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LAW OF DELICT B 2012

STUDY GUIDE

LECTURER: ADV LIEZEL NIESING l.niesing@ru.ac.za Room s5

Preface
1 INTRODUCTION

OVERVIEW The Law of Delict is taught in the penultimate year of study in the LLB program and consists of two semester courses: Law of Delict A and Law of Delict B. Together they are designed to provide students with a detailed understanding of the Law of Delict so as to develop and enhance the skills that are necessary for legal practice. In Law of Delict A, the focus is on the general principles of Delict, while in Law of Delict B various specific or special forms of delictual liability are addressed. Thus, Law of Delict B builds on Law of Delict A. The focus in both Law of Delict A and Law of Delict B is on content and, in particular, case law. The Law of Delict does not consist of a static set of rules. It is a dynamic subject which continues to develop; hence the heavy reliance on case law. The course emphasises the understanding of delictual principles (which is broad in nature) and how they are applied in practice. Primary objectives are to develop research, problem-solving, criticalthinking and reasoning skills. CREDIT VALUE 10 Credits (One Semester Credit) ASSUMPTIONS OF PRIOR LEARNING 2 General ability to identify and solve problems Ability to organise and manage own studies Ability to collect, analyse and evaluate information Good communications skills Outcomes

2 1 CRITICAL OUTCOMES Identify and solve problems Organise and manage time and studies Collect, analyse and evaluate information Communicate effectively Recognise problem-solving contexts Application of theoretical knowledge to practical scenarios Think and argue critically

2 2 SPECIFIC OUTCOMES The ability to find appropriate legal principles and authority for propositions, and, in particular, to extract delictual principles from case law

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The ability to identify material issues from factual scenarios, to recognise the relevant legal principles which govern a specific situation and to determine the likely result should the situation be referred to a court The ability to advise and communicate legal issues in writing The ability to organise and manage a voluminous workload (particularly due to heavy reliance on case law) The ability to use public policy and the Constitution to resolve problems in a creative way The confidence to rely primarily on reasoning ability instead of rote-learning when seeking solutions to a problem particularly with regard to application of legal principles to practical scenarios. 3 Teaching Method

Students will be provided with a study guide which contains the course outline, lists of prescribed material according to topics and exercise questions for each lecture and/or topic. The sole object of the exercise questions is to guide students through the prescribed material as they prepare for lectures by focussing on the most important basic principles. These questions are not representative of the type of questions to be expected in the test or examination (see point 6 below). The lectures will follow the structure of the study guide. Students will thus be expected to prepare the topics in advance. Students will thus be assumed to be familiar with the prescribed material and the focus during lectures will mainly be on how the principles of law are applied. Student participation during lectures is encouraged. Students should feel free to ask questions about the work during or after lectures. Questions asked during class will, unfortunately, be managed according to the time-constraints of a 45-minute lecture period in terms of which a certain amount of work must be covered so as to facilitate due completion of the course within the estimated 24 lectures. In lectures before the test and during some of the last lectures of the course, test and exam type questions will be done in order to provide students with a practical understanding of what is expected of them for purposes of the test and exam. These test and exam questions will be made available to students on RUconnected before the due discussion lectures. Students will be expected to have worked out the questions before the discussion lectures in order to promote the benefit of such discussions. The lecturer makes extensive use of the universitys electronic teaching aids. Course documents (study guide and lecture slides) will be available to students on RUconnected. The News Forum in the Delict B course on RUconnected will be used to communicate and confirm any information regarding the course, the test, the assignment and the examination. Once a message has been posted on the News Forum, students enrolled on RUconnected for Delict B will receive the news item per email at their RU e-mail address. Students will notice that some cases as listed in the study guide are relevant to more than one topic. The repetition is deliberate in order to illustrate how the different elements in the law of delict are consolidated in practice. Students will find that once one is familiar with the nature of judicial reasoning in delict cases, it becomes easier to identify and address issues in a problem-solving context. However, the familiarity can only be obtained
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by reading the cases. The cases have been carefully selected to illustrate how courts, over time, deal with delictual problems and how they address the principles. Students should not feel constrained to follow the views which the lecturer expresses in lectures, or even to follow the views expressed in prescribed texts. In the law of delict there are often no right or wrong answers and there is rarely a single approach to a problem. Argumentation based on the delictual principles is at the core of proving a delict on a balance of probabilities. Students are encouraged to think critically about the law and they are free to experiment with their own arguments on the topics at hand, provided that they can substantiate their arguments with adequate sources or principles of law. 4 Resources

PRESCRIBED TEXTBOOK: Loubser (Ed), Midgley (Ed), Mukheiber, Niesing, Perumal (2010) The Law of Delict in South Africa(Oxford University Press, Cape Town, RSA) OTHER TEXTBOOKS: Neethling, Potgieter and VisserLaw of Delict 5ed (2006) Van der Walt and Midgley Principles of Delict 3ed (2005) CASE LAW, LEGISLATION AND JOURNAL ARTICLES: A list of prescribed reading material is listed according to topic/lecture in the Study Guide that is provided to students in hard copy. TAKE NOTE: Important new cases and journal articles which appear during the course of the semester may be added to the prescribed reading list. Information regarding such new material will be communicated to students during lectures and on the RUconnected course site for Delict A. 5 Lecture attendance

There will be two lectures of 45 minutes each per week. LECTURE VENUE LECTURE TIMES MLT Education Building Mondays 09.35 10.20 Fridays 09.35 10.20

Attendance of lectures is compulsory. The Law Faculty regards attendance at lectures as an inherent part of the course. Therefore, a class register will be circulated during these contact sessions in order to record lecture attendance for purposes of DP requirements. Students carry the responsibility to keep record of the lectures they do not attend.

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Refer to the Survival Guide for information on DP requirements and Leave of Absence (LOA). 6 Assessment Maximum Class Work Examination Total 30 70 100

In order to pass this course, students must obtain a final performance mark of 50 out of 100.

