FACULTY : Law

DEPARTMENT : Private Law

CAMPUS : APK

MODULE : LDL41Y0
Law of Delict

SEMESTER : First

EXAM : 16 July 2019

DATE : 16 July 2019 SESSION : 08:30-10:30

ASSESSOR(S) : Prof M Njotini

MODERATOR : Prof M Watney

DURATION : 2 HOURS MARKS : 70

NUMBER OF PAGES: 10 PAGES

INSTRUCTIONS:

1. Answer ALL THE SECTIONS.

2. Number your answers clearly

3. Answer section A and section B in separate books

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FSAO/SSAO MODULE CODE: LDL41Y0
2-

SECTION A

Question 1

1.1 Distinguish between a “delict” and “crime”. (2)

1.2 With specific reference to the case of Carmichele v Minister of Safety and
Security (Centre for Applied Legal Studies Intervening), discuss the
relevance of the Constitution of the Republic of South Africa, 1996 on the
law of delict. (4)

1.3 In terms of the law of delict, when does an act or conduct become
delictually wrongful? (1)

1.4 The well-known case of Universiteit van Pretoria v Tommie Meyer Films
(Edms) Bpk 1977 (4) SA 376 (T) is remembered for accepting the doctrine
of subjective rights.

1.4.1 Briefly explain the fundamental premise or premises of the doctrine

of subjective rights. (2)

1.4.2 Discuss the nature of subjective rights. (3)

1.4.3 Describe the process (or investigation) to determine whether a

subjective right has been infringed. (2)

1.5 Differentiate between the boni mores test and the test for negligence. (2)

1.6 Explain the relevance of the reasonable person (diligens paterfamilias)

test in cases where the wrongdoer is a child. (4)

(20)

Question 2

2.1 A is the director of company B. A makes a fraudulent misrepresentation to

C and causes C to invest R100 000. Did company B act for purposes of
the law of delict?

(a) No. A is a natural person and, thus, has nothing to do with

company B.

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 (b) No. Company B is a juristic person and cannot act for purposes of
the law of delict.

(c) Yes. A juristic person may act through its organs and A’s
misrepresentation will constitute an act for purposes of a delictual
action.

(d) Yes. A and company B are considered as one person.

(e) None of the above options is correct. (1)

2.2 If we say that a human action only constitutes conduct if it is performed

voluntarily, it means:

(a) The wrongdoer must have willed or desired his conduct.

(b) The wrongdoer’s conduct should be rational or explicable.

(c) The wrongdoer was provoked.

(d) That the wrongdoer in question has sufficient mental ability to

control his muscular movements.

(e) That the wrongdoer in question does not have sufficient mental
ability to control his muscular movements. (1)

2.3 A tickles B from behind. B gets a fright, turns around at stabs A to death.
Will a defence of automatism succeed?

(a) No, because in accordance with S v Chretien 1981 (1) SA 1097 (A)
1104, impulsive or spontaneous acts do not really amount to reflex
movements and are usually regarded as voluntary.

(b) No, because in accordance with R v Victor 1943 TPD 77, impulsive
or spontaneous acts do not really amount to reflex movements and
are usually regarded as voluntary.

(c) Yes, because in accordance with S v Chretien 1981 (1) SA 1097

(A) 1104, impulsive or spontaneous acts do amount to reflex
movements and are usually regarded as voluntary.

(d) Yes, because in accordance with CS v Smit 1963 (4) SA 824 (G),
impulsive or spontaneous acts do amount to reflex movements and
are usually regarded as voluntary.

(e) None of the above options is correct. (1)

2.4 Sane automatism is:

(a) Where the automatism is a consequence of wrongfulness.

(b) Where the automatism is a consequence of fault.

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 (c) Where the automatism is a consequence of mental illness.

(d) Where the automatism is not a consequence of mental illness.

(e) None of the above options is correct. (1)

2.5 Insane automatism is:

(a) Where a mental disease renders a person unable to control his

bodily movements.

(b) Where the automatism is a consequence of fault.

(c) Where the automatism is a consequence of mental illness.

(d) Where the automatism is not a consequence of mental illness.

(e) None of the above options is correct. (1)

2.6 Complete the sentence: Liability for ____________is in general more

restricted than liability for ______________.

(a) A delict, a crime.

(b) A commission, an omission.

(c) An omission, a commission.

(d) A positive act, an omission.

(e) A positive act, a crime. (1)

2.7 A drives his car through a stop street into another car. This is an example
of:

(a) Legally deficient or negligent conduct. A did act but he failed to do

so with care.

