PVL3701
EXAM
PACK
2025
, lOMoARcPSD|19139637
PVL3703 EXAM PREP
1. Lethabo suffers from insomnia and, when he does sleep, he often sleepwalks. His doctor
has prescribed him medication to control this condition. Lethabo goes on a camping trip
with his friends and as a precautionary measure keeps a knife under his pillow while
sleeping. One evening while sleepwalking, he thinks he is being attacked by a robber
and stabs one of his friends, Mandla. There was no robber and Mandla was trying to
assist Lethabo to get back to his bed. It transpired that Lethabo 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 Lethabo.
Discuss with reference to relevant authority whether Lethabo indeed acted for the purposes of
the law of delict.
Conduct is defined as a voluntary, human act or omission. “Voluntary” means that the bodily
movements must be susceptible to control of the will. The person’s conduct will be regarded as
involuntary with no intent to commit the act. This is referred to as the defence of automatism, which
excludes voluntariness.
Factors that can induce a state of automatism include sleep, as recognised in R v Schoonwinkel
1953 (3) SA 136 (C). However, a person cannot rely on automatism if he or she intentionally or
negligently placed themselves in such a state this is known as actio libera in causa. In this case,
Tumelo failed to take the medication prescribed for his insomnia and sleepwalking, thereby
negligently placing himself in a condition where he might act involuntarily.
Therefore, although Tumelo may have been sleepwalking at the time of the incident, his failure to
take his medication means his conduct is regarded as voluntary for the purposes of delict, and he
will be held liable for the harm caused to Mandla.
2. Would your answer to question 1.1 above differ if Lethabo had not suffered from
insomnia before and this was the first time that he was found sleepwalking?
If Lethabo had not suffered from insomnia before and this was the first time he was found
sleepwalking, it may impact the determination of whether he acted for the purposes of the law of
delict. The fact that this was the first instance of Lethabo sleepwalking could be seen as a sudden,
unforeseeable event that Lethabo had no prior knowledge or control over. In such a case, it may
be more difficult to argue that Lethabo had the necessary intent and control over his actions to be
held liable in delict. It can be argued that Lethabo's actions were not intentional but rather a result
of his sleepwalking, which he had no prior experience or knowledge of.
Therefore, although Lethabo did not have prior experience with sleepwalking, if it can be argued
that a reasonable person in his position should have foreseen the potential risks and taken steps
to prevent harm to others (such as taking his prescribed medication), then it may still be possible
for Mandla to institute a delictual action against Lethabo. Ultimately, the determination will depend
on the specific facts and evidence presented in the case.
3. There has been much debate about the traditional test for determining wrongfulness and
the new test for determining wrongfulness.
Critically discuss this statement and refer to relevant authority. (25)
In South Africa, the traditional test for determining wrongfulness is known as the objective test, while
the new test is referred to as the reasonable person test. This debate revolves around the standard that
should be applied when assessing whether a defendant's conduct is wrongful or negligent. The
traditional objective test focuses on the reasonable person's behavior in similar circumstances. This
test asks whether a reasonable person, with ordinary prudence, would have acted in the same way as
the defendant.
, lOMoARcPSD|19139637
Essentially, it assesses the defendant's conduct against an objective standard, considering the average
behaviour expected from a reasonable person in the same situation. This test does not consider the
individual characteristics of the defendant.
On the other hand, the new reasonable person test considers the subjective characteristics of the
defendant alongside the objective standard. It takes into account the defendant's personal
circumstances, knowledge or expertise to determine whether a reasonable person with those
characteristics would have acted the same way. This test recognizes that people may have different
capacities, skills, or knowledge and should be assessed accordingly. The debate surrounding these two
tests is mainly centred around the balance between objectivity and subjectivity. Proponents of the
traditional objective test argue that it provides uniformity and predictability in the law, as it applies the
same standard to everyone. It does not require courts to consider individual circumstances, which can
lead to unjust outcomes. Additionally, this test locates fault only in the defendant's actions and not in
their personal characteristics, making it easier to establish liability.
However, critics argue that the traditional objective test does not adequately account for the realities of
human behaviour. They argue that the reasonable person is not an abstraction, but rather an individual
with specific abilities, knowledge, and experiences. The reasonable person test is seen as more fitting
in a diverse and multicultural society like South Africa, as it considers the different circumstances in
which people find themselves.
In South African law, the subjective element in determining wrongfulness was first recognized in the
landmark case of Kruger v. Coetzee (1966), where the court held that the reasonable man's conduct
should be measured against the standard of someone with the same characteristics as the defendant.