CLASS WORK:
The Class Work component is made up of one test and one assignment. The test and assignment each count a total of 15 marks. The sum of the test and assignment marks will constitute the Class Work component. Information regarding the test and assignment will be communicated to students as soon as the general faculty schedule for LLB assessments has been published. The test questions will be similar to the examination questions in order to prepare students for what is expected of them for the final examination.

EXAMINATION:
Students will write a 2-hour examination paper in November counting 70 marks. Students can expect problem-type questions and case discussion questions in the examination. Students who fail Delict B in the November examination may qualify to write a supplementary examination in January/February 2011. Supplementary examinations can only be taken subject to the Faculty Policy as set out in the Survival Guide. The questions in the examination will mainly require students to apply the law of delict to practical or factual scenarios (the so-called problem-type questions). In answering these questions, students are required to give a systematic and comprehensive explanation of the theoretical principles applicable to the scenarios, use case law to explain and illustrate their theoretical understanding of the relevant issues, apply the principles and relevant case law to the scenario at hand and write a conclusion in the form of advice to clients on the possibilities of success in the particular scenario. Therefore, students are required to plan their answers carefully in order to write a systematic argument that reflects an application of the relevant legal principles and case law. Students are required to cite case law correctly, i.e. to cite both parties (eg Minister of Safety and Security v Hamilton; Cape Metropolitan Council v Graham; Clarke v Hurst).

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SPECIFIC OUTCOMES
The ability to find relevant and appropriate legal principles and authority for propositions and, in particular, to extract delictual principles from cases.

ASSESSMENT CRITERIA
Students must demonstrate that they are able to refer to principles of law extracted from relevant cases and text books.

ASSESSMENT TASKS
Class discussions in which students are asked to explain principles An assignment of 2500-3500 words. A test. A 2-hour examination in which questions are set to test students knowledge of the law. Class discussions in which students are asked to identify issues from factual scenarios given to them and to apply the relevant legal principles to the issues. An assignment of 2500-3500 words. A test. A 2-hour examination in which questions are set to test students knowledge of the law. Class discussions in which students are asked to identify issues from factual scenarios given to them and to apply the relevant legal principles to the issues. An assignment of 2500-3500 words. A test. A 2-hour examination in which questions are set to test students knowledge of the law. Class discussions in which students are asked to discuss and comment on preparation material. Deadlines for assignments must be met. A test. A 2-hour examination. Class discussions in which students are asked to identify scenarios that raise Constitutional issues to determine possible avenues for reform.

The ability to identify material issues from factual situations, to recognise the relevant legal principles which govern a specific situation and to determine the likely result should a situation be referred to a court.

Students must demonstrate that they can identify material issues from given sets of facts and then apply the principles of law to those facts and give advice on the likely outcome of the issue.

The ability to advise on and communicate legal issues in writing.

Students must demonstrate that they can identify material issues and relevant legal issues from facts, apply the law to the facts before them and give clear written advice on the likely outcome of the dispute raised by the facts in coherent language.

The ability to organise and manage a voluminous workload.

Students must demonstrate that they are fully prepared for class discussions, the test and the examination and that they meet the deadlines set for them.

The ability to use public policy and the Constitution to solve delict problems in a creative and critical manner.

Students must demonstrate that they can identify issues hat raise policy concerns and require law reform. Students must demonstrate that they can use Page 6 of 29

7 Constitutional principles to identify new ways in which problems might be solved in future. An assignment of 2500-3500 words. A test. A 2-hour examination containing questions that require the application of Constitutional principles. These questions test the extent to which a students reasoning is constrained by precedent and the extent to which viable alternative options are explored within the parameters set by the Constitution and public policy in general. Class discussions in which students are required to resolve issues according to delictual principles and to explore new ways of applying these principles. An assignment of 2500-3500 words. A 2-hour examination containing questions that test the extent to which a students reasoning is constrained by precedent and the extent to which viable alternative options are explored.

The confidence to rely primarily on reasoning ability rather than on precedent when seeking solutions to problems.

Students must demonstrate that they can identify material issues and relevant principles from the facts of the problem questions set in the test and examination and that they can apply the law to the facts before them. Students must demonstrate that they can identify issues that raise policy concerns and require law reform. Students must demonstrate that they can use Constitutional principles to identify new ways in which problems might be resolved in future.

Evaluation

Students are required to complete evaluation questionnaires according to the Law Facultys evaluation cycle. Students are encouraged to voice their comments, whether written or verbal, in terms of the structure, outcomes and general impression of the course. An external examiner assesses the quality of the examination paper, as well as the student answers to the examination questions. The external examiner must complete a report on the course as required by University policy.

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COURSE CONTENT

SECTION A SPECIFIC FORMS OF LIABILITY: PATRIMONIAL HARM & PAIN AND SUFFERING
Topic 1: Topic 2: Topic 3: Topic 4: Topic 5: Topic 6: Topic7: Topic 8: Negligent Misstatements Interference with Contractual Relations Unlawful Competition Product Liability Breach of Statutory Duty Public Authorities Injury or Death of another Person Introduction to Third Party CompensationRoad Accident Fund Act 56 of 1996

SECTION B SPECIFIC FORMS OF LIABILITY: PSYCHOLOGICAL OR EMOTIONAL HARM


Topic 9: Emotional Shock

SECTION C SPECIFIC FORMS OF LIABILITY: PERSONALITY INTERESTS


Topic 10: Topic 11: Topic 12: Topic 13: Topic 14: Infringement of Bodily Interests (Focus on wrongful arrest and detention) Infringements of Dignity: Insult, Privacy and Identity Infringements of Reputation Grounds of Justification for Infringements of Personality Interests Actio Iniuriarum: Assessment and Quantification of Satisfaction Award

SECTION D STRICT LIABILITY


Topic 15: Topic 16: Strict Liability: General Introduction and the action de pauperie Vicarious Liability