(b) An omission.

(c) Both an omission and legally deficient or negligent conduct

(d) Neither an omission nor legally deficient conduct.

(e) None of the above options is correct. (1)

2.8 Wrongfulness is:

(a) The infringement of a constitutionally protected interest.

(b) The infringement of a legally protected interest in a morally

reprehensible way.

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 (c) The infringement of a constitutionally protected interest in a criminal
way.

(d) The infringement of a legally protected interest in a legally

reprehensible way.

(e) None of the above options is correct. (1)

2.9 As a point of departure, wrongfulness should be determined by taking into

account all the relevant facts and circumstances that were really present
and all the consequences that really ensued. This means that
wrongfulness is determined ______________________ and
___________________.

(a) Objectively, in vacua.

(b) Subjectively, in vacua.

(c) Subjectively, ex post facto.

(d) Objectively, ex post facto.

(e) None of the above options is correct. (1)

2.10 Which criterion is or may be used to determine whether an interest is

worthy of protection, as well as whether its infringement is legally
unacceptable?

(a) The legal convictions of the community or boni mores criterion.

(b) The legal convictions of parliament or boni mores criterion.

(c) The legal convictions of the high court or boni mores criterion.

(d) The legal convictions of the constitutional court or boni mores

criterion.

(e) None of the above options is correct. (1)

2.11 An act may generally be described as delictually wrongful only when it has
as its consequence the infringement of a legally protected interest.
Whether such a consequence is present, normally requires a concrete
investigation of the relevant facts through an analysis of the available
evidence.

(a) Morally protected interest.

(b) Legally protected interest.

(c) Community-based interest.

(d) Constitutional interest.

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 (e) None of the above options is correct. (1)

2.12 X races down Johannesburg’s main street, a 60km/h zone, at 120 km/h in
peak hour traffic. Miraculously, he does not cause a collision. The
question whether his act be considered wrongful in delict is best answered
by the following statement:

(a) No, because he did not commit a crime.

(b) No, because an act may only be described as delictually wrongful

only when it has as its consequence the infringement of a legally
protected interest.

(c) Yes, because an act may only be described as delictually wrongful

only when it has as its consequence the infringement of a legally
protected interest.

(d) Yes, because he committed a crime.

(e) None of the above options is correct. (1)

2.13 The boni mores test is an objective test based on the criterion of
reasonableness. The basic question that needs to be asked in order to
establish whether there was wrongfulness is:

(a) Whether, according to the convictions of the court and in light of all
the circumstances of the case, the defendant infringed the interests
of the plaintiff in an unreasonable manner.

(b) Whether, according to the legal convictions of the community and in

light of all the circumstances of the case, the defendant infringed
the interests of the plaintiff in an unreasonable manner.

(c) Whether, according to the legal convictions of parliament and in

light of all the circumstances of the case, the defendant infringed
the interests of the plaintiff in an unreasonable manner.

(d) Whether, according to the legal convictions of the community and in

light of all the circumstances of the case, the defendant infringed
the interests of the plaintiff in a criminal manner.

(e) None of the above options is correct. (1)

2.14 In balancing the various interests to determine whether there was

wrongfulness, the balancing process entails:

(a) The ex post facto balancing or weighing-up of the interests which

the defendant promoted by his act and the interests he protected.

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 (b) The ex post facto balancing or weighing-up of the community’s
interests and the interests of the victim.

(c) The ex post facto balancing or weighing-up of the community’s

interests and the interests of the wrongdoer.

(d) The ex post facto balancing or weighing-up of, on the one hand, the
interests which the defendant promoted by his act, and on the
other, those which he infringed.

(e) None of the above options is correct. (1)

2.15 Complete the sentence: In _________________________, Nicholas AJA

accepted the viewpoint of Van der Merwe and Olivier that the “legal
convictions of the community” must be seen as the legal convictions of the
legal policy makers of the community, such as the legislature and judges.
In his role as interpreter of the legal convictions of the community, a judge
nevertheless does not elevate his personal viewpoint regarding right and
wrong to the sole measure of wrongfulness. A judge who does that,
impermissibly makes the law whilst his main task is to apply the law.

(a) Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA
488 (A).

(b) S v Makwanyane 1995 (3) SA 391 (CC) 449.

(c) Jonker v Schultz 2002 (2) SA 360 (O) 367.

(d) Schultz v Butt 1986 (3) SA 667 (A) 679.