Subsequent cases such as Carmichele v. Minister of Safety and Security (2001) and MEC Health,
Gauteng v. DZ (2001) further established the importance of considering individual characteristics when
assessing wrongfulness.
In conclusion, the debate between the traditional objective test and the new reasonable person test
revolves around the balance between objectivity and subjectivity in determining wrongfulness. South
African law has recognized the importance of considering individual characteristics in assessing
conduct, leading to the adoption of the reasonable person test. This allows for a more nuanced analysis
that takes into account the realities of individual circumstances.
4. Nomsa, while playing a game of netball, was struck on the head by the ball. As a result
of this, Nomsa sustained a serious head injury. It transpired that her fellow player Kefilwe
had attempted to shoot the ball into the goal ring but missed. The ball subsequently
struck Nomsa’s head. Nomsa would like to institute a delictual action against Kefilwe for
the head injury she sustained.
Discuss with reference to authority, which ground of justification Kefilwe may rely on as well as
the likelihood of it succeeding. (Take care not to write about the topic of Question 4.1 here.) (15)
In a delictual action, Nomsa must prove that Kefilwe acted wrongfully and intentionally or negligently,
causing Nomsa’s harm. However, Kefilwe can refute these claims by asserting a ground of justification.
One possible defense for Kefilwe could be volenti non fit injuria - a person who willingly undertakes
risky behavior cannot later complain about being hurt. In the realm of sports, this concept is often applied
to absolve participants from liability for injuries that occur during the course of the game. Since netball
is a physical sport and involves the inherent risk of being struck by the ball, Kefilwe might assert that
Nomsa implicitly consented to such risk by deciding to play the game.
However, the success of this defense depends on several factors. First, Kefilwe must prove that Nomsa
fully understood the risks involved. Second, whether an injury is characteristic of the game will be
considered. Typically, courts are less likely to apply this defense where the injury occurs outside the
usual course of play.
Moreover, this defense might fail if Nomsa proves that Kefilwe breached a duty of care she owed to
Nomsa. For instance, if Kefilwe violated some safety rule of netball or played in an overly aggressive or
reckless manner (i.e., outside the bounds of what is normally expected or accepted in the sport), she
might still be held liable. The court will scrutinize Kefilwe's conduct based on the standard of care
expected from a reasonable person in similar circumstances including the expertise and skills of a
netball player. In terms of authority, there is case law that supports the defence of voluntary assumption
of risk in sports-related injuries. For instance, in the South African case of Stellenbosch Farmers' Winery
, lOMoARcPSD|19139637
Group Ltd v Martell et Cie SA, the court held that participants in sports assume certain risks inherent in
the activity and cannot hold fellow participants liable for injuries resulting from those risks.
In the given facts, the defence of volenti non fit iniuria as a ground of justification will probably succeed
as Kefilwe can state that Nomsa consented to the risk of injury and the injured person (Nomsa) will not
be able to hold the defendant (Kefilwe) delictually liable, because Nomsa has consented to risk of such
harm.
5. Greg regularly invited Bert to his ostrich farm in the Karoo. Greg warned Bert to be
cautious around the ostriches and not to startle them. Bert informed Greg that he knew
how to deal with ‘these birds’ and that he always interacted with one ostrich, known as
Daisy, during his visits. Bert always teased and taunted Daisy for self-amusement.
During his last visit, Bert picked up a stone and threw it in the direction of Daisy. Daisy
began to chase Bert. Bert then ran towards the house and tripped and fell, injuring his
leg. Bert was hospitalised due to the injury and unable to return to work for a month.
Bert would like to institute a delictual action against Greg based upon Greg’s alleged
negligent conduct of keeping wild animals in a place that the public can have access to.
5.1 Assume for the purpose of answering this question (5) that Bert can prove that Greg’s
conduct was wrongful and negligent. Under these circumstances, what defence may Greg
rely upon and what will the effect of a successful reliance on the defence be? Discuss in
detail with reference to case law and legislation. (Take care not to write about the topic of
Question 3 here.) (20)
To defend against this claim, Greg may rely on the defence of culpable conduct on the part of the
prejudiced person, specifically provocation. If Greg can prove that Bert's conduct was negligent and
contributed to his own injury, it may reduce or even eliminate Greg's liability for the harm suffered by
Bert.
