PVL3703
EXAM MEMORANDUM
23 OCTOBER 2023
QUALITY ANSWERS
QUESTION 1
1.1 Conduct is defined as a voluntary human act or omission. “Voluntary” means that the person must
be able to control his muscular movements by means of his will. The act of the wrongdoer must be
voluntary to give rise to delictual liability. By raising the defence of automatism, a defendant attempts to
show that, according to the law, he didn’t act. Defendant may argue that the conduct complained of
doesn’t satisfy the requirement of voluntariness. He relies on the defence of automatism - that he acted
mechanically.
Conditions that may cause a person to act involuntarily as they render him incapable of controlling his
bodily movements: absolute compulsion (vis absoluta), sleep, unconsciousness, fainting fit, epileptic fit,
serious intoxication, blackout, reflex movements, strong emotional pressure, mental disease, hypnosis,
and a heart attack.According to Molefe v Mahaeng, the defendant does not bear the onus to prove that
he was in a state of so-called sane automatism. The onus is on the plaintiff to prove that the defendant
acted voluntarily. In the Du Plessis case, X (72) was charged with negligent driving as he had injured a
pedestrian. He experienced a blackout due to low-blood pressure. He was found not guilty. If we apply
these principles to the given facts, Tumelo had been receiving medical treatment for a diagnosed
condition of insomnia, but failed to take his prescribed medication on that particular occasion. A person
can’t rely on automatism if he intentionally placed himself in a mechanical state (actio libera in causa).
Actio libera in causa: Defence of automatism won’t succeed if defendant intentionally created the
situation in which he acts involuntarily in order to harm another. The defendant (Lethabo) will be held
liable for his culpable conduct in creating the state of automatism which resulted in damage to the
plaintiff (Zanele).
Defendant may not successfully rely on the defence of automatism where he was negligent regarding
his automatic “conduct”. Where the reasonable man would’ve foreseen the possibility of causing harm
while in a state of automatism, eg. in Victor case, X was convicted of negligent driving despite causing
the accident during an epileptic fit, as he’d been suffering fits for 13 years and the reasonable man
would’ve foreseen the possibility of causing harm while in a state of automatism. In this case, X knew he
may suffer an epileptic fit and still drove a motor vehicle.
Automatism doesn’t mean that there’s no voluntary act whatsoever by the defendant which caused the
damage, but only that the conduct in question wasn’t voluntary. Only the voluntary act closest to the
harmful consequence is of relevance, and it’s therefore unnecessary to consider prior voluntary acts.
According to Van der Merwe and Olivier, automatism does not really exclude the element of conduct in
, a delict, but rather wrongfulness or fault. This view may be illustrated with this eg: X buys a knife which
he keeps at his bedside when he retires at night. One night, X dreams that he’s being attacked. While
still half asleep, X grabs the knife and wounds Y (who sleeps on a bed next to him). According to Van der
Merwe and Olivier, the stabbing with the knife wasn’t a voluntary act, but that there are other (prior)
voluntary acts on X’s part which also caused Y’s injuries. Eg. the mere fact that X went to bed with the
knife next to him, is, according to the authors, a voluntary act which caused Y’s injuries and it would thus
be incorrect to conclude that X didn’t in any way act voluntarily with regard to such injuries.
This voluntary conduct by X wasn’t accompanied by fault and he won’t be held delictually liable.
However, a person can’t rely on automatism if he negligently placed himself in a mechanical state
(Lethabo didn’t take his medication). Thus, Lethabo was probably negligent, or could even have had
intention in the form of dolus eventualis. Therefore, a reliance on automatism would fail in this case.
1.2 If this were Lethabo's first instance of sleepwalking, it might affect the assessment of his liability. The
law may take into account whether he was aware of his sleepwalking condition and had taken
reasonable precautions. If he had no prior knowledge of the condition, it might be more challenging to
hold him responsible for the incident. Again, the legal outcome would depend on the specific jurisdiction
and the facts of the case. To get a precise legal assessment of this situation, it's advisable to consult with
a qualified attorney who can provide guidance based on the relevant laws and precedents in your
jurisdiction.
QUESTION 2
According to the traditional approach to wrongfulness, the wrongfulness of conduct is in general
determined by using the criterion of the boni mores or the legal convictions of the community. This is an
objective test of reasonableness and involves a balancing of interests. According to such cases as
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 4 SA
938 (CC), [bone mores must reflect the values of the Constitution and Bill of Rights. Two practical
applications of the boni mores criterion are the criteria that wrongfulness consists of either the
infringement of a subjective right, as recognised in Universiteit van Pretoria v Tommie Meyer Films
(Edms) Bpk 1977 4 SA 376 (T); or (2) the breach of a legal duty as in Minister van Polisie v Ewels 1975 3
SA 590 (A) 597. The boni mores test and these two applications thereof constitute the traditional
approach to wrongfulness. In the given facts, the conduct of the mall management took the form of an
omission. According to the traditional approach, the wrongfulness of an omission is determined by
asking whether there was a breach of a legal duty, as stated clearly in Van Eeden v Minister of Safety
and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA). [ Causing of harm by
omission is not prima facie wrongful. According to the Ewels case, whether a legal duty rested on the
defendant must be determined with reference to the boni mores or legal convictions of the community
Factors that indicate that a legal duty was present, include: prior conduct (omissio per commissionem);
control over a dangerous object; knowledge or foresight of possible harm; rules of law; special
relationship between parties; particular office; contractual undertaking for safety of a third party;
creation of impression that interests of third party will be protected; danger of limitless liability;
vulnerability to risk of damage; interplay of factors. According to the more recent approach to
wrongfulness, wrongfulness is seen as the reasonableness of holding a defendant liable, as stated in
such judgments as as Telematrix (Pty) Ltd v Advertising Standards Authority; Crown Chickens (Pty) Ltd
t/a Rocklands Poultry v Rieck; and Le Roux v Dey. Policy factors play a cardinal role in determining