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Motivation is a fire from within. If someone else tries to light that fire, chances are it will burn very briefly. - Steven Covey July 2012 Dear Students, Welcome to Law of Delict B! In this course, we will look at specific forms of Aquilian liability, liability under the Actio Iniuriarum and forms of liability without fault. Although Law of Delict A is a separate semester course, please keep in mind that you will have to apply your knowledge of the delictual elements covered in Law of Delict A in the Law of Delict B course. This does not mean that you will also have to learn the Delict A prescribed material again. Delict B has its own new set of prescribed material. Please feel free to contact me with regard to the work as we progress through this semester. A notice of consultation times will be posted on my office door and on RUconnected. Please make an appointment with me via email in order to book a consultation during the identified times. I will not necessarily be available if no consultations have been scheduled for a particular consultation time. Best of luck to all of you for the final semester of your penultimate year! L Niesing

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TOPIC 1 NEGLIGENT MISSTATEMENTS


PRESCRIBED READING: Loubser, Midgley, Mukheiber, Niesing, Perumal The Law of Delict in South Africa (hereinafter The Law of Delict in SA)
NEGLIGENT MISSTATEMENTS CHAPTER 15 Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) Dersley v Minister van Veiligheid en Sekuriteit 2001 1 SA 1047 (T) EG Electric Co (Pty) Ltd v Franklin 1979 2 SA 702 (E) Mukheiber v Raath 1999 3 SA 1065 (SCA) Standard Bank of SA Ltd v OK Bazaars (1929) Ltd 2000 (4) SA 382 (W)

ADDITIONAL READING Neethling, Potgieter, Visser The Law of Delict274-281 Van der Walt, Midgley Principles of Delict90-91

NEGLIGENT MISREPRESENTATION Explain fully and with reference to case law what the delict of negligence misrepresentation entails. Discuss Mukheiber v Raathand Standard Bank of SA Ltd v OK Bazaars (1929) Ltd in terms of the requirements for establishing liability for negligent misrepresentation. Explain how the courts reached their conclusions regarding these requirements. Why does the delict of negligent misrepresentation usually entail a breach of a legal duty? With reference to the requirements for (or elements of) negligent misrepresentation and in light of relevant case law, explain how the causal nexus between the misrepresentation and the harm is established. When negligent misrepresentation occurs in the course of a professional relationship, is the basis of the potential claim delictual or contractual? Refer to relevant case law to explain your answer.

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TOPIC 2 INTERFERENCE WITH A CONTRACTUAL RELATIONSHIP


PRESCRIBED READING: The Law of Delict in SA Chapter 17
INTERFERENCE WITH CONTRACTUAL RELATIONSHIP Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A) Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (40 SA 378 (D) Shell & BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama SA 1980 (3) SA 653 (D) Union Government v Ocean Accident & Guarantee Corporation Ltd 1956 (1) SA 577 (A)

ADDITIONAL READING:
Neethling, Potgieter, Visser The Law of Delict281-284 Amod v MVA Fund 1999 (4) SA 1391 (SCA) Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) Santam v Henery 1999 (30 SA 421 (SCA)

How can interference with a contractual relationship be defined in terms of Aquilian liability? When does a wrongdoers conduct amount to actionable interference with a contractual relationship? Why is there no general liability in SA law for causing economic harm by negligently interfering with contractual relationships? According Neethling et al (282), there are four instances that have crystallised from our case law as circumstances where delictual liability can be vested for interference with a contractual relationship. What are these instances? Is either one of the forms of fault suitable for establishing liability for the interference with a contractual relationship? Why? What does our case law say about this and what does Neethling et al say?

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TOPIC 3 UNLAWFUL COMPETITION


PRESCRIBED READING: The Law of Delict in SA Chapter 18 Neethling, Potgieter, Visser The Law of Delict 285-291
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) Lorimar Productions Incorporated v Sterling Clothing Manufacturers (Pty) Ltd 1981 3 SA 1129 (T) Matthews v Young 1922 AD 492 Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 2 SA 221 (C) Woodlands Diary (Pty) Ltd v Parmalat SA (Pty) Ltd 2002 2 SA 268 (E) Netstar (Pty) Ltd & others v Competition Commission of South Africa & another 2011 (3) SA 171 (CAC) Klimax Manufacturing Ltd & another v Van Rensburg & another 2005 (4) SA 445 (O) Tolgaz Southern Africa v Solgas (Pty) Ltd & another; Easygas (Pty) Ltd v Solgas (Pty) Ltd & another 2009 (4) SA 37 (W)

ADDITIONAL READING Van der Walt, Midgley Principles of Delict 98-103


Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 3 SA 938 (SCA) Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape (Pty) Ltd 1968 (1) SA 209 (C) Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 2 SA 307 (A) Deneys Reitz v SA Commercial, Catering and Allied Workers Union 1991 2 SA 685 (W) Union Wine Ltd v Edward Snell & Co Ltd 1990 (2) SA 180 (D); 1990 (2) SA 189 (C)

What is the basis for recognising unlawful competition as a delict in South Africa? Infringement of which right(s) are we dealing with in order to establish wrongfulness? Is it enough to prove infringement of subjective rights in order to establish liability for unlawful competition? Why? What does the right to goodwill entail? Our courts have recognised that the right to goodwill exists within the context of honesty and fairness in trade and competition. How can honesty and fairness in trade and competition be determined? Which forms of unlawful competition have been identified by courts? Write a brief note on each form and explain and illustrate it by means of case law. Distinguish between direct and indirect infringement of the right to goodwill and give examples from case law.