Provocation is a defence that may be used when the plaintiff's own actions have contributed to or
caused the harm they suffered. In this case, Greg could argue that Bert's teasing and taunting of the
ostrich, Daisy, constitutes provocation. By provoking Daisy, Bert may have caused the ostrich to chase
him, leading to his subsequent injury. In the scenario described, Greg could argue that Bert's teasing
and taunting of Daisy constituted provocative conduct on his part. This could be seen as a deliberate
act designed to provoke a reaction from the ostrich, rather than a reasonable and cautious behaviour
around the animals. If Greg can prove that Bert's provocative conduct directly led to Daisy's aggressive
behaviour and Bert's subsequent injury, it may strengthen his argument of contributory negligence.
In the case of Hedges v. N.O.L. Ltd, a similar defence of contributory negligence was successfully relied
upon by the defendant. In this case, the plaintiff was bitten by a lion while sticking his hand through a
cage at a safari park. The court held that the plaintiff's own act of sticking his hand into the lion's cage
constituted contributory negligence and reduced the damages awarded.
Additionally, the Animal Matters Amendment Act of 1993, in South Africa, makes provision for liability
relating to harmful behaviour by animals. According to section 19(1), a person who was injured or
suffered damage because of the behaviour of an animal may only claim compensation if the behaviour
of the animal resulted from the fault of the owner, the fault of a person for whose actions the owner is
liable, or if the behaviour constitutes a deliberate act by the owner or person responsible for the animal.
Therefore, if Greg can prove that Bert's conduct was provocative and that it directly contributed to his
own injury, he may rely on the defence of contributory negligence, which could result in a reduction or
elimination of his liability for the harm suffered by Bert.
5.2. Now assume for the purpose of answering this question (4.2) that Bert cannot prove that
Greg’s conduct was wrongful and negligent. Under these circumstances, what remedy
would Bert have against Greg and how likely is he to succeed with this remedy? Discuss
with reference to case law. (5)
If Bert cannot prove that Greg's conduct was wrongful and negligent, he may not have a remedy against
Greg. To succeed in a delictual action, Bert would need to establish that Greg owed him a duty of care,
breached that duty, and as a result, Bert suffered harm. If Bert cannot prove negligence on the part of
Greg, he may not be able to establish a cause of action. Bert could potentially explore other avenues
of legal recourse, such as reporting Greg's conduct to the appropriate regulatory authorities if there are
EXAM
PACK
2025
, lOMoARcPSD|19139637
PVL3703 EXAM PREP
1. Lethabo suffers from insomnia and, when he does sleep, he often sleepwalks. His doctor
has prescribed him medication to control this condition. Lethabo goes on a camping trip
with his friends and as a precautionary measure keeps a knife under his pillow while
sleeping. One evening while sleepwalking, he thinks he is being attacked by a robber
and stabs one of his friends, Mandla. There was no robber and Mandla was trying to
assist Lethabo to get back to his bed. It transpired that Lethabo 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 Lethabo.
Discuss with reference to relevant authority whether Lethabo indeed acted for the purposes of
the law of delict.
Conduct is defined as a voluntary, human act or omission. “Voluntary” means that the bodily
movements must be susceptible to control of the will. The person’s conduct will be regarded as
involuntary with no intent to commit the act. This is referred to as the defence of automatism, which
excludes voluntariness.
Factors that can induce a state of automatism include sleep, as recognised in R v Schoonwinkel
1953 (3) SA 136 (C). However, a person cannot rely on automatism if he or she intentionally or
negligently placed themselves in such a state this is known as actio libera in causa. In this case,
Tumelo failed to take the medication prescribed for his insomnia and sleepwalking, thereby
negligently placing himself in a condition where he might act involuntarily.
Therefore, although Tumelo may have been sleepwalking at the time of the incident, his failure to
take his medication means his conduct is regarded as voluntary for the purposes of delict, and he
will be held liable for the harm caused to Mandla.
2. Would your answer to question 1.1 above differ if Lethabo had not suffered from
insomnia before and this was the first time that he was found sleepwalking?
If Lethabo had not suffered from insomnia before and this was the first time he was found
sleepwalking, it may impact the determination of whether he acted for the purposes of the law of
delict. The fact that this was the first instance of Lethabo sleepwalking could be seen as a sudden,
unforeseeable event that Lethabo had no prior knowledge or control over. In such a case, it may
be more difficult to argue that Lethabo had the necessary intent and control over his actions to be
held liable in delict. It can be argued that Lethabo's actions were not intentional but rather a result
of his sleepwalking, which he had no prior experience or knowledge of.
