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Summary Aquillian action case summaries - (PVL3005F)
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  • Course
  • Delict (PVL3005F)
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  • University Of Cape Town (UCT)

Case summaries of the cases done in part 1 of the delict course, run by Prof. Fagan. All of these are to do with the lex aquillia. It covers core principles, summaries of the facts, and other important information. Notes made in 2023

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  • December 24, 2023
  • 8
  • 2022/2023
  • Summary

Subjects

  • aquilian action

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  • University of Cape Town (UCT)
  • Delict (PVL3005F)
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Aqullian Liability
Negligence Cases

Kruger v Coeztee 1966 [Appellate Divison]

Principle derived:

Test for determining liability based on negligence (2-step inquiry).

 Requirement a(ii) of the inquiry (whether the reasonable man would take steps and what steps) is dependent
on the facts of the circumstances.
o no hard and fast rule; i.e. a subjective inquiry
 Onus of proof= plaintiff to prove further steps could’ve been taken

Issue:
Can the defendant be held liable for negligence, where the harm-causing conduct took place on (near) his property
and with his knowledge?
- Was the defendant negligent, in the way that made him liable under the lex aquillia, for the plaintiff’s
damaged property?

Facts:
The plaintiff (Mrs. Kruger) was driving down the road in the early hours of dawn. The defendant (Mr. Coeztee) owned
horses, and the grazing camp right next to the main road. There was a tunnel being constructed at a river nearby,
and the council built a temporary road that went through the defendant’s camp. The drivers who used this road
often left the gate open. Mr. Coeztee complained twice to the council, but nothing was done.

The defendant’s gate was open and unattended, and his horses wandered onto the road that the plaintiff was driving
on. Her car was damaged after a collision with one of the horses.
Mrs. Kruger argued that Mr. Coeztee was negligent in not making sure the gate was closed; finding another grazing
camp for the horses; or constructing a motor by-pass that would allow his animals to remain locked away.

Holding and Ratio
No
Mr. Coeztee admitted that he was aware of the possibility of harm being caused by his horses leaving the camp.
However, he did not leave the gate open. He also tried to take steps to prevent this by going to the council. The
other suggestions by Mrs. Kruger come with a cost (or the tiresome, unrealistic burden of constantly standing at the
gate), and it’s unreasonable to expect Mr. C to bear this.
o i.e. The reasonable man might only go as far as laying a complaint (as he did).
a. Liability arises if a reasonable person in the position of the defendant would have-
(i) Foreseen the reasonable possibility that his conduct could injure [cause harm] to another’s property or
person, resulting in patrimonial loss; and-
(ii) Taken steps to guard against [prevent] such occurrence; and-
b. The defendant failed to take such steps.

_____________________________________________________________________________________________

, Ngubane v SA Transport Services 1991 [AD]

Principle derived:

The “reasonable steps taken” in a(ii) aren’t necessarily steps that prevent the foreseeable harm from happening
ever in any circumstances. [cost/ burden= emphasis here]

Van der Walt’s determination of reasonable precautions:
a. Degree or extent of the risk posed by conduct {P- the likelihood/ probability of harm occurring}
b. Gravity of the possible consequences if the risk of harm materializes {H- ‘seriousness of harm’}
c. Utility of the Conduct {B}
d. Burden of eliminating the risk of Harm {B}

Issue:
Does the defendant’s failure to take precautionary measures amount to negligence, where the precautions taken
could have prevented injury, but also could have resulted in other (less significant) adverse consequences? - In this
case, making the train run late.
- Was the defendant negligent, by not taking precautions to prevent injury?
- Can the failure to take precautions, where there was harm-causing conduct, ever be justifiable?

Facts:
The plaintiff (Mr. Ngubane) was trying to board a train in a very full station. People boarding and leaving the train
were shoving each other, and the plaintiff was jostled around. An employee of the defendant (a ticket man at SATS)
started the train before everyone had boarded- which is against regulation. There was a frenzy of people still trying
to get on board, and the doors of the train were still open. The train moved forward with a jolt, and amidst all the
commotion, the plaintiff fell out and landed underneath the train.

The plaintiff sued for damages as a result of injuries sustained, alleging the negligence of the defendant.

Holding and Ratio
Yes.
Regarding a(ii) of Kruger test- the steps taken by the reasonable man- Precautions should be taken when the cost/
burden is less than the possible risk and seriousness of harm. [i.e. B< P x H]

- There is greater utility in taking precautions (the burden/ cost isn’t as bad as the harm)

In this case, all the train conductor had to do was abide by the regulations and wait a little longer for everyone to
board the train- which costs nothing. Even if there is a risk of being late, this cost is nothing compared to the (almost
certain) very serious risk of injury.



Relationship between P and H
 There needs to be a likelihood/ probability (“reasonable possibility”) of the harm being caused- not just a
remote/slight chance. AND
The possible harm foreseen needs to be fairly substantial in nature –to take precautions (depending on B)

o If the possible harm was trivial, but very likely to occur, the reasonable man might not take precautions against
this, depending on the cost or difficulty of taking precautions.

o If the possible harm foreseen was very serious, if there is a slim chance of this happening, the reasonable man
probably wouldn’t take precautions.

