Chapter 8

Fault
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8.1 Introduction

8.2 Accountability
8.2.1 Youth
8.2.2 Mental disease or illness and emotional distress
8.2.3 Intoxication
8.2.4 Provocation

8.3 Intention
8.3.1 Dolus directus or direct intention
8.3.2 Dolus indirectus or indirect intention
8.3.3 Dolus eventualis or intention by acceptance of foreseen result
8.3.4 First component of intention: Direction of will
8.3.5 Second component of intention: Consciousness of wrongfulness
8.3.6 Special cases: Intention comprising direction of will only
8.3.7 Difference between motive and intention
8.3.8 Proving intention

8.4 Defences that exclude intention

8.4.1 Mistake
8.4.2 Jest
8.4.3 Intoxication
8.4.4 Provocation
8.4.5 Emotional distress

8.5 Negligence
8.5.1 The concept of negligence
8.5.2 Characteristics of a reasonable person
Copyright 2018. Oxford University Press Southern Africa.

8.5.3 The test for negligence

8.5.3.1 Foreseeability and preventability
8.5.3.2 Foreseeability of harm
8.5.3.3 Preventability of harm
8.5.4 Circumstances and factors that indicate the required standard of care
8.5.4.1 General practice
8.5.4.2 Legitimate assumption of reasonable conduct of others
8.5.4.3 Sudden emergency and error of judgement
8.5.4.4 Breach of statutory duty
8.5.4.5 Dealing with inherently dangerous things, persons or circumstances 8.5.4.6
Danger to children or people with disabilities or incapacities
8.5.5 Attributes of defendants that influence the standard of care required for reasonable
conduct
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AN: 1706001 ; Andr Mukheibir, Devina Perumal, Liezel Niesing, Bernard Wessels, James Linscott, Phumelele Jabavu, Priya P. Singh, Max Loubser, Rob Midgley.; The Law
of Delict in South Africa 3e
Account: s8408540.main.ehost 137
 8.5.5.1 Beginners
8.5.5.2 Experts
8.5.5.3 Children
8.5.6 Proving negligence

8.6 Conclusion

8.1 Introduction
To establish delictual liability, it is not enough to show that the harm was caused wrongfully. One must
also show that the defendant was at fault. The fault element has two components: (a) the person must have
been accountable at the time of causing the harm (that is, the person must have had the capacity to be at
fault), and (b) the person must have been culpable or blameworthy (that is, the person must have acted
either intentionally or negligently).1 So, in this chapter, we first consider the issue of a person’s legal
capacity to be at fault and we set out the requirements for establishing a person’s accountability. Thereafter
we discuss the nature of intention and negligence and the requirements that need to be met before a person
can be said to be culpable.
Accountability focuses on a person’s ability and maturity; culpability focuses on a person’s mindset or
conduct. So, in a sense these concepts have a subjective aspect to them. In the next sections, we describe
how accountability and intention are both entirely subjective, in that one must investigate the ability and
maturity (accountability) and/or the state of mind (intention) of the particular individual in question, and
how negligence involves a more objective assessment, in that one measures the individual’s conduct
against the standard set by society. However, negligence also has subjective elements, because one
assesses the situation by placing the reasonable person in the position of the defendant and considering the
specific circumstances at the time.

TERMINOLOGY Fault
Fault, as an element of delictual liability, requires that one must be able to
blame and hold a person responsible for the harm that was wrongfully
caused to another. One is thus concerned with the question of whether or
not a person is blameworthy. The Latin term for fault is culpa in the wide
sense. Therefore, a person’s blameworthiness is referred to as a person’s
culpability. Fault generally takes two forms: intention ( dolus) and
negligence (culpa in the narrow sense).

Dolus
The Latin term for intention is dolus. Under the actio iniuriarum, intention
is referred to as animus iniuriandi (translated as ‘the will to injure’). The
term ‘intention’ is a technical legal expression that describes a
wrongdoer’s will to achieve a specific wrongful consequence and refers to
a person’s state of mind regarding wrongful conduct and its
consequences. In Minister of Justice v Hofmeyr 2 the Court defined
intention as ‘a reflection of the will’. In contrast to negligence, the test for
intention is entirely subjective, because it involves evaluating a
defendant’s mindset (or will) in relation to the particular consequences
and whether the defendant actually knew that causing such
consequences would be wrongful.

Culpa
In this chapter we use culpa in the context of its narrow application of
denoting negligence as a form of fault. Culpa, or negligence, refers to a
situation where a person has not met the standard of conduct that society

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 deems appropriate in the circumstances. This means that one evaluates a
person’s conduct according to a general standard of care as required by
law. The standard is expressed with reference to a ‘reasonable person’.
Therefore, negligence involves an objective evaluation of a person’s
conduct, because one measures the conduct against a standard outside
the particular person’s mindset.

Accountability
Accountability in the law of delict means the capacity to be blamed, or the
capacity to be at fault. Our law will not hold accountable someone who
does not have the ability, or sufficient maturity, to know the difference
between right and wrong and to act in accordance with such knowledge.
So, before one can enquire into whether a person is at fault, either in the
form of intention or negligence, one must establish whether that person is
capable of being blamed.

8.2 Accountability
Accountability is a prerequisite for finding a person blameworthy, or at fault. The concept refers to a
person’s capacity to distinguish between right and wrong, and then to act in accordance with that
distinction. If a person is not legally accountable, one cannot impute blame, and the element of fault is not
satisfied. Culpability refers to the law’s judgement of an accountable person’s state of mind (intention), or
of the inadequate quality of a person’s conduct as measured against society’s standards (negligence).
Therefore, to establish fault, the first step is to enquire into the defendant’s accountability. Then, only
when one has established accountability, does one move on to the second step and evaluate the defendant’s
culpability. Accountability is, therefore, the basis for blameworthiness to the extent that if a person lacks
accountability, at the time the delict was committed, there can be no fault on that person’s part.
To assess whether a defendant is accountable, one must have an affirmative answer to two questions.3
Did the defendant, at the time the delict was committed:
1. Have the mental capacity to distinguish between right and wrong, and appreciate the difference?
2. Have sufficient maturity to act in accordance with the appreciation of a distinction between right and
wrong?

When answering these two questions, it is important to keep in mind the entirely subjective nature of the
concept of accountability: one is concerned with the defendant’s ability, at the time of the delict, to
distinguish between right and wrong, and to act accordingly.

PAUSE FOR Assessing accountability

REFLECTION When answering these two questions, there are four important aspects:
1. Both questions must be answered in the affirmative to establish that a defendant is
accountable. So, if the first question is answered in the negative, there is no need to
proceed to the second question. If the first question is answered affirmatively and the
second question is answered in the negative, there is still no accountability, and no
blame can be imputed.
2. Accountability is an entirely subjective concept where one assesses the defendant’s
ability to distinguish between right and wrong, and to act accordingly. One does not
assess the category of persons into which the defendant might fall.
3. The ability to distinguish between right and wrong is based on both knowledge and an
appreciation of what is right and wrong.
4. The relevant moment for assessing accountability is the time when the delict was
committed.

There is a general presumption that persons (natural and juristic) are accountable, or culpae capax, for

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 harm that they have wrongfully caused. However, the law recognises that certain personal attributes or
circumstances will either exclude accountability, or negate the presumption of accountability. There is no
closed list, but the following are recognised categories where persons could be found to lack
accountability, or the capacity to be at fault:
• Youth
• Mental illness
• Intoxication or a similar condition induced by a drug
• Anger due to provocation.

The existence of these attributes or circumstances forms the grounds upon which a defendant can show the
absence of accountability. In other words, these attributes can be used as defences to exclude
accountability.

8.2.1 Youth
There are three categories where youth may exclude accountability:
1. Children who are younger than seven years (infantes): Children in this category are irrebuttably
presumed to be culpae incapax or ‘without legal capacity’. Therefore, irrespective of the child’s actual
mental capacity, children under seven years of age always lack legal accountability.
2. Children between the ages of seven and fourteen: In these instances, there is a rebuttable presumption
that a child over the age of seven, but under the age of fourteen is culpae incapax. Therefore, unless
proven otherwise in any particular case, children in this category are regarded as legally incapable of
being blamed.
3. Children between fourteen and eighteen years of age: Children in this category are presumed to be
culpae capax. Unless proven otherwise, children in this category are legally accountable and liable for
their wrongful conduct.
Weber v Santam Versekeringsmaatskappy Bpk4
While playing in the sand in front of a block of flats, Marius Weber (seven years and two months old)
was run over by a motorist who was reversing from a parked position. The issue was whether Marius
had been contributorily negligent. For such a finding, the Court had to determine Marius’ capacity to
be at fault. Evidence indicated that Marius’ mother had on previous occasions told him to keep a
lookout for cars, and also that Marius had enough time to assess the situation and ensure he was
playing out of harm’s way.
The Appellate Division confirmed that the test for accountability is a subjective one where the
focus should be on Marius’ mental capacity at the time of the accident, with due regard to the child’s
abilities in the particular situation. It reiterated the cautionary rule in respect of children aged just
over seven, as well as the importance of presuming that children between seven and fourteen are
culpae incapax.5 The Court also warned against ‘placing an old head on young shoulders’,6 and so,
in assessing Marius’ capacity it took into account the fact that he had only just turned seven, as well
as his intellectual development, maturity and impulsiveness. The Court found that, although Marius
was aware of the danger of cars, the ‘inherent weakness associated with tender age and the
propensity of children’7 caused him to have a child-like preoccupation with making roads in the sand,
which in turn deprived him of a consciousness of the surrounding activities and his mother’s
previous warnings. The Court accordingly held that Marius was culpae incapax, not contributory
negligent, and that he was entitled to the full amount of his damages. In essence, therefore, while
Marius might have understood the difference between right and wrong, he lacked the maturity to act
in accordance with such understanding.

Eskom Holdings Ltd v Hendricks8

Hendricks’ son, Jacques (who was eleven years and eight months old), sustained serious injuries
when he went too close to a high-voltage power line that was suspended from one of Eskom’s
pylons. To reach the point where the accident occurred, Jacques had to climb to a height of 14 m
above the ground after first going through an anti-climbing device. Apparently Jacques, his younger
brother, and a younger friend were taking their dog for a walk when they challenged each other to
see who could climb the highest. As Jacques was climbing, he stopped to take a rest and the glass

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 insulators, which he described as greenish glass saucers, caught his eye. Out of curiosity, he
climbed further out onto the cross-arm of the pylon to feel their texture. According to an expert’s
evidence, Jacques’ head came too close to the power line that was suspended from the cross-arm
immediately above him. The strong voltage caused the current to jump across the space between
the power line and Jacques’ head. The shock, from 66 000 V, flung the boy from his perch. When
Hendricks claimed damages, Eskom denied liability and also claimed contributory negligence on
Jacques’ part.
In assessing whether Jacques was indeed culpae capax at the time of the incident, the Court
referred to Weber v Santam Versekeringsmaatskappy Bpk 9 and reiterated that it needed to
recognise the inherent weakness in children to act irrationally and impulsively due to their tender
age. Therefore, although children can distinguish between right and wrong, they will often not be
able to act in accordance with that appreciation, because they can become so engrossed in their
play that they become oblivious of other considerations. The Supreme Court of Appeal had no doubt
that Jacques had appreciated that if he climbed past the anti-climbing device he ran the risk of falling
and hurting himself. However, while he was climbing, the glass insulators, which had nothing to do
with why Jacques climbed up the pylon, attracted his attention. His fascination by these glass
saucers prompted him to climb towards them so that he could touch them. The Court said that
Jacques’ emotional and intellectual maturity had to be assessed according to this particular conduct.
On the evidence, the Court concluded that Jacques’ conduct was typical of the impulsive behaviour
in which children sometimes engage, and that this was an instance where the warning against
‘placing an old head on young shoulders’ should be heeded. The Court held that the conduct in
question (that is, touching the insulators out of curiosity) was indicative of Jacques’ inability to act in
accordance with any appreciation he may have had of the danger involved. Accordingly, the Court
held that Eskom had failed to rebut the presumption that Jacques was culpae incapax at the time of
the accident, and so he had not been contributory negligent.

