Learning Outcome 1: Define accountability:

• In terms of the law of the delict, accountability is the capacity to be blamed

or the capacity to be at fault.
• It refers to a persons capacity to distinguish between right and wrong, and
then act in accordance with that distinction.
• Accountability is the basis for blame worthiness to the extent that if a person
lacks accountability, at the time the delict was committed, there can be no
fault on that persons part.

To assess whether a defendant is accountable, one must have an affirmative

answer to two questions:

1. Did the defendant, at the time the delict was committed, have the mental
capacity to distinguish between right and wrong and appreciate the
difference?
2. Did the defendant, at the time the delict was committed, have sufficient
maturity to act in accordance with the appreciation of a distinction between
right and wrong?

Learning Outcome 2: Explain the factors that may negate accountability:

1. Youth:
• Children who are younger than 7 years old (infantes) are irrebuttably
presumed to be of culpa incapax (without legal capacity) and will always
lack legal accountability, irrespective of the child's actual mental capacity.
• Children between the ages of 7 and 14 years old - there is a rebuttable
presumption that these children are culpae incapax, therefore, unless it is
 proven otherwise, these children are regarded as legally incapable of being
blamed.
• Children between the ages of 14 and 18 years of age - children in this
category are presumed to be culpae capax and unless proven otherwise,
these children are legally accountable and liable for their wrongful conduct.

2. Mental disease of illness and emotional distress:

• If at the time of the alleged delict, the wrongdoer suffers from any mental
illness or disease, or emotional distress which renders him or her incapable
of distinguishing between right and wrong, or acting in accordance with an
understanding of the distinction between right and wrong.
• In S v Campher it was confirmed that the person must have failed to control
the impulse to commit the act in issue and that the lack of control must have
arisen from an 'infirmity of will for which he was not answerable'.

3. Intoxication:

• Intoxication, whether while under the influence of alcohol or drugs may

render a person culpae incapax.
• If a person takes an intoxicating substance before committing the delict,
when still accountable, he or she may still be liable for the prior act,
therefore, although a defendant may not have been able to appreciate the
harmful nature of the conduct at the time the harm was inflicted, a court
might still hold the defendant liable.
• In S v Chretien, the Appellate Division identified two opposite "poles" for
describing degrees of intoxication:
i. When a person is slightly intoxicated and there is some altered behavior - in
this case intoxication would not be such that the person could not control
themselves and would still be accountable.
 ii. When a person is so intoxicated that he or she passes out and the only
movements made are due to involuntary muscle spasms, in which event
such involuntary movements are not even categorized as conduct - such
person is culpa incapax.
• People intoxicated to the extent that some people may describe them as
"very drunk", and yet they seem to conduct themselves in a seemingly
rational manner - such persons are regarded as accountable.
• Persons who are "dead drunk", and are unable to know what they are doing -
there is no intention and the question of accountability depends on the
evidence and circumstances of the case.

4. Provocation:

• In circumstances which do not exclude the element of wrongfulness, it may,

depending on its effect of the defendant's behaviour, exclude either
accountability or fault in the form of intention.
• A person can be provoked to such an extent that they lose control over their
ability to act responsibly or, if the provocation is not that extreme, to the
extent that a person will lack consciousness of the wrongfulness of his or her
actions.
• The basis for this defense is that loss of temper due to provocation may
render the provoked person culpae incapax at the time of inflicting harm.
• In Bennett v Minister of Police the court held that verbal provocation cannot
justify a physical assault in 'retaliation', and so does not exclude
wrongfulness.

Learning Outcome 3: Discuss how the Child Justice Act 75 of 2008 changed the
common law position with regard to the accountability of children (VC learn):
 • Infans (0-7 years old) - there is an irrebuttable presumption of doli incapax
which means they can never have legal capacity.
• Impubes (7+ - 14 years old) - there is a rebuttable presumption of doli
incapax , meaning that they can be proven to have capacity.
• 14 - 18 years old are culpa capax. They are considered to be adults in
respect of accountability and unless proven otherwise, they are legally
accountable.

Learning Outcome 4: Comprehensively discuss the legal principles and

requirements governing intent as a form of fault:

• A person acts intentionally only when that person's will is directed at a

specific outcome, knowing that what he or she is doing is wrongful.
• A person will be at fault when he or she intends to cause another person
harm, knowing that it is wrong to do so.
• The enquiry into intention is subjective, courts have to determine what the
defendant actually had in mind at the time of committing the delict.

Forms of intention:
1. Dolus directus
2. Dolus indirectus
3. Dolus eventualis

Requirements/elements/components of intention:

1. Direction of will:
• Requires that a person must have aimed to achieve a certain result, or at
least must have been willing to produce or accept the consequences that
might result.
• A person may direct their will:
 • Directly (dolus directus)
• Indirectly (dolus indirectus)
• By accepting then possibility of other harmful consequences ensuing (dolus
eventualis)

2. Consciousness of wrongfulness:
• Requires that when a person directs his or her will towards achieving a
desired consequence, that person must know that the conduct and the
ensuing consequences are contrary to law and the legal convictions of
society.
• If someone genuinely believes that he or she is acting in accordance with the
law, he or she has not acted intentionally for the purposes of the law.
• If any component is absent or cannot be proved, there is no intention.

