Data Loading...
CONDUCT ELEMENT
WARNING These notes are provided solely for the use of registered Delict students in 2021 at the UKZN Pmb Campus and may not be disseminated or shared with others. Copying and pasting of these notes in your test and/or any other assessment will be regarded as plagiarism and/or cheating and you will be reported to the Proctor for Disciplinary action. These are not comprehensive notes and notes must be supplemented by the required reading as specified by your lecturer both in Zoom and on Learn
Requirements to prove a delict (1) It must be proved that the CONDUCT was human (2) The CONDUCT must be voluntary. If conduct is not voluntarily, the person is acting under a state of automatism (and cannot be held legally responsible) (3) The CONDUCT must take the form of an act (physical act) or an omission (failure to do something) Let us look at these requirements in greater detail: 1.
CONDUCT
What if conduct was caused by an animal? For example, a person’s dog bites a visitor who comes to visit and they need to go to the doctor for treatment? Can the visitor sue the dog owner for medical costs? Animal behaviour • • •
•
In terms of the law of delict in SA, a wrongdoer who caused damage can typically only be held delictually liable if there was fault (either in the form of intent or negligence) on his or her part Over time, instances of liability without fault emerged and were subsequently recognised in terms of common law, legislation and in terms of judgments handed down by South African courts. Liability without fault, also known as ‘strict liability’ denotes a form of liability without fault on the part of the wrongdoer. One such solidified instance of strict liability in South African law pertaining to damage caused by domestic animals is that of the actio de pauperie. although the domestic animal is the direct cause of the damage, the domestic animal owner bears sole compensatory responsibility for any such damage. 1
Requirements under the actio de pauperie and relevant defences •
• • • (1) o o
The primarily noxal character of the actio de pauperie can be traced back to the Law of the Twelve Tables in terms of which it was first recognised that a prejudiced individual may claim delictual damages from the owner of a domestic animal, where the domestic animal caused damage. Initially restricted to cases concerning cattle the actio was extended to cover instances concerning domestic animals such as dogs Despite academic criticism, the actio de pauperie remains firmly entrenched in South African law As delineated in Fourie v Naranjo and Another 2008 (1) SA 192 (C) there are said to be four requirements for a claim under the actio de pauperie to be successful, namely: The wrongdoer/defendant must be the owner of the domestic animal when the damage was inflicted.
Merely exercising control over the animal is not sufficient If the defendant is able to prove that the animal was under the control of a third party at the time of the incident and the third party negligently failed to prevent the attack, this requirement will not be satisfied and as such this may serve as a valid defence to the actio de pauperie (2) • •
The animal must be a domesticated animal. A distinction must be maintained between wild animals, which are presumed to be dangerous or ferocious by nature (ferae naturae) and domestic animals which are regarded as being tame in nature. It is important, however, not to afford too narrow an interpretation of the term ‘domestic animal’ as the actio may still be applicable in cases concerning cattle, horses, bees and even (determinable on a case-by-case basis)
(3)
The animal must have acted contrary to its nature (contra naturam sui generis) when inflicting the damage.
•
This requirement entails an objective stance being adopted in order to determine whether the animal acted contrary to the behaviour that may reasonably be expected of an animal in the applicable genus This requirement is qualified further, however, as the animal must have caused the damage spontaneously and as a result of inward vice/excitement (sponte feritate commota). This requirement will not be satisfied if the defendant can prove that the animal reacted to external stimuli and not due to internal vice. Defences that may be raised by the defendant pertaining to this requirement and which exclude liability include vis maior (an unforeseeable intervening force of nature), provocation or culpable conduct on the part of the prejudiced person/claimant, provocation or culpable conduct on the part of a third party or provocation by another animal The onus is placed on the defendant to prove the existence of a valid defence. In addition to the defences listed, the action may also be dismissed if the defendant can
• • •
•
2
successfully prove that the prejudiced party voluntarily assumed risk (the defence of volenti non fit iniuria). The victim or prejudiced person or his or her property must have been lawfully present at the location where the damage was inflicted. Courts’ interpretation of this requirement differs as some judgments refer to the claimant having a ‘lawful purpose’ while others require a ‘legal right’. There appears to be a preference for the ‘legal right’ approach as it may be difficult to ascertain the ‘lawful purpose’ of property. The defendant may be absolved of liability in this instance if he or she can prove that the claimant had no legal right to be on the property as he or she is, for example, an intruder or a thief.