,Balancing of B
 “Probability and gravity of the risk must be balanced against the utility [or burden of taking precautions] in every
case”
 It’s not justified to neglect a risk of a small magnitude, just because it’s small. The reasonable man would only
do this if there were a valid reason to do so.
o Weigh the risk against the cost/utility of precaution.

_____________________________________________________________________________________________

Mkhatswa v Minister of Defence 2000 [SCA]

Principle derived:

Liability for alleged wrongful omissions- based on Minister van Polisie v Ewels

1. first negligence must be established:
a(i) foreseen the reasonable possibility of harm – foresight of mere possibility is not sufficient

[Actual harm]= relative approach to the manner the harm occurred + **the harmed party
- relative = conduct is wrong and negligent in relation to the [actual] harmed person

2. In light of the established negligence – was there an unreasonable failure to act/ failure to act reasonably
Failure to act/ omission = wrong when there was a duty to act.
Duty to protect- intent; own decision, not liable
Duty to keep out; not in + they wouldn’t have been able to stop tank (not reasonable)

Issue:
i.e. vicarious liability for the (wrongful) omission of those in command + negligent sentries while acting in the course
and scope of their employment duties.

Needs to be proven: those in command were negligent in failing to guard against the reasonably foreseeable harm

Facts:
The appellant (Mr. Mkhatswa) lived in an informal settlement that was approx. 5km from a military base, where the
SADF was situated. The only soldiers allowed to keep their rifles after patrol duties are 6 guards which perform
rotational guard duty. The rest of the rifles are to be returned to the base and locked away. At the end of their day,
off-duty soldiers often went to a shebeen nearby.

On this particular day, some off-duty soldiers (the defendants) took a different route through the informal
settlement. There was an altercation between them and the patrolling residents (not including Mr. M) which led to
a fight, ending with the defendants fleeing the scene. The defendants then (unlawfully) took possession of a military
truck and rifles, and returned to the settlement for a ‘revenge attack’.

Mr. M was not involved in the earlier altercation, but was nonetheless forcibly removed from his home and severely
assaulted by the defendants.

The plaintiff provides that Minister= responsible bec:

1. Military base dilapidated perimeter + weapons were not secure. Allowing soldiers to enter/ exit + easily steal
weapons without being seen at/ going through main gate

, 2. No clear chain of command/ guidelines of discipline + leave granted = confused; allowed to go to shebeen
3. The sentries (guards at the gate) are not allowed to let soldiers leave without authorization/ take weapons

Holding and Ratio
No
o There is was no negligence regarding the wrongful conduct and theft of the soldiers (no reasonable foresight).
o No negligence, nor unreasonable failure to act, with regards to the sentries.
o Not within the scope of their duties = no vicarious liability on the conduct of the soldiers
o No foreseeability with regards to the ‘innocent’ people getting hurt [harm sufferer]

Liability for negligence – Soldiers
Reasonably foreseeable that they might leave?
Yes, probably to look for alcohol. Duties were completed; unexpectedly had to stay at this base longer than initially
planned; just been paid + no specific instructions given to stay at the base.


Reasonable foresight of a violent altercation?
Yes. The people in that town don’t like military presence + aren’t really used to it (not a high-risk area). They could’ve
easily been discovered/ confessed while drunk, or confronted on the way back, resulting in an incident.


Reasonable foresight of the harm caused *NB* [Foresight that they would’ve returned township hours after the
original altercation for a revenge attack, and steal weapons + assault the wrong people]
No_ so= no fault. Can’t try prevent what couldn’t be anticipated/ foreseen.
o The defendants were (in some respects) excellent_ disciplined and experienced soldiers; Unexpected conduct
from them.
o No previous incidents of misusing weapons that could’ve alerted/ warned commanders
o There are sentries at the gate to guard vehicles + ordered to watch weapons


Vicarious Liability
Sentries on duty (Negligent/ Unreasonable failure to act)
No_ = no negligence or unreasonableness in letting the soldiers go
o The soldiers slipped through the dilapidated perimeter, so the sentries didn’t see them with weapons
o Even if the soldiers saw them leave earlier on (first time), there were no instructions for them to stay at the
base. I.e. no reason why they should be stopped from going out.

 Failure to act/ omission can only be wrong when there was a duty to act.

 The soldiers= off-duty; not acting in the course and scope of their duties
 If the sentries chose to help/ associate themselves with the odd-duty soldiers, this was an intentional act of their
own accord – and the employer can’t be held liable for such conduct.

EMOTIONAL SHOCK [PUSHED THE BOUNDARIES IN TERMS OF THE RELATIONSHIP + THE FACT THAT THE PRIMARY
VICTIM WASN’T EVEN SERIOUSLY INJURED]
- Negligence in relation to the plaintiff (emotional shock victim) also has to be proven

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