Aspects of Wrongfulness: A Series of Lectures

• Jurisdiction: South Africa
• Date: 16 August 2019
• Author: FDJ Brand
• Pages: 451-470
• Published date: 16 August 2019

451

ASPECTS OF WRONGFULNESS:

A SERIES OF LECTURES

FDJ Brand

SC BA LLB LLM (Stell) LLD (hc) (UFS)

Judge of the Supreme Court of Appeal; Professor Extraordinary in Private Law,

University of the Free State; Honorary Professor of Private Law, University of

Stellenbosch*

1 Introduction

Wrongfulness – sometime s also referred to as un lawfulness – is one of

the elements of delictual liabilit y. The other elements are conduct, fault,

causation and harm . Without the convergence of all these elements delictual

liability will not ensue. T he conduct element requires the pr esence of human

intervention, either t hrough positive conduct or by way of omission. The

requirement of fault – in the for m of either intent or negligence – deals with

the blameworthine ss of the defendant’s conduct. Harm concerns t he effect of

the defendant’s blameworthy conduct, while causation requ ires a causal lin k

between the blameworthy conduct and the harm. In moder n South A frican

law, wrongfulness has become t he most interesting of these element s. Under

this rubric t he law determines whet her the defendant should be held legally

liable for the harm suffere d by the plaintiff that resulted from the defenda nt’s

blameworthy conduct. If the law deter mines that the re will be no liability,

the defendant is afforded immu nity from the con sequences of the wrongfu l

conduct; the defendant is not liable despite the prese nce of all the other

elements of delictual liability.

To illustrate by way of example, a rugby player who negligently or even

intentionally causes inju ry to his or her – I suppose i n the context of rugby,

mostly his – opponent while playing the ga me in accordance with it s rules,

will generally not be liable for that har m. The reason: because the law declares

that conduct a s not wrongful, becau se it is justied by t he defence of volenti

non t iniuria (he who con sents cannot be injured) or, in com mon parlance,

consent. With regard to culpable conduct in t he form of a positive act causi ng

physical injury to person or pro perty of the plaintiff in the way of our exa mple,

wrongfulne ss is more often than not unconte ntious. In fact, conduct of this

kind is presumed t o be wrongful and t he onus is on the defendant to rebut

this presumption.1 And the defendant will norma lly seek to do so by relying

on one of the well-settled defences which have become known as g rounds

of justi cation, which a re discussed by Loubser and Midgley’s most recent

contribution t o this eld in Law of Delict.2 These include t he justication of

* A series of lect ures presented t o law students at the Un iversity of Stellenbo sch during Apri l 2014

1 See for example Gou da Boerdery BK v Transnet 2 005 5 SA 490 (SCA) para 12; Roux v Hattingh 2012 6

SA 428 (SCA) para 32

2 M Loubser & R Midg ley Law of Delict (2012) ch 9

(2014) 25 Stell LR 451

© Juta and Company (Pty) Ltd

volenti non t iniuria or consent – to which I have referred in our exa mple –

necessity, statutory author ity and so forth.

2 Omissions and pure economic loss

But where wrongful ness becomes less straig ht forward, and hence more

interesting, is wit h regard to harm caused by omission and har m consisting of

so-called pure ec onomic loss, sometimes also refer red to as the infr ingement

of an economic interest. The re ason for the complication is of historical origin.

Until relatively recently, Aquilian liability was ess entially limited to culpable

conduct in the form of a positive act causing physical inju ry in the person

or property of the plaint iff. Conversely stated, it was not available for har m

caused by omission3 nor for the recovery of pure e conomic loss, that is loss

not resulting from physical injur y to the person or property of the plaintif f.4

Society’s reluctance to extend d elictual liabilit y to omission was often

informed by a laissez- faire concept of liberty that i ndividuals are entitled

to mind their own busi ness, even when they might be morally expe cted to

prevent harm; by the notion that wh ile one is under a legal obligation not to

cause harm to anot her, one is generally speaking not legally obliged to prevent

the other from suffering ha rm. Although I may be under a moral obligation to

rescue my neighbour from dr owning, I am under no legal duty to do so as long

as I did not push him into the p ool. But there was another additional reason for

society’s reluctance to impose legal liability for omission: it was the fear that

the imposition of such liability could produc e consequences which were likely

to be too burdensome for society t o shoulder.5 One can easily illustrat e the

problem by way of a practical example. I see someone stealing my neighbour’s

car. I refrain from inte rfering because I fear for my safety – quite u nreasonably

– or because I am in a hur ry or simply because I do not want to get involved.

Am I liable to my neighbour for the value of his stolen car? I think we will all

agree that liabilit y should not follow. But let us take an example from pract ice

which is somewhat more borderline. In Minister of La w and Order v Kadir6

(“Kadir”) the respondent, Mr Ka dir, was involved in a motor vehicle accident

with another vehicle that drove away. Two policemen att ended the scene of

the accident but failed to take down t he details of potential witnesses who saw

it happening. In conseq uence, so Mr Kadir conte nded, he was not able to sue

the third par ty insurer for the damages that he suf fered th rough the negligent

omission of t he two policemen. He therefore sought to hold the Minister

of Law and Order liable for the loss that he suffered t hrough the negligent

omission of the two policemen. Should the Minist er be held liable? The Cape

High Cour t thought that he should, but the Appeal Court held that he should

not. The explanation given by the latter a ppears from the following statement

by Hefer JA:

3 See for example Halliwell v Johannesburg Municipal Council 1912 AD 659 670

4 See for example Union G overnment v Oc ean Accident a nd Guarantee C orporation L td 1956 1 SA 577 (A)

5 See Cape Town Munici pality v Bukker ud 2000 3 SA 1054 (SCA) paras 8 and 10

6 1995 1 SA 303 (A)

452 STELL LR 2014 3

© Juta and Company (Pty) Ltd