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PVL3703 assignment solution,distinction pass
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- University Of South Africa (Unisa)
assignment solutions, definite distinction
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LAW OF DELICT ASSIGNMENT 01STUDENT NUMBER 64289117
IDENTITY NUMBER 9908085812084
Question 1
a. According to the supreme court, the plaintiff has fallen short of discharging the onus to
establish the existence of the alleged duty in law on the part of the defendant or its negligent
breach/wrongfulness. Furthermore, it is indeed so that if a plaintiff who bears the onus
establishes a prima facie case, an evidential burden falls on the defendant to lead evidence
to rebut it, failing which the prima facie case will be sufficient to establish the claim. The
mere fact that the drainage system was unable to cope with the flood in question and that
the plaintiff's property was damaged as a result does not, also the fact of the defendant not
putting in place a chute or taking other measures that averted the harm, does not establish a
prima facie case. The respondent’s claim against the Municipality is essentially one based on
omission. As pointed out by J Neethling and JM Potgieter, with reference to the decision of
this court in Minister of Safety and Security v Geldenhuys 2004 (1) SA 515 (SCA) at 528 that,
as a general rule, 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 a defendant to act
positively to prevent harm from occurring and that a defendant failed to comply with that
duty. While conceptually the inquiry as to wrongfulness might be anterior to the enquiry as
to negligence, it is equally so that without negligence the issue of wrongfulness does not
arise, for conduct will not be wrongful if there is no negligence. Depending on the
circumstances, it may be convenient to assume the existence of a legal duty and to consider,
first, the issue of negligence. It may also be convenient when the issue of wrongfulness is
considered first, to assume negligence. he obvious questions that arise are, what in these
unknown circumstances could reasonably be foreseen and what reasonable steps could have
been taken to prevent the flooding. These questions were not addressed. The Municipality
tendered evidence in support of its case, that it also could not be held liable for the flooding
and that to do so in the circumstances of the case, would be to impose too heavy a burden
on municipal authorities country-wide, which it substantiated, our law did not countenance.
The Municipality effected substantial changes to the storm-water drainage system in the
vicinity of the respondent’s property and particularly in relation to the intersection of De
Hoek and Buitenkant Streets. As to wrongfulness, it is determined objectively, taking into
account all the relevant facts and circumstances and the consequences that ensued. The
general norm to be employed in determining whether a particular infringement of interest is
unlawful, is the legal convictions of the community. In Lee, the Constitutional Court referred
with approval to the decision of this court in Minister van Polisie v Ewels 1975 (3) SA 590 (A),
where it was held that our law had reached the stage of development where an omission is
regarded as unlawful conduct when the circumstances of the case are of such a nature that
the legal convictions of the community demand that the omission should be considered
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