PVL3703 PORTFOLIO MEMO - MAY/JUNE 2024 - SEMESTER 1 - UNISA - DUE 14 MAY 2024 (DETAILED ANSWERS - DISTINCTION GUARANTEED!)

PVL3703 PORTFOLIO MEMO - MAY/JUNE 2024 - SEMESTER 1 - UNISA - DUE 14 MAY 2024 (DETAILED ANSWERS - DISTINCTION GUARANTEED!) QUESTION 1 Lerato while taking her routine morning jog in her neighbourhood was attacked by Jabulani's fierce rottweiler dog, named Butch. Butch charged at Lerato unexpectedly. Lerato, a licensed firearm owner, fearing for her safety shot and killed Butch. Bearing the aforesaid in mind, answer the following questions: 1.1 Discuss with reference to authority if Butch’s attack on Lerato qualifies as conduct for the purposes of delictual liability. (5) In terms of the South African law of delict, one person can claim compensation from another for harm suffered due to a wrongful act or omission1. The basic elements of delict are conduct, wrongfulness, fault, causation, and damage. In the case of Butch’s attack on Lerato, the following elements can be considered: 1. Conduct: Butch, the dog owned by Jabulani, attacked Lerato. This is an act of conduct. 2. Wrongfulness: The attack can be considered wrongful as it caused harm to Lerato. According to South African law, wrongfulness is a necessary condition for delictual liability2. 3. Fault: In terms of the law of delict in South Africa, a wrongdoer who caused damage can typically only be held delictually liable if there was fault (either in the form of intent or negligence) on his or her part4. However, in the case of animal attacks, the principle of ‘strict liability’ applies. This means that the owner of the animal can be held liable for their animal’s conduct, regardless of whether there was fault on their part4. 4. Causation: There is a clear causal link between Butch’s attack and the harm suffered by Lerato. 5. Damage: Lerato was harmed by the attack, which is the damage in this context. Therefore, based on these elements, Butch’s attack on Lerato can qualify as conduct for the purposes of delictual liability under the South African law of delict. The owner of the dog, Jabulani, could be held liable under the actio de pauperie, a form of strict liability in South African law pertaining to damage caused by domestic animals4. This is subject to the specifics of the case and the interpretation of the court. It’s always recommended to consult with a legal professional for advice tailored to the specific circumstances. 1.2 Discuss with reference to authority whether Lerato may rely on private defence or necessity as a ground of justification if Jabulani wants to hold Lerato delictually liable for killing his dog. Comprehensively distinguish in your answer between the two grounds of justification, referring to their definitions as well as all their requirements, before arriving at a conclusion. (20) In South African law, both private defence and necessity can be invoked as grounds of justification in a delictual liability case. Let’s discuss each of these grounds and their applicability to Lerato’s situation. Private Defence Private defence is a ground of justification that allows a person to use force to repel an unlawful attack on their person, property, or other legally recognized interests1. The conditions necessary to justify private defence should first be analysed according to the nature of the attack and second, according to the nature of the defence1. The key elements of private defence include: 1. The attack must be unlawful1. 2. The attack must be against a legal interest1. 3. The attack must have commenced or be imminent1. 4. The defence must be directed against the attacker1. 5. The defence must be necessary to protect an interest1. In Lerato’s case, she was under an unlawful attack by Butch, Jabulani’s dog. She used her firearm, which can be seen as a necessary means to protect herself from the imminent threat. Therefore, she may rely on private defence as a ground of justification. Necessity Necessity arises when a person is confronted with a choice between suffering some evil and breaking the law in order to avoid it2. It involves either breaking the law or harming an innocent party2. Necessity exists where a dilemma is brought about by a force of surrounding circumstances or human agency2. The key elements of necessity include: 1. There must have been actual danger to a legally recognised interest3. 2. The protected interest can be that of the defendant or another person3. 3. The danger must be present or imminent3. In Lerato’s case, she was in immediate danger due to the attack by Butch. She chose to break the law (by killing Butch) to avoid the harm. Therefore, she may also rely on necessity as a ground of justification. Distinguishing Between Private Defence and Necessity While both private defence and necessity can be invoked as grounds of justification, they differ in several ways. Private defence is directed at the attacker and is used to repel an unlawful attack1. On the other hand, necessity involves a choice between two evils and may affect the interests of an innocent third party2. In other words, private defence is reactive to an attack, while necessity is proactive in preventing harm4. In conclusion, Lerato may rely on either private defence or necessity as a ground of justification if Jabulani wants to hold her delictually liable for killing his dog. However, the final decision would depend on the specific circumstances of the case and the interpretation of the court. It’s always recommended to consult with a legal professional for advice tailored to the specific circumstances. 1.3 Would your answer to 1.1 and 1.2 above differ if it appeared that Jabulani had incited Butch to attack Lerato? Do not repeat all the differences between the two grounds of justification but substantiate your answer briefly with reference to your explanation of the differences in the previous answer. (5) Incitement by Jabulani If Jabulani had incited Butch to attack Lerato, it could potentially change the dynamics of the situation. Jabulani’s action could be seen as an unlawful act, making him potentially liable for the harm caused. However, Lerato’s actions could still be justified under private defence, as she was protecting herself from an imminent threat23456. 