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TOPIC 4 PRODUCT LIABILITY


PRESCRIBED READING: The Law of Delict in SA Chapter 19 Consumer Protection Act 68 of 2008 only selected sections as discussed during lectures
A Gibb and Son (Pty) Ltd v Taylor and Mitchell Timber Supply Co (Pty) Ltd 1975 2 SA 457 (W) Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 2 SA 447 (SCA) Wagener and Cuttings v Pharmacare Ltd 2003 4 SA 285 (SCA)

What, for purposes of establishing Aquilian liability, indicates that a product is defective or deficient? How is this ascertained? What does the manufacturers duty entail? When can it be said that a manufacturer has breached that duty? With reference to Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd, explain the scope of Aquilian liability for defective products. What are the current requirements for manufacturers liability in South Africa? What is the basis for advocating strict liability for manufacturers? Do you think that strict liability should be implemented against manufacturers in South Africa? Why is negligence as form of fault problematic? Explain how the court in Wagener and Cuttings v Pharmacare Ltd approached the question of strict liability. I.e. what was the courts reasoning regarding the development of the law? In terms of the Consumer Protection Act, what constitutes a defective product?

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TOPIC 5 BREACH OF STATUTORY DUTY TOPIC 6 PUBLIC AUTHORITIES


PRESCRIBED READING: BREACH OF STATUTORY DUTY The Law of Delict in SA Chapter 20
Knop v Johannesburg City Council 1995 (2) SA 1 (A) Olitzky Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA) Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA)

PUBLIC AUTHORITIES The Law of Delict in SA Chapter 21


State Liability Act 20 of 1957 MEC for Education, Western Cape Province v Strauss 2008 (2) SA 366 (SCA) Mhlongo v Minister of Police 1978 (2) SA 551 (A) Nyathi v The MEC, Department of Health, Gauteng 2008 (5) SA 94 (CC)

BREACH OF STATUTORY DUTY With reference to case law, how do courts determine whether the breach of a statutory duty also constitutes a delict? Briefly summarise the factors that courts take into account to establish wrongfulness and give case examples. PUBLIC AUTHORITIES Explain the basis for founding delictual liability on the part of state authorities. (I.e. why is it important that state authorities be held accountable and liable in the law of delict?) What does the trend of the consumerist vision of public liability entail? What is the role of the Constitution in terms of state liability? According to s1 of the State Liability Act 20 of 1957, when can a person bring an action against the State? I.e., when is the State liable in delict? Refer to case law. What was the impact of Nyathi v The MEC, Department of Health, Gauteng on s3 of the State Liability Act 20 of 1957? What is the current position of s3? What is the purpose of s4 of the State Liability Act 20 of 1957? To what extent is the State liable for public schools? Refer to relevant statutory provisions and case law. When is Municipalities not regarded as an organ of State as contemplated in s239 of the Constitution? Why can one argue that policy considerations for determining wrongfulness may differ, depending if one deals with individuals or public authorities?

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SECTION ASPECIFIC FORMS OF LIABILITY: PATRIMONIAL HARM & PAIN AND SUFFERING

TOPIC 7 INJURY OR DEATH OF ANOTHER PERSON


PRESCRIBED READING: The Law of Delict in SA Chapter 23
Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Eqalitiy Intervening) 1999 4 SA 1319 (SCA) Anthony v Cape Town Municipality 1967 (4) SA 445 (A) Barnes v Union and SWA Insurance Co Ltd 1977 3 SA 502 (E) Brooks v Minister of Safety and Security 2009 (2) SA 94 (SCA) De Vaal v Messing 1938 TPD 34 Du Plessis v Road Accident Fund 2004 1 SA 359 (SCA) Erdmann v Santam Insurance Co Ltd 1985 3 SA 402 (C) Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A) Jamesons Minors v Central South African Railways 1908 TS 575 Lambrakis v Santam Ltd 2002 3 SA 710 (SCA) Legal Insurance Co Ltd v Botes 1963 1 SA 608 (A) Lockhats Estate v North British Mercantile Insurance Co Ltd 1959 3 SA 295 (A) Santam Bpk v Henery 1999 3 SA 421 (SCA) Union Government (Minister of Railways & Harbours) v Warneke 1911 AD 657 Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 1 SA 577 (A)

ADDITIONAL READING Neethling, Potgieter, Visser The Law of Delict253-262 Van der Walt, Midgley Principles of Delict221-222
Constantia Versekeringsmaatskappy Bpk v Victor 1986 1 SA 601 (A) Finlay v Kutoane 1993 4 SA 675 (W) Guardian National Insurance Co Ltd v Van Gool 1992 4 SA 61 (A) Kewana v Santam Insurance Co Ltd 1993 4 SA 771 (Tk) Lyndsay v Stofberg 1988 2 SA 462 (C) Rondalia Assurance Corporation of SA Ltd v Britz 1976 3 SA 243 (T)

What is the basis for recovering loss due to the death or injury to another person? When is loss for death or injury to another person not actionable in delict? Give examples from case law for the instances where loss is not recoverable. Is there a difference between a claim for loss of support where (a) the breadwinner has been killed and (b) where the breadwinner has been injured? Refer to case law to illustrate your answer. Where a breadwinner has been injured, why is it so important to remember that the purpose of delictual compensation is to place the claimant in a position as close as possible to the position he/she was in before the delict was committed? Briefly explain the origin of the action of the dependants. Why is it often said that this action deviate from thenormal Aquilian principles? Why is it unacceptable to hold that the dependants action is based on a delict committed against the breadwinner?
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SECTION A SPECIFIC FORMS OF LIABILITY: PATRIMONIAL HARM & PAIN AND SUFFERING

With reference to case law, what are the requirements for a claim for loss of support? Who can institute a claim for loss of support? What was the claim for loss of support problematic in Brooks v Minister of Safety and Security? Consult Neethling et al and identify, with reference to case law, which sources of a legal duty for support are legally recognised. Which defences can be raised against a claim for loss of support? Briefly discuss the requirements for these defences to be raised successfully. Briefly discuss the nature and scope of a damages award for loss of support. Make use of case law.

