Summary THE BEST ASSIGNMENT QUESTIONS AND ANSWERS PACK FROM 2020 TO 2022
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Course
Law Of Delict PVL3703 (PVL3703)
Institution
University Of South Africa (Unisa)
Book
Law of Delict
This is a top quality assignment pack which includes the questions and answers from 2020 up until 2022 - this pack guarantees a 100% pass rate and is user friendly
Question 1:
Read the judgment in Stedall and Another v Aspeling and Another 2018 (2) SA 75 (SCA) and write a
discussion of 500-1000 words. Your discussion should include:
• a discussion of what the court decided in respect of the wrongfulness element only in that case [a
maximum of 5 marks are awarded for the discussion of what the court decided in respect of the
wrongfulness element]; and
• a comparison of the court’s decision with that of Neethling and Potgieter in Neethling- Potgieter-
Visser Law of Delict on how wrongfulness should be established [a maximum of 5 marks are awarded
for providing your own comparison].
You can find the judgment in conventional law libraries, or online by conducting a google search or at the
website of the Southern African Legal Information Institute (SAFLII) at www.saflii.org.
For an example of how a judgment should be summarised, refer to the discussion of the judgment of the
Constitutional Court in Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies
Intervening) 2001 (4) SA 938 (CC) in Neethling, Potgieter and Visser Neethling-Potgieter-Visser Law of Delict
page 67 footnote 214. (10)
Answer 1:
Please note that no marks were awarded for providing the facts of the case. The facts are provided
hereunder merely as background information.
In Stedall and Another v Aspeling and Another 2018 (2) SA 75 (SCA), the respondents’ (the Aspelings’) two
and a half year-old daughter C, was involved in a swimming-pool accident on 27 July 2004. The accident
occurred at the appellants’ (the Stedalls’) home in Constantia, Cape Town. C’s mother had left her
unattended for a short period of time. During that time, C had made her way to the swimming pool and
was later found floating, face down, in the swimming pool. C did not drown but suffered severe, permanent
brain damage. The Aspelings then sued the Stedalls for their and C’s damages. The court a quo found the
Stedalls twice as culpable as C’s mother, in that they failed to secure the swimming pool’s gates. The court
a quo also found C’s mother negligent in failing to constantly watch over her. The Stedalls then appealed
to the Supreme Court of Appeal (hereinafter referred to as the “SCA”) disputing delictual liability on their
part (paras 1, 9, 11).
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, (a) Discussion of what the court decided in respect of the wrongfulness element
(Please note that a maximum of 5 marks were awarded for the discussion on what the court decided
in respect of the wrongfulness element).
The SCA held that the court a quo overlooked the requirement that wrongfulness is an essential and distinct
element required for delictual liability (paras 11, 13) [1]. The court referred to Country Cloud Trading CC
v MEC, Department of Infrastructure Development, Gauteng (2015 (1) SA 1 (CC) paras 20-21) and Le
Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) (2011 (3) SA
274 (CC) para 122) where the Constitutional Court held that conduct will be considered wrongful if it
would be reasonable to impose liability on a defendant for the harm suffered [1] and that reasonableness
depends on considerations of public policy, legal policy and constitutional norms [1].
Wrongfulness and negligence should not be conflated (para 13) [1]. The court stated (at para 14) that the
SCA had previously pronounced that “foreseeability of harm”, an essential requirement for negligence,
should not be a requirement in determining wrongfulness (see Country Cloud Trading CC v MEC,
Department of Infrastructure Development 2014 (2) SA 214 (SCA) para 27, and MTO Forestry (Pty) Ltd v Swart
N.O. 2017 (5) SA 76 (SCA) para 18) [1].
A negligent omission, is not necessarily regarded as prima facie wrongful (para 15) [1]. A negligent omission
is regarded as wrongful only “if it occurs in circumstances that the law regards as sufficient to give rise to a
legal duty to avoid negligently causing harm” (see Minister of Safety and Security v Van Duivenboden 2002
(6) SA 431 (SCA) para 12) [1]. With regard to an alleged negligent omission, the respondents should not only
have alleged that the negligent omissions had been wrongful, but should also plead and prove the facts on
which they rely on for holding the omission wrongful (para 17-19) [1].
A “legal duty” in this context means that the omission must not be wrongful and involves public and legal
policy, consistent with constitutional norms (see Hawekwa Youth Camp v Byrne 2010 (6) SA 83 (SCA) para
22) [1]. A “legal duty” must not be confused with the English law concept of “a duty of care” which
encompasses both wrongfulness and negligence (para 16) [1].
The question was whether the failure to secure the swimming pool gates, was indeed wrongful in the
particular circumstances [1]. The pertinent circumstances were: a parent brought their child to another’s
private premises on a visit; aware that there was a swimming pool on the premises; supervised the child;
became momentarily distracted; and during that time the child wandered off, fell into the swimming pool,
and sustained brain damage [2]. The Court held that the following factors must be considered: constitutional
norms, in particular the best interests of the child [1]; whether the failure to ensure that the gate was secured
evokes moral indignation [1]; whether the legal convictions of the community demand that it be regarded
as wrongful [1]; and whether it would be overly burdensome to impose liability (para 22) [1].
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