Wrongfulness Flashcards
Relationship between wrongfulness and harmful result
Wrongful only if harmful results caused.
Infringement of legally protected interest
Act and consequences separated in time and space
Immediately or much later
Pinchin
Mtati
Exception interdict
How must wrongfulness be determined?
Wrongfulness must be determined objectively ex post facto taking into account all the facts and circumstances that were really present and all the consequences that really occured.
Involves a dual investigation.
The first question is whether a legally recognised interest infringed or encroached upon. The interest must be worthy of protection and there must be a harmful result.
If yes, the second question is whether the prejudice occurred in a legally reprehensible manner (indicates that there must be a violation of a legal norm. A harmful result in itself is insufficient).
Therefore, the question is whether there was a factual infringement of an interest worthy of protection which happened in a legally reprehensible manner?
Basic test for wrongfulness
The basic test for wrongfulness is the legal convictions of the community (boni mores).
It is an objective test based on the reasonableness criterion.
The question is whether, in accordance with the legal convictions of the community and in light of all the circumstances, the defendant infringed the interests of the plaintiff in an unreasonable manner
Judge’s personal opinion - boni mores criterion
In Schulz it was accepted that the legal convictions of the community must be seen as the legal convictions of legal policy makers such as judges and the legislature.
However, the judge must not elevate his own personal opinion as the sole measure of wrongfulness.
A judge who does that makes the law instead of applying it.
The idiosyncratic views of a judge could be a conduit to legal certainty.
The task of a judge is to interpret and define the legal convictions of the community with reference to legal policy, rules and court decisions in which such legal convictions have found expression, supplemented by evidence and circumstances.
Wrongfulness of omissions
There is no general legal duty on someone to prevent another from suffering loss (Ewels). Omissions are therefore prima facie lawful.
Liability will only ensue if the omission was in fact wrongful and this will be the case if there was a legal duty on the person to prevent the suffering of harm by a 3rd party and he failed to comply with that duty.
Therefore the basic question is to determine whether a legal duty rested on the defendant to prevent harm and whether that duty was breached.
Indications that a duty rested on the defendant are:
1. Prior conduct
2. Control of a dangerous object
3. Special relationship between the parties
4. Rules of law
5. A particular office
6. Contractual undertakings for the safety of a 3rd party
7. The creation of an impression that the interests of a 3rd person will be protected.
8. Where a person had knowledge or foresight of a dangerous situation.
An interplay of factors may also indicate wrongfulness of an omission.
It is not necessary that the omission falls into one of the crystallised categories - in such a case the general test for wrongfulness, namely the boni mores test, will be sufficient to determine wrongfulness.
In Ewels it was stated that the omission must not merely evoke moral indignation, but the legal convictions must also regard the omission wrongful and that the defendant should compensate the injured party for his omission.
Where his life is endangered by acting positively, the law doesn’t place a legal duty on him, since no one is expected to regard another’s life as more important than his own.
In Carmichele it was held that the boni mores must be informed by the values underpinning the Bill of Rights.
Prior conduct
In the so-called municipality cases, prior conduct was a prerequisite for the wrongfulness of an omission.
Prior conduct means previous positive acts which created a new source of danger.
The classic case in this regard was Halliwell.
In the cases of Silva’s Fishing, Regal and Minister of Forestry, the principle that prior conduct was a prerequisite for wrongfulness of an omission was eroded.
In Ewels it was held that the wrongfulness of an omission must be informed by the legal convictions of the community. While prior conduct may be a strong indication of a legal duty, it is not a prerequisite.
In Bakkerud, it was confirmed that the Ewels principles applied to municipality cases and it was held that the legal convictions of the community may, even in the absence of prior conduct or a statutory duty, place a legal duty on municipalities to repair roads and sidewalks or warn the public against danger.
