PVL3703_ EXAM PACK_ PAST PAPERS & SOLUTIONS.

PVL3703_ EXAM PACK. PVL3703 - Law Of Delict. The Constitution is the supreme law of RSA. Chapter2 (BOR) is applicable to all law, incl Delict. Vertical & horizontal application of Const can take place directly or indirectly. Fundamental rights in terms of the Law of Delict: • Right to property • Right to life • Right to freedom and security of person • Right to privacy • Right to human dignity • Right to equality • Right to freedom of expression • Right to freedom of religion, belief, opinion • Right to assembly, demonstration, picket, petition • Right to freedom of association • Right to freedom of trade, occupation, profession Not every delict is necessarily a constitutional wrong. Constitutional remedies are aimed at affirming/enforcing/protecting/vindicating fundamental rights and deterring future violations of Ch2. Write brief notes on the indirect application of the BOR to the law of delict (5) Indirect application is implemented/applicable eg to open-ended/flexible delictual principles, namely: • Boni mores test for wrongfulness • Imputability test for legal causation • Reasonable person test for negligence • Policy consideration eg reasonableness, fairness and justice The act 7. Define an act Conduct is prerequisite for delictual liability. Conduct is a voluntary human act or omission. 8. Enumerate the requirements of an act and apply them to practical factual examples - Where a human uses an animal as an instrument to a commission a delict, a human act is still present. - A juristic person acts through its organs: an act performed by or at the order if or with the permission of a director, official or servant of a juristic person in the exercise of his duties or functions in advancing or attempting to advance the interests if the juristic person, is deemed to have been performed by the juristic person. - Voluntariness implies that the person is question has the mental ability sufficiently to control his muscular movements. - Voluntariness does not mean that a person must have willed or desired his conduct. GR Tutorials Page 2 of 50 web: email: Tel: 1/9 cell: 3 Page | 3 3 9. Explain the requirements of the defences of automatism and apply them to practical factual examples - This defence suggests that the person acted mechanically. - The following conditions may cause a person to act involuntary in hat they render him incapable of controlling his bodily movements: - absolute compulsion (vis absoluta- exerted by human agency or through forces of nature), - sleep, - unconsciousness, - a fainting fit, - a epileptic fit, - serious intoxication, - a blackout, - reflex movements, - strong emotional pressure, - mental disease, - hypnosis - a heart attack and certain other conditions. Relative compulsion ( vis compulsive- no choice) - The defence of automatism will not succeed if the defendant intentionally created the situation in which he acts involuntarily in order to harm others. - The defendant will not be able to successfully rely of the defence of automatism where he was negligent with regard to his automatic conduct- where the reasonable man would have foreseen the possibility of him causing harm while in a state if automatism. - Where the automatism is not a consequence of mental illness the onus is on the plaintiff to prove that the defendant acted voluntarily and therefore not mechanically - If a defendant raises automatism resulting fro mental illness, the defendant will probably bear the onus to prove the absence of such conduct - Automatism does not mean that there is no voluntary conduct whatsoever by the defendant which caused the damage, but only that the conduct in question was not voluntary. 10. Briefly explain the difference between a commission and an omission - Liability for an omission is generally more restricted than liability for a commission. - Commission is an act performed while an omission is a failure to perform a certain act. - The law is hesitant to find that there was a legal duty on someone to act positively and so to prevent damage to another. - Omission is a failure to take any positive step whatsoever to prevent damage to other people. Wrongfulness 11. Describe the 2 steps involved in an inquiry into wrongfulness Dual investigation: GR Tutorials Page 3 of 50 web: email: Tel: 1/9 cell: 3 Page | 4 4 - Whether a legally recognised individual interest has in fact been encroached upon- the act must have caused a harmful result. - Legal norms must be used to determine whether such prejudice occurred in a legally reprehensible or unreasonable manner. Individual interest: an individual interest which is protected by law. . 12. Explain the relationship between wrongfulness and a harmful result, and apply this knowledge to factual examples An act is only delictually wrongful if it has as its consequence the factual infringement of an individual interest. In delict, the wrongfulness of an act is always determined with reference to its consequence. An act and its consequence are always separated by time and space. If one keeps in mind that the act and its consequences are separated in time and space, it is unnecessary to employ the nascituris fiction in order to grant a delictual action to a child who is born with defects resulting from pre-natal injuries 13. Explain what is meant by the legal convictions of the community (boni mores) The bones mores test is an objective test based on the criterion of reasonableness. The basic question is whether according to the legal convictions of the community and in the light of all the circumstances of the case, the defendant infringed the interests of the plaintiff in a reasonable or unreasonable manner. 