PVL3703 ASSIGNMENT 1 2021

PVL3703 ASSIGNMENT 1 2021 (a) In Bergrivier Municipality v Van Ryn Beck, 1 the SCA could not find an act of wrongfulness by the municipality, and considered the municipality’s other sociological concerns, especially relating to more indigent communities, such as those in informal settlements. According to the court, although when one is told, in isolation, that a ratepayer and resident of a small town had his house flooded on three occasions encompassing two successive two-year intervals and sustained ostensible extensive damage to his house, due to the municipal stormwater drainage system being unable to cope with heavy rainfall, one’s instinctive reaction is that the local municipality should be held liable to compensate such resident for the damage caused by the last flood. However where the municipality is restricted by budgetary and sociological concerns and where it has demands in relation to indigent, informal settlement communities, one might rightly ask how a court can hold that the legal convictions of the community compel the conclusion that the municipality should be held liable. The court held, concerning wrongfulness, that such a finding would result in an onerous duty on municipalities generally, and would ignore the budgetary priorities of the Bergrivier Municipality specifically. The court also found that the respondent had failed to show that the municipality could, by relatively cheap means, have brought about improvements to the storm-water drainage system that would have averted the flood. In its view, as regards negligence, Van Ryn Beck had failed to establish what could be foreseen by the municipality, and what steps it could have taken to prevent the flooding. The court dismissed the appeal with costs. (b) Wrongfulness is a necessary, distinct requirement for delictual liability which should be determined ex post facto, that is, taking into account all the facts and circumstances present and consequences that actually ensued.2 In cases 1 Bergrivier Municipality v Van Ryn Beck 2019 (4) SA 127 (SCA) 2 Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict Chapter 3 para 1. This study source was downloaded by from CourseH on :10:12 GMT -05:00 This study resource was shared via CourseH of liability for an omission, wrongfulness is determined by questioning whether according to the legal convictions of the community, the defendant had a legal duty to prevent harm.3 There is no general duty to prevent harm by positive conduct. One must determine according to the circumstances of the case whether there was a legal duty to act positively. If it is found that the defendant had a legal duty and failed to comply with that duty, without the applicability of a ground of justification, then that failure is unreasonable, contra bonos mores and therefore wrongful.4 Certain factors have come to the fore over time and are indicative of a legal duty to act positively. These are prior positive conduct; control of a dangerous object; knowledge and foresight of possible harm; rules of law; a special relationship between the parties; assumption of a particular office; a contractual undertaking in respect of the safety of a third party; and the creation of an impression that another will be protected. There may be an interplay of the above-mentioned various factors which may indicate that the omission is wrongful. In the end, we are concerned with whether or not the defendant’s failure to act in the particular circumstances was reasonable and balancing or weighing of interests takes place.5 The test for wrongfulness should not be reduced to a “legal duty not to act negligently” as this creates the impression that the legal duty deals with the question of whether the defendant acted negligently, thereby conflating wrongfulness and negligence. This formulation of the test for wrongfulness mirrors the English law “duty of care” concept which in effect combines the test for wrongfulness and negligence and which was expressly rejected by the SCA.6 Most of wh