Law of Delict Second Semester
Liability for an Omission
Loubser & Midgley: Hoofstuk 14 / Chapter 14
Minister van Polisie v Ewels 1975 (3) SA 590 (A)
Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA)
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
Van Eeden v Minister of Safety and Security [2002] 4 All SA 346 (SCA)
Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA)
Introduction
Function of the LOD (always keep in mind)
o Corrective justice v distributive justice
Corrective justice: D who wrongfully + culpably caused P harm, must pay compensation
Delict aimed at correcting wrongs through the payment of money
Distributive justice: Where someone wronged another, but is unable to compensate,
compensation must come from someone other than the wrongdoer
E.g. Road Accident Fund
Context
Liability for an omission is more restricted than that for a commission, this being due to public policy
It would be economically and socially unduly restrictive to enforce a wide and general duty to prevent
harm to others and could involve potentially indeterminate delictual liability
o Van Duivenboden:
Reluctance to impose liability for performance is informed by a laissez faire concept of
liberty entitling individuals to mind their own business
Inequality exists where imposing liability on one person who fails to act where there
may be others would might be equally at fault
Protection of equality, personal freedom and privacy bolsters the inhibition against
imposing legal duties on private citizens
Philosophical foundations and policy considerations
o Individualistic, capitalist society
The type of society from which this principle hails
If I am allowed to conduct my business affairs and cause my competatitor PEL, it is a
good thing, because then the cost will be lower and beneficial to society at large
o Socio-economic reasons
o Potentially indeterminate liability
o Inequality of imposing liability
o Law of delict v normal law
,Historical Development
Roman Law
Casuistic system with no general liability for omissions
Resolved cases on a case by case basis and did not rely on general principles
Mere failure to act positively to prevent harm didn’t lead to delictual liability under the lex Aquilia
The focus was more practical, solving problems on a case by case basis
o “People who dig pits to catch bears and deer are liable under the lex Aquilia if they dig such pits
where people pass and something falls in and is damaged, but there is no such liability for pits
made elsewhere, where they are habitually made. But this action is given only for good reason,
that is, if no warning was given and the claimant was unaware of and could not foresee the
danger; and many cases of this sort can be seen in which the claimant fails, if he could have
avoided the danger.”
Roman Dutch Law
General position: no liability unless there was a positive legal duty to act on the defendant
When does one have the legal duty to prevent harm?
o Voet:
Must continue with RL position
Mere failure to prevent harm doesn’t lead to delictual liability
Exception: actual in libera causa or acceptance & failure to act
Can only say that there was a legal duty if he through his own prior conduct,
created the harm and he did not prevent the danger from materializing
Where the defendant accepts the duty and fails to act, he can be held liable
o Matthaeus: culpa is all embracing
Doesn’t care if caused by an omission or positive conduct, the only measure for liability
if culpa (negligence)
If loss is negligently caused- must be delictually liable
Modern SA Law
Decision of Halliwell v Johannesburg Municipal Council decided whether SA followed the Matthaeus or
Voet
o Facts
Plaintff was riding a horse on the road on JHB on which there were cobblestones and
tramlines that spilt oil on the cobblestones slippery
The horse slipped and the plaintiff was injured
Sued municipality for compensation, as they failed to prevent damages in that they
failed to ensure that the cobblestones were not slippery
At this stage, there was a defence against municipalities can’t be held liable
, Had to develop delictual liability can only hold the municipality if they
created danger through their own conduct
o Legal Question: Can the municipality be held liable for omission?
o Ratio Decidendi
Followed by Voet: If M had created a new source of danger & if it fails to take measures
to prevent the danger, you can be held delictually liable
Defence: The injury complained of had really been caused by previous acts of
construction or repair
If M constructs or repairs so as to construct a new source of danger which
would otherwise not have existed, M must take the steps to guard against that
danger
Any omission to discharge this duty would entail liability in damages to any
injured person
“[T]he general principle adopted [is] that a road authority which is empowered but not
obliged to repair the public thoroughfares is not liable for damages resulting from mere
failure to do so. But in none of the cases has the element been present which is such an
important feature of this inquiry, namely, the circumstance that the injury complained of
has been really caused by previous acts of construction or repair. And applying the
general principles of our law to that circumstance, I think that where a road authority
either constructs or repairs a street in such a way as to introduce a new source of
danger which would otherwise not have existed, then it must take due steps to guard
against that danger […] Any omission to discharge this duty would entail liability in
damages to any injured person to whom it was owed. The omission would be
connected with the positive act which originated the danger, and the fault would be not
one of omission alone, but of omission and commission combined.”
o Judgment
Mere omission- no liability unless M created the danger and didn’t ensure that danger
doesn’t materialise
Doctrine of prior conduct
o Cape Town Municipality v Paine: “Mere omission did not under the Lex Acquilia constitute
liability; it only did so when connected to prior conduct”
o SA Railways Harbours v Estate Saunders
Facts not necessary
Ratio
Court applied the prior conduct doctrine
o The phone call between employees of SARH where it was said that they
would go and fetch the trailer= prior conduct
o A dangerous situation was created by the prior conduct so i.t.o Haliwell,
they should be held liable
Criticism of application of the doctrine
, Gave rise to irreconcilable decisions the doctrine applied to similar facts but
came to different conclusions
o They are stretching Haliwell beyond reasonable limits
o Saying one will come and collect something is not prior conduct as
envisaged in Haliwell
o The basis of the decision should have been the contract rather than
stretching prior conduct doctrine
o In applying this doctrine of prior conduct, different judges are coming to
different decisions by applying the doctrine no legal certainty
Solution
o Van der Heever’s proposal
“The doctrine of previous conduct is not a harmless shibboleth;
it has caused confusion and led our courts to give irreconcilable
decisions unless we find the reconciliation in pure casuistry.”
Culpa as the ultimate measure
Have to focus of elements of negligence
Appellant division rejects this
o Bernart & McKerron’s proposal:
Wrongfulness as the ultimate measure
Focus on elements of iniuria
Development of further exceptions
o Salva’s Fishing Corporation (Pty) Ltd v Maweza
Facts
SF employer did nothing to rescue employees who were in trouble whilst on a
fishing expedition and the employees died
Failure to act to search for these persons = an omission
Maweza (the wife of one of the deceased employees) filed suit
Appellant division saw an opportunity to develop the law
“[A]n omission does not entail delictual liability where there is no legal duty to
act, that generally speaking such a duty will arise from a prior act or from prior
conduct, but that it could also arise from some other source, one such possible
source being a statute […] But there is a variety of circumstances, some of them
unconnected with prior conduct, which impose the duty to act in order to avoid
reasonably foreseeable loss to another. The circumstances which will give rise to
such a duty may differ according to the conceptions prevailing in a particular
community at a given time.”
There has to be a legal duty to act
Generally, one need prior conduct, but the court said it can arise from another
source e.g. having a legal duty i.t.o statute
o Could previously only be liable for prior conduct