Learning Outcome 5: Differentiate between the different forms of intent by

illustrating it with examples:

Dolus • The wrongdoers primary aim is to achieve a

directus particular consequence.
• It is irrelevant whether the wrongdoer foresaw the
desired outcome as a possibility or as a certainty.
• The fact that the wrongdoer desired a certain
consequence and acted in a way to realize that
consequence is enough to establish direct
intention.
• For example: if one person deliberately says
something to hurt another persons feelings.
Dolus • A person has direct intention in terms of a certain
indirectus consequence, while effecting this consequence,
the person foresees that another harmful
consequence will also take place if the first
consequence is to be realized.
• For example: John wishes to steal a car radio from
a locked car, and he realizes and accepts that he
will also have to break a window or damage the
car in some other way to get to the radio. The
damage to the car is not his main objective, but it
is an inevitable consequence if he wants to
execute his main objective, which is to steal the car
radio. The owner of the car will be able to sue

John for damage to the car by relying on dolus

indirectus as a form of fault.
Dolus • In executing a plan to cause harm, a person
eventualis foresees a wrongful consequence that is not
desired, but nevertheless reconciles themselves
with the possibility that it might arise and
continues to execute the plan to cause harm.
• Entails a 2 part enquiry:
1. Did the wrongdoer subjectively foresee or
realize that the harmful consequence might
ensue?
2. Did the wrongdoer reconcile himself with
that realization by nevertheless continuing
with his actions?

• For example: John aims a large stone at Sam, who

is standing with 2 friends. John foresees that he
might hit one of the friends instead, but
nevertheless proceeds to throw the stone at Sam.
Dolus eventualis is present, since John
subjectively foresaw that he might injure someone
else and reconciled himself with the fact that one
of Sams friends might get hurt.
Learning Outcome 6: Distinguish between intent and motive:

Intention Motive

• a technical, legal term • the reason that triggered the

which describes a persons formation of intention, or the
reprehensible state of "actuating impulse preceding
mind. intention".
• may also indicate whether
consciousness of wrongfulness is
present,
in that a good motive may sometimes
indicate lack of consciousness of
wrongfulness, while in malicious
motive might indicate the intention
to do harm.
• a good motive will not save a
person who knows that what he or
she is doing is wrongful

Learning Outcome 7: Discuss the test used to establish negligence as set out in
Kruger v Coetzee 1966:

For the purposes of liability, culpa arises if:

a. A diligens paterfamilias in the position if the defendant:
• Would foresee the reasonable possiblity of his conduct injuring another in
his person or property and causing him patrimonial loss, and
• Would take reasonable steps to guard against such occurrence, and
b. The defendant failed to take such steps.
In the Kruger case it was stated that 4 important issues must be assessed in order
to determine whether a defendants conduct was reasonable or unreasonable:

One:
• Place a reasonable person in the same position as the defendant

Two:
• Evaluate the situation and circumstances to see whether a reasonable person
in the defendant's position would have foreseen the possibility of harm
arising from the conduct.
• If a reasonable person would have foreseen that the relevant conduct might
cause harm, then one can move to the next issue.

Three:
• Would a reasonable person have done anything to prevent the harm from
occuring if the conduct continued.
• One must assess what steps were available to the defendant in the particular
circumstances. This is done by assessing the availability of alternative steps
that would have prevented harm, and whether they were reasonable and
practical in then circumstances.
• If then defendant did take some measures to prevent the harm, then plaintiff
must show that such measures were either unreasonable or inadequate, with
reference to what a reasonable person would have done in the
circumstances.

Four:
• Compare the defendant's conduct to the course of action that the court
thinks a reasonable person would have taken in the circumstances.
• If it appears that the defendant did nothing, or did less than what a
reasonable person would have, the defendant's conduct was 'sub-standard'
or unreasonable and therefore negligent

Learning Outcome 8: Discuss the concept of gross negligence with reference

to case law:

• Gross negligence refers to a reckless and culpable disregard for the safety
and well-being of others, resulting in harm or damage.
• In the case of Kruger vs Coetzee gross negligence was defined as a reckless
and wanton disregard for the safety of others, amounting to a breach of a
duty of care which a reasonable man would observe in the circumstances.

