, Mandy. During delivery, the nerves in
Mandy’s right shoulder were injured resulting in the paralysis of her arm. All of this happened because
Dr Lucas failed to inform Nicole of the potential complications inherent in delivering a large baby.
Indicate the most correct statement: Negligence will be determined according to the standard of:

11 Carl, 17, left his Playstation in his locker at school. James, 15, wants to steal Carl’s Playstation. He
realises that he would have to damage Carl’s locker in order to get the Playstation. In respect of the
damage to the locker, James has:
1. Dolus directus
2. Dolus indirectus
3. Dolus eventualis
1. John’s vicious dog charges to attack Zain. To protect himself, Zain picks up a baseball bat and
gives the dog a blow to the head.
2. Brian threatens Wilma with a knife and robs her of her cellphone. After 3 months, Wilma sees
Brian at a shopping centre and reacts by stabbing Brian with a high heeled shoe.
3. A child points a firearm at you and you grab his arm to prevent him from shooting you.
The child sustains injuries to his arm.
arrest. He jabs the policeman, cracking one of the policeman’s ribs in an attempt to escape.
13 Gawie and Manie are farming on adjacent properties. Gawie bears a grudge against Manie. He sets up
a device, which causes a loud bang every half an hour, on the common boundary between the 2 farms
near Manie’s homestead. As a result of this, Manie and his family cannot sleep at night and are
irritated by day. Manie asks Gawie to dismantle the device, but Gawie says that the device serves the
purpose of scaring baboons away from his orchards. Which delictual remedy may be available to
Manie?

4. The interdict
14 Neil is chased by a fierce Jersey bull and jumps into Conrad’s scooter, which is parked next to the road,
in order to race away and save his own life. The scooter is damaged and Conrad institutes a delictual
claim against Neil. Neil may raise the following ground of justification:
1. Private defence
2. Necessity
3. Provocation
15 Dick is so offended by William’s speech at a political rally, that he throws an apple at William. William
falls off the podium and sustains a broken arm as well as a few broken ribs. He is admitted to hospital.
While he is being treated there, a nurse leaves the windows of the ward open and William contracts
pneumonia. Which one of the following is incorrect?

1. Dick acted wrongfully
2. Dick had fault
3. There is a factual causal link between Dick’s conduct and William’s broken arm and ribs
4. There is no factual causal link between Dick’s conduct and William’s pneumonia
16 Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd 1997 (2) SA 591 (W) dealt
with:
1. The adequate causation theory

2. The sum-formula approach
3. Direct consequences theory
18 Joseph plays tennis in his back yard. He foresees the possibility of his ball breaking a window in his
neighbour’s house, but decides that it will not happen. If the ball indeed breaks the window, Joseph
had the following in respect of the damage:
4. luxuria.

3. Compensating advantages
20 John and Peter bear a grudge against Greg and agree to teach him a lesson he will not forget. While
Greg is in a shopping centre, John and Peter damage Greg’s motor car by hitting it with hammers. If
Greg successfully sues John and Peter in delict, they will incur:

Section B:
Question 1:
The municipality of Cape Town is busy with excavations in the business centre. The municipal
workers do not erect any barrier or warning signs in the vicinity of the excavations. Mrs Baloyi, who
is near-sighted, falls into the excavations and sustains serious injuries. She wishes to institute a
delictual action against the municipality. Was the conduct of the municipality wrongful? Discuss in
detail. (15)
that the interests of a third person will be protected. In the so-called municipality cases, prior conduct
was considered to be a prerequisite for the wrongfulness of an omission. Prior conduct refers to
positive conduct that created a new source of danger, preceding subsequent omission to protect
others from being harmed by this new source of danger. The classic case in this respect is Halliwell v
Johannesburg Municipal Council 1912. The view that prior conduct was a prerequisite for wrongfulness
of an omission was eroded in Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957; Regal v African
Superslate (Pty) Ltd 1963; and Minister of Forestry v Quathlamba 1973. In Minister van Polisie v Ewels
1975, the court finally held that the existence of a legal duty is determined by the boni mores, and
whereas the presence of prior conduct is a strong indication of the presence of wrongfulness, it is not
a prerequisite thereof. Subsequent judgments, such as Cape Town Municipality v Bakkerud 2000,
confirmed that the principles formulated in Ewels were applicable to municipality cases. An interplay
of different factors may also indicate the presence of a legal duty. In Carmichele v Minister of Safety
and Security (Centre for Applied Legal Studies Intervening) 2001, the CC made it clear that the boni
mores must now be informed by the values underpinning the Bill of Rights in the Constitution. If these
principles are applied to the given facts, we can probably conclude that the omission of the
municipality was indeed wrongful.
Question 2:
2.1 David works at the control tower of the OR Tambo Airport. His job is to regulate the movements of
the aeroplanes landing and taking off. Due to a sudden sharp drop in David’s blood pressure, he
loses consciousness for five minutes. During this period of unconsciousness, two aeroplanes collide
because David did not give the pilots the correct instructions. Did David act for the purpose of the
law of delict?
Would it make a difference to your answer if David has already been under medical treatment for a
diagnosed condition of low blood pressure, but failed to take his prescribed blood pressure
medication when he should have done so earlier that morning? Discuss in detail with reference to
authority. Restrict the scope of your answer to what is asked in the question, and note in particular
that the question does not deal with the element of wrongfulness. (10)

incapable of controlling his bodily movements: absolute compulsion (vis absoluta), sleep,
unconsciousness, fainting fit, epileptic fit, serious intoxication, blackout, reflex movements, strong
emotional pressure, mental disease, hypnosis, and a heart attack.
If we apply these principles to the given facts, we can conclude that David did not act voluntarily when
the two aeroplanes collide because David did not give the pilots the correct instructions as he was
unconscious. However, the situation will indeed change if David had been receiving medical treatment
for a diagnosed condition of low blood pressure, but failed to take his prescribed blood pressure
harm another. The defendant (David) will be held liable for his culpable conduct in creating the state
of automatism which resulted in damage to the plaintiff. Defendant may not successfully rely on the
defence of automatism where he was negligent regarding his automatic “conduct”. Where the
reasonable man would’ve foreseen the possibility of causing harm while in a state of automatism, eg.
in Victor case, X was convicted of negligent driving despite causing the accident during an epileptic fit,
as he’d been suffering fits for 13 years and the reasonable man would’ve foreseen the possibility of
causing harm while in a state of automatism. In this case, X knew he may suffer an epileptic fit and still
drove a motor vehicle.
acts.
A person can’t rely on automatism if he negligently placed him in a mechanical state (David didn’t take
his medication). Thus, David was probably negligent, or could even have had intention in the form of
dolus eventualis. Therefore, a reliance on automatism would fail in this case.
2.2 Joseph is an intelligent twelve year-old boy. His dream is to be a world-class cricket player one day.
While practicing in his parents’ back yard, he hits a ball with all his might. The ball shatters a big
window in the neighbour’s house. Discuss in detail whether Joseph was negligent. (15)
Before Jones NO v Santam Bpk 1965, the negligence of a child used to be determined with reference to
a reasonable child standard. In the Jones case, the court held that the test for negligence remains
objective, and the reasonable person test (the diligens paterfamilias test) must also be employed in
the case of a child wrongdoer. The youthfulness of the child wrongdoer is not specifically considered
here. However, during the inquiry into the accountability of the child, his or her youthfulness is taken
into account. The Jones case was criticised on 2 counts: firstly, many are of the opinion that a
reasonable adult standard for a child wrongdoer is unfair; secondly, the court put the cart before the
horse by testing for negligence first and, thereafter, for accountability. In Roxa v Mtshayi 1975, the
court followed the correct order. In Weber v Santam Versekeringsmaatskappy Bpk 1983, the Jones

case was confirmed in essence and the court said that if the principles were applied with insight, the
criticism would fall away. In Eskom Holdings Ltd v Hendricks 2005, the court reiterated that in each
case it must be determined whether the child has attained the emotional and intellectual maturity to
appreciate the danger to be avoided and to act accordingly. In respect of accountability, the Child
Justice Act 75 of 2008 provides that a child of 9 or younger is irrebuttably presumed to be culpae
incapax/not accountable, whereas a child over 9, but under 14, is rebuttably presumed to be culpae
incapax/not accountable. Whether Joseph in our question would be held to have been negligent
would depend on all the circumstances of the case. If he was intelligent and mature enough to be
accountable/culpae capax, he was probably negligent, because, taken at face value, his conduct
deviated from that of the reasonable person in the circumstances.
Question 3:
Celia is so offended by Nadia’s speech at a political rally, that she throws her shoe at Nadia. Nadia
falls off the podium and sustains a broken arm as well as a few ribs. She is admitted to hospital.
While she is being treated there, a nurse leaves the windows of the ward open and Nadia contracts
pneumonia.
3.1 Does a factual causal link exist between Celia’s conduct and Nadia’s pneumonia? Discuss. (5)
the facts, we must conclude that if Celia had not throne her shoe at Nadia, she would not have broken
her arm and a few ribs, and therefore a factual causal link is present between Celia’s conduct and
Nadia’s damage.
3.2 Does a legal causal link exist between Celia’s conduct and Nadia’s pneumonia? Discuss in detail with
reference to case law. (15)
conclusion is probably that Nadia’s pneumonia was too remote and should not be imputed to the
wrongdoer (Celia). It could also be argued that a so-called novus actus interveniens (a new intervening
act) was constituted by a nurse leaving the windows of the ward open, and this strengthens the
conclusion that there is no legal causal link between Celia’s conduct and Nadia’s pneumonia.

Oct/Nov 2017:
1 Absolute compulsion is one of the conditions that may cause a person’s behaviour to be involuntary
and hence not to qualify as conduct for the purpose of delictual liability. In which one of the following
instances is Y subject to absolute compulsion?
2. X pushes a baseball bat into Y’s hand and then, without Y being able to offer
resistance, X takes hold of Y’s hand and forces it to cause a dent on Z’s motor vehicle.
motor vehicle.
4. Y is “blind drunk” and lies on the sidewalk, making involuntary movements with his arms and
motor vehicle.
2 Arnold threatens Betty with a gun and orders Betty to hand over her handbag and cellphone. Betty, in
fear of her life, hands over the handbag and cellphone. One week later, Betty spots Arnold at a nearby
shopping centre. Betty rushes home and grabs a knife. She returns to the shopping centre and stabs
Arnold. Arnold wants to institute a delictual action against Betty. Betty may rely on the following
1. Necessity
2. Provocation
3. Private defence
3 Sibusiso is away on holiday. Mapule, his neighbour, is keeping a watchful eye on his house for him.
Mapule notices that the house is flooded with water and realises that a water pipe in the house has
burst. Mapule breaks down the front door of Sibusiso’s house in order to turn off the water to prevent
further damage. If Sibusiso wants to institute a delictual action against Mapule for breaking down his
front door, Mapule may rely on the following ground of justification:
2. Necessity
3. Provocation
4. Private defence
4 Doctor Suliman is an obstetrician and Nadia is a pregnant patient of hers. Nadia is rushed to hospital
late at night as she experiences severe abdominal pains. Doctor Suliman realises that Nadia is in labour
and performs an emergency caesarean section. Nadia lays a complaint against Doctor Suliman with the
Health Professions Council. The council finds that the doctor acted as a reasonable obstetrician would
have done in the particular circumstances. Doctor Suliman wishes to sue Nadia for defamation. Nadia
1. Relative privilege
2. Absolute privilege
3. Fair comment


3. The interdict
1. Only an act or omission that has been willed, can give rise to delictual liability
2. An act or an omission that is irrational or inexplicable may give rise to delictual liability
3. The behaviour of an animal can never qualify as conduct for the purpose of the law of delict
4. A company can act for the purpose of the law of delict
7 Dick is so offended by William’s speech at a political rally, that he throws an apple at William. William
falls off the podium and sustains a broken arm as well as a few broken ribs. He is admitted to hospital.
While he is being treated there, a nurse leaves the windows of the ward open and William contracts
pneumonia. Which one of the following is incorrect?
1. Dick acted wrongfully

2. Dick had fault
3. There is a factual causal link between Dick’s conduct and William’s broken arm and ribs
4. There is no factual causal link between Dick’s conduct and William’s pneumonia
8 Which one of the following statements is correct with regard to delictual liability?
1. The actio legis Aquiliae may be used as the primary remedy for delicts that cause injury to
personality
2. The actio iniuriarum may be used as the primary remedy for patrimonial loss
3. In South African law, delictual liability is governed by a generalising approach
4. In South African law, each delict has its own unique requirements.
9 In which one of the following situations can it be said that publication of defamatory words has taken
place?
adulterer.
secretary.
4. Bob meets Joseph at the local post office and tells Joseph that the manager of the post
office, Mrs Posh, is involved in an adulterous affair with Joseph’s neighbour Henry.
10 Nomsa’s two-year-old daughter falls down a flight of stairs. Nomsa believes that the child has
sustained a brain injury and rushes her to the hospital. On the way to the hospital, Nomsa drives over
the neighbour’s dog which subsequently dies. The neighbour institutes a delictual claim against
Nomsa. It later transpires that Nomsa’s daughter merely suffered from mild shock. Which one of the
following defences may Nomsa rely on?

1. Private defence
2. Provocation
3. Necessity
4. None of the above defences
11 Markus, a financial adviser, negligently advises Hans to make a bad investment. As a result of this,
Hans suffers a serious financial setback. However, there is no damage to Hans’s person or property.
Which one of the following delictual remedies may be available if Hans wishes to recover his financial
loss from Markus?

Manie?

4. The interdict
1. Accountability is a prerequisite for fault

2. A person is accountable if he can differentiate between right and wrong and his behaviour is
susceptible to control of his will
3. Intoxication cannot influence accountability
4. A person is accountable if he directs his will at an unlawful result and is also conscious of
wrongfulness
14 Sean is employed by Raymond as a driver in Raymond’s courier business. Sean has the weekend off,
and decides to visit Mary on Saturday evening. On his way to Mary’s apartment, Sean is involved in an
accident due to his own negligence. Sean’s vehicle and the vehicle of Catherine, the other motorist
involved in the accident, are badly damaged. Catherine discovers that Sean’s financial position is not
good. Advise Catherine on the best course of action:
1. Institute an action against Raymond based on vicarious liability

2. Institute an action against Raymond and Sean as joint wrongdoers
3. Institute an action against Raymond based on culpa in eligendo
4. Institute an action against Sean
with:

16 Jacob is training to be a tattoo artist. He asks Karen whether he can practice his newly acquired skills
on her. Karen enquires whether she will be able to remove the tattoo by washing, and Jacob replies in
the affirmative. Thereupon Karen is willing to comply, and Jacob makes a butterfly tattoo on Karen’s
arm. When Karen discovers that the tattoo is permanent, she wants to institute a delictual action
against Jacob. Jacob may rely on the following ground of justification:
1. Necessity
3. Consent
4. luxuria.
18 Ben clambers over Neil’s fence with the aim of breaking into Neil’s house. Neil’s dog attacks Ben and
Ben sustains serious injuries. Ben wishes to recover his hospital expenses from Neil. Which remedy
may be available to Ben?
2. Actio de pastu.
3. Actio de feris.


Section B:
Question 1:
The municipality of Tshwane is busy with excavations in the business centre. The municipal workers
do not erect any barrier or warning signs in the vicinity of the excavations. Mrs Ngonyama, who is
near-sighted, falls into the excavations and sustains serious injuries. She wishes to institute a
delictual action against the municipality. Was the conduct of the municipality wrongful? Discuss in
detail. (15)
Question 2:
2.1 Johnny is an intelligent thirteen year-old boy. His dream is to be a world-class soccer player one day.
While practicing in his parents’ back yard, he kicks a ball with all his might. The ball shatters a big
window in the neighbour’s house. Discuss in detail whether Johnny was negligent. (15)

incapax/not accountable. Whether Johnny in our question would be held to have been negligent
2.2 The principal of the Bright Future High School has decided to have trees planted on a playground
where the energetic schoolboys play every day. To protect the young trees, circles of thin iron poles
are driven into the ground surrounding the plants. During the first break, Tim, one of the boys in
grade twelve, tries to sit on one of these poles. His friends warn him that the pole is too thin and has
a too sharp tip, but he nonetheless tries to sit on it. The pole penetrates his buttocks and causes a
serious injury. Tim’s parents institute a delictual action against the Bright Future High School for its
omission to guard against the poles injuring the schoolboys. If the management of the school
concedes that the omission was wrongful, what defence can the school nonetheless raise and what
will the effect of a successful reliance on that defence be? Discuss in detail. (15)
From the given facts, we can conclude that the defendant has been negligent, but the plaintiff appears
to have been negligent too. Thus we must consider whether contributory negligence was present.
Contributory negligence is negligence on the part of the plaintiff, and it is a defence that the defendant
can raise. The Apportionment of Damages Act 34 of 1956 is applicable. This Act provides that a
contributorily negligent plaintiff’s damages be apportioned. The court will determine the degree of
deviation from the reasonable person standard shown by the conduct of both the defendant and the
plaintiff, express the deviation as percentages, and use these percentages as a basis for the
apportionment. According to the Smit 1962 and Nomeka 1976 cases, the percentages of negligence
attributed to the defendant and plaintiff respectively will always add up to a 100%.
negligence if it contributed to the plaintiff’s damage.
Question 3:
William falls off the podium and sustains a broken arm as well as a few broken ribs. He is admitted
to hospital. While he is being treated there, a nurse leaves the windows of the ward open and

William contracts pneumonia. Was there a legal causal link between Dick’s conduct and William’s
pneumonia? Discuss in detail. (15)
conclusion is probably that William’s pneumonia was too remote and should not be imputed to the
was constituted by a nurse leaving the windows of the ward open, and this strengthens the conclusion
that there is no legal causal link between Dick’s conduct and William’s pneumonia.
May/June 2017 – First paper

is:



3. The interdict
4 Kabelo’s prize bull breaks through a fence and ventures into Tino’s farm. The bull is aggressive and
charges at Tino’s employees. The employees clamber into a small tree to escape the wrath of the bull.
The bull begins to bash the trunk of the tree. As the tree appears to be about to topple, Tino shoots

and kills the bull to protect his employees. Kabelo institutes an action for damages against Tino. Tino
may raise the following ground of justification:
1. Necessity
2. Private defence
3. Provocation
5 Frans, a financial adviser, negligently advises Ngidi to make a bad investment. As a result of this, Ngidi
suffers a serious financial setback. However, there is no damage to Ngidi’s person or property. Which
one of the following delictual remedies may be available if Ngidi wishes to recover his financial loss
from Frans?

6 Gregory and Mabula are farming on adjacent properties. Gregory bears a grudge against Mabula. He
sets up a device, which causes a loud bang every half an hour, on the common boundary between the
2 farms near Mabula’s homestead. As a result of this, Mabula and his family cannot sleep at night and
are irritated by day. Mabula asks Gregory to dismantle the device, but Gregory says that the device
serves the purpose of scaring baboons away from his orchards. Which delictual remedy may be
available to Mabula?

4. The interdict

wrongfulness
8 Max is training to be a tattoo artist. He asks Kanyiso whether he can practice his newly acquired skills
on her. Kanyiso enquires whether she will be able to remove the tattoo by washing, and Max replies in
the affirmative. Thereupon Kanyiso is willing to comply, and Max makes a butterfly tattoo on Kanyiso’s
arm. When Kanyiso discovers that the tattoo is permanent, she wants to institute a delictual action
against Max. Max may rely on the following ground of justification:
1. Necessity
3. Consent

9 Betty plans to visit Kate, who is looking after Anne’s house. Kate mentions to Betty that there is a
vicious dog, named Roxy, on the premises, but promises to have Roxy locked up in the garage before
Betty arrives. Betty arrives at the appointed time, but on entering the premises, Roxy comes running
around the corner of the house and bites Betty’s leg. What action can Betty institute against Kate in
order to recover her resulting hospital costs?
1. Actio de pastu
2. Actio iniuriarum
10 James, who is employed by Zando, delivers a parcel to Melissa’s house. Melissa’s dog, Snoopy, bites
James when he enters the property. What action may be available to James against Melissa?
1. Actio de pastu
2. Actio iniuriarum
11 Precious has a stall on the sidewalk where she sells homemade cakes. While Precious is tending to
customers, Donald and Jacob pass by and steal an entire tray full of cakes. While they run away,
Jacob’s hat falls off and Precious recognises him and reports the matter to the police. The police
manage to find Jacob, but only after he and Donald have consumed all the cakes. Precious wants to
claim damages from Jacob. Can she claim the entire amount of damages from Jacob?
1. Yes, Jacob is vicariously liable for the damage

2. Yes, joint wrongdoers are in solidum liable for the full damage
3. No, she can only claim damage once the identity of both the perpetrators is known and then
she must claim from both of them simultaneously
4. No, Jacob and Donald are liable for the damage in equal proportions and hence she can claim
only half the amount of damages from Jacob
12 Zayn and Shiraz play in their backyard with a gas-activated pellet gun. They foresee that a pellet may
break a window in one of the neighbour’s houses or vehicles, but decide that it will not happen. If a
pellet indeed breaks the neighbour’s window, Zayn and Shiraz had the following in respect ofdamage:
2. Dolus eventualis
3. Dolus indirectus
4. Luxuria
13 Ayanda insults Julia in front of her mother-in-law, Lerato. Lerato is very protective over her new
daughter-in-law and in retaliation to the insult, slaps Ayanda in the face. If Ayanda institutes a delictual
action against Lerato, Lerato may rely on the following defence:
1. Necessity
2. Private defence
3. Provocation

14 In which one of the following cases did the court hold that an apportionment of damages could
succeed where both the plaintiff and the defendant acted with intention?
1. Greater Johannesburg Transitional Metropolitan Council v ABSA Bank 1997 2 SA 691 (W)
2. Wapnick v Durban City Garage 1984 2 SA 414 (D)
15 X decides to test his home-made bomb in a deserted office building. A group of rebellious teenagers
enter the building and spray graffiti on the walls. The bomb is detonated while the teenagers are
inside the building and five of them are injured. The bomb also causes significant damage to the office
building. In respect of the injuries to the teenagers, the most likely form of fault that X can have is:
1. Dolus indirectus
2. Dolus directus
4. Luxuria
16 Lucy is walking in a popular fashion store and she sees a designer handbag in a glass display unit. She
immediately decides to steal the handbag. In order to get to the handbag, she forces open the glass
display unit, damaging it significantly. In respect of the damage done to the glass display unit, Lucyhas:
1. Dolus indirectus
2. Dolus eventualis
4. Luxuria
17 X wrongfully and negligently knocks over a ladder on which Y was standing. Y breaks an arm and a leg
and also sustains a back injury. Y will be unable to work until his arm and leg are healed. It is uncertain
how long the healing will take, and it is also unknown how much income he will lose. In addition, there
is a slight possibility that his back injury will prevent him from working for an even longer period of
time. Y wishes to claim delictual damages from X. which option is the most correct?
1. Y can only claim the hospital costs that have been incurred for the arm, leg and back injuries at
the stage that the claim is instituted
2. Y must claim for the hospital costs that have been incurred for the arm, leg and back injuries at
the stage that the claim is instituted, and can only claim for loss of income once he can work
again, when he will be able to quantify his loss of income
3. As soon as the first damage is evident, Y must claim all his damages, including all damage
that may materialise as a result of his fall from the ladder in the future
4. Y has no claim for damages
18 Indicate the correct statement with regard to the similarities and differences between delictual,
criminal and contractual liability:
1. A claim for damages is the primary remedy for delict

2. It is not possible for one and the same act to render the wrongdoer delictually as well as
contractually liable
3. One and the same act cannot found delictual as well as criminal liability
4. A claim for damages is the primary remedy in respect of a crime


4. mitigation
20 Ayesha tells Ketiwe that Rosemary, the wife of a famous singer, is involved in an extra-marital affair.
Ketiwe repeats the information to Xolani, a reporter. Xolani investigates and finds the information to
be true. He writes an article about this, and it is published in the local newspaper, The Know-It-All,
with knowledge of John, the editor. If Rosemary wishes to sue for defamation, which of the following
options is the most correct?
1. Xolani, The Know-It-All and John may incur liablity with the actio iniuriarum.
2. Ayesha, Xolani, The Know-It-All and John may incur liablity with the actio iniuriarum.
3. Ayesha, Ketiwe, Xolani, The Know-It-All and John may incur liablity with the actio iniuriarum.
4. No-one may incur liability with the actio iniuriarum.
Section B:
Question 1:
Jim works at the control tower of the Lanseria Airport. His job is to regulate the movements of the
aeroplanes landing and taking off. Due to a sudden sharp drop in Jim’s blood pressure, he loses
consciousness for five minutes. During this period of unconsciousness, two aeroplanes collide
because Jim did not give the pilots the correct instructions. Did David act for the purpose of the law
of delict? Would it make a difference to your answer if Jim has already been under medical
treatment for a diagnosed condition of low blood pressure, but failed to take his prescribed blood
pressure medication when he should have done so earlier that morning? Discuss in detail with
reference to authority. Restrict the scope of your answer to what is asked in the question, and note
in particular that the question does not deal with the element of wrongfulness. (10)
incapable of controlling his bodily movements: absolute compulsion (vis absoluta), sleep,
unconsciousness, fainting fit, epileptic fit, serious intoxication, blackout, reflex movements, strong
emotional pressure, mental disease, hypnosis, and a heart attack.
If we apply these principles to the given facts, we can conclude that Jim did not act voluntarily when
the two aeroplanes collide because Jim did not give the pilots the correct instructions as he was
unconscious. However, the situation will indeed change if Jim had been receiving medical treatment
for a diagnosed condition of low blood pressure, but failed to take his prescribed blood pressure

harm another. The defendant (Jim) will be held liable for his culpable conduct in creating the state of
automatism which resulted in damage to the plaintiff.
acts.
A person can’t rely on automatism if he negligently placed himself in a mechanical state (Jim didn’t
take his medication). Thus, Jim was probably negligent, or could even have had intention in the form
of dolus eventualis. Therefore, a reliance on automatism would fail in this case.
Question 2:
2.1 John works at the control tower of the Wonderboom Airport. His job is to regulate the movements
of the aeroplanes landing and taking off. Two aeroplanes collide because John failed to give the
pilots the correct instructions. Discuss only, but in detail and with reference to case law, whether
John’s conduct was delictually wrongful. (15)
of an omission was eroded in Silva’s Fishing
Corporation (Pty) Ltd v Maweza 1957; Regal v African Superslate (Pty) Ltd 1963; and Minister of
Forestry v Quathlamba 1973. In Minister van Polisie v Ewels 1975, the court finally held that the
existence of a legal duty is determined by the boni mores, and whereas the presence of prior conduct
is a strong indication of the presence of wrongfulness, it is not a prerequisite thereof. Subsequent

judgments, such as Cape Town Municipality v Bakkerud 2000, confirmed that the principles formulated
in Ewels were applicable to municipality cases. An interplay of different factors may also indicate the
presence of a legal duty. In Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001, the CC made it clear that the boni mores must now be informed by the
values underpinning the Bill of Rights in the Constitution. If these principles are applied to the given
facts, we can probably conclude that the omission of John was indeed wrongful.
2.2 Peter, a thirteen year-old boy, practices his golf swing in his parents’ garden in an upmarket suburb
in the north of Johannesburg. He hits a magnificent shot, but the trajectory of the ball ends in the
adjacent garden, where it kills the neighbour’s very rare and exceedingly expensive Pink Amazon
Parrot. Was Peter negligent? Discuss in detail with reference to case law. (15)
incapax/not accountable. Whether Peter in our question would be held to have been negligent would
depend on all the circumstances of the case. If he was intelligent and mature enough to be
Question 3:
In his haste to get to his seat on a soccer stadium, Max bumps into Sam. Sam falls and breaks a leg.
Sam is admitted to hospital. A nurse leaves the windows of the ward open, and Sam contracts
pneumonia.
3.1 Does a factual causal link exist between Max’s conduct and Sam’s pneumonia? Discuss. (5)
the facts, we must conclude that if Max had not bumped Sam, he would not have broken a leg, and
therefore a factual causal link is present between Max’s conduct and Sam’s damage.

3.2 Does a legal causal link exist between Max’s conduct and Sam’s pneumonia? Discuss in detail with
reference to case law. (15)
conclusion is probably that Sam’s pneumonia was too remote and should not be imputed to the
wrongdoer (Max). It could also be argued that a so-called novus actus interveniens (a new intervening
act) was constituted by a nurse leaving the windows of the ward open, and this strengthens the
conclusion that there is no legal causal link between Max’s conduct and Sam’s pneumonia.
May/June 2017 – Second paper

is:


3 If the dignity of a person is infringed in a negligent manner, the most appropriate delictual remedy to
consider is:

4 If a domestic animal has caused harm to a person and the owner of the animal was not negligent, the
most appropriate delictual remedy to consider is:

3. The action de pastu

3. The interdict
3. The behaviour of an animal can never qualify as conduct for the purpose of the law ofdelict
7 Adam tells Bob that Charles, a well-known and married attorney, is having a secret affair with his
secretary. Bob repeats the information to Donald, a reporter. Donald writes an article about this, and
it is published in the local newspaper, The Event, with knowledge of Frank, the editor. Which of the
following options is the most correct?
1. Donald, The Event and Frank may incur liablity with the actio iniuriarum.
2. Adam, Donald, The Event and Frank may incur liablity with the actio iniuriarum.
3. Adam, Bob, Donald, The Event and Frank may incur liablity with the actio iniuriarum.
4. Bob, Donald, The Event and Frank may incur liability with the actio iniuriarum.
8 John’s prize bull breaks through a fence and ventures into David’s farm. The bull is aggressive and
charges at David’s employees. The employees clamber into a small tree to escape the wrath of the
bull. The bull begins to bash the trunk of the tree. As the tree appears to be about to topple, David
shoots and kills the bull to protect his employees. John institutes an action for damages against David.
David may raise the following ground of justification:
1. Necessity
2. Private defence
3. Provocation
9 Adrian insults Tumelo, who in retaliation slaps Adrian across the cheek. If Adrian institutes a delictual
action for the infringement of his personality rights, Tumelo may rely on the following ground of
justification:
1. Provocation.
3. Private defence.

10 Jim insults Karen, Julie’s friend. Julie,Stuvia.com - The study-notes marketplace
who is angered by the insults, then insults Jim. If Jim institutes a
delictual action for the infringement of his personality rights, Julie may rely on the following ground of
justification:
1. Necessity.
2. Private defence.
3. Provocation.
loss from Markus?

Manie?

4. The interdict

wrongfulness

with:

16 Piet left his cellphone in his car. Gert wants to steal Piet’s cellphone. He realises that he would have to
damage Piet’s car in order to get the phone. In respect of the damage to the car, Gert has:
2. Dolus eventualis
3. Dolus indirectus
4. Luxuria
4. Luxuria.
2. Actio de pastu.
3. Actio de feris.


Section B:
Question 1:
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 excavations. Mrs Ndlovu, who
is near-sighted, falls into the excavations and sustains serious injuries. She wishes to institute a
delictual action against the municipality.
1.1 Did the municipality act for the purposes of the law of delict? (5)
voluntary to give rise to delictual liability. Any doubt about the applicability of the decision in the Ewels
case (that prior conduct is not indispensable for the existence of a legal duty) to the “municipality
cases”, was removed by the SCA in Cape Town Municipality v Bakkerud. The court held that the legal
convictions of the community could even in the absence of “prior conduct” (or a statutory duty) place
a legal duty on a municipality to, eg. repair roads or sidewalks or to warn against danger. Whether this
is the case, depends on the circumstances and must be determined ad hoc.
1.2 Was the conduct of the municipality wrongful? Discuss in detail. (15)

Question 2:
2.1 Johnny is an intelligent thirteen year-old boy. His dream is to be a great scientist one day. After
much research on the internet, Johnny builds a rocket in his parents’ back yard. One day he decides
to launch the rocket. The rocket ascends at great speed to a height of 200 metres. Then it bursts into
flames. It falls onto the thatched roof of the neighbour’s lapa. The lapa burns down. Discuss only,
but in detail, whether Johnny was negligent. (10)
incapax/not accountable. Whether Johnny in our question would be held to have been negligent
2.2 Garth rents out mountain bikes. Phil hires one of the mountain bikes. On completing his ride, he is
unable to stop the bike, and he collides with a tree and sustains head injuries. It transpires that
Garth did not properly maintain the bikes, with the result that the brakes of the relevant bike were
malfunctioning. Phil, on the other hand, neglected to wear the safety helmet supplied by Garth. Phil
is hospitalised and his hospital costs amount to R10,000. His costs would have been R6,000 had he
worn the helmet. At the relevant time, Garth used no indemnity forms or notices excluding liability
in her business. Phil wishes to recover R10,000 in delictual damages from Garth. Will he be
successful? Discuss in detail with reference to case law and legislation. (15)

negligence could not succeed whereStuvia.com - The study-notes marketplace
the plaintiff had omitted to wear a crash-helmet while driving a
negligence if it contributed to the plaintiff’s damage. Applying these principles to the facts, we can
conclude that Phil was contributorily negligent and that his damages will be apportioned. He will be
awarded R6 000 plus a portion of the R4 000 damage to which he contributed, taking into account his
and Garth’s respective degrees of negligence.
Question 3:
Dick is so offended by William’s speech at a political rally, that he throws a naartjie at William.
William falls off the podium and breaks an arm and a few ribs. He is admitted to hospital. While he
is being treated there, the nursing staff leaves the windows of the ward open and William contracts
pneumonia.
3.1 Was there a factual causal link between Dick’s conduct and William’s pneumonia? Discuss. (5)
the facts, we must conclude that if Dick had not throne a naartjie at Willaim, he would not have
broken an arm and a few ribs, and therefore a factual causal link is present between Dick’s conduct
and William’s damage.
3.2 Was there a legal causal link between Dick’s conduct and William’s pneumonia? Discuss. (15)
conclusion is probably that William’s pneumonia was too remote and should not be imputed to the
wrongdoer (Dick). It could also be argued that a so-called novus actus interveniens (a new intervening

act) was constituted by the nursing staff leaving the windows of the ward open, and this strengthens
the conclusion that there is no legal causal link between Dick’s conduct and William’s pneumonia.
Oct/Nov 2016
1 Mary moves into a new apartment on the fourth floor. While cleaning her apartment, she throws a
non-functional computer out through the window. The computer causes damage to Brian’s vehicle.
Brian wishes to institute a delictual action. With which remedy is he most likely to succeed?

4. The actio de effuses vel deiectis.
2 Which one of the following is not a requirement for the granting of an interdict?
1. There must be an act (or threatening act) by the respondent.

2. The act (or threatening act) must be wrongful.
3. The act (or threatening act) must be negligent.
4. No other suitable remedy must be available to the applicant.
3 If the dignity of a person is infringed in a negligent manner, the most appropriate delictual remedy to
consider is:

4 Cecil the lion escapes from a nature reserve. The boundary fence of the reserve has been damaged a
month ago but the game rangers have not repaired it. Cecil wanders onto Tshepo’s farm and kills five
head of cattle. Tshepo would like to institute a delictual claim. With which remedy is he most likely to
succeed?


3. The interdict

3. The behaviour of an animal can never qualify as conduct for the purpose of the law of delict
7 Adam tells Bob that Charles, a quiet and very reserved computer scientist, is having a secret affair with
an unmarried receptionist. Bob repeats the information to Donald, a reporter. Donald writes an article
about this, and it is published in the local newspaper, The Event, with knowledge of Frank, the editor.
Which of the following options is the most correct?
1. Donald, The Event and Frank may incur liability with the actio iniuriarum.
2. Adam, Donald, The Event and Frank may incur liability with the actio iniuriarum.
3. Adam, Bob, Donald, The Event and Frank may incur liability with the actio iniuriarum.
8 John’s prize bull breaks through a fence and ventures into David’s farm. The bull is aggressive and
charges at David’s employees. The employees clamber into a small tree to escape the wrath of the
bull. The bull begins to bash the trunk of the tree. As the tree appears to be about to topple, David
shoots and kills the bull to protect his employees. John institutes an action for damages against David.
David may raise the following ground of justification:
1. Necessity
2. Private defence
3. Provocation
9 Karen slaps Cayla in the face. Cayla immediately kicks Karen’s shin. If Karen institutes a delictual action
for the infringement of his personality rights, Cayla may rely on the following ground of justification:
1. Necessity
2. Private defence
3. Provocation.
10 Nick insults Sarah, Julie’s friend. Julie, who is angered by the insults, then insults Nick. If Nick institutes
a delictual action for the infringement of his personality rights, Julie may rely on the following ground
of justification:
1. Necessity.
2. Private defence.
3. Provocation.
loss from Markus?

3. The actio ad exhibendum

12 Sam and Rob live on adjacent agricultural smallholdings. Sam bears a grudge against Rob. He builds a
big cage near the boundary between the 2 properties, far from his house but close to Rob’s house. He
stocks the cage with parrots with piercing voices, and installs a bright light in the cage so that the
parrots will not sleep much at night. Because of the loud calls of the parrots, Rob and his family cannot
sleep at night and are irritated by day. Rob asks Sam to relocate the cage, but Sam replies that, as
owner of his own land, he is entitled to pursue his bird-breeding activities. Which delictual remedy
may be available to Rob?

3. The interdict

wrongfulness

15 In Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A), the court held
that:
1. The elements of wrongfulness and negligence are of particular importance in determining

liability for negligent misrepresentation
2. An omission in the case of negligent misrepresentation can exist in the form of non-disclosure
of information
3. Impairment of personality and patrimonial loss resulting from emotional shock can found
the action for pain and suffering and the actio legis Aquiliae.
4. Intentional interference with contractual relations can give rise to delictual liability
16 Zaheer steals a motor car from a car dealership. To get the vehicle, he breaks open an expensive
security gate. In respect of the damage to the gate, Zaheer has:
2. Dolus eventualis
3. Dolus indirectus
4. Luxuria

17 Joseph practices his golf swing in his Stuvia.com
back yard.- The
He study-notes marketplace
foresees the possibility of his ball breaking a
window in his neighbour’s house, but decides that it will not happen. If the ball indeed breaks the
2. Dolus eventualis
3. Dolus indirectus
4. Luxuria
18 Which one of the following is not a requirement for the liability of a motor car owner for the delict of
the motor car driver?
1. The owner must request the driver to drive the vehicle or supervise the driving
2. The driver must be an employee of the motor car owner
3. The vehicle must be driven in the interest of the motor car owner
4. The owner must retain a right of control over the manner in which the vehicle is driven.
19 Phoebe surreptitiously enters Nellie’s apartment to steal Nellie’s jewellery. Nellie’s parrot attacks
Phoebe and disfigures her ear. Phoebe wishes to institute a delictual action against Nellie. Which
remedy may be available to Phoebe?
2. Actio de pastu
3. Actio de feris
20 In which one of the following cases did the court hold that an apportionment of damages could
succeed where both the plaintiff and the defendant acted with intention?
1. Greater Johannesburg Transitional Metropolitan Council v ABSA Bank 1997 2 SA 691 (W)
2. Wapnick v Durban City Garage 1984 2 SA 414 (D)
21 What is the criterion for determining factual causation?