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SECTION EFORMS OF LIABILITY WITHOUT FAULT

TOPIC 8 INTRODUCTION TO THIRD PARTY COMPENSATION AND THE ROAD ACCIDENT FUND
PRESCRIBED READING: Klopper The Law of Third Party Compensation 2ed (2008) Chapters 1-4 The Law of Delict in SA Chapter 24 Road Accident Fund Act 56 of 1996 (sections as indicated during lectures) Road Accident Fund Amendment Act 19 of 2005 (sections as indicated during lectures)
THIRD PARTY CLAIMS Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 Guardian National Insurance Co Ltd v Van Gool 1992 (4) SA 61 (AD) Road Accident Fund v Mongalo, Nkabine v Road Accident Fund 2003 (3) SA 119 (SCA) Rohloff v Ocean Accident and Guarantee Corporation Ltd 1960 (2) SA 291 (A) Santam Insurance v Fourie 1997 (1) SA 611 (A) Stegen and others v Shield Insurance Co Ltd1976 (2) SA 175 (N) Van der Merwe v Road Accident Fund 2007 (6) SA 283 (SCA) ROAD ACCIDENT FUND Bezuidenhout v Road Accident Fund 2003 (6) SA 61 (SCA) Chauke v Santam Limited 1997 (1) SA 178 (A) Dodd v MMF 1997 (2) SA 763 (A) Du Preez v Road Accident Fund and another 2002 (40 SA 209 (D) Engelbrecht v Road Accident Fund 2007 (6) SA 96 (CC) Kemp v Santam Insurance Co Ltd 1975 (2) SA 329 (C) Mali v Shield Insurance Co Ltd 1984 (2) SA 798 (SE) Minister of Safety and Security v Road Accident Fund 2001 (4) SA 979 (N) Mtamane v Road Accident Fund 2002 (4) SA 599 (N) Mutual & Federal Insurance Co Ltd v Day 2001 (3) SA 775 (SCA) Ngubetole v Administrator, Cape and another 1975 (3) SA 1 (A) Road Accident Fund v Maphiri 2003 (4) All SA 169 (SCA) Road Accident Fund v Mothupi 2000 (3) All SA 181 (A) Road Accident Fund v Russell 2001 (2) SA 34 (SCA) Union and South West Africa Insurance v Fantiso 1981 (3) SA 293 (A) Wells and another v Shield Insurance 1965 (2) SA 685 (C)

ADDITIONAL READING Klopper The Law of Collisions in South Africa 7ed (2003) Chapter 2
Amod v Multilateral Motor Vehicle Accident Fund (Commission for Gender Equality Intervening) 1994 (4) SA 1319 (SCA) Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) Erdmann v Santam Insurance Co Ltd 1985 (3) SA 402 (C) Henery v Santam Versekeringsmaatskappy Bpk 1997 (3) SA 100 (T) Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C) Lockhats Estate v North British & Mercantile Insurance Co Ltd 1959 (3) SA 295 (AD) RAF v Arendse NO 2003 (2) SA 490 (SCA) Santam v Henery 1999 (3) SA 421 (SCA) Santam Versekeringsmaatskappy Bpk v Kruger 1978 (3) SA 657 (AD)

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THIRD PARTY CLAIMS Identify the current third party legislation in SA. Briefly indicate the nature, purpose and application of each. With reference to case law, explain the meaning of third party and third party compensation. When, or under which circumstances, does a third party claim arise? Are there instances where wrongdoers, in typical third-party situations, may be held personally liable? Motivate your answer with reference to case law. Explain the nature of third party claims in each of the following instances and refer to case law: o Cessionaries (i.e. ceding a claim and the relevance of litis contestatio) o Third parties who derive their rights from customary law o Third parties who derive their rights from common law o Injured persons married according to civil rights o Injured minors and their guardians Explain what is meant by suppliers in the context of third party claims and briefly discuss the nature and ambit of suppliers claims with reference to case law. ROAD ACCIDENT FUND Define each of the following concepts for purposes of third party compensation in terms of the RAF Act 19 of 2005: o Owner o Driving o Driver o Motor vehicle Write an essay of 500 words on the proper interpretation of s17(1) of the RAF Act of 1996 in light of the following statement: it is possible for a claim against the RAF to be established if a claimant can merely show that his or her injuries arose out of the driving of a motor vehicle. Explain the meaning of other unlawful act in s17(1) of the RAF Act of 1996. Give examples of other unlawful act[s] as contemplated in s17(1). Negligence as (minimum) form of fault must be present in a claim against the RAF. Is the degree of negligence relevant at all? Give reasons (with reference to case law and the relevant statutory provision(s)) for your answer. Critically discuss the applicability of the reasonable person test to (accountable) children and refer to case law. How is the reasonable person test applied in situations where one has to do with, for example, a blind or deaf pedestrian? Is an unskilled or an unlicensed driver ipso facto negligent simply because of the lack of skill or license? Explain your answer. In terms of road use, there are some justified assumptions regarding road use and the conduct of other road users. Briefly discuss these justified assumptions and explain why they are justified.

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SECTION A SPECIFIC FORMS OF LIABILITY: PATRIMONIAL HARM & PAIN AND SUFFERING

Which principles are applicable when the negligence of a driver of an ordinary motor vehicle that collided with an emergency vehicle is determined? Refer to case law. Explain how the principle of sudden emergency is applied differently in the law of delict (generally) and in cases of motor vehicle accidents. Why is it applied differently? Give examples of situations where the principles of sudden emergency can negate the negligence of the wrongdoer. What are the requirements in motor vehicle accident cases for the principles of sudden emergency to be applied successfully? What is res ipsa loquitur and how is it applied? In terms of proving negligence, when is res ipsa loquitur applicable? What is the effect of a failure to rebut? What does rebuttal entail when res ipsa loquitur has been raised? Define loss for purposes of s17(1) of the RAF Act of 1996 and make use of case law to illustrate your answer. The concept of causation is firmly established in s17(1) of the RAF Act of 1996. With reference to case law, explain the meaning and application of the phrases caused by and arising from. Is there a difference between the application of the principles of causation for purposes of delictual common law on the one hand, and for motor vehicle accidents regulated by the RAF Act of 1996 on the other? Explain your answer with reference to the relevant statutory provision(s) and case law. Discuss the basis for liability of the RAF in hit-and-run cases. Identify the relevant provisions of the RAF Act of 1996 that regulate hit-and-run cases. How does the RAFA Act of 2005 change the legal position? Discuss the requirements for liability of the RAF in hit-and-run cases with reference to case law. When is the Funds liability restricted in hit-and-run cases? With reference to s19 of the RAF Act of 1996, when is the liability of the Fund excluded? How does the RAFA Act of 2005 change the legal position in this regard?