•
•
•
Both special damages (which may include, for example, damage to property and future medical expenses), as well as general damages (which may include pain and suffering, loss of amenities of life, disability and disfigurement) may be claimed in terms of the actio de pauperie. In addition to seeking relief in terms of the actio de pauperie, the plaintiff may plead in the alternative under the lex Aquilia based on the negligence of the defendant. In order for the plaintiff to prove negligence on the part of the defendant, the plaintiff will need to prove the requirements set out in the ‘reasonable person test’ as articulated in Kruger v Coetzee 1966 (2) SA 428 (A), namely:
Whether a diligens paterfamilias in the position of the defendant would – – foresee the possibility of his or her conduct causing injury to another or to the property of another and leading to subsequent patrimonial loss; and – take reasonable steps to guard against this occurrence. o However, the defendant failed to take such steps. o
2. The human conduct must be voluntary
• •
Liability will only fall if the accused acted voluntarily (could he control his conscious will?) If the conduct is not subject to the control of the persons conscious will, he is acting in a state of automatism (like a robot, with no free will or thought)
How do we establish if conscious will is present? We ask the following questions: (a) (b) • •
can the accused remember the incident? Amnesia is not a defence in itself but is a strong indicator of presence of automatic (or robotic state) was there a trigger mechanism (that is an emotionally charged event which set the accused off to act?) the more immediate and intense the response to the trigger mechanism, the more likely it is he acted automatically (or like a robot) This means that the more quickly the accused responded the event such as being provoked or nightmare, the more likely he acted like a robot. 3
(c)
Was there goal directed conduct on the part of the accused? For example, did the accused get in their car and drive during sleepwalking episode, or did he go look at his phone, check text messages, go get something to eat etc. The actions of the accused need to be very basic, no thinking no planning involved. Simple basic actions only Also consider whether or not there was a motive
(d)
Two cases deal superficially with automatism Wessels v Hall and Pickles (Coastal) (Pty) Ltd 1985 (4) SA 153 (C) Facts • • •
•
The defendant, a diabetic suffered a hypoglycaemic attack and became comatose while driving a vehicle This resulted in an accident The defendant was aware of his diabetic condition and of the possibility of sudden attacks and knew what precautionary measures (eating a midmorning snack) were necessary He was held to have been negligent for having failed to take reasonable precautions before driving his car
Finding • • • • • •
•
• •
As to whether his conduct was voluntary- is an objective test (98) What are the criteria for determining if someone is acting in state of automatism? (1) acting mechanically (no goal directed behaviour), (2) trigger mechanism (3) respond almost immediately to trigger mechanism (4) amnesia is present The court asked whether from an objective viewpoint; did the respondent act almost immediately to the hypoglacemia (trigger)? It doesn’t matter, even if he did he will be guilty. Why? Antecedent liability: Where a defendant voluntarily engages in course of conduct that leads to a state of automatism, the enquiry into negligence should focus on the course of conduct that preceded the state of automatism. [The Actio Libera in Causa principle] Therefore, even if he is unconscious, he was still negligent as should have taken steps: the enquiry into negligence is objective- it focuses on whether the defendants voluntary harm causing conduct conformed to the standard that can be expected of a reasonable person Courts will impose liability if the possibility of causing harm is reasonably foreseeable Automatism, case will be carefully scrutinized as is difficult to claim you had a sudden blackout
4
Molefe v Haeng 1999 (1) SA 562 (SCA) Facts • • • • • •
The appellant was involved in a motor collision with the defendant The accident occurred when two vehicles approached on another from opposite directions The defendant car swerved on to the incorrect side of the road, where it collided with the plaintiff’s vehicle. The defendant gave evidence to the effect that he was overcome by a sudden, unforeseen, and uncontrollable blackout (raised defence of automatism) He attributed this to a fall in a supermarket earlier on the morning of the accident There was evidence that he had been treated at a hospital after the fall, and also that he appeared to have been in a daze after the accident
Finding • •
In delict, the onus rests on the plaintiff of providing the defendant’s conduct was voluntary and that the defendant did not suffer a blackout Plaintiff could not do this: the defendant had a fall, lost consciousness, no evidence provided showing he had appreciated the possibility or that a reasonable person in his person would foresee that he would have an accident if he drove
3. The conduct must be either a commission or omission
Does the following constitute an act or an omission? See the case below then decide: K v Minister of Safety and Security 2005 (9) BCLR 835 (CC) The facts • According to that statement, on 26 March 1999, Ms K who was then just 20 years old, had a date with a boyfriend at the Bundu Inn. • • •
The arrangement was that he would take her home at the end of the evening. At midnight, when the Inn closed, they chose to go to another bar. There a former girlfriend of her companion turned up and an argument broke out between Ms K and her companion.