Therefore, although Lethabo did not have prior experience with sleepwalking, if it can be argued
that a reasonable person in his position should have foreseen the potential risks and taken steps
to prevent harm to others (such as taking his prescribed medication), then it may still be possible
for Mandla to institute a delictual action against Lethabo. Ultimately, the determination will depend
on the specific facts and evidence presented in the case.
3. There has been much debate about the traditional test for determining wrongfulness and
the new test for determining wrongfulness.
Critically discuss this statement and refer to relevant authority. (25)
In South Africa, the traditional test for determining wrongfulness is known as the objective test, while
the new test is referred to as the reasonable person test. This debate revolves around the standard that
should be applied when assessing whether a defendant's conduct is wrongful or negligent. The
traditional objective test focuses on the reasonable person's behavior in similar circumstances. This
test asks whether a reasonable person, with ordinary prudence, would have acted in the same way as
the defendant.
, lOMoARcPSD|19139637
Essentially, it assesses the defendant's conduct against an objective standard, considering the average
behaviour expected from a reasonable person in the same situation. This test does not consider the
individual characteristics of the defendant.
On the other hand, the new reasonable person test considers the subjective characteristics of the
defendant alongside the objective standard. It takes into account the defendant's personal
circumstances, knowledge or expertise to determine whether a reasonable person with those
characteristics would have acted the same way. This test recognizes that people may have different
capacities, skills, or knowledge and should be assessed accordingly. The debate surrounding these two
tests is mainly centred around the balance between objectivity and subjectivity. Proponents of the
traditional objective test argue that it provides uniformity and predictability in the law, as it applies the
same standard to everyone. It does not require courts to consider individual circumstances, which can
lead to unjust outcomes. Additionally, this test locates fault only in the defendant's actions and not in
their personal characteristics, making it easier to establish liability.
However, critics argue that the traditional objective test does not adequately account for the realities of
human behaviour. They argue that the reasonable person is not an abstraction, but rather an individual
with specific abilities, knowledge, and experiences. The reasonable person test is seen as more fitting
in a diverse and multicultural society like South Africa, as it considers the different circumstances in
which people find themselves.
In South African law, the subjective element in determining wrongfulness was first recognized in the
landmark case of Kruger v. Coetzee (1966), where the court held that the reasonable man's conduct
should be measured against the standard of someone with the same characteristics as the defendant.
Subsequent cases such as Carmichele v. Minister of Safety and Security (2001) and MEC Health,
Gauteng v. DZ (2001) further established the importance of considering individual characteristics when
assessing wrongfulness.
In conclusion, the debate between the traditional objective test and the new reasonable person test
revolves around the balance between objectivity and subjectivity in determining wrongfulness. South
African law has recognized the importance of considering individual characteristics in assessing
conduct, leading to the adoption of the reasonable person test. This allows for a more nuanced analysis
that takes into account the realities of individual circumstances.
4. Nomsa, while playing a game of netball, was struck on the head by the ball. As a result
of this, Nomsa sustained a serious head injury. It transpired that her fellow player Kefilwe
had attempted to shoot the ball into the goal ring but missed. The ball subsequently
struck Nomsa’s head. Nomsa would like to institute a delictual action against Kefilwe for
the head injury she sustained.
Discuss with reference to authority, which ground of justification Kefilwe may rely on as well as
the likelihood of it succeeding. (Take care not to write about the topic of Question 4.1 here.) (15)
In a delictual action, Nomsa must prove that Kefilwe acted wrongfully and intentionally or negligently,
causing Nomsa’s harm. However, Kefilwe can refute these claims by asserting a ground of justification.
One possible defense for Kefilwe could be volenti non fit injuria - a person who willingly undertakes
risky behavior cannot later complain about being hurt. In the realm of sports, this concept is often applied
to absolve participants from liability for injuries that occur during the course of the game. Since netball
is a physical sport and involves the inherent risk of being struck by the ball, Kefilwe might assert that
Nomsa implicitly consented to such risk by deciding to play the game.
However, the success of this defense depends on several factors. First, Kefilwe must prove that Nomsa
fully understood the risks involved. Second, whether an injury is characteristic of the game will be
considered. Typically, courts are less likely to apply this defense where the injury occurs outside the
usual course of play.
