Law of Delict Notes Summary 2

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PART 3 : WRONGFULNESS

 Neethling, Potgieter, Visser: Law of Delict, p 31 – 108

 Corronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D)
 Minister van Polisie v Ewels 1975 (3) SA 590 (A)
 Municipality of Cape Town v Bakkerud 2000 (3) SA 1049 (SCA)
 Carmichele v Min of Safety and Security 2001 (1) SA 489 (SCA)
 Carmichele v Min of Safety and Security 2001 (4) SA 938 (CC)
 Carmichele v Min of Safety and Security 2003 (2) SA 656 (C)
 Min of Safety and Security v Carmichele 2004 (3) SA 305 (SCA)
 Minister of Safety & Security v Hamilton 2004 (2) SA 216 (SCA)
 Moses v Minister of Safety & Security 2000 (3) SA 106 (C)
 S v Goliath 1972 (3) SA 1 (A)
 Kgaleng v Min of Safety and Security and Another 2001 (4) SA 854 (W)
 Lampert v Hefer NO 1955 (2) SA 507 (A)
 Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T)
 Santam v Vorster 1973 (4) SA 764 (A)


1. INTRODUCTION

- wrongfulness is required for delict – act which causes harm is in itself not enough – must
also be wrongful

- wrongfulness?  legally reprehensible / unreasonable / unlawful

- determination  dual investigation:

 whether legally recognized  whether such infringement
individual interest has in occurred in legally unreasonable
fact been infringed manner


- act will be delictually wrongful only when it has as its consequence the factual
infringement of an individual interest
 only when an act leads to the factual infringement of an interest can it be seen as
wrongful
 eg: ✎

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2. BONI MORES AS BASIC TEST FOR WRONGFULNESS

- B/M  general test used in determining whether act is unlawful

- objective test based on criterion of reasonableness
 conduct is wrongful if it is unreasonable  i.o.w. when, in light of all circumstances,
defendant is expected to behave in a manner which will not harm plaintiff
 “Reasonableness, on which the legal convictions of the community were based,
was now to be found in the Constitution and not in some vague notion of public
sentiment or opinion” (Carmichele v Min of Safety and Security 2001 (4) SA 938
(CC)

- basic Q: whether, according to the legal convictions of community, defendant infringed
the interests of plaintiff in a reasonable or an unreasonable manner?
 Coronation Brick v Strachan Construction 1982 4 SA 371 (D): “[I]n any given
situation the question is asked whether the defendant’s conduct was reasonable
according to the legal convictions or feeling of the community.”

- Balancing of interests:

 to determine whether conduct is reasonable or unreasonable, courts must ex post
facto consider and balance the particular conflicting interests of the parties
 those interests which defendant actually promoted by his act and those which he
actually infringed
 Carmichele v Min of Safety and Security 2001 (4) SA 938 (CC): this balancing of
interests must be “carried out in accordance with the spirit, purport and objects of the
Bill of Rights, and the relevant factors weighed in the context of a constitutional State
founded on dignity, equality and freedom.” – par [43]

- Factors influencing balancing process:
 various factors may play a role – including:
 nature and extent of harm
 possible value to defendant or society of harmful conduct
 costs and effort of steps which could have been taken to prevent the loss
 degree of probability of success of preventative measures
 nature of relationship between parties
 motive of defendant
 economic considerations
 legal position in other countries
 ethical and moral issues
 values underlying the Bill of Rights
 other considerations of public interest


- when applying B/M test in law of delict, we are concerned with whether the community
regards particular conduct as delictually wrongful
 not what the community regards as socially, morally, ethically or religiously wrong

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- we are also only concerned with infringement of individual interests
 question of whether community regards conduct as criminal, where public interest is
paramount, does not apply

- B/M test is an objective test:
 task of judge is:

 to define and interpret the legal convictions of the community
 by looking at legal rules and principles and case law
 supplemented by the evidence before him - even those not known when the
harm was suffered

 and to apply this interpretation to the problem concerned
 taking into account the particular circumstances of the case

 subjective factors are normally irrelevant
 such as defendant’s mental disposition, knowledge and motive
 can however play a role in exceptional cases, such as neighbour law, pure
economic loss, omissions

- Application of B/M test:

 although B/M constitute the basic test, it is seldom necessary to make direct use of
this test
 specific legal norms and doctrines have been developed to determine the legal
convictions of the community
 as a general rule wrongfulness is based on either the infringement of rights or a
breach of a legal duty

 in some cases the B/M test is applied as a supplementary test, eg:
 novel cases where there is no clear legal norm involved
 for the purposes of refinement in borderline cases



3. WRONGFULNESS AS INFRINGEMENT OF A RIGHT

3.1. DUAL RELATIONSHIP OF SUBJECTIVE RIGHTS

 Subject – object – relationship:
 between holder of right and object of right
 provides holder with power to use, enjoy and alienate object

 Subject – subject – relationship:
 between holder of right and all other persons
 implies that holder may enforce his powers over object against all other legal subjects
 therefore a duty rests on other legal subjects not to infringe upon the relationship
between holder and object