, PVL3703
ASSIGNMENT 1 SEMESTER 2
2026
DUE 1 SEPTEMBER 2026
An Analysis of Ricky’s Conduct in the Context of Delictual Liability
Introduction
In the law of delict, the foundational element for establishing liability is the presence of legally
recognised conduct. Conduct refers to any voluntary human act or omission that has a
consequence in the real world. For liability to arise, this conduct must be performed by a person
with sufficient mental capacity, and it must be voluntary in the sense that it is susceptible to
control by the will of the actor (Neethling, Potgieter & Visser 2015: 34). The scenario involving Ricky,
a mechanical engineer, raises a critical question: whether his failure to secure the scaffolding
constitutes conduct for the purposes of delict. Ricky argues that his inaction was not conduct, that
the collapse was caused by natural forces, and that responsibility lay with another party. This essay
will critically analyse these contentions, concluding that Ricky’s omission does indeed qualify as
conduct in the eyes of the law, provided a legal duty to act existed.
The Nature of Conduct: Acts and Omissions
The first point of inquiry is the definition of conduct. In South African law, conduct is a voluntary
human act or omission (Minister van Polisie v Ewels 1975 (3) SA 590 (A)). While an act involves a
positive action, an omission involves a failure to act where there was a legal obligation to do so.
Ricky’s primary defence is that his failure to act (an omission) should not be considered conduct.
However, this argument is flawed. The law distinguishes between mere omissions and omissions
that are associated with a prior legal duty. As stated by Loubser and Midgley (2017: 78), a mere
failure to prevent harm is not generally actionable, but it becomes conduct when the defendant
was under a legal duty to act positively to prevent the harm.
In the present case, Ricky is a mechanical engineer who, by his own observation, noticed that the
scaffolding was not fully secured. His profession and his presence on the site place him in a position
where he is expected to exercise reasonable care. However, the critical factor is not merely his
profession but the existence of a legal duty to act. The courts have held that omissions can be
wrongful and thus constitute conduct when the defendant had a duty to act (e.g., where there is a
special relationship or where the defendant creates a risk) (Van der Walt & Midgley 2005: 56).
Ricky argues that the responsibility rested with the shift supervisor. While this may be true in terms
of the company’s internal hierarchy, it does not automatically absolve Ricky if he, as a qualified
engineer, was the only person who noticed the defect and had the capacity to address it or raise an
alarm. The fact that he made a conscious decision to ignore the problem, believing that the next
ASSIGNMENT 1 SEMESTER 2
2026
DUE 1 SEPTEMBER 2026
An Analysis of Ricky’s Conduct in the Context of Delictual Liability
Introduction
In the law of delict, the foundational element for establishing liability is the presence of legally
recognised conduct. Conduct refers to any voluntary human act or omission that has a
consequence in the real world. For liability to arise, this conduct must be performed by a person
with sufficient mental capacity, and it must be voluntary in the sense that it is susceptible to
control by the will of the actor (Neethling, Potgieter & Visser 2015: 34). The scenario involving Ricky,
a mechanical engineer, raises a critical question: whether his failure to secure the scaffolding
constitutes conduct for the purposes of delict. Ricky argues that his inaction was not conduct, that
the collapse was caused by natural forces, and that responsibility lay with another party. This essay
will critically analyse these contentions, concluding that Ricky’s omission does indeed qualify as
conduct in the eyes of the law, provided a legal duty to act existed.
The Nature of Conduct: Acts and Omissions
The first point of inquiry is the definition of conduct. In South African law, conduct is a voluntary
human act or omission (Minister van Polisie v Ewels 1975 (3) SA 590 (A)). While an act involves a
positive action, an omission involves a failure to act where there was a legal obligation to do so.
Ricky’s primary defence is that his failure to act (an omission) should not be considered conduct.
However, this argument is flawed. The law distinguishes between mere omissions and omissions
that are associated with a prior legal duty. As stated by Loubser and Midgley (2017: 78), a mere
failure to prevent harm is not generally actionable, but it becomes conduct when the defendant
was under a legal duty to act positively to prevent the harm.
In the present case, Ricky is a mechanical engineer who, by his own observation, noticed that the
scaffolding was not fully secured. His profession and his presence on the site place him in a position
where he is expected to exercise reasonable care. However, the critical factor is not merely his
profession but the existence of a legal duty to act. The courts have held that omissions can be
wrongful and thus constitute conduct when the defendant had a duty to act (e.g., where there is a
special relationship or where the defendant creates a risk) (Van der Walt & Midgley 2005: 56).
Ricky argues that the responsibility rested with the shift supervisor. While this may be true in terms
of the company’s internal hierarchy, it does not automatically absolve Ricky if he, as a qualified
engineer, was the only person who noticed the defect and had the capacity to address it or raise an
alarm. The fact that he made a conscious decision to ignore the problem, believing that the next
