LAW OF DELICT: LADE7111

PM: Chapter 5 and 14.

See MO for LO’s and Readings

UNIT 2: CONDUCT
Sean Jackson (LLB,LLM, Attorney of the High Court)

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 Overview of Learning Unit 2
Delict is a branch of private law that looks to provide compensation to legal
persons who have suffered harm. There are five elements of delictual liability,
conduct being the first, which we will discuss in this learning unit. Conduct is a
general prerequisite for delictual liability. Damage must be caused by
something, and in the case of delict, it is caused by conduct. Conduct may be
defined as a voluntary action or omission.

In this learning unit, we will look at the nature and characteristics of conduct,
the different types of conduct, and the defence of automatism.

Please work through Theme 1 on Learn, together with the relevant sections of
your prescribed source/s. To ensure that you are working towards mastering
the objectives for this learning unit, please complete the following activities on
Learn.

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 Overview of Learning Unit 2
LO1: Identify the characteristics of the act or conduct required for delictual liability.

LO2: Fully discuss the concept of voluntariness.

LO3: Explain the general term used for the defence that excludes voluntariness and
what this defence entails.

LO4: Identify the conditions that may cause a person to act involuntarily.

LO5: Discuss the effect that actio libera in causa has on liability.

LO6: Discuss the relevance of the distinction between a positive act (commission)
and an omission.

LO7: Using illustrative examples, distinguish between an omission and deficient

positive conduct (culpa in faciendo).

LO8: Apply the legal principles relating to the element of conduct to a set of facts,
with reference to relevant authority.
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 Overview of Learning Unit 2
Students are to read these cases and prepare accordingly for LU2.

Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC).

Molefe v Mahaeng 1999 1 SA 562 (SCA).

Stedall and Another v Aspeling and Another 2018 2 SA 75 (SCA)

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 NATURE AND CHARACTERISTICS OF CONDUCT
• In order to constitute a delict,
• one person must have
• caused damage or harm to
• another person by means of an
• act or conduct

CONDUCT = PREREQUISITE FOR DELICTUAL LIABILITY

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 DEFINITION OF
CONDUCT A VOLUNTARY HUMAN ACT OR OMISSIOIN

CHARACTERISTICS OF CONDUCT

1. HUMAN ACT:
•Only an act of a human being = conduct
• NOTE: where human uses an animal as an instrument in commission of delict = human
act
• also juristic person may act through its organs (humans) and be delictualy liable for such
actions
• RULE used to determine whether human conduct may be attributed to juristic person for
delictual liability : an act performed by or at the order of or with the permission of a
director, official servant of juristic person in the exercise of his duties or functions in
advancing or attempting to advance the interests of the juristic person, is deemed to be
have been performed by juristic person

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2. CONDUCT PERFORMED MUST BE VOLUNTARY:
• human action only = conduct if it is performed voluntarily i.e. If it susceptible to
control by the will of the person involved
• voluntariness implies that person has sufficient mental ability to control his muscular
movements
• NOTE: voluntariness does not mean person must have willed or desired his conduct
• i.e. X forgets to warn people that an electric current has been switched on and
someone is electrocuted as result

3. COMMISSION OR OMISSION:
• conduct must be in form of a positive act (commission) or an omission

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 DEFENCE OF AUTOMATISM ( PERSON ACTED
MECHANICALLY NOT VOLUNTARILY)

1. Absolute compulsion
Following conditions 2. Sleepwalking
may cause person to 3. Unconsciousness
act involuntarily in that 4. Fainting fit
they render him 5. Epileptic fit
incapable of controlling 6. Serious intoxication
his bodily movements 7. Black-out
8. Reflex movements
9. Strong emotional pressure
10. Mental disease
11. Hypnosis
12. Heart attack

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 DEFENCE OF AUTOMATISM ( PERSON ACTED
MECHANICALLY NOT VOLUNTARILY)

In respect of sane automatism the onus is on the Plaintiff to prove the

defendant has acted voluntarily and, therefore, not mechanically.

Sane automatism: where automatism is not a consequence of mental illness.

I.e. where the automatism is caused by something other than a 'disease of
mind', e.g. concussion, hypoglycaemia, drug induced psychosis, sleepwalking
and some cases of dissociation and epilepsy.

Automatism does not mean that there is no voluntary act whatsoever by the
defendant which caused the damage, but only the conduct in question was
not voluntary i.e. the act closest to the harmful consequence is of relevance
and therefore not necessary to consider prior voluntary conduct

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 Absolute compulsion (vis absoluta)

• can be exerted by human agency or forces of nature

•i.e. of human agency = X pushes knife into Y’s hand and then without Y being able to
offer resistance, takes hold of Y’s hand and forces it into Z – Y did not act but was
merely being used as instrument by X

• NOTE: relative compulsion (vis compulsiva)= X points gun at Y and orders him to
damage Z’s car. Because Y is scared for his life he does it = despite compulsion Y could
still decide whether to offer resistance or not – Y could escape liability by justification
of necessity

Sleepwalking

• Or where a person awakes from a nightmare and then mechanically reacts to

the dream he just had.