8.2.2 Mental disease or illness and emotional distress

A wrongdoer is culpae incapax if, at the time of the alleged delict, he or she suffers from any mental
illness or disease, or emotional distress that renders him or her incapable of distinguishing between right
and wrong, or of acting in accordance with an understanding of the distinction between right and wrong. In
S v Campher 10 the Appellate Division confirmed that not only must a person have failed to control the
impulse to commit the act in issue, but the lack of control must have arisen from an ‘infirmity of will for
which he was not answerable’.
S v Campher11
The accused was charged with murdering her husband. Their marriage had been unhappy and the
deceased had been emotionally and physically abusive towards the accused and their children.
According to the evidence, the constant physical and emotional abuse that the accused suffered,
together with the fact that their children were also emotionally abused, had driven the accused to
breaking point. On the morning the accused shot and killed her husband, there had been yet another
occasion of abuse, and she grabbed a revolver to defend herself against the deceased who was
threatening her with a screwdriver. She did not shoot the deceased then, as he had grabbed her and
dragged her outside where he submitted her to further emotional abuse. The Court accepted the
accused’s testimony that she had felt as if she had descended into an emotional dark pit and all she
could think of was to get out of the situation in which she had found herself. The accused explained
that she had realised only after it had happened that she had shot the deceased. The Court
accordingly found that, at the critical moment, the accused had suffered from a severe, yet
temporary, mental disturbance. Even though the accused did not suffer from any mental disease, she
was found not guilty.

8.2.3 Intoxication
Intoxication, whether while under the influence of alcohol or drugs, may render a person culpae incapax.
However, this is not true in all cases. For example, if a person takes an intoxicating substance before
committing the delict, when still accountable, he or she may be liable for the prior act. The basis for
liability here is similar to the situation where an epileptic person, who knows that fits can suddenly occur,

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 still drives a vehicle and causes an accident while having a fit. Even though at the moment of the accident
the person is not accountable for the harmful result, liability still arises. 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.12
S v Chretien13
After a party, and while under the influence of alcohol, Chretien drove a Volkswagen minibus into a
crowd of people standing on a pavement. One person died and five were injured. The Court could
not find beyond reasonable doubt that Chretien had deliberately driven into the crowd. He claimed
that he had thought that the people would disperse when they saw the minibus approaching. The
Court a quo found Chretien not guilty of attempted murder and of common assault, since he lacked
the necessary intention, and therefore the required elements of the crimes were not satisfied. The
State appealed against the finding and submitted that Chretien should at least be found guilty of
common assault.
The Appellate Division identified two opposite ‘poles’ for describing degrees of intoxication. One
extreme is when a person is slightly intoxicated and there is some altered behaviour. In this case,
the intoxication would not be such that the person could not control himself or herself, and so would
still be accountable. The other extreme is 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 categorised as conduct. Such a person is also culpae incapax.
Between these two poles, there are various degrees of intoxication. Some people can be intoxicated
to such an extent that others might describe them as ‘very drunk’, and yet they seem to conduct
themselves in a seemingly rational manner. In such an instance, the intoxicated person would be
regarded as accountable. Others might be ‘dead drunk’, and unable to know what they are doing. In
such instances, there is no intention and the question of accountability depends upon the evidence
and the circumstances of the case. The Court found that the Court a quo was correct in finding that
intention was lacking and accordingly dismissed the appeal.
Parliament subsequently enacted legislation that provides for a statutory crime where persons
commit a crime while in an intoxicated state. However, this legislation does not affect the law of
delict, and common-law principles enunciated in the Chretien judgment are, therefore, still applicable
in this area of law.

8.2.4 Provocation
Provocation may, in some instances, exclude the element of wrongfulness.14 However, in circumstances
where it does not do so, it may, depending upon its effect on the defendant’s behaviour, exclude either
accountability or fault in the form of intention.15 A person can be provoked to such an extent that the
person loses control of his or her ability to act responsibly or, if the provocation is not that extreme, to the
extent that a person lacks consciousness of the wrongfulness of his or her actions. In effect, the rage
reaction creates a moment of temporary insanity not unlike that which occurred in S v Campher,16 noted
previously. The basis for this defence is that loss of temper due to provocation may render the provoked
person culpae incapax at the time of inflicting harm.

PAUSE FOR The nature of the provoking conduct

REFLECTION In Bennet v Minister of Police17 the Court held that verbal prvocation cannot
justify a physicl assault in ‘retaliation’, and so does not exclude wrongfulness.
For the purposes of excluding accountability or intention, would the nature of the
provoking conduct similarly be relevant? What considerations might point
towards not recognising provocation as a reason for excluding accountability?

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 Figure 8.1Intention

8.3 Intention
A person will be at fault when he or she intends to cause another person harm, knowing that it is wrong to
do so. So, when a court concludes that a defendant had intention, it demonstrates the law’s disapproval of a
defendant’s reprehensible state of mind. The enquiry into intention is subjective, in that courts have to
determine what the defendant actually had in mind at the time of committing the delict.
There are principally three forms of intention:
• Dolus directus
• Dolus indirectus
• Dolus eventualis.

Irrespective of which form of intention is present, the concept has two aspects: direction of will, and
consciousness of wrongfulness.18 So, in law 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. If either one of the two
components is absent, or cannot be proved, there is no intention.

Figure 8.2Intention

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 8.3.1 Dolus directus or direct intention
Direct intention exists where the wrongdoer’s primary aim is to achieve a particular consequence, for
example, if one person deliberately says something in order to hurt another person’s feelings. It is
irrelevant whether the wrongdoer simply 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 realise that consequence is
enough to establish direct intention. It also does not matter whether the result is achieved in the exact
manner foreseen or contemplated by the wrongdoer.

8.3.2 Dolus indirectus or indirect intention

Indirect intention exists where a person has direct intention in terms of a certain consequence (consequence
A). However, in effecting consequence A, the person foresees that another harmful consequence
(consequence B) will inevitably also take place if consequence A is to be realised. For example, Sam
wishes to steal a car radio from a locked car, and he realises 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, that is, to steal the
car radio. The owner of the car will thus be able to sue Sam for damage to the car by relying on dolus
indirectus as form of fault.

8.3.3 Dolus eventualis or intention by acceptance of foreseen result

Dolus eventualis exists where, in executing a plan to cause harm, a person foresees a wrongful
consequence that is not desired, but nevertheless reconciles himself or herself with the possibility that it
might arise and continues to execute the plan to cause harm. For example, Sam aims a large stone at Bheki,
who is standing with two friends. Sam foresees that he might hit one of the friends instead, but he
nevertheless proceeds to throw the stone at Bheki. He misses, and the stone hits and injures one of the
friends. Dolus eventualis is present, since Sam subjectively foresaw that he might injure someone else and
reconciled himself with the fact that one of Bheki’s friends might get hurt. Dolus eventualis entails a
two-part enquiry:
1. Did the wrongdoer (Sam) subjectively foresee or realise that the harmful consequence might ensue?
2. Did Sam reconcile himself with that realisation by nevertheless continuing with his actions?

If Sam thought that he might hit one of the friends, but somehow genuinely believed that it would not
happen, he would not have acted with dolus eventualis because, subjectively, he had not reconciled himself
with that consequence. The form of fault that is present in this latter instance is luxuria or conscious
negligence.19 Also, if Sam did not at all foresee that he might hit someone else, there can be no intention,
and negligence would be the appropriate form of fault.
S v Humphreys20
Humphreys had been convicted in the High Court on ten counts of murder and four counts of
attempted murder, resulting from a collision caused when the minibus he was driving collided with a
train. He had entered a level crossing while the boom controls were down and the warning signals
flashing. The Supreme Court of Appeal agreed with the High Court that Humphreys had subjectively
foreseen the possibility of fatal injuries occurring as a result of his reckless actions. However, the
Court disagreed in respect of the second part of the enquiry, finding that Humphreys had not
reconciled himself to the possibility that his reckless actions could lead to the death of his
passengers. If Humphreys had reconciled himself to the possibility of the death of his passengers,
this would have meant he had reconciled himself to his own possible death. The evidence did not
support this inference, as there was no evidence he did not value his own life. Instead, the evidence
showed that Humphreys had cleared the level crossing in similar situations in the past and had
thought he would be able to do the same on this occasion, and that the foreseen risk would not
materialise. Accordingly, since Humphreys had not reconciled himself to the possibility of death or
fatal injury, dolus eventualis was not established.

Director of Public Prosecutions, Gauteng v Pistorius21

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 Pistorius had shot and killed his girlfriend Reeva through a toilet cubicle door when he allegedly
mistook her for a thief. The Court a quo found Pistorius guilty of culpable homicide and held that he
could not be convicted of murder, as dolus had not been proved. On appeal, the Supreme Court of
Appeal considered especially whether dolus in the form of dolus eventualis had been present, for if it
had been, Pistorius should have been found guilty of murder instead of culpable homicide. It noted: 22

In contrast to dolus directus, in a case of murder where the object and purpose of the
perpetrator is specifically to cause death, a person’s intention in the form of dolus
eventualis arises if the perpetrator foresees the risk of death occurring, but
nevertheless continues to act appreciating that death might well occur, therefore
‘gambling’ as it were with the life of the person against whom the act is directed. It
therefore consists of two parts: (1) foresight of the possibility of death occurring, and
(2) reconciliation with that foreseen possibility. This second element has been
expressed in various ways. For example, it has been said that the person must act
‘reckless as to the consequences’ (a phrase that has caused some confusion as some
have interpreted it to mean with gross negligence) or must have been ‘reconciled’ with
the foreseeable outcome. Terminology aside, it is necessary to stress that the
wrongdoer does not have to foresee death as a probable consequence of his or her
actions. It is sufficient that the possibility of death is foreseen which, coupled with a
disregard of that consequence, is sufficient to constitute the necessary criminal intent.

Pistorius sought to deny the presence of dolus eventualis by insisting he did not have the necessary
intention to kill Reeva, as he had believed a thief, not Reeva, had been concealed in the toilet. In this
regard the Court said:23

… although a perpetrator’s intention to kill must relate to the person killed, this does
not mean that a perpetrator must know or appreciate the identity of the victim. A person
who causes a bomb to explode in a crowded place will probably be ignorant of the
identity of his or her victims, but will nevertheless have the intention to kill those who
might die in the resultant explosion.

The Court went on to say: 24

What was in issue, therefore, was not whether the accused had foreseen that Reeva
might be in the cubicle when he fired the fatal shots at the toilet door but whether there
was a person behind the door who might possibly be killed by his actions.

PAUSE FOR Summary of intention

REFLECTION • With direct intention, the wrongdoer desires a certain wrongful consequence
• With indirect intention, the wrongful consequence is an inevitable wrongful
consequence while attempting to realise a desired consequence
• With dolus eventualis, the wrongful consequence is brought about by reckless disregard
for the possibility of that consequence ensuing.

8.3.4 First component of intention: Direction of will

Direction of will, the first component of intention, 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.
This involves determining the mental predisposition of the person obtaining a specific result.25 There are
three ways in which a person can direct his or her will:

• Directly (resulting in dolus directus)

• Indirectly (resulting in dolus indirectus)
• By accepting the possibility of other harmful consequences ensuing (resulting in dolus eventualis).

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 8.3.5 Second component of intention: Consciousness of wrongfulness
Consciousness of wrongfulness was first recognised in defamation cases, but courts now accept it
generally as a component of intention.26 The second component 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. Therefore, if someone genuinely
believes that he or she is acting in accordance with the law, he or she has not acted intentionally for
purposes of the law.27 For example, where a person believes that his or her conduct is justified, even if it is
not, that person has not acted intentionally because he or she intended to behave lawfully, and not
wrongfully. This example also illustrates how the subjective nature of intention comes to the fore when we
assess the knowledge of the wrongdoer.
Maisel v Van Naeren28
Maisel had fallen into arrears with his rent and he was also allegedly a nuisance to his fellow tenants.
The owner of the block of flats (Van Naeren) wrote to him on these issues and sent a copy of the
letter to the chairperson of the Rent Board in the bona fide, but mistaken, belief that the block of flats
and the issue at hand fell within the ambit of the Rental Housing Act 50 of 1999, which required that
he send such copy to the chairperson.
Because he sent the defamatory letter to the chairperson of the Rent Board, it amounted to
publication of defamatory information. Maisel claimed damages under the actio iniuriarum for
defamation, but the Court held Van Naeren not liable for lack of intention, because he was unaware
that his conduct was wrongful. Van Naeren had genuinely believed that sending the letter to the
chairperson of the Rent Board was the lawful thing to do. Therefore, although he had directed his
will, in that he had desired to send the letter to the chairperson of the Rent Board and had done so,
he had been unaware he was acting wrongfully. There was accordingly no animus iniuriandi on Van
Naeren’s part.

