PVL3703-cases 2

Carmichael v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC) [2]
Molefe v Mahaeng 1999 (1) SA 562 (SCA) [3]

Universiteit van Pretoria v Tommie Meyer Films 1977 (4) SA 376 (T) [5,6,7]
Doctrine of subjective rights
Subject-object relationship: right to a thing
Subject-subject relationship: others have a duty not to infringe rights
Minister van Polisie v Ewels 1975 (3) SA 590 (A) [8]

Prior conduct as requirement for liability for omission
Prior conduct or control of a dangerous object may be a factor from which a conclusion of wrongfulness
may be drawn, but it is not an essential prerequisite for wrongfulness. An omission is seen as wrongful
conduct when the circumstances of the case are such that the omission does not oly elicit moral
indignation but the legal convictions of the community also require the omission to be regarded as
wrongful, and the resulting harm to be compensated by the person who omitted to act in a positive
manner. Duty of the policeman to prevent assault on the plaintiff.
Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicuscuriae) 2003 (1) SA
389 (SCA) [8]
Wrongfulness as a breach of legal duty.
Test for determining wrongfulness of an omission:
An omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm suffered
by the plaintiff. Legal duty exists if it is reasonable to expect of the dendeant to have taken positive
measures to prevent harm.
Ex parte Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488 (A) [9]
Private defence
Question: Whether a person may protect his property in defence by killing attacker.
Normally the law values life more highly than property.
Van Wyk set up a gun in his shop to protect property. Shot and killed burglar. Van Wyk succeeded with
defence. Van Wyk tried all other options before setting the trap-gun. Court found that it could not
reasonably expect him to sleep in his shop to protect property.
S v Goliath 1972 (3) SA 1 (A) [10]

Necessity (grounds of justification)
X under compulsion from Y and fearing for his own life, helped Y to kill Z. Court recognised the communities
conviction that the ordinary human being does not consider the life of another person to be more
important than his own.
Kruger v Coetzee 1966 (2) SA 428 (A) [16]

Jones v Santam Bpk 1965 (2) SA 542 (A) [16]
Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) [16
Union National South British Ins Co Ltd v Vitoria 1982 (1) SA 444 (A) [19]
General Accident Versekeringsmaatskappy v Uijs NO 1993 (4) SA 228 (A) [19]

Contributory fault
The extent of a plaintiff’s fault is merely one of a number of factors which the court may take into
account in order to reduce the plaintiff’s damages in a just and equitable manner.
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd 1997 (2) SA 591(W) [20]
Contributory fault
Held that a defence of contributory intention could succeed where both the plaintiff and the defendant
acted with intent.
T = employee of Soweto City Council. T steals cheques drawn i.f.o. his employer. Defendant raises
contributory negligence on the strength of the fraud of T, who was an employee of City Council. Found i.f.o.
plaintiff but ordered a 50% reduction of damages on account of contributory negligence.
S v Mokgethi 1990 (1) SA 32 (A) [22, 24]

Flexible approach to legal causation
There is no single and general criterion for legal causation which is applicable in all instances. A flexible
approach is accordingly suggested. The basic question is whether there is a close enough relationship
between the wrongdoer’s conduct and its consequence, for such consequence to be imputed to the
wrongdoer in view of policy considerations based on reasonableness, fairness and justice. The existing
criteria for legal causation such a direct consequences and reasonable foreseeability may play a subsidiary
role in determining legal causation within the framework of this elastic approach.
Facts: Bank teller shot during robbery. Did not die immediately but only six months later. Paraplegic as a
result of shot. Resumed his work at the bank. Later re-admitted to hospital suffering from serious pressure
sores which developed because he had failed to change his position in the wheelchair frequently. The
Appellate Division held that the wounding of the deceased could not be regarded as the legal cause of the
deceased death for the purpose of a charge of murder.
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) [22]
Causation – condictio sine qua non
In order to apply this test, one must make a hypothetical inquiry as to what probably would have happened
but for the wrongful conduct of the defendant. This inquiry may involve the mental elimination of the
wrongful conduct and the substitution of a hypothetical cause of lawful conduct and the posing of the
question as to whether upon such a hypothesis, plaintiff’s loss would have ensued or not. If it would in any
event have ensued, then the wrongful conduct was not a cause of the plaintiff’s loss. If the wrongful act is
shown in this way not to be a causa sine qua non of the loss suffered, then no legal liability can arise.
Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) [29]
Barnard v Santambank 1999 (1) SA 202 (SCA) [29]
National Media Ltd v Bogoshi 1988 (4) SA 1196 (SCA) [30]
Kruger v Coetzee
Test for negligence
For the purpose of liability culpa arises if:
a) A diligens paterfamilias in the position of the defendant
(i) Would foresee the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and
(ii) Would take reasonable steps to guard against such occurrence; and
b) The defendant failed to take such steps
Jones v Santam
Test for negligence
A person is guilty of culpa if his conduct falls short of the standard of the diligens paterfamilias – a standard
that is always objective and which varies only in regard to the exigencies arising in any particular
circumstances. It is a standard which is the same for everybody under the same circumstances.
New approach to negligence i.r.o. children:

1) Reasonable person test, not reasonable child
2) Accountable? If child did not meet reasonable person requirements, was he accountable?
Prior to the decision in Jones the AD accepted that once the plaintiff’s degree of negligence had been
established, it was unnecessary to inquire into the extent to which the defendant’s conduct had deviated
from the standard of the reasonable. If the court had established that the plaintiff had been 40% negligent
it was thought to follow automatically that the defendant was 60% negligent. Jones introduced new
approach.
In order to establish the respective degrees of negligence, the carefulness of the conduct of each party
must be measured separately against the standard of reasonable person.
Example: plaintiff’s conduct deviates 70% from the reasonable person norm and the defendant’s conduct
deviates 80%. Ratio between the plaintiff and defendant’s degree of fault is 70:80 (7:8 (15)). The plaintiff ‘s
degree of fault is thus 7/15 x 100 = 46.7% and the defendant’s 8/15 x 100 = 53.3%. The plaintiff thus
receives compensation for only 53.3% of the damages he has suffered.
Weber v Santam Versekering

Reasonable person – characteristics
The court is not concerned with what reasonable person types would have been, such as a reasonable
educated person, a reasonable illiterate person, a reasonable skilled person, a reasonable unskilled person,
a reasonable adult or a reasonable child. There is only one abstract objective criterion, and that is the
Court’s judgment of what is reasonable, because the Court places itself in the position of the diligens
paterfamilias.
Confirmed the new approach in the Jones case
Union National Sout British Ins Co v Vitoria

Contributory negligence
Failure to wear a seatbelt constitutes contributory negligence.
Contributory negligence of the plaintiff is only relevant insofar as it has led to an increase in the damage.

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Carmichael v Minister of Safety and Security (Centre for Applied Legal Studies

Intervening) 2001 (4) SA 938 (CC) [2]

Molefe v Mahaeng 1999 (1) SA 562 (SCA) [3]

Minister van Polisie v Ewels 1975 (3) SA 590 (A) [8]

S v Goliath 1972 (3) SA 1 (A) [10]

Kruger v Coetzee 1966 (2) SA 428 (A) [16]

General Accident Versekeringsmaatskappy v Uijs NO 1993 (4) SA 228 (A) [19]

S v Mokgethi 1990 (1) SA 32 (A) [22, 24]

New approach to negligence i.r.o. children:

Weber v Santam Versekering

Confirmed the new approach in the Jones case

Union National Sout British Ins Co v Vitoria

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