22 Jacob is training to be a tailor. He asks Karen whether he can practice his newly acquired skills to
convert her long skirt to a very short mini-skirt. Karen agrees, but after looking at herself in the mirror
wearing the short skirt, she regrets the change to her skirt and wants to claim damages from Jacob.
Jacob may rely on the following ground of justification:
1. Provocation
3. Consent

23 The principle dictating at what stage Stuvia.com
prospective- The study-notes marketplace
loss must be claimed, is known as:


25 Mike, Mac and Mark steal and sell a truckload of Mel’s mealies. If Mel successfully sues Mike, Mac and
Mark in delict, they will incur:
Section B:
Question 1:
Municipal workers of the city of Cape Town are busy repairing a coastal walkway that has been
damaged by a stormy sea during an exceptional high tide. During their lunch break, the workers
walk to a café to buy food. They leave a big cavity in the walkway, which they have been trying to fill
up, unattended and do not cordon it off or put up any signs warning pedestrians of this hazard. Jim,
a health-conscious engineer who works in a nearby office, goes for his customary lunch-hour jog
along the walkway. Jim is near-sighted, but because he perspires freely while he is exercising, he
leaves his spectacles in the office. While sprinting the final section of this jog, Jim sees the cavity in
the walkway too late, slips in a puddle of seawater and falls into the cavity. He breaks an arm,
fractures two ribs and sustains light concussion. Jim wishes to institute a delictual action against the
municipality. Was the conduct of the municipality wrongful? Restrict the scope of your answer to
what is asked in the question, but discuss in depth. (15)

was considered to be a prerequisite Stuvia.com - The study-notes marketplace
for the wrongfulness of an omission. Prior conduct refers to
of an omission was eroded in Silva’s Fishing
Corporation (Pty) Ltd v Maweza 1957; Regal v African Superslate (Pty) Ltd 1963; and Minister of
Forestry v Quathlamba 1973. In Minister van Polisie v Ewels 1975, the court finally held that the
existence of a legal duty is determined by the boni mores, and whereas the presence of prior conduct
is a strong indication of the presence of wrongfulness, it is not a prerequisite thereof. Subsequent
judgments, such as Cape Town Municipality v Bakkerud 2000, confirmed that the principles formulated
in Ewels were applicable to municipality cases. An interplay of different factors may also indicate the
presence of a legal duty. In Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001, the CC made it clear that the boni mores must now be informed by the
values underpinning the Bill of Rights in the Constitution. If these principles are applied to the given
facts, we can probably conclude that the omission of the municipality was indeed wrongful.
Question 2:
2.1 Tom is an energetic and intelligent thirteen year-old boy. He has built a sturdy soapbox-cart. He pulls
it to the top of a steep hill to test drive his new “vehicle”. He gives the cart a push, jumps in and
grabs hold of the steering wheel. The cart goes downhill at a terrific speed, but the steering
mechanism and the brakes do not operate very effectively. Tom crashes into the neighbour’s
expensive sports car that is, as usual, parked on the sidewalk. Tom causes a lot of damage. Discuss
only, but in detail, whether Tom was negligent. (10)
incapax/not accountable. Whether Tom in our question would be held to have been negligent would
depend on all the circumstances of the case. If he was intelligent and mature enough to be
2.2 The Mountain Air Hotel rents out riding horses to its guests. Ed, who used to be a keen rider in his
youth, hires a sprinted young stallion. The staff of Mountain Air neglect to inspect the quite old and
worn riding gear. However, they do warn Ed to wear a riding helmet for his own safety, but Ed
ignores this. During the ride, the saddle breaks. Ed tumbles headlong to the ground and sustains
head injuries. He is hospitalised and his hospital costs amount to R10,000. The doctor is of the

opinion that Ed’s costs would have been R7,000 had he worn the helmet. Ed wishes to recover
R10,000 in delictual damages from Mountain Air. You may assume that Ed did not give consent to
the risk of injury and that Mountain Air had no indemnity forms or notices excluding liability in use
at the time of the incident. What defence may be available to Mountain Air Hotel and what will the
effect of a successful reliance on the defence be? Discuss in detail with reference to case law and
legislation. (15)
negligence if it contributed to the plaintiff’s damage. Applying these principles to the facts, we can
conclude that Ed was contributorily negligent and that his damages will be apportioned. He will be
awarded R7,000 plus a portion of the R3,000 damage to which he contributed, taking into account his
and Mountain Air’s respective degrees of negligence.
Question 3:
Sally and Sandy support rival soccer teams. While watching a game between their respective teams,
they get involved in a heated argument. Sally hits Sandy over the head with an umbrella. Sandy
sustains a bleeding head injury. Mary, an off-duty nurse, offers to take Sandy to the public toilet to
clean the wound and to cover it with a bandage. While Mary helps Sandy down the stadium, they
slip on some melted ice-cream and fall. Sandy breaks an arm. Discuss only whether there was a legal
causal link between Sally’s conduct and Sandy’s broken arm? (10)

conclusion is probably that Sandy’s broken arm was too remote and should not be imputed to the
was constituted by Sandy’s fall, and this strengthens the conclusion that there’s no legal causal link
between Sally’s conduct and Sandy’s broken arm.
May/June 2016
1 The appropriate delictual remedy to claim compensation for the negligent infringement of bodily
integrity is:

4. The interdict.
2 One night, while staying in a seaside hotel, Peter gets out of bed and walks in his sleep. He only wakes
up as he bumps into an expensive reading lamp and it falls crashing to the floor. The hotel
management wants to hold Peter delictually liable for the damage. What defence can Peter raise?
1. Consent
2. Automatism
3. Absence of accountability
4. No defence is available
3 Which one of the following acts amounts to an omission (omissio) on the part of the defendant?
1. X burns the overgrown grass on his property. It is a windy day and the fire spreads quickly and
uncontrollably and burns his neighbours’ crops
2. A good swimmer passes by a public swimming pool. He sees a child drowning but
simply ignores the incident as he does not want to be late for his date
3. Y is insulted by A and retaliates by slapping A across the face. A’s spectacles break and
splinters pierce his eyes
4. C suffers an epileptic fit while driving her vehicle. She causes an accident in which B’s vehicle is
badly damaged. C has not been diagnosed with epilepsy before this event.
4 Choose the correct statement. In Carmichele v Minister of Safety and Security (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC), the Constitutional Court:

Rights.
3. declared that the courts of lower instance had erred by applying a pre-constitutional
concept of the boni mores.

5 Choose the correct statement:
1. The onus to prove sane automatism is on the defendant

2. Reliance on sane automatism will not succeed in instances of actio libera in causa.
3. Sane automatism is a ground of justification
4. Reliance on sane automatism will succeed if the defendant is negligent with regard to his or
her automatic body movements.
6 Negligence of a child wrongdoer is determined with reference to:
1. The reasonable person standard

2. The reasonable child standard
3. The reasonable expert standard
7 Adam tells Bob that Charles, a well-known and married attorney, is having a secret affair with his
secretary. Bob repeats the information to Donald, a reporter. Donald writes an article about this, and
it is published in the local newspaper, The Event, with knowledge of Frank, the editor. Which of the
following options is the most correct?
1. Donald, The Event and Frank may incur liability with the actio iniuriarum.
2. Adam, Donald, The Event and Frank may incur liability with the actio iniuriarum.
3. Adam, Bob, Donald, The Event and Frank may incur liability with the actio iniuriarum.
4. Bob, Donald, The Event and Frank may incur liability with the actio iniuriarum.
8 Indicate which statement is incorrect:
1. Fault on the part of the aggressor is not a requirement for private defence
2. The attack need not be directed at the defendant for a reliance on private defence tosucceed
3. An incited animal may act for purposes of an attack giving rise to private defence
4. An imminently threatening attack may suffice for private defence
9 Dr Lucas, a well-known obstetrician, delivered Nicole’s daughter, Mandy. During delivery, the nerves
in Mandy’s right shoulder were injured resulting in the paralysis of her arm. All of this happened
because Dr Lucas failed to inform Nicole of the potential complications inherent in delivering a large
baby. Indicate the most correct statement: Negligence will be determined according to the standard
of:
1. the reasonable doctor test

2. the reasonable person test
3. the reasonable man test
4. the reasonable obstetrician test
10 Johnny, an intelligent 13 year-old boy, inadvertently breaks a priceless vase in Mr Khumalo’s house.
For the purpose of delictual liability, Johnny is:
1. Accountable
2. Culpae incapax.
3. Irrebuttably presumed to be culpae incapax.
4. Rebuttably presumed to be culpae incapax.

11 While repairing a stormwater drainage system, workers of the M municipality negligently sever an
electricity cable that supplies electricity to the F factory. The F factory suffers production losses and
loses several long-standing clients due to its inability to deliver products on time. However, the
severed cable is not the property of the F factory. In fact, there is no damage to any property of the
factory, and no employee of the factory is injured. Which one of the following delictual remedies may
be available if the F factory wishes to recover its loss from the M municipality?

12 Gareth and Max are neighbours. They had a big quarrel years ago and have been enemies ever since.
Gareth plants a row of trees on the common boundary between the two properties, with the sole
purpose to make leaves fall constantly into Max’s swimming pool. What delictual remedy may be
available to Max?

4. The interdict
13 Carl, 17, left his Playstation in his locker at school. James, 15, wants to steal Carl’s Playstation. He
realises that he would have to damage Carl’s locker in order to get the Playstation. In respect of the
damage to the locker, James has:
1. Dolus directus
2. Dolus indirectus
3. Dolus eventualis
4. Luxuria
1. John’s vicious dog charges to attack Zain. To protect himself, Zain picks up a baseball bat and
gives the dog a blow to the head.
2. Brian threatens Wilma with a knife and robs her of her cellphone. After 3 months, Wilma sees
Brian at a shopping centre and reacts by stabbing Brian with a high heeled shoe.
3. A 15 year-old boy points a firearm at you and you grab his arm to prevent him from
shooting you. The boy sustains injuries to his arm.
arrest. He jabs the policeman, cracking one of the policeman’s ribs in an attempt to escape.
15 Neil is chased by a mob of armed robbers. He jumps onto Conrad’s scooter, which is parked next to the
road, in order to race away. He escapes, but the scooter is damaged as a result of his wild driving.
Conrad institutes a delictual claim against Neil. Neil may raise the following ground of justification:
1. Private defence
2. Necessity
3. Provocation

16 In Greater Johannesburg TransitionalStuvia.com - The study-notes marketplace
Metropolitan Council v ABSA Bank 1997 2 SA 691 (W), the court
held that:
1. A defence of contributory intention could succeed where both the plaintiff and the
defendant acted with intention
2. A person is guilty of negligence if his conduct falls short of that of the standard of the diligens
paterfamilias.
3. For the purposes of the law of delict, intent and negligence may be present simultaneously
4. There is no single criterion for legal causation which is applicable in all instances
17 Which of the following concepts is best described as “patrimonial loss without injury to person or
property”?

2. Product liability
3. Emotional shock
18 Sean is employed by Raymond as a driver in Raymond’s courier business. Sean has the weekend off,
and decides to visit Mary on Saturday evening. On his way to Mary’s apartment, Sean is involved in an
accident due to his own negligence. Sean’s vehicle and the vehicle of Catherine, the other motorist
involved in the accident, are badly damaged. Catherine discovers that Sean’s financial position is not
good. Advise Catherine on the best course of action:
1. Institute an action against Raymond based on vicarious liability

2. Institute an action against Raymond and Sean as joint wrongdoers
3. Institute an action against Raymond based on culpa in eligendo
4. Institute an action against Sean
2. Actio de pastu.
3. Actio de feris.
20 Phil’s bull tramples and eats Anne’s maize that she planted in her fields. Which remedy may be
available to Anne?
2. Actio de pastu.
3. Actio de effuses vel deiectis.
4. Actio de feris.
21 Which is the odd one out, with reference to the element of fault?
2. Actio de pastu.

22 Jacob is training to be a tattoo artist. He asks Karen whether he can practice his newly acquired skills
on her. Karen enquires whether she will be able to remove the tattoo by washing, and Jacob replies in
the affirmative. Thereupon Karen is willing to comply, and Jacob makes a butterfly tattoo on Karen’s
arm. When Karen discovers that the tattoo is permanent, she wants to institute a delictual action
against Jacob. Jacob may rely on the following ground of justification:
1. Necessity
3. Consent


25 Themba and Thabo make a fire and neglect to put it out. The fire spreads to Lindiwe’s flower-garden
and all the flowers die. Lindiwe would have sold the flowers to a cut-flower market and she suffers a
substantial loss of income. If Lindiwe successfully sues Themba and Thabo in delict, they willincur:
Section B:
Questions 1 to 3 facts:
Alex enters the Bargain-Buy Store to buy some groceries. Bargain-Buy has a large section of fresh
fish on display. However, it is an exceptionally hot day and the ice that is used to keep the fish cold,
is melting faster than usual. A puddle of water has formed below the display table. The store
manager has put up a sign displaying the words “Watch out – water on floor”. In addition, the store
manager has instructed an employee of Bargain-Buy to dry the area with a mop at three-hourly
intervals. Alex reads the sign, and sees the water, but proceeds to walk to the fish display. He slips
and falls, breaking his left arm and fracturing two ribs. He is admitted to the CareMed hospital for
treatment. Diane, a nurse in the employ of CareMed, adjusts the airconditioning, and Alex contracts

pneumonia. Answer the following questions 1 to 3 below (with their subdivisions) with reference to
the set of facts.
Question 1:
Was the conduct of the Bargain-Buy Store wrongful? Discuss in detail and refer to applicable case
law. Do not discuss other delictual elements in your answer. (15)
principles are applied to the given facts, we can probably conclude that the omission of the Bargain-
Buy Store was indeed wrongful.
Question 2:
2.1 Assume that the conduct of Bargain-Buy was indeed wrongful. Was the conduct of Bargain-Buy
negligent? Discuss with reference to case law. (5)
Kruger v Coetzee, the test for negligence:
(a) would foresee the reasonable possibility of his conduct injuring another in his person or property
and causing him patrimonial loss; and
(b) would take reasonable steps to guard against such occurrence; and the defendant failed to take
such steps.
If these principles are applied to the given facts, we can probably conclude that the conduct of
Bargain-Buy was not negligent as the store manager foresaw the reasonable possibility of his conduct

injuring another and took reasonableStuvia.com
steps to-guard
The study-notes marketplace
against such occurrence by putting up a sign
displaying the words “Watch out – water on floor”, and instructing an employee of Bargain-Buy to dry
the area with a mop at three-hourly intervals.
2.2 Assume that Bargain-But has acted wrongfully and negligently and that Bargain-Buy will not be able
to rely on the defence of consent to the risk of injury (or voluntary assumption of risk). Discuss
another defence that Bargain-Buy may raise. Refer to applicable legislation and case law. (15)
attributed to the defendant and plaintiff respectively will always add up to a 100%.
SA Bpk v Uijs 1993. Therefore, Alex reads the sign, and sees the water, but proceeds to walk to the fish
display would constitute contributory negligence if it contributed to the plaintiff’s (Alex’s) damage.
Question 3:
3.1 Was there a factual causal link between Bargain-Buy’s conduct and the pneumonia that Alex has
contracted? Discuss. (5)
the facts, we must conclude that if Bargain-Buy had mopped up the puddle of water, Alex would not
have broken his arm and fractured two ribs, and therefore a factual causal link is present between
Bargain-Buy’s conduct and Alex’s damage.

3.2 Was there a legal causal link between Bargain-Buy’s conduct and the pneumonia that Alex
has
contracted? Discuss with reference to case law. (10)
Mokgethi 1990 andInternational Shipping Co (Pty) Ltd v Bentley 1990. In Mokgethi, a bank
robber shot a teller. The tellerwas rendered a paraplegic and was discharged from
hospital in a wheelchair. Subsequently, the paraplegic man failed to shift his body position
in the chair frequently and developed pressure sores, eventually dying from
complications. The question that arose was whether the shot fired by the
robber was the legal cause of the teller’s death. According to the court, the main question
in respect oflegal causation is whether there is a close enough relationship between the
wrongdoer’s conduct and its consequence for such consequence to be imputed to the
wrongdoer in view of policy considerations based on reasonableness, fairness and justice.
consequences, foreseeability and novus actus interveniens.
to the facts in the question, theconclusion is probably that Alex’s pneumonia was too
remote and should not be imputed to the wrongdoer (Bargain-Buy). It could also be
argued that a so-called novus actus interveniens (a new intervening act) was constituted
by a nurse adjusting the airconditioning, and this strengthens the conclusion that there is
no legal causal link between Bargain-Buy’s conduct and Alex’s pneumonia.

Law of Delict
PVL3703
2020 ASSIGNMENTS

COMMENTARY
Question
Read the judgment in Stedall and Another v Aspeling and Another 2018 (2) SA 75 (SCA) and
• a comparison of the court’s decision with that of Neethling and Potgieter in Neethling-
Potgieter-Visser Law of Delict on how wrongfulness should be established [a maximum of 5
marks are awarded for providing your own comparison].
Answer
Facts of the case
Please note that no marks were awarded for providing the facts of the case. The facts are
provided hereunder merely as background information.
In Stedall and Another v Aspeling and Another 2018 (2) SA 75 (SCA), the respondents’ (the
Aspelings’) two and a half year-old daughter C, was involved in a swimming-pool accident on 27
July 2004. The accident occurred at the appellants’ (the Stedalls’) home in Constantia, Cape
Town. C’s mother had left her unattended for a short period of time. During that time, C had made
her way to the swimming pool and was later found floating, face down, in the swimming pool. C
did not drown but suffered severe, permanent brain damage. The Aspelings then sued the
Stedalls for their and C’s damages. The court a quo found the Stedalls twice as culpable as C’s
mother, in that they failed to secure the swimming pool’s gates. The court a quo also found C’s
mother negligent in failing to constantly watch over her. The Stedalls then appealed to the
Supreme Court of Appeal (hereinafter referred to as the “SCA”) disputing delictual liability on their

part (paras 1, 9, 11).
(a) Discussion of what the court decided in respect of the wrongfulness element
Please note that a maximum of 5 marks were awarded for the discussion on what the court
decided in respect of the wrongfulness element.
The SCA held that the court a quo overlooked the requirement that wrongfulness is an essential
and distinct element required for delictual liability (paras 11, 13) [1].
The court referred to Country Cloud Trading CC v MEC, Department of Infrastructure
Development, Gauteng (2015 (1) SA 1 (CC) paras 20-21) and Le Roux v Dey (Freedom of
Expression Institute and Restorative Justice Centre as Amici Curiae) (2011 (3) SA 274 (CC) para
122) where the Constitutional Court held that conduct will be considered wrongful if it would be
reasonable to impose liability on a defendant for the harm suffered [1] and that reasonableness
depends on considerations of public policy, legal policy and constitutional norms [1].
Wrongfulness and negligence should not be conflated (para 13) [1]. The court stated (at para 14)
that the SCA had previously pronounced that “foreseeability of harm”, an essential requirement
for negligence, should not be a requirement in determining wrongfulness (see Country Cloud
Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) para 27,
and MTO Forestry (Pty) Ltd v Swart N.O. 2017 (5) SA 76 (SCA) para 18) [1].
A negligent omission, is not necessarily regarded as prima facie wrongful (para 15) [1]. A
negligent omission is regarded as wrongful only “if it occurs in circumstances that the law regards
as sufficient to give rise to a legal duty to avoid negligently causing harm” (see Minister of Safety
and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12) [1]. With regard to an alleged
negligent omission, the respondents should not only have alleged that the negligent omissions
had been wrongful, but should also plead and prove the facts on which they rely on for holding
the omission wrongful (para 17-19) [1].
A “legal duty” in this context means that the omission must not be wrongful and involves public
and legal policy, consistent with constitutional norms (see Hawekwa Youth Camp v Byrne 2010
(6) SA 83 (SCA) para 22) [1]. A “legal duty” must not be confused with the English law concept of
“a duty of care” which encompasses both wrongfulness and negligence (para 16) [1].
The question was whether the failure to secure the swimming pool gates, was indeed wrongful in
the particular circumstances [1]. The pertinent circumstances were: a parent brought their child to
another’s private premises on a visit; aware that there was a swimming pool on the premises;
supervised the child; became momentarily distracted; and during that time the child wandered off,
fell into the swimming pool, and sustained brain damage [2]. The Court held that the following
factors must be considered: constitutional norms, in particular the best interests of the child [1];
whether the failure to ensure that the gate was secured evokes moral indignation [1]; whether the
legal convictions of the community demand that it be regarded as wrongful [1]; and whether it
would be overly burdensome to impose liability (para 22) [1].
The court referred to a number of foreign judgments, drawing attention to the fact that in those
cases where young children are in the care and under the supervision of their parents whilst
visiting the home of another, the duty to keep the child safe lies with the parents [1]. Public and
legal policy of these foreign countries reflect that it would be unreasonable to impose liability on
the homeowner and expect a homeowner to provide greater supervision than a parent (paras 29-
32) [1].

The court held that the Aspelings failed to establish the element of wrongfulness on the part of the
Stedalls and their claim had to fail on that basis alone. The appeal succeeded since the Stedalls’
conduct was not wrongful (para 33) [1].

Please note that a maximum of 5 marks were awarded for providing your own comparison.
Wrongfulness is a necessary, distinct requirement for delictual liability [1] which should be
determined ex post facto, that is, taking into account all the facts and circumstances present and
consequences that actually ensued (see Neethling, Potgieter and Visser Neethling-Potgieter-
Visser Law of Delict Chapter 3 para 1 ─ from here on, only the paragraph numbers will be
referred to from Chapter 3) [1].
In cases of liability for an omission, wrongfulness is determined by questioning whether according
to the boni mores (legal convictions of the community), the defendant had a legal duty to prevent
harm (see Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus
curiae) 2003 (1) SA 389 (SCA) 395) [1]. There is no general duty to prevent harm by positive
conduct [1]. One must determine according to the circumstances of the case whether there was a
legal duty to act positively [1]. If it is found that the defendant had a legal duty and failed to
comply with that duty, without the applicability of a ground of justification, then that failure is
unreasonable, contra bonos mores and therefore wrongful [2] (see paras 5.1-5.2).
There are certain factors which have come to the fore over time and are indicative of a legal duty
to act positively. These are: prior positive conduct (para 5.2.1); control of a dangerous object
(para 5.2.2); knowledge and foresight of possible harm (para 5.2.3); rules of law (para 5.2.4); a
special relationship between the parties (para 5.2.5); assumption of a particular office (para
5.2.6); a contractual undertaking in respect of the safety of a third party (para 5.2.7); and the
creation of an impression that another will be protected (para 5.2.8) [maximum 3 marks for
mentioning the different factors]. There may be an interplay of the abovementioned various
factors which may indicate that the omission is wrongful (para 5.2.9) [1]. In the end we are
concerned with whether or not the defendant’s failure to act in the particular circumstances was
reasonable [1] and a balancing or weighing of interests takes place (para 5.2.10) [1].
The test for wrongfulness should not be reduced to a “legal duty not to act negligently” as this
creates the impression that the legal duty deals with the question of whether the defendant acted
negligently, thereby conflating wrongfulness and negligence [1]. This formulation of the test for
wrongfulness mirrors the English law “duty of care” concept which in effect combines the test for
wrongfulness and negligence and which was expressly rejected by the SCA (para 5.1) [1].
Most of what has been mentioned above by Neethling and Potgieter in determining wrongfulness
is essentially what the court did in fact reiterate in Stedall v Aspeling. For example, both the
judgment of Stedall v Aspeling and Neethling and Potgieter’s views are aligned in stating that
wrongfulness is a separate and distinct element; wrongfulness in cases of omission is determined
by establishing whether there was a breach of a legal duty; certain factors may play a role in
establishing wrongfulness; wrongfulness must be determined by considering all the
circumstances present; the boni mores, the Constitution, public and legal policy must be
considered; wrongfulness and negligence should not be conflated; and a breach of a legal duty is
not the same as a breach of the English duty of care [maximum 3 marks for expressly pointing
out the similarities]. Neethling and Potgieter however, do not agree with the courts recent
approach to determining wrongfulness, in that wrongfulness consists in the reasonableness of
holding a defendant liable. They are very critical of this approach and provide five reasons why it

should be rejected (see para 6) [1].

In addition, we may point out that Neethling and Potgieter accept in their textbook (para 5.2.9)
that foreseeability of prejudice can be a factor influencing wrongfulness, but in a more recent
contribution they agree with the SCA’s current view that foreseeability of harm should not play a
role in the wrongfulness inquiry (Neethling and Potgieter “Foreseeability: wrongfulness and
negligence of omissions in delict – the debate goes on” 2018 TRW 154-155).
[Maximum marks: 10]
COMMENTARY
Question 1

1. Provocation.
2. Self-defence.
3. Black-out.
4. Necessity.
(1)
Question 2
of the boni mores.
Rights.
(1)
Question 3
(1)
Question 4
2. necessity.
3. provocation.
4. private defence.
(1)

Question 5
2. Dick had fault.
(1)
Question 6

3. the interdict.
(1)


Question 7
(1)
Question 8
(1)

Question 9
(1)
Question 10
taken place?
adulterer.
secretary.
(1)
TOTAL MARKS: [10]


ASSIGNMENT 01
Original due date: 21 August 2020

Read the judgment in Life Healthcare Group (Pty) Ltd v Suliman 2019 (2) SA 185 (SCA) and
• your own comparison of the court’s decision with regards to the element of wrongfulness to the
discussion by Neethling and Potgieter in Neethling-Potgieter-Visser Law of Delict on how
wrongfulness should be established [a maximum of 5 marks are awarded for providing your own
comparison].
Total for assignment 01:[10]
ANSWER
Life Healthcare Group (Pty) Ltd v Suliman 2019 (2) SA 185 (SCA) was a medical negligence
case. The main issue for decision was whether the alleged negligent conduct of a doctor
caused the birth injuries of a child born with cerebral palsy. One bonus mark was awarded for
a satisfactory account of facts of the case.
What the court decided in respect of wrongfulness:
The court stated clearly that in our law a negligent omission is only unlawful if it occurs in
circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently
causing harm [1] citing Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431
(SCA) para 25 and Oppelt v Head: Health, Department of Health, Provincial Administration:
Western Cape [2015] ZACC 33; 2015 (12) BCLR 1471 (CC). [1 mark for any one of these two
cases or both of them] Therefore the hospital bore the onus to prove that Dr Suliman owed a
legal duty [1] to the patient and that the duty was breached. [1] Dr Suliman contended that Mrs
S was not his patient because he was simply covering for another doctor and he therefore did

not assume normal responsibility for the patient. [1] The court remarked that the only logical
inference from Dr Suliman’s contention was that the patient was practically without a doctor or
specialist taking care of her, and the court was unable to agree with this contention. [1] The
court stated that the legal duty arose when Dr Suliman got involved in the treatment of the
patient [1] by agreeing with the request to cover for the other doctor, by positively responding to
a call from a sister that the patient had been admitted to hospital, by instructions to a nurse to
allow the labour to proceed and to sedate the patient, if necessary, and by prescribing
medication as mentioned earlier. This conduct of getting involved in the treatment of the patient
placed him in a position of being responsible for her and the baby. [1 for any reasonable
account of these points] The next question was whether the legal duty was breached, and the
court answered this question by inquiring whether Dr Suliman acted like a reasonable
obstetrician in the circumstances. [1] Dr Suliman first visited the patient more than 11 hours
after her admission. The explanation given by Dr Suliman was that he did not regard her as his
patient, but the court stated that if this was not gross negligence, then it was difficult to imagine
what would be. [1] [A maximum of 5 marks was awarded for the preceding section]
How the part of the judgment that dealt with wrongfulness compares to the views of the
authors of our textbook:
According to Neethling and Potgieter (p 33) wrongfulness lies in the infringement of a legally
protected interest in a legally reprehensible way. [1] The basic test for wrongfulness is the legal
convictions of the community or boni mores [1] and this test must reflect the values of the
Constitution and the Bill of Rights. [1 for mentioning either Constitution or Bill of Rights] In
instances of an omission, wrongfulness is determined with reference to breach of a legal duty
(Neethling and Potgieter 55, 58). [1] Insofar as the judgment dealt with an omission and
wrongfulness was determined with reference to a legal duty, the judgment is broadly in
agreement with the views of Neethling and Potgieter. [1] The court does not use the new
approach to wrongfulness, which is criticised by Neethling and Potgieter, and according to
which wrongfulness consists of the reasonableness, based on policy considerations, of holding
the plaintiff liable (Neethling and Potgieter 80). [1] The court does not specifically refer to the
boni mores or legal convictions of the community (Neethling and Potgieter 36). [1] The court
also does not refer to specific instances where liability for omission has been recognised by the
courts, which are dealt with in detail by Neethling and Potgieter 60-77. [1] However, several of
those specific instances could conceivably have been relied upon, when the court pointed out
that that the legal duty arose when Dr Suliman got involved in the treatment of the patient. [1]
They are: knowledge and foresight of possible harm (Neethling and Potgieter 65); a special
relationship between the parties (Neethling and Potgieter 69); contractual undertaking for the
safety of a third party (Neethling and Potgieter 71); creation of the impression that the interests
of a third party will be protected (Neethling and Potgieter 72); and interplay of factors (Neethling
and Potgieter 73). [maximum 2 marks for mentioning 2 of these and additional 1 mark for a
plausible substantiation why the particular instance is applicable to the facts of the case]
The court determined the breach of the legal duty by establishing that Dr Suliman had been
negligent. This makes it difficult to know where the wrongfulness inquiry ends and where the
fault (negligence, in this case) inquiry begins. This is similar to the duty of care approach of
English law where wrongfulness and negligence are not treated as distinct and independent
elements of liability. Neethling and Potgieter are usually critical of such an approach (e.g.
Neethling and Potgieter 57, see further 158). [A maximum of 2 was awarded for raising this
point, however this topic crosses over into negligence, which was not part of the
question and which most of students would not yet have studied when doing the
assignment. For this reason, full marks could have been attained without addressing this
point.]

ASSIGNMENT 02
1. Absolute compulsion is one of the conditions that may cause a person’s behaviour to be
involuntary and hence not to qualify as conduct for the purpose of delictual liability. In which one
of the following instances is Y subject to absolute compulsion?
motor vehicle.
3. Y is ‘blind drunk’ and lies on the sidewalk, making involuntary movements with his arms and
motor vehicle.
4. X pushes a baseball bat into Y’s hand and then, without Y being able to offer resistance, X
takes hold of Y’s hand and forces it to cause a dent on Z’s motor vehicle.
Answer: 4; see Neethling and Potgieter p 27 (fn 21).
2. Which of the following best describes what is meant by “psychological lesion”?

1. Emotional shock.

1. John’s vicious dog charges to attack Zain. To protect himself, Zain picks up a baseball bat
and gives the dog a blow to the head.
2. Brian threatens Wilma with a knife and robs her of her cell phone. After three months, Wilma
sees Brian at a shopping centre and reacts by stabbing Brian with a high heeled shoe.
3. A child points a firearm at you and you grab his arm to prevent him from shooting you. The
child sustains injuries to his arm.
arrest. He jabs the policeman, cracking one of the policeman’s ribs, in an attempt to escape.

4. Neil is chased by a fierce Jersey bull and jumps onto Conrad’s scooter, which is parked next
to the road, in order to race away and save his own life. The scooter is damaged and Conrad
institutes a delictual claim against Neil. Neil may raise the following ground of justification:
1. private defence.
2. necessity.
3. provocation.
4. official capacity.
5. Carl, seventeen, left his PlayStation in his locker at school. James, fifteen, wants to steal
Carl’s PlayStation. He realises that he would have to damage Carl’s locker in order to get the
PlayStation. In respect of the damage to the locker, James has:
1. dolus directus.
6. Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd 1997 (2) SA 591
(W) dealt with:

7. Joseph plays tennis in his back yard. He foresees the possibility of his ball breaking a window
in his neighbour’s house, but decides that it will not happen. If the ball indeed breaks the
4. luxuria.
8. Gawie and Manie are farming on adjacent properties. Gawie bears a grudge against Manie.
between the two farms, near Manie’s homestead. As a result of this, Manie and his family
cannot sleep at night and are irritated by day. Manie asks Gawie to dismantle the device, but
Gawie says that the device serves the purpose of scaring baboons away from his orchards.
3. The interdict.
9. Jacob, an employee of Zanele, was on route to Rustenburg delivering bread when he

accidentally skipped a red robot and crashed into Dineo’s car. If Dineo successfully sues Zanele
(as the employer) for the damage to his car, Zanele will incur:
4. risk liability.

10. Jonas threatens Lerato with a gun and orders her to hand over her cellphone. Lerato, in fear
of her life, hands over the cellphone. One week later, Lerato spots Jonas at a nearby shopping
centre. Lerato rushes home and grabs a knife. She returns to the shopping centre and stabs
Jonas. Jonas wants to institute a delictual action against Lerato. Lerato may rely on the
1. necessity.
2. provocation.
3. private defence.
Answer: 4; see Neethling and Potgieter 99; 106; 91.

PVL 3703
LAW OF DELICT
2021 ASSIGNMENTS

Question
Read the judgment in Bergrivier Municipality v Van Ryn Beck 2019 (4) SA 127 (SCA)
and write a discussion of 500-1000 words. You can find the judgment in conventional
law libraries, or online by conducting a google search or at the website of the
Southern African Legal Information Institute (SAFLII) at www.saflii.org.
In your discussion, you must:

(a) Discuss what the Supreme Court of Appeal decided in respect of the element of
wrongfulness only in Bergrivier Municipality v Van Ryn Beck 2019 (4) SA 127 (SCA).
In other words, we expect you to explain how the Supreme Court of Appeal came to
the conclusion that the Municipality’s conduct was not wrongful. Please note that no
marks will be awarded for providing the background facts of the case,
Bergrivier Municipality v Van Ryn Beck 2019 (4) SA 127 (SCA) unless they are
relevant to your discussion under point (a) above.
A maximum of 5 marks will be awarded for the discussion on what the court decided
in respect of the wrongfulness element. Therefore a maximum of 5 marks will be
awarded for part (a) of your discussion.
(b) Compare the court’s decision with that of Neethling and Potgieter (the prescribed
book, the Law of Delict) on how wrongfulness should be established. Here we
expect you to briefly lay out the manner in which Neethling and Potgieter
recommend that wrongfulness should be established, particularly in cases of
omissions. With regard to the comparison, you must point out any similarities
between the Supreme Court of Appeal’s principles in establishing wrongfulness and
Neethling and Potgieter’s principles in establishing wrongfulness. You must also
point out any marked differences if any.
A maximum of 5 marks will be awarded for providing your own comparison.
Answer

Background facts
During April 2011, after heavy rainfall, Mr Van Ryn Beck's home was flooded. This
occurred as a result of the storm-water drainage system near his home being
overwhelmed with excessive rainfall (see paras 1, 6–7 and 15). Mr Van Ryn Beck's
property was flooded on two prior occasions, in December 2007 and in June 2009
(para 8). On both these occasions, the insurance company Mr Van Ryn Beck was
contracted with had covered the damages. After the damage to Mr Van Ryn Beck's
home on the second occasion in 2009, the insurance company was not willing to cover
any further damage to Mr Van Ryn Beck's home due to flooding (para 42). Mr Van Ryn
Beck alleged that the Bergrivier Municipality (the Municipality) had after these two
previous floods inspected his home and undertook to do what was necessary to avert
flooding in the future. This included, he alleged, “improving the storm-water drainage
system and ensuring regular maintenance of catch-pits and trenches” which was not
done (para 13).
Mr Van Ryn Beck sued the Municipality in the High Court alleging that the Municipality
had negligently and wrongfully failed to provide an effective water drainage system, to
maintain it and to effect flood-preventative measures (para 42). The High Court
dismissed the claim concluding that the evidence led did not prove negligence,
wrongfulness or causation (paras 3–4). Mr Van Ryn Beck then appealed to the full
bench which upheld the appeal (see para 5). The full bench found that there was
sufficient evidence “to have placed a legal duty on the respondent municipality to have
ensured that its drainage system was able to cater for flood waters that would have
emanated from the adjacent farmlands. It had not done so” (para 38). The Municipality
then appealed to the Supreme Court of Appeal (SCA). The question before the SCA
was whether the Municipality, should be held liable for the damages allegedly
sustained by Mr Van Ryn Beck as a result of the flooding of his home in 2011 (para
2).
Please note that no marks were awarded for stating the above background facts.
(a) Discussion of what the court decided in respect of wrongfulness
Please note that a maximum of 5 marks were awarded for the discussion on
what the court decided in respect of the element of wrongfulness.
The SCA stated that Mr Van Ryn Beck’s claim against the Municipality was based on
an omission and that liability for an omission will follow only if the omission was in fact
wrongful (para 43) [1 mark]. The omission is wrongful if in the circumstances “a legal
duty rested on a defendant to act positively to prevent harm from occurring and [the]
defendant failed to comply with that duty” (para 43) [2 marks]. The SCA stated that
even though conceptually, the inquiry into wrongfulness may occur before the enquiry

into negligence [1 mark], without negligence the question of wrongfulness does not
arise (para 44) [1 mark]. The conduct will not be wrongful if negligence is absent [1
mark]. In certain instances it may be appropriate to assume that there was a legal
duty and then consider negligence [1 mark] while in certain instances it may be
convenient to assume negligence when trying to establish wrongfulness (para 44) [1
mark].
The court held that even though counsel for both parties were of the view that the
issue in this case was with the element of wrongfulness, the evidence provided was
inadequate to establish not only wrongfulness [1 mark] but also fault or causation.
Therefore the Municipality could not be held delictually liabile (para 45) [1 mark].
Wrongfulness is “determined objectively, taking into account all the relevant facts and
circumstances and the consequences that ensued” (para 50) [1 mark]. In determining
whether an infringement of an interest is unlawful, the legal convictions of the
community are considered [1 mark]. The court referred to Lee v Minister of
Correctional Services 2013 (2) SA 144 (CC) and Minister van Polisie v Ewels 1975 (3)
SA 590 (A) with approval where those courts held that an omission is wrongful when
in the circumstances of the particular case, the legal convictions of the community
would demand that the omission be considered wrongful (para 50) [2 marks]. The
court held that in this case, the Municipality could not improve the water-drainage
system as requested by Mr Van Ryn Beck because the Municipality was restricted by
budgetary and sociological concerns (para 51) [1 mark]. There was a greater need to
use the limited funds that were allocated to the Municipality for the indigent, informal
settlement communities (para 51) [1 mark]. The legal convictions of the community
would not hold the Municipality liable under the circumstances as it was too onerous
a duty placed on it (para 51) [1 mark]. The court held that the full bench erred in
dismissing these concerns but at the same time this does not mean that municipalities
can ignore fulfilling their obligations by stating that they have budgetary constraints
(para 51) [1 mark].
The SCA found that the Municipality’s conduct was not wrongful and upheld the appeal
[1 mark].
[Maximum 5 marks]
Please note that a maximum of 5 marks were awarded for providing your own
comparison.
Wrongfulness is a necessary, distinct requirement for delictual liability [1 mark] which

should be determined ex post facto, that is, taking into account all the facts and
circumstances present and consequences that actually ensued (see Neethling and
Potgieter Neethling-Potgieter-Visser Law of Delict 7th edition and Neethling and

Potgieter Law of Delict 8th edition Chapter 3 para 1 ─ from here on, only the editions and
paragraph numbers will be referred to from Chapter 3) [1 mark].
In cases of liability for an omission, wrongfulness is determined by questioning whether

according to the boni mores (legal convictions of the community), the defendant had a
legal duty to prevent harm (see Van Eeden v Minister of Safety and Security (Women’s
Legal Centre Trust, as amicus curiae) 2003 (1) SA 389 (SCA) 395) [1 mark] and legal
policy [1 mark]. There is no general duty to prevent harm by positive conduct [1 mark].
One must determine according to the circumstances of the case whether there was a
legal duty to act positively [1 mark]. If it is found that the defendant had a legal duty and
failed to comply with that duty, without the applicability of a ground of justification, then
that failure is unreasonable, contra bonos mores and therefore wrongful [2 marks] (see
7th edition and 8th edition paras 5.1-5.2).
There are certain factors which have come to the fore over time and are indicative of a
legal duty to act positively. These are: prior positive conduct (7th edition and 8th edition
para 5.2.1); control of a dangerous object (7th edition and 8th edition para 5.2.2);
knowledge and foresight of possible harm (7th edition and 8th edition para 5.2.3); rules
of law (7th edition and 8th edition para 5.2.4); a special relationship between the parties
(7th edition and 8th edition para 5.2.5); assumption of a particular office (7th edition and
8th edition para 5.2.6); a contractual undertaking in respect of the safety of a third party
(7th edition and 8th edition para 5.2.7); and the creation of an impression that another will
be protected (7th edition and 8th edition para 5.2.8); danger of limitless liability (8th edition
para 5.2.9); vulnerability to risk of damage (8th edition para 5.2.10) [maximum 3 marks
for mentioning any of the different factors]. There may be an interplay of the
abovementioned various factors which may indicate that the omission is wrongful (7 th
edition para 5.2.9 and 8th edition para 5.2.11) [1 mark]. In the end, we are concerned
with whether or not the defendant’s failure to act in the particular circumstances was
reasonable [1 mark] and a balancing or weighing of interests takes place (7th edition
para 5.2.9 and 8th edition para 5.2.11) [1 mark].
The test for wrongfulness should not be reduced to a “legal duty not to act negligently”
as this creates the impression that the legal duty deals with the question of whether the
defendant acted negligently, thereby conflating wrongfulness and negligence [1 mark].
This formulation of the test for wrongfulness mirrors the English law “duty of care”
concept which in effect combines the test for wrongfulness and negligence and which
was expressly rejected by the SCA (7th edition and 8th edition para 5.1) [1 mark].
A number of factors mentioned above by Neethling and Potgieter in determining

wrongfulness is essentially what the court did in fact reiterate in Bergrivier Municipality
v Van Ryn Beck 2019 (4) SA 127 (SCA). For example, both the judgment of Bergrivier
Municipality v Van Ryn Beck and Neethling and Potgieter’s views are aligned in stating
wrongfulness in cases of omission is determined by establishing whether there was a
breach of a legal duty; wrongfulness is determined objectively; wrongfulness must be
determined by considering all the circumstances present; the legal convictions of the
community must be considered in determining wrongfulness [maximum 3 marks for
expressly pointing out the similarities]. Neethling and Potgieter however, would not
agree that without negligence the question of wrongfulness does not arise [1 mark] or
that conduct will not be wrongful if negligence is absent [1 mark] because they are of
the view that wrongfulness and negligence are separate and distinct elements that

should be established in their own right [1 mark]. Similarly, Neethling and Potgieter
would probably not agree that in certain instances it may be appropriate to assume that
there was a legal duty and then consider negligence [1 mark] or that in certain instances
it may be convenient to assume negligence when trying to establish wrongfulness [1
mark] because they are of the view that each element must be established in their own
right and the one element is not dependant on the other. Neethling and Potgieter do
however agree that at times, depending on the facts of the case, it may be more
convenient to establish the elements in a different order than the conventional order of
establishing the elements for delictual liability (see Neethling and Potgieter Neethling-
Potgieter-Visser Law of Delict 7th edition and Neethling and Potgieter Law of Delict 8th
edition Chapter 4 par 1) [1 mark].
[Maximum 5 marks]

PVL3703 - LAW OF
DELICT
2022
ASSIGNMENTS
Varsity Assist
Question
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

wrongfulness of the conduct of the municipality of the eThekwini.
This question deals with the wrongfulness of an omission. An omission is wrongful

if the defendant is under a legal duty to act positively to prevent the harm suffered
by the plaintiff.1
The basic question to determine whether an omission is wrongful is whether a

legal duty to act was present and was breached. As a general rule, a person does
not act wrongfully for the purposes of the law of delict if he omits to prevent harm
to another person.2 For liability to follow an act, prejudice must be caused in a
wrongful and unreasonable manner. Without wrongfulness the defendant cannot
be held liable.
The legal convictions of the community (boni mores test) are used as the basic
test for wrongfulness. The general norm to see if an infringement of interests is
unlawful is the legal convictions of the community. Factors which may serve as
indications that a legal duty rested on the defendant include:

➢ rules of law
1 Neethling, Potgieter Law of Delict 8th ed Chapter 3 Pg 61.