In Le Roux v Dey 29 Harms DP analysed the background and implications of the requirement of
consciousness of wrongfulness (‘coloured intent’), and decided that intention for the purposes of the actio
iniuriarum does not require consciousness of wrongfulness. However, on appeal the Constitutional Court
decided that, since it had been unnecessary for the Supreme Court of Appeal to decide this issue, it was
also unnecessary for the Constitutional Court to do so.30

8.3.6 Special cases: Intention comprising direction of will only

Under the actio iniuriarum there are specific forms of iniuria – wrongful deprivation of liberty, wrongful
attachment of goods, and possibly seduction – where policy dictates that the usual rules for establishing
intention should be modified, and that intention should comprise one aspect only: the direction of will. A
plaintiff may, therefore, establish intention even though the defendant had no knowledge of the
wrongfulness of his or her actions. So, in these cases it is not full animus iniuriandi that is required, but an
attenuated version. The resultant effect is that a defendant is unable to exclude fault by pleading a defence
aimed at negating consciousness of wrongfulness, such as mistake. For example, police officers who
incorrectly believe that valid warrants of arrest exist and then unlawfully arrest persons will be found to
have intended to effect the arrests, even though, subjectively, they had thought that they were acting
lawfully.31 Similarly, courts say a man’s ignorance of a girl’s virginity will not suffice as a defence to
exclude intention in seduction cases.32
Minister of Justice v Hofmeyr33
Hofmeyr claimed damages under actio iniuriarum for unlawful detention. He had been kept in solitary
confinement during his imprisonment of five months, except for two brief periods of about eight days
each. The Minister relied on statutory justification as defence. The Prison Emergency Regulations
provided that detainees could be ‘segregated’ from other detainees when the head of the prison
deemed it ‘practicable’. However, the head of the prison had misunderstood the nature of the
discretion conferred on him, particularly in terms of the meaning of ‘segregation’ in the context of the
regulations.
In deciding whether the defence of statutory justification could succeed, the Court held that the

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 head of the prison had erroneously believed the segregation provided for in the regulations had a
punitive purpose. There had been no basis for this belief, since the regulation had been enacted
primarily in the interests of the detainees themselves. Therefore, the detention had been wrongful.
It was nonetheless argued that there had been no animus iniuriandi, since consciousness of
wrongfulness had been absent. The Court acknowledged that consciousness of wrongfulness had
been absent, but noted that there are certain instances, particularly those that involve wrongful
deprivation of liberty, where consciousness of wrongfulness is not required. Although not based on
Roman and Roman-Dutch principles, legal policy required that these instances be recognised
according to what is sensible and just.

It is clear that without dolus the action for an iniuria would lie neither in Roman law nor
in Roman-Dutch law. … It is equally clear, however, that in a limited class of iniuriae the
current of precedent has in modern times flowed strongly in a different direction. In this
limited class of delicts dolus remains an ingredient of the cause of action, but in a
somewhat attenuated form, in the sense that it is no longer necessary for the plaintiff to
establish consciousness [of wrongfulness] on the part of the wrongdoer of the
wrongful character of his act. Included in this limited class are cases involving false
imprisonment and the wrongful attachment of goods.34

Direction of will alone, without consciousness of wrongfulness, was therefore sufficient indication of
intention and the Minister of Justice was accordingly held vicariously liable for the improper and
unlawful manner in which Hofmeyr was treated while detained.

It is uncertain whether the attenuated form of intention also applies to the Aquilian action, 35 but the
Appellate Division has left open the possibility of this doctrinal modification, should policy considerations
require that a limited form of intention be recognised in a particular instance.36

8.3.7 Difference between motive and intention

The term ‘intention’ is a technical, legal expression that describes a person’s reprehensible state of mind.
‘Motive’, on the other hand, is the reason that triggered the formation of intention, or the ‘actuating
impulse preceding intention’. 37 Motive represents the mental aspect that leads to the formation of
intention, which is why courts often use it to prove intention. For example, Thandi, who has substantial
gambling debts, stands to inherit a great deal of money from her uncle. She decides to kill her uncle so that
she can pay off the debts with her inheritance. Thandi’s motive, or reason for committing the crime, is to
acquire the inheritance to pay off her debts, while her intention is to kill her uncle.
Motive may also indicate whether consciousness of wrongfulness is present, in that a good motive
may sometimes indicate a lack of consciousness of wrongfulness, while a malicious motive might indicate
the intention to do harm. However, a good motive will not save a person who knows that what he or she is
doing is wrongful. For example, a doctor who was treating his dying father decided to relieve his father’s
pain and suffering by giving him a lethal injection. The doctor knew that the deliberate hastening of death
was wrongful and so, even though he had a good motive, he still had the intention to commit murder. 38

8.3.8 Proving intention

The plaintiff bears the onus of proving the defendant’s intention.39 It is obviously unlikely that anyone
other than the defendant would actually know what the defendant subjectively thought at the time of the
incident. So, courts often draw the conclusion by means of inferential reasoning – by looking at the nature
of the alleged delict and all the surrounding circumstances of the case, and concluding that, based on the
facts, the only reasonable conclusion that can be reached is that the defendant must have had a
reprehensible state of mind. A general rule when drawing inferences is that a person intends all the
necessary consequences of his or her conduct.
Under the actio iniuriarum, for example, in defamation cases, the plaintiff is assisted by a rebuttable
presumption of animus iniuriandi. This usually means that, once the plaintiff has shown that a personality

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 right has been infringed, a court can assume that intention is present, unless the defendant can show
otherwise. So, the onus of proof shifts to the defendant, who must then provide sufficient evidence to rebut
the presumption.

PAUSE FOR Inference

REFLECTION An inference is not a presumption. An inference is a final conclusion drawn from
the facts. A presumption is a device that allows courts to draw a preliminary
conclusion, and which then shifts the onus of proof from one party to another.
So, the notion that a person intends all the necessary consequences of his or
her conduct is not a presumption, but a general expression of the process
according to which the inference of intention is drawn.

However, the law treats different iniuriae differently regarding the presumption of intention. For example,
when plaintiffs prove infringement of their reputation or fama, two rebuttable presumptions arise: that both
wrongfulness and intention are presumed.40 However, with other iniuriae, only a rebuttable presumption of
intention arises when plaintiffs prove infringement of their personality aspects.41

PAUSE FOR Should all iniuriaebe treated the same?

REFLECTION Van der Walt and Midgley42 argue that courts should reconcile the different
approaches and treat all iniuriae similarly when it comes to the presumptions of
wrongfulness and intention. In all instances, plaintiffs should prove, on a balance
of probabilities, that their personality interests have been infringed. Once they
have proved this, two rebuttable presumptions, of wrongfulness and intention,
should arise, which the defendants would have to rebut. The reason the authors
give is that the different ways of handling iniuriae could create problems when
claims are made in the alternative, or where more than one personality aspect
has been infringed simultaneously (for example, infringement of both dignitas
and fama). Why would there be problems in these instances?

8.4 Defences that exclude intention

Once a plaintiff has proved intention, the defendant (who a court has found to be accountable) can raise
various defences to escape liability. Defences that exclude intention can be aimed at any one or both of the
elements for intention. In other words, the defences can be used to:
• Indicate that the defendant did not direct his or her will towards effecting the harm-causing event
• Indicate that the defendant did not know that his or her conduct was wrongful
• Indicate that the defendant neither directed his or her will towards effecting the harm-causing event
nor knew that the conduct was wrongful.

8.4.1 Mistake
Intention involves subjectively evaluating the defendant’s state of mind when the delict was committed.
Therefore, a bona fide mistake regarding any aspect of the case, including the lawfulness of a person’s
actions, will exclude intention.43 The defence of mistake often turns on the absence of the second element
of intention, the consciousness of wrongfulness. However, mistake may also negate the direction of a
person’s will – for example, accidentally pressing a button that sends a defamatory email message. In
principle, it does not matter whether the mistake is one of fact or one of law, or whether it is reasonable or
unreasonable. The subjective nature of the test for intention simply requires that in the mind of the

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 wrongdoer there was genuine belief that the conduct at issue was indeed lawful. However, when media
defendants are sued for defamation or infringements of privacy, only reasonable mistakes can rebut the
presumption of intention.44
Maisel v Van Naeren45
Van Naeren sent a copy of a letter to the chairperson of the Rent Board in the bona fide, but
mistaken, belief that the Rental Housing Act was applicable. Although he had directed his will in
sending the letter, he lacked consciousness of the wrongfulness of his conduct, in that he had
genuinely believed sending the letter to the chairperson of the Rent Board was the lawful thing to do.
There was accordingly no animus iniuriandi.

8.4.2 Jest
The basis of jest as a defence is usually that the defendant’s will was not directed at achieving the
particular consequence that ensued, but it may also exclude consciousness of wrongfulness. However, the
defendant must be able to show that the conduct was bona fide and genuinely meant as a joke.
Masch v Leask46
Leask, an auctioneer, told participants in an auction that he would be holding other sales, the details
of which appeared in yellow flyers he had distributed among them. Another auctioneer, Masch, who
was standing in the crowd, shouted to Leask that he was lying and that the yellow flyers did not
mean anything. Leask sued Masch for defamation, in that Masch had publicly made Leask out to be
a liar and an untrustworthy person. Masch raised the defence of jest, claiming that he had simply
been joking.
The Court found that Masch had not proven that he had acted in jest, or that the bystanders had
perceived his words as a joke. On the authority of this case, the defence of jest can only succeed if
the words spoken were genuinely meant as a joke and if others also understood them to be a joke.
How compatible is the requirement that others must have understood the comment to be a joke
with the subjective nature of intention? Does this introduce an objective aspect, similar to that which
is now required when a media defendant makes a mistake?

8.4.3 Intoxication
In exceptional instances, people may be so intoxicated that they cannot develop an intention. Intoxication
is generally used as a ground to exclude accountability. However, a person can also use it to exclude either
one of the two elements of intention in cases where a court finds a defendant accountable. In Chretien’s
case47 the Court found that when persons are so drunk that they cannot properly direct their will, or they do
not realise that their conduct is wrongful, there is no intention on their part. Of course, it would still be
possible to find that they have acted negligently and base liability on negligence as a form of fault.

PAUSE FOR Should voluntary intoxication be a defence?

REFLECTION Could one argue that there are policy considerations that would cause the
intoxication defence to fail when people voluntarily create the state of
intoxication? What would these policy considerations be?

8.4.4 Provocation
A person can raise provocation as a defence to exclude intention. Although a provoked person may still
have directed his or her will to injure the person doing the provoking, courts can exclude intention where
the provoked person did not realise that his or her conduct was wrongful.

8.4.5 Emotional distress

In certain instances, people can suffer from such severe emotional distress that they cannot develop an

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 intention. While a person can generally use emotional distress as a ground to exclude accountability, a
person can also use it to exclude either one of the two elements of intention in cases where a court finds a
defendant accountable.

PAUSE FOR Excluding accountability and intention

REFLECTION Emotional distress, provocation and intoxication are defences that can exclude
both accountability and intention. How are the requirements for each defence
applied differently to exclude accountability on one hand and intention on the
other?
Provocation can be used as a defence to exclude wrongfulness, but the
requirements of such a defence are different. What are these differences?

8.5 Negligence
Unlike intention as a form of fault, negligence is not concerned with the law’s disapproval of a defendant’s
state of mind. With negligence, liability is based on the law’s disapproval of a defendant’s conduct. The
following sections discuss the concept of negligence, the test for negligence and the various circumstances
and attributes that play a role in establishing the standard of care that the law expects of persons.