(e) None of the above options is correct. (1)

2.16 X violently resists a lawful arrest by Z because he incorrectly believes the

arrest to be unlawful. Select the correct answer:

(a) Subjective factors, such as the defendant’s mental disposition,

knowledge and motive, normally plays a role in determining
wrongfulness. X’s honest mistake does not make his conduct
lawful.

(b) Subjective factors, such as the defendant’s mental disposition,

knowledge and motive, normally do not play a role in determining
wrongfulness. X’s honest mistake does not make his conduct
lawful.

(c) Subjective factors, such as the defendant’s mental disposition,

knowledge and motive, normally do not play a role in determining
wrongfulness. X’s honest mistake makes his conduct lawful.

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 (d) Subjective factors, such as the defendant’s mental disposition,
knowledge and motive, normally plays a role in determining
wrongfulness. X’s honest mistake makes his conduct lawful.

(e) None of the above options is correct. (1)

2.17 X plants deciduous trees along the boundary of his property for the sole
purpose of injuring his neighbour by causing leaves to fall onto his nearby
threshing-floor. Select the correct answer:

(a) X’s improper motive will render his apparently reasonable conduct
wrongful. This is because subjective factors do play a part in the
determination of wrongfulness in the area of neighbour law.

(b) X’s improper motive will not render his apparently reasonable
conduct wrongful. This is because subjective factors do play a part
in the determination of wrongfulness in the area of neighbour law.

(c) X’s improper motive will not render his apparently reasonable
conduct wrongful. This is because subjective factors do not play a
part in the determination of wrongfulness in the area of neighbour
law.

(d) X’s improper motive will render his apparently reasonable conduct
wrongful. This is because subjective factors do not play a part in
the determination of wrongfulness in the area of neighbour law.

(e) None of the above options is correct. (1)

2.18 The boni mores-criterion can be vague and it is often not of much practical
use. In applying the boni mores criterion in practice, what is often
indicative of wrongfulness?

(a) Private defence.

(b) Fault.

(c) Improper motive.

(d) A factual infringement.

(e) None of the above options is correct. (1)

2.19 Every right has a correlative duty. This means that:

(a) If a person has a right to an object, damage rests where it falls.

(b) If a person has a right to an object, other persons have competing

rights to it.

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 (c) If a person has a right to an object, he has a duty to protect that
thing.

(d) If a person has a right to an object, other persons have a duty not
to infringe that right.

(e) None of the above options is correct. (1)

2.20 The nature of a subjective right is determined by:

(a) The usefulness of the right for the individual.

(b) The nature of the object of the particular right.

(c) The nature of the holder of the particular right.

(d) The nature of the monetary value of the particular right.

(e) None of the above options is correct. (1)

(20)

(40)

SECTION B

Question 3

3.1 Mr Yako is a resident at house No 9, Windsor Street, Hilbrow,

Johannesburg (apartment flat). Mr Yako has just bought himself a 9mm
pistol that he intends to use in protecting himself. He is excited about his
new acquisition. However, he has never owned and used a pistol before.
Mr Yako then leaves his room to test the pistol in the balcony of his
apartment flat. While in the balcony, Mr Yako shoots one bullet in the air.
Thereafter, he enters his room and puts the pistol in the designated safe.
An hour later (that is, after Mr Yako has entered his room), Mr Yako hears
a knock in the door of his apartment flat. When he opens the door, police
officers confronts Mr Yako and makes a claim that a bullet was shot in Mr
Yako’s apartment flat. The said bullet allegedly hit and killed a rugby
spectator (Mr Maya) at Ellis Park stadium while the latter was watching a
rugby match between the Golden Lions and DHL Stomers.

3.1.1 Identify and discuss the form of intent or dolus demonstrated in the
facts mentioned above. In your answer, refer to relevant case law.
(10)

3.1.2 Will your answer in 3.1.1 above be different if Mr Yako saw Mr

Maya sitting behind a closed window, takes out his pistol and
shoots at Mr Maya. However, the bullet shatters a window-pain and
fatally wounds Mr Cooks? Explain fully. (5)
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3.2 What is “consciousness (knowledge) of wrongfulness”? Use examples to
substantiate your answer. (5)

(20)

Question 4

4.1 Define negligence. (2)

4.2 Describe “gross negligence”. (2)

4.3 With specific reference to relevant case law, state the circumstances
under which negligence and intention overlaps. (2)

4.4 Discuss fully the criteria that is or could be used for the “apportionment of
damages”. (4)

(10)

(30)
Total: [70]

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