Varsity Assist

➢ and creating of an impression that the interests of a third person will be

protected.
A person acts prima facie wrongfully when he creates a new source of danger and
then fails to eliminate that danger, with the result that harm is caused to another
person. Prior conduct is not a prerequisite for the existence of a legal duty,
however at one stage this was the only category where liability was imposed on a
failure to act.
In Halliwell v Johannesburg Municipality;3 the municipality laid cobblestones

inJohannesburg’s city centre but failed to maintain those stones. When Mr
Halliwell crossed the cobblestone path with his horse carriage on a Christmas
morning, his horse stumbled on the poorly maintained road and Mr Halliwell was
hurt. The court held that the municipality was liable for the failure to maintain the
cobblestone road which led to Mr Halliwell’s injuries. This was explicitly done on
the basis of the prior-conduct rule. This rule was also employed in the case of
Silva’s Fishing Corporation v Maweza,4 where the owner of a boat sent fishermen
out to sea (the prior positive conduct) but when the boat stopped working, the
owner did nothing to save the fishermen (the subsequent omission). The boat
owner was held liable for his omission.
In Regal v African Superslate,5 the prominence of the prior-conduct rule as the

only ground on which liability for an omission could be established ended. In the
judgment it was noted that the prior-conduct rule was not the only basis on which
an omission would be actionable. For the first time, the Appellate Division noted
that the prior-conduct rule and the rule related to the control of dangerous property
are both grounds on which the wrongfulness of an omission can be established.
3 Halliwell v Johannesburg Municipality 1912 AD 659.

4 Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A).
5 Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A).
Varsity Assist

In Regal it was showed that the conduct element could be satisfied by simply
showing the factual existence of an act or an omission. The wrongfulness of the
omission was then established by means of the prior-conduct rule or the rule
related to the control of dangerous property. The principle from Regal was later
also applied in the case of Minister of Forestry v Quathlamba;6 where a fire started
on one property, the owner of that property failed to control or contain the fire, and
the fire spread to a neighbouring property. This re-inforced the Regal decision that
prior conduct is not the only criterion for establishing a legal duty.
An extension of the rules related to the wrongfulness of omissions featured in the

case of Minister van Polisie v Ewels.7 In that case police officers passively stood
by and watched as a fellow police officer brutally assaulted a civilian. The court
held that those two rules as shown in prior cases are just two of many factors to
consider in determining the wrongfulness of omissions. In Ewels, considerations
that weighed in favour of a finding of wrongfulness of the omission of the passive
police officers included the legal duty placed on the police to protect citizens from
harm, the special relationship between police officers and the public, and the fact
that the passive police officers were in a position to exercise authority or control
over their assaultive colleague.
In Carmichele v Minister of Safety and Security8 (Centre for Applied Legal Studies
Intervening) 2001, the CC made it clear that the boni mores must now be informed
by the values underpinning the Bill of Rights in the Constitution. 9
omission by the municipality was wrong. The municipality had a legal duty in
terms of the legal convictions of the community to prevent this accident from
happening and the municipality is indeed wrongful.
6 Minister of Forestry v Quathlamba 1973 (3) SA 69 (A).

7 Minister van Polisie v Ewels 1975 3 (SA) 590 (A).
8 Carmichele v Minister of Safety and Security 2001 (1) SA 489 (SCA).
9 Constitution of South Africa,1996.
Varsity Assist

BIBLIOGRAPHY
Books
Neethling, Potgieter, Law of Delict

Neethling J, Potgieter GM, Law of Delict (8th edn Lexis Nexis 2020)
Legislation
Constitution of the Republic of South Africa, 1996.
Case Law
1. Halliwell v Johannesburg Municipality 1912 AD 659.

2. Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A).
3. Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A).
4. Minister of Forestry v Quathlamba 1973 (3) SA 69 (A).
5. Minister van Polisie v Ewels 3 (SA) 590 (A) 1975.
6. Carmichele v Minister of Safety and Security 2001 (1) SA 489 (SCA).
Varsity Assist
ACADEMIC DECLARATION OF HONESTY
Declaration:
1. I understand what academic dishonesty entails and am aware of UNISA’s policies

in this regard.
referencing. Every contribution to, and quotation in this assignment from the work
or works of other people has been referenced according to this style.
3. I have not allowed and will not allow anyone to copy my work with the intention
of passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.
NAME:
STUDENT NUMBER:
Varsity Assist
MODULE CODE:
SIGNATURE:
Varsity Assist
PVL3703 - LAW OF DELICT

2022 – SEMESTER 1
ASSIGNMENT 2
WITH COMPLETE REFERENCES, FOOTNOTES
AND BIBLIOGRAPHY
Question
At the Shop-Till-You-Drop Shopping Mall, hand sanitizer dispensers have been installed at all
the pedestrian entrances…. Notices have been placed near the dispensers, in which
customers are urged to sanitize their hands at the dispensers before entering the Mall. At
Entrance B, the dispenser has been malfunctioning for half a week. It spills sanitizing liquid
onto the floor, in such large quantities that the liquid does not evaporate immediately but
forms a small puddle around the base of the dispenser. Because the lighting at Entrance B is
on the dim side, the puddle is not readily visible unless one specifically looks out for it.
The Management of the Mall is aware of the situation….but does not do anything about it. Ms
C is an elderly lady whose eyesight is not very good, and she is not particularly steady on
her legs, but she loves shopping. She arrives at Entrance B, reads the notice, and proceeds
to sanitize her hands. This requires her to put her one foot on a pedal and push down on it to
activate the dispenser. As she attempts to do this, she slips in the puddle and falls. She
sustains serious injuries and is hospitalised.
After a long and costly bout in hospital, she is discharged.. Ms C wishes to institute an action
for damages against the management of the Shop-Till-You -Drop Shopping Mall and
approaches you for legal advice.
Write an opinion, properly substantiated with reference to case law, only on the
WRONGFULNESS of the conduct of the management of The -Shop-Till-You-Drop Shopping
Mall.
This question deals with the wrongfulness of an omission. An omission is wrongful

if the defendant is under a legal duty to act positively to prevent the harm suffered
by the plaintiff.1 The basic question to determine whether an omission is wrongful
is whether a legal duty to act was present and was breached. As a general rule, a
Varsity Assist
person does not act wrongfully for the purposes of the law of delict if he omits to
prevent harm to another person.2 For liability to follow an act, prejudice must be
caused in a wrongful and unreasonable manner. Without wrongfulness the
defendant cannot be held liable.
The legal convictions of the community (boni mores test) are used as the basic
test for wrongfulness. The general norm to see if an infringement of interests is
unlawful is the legal convictions of the community. Factors which may serve as
indications that a legal duty rested on the defendant include:

➢ rules of law
➢ and creating of an impression that the interests of a third person will be
protected.
A person acts prima facie wrongfully when he creates a new source of danger and
then fails to eliminate that danger, with the result that harm is caused to another
person. Prior conduct is not a prerequisite for the existence of a legal duty,
however at one stage this was the only category where liability was imposed on a
failure to act.
In Halliwell v Johannesburg Municipality;3 the municipality laid cobblestones

inJohannesburg’s city centre but failed to maintain those stones. When Mr
Halliwell crossed the cobblestone path with his horse carriage on a Christmas
morning, his horse stumbled on the poorly maintained road and Mr Halliwell was
hurt. The court held that the municipality was liable for the failure to maintain the

3 Halliwell v Johannesburg Municipality 1912 AD 659.
Varsity Assist

cobblestone road which led to Mr Halliwell’s injuries. This was explicitly done on
the basis of the prior-conduct rule. This rule was also employed in the case of
Silva’s Fishing Corporation v Maweza,4 where the owner of a boat sent fishermen
out to sea (the prior positive conduct) but when the boat stopped working, the
owner did nothing to save the fishermen (the subsequent omission). The boat
owner was held liable for his omission.
In Regal v African Superslate,5 the prominence of the prior-conduct rule as the

only ground on which liability for an omission could be established ended. In the
judgment it was noted that the prior-conduct rule was not the only basis on which
an omission would be actionable. For the first time, the Appellate Division noted
that the prior-conduct rule and the rule related to the control of dangerous property
are both grounds on which the wrongfulness of an omission can be established.
In Regal it was showed that the conduct element could be satisfied by simply
showing the factual existence of an act or an omission. The wrongfulness of the
omission was then established by means of the prior-conduct rule or the rule
related to the control of dangerous property. The principle from Regal was later
also applied in the case of Minister of Forestry v Quathlamba;6 where a fire started
on one property, the owner of that property failed to control or contain the fire, and
the fire spread to a neighbouring property. This re-inforced the Regal decision that
prior conduct is not the only criterion for establishing a legal duty.
An extension of the rules related to the wrongfulness of omissions featured in the

case of Minister van Polisie v Ewels.7 In that case police officers passively stood
by and watched as a fellow police officer brutally assaulted a civilian. The court
held that those two rules as shown in prior cases are just two of many factors to
consider in determining the wrongfulness of omissions. In Ewels, considerations
that weighed in favour of a finding of wrongfulness of the omission of the passive
police officers included the legal duty placed on the police to protect citizens from
harm, the special relationship between police officers and the public, and the fact
4 Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A).
5 Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A).
6 Minister of Forestry v Quathlamba 1973 (3) SA 69 (A).
7 Minister van Polisie v Ewels 1975 3 (SA) 590 (A).
Varsity Assist

that the passive police officers were in a position to exercise authority or control
over their assaultive colleague.
In Carmichele v Minister of Safety and Security8 (Centre for Applied Legal Studies
Intervening) 2001, the CC made it clear that the boni mores must now be informed
by the values underpinning the Bill of Rights in the Constitution. 9
omission of the Centre Management of the shopping mall was wrong.
Management at the Shopping Centre had a legal duty in terms of the legal
convictions of the community to prevent this accident from happening.
8 Carmichele v Minister of Safety and Security 2001 (1) SA 489 (SCA).

9 Constitution of South Africa,1996.
Varsity Assist

BIBLIOGRAPHY
Books
Neethling, Potgieter, Law of Delict

Neethling J, Potgieter GM, Law of Delict (8th edn Lexis Nexis 2020)
Legislation
Constitution of the Republic of South Africa, 1996.
Case Law
1. Halliwell v Johannesburg Municipality 1912 AD 659.

2. Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A).
3. Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A).
4. Minister of Forestry v Quathlamba 1973 (3) SA 69 (A).
5. Minister van Polisie v Ewels 3 (SA) 590 (A) 1975.
6. Carmichele v Minister of Safety and Security 2001 (1) SA 489 (SCA).
Varsity Assist
ACADEMIC DECLARATION OF HONESTY
Declaration:
1. I understand what academic dishonesty entails and am aware of UNISA’s policies

in this regard.
referencing. Every contribution to, and quotation in this assignment from the work
or works of other people has been referenced according to this style.
3. I have not allowed and will not allow anyone to copy my work with the intention
of passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.
NAME:
STUDENT NUMBER:
MODULE CODE:
SIGNATURE:
Varsity Assist
PVL 3703
LAW OF DELICT
MCQ HEAVEN

Question 1
negligently is the:

2. actio iniuriarum
4. interdict
(1)
Question 2
rights is the:

2. actio iniuriarum
4. interdict
(1
)
The delictual remedy used to claim a solatium for intentional infringement of personality rights
is the actio iniuriarum.
Question 3

2. actio iniuriarum
4. interdict
(1
)

Question 4
The delictual remedy used to claim compensation for negligent infringement of the
corpus is the:

2. actio iniuriarum
4. interdict
(1
)
The delictual remedy used to claim compensation for negligent infringement of the corpus is
the action for pain and suffering
Question 5

2. actio iniuriarum
4. interdict
(1
)

Question 6
When the so-called open-ended delictual norms are given content in the light of the
basic values of chapter 2 of the Constitution, this process is known as:

(1
)

Question 7

4. mitigation
(1
)
In a claim for compensation, the plaintiff must claim damages for all damage already
sustained as well as that expected in the future. This principle is known as the “once and for
all” rule, and it effectively dictates the stage at which prospective loss must be claimed.
Question 8

4. mitigation
(1
)
The sum formula approach refers to a hypothetical (potential) patrimonial position of the
plaintiff in order to provide for the assessment of prospective damage.
Question 9
1. bodily integrity
2. good name
3. privacy
4. feelings
(1
)
Defamation is the wrongful, intentional infringement of another person’s right to his/her

good name.
The correct alternative is [2]. [see chap 10 par

3.2.1] Question 10
insight, he or she:
3. has intent
4. is accountable
(1
)

Question 1
1. The actio iniuriarum is directed at ““satisfaction”” for the wrongful and intentional
4. “ “Invasion of privacy” ” in practice is considered as a formdamnumof iniuria datum.
(1)
Question 2

2. There must be a “clear right’
3. “
There must be an infringement or a threat of an infringement of a clear right.
’.

(1)
Question 3
Indicate the correct statement with regard to the concurrence of delictual, criminal and contractual
liability.

liable.
(1)
Question 4
Indicate the incorrect statement with regard to the law of delict and the Constitution.


3. An infringement ofStuvia.com
a right cannot constitute a constitutional wrong and a delict.
- The study-notes marketplace
4. Indirect application means that the state must generally respect fundamental rights
and not infringe them.
(1)
Unfortunately a mistake slipped in here. [3] and [4] are both incorrect, and therefore we gave each student
who completed this assignment a mark for this question. We apologise for any inconvenience caused by this.
Question 5
Which one of the following is a requirement for a successful reliance on “ “

private
defence””?

4. Factual and legal causation must be present. (1)
Question 6
Indicate the incorrect statement with regard to intent.
1. According to Neethling and Potgieter, consciousness of wrongfulness is a requirement for

intent.
2. Dolus eventualis exists where the wrongdoer directly wills one consequence of his
conduct but at the same time acknowledges that another consequence will unavoidably
occur.
4. Dolus indeterminatus exists where the wrongdoer’’s will is directed at the result
which he causes while he has no specific person or object in mind.
(1)
Question 7
Which of the following requirement/s must be present before provocation may be raised as
a defence?

3. The defendant must not have contributed to the provocative conduct.
4. 2 and 3 above.
(1)

Question 8
Which of the following acts is not an iniuria (infringement of a personality right)?
1. Defamation.
4. Adultery.
(1)
Question 9
In which one of the following remedies is there no need to prove damage:
1. Interdict.
2. Actio de pastu.
(1)
Question 10
For which one of the following remedies is fault not a requirement?

(1)

TOTAL MARKS: [10]
13

Question 1
Andrew inadvertently damages Ben’s violin. Which delictual action may be available to Ben?
2. actio iniuriarum
4. actio de pastu
(1)
Question 2
James employs electronic equipment to listen in on Karl’s telephone conversations. Which

2. actio iniuriarum
3. actio de pauperie
(1)
Question 3
Mark inadvertently pushes over a ladder on which Chris is standing. Chris breaks an arm.
2. actio iniuriarum
3. action for pain and suffering and actio iniuriarum
(1)

Question 4
Jors allows Maans to fire some practice shots with his new pistol at an apple on Jors’s head.
The second shot makes a hole in Jors’s left ear. Jors institutes a delictual action against
Maans. Maans may rely on following defence:
1. private defence
3. provocation
4. consent to the risk of injury
(1)
Question 5
(1)
Question 6
According to the following case the onus is on the plaintiff to prove that the defendant acted
voluntarily, rather than on the defendant to prove the presence of automatism:
(1)

Question 7 Stuvia.com - The study-notes marketplace
The following case is regarded as authority for the proposition that killing a person to

(1)
Question 8
Alex incites Bert’s dog to bite Charles. Charles kills the dog with his golf club. Bert institutes a
1. private defence
2. necessity
3. provocation
5. none of the above (1)
Question 9
Alan causes harm to Bert in a wrongful and culpable manner. If Bert succeeds in holding
Charles, Alan’s employer, liable for the damage caused by Alan, Charles will incur:
1. joint and several liability
4. liability based on contributory negligence
(1)

When an infringement of a fundamental right constitutes a delict per se, this is known as:
(1)

TOTAL MARKS: [10]

Question 1
(1)
Question 2
Nomsa’s two year old daughter falls down a flight of stairs. Nomsa believes that the
child has sustained a brain injury and rushes her to the hospital. On the way to the
hospital Nomsa drives over the neighbour’s dog which subsequently dies. The
neighbour institutes a delictual claim against Nomsa. It later transpires that Nomsa’s
daughter merely suffered from mild shock. Which one of the following defences may
Nomsa rely on?
1. Provocation.
2. Private defence.
3. Necessity.
(1)
Question 3
Themba punches David in the face in an attempt to stop David from hitting him with
a spade. David decides to institute a delictual action against Themba for the injury
sustained to his face. Which defence could Themba rely on?
1. Provocation.
2. Private defence.
3. Necessity.
(1)

1. desires a particular indirect result with regard to his conduct and continues with
his plan causing the indirect result.
reconciles himself with that possibility, nevertheless performing the act.
4. Does not desire a particular result but foresees the possibility of the result,
(1)
Question 5
2. There is an irrebuttable presumption that a child between the age of seven and
capax.
(1)
Question 6
(1)
Question 7

2. One and the same act may render
Stuvia.com thestudy-notes
- The wrongdoer delictually as well as contractually
marketplace
liable.
(1)
Question 8
John’s donkey attacks some of the employees on the farm. Just as the donkey was about
to injure Charles (an employee), he shot and killed it with his rifle. John institutes an action
for damages against Charles. Charles may raise the following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 9
Jacob insults Karen, Julie’s friend. Julie, who is angered by the insults, then insults Jacob.
If Jacob institutes a delictual action for the infringement of his personality rights, Julie may
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 10
Allan, an employee of Raymond, was en route to Rustenburg delivering bread when he
sues Raymond (as the employer) for the damage to his car, Raymond will incur:
4. Risk liability.

Question 1
Indicate the correct statement.
1. Irrational human behaviour cannot constitute conduct for the purposes of the law
of delict.

automatism.
(1)
Question 2
Jacob is training to be a tattoo artist. He asks Karen whether he can practice his newly
acquired skills on her. Karen enquires whether she will be able to remove the tattoo by
washing, and Jacob replies in the affirmative. Thereupon Karen is willing to comply,
and Jacob makes a butterfly tattoo on Karen’s arm. When Karen discovers that the
tattoo is permanent, she wants to institute a delictual action against Jacob. Jacob may
1. Necessity.
2. Official authority.
3. Consent.
(1)

(1)
Question 4
Piet left his cell phone in his car. Gert wants to steal Piet’s cell phone. He realises that
he would have to damage Piet’s car in order to get the phone. In respect of the
damage to the car, Gert has:
4. Luxuria.
(1)
Question 5
aggressive and charges at David’s employees. The employees clamber into a small
tree to escape the wrath of the bull. The bull begins to bash the trunk of the tree. As
the tree appears to be about to topple, David shoots and kills the bull to save his
employees. John institutes an action for damages against David. David may raise the
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 6
When so-called open-ended delictual norms are given content in light of the basic
values of chapter 2 of the Constitution, this is known as:

(1)

Question 7
Andrew inadvertently damages Ben’s violin. Which delictual action may be available to
Ben?
3. actio de pastu.
(1)
Question 8
Mark inadvertently pushes over a ladder on which Chris is standing. Chris breaks an
arm. Which remedy or remedies may be available to Chris?
(1)
Question 9
4. S v Goliath 1972 3 SA 1 (A).
(1)

Question 10

(1)

Question 1
rely?
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 2

(1)
Question 3
4. Luxuria.
(1)



(1)
Question 5

(1)

Question 6
(1)
Question 7
4. none of the above. Stuvia.com - The study-notes marketplace
(1)
Question 8
2. provocation.
(1)
Question 9
will incur:
(1)
Question 10
4. S v Goliath 1972 3 SA 1 (A).
(1)

TOTAL MARKS: [10]

Question 1
liable.

(1)
Question 2
1. Necessity.
3. Private defence.
4. Provocation.
(1)
Question 3
1. Provocation.
3. Private defence.

Question 4
have to damage Zayn’s car in order to get the laptop. In respect of the damage to the car,
Neil has:
4. Luxuria.
(1)
Question 5
Andre is employed by Ricky as a driver in Ricky’s courier business. Andre has the weekend
off, and decides to visit Tebogo on Saturday evening. On his way to Tebogo’s apartment,
Andre is involved in an accident due to his own negligence. Andre’s vehicle and the vehicle
of Sylvia, the other motorist involved in the accident, are badly damaged. Sylvia discovers
that Andre’s financial position is not good. Advise Sylvia on the best course of action:

(1)
Question 6
would not happen.
(1)
Question 7
3. Luxuria.
4. Gross negligence
(1)
Question 8
4. S v Goliath 1972 3 SA 1 (A).

(1)
Question 9
capax.
(1)
Question 10

Question 1
the most correct?
iniuriarum.

(1)
Question 2
this, Musti suffers a serious financial setback. However, there is no damage to Musti’s person or
property. Which one of the following delictual remedies may be available if Musti wishes to
(1)

Question 3
delict.
4. The presence of a so-called actio libera in causa confirms the presence of automatism.
(1)

Question 4
Harry’s prize bull breaks through a fence and ventures onto Mark’s farm. The bull is aggressive
and charges at Mark’s employees. The employees clamber into a small tree to escape the wrath
of the bull. The bull begins to bash the trunk of the tree. As the tree appears to be about to
topple, Mark shoots and kills the bull to save his employees. Harry institutes an action for
damages against Mark. Mark may raise the following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 5
(1)

Question 6
Mike’s cow eats and tramples George’s crops. Mike forgot t o close the gate between his and
George’s land. Which remedy or remedies may be available to George?

(1)
Question 7
they will incur:
(1)
Question 8
4. S v Goliath 1972 3 SA 1 (A).

(1)

Question 1
(1)
Question 2
delict.
(1)
Question 3
hand that is holding the baseball bat and forces a hard blow to C’s head. In respect of the
injury to C, what defence can B raise?
1. Necessity.
2. Provocation.
3. Private defence.
4. Sane automatism.
(1)
Question 4
3. The interdict.
(1)

Question 5
(1)
Question 6
badly damaged. C discovers that S’s financial position is not good. Advise C on the best course
of action:
(1)
Question 7
car, G has:
4. Luxuria.
(1)
Question 8
1. Necessity.
2. Private defence.
3. Provocation.
(1)

Question 9
(1)
Question 10
(1)

Question 1
(1)
In a sense, a delict and breach of a contract are similar in that they constitute wrongful conduct
in private law. With a delict and breach of a contract, an act of a person in a wrongful and
culpable way causes harm to another. They are both species of the genus “wrongful conduct” in
private law. However, there are fundamental differences between a delict and breach of a
contract. Generally, a breach of contract occurs when one of the parties to the contract fails to
fulfil a contractual obligation. A delict occurs where there is an infringement of a party’s legally
recognised interest. Delictual remedies are primarily aimed at satisfaction or compensation,
while contractual remedies are primarily aimed at fulfilment of contractual obligations. Breach of
contract is dealt with under the law of contract with its own requirements and remedies that are
not applicable to a delict. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of
Delict Chapter 1 para 2; Study unit 2. Alternatives [2]-[4] are correct with regard to the law of
delict. In this question you were supposed to identify the incorrect statement, therefore
the correct alternative is [1].
Question 2
Fatima’s two year old daughter falls down a flight of stairs. Fatima believes that the child has
sustained a brain injury and rushes her to the hospital. On the way to the hospital Fatima drives
over the neighbour’s dog which subsequently dies. The neighbour institutes a delictual claim
against Fatima. It later transpires that Fatima’s daughter merely suffered from mild shock.
Which one of the following defences may Fatima rely on?
1. Provocation
2. Private defence
3. Necessity

Whether a state of necessity actually existed, must be determined objectively and not whether it
was subjectively present in Fatima’s mind. Therefore, Fatima’s conduct is wrongful as a state of
necessity from an objective viewpoint did not actually exist. Furthermore, the grounds of
justification “private defence” or “provocation” is not applicable in this instance. See Neethling,
Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3 para 7.3.2 and footnote
455; Study unit 10. The correct alternative is [4].
Question 3
Harry punches David in the face in an attempt to stop David from hitting him with a spade.
David decides to institute a delictual action against Harry for the injury sustained to his face.
Which defence could Harry rely on?
1. Provocation.
2. Private defence.
3. Necessity.
(1)
The requirements for the attack and the defensive conduct are present. Therefore Harry may
rely on “private defence” in order to avoid delictual liability. In this scenario, the defences of
“necessity” or “provocation” are not applicable. See Neethling, Potgieter and Visser Neethling-
Potgieter-Visser Law of Delict Chapter 3 para 7.2; Study unit 9. The correct alternative is [2].
Question 4
1. desires a particular indirect result with regard to his conduct and continues with his
plan causing the indirect result.
reconciles himself with that possibility nevertheless performing the act.
(1)
Dolus eventualis is a form of intent where a particular consequence is not desired. The
wrongdoer foresees the possibility of the result and reconciles himself with that possibility
nevertheless performing the act. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser
Law of Delict Chapter 4 para 3.1; Study unit 15. The correct alternative is [2].

Question 5

2. There is an irrebuttable presumption that a child between the age of nine and under
fourteen years lacks accountability.
capax.
(1)
Accountability is a pre-requisite for fault. Therefore, if a person lacks accountability at the time
of the delict, then there is no fault on his part. Youth, intoxication, provocation, a mental illness
or mental impairment may depending on the circumstances lead to the lack of accountability.
See para 2 below (Recent developments) with regard to accountability as well Neethling,
Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 4 para 2; Study unit 15.
In this question you were supposed to identify the correct statement, therefore the
Question 6
(1)
In terms of the requirements for the actio de pastu, the animal that causes damage need not be
a domestic animal. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict
Chapter 11 para 2.1.1.2; Study unit 30. The correct alternative is [2].
Question 7
(1)

One and the same act may render the wrongdoer, delictually, contractually or criminally liable. It
depends on whether the requirements are present for a delict, breach of a contract or particular
crime. In respect of a crime, the aim is to punish the offender for “his transgression against the
public interest”. Damages may be awarded when a crime has been committed but
compensation is not considered a secondary remedy in respect of a crime. See Neethling,
Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 1 paras 2-3 as well as the
commentary to question 1 above. In this question, you were supposed to identify the
correct statement. The correct alternative is [2].
Question 8
Veronica’s donkey attacks some of the employees on the farm. Just as the donkey was
about to injure Charles (an employee), he shot and killed it with his rifle. Veronica institutes
an action for damages against Charles. Charles may raise the following ground of
justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
In respect of the requirements for the attack with regard to “private defence”, the attack must
consist of a human act. An animal cannot act for the purposes of delict. Therefore, in this
scenario Charles cannot rely on “private defence” but can rely on “necessity”. “Provocation” as a
defence is not applicable in this scenario. See Neethling, Potgieter and Visser Neethling-
Potgieter-Visser Law of Delict Chapter 3 paras 7.2.2(a), 7.3.2; Study units 9 and 10. The
Question 9
Jacob insults Lefa, Julie’s friend. Julie, who is angered by the insults, then insults Jacob. If
Jacob institutes a delictual action for the infringement of his personality rights, Julie may
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Julie may rely on the ground of justification, “provocation”. The requirements for provocation in
this instance are present. In particular, the interests violated in retortio are commensurate with
the initial violation. An insult in reaction to an insult. The insult in retortio is not out of proportion
in comparison to the provocative conduct (insult) on the part of Jacob. See Neethling, Potgieter
and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3 paras 7.4.1, 7.4.3, footnote 521;
Study unit 11. The correct alternative is [3].

Question 10
Allan, an employee of Calvin, was en route to Rustenburg delivering bread when he

sues Calvin (as the employer) for the damage to his car, Calvin will incur:
4. Risk liability.
(1)
The employer, Calvin is held vicariously liable for the damage caused by the employee, Allan.
There was an employer-employee relationship when the delict was committed, and the
employee, Allan was acting in the course and scope of employment. See Neethling, Potgieter
and Visser Neethling-Potgieter-Visser Law of Delict Chapter 11 para 2.1.7; Study unit 30. The
TOTAL MARKS: [10]

Question 1
1. Provocation.
2. Self-defence.
3. Necessity.
4. Hypnosis.
(1)
The correct alternative is [4]. Hypnosis is one of the recognised conditions that may cause a
person to act involuntarily. Where a person acts involuntarily, the defence of automatism may
apply. Automatism cancels the element of conduct. See Neethling, Potgieter and Visser
Neethling-Potgieter-Visser Law of Delict Chapter 2 para 3; Study Guide, study unit 3. The
other alternatives are defences which cancel the element of wrongfulness.
Question 2

Rights.
of the boni mores.
(1)
Question 3
Janice threatens Queeneth with a gun and orders her to hand over her cellphone. Queeneth, in
fear of her life, hands over the cellphone. One week later, Queeneth spots Janice at a nearby
shopping centre. Queeneth rushes home and grabs a knife. She returns to the shopping centre
and stabs Janice. Janice wants to institute a delictual action against Queeneth. Queeneth may
1. necessity.
2. provocation.
3. private defence.
(1)

The correct alternative is [4]. Necessity and provocation are not applicable defences in this
scenario. With regard to private defence, it is not possible to act in defence once the attack has
ceased. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3
para 7.2.2 (c); Study Guide, study unit 9.
Question 4
Sibusiso is away on holiday. Frank, his neighbour, is keeping a watchful eye on his house for
him. Frank notices that the house is flooded with water and realises that a water pipe in the
house has burst. Frank breaks down the front door of Sibusiso’s house in order to turn off the
water to prevent further damage. If Sibusiso wants to institute a delictual action against Frank
for breaking down his front door, Frank may rely on the following ground of justification:
2. necessity.
3. provocation.
4. private defence.
(1)
The correct alternative is [2]. In this scenario, the defences of statutory authority, provocation
and private defence are not applicable. Frank acted out of necessity in protecting the interests
of his neighbour Sibusiso. All the requirements for necessity are present. See Neethling,
Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3 para 7.3.2; Study
Question 5
Joseph plays tennis in his back yard. He foresees the possibility of his ball breaking a window in
his neighbour’s house, but decides that it will not happen. If the ball indeed breaks the window,
Joseph had the following in respect of the damage:
4. luxuria.
(1)
The correct alternative is [4]. Joseph foresees the possibility of his ball breaking the window,
he is aware that his ball may break the window but comes to the conclusion that it will not
happen. Therefore, dolus eventualis will not be present but luxuria. Dolus indeterminatus and
dolus indirectus is not present. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser
Law of Delict Chapter 4 para 3.1; Study Guide, study unit 15. All students obtained marks for
this question as a result of confusion over this same question last semester.

Question 6
Dr Lucas, a well-known obstetrician, delivered Nicole’s daughter, Mandy. During delivery,

the nerves in Mandy’s right shoulder were injured resulting in the paralysis of her arm. All
of this happened because Dr Lucas failed to inform Nicole of the potential complications
inherent in delivering a large baby. Indicate the most correct statement: Negligence will be
determined according to the standard of:
(1)
Question 7

3. Emotional shock.
(1)
The correct alternative is [3]. Psychological lesions/injuries may be sustained in a

number of ways, such as through shock, fright, or other mental suffering. In most cases
our courts have been faced with psychological lesions/injuries caused by emotional shock.
See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 9
para 3; Study Guide, study unit 27.
Question 8
(1)

Question 9
In which one of the following situations can it be said that publication of defamatory words
has taken place?
1. Two German tourists visit South Africa. They start arguing in German in front of some
and an adulterer.
secretary.
3. Mrs Brown tells her husband, Mr Brown, that Theresa, a work colleague of Mrs Brown,
has stolen money from the cash register on numerous occasions.
4. Bob meets Joseph at the local post office and tells Joseph that the manager of the
post office, Mrs Posh, is involved in an adulterous affair with Joseph’s neighbour Henry.
(1)
Question 10
John and Peter bear a grudge against Greg and agree to teach him a lesson he will not
(1)
The correct alternative is [2]. Both John and Peter act together in causing damage to Greg’s

Question 1
1. Provocation.
2. Self-defence.
3. Black-out.
4. Necessity.
(1)
Question 2
of the boni mores.
Rights.
(1)

Question 3

(1)
Question 4
2. necessity.
3. provocation.
4. private defence.
(1)

Question 5

2. Dick had fault.
(1)
Question 6

3. the interdict.
(1)

Question 7

(1)
Question 8
(1)
Question 9
(1)
The correct alternative is [2]. Both Eddie and Robie act together in causing damage to Greg’s motor car.
They are therefore deemed joint wrongdoers and are held jointly and severally liable for the damage to
Greg’s car. See Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 8 para 1;
Question 10
taken place?
adulterer.
secretary.
(1)
The correct alternative is [3]. A defamatory statement must be disclosed to a third person. In alternatives
2 and 4, publication of defamatory words has not taken place because an exception applies in respect of
spouses. Publication of defamatory words has also not taken place in alternative 1 as disclosure of
defamatory words were heard by outsiders who are not aware of the meaning of the defamatory words. See
Neethling, Potgieter and Visser Neethling-Potgieter- Visser Law of Delict Chapter 10 para 3.2.2.1; Study

Question 1
Question 2
Fatima’s two year old daughter falls down a flight of stairs. Fatima believes that
the child has sustained a brain injury and rushes her to the hospital. On the way
to the hospital Fatima drives over the neighbour’s dog which subsequently dies.
The neighbour institutes a delictual claim against Fatima. It later transpires that
Fatima’s daughter merely suffered from mild shock. Which one of the following
defences may Fatima rely on?
1. Provocation
2. Private defence
3. Necessity
Question 3
Harry punches David in the face in an attempt to stop David from hitting him
with a spade. David decides to institute a delictual action against Harry for the
injury sustained to his face. Which defence could Harry rely on?
1. Provocation.
2. Private defence.
3. Necessity.
Question 4
Choose the correct alternative. Dolus eventualis is present when the
wrongdoer…
1. desires a particular indirect result with regard to his conduct and continues
with his plan causing the indirect result.
2. does not desire a particular result but foresees the possibility of the result
and reconciles himself with that possibility nevertheless performing the act.