14. Name and explain 3 characteristics of the boni mores test for wrongfulness - The balancing of interests: entails the ex post facto weighing up of the interests which the defendant promoted by his act and those which he infringed. Factors influencing the balancing of interests-: 1) the nature and extent of the harm of the foreseeable or foreseen loss; 2) the possible value to the defendant or to society of the harmful conduct; 3) the cost and effort of steps which could have been taken to prevent the loss; 4) the degree of probability of the success of preventative measures; 5) the nature of the relationship between the parties; 6) the motive of the defendant and the knowledge on his part that his conduct would have caused harm; 7) economic considerations; 8) the legal position in other countries; 9) ethical and moral issues; all well as other consideration of public interest or public policy. The legal convictions of the community must now incorporate the constitutional values and norms and give effect to them - A delictual criterion: in applying the boni mores criterion in the law of delict, we are not concerned with what the community regards as socially, morally, ethically or religiously right or wrong, but whether the community regards a particular act or form of conduct as delictually wrongful. - An objective criterion: “the legal convictions of the community “must be seen as the legal convictions of the legal policy makers of the community, such as the legislature and judges. GR Tutorials Page 4 of 50 web: email: Tel: 1/9 cell: 3 Page | 5 5 15. Write brief notes on the role of subjective factors in the determination of wrongfulness Subjective factors DO NOT play a role in determining wrongfulness In exceptional circumstances. Such as “malice”, subjective factors do play a part in determining wrongfulness. Malice is the improper motive of the defendant; it will render his apparently reasonable conduct wrongful. The fact that the defendant actually knew, or subjectively foresaw that the plaintiff would suffer damages as a result of his conduct, is taken into consideration in determining wrongfulness Intent as a form of fault is a technical legal concept with particular requirements. Improper motive is a general concept suggesting merely a reprehensible purpose or objective on the part of the defendant. Intent may be present even in the absence of improper motive. 16. discuss, with reference to examples, the ways in which the boni mores can be applied in practice The practical application of the boni mores criterion - The fact of an actual infringement is already an indication of, or pointer to, the wrongfulness. - Practical applications of the general criterion of reasonableness - Conduct is in conflict with the legal convictions of the community- wrongful- if it infringes a subjective right or violates a legal duty. - There are 2 main ways in which the general boni mores or reasonableness criterion is applied as a supplementary test for wrongfulness: - in novel case where there is no clear legal norm or ground or justification involved; and - for purposes of refinement, especially in assessing wrongfulness in boarder line cases - If case law is silent of the liability or wrongfulness if a specific conduct, the general criterion is applied, and there is room in practise for the application of general criteria, including the doctrine of subjective rights. - The reasonable person therefore embodies or represents the legal convictions of the community. - In cases of necessity the defendant infringes the interests of an innocent third party in order to protect his own interest. The requirement of necessity, namely that the interest infringed should in general not be greater (or more valuable) than the interest protected. S v Goliath 17. explain the concept “subjective right” Universiteit van Pretoria v Tommie Meyer films (Edms) Bpk the court accepted the doctrine of subjective rightswrongfulness consists of the infringement of a subjective right. The holder of a subjective right has a right to something enforceable against other people. GR Tutorials Page 5 of 50 web: email: Tel: 1/9 cell: 3 Page | 6 6 18. describe how it is ascertained whether a subjective right has been infringed, and apply this knowledge to practical examples - There is a dual relationship that characterises every right- - Subject-object relationship: there is a relationship between the holder of the right (the legal subject) and the particular object of the right (the legal object); - The subject-subject relationship: relationship between the holder of the right and all other persons (legal subjects) - The holding of a right confers power to use, enjoy and alienate the object of his right. The content and extent of these powers are determined and regulated by the rules and norms of the law - The nature of a subjective right: is determined by the nature of the particular object of the right. Rights are categorised and named with reference to the different types of legal objects to which the rights relate - Because a subjective right has not yet been identified in every instance where damage is caused, it is expedient to determine wrongfulness in those cases by inquiring whether a legal duty has not been complied with, rather than trying to determine whether a right has been infringed - Real rights- things e.g. a car, a pen - Personality rights- aspects of personality e.g. physical integrity, hour - Personal rights- acts and performances e.g. delivery of a thing - Immaterial property rights- immaterial e.g. poem, work of art - Personal immaterial property rights- personal immaterial property e.g. Earning capacity, creditworthiness - Absolute rights can be enforced against all people. Whereas relative rights are enforceable against a particular person or persons - The existing subjective rights are not restricted. Subjective rights arise when the law recognises existing individual interests as being worthy of protection 2 conditions must be met before the courts will recognise an individual interest as a legal object in terms of the doctrine of subjective rights: 1) It must have value to the holder of that right 2) It must have a measure of independence that it is possible to dispose of it and to enjoy it 19. explain the relationship between legal duties and wrongfulness In cases of liability for an omission or from the causing of pure economic loss, wrongfulness is normally determined not by asking whether the plaintiffs subjective right has been infringed, but rather by asking whether the defendant had a legal duty to prevent the loss. 20. explain the relationship between boni mores and the breach of legal duty According to the boni mores criterion there is neither a general duty to prevent loss to others through positive conduct, nor a general duty to prevent pure economic loss.