8.5.1 The concept of negligence

An enquiry into negligence involves evaluating a defendant’s conduct according to a standard that is
acceptable to society. This standard is expressed with reference to a fictitious ‘reasonable person’ that
represents society’s expectations of adequate and reasonable conduct. It represents an objective standard
that all legal subjects must adhere to by paying sufficient attention to ensure that their conduct is in line
with the standard of care that society expects. The test for negligence differs from the test for
wrongfulness, in that the reasonable person is placed in the position of the defendant. Therefore, we do not
evaluate all the circumstances (both known and unknown to the defendant) of the harm-causing conduct,
as is done in the wrongfulness enquiry. To determine whether a defendant was negligent, we simply ask
what the reasonable person, put in the same position as the defendant, would have done.
If a defendant’s conduct does not conform to the standard of a reasonable person, the conduct is
blameworthy in law and the defendant will be considered to be at fault.

8.5.2 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’s conduct.48 Therefore, the reasonable-person standard requires
an adequate and consistent level of care on the part of all legal subjects, and it must also be sensitive to a
society where people have various skills and levels of intellect, and are of different ages. A reasonable
person, therefore, does not represent a standard of exceptional skill, giftedness or care, but it also does not
represent a standard of underdeveloped skills, recklessness or thoughtlessness. It is a standard of the
ordinary individual who takes reasonable chances and reasonable precautions to protect interests, while
expecting the same conduct from others.49
The reasonable-person criterion is an expression of what society expects of its members in their
everyday life. The criterion, and the behaviour expected from a reasonable person, will change according
to the changes in society’s expectations. For example, where crime and threats to personal safety are more
prominent, a reasonable person might act with more nervousness and fright than a reasonable person
would where such threats are not prominent. Leaving a security gate unlocked would probably be regarded
as highly negligent in a society with high crime levels, but as reasonable conduct in a society in which
housebreaking was a very rare occurrence.
A point to remember is that the standard is not that the harm must have been avoided at all costs and
that no harm must have ensued. Rather, reasonable conduct means that a person must have acted

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 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, that fact
does not affect the standard. The behaviour remains reasonable and that person would not be at fault.

8.5.3 The test for negligence

In Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 50 the Supreme Court of
Appeal reiterated that the benchmark for negligence is what a reasonable person would have done in the
same circumstances as the defendant. Courts have developed tests, and the most often quoted is the one set
out in Kruger v Coetzee.51 However, these tests are still no more than guidelines or approaches for
assessing how a reasonable person would have acted in the circumstances. Any conclusion reached after
applying one of these tests should articulate the benchmark standard of reasonable behaviour.
Kruger v Coetzee52
Coetzee’s car was damaged in a collision with Kruger’s horse, which had strayed from Kruger’s
property through an open gate and onto a public road. The local divisional council had put in the gate
to give construction workers access to a construction site via Kruger’s property. Drivers of the
construction vehicles frequently left the gate open. Kruger had lodged complaints about such conduct
with both the divisional council and the building contractors, but continued to keep his horses on that
land.
Coetzee alleged, firstly, that Kruger had negligently allowed his horses to stray onto a public road
unattended, and, secondly, that in leaving the gate open Kruger had been unable to exercise control
of the horses. The Court articulated the test for negligence as follows:53

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.

The Court noted that requirement (a)(ii) is often overlooked, and that there must be an indication as
to what reasonable steps a diligens paterfamilias in the position of the defendant would have taken.
Assessing such steps depends on the circumstances of each case, and there is no generally
applicable basis for constituting reasonable precautions for all situations.
In this instance, it was common cause that a reasonable person in Kruger’s position would have
foreseen the possibility of his horses straying through the open gate onto the main road, and
causing damage to motor cars that might collide with them. In fact, Kruger conceded that he was
aware of the possibility. Kruger further conceded that he had been aware that the gate was often left
open. Yet, he continued to keep his horses on the property. The Court held that in such
circumstances, a reasonable person would not have ‘shrugged his shoulders in unconcern’, and if
there were reasonable steps that could have been taken, a reasonable person would have taken
them. The defendant did in fact take some steps to prevent the gate from being left open. He went to
the divisional council twice to complain about its employees leaving the gate open. He also
complained to the construction managers. So, the question that remained was whether there were
any other steps that Kruger should have taken. The Court found that insufficient evidence was
presented of any other reasonable measures that Kruger should have taken, and accordingly found
that Coetzee had not proved that Kruger had been negligent.

The test articulated in Kruger v Coetzee 54 points to four important issues that one must assess when
determining whether the defendant’s conduct was reasonable or unreasonable (and therefore blameworthy
for purposes of the law):
1. The first is to place a reasonable person in the same position as the defendant.
2. The second is to 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
on to the next issue.

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 3. The third issue raises the question of whether a reasonable person would have done anything to
prevent the harm from occurring if the conduct continued. To answer this question, 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 the circumstances. If the defendant did in fact take some measures to prevent the
harm, the plaintiff must show that such measures were either unreasonable or inadequate, with
reference to what a reasonable person would have done in the circumstances. In Kruger v Coetzee 55
the Court noted that one must first determine what steps were available before one can assess whether
a reasonable person would have taken any other steps.
4. In the fourth instance, one compares 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’ and unreasonable, and therefore negligent.

PAUSE FOR Foreseeing harmful consequences

REFLECTION When assessing whether a reasonable person would have foreseen the harmful
consequences, one should avoid applying the objective reasonableness criterion
that is used for determining wrongfulness. The Supreme Court of Appeal
addressed this problem in Minister of Safety and Security v Carmichele:56

In considering this question [what was reasonably foreseenable],

one must guard against what Williamson JA called ‘the insidious
subconscious influence of ex post facto knowledge’… Negligence
is not established by showing merely that the occurrence
happened (unless the case is one where res ipsa loquitur)57 or by
showing after it happened how it could have been prevented. The
diligens paterfamilias does not have a ‘prophetic foresight’. …
‘After the event, even a fool is wise. But it is not the hindsight of a
fool; it is the foresight of the reasonable man which alone can
determine responsibility’.

8.5.3.1 Foreseeability and preventability

The test for negligence stands on two pillars:
1.The foreseeability of harm
2.The preventability of harm.

It is not adequate simply to state that the defendant was negligent. There must be a concrete and practical
argument as to why and how the defendant was negligent in the circumstances. So, the application of both
the foreseeability test and the preventability test is the foundation for practically evaluating the defendant’s
conduct.

8.5.3.2 Foreseeability of harm

One cannot establish negligence unless one can prove that the harm arising from the defendant’s conduct
was reasonably foreseeable. This is assessed after considering the surrounding (or objective)
circumstances, as well as the qualities the law attributes to a reasonable person. Therefore, reasonable
foreseeability is a flexible concept because it depends on the circumstances of each case, and a juridical
evaluation of the risk in those particular circumstances. There are no hard-and-fast rules to help us
determine whether harm is reasonably foreseeable, but courts have identified some broad guidelines that
should be applied flexibly.

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 Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson58
Basson contracted Lomagundi to build a roof on top of a silo. Basson’s bales of stover were stacked
up against the silo and, while Lomagundi’s employees were busy welding, some sparks ignited the
bales. When Basson sued Lomagundi, the Court had to determine the issue of negligence. The
Court identified the following broad and flexible guidelines for evaluating whether harm was
reasonably foreseeable:
• How real is the risk of the harm eventuating?
• If the harm does eventuate, what is the extent of the damage likely to be?
• What are the costs or difficulties involved in guarding against the risk eventuating?

From the evidence, it appeared that the risk of the stover igniting was not great, but it was
nonetheless a real possibility. The damage that a fire might cause was, in the circumstances, quite
extensive. Furthermore, the cost or difficulty involved in preventing the risk from eventuating was
very slight. All that was required was to move the bales a small distance back from the silo and to
sweep the space between the bales and the silo to remove flammable material.
The Court found that any ‘prudent man’, before commencing the welding operations, would have
foreseen the risk of fire and would have moved the bales and cleared the space between the bales
and the silo to reduce the risk of the flammable material catching fire. The real possibility of the
bales igniting from welding sparks, weighed against the possible extent of the damage and the
relative ease with which the ordeal could have been prevented, meant that the Court found that
there was indeed negligence on the part of Lomagundi’s employees.
The questions that one has to answer are:
• Was it, in the specific circumstances, reasonably foreseeable that harm to others would occur as a
consequence of the defendant’s chosen conduct?
• Having due regard to the specific circumstances of the case, what would the general nature of the
harm be and how would it generally occur?

There are, in principle, two diverging views to the application of the foreseeability test: the abstract or
absolute approach, and the concrete or relative approach. In the abstract approach, the question of
foreseeability depends only on whether the defendant foresaw that, in general, harm could occur. The exact
type of harm, and the extent of that harm, is not relevant in this approach. In the relative approach, we can
only regard a defendant’s conduct as negligent if the specific harmful consequences were reasonably
foreseeable.59 So, we can only say that the defendant acted negligently if a reasonable person in the
defendant’s position would have foreseen the specific harm that the plaintiff is claiming for.
In terms of the abstract or absolute approach, legal causation is the element that is used to determine
whether defendants are liable for the specific harmful consequences that occurred as a result of their
conduct. Foreseeability of harm becomes a factor that could indicate whether or not the harm is too remote.
However, when the relative approach is followed, the application of the test of foreseeability of the
specific harmful consequences as part of the test for negligence renders the legal causation enquiry
superfluous.

PAUSE FOR Abstract or absolute approach

REFLECTION Is harm, that is, any harmful consequence(s), foreseeable?
See Herschel v Mrupe 1954 (3) SA 464 (A); Kruger v Coetzee; minority
judgment in Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage
(Pty) Ltd 2000 (1) SA 827 (SCA).

Concrete or relative approach

Are the general nature and the general manner of occurrence of the
consequences that actually eventuated reasonably foreseeable?
See Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 (3) SA 531 (E);
Mukheiber v Raath 1999 (3) SA 1065 (SCA); majority judgments in Sea Harvest
Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827
(SCA); Premier of the Western Cape Province v Loots 2011 JDR 0250 (SCA) at
13.

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 It appears that our law favours the relative approach, but in a hybrid form where legal causation remains a
tool for limiting liability, in addition to the negligence enquiry.60 Boberg 61 explains this preference by
pointing out that an enquiry into how a reasonable person would have acted in a meaningful manner can be
conducted only by referring to the consequences that were indeed reasonably foreseeable. According to
Boberg, if only ‘harm in general’ is foreseen, there is no sensible way in which we can assess what a
reasonable person’s course of action would have been. In Premier of the Western Cape Province v Loots
NO 62 the Court accepted the relative approach to negligence:
According to this approach it cannot be said that someone acted negligently because harm to others
in general was reasonably foreseeable. A person’s conduct can only be described as negligent with
reference to specific consequences. Yet, the relative approach does not require that the precise
nature and extent of the actual harm which occurred was reasonably foreseeable. Nor does it
require reasonable foreseeability of the exact manner in which the harm actually occurred. What it
requires is that the general nature of the harm that occurred and the general manner in which it
occurred was reasonably foreseeable. At some earlier stage there was a debate as to whether our
courts should follow the relative approach as opposed to the so-called abstract or absolute approach
to negligence. But it now appears to be widely accepted by academic writers, on good authority, that
our courts have adopted the relative approach to negligence as a broad guideline, without applying
that approach in all its ramifications.63

It is important to note, as pointed out in the above passage, that the relative approach does not require that
the reasonable person should have foreseen the exact or precise manner in which the harm was caused. So,
although the specific consequences must have been reasonably foreseeable, the exact manner in which the
consequences actually came about need not be.

PAUSE FOR The relative approach to negligence

REFLECTION Some advocates of the relative approach have argued that applying it prevents
the need for any enquiry into legal causation, because the relative approach
uses foreseeability to fix liability and to limit it. Strictly speaking, this view is
correct. However, courts tend to use both the relative approach and legal
causation, often in combination. See Smit v Abrahams,64 where the Court noted
that legal causation is part of our law, and Sea Harvest Corporation (Pty) Ltd v
Duncan Dock Cold Storage (Pty) Ltd,65 where the Court applied the relative
approach and yet legal causation played an important role.
Does it really matter which theory is adhered to? Irrespective of the
approach, the result should be the same. The relative approach combines the
questions into a single enquiry, whereas the abstract approach follows a
two-stage process. The core issue in each is whether there was reasonable
foreseeability of the general type of harm that occurred.