5
• • • • •
•
•
• • • •
• • • •
•
•
•
•
Shortly after, she asked him to take her home but he refused and she decided to find a telephone to call her mother to collect her. There was no phone at the bar and she decided to walk to a nearby petrol station. It was now approximately 4 am. At the petrol station, the attendant informed her that the phone could not be used for outgoing calls. She did not accept this and begged him to let her use the telephone. At that time, a car drew up and a policeman in full uniform came into the shop. The policeman, Sergeant Nathaniel Rammutle, was the driver of the car which was an official South African Police Service vehicle. Sergeant Rammutle approached Ms K and, according to the agreed statement, addressed her in fluent Afrikaans to ask where she was going. She answered that she really wanted to go home and he offered to take her there. She accepted his offer and climbed into the car in which there were two other policemen, Sergeant Ephraim Gabaatlholwe and Sergeant Edwin Nqandela who were also both in uniform. All of the policemen were on duty at the time. She did not know any of the policemen. They started in the direction of her home. Ms K did not speak to them, but they spoke amongst themselves in a language she did not understand. She fell asleep for a short while. When she awoke, the car took a turn in the wrong direction. She immediately said to the driver that it was the wrong direction. The policemen immediately told her to be quiet and a policeman’s jacket was thrown over her head and held tight. She began to kick and scream and to ask what was happening, but the jacket was held tight and she was instructed to keep quiet. She struggled unsuccessfully to free herself. The jacket was pulled tighter and tighter over her head until she was struggling to breathe. She then begged the policemen to remove the jacket but she was punched sharply in the stomach and told that she would be killed if she did not stay quiet. Thereafter the car came to a halt. According to the agreed statement of facts, the applicant was then forced onto the back seat of the car, her denim jeans, underwear, socks and shoes were removed and she was raped by the three policemen in turn. She continued to struggle to no avail. After raping her, the policemen put some of her clothing back on her, and helped her out of the car. The police jacket was still held over her head. She was then thrown on the ground, the jacket removed and the three men climbed back into the vehicle which raced away. It was admitted by the Minister that as policemen who were on duty, the three policemen had a general duty to ensure the safety of members of the public and to prevent crime. It was also accepted by both parties that the three policemen were aware of the provisions of section 10(1) of Special Force Order 3(A) of 1987 of the South African Police Services which prohibits the transport of unauthorised passengers in police vehicles. Only defence witnesses, people who are arrested etc may be transported in police vehicles. You could also transport people who are stranded or injured 3(BB)
6
Short answer: •
The act of rape could constitute a positive conduct, but simultaneously the policeman’s failure to comply with his duty to protect citizens amounts to an omission
•
What is important to note is that even if you were NOT acting voluntarily at the time, but could have taken steps to mitigate the effects of acts committed during a state of automatism, you can still be held legally liable For example, if you have a history of sleepwalking, and you don’t take necessary precautions, such as getting someone to lock you in your bedroom, and you end up driving a car in your sleep, and cause an accident, you can still be held responsible This is due to actio libera in causa rule
•
•
7