3. directly intends the result of his conduct but simultaneously is aware that
another consequence will unfortunately occur.
reconciles himself with that possibility and later comes to the conclusion that
the result would not happen.
Question 5
2. There is an irrebuttable presumption that a child between the age of nine and
4. A person who drinks and drives thereafter causing an accident can never be
culpae capax.
Question 6
1. The defendant must be the owner of the animal at the time the damage
occurs.
Question 7
Indicate the correct statement with regard to the concurrence of delictual,
criminal and contractual liability.
Question 8
Veronica’s donkey attacks some of the employees on the farm. Just as the
donkey was about to injure Charles (an employee), he shot and killed it with his
rifle. Veronica institutes an action for damages against Charles. Charles may
1. Necessity.

2. Private defence.
3. Provocation.
Question 9
Jacob insults Lefa, Julie’s friend. Julie, who is angered by the insults, then
insults Jacob. If Jacob institutes a delictual action for the infringement of his
personality rights, Julie may rely on the following ground of justification:
1. Necessity.
2. Private defence.
3. Provocation.
Question 10
Allan, an employee of Calvin, was en route to Rustenburg delivering bread
when he accidentally skipped a red robot and crashed into Mandla’s car. If
Mandla successfully sues Calvin (as the employer) for the damage to his car,
Calvin will incur:
4. Risk liability.
Question 1
Roy incites his pedigreed, but vicious, dog to attack Jack. Jack panics and
shoots the dog. If Roy institutes a delictual claim against Jack to recover the
cost of the dog, which defence may Jack rely on?
1. Provocation.
2. Private defence.
3. Necessity.
Question 2
Titus places a home-made bomb in a field where cattle are grazing. The bomb
explodes damaging crops and injuring the cattle. Which one of the following
forms of fault did Titus have in respect of the damage?

3. Luxuria.
4. Gross negligence.
Question 3
Which one of the following benefits is taken into account in reducing the amount
of damages awarded to a plaintiff?
1. Benefits received in terms of life assurance.
Question 4
Question 5
1. The actio iniuriarum is directed at “satisfaction” for the wrongful and
intentional injury to personality.
3. South African law follows the casuistic approach with regard to delictual
liability.
4. “Invasion of privacy” in practice is considered as a form of damnum iniuria
datum.
Question 6
Indicate the incorrect statement with regard to the law of delict and the
constitution.

3. Both a constitutional remedy and a delictual remedy are aimed primarily at

compensation.
4. Direct application means that the state must generally respect fundamental
rights and not infringe them.
Question 7
Rocky insults Tammy who in retaliation slaps Rocky across the cheek. If Rocky
institutes a delictual action for the infringement of his personality rights, Tammy
1. Necessity.
2. Private defence.
3. Provocation.
Question 8
Brendon purchases a ticket to a boat ride. The ticket clearly states that the
management of the amusement park will not be held liable for any negligence
on its part. As the ride comes to a stop, the boat jerks due to a mechanical fault
and Brendon bumps his head against the seat rendering him unconscious.
When Brendon awakens, he decides to institute an action for damages against
the management of the amusement park. In order to exclude or limit liability,
the management may rely on:
Question 9
Kabelo plays tennis in his back yard. He foresees the possibility of his ball
If the ball indeed breaks the window, Kabelo had the following in respect of the
damage:
4. luxuria.

Question 10
Willy’s bull tramples and eats Charlotte’s maize that she planted in her fields.
Which remedy may be available to Charlotte?
2. Actio de pastu.
3. Actio de effusis vel deiectis.
4. Actio de feris.
Question 1
1. Provocation.
2. Self-defence.
3. Necessity.
4. Hypnosis.
Question 2
Choose the correct statement. In Carmichele v Minister of Safety and Security
(Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) the
Constitutional Court:
2. noted that the law of delict admirably reflected the spirit, purport and object
of the Bill of Rights.
3. declared that the courts of lower instance had erred by applying a pre-
constitutional concept of the boni mores.
Question 3
Janice threatens Queeneth with a gun and orders her to hand over her
cellphone. Queeneth, in fear of her life, hands over the cellphone. One week
later, Queeneth spots Janice at a nearby shopping centre. Queeneth rushes
home and grabs a knife. She returns to the shopping centre and stabs Janice.
Janice wants to institute a delictual action against Queeneth. Queeneth may
1. necessity.
2. provocation.
3. private defence.


Question 4
Sibusiso is away on holiday. Frank, his neighbour, is keeping a watchful eye on
his house for him. Frank notices that the house is flooded with water and
realises that a water pipe in the house has burst. Frank breaks down the front
door of Sibusiso’s house in order to turn off the water to prevent further damage.
If Sibusiso wants to institute a delictual action against Frank for breaking down
his front door, Frank may rely on the following ground of justification:
2. necessity.
3. provocation.
4. private defence.
Question 5
Joseph plays tennis in his back yard. He foresees the possibility of his ball
If the ball indeed breaks the window, Joseph had the following in respect of the
damage:
4. luxuria.
Question 6
Dr Lucas, a well-known obstetrician, delivered Nicole’s daughter, Mandy.
During delivery, the nerves in Mandy’s right shoulder were injured resulting in
the paralysis of her arm. All of this happened because Dr Lucas failed to inform
Nicole of the potential complications inherent in delivering a large baby. Indicate
the most correct statement: Negligence will be determined according to the
standard of:
4. the reasonable child
Question 7

3. Emotional shock.
Question 8
Question 9
In which one of the following situations can it be said that publication of
defamatory words has taken place?
1. Two German tourists visit South Africa. They start arguing in German in front
of some South Africans (who do not understand German) and the one tourist
calls the other a liar and an adulterer.
2. Mr Xolani tells his wife, Mrs Xolani, that Vanessa at his office is having an
affair with her secretary.
3. Mrs Brown tells her husband, Mr Brown, that Theresa, a work colleague of
Mrs Brown, has stolen money from the cash register on numerous occasions.
4. Bob meets Joseph at the local post office and tells Joseph that the manager
of the post office, Mrs Posh, is involved in an adulterous affair with Joseph’s
neighbour Henry.
Question 10

Question 1
John takes David’s big and rather aggressive dog for a walk. John incites the
dog to attack Garth. The dog charges at Garth, but Garth shoots the dog and
kills it. If David institutes a delictual action against Garth, on what ground of
justification may Garth rely?
1. Necessity.
2. Private defence.
3. Provocation.
Question 2
Markus, a financial adviser, negligently advises Hans to make a bad
investment. As a result of this, Hans suffers a serious financial setback.
However, there is no damage to Hans’s person or property. Which one of the
following delictual remedies may be available if Hans wishes to recover his
financial loss from Markus?
Question 3
television set, he smashes a window made from expensive security glass. In
respect of the damage to the window, Shaun has:
4. Luxuria.
Question 4
Clive is employed by Raymond as a driver in Raymond’s courier business. Clive
has the weekend off, and decides to visit Mary on Saturday evening. On his
way to Mary’s apartment, Clive is involved in an accident due to his own
negligence. Clive’s vehicle and the vehicle of Catherine, the other motorist
involved in the accident, are badly damaged. Catherine discovers that Clive’s
financial position is not good. Advise Catherine on the best course of action:


Question 5
Question 6
Mike’s cow eats and tramples George’s crops. Mike forgot to close the gate
between his and George’s land. Which remedy or remedies may be available
to George?
Question 7
Norman enters into a sexual relationship with Lex’s wife. Which remedy or
remedies may be available to Lex?
Question 8
Jors allows Maans to fire some practice shots with his new pistol at an apple
on Jors’s head. The second shot makes a hole in Jors’s left ear. Jors institutes
a delictual action against Maans. Maans may rely on following defence:
2. provocation.


Question 9
John and Peter bear a grudge against Greg and agree to teach him a
lesson he will not forget. While Greg is in a shopping centre, John and
Peter damage Greg’s motor car by hitting it with hammers. If Greg
successfully sues John and Peter in delict, they will incur:
Question 10
According to the following case liability of the media for defamation is
based on negligence:

Question 1

1. Provocation.
2. Self-defence.
3. Black-out.
4. Necessity.
(1)
Question 2
of the boni mores.
Rights.
(1)

Question 3

(1)
Question 4
2. necessity.
3. provocation.
4. private defence.
(1)

Question 5

2. Dick had fault.
(1)
Question 6

3. the interdict.
(1)

Question 7
(1)
Question 8
(1)

Question 9
(1)
The correct alternative is [2]. Both Eddie and Robie act together in causing damage to
Greg’s motor car. They are therefore deemed joint wrongdoers and are held jointly and
severally liable for the damage to Greg’s car. See Neethling, Potgieter and Visser
Neethling-Potgieter-Visser Law of Delict Chapter 8 para 1; Study Guide, study unit 26.
Question 10
taken place?
adulterer.
secretary.
(1)
The correct alternative is [3]. A defamatory statement must be disclosed to a third

person. In alternatives 2 and 4, publication of defamatory words has not taken place
because an exception applies in respect of spouses. Publication of defamatory words has
also not taken place in alternative 1 as disclosure of defamatory words were heard by
outsiders who are not aware of the meaning of the defamatory words. See Neethling,
Potgieter and Visser Neethling-Potgieter- Visser Law of Delict Chapter 10 para 3.2.2.1;

Question 1
(1)
Question 2
delict.
(1)
Question 3
hand that is holding the baseball bat and forces a hard blow to C’s head. In respect of
the injury to C, what defence can B raise?
1. Necessity.
2. Provocation.
3. Private defence.
4. Sane automatism.
(1)

Question 4
3. The interdict.
(1)
Question 5
(1)
Question 6
badly damaged. C discovers that S’s financial position is not good. Advise C on the best
course of action:
(1)

Stuvia.com - The study-notes marketplace PVL3703/201
Question 7
car, G has:
4. Luxuria.
(1)
Question 8
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 9
(1)
Question 10
(1)

COMMENTARY
Question 1
the most correct?
iniuriarum.

(1)

Question 2
this, Musti suffers a serious financial setback. However, there is no damage to Musti’s person
or property. Which one of the following delictual remedies may be available if Musti wishes to
(1)
Question 3
delict.

automatism.
(1)
Question 4
Harry’s prize bull breaks through a fence and ventures onto Mark’s farm. The bull is
aggressive and charges at Mark’s employees. The employees clamber into a small tree to
escape the wrath of the bull. The bull begins to bash the trunk of the tree. As the tree
appears to be about to topple, Mark shoots and kills the bull to save his employees. Harry
institutes an action for damages against Mark. Mark may raise the following ground of
justification:
1. Necessity.
2. Private defence.
3. Provocation.
(1)
7

Question 5
(1)
Question 6
Mike’s cow eats and tramples George’s crops. Mike forgot t o close the gate between his

(1)
Question 7
2. Actio de pastu.
3. Actio de feris.
(1)

Question 8
2. provocation.

(1)
Question 9
they will incur:
(1)
Question 10
4. S v Goliath 1972 3 SA 1 (A).

(1)

ANSWERS
Question 1
rely?
1. Necessity.
2. Private defence.
3. Provocation.
(1)
Question 2

(1)

Question 3
4. Luxuria.
(1)
Question 4

(1)
Question 5

(1)

Question 6
(1)
Question 7
(1)
Question 8
2. provocation.
(1)

Question 9
will incur:
(1)
Question 10
4. S v Goliath 1972 3 SA 1 (A).
(1)

SUMMARISED NOTES

LAW OF DELICT – NOTES
Private law: regulates relationships between individuals in a

community.
Role of delict: indicate which interests are recognized by law, under

what circumstances they are protected against infringement and how
a disturbance in the balance is restored.
Definition of delict: a delict is an act of a person, which in a

wrongful and culpable way causes harm to another.
5 requirements:
1. Act
2. Wrongfulness
3. Fault
4. Causation (factual and legal)
5. Damage (damnum iniuria datum)
All must be present before conduct can become a delict.
Difference between delict and a crime:
Delict:
1. Protects private interests (private law)
2. The aggrieved party institutes the action
3. Objective: claim damages as compensation
4. Can’t have attempted delict
Crime:
1. Protects public interest (public law)
2. The state prosecutes
3. Objective: punish the criminal
4. Can have attempted crime
Both are wrongful culpable acts causing damage
Delict and breach of contract:
Delict:
1. Excludes non-fulfillment of a duty to perform (real right)
2. Primary remedy = damages
Breach of contract:
1. Breach = non-fulfillment of a contractual obligation to perform
(personal right)
2. Primary remedy: performance of the contract

Delict, the Constitution and fundamental rights:
The Constitution is supreme and conduct inconsistent with it is

invalid.
Fundamental rights can be limited by the law of general application,
but only to the extent that the limitation is reasonable and justifiable
in an open and democratic society based on human dignity equality
and freedom (Section 36).
Courts must promote the values that underlie this society.
International law must be taken into account.
Direct application: the fundamental rights relevant to or connected

with the law of delict include = right to property, life, freedom, privacy,
dignity, equality, freedom of expression, freedom of religion belief and
opinion, the right to assembly, demonstration, picket, petition,
freedom of association, freedom of trade, occupation and profession.
The state must protect fundamental rights and not infringe them
except unless the requirements for Section 36 have been complied
with.
In case of an infringement that is not justified, anyone who is entitled
to relief can approach a competent court.
Indirect application: all private law rules, principles and those

regulating the law of delict are subject to chapter 2 and applies in
particular to the so-called “open-ended or flexible” delictual principles.
For example, the boni mores test for wrongfulness where policy
considerations and factors such as reasonableness, fairness and
justice may play an important part.

THE ACT (CONDUCT)
Consists of a voluntary human commission or omission:
Elements:
1. Human act: where an animal is used as an instrument a human

act is still present. A juristic person can act through its agents
(company) and be held delictually liable for its actions.
Gijzen: held – delictual liability can occur without there being an

act on the part of the defendant, in the case of land subsistence
cases. Such an act must be wrongful: an act and its consequences
may be separated from each other in time and space, but there
always has to be an act.
2. Voluntary conduct: the act must have been performed voluntarily –

the wrongdoer must have had control over his muscular
movements (i.e. If it is susceptible to control b the will of the
person involved).
One’s voluntary conduct does not have to be willed or desired, as

can be seen in the case of S v Russell: X forgot to warn others that
an electric current had been switched on. Someone was
electrocuted. Russell stated that he wasn’t guilty because he hadn’t
willed or desired the outcome.
Court held: that the test was whether he was able to utter a
warning = GUILTY.
3. Commission and Ommission: conduct can be in the form of a

commission or omission. Liability for an omission is in general
more restricted than liability for a positive act (commission). The
law is hesitant to find that there was a legal duty on someone to
act positively and so to prevent damage to another.
The Defence of Automatism:
The voluntary conduct on the part of the defendant is a requirement

for delictual liability.
The defendant could argue that the conduct complained of doesn’t
satisfy the requirement of voluntariness.
This is where someone acted mechanically = sleep, unconscious,

fainting fit, absolute compulsion (X grabs Y’s hand and stabs P using
Y’s hand), epileptic fit, serious intoxication, black out.
If these are present a person is incapable of controlling his bodily
movement = purely mechanical action and that person raises the
defence of automatism

Molefe: the defendant doesn’t bear the onus to prove that he was in a
state of automatism, its for the plaintiff to prove that the defendant
acted voluntarily.
Dhlamini: X was sleeping on the floor in a room with others when he

had a nightmare; he then stabbed and killed Y with a knife while
under the influence of his dream. He was not convicted of any
crime.
Mkize: X stabbed and killed Y with a knife while X was having an

Du Plessis: X was charged with negligent driving as he injured a

pedestrian. He was 72 years old and experienced a black-out due
to low blood pressure. He was found not guilty.
In respect of sane automatism (where it’s not a consequence of mental

illness) the onus is on the plaintiff to prove that the defendant has
acted voluntarily and therefore not mechanically.
Automatism doesn’t mean that there’s no voluntary act whatsoever by

the defendant which caused the damage, but only that the conduct in
question wasn’t voluntary.
The defence of automatism will not succeed if the defendant

intentionally created the situation in which he acts involuntarily in
order to harm another (actio libera in causa).
The defendant may not successfully rely on the defence of automatism
where he was negligent with regard to his automatic conduct.
This is where the reasonable man would have foreseen the possibility
of causing harm while in a state of automatism.
E.g. drinking while knowing or reasonably foreseeing that you will
later drive a car – knowing you may suffer an epileptic fit but still
driving.
Victor: X was convicted of negligent driving despite the fact he caused

the accident. During an epileptic fit, Victor collided with a pedestrian
and another car as the evidence revealed. He’d been suffering from
epileptic fits for the last 13 years and had insufficient reason to
believe he would not have a fit on that day.

WRONGFULNESS
For liability to follow an act, prejudice must be caused in a wrongful

or unreasonable manner. Without wrongfulness defendant cannot be
held liable.
Determination of wrongfulness is essentially a dual investigation,

looking at:
1. Was there an infringement of a legally protected interest – the
act must have a harmful consequence.
2. If the interest has been prejudiced, legal norms are used to
determine if it occurred in a legally reprehensible manner
(unreasonable manner) – boni mores test.
Act and consequence:
An act is only delictually wrongful when it has as its consequence the

factual infringement of an individual interest.
An act on its own without a harmful consequence can never be held
delictually wrongful – e.g. X races down main street at 160 km in peak
hour traffic, his act isn’t considered wrongful in delict as there has
been no infringement of an interest.
An act and its consequence are always separated by time and space.
Pinchin v Santam Insurance Co Ltd:
A pregnant woman was involved in a car accident caused by the

defendant’s negligence. When the child was born it was found to suffer
from serious brain damage.
Compensation was claimed from the defendant on the child’s behalf.

But at the time of the defendants act the child was in ventre matris
and as a result the child had no legal personality and therefore no
legally protected interest that could be infringed.
The judge – was of the opinion that the child did have an action but it
failed because there was no evidence that the accident caused the
brain injuries. The judge based his view on the nasciturus fiction – an
unborn child is regarded as having been born whenever it’s in the
child’s interests.

Joubert argues: it’s unnecessary to rely on the nasciturus fiction to

find that the child would have an action – because the act and its
consequences are separate both in time and space – the child need
not have legal capacity at the time of the act.
The defendant’s conduct resulted in a harmful consequence much
later.
In RAF V Mtati it was held that the nasciturus fiction does not always
offer a solution in all circumstances.
BONI MORES TEST: BASIC TEST FOR WRONGFULNESS
Boni mores test: The legal convictions of the community (boni mores
test) as the basic test for wrongfulness: The general norm to see if an
infringement of interests is unlawful, is the legal convictions of the
community = boni mores. This is an objective test. (Steenkamp NO)
Basic question: whether according to the legal convictions of the

community and in light of all the circumstances of the case the
defendant infringed the interests of the plaintiff in a reasonable or
unreasonable manner.
The application of the Boni Mores test = the ex post facto weighing up
of the interests of the defendant actually promoted by his act and
those which he infringed. (Tommi Meyer)
The court must weigh the conflicting interests of the defendant and
plaintiff in light of all the circumstances to decide whether the
infringement of the plaintiff’s interests was reasonable or not.
This is done by looking at factors: the foreseeable loss, the costs to
prevent loss, the motive of the defendant, extent of the harm etc.
Subjective factors
The objective nature of the Boni mores test appears from the fact that
subjective factors such as the defendant’s mental disposition,
knowledge, and motive normally don’t play a role in determining
wrongfulness.
To determine wrongfulness it’s the weighing up of interests to
determine whether the defendant acted reasonably or not and
subjective factors are normally irrelevant.
In exceptional circumstances subjective factors do play a role in

determining wrongfulness – a defendant who plants deciduous trees
on the boundary of his property for the sole purpose of injuring his
neighbour = wrongful.

Therefore, an improper motive for the sole purpose of injuring another

will also render reasonable conduct, unreasonable. The fact that the
defendant actually knew or subjectively foresaw that he plaintiff would
suffer damage as a result of his conduct is taken into consideration in
determining wrongfulness in cases of pure economic loss or
omissions.
Application of boni mores test:
Boni Mores test is the basic test for wrongfulness but still functions at
a supplementary level because the convictions of the community
concerning what is reasonable or unreasonable have over time found
expression in common law, statutory norms, grounds of justification
etc. so its seldom necessary to apply the Boni Mores test directly.
There are 2 ways the Boni Mores test is applied as a supplementary
test for wrongfulness:
1. When the wrongfulness of the defendants conduct doesn’t

appear from the violation of a pre-existing norm or the
lawfulness thereof doesn’t appear from the presence of a
recognized ground of justification.
E.g. champion swimmer sees a drowning child and does
nothing, or if a body builder would not be put in danger of
helping an old granny who’s being beaten up by a younger and
smaller person, or for example, the case of Ewels when an off
duty police officer failed to stop an assault.
2. When borderline cases need refinement. In other words, to

determine if the defendant transgressed the limits of private
defence by his conduct, or if consent to violation of legal
protection of interests should be tolerated etc. a good example
from case law is S v Goliath under compulsion from Y and
fearing for his own life helped Y to kill Z – X raised the defence
of necessity.
So look to more precise methods of determining wrongfulness:

a) Infringement of a subjective right
b) Non-compliance with a legal duty to act

DOCTRINE OF SUBJECTIVE RIGHTS:
Tommie Meyer Case: the courts accepted the doctrine of subjective

rights = wrongfulness consists of the infringement of a subjective
right.
Said there was a duel relationship:
• Subject-object relationship: provides the holder of the right with

the power to use, enjoy and alienate the object of his right. The
limits of his rights are determined by the law.
• Subject-subject relationship: the holder of the right can enforce

his powers over a legal object against all other legal subjects
Nature of subjective rights:

1. Real rights: ownership over things
2. Personality rights: good name
3. Personal rights: payment etc
4. Immaterial property rights: intellect/poem/artwork
5. Personal immaterial property rights: earning capacity
Look at whether the right has been infringed: was the holder of the
right was disturbed in the use and enjoyment of his right (if the
subject-object relationship has been disturbed and whether the
infringement complained of took place in a legally reprehensible
manner.
If established the conduct is wrongful.
WONGFULNESS AS A BREACH OF LEGAL DUTY:
First, one has to ask whether, according to the boni mores test, a legal
duty has been breached. In cases of omissions or the causing of pure
economic loss, instead of asking whether a subjective right has been
infringed, it’s better to ask whether the defendant has a legal duty to
prevent the harm.
In Van Eeden v Minister of Safety and Security the court stated that
the test is one of reasonableness and the defendant is under a legal
duty to act positively and if it’s reasonable to expect the defendant to
take positive steps to prevent harm.
Such a duty is often referred to as a duty not to act negligently as

seen in the case of Shabalala v Metrorail.

LIABILITY FOR AN OMMISSION:
General rule: a person doesn’t act wrongfully in terms of the law of

delict where he fails to act positively to prevent harm to another. This
means that there is no absolute duty to prevent loss.
Liability follows only if the omission was in fact wrongful – where a

legal duty rested on the defendant to act positively to prevent harm
from occurring and he failed to comply with that duty.
PRIOR CONDUCT:
A person acts prima facie wrongfully when he creates a new source of

danger by means of a commission and then fails to eliminate that
danger, with the result that harm is caused to another person.
Prior conduct isn’t a prerequisite for the existence of a legal duty – butat
one stage this was the only category where liability was imposed ona
failure to act.
The requirements for legal duty was first introduced in Halliwell case
which stated that prior conduct had to be present before one would be
liable for an omission.
MUNICIPLITY CASES:
Halliwell v JHB municipal council:

The council laid cobblestones adjacent to tramlines in road surface
(experiment) – these wore smooth. H was in his horse cart, they
slipped; injuries:
AD: where road authority constructs, in such a way as to introduce a
new source of danger which would other wise not have existed, it
must take due steps to guard against that danger.
I.E. with the creation of a new danger (prior conduct) legal duty arises
Failure to comply with the legal duty = OMMISSION.

Silva’s Fishing Corporation v Maweza (1957):

The defendant was the owner of a fishing fleet, the engine of one of his
boats failed and the boat drifted out to open sea for 9 days during
which the defendant failed to take steps to rescue it and it was
eventually lost in a storm.
The plaintiff’s husband drowned and she instituted action against the
defendant.
Majority: 3/5: prior conduct – present since the defendant created a

potentially dangerous situation by providing the boat and consenting
to the fishing run from which he would benefit financially.
Therefore a legal duty rests on the defendant to take steps to rescue
the crew.
Minority: STEYN JA – was critical of the Halliwell approach ….. That

liability for omissions was based on prior conduct ONLY.
Regal v African Superslate (1963):

The applicant applied for an interdict to compel the respondent, his
neighbor who lived further up the river, to take steps to prevent slate
being washed down by the river onto the applicants land.
The court decided that prior conduct WASN’T AN INDESPENSIBLE
REQUIREMENT FOR A LEGAL DUTY TO ACT.
It was suggested that you look to see if the loss could be prevented by
reasonable measures.
In this case the steps that would have been necessary to prevent the
washing down of the slate – building of a dam wall – not in relation
therefore there was no duty on the respondent to prevent the loss.
Problem: in this case it was thought that the rejection of prior conduct
was limited to interdicts.
Minister of forestry v Quathlamba (1973):

In this case the AD had to decide whether a landowner was liable for
damage resulting from his failure to control a fire, which, through no
action of his, broke out on his property.
The court 1st had to decide whether the defendant was under a duty to
control the fire – judge held that a mere omission did not found
liability – LIABILITY FOR AN OMMISSION WAS DEPENDENT ON THE
EXISTANCE OF A LEGAL DUTY TO ACT.
The law does in certain circumstances, where there has been no prior
conduct, impose a duty on the landowner to control a fire, which
breaks out on his land.
Confirmed the Regal decision – PRIOR CONDUCT IS NOT THE ONLY

CRITERION FOR ESATBLISHING A LEGAL DUTY.

Minister of police v Ewels (1975) NB

Here the respondent claimed damages from the appellant on the
ground that a policeman in the service of the appellant failed to take
steps to prevent the respondent from being assaulted and injured.
In this judgment, the generally accepted view that wrongfulness is

determined by the legal convictions of the community has now been
applied to omissions.
It’s a more flexible approach – legal duty arises when the legal
convictions of the community demand as much. Failure to comply
with this duty = wrongful omission.
Any doubt that prior conduct isn’t indispensable for the existence of a
legal duty to the municipality cases was removed in:
Van der Merwe Burger v the municipality of Warrenton (1987)

Held: prior conduct as a criterion for establishing a legal duty was
abandoned in Ewels.
So the court applied the legal convictions of the community test = the
municipality should have foreseen the damage and was liable.
Rabie v Kimberly municipality (1991):

A municipality, which had been aware that a traffic light was
malfunctioning but had failed to properly investigate and repair it,
was held liable for damages resulting from an accident at the
intersection.
Cape Town Municipality v Bakkerud

This case confirmed the judgment in EWELS and held that legal
convictions of the community can even, in absence of “prior conduct”,
place a legal duty on the municipality.

CONTROL OF A DANGEROUS OBJECT:
Control over a dangerous (or potentially dangerous) object (fire etc)

can be a factor in determining whether a legal duty rested on a person
to prevent someone being injured by a particular situation.
2 relevant questions:
1. Whether there was actual control – whether control was present
can be adduced from the fact the defendant had actually taken
control over a dangerous situation, from the fact the defendant
was owner of the dangerous object or from statutory provisions
placing control on the defendant.
2. In light of the control, whether a legal duty rested on the

defendant to take steps to prevent damage resulting from his
omission to exercise proper control – the fact that the defendant
had been in control of a dangerous (potentially dangerous)
object isn’t necessarily enough to establish a duty to take
precautionary measures but may be a factor.
Van Eeden – police had a legal duty to prevent a dangerous prisoner

from escaping and raping and robbing the plaintiff.
It’s been held that an occupier of property where dangerous conditions

exist has a legal duty to prevent injury to persons who visit the
premises (even trespassers) – Tsogo Sun Holdings v Qing-He Shan:
Prevented their clients from carrying weapons to prevent harm to
other clients.
A legal duty can also rest on the owner or controller of property to

control a fire on such property (Minister of Forestry v Quathlamba).
The same applies to someone in possession of a firearm or dangerous
animal (S v Fernandez).
If a legal duty exists, injury resulting from the omission to control the
dangerous situation is prima facie wrongful.
To avoid liability, it has to be clear either that the defendant’s
wrongful omission was lawful or he had taken reasonable steps to
prevent injury.

S v Fernandez: F had a baboon in a cage – the cage fell into disrepair

and the baboon escaped – it bit a child who later died from the bite.
The court said

1. that he had a duty to see that the baboon wasn’t outside the
cage
2. he took no steps to ensure the animal wouldn’t get out
3. he should have foreseen the likelihood of the baboon injuring
someone should it get out.
Ablort – Morgan v Whyte bank farms: said that if there was a legal
duty – focus on whether the defendant knew or ought reasonably to
have known about the danger and whether reasonable steps were
taken in the circumstances.
Look at: a) the probability of damage
b) Possible action by the defendant
c) Chances of success
d) Cost of measures
e) Interests of individuals and the community
RULES OF LAW:
Law (common or statute) places an obligation on a person to perform

certain acts. At common law, the owner of a lower land is obliged to
provide lateral support for neighbour’s property.
Statutory law:
1) Minister of police v Ewels: duty on police to prevent a crime.
2) Charmichele v Minister of Safety and Security: Applicant was

viciously assaulted by person awaiting trial but out on bail. Q:
Was there a legal duty on the investigating officers and
prosecutor to protect its citizens? Court a quo and Appeal court
said no. Constitutional court said – when determining whether a
legal duty to act rests on the police, the interests of the parties
and conflicting interests of the community must be weighed. It
said that relevant factors must be taken into account and that
such a case must be weighed against the constitution,
promoting human dignity, equality and freedom and in which
government has positive duties in which to promote and uphold
such values. In terms of Police Act, there is a legal duty placed
upon the police to protect its citizens, and the prosecutor has a
legal duty to furnish the court with relevant information
concerning the question on whether bail should be granted or
not.
Held: The court a quo was wrong in granting absolution from
the instance. The case was sent back to high court for the trial
to continue.

3) Kadir v Minister of Law and Order: The police failed to record

and the necessary information relating to the driver and the
identity of the vehicle at the scene of an accident. Court said
there was a legal duty on the police. On appeal – court
disagreed and said the duty on the police in this case, did not
have the same weight as Ewels. Therefore, policeman cannot be
held personally liable in terms of delictual law.
4) Minister of Safety and Security v Van Duivenboden: X possessed

two firearms, abused alcohol, was aggressive and mistreated his
family. In an argument, X killed his wife and injured his
daughter with his guns. The police knew of X’s behavior and
failed to take away X’s firearms. Y issued claim against the
police. They claimed there was a legal duty on the police to take
away firearms from incompetent people. A single judge rejected
the claim, but on a appeal to three judges who agreed that the
police did have a legal duty to prevent such damages by
screening applicants of firearm licenses.
RELATIONSHIP BETWEEN THE PARTIES:
This special relationship is an indication that one party has a legal

duty towards the other to prevent harm – parent-child. For example, a
policeman/citizen (Ewels); employer/employee (Silva’s Fishing);
Doctor/Patient (Stewart)
OFFICE:
Sometimes the person’s occupation or office he holds places a legal

duty on him to conduct himself in a particular manner in relation to
the public. In Macadamia Finance Ltd v De Wet, the defendants, we
were liquidators, inter alia failed to insure the assets of the first
company under their control, and the defendant’s breach of that duty
rendered them liable for the first plaintiff’s resultant loss.
CONTRACTUAL UNDERTAKING:
A enters into a contract with B in which he undertakes to ensure the

safety of C – lifeguard.

CREATE THE IMPRESSION THAT A 3RD PARTY WILL BE

PROTECTED:
One party acts in reasonable reliance on the impression created by

the other party that the latter will protect the person and property of
the former, a legal duty rests on the party creating the impression to
prevent prejudice to the part acting in reliance on that impression.
Compass Motors Industries (Pty) Ltd v Callguard:
In this case a security firm was in control of certain premises in

performance of a contract to minimize the chances of theft and
damage.
Question: whether the security firm could be held delictually liable by
a 3rd party for the loss of property on the premises.
Court decided with reference to the Boni Mores – the defendant had a
legal duty towards the plaintiff whose car was lawfully on the
premises, but the defendant escaped liability due to the absence of
negligence on his part.
THE GENERAL WRONGFUL CRITICISMS:
Instead of looking at the legal duty to act, where there is no strong

indication, rather look at reasonableness of the failure to act (for
example, the champion swimmer).
BREACH OF A STATUTORY DUTY:
The causing of damage by means of conduct in breach of a statutory

duty is prima facie wrongful.
If the breach infringed the plaintiffs interests in a legally reprehensible
manner = wrongful.
Patz v Greene and co:

A who traded in the vicinity of a mining compound applied for an
interdict against B, who ran a similar trade on claim land at the
entrance of the compound. A based his application on the fact that
trading on claim land was prohibited by statute.
On appeal it was decided, that the infringement of another’s good will,
is unlawful if it’s caused by conduct expressly prohibited by statute.
The plaintiff has to prove the following:

• That the plaintiff had a private law remedy at his disposal
• Statutory duty was for the benefit of the plaintiff
• Nature of the harm falls within the scope of statute
• The defendant transgressed statute
• There was a causal nexus between the defendant’s
transgression and the plaintiff’s harm.

WRONGFULNESS
GROUNDS OF JUSTIFICATION
Grounds of justification are special circumstances in which conduct

that appears to be wrongful is rendered lawful = the violation of the
interest isn’t unreasonable or contra boni mores.
Grounds of justification exclude wrongfulness.
The ONUS is on the defendant to prove that his otherwise wrongful

conduct is justified in the circumstances and therefore according to
the legal convictions of the community his conduct ISNT wrongful.
Grounds of justification include:

1. Defence
2. Necessity
3. Provocation
4. Consent
7. Power to discipline
PRIVATE DEFENCE
Definition: Private defence is present when the defendant directs his

actions against another’s actual (or imminently threatening) wrongful
act, to protect his own legally recognized interests or the interests of
another.
Both the attack and the defence must meet requirements for private
defence to apply:
Requirements for the attack:

1. The attack must consist of a human act: it must be a
commission/omission. One can use an animal as an
instrument.
2. The attack must be wrongful: it must threaten a legally

protected interest without justification – against interests which
are worthy of protection = life, bodily integrity, honour, property
etc. One cannot act in defence of a lawful attack – person
cannot rely on defence in resisting a policeman who is in the
process of arresting him lawfully.
One may not act in defence against someone who has the right
to violate ones interests. – 2 people are involved in a duel to
which they both agreed there is no question of defence because
they are both acting unlawfully.
Putative defence doesn’t constitute private defence.

3. The attack must have already commenced or be imminently

threatening – BUT not yet completed:
Magohlwane: Y threatened to kill X with an axe – he took his
food and clothes – X ran home and got a knife – Y threatened
again and X stabbed Y = PD because the attack hadn’t yet
terminated.
Not a requirement:
1) Fault on the part of the aggressor isn’t a requirement –
therefore one may act in defence even against someone who
is incapable of having a blameworthy state of mind for
example, someone who is mentally ill.
2) It’s also not a requirement that the attack be directed at the
defender – it can also be directed at a 3rd party – R attempts
to hit S and X intervenes and strikes R.
Requirements for the defence:
1. The defence must be directed against the aggressor.
2. The Defence must be necessary to protect the threatened right:

the act of defence must be the only reasonable alternative to
protect the threatened interest – if there was a less detrimental
reasonable option, the defender must have used it.
Flee then force.
The opinion is that the defender should rather flee, unless such
flight exposes him to danger (shot in the back)
3. The defence cannot be more harmful than necessary to avert the

attack: the defence must be reasonable – it must not be out of
proportion to the attack. The value of the interests and measure
of defence can differ – but an extreme imbalance is
unacceptable – X slaps Y so Y shoots and kills X
Van Wyk case
Putative defence: X cant rely on PD if he thought he was in

danger when he wasn’t – you determine X’s act objectively (but
he wont be liable for murder because he lacks fault) = we must
consider the facts of the individual cases objectively in the light
of the actual facts and NOT what X thought them to be.
If X exceeds the bounds of PD – his act makes him the
unlawful attacker.

PRIVATE DEFENCE WITH REGARD TO PROPERTY:
The question is whether someone can kill another person to protect

their property and rely on private defence?
Before: Killing someone to protect property can NEVER be justified
using private defence.
Now: In the case of S v Van Wyk, Van Wyk set up shot gun in his shop
to protect his prop against thieves, who had been a problem in past. A
shot from gun killed burglar & VW prosecuted for murder. In this
case, the court had to decide:
1. Whether you can rely on doctrine of defence when 1 has killed or
injured another in order to protect your prop?
2. Whether grounds of defence were exceeded in this case? – Look at
whether steps taken by him were only way of warding off the
attack.
Question: could he succeed with Private Defence?

Judges decided that setting up of gun was indeed only reasonable
possibility if he wanted to protect his prop. VW couldn’t be expected to
sleep in his shop every night and burglar proofing, night watchmen
and watchdogs had proved ineffective. Police couldn’t guard shop and
alarm system would have been useless. VW hadn’t set up gun in way
as to demonstrate any motive to kill. He also put notice warning of
danger on door of shop.
VW didn’t exceed bounds of justification – there must be no less

harmful method of keeping property and where possible one should
issue a warning shot.
This case isn’t general authority for killing in defence of property –
whether one is entitled to kill in defence of prop will depend on facts of
each case.