Irrespective of the approach that is followed, the fundamental factor is the nature or magnitude of the risk.
When assessing the magnitude of the risk of harm, two questions arise:
1. How strong is the possibility that the harm will occur?
2. How serious will the damage be if the risk materialises?

Magnitude of risk is the outcome of an interrelationship between foreseeability of harm and the possibility
of that harm eventuating. If the likelihood of the harm occurring is great, the harm is normally foreseeable.
66 However, where the risk of harm is very small, the conclusion might be that harm is not foreseeable at

all,67 unless the harm that might eventuate is potentially serious. Where there is a likelihood of serious
harm, as in Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson,68 harm will probably be
foreseeable. The circumstances of each case will determine the result.69

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 Stratton v Spoornet70
An eight-year-old boy and his friend walked to the railway line to watch for trains. To see whether a
train was approaching, the boy climbed to the top of a railway pylon, where he received a serious
electric shock. The boy’s father (Stratton) sued Spoornet for all medical expenses related to the
accident and at issue was whether Spoornet had been negligent.
Stratton had to prove that:
• A reasonable person in Spoornet’s position would have foreseen the reasonable possibility of injury
to others.
• A reasonable person would have taken reasonable preventative measures.
• Spoornet failed to take such measures.

The Court defined ‘reasonable possibility’ as a possibility that would not be ‘too remote or fanciful’,
while keeping in mind the particular facts of the case. 71 The Court found that, while a reasonable
person would indeed have foreseen that children might be injured in a collision with a train, it was not
reasonably foreseeable that a child might be injured due to an electrical shock. Therefore, even
though the possible harm from an electrical shock was of a serious nature, the circumstances
indicated that a reasonable person would not have foreseen the risk as it eventuated.72

Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd73
Sea Harvest Corporation owned goods that were stored in a newly built cold store in the Table Bay
harbour area that was owned by Duncan Dock Cold Storage. During New Year’s Eve celebrations,
someone fired a distress flare that landed on the store’s roof and set fire to the roof guttering. The
resultant fire destroyed the store. There was no anti-fire sprinkler system in the roof because the
experts who were involved in the store’s construction considered the building to have a low fire risk.
The building had been constructed with non-combustible material and the guttering material could
only ignite from a very high intensity heat source. Sea Harvest sued Duncan Dock and Portnet (the
employer of the port engineer) for damages, alleging that Duncan Dock had been negligent in not
installing an anti-fire sprinkler system and also in that the managing engineer of the cold store had
not remained on site during the midnight celebration to make sure that there were no incidents. The
evidence showed that a sprinkler system would either have extinguished the fire, or at least have
contained it. The claim against Portnet was based on the port engineer’s negligent failure to warn of
the danger posed by distress flares fired over New Year.
Scott JA (for the majority) considered the test for negligence as developed in Kruger v Coetzee,74
and as redeveloped in Mukheiber v Raath:75
(a) A reasonable person in the position of the defendant:
(i) Would foresee harm of the general type that actually occurred
(ii) Would foresee the general type of causal sequence by which that harm occurred
(iii) Would have taken steps to guard against it.
( b) The defendant failed to take those steps.

Scott JA reiterated that dividing the negligence enquiry into stages (as described) is only a guideline
in resolving the issue. The ultimate analysis for determining negligence is whether, in the particular
circumstances, the conduct complained of falls short of the standard of a reasonable person. When
applying the formula as set out in Kruger and Mukheiber, there must always be some measure of
flexibility to provide for grey area cases, since there is not one universally applicable formula that can
cater for every case. The present case involves a grey area because the result (destruction by fire)
was readily foreseeable, but the cause (fire originating from an outside source with sufficient intensity
to ignite roof guttering) was not. A too-rigid approach in borderline cases, where culpability and
remoteness of damage queries are so closely linked, can lead to attributing culpability in a manner
that has been termed negligence ‘in the air’. Therefore, judicial judgement plays an important role
while paying due regard to the facts of each case.76
On the facts, the general possibility of fire was foreseeable and indeed foreseen, and there was
sufficient fire-fighting equipment inside the building. However, the manner in which the fire started
was very different from what was foreseeable. The question is whether a reasonable person would
have foreseen the danger of fire on the roof originating from an external source with sufficient
intensity to ignite the guttering.
Due to the low-risk material of which the building was made, and based on the specific
circumstances of this case, the majority held that a reasonable person would not have foreseen the

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 manner in which the harm had occurred. Thus, neither Duncan Dock nor Portnet was held liable.
Since the harm was not reasonably foreseeable, there was no need to discuss the matter of
preventability.
Streicher JA (for the minority) agreed that the appeal should be dismissed, but he based his finding
on different grounds, choosing to follow the abstract approach. In his view, fault would be
established:

if a reasonable person in the position of the defendant would have realised that harm to
the plaintiff might be caused by (his) conduct even if he would not have realised that
the consequences of that conduct would be to cause the plaintiff the very harm she
actually suffered or harm of that general nature.77

The failure to install a sprinkler system was negligent according to the abstract approach, but the
Judge found that there was no causation because the harm had been too remote.

8.5.3.3 Preventability of harm

Once it is established that harm was indeed reasonably foreseeable, one can then enquire whether that
harm was also reasonably preventable. However, in some instances78 the possibility of (serious) harm
resulting may be so slight that the reasonable person would not have taken preventative measures. In such
instances applying the negligence test does not go further than the question of foreseeability.
Whether a reasonable person would have taken measures to prevent the harm from occurring depends
on the circumstances of each particular case. However, it is not enough merely to indicate that a reasonable
person would have taken some measures to prevent the harm. The plaintiff also has to indicate which
reasonable measures the defendant should have taken in the circumstances to prevent the harm from
occurring.79
City of Salisbury v King80
King sued the City for damages after she had slipped on vegetable matter at a City vegetable
market. However, she failed to prove that the City was negligent because there was no evidence to
establish that the City had a reasonable opportunity to remove the vegetable matter as it fell on the
floor. Although it was reasonably foreseeable that vegetable matter would fall to the floor, the Court
recognised that the standard of care imposed on the City involves acknowledging the practical
difficulties in keeping the floor free of vegetable matter at all times. The size of the market area, and
the practical circumstances indicated that no reasonable precautionary measures could have
ensured that there would be no vegetable matter on the floor. The City was not liable for
consequences that were reasonably foreseeable, but which could not reasonably be prevented.81

When assessing whether a defendant would have taken steps to guard against the harm, there are four basic
considerations in each case that influence the reaction of the reasonable person regarding the preventability
of harm: 82
1. The degree or extent of the risk created by the actor’s conduct
2. The gravity of the possible consequences if the risk of harm materialises
3. The utility (social usefulness) of the actor’s conduct
4. The burden of eliminating the risk of harm.

To establish negligence, one must prove that the harm was reasonably foreseeable and reasonably
preventable. To determine reasonable foreseeability of harm, one first determines the magnitude of harm
by weighing the likelihood of the harm occurring against the seriousness of that harm. To determine
preventability, one weighs the magnitude of the harm against the utility of the conduct and the burden that
might be imposed in implementing the preventative measures. If the magnitude outweighs the utility and
burden, the conclusion is that a reasonable person would have taken steps to prevent the harm, and so the
defendant’s conduct must be measured against what a reasonable person would have done in the
circumstances. If the utility and burden outweigh the magnitude of the harm, the reasonable person would
not have taken preventative steps, and so the defendant also did not have to take preventative measures.83

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 The basis for these assumptions is the standard of care that a reasonable person would adhere to.
Ngubane v South African Transport Services84
Ngubane had been standing close to the doorway in a crowded train coach while holding onto an
overhead strap. People were still pushing to get in and out of the coach when the train started with a
jerk and moved forward. Disembarking passengers pushed against Ngubane, causing him to lose his
hold and fall backwards out of the open doorway, and down between the platform and the train. He
suffered a spinal fracture that resulted in permanent partial paralysis.
The evidence showed that the ticket examiner’s role was to remain on the platform until he was
satisfied that it was safe for the train to depart. He had to ensure that all passengers had embarked
and disembarked. In turn, the guard had to ensure that the ticket examiner had boarded the train
and then the guard should have operated the switch to close the doors. The guard should have
signalled to the driver to proceed only after he had entered the guard’s van and checked from the
window that there were no more passengers entering or leaving the train. These procedures were
part of the defendant’s ‘Interdepartmental Working Instructions’.
South African Transport Services argued that crowd control was a big problem at stations and in
trains, and that it was too expensive to employ more ticket examiners on each train and to introduce
a door mechanism in each coach that could withstand the malpractices of often undisciplined
commuters.
The Supreme Court of Appeal held that a reasonable person would have foreseen the possibility
of harm. In the circumstances of the case, the Court identified four basic considerations for
determining the reaction of a reasonable person in a particular situation:
1. The degree or extent of the risk created by the actor’s conduct
2. The gravity of the possible consequences if the risk of harm materialise
3. The utility of the actor’s conduct
4. The burden of eliminating the risk of harm.

The Court held that the considerations in points (1) and (2) would have prompted a reasonable
person to take steps to prevent the harm. The risk, according to the Court, of the near certainty of
serious or fatal injury due to the train starting when persons were still boarding and leaving coaches
was ‘as obvious as could be’,85 and the evidence demonstrated clearly that the conduct complained
of created a high risk of serious injury. To have carried out the existing prescribed procedures would
have involved no extra cost to the defendant. Issues of delayed departure could, according to the
Court, not be weighed against the other considerations that required the necessary safety
precautions to be taken. Therefore, factors (3) and (4) did not outweigh factors (1) and (2), which
meant that a reasonable person would have taken steps to guard against the foreseeable harm. So,
the failure of the South African Transport Services’ employees to take steps to prevent the harm
rendered their conduct negligent.

Cape Metropolitan Council v Graham86

Graham suffered serious injuries when a landslide from above a rock cut along Chapman’s Peak
Drive in the Cape Peninsula struck his vehicle. He sued the Cape Metropolitan Council, the local
government body responsible for the management and maintenance of the road, for delictual
damages and alleged that the Council had been negligent in, firstly, failing to warn the road users of
the risk of harm from falling earth and rock, the contention being that two ‘falling rocks’ signs were
inadequate, and, secondly, failing to close the road temporarily prior to the accident.
According to expert evidence, the unstable nature of much of the rock, the height and slope of the
rock cuts, and the steepness and inaccessibility of the mountainside above, rendered it virtually
impossible to prevent rockfalls and so ensure the safety of the road users. The relevant slope failure
had occurred during or after a rainstorm. Experts agreed that, although rockfalls on this road were
unpredictable and could occur in both wet and dry periods, the risk of rockfalls and landslides
associated with the characteristics of the slope was greatly increased in wet conditions. The decision
whether to close the road was left to the assistant maintenance superintendent in charge of roads in
the area. There was no policy regarding when he should close the road, and there were no
guidelines to help him make this decision. All indications were that he would only take steps to close
the road once a rockfall or landslide had already rendered it unusable.
The Supreme Court of Appeal held that the circumstances of each particular case indicate the
precautionary measures that reasonably should have been taken. Assessing these circumstances

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 entails a value judgement in determining whether the precautions would be reasonable in the
circumstances or not. The Court listed the following four considerations to take into account when
making such an assessment:
1. The degree or extent of the risk created by the actor’s conduct
2. The gravity of the possible consequences if the risk of harm materialises
3. The utility of the actor’s conduct
4. The burden of eliminating the risk of harm.

The Court decided that, since the Council had knowledge of the particular problems associated with
the road, it had, or ought to have had, knowledge of previous landslides and major rockfalls in wet
weather. Moreover, the rainfall figures were readily available from the Hout Bay Weather Centre for
the Council’s perusal. The Council also had knowledge of other incidents in which people had
suffered injuries as a result of rockfalls. The Court concluded that there would be times when the
appellant would know, or ought to know, that there is an increased risk of landslides and rockfalls in
wet weather. This increase in risk was such that the road signs warning of falling rocks were no
longer adequate to convey to motorists the true extent of the risk, which would then place the Council
in a position to decide whether the road ought to be closed.
The Council contended that there were utility considerations to take into account in deciding
whether to close the road. If Chapman’s Peak Drive is closed, commuters must take an alternative
route, which increases their travelling distance by 14 km, and commuters often complain about this.
However, the Court was of the opinion that this difficulty amounted to a mere inconvenience, which
did not weigh up against the great likelihood of serious harm eventuating. There was accordingly no
justification for keeping the road open in circumstances when it should be closed.
The Court reiterated that to establish whether the Council was liable, it had to ask whether, in the
circumstances, the Council’s failure to close the road prior to the accident had been unreasonable.
In answering this question, the Court took into account the following considerations:
• The rainfall figures for the week preceding the accident and the forecast of further heavy rain during
the weekend
• The major rockfall during the same month in the previous year had occurred at virtually the same
point during or after a rainstorm, resulting in the road being closed for a lengthy period of time
• On the day before the accident, as well as on the morning of the accident, the assistant
maintenance superintendent had been called out to remove rocks that had fallen onto the road.

