PVL3703
Assignment 1
Semester 1
Due March 2026
, The element of conduct in delict
In South African delict, conduct is the first essential element that must be established
before liability can arise. Conduct refers to human behaviour and may take one of two
forms, namely a positive act (commission) or a failure to act where there is a legal
duty to do so (omission) (Neethling, Potgieter and Visser, 2020).
For the purposes of Amir’s claim against Lalita, the question is whether Lalita’s
behaviour can legally be regarded as conduct recognised by the law of delict.
Conduct by commission
A commission is a positive, voluntary human act. The courts have consistently held
that conduct must be consciously directed by the will of the defendant (Neethling et
al., 2020).
In the given facts, Lalita boils water using a kettle in the communal kitchen. This is
clearly a voluntary human act. However, the act of boiling water itself is not wrongful
or harmful. Using a kettle in a shared kitchen is normal and lawful conduct and, on its
own, cannot ground delictual liability.
Therefore, Lalita’s positive act of boiling water does not constitute actionable conduct
for the harm suffered by Amir.
Conduct by omission
More importantly, the facts raise the issue of an omission.
An omission occurs where a person fails to act, and that failure only constitutes
conduct in delict if there was a legal duty to act positively (Minister of Police v Ewels
1975 (3) SA 590 (A)). South African law does not impose liability for all failures to act,
only for those where the legal convictions of the community (boni mores) require
positive action.
Assignment 1
Semester 1
Due March 2026
, The element of conduct in delict
In South African delict, conduct is the first essential element that must be established
before liability can arise. Conduct refers to human behaviour and may take one of two
forms, namely a positive act (commission) or a failure to act where there is a legal
duty to do so (omission) (Neethling, Potgieter and Visser, 2020).
For the purposes of Amir’s claim against Lalita, the question is whether Lalita’s
behaviour can legally be regarded as conduct recognised by the law of delict.
Conduct by commission
A commission is a positive, voluntary human act. The courts have consistently held
that conduct must be consciously directed by the will of the defendant (Neethling et
al., 2020).
In the given facts, Lalita boils water using a kettle in the communal kitchen. This is
clearly a voluntary human act. However, the act of boiling water itself is not wrongful
or harmful. Using a kettle in a shared kitchen is normal and lawful conduct and, on its
own, cannot ground delictual liability.
Therefore, Lalita’s positive act of boiling water does not constitute actionable conduct
for the harm suffered by Amir.
Conduct by omission
More importantly, the facts raise the issue of an omission.
An omission occurs where a person fails to act, and that failure only constitutes
conduct in delict if there was a legal duty to act positively (Minister of Police v Ewels
1975 (3) SA 590 (A)). South African law does not impose liability for all failures to act,
only for those where the legal convictions of the community (boni mores) require
positive action.