NECESSITY
Definition: a state of necessity exists when the defendant is placed in

a position by superior force (vis maior) that he is able to protect his
interests or those of someone else, only by reasonably violating the
interests of an innocent 3rd party.
E.g. A acts out of necessity when he knocks out the window of B’s
burning house in order to rescue C, who is trapped inside the house.
A wont be liable to B for the damage to the window because the
breaking of the window is lawful – necessity justifies A’s conduct.
Distinction between necessity and Private Defence:

Private Defence= the defence is directed at the attack by the
wrongdoer.
Necessity = conduct violates the interests of an innocent 3rd party.
Guidelines to determine necessity:
1. An actual state of necessity must exist: it is not however clear

whether the defendant can rely on necessity when he created
the state of necessity. There is authority which supports both
views. However, the view that a person may rely on necessity
even though he created the situation himself enjoys more
support. It is argued that the conduct creating the emergency
and the defensive act should be kept apart. If the conduct
creating the emergency constitutes a crime or causes damage,
the defendant should be held liable for it; nevertheless, such
conduct should not preclude him from acting out of necessity in
order to escape from the emergency.
For example, where a person starts a fire inside a house and
then has to break a door in order to escape. On the basis of this
argument, he should be held liable for the damage caused by
the fire, but not for the damage caused by his escape because
such damage was self induced.
According to this argument, every act committed out of
necessity is lawful, irrespective of whether it was caused by the
defendant or not, but damage caused thereby may still be
actionable because it is (factually and legally) causally
connected to a preceding wrongful act.
2. The possible existence of a state of necessity must be

determined objectively: the test is objective = you look at the
actual facts and not what the defendant thought them to be.
The fact that the defendant was in a state of terror was also not
relevant.
Putative (imagined) necessity isn’t necessity – S v Pretorius:
Appellant was found guilty of exceeding the speed limit – it
appeared that his 2 year old child had taken a number of pain

tablets and the appellant believed that the child’s life was in
danger and wanted to get the child to hospital as quickly as
possible – on appeal the court found he acted out of necessity
and set the conviction aside – In REALITY there was no question
of necessity as the child’s life was never in danger – the only
symptom from the overdose would have been an upset stomach.
3. The state of necessity must be present or imminent: it must not

have terminated or be expected only in the future.
4. The defendant need not only protect his own interests, but can
protect the interests of another: A acts to protect his child.
5. Not only life or physical integrity, but other interests like

property may be protected out of necessity: honour, identity – to
protect B’s physical integrity, A provides C, who intends
assaulting B with false information about B’s whereabouts,
privacy – doctor is compelled to examine an unconscious
person, freedom – during a storm a captain of a ship
temporarily locks passengers below deck to prevent the ship
from going down, and feelings – the doctor convinces a wife who
is seriously ill to undergo an operation, against the wishes of
her husband, may be violated in a state of emergency.
6. A person cant rely on necessity where he’s legally compelled to

endure the danger.
7. The interest, which is sacrificed, must not be more valuable

than the interest, which is protected: the defendant cannot
cause more harm than is necessary.
8. Whether necessity can justify homicide:

English law – R v Dudley and Stephens: 2 people who were
drifting on a small boat after a ship disaster, were convicted of
murder after they cut the throat and ate the weakest of the
passengers to stay alive after 20 days at sea – the court rejected
the plea of necessity as necessity can never justify killing of an
innocent person.

In S v Goliath the AD held that homicide may be justified in a

state of necessity: in this case A under the compulsion from B
and fearing for his own life, helped B to kill C – court said A’s
defence of necessity could be upheld. The law recognizes that a
person's own life is more important to him than the life of
another.
9. The act of necessity must be the only reasonable possible means

of escaping from the danger: the act must be necessary to
protect the threatened right – the defendant must have no other
reasonable means available to him to prevent the infringement
of another’s rights – if the defendant can escape from the
emergency by fleeing, he must flee.

PROVOCATION
Definition: provocation is present when a defendant is provoked or

incited by words or action to cause harm to the plaintiff.
Provocation is a ground of justification, which renders the defendants

conduct lawful, therefore the plaintiff can’t claim damages (B v C).
Provocation is assessed objectively by weighing the proactive conduct
against the reaction to it by using the boni mores test -
(reasonableness).
Difference between private defence and provocation:

Private Defence: the defendant averts the attack which is immanent or
already commenced but not yet terminated = act of defence
Provocation: defendant reacts immediately after the provocative
conduct has already terminated = act of revenge.
R v Van Vuuren: the appellant was prosecuted for assault – he had

grabbed the complainant by the arm after the complainant insulted
the appellant’s wife. The appellant raised private defence as a ground
of justification and this was accepted by the courts – he grabbed the
complainant’s arm to prevent him from continuing his insults.
BUT it was clear that the verbal abuse had already terminated when
the appellant grabbed the complainants arm = provocation
BUT he wouldn’t have been able to rely on provocation because it was
a physical attack against provocative words!!!!
Provocation in the case of physical assault:
General rule: provocation isn’t a complete defence where provocative

words precede a physical attack – this is so even where the words
were gravely insulting and defamatory – X who slaps Y merely because
Y verbally provoked him (Bennet v Minister of Police).
Exception: Parker v Scott – can be a complete defence in certain
circumastances.
BUT: where the provocation takes the form of a physical assault,

provocation can serve as a ground of justification for a counter-
assault of a physical nature.
Provocation will be a complete defence against an action based on
assault if 2 requirements are met:
1. The provocative conduct must be of such a nature that the
reaction to it by means of a physical assault is reasonable =
excusable – you look at this objectively, would the reasonable
person in the position of the defendant have acted the way the
defendant did.
2. The conduct of the provoked defendant must be an immediate and
reasonable retaliation against the body of the plaintiff – so the act
of revenge must not be out of proportion – the different

interests must be of equal value or similar nature. Provocation =

weighing up of interests: here the interests of the person who is
provoked are compared with the interests of the person who
provoked.
Provocation in cases of defamation and insult:
Defamatory or insulting allegations made during an argument in

reaction to provocative conduct, may be justified in certain
circumstances.
REQUIREMENTS:
1. The provocation must be of such a nature that a reasonable
person in the position of the defendant would also have acted by
defaming or insulting the plaintiff = test is objective
2. Defamation or insult in retortion must stay within the
prescribed limits – the limits aren’t exceeded when the
defamation or insult: a) immediately or directly follows the
provocation and b) isn’t out of proportion to the provocative
conduct.
Principle of Compensatio: (2nd requirement) – where 2 people have

defamed or insulted each other in such a manner that the one
instance of defamation or insult isn’t out of proportion to the other. In
other words, the two insults cancel each other out. (Bester v Calitz)

CONSENT
Definition: where a person legally capable of expressing his will gives

consent to injury or harm, the causing of such harm will be lawful.
Consent is a ground of justification: the person suffering harm waives

his right to the extent that he permits the defendant to violate his
interests.
Volenti non fit inuria: the defendant isn’t liable where the injured
person has consented to injury – he who consents cannot be injured.
It describes BOTH forms of consent.
Forms of consent:
1) Consent to injury: the injured party consents to specific harm
– e.g. A consents to B’s removing his appendix – E consents to
the barber F to cutting his hair.
Esterhuizen v Adminstrator Transvaal: Plaintiff submitted to
radium treatment and sustained serious injuries. Court said: if
a person gives consent thinking it will help them or that the
procedure would be without risk, it is not informed consent.
In such a case, the consent MUST be informed consent.
2) Consent to the risk of injury: the injured party consents to the

risk of harm caused by the defendants conduct – a rugby
player accepts the risk that he may be injured in a tackle. =
The injured person will not be able to hold the person who
injured him, delictually liable because he has consented to the
risk of such harm.
Boshoff: Plaintiff was hit on the head with a racket during a
game of squash and sustained injury to his eye. Court held
that the plaintiff cannot claim damages because he consent to
risk of injury and such consent was not contra boni mores.
Voluntary assumption of risk = sometimes referred to as consent to

injury or contributory intent.

Characteristics of consent:
a) Consent to injury is a unilateral act – it need not be known to

the defendant and it can be unilaterally revoked at any stage
preceding the defendant’s conduct.
b) Consent is a legal act, which restricts the injured person’s rights
= the consent must be apparent or evident.
c) Consent must be given either expressly (words) or tacitly
(conduct) – incitement, encouragement or invitation = consent
BUT submission or mere knowledge = no consent.
d) Consent must be given before the prejudicial conduct – approval
given after the act ISNT consent.
e) As a rule the prejudiced person himself must consent – only in
exceptional circumstances can consent be given by someone
else.
Consent is a question of fact – where D thought that consent had been

given, when in fact it hadn’t, no ground of justification exists and he
acted wrongfully. (R v K)
1. Consent must be given freely and voluntarily –

R v McCoy: X, an airhostess was remanded for failing to fasten
her seatbelt – so to not loose her job she allowed the boss to
slap her bottom 6 times – the boss was charged with indecent
assault and his defence was that X had consented.
It was held: that her consent wasn’t given freely and voluntarily
due to the fact that she was about to loose her job.
2. The person giving consent must be capable of volition – must be
intellectually mature enough to appreciate the implications of
his acts and he must not be mentally ill or under the influence
of drugs.
3. The consenting person must have full knowledge of the extent of
the prejudice – (Esterhuizen)
R v C - R was asleep and was woken by C who was having sex
with her – she thought it was her husband and later saw it
wasn’t. C was charged with rape – using consent as a defence –
it didn’t constitute valid consent, as it wasn’t based on full
knowledge.
Castell v De Greef – The court said that the test is determined by
evidence led on what the reasonable doctor would’ve told his
patient in the same situation.
In medical procedures a medical practitioner has a duty to
inform a patient of any material risks connected to the
treatment.
The extent of the doctor’s duty should be established.

In casu the court used the reasonable doctor test: look at what
the reasonable doctor would have told the patient in the
circumstances.
On appeal reasonable patient test (material risk test) was
preferred: the doctor’s duty to inform is to be established with
reference to the needs and expectations of the particular
patient. For a patient's consent to be a ground of justification
that excludes wrongfulness – the doctor is obliged to warn the
patient of any material risk:
A risk will be material if:
1. A reasonable person in the patient’s position, if warned of
risk, would have attached significance to it.
2. The doctor is or should reasonably be aware that the
particular patient if warned would attach significance to
it
4. The consenting party must realize or appreciate fully the nature

and extent of the harm – the plaintiff must comprehend and
understand the nature and extent of harm.
5. The consenting party must subjectively consent to the
prejudicial act.
6. The consent must not be contra boni mores.
Exceeding the limitations of consent:
The impairment must fall within the limit of the consent. For example:
Vorster the plaintiff was a passenger in a car that was dicing with
another. The car overturned and the plaintiff was injured. The court
held that the plaintiff did consent, but did not however, consent to
gross negligence of the driver. Therefore, the plaintiff was able to claim
damages.

Burger v Administrator Kaap: A patient gave consent to Dr R to perform

surgery. However, years later the patient discovered that it was in fact
Dr L who performed the surgery. The court held that “the debt arising
from Dr L was different to that of Dr R. Therefore, consent was not
given and exceeded the limitation of consent.
Pactum de non petendo in anticipando:

This is a contractual undertaking not to institute action against the
actor = not hold the actor liable.
There is no doubt that the actor committed a delict, but the
prejudiced person undertakes not to hold the actor liable.
Wrongfulness isn’t excluded – only the action against him is.
The prejudiced person loses the remedy, which he would otherwise
have had at his disposal – he waives his action.
E.g. Jameson’s Minors v CSAR:

The deceased was injured in a train accident caused by the
defendant’s negligence, and subsequently died.
He was a passenger traveling on a free pass issued to him on
condition that the railways wouldn’t be liable in the event of injury
caused through the negligence of the railways.
An action therefore couldn’t be instituted against the railways.
The court held: such an agreement was no defence to the actions
instituted by the deceased’s dependents.
BUT if the deceased had merely been injured he wouldn’t have been
able to institute action against the railway.

OFFICIAL CAPACITY AND OFFICIAL COMMAND
Official capacity: certain public officials (law enforcement and

judicial officers) are authorized by law to perform certain acts.
Should they cause damage in the process, their conduct will be
justified (lawful) and they will not be liable.
Should the official exceed his authority, he acts unreasonable and

wrongfully and cannot be held liable.
Official capacity is exceeded, for example, where the official acts with
malice.
May v Udwin: where a claim was based on alleged defamation

instituted against a magistrate failed.
Held: to justify defamatory remarks the magistrate can rely on official
capacity – BUT this isn’t absolute.
Execution of an official command: infringements of interests in

carrying out a lawful command (where a constable shoots a fleeing
murderer at the order of his officer = not wrongful.
Question: when execution of a wrongful command can constitute a

defence?
S v Banda laid down the following requirements for the defence:
1. The order must be given by a person in position of lawful
authority over the A
2. There must be a duty on the A to obey the order given
3. The A must have done no more harm than was necessary to
carry out the order
According to case law there is no absolute duty on subordinates to

obey the orders of their superiors and this defence should be limited.
To determine whether the order is wrongful, look at the judgment of

the reasonable person.
In cases where a duty to obedience of wrongful orders applies, the
ground of justification is really necessity in the way of compulsion and
not official command.

STATUTORY AUTHORITY
Definition: a person doesn’t act wrongfully if he performs an act

(which would otherwise have been wrongful) while exercising a
statutory authority.
Harmful conduct authorized by statute is reasonable and therefore

lawful.
BUT:
1. Statute must authorize the infringement of the particular
interest
2. The conduct must not exceed the bounds of the authority given
by the statute.
Guidelines:
a) The question whether statute authorizes the infringement of the
interest concerned, depends on the intention of the legislature –
interpretation of statutes:
1. If the statute is directory = the infringement of a private
interest is authorized = injured person cant get
compensation
2. If the statute is permissive and makes no provision for the
payment of damages = presumption that the infringement
isn’t authorized
3. This presumption above falls away if authority is entrusted
to public body acting in public interest.
4. If the authorized act is localized = presumption that the
infringement is authorized
5. If the authorization is permissive and general, not localized
and doesn’t entail and infringement of private interests =
legislature didn’t intend the interests to be infringed.
b) To determine whether the authorized act exceeds the bounds of the

authority the following are taken into account:
1. It must have been impossible for the defendant to exercise the
powers without infringing the plaintiffs interests (onus on
defendant)
2. It must have been impossible to prevent or minimize the
damage by taking reasonable precautions or by using
another method (onus on plaintiff).
If the defendant exceeded the bounds of statutory authority =

wrongful.

Using Force:
The arrestor is the only justified in using deadly force, in other words,
force that is intended or is likely to cause death or grievous bodily
harm to a suspect, in particular circumstances: if he believes on
reasonable grounds that:
a) The force is immediately necessary for the purpose of protecting
the arrestor, any personal lawfully assisting the arrestor or any
other person from imminent or future death or grievous bodily
harm
b) There is substantial risk that the suspect will cause imminent
or future death or grievous bodily harm if the arrest is delayed
c) The offence for which the arrest is sought is in progress and is
of a forcible and serious nature and involves the use of life-
threatening violence or a strong likelihood that it cause grievous
bodily harm.
Requirements to use force:
1) Reasonable grounds
2) Must be necessary
3) protect person’s life or bodily integrity
4) conduct must be immediately threatening or will happen in the
future

POWER TO DISCIPLINE
Common law: parents and people in loco parentis (teachers) have, by

virtue of their authority over children, the power to administer
punishment to them for the purpose of education and correction.
BUT NOW:
Section 10 of the S.A Schools Act prohibits corporal punishment in
public as well as private schools.
It’s submitted that the wording of S10 makes it clear that a parent
cannot delegate his power to someone else.
(R v Janke and Janke)
Objectively viewed, punishment must be exercised moderately and

reasonably – the purpose of punishment must be to correct the child.
Malice or improper motive is an indication of unreasonable conduct,
which is wrongful.
Section 12 of the Constitution: confers the right on everyone not to be

treated or punished in a cruel, inhuman or degrading manner.
According to case law, the following factors must be considered in

determining whether the punishment was moderate and reasonable:
1. The nature and seriousness of the transgression
2. The degree of punishment or force inflicted
3. The physical and mental condition of the person punished
4. The gender and age of the child
5. The physical disposition of the child
6. The means of correction and
7. The purpose and motive of the person inflicting the punishment
There is a presumption that chastisement exercised by virtue of power

to chastise, was given reasonable and without malice.
A person who alleges otherwise must prove that no power to chastise
existed or that in the circumstances the chastisement was exercised
in an unreasonable manner.

ABUSE OF RIGHTS AND NEIGHBOUR LAW
If you exercise your rights over your property in a legally

impermissible manner = abuse of rights. Abuse is therefore the use of
land and the expense of another. This is considered conduct with the
exclusive aim of harming another person. However, if such a person
does not consider the “abuser’s” conduct unreasonable, he cannot
claim damages.
Principles:
1. General rule: the owner of immovable property can use his
property as he sees fit – as long as he acts within the bounds
placed by law on his ownership. (Gien v Gien)
2. Because the owner isn’t completely free to use his property as
he wishes – his interests must be weighed against the interests
of his neighbour.
3. The basic question = reasonableness – whether the defendant
used his property reasonably or unreasonably: conduct with the
aim of harming your neighbour is wrongful – improper motive
renders the act wrongful if it prejudices the neighbour without
benefiting the actor in any way. (Kirch v Glaser)
4. Where the benefit the actor gets from his conduct is slight and
damage to the neighbours property is serious = unreasonable
and wrongful, regardless of his motive. (Regal Hastings v African
Superslate)
5. Where the actor harms the neighbour while advancing his own
reasonable interests, he doesn’t act wrongfully, even if he had
an improper motive = improper motive isn’t enough – BUT if the
sole motive is to harm the neighbour = wrongful.
Nuisance (unreasonable use of land at the expense of another):
Repeated infringement of the plaintiffs property rights = smoke, gas,

odors, leaves, slate, music.
An objective weighing up of interests of the parties is involved.
Factors:
• Type of noise
• Degrees of persistence
• Time of noise
• Locality of noise

FAULT
Fault is a general requirement for delictual liability.
In practice 2 main forms of fault are recognized:

1. Intention (dolus)
2. Negligence (culpa)
Fault can be present ONLY if the person acted wrongfully.
With the actio legis aquiliae and the action for pain and suffering
either intention or negligence is enough for liability.
With the actio inuriarum – intention is required and negligence isn’t
sufficient.
1st it must be established whether the defendant had the capacity to

be held accountable.
ACCOUNTABILITY:
To determine if a person has fault, one must first see if he is

accountable for his actions. A person is accountable if he has the
necessary mental ability to distinguish between right and wrong
and that he can act in accordance with such appreciation – he
must have the required mental ability at the time of the act – if he
lacks accountability at the relevant time = there can be NO fault on
his part.
Accountability is seen as the basis for fault.

People who lack the necessary accountability include:
1. Youth: a) child under 7 (infans) always lacks
accountability (culpae incapax) – there is an
irrebuttable presumption that he isn’t
accountable.
b) There is a rebuttable presumption that a
child over 7 but under 14 (impubes) lacks
accountability = he’s assumed cupae incapax
until the contrary is proven.
2. Mental disease or illness: where a person cant at the given

moment distinguish between right and wrong or where they
can but they cant act in accordance with such appreciation,
they are culpae incapax = NO FAULT and no liability.
3. Intoxication: persons who are under the influence of
intoxicating liquor or drugs MAY be culpae incapax (lack
culpability). BUT the mere consumption of liquor or the use
of drugs may in a given situation be a NEGLIGENT act for
which the defendant MAY be held responsible.

4. Provocation: where a person under provocation loses his

temper and becomes passionately angry he MAY be said to
lack accountability and thus wont be blamed for his
(intentional) conduct
Once it’s been established that the defendant was accountable at the
relevant stage, it must then be determined whether he acted
INTENTIONALLY or NEGLIGENTLY.
INTENT
NB: a person acts intentionally if his will is directed at a result, which

he causes while conscious of the wrongfulness of his conduct.
2 elements of intention:
1. Direction of will
2. Knowledge (consciousness) of wrongfulness.
Direction of will:
Different forms of intention:

a) Direct intent (dolus directus): where the wrongdoer desires a
particular consequence of his conduct = X decides to shoot and
kill Y in order to take Y’s money – the execution of this plan is
accompanied by direct intent because it’s X’s plan that Y
should die.
b) Indirect intent (dolus indirectus): where the wrongdoer directly

intends one consequence but at the same time has knowledge
that another consequence will unavoidably follow. The causing
of the 2nd consequence is accompanied by indirect intent = X
desires to shoot and kill Y who is standing behind a closed
window – the bullet aimed at Y 1st shatters the window and
then kills Y. with regard to Y’s death X had DIRECT INTENT,
but he didn’t want to break the window (he knew it was a
consequence) so INDIRECT INTENT is present in respect of the
window.
c) Dolus Eventualis: the wrongdoer while not desiring a

particular result, foresees the possibility that he may cause the
result and reconciles himself to this fact – Question whether
the wrongdoer actually subjectively foresaw the possibility of
the consequence.
X wants to kill his enemy Y. Z is standing next to Y when X
takes aim. X foresaw the possibility that he could miss and hit
Z with fatal consequences. BUT X decides to proceed. The
bullet misses Y and hits Z = X shot Z intentional even though
he didn’t desire this consequence or foresee it as a necessary
consequence of his conduct – the mere fact that X subjectively

foresaw that he might hit Z is enough to conclude he acted

intentionally.
BUT if X initially foresaw the possibility that he might hit Z but

later for some reason came to the conclusion that it wouldn’t
happen = NO DOLUS EVENTUALIS = in such a case luxuria
(conscious negligence) may be present.
Further important types of intent:
Dolus determinatus (definite intent) – Where a wrongdoer’s will is

directed at a result which he causes while he has a specific person or
object in mind. This type of intention could take the form of dolus
directus, dolus indirectus, or even dolus eventualis.
Dolus indeterminatus (indefinite intent) – where a wrongdoer has no

specific person or object in mind while his will is directed at a specific
result. For example, a person places a bomb in a shopping centre. He
has no idea of exactly how many people or who specifically will be
hurt, but he still has intent regarding the specific consequence.
Consciousness (knowledge) of wrongfulness:

Knowledge of wrongfulness as a requirement of intent indicates that
it’s insufficient for the wrongdoer merely to direct his will at causing a
particular result: he must also know or at least foresee the possibility
that his conduct is wrongful.
Motive and Mistake:

Motive: Motive = reason for someone’s conduct and must not be
confused with intent.
Intent: denotes a willed act which the wrongdoer knows is wrongful
Motive refers to the reason why the person acts in a particular way –
his desires or will. So a person may, despite the fact that in his
opinion he has a good motive, still act with intent (where you kill
another to spare him from suffering).
BUT intent may be absent in a case where a person who has a bad
motive but who believes his conduct is lawful.
Mistake: the problem here is whether intent is present where the

wrongdoer causes a result in a manner different from that foreseen by
him.
Material deviation: intention is absent while intention is assumed to
be present where the deviation isn’t markedly different from the
foreseen causal chain of events
e.g. X wants to shoot and kill Y, he fires a shot in order to hit Y in the
head. The bullet misses Y and hits a rock and then hits Y in the heart
with fatal consequences = intention.

S v Goosen: X, Y and 3 other people participated in a robbery. X drove

the car. X did foresee that Y, who had a loaded gun, could shoot and
kill their victim. During the robbery Y jumped out of the way of a car
driven by the victim and this caused a shot to be discharged
involuntarily. The shot hit and killed the victim.
Court held: that the causing of death by intentional conduct differs
from the causing of death from involuntary conduct = material
difference between the actual causal chain of events and that foreseen
by X = X acquitted.
Masilela: 2 accused throttled the deceased; hit him over the head with
intention to kill him and then, thinking he was dead, set the house
alight.
Court Held: there was a mistake as to the causal chain of events, BUT
the accused still had INTENTION to murder. Therefore – guilty.

NEGLIGENCE
Definition: fault refers to a blameworthy attitude of someone who

acted WRONGFULLY – negligence = someone is blamed for conduct
which is careless, because by giving insufficient attention to his
actions, he failed to adhere to the standard of care legally required of
him.
This is an objective test on the standard of the reasonable person.
A defendant is negligent if the reasonable person in his position would

have acted differently = if the unlawful causing of damage was
REASONABLY FORESEEABLE and PREVENTABLE.
Kruger v Coetzee: Test for negligence:

1. Would foresee the reasonable possibility of his conduct injuring
another and causing him patrimonial loss.
Reasonable person characteristic:
The reasonable person is a fictitious person – not exceptionally gifted,

careful but not someone who recklessly takes chances.
Reasonable person has certain minimum knowledge and mental

capacity, which enable him to appreciate the dangerous potential of
certain actions.
Reasonable person knows there are inherent dangers in the use of
guns, explosives, cars, poison etc.
BUT our law shouldn’t completely ignore physical handicaps in

determining the possible negligence of (for example) a blind person =
the question should be how a reasonable person with a particular
handicap would have acted.
THE NEGLIGENCE OF CHILDREN:
Before 1965 there was a tendency for the courts top take into account
the youthfulness of the wrongdoer in determining his negligence = test
for negligence by means of the conduct expected from the
REASONABLE CHILD of the wrongdoers age and intellectual
development.

In 1965 the AD in Jones v Santam- adopted a new approach to

determine negligence with regard to children.
The court implied that the criteria for determining negligence is

always objective in the sense that in all situations the test of the
REASONABLE PERSON is applied.
According to this approach, in determining if a child acted with
negligence:
1. See whether the child concerned met the standard of care
required of a reasonable person
This approach had a critical reception:

a. It would seem that the earlier test of the reasonable child was
more acceptable
b. It’s clear that the court in Jones placed the cart before the horse
by 1st looking into fault and then into accountability.
Logically you must 1st look at accountability and once someone is

found to be accountable only then can you look at fault.
Roxa v Mtshayi: AD accepted this criticism by 1st testing

Weber v Santam: the AD had another chance to consider the Jones

case and said that it didn’t materially depart from the common law
and CONFIRMED the approach.
EXPERTS:
It’s considered whether the fact that the wrongdoer had expertise in
regard to the negligent conduct affects the application of the
reasonable person test.
The general test for negligence cannot be applied in considering the

conduct of the defendant where such conduct calls for expertise.

So in the case of an expert (doctor etc) the test for negligence is the test
of the SO- CALLED REASONABLE EXPERT (i.e. the reasonabledoctor).
The reasonable expert is identical to the reasonable person in all

respects, except that a reasonable measure of the relevant expertise is
added (Van Wyk v Lewis).
Durr v ABSA Bank Ltd:

The SCA approved the approach in Van Wyk and emphasized that the
decision of what is reasonable under the circumstances is for the
court to decide.
There may be instances where it would not be negligent for a

layperson to undertake an activity for which special skill is required.
For example, X, a layperson, takes control of an aircraft. X’s control is
not necessarily negligent, even though he has no knowledge or
expertise in piloting an aircraft. A lay person is only negligent if he
does not act as a reasonable lay person. He is therefore not expected
to act or be compared to a reasonable expert. (Mrupe)
CAN NEGLIGENCE AND INTENTION OVERLAP?
Van der Merwe: from the definition of negligence, it would seem

negligence only exists as a consequence of no intention being present.
This means that negligence and intention are mutually exclusive, in
other words, one can’t exist without the other.
S v Ngubane: intention and negligence are not mutually exclusive. The

question was whether someone convicted of murder, could be charged
with culpable homicide too. This is the accepted view.
Boberg: “where dolus is present, so too is culpa”.
When applying this concept to delict: the intentional causing of harm

to another person is contrary to the standard of care which the
reasonable person would have exercised and negligence is thus
simultaneously present.
DIFFERENCE BETWEEN ORDINARY AND GROSS NEGLIGENCE:
In terms of the use of the aquilian remedy, the two types don’t matter.
However, some statutory and contractual provisions limit liability to
“gross negligence” only.
In terms of inuiria, gross negligence can replace intention, if intention
cannot be proven.
Gross negligence is defined by MV Stellas Tingas Transnet Ltd: “To
qualify as gross negligence the conduct in question, although falling
short of dolus eventualis, must involve a departure from the standard

of the reasonable person to such an extent that it may properly be

catagorised as extreme; it must demonstrate, where there is found to
be conscious risk-taking, a complete obtuseness of mind or, where
there is no conscious risk-taking, a total failure to take care. If
something less were required, the distinction between ordinary and
gross negligence would lose its validity.”
NEGLIGENCE AND OMISSIONS:
Negligence as a form of fault is not the same as an omission. An

omission is a form of conduct and can be performed intentionally or
negligently.
Negligence: foreseeability and preventability of damage
Test for negligence rests on 2 pillars:

1. Reasonable foreseeability
2. Reasonable preventability of damage
REASONABLE FORSEEABILITY:
There are 2 views as to the foreseeability test:
1. Abstract (absolute) approach: The question whether someone

acted negligently must be answered by determining whether
harm to others was in GENERAL reasonably foreseeable. It’s not
a requirement for negligence that the extent of damage or a
particular consequence that actually occurred should have been
reasonably foreseeable – it’s enough if damage in GENERAL was
2. Concrete (relative) approach: This is based on the premise

that a person’s conduct can only be negligent in respect of a
SPECIFIC CONSEQUENCE or consequences = it’s a prerequisite
for negligence that the occurrence of a particular consequence
must be reasonably foreseeable. The wrongdoer is only negligent
with reference to a specific consequence if that consequence and
not merely damage in general was reasonably foreseeable.
UNISA: says that the concrete approach is preferred for the

following reasons:
The question whether the reasonable person in the position of the
wrongdoer would have acted differently in order to prevent damage
can only be answered in a meaningful way by reference to the
consequences that were reasonably foreseeable and not damage in
general.
(Ablort Morgan v Whyte Bank)

PREVENTABILITY:
Whether the reasonable person would have taken precautionary steps

to prevent damage from occurring.
4 factors highlight the question whether the reasonable person would
take steps to guard against the occurrence of damage:
1. Nature and extent of the risk inherent in the wrongdoers

conduct: the fact that the nature and extent aren’t serious or
the harm-foreseen slight, may have the result that the
reasonable person despite the fact that the harm was
reasonably foreseeable, WOULDN’T have taken steps to prevent
it.
Wassernam v Union Government: a swarm of bees were in the

roof of a police station. While a policeman attempted to locate
the bees he was stung in the lip and died – the question was
whether the defendant was negligent in not driving out the bees.
Held: Reasonable person wouldn’t have taken steps to prevent
the harm from occurring = death wasn’t reasonably foreseeable.
2. Seriousness of the damage, if risk materializes and damage

follows: Where the wrongdoers conduct creates the possibility
of grave and extensive damage occurring, he should take
reasonable steps to prevent such damage, even though there’s
only a slight possibility/chance that the damage will actually
materialize.
Basson case: the defendant was employed by the plaintiff to

erect a roof on top of a silo – during welding, the sparks ignited
bales of stover stacked against the silo.
Held: although the risk of the stover catching alight wasn’t
great, the damage, which could result, was extensive.
The RP would have taken steps to prevent the damage from
occurring.
3. The relative importance and objective of the Wrongdoers

conduct: It may be that the interest served by the conduct is of
such a nature that it’s more important than the risk of harm,
which it involves = Reasonable person wouldn’t have taken
steps to prevent the harm. E.g. Ambulance driver who exceeds
the speed limit in an urban area while taking a seriously ill
patient to the hospital.
4. The cost and difficulty of taking precautionary measures:

Where the risk of harm can be eliminated or reduced without
substantial problems, prejudice or costs, it may be accepted
that the reasonable person would take precautionary measures.

BUT: where the cost and difficulty in taking precautionary

measures is greater than the risk the reasonable person
wouldn’t take steps to reduce the risk.
NB – Grocery store cases

Gordon v Da Mata:
The plaintiff slipped on a cabbage leaf, which was on the floor of
the defendant’s grocery store. – The leaf had fallen onto the floor
while the defendant’s assistant was slashing off the cabbage
leaves.
Held: RP would have taken steps to prevent leaves from falling
on the floor by collecting them = this measure would be simple and
inexpensive.
City of Salisbury v King:

The court had to decide whether it was negligent to leave
slippery vegetable matter that was lying on the market floor.
The plaintiff slipped on a piece of vegetable on the floor of a
large market while the sale of vegetables was in progress.
Held: the mere presence of vegetable matter on the floor of a
market didn’t in itself indicate negligent conduct.
It would be unreasonable, expensive and unrealistic to expect
immediate removal of the vegetable matter as it fell to the floor.

Negligence judged in light of the surrounding circumstances:
It must be self-evident that the negligence of conduct may only be

evaluated in light of all the relevant circumstances of a particular
case.
The following factors must be taken into account:
1. Greater care is required when someone works with something

that is inherently dangerous. (Gun, dynamite, etc).
2. Greater care is expected when a person deals with individuals

who suffer from some disability (children, blind, intoxicated)
3. When a person has to take a decision in a situation of SUDDEN

EMERGENCY and there is insufficient opportunity to consider
all the consequences of his actions – this factor MUST be taken
into account in deciding whether he is negligent = this is called
the DOCTRINE OF SUDDEN EMERGENCY.
THE LAW CANT EXPECT A PERSON WHO HAS TO ACT

SWIFTLY IN A SITUATION OF IMMINENT PERIL TO SHOW THE
SAME JUDGEMENT AND SKILL AS SOMEONE WHO ISNT
ACTING IN SUCH URGENT CIRCUMSTANCES.
Therefore an error of judgment doesn’t necessarily amount to

negligence, because the reasonable person may also make an
error of judgment in certain circumstances.
Three requirements must be satisfied in a case of sudden

emergency for a wrongdoers conduct not to amount to
negligence = to meet the standard required of a reasonable
person:
a) The wrongdoer must have faced a situation of imminent
peril – e.g. a man armed with a panga, slashes at a motorist
who is driving past him – someone who is fighting with
another, picks up a brick and aims it at a motorist, etc =
NOT NEGLIGENT
b) The wrongdoer must not have caused the situation through
his negligence – where a reasonable person would in any
event have prevented the emergency situation – the
wrongdoers conduct will not be excused.
c) The wrongdoer must not have acted in a grossly
unreasonable manner – established whether a reasonable
person in the same circumstances would have made the
same error in judgment as the wrongdoer.

4. A person acts according to the standard of the reasonable

person when he relies on the fact, that another person will also
act in a reasonable way – so a person isn’t negligent when he
fails to take into consideration the negligent conduct of another
driver and is involved in a collision with him. BUT – where the
conduct of another driver is reasonably foreseeable a person
cannot always rely on other road users acting reasonably.
5. Customs and opinions of the community
6. In certain circumstances the appropriate standard of care

required for conduct isn’t entirely left to the discretion of the
court, because there is also a specific statutory provision that
applies.
Brown v Hunt: A petrol attendant (in the employ of the appellant),

spilled some petrol on the floor while filling up a car. The petrol
caught alight and the attendant tried to put the fire out with water,
damaging the respondent’s car. The employer used the doctrine of
sudden emergency because the fire created “imminent peril”. However,
the court said the doctrine of sudden emergency would not work
because the imminent peril would not have existed, had the employee
not spilled the petrol.
Relevance of Negligence:
Example: A is driving his car at an excessive speed and without lights.

He turns the corner and hits B, who was standing in the middle of the
road, and kills him. A did not act as a reasonable person and
therefore should be guilty of negligence (intention if he foresaw the
possibility). However, Van Rensburg states that, even if A did act as a
reasonable person, A would still have hit B. Therefore, A’s negligence
is not relevant to B’s death. A should then not be delictually liable.

Negligence and the duty of care:
Negligence = determined according to the test of the reasonable

person.
BUT on occasion our courts haven’t applied this test and instead
followed English law in applying the DUTY OF CARE DOCTRINE.
1. You see if a duty of care is owed = reasonable person ion the

position of the defendant would have foreseen that his conduct
might damage the plaintiff.
2. Whether there was a breach of the duty of care – courts

consider whether the wrongdoer exercised the standard of care
that the reasonable person would have exercised in order to
prevent the damage = LEGAL DUTY
Proof of negligence:
To succeed in his claim, the onus is on the plaintiff to prove on a

balance of probabilities that the defendant was negligent.
BUT: where there is a statutory presumption of negligence, the onus
rests on the defendant to rebut the presumption of negligence to
escape liability.
Presumption = res ipsa loquitor - creates a presumption of negligence.

Wrongfulness and negligence:
Wrongfulness Negligence
1. The reasonableness of the 1. Reasonable persons conduct is
defendants conduct is determined determined with reference to
by the weighing up of the reasonable foreseeability and
conflicting interests- in the light preventability of the damage
of the legal convictions of the
community – BONI MORES
2. Concerned with the 2. Determination of legal
determination of legally blameworthiness of the defendant
reprehensible conduct for his wrongful conduct – is
determined in light of all the
relevant facts and circumstances
that are actually present
3. Because it concerns the legal 3. Negligence is determined with
reprehensibility of a persons reference to the position in which
conduct, it must be determined in the defendant actually found
light of all the relevancy facts and himself = placing the reasonable
circumstances that are person in the defendants position
ACTUALLY PRESENT.
4. An omission is unreasonable 4. Omission – where the
and thus wrongful – where defendant attempted to comply
according to Boni Mores, a legal with such a duty and his attempt
duty rested on the defendant to coincided with what a reasonable
act and prevent harm and he person would have done, his
neglected to comply with such a wrongful act isn’t accompanied by
duty. negligence and he will escape
liability. Minister of Forestry

CONTRBUTORY FAULT
Contributory fault = conduct of the plaintiff – its relevant in limiting

the extent of the defendants liability and is thus important in practice.
It’s regulated by the Apportionment of Damages Act.
Common law position:
General rule: fault on the art of the plaintiff precluded him from
claiming damages from the defendant, who was also to blame for
causing the damage.
So if two people were at fault, neither could claim damages unless one
was more to blame than the other.
The DOCTRINE OF CONTRIBUTORY NEGLIGENCE was taken over

from English law.
It was developed in Davies v Mann: The plaintiff haltered a donkey in
the road – the defendant driving his wagon, collided with the donkey =
there was negligence on both sides.
In terms of the ALL OR NOTHING RULE, which was in force at the

time, the plaintiff would have been unable to claim damages from the
defendant.
BUT: the court adopted a new approach, since the defendant has the
LAST OPPORTUNITY to avoid the collision; the plaintiff’s negligence
was ignored.
Our court initially accepted that if the negligence of two people

contributed to the causing of a particular result and one or both
suffered damages as a consequence, NEITHER party could institute
action unless the negligence of the one was the DECISIVE CAUSE of
the accident = the negligence of the other party was completely
ignored and he could succeed in full with his claim.
To determine whose negligence was the DESCISIVE CAUSE, look at

who had the last opportunity to avoid the accident.
Also contributory negligence by a deceased was no defence to an

action instituted by his dependants; unless the negligence of the
deceased was the decisive cause of his death (i.e. he had the last
opportunity to avoid it).
If it wasn’t possible to determine whose negligence was the decisive
cause – the dependants could succeed in their claim.