In light of these considerations, the Court found that there could be no doubt that the risk of slope
failures had greatly increased, and that the Council ought to have known this from its officials who
had knowledge of the particular problems associated with the road. Accordingly, the Court found that
the risk of major slope failure and of harm to road users had increased to such an extent that it
outweighed the alleged utility of keeping the road open. In the circumstances, the Council had been
negligent in failing to close the road.

Enslin v Nhlapo87
One evening at 7pm, Nhlapo was driving his motor vehicle on a road alongside a farm and came
across a small herd of cattle. Nhlapo was unable to avoid the cattle and collided with a young
Brahman bull. He sued Enslin, the owner of the farm, for damages. Evidence showed that the cattle
did not belong to Enslin, but Enslin had the power to decide where on his farm the cattle could graze,
and therefore had control over the cattle. The alleged grounds of negligence were that Enslin had
failed to ensure that the cattle were properly fenced in, had failed to prevent the cattle from straying
onto a public road, and finally had failed to warn approaching motorists of the presence of cattle on
the public road although he could have done so.
Enslin admitted that the cattle had strayed onto the public road on a prior occasion. The Court
found that Enslin must have been aware that if the cattle on his farm, and in his grazing camps, were
to stray onto the adjoining public road, they could endanger the lives of road users. So the
foreseeability aspect of the enquiry had been satisfied.
The Court found that a reasonable person in Enslin’s position would have taken steps to prevent
the cattle from straying onto the public road, particularly at night. It was common cause that Enslin
had taken some steps, in that a fence and gates separated the grazing camp from an access road
that ran from the public road to a neighbouring property. He had also told his employees that the
gates had to be kept closed. Yet, on the night in question, the gates were left open by an unknown

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 person. So, the next question was whether a reasonable person in Enslin’s position would have
taken further steps to prevent the cattle from straying onto the public road. In this regard, the Court
found that a reasonable person would indeed have taken more precautions. According to the Court,
a padlock to secure the steel gate that separated the access road and the public road, or installing a
cattle grid on the access road shortly before it joined the public road, are easy, inexpensive and
effective measures to prevent the cattle from straying onto the public road. Therefore, Enslin’s failure
to take either of these precautions established that he had been negligent. The appeal was
accordingly dismissed.

Note the essential difference between Enslin v Nhlapo 88 and Kruger v Coetzee.89 In Enslin, the plaintiff
managed to show that there were additional alternative steps that a reasonable person would have taken. In
Kruger, the plaintiff did not do so. Hence the different outcomes in substantially similar circumstances.
Shabalala v Metrorail90
Shabalala boarded one of Metrorail’s trains one evening on a line that ran from Dunswart to Benoni.
Almost immediately after the train pulled away, three men stood up from among the passengers. One
man approached Shabalala and demanded money at gunpoint. Shabalala replied that he did not
have any money, after which the man shot him three times in the legs and arm. When Shabalala fell
to the floor, the assailant proceeded to search his pockets and took R130 and a train ticket from his
wallet. When the train stopped at the Benoni station, Shabalala managed to get off the train and
called out to two security officers who stood on the platform. He reported what had happened and
pointed out the assailants, who were still on the train. The officers did not take action against the
robbers since they were more concerned with Shabalala, who was injured and bleeding profusely.
Shabalala was taken to hospital and remained there for one week.
In his pleadings, Shabalala stated that he did not see any security officials on the train or on the
platform before the train left the station that evening. There were no security officials that evening to
check the authenticity of train tickets and control who boards the trains. He furthermore testified that
there were about eleven other people on the platform waiting to board the train and none of them
looked suspicious. Also, nothing about the robbers’ appearance was untoward. Shabalala was
unable to indicate whether the robbers were in the group of people on the station platform or
whether they were on the train already. He was also unable to indicate what steps Metrorail should
have taken in order to prevent the attack from occurring.
The Supreme Court of Appeal noted that the grounds of negligence that Shabalala relied on were
of a general nature and ‘relate to a systemic failure on the part of the respondent’. In other words,
the alleged failure did not relate to a failure on the part of an individual employee to act in a specific
manner in relation to the incident in question, but to a general failure on Metrorail’s part to put
measures in place that would ensure the safety of commuters.
It was evident that Metrorail had adopted measures to minimise or prevent crime on the trains by
employing security guards on the trains and on the station platforms. Therefore, the question in this
instance was whether Shabalala had discharged the burden of establishing that those measures
were unreasonable in the circumstances, and that, had such measures been taken, the harm would
not have occurred.
The Court emphasised that this did not mean, simply because the foreseeable harm occurred,
that the precautionary steps taken were necessarily unreasonable. Such an approach would lead to
the untenable situation where Metrorail would have had to provide an absolute guarantee against
harm from criminal activities on its trains. Based on the facts, it appeared that avoiding the attack
would have required at least one security guard on each coach, especially in light of the assailants’
willingness to use their guns and frequent armed attacks on security guards. Moreover, assuming
that the presence of a security guard in the coach would have prevented the harm from occurring,
the question then arises of whether Metrorail could reasonably be required to employ a guard on
every coach on every train. The Court found that such a requirement would be unreasonable
because of the large number of coaches involved, and in terms of the cost and effort. It might have
been reasonable to require security guards on every coach where lines have been identified as
being particularly vulnerable to criminal activities, but no evidence to this effect had been tendered.
In the absence of adequate evidence that a security guard should be employed on every coach and
that such action would have prevented or minimised the harm, an inference of negligence could not
be drawn. The Court therefore dismissed the appeal.

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 So, to establish negligence, there are two requirements that must be met:
• Reasonable foreseeability of harm
• Taking reasonable precautionary measures where harm was reasonably foreseeable.

In certain situations, such as in City of Salisbury v King,91 harm might be reasonably foreseeable, but a
reasonable person in the same situation as the defendant would not have taken preventative measures. It is
important to keep in mind that a plaintiff must indicate what (other) reasonable measures were available to
the defendant in the circumstances (as indicated in Kruger v Coetzee 92 and seen in Enslin v Nhlapo).93
However, reasonable precautionary measures are not necessarily those that prevent or minimise the harm.
Sometimes, as in Shabalala v Metrorail,94 the harm occurs despite a person having taken reasonable
measures. Then, it is not a question of prevention, but rather a question of whether the defendant
conformed to the standard of a reasonable person by taking the steps that a reasonable person would have
taken. If a reasonable person would have taken precautions that the defendant did not take, even if these
precautions might not actually have prevented the harm from occurring, the defendant’s conduct would
nevertheless be unreasonable, but causation would be an issue.

8.5.4 Circumstances and factors that indicate the required standard of care
In applying the test for negligence as set out in Kruger v Coetzee 95 and Sea Harvest Corporation (Pty) Ltd
v Duncan Dock Cold Storage (Pty) Ltd,96 the following circumstances play a role in assessing the standard
of care against which we should measure a defendant’s conduct.

8.5.4.1 General practice

A defendant who follows general practice in a particular set of circumstances will usually comply with
accepted precautionary measures, provided that a reasonable person would similarly have followed that
general practice. General practice usually sets out the standard of reasonable behaviour, especially the
precautionary measures to apply in particular situations. It also indicates what society would regard as
reasonable conduct or practices.97 Therefore, a defendant can escape liability by showing that the conduct
conforms with normal or general practice. If it did not, the defendant is considered to have been negligent.
However, general practice is not always decisive, because a reasonable person would not follow
practices that are out of date or unreasonable for any other reason. Common practice on its own cannot
determine negligence, because this would mean that people, or groups of people, would be able to develop
their own standards of what is acceptable, even if they amount to careless practices.98 The ultimate basis
for determining negligence is still whether a reasonable person in the same circumstances would have
acted differently.

8.5.4.2 Legitimate assumption of reasonable conduct of others

People who act according to an assumption that others would reasonably comply with the standard of a
reasonable person, normally act reasonably. In other words, a reasonable person would expect other people
to be reasonable persons also. One can therefore assume that other motorists will obey the road safety
rules,99 or that lifts,100 pavements101 and shop floors102 are in a good condition and safe for use. However, if
one realises that the assumption is not justified, one should adjust one’s conduct accordingly. Usually
pedestrians will not be negligent when they assume that drivers will stop at stop signs or pedestrian
crossings. However, should they be aware that drivers generally fail to do so, or where they see that an
oncoming driver will not obey the traffic rules, the previous assumption is no longer legitimate, and they
must do what a reasonable person would do in the circumstances and take the necessary precautions to
avoid harm. So, if the conduct of a driver (even if reckless or grossly negligent) is reasonably foreseeable,
a person will be negligent if he or she fails to take reasonable steps to avoid a collision. 103

8.5.4.3 Sudden emergency and error of judgement

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 The so-called ‘doctrine of sudden emergency’ is based on the premise that the law cannot expect a person
who has to act quickly in the face of imminent danger to exercise the same standard of care as a person
who does not have to act under these circumstances. In a sudden emergency situation, one does not have
the opportunity to consider rationally all the consequences of one’s actions. Meeting the following three
requirements will indicate compliance with the reasonable-person standard:
• The situation must have been one of imminent peril.104
• The situation of imminent peril must not have been caused by the defendant’s own negligence.105
• The defendant must not have acted unreasonably in the circumstances.106

PAUSE FOR Common practice entailing dangerous measures

REFLECTION Where common practice entails dangerous measures, for example, in the
building industry, one must evaluate the likely danger in terms of the ordinary
experience of those in the building industry who constantly deal with such likely
dangers. This ordinary experience might indicate that the practices resorted to
are not unreasonable and that it does not create an unreasonable risk of danger.
107

Courts will take into account that some activities require a degree of skill and experience to cope with
dangerous situations that might arise during such activities.108 For example, motorists must have the skill
and ability to cope with the possibility of road accidents, which usually occur suddenly. However, the
ultimate test is still that of reasonableness and how a reasonable person in the same situation would have
acted when faced with the sudden danger.
Although justified error of judgement is often present in instances of sudden emergency, errors of
judgement may also occur in normal or ordinary circumstances. The question is fundamentally whether a
reasonable person in the same situation would have made a similar error of judgement. In other words, the
error of judgement must have been bona fide and it must have been reasonable in the circumstances.109 An
error of judgement due to a lack of the required skill, knowledge and prudence is negligent, because a
reasonable person would either have possessed the necessary knowledge and would have exercised the
necessary skill to avoid making such an error,110 or would have refrained from acting due to the fact that
the requisite skill and knowledge is lacking.111

8.5.4.4 Breach of statutory duty

The legislature can prescribe the appropriate standard of behaviour for some situations. Courts prefer the
approach that breach of statutory duty is merely an indication of negligence.112 This is in accordance with
the fundamental principle that we must determine negligence in terms of the reasonable-person standard.113
Breach of a statutory duty is merely a factor that we take into account when determining negligence. So a
breach of statutory duty does not necessarily constitute negligence, and, similarly, compliance with a
statutory duty is not necessarily conclusive in establishing absence of negligence. The ultimate determinant
will be whether a reasonable person in the same situation would have complied with the statutory duty.

8.5.4.5 Dealing with inherently dangerous things, persons or

circumstances
Where a person deals with an inherently dangerous thing, or is in control of a dangerous situation, that
person is required to act with greater care. Examples of dangerous things or situations include handling
loaded firearms, transporting dangerous criminals,114 slippery floors in supermarkets115 and swimming
pools in the vicinity of young children.

