Delict
| Author | Lawrenson, N. |
| Published date | 28 March 2022 |
| Date | 28 March 2022 |
| Pages | 348-469 |
348
1. INTRODUCTION
Minister: Western Cape Department of Social De velopment v Esau1 dealt w ith
the liability of the appell ant for injuries suffere d by a minor child on the
premises of a public pre-school. The cou rt distinguished the position of the
pre-school from that of public school s. In the case of the latter, the teachers
are employees of the relevant education departments and the sc hools are
owned and operated by the education departments, in te rms of the South
African School s Act (Schools Act).2 The Schools Act specifically provides
for delictual claim s arising from injury duri ng school activities. In this cas e,
however, the appellant was governed by the provisions of the Child Care
Act,3 and the latter Act does not provide for such delict ual liability.
Holtzhausen v Cenprop Real Estate (Pty) Ltd4 addressed the issue of t he
liability of a shopping mall ow ner and manager where a customer had
slipped and fallen on puddles of rainwater. The full be nch managed to
distingui sh this matter from ‘slip and trip’ cases, which, i n terms of the
judgment in Chartaprops 16 (Pty) Ltd v Silberman,5 would have required the
court to hold the independent cleani ng company liable for the appellant’s
damages. Instead, the court found t he respondents liable on the basis of
their having failed to provide saf e flooring tiles that would not be hazardous
to visitors during rainy weather.
Since the judgment in MEC for Health and Social Dev elopment, Gauteng v
DZ obo WZ,6 which opened the door for t he development of the common
law to include compensation in kind a nd the payment of future damages
* 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.
2 84 of 1996.
3 74 of 1983.
DelictDelict
Natalie Lawrenson*
2020/2021 YSAL 348
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deLICt 349
in instalme nts, several defendant state health departments have been
amending their pleading s to incorporate a plea for such a development of
the common law. In Member of the Executive Council for Health of the Gauteng
Provincial Go vernment v PN,7 the Constitutional Cour t was asked to consider
the potential to develop the common law to allow for compensation to be
in the form of medical ser vices and supplies in the public healthcare sector,
in lieu of paying money to the plainti ff (the public healthcare defence),
and, in circumst ances where such services a re not available in the public
healthcare sector, that payment be made to the plainti ff as and when
the medical expens es are incurre d in the future (the underta king to pay
defence). The court considered the implications of the provisions of ss 27(1)(a)
an d 2 8(1) (c) of the Constitution, which guara ntee the right of everyone to
have access to healthcare services, and t he right of every child to basic
healthcare services, resp ectively. The court held that large lump sum
payments to individual litigants, which have become promi nent more
recently, can serve to undermine the abil ity of the various public healthcare
departments to provide public healthcare in t he future. The court held that
the determination of whethe r to develop the common law accordingly now
lay with the High Court heari ng the quantum matter. TN obo BN v MEC for
Health, Eastern Cape8 followed a si milar approach.
On the other hand, in PH obo SH v MEC for Health, KZN9 (which judgment
was delivered prior to the above mentioned PN judgment), the court refused
an amendment to include a public healthcare defence, on the ba sis of the
constitutional rights of hum an dignity, equality and sec urity of person, as
well as the right not to be arbitrarily deprived of propert y. The court held
that the latter right would be inf ringed if the plaint iff was not paid a once-
off lump sum of money. The court held further that to develop the common
law in this man ner would entrench inequality and discr imination, which is
inimical to con stitutional values and the Bill of Rights.
An important decision for domestic workers followed in Mahlangu v
Minister of Labour10 where the Constit utional Court confir med the declaration
of constitutional invalidit y of s 1(xix)(d)(v) of the Compensation for
Occupational Injuries a nd Diseases Act (COIDA).11 The Co nstitutional Cou rt
furthermore ordered suc h invalidity to have immediate and ret rospective
effect from 27 April 1994. Prior to the granti ng of this order, s1(xix)(d)(v) of
COIDA excluded domestic workers employed in private households from
7 Unreported, [2021] ZACC 6, 1 April 2021, available online at http://www.saflii.org/za/
cases/ZACC/2021/6 html.
8 [2021] 1 All SA 561 (ECB).
11 130 of 1993.
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receiving compensation and be nefits under COIDA in the event of injury,
disable ment or death.
Bangiwe v Road Accident Fund12 raised the quest ion whether vehicles
moving underground are covered by the Road Accident Act.13 The court
had to consider whether the words ‘at any place within the Republic’, as
contained in s17(1)( b), can be interpreted to mean ‘anywhere’ in the Republic,
including underground spaces suc h as mines.
In Churchill v Premier, Mpumalanga14 and Cleme ntz v Millbo Paper CC15 the
courts had to consider the question of whether a n incident arose ‘in t he course
of’ and ‘out of’ an employee’s employment, for purposes of interpreting ‘an
accident’, as defined in COIDA. From these two cases, and t he case law cited
therein, it is clear that t here are contradictory policy issue s at stake when
interpreting the r elevant sections in COIDA. The courts have, at times,
interpreted the defi nition of an ‘accident’ broadly, with a view to assisting
employees with receiving immedi ate statutory compensation, thereby
sparing such employees unneces sary protracted and costly l itigation.
However, such a broad interpretation has also led to employers being able
to avoid their responsibility to provide safe working envir onments for their
employees and prevalent crimes being regarded as acce pted risks that are
attendant upon employment.
The court in Van Meyeren v Cloete16 was r equired to consider a new issue of
whether an owner of a domestic ani mal should be held liable for negligence,
based on the actio de pauperie, i n circumstances where the c ulpable conduct of
a totally independent third pa rty provided the opportunity for the an imal to
cause harm. The court was i nvited to consider a ‘wider exception’ to liability
under the pauperian action, to accommodate the a foresaid circumst ances,
but this approach was rejected.
MEC for Health, Eastern Cape v ZM obo LM,17 MEC fo r Health, Eastern Cape v
upon between the partie s and the manner i n which a court is requi red to
deal with such evidence, in circu mstances where it may be dissati sfied
and/or not in agreement with the conc lusions reached therein. I n such
13 56 of 1996.
17 Unreported, [2020] ZASCA 169, 14 December 2020, available online at http://www.saflii.
org/za/cases/ZASCA/2020/169.html.
18 Unreported, [2021] ZASCA 68, 3 June 2021, available online at http://www.saflii.org/
za/cases/ZASCA/2021/68.html.
19 Unreported, [2020] ZAGPJHC 274, 19 October 2020, available online at http://www.
saflii.org/za/cases/ZAGPJHC/2020/274.html.
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