The common law position has now been changed by the

Apportionment of Damages Act.
Apportionment of Damages Act (1956)
Section 1: where any person suffered damage which is caused partly

by his own fault and partly by the fault of another, a claim in respect
of that damage shall not be defeated by reason of the fault of the
claimant BUT the damages covered shall be reduced.
The effect is to abolish the all or nothing rule of common law and to
allow the court to apportion the damage of each party in accordance
with their relative degrees of fault.
The meaning of fault:
In general fault includes both intention and negligence.
The Question: whether a defendant who has intentionally caused

damage to the plaintiff, may raise the defence of contributory
negligence?
At COMMON LAW: the position was that such a defence couldn’t be

sustained where a defendant acted intentionally and it must be
accepted that the statutory position doesn’t change this.
A defendant who intentionally caused harm to the plaintiff will

not be able to ask for a reduction in damages because of
contributory fault.
Distinction between 2 situations:
1. Where the plaintiff intentionally contributed towards his own

loss, while the defendant was merely negligent = plaintiff
forfeited his claim.
2. Where the defendant caused the loss intentionally and the

plaintiffs unreasonable conduct that caused the loss was also
intentional = it appears that the legislature intended to make
provision only for the defence of contributory negligence and
not for contributory intent.
BUT: in ABSA case: the court held that S1 applies when the
form of fault on both the plaintiff and the defendant is
intention.
Court said: that fault includes dolus (intention)

Meaning of apportionment of damages:
Reduction of damages received by the plaintiff, because of his own

fault in respect of the damages he sustained.
Criteria for apportionment of damages:
Reasonable person test for negligence – Section 1 applies only to

damage caused partly by the fault of the plaintiff and partly by that of
the defendant.
South British Insurance Co v Smit – (past position)
Jones v Santam:
In so far as the objective reasonable person test applies, one is dealing
with a deviation from the standard of care, which applies, to all people
in a community.
The court doesn’t take into account that the defendant’s conduct has
contributed to the harm to a greater extent than the plaintiffs
conduct.
The court is satisfied that the negligent acts of both parties are
causally connected to the damage; the question of causation is solved.
The method of determining who should bear which portion of the damage,
involves a comparison of the respective degrees of negligence.
Each party’s degree of negligence is determined by expressing its

deviation from the standard of the reasonable person as a percentage.
Before Jones (in Smit): The AD accepted that once the plaintiff’s
degree of negligence had been established it was unnecessary to
inquire into the extent to which the defendant’s conduct deviated from
the standard of the reasonable person.
E.g. plaintiff was 40% negligent – so automatically the defendant was

60% negligent.
But in Jones: They said that if the plaintiff was 30% negligent it
doesn’t automatically mean that the defendant was 70% liable
To establish the degrees of negligence, the carefulness of the conduct
of each party must be measured separately against the standard of
the reasonable person.
Where the defendant raises the defence of contributory negligence on

the part of the plaintiff, he has the onus to prove the defence on a
balance of probabilities.

Nomeka: The AD confirmed the approach in Smit – that the degree of

the plaintiffs fault automatically determines the fault of the defendant.
It submitted that both Jones and Nomeka apply, but its stated that
the approach in Jones should be confirmed
Fault in regard to the damage or the damage-causing event:

(seat belt cases)
NB question: whether S1 is also applicable where the plaintiff wasn’t

negligent with regard to the damage-causing event BUT where his
negligence increased the damages.
I.e. X failed to wear his seat belt and as a result suffered more
damages than he would have had he been wearing it.
In King v. Pearl Insurance Co Ltd:

Ruled on the fact that the plaintiffs failure to wear a helmet while
driving a scooter which was involved in a collision with a car - didn’t
constitute contributory negligence.
The judge based his decision on the argument that only negligence
with regard to the damage-causing event, as opposed with negligence
in regard to the damage, is taken into consideration for the purposes
of the Act.
This approach was criticized in:
Bowkers Park v SAR & H:

The judge considered the opinion above as unnecessary n the plain
wording of S1 – in his opinion the section leaves no doubt that
contributory negligence relates to fault with regard to the damage
causing event = its always possible that a plaintiffs contributory
negligence with regard to his damage, can lead to a reduction in
damages, even if he cant be held responsible for the actual damage
causing event.

In Victoria case:
Said that failure to wear a seat belt does constitute to contributory
negligence.
The court was of the opinion that the contributory negligence of a
plaintiff who deliberately fails to wear his seat belt will be greater than
a plaintiff who bona fide forgot.
In such a case the contributory negligence of the plaintiff is only
relevant in so far as it leads to an increase in damages.
So S1 applies in respect of that damage for which the plaintiff

is also responsible.
Example:
X suffers loss of R10 000 because of a car accident, which was caused
entirely by Y’s negligence.
It’s proved that X’s damages would only have amounted to R6000, had
there not been contributory negligence on his part, due to his failure
to wear a seatbelt.
So Y is alone responsible for the R6000. (Vorster v AA Mutual
Insurance Association Ltd)
VOLUNTARY ASSUMPTION OF RISK
In regard to contributory fault, voluntary assumption of risk is a

ground that cancels fault BUT isn’t a ground of justification.
Assumption of risk implies that the requirements of the grounds of
justification are absent.
When the plaintiff or injured party are well aware of the risk of danger
but willfully exposes himself to it, he acts intentionally and blame in
the form of contributory intention attaches to him.
His conduct must also be consciously unreasonable = not directed to

achieving a lawful goal. This is because a person does not act
wrongfully in regard to himself, because he strictly speaking does not
have a conscience of wrongfulness in regard to the harm that causes
“consciously unreasonable conduct”.
Where the plaintiff acted with contributory intent, the fault of the
defendant is eliminated.
Although the defendant is also at fault, he isn’t liable towards the
plaintiff because of the fact that the plaintiff himself acted
intentionally.

Lambert v Hefer:
The plaintiff sat in the side car of a bike, knowing the defendant was
sp drunk, that he wasn’t capable of controlling the bike = they had an
accident and the plaintiff got injured while the defendant was killed.
The plaintiff claimed damages from the defendant’s estate.
Contributory intent because the plaintiff was aware of the danger and
possibility of injury BUT decided to expose himself to the risk = the
remedy wasn’t available to her.
Netherlands Insurance co v Van der Vyver:

O was suspected of infidelity by his wife. So she hired a private
investigator (V) to spy on her husband.
V followed O in his car to a spot in the veld; O had a woman in the car
with him. When V approached O’s car O started to drive off.
V jumped on the bonnet to block O’s view and make him stop, but O
accelerated and swerved from side to side finally dislodging V.
V sustained injuries and claimed compensation from the insurer of
O’s car. Court found: O was 50 % negligent and V 50% negligent
So V only got half of his damages.
On APPEAL held that O acted with intention and the court rejected
the defence that V had consented to the risk of injury = failed.

CAUSATION
The causing of damage through conduct = a causal nexus between the

conduct and the damage is required for delict.
The question whether there is a causal nexus is a question of fact and
must be answered in light of the available evidence.
Conditio sine qua non = to determine whether a factual causal nexus

exists between the act and the harmful consequence – if so FACTUAL
CAUSATION.
FACTUAL CAUSATION:
There is no question of delictual liability if it isn’t proved that the

conduct of the defendant caused the damage of the person suffering
the harm.
What is the correct test for determining causation?
Conditio sine qua non theory:
Conditio sine qua non literally means “Condition without which

something does not happen”. The conditio sine qua non was
formulated in (International Shipping Co (Pty) Ltd v Bently).
Also known as the BUT FOR test = according to this an act is the
cause of a result if the act cannot be thought away without the result
disappearing as well.
E.g. in order to determine if X is the cause of Y, eliminate X mentally

and consider whether Y still exists or not.
If Y falls away when X is eliminated, then X is the cause of Y.
Cumulative Causation:
In this case, the conditio sine qua non fails.
For example, if X an Y, both independently and without prior

knowledge, shoot Z and kill him. If we eliminate X’s conduct, Z would
still be dead.
To answer this, medical evidence is needed to prove which bullet (or

both) killed Z. If both bullets killed Z simultaneously, X and Y are both
guilty of murder.

Criticism of the conditio sine qua non theory:
1. The conditio is based on a clumsy, indirect process of thought

that results in circular logic.
2. The conditio fails in cases of so-called cumulative causation -

cumulative causation occurs when more than one act actually
causes a consequence – X and Y simultaneously BUT
independently shoot at Z’s head. If you eliminate X’s shot, Z’s
death doesn’t fall away and visa versa = so the test suggests
that neither X nor Y caused Z’s death.
3. The conditio test isn’t a test of causation because it’s merely an

ex post facto way of expressing a predetermined nexus – X visits
Y to accuse him of adultery with his wife. Y is exceptionally
friendly and offers X a glass of beer. A few minutes after X has
drunk the beer, he suffers convulsions and drops dead – using
the conditio test if you eliminate the beer – you still don’t know
whether he died from poison or a heart attack = its only after
the facts have been established would you know whether the
giving of the beer was the conditio or not.
Conditio sine qua non and causation by omission:
General view: conditio test may be applied when one wishes to

determine whether an omission caused a certain consequence.
S v Van As: police neglected to search for children who had fled into
the night and later died of exposure.
Question: whether their death was caused by the omission to search
for them.
The court attempted to test the causal connection between the
omission and the death by asking whether reasonable search would
have prevented the death.
According to Van Rensburg – the conditio sine qua non test doesn’t
offer a solution in cases of causation by an omission.
The conditio requires you to eliminate something in the mind and not
to add something to given facts.
The argument that the conditio sine qua non test is the true test for
causation in cases of omissions isn’t accepted.

Determination of a factual (causal) nexus:
In view of the fact that conditio sine qua non should be rejected as the
test for causation, what test should then be used.
Van Rensburg – a causal nexus exists where one fact arises out of
another – this must be established according to human experience in
general.
If X stabs Y with a knife and Y is then taken to hospital where as a

result of the negligent conduct of the nurse, he falls off the bed,
fractures his skull and dies – law identifies the initial stabbing and the
negligent conduct of the nurse as the cause of death = causes of
certain consequences can be unlimited.
It’s enough for the purposes of factual causation if defendant’s

conduct has in any way contributed to the damage sustained by the
plaintiff.
Smit v Abrahams: In this case, the plaintiff’s car was damaged by the
defendant. The plaintiff claimed damages and rental for another car.
Botha JA dealt with the question of factual causation and held that
the plaintiff could not purchase another vehicle due to his financial
position. The court came to this conclusion (most importantly),
without referring to the condition sine qua non.

LEGAL CAUSATION:
No legal system holds a wrongdoer liable without some limit for the
endless chain of harmful consequences, which his act may have
caused – means to limit the wrongdoer’s liability.
The question of legal causation arises when determining which

harmful consequence actually caused by the wrongdoer’s wrongful,
curable act should he be held liable for.
In most cases of delict the harm for which the wrongdoer is to be held
liable falls within the limits of his liability, so that it’s unnecessary to
examine legal causation.
Normally legal causation is only a problem where a whole chain of

remote consequences result from the wrongdoers conduct and where
it’s alleged that he shouldn’t be held liable for all the consequences.
The limits of liability should be determined in respect of every

delictual claim and the fact that this determination in most cases
need not be made expressly shouldn’t lead one to believe that legal
causation is relevant only in exceptional cases.
Legal causation as an independent element arises where it appears

that the wrongdoers conduct was wrongful and culpable with
reference to at least certain requirements.
Question: What criteria should be used to determine legal

causation?
THE FLEXIBLE APPROACH:
S v Mokgethi:
A bank teller was shot between the shoulder blades and became a
paraplegic in a wheelchair – he went back to work later but failed to
shift positions in the chair.
As a result he suffered pressure sores and was re-admitted to
hospital.
6 months after the shooting he died as a result of the sores.
The AD held that the wounding of the deceased couldn’t be regarded
as the legal cause of death.
The court held that there is no single criteria for legal causation.
close enough relationship between the wrongdoers conduct and its
fairness.
This approach was confirmed in Bentley, Smit v Abrahams, and Collett.

AD has expressed itself in favor of the flexible approach.
ADEQUATE CAUSATION:
According to this theory a consequence which has been caused by the

wrongdoer is imputed to him if the consequence is adequately
connected to the conduct.
It’s adequate if according to human experience in the normal course of
events the act has a tendency to bring about that type of consequence.
Ask: was the damage reasonably to be an expected consequence of the

act – did the damage fall within the field of protection.
(S v Daniels)
DIRECT CONSEQUENCES:
According to this theory an actor is liable for all the direct

consequences of his negligent conduct – liability isn’t limited to
foreseeable consequences.
Because this could lead to an exceptional wide liability it’s been
limited to direct physical consequences.
Also it was required that the immediate nature of the nexus between
the cause and the consequence must not be broken by a novus actus
interveniens.
The wide effect of the direct consequences test has been limited by the
foreseeable plaintiff doctrine = an actor doesn’t act negligently to a
plaintiff unless it’s reasonably foreseeable that the particular plaintiff
will be injured.
The actor isn’t liable for an unforeseeable plaintiff, even thought the
harm has flowed directly from the actors conduct and despite the fact
that it’s foreseeable that other people may have been injured.
In 1961 the direct consequences theory was rejected in Overseas

Tankership Ltd in favor of the principle that only foreseeable damage
was recoverable.
Van der Walt argues that the direct consequences theory finds
application with regard to the causing of personal injury where the
wrongdoer is held liable for those consequences, which weren’t
reasonably foreseeable (egg-skull cases).

FAULT (FOR LEGAL CAUSATION)
The wrongdoer is liable only for those consequences in respect of

which he had fault.
Liability must be limited to consequences willed by a person while
aware of their wrongfulness and the wrongful consequences that he
should have foreseen and prevented.
Supporters of the fault-in-relation-to-the-loss approach declare that

legal causation as an independent element of delict is unnecessary –
the question of fault and imputability of loss are disposed off
simultaneously – apply where the concrete approach is followed.
Intention and negligence cannot serve as a satisfactory criterion for

legal causation.
Intention as a criterion for legal causation:
Van der Merwe – wrongdoer is liable for those consequences covered

by his intent and the intended consequence can never be too remote.
Thus: consequences caused intentionally can never fall outside the

limits of liability.
E.g. X knows that his aunt (Y) has nominated him, as her sole heir in
her will. He becomes impatient waiting for her to die a natural death
so that he can get her assets. So he persuades her to take a journey in
her car from Durban to Johannesburg, hoping she might die in an
accident.
Y takes the journey loses control of her car and dies.
There is a factual causal nexus between X’s conduct and Y’s death.
In terms of this theory:
1. Intention in the form of dolus eventualis is present

2. Factual causation is present – But for
3. Applying the fault theory – X foresaw the possibility that his
conduct would lead to her death and reconciled himself to it,
while knowing it was wrongful
4. Therefore – because he has intention, he is liable and there is
no need to look into legal causation
5. Majority of the jurists argue that it’s unreasonable in the
circumstances to hold X liable for Y’s death.

Negligence as the criteria for legal causation
Negligence cannot serve as the test for determining the imputability of

damage. The test for negligence is whether the reasonable man, in the
same position as the wrongdoer would have foreseen and prevented
either injury to another in general (abstract) or the consequences
concerned (concrete).
Boberg: the question of legal causation is answered differently,

depending on whether you use the abstract or concrete approach.
Concrete: X is only negligent if the specific kind of harm suffered was

So therefore it’s unnecessary to determine legal causation, since
negligence has already been determined with regard to a specific
consequence.
The concrete test for wrongfulness and negligence, contain all the
elements necessary to keep liability within acceptable limits.
Abstract: X is negligent if any general damage at all was reasonably

foreseeable. Therefore to see if X is liable for the specific consequence
we look to other theories for legal causation.
REASONABLE FORSEEABILITY:
Reasonable foreseeability must not be seen as the single decisive

criteria for establishing liability.
Case law doesn’t offer a clear picture of the content of the

reasonableness criteria.
Liable for damage that was reasonably foreseeable.
Van der Walt: it’s not necessary that all consequences of the
defendants conduct should be foreseen – only the general nature of
harm must have been reasonable foreseeable.
The precise extent of the occurrence need not have been reasonably
foreseeable.
Van Rensburg agrees.
This is the most favorable approach except for the flexible approach.

NOVUS ACTUS INTERVENIENS
= New intervening act

It’s an independent event, which after the wrongdoer’s act has been
concluded, either caused or contributed to the consequences
concerned.
The question now arises as to what extent such an event influences

the possible liability of the wrongdoer.
Where a novus actus interveniens extinguishes the causal connection
between the conduct of the wrongdoer and the consequence, with the
result that the wrongdoers act can no longer be considered to be a
factual cause of the consequence = actor goes free.
It’s more difficult to determine when the new act influenced the result
to such an extent that the result should no longer be imputed to the
actor, although his conduct remains the factual cause of the result.
The novus is to limit the liability of the wrongdoer and plays an

important part in legal causation.
In each case it will have to be determined within the framework of the
relevant imputability test, whether the novus has had the effect of
severing the legal nexus with the result that the consequence
shouldn’t be imputed to the actor.
A novus may be brought about by the (culpable) conduct of the

plaintiff himself, by the culpable conduct of a 3rd party, or by natural
forces like the wind and rain.
An event will qualify as a novus, only if the event WASN’T
REASONABLY FORESEEABLE.
If the intervening cause was foreseeable at the moment of the act,

such an event may not be considered to be a novus which may
influence the imputability of harm to the actor.
Gibson: a distinction should be drawn between the party negligent

prior to the harmful event and any negligence after the event.
Mokgeti: the question was whether the victims own conduct had
broken the causal nexus between the accused's wrongful act and the
result in question.

principle through which it could in all cases be established whether
the victim’s omission would interrupt the required legal causation.


1. The victim fails to seek medical attention and that’s the cause of
death
3. Where failure to seek medical attention is unreasonable
Alston v Marine Trade Insurance Co Ltd:

The plaintiff suffered a brain injury from a car accident, which was
caused by the negligent driver of a car that was insured by the
defendant. As a result of the brain injury the plaintiff suffered from
manic depression for which he was treated – according to medical
knowledge at the time, there was no reason to think that the
medication he was taking presented any danger.
The plaintiff ate some cheese after taking the medication and suffered
a stroke. It appeared after that the eating of cheese after taking this
medication (parstellin) might lead to death.
Mafesa:
The plaintiff broke his leg in a car accident because of the negligence
of another driver who was insured by the defendant.
He was discharged from hospital and slipped on his crutches and
broke his leg again. His medical expenses increased.
Russel:
Deceased sustain brain injuries causing depression in a car accident.
The deceased then committed suicide. The defendant claimed that the
suicide (which was an informed and voluntary act) was a novus actus
intervenes, breaking the causal chain between the accident and the
deceased’s death. Chetty AJP held that even though the decead’s
death was due to a mental disability and therefore was probably not
intentional, it cannot be a novus actus intervenes. This follows the
English law that a person who is not of sound mental ability, cannot
perform an act.

EGG-SKULL CASES = talem qualem rule
Egg-skull cases arise when the plaintiff, because of one or other

psychological or financial weakness, suffers more serious injury or
loss as a result of the wrongdoers conduct than would have been the
case if the plaintiff didn’t suffer from such a weakness.
Most jurists agree = the wrongdoer should also be liable for the harm,
which may be ascribed to the weaknesses concerned = you take your
victim as you find him.
Van Rensburg – is of the opinion that as a result of the particular

circumstances present, the precise manner in which the consequence
occurs need not be foreseeable with the same degree of probability
which applies in normal cases.
Van der Merwe – finds that the thought “you must take your victim as
you find him” is rejected in so far as the reasonable person wouldn’t
have foreseen the consequences concerned and the injured party
should bear the loss himself.
The most acceptable approach is the flexible criterion for legal

causation as illustrated in Abrahams.
The basic question isn’t whether the damage was a direct
consequence or reasonably foreseeable BUT whether in light of all the
circumstances the damage should be imputed to the wrongdoer.
E.g., Wilson v Birt:

Plaintiff was injured when a poll fell on his head – earlier the plaintiff
was stabbed in the head and had to have a piece of his skull removed.
Therefore the poll caused more damage than it otherwise would.
Court decided: defendant was liable for the full extent of the injury,
despite the fact that the injury may have been attributed by a weak
spot on the plaintiff’s head.

DAMAGE
Damage is the wrongful and culpable act, which has a harmful

consequence – the element of damage is fundamental to a delictual
action for damages.
The compensatory function of delict:
1. Compensation for damage: damage is the monetary equivalent

of damage awarded to a person with the object of eliminating as
fully as possible his past as well as future patrimonial damage
and where applicable non-patrimonial damage – money is
intended to be the equivalent of damage.
2. Satisfaction: if damage is incapable of being compensated

because money cannot be the true equivalent of the impaired
interest, satisfaction becomes relevant. Satisfaction implies
reparation of damage in the form of injury to personality by
effecting retribution for the wrong suffered by the plaintiff and
by satisfying the plaintiff’s and the community’s sense of
justice. It operates by the defendant being ordered to pay a sum
of money to the plaintiff.
Definition of damage:
Damage is the diminution, as a result of a damage-causing event, in

the utility or quality of a patrimonial or personality interest in
satisfying the legally recognized needs of the person involved.
Damage includes patrimonial as well as non-patrimonial loss.
Patrimonial loss:
Definition: is the diminution in the utility of a patrimonial interest in

satisfying the legally recognized needs of the person entitled to such
interest. It can also be seen as the loss or reduction in the value of a
positive asset in someone’s patrimony.
A person’s patrimony (estate):
For example, where an attorney’s negligence regarding execution of a

will has a result that Y is no longer the sole heir as intended by the
testator.

Union Government v Warneke:

Patrimony was defined as a universitas of rights and duties
a. Positive elements: real rights, immaterial property rights and
personal rights. The monetary value of such rights is
determined by the market value of the object in question as well
as any limitation on such right.
b. Negative elements: debt, which someone incurs. Someone’s
patrimony is reduced by the creation of a debt.
Ways in which patrimonial loss is caused:
1. Loss of patrimonial element: property is destroyed, a patrimonial

right in respect thereof is lost and a person’s patrimony
diminishes in value.
2. Reduction in the value of a patrimonial element: where the
object of a patrimonial right is damaged, the utility of such right
is also reduced.
3. The creation or increase of a debt, the delay in getting a benefit
and the creation or acceleration of an expectation of a debt.
Forms of patrimonial loss:

a. Damnum emergens and lucrum cessans:
Damnum emergens – all other forms of damage used to refer to
damage suffered up to the date of the trial.
Lucrum cessans – loss of profit, but also prospective loss.
b. Damage to property and pure economic loss.
c. Direct and consequential loss – direct loss is the immediate
result of a damage-causing event and consequential loss is the
loss which flows from the direct loss
d. General and special damage – general damage is presumed to
flow from an unlawful act and special damage is loss i.r.o.,
which the presumption doesn’t apply and has to be specially
pleaded and proved.
Assessment of patrimonial damage:
Sum formula approach:

This is a comparative test: in terms of this approach damage exists in
the negative difference between the plaintiffs actual patrimonial
position as it exists after the damage-causing event and the
hypothetical patrimonial position that would have existed had the
damage-causing event not occurred = current position compared to a
hypothetical position.
The reason why the hypothetical patrimonial position of the plaintiff is

used is to prove the prospective damage.

A concrete concept of damage:
Case law doesn’t always accept the sum formula approach. The AD in
one occasion held that: the difference between the patrimonial
position of the plaintiff before the unlawful act and the actual position
after.
This is the same as Van der Walt – what must be compared is what is
and the current position shouldn’t be compared with a hypothetical
position which would have existed had the delict not been committed.
Time for assessment of damage:
The date of the commission of the delict is the earliest date on which
all the elements of delict are present.
However if all the elements of delict are present on the date on which
the 1st damage occurred – use that date.
Prospective patrimonial damage (lucrum cessans):
The most important reason why assessment of damage in regard to

prospective loss is relevant is because of the once and for all rule. In
terms of this rule a plaintiff, who claims damages on a specific cause
of action, has only one chance to claim damages for all the damage
suffered as well as all prospective loss.
Definition: prospective damage is damage in the form of patrimonial

loss which will, with a degree of possibility, materialize after the date
of assessment of damages resulting from an earlier damage causing
event.
Nature of future loss:
Prospective damage literally manifests itself in money or otherwise

only in the future. It’s basis is to be found in the impairment of the
plaintiff’s present interests.
Forms of prospective loss:
1. Future expenses on account of the damage-causing event

2. Loss of future income
3. Loss of business or professional profit
4. Loss of prospective support
5. Loss of chance to gain benefit
A claim cannot be instituted merely to recover damages for

prospective loss since the cause of action only exists if some damage
has already been caused.

The once and for all rule:
In claims for compensation and satisfaction arising out of a delict the

plaintiff must claim damages for all the damage already sustained or
expected in the future in so far as its based on a single cause of action
The rule has practical implications:

1. Prescription in regard to the claim for damages commences as
soon as the cause of action arises and the debt in respect of
payment of damages is claimable = all the elements of delict are
present and the plaintiff is aware of or should reasonably be
aware of the identity of the debtor and the facts of the cause of
action.
2. A plaintiff who has sued with or without success for part of his
damage cannot thereafter sue for another part, if both claims
are based on a single cause of action.
Exceptions to the rule:

a. Where an act causes a nuisance, a claim may be instituted
each time the nuisance causes damage
b. In subsistence cases, where a person causes damage through
unlawful excavation, there’s a cause of action every time that
damage occurs and the plaintiff isn’t expected to claim once
and for all.
c. In the case of a continuing wrong which causes damage.
The collateral source rule and compensating advantages (res inter

alios acta):
A damage-causing event often not only causes loss but also results in
the plaintiff receiving some benefit.
Suppose X is negligently injured by Y and has to incur R1000 medical

expenses. However X’s aunt Z feels sorry for him and donates R1000
to him.
What role if any does the receipt of R1000 from Z play in the
assessment of X’s damages and the damages that Y has to pay?

So positive law made the following:
The following benefits which the plaintiff gets on account of his loss
aren’t taken into account in reducing his damages:
1. Benefits in terms of indemnity insurance and non-indemnity

insurance (life insurance)
2. Benefits from a medical fund or sick leave
3. Benefits in terms of the contractual right of an owner-seller of
property
4. Insurance money and pension payable to dependents whose
breadwinner has been killed
5. Donations
6. Discretionary payment of pension benefit to a person who has
been injured
7. Earning capacity of a widow who claims loss of support caused
by the death of her husband.
Benefits which the plaintiff has received or may receive must be taken
into account in reducing his damages:
1. Benefit of an injured person of receiving medical treatment free

of charge in a provincial hospital
2. Marriage prospects of a widow who claims loss of support
3. Savings on income tax due to loss of income
4. The amount which the plaintiff has received from the liability
insurer of the defendant
5. The plaintiffs possible saving on living expenses on account of
his injuries
6. Accelerated benefits from the estate of the deceased
breadwinner.
MITIGATION OF LOSS
The plaintiff cannot recover damages for a loss which is the factual
result of the defendants conduct, but which could have been
prevented if the plaintiff had taken reasonable steps.
A failure to ensure that damage doesn’t accumulate can be seen as a

failure by the plaintiff to take reasonable steps to limit the initial loss
or an omission to prevent further damage.
a. Plaintiff is obliged to take all reasonable steps to limit the

damage caused by the defendant’s delict. A plaintiff who fails to
mitigate his loss cannot recover damages in respect of the loss
he could reasonably have prevented.
b. A plaintiff, who has taken reasonable steps to mitigate his loss,
may also recover damages for loss caused by such reasonable
steps.

c. Where the plaintiff has reduced damages by taking reasonable

steps, the defendant is only liable to compensate for the actual
loss.
d. The onus of proving that the plaintiff didn’t properly fulfill his
duty rests on the defendant.
NON-PATRIMONIAL DAMAGE:
Definition: non-patrimonial damage is the diminution as a result of

a damage-causing event, in the quality of the highly personal interests
of a person in satisfying his legally recognized needs but which doesn’t
effect his patrimony = physical-mental integrity, liberty, reputation,
dignity, privacy, feelings.

DELICTUAL REMEDIES
South African law rests on 3 principles:

2. actio inuriarum
Actions:
Patrimonial damage (damnum inuria datum): damages for the

wrongful and culpable (negligence/intention) causing of patrimonial
damages are claimed = Actio legis aquiliae.
Injury to personality: satisfaction for the wrongful and intentional

injury to personality = actio inuriarum.
Action for pain and suffering: compensation for injury to personality

as a result of the wrongful and negligent/intentional impairment of a
bodily or physical-mental integrity is claimed.
The interdict:
Delictual actions are directed at compensation for patrimonial damage

or the impairment of personality. There is also an important remedy
that doesn’t aim at compensation, but with which a person can avert
an impending wrongful act or prevent the continuation of a wrongful
act that has already commenced = interdict.
Prohibitory interdict: prohibits the wrongdoer from committing a

wrongful act at all or from continuing with a wrongful act.
Mandatory interdict: requires positive conduct on the part of the

wrongdoer to terminate the continuing wrongfulness of an act that
has already been committed.
The courts state three requirements for granting an interdict:

1. There must be an act by the respondent
2. The act must be wrongful
3. No other remedy must be available to the applicant.
Exclusionary clauses:
Parties to a contract can restrict their liability through exclusionary

clauses.
The precise restriction on the wrongdoer’s liability will depend on the
interpretation of the clause concerned and such interpretation will
influence the question of what remedies the prejudiced party has at
his disposal.

Prescription of Remedies:
According to the Prescription Act, a delictual debt prescribes (and the

delictual action is also extinguished) three is after is originated (note
that in terms of the RAF, the prescription periods will differ between
hit and run accidents, and those accidents where the wrongdoer is
known). Prescription begins the moment all the elements of a delict
are present.
JOINT WRONGDOERS
Damage can be caused by a single wrongdoer but it can also be

caused by more than one wrongdoer = joint wrongdoers
Presently the position is regulated by the Apportionment of Damages

Act 34. The act abolishes the common law distinction between joint
wrongdoers and concurrent wrongdoers (act independently)
Joint wrongdoers are now defined as persons who are jointly and
severally liable in delict for the same damage.
A person may thus only be sued as a joint wrongdoer if he was indeed

delictually liable as against the plaintiff.
If joint wrongdoers comply with this requirement, the Act is applicable
irrespective of whether they acted negligently or intentionally.
Maphosa v Wilke: the defendant negligently drove his truck into a

stationary bus. The driver of the bus was also negligent.
The plaintiff, the defendant’s passenger was injured and he instituted
a claim. On the ground of the bus driver’s negligence, the defendant
joined both the owner (the employer of the bus driver) and the insurer
of the bus as 3rd parties (joint wrongdoers).
The court had to decide whether the last mentioned two parties could
be joint wrongdoers and it found that they could.
In Lloyed-Grey case: it was held that the Act is also applicable where
one joint wrongdoer acts intentionally and the other negligently.
Joint wrongdoers = the plaintiff has the right to sue whichever

wrongdoer he chooses for the full amount of the damages (they are in
solidum liable).
Joint wrongdoers can be sued in the same action. If so the court can
order that the joint wrongdoers shall be jointly and severally liable
and that payment by one of them shall absolve the others from any
liability to the plaintiff.

If the court is satisfied that all the joint wrongdoers are before it, it
may apportion the damages among them on the basis of their relative
degrees of fault and may give judgment against every wrongdoer for
his part in the damages. A joint wrongdoer has a right of recourse
against the other if he was made to pay the full amount of the
damages.

SPECIFIC FORMS OF PATRIMONIAL LOSS
Psychological lesions (emotional shock)
A psychological lesion is described as any recognizable harmful

infringement of the brain and nervous system of a person.
The existence of the lesion should be proved by supporting psychiatric
evidence.
The injury can be sustained in various ways: nervous shock, fright or
other mental suffering.
Bester v Commercial Union:

The AD said that the impairment of personality and patrimonial loss
resulting from psychiatric injury or emotional shock caused
wrongfully and intentional or negligently, founds the action for pain
and suffering and the actio legis aquiliae.
Prior to Bester the SA law of delict lacked clear principles in this field.
This resulted in two restrictions on liability for emotional shock:
1. The shock must have originated from a physical injury.
2. The aggrieved party himself must have been in personal danger
of being physically injured.
The 1st concerns wrongfulness and the 2nd negligence or legal

causation.
Wrongfulness: the requirement of physical harm – infringement to the

right to physical integrity, which is wrongful – was rejected in Bester.
According to Bester the brain and nervous system are as much a part
of the physical body as an arm and leg. As a result a physical injury
isn’t absolutely necessary to found liability.
Negligence and legal causation: the requirement of personal danger

was also rejected in Bester and replaced by reasonable foreseeability
of harm (with regard to emotional shock).
In order to establish negligence, the reasonable foreseeability and

preventability of the psychological lesion must be ascertained.
However where the emotional shock is a further consequence of the
wrongdoer’s already established negligent act, the question of legal
causation is at hand, namely whether the wrongdoer’s negligent act
can be regarded as the legal cause of the psychological lesion.

Barnard v Santam Bpk:

The plaintiff sustained serious nervous shock when she heard of her
son’s death in a collision caused by the negligence of the driver of 1 of
the cars.
The supreme court of appeal incorrectly determined the driver’s
negligence with regard to the mother’s shock as well.
In the application of the foreseeability test, it doesn’t make a

difference whether the test serves to establish negligence or legal
causation- this must be determined in every case, taking in the
circumstances that are relevant.
The following factors play a role in this regard:

1. The fact that the psychological lesion resulted from physical
injury
2. The fact that the plaintiff was in personal danger of being
physically injured
3. The fact the plaintiff was informed of the death or injury of a
close relative
4. The fact the plaintiff personally witnessed the death or injury of
a close relative.
Once the court has found that serious emotional shock was
reasonably foreseeable, the wrongdoer is then liable for any
detrimental physical or mental consequence – regardless of whether
they were foreseeable as well (talem qualem rule applies – you take
your victim as you find him).

INJURY OR DEATH OF ANOTHER
Requirements for loss of support:

1. The deceased must have been under a duty to support the
dependent
2. Dependent must have had a right to such support
Action for non dependents:

❖ Executor: for funeral and medical expenses
❖ Heirs and family for funeral expenses
❖ Persons having a duty of support
❖ Master and domestic servant
PURE ECONOMIC LOSS:

The Aquilian action is available to claim damages for pure economic
loss.
1. Pure economic loss may comprise patrimonial loss that doesn’t

result from damage to property or impairment to personality.
Greenfield engineering works: where A suffered financial loss
because a cheque that was sent to him by B was stolen and as a
result of the fact that the cheque hadn’t been crossed, the thief was
able to open a bank account withdraw the money and disappear
with it.
2. Pure economic loss may also refer to financial loss that does flow
from the damage to property or impairment to personality, but
which doesn’t involve the plaintiff’s property or person.
Coronation Brick: A negligently damaged cables that provided
electricity to B’s factory and B suffers loss of production.
3. Pure economic loss includes patrimonial loss that’s the result of
damage to property or injury to personality but where the
defendant didn’t cause the loss or injury.
Kadir v Minister of law and order: as a result of the negligence of A,
B’s motorcar left the road and he was injured. 2 constables who
arrived on the scene failed to take any particulars concerning the
identity of A and as a result of the omission B couldn’t claim from
the MMF for his damage and suffered pure economic loss.
To found liability for pure economic loss, the qualification is that the
wrongdoers conduct must comply with the general delictual
requirements.
Other specific forms of damnum iniuria datum:

1. Injury or death of another
3. Interference with a contractual relationship
5. Manufacturers liability

SPECIFIC FORMS OF PERSONALITY INFRINGEMENT

(inuria)
For example, the right to fama or good name
Defamation:
Definition: is the intentional infringement of another person’s right to his

good name. Defamation is the wrongful, intentional publication or words
or behavior concerning another person, which has the effect of injuring
his status, good name or reputation.
Elements of inuria:
1. Act = publication of words or behavior
2. Injury to personality = the defamatory effect of the words or
behavior
3. Wrongfulness = the infringement of the personality right to good
name
4. Intent
Note: It is not an element that deformation be false. True words can

also be actionable in certain circumstances.
Elements:
Publication (act):
Since good name, respect or status which a person enjoys in society

relates to the opinion of others concerning him and defamation
consists of the infringement of his good name, its self-evident that
defamation will only arise if the defamatory statement or behavior has
been publicized to a 3rd person.
Without such publication the opinion of others with regard to the
person involved cannot be lowered.
Publication is necessary for defamation.
This requirement is satisfied if the words or conduct are made known

or disclosed to at least one person other than the plaintiff himself.

Important qualifications:
1. Courts don’t consider the disclosure of defamatory words or
behavior to an outsider who’s unaware of the defamatory
character or meaning thereof in relation to the plaintiff as
publication.
2. The communication of defamatory words concerning a 3rd party
by one spouse to the other, doesn’t constitute publication
according to the decision in Bowles.
Once publication is established the plaintiff must prove that the

defendant was responsible for the publication – as a general rule the
publication is attributed to the defendant if he was aware or could
reasonably have expected that an outsider would take cognisance of
the defamation.
Not only the person from whom the defamatory remark originated but
also any other person that repeats, confirms or draws attention to it is
responsible.
Defamatory effect: wrongfulness:
Wrongfulness with regard to the defamation lies in the infringement of

a person’s right to his good name.
When determining wrongfulness, the question whether the good name
of the person involved has in fact been infringed is irrelevant.
The only relevant question is that in the opinion of the reasonable
person with normal intelligence and development, the reputation of
the person concerned has been injured.
The following principles apply in respect of this test:

1. The reasonable person is fictional, normal, well-balanced right
thinking person.
2. Reasonable person is a member of society in general and not
only of a certain group.
3. The reaction of the reasonable person is dependent on the
circumstances of a particular case
4. Verbal abuse is in most cases not defamatory because it
normally doesn’t injure a persons good name
5. Words are prima facie of according to the ordinary meaning
defamatory or not.
6. If the words have an ambiguous meaning – the 1 defamatory
and the other not – then the meaning most favorable to the
defendant must be followed.

Grounds of justification:
A plaintiff, who proves that a publication is defamatory and that it

refers to him, provides only prima facie proof of wrongfulness.
A presumption of wrongfulness then arises which places the onus on
the defendant to rebut it; he can do this by proving a ground of
justification:
1. Privilege: This exists when someone has a right, duty or interest

to make specific defamatory assertions and the people to whom
the assertions are publicized have a corresponding right, duty
or interest to learn of the assertions.
Privilege grants a person the legal right to injure another’s good
name and in doing so sets aside the prima facie wrongfulness of his
conduct.
Absolute privilege: defendant is protected absolutely, in the

sense that liability for defamation is excluded.
Relative privilege: defendant enjoys conditional protection; this

protection falls away as soon as the plaintiff proves the
defendant exceeds the bounds of privilege.
1. Discharge of a duty or furtherance of an interest: person

has a legal, moral or social duty or legal interest in
making defamatory assertions to another, who has a duty
or interest to learn of the assertions. A father and his
daughter with regard to the character of her fiancé.
2. Judicial or quasi-judicial proceedings – medical and
dental council
3. Privileged reports
2. Truth and public interest: The prima facie wrongfulness of the

defendants conduct will be cancelled if he proves that the
defamatory remarks were true and in public’s interest. The
defendant only has to prove that the remarks are substantially
true.
3. Fair comment: The prima facie wrongfulness of the defamatory

publication may be set aside if the defendant proves the
defamation forms part of a fair comment on facts that are true
and in the public interest
4 Requirements:
1. The defamation must amount to comment
2. The comment must be fair
3. The facts on which the comment is based must be true
4. These facts must be in public’s interest.

Grounds Excluding Fault:
1) Animus inuriandi (negligence): This is accepted as a requirement

for defamation – negligence is therefore insufficient to hold the
wrongdoer liable.
National Media ltd v Bogoshi: the court introduced negligence as
the basis of liability of the press for defamation.
2) Mistake: person is unaware of the wrongfulness of his
defamatory publication, because he bona fide believes that his
conduct is lawful. Consciousness of wrongfulness, an essential
element of intent, is absent and therefore intent is also absent
as a result of his mistake.
3) Jest: if the defendant proved that he published the defamatory
words in jest, he should be able to rebut the presumption of
animus = reason that his will wasn’t directed at the
infringement of the plaintiffs good name. The courts don’t follow
this approach = courts regard the reasonable bystander should
regard the words as a joke.
Rights relating to dignitas (other forms of rights)
1. The right to dignity

2. Right to privacy
3. Right to identity
4. Right to feelings
5. Breach of Promise (adultery/abduction/enticement/
harbouring)

FORMS OF LIABILITY WITHOUT FAULT

(Formulated by an English case: Rylands v Fletcher)
Damage caused by animals
1) Actio de pauperie:
The prejudiced person may claim damages from the owner of a

domestic animal, which has caused damage.
Fault on the part of the owner ISNT a requirement for liability.