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 8.5.4.6 Danger to children or people with disabilities or incapacities
Society expects people to exercise greater care and vigilance when it is likely that children, people with
disabilities, such as blind persons, or people with a limited capacity to direct their actions, such as
intoxicated persons, are in the vicinity.116 Children, especially, are known to act impulsively and
unpredictably, and a reasonable person would consider this and take precautions against injuring a child. 117
The question whether a reasonable person would have foreseen the presence of children or persons with
disabilities or incapacities depends on the circumstances of each case.118 The following factors are relevant
when determining reasonable behaviour where children are seen or anticipated:
• Visibility of the child
• The child’s apparent age
• The child’s proximity to the road, the path of the vehicle and the width of the road
• The child’s mobility or liveliness
• Indications that the child intends to cross the road
• Extent of supervision by a responsible person
• The child’s apparent awareness of the danger or of the approaching vehicle
• Motorists’ ability to stop the vehicle in the situation.
Santam Insurance Co Ltd v Nkosi119
Just before lunchtime on a Sunday afternoon, a toddler (almost three years old), Elizabeth Ngwenya,
was knocked down by a car and injured. An action for damages was instituted against the vehicle
insurer.
The road where the accident occurred was a narrow strip of tarmac with a T-junction at one end.
The driver of the vehicle, Maseko, was driving on the left-hand side of the road towards the
T-junction at a speed of approximately 30–40 km/h. A car was parked on the edge of the tarmac on
the right-hand side of the road in a manner that caused its rear to protrude into the street. As
Maseko approached the car, he saw an elderly man standing on its far side. Just as he reached the
car, Elizabeth emerged from behind the car and ran in front of his vehicle. Maseko applied his
brakes but the right front of his vehicle struck the child. The vehicle stopped within a distance of 4,5
m. Under cross-examination, Maseko conceded that he knew the area well and that there were a lot
of children in the neighbourhood. He also conceded that it was common for children to play in the
street, on its verges, and on the grassy areas next to the street.
The Court reiterated that there was a special duty of vigilance and care on motorists when they
drive near young children. The Court acknowledged that Elizabeth was out of Maseko’s sight and
would have been completely out of sight to any reasonable driver. The issue then was whether the
special duty also applies in instances where children are hidden from a motorist’s view. If there is a
duty regarding hidden children, there would be a greater demand for care and vigilance.
The Court held that the ultimate test in any such situation is to consider whether a reasonable
person in the motorist’s position would foresee the possible presence of hidden children. Based on
the circumstances of the case (at lunchtime, a person would expect children to be at home having
lunch), and given that Maseko had, for a brief moment, an unimpeded view of the area where the
car was parked, the Court found that a reasonable person in Maseko’s position would not have
anticipated a young child to be behind the parked car. Alternatively, even if a reasonable person
would have anticipated that a young child was behind the car, the surrounding circumstances meant
that a reasonable person would not have regarded it as a real possibility that required immediate
preventative precautions. Accordingly, the Court found that Maseko had not been negligent.

8.5.5 Attributes of defendants that influence the standard of care required for
reasonable conduct
Courts have recognised certain characteristics that affect the reasonable-person standard, and so have
adapted the standard to establish a realistic expectation of what is reasonable in the circumstances. These
instances include situations where defendants are beginners or experts. Society does not expect the same of
people in these categories as it would expect of the ‘average’ person. For example, if the defendant is a

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 highly skilled medical specialist, applying the reasonable-person test would be inadequate, because the
special knowledge and skill of the defendant represent a higher standard of care than one can attribute to
an average person in society.

8.5.5.1 Beginners
Where beginners of particular activities expose other persons to a risk of harm, the question arises whether
one should take into account their ‘beginner status’ when assessing negligence. Although novices are
required to demonstrate some skill and care, one cannot expect them to demonstrate the same skill and
experience of a reasonably experienced person. Nevertheless, where the conduct of a novice creates the
risk of serious harm to others, there should be no lenience regarding the lack of experience. The
seriousness of the possible harm is therefore a fundamental factor that must be taken into account. For
example, an inexperienced person who is overseeing the burning of fire-belts cannot escape liability
because of that inexperience, because the severity of the foreseeable harm to surrounding properties is such
that one would expect the inexperienced to act with similar proficiency as an experienced person.120
Similarly, courts will find negligence where a person undertakes an activity for which expert knowledge is
required, even though that person knows, or reasonably ought to know, that he or she lacks the required
skill or knowledge and should not attempt the activity in question.
African Flying Services (Pty) Ltd v Gildenhuys121
A flying instructor allowed his pupil to fly his aeroplane, which the pupil crashed, and the instructor
claimed damages from the pupil. The accident did not cause harm to anyone else. In assessing
whether the pupil had been negligent, Tindall JA in a separate judgment122 indicated that because
the instructor knowingly entrusted his interests to his inexperienced pupil, the standard against which
the pupil’s conduct had to be measured needed to be adjusted downwards to take into account the
risks inherent in the lack of skill and experience of a pupil.
Van der Walt and Midgley point out123 that if there had been injury to third parties in the African
Flying Services case, the Court would have assessed the pupil’s conduct according to the standard
of care expected from an experienced pilot. Why?
Would the conduct of a newcomer to a sport such as golf 124 be treated differently to a person who
is a learner driver? Why?

8.5.5.2 Experts
Where a defendant possesses a skill or competence gained by training and experience, we can expect a
higher standard of care. For example, courts assess the conduct of a medical doctor according to the
standards that a reasonable medical doctor would have adhered to in the same circumstances.125
Although one can say that the diligens paterfamilias or reasonable person is ‘replaced’ by the
reasonable expert in the specific field in question, the reasonable expert is similar in all respects to the
reasonable person, except that one attributes a measure of the relevant expertise to the reasonable person.
The reasonable expert criterion does not require the highest skill and expertise, but courts use it to assess
the ‘general level of skill and diligence possessed and exercised at the time by members of the branch of
the profession to which the practitioner belongs.’ 126
Therefore, one can take into account the specific branch of an area of expertise when determining
negligence. For example, a medical practitioner who is a specialist will be required to exercise a greater
degree of skill than a medical practitioner who is a general practitioner, due to the difference in their levels
of specialisation and skill.
Although courts pay close attention to the opinions expressed by experts in a particular field of
expertise, the Court in Van Wyk v Lewis 127 reiterated that it is ultimately for courts to decide what is
reasonable under the circumstances. In other words, while courts have due regard to expert opinions,
courts do not have to follow these expert opinions. Therefore, the specific circumstances of each case play
a pertinent role in how courts approach the standard of care in cases of experts, and also in how courts
decide on what society would regard as reasonable for the expert’s conduct. This approach conforms with

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 the notion in our law that deviation from the general practice in a particular field of expertise constitutes
only prima facie negligence. Based on all the 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 were considered.128
Van Wyk v Lewis129
Lewis was a surgeon who performed an urgent and difficult abdominal operation on Van Wyk. When
the operation was done, a swab that Lewis used was overlooked and it remained in Van Wyk’s body
for about one year. Evidence showed that it was general practice that the attending nursing sister
was responsible for checking and counting swabs. Also, Lewis submitted that after the operation he
had conducted as thorough a search as was allowed by the patient’s critical condition and he, as well
as the nursing sister, believed that all the swabs were accounted for. The Court found that the mere
fact that the accident happened was not adequate proof of negligence on the part of Lewis. Although
Lewis was bound to exercise all reasonable care and skill associated with his profession, the general
practice that the attending nursing sister carried the responsibility to ensure all used swabs are
accounted for was indeed reasonable and proper, and Lewis was accordingly not negligent in
complying with this general practice.
The Court measured the reasonableness of Lewis’ conduct against the standard of expertise
required of a reasonable surgeon. The question was whether a reasonable surgeon in the same
situation would have acted differently and, if so, whether that reasonable surgeon would have taken
more (or other) precautionary measures than Lewis did. The general practice of surgery indicates
the required standard of care normally expected of theatre personnel. Based on this general
practice, the Court found that Lewis acted as a reasonable surgeon would have done, and was
therefore not negligent.

8.5.5.3 Children
Before 1965, the test for negligence of children in some cases was taken to be that of ‘the reasonable child
of the child defendant’s age and intellectual development’. 130 In 1965, the Appellate Division held in
Jones, NO v Santam Bpk 131 that the test for negligence is always objective. In other words, once a court
has established that a child is accountable in law, the fact that we are dealing with a child becomes
irrelevant for purposes of establishing negligence, and the negligence of a child is determined according to
the reasonable-person test. Courts, therefore, treat a child defendant in the same way as an adult defendant.
The harshness of this approach is lessened somewhat by the rules that relate to accountability. As
indicated earlier, courts use a subjective test to determine whether a defendant was accountable at the time
that the delict occurred, and so courts take into account a child’s age and emotional and mental maturity
during the accountability enquiry. Only once a court has found a child to be (subjectively) accountable will
it apply the objective test. In assessing accountability, the Court in Weber v Santam
Versekeringsmaatskappy Bpk 132 said that one should give sufficient weight to the impulsiveness of
children due to their lack of maturity.

PAUSE FOR The reasonable-person standard and the negligent child

REFLECTION Although the reasonable-person standard leaves scope for sensitivity regarding
various levels of intellect and skill, there is no sensitivity regarding the negligent
child. Should our law recognise a reasonable-child test?

Haffejee v South African Railways and Harbours133

The plaintiff claimed damages on behalf of his son, Ahmed, who was injured by a train when he was
ten years old. The plaintiff’s house was about 150 m from a railway line, and the street they lived in
crossed the railway line. This crossing was also a pedestrian crossing. Ahmed had been playing ball
with friends when an older boy came along and ran off with the ball. Ahmed chased after the older
boy. They ran along a footpath towards the pedestrian level crossing and ran blindly in front of a
moving train. Ahmed was ‘pulled along’ by the train and flung into the bushes.

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 The Court first assessed whether Ahmed was accountable at the time of the accident. The Court
found that, despite the fact that Ahmed sometimes acted like a child of seven, he had the capacity to
appreciate the dangers associated with railway lines and trains, and that he had the ability to adjust
his actions accordingly. Having found that Ahmed was indeed accountable, the Court had to assess
his negligence on the same basis as if he were an adult. Since Ahmed was aware of the dangers
and able to act according to that awareness, and since he ‘ran blindly into the train’ with his mind set
on retrieving his ball, his conduct was, on an objective assessment, negligent and it was the cause
of his injuries. Once they had established negligence, the Court addressed the issue of contributory
negligence134 on the part of the defendant. The Court considered factors such as the dense
vegetation around the railway line, which may have meant that Ahmed did not see the train
approaching, the fact that there was no warning mechanism such as a light to warn people crossing
the line, as well as the fact that the railway line ran through a densely populated area and the
presence of children ought to have been foreseen, especially with the special duty of care that arises
with regard to children. The Court decided that damages should be shared equally between the
plaintiff and defendant.

COUNTER The accountability of children

POINT Compare the Haffejee case with the Hendricks case discussed under
accountability. In Haffejee, the child was ten years old at the time of the injury. In
Hendricks, the child was eleven years and eight months old. Yet in Haffejee the
child who ran in pursuit of his ‘stolen’ ball was found to be accountable and 50%
contributorily negligent. In Hendricks, the child was found not to be accountable
due to a child-like fascination with glass insulators and therefore no liability could
be attributed to the child. Both cases deal with the child-like preoccupation with
the situation that the children found themselves in, yet the outcomes of the two
cases are dramatically different. The pressing question here is whether the law
should extend the recognition of youthful weakness to the question of culpability
by perhaps recognising a ‘reasonable child’ standard.

