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PVL3703 - ASSIGNMENT 02 - 2023 SEMESTER 01
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- University Of South Africa (Unisa)
PVL3703 - ASSIGNMENT 02 - 2023 SEMESTER 01
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PVL3703 - ASSIGNMENT 02 - 2023SEMESTER 01
Illegalness is the violation of a protected right in a legally reprehensible manner / in
violation of a legal norm. The main norm/criterion of illegality is the good morals/legal
beliefs of the community. The test is objective, based on adequacy, and must reflect
the values of the Constitution. (Carmichele case). Community law convictions should
be seen as legal convictions of policy makers in Community law, such as the
legislature or Justices Schultz v. Butt. First, it must be determined whether the
respondent's action was in fact the cause of an adverse effect on another person.
Second, it must be determined whether the damage was caused unreasonably or
illegally.
Since this was a similar case to the previous situation in A. F. A. vs BLUE CRANE
ROUTE MUNICIPALITY1 In paragraph [4] it was decided that in cases where the
defendant is a "licensee" within the meaning of the Electricity Regulation Act 4 of
2006, it is not at issue: he is therefore "the holder". a license granted or deemed to
have been granted by the Regulator under this Act.”1 Section 25 of the Act provides:
“In any civil proceeding brought against a licensee arising out of damage caused by
induction or electrolysis or otherwise by electricity generated , transmitted, or
disseminated by a Licensee, such damage or loss shall be deemed to be caused by
the negligence of Licensee unless there is credible evidence to the contrary.
Article 25 of the law leads to a certain reversal of the burden. In Eskom Holdings Ltd
v Hendricks,2, a case involving the interpretation of Section 26 of the Electricity Act
41 1 , Scott JA ruled:3 “The effect of the section is therefore that Eskom bore the
burden of proving that it was not negligent or , if negligent, that there was no causal
link between the negligence and the damage suffered by [the plaintiff].
In the first investigation, the causal link must be established, as in the case of n Lee
v Minister of Correctional Services3 Nkabinde J generally explained the operation of
causality as a criminal element. She explained:7 “The starting point is to be clear
about what causality is. This adhesion element leads to two separate investigations.
The first is an objective examination of whether the negligent act or omission caused
the damage giving rise to the claim. If not, then the matter is settled. If this is the
case, then the second question arises, a legal problem. The question then is whether
the negligent act or omission is closely or immediately related to the damage to give
rise to legal liability, or whether the damage is too distant. This is called legal
causation.”
1 A. F. A. vs BLUE CRANE ROUTE MUNICIPALITY Case no.4784/2015 (unreportable) 86.pdf (saflii.org).
2 Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA). See too Pitzer v Eskom [2012] ZASCA 44 (29/03/2012)
paras 11-12.
3 Lee v Minister of Correctional Services 2013 (2) SA 144 (CC).
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