Delict Assignment (1)

Question 11.1 Introduction This essay will explore the impact of the Constitution on the law of delict, more specifically in the areas on the relevance of the fundamental human rights on the law of delict, the interpretation of the provision of Chapter 2 of the constitution and the effect on awarding damages.1.2 The influence of South African Constitution on the law of delict and fundamental rightsa. In South African legal system, the Constitution is considered to be the supreme law of the land and any conduct or law which is inconsistent with its provisions will be deemed as invalid, stated in section 2 of the Constitution. However, section 8 of the constitution, expressly states that the Bill of Rights applies to all law and binds all branches of government. Chapter 2 of the Constitution- Bill of Rights- (BoR) contains fundamental rights to which juristic persons are also entitled (Neethling and Potgieter,2014). Chapter 2 applies to all law, therefore also to the law of delict. The fundamental rights relevant to the law of delict are:the right to property, s 25(1) states that no one may be deprived of property which also include immaterial property. In Phumelela Gaming and Leisure Ltd v Grundlingh, it was accepted that the right to goodwill is immaterial property that can be protected as property;the right to life, s 11, it is one of the most basic and essential right of an individual and it should never be infringed upon;the right to freedom and security of the person (including the right to bodily and psychological integrity), s 12;the right to privacy, s 14, an intentional infringement of this right constitute a delict and a constitutional wrong;the right to human dignity, s 10, it is not easy to decipher the actual meaning  of this right but it is the foundational value of the utmost importance in our constitutional  dispensation (see National Coalition of Gay & Lesbian Equality v Minister of Justice);the right to equality, s 9, which includes the complete and equal enjoyment of all the rights and freedom;the right to freedom of expression, s 16;the right to freedom of religion; belief and opinion, s 15;the right to assembly; demonstration; picket and petition, s 17;the right to freedom of association, s 18 and the right to freedom of trade; occupation and profession, s 22.However these fundamental rights may be limited by a law of general application, but to the extent that the limitation is both reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, s36(1) of the Constitution. Furthermore the law of delict is liable to the objective normative value system- a set of values that must be respected when the common law or legislation is interpreted, developed or applied- in terms of section 8(1) of the Constitution (Brand 2014).  ‘Moreover, the influence of this normative value system on the common law is mandated by section 39(2) of the Constitution’(Brand 2014, p.42). Therefore the above mentioned fundamental rights, in Chapter 2,have a higher status and anyone can be tested against them. The alleged infringement of fundamental rights can be evaluated in two ways: firstly, was there a prima facie infringement of the relevant right; and whether it can be justified by (s 36(1)). Therefore the onus is on the infringer to prove that the infringement is justified (see Qozeleni v Minister of Law and Order). 1.3 Interpretation of the provisions of chapter 2 of the constitutionb. Similarly when interpreting the provisions of Chapter 2, the courts need to promote the values which underlines the principal of a democratic society based on human dignity, equality and freedom (Neethling and Potgieter,2014). Moreover, while  interpreting any legislation and developing both the common and customary law, the courts must promote the spirit, purport and objects of the BoR (Neethling and Potgieter,2014). In a leading case of Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening), the Constitutional  Court concluded in an unambiguous manner that where the common law deviates from the spirit, purport and objects of the BoR, the courts have a discretion to invent the common law to eradicate the deviation. However the BoR can be applied vertically and horizontally which can take place directly as well as indirectly. A clear distinction must be made between them. Direct vertical application means that the state must respect the fundamental rights and not infringe them accept in terms of the limitation clause, section 36. Therefore protecting citizens against arbitrary state action (see Gardener v Whitaker ). Direct horizontal application means that courts must give effect to an applicable fundamental right by applying and if necessary to develop the common law. However, the indirect application of BoR means that it does not override ordinary law , rather the BoR respects the rules and remedies of ordinary law, but demands furtherance of its values mediated through the operation of ordinary law, and applies in particular to flexible delictual principles (boni mores) test for wrongfulness, the imputability