Wrongfulness: General test

Question 1

Did the court apply the nasciturus fiction in the case of Road Accident fund v Mtati?

Answer 1

No. The SCA followed Joubert’s approach by pointing out that the nasciturus fiction does not offer a solution in certain instances and may lead to unfair results. The court clearly stated that wrongfulness and damage are separated delict USA elements that must not be merged.
Joubert’s approach: in the case of antenatal injuries (injuries while child is still a foetus), it is not necessary to use the nasciturus fiction, because and act and its consequences are separate both in time and space. A child need not have legal capacity at the time of the “act”. When the child is born alive with injuries, the act is wrongful.

Question 2

What are the legal convictions of a community?

Answer 2

The general norm or criterion to be employed in determining whether a particular infringement of interest is unlawful
It is the legal convictions of the community: the boni mores.
- the yardstick for general reasonableness

Question 3

What is the boni mores test?

Answer 3

It is an objective test

based on the criterion of reasonableness.

Question 4

Explain the boni mores test.

Answer 4

The basic test is whether according to the legal convictions of the community and
in light of all the circumstances of the case, the defendant infringed the interest of the plaintiff
in an unreasonable manner.

Question 5

What are the three characteristics of the basic test for wrongfulness?

Answer 5

a. The balancing of interests
b. A delictual criterion
c. An objective criterion

Question 6

Consider the balancing of interest?

Answer 6

a. The nature of balancing process= the application of boni mores criterion entails the ex post facto balancing or weighing-up of, on the one hand, the interests which the defendant promoted by his act, and on the other, those which he infringed.
b. Factors= various factors may play a role in the process of determining the reasonableness or unreasonableness of the defendant’s conduct; these include the nature and extent of the harm; whether the harm was (subjectively) foreseen or reasonably foreseeable.

c. Influence of the Constitution and the Bill of Rights= both Constitution and Bill of Rights influence the boni mores criterion.
- the constitution = applies both vertically and horizontally and both directly and indirectly
- the bill of rights= the courts have a duty to develop the boni mores as part of the common law in accordance with the spirit, purport and objects
Conclusion= the boni mores criterion is a juridical yardstick that gives expression to the prevailing convictions of the community in terms of right or wrong.

Question 7

Consider A delictual criterion?

Answer 7

Boni mores criterion is concerned with what particular act or form of conduct is delictually wrongful (e.g. not religiously or morally wrongful).

Question 8

Consider an objective criterion?

Answer 8

According to the Schultz and Butt, it was accepted that the viewpoint of legal convictions of legal policy makers of the community, such as legislature and judges.
-subjective factors normally irrelevant= The objective nature of the boni mores test appears from the fact that subjective factors, such as the defendant’s mental disposition, knowledge and motive, normally do not play a role in determining wrongfulness.

Question 9

How is the bono mores practically applied?

Answer 9

The bono mores test is the basic norm for wrongfulness BUT
seldom necessary to apply the general and vague boni mores test to determine wrongfulness.
More practical tests have developed to indicate wrongfulness.

Question 10

What is the effect of a factual infringement?

Answer 10

It indicates wrongfulness (prima facie wrongfulness or presumption of wrongfulness)
The mere fact that a detrimental consequence has been caused provisionally indicates wrongfulness.

Question 11

Name 2 examples of practical application of the boni mores:

Answer 11

• infringement of subjective rights

- non-compliance with legal duty to act

Question 12

Do subjective factors ever play a role in deterring wrongfulness?

Answer 12

Yes, in certain situations subjective factors can play a role:
Improper motive (malice) - in the field of neighbour law,
competition law,
cases of pure economic loss where the defendant knew of subjectively foresaw that the plaintiff would suffer loss.
Omissions.

Question 13

Are all factual infringements prima facie wrongful?

Answer 13

No
Examples of infringements that are NOT prima facie wrongful:
Infringement by way of omission
Non-physical personality infringement (e.g. defamation, privacy, dignity)

Question 14

Is a prima facie wrongful infringement necessarily conclusively wrongful?

Answer 14

No
Where eg the causing of damage is excused or justified (ground of justification is present)
Ground of justification = lawful infringement of interest e.g. private defense, consent, necessity.

Question 15

On a practical level, the bono mores criterion acts as a supplementary test for wrongfulness. Name the two situations where it will act as a supplementary test:

Answer 15

1) Where the wrongfulness of the defendant’s conduct does not appear from the violation of an existing delictual norm or the lawfulness does not appear from an existing ground of justification. (See examples p. 48 - 49)
2) For purposes of refinement in assessing wrongfulness in borderline cases - e.g. whether defendant transgressed the limits of self-defence. (P. 50)

Question 16

How was the boni mores test used in the Telematrix v ASA case?

Answer 16

Harms JA was of the opinion that wrongfulness should not be determined according to breach of a legal duty. He was convinced that the ASA had a duty to act without negligence, and in a fair and reasonable manner, when making the decision to pull two advertisements of the plaintiff. This did not make their act wrongful, Public or legal policy considerations required that there should be no liability and that the ASA should be afforded immunity against claims of such nature. See p. 49 discussion.

Question 17

Define wrongfulness:

Answer 17

It lies in the infringement of a legally protected interest (or interest worthy of protection)
In a legally reprehensible way

Question 18

What does it mean to say: Wrongfulness should be determined ex post fact?

Answer 18

Diagnostically
Objectively, taking into account all the relevant facts and circumstances that were really present
AND all the consequences that REALLY followed

Question 19

Explain the dual investigation of wrongfulness:

Answer 19

1) Was a legally recognised interest infringed? (Harmful result)
2) Did the infringement occur in a legally reprehensible manner?

Question 20

Can an act be wrongful without it having a consequence?

Answer 20

No. An act on its own without reference to a consequence, is usually not wrongful.

Question 21

Explain the meaning of: “An act and its consequence are always separated by TIME and SPACE”:

Answer 21

An act in delict is only harmful when a harmful consequence follows. The “gap” between the act and the consequences could be negligible (very small) or significant (time lapse).
See discussion: Pinchin v Santam Insurance (use of Nasciturus Fiction); subsequently RAF v Mtati (Not necessity to use the NF, as act and consequence separated by time and space).

Question 22

What factors play a role in in the process of determining the reasonableness or uneasonableness of the defendant’s conduct?

Answer 22

1)Nature and extent of the harm
2)Whether harm was subjectively foreseen
Or reasonably foreseen
3)The possible value to the defendant or to society of the harmful conduct
4)The cost and effort of steps that could have been taken to prevent the loss
5)The degree of probability of the success of preventative measures
6)Nature of relationship between the parties
7)Whether cost of preventing harm would been proportional to the harm the defendant could suffer
8)The motive of the defendant
9)Economic considerations
10)Legal position in other countries
11)Ethical and moral issues
12)Public interest and public policy (Telematrix) - including values underpinning Bill of Rights

Question 23

Name: Sakhile

Answer 23

Theme: Introduction to wrongfulness and the boni mores criteria