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SECTION BSPECIFIC FORMS OF LIABILITY: PSYCHOLOGICAL OR EMOTIONAL HARM

TOPIC 9 EMOTIONAL SHOCK


PRESCRIBED READING: The Law of Delict in SA Chapter 26
Barnard v Santam Bpk 1999 1 SA 202 (SCA) Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A) Boswell v Minister of Police 1987 3 SA 268 (E) Masiba v Constantia Insurance Co Ltd 1982 4 SA 333 (C) Road Accident Fund v Sauls 2002 2 SA 55 (SCA) Lutzkie v SAR & H 1974 (4) SA 396 (W)

What ispsychological lesions or emotional shock for purposes of Aquilian liability? How does one prove that emotional shock has occurred? When will psychological harm justify an award for damages? What was the role of Bester v Commercial Union Versekeringsmaatskappy van SA Bpk in terms of the laws recognition of psychological lesions as actionable under the Actio Legis Aquiliae? o Why did the court do away with the distinction between physical and psychological harm? o When is emotional shock actionable? What is the significance of Barnard v Santam Bpk in terms of remoteness of psychological harm? For purposes of arguing remoteness, compare Barnardv Santam Bpk, Road Accident Fund v Sauls and Lutzkie v SAR & H. With reference to case law, explain how foreseeability plays an important role in establishing liability for causing emotional shock. Explain also how foreseeability, as a factor for establishing negligence, wrongfulness and/or legal causation can determine liability for emotional shock caused. With reference to case law, critically discuss the role of foreseeability as a factor for determining remoteness of harm in cases of emotional shock.

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SECTION CSPECIFIC FORMS OF LIABILITY: PERSONALITY INTERESTS

TOPIC 10 INFRINGEMENT OF BODILY INTERESTS


PRESCRIBED READING: The Law of Delict in SA Chapter 27
Bennett v Minister of Police 1980 3 SA 24 (C) May v Union Government 1954 (3) SA 120 (N) Minister of Justice v Hofmeyr 1993 3 SA 131 (A) Van Rensburg v City of Johannesburg 2009 1 SACR 32 (W) Venter v Nel 1997 4 SA 1014 (D) Zealand v Minister of Justice and Constitutional Development 2008 (2) SACR 1 (CC)

ADDITIONAL READING: Neethling, Potgieter, Visser The Law of Delict 297-306 Van der Walt, Midgley Principles of Delict 111-113
Birch v Johannesburg City Council 1949 1 SA 231 (T) Masawi v Chabata 1991 4 SA 764 (ZH) Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA) Pretorius v Minister of Correctional Services 2004 2 SA 658 (T) Sv Orrie 2004 3 SA 584 (C)

How would you define bodily integrity for purposes of a claim under the actio iniuriarum? Give examples (with reference to case law) of infringements of physical integrity. Define these infringements and explain the requirements for successfully instituting a claim in delict. Can someone claim deprivation of liberty when a verbal restriction has been placed on him/her? Would there still be wrongful deprivation of liberty if the person who is detained is ignorant of the fact that he/she is indeed being detained? What of the situation where a person incorrectly believes that he/she is being held captive while it is indeed not the case? Distinguish between wrongful deprivation of liberty and malicious deprivation of liberty. With reference to case law, write an explanatory essay on the element of fault for purposes of a claim for infringement of corpus. Do you think that seduction should still be regarded as a form of iniuria? What is the critique from academic writers against this form of iniuria?

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SECTION CSPECIFIC FORMS OF LIABILITY: PERSONALITY INTERESTS

TOPIC 11 INFRINGEMENT OF DIGNITY: INSULT, PRIVACY & IDENTITY


PRESCRIBED READING: The Law of Delict in SA Chapter 28
INSULT Brenner v Botha 1956 (3) SA 257 (T) De Lange v Costa 1989 SA (2) 857 (A) Minister of Police v Mbilini 1983 3 SA 705 (A) PRIVACY Bernstein v Bester 1996 (2) SA 751 (CC) Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) Mhlongo v Baily 1958 (1) SA 370 (W) National Coalition of Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC) National Media Ltd v Jooste 1996 (3) SA 262 (A) NM v Smith (Freedom of Expression Institute intervening as Amicus Curiae) 2007 (5) SA 250 (CC) Pretorius v Minister of Correctional Services 2004 (2) SA 658 (T) Universiteit v Pretoria v Tommie Meyer Films (Edms) Bpk 1979 (1) SA 441 (A) IDENTITY Grtter v Lombard 2007 (4) SA 89 (SCA) Kidson v SA Associated Newspapers Ltd 1957 (3) SA 461 (W) ADDITIONAL READING Neethling, Potgieter, Visser The Law of Delict 321-328 Van der Walt, Midgley Principles of Delict 113-116

What does the infringement of dignity entail? When does liability for infringement of dignity arise? What are the requirements for a successful suit? Which personality rights are embraced under the umbrella of the dignitas concept? Is this a closed list? Can breach of a promise constitute an infringement of dignity? If so, in which circumstances? Does adultery constitute an infringement of dignity? Why? If it does, what kind of harm would be applicable? Is dignity as a personality aspect (subjective right) a subjective or an objective concept? Or perhaps both? Briefly explain your answer. Define and explain the concept of Insult for purposes of the actio iniuriarum. Define and explain the concept of Privacy for purposes of the actio iniuriarum. What is the correlation between the common-law right to privacy and the constitutional right to privacy and entrenched in s14. Refer to case law to illustrate your explanation. Define and explain the concept of Identity for purposes of the actio iniuriarum.