test for legal causation and the reasonableness test for negligence (Neethling and Potgieter,2014).1.4 Awarding damagesc. Accordingly, when an infringement of relevant fundamental rights occurs the aggrieved party is entitle to approach the court for appropriate relief, s 38, however ,only if no other compensatory relief is available (Monial Holdings (Pty) Ltd v Premier of Limpopo Province [2007] 3 A11 SA 410 (T) 421-422), and it should be differentiated from a constitutional delict- an infringement of a fundamental right that constitute a delict-. A clear distinction should be made because the requirements for a delict and constitutional wrong differs. Where a conduct is in conflict with BoR, is clearly constitutionally contra bonos mores and therefore wrongful ( Walker v Stadsraad van Pretoria 1997 4 SA 189 (T) 202). Furthermore delictual remedy aims at compensation and constitutional remedy aims at affirming, enforcing, protecting and vindicating fundamental rights and deterring future violations thereof (Fose v Minister of Safety and Security 1997 3 SA 786 (CC) 836-837).1.5 Conclusiond. In concluding remark, it is safe to say that the South African Constitution have a dramatic impact on the law of delict, however it is through the application rather than modification, keeping in mind that the overall purpose of the law of delict is to compensate and as a consequence it is underpinned by a sense of morality and fairness (Brand,2014), just as the Bill of Rights.Question 22.1 Introduction: Describe an act and its consequencesIn terms of the law of delict, conduct can be defined as a voluntary human act or omission (Neethling and Potgieter,2014). The act that is refer to is an action by one person that caused harm or damage to another person, therefore conduct can be seen as a damage causing occurrence. In the case of Thomas v BMW South Africa (Pty) Ltd 1996 2 SA 106 (C) 120, the judge ruled that in the absence of wrongful act or omission the wrongdoer cannot be held delictually liable because there is no infringement of an interest. Therefore there can be no liability until the damage has been done (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] 1 A11 ER 404 (PC) (Wagon Mound No 1) 415A. The act and its consequences are always separated by space and time (Pinchin v Santam Insurance Co Ltd). Furthermore the separation of an act and its omission can be negligent or significant, each depending on the facts. Therefore when the consequences are harmful than only the wrongful act can be considered delictual. Similarly if such distinction is made than cases like Pinchin v Santam Insurance co Ltd and Road Accident Fund v Mtati will easily be resolved.2.2 Role of wrongfulnessa. An act which causes harm is not enough for a claim of delictual liability but the act in itself must be wrongful, in Herschel v Mrupe 1954 3 SA 464 (A) 485, wrongfulness was regarded as an essential element for liability. However, the determination of wrongfulness consists of dual investigation. Firstly, whether an infringement of a legally protected interest has been occurred and secondly whether it occurred in a legally reprehensible way.In the case of Sihle, who suffers from asthma, was shot by Bongiwe , his girlfriend, by mace pepper gun while both were asleep. As a result he suffered minor brain damage due to the temporary lack of oxygen, section 12(1)(c) of the constitution-right to freedom and security from all violence, public or private- has been infringed upon, which suggests that Bongiwe’s action caused harmful result. However was the action done in a legally reprehensible manner? No, because the action was conducted involuntarily since Bongiwe was half asleep and shot at Sihle due to her nightmare. Therefore a harmful consequence is not enough to constitute wrongfulness (University van Pretoria n Tommie Meyer Films (Edms) Bpk 1997 4 SA 376 (T). It does not seem that Bongiwe acted intentionally, as her act was not voluntary (automatism), it is a defence used by a person who did not act voluntarily,she was half asleep when she fired the mace gun.Whereas in the case of Jeremy, a pedestrian, who was struck by a flowerpot due to Bongiwe’s lack of control of muscular movement, which was caused by a huge amount of alcohol consumption. As a result he suffered serious head injuries (harmful result), a legally recognised interest has been encroached upon, again section 12(1)(c) of the constitution is infringement. Furthermore , was the action done in a legally reprehensible manner? No. However it was not done intentionally but it was done negligently, meaning a reasonable person would have foreseen that their actions may cause state of automatism. Therefore an involuntary muscular movement of an arm or a foot of a person due to a drunken stupor can not amount to an act but it will be highly unlikely to exclude negligent ( State v Chretien 1981 (1) SA 1907 (A). 