SU 2

CONDUCT
 Five elements of a Delict

CONDUCT HARM CAUSATION FAULT WRONGFULNESS

Baking a cake.
At least 5 ingredients:
• The delictual sequence of events starts somewhere.
• Something happens that puts things in motion.
• What do we call this?
• i.e= something happens.
SU 2.1 Nature and characteristics of
conduct

L&M pp. 95-96

STUDY OUTCOMES
After studying the materials and completing the activities
in this study section you should be able to:
• Define the term conduct, and
• Describe the nature and characteristics of conduct
 Characteristics of conduct

Can mere thoughts, without being manifested give rise
to delictual consequences?

General rule: Delictual liability is based on voluntary
human conduct

Elements:

1. Human

2. Voluntary

3. Act or omission

• One has to be able to link the harm suffered to the

conduct of a person, or the behaviour of an animal.
 Act or
Human Voluntary
omission
SU 2.2 Human
Conduct
L&M 96,99
Study Outcomes

After studying the materials and completing the activities in this study section
you should be able to:

• Explain whether the definition of conduct includes the acts of animals; and

• Determine whether a juristic person can act for purposes of delictual liability.
Human Conduct
General rule: Human conduct forms the subject of delictual inquiry.

Human= Natural person

Juristic persons?

Objects or animals as instruments?

Human conduct: Animals

Distinction between animal as an instrument and actio de pauperie

1. Animal may be used as instrument to bring about an unlawful

consequences

- For example, instructing your dog to bite your enemy.

- Owner liable

2. Actio de pauperie
- Owner of domestic/domesticated animal liable for harm caused by
animal
- Dog bites someone hospital expenses
- Liability transferred / imputed to owner
- Claim is against owner
Human Conduct: Juristic Persons


Conduct of the juristic person’s office bearers or organs
that is attributed to the entity.


Eg: A decision of a board of directors becomes the
decision of the company.
Human Conduct: Juristic Persons

Liability without fault= vicarious liability


Delict committed by an employee is attributed to
the employer provided that the requirements are
met.


Basis for delictual liability?
SU 2.3 Study Outcomes
After studying the materials and completing the

Voluntary activities in this study section you should be able

to:

Conduct • Explain what "voluntary conduct" entails;

• Define the term "automatism" and list at least three

L&M 96-98 conditions that may result in automatism; and

• Identify the situations where a defence of

automatism will not succeed.
Conduct subject to the will or control of the actor.
The person should be able to direct muscular activity or to
prevent such activity.
Subject or susceptible to the control of the actor’s conscious
will.

Can a child or a person with mental illness act voluntarily? SU 2.3 VOLUNTARY
Yes. This is because conduct is based on the mental capacity CONDUCT
to direct muscular activity.
They may, however lack accountability or the capacity for
fault.
Will therefore not be held liable.

Lack of accountability:
lacks the ability to distinguish between right and wrong
and/or to act in accordance with that distinction.
Occurs when the defendant asserts that he or
she behaved involuntarily “mechanically” or
lacked the capacity to act voluntarily: can rely
on defence of automatism

• Conditions that may eliminate ability to

control muscular movements (means person did
not act voluntarily):
-Absolute compulsion(vis absoluta); distinguish Defence of automatism
from
relative compulsion (vis compulsiva)
-Sleep

https://youtu.be/s0pCLU72Bc0
- Epileptic episode
- Extreme intoxication
- Extreme emotional state
Hypnosis?
• https://
www.psychologyto
day.com/us/blog/
the-human-
equation/201207/
look-my-eyes-and-
kill-your-husband
 • Consider the following examples: Will a defence
of automatism succeed in these instances?

• 1. While slicing an orange, Jane’s brother who is

much bigger and much stronger than her grabs her

EXERCISE hand while she is holding the knife and forces the
knife into the chest of Sam.

• 2. Eric kicks over an expensive vase when he is

tapped with a ruler on his knee, which causes it to
jerk upwards.

• 3. While sleep walking, Sammy walks gets into her

car and driving into Emma’s house causing damage
to the structure of the house.
 • What happens where X intentionally causes a situation
• where he acts involuntarily (in order to harm Y)?

• - E.g. X intentionally gets intoxicated, in order to harm Y,

when he can no longer control himself (actio libera in

? causa)

• - S v Baartman: Will not be able to rely on automatism

• Intentional prior conduct

 • Defendant voluntarily engages in conduct that may
lead to automatism: still liable if defendant should
reasonably have foreseen causing harm in that state

Negligent • For example, neglecting to take your epilepsy

prior Medication.

conduct • Does voluntary (prior) conduct meet the standard of

a reasonable person? If not: negligent
 • Defendant voluntarily engages in conduct that may
lead to automatism: still liable if defendant should
reasonably have foreseen causing harm in that state

Negligent • For example, neglecting to take your epilepsy

prior Medication.

conduct • Does voluntary (prior) conduct meet the standard of

a reasonable person? If not: negligent



SU 2.4 Commissio/ Omissio


L&M pp. 99


Study Outcomes

After studying the materials and completing the activities in this study section you should be
able to:

1. Distinguish between a positive act (commissio) and a failure to act (omissio); and

2. Explain why this distinction is relevant in the context of delictual liability




SU 2.4 Commissio/ Omissio


Commissio: Positive act


Omissio: Failure to act


NB: Not always easy to distinguish between commissions and omissions, especially when
the conduct is continuous.


See page 99 of TB for examples.



SU 2.4 Commissio/ Omissio

- A failure to stop is not an omission, but rather an indication that a positive act
was performed negligently

- Look at the context of the conduct to make a distinction.

- Is failure to do something part of continuous positive conduct?

- The same conduct might at the same time constitute both a positive act and
an omission.
 SU 2.4 Commissio/ Omissio - EXERCISE
Commissio or Omissio or both?

1. Vusi is driving to the mall and on his way there he fails to stop at a stop sign and collides with
an oncoming vehicle.

2. Sarah fails to keep a proper look-out and collides into a car.

3. After long night of partying Jane decides to go home by herself. She sees a police van
approaching and stops it and asks the policeman to take her home. The police man instead
takes her to a secluded place and rapes her.