Learning Outcome 9: Distinguish between negligent misstatement and an

omission:

Negligent Misstatement Omission

• A positive act involving • Failure to prevent

a false or inaccurate harm when or injury
statement made by a person when one had a duty
with a duty of care which to do so.
results in harm or damage.
 Learning Outcome 10: Describe the general characteristics of a reasonable
person:

• The reasonable person:

• is a fictitious or abstract concept that expresses the standard according to
which one measures the reasonableness of a defendant conduct.
• is a standard of the ordinary individual who takes reasonable chances and
reasonable precautions to protect interests, while expecting the same
conduct from others.

• The reasonable person criterion is an expression of what society expects of

it's members in their everyday life, this will change according to the changes
in society's expectations.

• The reasonable person standard requires:

• an adequate and consistent level of care on the part of all legal subjects
• must be sensitive to a society where people have various skills and levels of
intellect, and are of different ages.

• Reasonable conduct means that a person must have acted appropriately in

the circumstances, and behaved in the same way that a reasonable person
would have behaved in the same circumstances.
• Should harm arise despite a person's reasonable behaviour, the behaviour
remains reasonable and that person would not be at fault.
 Learning Outcome 11: Discuss the approach taken by our courts to the
negligence of children and experts, respectively:

Negligence of Children:

• Before 1965 the reasonable child test was conducted in order to determine
whether a child was negligent.
• In 1965 the Appellate Division in the Jones case established a new approach
which stipulated that in determining whether a child acted negligently:
• it must be ascertained whether the child concerned met the standard of care
required of a reasonable person.
• if the child did not meet the requirements of the first test, it must be asked
whether the child was culpae capax.

Negligence of Experts:

• Where a defendant possesses a skill or competence gained by training and

experience, a higher standard of care is expected.
• Deviation from the general practice in a particular field of expertise
constitutes only prima facie negligence.
• Based on all circumstances and evidence, courts must be satisfied that an
expert opinion of the general practice of that particular field of expertise has
a logical basis, and that the relevant risks and benefits are considered.

Learning Outcome 12: Explain the meaning of an expert:

An individual who has specialized knowledge and expertise in a specific

field.
 LO17: Explain the distinction between wrongfulness and negligence

Wrongfulness Negligence

• The reasonableness of • The reasonable persons

the defendants conduct conduct is determined
is determined by the with reference to
weighing up of the reasonable foreseeability
conflicting interests in and preventability of the
the light of the legal damage.
convictions of the
community
(boni mores)

Contributory Fault
• a plaintiff's conduct contributed to the harm they suffered
• common law position-fault on the part of the plaintiff precludes him from
claiming damages from the defendant, who was also to blame for the
causing of the damage. If 2 people were at fault, neither could claim
damages unless one was more to blame than the other.
 LO18: Briefly distinguish between fault and contributory fault.

Fault Contributory Fault

• Fault refers to the • Contributory fault, also

blameworthiness of known as contributory
the defendant's negligence, refers to the
conduct. It plaintiff's own lack of
encompasses both care or negligence that
intent (dolus) and contributes to the harm
negligence (culpa). they suffered.

LO25: Describe consent to the risk of injury and contributory intent in relation
to Netherlands Insurance v Van der Vyver 1968 1 SA 412 (A).

• Contributory intent involves the plaintiff's intentional actions that contribute

to the harm they suffer.
• contributory intent requires a deliberate and conscious decision by the
plaintiff to engage in risky behavior.

• In the Van der Vyver case, Van der Vyvers decision to ride with an intoxicated
driver was seen as an intentional acceptance of a known risk.By getting into
the car, Van der Vyver contributed to the circumstances that led to his injury.
The court needed to assess whether Van der Vyver's decision to ride with
Marais amounted to contributory intent. This required proving that he
consciously chose to expose himself to the danger.The court determined
that Van der Vyver's actions did exhibit contributory intent, as he knowingly
exposed himself to the risk of injury by riding with an intoxicated driver.
• The finding of contributory intent meant that Van der Vyver's claim for
damages was affected. The court ruled that his intentional behavior in
accepting the risk reduced the insurer's liability.

Learning Outcome 14: With reference to case law, describe the four
factors that make up the preventability leg of the negligence test:

• Nature and extent of risk inherent in wrongdoer's conduct

• Seriousness of damage if risk materializes and damage follows
• Relative importance of wrongdoer's conduct
• Cost and difficulty of taking precautionary measures

Learning Outcome 16: Describe the effect of the res ipsa loquitor

• Res ipsa loquitur maxim translated means "the thing speaks for itself"and has
a significant effect on the burden of proof in certain cases.
• It is a doctrine that infers negligence or liability based on the circumstances
of a case, where:
1. The event is of a type that doesn't normally occur without negligence.
2. The defendant had exclusive control over the thing or instrument that
caused the harm.
3. The plaintiff didn't contribute to the harm.

The effect of res ipsa loquitur is to:

• Shift the burden of proof from the plaintiff to the defendant.
• Require the defendant to provide an explanation for the event, or to prove
that they were not negligent.
• Allow the court to infer negligence or liability, even if there is no direct
evidence of it.