2.3 Application of the law b. The legal issue is whether the acts done by Bongiwe were wrongful or not. It is already established that she in fact did cause harm to Sihle and Jeremy but was it wrongful or otherwise? On both accounts the act was involuntary (automatism), in R v Dhlamini 1955 1 SA 120 (T) 122, and S v Johnson 1996 1 SA 201 (A) 204, the accused were found not guilty. Because in both cases the defence of automatism was used, so in this case Bongiwe can protect herself against delictual claims from both of them. The automatic state must however not have been created intentionally or negligently. Here Bongiwe is half asleep and did not create the automatic state. However Sihle and Jeremy can claim against action for pain and suffering, since both of them did suffer from physical injuries and not to mention the trauma those injuries must have caused, but it will depend on the court to grant such a claim.2.4 Criterion of objective reasonablenessc. Generally the criterion to determine whether a particular interest infringed is unlawful, the legal convictions of the community – the boni mores- is used. Which is an objective test based on the criterion of reasonableness (Neethling and Potgieter,2014). Moreover the court expressed in Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 380, that in any situation, it should be determine whether the defendant acted in a reasonable manner or not, in accordance with legal convictions of the community. So therefore the ex post facto of balancing of interest that Bongiwe’s act promoted and those she infringed should be weighed by the court to help in understanding. Bongiwe’s intention was solely to protect herself from the attack in (2.2.a.1) and she did not intended at all to harm Sihle, therefore the act was not wrongful as it is our constitutional right (s 11 and 12). In (2.2.a.2) Bongiwe was not in her senses as she was completely drunk, resulting in an involuntary muscular reflex, which suggests that her intention was not to cause harm, therefore her conduct was not wrongful but negligent and of course she lacked malice while acting negligently. 2.5 Application of the law to the factsd. Now the law will be applied to the facts of the cases, as already mentioned above Bongiwe acted negligently ( when a person commits a wrongful act unintentionally) without having the intention to cause injuries to both parties. If Bongiwe acted wrongfully the court will consider the constitution norms (i.e. protecting the best interest of Sihle and Jeremy) and whether the legal convictions of the community demand that it be regarded as wrongful, alternatively whether it would be overly burdensome to impose such liability on Bongiwe (Gordon and Mackay, 2017) and also keeping in mind the dual test. However it is already established that both actions were caused involuntarily. In R v Dhlamini 1955 1 SA 120 (T) 122, similar situation of half-awakened by a nightmare and was acting mechanically without intention, violation or motive, had occurred, the court found the accused not guilty. Similarly in S v Johnson 1996 1 SA 201 (A) 204, it was held that muscular movement during a state of unconsciousness (Bongiwe’s drunken stupor), irrespective of the reason for unconsciousness, cannot result in a voluntary act. However, as mentioned above Bongiwe acted negligently , therefore the court will consider the reasonable person test, which will answer two questions 1: would the reasonable man have foreseen his/her conduct causing damage? 2: If so, could any steps have been taken to avoid the damage? If the answer to both questions is yes than a person is negligent (J. G. S., no date). she is a 30 year old nursery schoolteacher, which implies that she is a capable and highly responsible individual, as she works with toddlers, but getting highly intoxicated over emotional stress and putting herself and a pedestrian down the street in danger shows her recklessness and enough evidence that she would have reasonably foreseen the consequence of her drunken action. Therefore a reasonable person wouldn’t have gotten in a drunken stupor and would not have endangered theirs or others life so carelessly, clearly shows negligence on her part. As a rule the defendant has the onus to prove his/her defence on a balance of probabilities. Bongiwe did not act intentionally, but it can be argued that she acted negligently, as already mentioned. However Sihle also suffered minor brain damage but can he hold her criminally liable, no because in R v Ngang 1960 3 SA 363 (T) 366, the court found that the appellant was acting involuntarily or automatically therefore cannot be criminally liable for the act which was no more than physical reflex. But in Jeremy’s case, he can actually hold Bongiwe liable for negligence against action for pain and suffering and he will be compensated on such grounds. 2.6 Conclusione. After checking the facts and applying them to the applicable statute and case law, the conclusion can be drawn that Bongiwe’s conduct in both instances was not wrongful but a) it was done in self-defence and b) it was done in negligence, therefore appropriate remedies will be provided to all parties accordingly.3 Bibliography

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