, PLEASE USE THIS DOCUMENT AS A GUIDE TO ANSWER YOUR ASSIGNMENT
A) Tumelo suffers from insomnia and when he does sleep often sleepwalks. His doctor has
prescribed him medication to control this condition. Tumelo goes on a camping trip with his
friends. On one evening while sleepwalking, he thinks he is being attacked by a robber and stabs
one of his friends, Mandla. In reality, there was no robber and Mandla was trying to assist
Tumelo to get back to his bed. It transpired that Tumelo had not taken his medication
prescribed by the doctor that morning. Mandla was seriously injured and hospitalised. Mandla
would like to institute a delictual action against Tumelo. Discuss with reference to relevant
authority whether Tumelo indeed acted for the purposes of the law of delict. Restrict the scope of
your answer to the element of conduct.
In the law of delict, the concept of conduct is a fundamental element that must be present for
delictual liability to arise. Mandla's ability to institute a delictual action against Tumelo for his
injuries hinges on whether Tumelo's act of stabbing can be legally classified as "conduct" within this
framework, particularly given his sleepwalking and failure to take medication.
The Element of Conduct in Delict
For the purposes of delictual liability, "conduct" refers to a voluntary human act or omission1.
Voluntariness implies that the person had sufficient mental ability to control their muscular
movements, meaning their bodily movements are susceptible to control by their will2. It's important
to note that voluntariness does not require that a person must have willed or desired their conduct,
nor does it mean that their conduct should be rational or explicable3. For instance, an omission can
be voluntary even if not desired, provided the person was, in principle, able to act4.
If an act is involuntary, it does not constitute conduct for delictual purposes, and thus there is no
question of a delict and, consequently, no liability5. The defence that a defendant did not act
voluntarily is known as automatism6. Automatism can be induced by various factors, including an
epileptic fit, unconsciousness, or acting as a sleepwalker. For example, a person who commits a
misdeed in their sleep or acts mechanically out of a nightmare is generally not held liable because
such a deed is not a voluntary act. In this scenario, Tumelo's act of stabbing Mandla while
sleepwalking would, on its face, appear to be an involuntary act due to a state of automatism. In
cases of "sane" automatism (where the automatism is not a consequence of mental illness), the onus
is on the plaintiff (Mandla) to prove that the defendant (Tumelo) acted voluntarily and not
mechanically7.
Exceptions to the Defence of Automatism
The defence of automatism will not succeed under certain circumstances. This includes the principle
of actio libera in causa, which applies if the defendant intentionally created the situation in which
they act involuntarily in order to harm another. For example, if someone becomes intoxicated or uses
a drug with the intention to injure another when they are later unable to control themselves.
1 J Neethling & Potgieter, 2020:p4
2 PVL3703, 2011:p3
3 J Neethling & Potgieter, 2020:p28
4 PVL3703, 2011:p19
5 J Neethling & Potgieter, 2020:p29
6 J Neethling & Potgieter, 2020:p31
7 J Neethling & Potgieter, 2020:p30
A) Tumelo suffers from insomnia and when he does sleep often sleepwalks. His doctor has
prescribed him medication to control this condition. Tumelo goes on a camping trip with his
friends. On one evening while sleepwalking, he thinks he is being attacked by a robber and stabs
one of his friends, Mandla. In reality, there was no robber and Mandla was trying to assist
Tumelo to get back to his bed. It transpired that Tumelo had not taken his medication
prescribed by the doctor that morning. Mandla was seriously injured and hospitalised. Mandla
would like to institute a delictual action against Tumelo. Discuss with reference to relevant
authority whether Tumelo indeed acted for the purposes of the law of delict. Restrict the scope of
your answer to the element of conduct.
In the law of delict, the concept of conduct is a fundamental element that must be present for
delictual liability to arise. Mandla's ability to institute a delictual action against Tumelo for his
injuries hinges on whether Tumelo's act of stabbing can be legally classified as "conduct" within this
framework, particularly given his sleepwalking and failure to take medication.
The Element of Conduct in Delict
For the purposes of delictual liability, "conduct" refers to a voluntary human act or omission1.
Voluntariness implies that the person had sufficient mental ability to control their muscular
movements, meaning their bodily movements are susceptible to control by their will2. It's important
to note that voluntariness does not require that a person must have willed or desired their conduct,
nor does it mean that their conduct should be rational or explicable3. For instance, an omission can
be voluntary even if not desired, provided the person was, in principle, able to act4.
If an act is involuntary, it does not constitute conduct for delictual purposes, and thus there is no
question of a delict and, consequently, no liability5. The defence that a defendant did not act
voluntarily is known as automatism6. Automatism can be induced by various factors, including an
epileptic fit, unconsciousness, or acting as a sleepwalker. For example, a person who commits a
misdeed in their sleep or acts mechanically out of a nightmare is generally not held liable because
such a deed is not a voluntary act. In this scenario, Tumelo's act of stabbing Mandla while
sleepwalking would, on its face, appear to be an involuntary act due to a state of automatism. In
cases of "sane" automatism (where the automatism is not a consequence of mental illness), the onus
is on the plaintiff (Mandla) to prove that the defendant (Tumelo) acted voluntarily and not
mechanically7.
Exceptions to the Defence of Automatism
The defence of automatism will not succeed under certain circumstances. This includes the principle
of actio libera in causa, which applies if the defendant intentionally created the situation in which
they act involuntarily in order to harm another. For example, if someone becomes intoxicated or uses
a drug with the intention to injure another when they are later unable to control themselves.
1 J Neethling & Potgieter, 2020:p4
2 PVL3703, 2011:p3
3 J Neethling & Potgieter, 2020:p28
4 PVL3703, 2011:p19
5 J Neethling & Potgieter, 2020:p29
6 J Neethling & Potgieter, 2020:p31
7 J Neethling & Potgieter, 2020:p30
