PVL3703_EXAM_PACK.

May/June 2015 Qn 1 The municipality of eThekwini is busy with excavations in the business center. The Municipal workers do not erect any barrier or warning signs in the vicinity of the excavations. Mrs. Ndlovu, who is near-sighted, falls into the excavations and sustains serious injuries. She wishes to institute a delictual action against the municipality. Was the conduct of the municipality wrongful? Discuss in detail. [15] The issue is whether the act of the municipality workers constituted wrongfulness? An act can usually be wrongful if it has some consequence. The determination of wrongfulness entails a dual investigation. Firstly it has to be ascertained whether the perpetrator’s act was in fact the cause of a harmful result to another person and secondly it must be ascertained whether the causing of harm took place in an unreasonable or legally reprehensible way. The first part of the investigation is easy to establish, however the second part of whether the causing of the harm took place in an unreasonable or legally reprehensible way this is dealt with by looking at the legal convictions of the community (boni mores) If a person’s conduct is contra boni mores that is to say if its contrary to the legal convictions of the community then that person would have acted in a wrongful manner. The court follows an objective test based on reasonableness, based on legal convictions of community and on all circumstances. The question asked is: Did the defendant infringe interest of plaintiff reasonably or unreasonably? Court must weigh conflicting interests in light of circumstances. Legal convictions of community are to be taken as the legal convictions of policy makers such as legislature and judges. Judge must define and interpret legal convictions of community with regards to rights, principles, court cases where convictions of community found expression. The following factors are considered the legal convictions of the community. These impute legal duties which when not followed constitutes an act of wrongfulness. These are: Prior conduct If a person has done something e.g. light a fire or a cigarette a legal duty arises to enable that no harm occurs from such conduct so one has to be sure the fire is out etc. By virtue of your prior conduct a legal duty arises to protect a third party from consequences of that conduct, failure which will result in a delictual liability arising from a wrongful act Control of a dangerous object or a thing A legal duty arises when one is in control of a dangerous object or thing to protect a third party from being harmed by that thing e.g. when one is in control of a gun or a bull dog. Failure to control that dangerous thing or object will constitute wrongfulness if that failure leads to a third party being harmed. Rules of law Certain statutes imputes legal duties on individuals for the protection of third parties and failure to follow these rules will constitute an act of wrongfulness Special relationship between parties A legal duty arises from different relation e.g. an employee, employer relationship, mother to child relationship and because of these special relationships a legal duty to protect either party in the relationship arises Particular offence Contractual undertaking for safety of a 3rd party