8.5.6 Proving negligence

The plaintiff bears the onus of proving, on a balance of probabilities, that the defendant acted negligently.
135 In cases where there is a statutory presumption of negligence, the defendant bears the burden of

rebutting that presumption.136

In some instances the facts of the case are such that one can draw an inference of negligence. Here,
the maxim res ipsa loquitur, translated as ‘the matter speaks for itself’, applies. For example, this maxim
will apply when someone is driving on the wrong side of the road. Such a situation normally would not
occur without negligence. The res ipsa loquitur maxim does not create a presumption of negligence, since
the plaintiff still bears the onus of proof.137 The plaintiff can rely on this maxim to convince the court of
the defendant’s negligence. Where more than one reasonable possibility can be inferred from the facts, the
decision will depend on the probabilities of the case, and the court will normally hear evidence to indicate
the most probable possibility.138
Sometimes a plaintiff cannot produce sufficient evidence of negligence, but the matter at hand is
peculiarly in the knowledge of the defendant. In such cases, less evidence is necessary to make a prima
facie case, because once the plaintiff has put forward all available evidence, the defendant bears an
evidentiary burden to indicate that the conduct in question complied with the necessary standard of care.139
An irrebuttable presumption of negligence exists where, for example, a defendant keeps a wild animal
in captivity.140

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 Figure 8.3Fault

8.6 Conclusion
The general term ‘fault’ denotes both intention and negligence, and proof of fault is concerned with
blameworthiness on the part of defendants. However, before blameworthiness can be established, there
must be capacity for fault on the part of a defendant. Therefore, the first step towards establishing fault is
to determine whether the defendant is accountable.
Blameworthiness of plaintiffs, who contributed to their own loss due to intention or negligence on
their own part, involves an enquiry into contributory fault that could lead to a reduction of the plaintiff’s
damages.141

1 Intention and negligence have the same meaning in delict as in criminal law.
2 1993 (3) SA 131 (A) at 154D.
3 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 403.
4 1983 (1) SA 381 (A).

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 5 At 399H–400A.
6 At 400E–G.
7 At 400B–E (our translation).
8 2005 (5) SA 503 (SCA).
9 1983 (1) SA 381 (A).
10 1987 (1) SA 940 (A) at 958G–I.
11 1987 (1) SA 940 (A).
12 R v Victor 1943 TPD 77.
13 1981 (1) SA 1097 (A).
14 See Chapter 10.
15 15 Winterbach v Masters 1989 (1) SA 922 (E) at 925H.
16 1987 (1) SA 940 (A).
17 1980 (3) SA 24 (C).
18 Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A); Minister of Justice v Hofmeyr 1993 (3) SA 131 (A).
19 Luxuria, or conscious negligence, is purely a form of negligence because it is assessed in terms of an objective test where the
wrongdoer’s conduct is measured against the standard of a reasonable person. The question in luxuria cases would be whether
the reasonable person, in the same situation as the defendant, would have proceeded to act when realising that another harmful
consequence might occur. See the discussion of the test for negligence.
20 S v Humphreys 2015 (1) SA 491 (SCA).
21 2016 (2) SA 317 (SCA).
22 Para 26.
23 Para 31.
24 Para 32.
25 Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) at 403C.
26 Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A) at 396.
27 Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A); Maisel v Van Naeren 1960 (4) SA 836 (C).
28 1960 (4) SA 836 (C).
29 2011 (6) BCLR 577 (CC); 2011 (3) SA 274 (CC) para 39.
30 Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (6) BCLR 577 (CC);
2011 (3) SA 274 (CC) para 137.
31 Minister of Justice v Hofmeyer 1993 (3) SA 131 (A).
32 Pauw Persoonlikheidskrenking en Skuld in die Suid-Afrikaanse Privaatreg – ‘n Regshistoriese en Regsvergelykende Ondersoek
(1976) at 194–196.
33 1993 (3) SA 131 (A).
34 At 154H–I.
35 Du Bois (Ed) Wille’s Principles of South African Law 9 ed (2009 revised impression) at 1129.
36 Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A) at 396.
37 Gluckman v Schneider 1936 AD 151 at 159.
38 S v Hartmann 1975 (3) SA 532 (C).
39 Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A) at 396.
40 See, for example, Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) at 401–402.
41 See, for example, Delange v Costa 1989 (2) SA 857 (A) at 861.
42 Van der Walt and Midgley Principles of Delict 4 ed (2016) para 147, fn 6.
43 Minister van Veiligheid en Sekuriteit v Kyriacou 2000 (4) SA 337 (O) at 341J–342C; S v Motsepe 2015 (5) SA 126 (GP) para
21.
44 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).
45 1960 (4) SA 836 (C).
46 1916 TPD 114.
47 S v Chretien 1981 (1) SA 1097 (A).
48 Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 410–411.
49 Herschel v Mrupe 1954 (3) SA 464 (A) at 490.
50 2000 (1) SA 827 (SCA).
51 1966 (2) SA 428 (A). This test was reformulated in Mukheiber v Raath 1999 (3) SA 1065 (SCA).
52 1966 (2) SA 428 (A).
53 At 430.
54 1966 (2) SA 428 (A).
55 1966 (2) SA 428 (A).
56 2004 (3) SA 305 (SCA) at 325E–G.
57 Res ipsa loquitur can be translated as ‘the matter speaks for itself’. It is relevant in proving negligence. See the discussion at the
end of this chapter on proving negligence.
58 1973 (4) SA 523 (RA).
59 Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827 (SCA) para 23.
60 Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A).
61 Boberg The Law of Delict, Vol 1: Aquilian Liability (1984) at 276–277.
62 2011 JDR 0250 (SCA).
63 Para 13 (footnotes omitted).
64 1992 (3) SA 158 (C) at 163.

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 65 2000 (1) SA 827 (SCA).
66 Lomagundi Sheetmetal and Engineering Co (Pvt) Ltd v Basson 1973 (4) SA 523 (RA) at 525; Loureiro v Imvula Quality
Protection (Pty) Ltd 2014 (3) SA 394 (CC) paras 62–63; Jacobs v Transnet Ltd t/a Metrorail 2015 (1) SA 139 (SCA) paras
6–9; Minister of Justice and Constitutional Development v X [2014] 4 All SA 586 (SCA); 2015 (1) SA 25 (SCA) para 34.
67 Bolton v Stone [1951] AC 850.
68 1973 (4) SA 523 (RA).
69 Green v Naidoo 2007 (6) SA 372 (W) paras 38–44.
70 1994 (1) SA 803 (T).
71 At 809H.
72 At 810F–G.
73 2000 (1) SA 827 (SCA).
74 1966 (2) SA 428 (A).
75 1999 (3) SA 1065 (SCA). This formulation is a classic exposition of the relative approach to negligence.
76 Paras 22 and 25.
77 As quoted by Streicher JA at 845 para 3 from Groenewald v Groenewald 1998 (2) SA 1106 (SCA) at 1112I–J.
78 Ngubane v South African Transport Services 1991 (1) SA 756 (A); Shabalala v Metrorail 2008 (3) SA 142 (SCA).
79 Kruger v Coetzee 1966 (2) SA 428 (A) at 431G-432D.
80 1970 (2) SA 528 (RA).
81 See also Kruger v Coetzee 1966 (2) SA 428 (A) where the Court held that the plaintiff had the onus of proving negligence,
which includes the burden of indicating which reasonable precautions the defendant should have taken. See also Avonmore
Supermarket CC v Venter 2014 (5) 399 (SCA) para 20.
82 Ngubane v South African Transport Services 1991 (1) SA 756 (A); Cape Metropolitan Council v Graham 2001 (1) SA 1197
(SCA).
83 Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson 1973 (4) SA 523 (RA).
84 1991 (1) SA 756 (A).
85 At 758I–J.
86 2001 (1) SA 1197 (SCA).
87 2008 (5) SA 146 (SCA).
88 2008 (5) SA 146 (SCA).
89 1966 (2) SA 428 (A).
90 2008 (3) SA 142 (SCA).
91 1970 (2) SA 528 (RA).
92 1966 (2) SA 428 (A).
93 2008 (5) SA 146 (SCA).
94 2008 (3) SA 142 (SCA).
95 1966 (2) SA 428 (A).
96 See section 8.5.3.
97 See, for example, Colman v Dunbar 1933 AD 141 at 157.
98 Van der Walt and Midgley Principles of Delict 4 ed (2016) para 165.
99 Moore v Minister of Posts and Telegraphs 1949 (1) SA 815 (A); Van As v Road Accident Fund 2012 (1) SA 387 (SCA).
100 Faiga v Body Corporate of Dumbarton Oakes 1997 (2) SA 651 (W).
101 Stewart v City Council of Johannesburg 1947 (4) SA 179 (W).
102 Swart v Department of Economic Affairs, Environment and Tourism (Eastern Cape) [2001] 2 All SA 357 (E).
103 Van der Walt and Midgley (2016) para 165; Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict 7 ed (2015) at
143.
104 Msutu v Protea Assurance Co Ltd 1991 (1) SA 583 (C).
105 Brown v Hunt 1953 (2) SA 540 (A).
106 Bonthuys v Visagie 1931 CPD 75.
107 Colman v Dunbar 1933 AD 141.
108 Van der Walt and Midgley (2016) para 167.
109 Neethling v President Insurance Co Ltd 1978 (2) SA 744 (T) at 745; Pringle v Administrator, Transvaal 1990 (2) SA 379 (W)
at 395–396.
110 Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A).
111 See section 8.5.5.1.
112 Van der Walt and Midgley (2016) para 164; Neethling and Potgieter (2015) at 157–158.
113 Clairwood Motor Transport Co (Pty) Ltd v Akal & Sons 1959 (1) SA 183 (N); Bekker v Du Toit 1974 (3) SA 248 (O).
114 Van der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE).
115 Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (E); Checkers Supermarket v Lindsay (123/08) [2009] ZASCA 26; 2009
(4) SA 459 (SCA); [2009] 3 All SA 487 (SCA) (27 March 2009).
116 Roelse v Commercial Union Assurance Co of SA Ltd 1981 (1) SA 1126 (A).
117 Santam Insurance Co Ltd v Nkosi 1978 (2) SA 784 (A); Knouwds v Administrateur, Kaap 1981 (1) SA 544 (C).
118 Road Accident Fund v Landman 2003 (1) SA 610 (C).
119 1978 (2) SA 784 (A).
120 Simon’s Town Municipality v Dews 1993 (1) SA 191 (A).
121 1941 AD 230.
122 At 245.
123 Van der Walt and Midgley (2016) para 172.

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 124 Clarke v Welsh 1975 (4) SA 469 (W).
125 Van Wyk v Lewis 1924 AD 438; Castell v De Greeff1993 (3) SA 501 (C); Mukheiber v Raath 1999 (3) SA 1065 (SCA).
126 Van Wyk v Lewis 1924 AD 438 at 444.
127 At 460.
128 Van der Walt and Midgley (2016) para 171, fn 38.
129 1924 AD 438.
130 Lentzner NO v Friedmann 1919 OPD 20.
131 1965 (2) SA 542 (A).
132 1983 (1) SA 381 (A).
133 1981 (3) SA 1062 (W).
134 We discuss contributory negligence in Chapter 35.
135 Ntsala v Mutual & Federal Insurance Co Ltd 1996 (2) SA 184 (T) at 190.
136 Gouda Boerdery BK v Transnet Ltd 2005 (5) SA 490 (SCA); see also Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA)
where Eskom did not succeed in rebutting the presumption of negligence.
137 Stacey v Kent 1995 (3) SA 344 (E) at 352.
138 Van der Walt and Midgley (2016) para 156.
139 Jamneck v Wagener 1993 (2) SA 54 (C) at 65.
140 Zietsman v Van Tonder 1989 (2) SA 484 (T) at 492.
141 See Chapter 35, where the issue of the consequences of a plaintiff’s contributory fault is addressed.

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 Chapter 9

Wrongfulness

9.1 Introduction

9.2 What is the role of wrongfulness in South African law?

9.3 When is the issue of wrongfulness likely to arise?

9.4 Wrongfulness – an attribute of conduct?

9.5 Wrongfulness presupposes both conduct and consequences, which do not necessarily
occur simultaneously

9.6 Wrongfulness – a matter of law

9.7 The general criteria for determining wrongfulness: Pathways to policy

9.8 Wrongfulness and the infringement of a right

9.9 Wrongfulness and breach of duty

9.10 Different concepts of ‘duty’

9.11 What is the content of the legal duty?

9.12 Policy considerations

9.13 Is wrongfulness determined with hindsight (ex post facto) or from the perspective of
the defendant at the time of the relevant conduct with foresight (ex ante)?
9.13.1 Involvement of a strictly ex post facto perspective and exclusion of an ex ante or
actor-oriented perspective
9.13.2 Determining wrongfulness or fault first
9.13.3 The nature of fault is in some cases relevant to wrongfulness
9.13.4 Wrongfulness and negligence are sometimes based on similar factors

9.14 Conclusion

9.1 Introduction
Wrongfulness is closely linked to the central idea of the law of delict, which is that liability is imposed

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