, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
1. Read the fictitious scenario below and then discuss whether Ricky’s behaviour constitutes
conduct for the purposes of delict.
Did Ricky's Behaviour Constitute Conduct for the Purposes of Delict?
The determination of whether a person's behaviour constitutes conduct for the purposes of delictual
liability is a foundational inquiry in South African law. Conduct is defined as a voluntary human act
or omission that is susceptible to control by the will of the person involved.¹
The Nature of Conduct in Delict
The first element of delictual liability requires that there must be some form of human conduct.²
Conduct may be defined as a voluntary human act or omission.³ This definition establishes three
essential characteristics:
(i) it must be a human act;
(ii) it must be voluntary; and
(iii) it may take the form of either a positive act (commissio) or an omission (omissio).⁴
Voluntariness Requirement
Voluntariness is a critical element of conduct. The law requires that the bodily movements must be
susceptible to control by the will of the person involved.⁵ This does not mean that a person must
have willed or desired the consequences of their conduct. If a person forgets to warn others that an
electric current has been switched on and someone is electrocuted as a result, the omission is still
voluntary because the person was, in principle, able to give the warning.⁶
In Ricky's case, he was conscious, alert, and in full control of his faculties when he left the
construction site. His decision not to secure the scaffolding was a conscious choice—he "assumed"
the workers on the next shift would complete the installation. His behaviour was therefore clearly
voluntary, and no defence of automatism could arise. As discussed in Molefe v Mahaeng, the onus is
on the plaintiff to prove a voluntary and negligent act on the part of the defendant, but here the
voluntariness of Ricky's decision not to act is readily apparent.⁷
Analysis of Ricky's Conduct: Commission or Omission?
Ricky contends that his failure to act (omission) should not be considered as conduct for delictual
liability. This argument requires careful analysis of the distinction between commissions and
omissions in South African delict law.
The Distinction Between Commissions and Omissions
The law distinguishes between a positive act (commission) and a failure to act (omission).⁸ This
distinction has fundamental importance because liability for an omission is generally more restricted
than liability for a positive act.⁹ For policy considerations, the law is hesitant to find that there was a
legal duty on someone to act positively to prevent damage to another.¹⁰
¹ PVL3703 Study Guide, p. 16.
² PVL3703 Study Guide, p. 16.
³ J Neethling & Potgieter, Law of Delict (8th edn, 2020) 27.
⁴ PVL3703 Study Guide, pp. 16-17.
⁵ PVL3703 Study Guide, p. 16.
⁶ PVL3703 Study Guide, p. 16.
⁷ Molefe v Mahaeng 1999 (1) SA 562 (SCA).
⁸ J Neethling & Potgieter, Law of Delict (8th edn, 2020) 32-33.
⁹ PVL3703 Study Guide, p. 17.
¹⁰ J Neethling & Potgieter, Law of Delict (8th edn, 2020) 32.
1. Read the fictitious scenario below and then discuss whether Ricky’s behaviour constitutes
conduct for the purposes of delict.
Did Ricky's Behaviour Constitute Conduct for the Purposes of Delict?
The determination of whether a person's behaviour constitutes conduct for the purposes of delictual
liability is a foundational inquiry in South African law. Conduct is defined as a voluntary human act
or omission that is susceptible to control by the will of the person involved.¹
The Nature of Conduct in Delict
The first element of delictual liability requires that there must be some form of human conduct.²
Conduct may be defined as a voluntary human act or omission.³ This definition establishes three
essential characteristics:
(i) it must be a human act;
(ii) it must be voluntary; and
(iii) it may take the form of either a positive act (commissio) or an omission (omissio).⁴
Voluntariness Requirement
Voluntariness is a critical element of conduct. The law requires that the bodily movements must be
susceptible to control by the will of the person involved.⁵ This does not mean that a person must
have willed or desired the consequences of their conduct. If a person forgets to warn others that an
electric current has been switched on and someone is electrocuted as a result, the omission is still
voluntary because the person was, in principle, able to give the warning.⁶
In Ricky's case, he was conscious, alert, and in full control of his faculties when he left the
construction site. His decision not to secure the scaffolding was a conscious choice—he "assumed"
the workers on the next shift would complete the installation. His behaviour was therefore clearly
voluntary, and no defence of automatism could arise. As discussed in Molefe v Mahaeng, the onus is
on the plaintiff to prove a voluntary and negligent act on the part of the defendant, but here the
voluntariness of Ricky's decision not to act is readily apparent.⁷
Analysis of Ricky's Conduct: Commission or Omission?
Ricky contends that his failure to act (omission) should not be considered as conduct for delictual
liability. This argument requires careful analysis of the distinction between commissions and
omissions in South African delict law.
The Distinction Between Commissions and Omissions
The law distinguishes between a positive act (commission) and a failure to act (omission).⁸ This
distinction has fundamental importance because liability for an omission is generally more restricted
than liability for a positive act.⁹ For policy considerations, the law is hesitant to find that there was a
legal duty on someone to act positively to prevent damage to another.¹⁰
¹ PVL3703 Study Guide, p. 16.
² PVL3703 Study Guide, p. 16.
³ J Neethling & Potgieter, Law of Delict (8th edn, 2020) 27.
⁴ PVL3703 Study Guide, pp. 16-17.
⁵ PVL3703 Study Guide, p. 16.
⁶ PVL3703 Study Guide, p. 16.
⁷ Molefe v Mahaeng 1999 (1) SA 562 (SCA).
⁸ J Neethling & Potgieter, Law of Delict (8th edn, 2020) 32-33.
⁹ PVL3703 Study Guide, p. 17.
¹⁰ J Neethling & Potgieter, Law of Delict (8th edn, 2020) 32.
