Conduct / The Act

Question 1

Define Conduct/Act

Answer 1

● A Voluntary Human Positive Act or Omission

Question 2

Name 3 Requirements of Conduct/Act?

Answer 2

♧ Human Act

♧ Voluntary

♧ Positive and Negative Act

Question 3

Explain Human Act?

Answer 3

♤ An Act caused by a human being

♤ Accepted as Conduct

Question 4

Can a company “Act” (Still a human Act?)

Answer 4

◇ Juristic Person

◇ University, Company, Public School etc.

◇ Act through its Organs (Humans)

◇ Held delictually liable

Question 5

A wild animal attacks a person. Could this action be a delictual act?

Answer 5

♡ Accepted as Conduct

♡ Use of an Instrument

♡ Only when Human Act is present

♡ Can be Delictually Liable

Question 6

Define Voluntariness?

Answer 6

☆ Person must have the ability/ sufficient mental ability

to control his muscular movement

Question 7

Does Voluntariness imply that an Act must be Willed or Desired?

Answer 7

Voluntariness is NOT

♧ Willed

♧ Desired

♧ Rational

♧ Explicable

Question 8

Does a Minor or Mentally ill person act Voluntarily?

Answer 8

♤ YES

♤ Could lack ACCOUNTABILITY - then no FAULT AND doer escapes LIABILITY

Question 9

Distinguish between Postive and Negative Act?

Answer 9

◇ Commissio (Postive Act)

◇ Active Conduct

◇ To Act

◇ Omissio (Negative Act)

◇ Inactive Conduct

◇ Failure to Act

Question 10

Name the Defence that a person can raise against the element of Conduct?

Answer 10

♡ Automatism

Question 11

Define Automatism

Answer 11

◇ The Act of the wrongdoer must be Voluntary to cause delictual liability
Person did not have mental capacity to control muscular movement

Question 12

Who will raise the Defence of Automatism?

Answer 12

☆ Defendant

Question 13

Complete: Automatism must be proved on a _______________ (burden of proof?)

Answer 13

■ Balance of Probability

Question 14

What does the defence of Automatism entail?

Answer 14

☆Defendant –> Acted MECHANICALLY (Automatic)

☆ No control over bodily MOVEMENT

☆ Acted INVOLUNTARY

Question 15

Give examples of conditions where a Defence of Automatism could potentially succeed?

Answer 15

◇ Absolute Compulsion

◇ Fainting Fit

◇ Sleep

◇ Epileptic Fit

◇ Unconsciousness

◇ Hypnosis

◇ Heart Attack

◇ Serious Intoxication

◇ Blackout

◇ Reflex Movement

◇ Mental Diseases

◇ Strong Emotional Pressures

Question 16

Molefe V Mohaeng

Answer 16

■ Footnote 18

■ A Driver suffered a Blackout in a motor vehicle accident

■ Footnote 27

■ The driver (Defendant) pleaded that he was overcome by a sudden unforeseen and uncontrollable black out

■ Judgement

■Defence should be approached with caution

■ Plaintiff in this case did not succeed in discharging this onus

Question 17

Who bears the Onus of proving that the other party acted Voluntary? (Molefe V Mohaeng)

Answer 17

♧ Plaintiff - must prove that Defendant acted VOLUNTARY and Negligent

Question 18

Does Amnesia constitute as Automatism?

Answer 18

♤ Footnote 24

♤ R V Du Plessis

♤ Not Automatism

♤ Acted Voluntary

♤ At that relevant time Defendant had control over his Muscular Movement
Can have evidentiary value.

Question 19

If you kill someone in your sleep are you guilty? What about sleepwalking or dreaming?

Answer 19

☆ Footnote 22

☆ S V Johnson (dreaming) cannot be held liable

☆ S V Ncube (Sleepwalking) Does not act Voluntary

Question 20

Explain Actio Libera Causa and Negligence by means of Automatism as a Defence?

Answer 20

♧ Automatism is not successful as a Defence

♧ Defendant acts intentionally cause harm

♧ Acts Involuntarily and Negligent to his automatic conduct

♧ Reasonably foreseeing possible harm

♧ Drinking alcohol knowing that they will later drive a motor vehicle

Question 21

Case Law examples of Automatism being Successful or not?

☆ Case law : Facts
Xolani suffers an Epileptic fit while driving his motor car and in the process collided with a pedestrian and another Vehicle

Answer 21

♡ Footnote 25

On the same facts

♡ R v Victor —> ( Defence of Automatism rejected)

♡ R v Schoonwinkel —> ( Defence of Automatism was upheld)

Question 22

Case Law examples of Automatism being Successful or not?

◇ Case Law : R v Mkize
Facts
Xolani during an Epileptic Fit, Stabbed and killed his sister

Answer 22

♡Footnote 25

♡ Court held

Stabbing of his sister was part of his muscular activity by the accused during his Unconsciousness

♡Accused did not act Voluntary

Question 23

Discuss Commission

Answer 23

♧ Commissio

♧ Positive Act

♧ To Act

♧ Less Restricted

♧ More easily to be found liable

Example: Driving through a red light and colliding with a vehicle. The positive act of driving.

Question 24

Discuss Omission

Answer 24

○Omissio

○ Negative Act

○ Failure to Act

○ Liability is restricted

○ Legal Duty

○ Failure to take possible steps to prevent harm

○ Example: Police failing to prevent a dangerous criminal from escaping and he subsequently rapes a woman