1.4 Assuming that Jabulani did not incite Butch and Lerato did not shoot and kill Butch but instead sustained severe bodily harm requiring medical attention as a result of the attack from Butch, what delictual remedy could Lerato rely on? Explain why you would advise her to use that particular remedy and how you would rate her likelihood of succeeding with the remedy. Discuss with reference to authority. (10) Delictual Remedy If Lerato sustained severe bodily harm requiring medical attention as a result of the attack from Butch, she could rely on the Aquilian action, a classic remedy for a delict in South African law1. This action is used when harm takes the form of patrimonial loss, such as medical costs and loss of income1. Given the circumstances, Lerato has a strong likelihood of succeeding with this remedy, as she can demonstrate that Butch’s attack was unlawful and caused her harm. QUESTION 2 Dr Naidoo, an obstetrician, was overseeing his patient Naledi during the delivery of her child Mandla at a private hospital in Tshwane. Mandla was a large baby, weighing in at 4,2 kilograms and Dr Naidoo used forceps to deliver Mandla. After birth, it was confirmed that Mandla suffered severe brain damage. Naledi after consulting with her legal practitioner was advised to institute a delictual action against Dr Naidoo. Naledi alleged that Dr Naidoo failed to perform a caesarean section which would have been the appropriate medical intervention under the circumstances and had he done so Mandla would not have sustained severe brain damage. Bearing the aforesaid in mind, answer the following questions: 2.1 With reference to authority, discuss the test/s the court will use to determine whether there was any wrongfulness in respect of Dr Naidoo’s conduct. Refer to the traditional as well as the recent tests for wrongfulness in your answer. (20) 2.1 Tests for Wrongfulness In South African law, wrongfulness is a necessary condition for delictual liability1. The court uses different tests to determine whether there was any wrongfulness in respect of a person’s conduct. Traditional Test The traditional test for wrongfulness is that of the boni mores, or legal convictions of the community1. This test has been described as an objective, reasonableness test and looks at whether the harm was caused in a legally reprehensible way1. Recent Test Recently, the courts have been using a new test for wrongfulness, which is the reasonableness of holding the defendant liable2. This test is a recent formulation of one variation of the test for wrongfulness2. It is used in cases where the defendant’s conduct was not necessarily unlawful, but it was unreasonable to the extent that it could be considered wrongful2. In the case of Dr Naidoo, the court would likely use both the traditional and recent tests for wrongfulness to determine whether his conduct was wrongful. The court would consider whether Dr Naidoo’s decision to use forceps instead of performing a caesarean section was in line with the legal convictions of the community (traditional test) and whether it was reasonable to hold him liable for Mandla’s brain damage (recent test). If Dr Naidoo’s conduct is found to be wrongful under these tests, he could be held delictually liable for the harm caused to Mandla. 2.2 With reference to authority, discuss the test/s the court will use to determine negligence on the part of Dr Naidoo. (20) Tests for Negligence In South African law, negligence is established if a reasonable person would have foreseen the reasonable possibility of harm and would have taken reasonable steps to prevent it happening, and the person in question did not do so. This test for negligence is straightforward and summarised in the frequently cited judgment of Kruger v Coetzee 1966 2 SA 428 A at 430 E-H. In the case of a medical malpractice claim, a medical practitioner diagnosing and treating a patient is expected to exercise the level of skill, care and diligence exercised at the time by members of the profession to which they belong. A deviation from that standard which causes harm results in culpability. In the case of Dr Naidoo, the court would likely use this test for negligence to determine whether his decision to use forceps instead of performing a caesarean section was negligent. The court would consider whether a reasonable obstetrician would have foreseen the reasonable possibility of harm (severe brain damage to Mandla) and would have taken reasonable steps to prevent it happening (performing a caesarean section), and whether Dr Naidoo did not do so. If Dr Naidoo’s conduct is found to be negligent under this test, he could be held delictually liable for the harm caused to Mandla. 2.3 With reference to authority, discuss the test/s the court will use to determine whether Dr Naidoo’s conduct was the cause of Mandla’s brain damage. Refer to the tests for factual and legal causation in your answer. (20) In the law of delict in South Africa, the court will use two tests to determine whether Dr Naidoo’s conduct was the cause of Mandla’s brain damage: the factual causation test and the legal causation test. Factual Causation The test for factual causation is the “but-for” test or the conditio sine qua non rule. This test asks whether the harm would have occurred “but for” the defendant’s conduct. In this case, the court will consider whether Mandla would have suffered brain damage but for Dr Naidoo’s decision to use forceps instead of performing a caesarean section. If the answer is no, then Dr Naidoo’s conduct is a factual cause of the harm. Legal Causation Legal causation, also known as remoteness, is used to limit liability to consequences which are reasonably foreseeable. The test for legal causation in South Africa is the reasonable foreseeability test. This test asks whether a reasonable person in the same position as the defendant would have foreseen the possibility of the harm occurring. In this case, the court will consider whether a reasonable obstetrician in Dr Naidoo’s position would have foreseen the risk of severe brain damage from the use of forceps in the delivery of a large baby. In conclusion, the court will apply these tests to determine whether Dr Naidoo’s conduct was the cause of Mandla’s brain damage. If both tests are satisfied, then Dr Naidoo could be held liable for the harm caused. However, it is important to note that these tests are just one part of the delictual action. Naledi will also need to prove wrongfulness, fault in the form of intention or negligence, and the occurrence of harm. Only if all these elements are present, can a delictual claim be successful. TOTAL PAPER: [100]