Moreover, this defense might fail if Nomsa proves that Kefilwe breached a duty of care she owed to
Nomsa. For instance, if Kefilwe violated some safety rule of netball or played in an overly aggressive or
reckless manner (i.e., outside the bounds of what is normally expected or accepted in the sport), she
might still be held liable. The court will scrutinize Kefilwe's conduct based on the standard of care
expected from a reasonable person in similar circumstances including the expertise and skills of a
netball player. In terms of authority, there is case law that supports the defence of voluntary assumption
of risk in sports-related injuries. For instance, in the South African case of Stellenbosch Farmers' Winery
, lOMoARcPSD|19139637
Group Ltd v Martell et Cie SA, the court held that participants in sports assume certain risks inherent in
the activity and cannot hold fellow participants liable for injuries resulting from those risks.
In the given facts, the defence of volenti non fit iniuria as a ground of justification will probably succeed
as Kefilwe can state that Nomsa consented to the risk of injury and the injured person (Nomsa) will not
be able to hold the defendant (Kefilwe) delictually liable, because Nomsa has consented to risk of such
harm.
5. Greg regularly invited Bert to his ostrich farm in the Karoo. Greg warned Bert to be
cautious around the ostriches and not to startle them. Bert informed Greg that he knew
how to deal with ‘these birds’ and that he always interacted with one ostrich, known as
Daisy, during his visits. Bert always teased and taunted Daisy for self-amusement.
During his last visit, Bert picked up a stone and threw it in the direction of Daisy. Daisy
began to chase Bert. Bert then ran towards the house and tripped and fell, injuring his
leg. Bert was hospitalised due to the injury and unable to return to work for a month.
Bert would like to institute a delictual action against Greg based upon Greg’s alleged
negligent conduct of keeping wild animals in a place that the public can have access to.
5.1 Assume for the purpose of answering this question (5) that Bert can prove that Greg’s
conduct was wrongful and negligent. Under these circumstances, what defence may Greg
rely upon and what will the effect of a successful reliance on the defence be? Discuss in
detail with reference to case law and legislation. (Take care not to write about the topic of
Question 3 here.) (20)
To defend against this claim, Greg may rely on the defence of culpable conduct on the part of the
prejudiced person, specifically provocation. If Greg can prove that Bert's conduct was negligent and
contributed to his own injury, it may reduce or even eliminate Greg's liability for the harm suffered by
Bert.
Provocation is a defence that may be used when the plaintiff's own actions have contributed to or
caused the harm they suffered. In this case, Greg could argue that Bert's teasing and taunting of the
ostrich, Daisy, constitutes provocation. By provoking Daisy, Bert may have caused the ostrich to chase
him, leading to his subsequent injury. In the scenario described, Greg could argue that Bert's teasing
and taunting of Daisy constituted provocative conduct on his part. This could be seen as a deliberate
act designed to provoke a reaction from the ostrich, rather than a reasonable and cautious behaviour
around the animals. If Greg can prove that Bert's provocative conduct directly led to Daisy's aggressive
behaviour and Bert's subsequent injury, it may strengthen his argument of contributory negligence.
In the case of Hedges v. N.O.L. Ltd, a similar defence of contributory negligence was successfully relied
upon by the defendant. In this case, the plaintiff was bitten by a lion while sticking his hand through a
cage at a safari park. The court held that the plaintiff's own act of sticking his hand into the lion's cage
constituted contributory negligence and reduced the damages awarded.
Additionally, the Animal Matters Amendment Act of 1993, in South Africa, makes provision for liability
relating to harmful behaviour by animals. According to section 19(1), a person who was injured or
suffered damage because of the behaviour of an animal may only claim compensation if the behaviour
of the animal resulted from the fault of the owner, the fault of a person for whose actions the owner is
liable, or if the behaviour constitutes a deliberate act by the owner or person responsible for the animal.
Therefore, if Greg can prove that Bert's conduct was provocative and that it directly contributed to his
own injury, he may rely on the defence of contributory negligence, which could result in a reduction or
elimination of his liability for the harm suffered by Bert.
5.2. Now assume for the purpose of answering this question (4.2) that Bert cannot prove that
Greg’s conduct was wrongful and negligent. Under these circumstances, what remedy
would Bert have against Greg and how likely is he to succeed with this remedy? Discuss
with reference to case law. (5)
If Bert cannot prove that Greg's conduct was wrongful and negligent, he may not have a remedy against
Greg. To succeed in a delictual action, Bert would need to establish that Greg owed him a duty of care,
breached that duty, and as a result, Bert suffered harm. If Bert cannot prove negligence on the part of
Greg, he may not be able to establish a cause of action. Bert could potentially explore other avenues
of legal recourse, such as reporting Greg's conduct to the appropriate regulatory authorities if there are
