Historical development Flashcards
Previous position regarding wrongfulness of failing to act
Positive causation of harm previously never really problem/ consideration regarding wrongfulness especially in the law of delict- there was not expectation placed by law for us to act positively
Reasons for no expectation to act positively
- Western democratic jurisdictions
- people are free to do what they want, as long as they dont harm others (positive act)
- not required to participate in society
- Laissez Faire approach followed where courts wont interfere unless positive harm was caused/ harm principle
Importance of Minister of Polisie v Ewels
Court stated that we need to stop the ad hoc, casuistic development of our law. We need a general measure to determine if failure to act is wrongful.
What was the general measure as set out in Ewels?
“When the circumstances are such that the omission not only occasions moral indignation, but also that the legal convictions of the community require that the omission be regarded as unlawful and that the loss suffered be compensated by the person who failed to act positively”
Secondly, the court formulated the question that must be asked: was there a legal duty to act reasonably?
(not considered with reasonable man test)
Position of wrongfulness of pure economic loss
Long time, the general position was that it was not wrongful. In Administrateur Natal v Trust Bank 1979, the position changed. Law of delict expanded.
Legal question: Was there a legal duty to prevent the economic loss?
Criteria: judicial value judgement as to whether there is a legal duty made by courts (dont look at legal convictions of society)
Development of pure economic loss in the constitutional era
Carmichelle & Van Duivenboden:
o Before the constitution came into effect, the situation (failure) in Van Duiveboden would not have been wrongful
o Now, however, the question is one of legal policy, which must be answered against the norms and values of the particular society
o Our norms and values have now been embodied in the Constitution
o Court was saying that it is about judicial value judgements of the courts, but the question is ultimately one of legal and public policy
o In Ewels, this would have meant looking at the convictions of the community. We are interested in the norms and values which underlie society, which are found in the Constitution
o This provides a consistent and objective approach for the courts to determine whether something is wrongful, as opposed to asking individuals in society whether they think it should be wrongful or not
o Provides Certainty
Current legal Position set out in Le Roux v Dey
- ultimately depends on judicial determination
- whether it would be reasonable to impose liability on a defendant for damages flowing from specific conduct
- the judicial determination of that reasonableness would in turn depend on considerations of public & legal policy in accordance with consitutional norms
- concerns reasonableness of imposing liability on defendant for harm resulting from conduct (not reasonableness of defendants conduct)
