Delict

• Jurisdiction: South Africa
• Published date: 10 March 2021
• Author: Lawrenson, N.
• DOI: https://doi.org/10.47348/YSAL/v1/i1a10
• Citation: 2019/2020 YSAL 522
• Pages: 522-641
• Date: 10 March 2021

522

1. INTRODUCTION

The recent case law discussed in this chapter presents some interesting

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, Gauteng1has

important implications for the manner of payment of delictual damages

in appropriate medical negligence cases. Relying on the decisions in

MEC for Health and Social Development, Gauteng v DZ obo WZ2(DZ) and

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 kind in circumstances where the conduct of

public healthcare providers is found to have negligently caused an injury

during or at birth, resulting in the child suffering from cerebral palsy, and

where the defendant can prove that medical services of the same or of a

higher standard will be available to the child in the 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 the future in lieu of monetary 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 pertains to

vicariously liability in deviation cases. The judgment placed reliance

*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.

12020 (2) SA 567 (GJ).

22018 (1) SA 335 (CC).

32019 JDR 0377 (GJ).

4Para 214.

51 of 1999.

62020 (1) SA 64 (SCA).

DelictDelict

Natalie Lawrenson*

2019/2020 YSAL 522

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Delict 523

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on the approach set out in Minister of Police v Rabie,7as endorsed in the

matter of K v Minister of Safety and Security,8with regard to the factors to

be taken into consideration in the objective enquiry of the standard 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 confirms 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 scope of their employment

when committing a delict.

In the matter of Komape v Minister of Basic Education10the appellants

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 feelings of bereavement and loss without there

being an underlying psychiatric lesion; and, in the alternative, an award

for constitutional damages on the basis that their constitutional rights to

a peaceful family life had been breached. The appellants argued that the

latter award for constitutional damages would furthermore impress upon

the educational authorities that they need to provide adequate sanitary

facilities at schools.

The court in Komape awarded the family damages for emotional shock

that resulted in psychiatric injury. The court, however, declined to develop

the common law as sought by the appellants on t he basis that the appellants’

grief and feelings 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 compensation had been awarded for a physical or

psychiatric injury’.11 Where a claimant has already been compensated for

damages suffered by reason of physical or psychiatric injury, any further

award of damages would amount to a punishment for breach of a right

which had already been compensated 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 resources are better

spent on economic and social refor m.

71986 (1) SA 117 (A).

82005 (6) SA 419 (CC).

9Para 18.

102020 (2) SA 347 (SCA).

11Para 58.

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The matters of Jankielsohn v Booysen,12Hanekom v Zuma13 and Manuel v

Economic Freedom Fighters14 pertained to claims for defamation. Defamation

sits at the crossroads between freedom of speech and the right to privacy.

In the political environment the courts have held that the acceptable limits

of criticism are wider for politicians than for private individuals. However,

politicians are nevertheless entitled to the legitimate protection of their

dignity, including their reputation, as was con firmed in these cases.

The matters of De Gee v Transnet Soc Ltd15and Churchill v Premier,

Mpumalanga16concern the difficulties facing the courts in determining the

issue of whether an injur y sustained by an employee arose out of and in the

course of their employment.

In Malatji v Road Accident Fund17 the court, in determining the quantum

amount in favour of a road accident victim, found it necessary to follow

a responsible approach by balancing the plaintiff’s interests and the aim

and purpose of the award against 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 (R294300 with effect from 3 0 April 2020).18

3. CASES

3.1 GENERAL PRINCIPLES OF LIABILITY

3.1.1 Wrongfulness

Informed consent for a medical procedure

In the matter of Beukes v Smith,19 Beukes (Mrs B) underwent laparoscopic

surgery for a hernia repair (the surgery), performed by Dr Smith (Smith),

a general surgeon. During the surgery, Mrs B suffered a perforation of her

colon (the injury) and had to undergo further surgery for the repair of the

injury as well as surger y to clean out her peritoneal cavity.20

122019 JDR 2254 (FB).

132019 JDR 1655 (KZD).

142019 (5) SA 210 (GJ).

152020 (2) SA 488 (GJ).

162020 (2) SA 309 (MN).

172020 (3) SA 236 (GP).

18BN 62, GG 43358 of 29 May 2020 (also available in Afrikaans).

192020 (4) SA 51 (SCA).

20Paras 4–7.

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