1. The defendant must be the owner of the animal when the
damage is inflicted.
3. The animal must act contrary to its own nature when
inflicting damage – as a rule an animal doesn’t act contrary
to its own nature if it’s reacting to external stimuli –
defences: vis major, culpable conduct on the part of the
prejudiced person and provocation.
4. The prejudiced person or his property must be lawfully
present at the location when the damage is inflicted.
2) Actio de Pastu:
Damages are claimed from the owner of an animal, which caused loss,
by eating plants.
Strict liability on the part of the owner.
Requirements:
1. The defendant must be the owner of the animal when the
damage is caused
2. Animal must cause damage by eating plants
3. The animal must be of its own volition when causing the
damage.
3) Actio de feris:
In terms of an edict of the aediles curules, the bringing of wild animals

onto or into a public place was prohibited. If a person broke this rule
and the animal caused damage to someone, the offender (who does
NOT need to be the owner) was liable. Problem: it is unclear whether
this action is still part of our law.
4) Vicarious liability:
Strict liability of one person for the delict of another.

The former is indirectly vicariously liable for the damage caused by
the latter.

Employer – employee:
Where the employee acting within the scope of his employment

commits a delict, his employer is fully liable for the damage.
3 requirements:
1. There must be an employer-employee relationship at the time
the delict was committed
2. The employee must commit a delict
3. The employee must act within the scope of his employment
when the delict is committed
The employee acts within the scope, if he acts in the execution or

fulfillment of his duties in terms of the employment contract.
He acts outside the scope where he disengages himself completely
from his employment and promotes his own interests.
Rabie: an act done by a servant for his own interests, although

occasioned by his employment may fall outside the scope of his
employment and that in deciding whether an act of the servant does
so fall, some reference must be made to the servant’s intention.
The test is subjective.
– If there is a close link between the servants act for his own interest
and the business, the master may yet be liable = objective test.
The commission of a delict during the performance of a forbidden act

should be seen – if the forbidden act is connected to the general
character of the employers work and thus falls within the scope of his
employment, the employer would be vicariously liable.
Motorcar owner – motorcar driver:
Where a motorcar owner allows someone else to drive his car and the
driver negligently causes an accident, the owner is fully liable for the loss
provided that the following 3 requirements are met:
1. The owner must request the driver to drive the car or supervise
his driving
2. The vehicle must be driven in the interests of the owner
3. The owner must retain the right of control over the manner in
which the vehicle is driven.

PVL 3703
EXAM QUESTIONS
1. Name FOUR differences between a delict and a crime. (4)
DELICT CRIME
1. Protects private interests (private law) 1. Protects public interests (public law)
2. Aggrieved party institutes action 2. State prosecutes
3. Objective = claim damages as 3. Objective = punish criminal
compensation 4. Can have attempted crime
4. No attempted delict
2. Write brief notes on the similarities and differences between breach of contract and
delict. (4)
DELICT BREACH OF CONTRACT

1. Excludes non-fulfilment of a duty to 1. Breach = Non-fulfilment of a
perform (real right) contractual obligation to perform
2. Primary remedy = damages (personal right)
2. Primary remedy = performance of the
contract.
3. Name the THREE most important delictual actions and explain how they differ from
each other in respect of :
(a) the type of harm for which action is instituted and

(b) the form of fault usually required for the institution of each action. (9)

DELICTUAL ACTION TYPE OF HARM FORM OF FAULT

REQUIRED
Actio legis Aquiliae Damages for wrongful Intention or negligence
causing of patrimonial
loss(damnum iniuria datum)
Actio iniuriarum Satisfaction for wrongful Intention
injury to personality
Action for pain and Compensation for wrongful Intention or negligence
suffering impairment of a bodily or
physical-mental integrity
4. List TEN fundamental rights entrenched in chapter 2 of the Constitution which are
relevant to the law of delict. (5)
1. Religion
2. Speech
3. Life
4. Privacy
5. Property
6. Security
7. Education
8. Adequate housing
9. Good name
10. Dignity
7. Write brief notes on the indirect application of the Bill of Rights to the law of
delict. (5)
Is all private law rules, principles and those regulating law of delict – subject to Chapter 2 of the
Constitution (namely fundamental rights e.g. right to religion, life, dignity, etc.)
Indirect application is about delictual issues e.g. infringement of one of fundamental rights.
1st use indirect application before use direct application.

CONDUCT
1. Define conduct. (2)
Conduct is a voluntary human act or omission :

• Human – where an animal is used as an instrument a human act is still present. A juristic
person can act through its agents (e.g. company)and be held delictually liable for its actions.
• Voluntary conduct – act must have been performed voluntarily i.e. wrongdoer must have
had control over his muscular movements.
2. Write notes on conduct or act as an element of delict. Include a brief discussion on the
most important defence excluding this element. (10)
Conduct is a voluntary human act or omission. With a human act, a person may use an animal as
an instrument. Juristic persons act through their organs and may be held delictually liable.
Conduct must be voluntary, this means that the conduct is susceptible to the control by the will
of the person involved, and that the person has the mental ability to control his muscles and
movements. This does not mean that he willed or desired his conduct or that the conduct is
rational or explicable.
Conduct can consist of a commissio or an omissio. Of importance is the fact that liability for an
omission is more restricted than a positive act. The law is hesitant to find a legal duty to act
positively.
Defence excluding conduct
Defendant may argue that the conduct complained of was not voluntary i.e. it was mechanical –
he then raises the defence of automatism.
Following conditions may cause a person to act involuntarily: absolute compulsion; sleep;
unconsciousness; a fainting fit; epileptic fit; serious intoxication; blackout; reflex movements; heart
attack; hypnosis; emotional pressure or metal disease.
The situation in which the person acts involuntarily must not have been created intentionally to
harm another.
Defendant has the onus to prove his defence on a balance of probabilities.
In Molefe v Mohaeng the court decided differently – SCA decided that the defence of automatism
does not have any effect on the burden of proof. Appellant must prove that respondent acted
negligently and that includes proof that the negligent conduct on which it is based was indeed
voluntary conduct.
3. X is involved in an accident whilst driving his car. When he regains consciousness, he

has no recollection of how the accident took place. He is hospitalised and during
treatment for head injuries, the doctors determine that he suffered an epileptic fit at the
time of the accident. The car of Y, the other person involved in the accident, is badly
damaged.
Can it be said that it was an act on the part of X that damaged Y’s car ?

Will it make a difference to your answer if X had been receiving treatment for epilepsy
before the accident, but had failed to take his medicine for several days before the
accident took place ? Discuss. (10)
Conduct is a voluntary human act or omission :

• Human – where an animal is used as an instrument a human act is still present. A juristic
person can act through its agents (e.g. company) and be held delictually liable for its
actions.
• Voluntary conduct – act must have been performed voluntarily i.e. wrongdoer must have
had control over his muscular movements.
Defence of automatism :
Voluntary conduct on the part of defendant is a requirement for delictual liability.
Defendant could argue that the conduct complained of does not satisfy requirement of
voluntariness.
This is where someone acted mechanically (incapable of controlling his bodily movements) :
• Sleep (Dhlamini)
• Unconscious
• Fainting fit
• Absolute compulsion (X grabs Ys hand and stabs P using Y’s hand)
• Serious intoxication
• Black out
• Epileptic fit (Victor)
If these are present a person is incapable of controlling his bodily movements = purely mechanical
action and that person raises the defence of automatism – which must be proved ona balance of
probabilities by the defendant (onus on the defence).
Not an act on the part of X because he was acting out in a mechanical fashion and was not
capable of controlling his bodily movements.
Failure to take epilepsy medication

Yes, it would make a big difference because defence won’t succeed if defendant intentionally
created the situation in which he acts voluntarily in order to harm another (action libera in causa).
Defendant may not successfully rely on this defence if he was negligent in his automatic conduct
– reasonable person would have foreseen the possibility of causing harm while in a state of
automatism.
Thus X will be delictually liable for the damage of Y.

4. Peter and Sue go to a party. At the party Peter drinks a whole bottle of rum. Sue
notices that he drinks too much but still accepts a ride home from him. Sue forgets to
buckle up. On the way home, Peter loses control of the car and hits a tree. Sue suffers
neck & back injuries. She wants to recover medical expenses from Peter. Peter raises
a number of defences, one of them being automatism.
Will he succeed in this defence ? Refer to case law and legislation (10)
Conduct is a voluntary human act or omission. With a human act, a person may use an animal as
an instrument. Juristic persons act through their organs and may be held delictually liable.
Conduct must be voluntary, this means that the conduct is susceptible to the control by the will
of the person involved, and that the person has the mental ability to control his muscles and
movements. This does not mean that he willed or desired his conduct or that the conduct is
rational or explicable.
Conduct can consist of a commissio or an omissio. Of importance is the fact that liability for an
omission is more restricted than a positive act. The law is hesitant to find a legal duty to act
positively.
Defence excluding conduct
Defendant may argue that the conduct complained of was not voluntary i.e. it was mechanical –
he then raises the defence of automatism.
Following conditions may cause a person to act involuntarily: absolute compulsion; sleep;
unconsciousness; a fainting fit; epileptic fit; serious intoxication; blackout; reflex movements; heart
attack; hypnosis; emotional pressure or metal disease.
The situation in which the person acts involuntarily must not have been created intentionally to
harm another.
In respect of sane automatism defence, (not mental illness) onus is on plaintiff to prove defendant
acted voluntarily and therefore not mechanically. Sane automatism doesn’t mean there’s no
voluntary act whatsoever by the defendant which caused damage, but only that conduct in
question wasn’t voluntary.
Defendant may not successfully rely on this defence if he was negligent in his automatic conduct
– reasonable person would have foreseen the possibility of causing harm while in a state of
automatism.
Peter won’t succeed in this defence – he can’t raise it due to the fact that he acted voluntarily. He
acted voluntarily in the fact that he knew that he was going to drive a car after the party, but drank
anyway.
5. John and Mary go to a party. In the course of the evening, John consumes a whole bottle
of rum. Mary notices that John drinks too much, but she still accepts an offer from him to
drive her home. On the way to Mary’s house, John loses control over the car and collides
at high speed with a tree. Mary sustains back injuries for which she is hospitalised for a
period of 2 weeks. Mary wishes to recover her medical expenses from John.

Answer the following questions with reference to the above set of facts :
(a) What type of loss did Mary suffer ? (½)
Patrimonial loss.
(You could have also stated that Mary suffered non-patrimonial loss in the form of pain and
suffering but because the question states that she wishes to recover her medical expenses
from John, patrimonial loss was more correct)
(b) What delictual action can Mary therefore consider to institute against John ?(½)
Actio legis Aquiliae

(if you stated in (a) that Mary suffered non-patrimonial loss, your answer here must be the
action for pain and suffering)
(c) John avers that he didn’t act voluntarily for the purposes of delictual liability.
Identify his defence and briefly discuss the merits thereof. (4)
Automatism is the defence that the conduct complained of was done involuntarily. Conduct
is involuntary if a person acts mechanically, that is, he or she is incapable of controlling his
or her bodily movements. Serious intoxication may eliminate the voluntariness of conduct,
but the situation in which the person acts involuntarily must not have been created
intentionally to harm another, (action libera in causa). The defendant may also not
successfully rely on the defence of automatism where he was negligent with regard to his
automatic conduct. This will be the case where the reasonable man would have foreseen
the possibility of causing harm while in a state of automatism, for instance, where he drinks
alcohol whiles knowing or reasonably foreseeing that he will later drive a motor vehicle.
In the given set of facts, John consumes an entire bottle of rum. He was probably so drunk
that he was incapable of controlling his bodily movements and therefore acted involuntarily.
The reasonable man would, however, have foreseen that he might cause harm if he drinks
a bottle of rum while knowing or reasonably foreseeing that he will later drive a motor
vehicle, and John should also have foreseen this
(d) Assume that the court finds that John has acted. John now avers that Mary has
consented to the risk of injury. Discuss the merits of this defence. (6)
Consent to injury is a unilateral legal act which restricts the injured person’s rights – it may
be given expressly or tacitly and must be given before the prejudicial conduct. Prejudiced
person himself must consent.
Consent as a ground of justification exempts the wrongfulness on the part of the wrongdoer.
The consent must be given freely or voluntarily, and the person giving consentmust also be
capable of volition. This means that he must be mentally advanced enoughto realise the
implications of his conduct and have full knowledge of the extent of the possible harm. The
consenting party must also realise or fully appreciate what the nature or full extent of the
harm will be and must subjectively consent to the full extent of the prejudicial act. The
consent must be permitted by the legal order. Consent to bodily injury is normally contra
bones mores, unless the contrary is evident.

Nothing in the facts of this case indicates that Mary’s consent to the risk of her injuries
would be reasonable, and it will therefore be regarded as contra bones mores and will not
be accepted as a valid defence.
(e) Assume that the defence of consent to the risk of injury is rejected by the court. John
now avers that he isn’t accountable. Discuss the merits of his defence.(3)
A person is accountable (culpae capax) if he has the necessary mental ability to distinguish
between right and wrong and if he or she can also act in accordance with suchappreciation.
Intoxication may cause a person t lack the necessary mental capacity and not be
accountable. If John had been accountable at the stage when he started consuming
alcohol, his conduct may, however, still be regarded as negligent.
(f) Assume that John was indeed accountable. Did he act intentionally ? (3)
An accountable person acts intentionally if his will is directed at a result which he causes
while conscious of the wrongfulness of his conduct. In the question John did not act
intentionally because his will was not directed at the result he caused and he might also not
have been conscious of the wrongfulness of his conduct.
(g) Assume that John didn’t act intentionally. Did he act negligently ? Discuss briefly
with reference to case law. (4)
In Kruger v Coetzee the reasonable man test for negligence is stated: a person is negligent
if the reasonable man in his position, would foresee the reasonable possibility ofhis conduct
injuring another in his person or property and causing him patrimonial loss and would take
reasonable steps to guard against such occurrence and the defendant failed to take such
steps. In the question, John acted negligently.
(h) Assume that John did act negligently. John avers that Mary had contributory intent
in respect of her damage. Discuss the merits of this assertion and indicate what the
effect of successful reliance thereon would be. (8)
Mary’s conduct can only be regarded as intentional if it can be proven that she foresaw the
possibility that she could be injured, but nevertheless recklessly got into the car with John
(dolus eventualis), well aware of the possible wrongfulness of her conduct.
If it could be proven that Mary intentionally contributed to her own damages, the
Apportionment of Damages Act 1956 would be relevant – this Act only refers to ‘fault’.
In general, the term ‘fault’ refers to both intent and negligence. It would appear that the
legislature intended to make provision for only the defence of contributory negligence on
the part of the plaintiff and not for the defence of contributory intent, due to inter alia the
wording used in the long title and the heading of section 1.
(i) Assume that John’s defence of contributory intent fails. John now avers that since
Mary hadn’t fastened her seatbelt, she was contributory negligent in respect of her
own injuries. Discuss the merits of this defence with reference to King v Pearl
Insurance Co. Ltd and other relevant cases and indicate what the effect of
successful reliance thereon would be. (7)

In King v Pearl the court held that the plaintiff’s failure to wear a crash-helmet
while driving a scooter did not constitute contributory negligence.
Only negligence with regard to the damage-causing event, as opposed to the
damage itself, is considered for purposes for the Apportionment of Damages Act
– this approach was criticized in Bowkers.
In Vitoria the court held that the failure to wear a seat belt does constitute a
contributory negligence for purposes of the Act.
Effect of a successful reliance on a defence of contributory negligence is that an
apportionment of damages, in terms of the Apportionment of Damages Act must
be made in relation to each party’s relative degree of fault.
Contributory negligence of Mary is only relevant in so far as it has led to an increase
in her damage.
Therefore section 1(1) (a) applies only in respect of the damage for which Mary is
indeed also responsible. If Mary, for example suffered R10 000 damage ifshe had
indeed fastened her seatbelt, but R15 000 if she had not fastened it, only R5 000
will be subject to apportionment.
WRONGFULNESS
1. Write notes on the general criterion for wrongfulness, as well as two doctrines which
may be considered applications thereof. (10)
The general norm to determine whether a particular infringement is unlawful is the legal
convictions of the community or the boni mores. The boni mores test is an objective test based
on the criterion of reasonableness. The basic question is whether, according to the legal
convictions of the community and in the light of all the circumstances of the case, the defendant
infringed the interests of the plaintiff in a reasonable or unreasonable manner.
The doctrines that are practical applications thereof are :
(a) The infringement of a subjective right

Fundamental premise of this doctrine is that the infringement of such a right is wrongful. A
dual investigation is necessary:
• Has the subject-object relationship in fact been disturbed? (factual infringement)
• Was the infringement in a legally reprehensible way? (norm-violation)
A subjective right is therefore infringed when the relationship between the holder of a
right and the object of the right has been infringed in a legally reprehensible manner.

(b) Wrongfulness as a breach of a legal duty

Sometimes the infringement of a subjective right is not appropriate to determine
wrongfulness, e.g. where no clearly defined right exists for instance in misrepresentation
cases, cases of omission or pure economic loss. In instances like this, wrongfulness is
determined by asking whether the defendant has a legal duty to prevent loss. In general
there is no duty to prevent loss. The question is whether according to the boni mores or
legal convictions of the community there was a legal duty to act positively or to avoid pure
economic loss.
2. X forgets to warn Y that a cable is carrying an electric current. Y touches the cable
and sustains serious burns. Against Y’s actions for damages, X raises a defence
that he didn’t will or desire to harm Y and that he therefore didn’t act. Discuss the
merits of this defence. (2)
Conduct can be in the form of a commission or omission.

Liability for an omission is in general more restricted than liability for a positive act (commission)
– law is hesitant to find that there was a legal duty on someone to act positively and so to prevent
damage to another. But this must be distinguished from the case where a person fails to take
precautions against the occurrence of damage and his failure isn’t part of a positive act.
S v Russell has similar facts and accused was found guilty.
Therefore X should be held liable.
3. “Prior conduct is always a requirement in deciding whether an omission has

takenplace …”
Do you agree ? Discuss with reference to case law. (10)
Conduct is a voluntary human act or omission.

Liability for an omission – general rule : a person doesn’t act wrongfully for the purpose of law of
delict where he fails to act positively to prevent harm to another. There’s no absolute duty to
prevent loss.
Liability follows only if an omission was in fact wrong – where a legal duty rested on the defendant
to act positively to prevent harm from occurring and he failed to comply with that duty. Prior
conduct – a person acts prima facie wrongfully where he creates a new source of danger by
means of a commission and then fails to eliminate that danger, with the result that harm is caused
to another person.
Prior conduct isn’t a prerequisite for the existence of a legal duty – but at one stage this was the
only category where liability was imposed on a failure to act.

Municipality cases – yes, prior conduct is a requirement for liability for an omission only if it’s
reasonable.
Minister van Polisie v Ewels (policemen failed to prevent assault) – result in this case is that
you don’t need prior conduct and this was confirmed in Van der Merwe v Burger
4. Mrs. M, deep in thought, walks on a sidewalk. Too late she notices the presence of
a huge hole in the middle of the sidewalk. She falls into the hole and fractures a hip.
It transpires that the hole was dug by municipal workers to implement a new
sewerage system. Mrs. M wants to recover damages from the municipality. The only
precautionarymeasure taken by the municipality to protect the public was to cordon
off the hole with asingle red and white ribbon.
Apply the following questions with reference to this set of facts :
(a) The representative of the municipality avers that the municipality didn’t act for the
purposes of law, since no municipal officer willed Mrs. M’s injuries. Briefly discuss
the merits of this statement. (2)
Conduct can be in the form of a commission or omission. Liability for an omission is in

general more restricted than liability for a positive act (commission).
Law is hesitant to find that there was a legal duty on someone to act positively and so to
prevent damage to another. But this must be distinguished from the case where a person
fails to take precautions against the occurrence of damage and his failure isn’t part of a
positive act.
Municipality had a legal duty in terms of the legal convictions of the community to prevent
this accident from happening.
5. X is the proud owner of a horse. Y poisons the horse and it dies. How
does oneestablish that Y’s conduct was wrongful ? Explain with reference to :
(a) the general criterion used
General test used is the boni mores test (legal convictions of the community).
(b) a practical application of the mentioned criterion and
More precise methods of determining wrongfulness :

• Infringement of a subjective right
• Non-compliance with a legal duty to act
(c) the two stages in which the enquiry will proceed. (5)
1st stage = prior conduct

2nd stage = control of a dangerous object
6. In a certain town, the paved sidewalks are in a poor condition due to erosion.

Several holes and furrows have developed in the sidewalks. The municipality
neglects to repair the sidewalks, despite requests to this effect by several of the
residents. One day, Mrs M, an aged resident, inadvertently steps into a hole in a
sidewalk, falls, and suffers serious injuries for which she is hospitalised for a month.
Mrs M wishes to recover damages from the municipality in a delictual action.
Discuss only whether the conduct of the municipality was wrongful. Refer in your answer
The conduct of the municipality takes the form of an omission.

Since Halliwell decision, courts maintained that an omission could not be wrongful on its
own, but had to be preceded by positive conduct creating a new source of danger – rule
was known as omissio-per-commissionem rule or the prior-conduct rule.
Rule was applied in several cases in which municipalities were the defendants – the so-
called municipality cases.However, rule was criticised for its unsatisfactory application by
the courts. In Regal v African Superslate, AD held that prior conduct was not necessary
for an omission to be wrongful. However, the case concerned an application for an
interdict, and not an action for damages.
In Minister van Polisie v Ewels the AD declared that prior conduct was not a
prerequisite for an omission to be wrongful. The question whether the alleged
wrongdoer had a legal duty to act, and whether such a legal duty existed or not, had to
be determined with reference to the legal convictions of the community. Prior conduct
could be a factor pointing towards the existence of a legal duty, but it was not an absolute
requisite for the existence of a legal duty.
In Van der Merwe, the judgment in the Ewels case was applied to a municipality.
Therefore, in applying the discussed principles and case law to the given facts, a
legal duty rested on the municipality to maintain the sidewalks in a safe condition.
Accordingly, the omission of the municipality was wrongful.
7. How is the wrongfulness of an omission determined ? Discuss with reference to

case law on the so-called omissio per commissionem rule. (10)
General rule regarding liability for an omission

A person doesn’t act wrongfully for the purpose of law of delict where he fails to act positively to
prevent harm to another. There is no absolute duty to prevent loss.
Liability follows only if an omission was in fact wrong – where a legal duty rested on the defendant
to act positively to prevent harm from occurring and he failed to comply with that duty. Prior
conduct
A person acts prima facie wrongfully where he creates a new source of danger by means of a
commission and then fails to eliminate that danger, with the result that harm is caused to another
person.
Prior conduct isn’t a prerequisite for the existence of a legal duty – but at one stage this was the
only category where liability was imposed on a failure to act.
Municipality cases
Ewels (policemen failed to prevent assault) – result in this case is that you don’t need prior
conduct. Confirmed in Van der Merwe v Burger.

8. Define ‘private defence’. (2)
When the defendant directs his actions against another’s actual (or immediately threatening)
wrongful act, to protect his own legally recognised interests or the interests of another.
9. R, a robber is fleeing the police. As the police dog starts to breathe down his neck,
he runs into a zoo and seeks refuge in a large enclosure with a wide trench around
it. It transpires that the enclosure houses a large gorilla, not at all happy with R’s
intrusion onits territory. The gorilla charges at R, who fires 2 shots with his pistol,
causing the gorilla to collapse, seriously injured. The gorilla is hospitalised in a
private clinic in the city where it is treated for its wounds. The zoo authorities want
to recover from R the expenses in respect of this medical treatment.
Advise R whether he can successfully raise the following grounds of justification and
substantiate your answer in each case:
(a) Private defence (1)
No, defence must be against a human attack
(b) Necessity (4)
A state of necessity will exist if R can prove that he was laced in such a position by superior
force (gorilla), that he was able to protect his interests (his life) only be reasonably violating
the interests of an innocent 3rd party (zoo authorities, as owner of gorilla)
There is authority for both the view that a state of necessity created by the defendant (by
jumping into gorilla’s den) excludes a plea of necessity and for the view that a person may
rely on necessity even if he himself created the state of necessity
Van der Merwe and Olivier = damage caused by a preceding wrongful act (as in this set of
facts) may still be actionable, although the act committed out of necessity (shooting the
gorilla) may be lawful.
R can also argue that his right to life (protected in Constitution) must surely be worth more
than the zoo authorities’ right to ownership over an animal
(c) Assume for the purposes of the rest of your answer that R’s conduct was wrongful.
Advise R whether he can avoid liability by relying on the doctrine of sudden
emergency. (5)
Doctrine of sudden emergency =when a person has to take a decision in a situation of

sudden emergency and there is insufficient opportunity to consider all the consequences
of his actions – this factor MUST be taken into account in deciding whether he is negligent.
Error of judgement does not necessarily amount to negligence because the reasonable
person may also make an error of judgement in certain circumstances.
Requirementswhich must be met in this doctrine for a defendant’s action not to amount to
negligence:
1. R (wrongdoer) must have faced a situation of imminent peril (attack by gorilla)
2. R mustn’t have caused the situation through his negligence or imprudence
3. R mustn’t have acted in a grossly unreasonable manner (by shooting the gorilla) –

must be established whether a reasonable person in the same circumstances would

have made the same error in judgment as the wrongdoer.
Here R’s conduct was negligent.
R created the situation through his own negligence – thus, according to the requirements of
this doctrine his actions will not be excused (Brown v Hunt)
10. Define ‘necessity’. (3)
A state of necessity exist when the defendant is placed in a position by superior force (vis major)
that he is able to protect his interests or those of someone else, only by reasonably violating the
interests of an innocent 3rd party.
11. X offers to take Y’s well-trained watch dog for a walk. X sees that his sworn enemy,
Z, isstrolling in a park. X instructs the dog to attack Z and the dog immediately
charges at Z with blood-curdling growls. Z draws his pistol and kills the dog. Y
wishes to recover the value of the dog from Z in a delictual action.
Of necessity and private defence, which one of these two grounds of justification is
available to Z ? Explain. (5)
Z can rely on necessity as a ground of justification because he was protecting his own interest
i.e. his life.
Necessity = a state of necessity exist when the defendant is placed in a position by superior force
(vis major) that he is able to protect his interests or those of someone else, only by reasonably
violating the interests of an innocent 3rd party.
• An actual state of necessity must exist
• Possible state of necessity must be determined objectively
• State of necessity must be present or imminent
• Defendant need not only protect his own interests but can protect the interest of another
• Not only life or physical integrity but other interests like property may be protected out of
necessity
• Person can’t rely on necessity where he’s legally compelled to endure the danger.
• Interest which is sacrificed mustn’t be more valuable than the interest protected.
• The act of necessity must be only reasonable possible means of escaping from the
danger.
• Whether necessity can justify homicide ?
R v Dudley = no, S v Goliath = yes, Van der Merwe = yes.

12. X, brandishing a hunting knife, tells Y that if Y does not help him to kill Z, X will kill
Y. Y hits X over the head with a blunt object. X suffers severe concussion. What
ground of justification can Y raise if X institutes a delictual action against Y ?
Substantiate your answer. (10)
The facts are of such a nature that we must consider two grounds of justification, namely
private defence and necessity. Private defence is present when the defendant directs his
actions against another person's actual or imminently threatening wrongful act in order
to protect his own legitimate interests or such interests of someone else. ✓
Private defence will be present if the following requirements are met:
1. Defence must be directed against the aggressor; ✓
2. Defence must be necessary to protect the threatened right – and this implies
that there must be no reasonable alternative to act of defence; ✓and
3. Act of defence must not be more harmful than is necessary to ward off the attack.
✓ Requirement (3) implies that: there must be a measure of proportionality between the
attack and the defending act, although absolute proportionality is not required; ✓the
value of the protected interest and the sacrificed interest may differ; ✓ the interests need
not be similar in character; ✓ and the means of defence employed by the defender
need not be similar to those of the attacker ✓.
Necessity, on the other hand, exists when the defendant is placed in such a position by
a superior force that he is able to protect his interests or those of someone else only by
reasonably violating the interests of an innocent third person.✓
The most important difference between private defence and necessity is the fact that
private defence is directed at an attack by a wrongdoer; whereas when acting out
necessity the interests of an innocent third party are prejudiced. ✓In other words, if the
plaintiff was an attacker, private defence may be applicable, whereas if the plaintiff was
an innocent third person, necessity may be applicable.
From the above it is clear that private defence is the appropriate ground of justification in
our setof facts. Y harmed the interests of X, and X was certainly no innocent third person.
On the contrary, X had directed wrongful attacks or imminently threatening attacks
against both Z and
Y. ✓If Y had assisted X to harm Z, and Z somehow survived and instituted a delictual
claim against Y, it would have been appropriate to consider whether necessity was
applicable (compare the facts of S v Goliath 1972 (3) SA 1 (A)

13. Name SIX requirements for valid consent. (6)

2. Person giving consent must be capable of volition – must be intellectually mature enough
to appreciate the implications of his acts and must not be mentally ill or under the influence
of the drugs.
3. Consenting person must have full knowledge of the extent of the prejudice.
4. Consenting party must realise or appreciate fully the nature and extent of harm
5. Consenting party must subjectively consent to the prejudicial act.
6. Consent must not be contra boni mores.
14. X and Y are sworn enemies. One day they unexpectedly bump into each other. X
whips out a water pistol, directs it at Y and says, “Die scum”. Y, firmly under the
impression that his life is in danger, produces his real gun and wounds X in the
forearm with a quickshot. X wishes to recover from Y the medical expenses for
treatment of his wound.
Is there any ground of justification available to Y ? Discuss briefly. (4)
Test under these circumstances = objective.

Attack must be really imminent or present and subjective belief is irrelevant.
Private defence is not available, and putative defence is not a ground of justification.

FAULT
1. Must the test for negligence be adapted when applied to a child wrongdoer? Discuss
critically the development of our case law in this regard. (7)
Before 1965
There was a tendency for the courts to take into account the youthfulness of the
wrongdoer in determining his negligence – test for negligence by means of the conduct
expected from the reasonable child of the wrongdoer’s age and intellectual development.
In 1965
Jones v Santam:
AD adopted a new approach to determine negligence with respect to children. Court
implied thatcriteria for determining negligence is always objective in the sense that in all
situations the test of reasonable person is applied.
According to this approach in determining if a child acted with negligence:
1st see whether the child concerned met the standard of care required of a reasonable
person
2nd ask whether the child was accountable for his actions.
Criticism on this approach: seems that earlier test of the reasonable child was more
acceptable. Clear that the court in Jones placed the cart before the horse by 1st looking
into fault and then into accountability.
Roxa v Mtshayi – AD accepted this criticism by 1st testing accountability and2ndfor
negligence.
2. When is a child accountable ? Discuss. (4)
Test for accountability = if person has the necessary mental ability to distinguish between right
and wrong and can act in accordance with such an appreciation.
A child’s accountability falls under persons who lacks the necessary accountability:
Youth:
• 0 – 7 : always lack accountability –irrebuttable presumption that he not accountable.
• 7 – 14 :rebuttable presumption that he lacks accountability – he’s assumed unaccountable
until the contrary is proven.
• 14 – UP : accountable on a balance of probabilities.
Thus a child will be accountable if he is over the age of 14.
3. Write critical notes on the way in which our courts have determined the negligence of a
child before and after 1965. (10)
Before 1965
Courts tended to consider the youthfulness of a wrongdoer in determining negligence –
they tested for negligence by means of the conduct expected of the reasonable child of
the wrongdoer’s age and intellectual development.
After 1965
AD in Jones v Santam adopted a new approach – criterion for negligence is always
objective, therefore it is the test of the reasonable man under all circumstances.

According to this approach, it must 1st be determined whether the child met the required
standard of care of the reasonable man. 2nd it must be asked whether the child was
culpae capax (accountable).
When answering 1st question, the childhood of the wrongdoer is relevant.
When answering 2nd question (concerning the wrongdoer’s accountability) – subjective
qualities like the child’s intellect, maturity, experience, insight, etc. must be taken into
account to determine whether the child could differentiate between right and wrong and
act in accordance with that insight.
New approach has been criticised as follows:
• Earlier approach of the test of the reasonable child is more acceptable because one
cannot realistically measure a child against an adult’s standard.
• It must 1stbe determined whether a person is accountable before testing for
negligence.
In a subsequent decision in Roxa, the AD followed the correct order by testing first the
However, in Weber, the AD once again confirmed the decision in the Jones case. In the
Weber case it was held that the accountability of a child should be determined with
reference to the specific situation in which he found himself, and that if this approach was
implemented with insight, most of the criticism against the Jones case would disappear.
4. X is a passenger in Y’s motorcar. Due to Y’s negligent driving, they are involved in a
collision. X had not fastened her seatbelt. She is hospitalised for multiple injuries and
her medical expenses amount to R10 000. If she had fastened her seat belt, her injurie
would have amounted to R6 000. X wishes to recover her damage from Y.
Which defence is available to Y ? Discuss with reference to case law. (10)
Consent to risk of injury

Y can perhaps aver that X tacitly consented to risk of injury.
However, this defence can be disqualified immediately as it is contra bonos mores to
consent to (risk of) serious bodily injury.
Contributory Fault
Common Law: general rule = fault on part of plaintiff precluded him from claiming
damages from defendant, who was also to blame for causing the damages.
Doctrine of contributory negligence was created in Davies v Mann: plaintiff haltered
donkey in road – defendant driving wagon collided with donkey = negligence on both
sides.
In terms of ‘all or nothing’ rule which was enforced at that time, plaintiff would have been
unable to claim damages from defendant BUT court adopted new approach : since
defendant had last opportunity to avoid collision, plaintiff’s negligence ignored.
Court accepted if negligence of two people contributed to causing of particular result and
one or both suffered damages – neither could claim unless negligence of one was
decisive cause (who had last opportunity) of accident = negligence of other party ignored
and he could claim full damages.

If reasonable person placed in position of X, the reasonable person would have foreseen
the possibility of heightened damage and would have taken preventative steps by
fastening her seatbelt.
Common law position changed by Apportionment of Damages Act.
Apportionment of Damages Act (1956):

Fault includes both negligence and intention.
Defendant who negligently caused plaintiff harm could not ask for reduction in
damages because of contributory fault.
Distinction between four situations:
• Defendant negligence – plaintiff intention = no claim.
• Defendant intention – plaintiff intention = no claim.
• Defendant intention – plaintiff negligence = full claim.
• Defendant negligence – plaintiff negligence = apportion the damages (Jones
Case).Criteria for apportionment of damages:
Reasonable person in the position of the defendant:
1. Would foresee the reasonable possibility of his conduct injuring another &
causing him patrimonial loss.
2. Would take reasonable steps to guard against such
occurrence And the defendant failed to take such steps.
Section 1 applies only to damages caused partly by fault of plaintiff and partly of
defendant. Reasonable person test applies – dealing with a deviation from the
standard of care which applies to all people in community.
Court does not take into account that defendant’s conduct has contributed to harm
to a greater extent than plaintiff’s conduct.
If court is satisfied that negligence of both parties is causally connected to damage,
question of causation is solved.
Method of determining who should bear which portion of damage involves a comparison
of the respective degrees of negligence :
• Before Jones case:
AD accepted that once plaintiff’s degree of negligence had been established, it’s
unnecessary to establish defendant’s.
e.g. if plaintiff = 40%, then defendant = automatically 60%.
• Jones case:
AD said if Plaintiff was 30% negligent, it doesn’t automatically means defendant was
70% liable. To establish degree of negligence, carefulness of conduct of each party
must be measured separately against standards of reasonable person.
If defendant raises defence of contributory negligence on part of plaintiff, he (defendant)
has the onus to prove on a balance of probabilities.
Fault in respect to damage or the damage-causing event :

Question is whether section 1 applies where plaintiff wasn’t negligent with regards to
damage- causing event but where his negligence increased the damages?
King case : no helmet didn’t constitute contributory negligence. Didn’t cause damage-
causing event = full damages.

Vitoria case : no seatbelt = contributory negligence. It increased damages = no claim.

Uijs case: no seatbelt because refused to wear = contributory negligence. Increased
damages
= no claim.
So here both X & Y were negligent. X didn’t wear seatbelt and thus increased damages.
Y can rely on contributory negligence. Thus X can only claim R6000 for damages.
(10)
7. X and Y are involved in a car accident; they are both driving their own cars. The accident
occurred on a straight stretch of road with 2 lanes. The accident was a head on collision.
X had been traveling in an easterly direction and Y in a westerly direction. However at the
moment of impact both vehicles are in the lane moving in the westerly direction.
(a) Was X negligent? Discuss with reference to case law. (5)
Negligence judged in the light of the surrounding circumstances: it must be self-

evident that the negligence of conduct may only be evaluated in light of all the
relevant circumstances of a particular case.
In the facts there were no witnesses to the collision thus presumption = res ipsa
loquitur – creates a presumption of negligence:
Contended that this doctrine creates a presumption of negligence, but current
position is that there’s no shift of the onus of proof in such a case. Defendant may
still submit evidence to show that what happened was not due to any negligence on
his part.
Here X is negligent because of this doctrine because his car is in the wrong lane.
(b) Would it make any difference to your answer if X had swerved to the wrong side of
the road because a well built man had suddenly appeared on the sidewalk and
struck at X’s car with a panga? Discuss with reference to case law. (5)
Yes, it would make a difference to my answer :

Here the defence of X is that of doctrine of sudden emergency and is a ground of
justification for negligence.
Doctrine of sudden emergency = when a person has to take a decision in a situation
of sudden emergency and there is insufficient opportunity to consider all the
consequences of his actions – this factor MUST be taken into account in deciding
whether he is negligent.
Requirements which must be met in this doctrine for a defendant’s action not to
amount to negligence – name and discuss.
Here, X’s conduct didnot amount to negligence, because reasonable person would
have taken the same steps as X.
8. X drives his car late at night. Suddenly a well-built man appears in front of him and strikes
out at the car with a panga. X gets a fright and swerves; he collides with Y’s parked car.
In an action for damages by Y, X avers that in view of the circumstances of the case, he

didn’t act negligently.
(a) Describe the test for negligence and mention the most well known case in which the
test was formulated. (4)
Test for negligence was created in Kruger v Coetzee = reasonable person in

the position of defendant :
1. Would foresee the reasonable possibility of his conduct injuring another &
causing him patrimonial loss.
2. Would take reasonable steps to guard against such
occurrence And defendant failed to take such steps.
(b) Discuss the defence raised by X and the requirements for a successful reliance
thereon. (6)
Defence of X = doctrine of sudden emergency – is a ground of justification for

negligence. Doctrine of sudden emergency = when a person has to take a
decision in a situation of sudden emergency and there is insufficient opportunity
to consider all the consequences of his actions – this factor must be taken into
account in deciding whether he is negligent. Requirementswhich must be met in
this doctrine for a defendant's action not to amount to negligence:
1. The wrongdoer must have faced a situation of imminent peril. (=not
negligence)
2. The wrongdoer mustn’t have caused the situation through his negligence –
where a reasonable person would in any event have prevented the emergency
situation – wrongdoer’s conduct won’t be excused (Brown v Hunt).
3. The wrongdoer mustn’t have acted in a grossly unreasonable manner –

established whether a reasonable person in the same circumstances would
have made the same error in judgment as the wrongdoer.
Here, X’s conduct didn’t amount to negligence, because the reasonable person
would have taken the same steps as X.
9. Imagine one claimant and one defendant in a set of facts. Assume that the defendant’s
conduct complies with all the elements of delict and that the claimants conduct with regard
to his damage is also blameworthy.
Briefly discuss in each one of the following situations the effect of contributory fault on
an action for damages instituted by the claimant against the defendant.