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SECTION CSPECIFIC FORMS OF LIABILITY: PERSONALITY INTERESTS

TOPIC 12 INFRINGEMENT OF REPUTATION


PRESCRIBED READING: The Law of Delict in SA Chapter 29
GENERAL Argus Printing and Publishing Co v Inkatha Freedom Party 1992 (3) SA 579 (A) Dhlomo v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A) Khumalo v Holomisa 2002 5 SA 401 (CC) Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) Post & Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 (3) SA 1114 (ZS) PUBLICATION Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 (6) SA 185 (SCA) Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) Moolman v Slovo 1964 (1) SA 760 (W) Pretorius v Niehaus 1960 (3) SA 109 (O) Vermaak v Van der Merwe 1981 (3) SA 78 (N) Whittington v Bowles 1934 EDL 142 DEFAMATORY MATTER Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) Johnson v Beckett 1992 (10 SA 762 (A) Mangope v Asmal 1997 (4) SA 277 (T) Mthembi-Mahanyele v Mail & Guardian Ltd 2004 6 SA 329 (SCA) Sindani v Van der Merwe 2002 (2) SA 32 (SCA) Sutter v Brown 1926 AD 155 REFERENCE TO PLAINTIFF A Neumann CC v Veauty Without Cruelty International 1986 (4) SA 657 (C) Sauls v Hendrickse 1992 (3) SA 912 (A) PRESUMPTIONS REGARDING WRONGFULNESS & ANIMUS INIURIANDI Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) Khumalo v Holomisa 2002 5 SA 401 (CC) National Media Ltd v Bogoshi 1998 (40 SA 1196 (SCA) Pakendorf v De Flamingh 1982 (3) SA 146 (A) Suid-Afrikaanse Uitsaaikorporasie v OMalley 1977 (3) SA 394 (A)

How can fama as a subjective right be described? What would constitute infringement of fama? Give a definition of defamation. What are the elements of defamation and what the requirements of each element? Explain why malicious prosecution gives rise to an action under the actio iniuriarum and particularly under infringement of fama. What are the requirements for such an action to succeed? Attachment of property is also seen as a form of defamation. Why is this? What is the distinction between wrongful attachment and malicious attachment? Which constitutional rights are in conflict when one deals with a defamation suit?

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SECTION CSPECIFIC FORMS OF LIABILITY: PERSONALITY INTERESTS

Since defamation affects a persons reputation and status in society, how would you define society in a multi-cultural, multi-religious country like South Africa? In other words, in terms of which norms and values must the plaintiffs reputation have been tainted? What was the legal position regarding defamation by media before the Bogoshi judgment? How did the Bogoshi judgment change the legal position of the media in terms of defamation? What constitutes publication for purposes of establishing defamation? Would it be publication of one spouse discloses defamatory material about another person to the other spouse? Would it be defamation if a third party discloses defamatory material to one spouse about the other spouse? Give reasons for your answers. Is the test for defamation an objective one or a subjective one? Why is the test for defamation so important in terms of establishing wrongfulness? Explain with reference to case law. Explain the following concepts for purposes of determining whether words are defamatory or not and give examples from case law: o primary meaning o secondary meaning or innuendo, and o quasi-innuendo. Courts follow a two-step approach to determine whether words/material is defamatory. With reference to case law, illustrate how this two-step method is applied. The general rule is that the plaintiff bears the onus to prove that he or she has been wronged. For purposes of proving that words/conduct/material is defamatory, two rebuttable presumptions assist the plaintiff. With reference to case law, explain when these rebuttable presumptions are operational and what the effect thereof is.

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SECTION CSPECIFIC FORMS OF LIABILITY: PERSONALITY INTERESTS

TOPIC 13 GROUNDS OF JUSTIFICATION FOR INFRINGEMENTS OF PERSONALITY INTERESTS


PRESCRIBED READING: The Law of Delict in SA Chapter 30
TRUTH FOR PUBLIC BENEFIT Johnson v Rand Daily Mails 1928 AD 190 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) FAIR COMMENT Delta Motor Corporation (Pty) Ltd v Van der Merwe 2004 (6) SA 185 (SCA) Crawford v Albu 1917 AD 102 PRIVILEGED OCCASION Dikoko v Mokhatla 2006 (6) SA 235 (CC) Vincent v Long 1988 (3) SA 45 (C) O v O 1995 (4) SA 482 (W) May v Udwin 1981 (1) SA 1 (A) Van der Berg v Cooprts and Lybrand Trust (Pty) Ltd 2001 (2) SA 242 (SCA) Mohamed v Jassiem 1996 (1) SA 673 (A) De Waal v Ziervogel 1938 AD 112 REASONABLE PUBLICATION National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

List and discuss (with extensive use of prescribed case law) the possible defences that could exclude liability for defamation. Give examples where privilege or privileged occasion as defence would be applicable. Explain how the requirements of each example were applied by the court. In terms of the truth for public benefit defence, when would something be considered to be in the public interest? To what extent must the alleged defamatory words or behaviour be true? Would this defence succeed if the defendant acted with malice? Why is the defence of media privilege potentially problematic? What does reasonable publication of truth mean? Explain with reference to case law. Give a short definition of the defence of political privilege and compare it with the defence of media privilege.

