Different approaches Flashcards
Approach 1: Loubser & Midgley
The general criteria for determining wrongfulness: reasonableness, the legal convictions prevailing in the community, society’s boni mores. The general criterion for determining wrongfulness remains the same: whether the defendant unreasonably, or contrary to the boni mores or the legal convictions of the community, failed to prevent harm to the plaintiff”
Approach 2: Neethling, Potgieter, Visser
The general norm or criterion to be employed in determining whether a particular infringement of interests is unlawful is the legal convictions of the community: the boni mores […] The boni mores is an objective test based on the criterion of reasonableness
[…] Two examples of the practical application of the boni mores yardstick which have developed into the generally accepted basic tests for wrongfulness, are that wrongfulness lies in the infringement of a subjective right or the non-compliance with a legal duty to act […]
Current Approach: Follow this Approach. Le Roux v Dey
“In the more recent past our courts have come to recognise, however, that in the context of the law of delict,
a) the criterion of wrongfulness ultimately depends on a judicial determination of whether – assuming all other elements of delictual liability to be present – it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and
b) that the judicial determination of that reasonableness would in turn depend on considerations of public and legal policy in accordance with constitutional norms. Incidentally, to avoid confusion, it should be borne in mind that what is meant by reasonableness in the context of wrongfulness has nothing to do with the reasonableness of the defendant’s conduct [which is part of the element of negligence], but it concerns the reasonableness of imposing liability on the defendant for the harm resulting from that conduct”
* any reference to this must be understood as a reference to legal and public policy considerations; do not use the terminology of ‘boni mores’
Cases confirming approach 1 & 2 not to be followed
Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC) para 51: The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability are present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct. Whether conduct is wrongful is tested against the legal convictions of the community which are ‘by necessity underpinned and informed by the norms and values of our society, embodied in the Constitution’.
Deacon v Planet Fitness Holdings (Pty) Ltd 2016 (2) SA 236 (GP) para 20: In other words conduct is wrongful if public policy considerations demand that in the circumstances the plaintiff has to be compensated for the loss caused by the negligent act or omission of the defendant.
Minister of Home Affairs v Rahim 2016 (3) SA 218 (CC) para 22: The statement that harm-causing conduct is wrongful expresses the conclusion that public or legal policy considerations require that the conduct, if paired with fault, is actionable. And if conduct is not wrongful, the intention is to convey the converse: ‘‘that public or legal policy considerations determine that there should be no liability’’
Mashonwa: As Moseneke DCJ put it: ‘(T)he ultimate question is whether on a conspectus of all reasonable facts and considerations, public policy and public interest favour holding the conduct unlawful and susceptible to a remedy in damages’
Loureiro v Imvula: The wrongfulness enquiry focuses on the conduct and goes to whether the policy and legal convictions of the community, constitutionally understood, regard it as acceptable. It … questions the reasonableness of imposing liability. Negligence, on the other hand, focuses on the state of mind of the defendant and tests his or her conduct against that of a reasonable person in the same situation in order to determine fault.”