Prior voluntary conduct – x buys a knife which he keeps at his bedside when
he sleeps. X dreams he is being attacked while half asleep he grabs knife and
stabs Y who is in the bed next to him – X’s conduct i.e. stabbing Y = involuntary
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 Fainting fit

• amnesia after voluntary act i.e. person cannot recall what has happened does
not constitute defence of automatism. Question is whether person involved
would at the relevant time control his muscular movements and not whether he
can later recall what happened

Epileptic fit

• i.e. X during epileptic fit stabbed and killed his sister – court held stabbing
was part of muscular activity by accused during unconsciousness therefore
did not act voluntarily

Serious intoxication

• usually person under influence is capable of acting voluntarily

although he may lack accountability – in exceptional cases, intoxication
leads to automatism

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 Black-out

• CASE LAW: Molefe v Mahaeng 1999 1 SA 562 (SCA)

• FACTS: defendant pleaded was overcome by sudden unforeseen and
uncontrollable blackout
COURT HELD: this defence must be approached with caution but also held Plaintiff
bears onus of proving voluntary and negligent act on part of defendant
( in this case Pl did not succeed in discharging onus)

Reflex movements

•i.e. Deceased tickled accused from behind and he suddenly turned around
and stabbed and killed him
• defence = it was mere reflex and therefore no conduct on accused part
• court held if accused was so ticklish that he could not control his actions =
no murder
• but here defence was rejected by court – court said he could control his
conduct
•Impulsive or spontaneous acts do not amount to reflex movements and are
regarded as voluntary 12
 Strong emotional pressure

• Accused charged with murdering his wife

• According to evidence, he was under emotional stress and there was
provocation on the part of his wife
• Court found that the evidence did not prove that the accused acted voluntarily
and that his conduct was subconscious
Mental disease

• a person suffering form mental disease usually acts voluntarily even

though he lacks accountability
NOTE: defence of automatism will not succeed:
1. if defendant intentionally created the situation in which he acts involuntarily in order
to harm another – known as actio libera in causa – defendant will be held liable for
his culpable conduct in creating the state automatism
2. If defendant was negligent with regard to his automatic conduct, i.e. Reasonable
man would have foreseen possibility of causing harm while in a state of automatism
1 =X becomes intoxicated or uses drugs with intention to injure Y when he is later
unable to control himself.
2 = drinking alcohol while knowing or reasonably foreseeing that you will drive later;
knowing that harm may be caused by spell of sleepwalking but not taking
precautions or knowing will suffer from epileptic fits and nevertheless driving a car 13
 COMMISSION AND 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 prevent damage to another

• In general, legal nature of conduct is determined by particular context in which it occurs

• Inaction as a part or stage of some positive activity can therefore constitute or indicate
negligence on the part of the actor – negligence by definition = a failure to take
reasonable precautions

• many omissions are merely indications of legally deficient positive conduct:

 To drive a car through a stop street into another car constitutes a course of positive
conduct i.e. driving a car
 Failure to stop (omission) is negligent or deficient positive conduct (culpa in faciendo)

• Where X already has control over a dangerous object (i.e. a fire) and fails to take
reasonable steps to prevent harm to others, it is more likely a case of negligent exercise of
control (commission) than of an omission

• NOTE this must be distinguished from case where person fails to take precautions against
the occurrence of damage and his failure is not an integral part of positive conduct
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Examples:

1. owner of land failing to exercise any control

whatsoever over a fire which has started on his These cases
land without his doing constitute omissions
2. policeman neglecting to protect someone who in that there is a
is being assaulted by 3rd person failure to take any
3. police failing to prevent dangerous criminal positive steps
from escaping and he subsequently rapes whatsoever to
woman prevent damage to
4. Champion swimmer seeing child drowning in a other people
swimming pool and ignoring incident
5. Police and prosecutor failing to oppose bail
application of a dangerous criminal who
seriously assaults a woman after his release NOTE: whether
6. Police failing to take an injured person in a omission is wrongful
police cell for medical treatment and he i.e. whether there is
subsequently sustains brain damage a legal duty to act
7. Police failing to prevent a dangerous criminal positively = separate
from escaping and he subsequently rapes issue
woman (security gate left unlocked)
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 CLASS ACTIVITY

Question 2 (Marks: 20)

Students are to read questions carefully an answer in essay format. Where

appropriate, students may refer to case law to substantiate their answers.

Q2.1 With reference to practical examples, distinguish between the two types
of conduct. (6)

To assist you refer to: LU2 TB Chapter 5 Para 5.4

Q2.2 Themba is driving home from work when he has an unexpected seizure
whilst behind the wheel. He ends up driving straight through a stop
street and colliding with a cyclist, subsequently breaking the cyclist’s leg.

Advise Themba whether he may have any defence against a delictual

claim against him. (14)

To assist you refer to: LU2, TB chapter 5, para 5.2 & 5.3

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