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SECTION CSPECIFIC FORMS OF LIABILITY: PERSONALITY INTERESTS

TOPIC 14 ACTIO INIURIARUM: ASSESSMENT AND QUANTIFICATION OF AWARD

PRESCRIBED READING: The Law of Delict in SA Chapter 33 33.2.8, pp 407-409


Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) Naylor v Jansen; Jansen v Naylor 2005 (1) All SA 567 (SCA) Pont v Geyser 1968 (2) SA 545 (A) Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (V) Van Zijl v Hoogenhout 2005 (2) SA 93 (SCA)

What is the general criterion according to which courts determine an award for damages under the actio iniuriarum? In terms of each of the following forms of iniuriae, which factors are taken into account when assessing damages? Illustrate the application of these factors with reference to case law. o Assault o Sexual Abuse o Deprivation of Liberty o Infringement of dignity, privacy and dignity o Defamation

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SECTION EFORMS OF LIABILITY WITHOUT FAULT

TOPIC 15 STRICT LIABILITY GENERAL INTRODUCTION FOCUS: ACTIO DE PAUPERIE


PRESCRIBED READING: The Law of Delict in SA Chapter 31
HARM CAUSED BY ANIMALS (ACTIO DE PAUPERIE; ACTIO DE PASTU; ACTIO DE FERIS) Da Silva v Otto 1986 (3) SA 538 (T) Lever v Purdy 1993 (3) SA 17 (A) Loriza Brahman v Dippenaar 2002 (2) SA 477 (SCA) Maartens v Pope 1992 (4) SA 883 (N) Potgieter v Smit 1985 (2) SA 590 (D)

ADDITIONAL READING: Neethling, Potgieter, Visser The Law of Delict329-337 Van der Walt, Midgley Principles of Delict35-36, 40-43
STATUTORY INSTANCES OF STRICT LIABILITY Telkom (SA) Ltd v Duncan 1995 (3) SA 941 (W) ACTIO DE EFFUSIS VEL DEIECTIS & ACTIO POSITIS VEL SUSPENSIS Bowden v Rudman 1963 (4) SA 686 (N) Colman v Dunbar 1933 AD 141
ACTIO AQUAE PLUVIAE ARCENDAE PROPERTY

&INTERDICTUM

QUOD VI AUT CLAM;

DAMAGE

CAUSED BY OWNERS OF NEIGHBOURING

Bloemfontein Town Council v Richter 1983 AD 195 Flax v Murphy 1991 (4) SA 58 (W)
CONDICTIO FURTIVA

Clifford v Farinha 1988 4 SA 315 (W) CERTAIN FORMS OF INIURIAE Minister of Justice v Hofmeyer 1993 (3) SA 131 (A)

What is the basis for allowing liability without fault in our legal system? Which factors are relevant in justifying strict liability? What does the risk principle entail? What are the general characteristics of liability without fault? What is the basis for the actio de pauperie? What are the requirements that must be met in order to establish liability? What defences are available against the actio de pauperie? What is the basis for the actio de pastu? What are the requirements for instituting this action successfully? What defences are available against the actio de pastu? What does the actio feris entail? Is it still part of our law? Why? How is this action different from the actio de pauperie?

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SECTION EFORMS OF LIABILITY WITHOUT FAULT

GUIDING QUESTIONS RE ADDITIONAL READING MATERIAL What are the requirements for liability where damage has been cause by fallen, poured or thrown objects? Are these actions still applicable in our law? Briefly explain how the condictio furtiva is applied. What are the requirements for liability under this action? What are the requirements for establishing liability for the wrongful interference with natural flow of surface water? What are recognised exceptions to the two remedies actio aquae pluviae arcendae; interdictum quod vi aut clam? Are these remedies still in force in our law? Which factors can play a role in determining liability where damage has been caused by the owner of a neighbouring property? Are these factors indicative of whether one should view this as an instance of strict liability or not? Answer the latter question with reference to the Bloemfontein Town Council and Flax cases. Which forms of iniuriae do not require fault as basis for liability?

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SECTION EFORMS OF LIABILITY WITHOUT FAULT

TOPIC 16 VICARIOUS LIABILITY


PRESCRIBED READING: The Law of Delict in SA Chapter 32
Bezuidenhout NO v Eskom 2003 (3) SA 83 (SCA) Chartaprops 16 (Pty) Ltd v Silberman 2009 (1) 265 (SCA) Costa de Oura Restaurant (Pty) Ltd t/a Umdhloti Bush Tavern v Reddy 2003 (4) SA 34 (SCA) K v Minister of Safety and Security 2005 (6) SA 419 (CC) Messina Associated Carriers v Kleynhaus 2001 3 SA 868 (SCA) Midway Two Engineering & Construction Services v Transnet Bpk 1998 3 SA 17 (SCA) Minister of Police v Rabie 1986 1 SA 117 (A) Minister of Safety and Security v Luiters 2006 (4) SA 160 (SCA); 2007 (20 SA 106 (CC) Stein v Rising Tide Productions CC 2002 (5) SA 199 (C)

PRESCRIBED READING: Neethling, Potgieter, Visser The Law of Delict 338-345 Van der Walt, Midgley Principles of Delict 36-40
Dowling v The Diocesan College 1999 3 SA 847 (C) Feldman (Pty) Ltd v Mall 1945 AD 733 Grobler v Naspers BpK 2004 4 SA 220 (C) Minister of Safety and Security v Jordaan t/a Jordaans Transport 2000 4 SA 21 (SCA) R H Johnson Crane Hire v Grotto Steel Construction 1992 3 SA 880 (C) Rodrigues v Alves 1978 4 SA 834 (A) Smit v Workmens Compensation Commissioner 1979 1 SA 51 (A) Viljoen v Smith 1997 (1) SA 309 (A)

With reference to case law, define the concept of vicarious liability. Which theories have emerged to explain an employers liability when an employee has caused harm? What are the requirements for an employers vicarious liability? Explain each requirement with reference to case law. Discuss the issue of control in an employer-employee relationship and how it should be regarded in terms of establishing strict liability. What does within the scope of his/her employment mean? How does one determine whether someone has acted within the scope of their employment? What is the position when an employee deviates from the employers business? Does it always constitute a frolic of his/her own? What is the situation when an employee commits a forbidden act? Is liability in terms of the principal-agent relationship different than that of the employer-employee for purposes of delictual liability? What is the position in terms of strict liability where the owner of a motor car allowed someone else (not an employee) to drive his/her car and that person then causes an accident?
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