, THE ELEMENT OF CONDUCT IN DELICTUAL LIABILITY: AN ANALYSIS OF LALITA’S OMISSION IN
COMMUNAL LIVING CONTEXT
In order to determine whether Amir’s delictual claim against Lalita can succeed, it is necessary to
examine whether the element of conduct is satisfied. Conduct is the first of the five general
requirements for delictual liability, namely conduct, wrongfulness, fault, causation, and damage
(PVL3703,2016, p. 11). Without conduct, there can be no delict, since liability presupposes some
human act or omission that can be legally evaluated. In this case, Lalita’s omission—her failure to
warn Amir about the sparking plug—must be scrutinized to establish whether it qualifies as legally
relevant conduct.
Conduct refers to any human act or omission that can be attributed to a person’s will (J Neethling &
Potgieter 2020, p. 58). It is not enough that harm occurs; the law requires that the harm be linked
to a person’s voluntary behaviour. Thus, conduct encompasses both positive acts (commissions)
and failures to act (omissions). The study guide emphasizes that “it is logically inconceivable that
somebody can be delictually injured unless there has been some act, conduct or deed by another”
(PVL3703,2016, p. 9). In Lalita’s case, she did not directly cause the fire by plugging in the kettle or
by physically damaging Amir’s property. Instead, her conduct is framed as an omission: she noticed
the sparking plug but failed to warn Amir, who entered the kitchen shortly thereafter. The question
is whether this omission constitutes legally relevant conduct.
South African law recognizes that omissions can amount to conduct if there exists a legal duty to
act (J Neethling & Potgieter 2020, p. 62). Not every failure to act is actionable; the law generally
expects individuals to bear their own losses unless a duty exists to prevent harm to others
(PVL3703,2016, p. 2). For example, if I see someone drowning but do nothing, I am not
automatically liable unless a special relationship or duty compels me to intervene. In Lalita’s
situation, she was aware of a dangerous condition—the sparking plug—and she left the kitchen
without warning Amir, who was about to use the same space. The omission is therefore not a
neutral failure to act but one occurring in circumstances where a duty arguably arose. The study
guide explains that liability for omissions arises when “a legal duty to prevent the injury has been
breached” (PVL3703,2016, p. 9).
The existence of a legal duty depends on the boni mores or the legal convictions of the community
(J Neethling & Potgieter 2020, p. 23). Courts ask whether, in light of societal norms and
constitutional values, it is reasonable to impose liability for failing to act. Several factors are
relevant. First, Lalita had control over the source of danger. She was the one who used the kettle
and noticed the sparking plug. She was in a position to control or at least mitigate the risk by
unplugging the kettle or warning others. Second, the harm was foreseeable. Lalita observed sparks,
which reasonably indicated a risk of fire or injury. A reasonable person would foresee that leaving
the plug unattended could cause damage. Third, there was proximity to the victim. Amir entered
the kitchen immediately after Lalita left. The danger was not remote; it was imminent and directly
connected to Lalita’s omission. Finally, the communal living context is significant. In a student
residence, residents share responsibility for communal spaces. The boni mores would likely impose
a duty to warn fellow residents of obvious dangers in shared facilities.
COMMUNAL LIVING CONTEXT
In order to determine whether Amir’s delictual claim against Lalita can succeed, it is necessary to
examine whether the element of conduct is satisfied. Conduct is the first of the five general
requirements for delictual liability, namely conduct, wrongfulness, fault, causation, and damage
(PVL3703,2016, p. 11). Without conduct, there can be no delict, since liability presupposes some
human act or omission that can be legally evaluated. In this case, Lalita’s omission—her failure to
warn Amir about the sparking plug—must be scrutinized to establish whether it qualifies as legally
relevant conduct.
Conduct refers to any human act or omission that can be attributed to a person’s will (J Neethling &
Potgieter 2020, p. 58). It is not enough that harm occurs; the law requires that the harm be linked
to a person’s voluntary behaviour. Thus, conduct encompasses both positive acts (commissions)
and failures to act (omissions). The study guide emphasizes that “it is logically inconceivable that
somebody can be delictually injured unless there has been some act, conduct or deed by another”
(PVL3703,2016, p. 9). In Lalita’s case, she did not directly cause the fire by plugging in the kettle or
by physically damaging Amir’s property. Instead, her conduct is framed as an omission: she noticed
the sparking plug but failed to warn Amir, who entered the kitchen shortly thereafter. The question
is whether this omission constitutes legally relevant conduct.
South African law recognizes that omissions can amount to conduct if there exists a legal duty to
act (J Neethling & Potgieter 2020, p. 62). Not every failure to act is actionable; the law generally
expects individuals to bear their own losses unless a duty exists to prevent harm to others
(PVL3703,2016, p. 2). For example, if I see someone drowning but do nothing, I am not
automatically liable unless a special relationship or duty compels me to intervene. In Lalita’s
situation, she was aware of a dangerous condition—the sparking plug—and she left the kitchen
without warning Amir, who was about to use the same space. The omission is therefore not a
neutral failure to act but one occurring in circumstances where a duty arguably arose. The study
guide explains that liability for omissions arises when “a legal duty to prevent the injury has been
breached” (PVL3703,2016, p. 9).
The existence of a legal duty depends on the boni mores or the legal convictions of the community
(J Neethling & Potgieter 2020, p. 23). Courts ask whether, in light of societal norms and
constitutional values, it is reasonable to impose liability for failing to act. Several factors are
relevant. First, Lalita had control over the source of danger. She was the one who used the kettle
and noticed the sparking plug. She was in a position to control or at least mitigate the risk by
unplugging the kettle or warning others. Second, the harm was foreseeable. Lalita observed sparks,
which reasonably indicated a risk of fire or injury. A reasonable person would foresee that leaving
the plug unattended could cause damage. Third, there was proximity to the victim. Amir entered
the kitchen immediately after Lalita left. The danger was not remote; it was imminent and directly
connected to Lalita’s omission. Finally, the communal living context is significant. In a student
residence, residents share responsibility for communal spaces. The boni mores would likely impose
a duty to warn fellow residents of obvious dangers in shared facilities.