(a) Where both the claimant and the defendant are negligent. (4)
If plaintiff and defendant acted negligently, their damages must be apportioned.

Jones case: AD said if plaintiff is 30% negligent, it doesn’t automatically mean the
defendant is 70% liable.
To establish the degrees of negligence, the carefulness of the conduct of each
party must be measured separately against standards of reasonable person
(b) Where the claimants for of fault is contributory negligence and the defendant acted
intentionally. (1)
Plaintiff will be able to claim full damages.
(c) Where the claimants form of fault is contributory intent and the defendant acted
negligently. (4)
Where plaintiff intentionally contributed towards his own loss, while defendant was
merely negligent – plaintiff forfeited his claim.
Vitoria case : plaintiff didn’t wear a seatbelt and increased her damages = no claim.
(d) Where both the claimant and the defendant acted intentionally with regard to the
formers damage. (1)
Where plaintiff acted with intention and defendant acted with intention = no claim
awarded.
10. X stops at petrol station to have tank of his car filled up. While waiting for a pump
attendant, he sees another person drive off, throwing a cigarette butt out of window. An
explosion takes place and the next moment there is a fire on the driveway, close to one
of the petrol pumps. X realises that the cigarette butt has ignited some petrol that has spilt
there.
Having a quick look around, X sees a hosepipe usually used to wash cars. He opens
the tap widely and sprays water on fire. But the water doesn’t extinguish the fire. Burning
petrol starts to float on top of the water and is driven by the force of water stream from
the hosepipe under a car belonging to Y, another customer at the filling station. Y’s car
catches fire and by the time the pump assistants have managed to extinguish fire with
foam fire extinguishers, Y’s car is badly damaged.
Was X’s conduct wrongful ? Discuss with reference to the test for wrongfulness and a
possible defence X may raise. (10)
Test for wrongfulness

To determine wrongfulness = dual investigation:
1. Was there an infringement of a legally protected interest ?– the act must have
harmful consequences.
2. If the interest has been prejudiced, legal norms are used to determine if it

occurred in a legally reprehensible manner (unreasonable manner) – boni mores

test.
Here X’s conduct was wrongful because it infringed Y’s real right to his property and
the act occurred in an unreasonable manner.
Defence
X may raise the defence of necessity as a ground of justification and may succeed
in this defence.
Necessity = when the defendant is placed in a position by superior force (vis major) that
he is able to protect his interests or those of someone else, only by reasonably violating
the interests of an innocent 3rd party.
• An actual state of necessity must exist.
• The possible existence of a state of necessity must be determined objectively.
• The state of necessity must be present or imminent.
• Defendant need not only protect his own interests, but can protect the interests of
another.
• Not only life or physical integrity but other interests like prop may be protected
out of necessity.
• A person cannot rely on necessity where he is legally compelled to endure danger
• The interests which are sacrificed must be more valuable than the interest which is
protected.
• The act of necessity must be the only reasonable possible means of escaping
from the danger.
• Whether necessity can justify homicide : R v Dudley = no; S v Goliath = yes;
Van der Merwe = yes

CAUSATION
1. Explain the difference between the two forms of causation and describe briefly the tests
employed to determine whether the mentioned two forms of causation are present in a
given case. Refer to relevant case law. (10)
Causation = causing of damage through conduct – a causal nexus between

conduct and damage is required for delict.
Factual causation
No question of delictual liability if it is proved that the conduct of defendant caused the
damage of the person suffering the harm.
• Conditio sine qua non theory
Also known as the BUT FOR test – according to this, an act is the cause of a
result if the act can’t be thought away without the result disappearing as well.
Criticism of the conditio sine qua no theory:

1. Conditio is based on a clumsy, indirect process of thought that results in
circular logic.
2. Conditio fails in cases of so-called cumulative causation (occurs when more
than 1 act actually causes a consequence) – where both X & Y shoot Z,
eliminate X & death still exists & vice versa.
3. Conditio test isn’t a test of causation because it’s merely an ex post facto way
of expressing a predetermined nexus.
Conditio sine qua non and omissions

General view =conditio test may be applied when one wishes to determine whether
an omission caused a certain consequence.
S v Van As: Police neglected to search for children who had fled into the night and
later died of exposure.
Question was whether their death was caused by the omission to search for them.
Court attempted to test the causal connection between the omission & the death by
asking, whether reasonable search would have prevented the death (add something
instead of eliminating).
According to Van Rensburg : conditio sine qua non test doesn’t offer a solution in
cases of causation by an omission. Conditio requires you to eliminate something in
the mind and not to add something to the facts. Conditio test is not accepted for
omissions.
Determination of a factual (causal) nexus :

Van Rensburg: a causal nexus exists where 1 fact arises out of another – this must be
established according to human experience in general.
Enough for the purposes of factual causation if defendant’s conduct has in any way
contributed to the damage sustained by the plaintiff.
Legal causation
No legal system hold a wrongdoer liable without some limit for the endless chain of

harmful consequences, which his act may have caused – means to limit the wrongdoer’s
liability.
• Question of legal causation arises when determining which harmful consequence

actually caused by wrongdoer’s wrongful, culpable act should be held liable for.
• In most cases of delict, harm for which the wrongdoer is to be held liable falls within
the limits of his liability, so that it’s unnecessary to examine legal causation.
• Normally legal causation is only a problem where a whole chain of remote
consequences result from the wrongdoer’s conduct and where it’s alleged that he
should be held liable for all the consequences.
• Limit of liability should be determined in respect of every delictual claim and fact that
this determination in most cases need not be made expressly shouldn’t lead one to
believe that legal causation is relevant only in exceptional cases.
Alston v Marine Trade Insurance : plaintiff suffered brain injuries from car accident due
to negligence of driver insured by defendant. As result from brain injuries, plaintiff suffered
from manic depression for which he was treated. According to medical knowledge at time,
there was no danger thought of by taking the medicines. Plaintiff ate cheese after taking
medicines and had a stroke. Appeared that after taking medicine, eating cheese can lead
to death.
Mafesa : plaintiff broke his leg in car accident because of negligence of driver who was
insured by defendant. He was discharged from hospital & slipped on his crutches & broke
leg again. Hismedical expenses increased.
Question is what criteria should be used to determine legal causation ?

• Flexible approach
S v Mokgethi: held there is no single criteria for legal causation.
Basic question for flexible approach was whether there was a close enough
relationship between wrongdoer’s conduct & its consequences, for such
consequences to be imputed to wrongdoer in view of policy considerations based
on reasonableness, justice and fairness.
Approach confirmed in Bentley, Smith v Abrahams and Collett.
• Adequate causation
It’s adequate if according to human experience in the normal course of events the
act has the tendency to bring about that type of consequence.
• Direct consequence
An actor is liable for all the direct consequences of his negligence conduct –
liability isn’t limited to foreseeable consequences.
• Theory of fault
Wrongdoer is liable only for those consequences in respect of which he had fault.
Liability must be ltd to consequences willed by a person while aware of their
wrongfulness and wrongful consequences that he should have foreseen and
prevented.
In terms of this theory:

➢ Intention in the form of dolus eventualis is present.

➢ Factual causation is present
➢ Applying the fault theory – X foresaw the possibility would lead to death and
reconciled himself to it, while knowing it was wrongful.
➢ Therefore – because he has intention, he is liable and there is no need to
look into legal causation
➢ Majority of jurists argue that it’s unreasonable in the circumstances to hold
X liable for Y’s death.
Brown v Hoffman : defendant punched plaintiff in face few times at political

meeting. Plaintiff suffered severe head injuries and claimed for:
1. Infringed dignity
2. Injuries to head, face & brain
3. Medical expenses
4. Pain & Suffering
5. Loss of amenities of life
Hoffman relied on theory of fault to try and limit extent of his liability. Argued on
behalf of defendant that liability was limited to extent of defendant’s intention.
Defendant hadn’t intended causing serious injuries it was argued that he couldn’t be
held liable for damages falling outside his intention and compensation for general
damages like pain and suffering couldn’t be claimed.
Negligence as criteria for legal causation – cannot serve as test for determining of
damage.
Test for negligence = whether reasonable in position of wrongdoer would have
foreseen and prevented situation.
Reasonable foreseeability therefore liable for hospital expenses..
• Novus actus interveniens

New intervening act – an independent event which, after the wrongdoer’s act has
been concluded, either caused or contributed to the consequences concerned.
Where novus actus extinguished causal nexus between conduct of wrongdoer’s act
and consequences, with result that wrongdoer’s act can no longer be considered
factual cause of consequences = actor goes free.
More difficult to determine when new act influenced the result to such an extent that
result should no longer be imputed to actor, although conduct remains factual cause
of result = flexible approach to legal causation.
Novus actus is to limit liability of wrongdoer and plays an important role in legal
causation. In each case will have to be determined within framework of the relevant
imputability test whether novus actus has had the effect of severing the legal nexus
with result that consequences shouldn’t be imputed to actor.
Novus actus might be brought about by conduct of plaintiff himself, by culpable
conduct of 3rd party or by vis major.
An event will qualify as a novus actus only if event wasn’t reasonably foreseeable.
Mokgethi :question was whether victim’s own conduct had broken causal nexus
between accused’s wrongful act and result in question.
Court suggested a criterion, which may be useful to determine legal causation in
view of this victim’s own conduct:
1. Victim fails to seek medical attention and that is cause of death.

2. Wound wasn’t life threatening

3. Where failure to seek medical attention in unreasonable.
4. Mrs. M, deep in thought, walks on the side walk. Too late she notices the presence of a
huge hole in the middle of the sidewalk. She falls into the hole and fractures her hip. It
transpires that the hole was dug by municipal workers to implement a new sewerage
system. Mrs.M wants to recover damages from the municipality. The only precautionary
measure taken by the municipality to protect public was to cordon off the hole with a single
red and white ribbon.
Assume Mrs.M’s hospital costs amount to R10000. This is not the end of her misery. After
being discharged, she slips while walking on her crutches and falls and breaks her arm.
Her medical costs for her broken arm amount to R2000. Mrs. M also wishes to claim this
further amount from the municipality but the municipality denies that it caused her second
set of damages of R2000. Discuss with reference to case law. (10)
Municipality = legal causation of Mrs.M’s damages and is liable for

R10000 for her hip injury. But R2 000 for broken arm constitutes a novus
actus interveniens.
This accident wasn’t reasonably foreseeable thus the municipality is not
liable to R2 000, only for R10 000.
5. "X's conduct is a condition without which Y's damage would never have arisen."
Conditio sine qua non theory: also known as the BUT FOR test = an act is the cause of
a result if the act can’t be thought away without the result disappearing as well.
Falls under factual causation.

6. What is the criterion to determine legal causation ? Discuss. (6)
Flexibility approach
S v Mokgethi : held there is no single criteria for legal causation.
Basic question for flexible approach was whether there was a close enough relationship
between wrongdoer’s conduct & its consequences, for such consequences to be imputed
to wrongdoer in view of policy considerations based on reasonableness, justice and
fairness.
Bank teller shot in back by robber. Now paraplegic in wheelchair. Went back to work few
months later. Doctor told him to shift his bum. He failed to do this and died of pressure
sores 6 months after the shooting. AD held that wounding of deceased couldn’t be
regarded as legal causation of death.
Approach confirmed in Bentley, Smith v Abrahams &
Collett. Adequate causation
It’s adequate if according to human experience in the normal course of events the act
has the tendency to bring about that type of consequence.
Direct consequences
An actor is liable for all the direct consequences of his negligence conduct – liability isn’t
limited to foreseeable consequences.
Theory of fault
Wrongdoer is liable only for those consequences in respect of which he had fault.
Liability must be limited to consequences willed by a person while aware of their
wrongfulness and wrongful consequences that he should have foreseen and prevented.
7. Discuss in detail the importance of the decision in S v Mokgethi in respect of factual

and legal causation. Do not discuss the facts of the case. (10)
S v Mokgethi is an AD case involving factual and legal causation. Although it is a

criminal case, the principles set out by Van Heerden are also of importance to the law of
delict.
Approach set out in Mokgethi has subsequently been accepted by the Appeal Court in
a delict case – International Shipping Co.
The Mokgethi case can be considered as authority for the following views:
• Factual and legal causation must be distinguished from each other
• Wrongfulness and fault cannot function as criteria for legal causation
• In the determination of legal causation, none of the existing criteria for legal
causation can be applied satisfactorily in all cases. Therefore, a flexible approach
should rather be adopted. The key question is whether a close enough relationship
exists between the defendant’s act and its consequence for the consequence to be
imputed to the defendant, taking considerations of policy into account on grounds of
reasonableness, fairness and justice. The existing tests of legal causation can play
a subsidiary role in the determination of legal causation based on the flexible
criterion.
• Considerations that are at issue in determining legal causation can differ from one
area of law to another. Consequently, the same factual situation might lead to for
example, delictual liability but not necessarily to, for example, criminal liability.

• In some cases the victim’s intervening act can sever the legal causal connection
between the factual cause and result.
8. Explain the importance of the decision in S v Mokgethi 1990 (1) SA 32 (A) for the
element of causation. (10)
Mokgethi is factual cause of deceased’s back injury, because ‘but for’ him shooting
deceased, deceased would not have been in a wheel chair nor had to shift his bum to
prevent getting pressure sores.
Legal causation : no legal system hold a wrongdoer liable without some limit for the
endless chain of harmful consequences, which his act may have caused – means to limit
the wrongdoer’s liability.
Mokgethi was legal cause for deceased having to be in a wheelchair.
But Mokgethi was not legal cause for deceased’s death – between the shooting and the
dying a ‘new intervening act’ occurred.
Deceased didn’t shift his position and died of pressure sores on his bum this
constituted a
novus actus.
DAMAGE
1. Define ‘damage’. (2)
Damage is the diminution (reduction), as a result of a damage-causing event, in the utility or

quality of a patrimonial or personality interest in satisfying the legally recognised needs of the
person involved.
2. What is meant with the ‘plaintiff’s duty to mitigate loss’ ? Explain in one or two
sentences. (2)
It is a principle of the law of delict that a plaintiff may not recover damages for a loss which
is a factual result of the defendant’s conduct, but which could have been prevented if the
plaintiff had taken reasonable steps.
3. Name two methods by which patrimonial loss and the extent thereof are determined,
and explain the difference between the two methods. (10)
Sum-formula approach or the comparative approach

Loss or damage is the negative difference between the injured person’s financial position
or patrimony and is hypothetical financial position or patrimony in which he would have
been if the damage-causing vent did not take place.
Concrete approach
Damage is the difference between the patrimonial position before the delict and

thereafter. The position after the delict is compared with the position before the delict.
The difference between these two approaches = the sum-formula approach uses a
hypothetical position that would have existed had the delict not been committed,
whereas such a hypothetical position is absent in the case of the concrete approach.
4. What criterion is used to determine whether an act, causing pure economic loss is
wrongful ? Explain in one short sentence. (1)
The criterion used is breach of a legal duty.
5. What is meant by the ‘sum-formula approach’ ? Explain briefly. (2)
Comparative test: in terms of this approach damage exists in the negative difference
between the plaintiff’s actual patrimonial position as it exists after the damage-causing
event & the hypothetical patrimonial position that would have existed had the damage-
causing event not occurred = current position compared to a hypothetical position
6. What is meant by the ‘once-and-for-all rule’ ? (3)
In claims for compensation and satisfaction arising out of a delict, plaintiff must claim
damages for all the damages already sustained or expected in the future in so far as it’s
based on a single cause of action
7. What is meant by the ‘duty to mitigate’ ? (1)
Plaintiff can’t recover damages for a loss which is the factual result of the defendant’s
conduct, but which could have been prevented if the plaintiff had taken reasonable steps.
A failure to ensure that damages don’t accumulate can be seen as a failure by the
plaintiff to take reasonable steps to limit the initial loss or an omission to prevent further
damages.
In other words, the plaintiff must try to keep the damages low during the waiting period.
8. Define prospective damage. (3)
Patrimonial damage = damage in the form of patrimonial loss which will, with a degree of
possibility, materialise after the date of assessment of damages resulting from an earlier
damage causing event.
9. Mrs. M, deep in thought, walks on the side walk. Too late she notices the presence of a
huge hole in the middle of the sidewalk. She falls into the hole and fractures her hip. It
transpires that the hole was dug by municipal workers to implement a new sewerage
system. Mrs.M wants to recover damages from the municipality. The only precautionary
measure taken by the municipality to protect public was to cordon off the hole with a single
red and white ribbon.

Assume that Mrs. M is informed by her doctor that due to her hip injury, a possibility
exists of her having to undergo a further operation sometime in the future. At what stage
must Mrs.M claim the compensation from the municipality for such an operation ? (3)
Once and for all rule = in claims for compensation & satisfaction arising out of a delict the
Plaintiff must claim damages for all the damages already sustained or expected in the
Mrs. M must claim the compensation now because she won’t be able to claim
it later. Prescription for the claim of damages = 3years
10. It has been suggested that our law should adopt a concrete approach to damages,
except in cases of prospective loss, liability for misrepresentation and loss of profit.
Answer the following questions :
(a) What is the concrete approach to damages? (1)
Difference between the patrimonial position of the plaintiff before the unlawful act
and the actual position after.
(b) What approach to damages should be accepted in the case of prospective loss,
liability for a misrepresentation and loss of profit ? Give the name of this approach
and explain. (2)
Prospective patrimonial damage = damage in the form of patrimonial loss which

will, with a degree of possibility, materialise after the date of assessment of damages
resulting from an earlier damage causing event.
Approach to be used = once and for all rule
In claims for compensation & satisfaction arising out of a delict the plaintiff must
claim damages for all the damages already sustained or expected in the future in so
far as it’s based on a single cause of action.
14. Name the TWO forms of damages and give an example of each. (2)
Patrimonial damages e.g. loss of income.

Non-patrimonial damages e.g. infringement of dignity.

DELICTUAL REMEDIES
1. Name THREE requirements for an interdict. (3)
There must be an act by the

respondent The act must be wrongful
No other remedy must be available.
2. Which remedy will a person institute to avert an impending wrongful act? (1)
Interdict
JOINT WRONGDOERS
1. Due to the negligent conduct of both X and Y, Z’s garden shed burns down. Z sues X in
delict for the full amount of his damage. X approaches you for legal advice. Advise X,
referring to relevant legislation. (5)
Joint wrongdoers = persons who are jointly and severally liable in delict for the same
damages.
SPECIFIC FORMS OF DAMNUM

INIURIA DATUM
1. Explain the concept ‘pure economic loss’ with reference to case law. (5)
Aquilian action is available to claim damages for pure economic loss.
Pure economic loss may compromise patrimonial loss that doesn’t result from damage
to prop or impairment to personality.
Greenfield Engineering Works : where X suffered financial loss because a cheque that
was sent to him by B was stolen and as a result of the fact that the cheque hadn’t been
crossed, the thief was able to open a bank account, withdraw the money and disappear
with it.
Pure economic loss may also refer to financial loss that does flow from the damage to
property or impairment to personality, but which doesn’t involve the Plaintiff’s property or
person.

Coronation Brick : X’s negligence damaged cables that provided electricity to B’s factory
and B suffered loss of production.
Pure economic loss including patrimonial loss that’s the result of damage to property
or injuryto personality but where the defendant didn’t cause the loss or injury.
Kadir v Minister of Law &Order:as a result of the negligence of X, B’s car left the road
and he was injured. Two constables who arrived on the scene failed to take any
particulars concerning the identity of X and as a result of the omission, B couldn’t claim
from the MMF for his damage and suffered pure economic loss.
2. What criterion is used to determine whether an act, causing pure economic loss is
wrongful ? Explain in one short sentence. (1)
The criterion used is breach of a legal duty.
3. Write notes on the way in which Bester v Commercial Union influenced delictual liability
for causing emotional shock. (6)
Bester v Commercial Union : AD said that the impairment of personality and patrimonial
loss resulting from psychiatric injury or emotional shock caused wrongfully and
intentionally or negligently, founds the action for the pain and suffering and the actio legis
Aquiliae.
Before Bester
SA law of delict lacked clear principles in this field. This resulted in restrictions on liability
for emotional shock:
1. The shock must have originated from a physical injury– wrongfulness.
2. The aggrieved party himself must have been in personal danger of being physically
injured – negligence or legal causation.
These were rejected in Bester case.
After Bester
Following factors play a role in this regard:
• The fact that the psychological lesion resulted from physical injury.
• The fact that the plaintiff was in personal danger of being physically injured.
• The fact that the plaintiff was informed of the death or injury of a close relative
(jokingly).
• The fact that the plaintiff personally witnessed the death or injury of a close relative.
Once the court has found that serious emotional shock was reasonably foreseeable, the
wrongdoer is then liable for any detrimental physical or mental consequences –
regardless of whether they were foreseeable as well (talem qualem rule applies – you
take your victim as you find him).
4. State FOUR factors that play a role in determining whether emotional shock was
reasonably foreseeable by the defendant. (4)

Fact that the psychological lesion resulted from physical injury.

Fact that the plaintiff was in personal danger of being physically injured.
Fact that the plaintiff was informed of the death or injury of a close relative (jokingly).
Fact that the plaintiff personally witnessed the death or injury of a close relative.
5. Briefly explain the so-called ‘thin skull’ (talem qualem) rule. (2)
A defendant cannot escape liability by proving that the plaintiff was particularly
susceptible tothe prejudicial consequences of the shock and that the consequences were
therefore not reasonably foreseeable.
6. Two brothers walk across the street. A car skips the red robot and instantly kills one of
them. As a result of witnessing his brother’s death, the surviving brother suffers severe
psychological disturbances and has to go for treatment to a therapist.
(a) Which TWO aspects must the surviving brother prove in order to claim for the
psychological disturbances suffered by him? (2)
Wrongfulness
Intention or negligence.
(b) Name the case which provides authority for your answer above. (1)
Bester v Commercial Union.
(c) With which remedy can the surviving brother claim for the injuries suffered ? (1)
Actio legis Aquiliae.
(d) Which form of fault is required for the remedy in (c) above ? (1)
Negligence.
(e) Must the surviving brother prove that he suffered physical injuries in order to claim
for psychological disturbances suffered by him ? (2)
No, the requirement of physical harm – infringement to the right to physical integrity,
which is wrongful, was rejected in Bester. According to Bester, the brain and
nervous system are as much a part of the physical body as an arm and a leg. As
result, a physical injury isnot absolutely necessary to found liability.
7. Name the case that is the locus classicus in SA law for the recognition that personality
injury and patrimonial loss resulting from emotional shock are actionable.

Bester v Commercial Union Versekeringsmaatskappy
8. Why did the court in the abovementioned case reject the requirement that the plaintiff
should have suffered physical harm before he can institute a claim based on emotional
shock ? Describe the court’s reasoning in one sentence. (1)
According to the court, the brain and nervous system are as much a part of the physical
body as an arm or a leg.
9. With what new requirement did the court substitute the ‘physical injury’ requirement ?
Describe briefly. (1)
To be actionable, the harm caused by the shock must be reasonably serious.
10. The court also rejected the requirement that the plaintiff should have been in personal
danger before he/she could claim for emotional shock. With what requirement did the
court replace the ‘personal danger’ requirement ? Describe briefly. (1)
The yardstick of reasonable foresees ability of harm, that is, was the emotional shock
DAMNUM INIURIA DATUM

1. Name FIVE specific forms of damnum iniuria datum. (2½)
Injury or death of another

Negligence
misrepresentation
Interference with a contractual
relationship Unlawful compensation
Manufacturer’s liability

SPECIFIC FORMS OF INIURIA

1. When does privilege exist? (2)
When someone has a right, duty or interest to make specific defamatory assertions and
the people to whom the assertions are publicised have a corresponding right, duty or
interest to learn of the assertions.
2. Distinguish between relative and absolute privilege and give an example of each. (3)
Relative privilege
Defendant enjoys conditional protection – protection falls away as soon as the plaintiff
proves the defendant exceeds the bounds of privilege.
Absolute privilege
Defendant is protected absolutely, in the sense that liability for defamation is excluded.
e.g. parliament
3. Briefly discuss the grounds excluding fault in the case of defamation with reference to
case law. (3)
National Media v Bogoshi – court introduced negligence as the basis of liability of the
press for defamation.
Grounds excluding fault
1. Mistake: persons are unaware of the wrongfulness of his defamatory publication
because he bona fide believes that his conduct is lawful.
2. Jest: if the defendant proved that he published the defamatory words in jest, he
should be able to rebut the presumption of animus (intention).
4. What is the general criterion which is used to determine whether a negligent

misstatement is wrongful ? (1)
The only relevant question is if in the opinion of the reasonable person with normal
intelligence and development the reputation of the person concerned has been injured.
5. Identify the types of personality infringement that B might have suffered in each of the
following situations : (3)
(a) A calls B a liar when they are alone.
Right to dignity and feelings.
(b) A, B’s doctor, tells a friend that B has AIDS
Right to privacy and good name.

(c) A is a 2nd handcar dealer. He places an advert in the newspaper with the photo
of a car he wants to sell. B, a well known soccer player, who happened to be at the
dealer to look at the cars when the photo was taken, also appears in the photo.
Right to privacy.
6. What is the importance of National Media Ltd v Bogoshi for the law of
defamation? (10)
Animus iniuriandi (intention)

This is accepted as a requirement for defamation – negligence is therefore insufficient
to hold the wrongdoer liable.
National Media v Bogoshi : court introduced negligence as the basis of liability of the
press for defamation.
Grounds excluding fault:
• Mistake: person is unaware of the wrongfulness of his defamatory publication
because he bona fide believes that his conduct is lawful.
• Jest: if the defendant proved that he published the defamatory words in jest, he
should be able to rebut the presumption of animus (intention).
7. In which TWO ways can privacy be infringed? (2)
When you reveal something private of the person to a 3rd

party. When you are a peeping tom.
8. Identify the grounds of justification that a defendant in a defamation case may use in
each of the following situations and substantiate your answer :
(a) T is found guilty of a terrible crime. During his judgment the Magistrate calls him a
‘scumbag’ and a ‘lowlife’. T wants to sue the magistrate for defamation. (2)
Magistrate can use the ground of justification known as fair

comment. Requirements :
1. Defamation must amount to comment.
2. Comment must be fair.
3. Facts on which the comment is based must be true.

4. These facts must be in public’s interest.
9. Identify the grounds of justification that may be available to a defendant in a defamation

case in each of the following situations :
(a) A and B are members of the town council. Both are running for the office of mayor.
At a town meeting arranged by A, B reveals that A was expelled from university
many years ago because he was found guilty of dishonesty during an exam. A wants
to sue B for defamation. (1)
Here B can use the grounds of justification known as truth and public interest.
The prima facie wrongfulness of the B’s conduct will be cancelled if he proves that
the remarks were true and in the public’s interest. B only has to prove that the
remarks are substantially true.
10. X, Y’s father finds out that Y’s fiancé, V, was in jail before he met her. X tells his
daughter this. V accuses X of defaming him.
Which personality interest of V was infringed ? (1)
His right to his good name.
11. Write brief notes on the determining of wrongfulness in a defamation case. (4)
Wrongfulness with respect to the defamation lies in the infringement of a person’s right to
his good name. When determining wrongfulness the question is whether the good name
of the person involved has in fact been infringed is irrelevant.
The only relevant question is if, in the opinion of the reasonable person with normal
intelligence and development, the reputation of the person concerned has been injured.
Following principles apply in respect of this test:
Reasonable person is a fictional, normal, well balanced right thinking person.

Verbal is in most cases is not defamatory because it normally doesn’t injure a person’s
good name.
Words are prima facie of according to the ordinary meaning defamatory or not.
12. Which personality interests are infringed by the following delicts respectively ?
(a) Defamation (½)

(b) Insult (½)

13. Does the publication of defamatory words, according to the courts, take place in the
following circumstances ?
(a) Two Japanese tourists in SA quarrel and in front of a group of South Africans, the
one calls the other a liar and a thief in their mother tongue. (1)
No, because courts don’t consider the disclosure of defamatory words or behaviour
to an outsider who’s unaware of the defamatory character or meaning thereof in
relation to the plaintiff as publication.
(b) Mr. X tells his wife that Z, who works in his office with him, stole some
money. (1)
No, because the communication of defamatory words concerning a 3rd party by one
spouse to another doesn’t constitute publication.
FORMS OF LIABILITY
WITHOUT FAULT
1. Name the THREE requirements for a successful actio de pastu. (3)
Defendant must be the owner of the animal when the damage is

caused Animal must cause damage by eating plants
Animal must act of its own volition when causing damage
2. Define vicarious liability.
Strict liability of one person for the delict of another. The former is indirectly vicariously
liable for the damage caused by the latter.
3. Name THREE requirements for the vicarious liability of an employer. (3)
There must be an employer – employee relationship at the time when the delict is
committed. Employee must commit a delict.
Employee must act within the scope of his employment when the delict is committed.
4. B plans to visit her friend C, who is looking after A’s house. C tells B that there is a vicious
dog on the premises, but promises to lock it up before B arrives. B arrives at the appointed
time. As she enters the premises, the dog appears from behind the house and bites her
leg. Answer the following questions:
(a) What action is available to B in order to recover her damage ? (1)

Actio de pauperie.
(b) Against whom does she institute the action mentioned above ? (1)
Against the owner A.
5. Name FOUR defences that can be raised against the actio de pauperie. (4)
Vis major
Culpable or provocative conduct on part of prejudiced person
Culpable conduct on part of outsider
Provocation by another animal
Voluntary assumption of risk
GENERAL
1. X takes his usual afternoon walk on the footpath on the mountain slope behind the
picturesque town in which he lives. Out of the corner of his eye he notices a huge rock
rolling down the mountain slope in his direction. He gets a fright and swiftly jumps away
in an attempt to avoid being crushed by the rock. In the process he kicks to pieces an
almost completed painting that Y, a famous artist, has been peacefully working on.
However, the rock crosses the footpath harmlessly, several metres away from the spot
where X would have been had he not left the path. Y is very upset about the destruction
of his painting, which he was planning to sell for at least R1 0 000, and wishes to institute
a delictual claim against X.
Are you of the opinion that Y will be able to hold X delictually liable? Discuss. (20)
Because the question does not confine itself to a specific delictual element, it may be
necessary to consider all five elements of delictual liability.
(Note that, for reasons of space and time, examination questions will usually be more
limited in their scope, e.g. asking whether X acted wrongfully, or whether he had been
negligent, etc.)
Act
An act or conduct is defined as a voluntary, human act or omission. It is clear that an act
is present in the given set of facts. The only question is whether this act was voluntary.
Voluntariness means that the act must have been susceptible to control of the will of the
person involved. This does not mean that the person must have willed or desired his
conduct; but simply that he must have been able to control the act. If the act was not
susceptible of control by the will, the defendant can evade liability by raising the defence
of automatism. In the case under discussion, it is highly improbable that X would convince

the court that he acted involuntarily. Impulsive and spontaneous acts do not really amount
to reflex movements and are usually regarded as voluntary. We can conclude that X acted
for the purposes of the law of delict.
Wrongfulness
Now that we have established that X had acted, we must investigate whether his act was
wrongful. The basic criterion of wrongfulness is the boni mores. Two more concrete
applications of the boni mores are respectively the infringement of a subjective right, and
breach of a legal duty, as tests for wrongfulness. A painting is an object of subjective
rights. Apart from the right of ownership (a real right) to the physical canvas and paint,
the painter also has copyright (an immaterial property right) in respect of the artwork as
intangible product of the human mind and endeavour. Infringement of a subjective right
consists of two elements. First a factual disturbance of the subject-object relationship
must have taken place. This means that the alleged wrongdoer must in fact have
interfered with the powers of the legal subject to use, enjoy and dispose of the object of
his right. In the given case, this has indeed happened: As a result of X's conduct the
painter is unable to use, enjoy and dispose of his painting as before. Secondly, this
disturbance must have been caused in violation of a norm, that is, in an unreasonable
or legally impermissible manner. This is established with reference to the boni mores,
the legal convictions of the community. A factual disturbance of the subject-object
relationship will, in the absence of a ground of justification, usually violate a norm.
Therefore one can conclude that unless X can successfully raise a ground of justification,
his conduct was wrongful.
Is any ground of justification available to X ? Necessity exists when the defendant is

placed in such a position by superior force that he is able to protect his own interests (or
those of someone else) only by reasonably violating the interests of an innocent third
party. Whether necessity exists, must be determined objectively. The circumstances
which actually prevailed and the consequences that actually ensued must be considered.
The question is whether a state of necessity actually existed, not whether the defendant
believed it to exist. In the given set of facts it transpires that the rock would not have
fallen on the path where X had been walking. Therefore he was not objectively in danger
even though he subjectively believed he was. His reliance on necessity will therefore fail,
and we can conclude that he acted wrongfully.
Fault
Having now determined that X acted wrongfully, this does not necessarily imply that he
will be liable. In order to complete the answer we need to consider further delictual
elements. Next in line after wrongfulness is fault: Fault may be present in two forms: intent
and negligence. A prerequisite for both forms of fault is accountability. If the alleged
wrongdoer was unaccountable, he cannot be at fault. A person is accountable if he has
the mental abilities to distinguish between right and wrong and to act in accordance with
this appreciation. Factors like youth, mental disease, extreme intoxication, etc. may render
a person unaccountable. There is no indication in the given facts that any such factor is

present, and we may therefore accept that X was accountable and could therefore be at
fault.
Did X act with intent ? A person acts intentionally if his will is directed at a result which
he causes while conscious of the wrongfulness of his conduct. It is very unlikely that X
directed his will at destroying Y's painting. Furthermore, it is even more unlikely that X
was aware of the wrongfulness of his conduct. He probably had no time to consider this,
and even if he did, he probably thought he was entitled to get away from the rock as
quickly as possible to save his own life. The test for intent is subjective (unlike the
objective test for wrongfulness). What X was thinking (namely that his life was in danger)
is thus more important when we consider intent than the objective reality (namely that he
was, in fact, in no danger). Therefore, X did not act with intent.
If X did not act intentionally, he may still have been negligent, and thus negligence is our
next inquiry. According to Kruger v Coetzee a person is negligent if the reasonable
person in his position would have foreseen damage arising from his conduct and would
have taken steps to prevent that harm, and the defendant (or alleged wrongdoer) failed
to take such steps. Negligence is determined with reference to the circumstances of
the particular case.
Determining negligence in a situation like the one in the question is usually referred to
as an application of the so-called "doctrine of sudden emergency". The principle
accepted here is that the law cannot expect a person who has to act swiftly in a situation
of imminent peril to show the same judgment and skill as a person who is not acting
under such circumstances. An error of judgment made in such a situation will therefore
not necessarily amount to negligence.
Our case law contains three requirements which must be satisfied before conduct in a
situation of sudden emergency will not be regarded as negligent :
1. The wrongdoer must have faced a situation of imminent peril.
2. The wrongdoer must not have caused the perilous situation through his own
negligence or imprudence.
3. The wrongdoer must not have acted absolutely unreasonably.
The principle is that although the reasonable person may make an error of judgment, he
or she will not lose his or her head or act completely foolishly. The application of the
"doctrine of sudden emergency" is therefore not an independent test for negligence, but
simply an application of the reasonable person test in specific circumstances, namely a
situation of sudden danger. Applied to the facts in the question, it appears that the above-
mentioned requirements have been met, and the reasonable person in X's position would
probably have acted in the same manner. X was therefore not negligent. X will therefore
not be liable for V's damage.

Powered by TCPDF (www.tcpdf.org) Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn
Powered by TCPDF (www.tcpdf.org)

Stuvia 3662404 pvl3703 Exam Pack 2024

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Stuvia 3662404 pvl3703 Exam Pack 2024

Uploaded by

Copyright:

Available Formats

PVL3703 EXAM PACK 2024

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

FOR ASSISTANCE WITH THIS MODULE +27 67 171 1739

08:00 – 12:00 (4 hours)

First examiner: Prof R Ahmed, Prof JC Knobel, Prof M Mokotong

This is a closed-book examination

INSTRUCTIONS FOR A TAKE-HOME EXAM

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

1. The examination question paper counts 100 marks.

2. It consists of five (5) questions. Answer ALL the questions.

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

5. This examination is proctored via the Invigilator App.

The QR code is below:

6. Your exam file must be uploaded on the myExams platform on Moodle.

9.2 Your examination answer file will not be marked if:

9.2.1 you send your examination answer file via email.

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

REFER TO CASE LAW AND STATUTORY LAW WHERE RELEVANT.

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Critically discuss this statement and refer to relevant authority. (25)

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

TOTAL PAPER: [100]

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

PVL3703 EXAM OCTOBER 2023

1.1 Conduct is defined as a voluntary human act or omission. “Voluntary”

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Defendant may not successfully rely on the defence of automatism where

However, a person cannot rely on automatism if he negligently placed

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Therefore, although Lethabo did not have prior experience with

In South Africa, the traditional test for determining wrongfulness is known as

The traditional objective test focuses on the reasonable person's behavior in

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

In South African law, the subjective element in determining wrongfulness was

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

nuanced analysis that takes into account the realities of individual

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

In the case of Hedges v. N.O.L. Ltd, a similar defense of contributory negligence

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Legal causation, requires a direct connection between the defendant's actions

The test often used to establish legal causation is the "reasonable

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

First examiner: Prof JC Knobel; Prof M Mokotong

This paper consists of seven (7) pages.

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

1. This examination question paper counts 100 marks.

2. It consists of 7 questions. Answer ALL the questions.

3. The duration of the examination on the timetable is four hours.

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

The QR code is below:

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

7.2. Note the file requirements such as:

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

9. It is preferred that your take-home exam is typed.

10.2 Your examination answer file will not be marked if:

10.2.1 you send your examination answer file via email.

Downloaded by: nkwanas54 | nkwanas54@gmail.com Want to earn

Discuss in detail with reference to authority. (15)

In Le Roux v Dey 2011 3 SA 274 (CC) 315, Brand AJ stated: