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PVL3702 CASE LAW SUMMARIES
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DISTINCTION GUARANTEED VERY GOOD NOTES INCLUDES PAST EXAM PAPERS WITH ANSWERS CASE LAW SUMMARY MCQ HEAVEN REVISION QUESTIONS AND ANSWERS
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Universiteit van Pretoria v Tommie Meyer Films1977 (4) SA 376 (T)
Doctrine of subjective rights
Subject-object relationship: right to a thing
Subject-subject relationship: others have a duty not to infringe rights
The court accepted the doctrine of subjective rights. The fundamental premise of this
doctrine is that wrongfulness consists of the infringement of a subjective right. All
people (legal subjects) are holders of subjective rights. The holder of a subjective
right has a right to something enforceable against other people.
This indicates the dual relationship that characterises every right: firstly, there is a
relationship between the holder of the right (legal subject) and the particular object of
the right (legal object);
Secondly, there is a relationship between the holder of the right (legal subject) and
all other persons (legal subjects). The first relationship is known as the subject-object
relationship and the latter as the subject-subject relationship.
For example, a legal subject has a right to his car (legal object) – the subject-object
relationship – enforceable against other persons (legal subjects) – the subject-
subject relationship.
The subject-object relationship provides the holder of a right with the power to use,
enjoy and alienate the object of his right; in other words, the holding of a right
confers powers of enjoyment, use and disposal in respect of a legal object.
The content and extent of these powers are determined and regulated by the rules
and norms of the law. In other words, the law determines how a person may use,
enjoy and alienate his legal objects. The limits or boundaries of a person’s rights are
therefore determined by the law.
The second (subject-subject) relationship implies that the holder of a right can
uphold his powers over a legal object against all other legal subjects and, as a
corollary, that a duty rests on all other legal subjects not to infringe the relationship
between the holder of a right and the object of his right. Thus every right has a
correlative duty: if I have a right to a thing, other persons have a duty not to infringe
my right.
,Minister van Polisie v Ewels 1975 (3) SA 590 (A)
596
Wrongfulness as a breach of legal duty.
Test for determining wrongfulness of an omission:
An omission is wrongful if the defendant is under a legal duty to act positively to
prevent the harm suffered by the plaintiff. Legal duty exists if it is reasonable to
expect of the defendant to have taken positive measures to prevent harm
Prior conduct as requirement for liability for omission
Prior conduct or control of a dangerous object may be a factor from which a
conclusion of wrongfulness may be drawn, but it is not an essential prerequisite for
wrongfulness.
An omission is seen as wrongful conduct when the circumstances of the case are
such that the omission does not only elicit moral indignation but the legal convictions
of the community also require the omission to be regarded as wrongful, and the
resulting harm to be compensated by the person who omitted to act in a positive
manner. Duty of the policeman to prevent assault on the plaintiff.
‘‘As point of departure it is accepted that there is no general legal duty on a
person to prevent the suffering of a loss by another’’
As a general rule, a person does not act wrongfully for the purposes of the law of
delict if he omits to prevent harm to another person.
Thus, the point of departure is that a person is generally not liable where his
omission or omissio – his failure to act positively to prevent loss – factually infringes
the interests of another.
Omissions are therefore not prima facie unlawful, but rather lawful (except where, in
those cases of omissions causing physical harm, a “pre-existing duty” is already
present,
for example the failure to provide safety equipment in a factory or to protect a
vulnerable person from harm; in such exceptional cases the omission will be prima
facie wrongful, like positive conduct causing physical harm).
Liability follows only if the omission was in fact wrongful, and this will be the case
only if, in the particular circumstances, a legal duty rested on the defendant to act
positively to prevent harm from occurring (“to take preventative steps”) and he failed
to comply with that duty.
The question of whether such a duty existed is answered with reference to the
flexible criterion of the legal convictions of the community and legal policy.
,Ex parte Minister van Justisie: in re S v Van Wyk
1967 (1) SA 488 (A)
Private defence
Question: Whether a person may protect his property in defence by killing
attacker.
Normally the law values life more highly than property.Van Wyk set up a gun in his
shop to protect property. Shot and killed burglar. Van Wyk succeeded with defence.
Van Wyk tried all other options before setting the trap-gun. Court found that it could
not reasonably expect him to sleep in his shop to protect property.
The boni mores criterion on its own is often too vague to provide a rational yardstick
for the determination of wrongfulness in a specific situation, eg in cases of unlawful
competition where a particular concretisation of the boni mores test may be found in
the so-called competition principle
it is clear that the threatened interest need not necessarily be valuable. The value of
the interest threatened may, however, be a factor in determining whether the bounds
of defence have not been exceeded: very drastic acts of defence in protecting
property of very little value may not be justified under defence. Moreover, there
is no reason why the identity of the thief must be unknown. Knowledge or ignorance
of the thief’s identity may, however, be considered in determining whether the
defensive action was in fact necessary.
The court had to decide
whether one may in principle rely on the doctrine of defence when one has
killed or injured another in order to protect one’s property and, if the
answer to this is in the affirmative,
whether the bounds of defence were exceeded in casu. All the judges
agreed that the answer to the first question should be in the affirmative.
After a thorough investigation of the works of the writers on the Roman-
Dutch law, Steyn CJ came to the conclusion that killing in defence of
property is undoubtedly legitimate when the physical integrity or life of the
person threatened is in danger (496).
When there is no danger to life or physical integrity, injury to the attacker
was regarded by early writers as justifiable. Opinions differed widely,
however, on the question of whether killing was justifiable in the absence
of personal danger. The chief justice preferred the view that killing is
legitimate in particular circumstances.
The objection to the justification of killing in order to protect property is
normally based on the imbalance between the interests threatened and
, those attacked in defence: the law values a man’s life more highly than his
property.
However, the chief justice was of the correct opinion, as already explained
(supra 113–115), that commensurability is not a valid requirement for
private defence. On the second question – whether Van Wyk exceeded
the bounds of defence – the judges of appeal had differences of opinion.
The cardinal question, which must be answered in order to determine
whether someone has exceeded the bounds of defence, is whether the
steps actually taken by him constituted the only reasonable method of
warding off the attack (supra 112–113).
Van Wyk set up a gun in his shop to protect his property against thieves,
who had been a persistent problem in the past. A shot from this gun killed
a burglar and Van Wyk was prosecuted for murder.
The question was whether he could succeed with defence as a ground of
justification. The majority of the judges decided that the setting-up of the
gun was indeed the only reasonable possibility if Van Wyk wished to
protect his property: Van Wyk could not reasonably have been expected to
sleep in his shop every night; burglar-proofing, night-watchmen and
watchdogs had proved ineffective; the police could not guard the shop,
and an alarm system would have been useless.
Further, Van Wyk had not set up the gun in such a way as to demonstrate
any motive to kill. He had also put a notice warning of the danger on the
door of the shop. All these circumstances suggested that Van Wyk did not
exceed the bounds of defence.
Rumpff JA motivated his minority view that the bounds of defence had
been exceeded as follows: as point of departure he accepted that the
reasonableness of Van Wyk’s defensive act would have to be determined
on the same basis as if Van Wyk himself had fired the shot at the moment
when the gun went off (504–505).
The judge based his argument on the premise that one may not do
indirectly what one may not do directly. On this basis the judge stated that
if Van Wyk had been present himself he would first have had to warn the
deceased and, if the warning had been ignored, could only legitimately
have wounded him in the leg, and not shot him in the hip.
According to the judge Van Wyk had not taken adequate steps in casu to
warn anyone who might break in against his “robot”, and therefore he had
exceeded the bounds of defence. This approach of Rumpff JA is open to
criticism. If one finds on the basis of the facts that the only reasonable
possibility of warding off potential thieves is to set up a gun, then it is
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