Delict
| Jurisdiction | South Africa |
| Published date | 10 March 2021 |
| Author | Lawrenson, N. |
| DOI | https://doi.org/10.47348/YSAL/v1/i1a10 |
| Pages | 522-641 |
| Date | 10 March 2021 |
522
1. INTRODUCTION
The recent case law discu ssed in this c hapter presents some interesti ng
developments in the law, in addition to confirming the applicable law in
other areas.
The judgment delivered in MSM obo KBM v MEC for Health, Gauteng1 has
important implications for the ma nner of payment of delictual dam ages
in appropriate medical negligence cases. Relyi ng on the decisions in
MEC for Health and Social Development, Gauteng v DZ obo WZ2 (DZ) an d
NP v The Member of the Executive Council for Health of the Gauteng Provincial
Government3 (NP), Keightley J developed the common law to provide for
an order for compensation in ki nd in circumsta nces where the conduct of
public healthcare providers is found to have negligently caused an i njury
during or at birth, resulti ng in the child su ffering from cerebral pal sy, and
where the defendant can prove that medical ser vices of the same or of a
higher standard wil l be available to the child in t he future in the public
healthcare system, at either no cost or at less cost than t he cost of the private
medical care clai med on behalf of the child.4 The court in NP fou nd further
that the statutory provisions of the Public Fi nance Management Act5 did not
preclude the court from ordering t he defendant to either render medical and
other services in t he future in lieu of moneta ry compensation or to make
payment of the proven claim for damages in in stalments in the future.
The decision in Stallion Security (Pty) Ltd v Van Staden6 pertai ns to
vicariously liability i n deviation cases. The judgment placed relia nce
* BMus (Wits) MMus (UKZN) LLB LLM (UCT); Advocate of the High Court of South
Africa; Member of the Cape Bar. ORCID: https://orcid.org/0000-0002-1554-6941.
4 Para 214.
5 1 of 1999.
DelictDelict
Natalie Lawrenson*
2019/2020 YSAL 522
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on the approach set out in Minister of Police v Rabie,7 as endorsed in t he
matter of K v Minister of Safety and Security,8 with rega rd to the factors to
be taken into consideration in the ob jective enquiry of the sta ndard test in
determini ng whether the employee’s wrongful act is ‘sufficient ly connected
to the business of the employer’9 in order to render the employer liable.
The judgment confirm s that the factor of risk-creation by an employer in
appointing a specific employee should play a more active role in determi ning
whether the employee acted in the course and s cope of their employment
when committing a delict.
In the matter of Komape v Minister of Basic E ducation10 the appel lants
sought damages for emotional shock, result ing in psychiatric injury as well
as the development of the common law in accordance with s 39(2) of the
Constitution of the Republic of South Africa, 1996 (Constitution) to recogni se
an award for grief and feeling s of bereavement and loss without there
being an underlying psychi atric lesion; and, in the alternative, an award
for constitutional damages on t he basis that their const itutional rights to
a peaceful family li fe had been breached. The appella nts argued that the
latter award for constitutional damages would f urthermore impress upon
the educational authorities that they need to provide adequate san itary
facilities at schools.
The court in Komape awarded the family damages for emotiona l shock
that resulted in psychiatr ic injury. The court, however, declined to develop
the common law as sought by the appellants on t he basis that the appellants’
grief and feeling s of bereavement and loss can adequately be compensated
for under the law as it stands, by taking it into account i n the assessment of
their damages. With regard to the cl aim for constitutional damages, t he court
stated that such damages have never been awarded in our law ‘as a solatium
for breach of a right where there has been no fi nancial loss, either direct or
indirect, or where the compens ation had been awarded for a physical or
psychiatric injury’.11 Where a claimant has al ready been compensated for
damages suffered by reason of physical or psychiat ric injury, any further
award of damages would amount to a punishment for breach of a rig ht
which had already been compens ated for. Furthermore, the court found
that a punitive award for damages would not serve to compel the education
authorities to comply with their duties and that scarce r esources are better
spent on economic and social refor m.
9 Para 18.
11 Para 58.
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The matters of Jankielsohn v Booyse n,12 Hanekom v Zuma13 and Manuel v
Economic Freedom Fighters14 pert ained to claims for defa mation. Defamation
sits at the crossroads between fr eedom of speech and the right to privacy.
In the political environ ment the courts have held that the acceptable lim its
of criticism are wider for politicia ns than for private individuals. However,
politicians are nevert heless entitled to the legitimate protect ion of their
dignity, including their reputation, as was con firmed in these cases.
The matters of De Gee v Transnet Soc Ltd15 and Churchill v Premier,
Mpumala nga16 concern the di fficulties facing t he courts in determi ning the
issue of whether an injur y sustained by an employee arose out of and in the
course of their employment.
In M alatji v Road Accident Fund17 the court, in determ ining the qu antum
amount in favour of a road accident victim, found it necessar y to follow
a responsible approach by balancing the plai ntiff’s interests and the ai m
and purpose of the award again st the public interest, which includes the
protection of the liquidity of the Road Accident Fund.
2. LEGISLATION
2.1 ROAD ACCIDENT FUND ACT 56 OF 1996
The statutory limit in r espect of claims for loss of income and loss of support
was adjusted (R294300 with effect from 3 0 April 2020).18
3. CASES
3.1 GENERAL PRINCIPLES OF LIABILITY
3.1.1 Wrongfu lness
Informed consent for a medical procedure
In the matter of Beukes v Smith,19 Beukes (Mr s B) underwent laparoscopic
surgery for a hernia repai r (the surgery), performed by Dr Smith (Smith),
a general surgeon. Duri ng the surgery, Mrs B suffered a perforation of her
colon (the injury) and had to undergo further surger y for the repair of the
injury as well as surger y to clean out her peritoneal cavity.20
18 BN 62, GG 43358 of 29 May 2020 (also available in Afrikaans).
19 2020 (4) SA 51 (SCA).
20 Paras 4–7.
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