HIGHER EDUCATION PROGRAMMES

Academic Year 2022: Jan – Jun 2023

Formative Assessment 1: General Principles of the Law of Delict
(HGPLD230-1)
NQF Level, Credits: 6, 10
Weighting: 20%
Assessment Type: Essay Questions
Educator: Gadiël Robbertze
Examiner: Gadiël Robbertze

Due Date: 31 March 2023

Total: 100 Marks

Instructions:

• This paper consists of seven (7) questions.

• It is based on Units 1 - 4 of your textbook.
• All questions are compulsory.
• Your assessment must be typed using:
o Font: Arial
o Font size: 12
o Line spacing: 1.5

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 The learning outcomes assessed on this assessment are:

• Distinguish between a positive act and an omission and provide examples of

each.
• Explain and discuss the three characteristics of conduct.
• Explain the defence of automatism.
• Explain when the defence of automatism will not succeed.
• Explain and discuss the meaning of wrongfulness
• Discuss what the bonis mores test entails
• Discuss ad explain how wrongfulness is to be determined I cases of omissions
• Explain various factors to consider in determining wrongfulness in respect of
omissions
• Describe the following grounds of justification briefly: the power to discipline.
• Explain the meaning of consent.
• Define fault.
• Discuss accountability with regards to minors and distinguish between infans,
youth and adult in terms of the Child Justice Act of 2008.
• Explain the law regarding negligence of minors pre and post 1965.
• Describe when private defence applies
• List the requirements for the attack and the defence

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Question 1 (3 marks)
Read the scenario below and answer the question that follows:
Jeremy is incarcerated at Kgosi Mampuru prison. On 22 August 2022, Jeremy was
attacked by members of the 28 gang in the prison.

As a result of the attack, Jeremy sustains severe injuries. However, the prison warden
fails to notify the police and fails to offer medical care to Jeremy. On 25 August 2022, it
is found that Jeremy has severe brain damage and no longer has the ability to function
normally.

Required:

Does the prison warden’s inaction in the scenario above constitute conduct in terms of the
law of delict? Motivate your answer. (3 marks)

Question 2 : (7 marks)

Read the scenario below and answer the questions that follow:
Nellie was driving along the N1 highway. All of a sudden, she blacks out as a result of
an epileptic fit. As a result of her blackout, she causes an accident in which several
people are injured. Nellie has never had an epileptic fit before.

2.1. Is Nellie liable in terms of the law of delict? In your answer, specifically, refer to the
element of conduct. (6 marks)

2.2. Would your answer to the above question differ if Nellie knew she had epilepsy,
didn’t take her medication, and had a blackout as a result thereof?

Briefly motivate your answer. (1 mark)

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 Question 3 (20 marks)
Read the case study below and answer the question that follows:

The matter of Carmichele v Minister of Safety and Security 2001 (10) BCLR 995 (CC)
concerned an attack on the applicant by the respondent. The respondent was convicted of
attempted murder and housebreaking in the Knysna regional court and was sentenced to
an effective term of imprisonment of twelve-and-a-half years.

The applicant instituted proceedings in the High Court for damages against the Minister of
Safety and Security and the Minister of Justice and Constitutional Development. The
applicant claimed that the members of the South African Police Service and the public
prosecutors at Knysna had negligently failed to comply with a legal duty they owed to the
applicant to take steps to prevent the respondent from causing her harm.

Discuss whether the element of wrongfulness is present with reference to the above case.
In your answer, make specific reference to the bonis mores test and which factors will be
considered.

Question 4 (3 marks)

List the requirements for an attack insofar as it pertains to private defence. (3 marks)

Question 5 (17 marks)

Read the scenario below and answer the questions that follow:

James and Kent had an altercation because Kent called James’ girlfriend fat and ugly.
James subsequently struck Kent with his fists, twisted his arms and in general,
threatened Kent. Kent sued James for damages in terms of the law of delict. However,
James argued that he fought Kent “in the heat of the moment” and by reason of severe
provocation as a result of Kent calling his girlfriend fat and ugly.

5.1. With reference to the facts in the scenario above, discuss whether Kent will succeed
with his claim and whether James’ argument that he was provoked will serve as a
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 justification for his actions. (10 marks)

5.2. Discuss the justification of consent in respect of the law of delict. In your answer,
discuss what consent is and what the characteristics of consent are. (7 marks)

Question 6 (20 marks)

Read the case study below and answer the questions that follow:

Tshepo is a 10 year old boy. He lives on the outskirts of an area called Mthatha in
the Eastern Cape. He is playing soccer in the road with his friends. The road is
situated next to Obdiah’s kraal with goats. Obdiah fails to close the gate keeping the
goats in their enclosure. While playing soccer, one of Obdiah’s goats runs across the
road and hits Tshepo who is injured as a result of the goat trampling over him.

Tshepo’s father (as his legal guardian) wants to sue Obdiah for damages in terms of
the law of delict. However, Obdiah argues that he cannot be held liable in full and
that Tshepo was negligent as well, in that he knew that he was not meant to play
soccer next to his kraal and we would reasonably have been aware of the risk in
doing so.

6.1. What are the two main forms of fault? (2 marks)

6.2. Is Tshepo liable for contributory negligence with reference to the facts above? In your
answer, refer to case law and the relevant legislation. (15 marks)

6.3. Would your answer to question 5.2. change if the incident occurred before 1965?
Provide a reason for your answer. (3 marks)

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Question 7 (30 marks)
Read the fictitious scenario below and answer the questions that follow:

During July 2022, there were riots all over the South Africa as a result of the electricity
disruptions which caused numerous businesses to close down as they could not function
properly. As a result of this, many people lost their jobs and were struggling to make
ends meet. The riots were very violent and on 22 July 2022, Pradeep was sitting in his
home in Durban, when all of a sudden, he noticed the rioters approaching his home. The
rioters were carrying knives and guns and were threatening everyone in the street.
Pradeep was very scared and he grabbed a knife from his kitchen. When Jabulani, who
was part of the riot, approached Pradeep with a gun, he stabbed Jabulani.

7.1. Identify the ground of justification / defence that Pradeep can use should Jabulani
wish to institute a claim for delictual damages. Motivate your answer. (4 marks)

7.2. Will Pradeep’s defence succeed in a court of law? Justify your answer and refer to
relevant case law where applicable. (26 marks)

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