Minister of Law and Order v Kadir

• Jurisdiction: South Africa
• Judge: Hefer JA, Nestadt JA, Nienaber JA, Van den Heever JA, Harms JA
• Judgment Date: 29 September 1994
• Docket Number: 246/93
• Hearing Date: 20 September 1994
• Court: Appellate Division

Hefer JA:

I shall refer to the parties to the appeal by their titles in the Court a quo where the present respondent was the plaintiff and the H present appellant the defendant. The appeal is against the dismissal of an exception taken by the defendant against the plaintiff's particulars of claim on the ground that it lacks averments which are necessary to sustain the action. The Court a quo's judgment has been reported sub nom Kadir v Minister of Law and Order 1992 (3) SA 737 (C). A recital of the facts pleaded (together with the detailed grounds for the exception) appears at I 738B-739E of the report. For present purposes only a brief restatement is required.

The plaintiff is seeking to recover damages allegedly suffered on account of his inability to claim compensation for personal injuries from the Fund established by the Multilateral Motor Vehicle Accidents Fund Act 93 of J 1989. The injuries were sustained when he lost control over his vehicle in

Hefer JA

A swerving to avoid a collision with a bundle of clothing which had fallen from a vehicle travelling ahead of him. Since there was no contact between the vehicles or with the bundle, a claim against the Fund could, in terms of the regulations promulgated under the Act, only be maintained if the driver or owner of the other vehicle could be identified. This was impossible because the policemen who 'attended the scene' shortly after B the incident and were 'investigating the collision' when the driver returned in the vehicle to retrieve the bundle, failed to 'take down the necessary information relating to the driver and the identity of the said vehicle'. Their failure is alleged to have constituted a breach of a legal duty which they owed to the plaintiff.

C The particulars of claim were plainly drafted on the basis of the judgment in Minister van Polisie v Ewels 1975 (3) SA 590 (A) in which Rumpff CJ observed at 596G-597A that the general rule against delictual liability arising from omissions had developed to the stage where it is accepted that cases may occur where there is a legal duty to prevent harm to D others, that failure to comply with such a duty constitutes a wrongful (and thus actionable) omission, and that liability for such an omission is not limited to certain types of cases. The learned Chief Justice then proceeded to say at 597A-C:

'Dit skyn of dié stadium van ontwikkeling bereik is waarin 'n late as onregmatige gedrag beskou word ook wanneer die omstandighede van die geval van so 'n aard is dat die late nie alleen morele verontwaardiging ontlok E nie maar ook dat die regsoortuiging van die gemeenskap verlang dat die late as onregmatig beskou behoort te word en dat die gelede skade vergoed behoort te word deur die persoon wat nagelaat het om daadwerklik op te tree. Om te bepaal of daar onregmatigheid is, gaan dit, in 'n gegewe geval van late, dus nie oor die gebruiklike "nalatigheid" van die bonus paterfamilias nie, maar oor die vraag of, na aanleiding van al die feite, F daar 'n regsplig was om redelik op te tree.'

This has since become the accepted norm for determining the wrongfulness of omissions in delictual actions for the recovery of economic loss. (Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A); Osborne Panama SA v Shell & BP South African Petroleum Refineries (Pty) Ltd and Others 1982 (4) SA 890 (A) at 900 fin-901A; Lillicrap, Wassenaar G and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 498G-I; Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 570E-F; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 796E-797F; Arthur E Abrahams & Gross v Cohen and Others 1991 (2) SA 301 (C) at 307I-309G.) In Administrateur, Natal v Trust Bank of Afrika Bpk H (supra) Rumpff CJ, after indicating at 833C-D that policy considerations are a feature common to both the South African concept of a legal duty and the English notion of a 'duty of care' (insofar as the latter has a bearing on wrongfulness), quoted with approval, inter alia, from Fleming The Law of Torts 4th ed at 136. The relevant passage (which appears in truncated form at 128 of the 7th (1987) edition of Fleming's work) reads I as follows:

'In short, recognition of a duty of care is the outcome of a value judgment, that the plaintiff's invaded interest is deemed worthy of legal protection against negligent interference by conduct of the kind alleged against the defendant. In the decision whether or not there is a duty, many factors interplay: the hand of history, our ideas of morals and J justice, the convenience of administering the rule and our

Hefer JA

A social ideas as to where the loss should fall. Hence, the incidence and extent of duties are liable to adjustment in the light of the constant shifts and changes in community attitudes.'

In the present case the defendant has placed the wrongfulness of the policemen's failure to record the relevant information in issue. B Paragraphs (a), (b) and (c) of the...